Ranu Hazarika & Ors vs State Of Assam & Ors

(Arising out of S.L.P (C) No. 17397 of 2009)

RANU HAZARIKA & ORS. -- APPELLANTS

VERSUS

STATE OF ASSAM & ORS. -- RESPONDENTS

WITH

CIVIL APPEAL NOS.2154-2167 of 2011

(Arising out of S.L.P (C) Nos. 19816-19829 of 2009)

&

CIVIL APPEAL NOS.2168-2170 of 2011

(Arising out of S.L.P (C) Nos. 10052-10054 of 2010)

J U D G M E N T

D.K. JAIN, J.:

1. Leave granted.

2. This batch of appeals, by grant of leave, arises out of judgments and or-

ders dated 9th April 2009, 22nd June 2009, 17th July 2009 and 18th Septem-

ber 2009 respectively passed by the Gauhati High Court at Guwahati.

By the impugned judgments, the High Court has held that the Assam Ele-

mentary Education (Provincialization) (Amendment) Rules, 2005 (for

short "the Amendment Rules, 2005") are ultra vires the provisions of the

National Council for Teacher Education Act, 1993 (for short "the Act")

and the Regulations framed thereunder.

3. The material facts leading up to the filing of the writ petitions before the

High Court may be stated as follows :

The National Council for Teacher Education (for short "the NCTE")

was set up in the year 1973 by a Government Resolution as a National Ex-

pert Body to advise the Central and State Governments on all matters per-

taining to teacher education. Since the role assigned to the NCTE was purely

advisory in nature, it had very little impact on the standards of teacher train-

ing institutions in the country and on their unplanned growth. Therefore, in

order to empower the NCTE to make qualitative improvements in the sys-

tem of teacher training, in the year 1993, the Act was enacted by the Parlia-

ment giving statutory recognition to the NCTE. It is manifest from the Pre-

amble to the Act that it had been enacted with a view to achieving planned

and coordinated development; and proper maintenance of norms and stand-

ards in the teacher education system etc. throughout the country.

4. Section 12 of the Act enumerates the functions of the NCTE. Primarily,

it provides that it shall be the duty of the NCTE to take all such steps as it

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may think fit to ensure that there is planned and coordinated development

of teacher education and proper standards in that behalf, determined by it,

are maintained. For achieving the object for which the Act was enacted,

several functions enlisted in the Section have been assigned to the NCTE,

which includes laying down guidelines in respect of minimum qualifica-

tions for a person to be employed as a teacher in schools or in recognized

institutions. Section 32 of the Act confers on the NCTE power to make

Regulations. Sub-clause (d)(i) of sub-section (2) of Section 32 provides

that the NCTE may lay down minimum qualifications for a person to be

employed as a teacher under clause (d) of Section 12. Under Section 33

of the Act, the Regulations made by the NCTE are required to be laid be-

fore each House of Parliament and it is only upon due approval of such

Regulations or upon modifications as may be made by the Parliament

that the Regulations take effect.

5. In exercise of powers conferred on the NCTE under Section 32(2)(d)(i)

of the Act, it framed a set of Regulations viz. National Council for

Teacher Education (Determination of Minimum Qualifications for Re-

cruitment of Teachers in Schools) Regulations, 2001. In the schedule to

the said Regulations, the minimum academic and professional qualifica-

tions for recruitment of teachers at different levels have been stipulated.

3 In so far as, the elementary/primary schools are concerned, the qualifica-

tions prescribed by the schedule are as follows :

"(i) Senior Secondary School Certificate.

(ii) Diploma of certificate in basic teachers training of a dura-

tion of not less than two years,

Or

Bachelor of Elementary Education (B.E.Ed)"

The said Regulations further contemplated that the existing Recruitment

Rules would be modified within a period of three years so as to bring such

Rules in conformity with the qualifications prescribed in the schedule to the

Regulations.

6. In the State of Assam, in March 1999, a pre-service teacher's training

course of two years duration leading to award of diploma had been intro-

duced and the admission to the said course was regulated by an advertise-

ment published in the newspapers on 14th April, 1999. In the said advert-

isement, it was mentioned that the pre-service training course leading to

an award of diploma in education, for which applications were invited,

had been designed to secure improvement of the professional skill of the

persons to be recruited as teachers in elementary schools against the va-

cancies that will occur in the near future. Admittedly, most of the writ

petitioners had applied for joining the diploma course pursuant to the said

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notice/advertisement and thus, completed the two years course leading to

the award of diploma. After the commencement of the said course in the

year 2000, two batches, totalling 900 persons, completed the course,

qualified and were awarded diploma. However, the State Government

discontinued the course with effect from the year 2003.

7. It seems that on the insistence of the NCTE, the State of Assam amended

the Assam Elementary Education (Provincialization) Rules, 1977 with ef-

fect from 10th November, 2005. By the said amendment instead of mak-

ing the requirement of a diploma in teachers training mandatory, as stipu-

lated in the Regulations framed by the NCTE, it was provided that prefer-

ence to trained candidates will be given. Schedule-I to the amended

Rules stipulated that such preference will be in the form of 10 additional

marks to trained teachers in the selection process for the recruitment of

teachers. Having carried out the said amendment, an employment notice

dated 2nd December, 2005 was issued in the newspapers inviting applica-

tions for filling up 5372 posts of Assistant Teachers. The prescribed

minimum educational qualification was higher secondary, with prefer-

ence to trained candidates.

8. Being aggrieved by the said amendment which waived the requirement of

a diploma for selection of teachers, a group of writ petitions were filed,

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seeking quashing of the Amendment Rules, 2005, inter-alia, on the

ground that the amendment was not in conformity with the Statutory

Regulations framed by the NCTE. A prayer for setting aside advertise-

ment dated 2nd December 2005 was also made.

9. In the writ proceedings, the State chose not to spell out its stand on the is-

sue, inasmuch as neither a counter affidavit on its behalf was filed nor

any instructions were imparted to the counsel representing it before the

High Court. Under the given circumstances, the High Court proceeded to

decide the writ petitions on the basis of the material available on record.

10.As stated above, by the impugned judgment, the High Court has struck

down the Amendment Rules, 2005, observing thus :

"15. In the present group of cases, as already noticed, the

State has neither filed an affidavit nor has the State taken any

particular stand before the Court. No compelling reasons dic-

tated by public interest have been disclosed by the State to en-

able the Court to understand that the provisions of the Amend-

ment Rules, though in departure from the Regulations framed

by the Council, is dictated by acceptable reasons in public in-

terest. Though in the course of the hearing the learned Standing

Counsel of the Department has pointed out that in the State of

Assam teachers in lower Primary schools are required to under-

go a Basic training course after their appointment and till com-

pletion of the said course such teachers are not put on the regu-

lar scale of pay, the said facts cannot constitute adherence or

even substantial compliance with the provisions of the Regula-

tions in as much as the Regulations prescribe completion of the

teachers training course as a positive condition of eligibility

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which is conspicuously absent in the Amendment Rules. The

failure of the State to show any compelling or supervening cir-

cumstances justifying the said departure from the Regulations

has, therefore, to be understood by the Court to be due to the

absence of any such reasons. In such a situation, the require-

ment of adherence to the statutory Regulations framed by the

Council cannot be left to be determined at the discretion of the

authorities of the State Government of Assam. That apart, the

Regulations framed (sic) by the Council has the effect of enhan-

cing the quality of education at the primary level and in the ab-

sence of any compelling reason to justify a departure therefrom,

the Court would lean in favour of an interpretation that would

advance the cause of quality education in the State.

16. Consequently and in the light of the foregoing discus-

sions the provisions of the Assam Elementary Education (Pro-

vincialization) (Amendment) Rules, 2005 insofar as giving

of preference to trained teachers is concerned is held to be in-

valid being contrary to the provisions of the National Council

for Teachers Education Act, 1993 and the Regulations framed

thereunder. As a corollary thereto, it will now be incumbent on

the part of the State Government to revive the training institutes

for imparting pre-service teachers training of two years duration

leading to award of diploma."

Insofar as the recruitment process initiated by the issue of advertisement

dated 2nd December 2005 by the State Government, granting preference to

the trained teachers was concerned, the High Court observed that since the

Amendment Rules, 2005, which had now been adjudged as illegal and ultra

vires the Act, were in force when the said advertisement was issued, if the

State is inclined to complete the recruitment process initiated pursuant to

the said advertisement, it may be completed in terms of the said advertise-

ment. However, henceforth and in the future, the process of recruitment of

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teachers in the lower Primary Schools will have to conform to the require-

ment of academic and professional qualifications spelt out by the National

Council for Teachers Education (Determination of Minimum Qualifications

for Recruitment of Teachers in Schools) Regulations, 2001.

11. Being aggrieved with the observations in respect of advertisement dated

2nd December 2005, the diploma holders are before us in these appeals.

12.At the outset, it is pertinent to note that the State Government has not

questioned the correctness of the impugned judgments. However, in the

counter affidavit filed on behalf of the State, it is stated that in further-

ance of the recruitment process, a select list had been prepared by the

District Committees but the same could not be published because of cer-

tain directions by the Gauhati High Court in another set of cases filed for

regularization of OBB teachers.

13.We have heard Mr. R.F. Nariman, learned senior counsel appearing for

the appellants and Mr. Avijit Roy, learned counsel for the State.

14. It was submitted by learned counsel for the appellants that having de-

clared the Amendment Rules, 2005 as illegal, the High Court fell into an

error in not setting aside the entire selection process initiated vide em-

ployment notice dated 2nd December, 2005. It was asserted that once the

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Amendment Rules, 2005, on the basis whereof the said notice was issued,

had been declared as null and void, the High Court had no option but to

quash the entire recruitment process.

15. Learned counsel appearing for the State, on the other hand, submitted

that since the High Court had left it to the State to take decision in respect

of the selection process initiated vide advertisement dated 2nd December

2005, the State Government in its own wisdom decided to go ahead with

the said selections, though appointment letters had not yet been issued to

the selected candidates.

16. Having bestowed our anxious consideration to the matter, we are of the

opinion that the decision of the High Court, permitting the State Govern-

ment to continue with the recruitment process, initiated on the basis of

the Amendment Rules, 2005 which have been declared by it to be illegal

is clearly indefensible. Having clearly held that "the requirement of ad-

herence to the Statutory Regulations framed by the NCTE cannot be left

to be determined at the discretion of the authorities of the State Govern-

ment and that there was no compelling reason with the State to justify a

departure from the Statutory Regulations, any action under illegal rules

would be null and void", the High Court could not have permitted the

State Government to perpetuate an illegality. To say the least, we are

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equally amazed by the stand of the State Government. Having failed to

sustain the Amendment Rules, 2005 before the High Court, it would be

improper for the State to go ahead with the recruitments under the said

amended Rules which have been declared null and void, particularly

when the decision of the High Court on that issue has not been ques-

tioned by it. We are of the view that the impugned observation by the

High Court would be clearly inimical to the rule of law. While it is trite

that Courts can exercise judicial discretion in moulding the relief,

however, such discretion cannot be exercised to perpetuate and encour-

age an illegality. (See : M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu

& Ors.1)

17. For the foregoing reasons, the appeals are allowed; the leave granted by

the High Court to the State to complete the selection process in terms of

employment notice dated 2nd December, 2005 is set aside and the said no-

tice (dated 2nd December, 2005) is also quashed.

18.However, in the facts and circumstances of the case, we make no order as

to costs.

...........................................

1 (1999) 6 SCC 464

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(D.K. JAIN, J.)

............................................

(H.L. DATTU, J.)

NEW DELHI;

FEBRUARY 28, 2011.

RS

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