Supreme Court: In a civil appeal against the common judgment of the Uttarakhand High Court, whereby the 18 months Diploma in Elementary Education (‘D.El.Ed.’) conducted through the Open and Distance Learning (‘ODL’) mode in elementary education by the National Institute of Open Schooling (‘NIOS’) is a valid Diploma for applying against the regular posts of Assistant Teachers (Primary) in the State of Uttarakhand. The Division Bench of B.R. Gavai* and Prashant Kumar Mishra, JJ. allowed the appeal and set aside the impugned order. The Court held that the finding that the 18 months D.El.Ed. Diploma (ODL) course in Elementary Education conducted by NIOS is equal to 2 years Diploma was erroneous.
Factual Matrix
The Central Government authorized the National Council for Teacher Education (‘NCTE’) as the academic authority for laying down the minimum qualifications for a person to be eligible for appointment as a teacher. On 12-11-2014, NCTE notified National Council for Teacher Education (Determination of Minimum Qualifications for Persons to be Recruited as Education Teachers and Physical Education Teachers in Pre-Primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014 (‘2014 Regulations’). Thereafter, the MHRD issued a letter on 03-08-2017 to all the Secretaries of States and Union Territories directing that all the teachers in Government Schools must possess minimum qualifications as mandated under the RTE Act and a last chance was being given to all such teachers to acquire minimum qualifications till 31-03-2019. A recognition order was issued by NCTE dated 22-09-2017, thereby conducting Diploma in Elementary Education (D.El.Ed.) programme through ODL mode by NIOS for in-service untrained teachers at elementary level working in Government, Government Aided and Unaided Private Schools. The said recognition order also reduced duration of diploma from 2 years to 18 months.
Analysis and Decision
The Court perused Section 23(1) of the Right of Children to Free and Compulsory Education Act, 2009 (‘RTE Act’), which provides that a person, to be eligible for appointment as a teacher, must possess such minimum qualifications, as laid down by an academic authority, authorised by the Central Government and Section 23(2) permits the Central Government to relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification. The Court said that this can be done when 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 Court noted that the Government of Uttarakhand notified the 2012 Service Rules and the minimum qualifications provided under the 2012 Service Rules was 2 years D.El.Ed. Thereafter, 2014 Regulations were notified providing for minimum qualifications.
Further, the Court noted that all such teachers working in either Government/Government Aided/Unaided Private Schools, were required to acquire the minimum qualifications by 31-03-2019 or they would face dismissal from service. A recognition order was issued in furtherance of the directions by MHRD, NCTE on 22-09-2017 for the implementation of the 2017 Amendment Act. The Court said that since the time-gap between the directions issued by MHRD and 31-03-2019 was only about 18 months, the period of course was reduced from 2 years to 18 months.
The Court found that the NCTE had clarified on 06-09-2023 that the minimum qualifications for appointment of teachers for Class I to VIII is a 2-year Diploma in Elementary Education and that the order dated 22-09-2017 was only for those untrained in-service teachers in Government/Government Aided/Unaided Private Schools, who were appointed on or before 10-08-2017.
Therefore, the Court said that the entire scheme was for the purpose of providing a window to the in-service teachers, unless they would have acquired requisite qualifications prior to 1-04-2019, they could not have continued to remain in service and would have faced dismissal from service.
The Court added that the view taken in Sanjay Kumar Yadav and Others v. State of Bihar CWJC No. 19842 of 2019, by the Patna High Court that the Director, Primary Education, NCTE had illegally issued direction that the persons, who had obtained D.El.Ed. course for 18 months by NIOS, are not eligible for appointment on the post of teachers in Primary Schools and that the said direction of the Director, Primary Education, NCTE was issued on misrepresentation and misreading of the clarification issued by NCTE, was erred. The Court held that the similar view taken in Sri Raju Nama and Others v. The State of Tripura and Others WP(C) No. 87 of 2020, relying on Sanjay Kumar (supra) by the Tripura High Court was not correct in law.
Hence, the Court held that the Patna High Court had erred in holding that the 18 months Diploma conducted by NIOS through ODL mode was equivalent to 2 years Diploma as provided in the notifications of NCTE. The Court said that the Patna High Court’s finding that since the communication addressed by NCTE to the Additional Chief Secretary, Bihar, did not mention non-equivalence, it would be deemed to be equivalent, was erred.
Referring to Employees’ State Insurance Corporation v. Union of India and Others, (2022) 11 SCC 392, the Court said that it is a trite law that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, it can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. The Court added that it is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules, however, instructions can be issued only to supplement the statutory rules but not to supplant it.
The Court concluded that the High Court’s finding that the 18 months D.El.Ed. Diploma (ODL) course in Elementary Education conducted by NIOS is equal to 2 years Diploma was erroneous as there is no notification to that effect issued by NCTE in supersession of its notifications dated 23-08-2010 and 29-07-2011, wherein it provided minimum 2 years Diploma as a minimum qualification for appointment of teachers.
Therefore, the Court allowed the appeal and set aside the impugned order of the High Court.
[Jaiveer Singh v. State of Uttarakhand, 2023 SCC OnLine SC 1584, Decided on: 28-11-2023]
*Judgement Authored by: Justice B.R. Gavai
