Friday, July 24, 2015

UPTET SARKARI NAUKRI News - Nainital High Court Correct Order - नियुक्ति अस्थायी होगी तथा यह स्पेशल अपील के निर्णय के अधीन -

UPTET SARKARI NAUKRI   News - Nainital High Court Correct Order -  नियुक्ति अस्थायी होगी तथा यह स्पेशल अपील के निर्णय के अधीन


हाईकोर्ट के फैसले से शिक्षा मित्रों को राहत - नियुक्ति अस्थायी होगी

relief for shiksha mitra.
नैनीताल हाईकोर्ट ने शिक्षा मित्रों को टीईटी में छूट प्रदान करने संबंधी शासनदेश के मामले में दायर स्पेशल अपील पर सुनवाई के बाद सरकार को आदेश दिया है कि शिक्षा मित्रों की यदि नियमित नियुक्ति की जाती है तो सरकार को नियुक्ति पत्र पर स्पष्ट उल्लेख करना होगा कि यह नियुक्ति अस्थायी होगी तथा यह स्पेशल अपील के निर्णय के अधीन होगी।

शिक्षा मित्रों को टीईटी से दी गई थी छूट
मामले की अगली सुनवाई 13 मार्च 2015 को होगी। मुख्य न्यायाधीश केएम जोसेफ एवं न्यायमूर्ति वीके बिष्ट की खंडपीठ के समक्ष मामले की सुनवाई हुई। मामले के अनुसार पूर्व में प्रवीण कुमार और अन्य ने हाईकोर्ट में याचिका दायर कर कहा था कि सरकार की ओर से शासनादेश जारी किया गया है जिसके तहत शिक्षा मित्रों को टीईटी से छूट प्रदान की गई थी।

इस शासनादेश को याचियों ने ने चुनौती दी थी। एकलपीठ ने सुनवाई के बाद शिक्षा मित्रों को टीईटी से छूट प्रदान करने के शासनादेश को निरस्त कर दिया था। एकलपीठ के इस आदेश को सरकार और अन्य शिक्षा मित्रों की ओर से स्पेशल अपील दायर कर चुनौती दी गई थी।

पक्षों को सुनवाई के बाद हाईकोर्ट की खंडपीठ ने सरकार को आदेश दिया है कि शिक्षा मित्रों को यदि नियमित नियुक्ति दी जाती है तो सरकार को नियुक्ति पत्र में स्पष्ट उल्लेख करना होगा कि उक्त नियुक्ति अस्थायी होगी तथा यह नियुक्ति स्पेशल अपील के निर्णय के अधीन होगी।

News source: ब्‍यूरो / अमर उजाला, नैनीताल Updated @ 9:12 AM IST

Kya Tha Single Bench Ka Decision :-
 बड़ी खबर : शिक्षा मित्रों को टी ई टी से छूट नहीं

 

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Sunday, July 19, 2015

RTET SARKARI NAUKRI News- राजस्थान हाई कोर्ट Chief Justice Bench ने शिक्षा मित्रों / पेरा टीचर्स को बगैर टेट / सीधी भर्ती के बताया अवैध -

RTET SARKARI NAUKRI  News- राजस्थान हाई कोर्ट Chief Justice Bench ने शिक्षा मित्रों / पेरा टीचर्स को बगैर टेट / सीधी भर्ती के बताया अवैध  -


See  Judgement ->>>
UPTET 
Shiksha Mitra , Para Teacher  अगर आप लोगो की कोई राय / टिप्पणी हो तो ब्लॉग पोस्ट में नीचे लिंक है , जरूर करें

राजस्थान हाई कोर्ट के चीफ जस्टिस सुनील अम्ब्वानी और जस्टिस प्रकाश गुप्ता की बेंच ने विद्यार्थी मित्र (उत्तर प्रदेश में इन  पेरा शिक्षक को शिक्षा मित्र कहा जाता है ) को बगैर टेट / डायरेक्ट रिक्रूटमेंट के सही नहीं माना और स्पेशल अपील निस्तारित कर दी ।

उन्होंने शिक्षा में गुणवत्ता हेतु कई टिप्पणियां की और सुप्रीम कोर्ट के पूर्व निर्णय के कई अंशों को उद्धत किया



विद्यार्थी मित्रों / कॉन्ट्रेक्ट शिक्षकों  की सेकड़ो याचिकाएं सिंगल बेंच ने ख़ारिज करते हुए उनकी सेवा समाप्ति को सही मन था , इसके बाद उनके सस्पेशल अपील पर निर्णय भी उनके विरुद्ध आया , दुखदलगा  लेकिन न्याय तो अपनी जगह है , अगर भर्ती के कुछ नियम बने तो फिर उसका पालन
करते हुए न्याय ऐसे फैसले दे देता है , जो कई बार लोगो के लिए दुखद भी होते हैं

इस निर्णय में कई टेबल्स टेक्स्ट फॉर्म में नहीं आ पाई थी , और कुछ बातें पी डी ऍफ़ फाइल की छूट गयी , इसलिए पूरी कॉपी हाई कोर्ट की वेबसाइट पर देखें


*****************
Important Parts >>>
The appellant-petitioner was engaged as 'Vidhyarthi Mitra'

The appellants in other Special Appeal are amongst a large number of persons, who were appointed as 'Vidhyarthi Mitras', in the School of Elementary Education

state in continuing with the Vidhyarthi Mitra Scheme and permitting the teaching by the unqualified persons in the schools run by the State is avowedly illegal, arbitrary and falls foul of Article 21A of the Constitution of India.

National Council of Teachers Education Act, by the NCTE, which has been declared as Academic Authority authorised by the Central Government by notification, it is not legally permissible to employ the teachers who have not passed the Teacher Eligibility Test  (‘TET’)

30.It is well settled that the regular posts in the cadre are required to be filled in by way of the regular
recruitment process under the Rules
. Of course, as noticed above, the urgent temporary appointment to the extent permissible under the Rules can be made till the availability of regularly selected candidates but then, the appointment on contractual basis is not envisaged under the relevant recruitment Rules. A




31. In this view of the matter, the Vidhyarthi Mitra Scheme introduced by the State Government providing for engagement of Vidhyarthi Mitra on contractual basis against the vacant posts of Teachers in various cadres ignoring the eligibility qualification prescribed and the procedure prescribed for the recruitment is ex facie dehors the relevant recruitment Rules


Najuk Umra Mein Bachhon ke Saath Supreme Court Ne Achhe Shikshkon Dwara Shiksha Par Jor Deeya Hai ->>>

The Hon'ble Supreme Court time and again has emphasized for  quality educations in the schools and deprecated the practice of employing unqualified untrained teachers to teach the children of tender age in the schools.


19. We are of the view that quality of education to be imparted to the children in the school cannot be compromised at any costs. Even if, there are vacancies, the posts  are not allowed to be filled up by teachers who are not trained and who are not


21. We also do not find any good ground to issue any directions to allow any ad hoc arrangement and declare that the State Government  shall not compromise with the legal position as explained by learned Single Judge. There shall be no recruitment of  Vidhyarthi Mitra nor any scheme will be made on ad hoc basis or of unqualified teacher or even qualified teacher de hors the service rules.

22. The Special Appeal is accordingly dismissed.


*********************************************


1

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
: JUDGMENT: Hitesh Parihar

Vs.
State of Rajasthan & Ors.
D.B.Civil Special Appeal (W) No.21/2014
Date of Judgment :::  21 st    November 2014

HON’BLE THE ACTING CHIEF JUSTICE MR.SUNIL AMBWANI

HON’BLE MR.JUSTICE PRAKASH GUPTA

Dr.Nupur Bhati      )

Mr.Ravindra Singh ) for the appellant

Mr.B.L.Bhati, Government Counsel for the respondents

(Reportable)

BY THE COURT (Per Hon'ble Sunil Ambwani, Actg.CJ)

1.

The appellant-petitioner was engaged as 'Vidhyarthi Mitra', on contract in the year 2006 and thereafter to teach the students in Government Primary School, Chhipi, District Jalore.

His services were dispensed with on completion of  three months, after which, he was re-appointed on contract in the year 2009 and worked upto January 2010.


2. The appellants in other Special Appeal are amongst a large number of persons, who were appointed as 'Vidhyarthi Mitras', in the School of Elementary Education and the Schools of
Secondary Education on the vacancies of Teacher Gr.III, Senior Teachers and Lecturers  on contract for specified period, awaiting regular appointment by the State Government and Panchayats in the vacancies. 

3. A large number of writ petitions were filed by Vidhyarthi 2 Mitras to allow them to continue until regular appointments are made.  A batch of writ petitions led by  S.B.Civil Writ Petition
No.4652/2009 connected with 362 petitions  was decided by Jaipur Bench of this Court on 08.09.2009, declaring the last extension to be arbitrary and illegal; and  the consequential
automatic termination orders were set aside. 
The respondents were directed to consider the case of the petitioners for continuation in service till regularly selected candidates from RPSC/persons selected and recommended by DPC for promotion are made available in the light of the observations made in the judgment.   It was observed that in case the regularly selected candidates from RPSC/persons selected and recommended by RPSC for promotion are made available, then the respondents can terminate services of the petitioners after preparation of the seniority list on the State level as per their date of appointment and merit assigned to them by following the principle of ‘last
come first go’ to the extent of availability of selected candidates keeping in view the interest of the present students and prospective students.

4. In  Devendra Kumar & Ors. Vs. State of Rajasthan (S.B.Civil Writ Petition No.2579/2009) and other 502 connected petitions, decided on 15.05.2009 , the judgment in  S.B.Civil Writ Petition
No.4652/2009 was followed.   

5. A Division Bench of this Court while issuing notices on the special appeals preferred by the State Government, dismissed the special appeals preferred by the petitioners vide judgment
dated 17.09.2009 in  Rajendra Kumar Saini Vs. State of Rajasthan: (2010(1) WLC 171)


6. In  Prahlad Kumar Sharma Vs. State of Rajasthan: (2010(3) WLC 619)
, the writ petitions were disposed of with directions that cases of the petitioners for transfer and absorption under the Rationalisation and Equalisation Policy in the Blocks/Tehsils and Districts as required by the Director, Elementary Education, Bikaner dated 26.06.2010 will be considered but shall not confer any right on the petitioners serving as Vidhyarthi Mitras to continue in the said position after the end of the academic session 2010-11 unless the State Government itself takes a
 decision otherwise in this regard.   The directions were given in respect of Vidhyarthi Mitras who had worked in the academic years 2008-09 and 2009-10 including those who had not workedon the academic year 2009-2010.  They were not held entitled to regularisation but if such Vidhyarthi Mitras make representations for the academic year 2010-11 their cases were directed to be
considered for re-employment.

7. The petitioner as well as other Vidhyarthi Mitras aggrieved by the termination of their services and refusal to continue them pursuant  to the decision taken by the State Government,  filed the writ petitions giving rise to this special appeal claiming the reliefs as were given in  Prahlad Kumar’s  case.

8.Learned Single Judge, by a detailed and erudite judgment, while taking into consideration the entire gamut of Service Rules and the norms laid down by the National Council for TeachersEducation (‘NCTE’)  established under the National Council for  Teachers Education Act, 1993;  Article 21A inserted vide Constitution (Eighty Sixth Amendment) Act, 2002;  the
4 enactment of the Right of Children to Free and Compulsory Education Act, 2009;  and the judgments of Hon’ble Supreme Court in Andhra Kesri Education Society Vs.  Director of School
Education: AIR 1989 SC 1983 and L.Muthu Kumar  & Anr. Vs. State of Tamil Nadu & Anr.: (2000) 7 SCC 618, has held that with the change in law and the notification dated 23.08.2010
issued under Section 23 of the National Council of Teachers Education Act, by the NCTE, which has been declared as Academic Authority authorised by the Central Government by notification, it is not legally permissible to employ the teachers who have not passed the Teacher Eligibility Test  (‘TET’)  which is to be conducted by appropriate government in accordance with the guidelines framed by NCTE.  It was also found that NCTE has already framed guidelines for conducting TET, which provides for academic qualifications; and that such qualifications have been incorporated by the State Government under Rule 266 of the Rajasthan Panchayati Raj Rules, 1996 (‘the Rules of 1996’)
quoted in the judgment.


9. The  perceptible change in law, as noticed by learned Single Judge, has also been accepted by the State of Rajasthan by amending Rules of 1996 and Section 89 of the Rajasthan Panchayati Raj Act, 1994 (‘Act of 1994’) by the Rajasthan Panchayati Raj (Amendment) Act, 2000 after which it was no
longer possible to allow any ad hoc arrangement to be continued. Learned Single Judge found that in view of the change in law by constitutional amendment and by regulations framed by NCTE by notification dated 23.08.2010 and amendments in the rules related to recruitment of teachers in
5the State of Rajasthan, the scheme of Shiksha Mitra which was an ad hoc scheme as stop gap arrangement until recruitment is made, has become unconstitutional.  It is useful to quote the observations made by learned Single Judge  in paragraphs 26 to 39 as follows:-

“26. It is to be noticed that as per Rule 263 of the Rules of 1996, specifically provides that subject to the provisions of the Rules and the directions of the Government, if any, the Panchayat Samiti or Zila Parishad shall determine and intimate the Committee (District Establishment Committee) every year the number of vacancies anticipated under each category during the year and the number of persons likely to be recruited by each method. That apart, Rule 284(1) of the Rules of 1996 mandates that in case no selection has been made or no person selected by the Committee is available at any time
for filling a vacancy, appointment may be made by the Appointing Authority on urgent temporary basis for a period not exceeding six months provided that such person shall be appointed only on contract basis with prior approval of the District Establishment Committee in case of Panchayats and approval of the State Government in case of Panchayat Samiti/Zila Parishad. Besides, as per Rule 284(2), if it is proposed to fill the vacancy by direct recruitment temporarily nearest Employment Exchange may be asked to send names of persons possessing required qualification at least five times the number of vacancies to be so filled and out of those persons, the
Appointing Authority shall appoint the persons suitable for the post.

27.  The recruitment to the post of Senior Teacher and School Lecturer is governed by the Rules of 1971 and Rules of 1970 respectively, framed by the Governor in exercise of the power conferred by proviso to Article 309 of the Constitution of India. The recruitment to the posts of Senior Teachers and School Lecturers are required to be made by direct recruitment as well as by promotion in
the proportion indicated in the Schedule attached to the 6 relevant recruitment Rules. The recruitment Rules specifically provides for yearwise determination of actual number of vacancies occurring belonging to the promotion and direct recruitment quota as on 1st  April every year. It is pertinent to note that in exercise of the power conferred by proviso to Article 309 of the Constitution of India, the
Governor of Rajasthan vide notification dated 23.9.08, promulgated Rajasthan Various Service (Fourth Amendment) Rules, 2008, which specifically provides that direct recruitment to the post specified in the Schedule shall be held at least once a year unless the Government decides that the direct recruitment for any of these posts shall not be held in any particular year. The Rules of 1970
and Rules of 1971 finds mention at serial No.20 and 52 of the Schedule. It is not the case of the respondents that any decision was taken by the Government not to make the recruitment for any of the posts en-cadred under the Rules of 1970 and Rules of 1971. Thus, indisputably, in terms of the relevant recruitment Rules, the State Government is under an obligation to determine the
yearwise vacancies and proceed with the recruitment process to fill up the vacancies in the cadre in accordance with the relevant Rules.

28. It is pertinent to note that Rule 27 of the Rules of 1970 and Rule 28 of the Rules of 1971 provides for urgent temporary appointment against the vacancy in service which cannot be filled in immediately either by direct recruitment or by promotion  under the Rules, by appointing in an official capacity the persons eligible for appointment to the post by promotion or by appointing
temporarily thereto a person eligible for direct recruitment to the service under the provisions of the Rules. Suffice it to say that under the relevant recruitment Rules, no person lacking eligibility qualification could be appointed on the various posts in the cadre even on urgent temporary basis.

29. In the backdrop of position of law, as aforesaid, adverting to the Scheme, it is significant to note that the appointment of Vidhyarthi Mitra  on contractual basis thereunder was sought to be made on the pretext that the 7 regular recruitment process of Teachers in various cadres is likely to take a long time. One fails to understand that if regular recruitment in the cadre was likely to take a long
time and there was non-availability of the duly selected candidates then what prevented the State Government from resorting to recruitment process under the Rules for urgent temporary appointment against the vacant posts of eligible candidates  till the availability of duly selected candidates. Strangely enough under the Scheme framed the requirement of the eligibility of the candidates for the
recruitment to the post of Teachers as provided for under the relevant recruitment Rules and by NCTE was also ignored inasmuch as the Scheme permitted even the engagement of persons who are not trained to discharge the duties of the Teachers in various Schools.

30.It is well settled that the regular posts in the cadre are required to be filled in by way of the regular
recruitment process under the Rules
. Of course, as noticed above, the urgent temporary appointment to the extent permissible under the Rules can be made till the availability of regularly selected candidates but then, the appointment on contractual basis is not envisaged under the relevant recruitment Rules. As a matter of fact, even the urgent temporary appointment in any public service to any post  de hors the relevant Rules without permission of the competent authority is prohibited under Section 4 of the Act of 1999. Rather, the appointment in contravention of the provisions of the Act of 1999 is an offence punishable under the provisions of Section 14 of the Act of 1999.

31. In this view of the matter, the Vidhyarthi Mitra Scheme introduced by the State Government providing for engagement of Vidhyarthi Mitra on contractual basis against the vacant posts of Teachers in various cadres ignoring the eligibility qualification prescribed and the procedure prescribed for the recruitment is ex facie dehors the relevant recruitment Rules. That apart, the
recruitment of Teachers lacking eligibility qualification runs contrary to the Regulations,2001 framed by the NCTE, which have statutory force. As a matter of fact, the 8 NCTE having prescribed the eligibility qualification, the State Government cannot proceed to appoint the persons
on the posts of Teachers by giving the fictitious designation i.e. Vidhyarthi Mitra to teach the children who are mandatorily required to be taught by the persons eligible for recruitment to the post as per the eligibility qualification laid down by the NCTE


32. As noticed above, by way of Constitution (Eighty Sixth Amendment) Act, 2002, Article 21A was inserted in the Constitution which makes right to education, a fundamental right, and provides that State shall provide free and compulsory education all children of 6 to 14 years in such manner as the State by law provides.

Indisputably, so as to implement the provisions of Article 21A of the Constitution, the Act of 2009 has been enacted by the Parliament which mandates that only the persons possessing minimum qualification as laid down by an academic authority authorised by the Central Government
by notification shall be eligible for appointment on the posts of Teachers. As a matter of fact, it is not even disputed before this Court that the academic body, NCTE, under the authorization of the Government has already laid down the eligibility qualification and therefore, any person not possessing the requisite qualification as provided for by the NCTE cannot be appointed on the
posts of Teachers in the various schools run by the State or otherwise.

33. It needs to be noticed that besides providing for the eligibility qualification for recruitment to the posts of Teachers, the Act of 2009, Section 6 thereof specifically mandates that for carrying out the provisions of the Act, the appropriate Government and the local authority shall establish within such area or limits of neighborhood as may be prescribed a school where it is not established,
within a period of 3 years from the commencement of the Act. As per Section 7 of the Act of 2009, the Central Government and the State Government have concurrent responsibility for providing funds for carrying out the provisions of the Act. As per mandate of Section 8, the appropriate Government is under an obligation to provide 9 infrastructure including school buildings, teaching staffs
and learning material to ensure good  quality elementary education conforming to the standards and norms specified in the Schedule. The emphasis under the Act is on ensuring that all children have access to quality education that enables them to the  skills, knowledge, values and attitude necessary to become responsible and active citizens of India. To achieve the intended objects even the Pupil-Teacher Ratio in a school has been specified in the Schedule which is mandated to be
maintained in each school by virtue of provisions of Section 25 of the Act. Suffice it to say that right to compulsory education enshrined in Article 21A of the Constitution of India presupposes quality education to the children and therefore, the State is under an obligation to make all efforts to ensure that the children of tender age may not suffer on account of teaching by unqualified
teachers. In this view of the matter, the action of the State in continuing with the Vidhyarthi Mitra Scheme and permitting the teaching by the unqualified persons in the schools run by the State is avowedly illegal, arbitrary and falls foul of Article 21A of the Constitution of India.

34. The Hon'ble Supreme Court time and again has emphasized for  quality educations in the schools and deprecated the practice of employing unqualified untrained teachers to teach the children of tender age in the schools.

35.In N.M.Nageshwaramma vs. State of A.P., 1986 Supp. SCC 166, the Hon'ble Supreme Court observed: “
The teachers' training institutes are meant to teach children of impressionable age and we cannot let
loose on the innocent and unwary children, teachers who have not received proper and adequate
training. True they will be required to pass the examination but that may not be enough. Training
for a certain minimum period in a properly organized and equipped training institute is probably
essential before a teacher may be duly lanunched.”

36.In Andhra Kesari Educational Society v. Director of School Education, (1989) 1 SCC 392, the Hon'ble Supreme Court observed:
10 “ .... Though teaching is the last choice in the job market, the role of teacher is central to all
processes of formal education. The teacher alone could bring out the skills and intellectual
capabilities of students. He is the “engine” of the education system. He is a principal instrument in
awakening the child to cultural values. He needs to be endowed and energised with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and
motivate into action the benefitter (sic benefactor).


He must keep himself abreast of ever-changing conditions. He is not to perform in a wooden and
unimaginative way. He must eliminate fissiparous tendencies and attitudes and infuse nobler and
national ideas in younger minds. His involvement in national integration is more important, indeed
indispensable. It is , therefore, needless to state that teachers should be subjected to rigorous
training with rigit scrutiny of efficiency. It has greater relevance to the needs of the day. The ill-
trained or sub-standard teachers would be detrimental to our educational system; if not a
punishment on our children. The Government and the University must, therefore, take care to see
that inadequacy in the training of teachers is not compounded by any extraneous consideration.”

37.In the matter of 'State of Rajasthan v. Vikas Sahebrao Roundale', (1992) 4 SCC 435, the Hon'ble
Supreme Court observed:
“ The teacher plays pivotal role in moulding  the career, character fibres and aptitude for educational
excellence in impressive young children. The formal educational needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest techniques to the students on secular, scientific and rational outlook. A well-equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuits. The teacher is adorned as gurudevobhava, next after parents, as he is a principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline. The teachers, therefore, must keep abreast of ever-changing  techniques, the needs of the society and to cope with the psychological approach to the aptitudes of the children to perform that pivotal role. In short teachers need to be endowed and energised with needed potential to serve the needs of the society. The qualitative training in the training colleges or schools would inspire and motivate them into action to the benefit of the students. For equipping such trainee students in a school or a college all facilities and equipments are absolutely necessary and institutions bereft thereof have no place to exist nor entitled to recognition. In that behalf compliance with the statutory requirement is insisted upon. Slackening 11 the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education.”

38. In the matter of “L.Muthukumar and Another vs. State of T.N. & Ors.”, (2000) 7 SCC 618, while relying upon earlier decisions noticed above, the Hon'ble Supreme Court opined that before teachers are allowed to teach innocent children, they must receive appropriate and adequate training in a recognized training institutes satisfying the prescribed norms, otherwise the standard of education and careers of children will be jeopardized. The court observed that allowing ill-trained teachers coming
out of de-recognized or un-recognized institutes or licensing them to teach children of an impressionable age, contrary to the norms prescribed will be  detrimental to the
interest of the nation itself in the sense  that in the process of building a great nation, teachers and
educational institutions also play a vital role. 

39. In Uma Devi's case (supra) heavily relied upon by the learned Additional Advocate General appearing on behalf of the State the Hon'ble Supreme  Court observed :
“2.Public employment in a sovereign socialist secular democratic republic, has to be as set down
by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment
by the Government and its instrumentalities on the basis of a procedure established in that behalf
Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action
to ensure that unequals are not treated as equals. Thus, any public employment has to be in terms of
the constitutional scheme.

3.A sovereign Government, considering the economic situation in the country and the work to
be got done, is not precluded from making temporary appointments or engaging workers on
daily wages. Going by a law newly enacted, the National Rural Employment Guarantee Act, 2005,
the object is to give employment to at least one member of a family for hundred days in a year, on
paying wages as fixed under that Act.

But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.

” (Emphasis added)

12 It is true that the Hon'ble  Supreme Court has observed that a sovereign Government is not precluded from making temporarily appointments or engaging workers on daily wages basis, taking into consideration the economic situation in the country and work to be got done. But then, the Scheme as framed by the State Government is not an employment Scheme as such but
rather it is a Scheme framed  bypassing the regular recruitment process, which as observed by the Hon'ble Supreme Court in Uma Devi's case (supra) must be a rule.

In any case, the sovereign Government has to function within the constitutional limit and cannot be permitted to frame the Scheme in violation of the laws and the constitutional scheme governing the public employment.”

10. After considering the entire law on the subject, learned Single Judge  held as under:-
“ 40. In view of the discussion above, this Court is firmly of the opinion that the Scheme introduced by the State Government providing for the engagement of even unqualified/untrained persons as Vidhyarthi Mitra for their posting against the posts of Teacher Gr.III, Senior Teacher and School Lecturer dehors the relevant recruitment Rules and the eligibility criteria laid down by
the NCTE exercising the power under the relevant statute, the provisions of the Act of 2009, and against the constitutional scheme of public employment, cannot but deemed to be illegal, arbitrary and falls foul of Article 14, 21 & 21A of the Constitution of India.”

11. Learned Single Judge was conscious of the fact that vacancies of the teachers engaged for elementary education and secondary education cannot be filled immediately and, thus,
keeping in view the interest of the students, an arrangement was made in paragraph-42 which reads as follows:-
“ 42.In the result, the writ petition No.8154/10
13 is allowed. The writ petitions preferred by the petitioners assailing their termination from service, claiming continuance/re-employment as Vidhyarthi Mitra and against the insistence of the Government for execution of the fresh contract, are dismissed. The Vidhyarthi Mitra
Scheme introduced by the State Government for engagement of 'Vidhyarthi Mitra' on contractual basis on fixed honorarium against the posts of Teachers Gr.III, Senior Teachers and School Lecturers is declared illegal and unconstitutional.

The respondents are restrained from engaging the Vidhyarthi Mitra under the Vidhyarthi Mitra Scheme against the posts of Teachers Gr.III, Senior Teachers and School Lecturers. The respondents
are directed to proceed with the recruitment process to fill in all the vacant posts of Teachers and School Lecturers in various services/cadres forthwith and complete the process as early as possible, in any case, within a period of six months from the date of receipt of certified copy of this order. It is made clear that pending completion of the regular recruitment process, the State shall not be precluded from engaging the eligible persons on the various posts of Teachers on urgent temporary
basis in accordance with the relevant recruitment Rules.

The State shall also ensure that henceforth the determination of the vacancies of Teachers in various
services/cadres is made every year as mandated by the relevant recruitment Rules and all efforts shall be made to fill up the vacancies preferably before the next academic session starts in the schools run by the State.

The petitioners who have not been paid honorarium for the period they had worked with the respondents as Vidhyarthi Mitra, shall be paid the amount due within a period of two months from the date of receipt of certified copy of this order. It is made clear that on account of the
Vidhyarthi Mitra Scheme being declared illegal and unconstitutional, the petitioners and their likes who had worked with the respondents as Vidhyarthi Mitra, shall not be deprived of the benefits already accrued to them.

No order as to costs.”

14

12. It is submitted by learned counsel appearing for the petitioner that there are large number of vacancies running into thousands in the Schools for Primary Education and Secondary
Education which cannot be filled up immediately.  The Government has not taken any steps for direct recruitment  on these vacancies; and that considering the interest of students,
who would be suffering greatly on account of non-availability of teachers, the Court may consider to extend the time by which all the vacancies may be filled up and until then the persons who
were disengaged as Vidhyarthi Mitras may be allowed to continue.

13.It is submitted that  there can be no objections with the findings recorded and directions given by learned Single Judge, however, large number of  Vidhyarthi Mitras are qualified to teach in the  Schools for Primary Education and Secondary Education and thus, in the alternative, if the Court may not agree to allow the extension of time, at least, those  Vidhyarthi Mitras, who are qualified, may be allowed to teach in the schools for the benefit of the students until direct recruitment is made.

It is submitted that interest of lakhs of students is going to suffer by the delay caused by the State Government in direct recruitment.

14. We are informed by learned counsel appearing for the State that after declaration of  Vidhyarthi Mitra Scheme to be unconstitutional, the State Government  has abolished the scheme, and that after 30.04.2014, no person is working or has been engaged to serve as  Vidhyarthi Mitra.  The orders of
learned Single Judge  have been complied with and that the
15 State Government  has proceeded to make direct recruitment on the vacancies of the teachers in all categories.

15.In order to find out the current situation of the vacancies on the post of teachers in the Schools in the State of Rajasthan,we asked State Counsel to give us a comprehensive chart showing the number of vacancies on sanctioned posts and the availability of trained Vidhyarthi Mitras.  We also asked  State Counsel  to give us the status of the requisitions made and the proceedings pending for recruitment of teacher and the status of the Teachers’ Eligibility  Test known in Rajasthan as REET.  The chart produced by  State Counsel is reproduced as under:-
************************************
Note from Blog - Tabular form ka chart ham yahan nahin de paa rahe hain, Kripya HC ki website se poora vivran dekhen
*****************************

Judegement continued >>>

INFORMATIONS WITH REGARD TO VIDYARTHI MITRA


16. We are  pained to observe that despite directions issued by this Court on 21.10.2013 which have been followed to the extent that  Vidhyarthi Mitra has been discontinued and that after 30.04.2014 no person is working as  Vidhyarthi Mitras,  effective steps have not been taken to fill up the vacancies.  From the chart produced before us, we find that there are 11,472 vacancies of Teachers for Elementary Education as against 30,298 sanctioned posts; 20,908 vacancies of Senior Teachers
as against 69,884 sanctioned posts; and 18,310 vacancies of Lecturers as against 33,028 sanctioned posts.  There are 7,999 trained teachers in elementary education, 1758 trained teachers Gr.III, 2283 trained Senior Teachers and 2229 trained Lecturers who were serving as  Vidhyarthi Mitras.  As against this,  the requisitions are pending with the Rajasthan Public Service Commission for filling up 4010 teachers for the post of Lecturers, 9447 for the post of Teacher Gr.II and 20,000 for

17 Teacher Gr.III.  For Teacher Gr.III, the requisition was sent about one year ago in August 2013.

17.  We are also informed that for Teacher Gr.III, a recruitment was initiated in the year 2013 which is pending at various stages and that some of the petitions were decided by this Court against which Special Leave to Appeal pending in the Supreme Court in which directions have been issued to issue the third list. The appointments in pursuance to the recruitment are awaited.

18. We are unable to accede to the request of learned counsel appearing for the petitioner to allow  at least the trained Vidhyarthi Mitras to continue until all the posts are filled up.  We do not find that considering the legal position as explained by learned Single Judge and his conclusions with which we entirely agree there is any scope to  adjudicate any further on the issue of allowing  Vidhyarthi Mitras to continue on the vacancies purportedly in the interest of the students. With the change in
law focussing on appointment of only trained Teachers with Teachers Training qualifications and the TET qualifications and appointment of such teachers only by direct recruitment in accordance with the Rules of recruitment, it  is no longer possible for allowing any untrained teacher or even a trained
teacher who has not been regularly appointed to be allowed to continue on ad hoc basis or  in contractual appointment.

19. We are of the view that quality of education to be imparted to the children in the school cannot be compromised at any costs. Even if, there are vacancies, the posts  are not allowed to be filled up by teachers who are not trained and who are not
18 appointed by way of direct recruitment in accordance with extant rules which have been amended in tune with the notification issued by NCTE  which has been declared as Academic Authority
by the Central Government.  The concept of school education has undergone change after the amendment in the Constitution by inserting Article 21A and  the enactment of Right of Children
to Free and Compulsory Education Act, 2009. The Notification dated 23.08.2010 is binding on all the States and Educational Authorities.   The Court is not empowered to compromise with
the legislative changes for the sake of equity for the contractual appointees, and empathy for the children to allow the ad-hoc arrangements to continue.

20. We have been benefitted from the judgment of Hon’ble Mr.Justice Sangeet Lodha who has researched on the subject and has taken pains to go deep into all the aspects of the matter in
rendering an exhaustive and complete judgment on the issue.

We do not find any error in the judgment to interfere in the special appeal.

21. We also do not find any good ground to issue any directions to allow any ad hoc arrangement and declare that the State Government  shall not compromise with the legal position as explained by learned Single Judge. There shall be no recruitment of  Vidhyarthi Mitra nor any scheme will be made on ad hoc basis or of unqualified teacher or even qualified teacher de hors the service rules.

22. The Special Appeal is accordingly dismissed.


              

(PRAKASH GUPTA), J.    

    (SUNIL AMBWANI), Actg.CJ.

MK


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Wednesday, July 15, 2015

UTET : BTC Shikshamitra TET Case in Court of Sudhanshu Dhuliya, Nainital High Court

UTET : BTC Shikshamitra TET Case in Court of Sudhanshu Dhuliya, Nainital High Court  


IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (S/S) No. 1507 of 2012

Mahesh Chandra & others              ...Petitioners

Versus


State of Uttarakhand and others   …Respondents


Present : Mr. Devesh Upreti, Counsel, for the petitioners.

   Mr. Paresh Tripathi, Additional Chief Standing Counsel for the State of 

Uttarakhand. 



Hon’ble Sudhanshu Dhulia, J. (Oral)



1. Mr. Devesh Upreti, Counsel for the petitioners. 



2. Mr. Paresh Tripathi, Additional Chief Standing Counsel for the State of Uttarakhand. 



3. Notices may go to all private respondents. Steps to be taken within two weeks.  



4. Petitioners before this Court have challenged the action of the respondents by which they have been made ineligible for appointment as teacher in primary school in government school in Uttarakhand, and pertains to district Champawat. 



5. Consequent to Right to Education (elementary education) becoming a Fundamental Right and the Right of Children to Free and Compulsory Education Act, 2009 being enacted subsequently, it was given to a central body known as National Council for Teacher Education (hereinafter referred to as “NCTE”) to frame guidelines for eligibility and appointment of elementary school teachers all over the country. These guidelines are contained in a notification issued by NCTE on 23.8.2010, inter alia, one of the principal requirements for a person to be appointed as a teacher in elementary school is that he/she must qualify a test known as Teacher Eligibility Test (hereinafter referred to as “TET”). NCTE while giving these guidelines had exempted only those categories of teachers from appearing in the examination known as TET where the process of appointment had started prior to the notification i.e. prior to 23.8.2010. There was no further relaxation given by the NCTE or Government of India. Apart from having a qualification of TET, another mandatory qualification is that a candidate must have a teacher training certificate which in the State of Uttarakhand is known as Basic Teaching Certificate (hereinafter referred to as “BTC”). 



6. The State of Uttarakhand has granted exemption to one set of BTC trained teachers on the grounds that the process for imparting training to such teachers started way back in the year 2005-06 and the training itself started from 26.4.2010 which is prior to the notification dated 23.8.2010. Hence, according to the Director, School Education, Government of Uttarakhand these set of teachers has been exempted to appear in TET examination, on grounds that process for appointment had started prior to 23.8.2010. Petitioners before this Court are also BTC trained teachers but they are the ones who had obtained this training not by way of a competition but by virtue of the fact that they have been working as “Shiksha Mitra” for a considerable period of time and Government had trained the senior most of such “Shiksha Mitra” and they are now BTC qualified. They have already undergone training between the same period, as the regular BTC candidate has obtained training, but whereas the regular BTC candidate has been exempted from TET, the petitioners have not been given this exemption and therefore without this exemption they are not qualified to be appointed as primary school teacher in the State of Uttarakhand,
unless they also qualify TET
. Petitioners contend that since such an exemption has already been given to other set of BTC trained persons, it is liable to be given to them as well. The petitioners claim that the action of the State is in violation of Article 14 of the Constitution of India as the action of the respondents amounts to a hostile discrimination. 



7. Counsels appearing for the petitioners have taken these grounds relying on various correspondences between the State Authorities like letters and orders annexed as Annexure Nos. 6 and 7 to the writ petition (WPSS No. 1521 of 2012) in which the main reason for granting exemption to regular BTC trained teachers is that they had gained appointment on 26th April, 2010 i.e. prior to the notification dated 23.8.2010 of NCTE. The petitioners contend that they are also on similar footing as they too had gained BTC courses in April, 2010. Therefore they cannot be discriminated merely because they were earlier “Shiksha Mitra”. Under the notification dated 23.8.2010 of NCTE, a candidate had to qualify an examination known as TET and this was an essential qualification before he could become a teacher. The only exemption contained in clause 5 of the notification dated 23.8.2010 reads as under:-

5. Teacher appointed after the date of this Notification in certain cases: Where an appropriate Government, or local authority or a school has issued an advertisement to initiate the process of appointment of teachers prior to the date of this Notification, such appointments may be made in accordance with the NCTE (Department of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time).”


 4

8. Prima facie, the view of this Court is that merely because the process of entrance in BTC had started prior to 23.8.2010 it would not mean that the process of appointment of teachers had started as well, but in any case if on this ground exemption has been granted to one set of BTC trained teachers, similar exemption ought to have been granted to the petitioners as well. 


9. Earlier today in a bunch of writ petitions pertaining to BTC qualified persons who wish to appear as a candidate for appointment as a primary school teacher in the State of Uttarakhand following orders were passed:



“Therefore in view of the above, this Court issues ad interim mandamus to the respondents to consider the candidature of the petitioners and all other similarly situated persons for the ongoing process of recruitment of primary school teachers in the State of Uttarakhand. It is made clear that since the mater will be heard finally, the respondents may not issue appointment letters or publish final selection list (unless they have already done so), which shall be done on the final determination of this writ petition, or any order passed therein. It is further made clear that it would be proper if the Director, School Education gives a wide publicity to this fact and invites applications from such BTC trained teachers as the present petitioners who were earlier “Shiksha Mitra”.”



10. The present petitioners are similarly situated as the ones in whose favour aforesaid orders have been passed. The grievance of the present petitioners though relates to appointment of primary school teacher in district Champawat. A statement has come in this case regarding appointment of primary school teacher from the State Counsel that pursuant to the advertisement appointments of primary school teacher have already been made in district Champawat. In case this is so in the present case, it shall not presently affect appointment of such teachers by way of interim order passed in the present or any other writ petitions but their appointments shall be subject to the final determination of the writ petition.  



11. Counter affidavit to be filed within three weeks.        



12. List this matter on 20.11.2012 in the daily cause list. 

      

(Sudhanshu Dhulia, J.)  

                              17.10.2012

Kuldeep 

 
 


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UTET : TET is Mandatory or Not For Shiksha Mitra in Uttrakhand, Nainital Highcourt Case- Order on

UTET : TET is Mandatory or Not For Shiksha Mitra in Uttrakhand, Nainital Highcourt Case- Order on  

Important Parts : -
a person is required to have passed Teachers Eligibility Test, no one, either in his capacity as Shiksha Acharya and/or in his capacity as Shiksha Mitra, can enter a Primary School as a teacher.

even today, Shiksha Mitras are teaching in Primary Schools. Their nomenclatures have not been altered and, even now, Shiksha Acharyas are being converted to Shiksha Mitras in terms of the Government Order dated 19th November, 2010

Stay on Orders 


3 weeks time granted. It means it is not final order. 


IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL



Special Appeal No. 265 of 2013



State of Uttarakhand and others  …………..         Appellants                            

Versus          

Madan Singh and others   .………….        Respondents

   



{{{ 

{  





Special Appeal No. 206 of 2013



State of Uttarakhand and others  …………..         Appellants                            

Versus          

Dhani Ram and another   .………….        Respondents




Special Appeal No. 266 of 2013



State of Uttarakhand and others  …………..         Appellants                            

Versus          

Mahesh Chandra and others  ………….        Respondents


AND

Special Appeal No. 355 of 2013


State of Uttarakhand and others  …………..         Appellants                            

Versus          

Amar Singh     .………….        Respondent



 Present:  Mr. Vinay Kumar, Standing Counsel for the State/appellants.

   Mr. K.N. Joshi alongwith Mr. B.M. Pingal, Advocate for the    respondents.


Hon’ble Barin Ghosh, C.J.
Hon’ble Servesh Kumar Gupta, J.

   The judgments under appeals deal with similar issues.  Accordingly, all the appeals are considered together. Each of them are admitted and all of them should be listed together for final hearing.  Liberty is granted to the parties to apply for fixation of an early date of hearing.


  In the State, there was a concept of Shiksha  Acharya and Shiksha Mitra. Shiksha Acharyas and Shiksha Mitras were imparting education in Primary Schools. For a Shiksha Acharya, requirement was less than a Shiksha Mitra. For a Shiksha Mitra, it was a requirement that he should be a graduate.  For Shiksha Acharya, the same was not the requirement. Many Shiksha Acharyas, while were Shiksha Mitras, were already graduates. The Government introduced BTC training. BTC training would entail a better scale of pay. Shiksha Mitras were enticed to be trained for the purpose of obtaining better pay scale. Steps were taken to have all Shiksha Mitras trained. The same succeeded and, in fact, all Shiksha Mitras were imparted BTC training. This facility was not available to Shiksha Acharyas. On 19th November, 2010, the Government decided that whoever was working as Shiksha Acharya and whoever was a graduate as on 19th November 2010 shall be treated as Shiksha Mitra and simultaneously shall be sent for obtaining BTC training. Some of the writ petitioners, respondents in these appeals, filed writ petitions before making of the Government Order dated 19th November, 2010 and some filed writ petitions subsequent thereto. In the writ petitions, which were filed before 19th November, 2010, writ petitioners/respondents claimed benefits of some other Government Orders. In the writ petitions, which were filed after 19th November, 2010, writ petitioners sought benefit of the Government Order dated 19th November, 2010. Many other similar writ petitions were filed, whereby and under, direction was given for giving benefits of the Government Order dated 19th November, 2010. Some of those orders reached the Division Bench and the Division Bench also reaffirmed that the benefit of the Government Order dated 19th November, 2010 be reached to those who are covered by the said Government Order. By the judgments under appeals, the learned single Judge has accorded benefit of the Government Order dated 19th November, 2010 to the writ petitioners/respondents. These orders were passed on 7th November, 2012 and subsequent thereto. In these appeals, it is being contended that, having regard to the statutory mandate to the effect that a person is required to have passed Teachers Eligibility Test, no one, either in his capacity as Shiksha Acharya and/or in his capacity as Shiksha Mitra, can enter a Primary School as a teacher. On the other hand, the learned counsel for the writ petitioners/respondents is contending that, even today, Shiksha Mitras are teaching in Primary Schools. Their nomenclatures have not been altered and, even now, Shiksha Acharyas are being converted to Shiksha Mitras in terms of the Government Order dated 19th November, 2010. These aspects of the matter have not been dealt with by the judgments and orders under appeals. We permit the parties to bring on record further pleadings within three weeks to support their aforementioned respective contentions. While doing so, we stay the operation of the orders. 

   



                 ( Servesh Kumar Gupta, J.)                (Barin Ghosh, C.J.)

                           03.12.2013                                          03.12.2013





P. Singh

 



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UTET : Nainital HC Order - TET Case on 25th March 2014

UTET : Nainital HC Order - TET Case on 25th March 2014  

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL



  Writ Petition No.420 (S/S) of 2014 



Poornima Panwar         ……….Petitioner

     Versus

State of Uttarakhand & others    ………Respondents

with 

Writ Petition No.421 (S/S) of 2014 



Praveen Kumar          ……….Petitioner

     Versus

State of Uttarakhand & others    ………Respondents

with 

Writ Petition No.422 (S/S) of 2014 



Ramesh Chandra Bhatt        ……….Petitioner

     Versus

State of Uttarakhand & others    ………Respondents

                with 

Writ Petition No.423 (S/S) of 2014 



Rajesh Dutt          ……….Petitioner

     Versus

State of Uttarakhand & others    ………Respondents

                      with

Writ Petition No.290 (S/S) of 2014 

Km. Babita           ……….Petitioner

     Versus

State of Uttarakhand & others    ………Respondents



Hon’ble Sudhanshu Dhulia, J. (Oral)

 

Mr. Jayvardhan Kandpal, Advocate with Mr. Niranjan Bhatt, Advocate, present for the petitioners in all the writ petitions.

2. Mr. Vikas Pandey, learned Brief Holder present for the State of Uttarakhand/respondent nos. 1, 2, 4 & 5.

3. Mr. Manoj Shah, Advocate, present for the respondent no. 3/Uttarakhand School Education Board, Ram Nagar.




 2

4. Petitioners in all the writ petitions belong to Other Backward Classes community (from herein after referred to as “OBC”), known as “Ranwalta”. They claim appointment as an OBC candidate on the post of Primary School Teacher in a Government School. One of the essential conditions for the said post is that one should have passed Uttarakhand Teachers Eligibility Test Examination (from herein after referred to as the “TET”). When the petitioners gave this examination in the year 2013, petitioners did not have OBC Certificate with them. In the said examination, petitioners scored more than 50% marks. The qualifying marks for an OBC candidate in the said examination was 50% and for a General candidate it was 60%. Since the petitioners have appeared in the TET examination as a General candidate, as they were not having OBC Certificate at that particular point of time, they have been declared unsuccessful in Uttarakhand TET-I examination.

5. Contention of the learned State Counsel is that petitioners have applied for the post of Primary School Teacher as an OBC candidate which is not being considered for the reason that they have not passed the Uttarakhand TET Examination with 60% marks in the said examination.

6. This objections of the respondents appear to be unreasonable. Since the petitioners belong to an OBC category, their qualifying cut of marks should not have been judged as 60% as is being judged but it should have been judged as 50%, for an OBC category candidate. This is a prima facie opinion of this Court.




 3

7. Learned counsel for the petitioners also submits that in a similar writ petition filed by him i.e. Writ Petition No. 315 (S/S) of 2014, this Court has already granted an interim order.

8. In view thereof, as an interim measure, it is directed that the respondents shall consider the case of the petitioners as an OBC Category candidate for the post of Primary School Teacher, if they are otherwise qualified, treating them to be TET qualified, but it shall be subject to the final determination of the writ petitions, as it shall only be provisional. Petitioners shall, however, not be posted as a teacher till finalization of these writ petitions. 

9. Respondents shall file their counter affidavit within a period of three weeks. Three weeks’ time thereafter is allowed to the learned counsel for the petitioners to file rejoinder affidavit.

10. List these writ petitions on 15

th

 May, 2014 in daily cause list along with Writ Petition No. 315 (S/S) of 2014.

11. Interim Relief Applications in all these writ petitions stand disposed of. 

                  (Sudhanshu Dhulia, J.) 

                              25.03.2014

ML



 


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