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HIGH COURT OF HIMACHAL PRADESH
MR. JUSTICE TARLOK SINGH CHAUHAN, MR. JUSTICE VIRENDER SINGH, JJ
SATISH KUMAR SON OF SH. DESH RAJ – Appellant
Versus
STATE OF HIMACHAL PRADESH THROUGH ITS PRINCIPAL SECRETARY (EDUCATION) – Respondent
CIVIL WRIT PETITION No.1773 OF 2020 | CIVIL WRIT PETITION NOS.3132, 3597, 4420 OF 2019, 2305,2306 OF 2020 | CIVIL WRIT PETITION (ORIGINAL APPLICATION) NOS. 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, ADVOCATE GENERAL, MR. VINOD THAKUR, ADDITIONAL ADVOCATE GENERAL
The National Council for Teacher Education alone prescribes qualifications for teachers under the Right of Children to Free and Compulsory Education Act, ensuring compliance with statutory procedures.
Headnote:(A) Right of Children to Free and Compulsory Education Act, 2009 - Section 23 - Notification dated 29.07.2011 issued by National Council for Teacher Education (NCTE) regarding qualifications for teacher recruitment challenged - Court finds that NCTE acted without independent application of mind and thus, Notification not binding - It is the NCTE alone which is authorized to prescribe educational qualifications for appointment of teachers under Section 23(1). (Para 63)
(B) NCTE Act, 1993 - Authority and functions - NCTE is recognized as the 'academic authority' to set standards of teacher qualifications, and regulations must be followed under Sections 12 and 12A - If the procedure is not adhered to, instructions cannot bind the State (Para 63)
Facts of the case:
Petitioners, qualified B.Ed., challenged recruitment norms for “Shastri Teachers”, contending that qualifications set by NCTE were improperly amended and State's guidelines violated educational norms. The State shifted its position in court, claiming the NCTE’s Notification of 29.07.2011 was issued without proper authority.
Findings of Court:
NCTE's Notification dated 29.07.2011 not binding as it lacked independent processing per statutory provisions; thus, validation of teacher qualifications exclusively lies with NCTE under the RTE Act.
Issues: Whether the NCTE’s notification prescribing qualifications for appointment of teachers remains valid amidst state contention regarding independence and procedural adherence.
Ratio Decidendi: The Notification issued by NCTE must adhere to prescribed procedures to be binding; the powers of the Central Government over NCTE are restricted to policy directives, not qualifications for appointment. (Para 59)
Result: Petitions dismissed. Parties bear their own costs.
| Table of Content |
|---|
| 1. petitioners challenge regulations for teacher qualifications. (Para 1 , 2 , 3 , 4) |
| 2. state opposes ncte's authority in qualifications. (Para 5 , 6 , 7 , 8) |
| 3. constitution provides rights to education. (Para 9 , 10 , 11 , 12) |
| 4. rte act's structure for teacher qualification laid. (Para 13 , 14 , 15) |
| 5. ncte's authority to define qualifications established. (Para 32 , 33) |
| 6. ncte's regulations bind the state for teaching qualifications. (Para 39 , 40 , 41) |
| 7. petitions dismissed; costs borne by parties. (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
