whether it is permissible to appoint teachers for basic education who do not have the requisite statutory qualifications?
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9529 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 32599 OF 2015)
State of U.P. & Anr. etc. ...Appellants
Versus
Anand Kumar Yadav & Ors. etc. ...Respondents
3.1 Brief factual matrix may be noted. U.P. Basic Education Act, 1972 (the 1972, Act) was enacted to regulate and control basic education in the State of U.P. Section 19 of the 1972, Act authorizes the State Government to make rules to carry out the purpose of the Act. U.P. Basic Education (Teachers) Service Rules, 1981 (1981 Rules) lay down sources of recruitment and qualification for appointment of teachers. The National Council for Teachers’ Education Act, 1993 (NCTE Act) was enacted by Parliament for planned and coordinated development for teacher education system. The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act, 2009) was enacted by the Parliament for free and compulsory education to all children of the age of 6 to 14 years. Section 23 provides for qualification for appointment of teachers. The NCTE was designated as authority under Section 23(1) to lay down the qualifications for appointment of teachers.
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The Statutory provisions and relevant documents
5. Significant provisions/ notifications to which reference is necessary are as follows :
(i) Section 23 of the RTE Act
“23. Qualifications for appointment and terms and conditions of service of teachers.-(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification: Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years. ... ...
(ii) Notification dated 23rd August, 2010 under Section 23(1) of the RTE Act :
“ Notification dated 23rd August, 2010
NATIONAL COUNCIL FOR TEACHER EDUCATION
NOTIFICATION
New Delhi, the 23rd August, 2010
F. No. 61-03/20/2010/NCTE/(N & S).-In exercise of the powers conferred by Sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), and in pursuance of Notification No. S.O. 750(E) :MANU/HRDT/0013/2010 dated 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 lays down the following minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII in a school referred to in clause (n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009, with effect from the date of this notification:-
1. Minimum Qualifications:-
(i) CLASSES I-V
(a) Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Elementary Education (by whatever name known)
OR
Senior Secondary (or its equivalent) with at least 45% marks and 2 year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002.
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El.Ed.)
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 Text (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.
(ii) Classes VI-VIII
(a) B.A/B.Sc. and 2 year Diploma in Elementary Education (by whatever name known)
OR
B.A/B.Sc. with at least 50% marks and 1 year Bachelor in Education (B.Ed.)
OR
B.A/B.Sc. with at least 45% marks and 1 year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard.
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor in Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 year BA/B.Sc. Ed or B.A.Ed./B.Sc. Ed.
OR
B.A./B.Sc. with at least 50% marks and 1 year B.Ed. (Special Education)
AND
(b) Pass in the Teacher Eligibility Text (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.
2. Diploma/Degree Course in Teacher Education:- For the purposes of this Notification, a diploma/degree course in teacher education recognized by the National Council for Teacher Education (NCTE) only shall be considered.
However, in case of Diploma in Education
(Special Education) and B.Ed (Special Education), a course recognized by the Rehabilitation Council of India (RCI) only shall be considered.
3. Training to be undergone:- A person-(a) with B.A/B.Sc. with at least 50% marks and B.Ed. qualification shall also be eligible for appointment for class I to V upto 1st January, 2012, provided he undergoes, after appointment, an NCTE recognized 6 month special programme in Elementary Education.
(b) with D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment, an NCTE recognized 6 month special programme in Elementary Education.”
(iii) Extract from NCTE Regulations, 2001 laying down qualifications for recruitment of teachers:-
III. Elementary “
(a) Primary
(i) Senior Secondary School certificate of Intermediate or its equivalent; and
(ii) Diploma or certificate in basic teachers training of a duration of not less than two years. OR Bachelor of Elementary Education (B EI Ed)
(b) Upper Primary (Middle school section)
(i) Senior Secondary School certificate or Intermediate or its equivalent; and
(ii) Diploma or certificate in elementary teachers training of a duration of not less than two years.
OR
Bachelor of Elementary Education (B EI Ed) OR Graduate with Bachelor of Education (B Ed) or its equivalent.”
(iv) Appendix-9 laying down norms and standards for diploma in elementary education through open and distance learning:-
"Preamble.--(i) The elementary teacher education programme through Open and Distance Learning System is intended primarily for upgrading the professional competence of working teachers in the elementary schools (primary and upper primary/middle). It also envisages bringing into its fold those teachers who have entered the profession without formal teacher training.
(ii) The NCTE accepts open and distance learning (ODL) system as a useful and viable mode for the training of teachers presently serving in the elementary schools. This mode is useful for providing additional education support to the teachers and several other educational functionaries working in the school system."
(v) Letter of the Central Government 8th November, 2010 for relaxation of norms fixed by NCTE :
“3. In order to enable the Central Government to provide relaxation under sub-section (2) of section 23 to a State, it is considered necessary to obtain relevant information from the State Government relating to demand of teachers and availability/ supply of qualified persons who are eligible for appointment as a teacher.
Accordingly, a State Government, which intends to seek relaxation under the said sub-section would be required to make a request to the Central Government by providing the following information:
(a) Quantitative information as per the format prescribed in the Annexure to the Guideline.
(b) Nature of relaxation sought, separately for classes I to V and VI to VIII, along with justification;
(c) The time period for which relaxation is sought;
(d) The manner in which and the time period within which the State Government would enable teachers, appointed with relaxed qualification, to acquire the prescribed qualification;
(e) The manner in which and the time period within which the State Government would enable existing teachers, not possessing the prescribed qualification, to acquire the prescribed qualification. Reference in this regard is invited to para 4 of the aforementioned Notification of the NCTE;
(f) Any other information the State Government may like to furnish in support of its request for seeking relaxation under section 23(2).
4. The condition of passing TET will be relaxed by the Central Government.
5. The Central Government will examine the request of the State Government based on the proposal submitted by the State Government and additional information which the Central Government may request the State Government to furnish, take a decision to issue Notification under section 23(2) of the Act. Only after the Notification is issued would the State Government or a local authority or any aided/ unaided school in the State appoint teachers with the relaxed qualification in accordance with terms and condition mentioned in the said Notification.”
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16. At the outset, we may note that fundamental right to free and compulsory education is one of the most important rights as without education one may never know his other rights. It goes without saying that right to education is right to quality education. Concern for unsatisfactory quality of education has been expressed by this Court on several occasions. This Court in Ashoka Kumar Thakur v. Union of India observed as under:
“422. In Unni Krishnan [1993] 1 SCC 645, Reddy, J. observed that the quality of education in government schools was extremely poor and that the schools were woefully inadequate to the needs of the children. He noted that many countries spend 6% to 8% of gross domestic product on education. Our expenditure on education is just 4% of GDP. 423. Though an improvement over past performance, the overall education picture leaves much to be desired. The bad news is really bad. Even where we have seen improvement, there is still failure. A survey by Pratham, an NGO, fleshes out the acute problems found in rural schools. (See ASER 2007—Rural Annual Status of Education Report for 2007, published on 16-1-2008.) The survey covered 16,000 villages. As Pratham indicates, there are an estimated 140 million children in the age group of 6 to 14 years in primary schools. Of these 30 million cannot read, 40 million can recognise a few alphabets, 40 million can read some words, and 30 million can read paragraphs. Over 55 million of these children will not complete four years of school, eventually adding to the illiterate population of India. The national literacy rate is 65%. 24 districts with more than 50,000 out of school children means we have failed 24 times over. 71 districts in which there are 60 students per teacher is just as bad, if not worse. According to Pratham (and in-line with the Ministry of HRD’s six-month review), the number of out of school children has hovered around 7,50,000. (p. 6) Moreover, it goes without saying that children need proper facilities. Today, just 59% of schools can boast of a usable toilet. (p. 49) 425. The quality of education is equally troubling. For Standards I and II, only 78.3% of students surveyed could recognise letters and read words or more in their own language. (p. 47) In 2006, it was even worse—only 73.1% could do so. It is disheartening to peruse the statistics for Standards III to V, where only 66.4% could read Standard I text or more in their own language in 2007. (p. 47) As Pratham stated at p. 7:
“What should be more worrying though, is the fact that in Class 2, only 9 per cent children can read the text appropriate to them, and 60 per 45 cent cannot even recognise numbers between 10 and 99.” ”
17. To make the right to education meaningful, a qualified teacher undoubtedly has significant role. In this regard we may quote with approval the following observations dealing with the importance of a trained teacher in the Full Bench judgment of the High Court in Shiv Kumar Sharma(supra):
“55. … … …The training of a child, that is an integral part of child development, is essential for his grooming, as a human mind, without proper training is like a horse without a bridle difficult to ride. Children in their cradle of life with the help of teachers can mould their lives for higher ambitions in their manhood. To assess and mould children with these ideals is the job of a skilled teacher and the art of such skill is pedagogy. Teachers have to serve the larger interest of the society as they are building the future. Henry Brooks Adams said, "A teacher affects eternity; he can never tell where his influence stops" and more appropriately Christa Mcauliffe said " I touch the future. I teach". This requires the possession of virtues like sacrifice and honour which in turn brings respect to the status of a teacher and infuses confidence in the pupil.
56. Many children are victims of apathy and wrongly motived parental treatment. Their emotional and skilful assessment, and proper treatment, has to be handled within the clinic of an elementary school where the sole physician is none else than a trained teacher. A candidate possessing a mere educational or a training qualification without any genuine attribute may not necessarily be a good teacher. 57. It is in this background that one may remember those who have contributed to this skilful art of pedagogy. In the modern world the great philosopher and Educationist Rousseau, followed by the Swiss Predecessor of his German Pupils, Pestalozzi, are worth remembering. They were followed by the famous Germans Herbart and Froebel. The English with Lancaster and Bell followed suit and in the modern world it would be improper to forget the great contributions of Maria Montessori.
58. We do not wish to pile up names but this is only to emphasize that a great scientific contribution has been made to this skilful art of pedagogy. If one goes through the works of these great people, one can understand that child development and teaching children is no easy task and cannot be confined with the acquisition of a couple of degrees as a supplement to the complete attribute required of a teacher. The narrow meaning of qualification therefore that was being pressed into service by Sri Rahul Agrawal cannot be countenanced in view of the vast ocean of understanding that is required of a skilful teacher.
59. In the instant case the skill of the teacher should be lined with such ingredients that it kindles the spark of a child and balances a group of mentally uneven children. The duty of a good teacher is to bring the student into contact with the learning of fruitful elements that ensue an enduring significance in life, affirmative information of all modes of intellectual, systematical and practical activity that play a major part in the building of human mind and spirit. Their interplay is the exercise that has to be undertaken by a teacher. This exercise, particularly, in a class room of infants should be underlined with methods that are elastic enough to fit the varying needs of different types of children. The cultivation of mental training and discipline is the prime object of good teaching. We celebrate 5th of September each year as Teachers' Day to commemorate the birth of our late President Dr. S. Radhakrishnan. He defined the good qualities of a teacher as follows: 47 A good teacher must know how to arouse the interest of the pupil in the field of study for which he is responsible, he must himself be a master in the field and be in touch with the latest developments in his subject, he must himself be a fellow traveler in the exciting pursuit of knowledge … … … … … … … … …
61. Describing the role model of teachers, our Former President of India Dr. A.P.J. Abdul Kalam, narrated his experience in his teachers' day speech on 5th September, 2003 and said that a school must have the best of teachers who have the ability to teach, love teaching and build moral qualities.
62. These are the challenges of teaching which have been referred to in the guidelines dated 11th February, 2011. It is in order to ensure that the candidate is possessed of such attributes. The guidelines further provide that a candidate will be presumed to have succeeded in the test if he scores 60% or more. Some confessions have been given for reduction in the said percentage in the case of scheduled caste, scheduled tribes, and other backward classes as well as differently abled persons.
63. The reason for this is that the art of teaching is designed to educate a child. Education is not mere acquisition of qualifications but is an overall development of a child to ensure growth and development. It is the awakening of the inner self and faculty of the child to the ways of the world. The teacher therefore should be possessed such qualities that he satisfies the curiosity of a child that enables him not only to read but to distinguish what is worth reading. The job of a teacher is not to fill the time-table with dull unintelligible tasks. This violates common sense and creativity brutally. Teaching and training cannot be effected in the absence of knowledge about the mind which is to receive them.
64. It is the systematic and purposeful construction of a personality, so that it leaves an everlasting effect on the mind. The job of a teacher is to get across the confidence in a pupil, that there were good reasons for everything the teacher did. He has to be transparent and he cannot leave a pupil to guess that there are any hidden answers. A good teacher would like the pupil to lead the way. The teacher would follow and let the pupil know that his efforts would be recognised. This confidence would help the child to develop a strength in himself to cope up with his own world by observing and solving problems. The art of teaching should not be confined only to oral transmissions because what one hears one can forget. However, what one sees, one remembers but what one. does he understands. This is what should teaching be comprised of. The teacher should therefore be in a position to infuse into a child such attributes that he or she acquires the ability to assume responsibility for himself/herself. A psychological independence that enables him/her to decide at the same time and differentiate right from wrong. This capacity of a child which lies concealed in him has to be discovered in a way that the child finds this world an interesting place to live in. For this good teaching may be 1/4th preparation and 3/4th performance.
65. A teacher is like a professional as said by Danny Hillis, "A layman knows he has to kick it; and an amateur knows where to kick it; a professional knows how hard." This quality should be possessed professionally by a teacher as the object of teaching a child is to enable him to get alone without a teacher.
66. The skill of such a performance has to be assessed because teaching is a great art to educate youth to enable him to find out and discover his own peculiar aptitudes or create where none exists. A teacher has to create inclinations in the child which may serve as substitutes. The level of inspiration that has to be infused in a child should be such that he is able to make a mark in life as a complete human being. One should remember that "millions see the apple fall, but Newton was the one to ask why?" The job of a teacher at the primary level is to generate this element of curiosity in a child.
67. For this teachers have to be attributed with qualities that they are able to handle the weak and the nervous, the mediocre and intelligent with measured skill. This expertise is a onerous task and is a substantial part of pedagogy. To teach a child to become self sufficient is the art which has to be developed with caution so as not to destroy the fragile confidence by using harsh methods. The teacher eligibility test appears to be designed for this purpose.
68. It is to be remembered that teachers are to impart education to those souls who are between the period of innocence of childhood and the folly of youth. It is this aspect of pedagogy to educate a child to lead life that attains importance.
69. The art of dealing with children also involves knowing what not to say, and on the other hand patiently answering the unpredictable questions of an inquisitive child. A teacher should not give answers to children to remember only, but he should be able to give them problems to solve. It is then that the potentiality of the human race is better put to use "because a child is not a vase to be filled but a fire to be lit." (Francois Rabelais) . A Chinese Proverb goes a long way to say "give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime." Teaching is infusing of ideas instead of stuffing the brain with facts. William Arthur Ward a famous educationist said that The mediocre teacher tells, a Good teacher explains, a Superior teacher demonstrates but the great teacher inspires."
70. Children come from different backgrounds often being victimised by unwise and wrongly motived parental treatment. The teacher has to be more careful for he is enjoined with the duty of child development. This therefore is the background-in which the teachers role attains immense significance. It is for such reasons that the Union 50 and the State appear to have come up with the necessity of a teacher eligibility test.
71. The importance of teaching and a teacher's selection should be to find out whether a candidate fulfils and is possessed of such attributes, that is capable of bringing out the best to ensure child development. "The art of teaching is the art of assisting discovery (Mark Van Doran)". This compulsory attribute is therefore to be assessed by the State while judging the capability of a teacher and which therefore is an essential qualification and not only a minimum qualification. The essential nature of this test therefore leaves no room for doubt that mere possession of educational qualification and a teachers training course is not sufficient to assess the capacity of a teacher.
72. Sir Winston Churchill while assessing the role of a teacher observed that the Head Masters of elementary schools have powers at their disposal with which even Prime Ministers have never been vested with. The reason is that the school master has to reckon not only with his pupils human tendency to run, but also with the unwisdom of parents in their early dealings with early tendency; elimination of wrong doing, not by plainly repressive methods is also one of the arts that has to be possessed by a skilful teacher.
73. All this goes to fulfil the objectives with which Article 45 of the Constitution of India was incorporated under the United Nations declaration which says that mankind owes to the child the best it has to give. An infant who does not know how to express himself, enters in an elementary school where he has to be taught his initial alphas and betas. The pronunciation, sentence-forming, elementary grammar and understanding of his first alphabets have to be installed in his mind with expertise. It is for this reason that the curriculum of the TET includes proficiency in the language of the medium of instruction, an optional language for a better understanding with the student, mathematics to assess the investigative strength of the mind and finally environmental studies to gauge the overall awareness of human life and nature. This has to be coupled with moral education and discipline and this entire combination in one performance is the skill of a teacher. He has to handle the weak and the nervous, the mediocre and intelligent, with an adequate measured skill for which a basic attribute with intelligence is required to be possessed by a teacher. A teacher cannot employ methods like knocking of a child because such methods do not always turn a timid boy into a courageous one nor does it turn a spoilt brat into an angel. Nonetheless it is useful to remember Bishop Fulton J Sheen who said "Every child should have an occasional pat on the back, as long as it is applied low enough and hard enough". For teachers and guardians the proverb "Give a child enough rope, and you will trip" is also a cautionary note. The acquisition of such expertise is what is desired to be assessed and that is what the teacher eligibility test is designed for. It is only to assess these qualities that would qualify a teacher for being appointed as such and therefore the teacher eligibility test is not a mere eligibility criteria but a qualification as prescribed in addition to the academic and training qualifications.
74. It would be apt to quote Charles Dickens in his famous book "Hard Times" where the quality of a teacher has been expressed from another angle as follows: “What I want is facts. Teach these boys and girls nothing but facts. Facts alone are wanted in life. Plant nothing else, and root out everything else.”
75. The role of teaching is therefore of a mediator of learning, a parent substitute, a controller of students' behaviour, an agent of social change and finally a judge of achievement. The teacher who enters a school imparting elementary education has to act like a group leader who can remove the hindrances of doubts in the mind of an infant and generate creative development. Above all he has to in still in the mind of a youngster all virtues of courage and honesty as this part of education is a vital portion of child development. It is in the early years that the importance of education has to be preached so as to achieve what a former U.S. President Garfield said "Next in importance to freedom and justice is education without which the other two cannot be entertained.” 18. In the impugned judgment the Full Bench of the High Court highlighted the importance of the prescribed TET qualification as follows: “93. The object and purpose of introducing the TET is to ensure that a teacher who embarks upon instructing students of primary and upper primary classes is duly equipped to fulfill the needs of the students, understands the relevance of education for a child at that stage and can contribute to the well rounded development of the child. Teaching a child is not merely a matter of providing information. Deeply embedded in the process of imparting education is sensitivity towards the psyche of the child, the ability to understand the concerns of a young student of that age, the motivations which encourage learning and the pitfalls which have to be avoided. The emphasis on clearing the TET is to ensure the maintenance of quality in imparting primary education. These requirements which have been laid down by NCTE fulfill an important public purpose by ensuring a complement of trained teachers who contribute to the learning process of children and enhance their growth and development. These requirements should not be viewed merely as norms governing the relationship of a teacher with the contract of employment. These norms are intended to fulfill and protect the needs of those who are taught, namely, young children. India can ignore the concerns of its children only at the cost of a grave peril to the future of our society. The effort of the State Government to by-pass well considered norms which are laid down by NCTE must be disapproved by the Court. We have done so on the ground that the State Government lacks the legislative power and competence to do so. Equally, fundamental is the concern that a relaxation of the 53 norms prescribed by an expert body will result in grave detriment to the development and growth of our young children and the provision of quality education to them. Providing quality education is crucial for students belonging to every strata of society. Education which is provided in schools conducted by the Basic Education Board should not be allowed to degenerate into education of poor quality which it will, if the norms which are prescribed by an expert body under legislation enacted by Parliament in the national interest are allowed to be ignored by the State Government on the basis of parochial or populist perceptions. Such an attempt is ultra vires the statutory powers of the State and is arbitrary and violative of Article 14 of the Constitution.” 19. We are in agreement with the above observations. We are unable to agree that even unqualified teachers ought to be allowed to continue ignoring the legislative mandate or that we should exercise our jurisdiction under Article 142 to undo the said mandate. Consideration for career of 1.78 lac Shiksha Mitras, over and above their legal right, cannot be at the cost of fundamental right of children to free quality education by duly qualified teachers in terms of legislative mandate.
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25. On the one hand, we have the claim of 1.78 Lakhs persons to be regularized in violation of law, on the other hand is the duty to uphold the rule of law and also to have regard to the right of children in the age of 6 to 14 years to receive quality education from duly qualified teachers. Thus, even if for a stop gap arrangement teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed. It may be permissible to give some weightage to the experience of Shiksha Mitras or some age relaxation may be possible, mandatory qualifications cannot be dispensed with. Regularization of Shiksha Mitras as teachers was not permissible. In view of this legal position, our answers are obvious. We do not find any error in the view taken by the High Court. 66 26. Question now is whether in absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference. In the peculiar fact situation, they ought to be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in terms of advertisements for recruitment for next two consecutive recruitments. They may also be given suitable age relaxation and some weightage for their experience as may be decided by the concerned authority. Till they avail of this opportunity, the State is at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides.