W.P.(C) Nos. 19361 of 2012 (U) and 20088 of 2012 (T)

## **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. 19361 of 2012 (U)** ## **----------------------------** **PETITIONER(S): -------------------------** **1. K.A.ABDUL GAFOOR, LANGUAGE TEACHER (ARABI), UP SECTION, THIRUMALA DEVASWAM TEACHERS TRAINING INSTITUTE, THURAVOOR, THIRUMALABHAGAM P.O, ALAPUZHA DISTRICT- 688 540.** ## **2. C.K.FOUSIA,** **HIGH SCHOOL ASSISTANT (ARABIC), PART TIME, THIRUMALA DEVASWAM HIGH SCHOOL, THURAVOOR, THIRUMALABHAGAM P.O, ALAPUZHA DISTRICT-688 540.** ## **BY ADV. SRI.P.M.PAREETH** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.** **2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM -695 001.** **3. ASSISTANT EDUCATIONAL OFFICER, THURAVOOR -688 532.** **4. STATE COUNCIL FOR EDUCATIONAL RESEARCH AND TRAINING (SCERT), THIRUVANANTHAPURAM -695 001.** **5. COMMISSIONER FOR GOVERNMENT EXAMINATIONS, PAREEKSHA BHAVAN, POOJAPPURA, THIRUVANANTHAPURAM -695 012.** **6. CORPORATE MANAGER TD SCHOOLS, THURAVOOR, ALAPUZHA -688 540.** **2/-** **-2-** **WP(C).No. 19361 of 2012 (U)** ## ***ADDL.R7 IMPLEADED** ***Addl. R7. DISTRICT EDUCATIONAL OFFICER, CHERTHALA, ALPPUZHA DISTRICT.** ***ADDL.R7 IS IMPLEADED AS PER ORDER DATED 20/09/2012 IN IA.NO.12062/2012.** ## ****ADDL.R8 IMPLEADED** ## ****Addl. R8. GOVERNMENT OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, HUMAN RESOURCE DEPARTMENT, NEW DELHI.** ## ****ADDL.R8 IS SUO MOTU IMPLEADED VIDE ORDER DATED 7/2/2017.** **R1 TO R3,R5 & ADDL.R7 BY SR GOVT. PLEADER SMT. MARY BEENA JOSEPH R4 BY SRI.P.C.SASIDHARAN, SC, SRI.V.A.MUHAMMED, SC, R6 BY ADV. SRI.V.RAJASEKHARAN NAIR ADDL.R8 BY SRI.N.NAGARESH, ASST SOLICITOR GENERAL OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-12-2017,ALONG WITH WP(C) NO.20088 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 19361 of 2012 (U)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT P1. A TRUE PHOTOCOPY OF THE APPOINTMENT ORDERS DATED 4/6/2012 IN RESPECT OF THE 1ST PETITIONER.** - **EXHIBIT P2 A TRUE PHOTOCOPY OF THE APPOINTMENT ORDERS DATED 4/6/2012 IN RESPECT OF THE 2ND PETITIONER.** - **EXHIBIT P3 A TRUE PHOTOCOPY OF THE BA DEGREE CERTIFICATE IN ARABIC DATED 17/09/2007 ISSUED BY UNIVERSITY OF KERALA TO THE 1ST PETITIONER.** - **EXHIBIT P3(A) TRUE PHOTOCOPY OF THE BED DEGREE CERTIFICATE DATED 17/3/2010 ISSUED TO THE 1ST PETITIONER.** - **EXHIBIT P4 A TRUE PHOTOCOPY OF THE DEGREE CERTIFICATE DATED 22/4/2002 ISSUED BY UNIVERSITY OF CALICUT TO THE 2ND PETITIONER.** - **EXHIBIT P4(A) TRUE PHOTOCOPY OF THE BED DEGREE CERTIFICATE DATED 3/12/2010 ISSUED TO THE 2ND PETITIONER.** - **EXHIBIT P5 A TRUE PHOTOCOPY OF THE G.O.(MS) NO.205/12/G.EDN DATED 25/6/2012.** - **EXHIBIT P6 A TRUE PHOTOCOPY OF THE NOTIFICATION DATED 17/7/2012 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P7 A TRUE PHOTOCOPY OF THE G.O.(P) NO.244/G.EDN. DATED 25/7/2012.** - **EXHIBIT P8 A TRUE PHOTOCOPY OF THE NOTIFICATION DATED 30/10/2015 ISSUED BY THE K.P.S.C CALLING FOR APPLICATIONS FOR THE POST OF HIGH SCHOOL ASSISTANT (ARABIC)** - **EXHIBIT P9 A TRUE PHOTOCOPY OF THE NOTIFICATION DATED 30/10/2015 ISSUED BY THE K.P.S.C CALLING FOR THE APPLICATIONS FOR THE POST OF FULL TIME JUNIOR LANGUAGE TEACHER (ARABIC)** - **EXHIBIT P10 A TRUE PHOTOCOPY OF THE G.O(P) NO.145/2016/GEDN DATED 30/08/2016** - **EXHIBIT P11 A TRUE PHOTOCOPY OF THE G.O(P) NO.206/16/GEDN DATED 8/12/2016** **IA NO.13278/2012 IN EXHIBIT P8 A TRUE PHOTOCOPY OF THE GO P NO.244/12/GEDN DATED 25/07/2012.** **RESPONDENT'S EXHIBITS:** **NIL** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## _**P.V.ASHA, J.**_ -------------------------- **==> picture [233 x 79] intentionally omitted <==** ## _**JUDGMENT**_ Both these writ petitions are filed challenging the orders issued by the Government in Ext.P7 insisting production of a pass certificate of Kerala Teachers Eligibility Test (K-TET) for approval of appointment of existing teachers, including the petitioners, who were appointed in regular vacancies in 2012-13. The petitioners also seek a direction to the 1[st] respondent to exempt the existing teachers, including the petitioners, who were appointed in 2012-13 upto 25.07.2012, the date of Ext.P7 order, from acquiring K- TET and also pray for a declaration that in view of the exemption granted to 51(A) and 51(B) claimants under Chapter XIV A of the Kerala Education Rules, 1959 (hereinafter referred to as 'the KER') as on the date of Ext.P7 order, existing teachers including the petitioners are entitled to be exempted from acquiring K-TET qualification. 2. Petitioners in W.P.(C).No.19361 of 2012 are Language Teacher (Arabic) in U.P Section and High School Assistant (Arabic) respectively appointed on 4.06.2012 in aided Schools. Petitioner in W.P.(C).No.20088 of W.P(C) Nos.19361 of 2012-U and 20088 of 2012-T 2 2012 was also appointed on 04.06.2012 as HSA(Arabic). The contention of the petitioners is that they are fully qualified for appointment in accordance with the provisions contained in Chapter XXXI of KER and hence no additional qualification can be insisted without amending the rules; when claimants under Rule 51(A) as well as Rule 51(B) of Chapter XIVA KER and candidates for appointment in Government Schools are exempted from acquiring K.TET they are also entitled to exemption. 3. The 1[st] respondent has filed a counter affidavit without answering any of the contentions. The 4[th] respondent SCERT has not filed any counter affidavit. 4. The learned Government Pleader argued that K-TET was introduced consequent to the introduction of Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as 'RTE Act') _._ 5. The learned counsel for the petitioners submits that the 2[nd] petitioner in W.P(c).No.19361/2012 has already acquired the qualification. At the time when the writ petitions were filed approval was not granted to the petitioners. Subsequently, approval was granted on condition that they should pass the test within 5 years. W.P(C) Nos.19361 of 2012-U and 20088 of 2012-T 3 6. The learned ASGI as well as the learned Government Pleader submit that the time prescribed for acquiring the K.TET has since been extended. 7. It is unfortunate that the counter affidavits filed in this case do not reveal the circumstances under which the K.TET was introduced, except by mentioning that it is consequent to RTE Act. Even though NCERT is made a party in the writ petition it appears that notice was not ordered as the case was posted along with connected cases. 8. On direction by this Court, the learned ASGI has made available the 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 W.P(C) Nos.19361 of 2012-U and 20088 of 2012-T 4 ## Test (TET), etc. for recruitment of teachers. Section 23 of RTE Act read 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 conditions of service of, teachers shall be such as may be prescribed.” ## 9. The 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 Sections 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 W.P(C) Nos.19361 of 2012-U and 20088 of 2012-T 5 (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 non-fulfillment 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.” 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). 10. Pass in the Teacher Eligibility Test (TET) to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE is one of the qualifications for these appointment. When the qualification viz. K.TET is prescribed in accordance with the Central Act, W.P(C) Nos.19361 of 2012-U and 20088 of 2012-T 6 the contention of the petitioners that they are liable to be exempted or that they are not liable to acquire the qualification cannot be accepted. Both the RTE Act as well as NCTE Act are Central enactments, of which the NCTE Act provides for the teaching qualifications in the educational sector. 11. 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 UP 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. 12. 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: W.P(C) Nos.19361 of 2012-U and 20088 of 2012-T 7 “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 by-pass 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 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) W.P(C) Nos.19361 of 2012-U and 20088 of 2012-T 8 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.” 13. Petitioners seek parity with Government teachers saying that the test is insisted only for aided school teachers. I am of the view that the action of the Government in not insisting the K-TET in appointment of teachers in Government Schools is contrary to the provisions in RTE Act as well as NCTE Act. But the petitioners are not challenging the action of Government. At any rate even if such a declaration is made in this writ petition, that will not be of any benefit to the petitioners. Petitioners cannot be granted any exemption contrary to law. 14. Yet another contention of the petitioners is that claimants under W.P(C) Nos.19361 of 2012-U and 20088 of 2012-T 9 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 exemption is granted. Anyway, if at all the said exemption is not as per rules that will not help the petitioners. 15. The learned counsel for the petitioners relied on the judgment in **Mini Venugopal v. State of Kerala** [2012 (1) KLT 4], in which this Court declared that the denial of exemption granted to the aided school teachers, when exemption is granted to the Government teachers, is discriminatory and arbitrary. But I find that the rule governing the higher secondary school teachers, which was considered in that case, is entirely different and there was no central legislation insisting any qualification. In this case K.TET is introduced on the basis of central legislation. Therefore, the State Government has no power to take any decision contrary to what is contained in the 2 central enactments, i.e, RTE Act and NCTE Act and those regulations are not under challenge in these writ petitions. 16. In the above circumstances, the claims raised by the petitioners W.P(C) Nos.19361 of 2012-U and 20088 of 2012-T 10 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. The petitioners have not raised any other contention. 17. It is pointed out that Central Government has already extended the time limit for acquiring the qualification till 2019. In the above circumstances, I do not find any illegality in the impugned orders or action of the respondents. The petitioners are therefore not entitled to any relief in these writ petitions. Accordingly, the writ petitions are dismissed. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_