M. Samarudeen and Jafar T. v Union of India and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 ``` ## **`WP(C) NO. 15303 OF 2021`** ## **`PETITIONERS:`** ``` 1M.SAMARUDEEN AGED 41 YEARS S/O MOHAMMAD,MANCHAPALLY HOUSE,VARADOOR.P.O, KANIYAMBETTA VILLAGE, WAYANAD-673591. ``` ``` 2JAFAR.T, AGED 36 YEARS, S/O.MUHAMMED.T,THRASSERY HOUSE, VEETHANASSERI,CHETHANGOTUPURAM.P.O, MALAPPURAM-679328. ``` ``` BY ADVS. K.SHAJ RENJIT GEORGE C.IJLAL JOSEPH MARY DAS ARUN CHAND VINAYAK G MENON BHARAT VIJAY P. MAJID MUHAMMED K. ``` ## **`RESPONDENTS:`** ``` 1UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HUMAN RESOURCE, NEW DELHI – 110001. ``` ``` 2THE GOVERNMENT OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-6950001. ``` ``` 3THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM -695001 ``` ``` WP(C) NO. 15303 OF 2021 ``` ``` 2 ``` - `4 NATIONAL COUNCIL FOR TEACHER EDUCATION, REPRESENTED BY ITS SECRETARY, HANS BHAWAN, WING II, 1, BAHADUR SHAH ZAFAR MARG, NEW DELHI-110002.` - `5 STATE COUNCIL OF EDUCATIONAL RESEARCH & TRAINING (SCERT),REPRESENTED BY ITS DIRECTOR, (VIDYABHAVAN),POOJAPPURA.P.O, THIRUVANANTHAPURAM-695012.` - `6 ADDL.R6. PAREEKSHA BHAVAN, REPRESENTED BY COMMISSIONER FOR GOVERNMENT EXAMINATIONS, VIDYABHAVAN, KESARI NAGAR, POOJAPURA, THIRUVANANTHAPURAM, KERALA-695012).` ``` (ADDL. RESPONDENT NO.6 IS IMPLEADED AS PER ORDER DATED 23-09-2021 IN IA 1/2021). ``` ``` BY ADVS. DR.ABRAHAM P.MEACHINKARA,SC,NCTE SHRI.P.C.SASIDHARAN, SC, STATE COUNCIL OF EDUCATIONAL RESEARCH AND TRAINING SRI.P.VIJAYAKUMAR ASGI SRI.JIMMY GEORGE - GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 15303 OF 2021 ``` ``` 3 ``` ## **JUDGMENT** Petitioners were appointed as High School Assistant (Urudu) in Sree Narayana Higher Secondary School, Poothaady and R.M.Higher Secondary School, Melatur with effect from 11.06.2012 and 01.06.2015 respectively. Both the appointments were approved on 17.05.2013 and 21.06.2016 with effect from 11.06.2012 and 01.06.2015 respectively. 1[st] petitioner had passed Adibi-i-Fazil Degree Examination in April, 2001 which is equivalent to graduation course with 40% of marks as per Ext.P3 whereas the 2[nd] petitioner, with 38.5% marks, in April, 2009, as evidenced from Ext.P4. Both petitioners had also under taken the Language Teachers Training Certificate (LTTC) as well as Diploma in Language Education from the Government Institute of Teacher Education. 2. Learned counsel appearing on behalf of the petitioners submitted that as per the provisions of Section 23 of the Right of Children to Free and Compulsory Education Act or Right to ``` WP(C) NO. 15303 OF 2021 ``` ``` 4 ``` Education Act which came into force with effect from 01.04.2010, any person possessing the minimum qualification, as laid down by academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as teacher. The aforementioned amendment was caused in the Education Act in 2017 with proviso that every teacher appointed or in a position as on 31.03.2015 and does not possess the minimum qualification shall acquire within a period of four years. 3. In pursuance to the aforementioned Principal Act, Central Government authorised National Council for Teachers Education- 4[th] respondent as the academic authority to lay down minimum qualification for a person to be eligible for appointment as teacher. In pursuance to the aforementioned RTE Act, Kerala Government enacted the Kerala Right of Children to Free and Compulsory Education Rules, 2011 effective from 30.04.2011 and the 5[th] respondent ie., State Council of Education, Research and Training (SCERT) was authorised to lay down minimum qualification for being eligible for appointment as a teacher. The ``` WP(C) NO. 15303 OF 2021 ``` ``` 5 ``` notification dated 23.08.2010 Ext.P7 prescribed that the minimum qualification for undertaking the test should have been graduation with at least 50% marks. Since the petitioners had taken test in 2017 but owing to the fact that they did not possess 50% marks in graduation ie., Urdu, despite having been appointed an impediment/hurdle had been caused resulting into non issuance of eligibility certificate to impart education by 6[th] respondent ie., Pareeksha Bhavan, represented by the Commissioner Government Examinations. 4. It was further contended that National Council for Teachers Education- 4[th] respondent came out with a notification dated 13.11.2019 in addition to the notification already published dated 23.08.2010 Ext.P7 by inserting Clause B with proviso that the minimum percentage marks in graduation shall not be applicable to the incumbents who had already taken admission to the Bachelor of Education or Elementary Education or equivalent course prior to 29.07.2011. Since the petitioners had already undertaken the graduation courses way back, the 1[st] petitioner in ``` WP(C) NO. 15303 OF 2021 ``` ``` 6 ``` April, 2001 and the 2[nd] petitioner in 2009, 6[th] respondent ought to have issued the certificate. Such controversy had already been put to rest by the Division Bench of this Court in the judgment dated 22.07.2020 in Writ Appeal No.830/2019 Ext.P14. 5. Learned counsel for the NCTE - 4[th] respondent ie., National Council for Teachers Education pursuant to the direction issued by the Apex Court in **Neeraj Kumar Raj and Others** v. **State of U.P. and Others** reported in 2007 (14) SCC 608 issued notification Ext.P13 dated 13.11.2019 by inserting the proviso. The the minimum qualification percentage of marks in graduation as per the erstwhile notification dated April, 2010 of 50% would not be applicable as the petitioners had already taken admission prior to the same in view of the assertions in the writ petition. 6. Learned State Counsel representing respondents 2 and 3 do not deny this fact. 7. I have heard the learned counsel for the parties and appraised the paper book. ``` WP(C) NO. 15303 OF 2021 ``` ``` 7 ``` 8. Both the petitioners had as per the facts noticed above passed the Adib-i-Fazil Degree Examination in April, 2001 and 2009 and had been issued appointment as high school assistant Urdu PT in respective schools. On account of promulgation of RTE Act with effect from 2010, the notification Ext.P7 mandated that teacher would be qualified to impart the education having a 50% of marks in the graduation. They had been appointed after the aforementioned notification and had already obtained the graduation prior thereto. In order to bring succor to such affected party the matter reached in Supreme Court in _**Neeraj Kumar**_ (supra) whereby considering the qualification criteria extended certain relaxations. In pursuance to the aforementioned directions of the Supreme Court, the NCTE promulgated notification dated 13.11.2019 Ext.P13, relevant portion of the same reads thus: “F. No. NCTE-Reg/012/22/2019-US (Regulation-HQ-In exercise of the powers conferred by sub-section (1) of the Section 23 of Right of Children to Free and Compulsory Education Act 2009 (35 of 2009 and in pursuance of the notification number Government of India in the Ministry of Human Resource Development Department of School ``` WP(C) NO. 15303 OF 2021 ``` ``` 8 ``` Education and Literacy S.O. 750(E) dated 31st March 2010 published in the Gazette of India Extraordinary, Part-Il. Section 3 Sub-section (ii) dated the 5th April 2010, the National Council for Teacher Education hereby makes the folowing amendments in the notification of the Government of India. National Council for Teacher Education vide F No 61-3/20/2010-NCTE (N&S) published in the Gazette of India Part III. Section 4, dated the 23rd August 2010, namely- 1. In the said notification in paragraph 1, in sub-paragraph (ii) - (A) in clause (a) for the words, figures, brackets and letters Graduation with at least 50% marks and 1 year Bachelor in Education ( b.ed) the words, figure and letters At least 50% marks either in Graduation or in Post-Graduation and B.Ed shall be substituted. (B)After clause (b), at the end, the following proviso shall be inserted, namely:- “Provided that minimum percentage of marks in graduation shall not be applicable to those incumbents who had already taken admission to the Bachelor of education or Bachelor of Elementary Education or equivalent course prior to the 29[th] July 2011 2.The notification shall be deemed to have come into force on the 29 July 2011.” On perusal of the proviso causing the amendment in the previous notification, the minimum requirement of 50% would not ``` WP(C) NO. 15303 OF 2021 ``` ``` 9 ``` be applicable to the candidates who had already secured the admission prior to 29.07.2011. Concededly, both the petitioners had obtained the graduation degree in April, 2009 and April, 2001 but owing to the aforementioned predicament, are unable to continue with the nature of the duties on account of non-issuance of the certificate by the 6[th] respondent. 6[th] respondent ought to have taken a call on the request of the petitioners keeping in view the fact that the matter in dispute has already been put to rest. Be that as it may. I, thus allow the writ petition by issuing directions to respondent No.6 to declare the petitioners pass and issue certificate to the effect that the petitioners are qualified, as expeditiously as possible within a period of two weeks from the date of receipt of the copy of the judgment. ## **Sd/-** **AMIT RAWAL JUDGE** nak ``` WP(C) NO. 15303 OF 2021 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 15303/2021`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1THE TRUE COPY OF THE APPOINTMENT ORDER DATED 11/06/2012 OF THE FIRST PETITIONER ISSUED BY THE MANAGER OF THE SREE NARAYANA HIGHER SECONDARY SCHOOL, POOTHAADY AND APPROVED BY THE DISTRICT EDUCATIONAL OFFICER ``` - `Exhibit P2 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/2015 OF THE SECOND PETITIONER ISSUED BY THE MANAGER OF THE R.M.HIGHER SECONDARY SCHOOL,MELATTUR AND APPROVED BY THE DISTRICT EDUCATIONAL OFFICER` - `Exhibit P3 THE TRUE COPY OF THE ADIB-I-FAZIL DEGREE CERTIFICATE DATED 27/12/2003 ISSUED TO THE 1ST PETITIONER BY THE UNIVERSITY OF CALICUT` - `Exhibit P4 THE TRUE COPY OF THE ADIB-I-FAZIL DEGREE CERTIFICATE DATED 04/07/2012 ISSUED TO THE SECOND PETITIONER BY THE UNIVERSITY OF CALICUT` ``` Exhibit P5THE TRUE COPY OF THE LANGUAGE TEACHER'S TRAINING CERTIFICATE (LTTC)DATED 25/07/2003 ISSUED BY THE GOVERNMENT OF KERALA TO THE PETITIONER ``` ``` Exhibit P6THE TRUE COPY OF THE BONEFIDE STUDENT CERTIFICATE ISSUED BY THE GOVERNMENT INSTITUTE OF TEACHER EDUCATION,MALAPPURAM TO THE SECOND PETITIONER ``` ``` WP(C) NO. 15303 OF 2021 ``` ``` 11 ``` ``` Exhibit P7 ``` ``` THE TRUE COPY OF NOTIFICATION NO.F.NO.61- 03/20/2010/NCTE/(N&S)DATED 23/08/2010 ISSUED BY THE FOURTH RESPONDENT ``` - `Exhibit P8 THE TRUE COPY OF G.O.(P)NO.70/12/G.EDN.DATED 01/03/2012 ISSUED BY THE SECOND RESPONDENT STATE` - `Exhibit P9 THE TRUE COPY OF GOVERNMENT ORDER NO.G.O. (P)NO.199/11/C.EDN.DATED 01/10/2011 ISSUED BY THE STATE GOVERNMENT` - `Exhibit P10 THE TRUE COPY OF G.O.(MS)NO.205/12/G.EDN DATED 25/06/2012 ISSUED BY THE SECOND RESPONDENT STATE` - `Exhibit P11 THE TRUE COPY OF THE EXAM RESULT OF THE FIRST PETITIONER PUBLISHED IN THE WEBSITE WWW.KTET.KERALA.GOV.IN` - `Exhibit P12 THE TRUE COPY OF THE EXAM RESULT OF THE SECOND PETITIONER PUBLISHED IN THE WEBSITE WWW.KTET.KERALA.GOV.IN` ``` Exhibit P13THE TRUE COPY OF THE NOTIFICATION NO.NCTE-REG/012/22/2019-US DATED 13-11- 2019 ISSUED BY THE FOURTH RESPONDENT ``` - `Exhibit P14 THE TRUE COPY OF THE COMMON JUDGMENT DATAED 22/07/2020 IN` ``` W.A.824/2019,W.A.830/2019,W.A.905/2019,W. A.906/2019,W.A.913/2019,W.A.919/2019,W.A. 929/2019,W.A.1174/2019 & W.A.1451/2019 CONTAINING THE JUDGMENT IN W.A.830/2019 OF THE DIVISION BENCH OF THIS HONOURABLE COURT ```