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HIGH COURT OF HIMACHAL PRADESH
TARLOK SINGH CHAUHAN, VIRENDER SINGH, JJ
SATISH KUMAR SON OF SH. DESH RAJ – Appellant
Versus
STATE OF HIMACHAL PRADESH – Respondent
CIVIL WRIT PETITION No.1773 OF 2020|CIVIL WRIT PETITION NOS.3132, 3597, 4420 OF 2019|CIVIL WRIT PETITION NO.2305, 2306 OF 2020|CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO.7311 OF 2020
For the Appellants/Petitioners: MR. DEVENDER K. SHARMA, MR. BHUVNESH SHARMA, MR. RAMAKANT SHARMA, MR. ADARSH K. VASHISTA
For the Respondents: MR. ASHOK SHARMA, MR. VINOD THAKUR, MR. YUDHBIR SINGH THAKUR, MR. RAJAT CHAUHAN, MR. B.NANDAN VASHISTH, MR. SURENDER KUMAR SHARMA, MR. NEERAJ KUMAR SHASHWAT, MR. VISHWA BHUSHAN, MR.AJEET SINGH SAKLANI, MR. MUKESH SHARMA, MR. ANIL BANSAL, MR. SANDEEP CHAUHAN
NCTE has exclusive authority to prescribe teacher qualifications under the RTE Act, and State cannot alter requirements set by NCTE without proper statutory procedure.
Headnote:(A) Right of Children to Free and Compulsory Education Act, 2009 - Section 23 - National Council for Teacher Education Act, 1993 - NCTE as academic authority to prescribe qualifications for teachers - Validity of NCTE Notification dated 29.07.2011 challenged - The State argued that B.Ed. qualification for ‘Shastri Teachers’ is unconstitutional and not separately approved by Parliament - Court ruled that NCTE has the exclusive authority to determine teacher qualifications, affirming NCTE Notification as binding and lawful unless due procedure not followed - Decision supports that State must adhere to NCTE prescribed norms and amendments without violating statutory guidelines. (Paras 9, 13, 23, 26, 64)
Facts of the case:
Petitioners, holders of B.Ed. qualifications, sought to compel State to fill ‘Shastri Teachers’ posts according to NCTE norms instead of State Notification dated 29.09.2020, later contested by State.
Findings of Court:
Court found no merit in challenges to NCTE qualifications and dismissed petitions, affirming NCTE's binding status over State.
Issues: Whether NCTE holds exclusive authority over teacher qualifications per RTE Act and if State can deviate from NCTE Notification.
Ratio Decidendi: Court clarified that the notifications issued by NCTE constitute an exhaustive view on qualifications; any amendment must follow specified legal procedures outlined in NCTE Act.
Result: Petitions dismissed.
| Table of Content |
|---|
| 1. introduction of the civil writ petitions (Para 1) |
| 2. petitioners' qualification and requests (Para 2 , 5 , 9) |
| 3. state's shifting position on qualifications (Para 3 , 4 , 22 , 28) |
| 4. state's final position and implications (Para 6 , 36 , 42 , 59) |
| 5. the role of ncte under the rte act (Para 7 , 8 , 10 , 11 , 12 , 14) |
| 6. statutory authority and ncte qualifications (Para 25 , 26 , 29 , 37 , 40) |
| 7. dismissal of petitions (Para 64) |
ORDER
Since, identical question of facts and law arises for consideration in these petitions, therefore, they were taken up together for hearing and are being disposed of by a common judgment.
2. The petitioners have qualified B.Ed. and have sought a direction to the respondents to fill-up the posts of “Shastri Teachers” strictly in accordance with the norms as laid down by the National Council for Teacher Education (NCTE) in its Notification dated 29.07.2011 and not on the basis of the Notification issued by the State Government on 29.09.2020 which, according to them, is in violation of the instructions of the NCTE.
3. The State which had earlier conceded to the claim of the petitioners has now opposed the same on the basis of the records produced by the NCTE relating to the issuance of the Notification dated 29.07.2011.
4. It is now averred that the Notification dated 29.07.2011 issued by the NCTE is de hors the provisions of the Right of Children to Free and Compulsory Education Act, 2009 , (for short “RTE Act”),more particularly, Section 23 thereof and, therefore, not binding on the State Government.
5. It is averred that the Ministry of Human Resource Development (MHRD) (Development of School Education and Literacy) in exercise of its powers as conferred under Sub- Section 29 of the RTE Act had authorized the NCTE as an “academic authority” to lay down the curriculum and evaluation procedure for Elementary Education and to develop a framework of National curriculum under Clause (a) of sub-section (6) of Section 7 vide Notification dated 31.03.2010. Similarly, vide Notification of the same date, NCTE had been notified as an “academic authority”. The NCTE had inserted B.Ed. qualification for Language Teacher merely on the direction of the MHRD without there being any independent application of mind by the NCTE.
6. To similar effect is the stand taken by the private respondents, who do not hold or possess the B.Ed. Degree.
7. Thus, what would be noticed from the discussion so far is that the sole controversy which arises for consideration in these petitions is whether the NCTE has correctly and legally included B.Ed. as an essential qualification for eligibility of appointment to the posts of “Shastri Teachers”.
8. In order to appreciate the controversy, we may note in brief the factual background as well as the statutory framework.
9. Article 21A was inserted in the Constitution by Constitution (Eighty-sixth Amendment) Act, 2002 with effect from 01.04.2010 which provides that the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine. Long before the amendment of the Constitution and insertion of Article 21A, the right to primary education was recognized as a fundamental right being part of Article 21 by the Hon’ble Supreme court in the case of Mohini Jain vs. State of Karnataka (1992) 3 SCC 666 and in the case of Unni Krishnan J.P. vs. State of Andhra Pradesh (1993) 1 SCC 645. With the insertion of Article 21A, this right was recognized as an independent fundamental right in the Constitution.
10. To operationalize this valuable right, the Parliament framed the RTE Act. The term 'school' has been defined in Section 2(n) as to mean any recognized school imparting elementary education and would include the schools established, owned or controlled by the appropriate Government or a local authority, schools receiving aid and even unaided schools. Clause (g) of Section 8 of the RTE Act, pertaining to duties of a
