is gathering 10 signatures to
Make The Minimum Wage An Actual Living Wage
OUR COURT OF LAW AT ALLAHABAD HIGH COURT BY YOGESH KUMAR SAXENA ADVOCATE SUPREME COURT & ALLAHABAD HIGH COURT
9792131584, 9415284843 Chamber No. 139 High Court (RENDERING FREE SERVICE)
LAW SHOULD LIBERATE, NOT ENSLAVED LITIGANTS ( DIE FOR UNIVERSAL BROTHER HOOD )
SITTING OUTSIDE WITH BLEEK SKELTOM AND EMPTY POT,
THE LITIGANTS ARE SEEING TOWARDS THE TEMPLE OF COURT,
IN THE HOPE OF GETTING THE GRATITUDES OF “MY LORDS”,
WITH HIGH EXPECTATION OF SPONSORING THEIR CAUSE,
THROUGH THE ASSISTENCE OF LAWYERS AND PLEADERS,
TO WHOM HE HAS ENGAGED FOR PLACING THEIR SUBMISSION,
IN ANTICIPATION OF HOPES OF GETTING JUSTICE,
FOR THE HUMILIATIONS WHICH THEY HAVE FACED FROM HIS OPPONENTS,
BUT WHEN THEY ENTER INSIDE THE TEMPLE OF LAW,
HE FINDS THAT NO ONE IS INTERESTED IN LISTENING THE CAUSE,
EVERY ONE IS INTERESTED TO DEVELOP THE GROWTH OF LAW,
WITHOUT KNOWING WHERE IT MAY LEAD TO THEM,
IN A WORLD IN WHICH “THE LAW AND JUSTICE DO NOT TALK,”
AND ULTIMATELY WHEN THEY COME OUT OUT FROM THE COURT ROOM,
THERE ARE FEW DROP LET COMING OUT OF THEIR EYES,
HAVING THE MARK OF BLACK SPRIMG THROUGH TEIR CHEEKS,
BUT NO ONE TAKE THE NOTICE OF THEIR SORROW,
AND IN THIS PROCESS THEY HAVE BEEN INFLICTED WITH THE WOUND,
WHICH IS BEING CHAFED AGAIN AND AGAIN,
BEFORE IT MAY HEAL TO RELIEVE THEM FROM SUCH AGONY,
WHAT HE FACED OUT SIDE FROM THEIR OPPONENTS
MAY THEY BE REPLIED BY SOME ONE INSIDE THE COURT OF LAW,
WHETHER THEY HAVE COMMITTED THE FOLLY IN ENTERING THE TEMPLE, OR THEY ARE DECIEVED BY THYE SYSTEM OF THE GOVERNANCE
WHICH IS BASED UPON THEORITICAL PROCESS ,
AND WILL CRUMBLE DOWN BY ITS OWN WEIGHT IN DUE COURSE OF TIME.
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 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.
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 existed did not bring about any substantial change and consequently by virtue of the Constitution 42nd 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 86th 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:-
"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 12th to 16th Amendment to the said Rules, by incorporating the qualifications on account of 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.
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.
(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.
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 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.
On the reference of the single judge, the propriety of Division bench is examined by the full bench , in which the same single judge become the member of full bench. Thus where is the Law?.
"(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 1st January, 2012, provided he undergoes, after appointment an NCTE recognized six months special programme in elementary education"?
(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?"
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).
10 Yogesh's goal