The High Court, vide the impugned judgment and order, held that the 18 months Diploma in Elementary Education (for short, “D.El.Ed.”) conducted through the Open and Distance Learning (for short, ‘ODL’) mode in elementary education by the National Institute of Open Schooling (hereinafter referred to as ‘NIOS’) is a valid Diploma for applying against the regular posts of Assistant Teachers (Primary) in the State of Uttarakhand. (Para 2)
Appeals arising out of SLP(C) Nos. 23583-84 of 2022 are filed by the candidates who are holding the 2 years diploma in elementary education whereas appeal arising out of SLP (C) No. 23943 of 2022 is filed by the State of Uttarakhand. (Para 3)
On 27th August 2009, the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as “RTE Act”) was notified. Sub-section (1) of Section 23 of the RTE Act provided that any person possessing such minimum qualifications, as laid down by an academic authority, authorized by the Central Government, by notifications, shall be eligible for appointment as a teacher. Sub-section (2) thereof enables the Central Government, if it deems necessary, by notification, to relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years. The first proviso to sub-section (2) thereof provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under subsection (1), shall acquire such minimum qualifications within a period of five years. The second proviso to sub-section (2) thereof, which was added by Act 24 of 2017, further provided that a teacher appointed or in position as on the 31st March 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017 (hereinafter referred to as “2017 Amendment Act”). (Para 4.1)
The Central Government, through Ministry of Human Resource Development, Department of School Education & Literacy (hereinafter referred to as “MHRD”), vide notification dated 31st March 2010 authorized the National Council for Teacher Education (for short, “NCTE”) as the academic authority for laying down the minimum qualifications for a person to be eligible for appointment as a teacher. (Para 4.2)
NCTE, vide notification dated 23rd August 2010, prescribed minimum qualifications for a person to be eligible for appointment as a teacher for Class I to VIII. (Para 4.3)
Vide the impugned judgment and order, the High Court held that 18 months D.El.Ed. Training Diploma conducted through the ODL mode in elementary education by NIOS cannot be said to be a lower or inferior qualification as compared with the 2 years D.El.Ed. programme. It held that, in respect of the in-service teachers, who have undergone the 18 months D.El.Ed. programme conducted by NIOS through ODL mode, the State Government cannot discriminate by debarring them from offering their candidatures for the post of Assistant Teachers (Primary) in the State of Uttarakhand. As such, it quashed and set aside the letter dated 10th February 2021 issued by the Government of Uttarakhand. Being aggrieved thereby, the present appeals. (Para 4.15)
That the 2014 Regulations clearly provide that the 2 years Diploma in Elementary Education was an essential qualification for appointment of teachers for Class I to VIII. (Para 6)
It is thus clear that all such teachers working in either Government/Government Aided/Unaided Private Schools, were required to acquire the minimum qualifications by 31st March 2019 or they would face dismissal from service. It appears that it was decided by the Central Government to provide a window for all such teachers. A perusal of the said communication would reveal that various directions were issued so that lakhs of teachers, who were untrained, get the requisite qualifications prior to 1st April 2019. The communication addressed by the Director, Elementary Education, Uttarakhand dated 8th September 2017 to the Chief Education Officer and District Education Officer, Uttarakhand would further clarify this position. (Para 23)
We further find that the 2012 Service Rules as framed by the State of Uttarakhand were framed on the basis of notifications issued by NCTE on 23rd August 2010 and 29th July 2011. These 2012 Service Rules were amended from time to time and as existing on the date of advertisement, they specifically provide for a 2 years D.El.Ed. course known as B.T.C. training in the State of Uttarakhand as a minimum qualification. It also provided that a person to be eligible to apply for the said post must have completed 2 years D.El.Ed. course from NIOS and qualified Teacher Eligibility Test (TET) or who has completed 2 years D.El.Ed. course from any other Institute recognized by NCTE and qualified TET. The advertisements issued by various District Education Officers also provided the same qualifications. It can thus be seen that acquiring of 2 years Diploma in Elementary Education was a minimum qualification as prescribed under the statutory Rules. It will be apposite to refer to the following observations of this Court in the case of Employees’ State Insurance Corporation (supra), wherein this Court has referred to its earlier judgments including that of a Constitution Bench (Para 33)
It can thus be seen that it is a trite law that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, it can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. It is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. (Para 34)
We therefore find that the High Court has erred in directing the State Government to consider the candidates who did not qualify as per the 2012 Service Rules and as per the advertisement based on the Service Rules, particularly when the 2012 Service Rules and the advertisements were not under challenge. The High Court, in our view, could not have issued such a mandamus contrary to such Service Rules. (Para 38)
That leaves us with the question as to whether the High Court was justified in holding that the 18 months Diploma conducted by NIOS through ODL mode is said to be equivalent to the 2 years Diploma as required under the notifications of NCTE dated 23rd August 2010 and 29th July 2011. (Para 39)
We find that the High Court erred in holding that 18 months Diploma conducted by NIOS through ODL mode is equivalent to the 2 years regular Diploma, particularly so, when there was no material placed on record to even remotely hold that such a qualification was recommended by the Expert Body NCTE. (Para 41)
There can be no doubt that NCTE, as an expert body, has a right to prescribe the minimum qualifications. In the present case itself, by notifications dated 23rd August 2010 and 29th July 2011, NCTE has done so. (Para 42)
SUPREME COURT OF INDIA
2023 STPL(Web) 450 SC
[2023 INSC 1024]
Jaiveer Singh And Others Vs. State Of Uttarakhand And Others
Civil Appeal Nos. 7871-7872 of 2023(Arising Out of Slp(C) Nos. 23583-84 of 2022) With Civil Appeal No. of 2023 [Arising Out of Slp (C) No. 23943 Of 2022]-Decided on 28-11-2023
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