K. Beena v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **FRIDAY, THE 8TH DAY OF DECEMBER 2017/17TH AGRAHAYANA, 1939** ## **WP(C).No. 28679 of 2012 (H)** ## **----------------------------** ## **PETITIONER:** ## **----------** **K.BEENA,AGED 39 YEARS, W/O. UNNIKRISHNAN, VEERKANDI HOUSE, PERAMBRA P.O., KOZHIKODE DISTRICT.** **BY ADVS.SRI.M.V.BOSE SRI.VINOD MADHAVAN** ## **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM-695014.** **3. THE COMMISSIONER OF EXAMINATIONS, PAREEKSHA BHAVAN, POOJAPPURA, THIRUVANANTHAPURAM-695012.** **4. THE ASSISTANT EDUCATIONAL OFFICER, PERAMBRA, KOZHIKODE DISTRICT-673525.** **5. THE MANAGER, AIDED UPPER PRIMARY SCHOOL, PERMBRA, KOZHIKODE DISTRICT-673525.** **6. THE NATIONAL COUNCIL OF EDUCATIONAL RESEARCH AND TRAINING (NCERT) NEW DELHI-I, REPRESENTED BY IT DIRECTOR.** **7. THE STATE COUNCIL OF EDUCATIONAL RESEARCH AND TRAINING (SCERT) VIDYA BHAVAN, POOJAPPURA, THIRUVANANTHAPURAM-695012, REPRESENTED BY ITS DIRECTOR.** **WP(C).No. 28679 of 2012 (H)** ## **----------------------------** *** ADDL R8 IMPLEADED** **8. GOVERNMENT OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, HUMAN RESOURCE DEPARTMENT, NEW DELHI.** - **ADDL R8 IS SUO MOTU IMPLEADED AS PER ORDER DATED 7.2.2017** **R1 TO R4 BY SENIOR GOVERNMENT PLEADER SMT MARRY BEENA JOSEPH R7 BY ADV. SRI.V.A.MUHAMMED, SC,** **R8 BY SRI.N.NAGARESH,A.S.G OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.V.** ## **WP(C).No. 28679 of 2012 (H)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** **----------------------** **EXHIBIT P1- TRUE COPY OF THE BA MARK SHEET OF THE PETITIONER ISSUED BY THE VICE CHANCELLOR OF CALICUT UNIVERSITY DATED 17-12-19967.** **EXHIBIT P2- TRUE COPY OF THE B.ED MARK SHEET OF THE PETITIONER ISSUED BY THE VICE CHANCELLOR, UNIVERSITY OF GAUHATI DATED 22-4-1997.** **EXHIBIT P3- TRUE COPY OF THE GO(P)N0, 199/2011/G/EDN DATED 1-10-2011 ISSUED BY THE GENERAL EDUCATION (J) DEPARTMENT.** **EXHIBIT P4- TRUE COPY OF THE CIRCULAR NO. 31904/J2/12/G.EDN. DATED 6-6-6-2012 ISSUED BY THE GENERAL EDUCATION (J) DEPARTMENT.** **EXHIBIT P5- TRUE COPY OF THE GO(P)NO. 244/12/G.EDN DATED 25-7-2012 ISSUED BY THE GENERAL EDUCATION (J) DEPARTMENT.** **EXHIBIT P6- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE HON. MINISTER OF EDUCATION DATED 13-08-2012.** **EXHIBIT P7: TRUE COPY OF THE ORDER NO 1 12/2012-2012-13 DATED 1.12.2012 ISSUED BY THE MANAGER, PERAMBRA A.U.P SCHOOL.** ## **RESPONDENTS' EXHIBITS: NIL** **----------------------** **K.V. P.S.TO JUDGE** **“C.R”** ## _**P.V.ASHA, J.**_ -------------------------- ## W.P(C) No.28679 of 2012 ------------------------------------------- _Dated this the 8[th] day of December, 2017_ ## _**JUDGMENT**_ The petitioner, who is an Upper Primary School Assistant, has filed this writ petition seeking the following reliefs: “i) call for the records relating to Exhibits P3 & P4 and quash the originals of the same to the extent it relates to the prescription of additional qualification K.TET by the issue of a writ of certiorari or other appropriate writ or order. ii) declare that the petitioner is a fully qualified hand for the post of UPSA in view of Rule 3(1) of Chapter XXXI of the Kerala Education Rules. iii) issue a writ of mandamus or other appropriate writ order or direction commanding the 4[th] respondent to grant approval to the appointment of the petitioner as UPSA in the 5[th] respondent's school forthwith. iv) pass such other order or direction which this Honourable Court may deem fit and proper to grant in the circumstances of the case.” 2. The contention of the petitioner is that no additional qualification including test qualification can be insisted by the Government except by amending the provisions contained in Rule 3 of Chapter XXXI of KER. According to her, she is fully qualified as per rules in KER as on the date of his appointment. She claims that when claimants under 51A and 51B are granted exemption, she is also entitled to the same. 3. Even though NCERT is made a party, it appears that notice was not served on it as the case was being posted along with connected cases. Counter does not answer any of the contentions raised in the writ petition. 2 W.P(C) No.28679 of 2012 4. On direction by this Court, the learned ASGI has made available a copy of the notification dated 31.03.2010 published in gazette dated 05.04.2010, issued by the Central Government in exercise of its powers under Section 23 of the Act, authorising the National Council for Teacher Education (NCTE) as the “academic authority” to lay down the minimum qualifications for a person to be eligible for appointment as a teacher. The learned ASGI made available a copy of the notification issued by the NCTE also, issued on 23.08.2010 laying down qualifications for appointment of teachers for elementary education. The NCTE also issued further guidelines dated 11.02.2011 for the conduct of Teachers Eligibility Test (TET), etc. for recruitment of teachers. 5. I have considered the contentions raised by the petitioner in the light of relevant enactments and the recent judgment of the Apex Court. ## 6. Section 23 of the RTE Act reads as follows: “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, 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. (3) The salary and allowances payable to, and the terms and 3 W.P(C) No.28679 of 2012 conditions of service of, teachers shall be such as may be prescribed.” The impugned orders prescribing K.TET as qualification for appointment of Teachers have been issued in tune with the provisions contained in the RTE Act which is a central enactment. Education comes under entry 25 in the concurrent list. The qualification is prescribed by the NCTE in exercise of its powers conferred under Section 12 and 12 A of the NCTE Act, which read as follows: 12. Functions of the Council. – It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and coordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may – (a) xxx xxx (d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognized institutions 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 recognized 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 nonfulfilment 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.” W.P(C) No.28679 of 2012 4 Apart from that under Section 32(d) of the NCTE Act, the NCTE is empowered to make regulations laying down the norms, guidelines and standards in respect of minimum qualification for appointment of a teacher under Section 12(d). 7. When the qualification viz. pass in K.TET is prescribed under Section 23 of the RTE Act 2009 read with Section 12(d) and 12A of the NCTE Act, both central enactments, absence of such provision in the State enactment is absolutely irrelevant. If there is any repugnancy between the State and Central legislation, the Central Act will prevail. 8. The learned Counsel for the petitioner pointed out that the order Ext.P3 - the teachers package, was set aside by this Court and that the introduction of K.TET was also included in that Government order dated 01.10.2011, popularly known as teachers package. 9. However, the subsequent orders or the notifications issued by the NCTE are not set aside so far. At any rate, while setting aside the teachers package the provisions contained in the central enactments were not considered. Moreover, the Apex Court has in its judgment dated 25.07.2017 in **State of U.P v. Anand Kumar Yadav** [(2017) 8 SCALE 220] has considered the validity of the relaxation granted by the State of U.P 5 W.P(C) No.28679 of 2012 for recruitment of teachers, by way of amendment to the rules governing the recruitment of teachers as well as the UP RTE Rules giving permission for appointment of Shiksha Mitras in the post of Assistant Teachers in primary schools without having the eligibility and qualifications in terms of RTE Act, 2009. One of the issues which was considered in the case was: whether statutory qualifications in a Central Statute on a concurrent list subject could be relaxed by a State legislative/ administrative action. 10. In paragraph 18 and 19 of the judgment, the Apex Court approved the findings of the Full Bench of the High Court of Allahabad as follows: “18. In the impugned judgment the Full Bench of the High Court highlighted the importance of the prescribed TET qualification as follows: “93. The object and purpose of introducing the TET is to ensure that a teacher who embarks upon instructing students of primary and upper primary classes is duly equipped to fulfill the needs of the students, understands the relevance of education for a child at that stage and can contribute to the well rounded development of the child. Teaching a child is not merely a matter of providing information. Deeply embedded in the process of imparting education is sensitivity towards the psyche of the child, the ability to understand the concerns of a young student of that age, the motivations which encourage learning and the pitfalls which have to be avoided. The emphasis on clearing the TET is to ensure the maintenance of quality in imparting primary education. These requirements which have been laid down by NCTE fulfill an important public purpose by ensuring a complement of trained teachers who contribute to the learning process of children and enhance their growth and development. These requirements should not be viewed merely as norms governing the relationship of a teacher with the contract of employment. These norms are intended to fulfill and protect the needs of those who are taught, namely, young children. India can ignore the concerns of its children only at the cost of a grave peril to the future of our society. The effort of the State Government to bypass well considered norms which are laid down by NCTE must be disapproved by the Court. We have done so on the ground that the State Government lacks the legislative power and competence to do so. Equally, fundamental is the concern that a relaxation of the norms prescribed by an expert body will result in grave detriment 6 W.P(C) No.28679 of 2012 to the development and growth of our young children and the provision of quality education to them. Providing quality education is crucial for students belonging to every strata of society. Education which is provided in schools conducted by the Basic Education Board should not be allowed to degenerate into education of poor quality which it will, if the norms which are prescribed by an expert body under legislation enacted by Parliament in the national interest are allowed to be ignored by the State Government on the basis of parochial or populist perceptions. Such an attempt is ultra vires the statutory powers of the State and is arbitrary and violative of Article 14 of the Constitution.” 19. We are in agreement with the above observations. We are unable to agree that even unqualified teachers ought to be allowed to continue ignoring the legislative mandate or that we should exercise our jurisdiction under Article 142 to undo the said mandate. The apex court approved the judgment of the Full Bench, which in paragraph 80 held as follows: 80. What has happened in the State of Uttar Pradesh is that the State Government, in a clear violation of the mandate of Section 23(2) which vests the power to relax the minimum qualifications in the Central Government, has arrogated to itself a power which it lacks, to grant exemption from the mandatory qualifications which are laid down by NCTE in their application to Shiksha Mitras in the State. The State Government has, in our view, acted in clear violation of its statutory powers. Parliament has legislated to provide, in no uncertain terms, that any relaxation of the minimum educational qualifications can only be made by the Central Government. However, Rule 16-A which has been introduced by the State Government by a notification dated 30 May 2014 purports to provide a non-obstante provision which will operate notwithstanding anything contained in Rules 15 and 16 of the State Rules. Rules 15 and 16 of the State Rules were originally formulated in a manner consistent with the provisions of Section 23(2) and the provisions contained in Rules 17 and 18 of the Central Rules of 2010. However, as a result of the introduction of Rule 16-A, the State Government has assumed to itself the power to make provisions for relaxing the minimum educational qualifications for appointment of Shiksha Mitras as Assistant Teachers in junior basic schools "as are considered otherwise eligible and in order to implement the provisions of the Act". There can be no manner of doubt that far from implementing the provisions of the Act, the State Government by its amendment of the subordinate legislation has purported to negate the very object and purpose of the RTE Act of 2009.” 11. Yet another contention of the petitioner is that claimants under 51A and 51B are granted exemption. The judgment _supra_ would show that NCTE alone is having the power to relax, that too, strictly within the provisions of the RTE Act 2009 and NCTE Act. The exemption granted to claimants under 51A or 51B is not under challenge. It is also not clear how 7 W.P(C) No.28679 of 2012 exemption is granted. Anyway if at all the said exemption is not as per rules that will not help the petitioner. The judgments of this Court and the Apex Court relied on by the petitioner in the writ petition were rendered in entirely different circumstances and hence are not applicable to the present case. The pass in K.TET is therefore mandatory. State Government does not have any power to dilute the qualifications prescribed by the authorities under the central enactment. In this writ petition, no other contention is raised. Moreover, it is pointed out that the Central Government has already extended the time limit for acquiring the qualification till 2019. In the above circumstances, the claims raised by the petitioner are absolutely unsustainable. When the Central Act has provided for the qualification for a teacher, within the legislative competence, it is not necessary to amend the Kerala Education Rules, as provision under the Central Act, will prevail over State legislation. Executive orders are sufficient to introduce such qualifications. Therefore, there is no illegality in the orders issued by the Government insisting K-TET as a qualification for appointment of teachers. The writ petition is dismissed accordingly. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_