Devesh Sharma vs Union Of India

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE/ORIGINAL JURISDICTION

CIVIL APPEAL NO. 5068 OF 2023 (ARISING OUT OF SPECIAL LEAVE PETITION (C) No.20743 OF 2021)

DEVESH SHARMA … Appellant

Versus

UNION OF INDIA AND ORS. …Respondent(s)

WITH

CIVIL APPEAL NO(S).5122 OF 2023 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO(S). 17633 OF 2023) @ D.NO.21388 OF 2022

WITH

CIVIL APPEAL NO. 5070 OF 2023 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO.2069 OF 2022)

WITH

CIVIL APPEAL NO(S). 5086 OF 2023 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO(S).17630 OF 2023) Signature Not Verified

Digitally signed by NEETA SAPRA @ D.NO.5464 OF 2022 Date: 2023.08.14 12:07:17 IST Reason:

WITH

CIVIL APPEAL NO(S).5121 OF 2023 2

(ARISING OUT OF SPECIAL LEAVE PETITION (C) NO(S).17632 OF 2023) @ D.NO.12813 OF 2022

WITH

CIVIL APPEAL NO. 5069 OF 2023 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO.2061 OF 2022)

WITH

CIVIL APPEAL NO(S).5071-5084 OF 2023 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NOS.2578-2591 OF 2022)

WITH

CIVIL APPEAL NO. 5085 OF 2023 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO.3222 OF 2022)

WITH

CIVIL APPEAL NO(S). 5087 OF 2023 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO(S). 17631 OF 2023) @ D.NO.7368 OF 2022

WITH

CIVIL APPEAL NO(S). 5088-5120 OF 2023 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NOS.15118-15150 OF 2022)

WITH

CIVIL APPEAL NO. 5125 OF 2023 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO.22923 OF 2022)

WITH

CIVIL APPEAL NOS.5123-5124/2023 OF 2023 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NOS.21308-21309 OF 2022) 3

WITH

WRIT PETITION (CIVIL) NO.137 OF 2022

WITH

WRIT PETITION (CIVIL) NO.881 OF 2022

WITH

WRIT PETITION (CIVIL) NO.355 OF 2022

JUDGMENT

SUDHANSHU DHULIA, J.

Leave granted.

2. A Division Bench judgment of Rajasthan High Court, dated

25.11.2021, is under challenge before this Court. Apart from the

appeals, there are three Writ Petitions as well before this Court,

on the same issue. All the same, while dealing with these cases,

for facts, we would be referring to Civil Appeal @ SLP (C)

No.20743 of 2021 Devesh Sharma versus Union of India, which

arises out of the order dated 25.11.2021 passed by the High

Court in D.B. Civil Writ Petition No. 2109 of 2021.

3. What lies at the core of the dispute before this Court is the

notification dated 28.06.2018, issued by the National Council for

Teacher Education (hereafter ‘NCTE’), made in exercise of its

powers under Section 23(1) of the Right to Education Act, 2009 4

(hereinafter referred to as the ‘Act’). This notification made B.Ed.

degree holders eligible for appointment to the post of primary

school teachers (classes I to V). All the same, in spite of the

above notification, when the Board of Secondary Education, State

of Rajasthan, issued an advertisement on 11.01.2021, for

Rajasthan Teacher Eligibility Test (RTET Level-1), it excluded

B.Ed. degree holders from the list of eligible candidates. This

action of the Rajasthan Government was challenged before the

High Court. The petitioner Shri Devesh Sharma has a B.Ed.

degree, and as per the Notification dated 28.06.2018, he was

eligible, like many other similar candidates. Consequently, he

filed his petition before the Rajasthan High Court, inter alia,

praying that the advertisement dated 11.01.2021 be quashed, as

it was in violation of the notification dated 28.06.2018 issued by

the NCTE.

4. Apart from the above batch of petitioners, there was another

set of petitioners, with their own grievance. These are the

candidates who are diploma holders in Elementary Education

(D.El.Ed.)1, which was the only teaching qualification required for

teachers at primary level, and who are aggrieved by the inclusion

1 It is possible that this diploma is called by different names in different States. It is for this reason that at some place it may just be referred as a diploma in elementary education. 5

of B.Ed. qualified candidates. They too filed Writ Petitions before

the Rajasthan High Court challenging the legality of the

notification dated 28.06.2018. The State of Rajasthan

understandably supported these second batch of candidates

before the High Court, as they would do before this Court.

5. Out of the three writ petitions before us two (W.P. No. 137 of

2022 and 881 of 2022) are challenging the notification dated

28.06.2018 and the subsequent notifications issued by the

Government of Bihar and U.P. respectively calling for application

from eligible candidates including B.Ed. W.P. No. 355 of 2022

again challenges the notification dated 28.06.2018. SLP (C) No.

22923 of 2022 is against an interim order of the Calcutta High

Court which denied relief to the petitioners who were seeking a

stay of the notification dated 28.06.2018.

6. Hence the question of law to be answered in these cases is

whether NCTE was right in including B.Ed. qualification as an

equivalent and essential qualification for appointment to the post

of primary school teacher (Level-1)? The Rajasthan High Court in

the impugned judgment has quashed the notification dated

28.06.2018, holding B.Ed. candidates to be unqualified for the

posts of primary school teachers (Level-1). 6

7. On behalf of the Petitioners, we have heard learned Senior

Counsel, Mr. Paramjit Singh Patwalia who has assailed the

Judgement of the Rajasthan High Court. Mr. Patwalia appeared

for the B.Ed. qualified candidates and would support the

notification dated 28.06.2018, and the petitioners who had

challenged their exclusion before the Rajasthan High Court. Ms.

Meenakshi Arora, learned senior counsel was also heard for the

appellants. The learned counsel would argue that the High Court

failed to consider that the notification dated 28.06.2018 was a

policy decision taken by the NCTE after the Central Government

had issued directions in this regard, under Section 29 of the

NCTE Act, and the High Court was wrong in interfering with the

policy decision of the Central Government. The NCTE broadly

agrees with the submissions which have been made by Shri

Patwalia, and Ms. Arora, while assailing the impugned

judgement.

8. We have also heard the submissions by the learned Senior

Counsel Mr. Kapil Sibal and Dr. Manish Singhvi who appeared for

the Diploma holders and the State of Rajasthan respectively who

would argue, inter alia, that the NCTE being an expert body had

to take an independent decision in this case, based on the 7

objective realties. Even if the NCTE had to follow the directions of

the Central Government, the NCTE must demonstrate that these

directions had been independently considered by them and not

implemented in a mechanical manner.

9. On behalf of the Union of India we have heard learned

Additional Solicitor General(s) Ms. Aishwarya Bhati and Mr.

Vikramjeet Banerjee. They would argue that the Impugned

Judgement has been passed ignoring the powers of the Central

Government given both under the Act as well as NCTE Act.

Moreover, an objection has also been raised that the Union of

India was not even made a party in the proceedings before the

Rajasthan High Court!

10. During the course of hearing, this Court had passed an

order dated 24.08.2022, granting liberty to the Board of

Secondary Education for different States, and other stake holders

to be impleaded as intervenors. Pursuant to this order, several

Interlocutory Applications were filed which are being heard along

with these appeals.

11. “The Indian Constitution is first and foremost a social

document”, writes Granville Austin2. The Rights contained in 2 Austin, Granville. “The Conscience of the Constitution”. The Indian Constitution, Cornerstone of a Nation, Oxford University Press, 2000, pp. 50 8

Part III and the Directive Principles of State Policy contained in

Part IV together establish conditions which further the goal of

this social revolution3. Austin goes on to call Part III and Part IV

of the Constitution as “The Conscience of the Constitution” 4. Free

and compulsory education for children was a part of the social

vision, of the framers of our Constitution.

12. Elementary education for children is today a Fundamental

Right enshrined under Article 21A of Part III of the Constitution

of India. Every child (upto 14 years of age), has a fundamental

Right to have ‘free’ and ‘compulsory’ elementary education. But

then ‘free’ and ‘compulsory’ elementary education is of no use

unless it is also a ‘meaningful’ education. In other words,

elementary education has to be of good ‘quality’, and not just a

ritual or formality!

13. Our progress, in achieving this constitutional goal, has been

slow. In some ways, it is still a work in progress. Prior to the

Constitutional 86th Amendment, the Right to Education was in

Part-IV of the Constitution (Article 45), as a Directive Principle of

State Policy. Directive Principles, as we know, are a set of goals

which the state must strive to achieve. The goal set out in Article

3 Ibid – pp 50.

4 Ibid – pp 50.

9

455 of the Constitution (as it stood at that time), was to make

elementary education free and compulsory for all children up to

age of 14 years, within 10 years of the promulgation of the

Constitution. All the same, it would take much more than ten

years to achieve this goal.

14. The 1986 National Policy on Education, modified in the year

1992, declared that free and compulsory elementary education of

‘satisfactory quality’ be given to all children up to the age of

fourteen years, before the nation enters the next century i.e., 21 st

Century.

15. Later in the seminal judgment of this court in Unni

Krishnan J.P. versus State of Andhra Pradesh and Ors. (AIR

1993 SC 2178), it was held that children have a fundamental

right to free education, till they complete the age of fourteen

years.

16. In the year 1997, in order to make free and compulsory

education a fundamental right the 83 rd Constitutional

Amendment Bill was introduced in Parliament, to insert a new

Article in Part III of the Constitution of India, which was to be 5 Article 45 of the Constitution as it existed prior to the 86th Amendment:

“Provision for free and compulsory education for children.— 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.” 10 Article 21A. The Bill was sent for the scrutiny of the

Parliamentary Standing Committee on Human Resources

Development. The Standing Committee not only welcomed the

amendment but in addition emphasizes on the ‘quality of

elementary education’. This is what it said.

“The eminent educationists felt that the Bill is silent on the

‘Quality’ of Education. They suggested that there should be a

reference to ‘quality’ of education in the Bill. The Secretary,

Education agreed that the ‘quality’ aspect also has to be seen.

Education definitely must mean ‘quality’ education and anything

less than that should not be called education. Therefore, the

emphasis would be through strengthening the teacher education

content, the Secretary stated.”6

Finally, by way of the Constitution (86 th Amendment) Act of 2002,

Article 21A, was inserted as a Fundamental Right in Part III of

the Constitution, and made effective from 01.04.2010. Article

21A of the Constitution reads as under:

“Article 21A: 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.”

6 Para 13 of the Report of the Parliamentary Standing Committee on Human Resource Development. 11

17. In order to fulfil the above mandate Right to Education Act,

2009, was passed by the Parliament on August 20, 2009, which

became effective from 01.04.2010. The object and reasons of the

Act declared loud and clear that what the Act seeks to achieve is

not merely ‘free’ and ‘compulsory’ elementary education, but

equally important would be the ‘Quality’ of this education! The

Preamble to the Act states “that every child has a right to be

provided full time elementary education of satisfactory and

equitable ‘quality’ in a formal school which satisfies certain

essential norms and standards”.

18. When the validity of the Act was challenged before this

Court7, this Court, while upholding its validity emphasized that

the Act, was intended not only to impart “free” and “compulsory”

education to children, but the purpose was also to impart

‘quality’ education!

“The provisions of this Act are intended not only to

guarantee right to free and compulsory education to children, but

it also envisages imparting of ‘quality’ education by providing

required infrastructure and compliance of specified norms and

standards in the schools.” [See Para 8, (2012) 6 SCC 1]

77 In Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. [(2012) 6 SCC 1] 12

19. As we can see, the purpose behind bringing this

pathbreaking legislation was not to complete the formality of ‘free

and compulsory’ elementary education for children, but to make

a qualitative difference in elementary education and to impart it

in a meaningful manner. Provisions like ‘Right to be admitted in a

neighbourhood school’8, ‘No denial of admission’9 and ‘Prohibition

of physical punishment and mental harassment’ 10, are some of

the heartwarming provisions of the Act.

20. The Act sets down certain norms and standards which have

to be followed in elementary schools, and this is with the purpose

of providing a meaningful and ‘quality’ education. To name some

of these requirements such as:-

A. The necessary infrastructure requirement. B. Pupil teacher ratio which is 30:1 and C. The absolute necessity of trained as well as qualified

teachers.

21. Free and compulsory education for children becomes

meaningless if we make compromise on its ‘quality’. We must

recruit the best qualified teachers. A good teacher is the first

assurance of ‘quality’ education in a school. Any compromise on

8 Section 3 of the Right to Education Act, 2009. 9 Section 15 of the Right to Education Act, 2009. 10 Section 17 of the Right to Education Act, 2009. 13

the qualification of teachers would necessarily mean a

compromise on the ‘quality’ of education. Jacques Barzun, the

American educationalist and historian, in his seminal work

‘Teacher in America’, says “teaching is not a lost art, but the

regard for it is a lost tradition” 11. Though this comment was for

the state of higher education in America, it is equally relevant

here on the treatment of Primary education in our country, as it

emerges from the facts before us.

22. Elementary education in India is at two levels. A is the

‘Primary’ level i.e. class I to V, and B is the Senior primary level

i.e., classes VI to VIII. Presently we are only concerned with the

“primary level” of education.

23. Section 23 of the Act is extremely important as it not only

provides as to who shall determine the qualifications of teachers

in a Primary school, but as to who can relax these qualifications,

and for how long.

It reads as under :-

“Section 23. Qualifications for appointment and terms and conditions of service of teachers .—(1) Any person possessing such minimum

11 Barzun, Jacques. “Profession: Teacher”. Teacher in America, published by Little Brown 7 Co. in association with Atlantic Monthly Press, 1945, pp. 3-13 14

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 its 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:

[Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017.] (3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.” 15

24. Whereas sub-Section (1) of Section 23 is the provision

where the ‘academic authority’ has been empowered to prescribe

qualifications for teachers in elementary schools, sub-section (2)

of Section 23 empowers the Central Government to relax the

minimum ‘qualifications’ prescribed by the ‘academic authority’,

under certain circumstances and for a limited period.

The ‘Academic Authority’ under Section 23(1) of the Act is

the National Council for Teachers Education (NCTE), which

brought a notification on 23.08.2010, laying down the necessary

qualifications for teachers, both at primary, as well as upper

primary level. Inter alia, this notification prescribes as under:-

1. Minimum Qualifications: -

(i) Classes I-V

(a) Senior Secondary (or its equivalent) with atleast 50% marks and 2- year Diploma in Elementary Education (by whatever name known)

OR

Senior Secondary (or its equivalent) with atleast 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with NCTE (Recognition Norms and Procedure), Regulations 2002

OR

Senior Secondary (or its equivalent) with atleast 50% marks and 4-year Bachelor of Elementary Education (B.El.Ed.) 16

OR

Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education) AND

(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for its purpose.

The above notification dated 23.08.2010, does not provide

B.Ed. as a qualification for appointment to the post of primary

school teachers. Later this notification was amended, but B.Ed.

was never included (till the impugned notification dated

28.06.2018), as an essential qualification for teachers of primary

school i.e. for classes I to V.

A candidate for the post of a teacher in a primary school was

to have these three qualifications.

A. He must have passed higher secondary level. B. He must have a Diploma in elementary education

(D.El.Ed.), by whatever name it was called in that State. C. He should then pass an examination to be conducted by

the State known as Teachers Eligibility Test or TET.

25. The academic authority, which is NCTE considered the

appointment of trained and qualified teachers as an absolute 17

necessity in primary schools. It is for this reason that the

qualification which was prescribed for a teacher in primary school

was a diploma in elementary education (D.El.Ed.), and not any

other educational qualification, including B.Ed. Apart from this

the teachers eligibility test or TET would further test the skills of

a candidate to handle students at primary level.

It must be emphasised that the pedagogical approach

required from a teacher at primary level is in some manners

unique. These are the initial formative years where a student has

just stepped inside a classroom, and therefore needs to be

handled with care and sensitivity. A candidate who has a diploma

in elementary education (D.El.Ed.) is trained to handle students

at this level, as he has undergone a pedagogical course

specifically designed for this purpose.

The ‘Academic Authority’ which is NCTE is mandated by the

Act to set up a curriculum and evaluation procedure for the all

round development of a ‘child’, mindful of all the fears and

anxieties which a child may have. Section 29 of the Act reads as

under :-

29. Curriculum and evaluation procedure.— (1) The curriculum and the evaluation procedure for elementary education shall be laid down by an 18

academic authority to be specified by the appropriate Government, by notification.

(2) The academic authority, while laying down the curriculum and the evaluation procedure under sub-section (1), shall take into consideration the following, namely:—

(a) conformity with the values enshrined in the Constitution;

(b) all round development of the child;

(c) building up child's knowledge, potentiality and talent;

(d) development of physical and mental abilities to the fullest extent;

(e) learning through activities, discovery and exploration in a child friendly and child-

centered manner;

(f) medium of instructions shall, as far as practicable, be in child's mother tongue;

(g) making the child free of fear, trauma and anxiety and helping the child to express views freely;

(h) comprehensive and continuous evaluation of child's understanding of knowledge and his or her ability to apply the same.”

As we can see the curriculum and evaluation procedure

which the ‘Academic Authority’ is mandated to set up requires a

pedagogical approach which can be best given by teachers who

are trained to deal with child students.

19

A person who has a B.Ed. qualification has been trained to

impart teaching to secondary and higher secondary level of

students. He is not expected to impart training to primary level

students.

In order to appreciate the difference between Diploma in

Elementary Education (it is called by different names in each

State), and Bachelor of Education (B.Ed.), we look no further

than the Notifications issued by National Council for Teacher

Education (NCTE) itself from time to time.

The Appendix 2 to the NCTE Regulations, 2009 spells out as

to what is the aim of Elementary Education. It is stated to be as

follows:

“1. Preamble

1.1 The Diploma in Elementary Education (D.El.Ed) is a two year professional programme of teacher education. It aims to prepare teachers for the elementary stage of education, i.e. classes I to VIII. The aim of elementary education is to fulfill the basic learning needs of all children in an inclusive school environment bridging social and gender gaps with the active participation of the community.

1.2 The elementary teacher education programme carries different nomenclatures such as BTC, J.B.T, D.Ed. and (Diploma in Education). Henceforth, the nomenclature of the programme shall be the same across all states and it 20

shall be referred to as the ‘Diploma in Elementary Education’(D.El.Ed).”

The same Regulation in its appendix 4 describes B.Ed as

follows:

"1. Preamble The Bachelor of Education programme, generally known as B.Ed., is a professional course that prepares teachers for upper primary or middle level (classes VI-VIII), secondary level (classes IX-X) and senior secondary level (classes XI-XII). The programme shall be offered in composite institutions as defined in clause (b) of Regulations 2.”

It is therefore clear that a B.Ed. course is not designed for

teaching at primary level.

Moreover, the inclusion of B.Ed. candidates for primary

classes is in the teeth of several decisions of this Court, as this

Court has consistently held that Diploma in elementary

education (D.El.Ed.) and not B.Ed., is the proper qualification in

Primary Schools.

26. In Dilip Kumar Ghosh and Others versus Chairman and

Others12, this Court had to decide on the question whether B.Ed

degree candidate can be equated with a candidate who holds

training in Primary School teaching or in other words who is

trained specifically for Primary Schools. The Contention of the

12 (2005) 7 SCC 567 21

appellants (in the aforesaid case) who were B.Ed. candidates was

that, their course (B.Ed.), equips them to teach Primary Classes.

Their contention was rejected by this Court. In Para 9, it stated

as under:

“In B.Ed. curriculum such subjects like child psychology are not found. On the other hand, the curriculum is of a generic nature and deals with subjects like the principle of educational-curriculum studies, educational psychology, development of education in modern India, social organization and instructional methods, etc.”

Then again in Para 10 it was stated as under:

“…………For teaching in the primary school, therefore, one must know the child psychology and development of a child at a tender age. As already noticed, the candidates like the appellants who are trained in B.Ed. degree are not necessarily to be equipped to teach the students of primary class. They are not trained and equipped to understand the psychology of a child of tender age.”

In P.M. Latha and Another versus State of Kerala and

Others13 the argument that B.Ed. qualification is a higher

qualification than Diploma in Elementary Education (D.El.Ed.)

was rejected. Again, it was a case before the Apex Court where

B.Ed candidates, were claiming appointment as Primary School

teachers on the basis of the claim that their educational

qualification (i.e. B.Ed.) was even higher than the Diploma in

13 (2003) 3 SCC 541 22

Elementary Education (D.El.Ed.) which was held by the other

candidates. In para 10 of the said case, it was stated as under:

“We find absolutely no force in the argument advanced by the respondents that B.Ed. qualification is a higher qualification than TTC and therefore, the B.Ed. candidates should be held to be eligible to compete for the post…………….”

These findings were reiterated by Supreme Court in Yogesh

Kumar v. Government of NCT, Delhi 14, holding that though

B.Ed. is a well-recognized qualification in the field of teaching, yet

it is a training which equips a candidate to teach higher classes,

not classes at primary level.

27. B.Ed. is not a qualification for teachers at Primary level of

schooling. The pedagogical skills and training required from a

teacher at Primary level is not expected from a B.Ed. trained

teacher. They are trained to teach classes at higher level, post

primary, secondary and above. For Primary level i.e. class I to

class V the training is D.El.Ed or what is known as diploma in

elementary education. It is a D.El.Ed. training course which is

designed and structured to impart skills in a teacher who is to

teach Primary level of students.

14 (2003) 3 SC 548 23

Therefore, by implication the inclusion of B.Ed. as a

qualification amounts to lowering down of the ‘quality’ of

education at Primary level. ‘Quality’ of education which was such

an important component of the entire elementary education

movement in this country, which we have discussed in the

preceding paragraphs of this order.

28. We are also conscious of the fact that, till the notification

dated 28.06.2018, the consistent policy of NCTE had been to

exclude B.Ed. candidates from the eligibility criteria of Primary

School Teachers. In the 23.08.2010 notification – the first given

by NCTE in its capacity as the “academic authority” under

Section 23 of the RTE Act, which has been referred in the

preceding paragraphs, B.Ed. qualified teachers were not

considered for primary classes. All the same, purely in order to

equip the various State governments to establish enough training

colleges/centres for imparting specialised training centres for

elementary teachers, the B.Ed. candidates were to continue for a

very limited period.

29. This was during the initial period starting from the year

2010 onwards, when the Act and the subsequent order of NCTE

laid down the qualifications for Primary School Teachers 24

throughout the country. But essentially B.Ed. qualified teachers

were kept out from the purview of the eligibility of the teachers in

primary schools as B.Ed. was not considered a “qualification” for

teachers at primary level.

The inherent pedagogical weakness in B.Ed. courses (for

primary classes), is well recognised, and it is for this reason that

in the impugned notification itself it is provided that B.Ed.

trained teachers will have to undergo a six months training in

elementary classes, within the first two years of their

appointment.

In this background, the inclusion of B.Ed. candidates for

primary level classes is beyond our comprehension.

We have seen so far that the need for ‘quality’ and

meaningful primary education was emphasized by the legislature

as well as by the academic authority all throughout. In primary

education, any compromise on ‘quality’ of education would mean

going against the very mandate of Article 21A and the Act. The

value of Primary education can never be overstated.

Myron Weiner in his important book on Child Labour in

India15, links child labour problems in India to the lack of

15 Weiner Myron (1991) : The Child and the State In India in Comparative Perspective -- 25

effective measures in the past in the field of elementary

education. Great care must be taken to nurture these institutions

as our future takes shape in these classes. Victor Hugo had

famously said ‘one who opens a school door, closes a prison.’

Children still working in hazardous environment and juveniles in

conflict with law, in some measure, do point towards the

weakness in our elementary education system, both on its

accessibility and its ‘quality’.

The pedagogical skills of a teacher must be given a very high

priority. But our priority seems to be different. It is not to impart

‘quality’ education, but to provide more job avenues to B.Ed.

trained candidates, as this seems to be the only reason for their

inclusion, in presence of overwhelming evidence that B.Ed.

course is not a suitable course for primary classes.

The material which has been placed before this Court in the

form of official communications and meetings at the highest level

makes it clear that in the present case the decision taken by

NCTE is not an independent decision of an expert body which is

created by the statute and mandated to take independent

decisions. The aim of NCTE is to improve the standard of

Princeton University Press 26

education and not to provide further avenues for employment to

B.Ed. trained teachers. We may also mention that this is being

done when teachers trained in elementary education can be

employed only as teachers in elementary schools and nowhere

else, when compared to B.Ed. qualified teacher, who can be

employed in senior elementary classes (VI to VIII), as well as

secondary and higher secondary classes. It is therefore in any

case not fair on the Diploma holders, who will now be seeing the

only space available for them shrinking further.

The inclusion of B.Ed. as a ‘qualification’ was done by the

notification dated 28.06.2018, which was impugned before the

Rajasthan High Court. This notification is reproduced below: -

“National Council for Teacher Education Notification New Delhi, the 28th of June, 2018 F. No. NCTE-Regl 012/16/2018-In exercise of the powers conferred by sub-section (1) of Section 23 of Right to Children to Free and Compulsory Education Act, 2009 (35 of 2009) and in pursuance of notification number S.P. 750(E), dated the 31st March, 2010 issued by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, the National Council for Teacher Education (NCTE) hereby makes the following further amendments to the notification number F.N. 61-03/20/2010/NCTE/(N&S), dated the 23rd August, 2010 published in the Gazette of India, Extraordinary, Part III, Section 4, dated the 25th August, 2010 hereinafter referred to as the said notification namely:-

27 (1) In the said notification, in para 1 in sub-para (i), in clause (a) after the words and brackets “Graduation and two year Diploma in Elementary Education (by whatever name known), the following shall be inserted, namely:-

OR “Graduation with at least 50% marks and Bachelor of Education (B.Ed.)”

2. In the said notification in para 3, for sub-para (a), the following sub-para shall be substituted namely:-

“(a) who has acquired the qualification of Bachelore of Education from any NCTE Recognized institution shall be considered for appointment as a teacher in classes I to V provided the person so appointed as a teacher shall mandatorily undergo a six month Bridge course in Elementary Education recognized by the NCTE, within two years of such appointment as primary teacher” (Emphasis supplied)

30. The sequence of events, which are now well established by

the documents which were placed before the Rajasthan High

Court and before this Court, make it clear, that the decision to

include B.Ed. as a qualification was apparently triggered by a

letter of the Commissioner of KVS 16, who made a request

requested that since in the Primary classes of Central Schools

sufficient number of trained Diploma holders are not available,

they may be permitted to appoint B.Ed. qualified teachers, who

are readily available. The Ministry takes cognizance of this letter,

meetings are held and ultimately it directs NCTE to appoint B.Ed.

16 Kendriya Vidyalaya Sangathan – An autonomous body under Ministry of Education, Government of India, which looks after the management of Central Schools throughout the country.

28

trained teachers not just in central schools but in primary

schools throughout the country, which would include State run

schools. The sequence of how it happened is as under.

A meeting was held on 28.05.2018 in the Ministry of

Human Resource Development, headed by the Minister

concerned. In the meeting it was decided to recognize B.Ed. as an

additional eligibility criterion for the appointment to the post of

primary teachers in KVS Schools. This was followed by a note on

the very next day, i.e., 29.05.2018, which says that since B.Ed.

qualified candidates were eligible to be appointed as primary

teachers in KVS Schools, there should be no objection to

implement this direction in other schools as well. These

communications culminate in a letter dated 30.05.2018 issued by

the Ministry of Human Resource Development, which was in the

form of a direction issued under Section 29 of the NCTE Act

which required NCTE to amend the eligibility criteria to include

B.Ed. qualified candidates as Primary Teachers. Complying with

the above directions, NCTE issued the impugned notification on

28.06.2018.

29

The minutes of the meeting dated 28.05.2018, disclose the

reason as to why B.Ed. should be included as a qualification.

These minutes state as under :-

“…...

2. The matter was considered in this Ministry and HRM has approved the proposal of KVS to recruit primary teacher with higher qualification (i.e. B.A./B.Sc., B.Ed.+ TET). Further, HRM has also directed that NCTE may amend the qualification and make B.A./B.Sc., B.Ed. also eligible for teaching at Primary level with provision of completing Pedagogical module in 2 years of joining the service, these directions were conveyed to NCTE on 12.04.2018, however, the action is still pending at their part.

3. The matter was again discussed and deliberated in detail in the meeting held today (28th May, 2018) chaired by HRM and attended by Special Secretary, Chairperson, NCTE, MS, NCTE, Joint Secretary (SE.I) and KVS Commissioner. KVS Commissioner raised the issues of insufficient number of candidates applying for the post of Primary teachers and candidates applying from few states rather than across the country. It was informed by MS, NCTE that approximately 7.5 lakh seat are available for D.El.Ed across the country out of which 50% seats are filled. However, the TET pass D.El.Ed.

candidate would be much less as the result of TET varies from 6% to 16%. This makes the availability of eligible D.El.Ed. candidates much less than the desired. HRM also pointed out the need for better equipped teachers to ensure quality education in schools. Recruitment of Teachers with higher qualifications will ultimately be beneficial and in the interest of the students.

4. In addition to above, NCTE will roll out four year B.Ed. integrated course from next academic year, therefore, the prevalent D.El.Ed./B.Ed. etc will phase out in time bound manner. Further similar kind of request has also been from the state of Uttrakhand.

30

5. In view of the above discussions, HRM directed NCTE to change its regulations, Directions are required to be given under section 29 of the NCTE Act, 1993. Section 29 of the NCTE Act is as follows:

(1) The Council shall in the discharge of its functions and duties under this Act be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time.

(2) The decision of the Central Government as to whether a question is one of policy or not shall be final. (6) We may request NCTE to submit draft notification to amend NCTE regulations at the earliest. The draft letter is attached for approval please. Once the draft notification is received, the same will be sent to Legislative Department for vetting with the approval of HRM.

Submitted.”

The minutes of the meeting dated 29.05.2018 state as

under :-

“Note dated 29.05.2018 Please place on file the letter from NCTE which was handed over to the HRM by the MS, NCTE during the meeting, the details of which have been referred to in the draft reply. The meeting clearly took the decision that in view of the facts presented by the Commissioner, KV and since the NCTE did not have any objection to permit KV schools to recruit primary teachers with higher qualifications, then there should be no objection to extending this to other schools, and therefore, this Ministry could issue directions to the NCTE under Section 29."

Letter dated 30.05.2018 from the Government to NCTE.

“Letter Dated 30.05.2018 Priority 31

F.No.11-15/2017-EE.10-Part (1) Government of India Ministry of Human Resource Development Department of School Education & Literacy

Shastri Bhawan, New Delhi, Dated the 30th May, 2018 To,

The Chairperson NCTE, Hans Bhawan, Bahadur Shah Zafar Marg, New Delhi – 110002.

Dear Madam, Kindly refer to the letter of even no. dated 12.04.2018 regarding request of Kendriya Vidaylaya Sangathan for recruiting primary teachers with higher qualifications i.e. B.A./B.Sc., B.Ed. plus TET pass and letter no. NCTE-REG1012/16/2018-

US(Regulation)-HQ dated 23.05.2018 received from NCTE regarding the same.

2. The above request has been considered in this Ministry. In order to safeguard the interest of the students and ensure the quality of education, the competent authority has decided to agree to the request of KVS to recruit Primary Teachers with Higher Qualifications. The insufficient number of eligible D.EI.Ed. candidates due to low pass percentage of TET examination has also become an issue for recruitment of primary teachers. Further, with the roll out of four year B.Ed. integrated course from next academic year, the existing D.EI.Ed./B.Ed. courses will be phased out in due course of time.

3. NCTE vide their letter No. NCTE-

REG1012/16/2018-US(Regulation)-HQ dated 23.05.2018 stated that “the MHRD may consider implementing the direction in the detailed noting of Hon’ble Minister of Human Resource Development, Government of India”. Further, in view of the facts 32

presented by the Commissioner, KV and since the NCTE did not have any objection to permit KV schools to recruit primary teachers with higher qualifications, then there should be no objection to extending this to other schools. Therefore, considering the powers vested in MHRD under Section 29 of the NCTE Act, 1993, the NCTE Regulation 25.08.2010 (Determining qualification of teacher to be appointed at primary level Classes 1st to 5th) shall be amended to include that any person who has acquired the qualification of B.Ed. from any NCTE recognized course will also be considered for appointment as a teacher in classes 1st to 5th provided the person so appointed as a teacher shall mandatorily undergo a 6 month bridge course, which is recognized by NCTE, within two years of such appointment as primary teacher.

4. It is therefore, requested that the draft notification to amend the NCTE regulations may please be submitted to this Ministry. This may please be treated as most urgent.

With regards,

Yours Sincerely,

Sd/-

(Rashi Sharma) Director(TE)”

This is followed by the notification dated 28.06.2018, issued

by NCTE, which has already been referred above.

31. The sequence of events show that what started as an

exercise for consideration of B.Ed. qualified candidates as

teachers for Primary classes in Central schools, was expanded to 33

include all primary schools throughout the country. The

apparent reasoning given is that B.Ed. qualified candidates are

better suited for appointment as teachers in Primary schools, as

they have ‘higher qualifications’, and as such they should be

appointed as teachers in all Primary schools. Another reason for

doing this is the dearth of qualified TET candidates. The figures

given in the meeting suggests that only 6% to 16% of the

candidates who appear in the TET examination qualify the test.

The suggestion appears to be that with the inclusion of B.Ed.

candidates the number of TET qualified candidates would

increase. But this logic does not hold good when B.Ed. as a

qualification has not passed the basic pedagogical threshold for

teaching primary classes.

We have already examined this aspect in great detail. B.Ed.

is not a qualification for teaching at Primary level of classes,

much less a better or higher qualification, in context of Primary

classes. This finding is self-evident in the very admission of NCTE

which mandates that all B.Ed. qualified teachers who are

appointed to teach Primary level classes must mandatorily

undergo a pedagogical course for elementary classes within two

years of their appointment.

34

32. In Society for Unaided Private Schools of Rajasthan v.

Union of India & Anr. (supra) this Court while upholding the

validity of the RTE Act, held that primary education, which is

now a part of fundamental right under Part III of the

Constitution, has to be a meaningful education, and not just a

formality. When Diploma in elementary education (D.El.Ed.), was

placed as an essential qualification for teachers in Primary

school, it was with a purpose, and the purpose was to declare

only such teachers as qualified who are trained to impart

education to children at ‘primary level’. The pedagogy for a child

who has just entered the school, is an important consideration. A

child has come to face a “teacher”, so to speak, for the first time

in a class room. It is the beginning of a journey for the child

student and therefore world over great care is taken in laying

down proper foundations in these formative years. Well qualified

and trained teacher in elementary school is an extremely vital

aspect. A teacher must be trained to teach students at “primary

level”, and this is precisely what the training of Diploma in

elementary education (D.El.Ed.) does; it trains a person to teach

children at primary level. B.Ed. is not a ‘higher qualification’, or a

better qualification, as is being canvassed in its favour, while 35

comparing it with ‘Diploma in elementary education’. B.Ed. is a

different qualification; a different training. Even assuming it is a

higher qualification, it would still not be a suitable qualification

for primary level of classes. Unlike Diploma in elementary

education (D.El.Ed.), B.Ed. does not equip a teacher to teach at

primary level. This fact is implicitly recognised in the Notification

as well (notification dated 28.06.2018), which still requires a

person, who is appointed as a teacher with B.Ed. qualification to

‘mandatorily undergo a six-month Bridge Course in Elementary

Education’. This defeats the very logic of including B.Ed. as a

qualification, as the very notification which pushes for the

inclusion of B.Ed., also recognises its inherent pedagogical

weakness in its relation to primary classes. It is to cover this

defect, that all such candidates, must undergo a mandatory six

months Bridge Course in elementary education! The irony here

is that all this is being done when the State of Rajasthan already

has more than the required number of Diploma qualified

candidates available. This is besides the fact that there is

presently no such “bridge course” available; at least there was

none till the disposal of the petition by the Rajasthan High Court. 36

33. Under these circumstances, we are unable to comprehend

as to what was the pressing need to include B.Ed. candidates,

who are admittedly not fully trained to take up Primary Classes!

Consequently, the decision of the NCTE to include B.Ed. as a

qualification for teachers in a primary school seems arbitrary,

unreasonable and in fact has no nexus with the object sought to

be achieved by the Act i.e. Right to Education Act, which is to give

to children not only free and compulsory but also ‘quality’

education.

34. In our considered opinion therefore NCTE was not justified

in including B.Ed. as a qualification for appointment to the post

of primary school teacher (Level-1), a qualification it had so far

consciously kept out of the eligibility requirement. The Rajasthan

High Court by way of the Impugned Judgement had rightly struck

down the notification dated 28.06.2018, on the following

grounds:-

“(i) The impugned notification dated 28.06.2018 is unlawful because: -

(a) it is under the direction of the Central Government, which power the Central Government under Subsection (1) of Section 23 of the RTE Act did not have; and

(b) it is not in exercise of power of the Central Government under Sub-section (2) of Section 23 of RTE 37

Act relaxing the eligibility criteria prescribed by the NCTE, nor there has been any exercise for ascertaining existence of the conditions precedent for exercising such power.

(ii) The petitioners have locus standi to challenge the notification dated 28.06.2018. Merely because an additional qualification is recognized as one of the eligibility criteria, the petitioners cannot be prevented from challenging it.

(iii) Accepting a candidate with B.Ed. degree as eligible for appointment and thereafter subjecting him to complete the bridge course within two years of appointment is in the nature of relaxing the existing eligibility criteria, which the Central Government could have done only within Sub-section (2) of Section 23 and subject to existence of circumstances necessary for exercise of such power.

(iv) The State Government could not have ignored the notification of NCTE dated 28.06.2018 while issuing advertisement for REET. However, when we have declared that this notification is illegal and are in the process of setting aside, the issue becomes one of academic value.

35. One important aspect of the present case must now be dealt

with, on which much emphasis was laid by the counsel for the

appellant. The submission is that the Central Government in any

case is the final authority in deciding as to what qualification has

to be there for teachers and the NCTE is bound to follow the

directions of the Central Government in this regard. Reliance was

placed on two provisions of National Council for Teacher

Education Act, (NCTE Act), Section 12A and Section 29. We must 38

examine these provisions in the light of the submissions made

before us.

Section 12A of the Act, reads as under:

“12A. Power of Council to determine minimum standards of education of school teachers. -- 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 recognised 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 (18 of 2011) solely on the ground of non-fulfilment 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 (35 of 2009).]”

Section 12A was inserted in the NCTE Act that is after the

enactment of Right to Education Act, 2009. Section 12A only 39

compliments Section 23 of the Right to Education Act, which we

have already discussed in the preceding paragraphs.

Next, we come to the Section 29 of the NCTE Act which is as

under:

“29. Directions by the Central Government : (1) The Council shall, in the discharge of its functions and duties under this Act be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time.

(2) The decision of the Central Government as to whether a question is one of policy or not shall be final.”

It was submitted that by a notification dated 28.06.2018,

NCTE has only followed the directions of the Central Government

which are in the nature of a policy. Further it is also evident from

the minutes of the meeting dated 28.05.2018 where it was

clarified that the direction of the Central Government to include

B.Ed. as a qualification is a direction under Section 29 of the Act.

The NCTE is bound to follow the directions of the Central

Government in this regard and the direction in the present case

was to include B.Ed. as a qualification for teachers in primary

school, which has been done by NCTE through notification dated

28.06.2018, are the submission of the learned counsel for the

appellants as well as that of the learned ASG Ms. Aishwarya 40

Bhati on behalf of the Union of India. Moreover, as per sub-

Section (2) of Section 29, the decision of the Central Government

as to what constitutes a policy decision will ultimately matter, is

also the argument.

36. The introduction of B.Ed. as a qualification by NCTE on the

directions of the Central Government is a policy decision of the

Government, as has been submitted before this Court, and is also

evident from the sequence of events, the minutes of the various

meeting and the order passed in this regard. Section 29 of NCTE

Act which mandates that NCTE must follow the directions of the

Central Government in discharging of its functions. It is a policy

decision which binds NCTE.

We have absolutely no doubt in our mind that policy

decisions of the Government should normally not be interfered

with, by a constitutional Court in exercise of its powers of judicial

review. At the same time if the policy decision itself is contrary to

the law and is arbitrary and irrational, powers of judicial review

must be exercised.

A policy decision which is totally arbitrary; contrary to the

law, or a decision which has been taken without proper

application of mind, or in total disregard of relevant factors is 41

liable to be interfered with, as that also is the mandate of law and

the Constitution. This aspect has been reiterated by this Court

time and again.

Judicial review becomes necessary where there is an

illegality, irrationality or procedural impropriety. These principles

were highlighted by Lord Diplock in Council of Civil Service

Unions v. Minister for the Civil Service17 (commonly known as

CCSU case). The above decision has been referred by this Court

in State of NCT of Delhi v. Sanjeev18. This view was reiterated

again by this Court in State of M.P. & Ors. v. Mala Banerjee19 :-

“6. We also find ourselves unable to agree with the appellants' submission that this is a policy matter and, therefore, should not be interfered with by the courts. In Federation of Railway Officers Assn. v. Union of India [(2003) 4 SCC 289] , this Court has already considered the scope of judicial review and has enumerated that where a policy is contrary to law or is in violation of the provisions of the Constitution or is arbitrary or irrational, the courts must perform their constitutional duties by striking it down...”

17 (1984) 3 All ER 935 : 1985 AC 374 : (1984) 3 WLR 1174 (HL) 18 (2005) 5 SCC 181 19 (2015) 7 SCC 698 42

In Brij Mohan Lal v. Union of India20 this Court reiterated

on this aspect and made out a distinction as to where an

interference to a decision is required, and whereas it is not :-

“100. Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as:

(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.

(II) The change in policy must be made fairly and should not give the impression that it was so done arbitrarily on any ulterior intention.

(III) The policy can be faulted on grounds of mala fides, unreasonableness, arbitrariness or unfairness, etc.

(IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.

(V) It is dehors the provisions of the Act or legislations.

(VI) If the delegate has acted beyond its power of delegation.

101. Cases of this nature can be classified into two main classes: one class being the

20 (2012) 6 SCC 502 43

matters relating to general policy decisions of the State and the second relating to fiscal policies of the State. In the former class of cases, the courts have expanded the scope of judicial review when the actions are arbitrary, mala fide or contrary to the law of the land;

while in the latter class of cases, the scope of such judicial review is far narrower.

Nevertheless, unreasonableness, arbitrariness, unfair actions or policies contrary to the letter, intent and philosophy of law and policies expanding beyond the permissible limits of delegated power will be instances where the courts will step in to interfere with government policy.”

The decision whether to include or exclude B.Ed. as a

qualification for teachers in primary school is an academic

decision, which has to be taken after proper study by the

academic body i.e. NCTE and should be better left to this expert

body.

But as we have seen the decision to include B.Ed. as a

qualification is not an independent decision of NCTE, but it was

the decision of the Central Government and NCTE was simply

directed to carry it out for that being a direction under Section 29

of NCTE Act, a direction NCTE followed.

In the present case and in the larger context of the matter,

we cannot even see this as a policy decision. But without getting 44

into this argument, even presuming for the sake of argument that

the decision taken at the Government level to include B.Ed. as a

qualification for teachers at primary level is a policy decision, we

must say that this decision is not correct as it is contrary to the

purpose of the Act. In fact, it goes against the letter and spirit of

the Fundamental Right enshrined in the Constitution under

Article 21A. It is against the specific mandate of the Act, which

calls for a free, compulsory and meaningful primary education to

children. By including B.Ed. as a qualification for teachers for

primary school, the Central Government has acted against the

provisions of the Constitution and the laws. The only logic given

by the Central Government to include B.Ed. as a qualification is

that it is a ‘higher qualification’. This we have already seen is not

correct. Under these circumstances, we have no hesitation to say

that the notification has rightly been quashed and the decision of

the Division Bench of the Rajasthan High Court has to be upheld.

In our considered opinion therefore the direction of the

Central Government dated 30.05.2018 culminating in the

notification dated 28.06.2018 of NCTE are violative of the

principles as laid down in RTE Act. Not only this, the notification 45

goes against the purpose and the mandate of law, which is to

provide a meaningful and ‘quality’ primary education to children.

The entire exercise is also procedurally flawed. The

notification dated 28.06.2018 is not an independent decision of

NCTE taken after due deliberation, but it simply follows the

direction of the Central Government, a direction which fails to

take into consideration the objective realities of the day.

Having made the above determination we, all the same, are

also of the considered opinion that the State of Rajasthan was

clearly in error in not calling for applications from B.Ed. qualified

candidates, for the reasons that till that time when such an

advertisement was issued by the Rajasthan Government, B.Ed.

candidates were included as eligible candidates as per the

statutory notification of NCTE, which was binding on the

Rajasthan Government, till it was declared illegal or

unconstitutional by the Court. The Rajasthan High Court had

rightly observed as under :-

“..we are of the opinion that the State Government could not have ignored the notification while inviting applications for REET. Even if the State Government was of the opinion that such notification was unconstitutional or for any reason illegal, the 46

same had to be stayed or set aside by a competent court before it could be ignored.” [Para 45 of the Impugned Judgement]

What the Rajasthan High Court had stated above is the

settled legal position. In a recent three Judge judgment of this

Court in State of Manipur & Ors. v. Surjakumar Okram &

Ors.21 this position that a statute which is made by a competent

legislature is valid till it is declared unconstitutional by a court

of law; has been reiterated.

37. Consequently, the Appeals are dismissed and the judgement

dated 25.11.2021 of the Rajasthan High Court is upheld. The

notification dated 28.06.2018 is hereby quashed and set aside.

The Writ Petitions and all pending applications stand disposed of

in light of the above order.

…………………………..J. [ANIRUDDHA BOSE]

…………………………..J. [SUDHANSHU DHULIA] NEW DELHI 11th AUGUST, 2023.

21 2022 SCC Online SC 130