1

Reserved on 17.4.2013

Delivered on 31.5.2013

Civil Misc. Writ Petition No. 12908 of 2013

Shiv Kumar Sharma Vs. State of U.P. & others

Connected with:

Civil Misc. Writ Petition No. 12911 of 2013

Yatinder Kumar Tiwari Vs. State of U.P. and others

With

Civil Misc. Writ Petition No. 12915 of 2013

Prit Pal Singh Vs. State of U.P. and others

With

Special Appeal No. 150 of 2013

Navin Srivastava and others Vs. State of U.P. and others

With

Special Appeal No. 149 of 2013

Sujeet Singh and others Vs. State of U.P. and others

With

Special Appeal No. 152 of 2013

Rajeev Kumar Yadav Vs. State of U.P. and others

With

Special Appeal No. 159 of 2013

Anil Kumar and others Vs. State of U.P. and others

With

Special Appeal No. 161 of 2013

Alok Singh and others Vs. State of U.P. and others

With

Special Appeal No. 205 of 2013

Amar Nath Yadav and others Vs. State of U.P. and others

With

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Special Appeal No. 206 of 2013

Yajuvendra Singh Chandel & another Vs. State of U.P. & others

With

Special Appeal No. 220 of 2013

Amiteshwari Dubey and others Vs. State of U.P. and others

With

Special Appeal No. 244 of 2012

Dr. Prashant Kumar Dubey Vs. State of U.P. and others

With

Special Appeal No. 246 of 2013

Priyanka Bhaskar and others Vs. State of U.P. and others

With

Special Appeal No. 248 of 2013

Uma Shanker Patel and others Vs. State of U.P. and others

With

Special Appeal No. 249 of 2013

Devesh Kumar and others Vs. State of U.P. and others

With

Special Appeal No. 261 of 2013

Sanjay Kumar and others Vs. State of U.P. and others

With

Special Appeal No. 262 of 2013

Sanjay Kumar and others Vs. State of U.P. and others

With

Special Appeal No. 264 of 2013

Rama Tripathi and others Vs. State of U.P. and others

With

Special Appeal No. 265 of 2013

Nagendra Kumar Yadav and others Vs. State of U.P. and others

With

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Special Appeal No. 266 of 2013

Haryendra Singh and others Vs. State of U.P. and others

With

Special Appeal No. 268 of 2013

Rajiv Kumar Srivastava and others Vs. State of U.P. and others

With

Special Appeal No. 307 of 2013

Vineet Kumar Singh and others Vs. State of U.P. and others

With

Special Appeal No. 333 of 2013

Satendra Singh and others Vs. State of U.P. and others

With

Special Appeal Defective No. 200 of 2013

Rajpal Singh and others Vs. State of U.P. and others

With

Special Appeal Defective No. 227 of 2013

Praveen Kumar Vs. State of U.P. and others

With

Special Appeal Defective No. 228 of 2013

Mahendra Kumar Verma and others Vs. State of U.P. and others

With

Special Appeal Defective No. 302 of 2013

Ram Baboo Singh and others Vs. State of U.P. and others

*****

Hon'ble Sunil Ambwani,J.

Hon'ble A.P. Sahi,J.

Hon'ble P.K.S. Baghel,J.

This Full Bench has been called upon to resolve the

controversy that has arisen out of a reference made by a learned

single Judge doubting the correctness of the judgment in the case

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of Prabhakar Singh and others Vs. State of U.P. and others,

2013 (1) ADJ 651, relating to the compulsion of passing the

Teacher Eligibility Test as prescribed under the Notification dated

23.8.2010 as amended on 29.7.2011 for appointments on the

post of an Assistant Teacher for an Elementary Basic School

(classes I to V). Even though there are three questions framed by

us, the issue which requires a resolution is the binding effect of

the aforesaid Notification that has been issued by the National

Council for Teacher Education while prescribing a minimum

standard to be possessed by a candidate aspiring to become a

Teacher of elementary education.

The Division Bench in the case of Prabhakar Singh (supra)

was hearing an Appeal against the judgment of a learned single

Judge in the case of Ravi Prakash and others Vs. State of U.P.

and others, reported in 2013 (1) ESC 11 : (2013) 1 UPLBEC

478. The challenge that was raised before the learned Single

Judge was two fold, namely that the Teacher Eligibility Test

would not be compulsory for such candidates whose process of

selections in the Teachers training course of BTC had commenced

prior to the issuance of the said Notification, which according to

them, amounted to the commencement of the process of

appointment. The second prayer of those candidates was to grant

appointment as an Assistant Teacher without being compelled to

undertake the Teacher Eligibility Test. The learned single Judge

held that the process of acquisition of training qualification either

of the BTC course or special BTC course would not by itself

amount to the commencement of the process of recruitment

under the Rules. For this, the learned single Judge relied on the

Apex Court decision in the case of Devendra Singh and others

Vs. State of U.P. and others, (2007) 9 SCC 491, and other

judgments to hold that the process of completion of Teachers

Training Course does not amount to commencement of the

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recruitment process which would begin only with the

advertisement under Rule 14 of the U.P. Basic Education Teachers

Service Rules, 1981. The argument on behalf of the petitioners

was that in view of the past practice and the various

communications at the government level and the level of the U.P.

Basic Education Board, the process of appointment was complete

with the preparation of the list of the successful candidates in the

training course. It was argued that with the completion of the

training year wise, the candidates were to be placed accordingly

as per Rule 17 of the 1981 Rules which did not require any further

recruitment process. This argument of the petitioners was turned

down by the learned single Judge holding that the process of

recruitment would commence with a formal advertisement under

Rule 14 and the mere preparation of a list of the trained

candidates on the basis of their training qualification does not

amount to commencement of the recruitment process.

The learned single Judge also found that Rule 16 of 1981

Rules clearly prescribes that after the advertisements are made, a

Selection Committee is constituted where after the selections are

finalized and then the letters of appointment are issued. The

learned single Judge finally held that all petitions deserve to be

dismissed as the minimum qualifications as prescribed in the

Notification dated 23.8.2010 have to be possessed before any

candidate is appointed as a Teacher. Thus, those candidates, who

had merely completed their training qualification prior to the

Notification dated 23.8.2010, were not found to be saved by

clause 5 of the Notification dated 23.8.2010. Consequently, all the

writ petitions were dismissed holding that all petitioners have to

necessarily pass the Teacher Eligibility Test before their

appointment.

The Division Bench in Prabhakar Singh's case (supra), which

6

heard the Appeal against the said judgment, accepted the first

part of the reasoning of the learned single Judge relating to the

commencement of the recruitment process and held that the ratio

of the decision in the case of Devendra Singh (supra) by the Apex

Court was binding and accordingly if the recruitment process,

according to Rule 14, had not begun with an advertisement, then

in that event, the process of recruitment had not commenced and,

as such, the candidates, who were seeking appointment without

having undergone the said process, could not succeed.

Consequently, this part of the judgment of the learned single

Judge was upheld.

However, while proceeding to consider the claim of the

candidates covered by clause 3 (a) of the Notification dated

23.8.2010, the Division Bench came to the conclusion that with

regard to the candidates, who possessed the qualification of

B.A./B.Sc. with at least 50% marks and B. Ed. with training, were

not required to undergo the Teacher Eligibility Test at all, as

clause 3 of the Notification dated 23.8.2010 did not prescribe any

such requirement by the conspicuous absence of this test being

prescribed for the said category of candidates. The Division Bench

even though proceeded on the reasoning that while interpreting

the applicability of a particular clause in a Statute, it has to be

read as a whole, but at the same time came to the conclusion that

the qualifications prescribed under clause 3 for the aforesaid

category of Teachers are independent, and have to be read in

isolation. The reasoning given by the Division Bench was primarily

two fold; firstly, that clause 3 is a substantive provision which is in

addition to the qualifications that are provided in clause 1 and,

therefore, it has to be read in a separate manner. The Court relied

on certain Apex Court decisions to observe that if there are two

provisions in the same Statute then they have to be interpreted in

the manner so as to give meaning and purpose to both the

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provisions. The Court also observed that a harmonious approach

has to be applied and it, therefore, held that clause 3 was an

exception to the qualification as provided in clause 1.

It needs to be emphasized that clause 1 clearly requires

that Teachers for classes I to V and classes VI to VIII were both

required to pass the Teacher Eligibility Test.

The second reasoning given by the Division Bench is that

the rule making authority was aware of this separate class of

Teachers and consequently provided a 6 months elementary

program for training for such class of Teachers. It is for this

reason that training to be undergone is the head note of clause 3

without the compulsion of passing the Teacher Eligibility Test.

The Division Bench then further went on to hold that the

Central Government has the power to relax the minimum

qualifications and consequently when the State Government

submitted a proposal on 26.7.2012 to the Central Government for

relaxation of minimum qualification under Section 23 (1) of The

Right of Children to Free and Compulsory Education Act, 2009, the

same was granted vide Notification dated 10.9.2012 extending

the relaxation up to 31.3.2014. Considering the said request of

the State Government for relaxation of minimum qualification, the

Division Bench read the said relaxation also available to the

Teachers defined in clause 3 to mean that such candidates were

not required to pass the Teacher Eligibility Test. Consequently, the

Division Bench came to the conclusion that the State Government

had wrongly construed that the Teacher Eligibility Test has to be

passed by this category of candidates as well. The Special Appeal

was partly allowed and the aforesaid category of candidates

mentioned in clause 3 were held to be entitled for appointment on

the post of Assistant Teacher for class-I to V without passing the

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Teacher Eligibility Test.

It is this second part of the judgment in Prabhakar Singh's

case (supra) that was noticed by a learned single Judge in the

case of Shiv Kumar Sharma Vs. State of U.P. and others, Civil

Misc. Writ Petition No.12908 of 2013, and after recording an

opinion doubting the correctness of the judgment of the Division

Bench to the aforesaid extent, made a reference vide order dated

8.3.2013 to be answered by a Full Bench in relation to the

compulsion of the Teacher Eligibility Test for all classes of

Teachers.

The said reference has, therefore, been placed by Hon'ble

the Chief Justice to be answered by this Full Bench in the

aforesaid background.

To address the issue involved, we had heard the matter and

framed 3 questions as follows:-

“(a)What does the phrase “minimum qualifications”

occurring in Section 23 (1) of the right of Children to

Free and Compulsory Education Act, 2009 (the Act)

mean – whether passing the 'Teacher's Eligibility

Test', is a qualification for the purposes of Section 23

(1), and it insistence by the NCTE in the Notification

dated 23.8.2010 is in consonance with the powers

delegated to the NCTE under Section 23 (1) of the

Act?

(b) Whether clause 3 (a) of the Notifications dated

23.8.2010 and 29.7.2011 issued by the NCTE under

Section 23 (1) of the Act, permits persons coming

under the ambit of that clause to not undergo the

'Teacher's Eligibility Test', before they are eligible for

appointment as Assistant Teachers? What is the

significance of the words “shall also be eligible for

appointment for Class-I to V upto 1

st

January, 2012,

provided he undergoes, after appointment an NCTE

recognized six months special programme in

elementary education”?

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(c)Whether the opinion expressed by the Division

Bench in Prabhakar Singh and others Vs. State of U.P.

and others, 2013 (1) ADJ 651 (DB), is correct in law?”

Basically 4 sets of arguments have been advanced, the first

on behalf of those candidates who are covered by clause 3 (a) and

who are claiming exemption from appearing in the Teacher

Eligibility Test on whose behalf Sri Rahul Agrawal has advanced

his submissions; the second set of arguments have been

advanced by Sri Ashok Khare, learned Senior Counsel, on behalf

of the original petitioners before the learned single Judge in Ravi

Prakash's case and similarly situated candidates and his

submission is to set aside the entire judgment of the Division

Bench and allow the appointment of such candidates as well who

had been successful in their training prior to 23.8.2010 and

claimed entitlement for appointment under the exemption

provided for in the Notification dated 23.8.2010 on the ground

that their recruitment process had already commenced; the third

set of arguments have been advanced by Sri Arvind Srivastava

and Sri Alok Mishra for such candidates who claim that they have

also acquired the training qualifications but from outside the State

and, therefore, after having succeeded before the Apex Court with

regard to the validity of their training qualifications, they were

also entitled to be appointed with their colleagues who had

completed their training qualifications within the State of U.P.

prior to 23.8.2010, which argument is founded on the plea of

discrimination by the State on the ground, that the State

Government itself has proceeded to make such appointments

after 23.8.2010 and before November, 2011, without compelling

such candidates to pass the Teacher Eligibility Test; the 4

th

set of

arguments have been advanced by the State, the Union of India

and the National Council for Teacher Education, who have jointly

urged that the Teacher Eligibility Test is compulsory even for

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those candidates who are referred to in clause 3 and there is no

ambiguity in the entire rules so as to carve out an exception in

their case. The arguments on behalf of the State and the Union

have been advanced by Sri C.B. Yadav, Addl. Advocate General of

Uttar Pradesh, Sri R.B. Singhal, Assistant Solicitor General of

India, assisted by Sri Krishna Agrawal, Sri R.A. Akhtar for the

National Council for Teacher Education and Sri B.P. Singh for the

Uttar Pradesh Basic Education Board.

The relevant provisions that are under consideration have

been extensively extracted in the Division Bench judgment of

Prabhakar Singh's case and, therefore, we have not undertaken

the exercise to repeat the same.

The fundamental arguments that have been advanced by

the learned Counsel representing the respective parties have to

be dealt with separately. Sri Rahul Agrawal has defended the

interpretation put forth by the Division Bench and has prayed that

the reference be turned down. His submission is primarily that the

Teacher Eligibility Test is not a minimum qualification and is only

a test designed to gauge the eligibility of a candidate. It is,

therefore, not a qualification either minimum or essential,

required to be possessed by a candidate under clause 3 which

specifically omits to mention the test as a qualification. He has

gone one step further by contending that it is only the minimum

qualification which can be fixed by the Academic Authority under

Section 23 of the 2009 Act and, therefore, he contends that the

Teacher Eligibility Test not being a qualification, the same could

not have been prescribed by the Academic Authority. An

Amendment Application has been filed challenging the authority of

the National Council for Teacher Education to fix such qualification

as being ultra vires to the provisions of Section 23 of the 2009 Act

itself.

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He then submits that there was a purpose behind in not

providing this qualification for the candidates of clause 3 as a

separate bridge course has been indicated to be undertaken

within a period of 6 months for such candidates who were already

possessed of a B.Ed. qualification.

He urges that the very nature of the educational

qualifications that are prescribed in clause 3, put these candidates

on a higher pedestal as they have acquired these qualifications

through an educational process and, therefore, they were rightly

found to be qualified enough so as to be exempted from

appearing in the Teacher Eligibility Test. Supplementing his

arguments, he contends that the relaxation which has been

referred to in clause 5 of the Notification dated 23.8.2010 and

29.7.2011 also supports this argument inasmuch as the power of

relaxation is in relation to the Teacher Eligibility Test which is not

mentioned under clause 3. To challenge the authority of

prescribing Teacher Eligibility Test as a minimum qualification, Sri

Agrawal has cited decisions to support his arguments which shall

be dealt with later on and has referred to Rules 17 to 19 and 15

to 17 of the Central and the State Rules framed under the 2009

Act. He has emphasized that minimum qualification has to be

understood in conjunction with these rules and judgements which

have been relied upon to interpret that the National Council for

Teacher Education has no power to prescribe a test as a minimum

qualification. He has also brought on record extensive written

arguments to buttress his submissions alongwith a compilation of

judgments.

Sri Ashok Khare has, however, taken a slightly different

stand namely that Teacher Eligibility Test as prescribed does not

give rise to any ground of challenge to any such prescription. He

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submits that no challenge was even raised to the vires of the

Rules or it's applicability for holding future examination or

prescribing it as a necessary qualification. He submits that the

Teacher Eligibility Test would not apply in relation to such

candidates who had passed their training qualification and were

eligible for being appointed under the 1981 Rules prior to

23.8.2010. He contends that the State is bound by the past

practice of finalising appointments immediately after completion

of training without any formal requirement as required under Rule

14 or holding of any selection under Rule 16 of the Rules. He has,

therefore, questioned the correctness of the Division Bench

judgment on the first aspect as well and has raised the same

submissions that were advanced before the learned single Judge

in Ravi Prakash's case. He, however, submits that the other

aspect which touches this issue and has been incorporated in the

written argument submitted by him may also be answered by this

Full Bench. He contends that the Division Bench has committed an

error by reading Clause 3 of the Notification dated 23.8.2010 in

isolation and fails to draw a valid distinction between the

compulsion of Teacher Eligibility Test and the relaxation/

exemption under the Notification dated 10.9.2012. He submits

that the reasoning given by the Division Bench proceeds on an

irrelevant consideration and that the exemption/relaxation dated

10.9.2012 cannot be guided or governed by any Notification of

clause 3 of the Notification dated 23.8.2010.

He has further contended that the State Government itself

was unsure about the date from which the said Notification dated

23.8.2010 would apply. He submits that after the said Notification

was issued, the State Government took it's own time to amend

the Rules incorporating the requirement of Teacher Eligibility Test

examination. The said Rules were framed on 29.7.2011 and the

amendment in the 1981 rules was brought about on 9.11.2011.

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He, therefore, contends that the implementation of the Teacher

Eligibility Test examination itself being fixed on different dates

referred to herein above, such candidates who had completed

their training before 23.8.2010, were entitled to be appointed

even after 23.8.2010 and to that extent, he contends that even

the first part of the judgment in Prabhakar Singh's case deserves

to be overruled.

The third set of arguments advanced by Sri Arvind

Srivastava are that the National Council for Teacher Education

Regulations of 2001 were enforced prior to the Notification dated

23.8.2010 and since the vacancies that are sought to be filled up

which are of prior to the said date, it is the old qualifications which

will continue to apply and the appointment should be made in

relation to the date of the availability of the vacancies. He has

also relied on the letters issued by the Basic Education Board to

contend that appointments were to be made as per the past

practice without any further advertisement for recruitment and he

contends that initiation of the recruitment process had

commenced with the advertisement of the training itself. He

submits that such candidates had a legitimate expectation and a

different treatment given to the candidates represented by him

violates Article 14 of the Constitution of India. He contends that

the judgment of the Division Bench in Prabhakar Singh's case

(supra) creates 2 classes of Teachers and, therefore, it should be

overruled with a direction that the candidates, to whom he

represents, should be offered appointment. To supplement his

submissions on discrimination, he contends that the candidates,

who had passed out their training qualification from outside the

State, had agitated the matter up to the Apex Court for inclusion

of their qualification and the Supreme Court answered it in their

favour in October, 2010. Their right was acknowledged in relation

to the earlier vacancies alongwith those candidates, who have

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passed their training qualification within the State of Uttar

Pradesh. This was in relation to the special BTC course of 2007

and 2008 and these candidates were, therefore, entitled to be

appointed as the State Government has proceeded to make

appointments of such candidates even after 23.8.2010 without

compelling them to appear in the Teacher Eligibility Test. He,

therefore, contends that since such candidates, who are similarly

placed, deserve the same treatment.

The fourth set of arguments have been advanced by the

State and Sri C.B. Yadav, learned Addl. Advocate General to

contend that the State is bound by the prescription of Teacher

Eligibility Test. He has refuted all the submissions raised on behalf

of the learned counsel and contends that the Teacher Eligibility

Test being compulsory, it has been now incorporated in the Rules

of 1981. Thus, the State has abided by the law made by the

Central Government and has carried out the test as per the norms

fixed by the National Council for Teacher Education.

There is one aspect where Sri C.B. Yadav remained silent

namely on the arguments advanced by the other counsel that

discrimination has been practised and such teachers, who had

acquired the training qualification but had not been appointed,

deserved to be appointed. On this ground of challenge and on a

specific query raised by the Court, in relation to the candidates,

who were appointed after 23.8.2010 without passing the Teacher

Eligibility Test, his answer was that the Court may treat the said

chapter as closed. This non-committal answer about the fate of

such candidates, therefore, remains unanswered. There was no

challenge raised in the proceedings that have given rise to this

reference and, therefore, we are not entering into the merits of

such individual appointments.

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Sri R.B. Singhal has supported the reference and has prayed

that the judgment of the Division Bench needs a reversal to the

extent it carves out an exception in favour of candidates covered

by clause 3. Sri R.A. Akhtar for the National Council for Teacher

Education has emphasized that the power of the Council is very

much available and the argument that it did not have the

authority to prescribe the Teacher Eligibility Test as a qualification

is unfounded. Sri Singhal and Sri Akhtar, therefore, relied on the

guidelines dated 11.2.2011 as well as the Notifications issued

from time to time to urge that all the Notifications read together

with the Notification dated 23.8.2010 would leave no room for

doubt that the Teacher Eligibility Test is compulsory for all classes

of Teachers, who are seeking appointment in Schools, imparting

elementary education without exception.

With the aforesaid submissions raised, it would be

appropriate to refer to the historical background of this litigation.

Compulsory education for free citizens was advocated by Plato

and Aristotle. Free dissemination of knowledge is a virtue

attributed to the personality of a man in our scriptures. Barter of

knowledge was prohibited and imparting education for return in

terms of wealth was considered a sin except “Gurudakshina”, the

avowed object and purpose of which was recognition and honour,

and not greed for wealth. Basic education also known as

elementary education in modern India after the advent of the

British Rule commenced with the establishment of Missionary

Schools. The East India Company, after having succeeded to

power, did not recognize the promotion of education amongst the

natives of India. An early attempt by Sir William Wilberforce to

add a couple of clauses to the Charter of the East India Company

in 1793 for sending out School Masters to India, encountered

serious opposition and accordingly such a move was withdrawn.

The British Rulers refused to accept responsibility for the

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education of Indian people. It was only in 1813 that the Company

allocated a sum of Rs. 1 Lac for the cause of education of India. A

General Committee of Public Service was constituted at Calcutta

in 1823 and the early oriental schools and Colleges were

established in Calcutta. This was clearly designed to cater to the

Britishers to enable them to learn about India.

Then came the famous Minute on Education by Thomas

Babington Macaulay in 1835 whose recommendations were

accepted by Lord Wiliam Bentinck. He took pride in declaring

“Indians in blood and colour, but English in tastes, in opinion, in

morals, and in intellect”. This led to the foundation of anglicised

version of education, even though vernacular education was also

attempted by some British rulers with local support. These

minuscule efforts were followed by the dispatch in 1844 by Sir

Charles Wood for creating a separate education department in

each province and also for the founding of University of Calcutta,

Bombay and Madras in 1857. The introduction of grant-in-aid was

also mentioned in the same dispatch.

Later on, the Indian Education Commission was instituted in

1882 where a very valuable recommendation about the

elementary education of masses was made. Nonetheless, no

specific efforts were made and then we find one of our greatest

Patriots, Mr. Gopal Krishna Gokhale raising his voice in his

presidential address to the Indian National Congress in 1910.

While moving the resolution in the session, which was held on

18.3.1910, Mr. Gokhale raised a clarion call for free and

compulsory elementary education. He introduced a private

Member bill on 16.3.1911 in the Imperial Legislative Council but

the bill could not succeed passage even though the British

government did extend some grants later on.

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Thus, even though free and compulsory education had been

introduced in England, yet the same was not found feasible in

British interest in India and the same situation continued till

independence. Some compulsory Education Laws were passed in

the other parts of the country in the pre independence period but

free and compulsory education was not introduced in it's true

measure. After the Second World War proposals were mooted for

providing free and compulsory basic education for a period of 40

years but the same could not be implemented.

At the national level a debate was going on and a

Committee under the Chairmanship of Prof. B.G. Kher

recommended the incorporation of Article 45 of the Constitution

in the Chapter of Directive principle of State policy which read as

under:-

“Article 45-- The State shall endeavour to provide,

within a period of ten years from the commencement

of this Constitution, for free and compulsory education

for all children until they complete the age of fourteen

years.”

When the Constitution was framed and schedules were

incorporated, education was contained in Entry 11 of the State

List (List II). The State of U.P. was then being governed by the

U.P. Primary Education Act, 1919, the U.P. District Board Primary

Education Act, 1926 and the U.P. Municipal Board Educational

Establishment Service Rules, 1954. The need, therefore, was for a

comprehensive Act and the Uttar Pradesh Basic Education Act,

1972 was brought into force and published in the Gazette on

19.8.1972. It is under this Act that the 1981 Rules have been

framed which are under consideration before us.

It appears that the hope expressed in Article 45 as then

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existed did not bring about any substantial change and

consequently by virtue of the Constitution 42

nd

Amendment Act,

1976, the subject of Education was withdrawn from Entry 11 (List

II) and placed in Entry 25 of List III. Thus, the legislative

competence to legislate on the subject was brought under the

concurrent list with the Union and the State both having powers

to legislate on the subject. In spite of this, no further growth

registered in the development of elementary education and it was

almost 90 years after the idea was first mooted by Mr. Gokhale,

that our Parliament through the Constitution 86

th

Amendment Act,

2002 introduced the amended Article 45 of the Constitution and

added Article 21-A as a fundamental right under Chapter III of the

Constitution of India to ensure free and compulsory education for

children up to the age of fourteen years.

It is to be noted that this amendment in the Constitution

came long after the pronouncement of the Apex Court in the case

of Unni Krishnan, J.P. and others etc. etc. Vs. State of

Andhra Pradesh and others, etc. etc., AIR 1993 SC 2178.

The snail's process with which elementary education was dealt

with as an important Constitutional obligation has been described

by our eminent jurist Mr. F.S. Nariman in the Chapter, 'Have we

forgotten the common man'? in his book “the State of the Nation”

in the following words “With this new Constitutional provision, the

clock has been effectively put back in time”.

Article 45 as amended now reads as under:-

“Article 45. Provision for early childhood care and

education to children below the age of six

years.--The State shall endeavour to provide early

childhood care and education for all children until they

complete the age of six years.”

And Article 21-A is quoted herein below:-

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“21-A. Right to education.-- The State shall provide

free and compulsory education to all children of the

age of six to fourteen years in such manner as the

State may, by law, determine.”

This Constitutional change heralded the framing of the Right

to Free and Compulsory Education for Children Act, 2009. The

Central Government has framed Rules thereunder in 2010 and the

State of U.P. has framed The Uttar Pradesh Right of Children to

Free and Compulsory Education Rules, 2011. The said Rules have

been enforced in exercise of the powers conferred under Section

38 of the 2009 Act w.e.f. 27.7.2011.

Under the aforesaid provisions, the qualifications and the

prescription of the norms for possessing qualifications have also

been included. Thus, the Central Government has enforced the

said Act and has further issued Notifications in this regard. Vide

Notification dated 1.4.2010 of the Ministry of Human Resources

Development, Government of India (Department of School

Education and Literacy), the National Council for Teacher

Education was notified as the academic authority for laying down

such qualifications. A Notification was issued on 31.3.2010 by the

authority and then vide Notification dated 23.8.2010, the

minimum qualifications were fixed by the National Council for

Teacher Education which is subject matter of consideration before

this Full Bench.

At this juncture, it would be relevant to mention that within

the province of Uttar Pradesh after the commencement of the U.P.

Basic Education Act, 1972, appointment to Schools established by

the Board are being governed by the U.P. Basic Education

Teachers Service Rules, 1981. The 12

th

to 16

th

Amendment to the

said Rules, by incorporating the qualifications on account of

20

introduction of the Notification dated 23.8.2010, bring about the

change in the qualifications introducing the Teacher Eligibility Test

for appointment as an Assistant Teacher. It is in this historical and

legal background that we have to proceed to answer the questions

raised before us.

Sri Rahul Agrawal mainly relying on the observations on the

case of Preeti Srivastava Vs. State of Madhya Pradesh, 1999 (7)

SCC Pg. 120 urged that a distinction has to be made between the

word qualification and eligibility. He submits that the power

conferred on the National Council for Teacher Education is to fix a

minimum qualification. He therefore submits that the teacher

eligibility test is neither a qualification nor does the Council have

an authority to fix such a qualification. His submission is that the

fixing of any eligibility is beyond the purview of Section 23 of the

Act. Section 23 of the 2009 Act is quoted herein under:-

23. Qualifications for appointment and terms

and conditions of service of teachers. - (1) Any

person possessing such minimum qualifications, as

laid down by an academic authority authorised by the

Central Government, by notification, shall be eligible

for appointment as a teacher.

(2) Where a State does not have adequate

institutions offering courses or training in teacher

education, or teachers possessing minimum

qualifications as laid down under sub-section (1) are

not available in sufficient numbers, the Central

Government may, if it deems necessary, by

notification, relax the minimum qualifications required

for appointment as a teacher, for such period, not

exceeding five years, as may be specified in that

notification:

Provided that a teacher who, at the

commencement of this Act, does not possess

minimum qualifications as laid down under sub-

section (1), shall acquire such minimum qualifications

within a period of five years.

21

(3) The salary and allowances payable to, and

the terms and conditions of service of, teachers shall

be such as may be prescribed.”

A perusal of the said provision indicates that the words

minimum qualification have been used in relation to the

appointment as a teacher. A teaching staff of an institution

imparting elementary education as defined under the 2009 Act

has to be engaged to provide free and compulsory education to

every child. Section 8 enjoins the appropriate government with a

duty to provide quality education and ensure good quality

elementary education conforming to the standards and norms

specified in the schedule. It also indicates providing training

facility to the teacher. The responsibilities of the institution

includes the responsibility of engaging teachers who are qualified

and for this the prescription of qualification has been entrusted to

the Academic Authority under Section 23.

Sub-Section (2) of Section 23 gives power to the Central

Government to relax the minimum qualifications required for

appointment as a teacher for a period not exceeding five years,

which appears to have been made with the object that such

teachers who on the commencement of the Act do not have the

minimum qualification, may acquire the same within a period of

five years. Relaxation therefore is in a particular contingency

subject to the condition where a State does not have adequate

institutions offering courses or training in teacher education or

unavailability of teachers possessing minimum qualifications.

Sri Rahul Agrawal therefore contends that the words

minimum qualifications have to be understood in the said context

and has then invited the attention of the court to Rule 17 of the

Right of Children to Free and Compulsory Education Rules, 2011,

where it is provided that the minimum educational qualifications

22

for teachers laid down by an authority authorised by the Central

Government shall be applicable for every school referred to

thereunder. He therefore contends that it is the minimum

educational qualification which can be prescribed and therefore

the teacher eligibility test, being not a minimum educational

qualification, could not have been prescribed by the Academic

Authority. He therefore submits that in view of the distinction

between eligibility and qualification as indicated in Preeti

Srivastava's case (supra), which has been followed in a large

number of decisions thereafter, leaves no room for doubt that

qualification has to be understood only as the minimum

educational qualification and not an eligibility criteria. He

therefore contends that the very power of the academic authority

namely the National Council for Teacher Education is questionable

in prescribing the teacher eligibility test as a qualification.

The second limb of the argument is that the TET is not a

qualification at all and is only an eligibility test.

Both these arguments have to be answered on the anvil of

the status of the teacher eligibility test. As noted above with the

constitutional mandate contained in Entry 25 of List 3, there is no

doubt that the powers vest with the Union to frame a law. The

2009 Act was brought into force with the object of providing free

and compulsory education to children with clear insistence on

quality elementary education. Section 8(g) of the Act reads as

under:-

8(g). ensure good quality elementary education

conforming to the standards and norms specified in

the Schedule.

The very purpose therefore is to provide education as per

the standard and norms specified in the schedule. Section 24 of

23

the Act defines the duties of a teacher which includes the duty to

conduct and complete the curriculum in accordance with the

provisions of Section 29. Curriculum for the child as contained in

Section 29 clearly reflects as to what is required of a teacher who

is to implement the said curriculum. Thus qualitatively, the

teacher has to conform to standards that ensure good quality

elementary education. It is correct that eligibility means the

minimum criteria for selection but in the instant case the teacher

eligibility test is not a minimum criteria fixed for selection. It is an

essential integral part, other than the educational and training

qualification prescribed, to be possessed by a candidate before he

is appointed as a teacher.

Qualification is the state of being qualified which means to

possess the necessary qualities or competency to make oneself

eligible or suitable. It is therefore a necessary and essential

feature to be possessed, and not a mere eligibility criteria.

Teacher eligibility test is an additional norm laid down by the

Academic Authority which according to the decision of Preeti

Srivastava's case serves the definition of qualification. The

contention therefore raised by Sri Agrawal that the teacher

eligibility test is not a qualification has to be rejected. It is not a

part of something which is to be possessed at the minimum. It

has to be possessed in addition to the educational and training

qualification.

The argument of Sri Agrawal is that the curriculum of B.Ed.

and B.T.C. Courses as approved by the National Council for

Teacher Education, clearly indicates the inclusion of all such

subjects that are named as papers in the Teacher Eligibility Test.

He submits that Pedagogy and Child Development, the skills of

teachers training and other factors that are required to be

possessed by a qualified teacher are already included in the said

24

curriculum and hence there is no purpose for calling upon a

University Graduate with B. Ed. Qualifications to appear in the

teacher eligibility test. The submission appears to be that if a

candidate is highly qualified and is possessed of such

qualifications that can be related to the subject matter of

requirement, then it can be safely presumed that the rule making

authority had consciously not included the passing of a teacher

eligibility test for such candidates as covered under Clause 3 (a).

As observed hereinabove, the teacher eligibility test cannot

be taken out of the definition of qualification being an additional

norm. If that is so, then the first question stands answered that

the National Council for Teacher Education being the Academic

Authority is empowered to fix the minimum qualification which

includes a Teacher Eligibility Test.

Coming to the second limb of the argument, the purpose of

a teacher eligibility test is to ensure that the candidate claiming

himself to be possessed of such attributes and abilities, has

actually acquired his academic and training qualifications

genuinely. The capacity of a candidate claiming to be possessed of

the educational and training qualifications has therefore to be

screened to treat him to be qualified and then eligible for being

appointed as a teacher. This is in tune with the object of 2009 Act

to provide good and quality education at the elementary level with

the aid of the best teachers. If the Council, duly authorised by the

Central Government, has prescribed this norm which is for the

purpose of ensuring the implementation of the Act, then the

argument that the prescription is ultra vires to Section 23 of the

Act has to be rejected.

Sri Agrawal has also urged that the acquisition of an

educational qualification is by the known educational processes.

25

The teacher eligibility test is not an educational method or a

degree or a course that ends up in a qualification. He therefore

draws a distinction between a qualification acquired through an

educational process of learning, for example a degree of

graduation or a B. Ed. Degree, and a mere eligibility test which is

not preceded by any pursuit of regular course. This argument also

cannot stand the scrutiny of law, inasmuch as, this is akin to the

National Eligibility Test that is required to be possessed by

teachers aspiring to be appointed in colleges and universities of

higher education. The validity of such a test was challenged and

was upheld in the case of University of Delhi Vs. Raj Singh, 1994

Supplement (3) SCC 516.

There also the word qualification came up for consideration

and the apex court after having noticed the requirement came to

the conclusion that there has to be a uniform scrutiny of all the

candidates as they are possessed of educational and training

qualifications from different sources. The eligibility test therefore

is to ensure that candidates coming with diverse educational and

training qualifications acquired from different sources are

assessed uniformly for the purpose of being selected as the best

material for being appointed as a teacher. This is another

essential ingredient of a eligibility test, which has been designed

as in the present case to ensure an even method of selection. It is

for this reason that the curriculum of the teacher eligibility test at

the national level has been prescribed by the National Council for

Teacher Education for it being implemented throughout the

country. It is therefore not only to get the best available

candidates for teaching but also to ensure a uniform pattern

throughout the nation for employing teachers to provide quality

education at the elementary level.

To further understand as to why the teacher eligibility test is

26

a qualification one can refer to the guidelines dated 11

th

February,

2011 where the background and rationale for conducting the said

test has been referred. We may mention at the outset that the

said guidelines had totally escaped the notice of the division

bench and its ingredients while proceeding to treat the teacher

eligibility test to be not necessary for the candidates falling under

Clause 3 of the Notification dated 23.8.2010. The guidelines

provide that persons to be recruited as teachers should possess

the essential aptitude and ability to meet the challenges of

teaching at the elementary level. The consequences were

explained by the rationale that it would bring about national

standards and bench mark of teacher quality in the recruitment

process. It would further induce teacher education institutions to

improve their performance standards and a positive signal to all

stake holders that the Government lays special emphasis on

teacher quality. This rationale therefore justifies the teacher

eligibility test as an additional norm apart from the educational

and training qualifications.

This is fortified by Clause 5 of the guidelines dated

11.2.2011 which says that a person who has acquired the

academic and professional qualification under the notification

dated 23.8.2010 shall be eligible for appearing in the teacher

eligibility test. This Clause leaves no room for doubt that all

classes of candidates possessing the academic and professional

qualifications would be eligible to appear in the teacher eligibility

test and therefore it is a norm which is compulsory for all classes

of teachers including those who fall within Clause 3 of the

notification dated 23.8.2010.

The next is the structure and content of the test which has

five sections in relation to examination for Classes 1 to 5 with

which we are presently concerned. These five sections are Child

27

Development and Pedagogy, Language 1 – focussing on

proficiency relating to medium of instruction, Language 2- an

optional language, Mathematics and Environmental Studies. The

test items for the last two subjects should be correlated with

concepts of problem solving ability and pedagogical understanding

of the subject.

The scheme of the said examination therefore is not limited

to one particular course of study like an individual subject or a B.

Ed. Course. The argument of Sri Agrawal was to compare the

curriculum of the higher educational qualifications possessed by a

candidate under Clause 3 of the Notification dated 23.8.2010 to

indicate that it is inclusive of everything that may be required of a

teacher and which qualification has been acquired by a due

process, recognised in law. Having perused the curriculum as

enumerated hereinabove, we have no doubt that the structure

and content of the teacher eligibility test is of a comprehensive

character not narrowed down to any individual subject but relates

to the overall performance of a candidate to test his capacity and

attribute as a teacher. The curriculum therefore cannot be

compressed so as to be compared with the claim of possession of

a higher qualification of graduation or a B. Ed. Degree.

At this stage the importance of Child Development and

Pedagogy deserves to be emphasised in the backdrop of the social

environment that requires a mention when the province is facing

not only a shortage of numbers, but an acute shortage of duly

qualified and educated teachers at the primary level.

Our court is fully aware of the huge problems that are being

faced in this branch of elementary education with the influx of

temporary methods of providing instruction through teachers like

Shiksha Mitra and Preraks. In this background, the emphasis of

28

quality teachers attains more importance.

The subject of Child Development and Pedagogy assumes

importance and consequently a teacher eligibility test no longer

remains a mere eligibility test but becomes the most essential

qualification to be possessed for being appointed as a teacher.

The word Pedagogy is derived from the word Pedagogue. It

originates from the combination of two Greek words, Piados which

means Boy and Agogos which means leading or guiding. In

ancient times a Greek Slave who was charged with the care of his

master's child in his youth with a job to escort the child, to and

fro, from school, was known as a pedagogue. Slowly with the

passage of time the said word came to be adopted as a synonym

for a person who taught in a class room, and was a tutor as he

was supposed to lead or guide a child. Thus Pedagogy came to be

acknowledged as a science that related to the skill of teaching. It

became a scientific art and was developed for the very purpose

and aim of Child Development.

In our province the dwindling number of students being

admitted to primary schools run by the Board or by the

Government is alarming. It would not be inappropriate to

comment that a teacher of a primary school used to be a school

teacher but has no class now. The apathy and the non-

cooperating attitude of guardians is largely due to inefficient

handling of their children in such schools. This in turn has led to

mushrooming of innumerable private elementary schools that are

also sought to be curtailed by strict enforcement of 2009 Act. One

of the reasons is also the change in social conditions as parents

these days have to obey their children and not vice versa. It is in

this context that the teachers have also lost their directions even

though “teaching is not a lost art, but the regard for it is a lost

tradition.”. (Jacques Barzun). It should not be forgotten that a

29

school is a building that has four walls – with tomorrow inside.

Children these days are at times sent away by parents to

school as if they are an unnecessary strain on them. Children with

this background, if not treated properly at school, visualise it as a

torture house. A school is not an outlet for parents. It is an

institution where the blacksmith and goldsmith of education sit

together and chisel the best of human products. Children are the

poor man's riches and the rich man's asset. In both cases a good

man dies when a child goes wrong. It is for this reason that

elementary education is the best paying investment for future life.

The training of a child, that is an integral part of child

development, is essential for his grooming, as a human mind,

without proper training is like a horse without a bridle difficult to

ride. Children in their cradle of life with the help of teachers can

mould their lives for higher ambitions in their manhood. To assess

and mould children with these ideals is the job of a skilled teacher

and the art of such skill is pedagogy. Teachers have to serve the

larger interest of the society as they are building the future.

Henry Brooks Adams said, “A teacher affects eternity; he can

never tell where his influence stops” and more appropriately

Christa Mcauliffe said “ I touch the future. I teach”. This requires

the possession of virtues like sacrifice and honour which in turn

brings respect to the status of a teacher and infuses confidence in

the pupil.

Many children are victims of apathy and wrongly motived

parental treatment. Their emotional and skilful assessment, and

proper treatment, has to be handled within the clinic of an

elementary school where the sole physician is none else than a

trained teacher. A candidate possessing a mere educational or a

training qualification without any genuine attribute may not

necessarily be a good teacher.

30

It is in this background that one may remember those who

have contributed to this skilful art of pedagogy. In the modern

world the great philosopher and Educationist Rousseau, followed

by the Swiss Predecessor of his German Pupils, Pestalozzi, are

worth remembering. They were followed by the famous Germans

Herbart and Froebel. The English with Lancaster and Bell followed

suit and in the modern world it would be improper to forget the

great contributions of Maria Montessori.

We do not wish to pile up names but this is only to

emphasize that a great scientific contribution has been made to

this skilful art of pedagogy. If one goes through the works of

these great people, one can understand that child development

and teaching children is no easy task and cannot be confined with

the acquisition of a couple of degrees as a supplement to the

complete attribute required of a teacher. The narrow meaning of

qualification therefore that was being pressed into service by Sri

Rahul Agrawal cannot be countenanced in view of the vast ocean

of understanding that is required of a skilful teacher.

In the instant case the skill of the teacher should be lined

with such ingredients that it kindles the spark of a child and

balances a group of mentally uneven children. The duty of a good

teacher is to bring the student into contact with the learning of

fruitful elements that ensue an enduring significance in life,

affirmative information of all modes of intellectual, systematical

and practical activity that play a major part in the building of

human mind and spirit. Their interplay is the exercise that has to

be undertaken by a teacher. This exercise, particularly, in a class

room of infants should be underlined with methods that are elastic

enough to fit the varying needs of different types of children. The

cultivation of mental training and discipline is the prime object of

31

good teaching. We celebrate 5

th

of September each year as

Teachers' Day to commemorate the birth of our late President Dr.

S. Radhakrishnan. He defined the good qualities of a teacher as

follows:-

“A good teacher must know how to arouse the

interest of the pupil in the field of study for

which he is responsible,

he must himself be a master in the field and be

in touch with the latest developments in his

subject,

he must himself be a fellow traveler in the

exciting pursuit of knowledge”

It is for this reason that the status of a teacher has been

described in our ancient scriptures as follows:

“Guru Brahma Guru Vishnu Guru Devo

Maheshwaraha Guru Saakshat Para Brahma

Tasmai Sree Gurave Namaha”

Describing the role model of teachers, our Former President

of India Dr. A.P.J. Abdul Kalam, narrated his experience in his

teachers' day speech on 5

th

September, 2003 and said that a

school must have the best of teachers who have the ability to

teach, love teaching and build moral qualities.

These are the challenges of teaching which have been

referred to in the guidelines dated 11

th

February, 2011. It is in

order to ensure that the candidate is possessed of such attributes.

The guidelines further provide that a candidate will be presumed

to have succeeded in the test if he scores 60% or more. Some

concessions have been given for reduction in the said percentage

32

in the case of scheduled caste, scheduled tribes, and other

backward classes as well as differently abled persons.

The reason for this is that the art of teaching is designed to

educate a child. Education is not mere acquisition of qualifications

but is an overall development of a child to ensure growth and

development. It is the awakening of the inner self and faculty of

the child to the ways of the world. The teacher therefore should

be possessed such qualities that he satisfies the curiosity of a

child that enables him not only to read but to distinguish what is

worth reading. The job of a teacher is not to fill the time-table

with dull unintelligible tasks. This violates common sense and

creativity brutally. Teaching and training cannot be effected in the

absence of knowledge about the mind which is to receive them.

It is the systematic and purposeful construction of a

personality, so that it leaves an everlasting effect on the mind.

The job of a teacher is to get across the confidence in a pupil, that

there were good reasons for everything the teacher did. He has to

be transparent and he cannot leave a pupil to guess that there are

any hidden answers. A good teacher would like the pupil to lead

the way. The teacher would follow and let the pupil know that his

efforts would be recognised. This confidence would help the child

to develop a strength in himself to cope up with his own world by

observing and solving problems. The art of teaching should not be

confined only to oral transmissions because what one hears one

can forget. However, what one sees, one remembers but what

one does he understands. This is what should teaching be

comprised of. The teacher should therefore be in a position to

infuse into a child such attributes that he or she acquires the

ability to assume responsibility for himself/herself. A psychological

independence that enables him/her to decide at the same time

and differentiate right from wrong. This capacity of a child which

33

lies concealed in him has to be discovered in a way that the child

finds this world an interesting place to live in. For this good

teaching may be 1/4

th

preparation and 3/4

th

performance.

A teacher is like a professional as said by Danny Hillis, “A

layman knows he has to kick it; and an amateur knows where to

kick it; a professional knows how hard.” This quality should be

possessed professionally by a teacher as the object of teaching a

child is to enable him to get alone without a teacher.

The skill of such a performance has to be assessed because

teaching is a great art to educate youth to enable him to find out

and discover his own peculiar aptitudes or create where none

exists. A teacher has to create inclinations in the child which may

serve as substitutes. The level of inspiration that has to be infused

in a child should be such that he is able to make a mark in life as

a complete human being. One should remember that “millions see

the apple fall, but Newton was the one to ask why?” The job of a

teacher at the primary level is to generate this element of

curiosity in a child.

For this teachers have to be attributed with qualities that

they are able to handle the weak and the nervous, the mediocre

and intelligent with measured skill. This expertise is a onerous

task and is a substantial part of pedagogy. To teach a child to

become self sufficient is the art which has to be developed with

caution so as not to destroy the fragile confidence by using harsh

methods. The teacher eligibility test appears to be designed for

this purpose.

It is to be remembered that teachers are to impart

education to those souls who are between the period of innocence

of childhood and the folly of youth. It is this aspect of pedagogy to

34

educate a child to lead life that attains importance.

The art of dealing with children also involves knowing what

not to say, and on the other hand patiently answering the

unpredictable questions of an inquisitive child. A teacher should

not give answers to children to remember only, but he should be

able to give them problems to solve. It is then that the

potentiality of the human race is better put to use “because a

child is not a vase to be filled but a fire to be lit.” (Francois

Rebelais ). A Chinese Proverb goes a long way to say “give a man

a fish and you feed him for a day. Teach a man to fish and you

feed him for a lifetime.” Teaching is infusing of ideas instead of

stuffing the brain with facts. William Arthur Ward a famous

educationist said that “The mediocre teacher tells, a Good teacher

explains, a Superior teacher demonstrates but the great teacher

inspires.”

Children come from different backgrounds often being

victimised by unwise and wrongly motived parental treatment.

The teacher has to be more careful for he is enjoined with the

duty of child development. This therefore is the background in

which the teachers role attains immense significance. It is for

such reasons that the Union and the State appear to have come

up with the necessity of a teacher eligibility test.

The importance of teaching and a teacher's selection should

be to find out whether a candidate fulfils and is possessed of such

attributes, that is capable of bringing out the best to ensure child

development. “The art of teaching is the art of assisting discovery

(Mark Van Doran)”. This compulsory attribute is therefore to be

assessed by the State while judging the capability of a teacher

and which therefore is an essential qualification and not only a

minimum qualification. The essential nature of this test therefore

35

leaves no room for doubt that mere possession of educational

qualification and a teachers training course is not sufficient to

assess the capacity of a teacher.

Sir Winston Churchill while assessing the role of a teacher

observed that the Head Masters of elementary schools have

powers at their disposal with which even Prime Ministers have

never been vested with. The reason is that the school master has

to reckon not only with his pupils human tendency to run, but also

with the unwisdom of parents in their early dealings with early

tendency; elimination of wrong doing, not by plainly repressive

methods is also one of the arts that has to be possessed by a

skilful teacher.

All this goes to fulfil the objectives with which Article 45 of

the Constitution of India was incorporated under the United

Nations declaration which says that mankind owes to the child the

best it has to give. An infant who does not know how to express

himself, enters in an elementary school where he has to be taught

his initial alphas and betas. The pronunciation, sentence-forming,

elementary grammar and understanding of his first alphabets

have to be installed in his mind with expertise. It is for this reason

that the curriculum of the TET includes proficiency in the language

of the medium of instruction, an optional language for a better

understanding with the student, mathematics to assess the

investigative strength of the mind and finally environmental

studies to gauge the overall awareness of human life and nature.

This has to be coupled with moral education and discipline and

this entire combination in one performance is the skill of a

teacher. He has to handle the weak and the nervous, the

mediocre and intelligent, with an adequate measured skill for

which a basic attribute with intelligence is required to be

possessed by a teacher. A teacher cannot employ methods like

36

knocking of a child because such methods do not always turn a

timid boy into a courageous one nor does it turn a spoilt brat into

an angel. Nonetheless it is useful to remember Bishop Fulton J

Sheen who said “Every child should have an occasional pat on the

back, as long as it is applied low enough and hard enough”. For

teachers and guardians the proverb “Give a child enough rope,

and you will trip” is also a cautionary note. The acquisition of such

expertise is what is desired to be assessed and that is what the

teacher eligibility test is designed for. It is only to assess these

qualities that would qualify a teacher for being appointed as such

and therefore the teacher eligibility test is not a mere eligibility

criteria but a qualification as prescribed in addition to the

academic and training qualifications.

It would be apt to quote Charles Dickens in his famous book

“Hard Times” where the quality of a teacher has been expressed

from another angle as follows:-

“What I want is facts. Teach these boys and girls

nothing but facts. Facts alone are wanted in life. Plant

nothing else, and root out everything else.”

The role of teaching is therefore of a mediator of learning, a

parent substitute, a controller of students' behaviour, an agent of

social change and finally a judge of achievement. The teacher who

enters a school imparting elementary education has to act like a

group leader who can remove the hindrances of doubts in the

mind of an infant and generate creative development. Above all

he has to in still in the mind of a youngster all virtues of courage

and honesty as this part of education is a vital portion of child

development. It is in the early years that the importance of

education has to be preached so as to achieve what a former U.S.

President Garfield said “Next in importance to freedom and justice

is education without which the other two cannot be entertained.”

37

Ranjeet Ji Sahani in his Work “Indian Pilgrimage” on

elementary education says “ in the early years when plasticity is

at its peak point it can be moulded to any chosen end. The

formative years are of vital importance.” The teacher has

therefore to create an atmosphere to resolve this struggle of the

infant from within. It is not a class of parrotry but is an arena

where the overall grooming to get the best out of the child is the

objective. It is as Mark Van Doran has said that “the art of

teaching is the art of assisting discovery.” It is therefore a long

list of succession of combined activities which a teacher has to

guide, and at times disabled children are also required to be given

due attention.

This being the status that is required of a teacher, we do

not wish to add any further as it falls within the realm of experts

to define what further attributes are required to be comprehended

for the image of a skilful teacher for elementary education, but we

have given our thoughts a due consideration keeping in view the

structure and content of the teacher eligibility examination

referred to hereinabove. Thus we are of the firm view with the

teacher eligibility test is to make sure that the teacher is qualified

in the field which he is about to enter and accordingly is an

additional norm and not a mere eligibility criteria.

We would now like to delve on the reasoning given by the

division bench to treat Clause 3 in isolation. We may at the very

outset observe that the division bench has omitted to consider the

declaration in the notification dated 10

th

September, 2012 itself

where Clause 2 leaves no room for doubt that all teachers who

are candidates for Classes 1 to 8 have to appear in the teacher

eligibility test. Clause 4, of the guidelines issued by the Central

Government for relaxation under Section 23(2) dated 8.11.2010

38

which has been referred to in the division bench judgment, clearly

mandates that the Central Government shall not relax the TET

qualification. The guidelines dated 11

th

September, 2012 that

have been framed in the exercise of powers under Section 35 of

the NCTE Act, 1993 leave no room for doubt that the prescription

is for all classes of candidates who want to become a teacher from

Classes 1 to 8 uniformly. The test has been bifurcated between

lower primary classes and upper primary classes, namely for

Classes 1 to 5 and Classes 5 to 8. The said guidelines do not

draw any distinction between the candidates possessed of the

qualifications under Clause 1 and Clause 3. The exemption

notification dated 11

th

September, 2012 was in response to a

request made by the State Government dated 26

th

July, 2012. We

have carefully examined the same and we find that the State

Government had not sought any exemption or relaxation in

relation to TET for the candidates falling in the category of Clause

3. It was only the extention of the date for acquiring qualifications

upto 31

st

March, 2014 that had been requested for, and was

granted by way of relaxation. This was because of the specific

prohibition contained in the guideline dated 8.11.2010 that no

relaxation is contemplated for TET qualification. The same further

fortifies it to be an essential qualification. The Notifications and

the guidelines clearly indicate that there shall be no relaxation in

the requirement of passing the teacher eligibility test. We

therefore fail to find any support in the reasoning of the division

bench in Prabhakar Singh's case to read Clause 3 in isolation so as

to exempt such candidates from appearing in TET.

The rule of harmonious construction to interpret a statute

requires the consideration of the objects and reasons of the

provision and all other ancillary material that comes to the aid for

implementing the object and purpose of the statute. The division

bench in our humble opinion did not adhere to this principle and

39

did not refer to this ancillary material including the NCTE

guidelines dated 11.2.2011 or to Clause 4 of the guideline of the

Central Government dated 8.11.2010 to assess the correct

applicability of the teacher eligibility test for all candidates

uniformly. Merely because the teacher eligibility test was not

additionally mentioned in Clause 3 would not dilute the intent and

purpose of the test, that is meant for all teachers from Classes 1

to 8.

The relaxation also as explained hereinabove, did not place

Clause 3 in isolation on Clause 1. As a matter of fact Clause 3 is in

continuation of Clause 1 and it only describes another category of

educational and professionally qualified candidates entitled to be

considered for being appointed as teachers. This placement of

another category of qualifications does not exclude the

applicability of the teacher eligibility test clause. If that is taken as

a separate clause it would result in discrimination, and that would

be contrary to the intent and purpose of the 2009 Act as well as

the notifications issued thereunder.

The diversity of certification of the academic and training

qualifications is also one of the reasons to test the attribute of a

teacher as to whether such qualifications are possessed by him or

not. In our opinion, keeping in view the overall impact of the

notifications and the final incorporation of the qualification of TET

in Rule 8 of the 1981 Rules leaves no room for doubt that the

Central and the State Government both have accepted the

teacher eligibility test as an essential qualification. In the

aforesaid background, the reasoning given by the division bench

in Prabhakar Singh's case to exclude the candidates under Clause

3 cannot be supported in law.

From the arguments that were advanced it appears that

40

there was no challenge to the inclusion of the teacher eligibility

test as a qualification but the real challenge was that this

qualification has not to be acquired by those candidates who had

completed their training qualification prior to the notification dated

23.8.2010. It is no doubt true that such candidates who did

possess the qualifications as per the National Council for Teacher

Education Regulation, 2001 were entitled to be appointed under

the old rules prior to 23.8.2010 and according to the then existing

qualifications. However, only such candidates were exempted

under the notification whose recruitment process of appointment

had begun prior to 23.8.2010. We have already noted

hereinabove that mere completion of the process of training

qualification of B.T.C. by itself is not the initiation of the

recruitment process. In such circumstances, if those candidates

who had completed their training qualification, but the posts had

not been advertised in accordance with Rule 14, then these

candidates would not be saved, and if the recruitment process

begins after 23.8.2010, then in that event such candidates do not

get exempted and they have to pass the teacher eligibility test.

Another argument has been raised with regard to the

unsure status of the qualifications that were prescribed in the

notification dated 23.8.2010. It is here that we wish to emphasise

that imparting of compulsory and free education is part of a

sovereign function after being included as a fundamental right

under Article 21-A. Even otherwise its importance does not get

diluted and as such the Central Government is under an obligation

to provide free and compulsory education. The Central

Government therefore in exercise of its competence has brought

about a legislation and has conferred powers on the Academic

Authority to execute the same. We have further come across the

amendment brought about in the National Council for Teacher

Education Act, 1993 through Act No. 18 of 2011 enforced on 12

th

41

October, 2011 whereby with regard to qualifications of school

teachers Section 12-A has been incorporated as follows:-

“12A. For the purpose of maintaining standards of

education in schools, the Council may, by regulations,

determine the qualifications of persons for being

recruited as teachers in any pre-primary, primary,

upper primary, secondary, senior secondary or

intermediate school or college, by whatever name

called, established, run, aided or recognised by the

Central Government or a State Government or a local

or other authority:

Provided that nothing in this section shall

adversely affect the continuance of any person

recruited in any pre-primary, primary, upper primary,

secondary, senior secondary or intermediate schools

or colleges, under any rule, regulation or order made

by the Central Government, a State Government, a

local or other authority, immediately before the

commencement of the National Council for Teacher

Education (Amendment) Act, 2011 solely on the

ground of non-fulfilment of such qualifications as may

be specified by the Council:

Provided further that the minimum qualifications

of a teacher referred to in the first proviso shall be

acquired within the period specified in this Act or

under the Right of Children to Free and Compulsory

Education Act, 2009.”

Thus in addition to the provisions under 2009 Act this

fruitful amendment has re-emphasised the authority of the

National Council for Teacher Education to fix norms and

qualifications that are to be possessed by teachers of all

categories of institutions including elementary education.

We fully approve the view of the division bench in Prabhakar

Singh's case confirming the authority of the Central Government

and the NCTE to prescribe the qualifications as detailed in Para 52

and 53 of the reported judgment. We are also in complete

agreement with the division bench that after the coming into force

42

of the 2009 Act and the prescription of qualifications thereunder

through the Academic Authority the State is not a free agent as

held in Para 51 thereof. The failure of the State Government to

timely implement the qualifications prescribed before making any

appointment after 23.8.2010 will not dilute or take away the

impact of the notification which is mandatory. Every rule of the

State Government for qualification has to be abide by the same by

virtue of the force of Section 23 (1) of the 2009 Act.

The legislative competence and the intent therefore lead to

the conclusion that the Central Government has authorised the

National Council for Teacher Education to make provisions and

which have been carefully en-grafted in the Notification dated

23.8.2010. The State Government has followed suit. However, the

State Government delayed the incorporation as the Rules were

framed by it later on in 2011 and the 1981 Rules were amended

much later. The 12

th

, 13

th

, 14

th

, 15

th

and 16

th

amendment in the

1981 Rules were brought at a later period. In our opinion,

however, merely because the State incorporated these provisions

in its rules later on would not take away the impact of the norms

prescribed by the National Council for Teacher Education that

stood enforced w.e.f. 23.8.2010. The delegated legislation of the

State Government was subject to the primary legislation of the

Central Government. The framing of rules as a subordinate

legislation is subservient to the provisions framed by the Central

Government. The notification dated 23.8.2010 therefore has an

overriding effect and it could not have been ignored. If the State

Government has proceeded to make appointments after

23.8.2010 without complying with the provisions of teacher

eligibility test then such appointments would be deficient in such

qualification.

It may be emphasised that there is no challenge raised to

43

such appointments against rules, but the law is certain that

appointment de-hors the rules cannot be said to be valid. After

the enforcement of the notification dated 23.8.2010 every

candidate aspiring to become a teacher of elementary education

in any of the institutions defined under the 2009 Act has to be

possessed of the qualifications prescribed therein. The intention

therefore of the legislature is clear that no teacher without such a

qualification can be allowed to continue as a teacher in the

institution. We wish to clarify that the binding effect of the

notifications and the guidelines is such that the weightage which

is contemplated under the guidelines dated 11

th

February, 2011

cannot be ignored. The minimum score that is required of a

candidate is 60% to pass the teacher eligibility test. A concession

of 5% has been made in favour of the reserved category

candidates including the physically challenged and disabled

persons. This norm therefore cannot be diluted. Apart from this,

the State Government has to take notice of the fact that

weightage has to be given in the recruitment process as well. It is

for the State Government to suitably adopt the said guidelines

and we do not wish to add anything further at this stage as we

are only concerned with the essentiality of the qualification of the

teacher eligibility test to be possessed by any candidate aspiring

to be appointed as a teacher.

We wish to make it clear that the law has to be followed in

the manner in which it has been legislated. It cannot be diluted on

account of the inaction of the State. In such circumstances all

teachers whose appointment relate to the period after 23.8.2010

have to be possessed of TET.

Coming to the arguments advanced by Sri Ashok Khare,

learned Senior Counsel, who contends that the entire judgement

should be overruled on both counts, we may make it clear at the

44

outset that the finding in the first part of the reported judgment

contained in paragraph Nos. 34 to 53 thereof relate to the stand

of all such candidates, who have acquired the academic and the

training qualifications prior to 23.8.2010, to urge that they should

be appointed in the same fashion as was being done earlier

without any compulsion of passing the Teacher Eligibility Test.

They are in essence seeking appointment by virtue of an

interpretation of clause 5 of the Notification dated 23.8.2010 to

contend that since the Advertisement for the training

qualifications had already been issued earlier, and the same

amounts to initiation of the recruitment process, and therefore,

such candidates should be appointed without undergoing the test.

A similar argument has been advanced by Sri Arvind Srivastava

and Sri Alok Mishra on this issue.

We are unable to find any error in the reasoning contained

in Paras 34 to 53 of the Division Bench in Prabhakar Singh's case

on this count for the reasons given hereinabove and hereinafter

and we, therefore, approve the judgment to the aforesaid extent.

Sri Khare has then proceeded to expand his argument in

relation to the unsure status of the cut off date of the applicability

of the Notifications. We are not impressed by this argument

inasmuch as we have already concluded herein above that the

power under Section 23 (1) of the 2009 Act, overrides the field on

this aspect and once the qualifications have been fixed in exercise

of such powers, the same cannot be avoided by the State

Government by any delay of implementation of such

qualifications. The State has no choice but to apply the

Notification dated 23.8.2010 with immediate effect.

Sri Khare has then advanced his submissions on some

issues more but we do not find it necessary to answer the said

45

arguments as they do not come squarely within the reference

which has to be answered by us. We are, therefore, confining

ourselves basically to the questions referred and the correctness

of the judgment in Prabhakar Singh's case in relation thereto.

We have heard Sri Arvind Srivastava for those candidates

who are seeking impleadment and contend that they were

candidates of special BTC course 2007 and 2008 entitled to be

appointed as Teachers along with their counterparts, who have

been offered appointment without having passed the Teacher

Eligibility Test. The Intervener Application has been filed by

Prabhakar Singh and another in Writ Petition No.12915 of 2013

filed by Prit Pal Singh, in which the present reference has been

made.

The contention of these applicants is that they were already

fighting the litigation pertaining to their qualification before the

Supreme Court even though they were applicants pursuant to the

Advertisements dated 17.7.2007 and 19.1.2008. The judgment of

the Apex Court in favour of these candidates in the case of

Bhupendra Nath Tripathi was delivered in October 2010 whereby

they were also held to be eligible as they were having the training

qualification which were acquired from the outside the state.

The candidates of the same batch, whose qualifications were

not doubtful, had already been appointed and were also appointed

after the Notification dated 23.8.2010. In the aforesaid

circumstances, the interveners cannot be discriminated and they

were also entitled for being appointed without having passed the

Teacher Eligibility Test.

To justify their stand the first argument raised by Sri

Srivastava is that such applicants, who had applied against the

46

vacancies of 2007, would continue to be considered for

appointment as Assistant Teacher under the Rules that were

existing then. The qualifications have, therefore, to be seen on

the date of advertisement that was then issued for the purpose of

inviting candidates for training of special BTC course. They,

therefore, insist that the advertisement that was made prior to

23.8.2010 for imparting the special BTC Training course would

govern the process of appointment of such candidates including

the petitioners as the vacancies were existing then.

The argument, therefore, appears to be that if the vacancy

relates to the advertisement for training prior to 23.8.2010 then

the said vacancy will have to be filled up under the old rules and

the method of recruitment as was then existing and not by the

qualifications now prescribed under the Notification dated

23.8.2010.

We are unable to agree with this proposition inasmuch as

the process of recruitment would begin from the date of

advertisement under Rule 14 of 1981 Rules. The advertisement

for imparting special BTC training is not an advertisement for

selection and appointment as an Assistant Teacher. This aspect is

already covered by the first part of the judgment in Prabhakar

Singh's case which has followed the ratio in the case of Devendra

Singh (supra) where the Apex Court has clearly indicated that the

process of recruitment would begun with the advertisement under

Rule 14. In the circumstances, the vacancies were yet to be

advertised for recruitment and, therefore, no appointment process

had commenced so as to be saved under the provisions of Clause

5 of the Notification dated 23.8.2010. The employer has a right to

alter it's rules of recruitment and in the instant case it is by a

statutory intervention that the qualifications have been prescribed

afresh w.e.f. 23.8.2010 apart from the existing qualifications in

47

the 1981 Rules. It has been held by the Apex Court in the case of

Mohd. Sartaj and another Vs. State of U.P. and others, (2006) 2

SCC 315, that the qualifications have to be seen at the time of

recruitment which ratio also appears to be on similar lines in the

case of Rajasthan Public Service Commissioner Vs. Kaila Kumar

Paliwal and another, AIR 2007 SC 1746. The Notification dated

23.8.2010, therefore, alters the status of these candidates as they

were not under the process of recruitment as defined under Rule

14. The argument of Sri Srivastava that clause 5 of the

Notification dated 23.8.2010 saves the interveners from appearing

in the Teacher Eligibility Test, therefore, cannot be accepted.

The next contention is that candidates who have not passed

the Teacher Eligibility Test, have been appointed even after

23.8.2010. As already indicated by us, if the process had not

begun by any advertisement as required under Rule 14, the

petitioners cannot claim parity with such candidates. They will,

therefore, have to undertake the Teacher Eligibility Test as, in

fact, they have not entered the recruitment process or

appointment as yet. The allegation that the State cannot adopt

two yardsticks is not the issue inasmuch as the point to be

resolved is as to whether the Teacher Eligibility Test is a

necessary qualification or eligibility condition for the appointment

of an Assistant Teacher in an elementary School after the

Notification dated 23.8.2010 or not. If the State has proceeded to

act contrary to rules, then the same cannot be a ground for

claiming equality under Article 14 of the Constitution of India. The

action of the State which is not in accordance with law or was an

action under the transitory phase of the issuance of the rules and

adoption of the Notification dated 23.8.2010 cannot enure any

advantage to the interveners. The contention that rights had

accrued in their favour prior to 23.8.2010, therefore, cannot be

supported in law in the light of the observations made herein

48

above.

The contention of Sri Srivastava that the candidates have a

legitimate expectation also cannot be accepted as the legitimacy

of an expectation has to be founded on the basis of some right.

The letters of the Secretary of the Board, which have been relied

upon by the learned counsel for the petitioners, are administrative

communications which cannot over ride the effect of Rule 14. If a

promise was made by the State that the appointment will be

made as soon as the training is completed, the same would not

mean that rule 14 has not to be complied with. The letter issued

by the Basic Education Board or by the Secretary or the Director

cannot be treated to be either an executive instructions or

Government Order that may be enforced as a matter of law over

and above Rule 14.

Sri Srivastava then proceeded to give another turn to the

argument by contending that the Notification dated 23.8.2010

issued by the National Council for Teacher Education was

unauthorised and did not have the force in law inasmuch as the

Central Government issued the authorisation on 1.4.2010

whereby the National Council for Teacher Education was

empowered to lay down the minimum qualification as the

academic authority.

The National Council for Teacher Education had issued the

norms of minimum qualification on 31.3.2010 which was prior to

the authorisation under the Notification dated 1.4.2010. Sri

Srivastava, therefore, submits that if the Notification for fixing the

minimum qualification had arrived one day earlier to the

authorisation under the Act itself, the same has no legal force.

The argument at first flush appears to be attractive but on a

perusal of Section 22 of the General Clauses Act, 1901, the said

49

argument has to be rejected outright. The authorisation had come

on 1.4.2010 but the process of authorising the National Council

for Teacher Education had commenced and it was issued one day

earlier i.e. on 31.3.2010. The same was, however, published on

5.4.2010 i.e. after the authorisation had been issued by the

Central Government. The norms laying down minimum

qualifications, therefore, would come into effect from 5.4.2010

and not from 31.3.2010. It stands saved under Section 22 of the

General Clauses Act as referred to herein above. This aspect is

also supported by a couple of judgments of the Apex Court cited

by the learned Counsel for the Central Government and the State

reference whereof has been noticed in connection with Section 23-

A of the U.P. General Clauses Act in the Division Bench judgment,

State of U.P. Vs. Mahesh Narain, 2008 (71) ALR 926.

The next contention raised that the minimum qualifications

fixed in addition to Rule 8 of the 1981 Rules do not in any way

take away the impact of the existing qualification under Rule 8

and, therefore, such candidates, who possess the qualification as

prescribed under Rule 8, cannot be excluded. Needless to mention

that the Rules have already been amended and the Teacher

Eligibility Test also forms part of the amended Rules under the

1981 Rules relied upon by the learned counsel. Even prior to the

amendment of Rule 8, the contention that there is no prohibition

of considering the candidates without the Teacher Eligibility Test is

a misconceived argument. The rules, which had not been

amended, were obviously not in accordance with the norms

prescribed by the Central Government under the 2009 Act. Thus,

the State Government cannot afford to ignore the said Rule or

make appointment of candidates, who were not possessed of such

qualifications. The argument that the word “minimum” does not

mean only, is a misconceived argument inasmuch as, minimum

means the least that has to be possessed. It does not mean that

50

other qualifications cannot be prescribed or if prescribed cannot

be read in addition to minimum qualification. The argument,

therefore, raised by Sri Srivastava also does not come to his aid

and in our opinion the Teacher Eligibility Test has to be passed by

a candidate before he seeks appointment of Assistant Teacher

after the promulgation of the Notification dated 23.8.2010.

Another argument advanced is that the State Government

framed Rules under Section 38 of the 2009 Act on 27.7.2011

which indicates that there was a requirement to frame Rules in

view of the provisions contained under Section 23 of the Act or

else they would have been automatically covered. This argument

is also misconceived inasmuch as the definition of the word

“Institution” in the 2009 Act has been lost sight of by the learned

counsel which includes all the Institutions as are indicated under

the 2009 Act.

Sri Srivastava then contends that the judgment in the case

of Prabhakar Singh causes discrimination between the candidates

who have the special BTC training course and those who are

having only BA and B.Ed. qualifications by exempting the latter

class from appearing in the Teacher Eligibility Test. We have

already indicated above that this part of the judgment in

Prabhakar Singh's case deserves to be overruled as no such

exemption has been granted by the provisions under the

Notification dated 23.8.2010 as amended later on. In the

aforesaid circumstances, this argument also deserves to be

rejected.

One of the crucial arguments on the anvil of Article 14 of

the Constitution that has been advanced is that the judgment

under reference creates two classes of Teachers and the State

Government has also discriminated one category of candidates

51

namely those who were entitled to be appointed even prior to

that. This argument has been advanced on the strength of the

admitted position that candidates without having passed the

Teacher Eligibility Test appointed even after 23.8.2010 belong to

the category of special BTC course of 2007 and 2008 and also

compassionate appointees.

The response of the State Government is that some

appointments have been cancelled but so far as those teachers

who have already been appointed and have been working even

though they have not passed the Teacher Eligibility Test, their

chapter should be treated as closed. Sri C.B. Yadav, learned Addl.

Advocate General, has categorically stated this on instructions

from the State Government. Thus, there exist a certain class of

Teachers, who have been appointed after 23.8.2010 and do not

possess the Teacher Eligibility Test qualification. They have also

been appointed under the old prevalent practice of not facing any

fresh selection after advertisement under Rule 14 and have been

appointed immediately after training. They were appointed

against the vacancies which were far above than the available

number of candidates and, therefore, their appointment was

almost a foregone conclusion.

Since this issue has been advanced time and again and has

been canvassed by both the sides, we may put on record that the

issue of law as referred has been categorically laid down by us

and the appointments have to be made only in accordance with

the aforesaid position of law. We do not wish to add anything

further leaving the question raised above open to be debated and

decided in appropriate cases as this is not a point of reference.

The questions that have been therefore framed by us are

answered as follows:-

52

1. The teacher eligibility test is an essential qualification that

has to be possessed by every candidate who seeks appointment

as a teacher of elementary education in Classes 1 to 5 as per the

notification dated 23.8.2010 which notification is within the

powers of the NCTE under Section 23(1) of the 2009 Act.

2. Clause 3(a) of the notification dated 23.8.2010 is an integral

part of the notification and cannot be read in isolation so as to

exempt such candidates who are described in the said clause to

be possessed of qualifications from the teacher eligibility test.

3. We approve of the judgment of the division bench in

Prabhakar Singh's case to the extent of laying down the

interpretation of the commencement of recruitment process under

Clause 5 of the notification dated 23.8.2010 but we disapprove

and overrule the ratio of the said decision in relation to grant of

exemption and relaxation from teacher eligibility test to the

candidates referred to in Clause 3 (a) of the notification dated

23.8.2010, and consequently, hold that the teacher eligibility test

is compulsory for all candidates referred to in Clause 1 and Clause

3 (a).

Let the judgement be accordingly placed before the

respective benches for appropriate orders.

Order Date: 31.05.2013

Irshad