Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942 WP(C).No.15709 OF 2019(K) PETITIONER: BINDUMOL.M AGED 41 YEARS W/O. RAVEENDRAN, MEENCHIRAYIL HOUSE, CHAMPAD P.O, THALASSERY, KANNUR DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENTS:
1 THE DEPUTY SECRETARY/REGIONAL OFFICER CENTRAL BOARD OF SECONDARY EDUCATION, REGIONAL OFFICE, BLOCK B, 2ND FLOOR, LIC DIVISIONAL OFFICE CAMPUS, PATTOM, THIRUVANANTHAPURAM-695004. 2 THE JOINT SECRETARY/REGIONAL OFFICER, CENTRAL BOARD OF SECONDARY EDUCATION, REGIONAL OFFICE, BLOCK B, 2ND FLOOR, LIC DIVISIONAL OFFICE CAMPUS, PATTOM, THIRUVANANTHAPURAM-695004. 3 THE CHAIRMAN, PANOOR MES TRUST, M.E.S PUBLIC SCHOOL, KAIVELIKKAL, P.O. PUTHUR, KANNUR DISTRICT-670692. 4 THE CHAIRMAN, CENTRAL BOARD OF SECONDARY EDUCATION, SHIKSHA KENDRA, 2, COMMUNITY CENTRE, PREET VIHAR, DELHI-110301. R1-2, R4 BY SRI.NIRMAL S., SC, CBSE R3 BY ADV. SRI.TPM.IBRAHIM KHAN (SR.) R3 BY ADV. SMT.P.J.RAZIA BEEVI
OTHER PRESENT: R3- SRI. TPM IBRAHIM KHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.15709 OF 2019 -2-
JUDGMENT
Dated this the 15th day of October 2020
The petitioner who is a primary teacher in malayalam in M.E.S Public School, Panoor through instant writ petition has sought the indulgence of this Court for quashing of order Ext.P10 dated 02.05.2019 passed by 1 st respondent i.e., the Deputy Secretary/Regional Officer, Central Board of Secondary Education, Regional Office, Thiruvananthapuram.
2. As per the averments petitioner is a Malayalam
Graduate and T.T.C. holder. In addition to that she is also holder of an LLB degree. She has been working as a Malayalam Teacher in Primary Section of the 3 rd respondent School from 01.06.2000 to 25.08.2012 as per the experience certificate Ext.P1. In September 2012, she availed maternity leave. It was extended with the consent of the Principal of the 3rd respondent School. In view of certain dispute with regard to grant of proportionate
WP(C).No.15709 OF 2019 -3-
increment the 3rd respondent conducted a fresh interview of all teachers of the school, as if all were new appointments and issued fresh appointment orders. The petitioner when objected the same, the 3 rd respondent terminated her service on the ground that the petitioner did not have B.Ed Degree which has been prescribed by the CBSE as evident from termination order dated 31.03.2013 Ext.P2.
3. Learned counsel appearing on behalf of the
petitioner submits that Malayalam is a compulsory subject in primary school, especially in CBSE Schools. Petitioner having the requisite qualification prescribed by affiliation bye-laws of CBSE on the date of her appointment and therefore the ground of not having B.Ed degree is neither here and there. As per affiliation bye-law 17 of the CBSE, in Chapter V, the CBSE has power to withdraw the affiliation provisionally in the event institution is found guilty of various acts. The termination necessitated the petitioner to approach this Court by Writ Petition
WP(C).No.15709 OF 2019 -4-
No.13892/2013 and this Court vide order dated 21.06.2013 directed the 1st respondent to pass appropriate orders in the representation within the stipulated period. The 1 st respondent after holding enquiry found that the termination order was issued without issuing any show cause notice or affording of any opportunity and directed the 2nd respondent to re-examine the matter by holding an appropriate enquiry as per order dated 06.11.2013 Ext.P3.
4. Petitioner received a show cause notice dated
26.11.2013 on the ground that she was engaged as a Malayalam Teacher on contractual basis to teach in the Nursery and primary classes before the affiliation of CBSE and had not acquired a B.Ed Degree or directed to produce the Government order to the effect that TTC is equivalent to B.Ed Degree. It was next contended that the qualification required for a primary teacher as per affiliation bye-law Chapter IX, to teach class I to V is Higher Secondary with Junior Basic Teachers Training
(JBT) (Two years) or Intermediate/ Senior Secondary with WP(C).No.15709 OF 2019 -5-
JBT (one year). Petitioner replied that she had all the requisite qualifications to teach primary class and the contention that should obtain B.Ed degree was thus unwarranted. On 01.06.2000 petitioner was appointed and enrolled as a member of Employees Provident Fund as evident from Ext.P7. Vide Ext.P8 dated 27.04.2017 CBSE found that the services of the petitioner was terminated for not acquiring mandatory qualification of B.Ed as per the perusal of CBSE affiliation bye laws (Rule 53, Chapter IX) the qualification, prescribed for primary teacher (To teach class I-V) required, is Higher Secondary with JBT(Two years) or Intermediate /Senior Secondary with JBT (One year). The 3rd respondent approached this Court in W.P(C). No.17795 of 2017 and vide order dated 20.12.2018 this Court directed the 4th respondent to consider the appeal filed by the petitioner and pass appropriate order. Accordingly, vide impugned order, dated 02.05.2019 Ext.P10 ordered reinstatement the petitioner as primary teacher with immediate effect but noticed that Section 23
WP(C).No.15709 OF 2019 -6-
of the RTE Act and CBSE Affiliation Bye laws 2018 (amendment) to work as primary teacher, she is required to acquire the minimum qualification as laid down by National Council for Teacher Education vide notification dated 23.08.2010. It is contended that the petitioner received notice Ext.P11 dated 05.03.2020 of availing opportunity to obtain the degree of B.Ed upto 31.03.2020. The said notice Exts.P10 and P11 are not sustainable as the CBSE amended bye laws only in the year 2018 and the re-statement of the petitioner in 2000 cannot be treated as afresh but co-related the prior appointment and therefore bye laws which were in force at the relevant point of time would be applicable.
5. In support of the contention learned counsel for
the petitioner relied upon the notification dated 23.08.2010 issued by the National Council for Teacher Education whereby in exercise of the powers conferred by Sub-section (1) of Section 23 of the Right of Children Free and Compulsory Education Act, 2009 laid down minimum WP(C).No.15709 OF 2019 -7-
qualification for a person to be eligible for appointment as a teacher in Class I-VIII. As per Clause 4 (c) of the aforementioned notification, teachers appointed before the date of notification for Class I-VIII need not acquire the minimum qualification i.e., appointed before 03.09.2001, in accordance with the prevalent Recruitment Rules. The petitioner herein is covered by the aforementioned notification which has intentionally been withheld from the notice of this Court as only a part of the aforementioned notification has been relied upon in the counter by extracting paragraph No.1.
6. On the other hand, counsel representing the
college submits that it had complied with all the directions of the Central Board Education particularly the provisions of Section 23 of the Right to Education Act where the petitioner was required to obtain the B.Ed course in one year as per Ext.P11. At the time of appointment, the petitioner had not passed the B.Ed Degree which is an essential qualification for conducting classes in the CBSE
WP(C).No.15709 OF 2019 -8-
Schools and thus supported by Ext.P11. Vide show cause notice dated 09.12.2013, petitioner was directed to produce Certificate or Government order declaring that the TTE/TTC qualification possessed by her i.e., equivalent to B.Ed Degree or to produce B.Ed Degree Certificate. In her explanation it was admitted that TTE/TTC is not equivalent to B.Ed Degree and that it was impossible to bring such Government order. It is in that background the notice Ext.P11 was served.
7. Learned counsel representing the CBSE
submitted that as per Section 23 of the Right to Education Act the relaxation of five year has been extended upto 10.08.2021. Therefore the petitioner would have more time to obtain B.Ed Degree but the qualification of the petitioner i.e., JBT (Two years) or she had Intermediate/Senior Secondary with JBT (one year) would not be equivalent to B.Ed for the education of primary classes of I-V in CBSE affiliated schools.
8. I have heard learned counsel for the parties and WP(C).No.15709 OF 2019 -9- appraised the paper books.
9. Section 23 of the Right to Education Act reads as
under: “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 advocate institution offering courses or Training in Teacher Education, or teacher possessing minimum qualifications laid down under sub-section (1) are not available in sufficient numbers, the Central Government 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 notifications: 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. 3) The salary and allowance payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.”
10. CBSE in the reply stated that the person who did not WP(C).No.15709 OF 2019 -10-
possess minimum qualification at the commencement of the Act should acquire the same within a period of five years. But by way of an amendment in the aforementioned Act in the year 2017 the period has been extended till 10.08.2021. That is, going by the proviso to Sec.23 of the RTE Act, those teachers who do not possess the minimum qualification at the commencement of the Act, should acquire the same within a period of 5 years. It is understood that by the RTE (Amendment) Act, 2017, the period specified in the proviso to Sec.23 has been extended till 10/08/2021. The question which is raised is whether the qualification of the petitioner JBT (Two years) or Intermediate/ Senior Secondary with JBT (one year) is equivalent to B.Ed degree. In her reply to the show cause notice, in paragraph No.9 it is stated as under: "(9). In your show cause notice, you called upon me to produce certificate or Government order declaring that TTE is equivalent to B.Ed Degree and if you have already passed B.Ed degree, to produce the certificate so as to enable the Management to take you back to the service of the School". Such a direction is clearly an abuse of the
WP(C).No.15709 OF 2019 -11-
process as every prudent man knows that TTE is no equivalent to B.Ed. and it is impossible to bring such a Government order, declaring TTE is equivalent to B.Ed. I never claimed that TTE or TTC is equivalent to B.Ed., and therefore I should be taken back. Even in the Affiliation Bye-law of the CBSE clearly distinguished B.Ed and TTE/TTC (JBT). For example as per clause 2 of Chapter IX of Affiliation Bye-law, to teach class VI to X in English or Indian Languages what is required is a B.A., B.Ed. which indicates that B.Ed. is required only for teaching upper primary classes. For teaching primary class, no B.Ed Degree is required as contemplated in Clause 3 of Chapter IX of the Affiliation Bye-law of CBSE. Therefore, your above contention have no legs to stand in view of the provision contained in the Affiliation Bye-law."
12. The aforementioned contention, in my view,
cannot escape scrutiny of this court though National Council for Teacher Education vide notification dated 23.08.2010 prescribed the minimum qualifications required for appointment as a teacher, for class I to VIII, which reads as under: "Minimum Qualifications:-
(i) Classes I-V
(a) Senior Secondary (or its Equivalent) with a least WP(C).No.15709 OF 2019 -12-
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-years 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 Test (TET), to be conducted by the appropriate government in accordance with the guidelines framed by the NCTE for the purpose.”
But I am afraid that the respondents intentionally did not disclose Clause 4 of the notification dated 23.08.2010 which reads as under: “4. Teacher appointed before the date of this Notification:- The following categories of teachers appointed for classes I to VIII prior to date of this WP(C).No.15709 OF 2019 -13- Notification need not acquire the minimum qualifications specified in Para (1) above:
(a) XXXXXX
(b) XXXXXX
(c) XXXXXX
Teacher appointed after the date of this Notification in certain cases:- Where an appropriate Government or local authority or a school has issued an advertisement to initiate the process of appointment of teachers prior to the late of this Notification, such appointments may be made in accordance with the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time).”
14. Thus the contention of the CBSE cannot be
accepted that provisions of Chapter V of the affiliation bye law, 2018 or of 2002 pales into insignificance. It is the conceded position on record that the appointment of the petitioner is prior to the date prescribed in Clause C of Sub-section (4) i.e., before 03.09.2001 and teachers appointed before the date of notification need not require the minimum qualifications prescribed in Paragraph No.1 solely relied on by respondents in their counter statements. I issue a caution/warning to the Department
WP(C).No.15709 OF 2019 -14- to be more careful in future in concealing the relevant information from the notice of this Court. For the reasons aforementioned, this writ petition is allowed and the impugned order Ext.P10 and show cause notice Ext.P11 are set aside. Sd/- AMIT RAWAL JUDGE vv WP(C).No.15709 OF 2019 -15- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE PRINCIPAL OF THE 3RD RESPONDENTS SCHOOL TO THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE TERMINATION ORDER
DATED 31.3.2013 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER ALONG WITH THE COVERING LETTER DATED 6.11.2013 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 26.11.2013 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REPLY DATED 9/2/2013 SENT BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED HON'BLE COURT. EXHIBIT P7 TRUE COPY OF THE REPLY DATED 6/7/2017 ISSUED BY THE EPF AUTHORITY. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 27.4.2017 OF THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 29.12.2018 IN WPC NO.17795/2017 OF THIS HON'BLE COURT. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 2.5.2019 OF THE 1ST RESPONDENT. EXHIBIT P11 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 5.3.2020 ISSUED BY THE 3RD RESPONDENT.