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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION  CIVIL APPEAL NO.9732 OF 2017

(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 14386 OF 2015)

Neeraj Kumar Rai and ors. …Appellants Versus

State of U.P. & Others …Respondents

J U D G M E N T Adarsh Kumar Goel, J.

1. Leave granted.  This appeal has been preferred against the

judgment of the Allahabad High Court dated 25th February, 2015

in  Neeraj Kumar Rai and ors.  versus   State of U.P. and

ors1.   

2. The  High  Court  repelled  the  challenge  to  the  validity  of

notification dated 29th July, 2011 issued by the National Council

for Teacher Education (NCTE) under Section 23 (1) of the Right of

Children to Free and Compulsory Education Act, 2009 (RTE).  The

challenge was raised on the ground of  arbitrariness leading to 1  2015(2) ADJ 795, 2015(4)ALJ 94

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violation  of  Article  14.   Under  the  impugned  notification,

requirement of 50% marks in graduation was made mandatory

apart  from other  qualifications  for  appointment  of  teachers  in

schools. The said requirement was not mandatory earlier for those

who had 50% marks in post graduation at the time when they

took  admission  to  the  B.Ed.,  which  was  also  the  relevant

qualification for appointment as teacher in terms of notification

dated 23rd August,  2010 under Section 23 of the RTE.   Further

contention of the appellants was that even according to the NCTE

those who had 50% marks in post graduation, and were eligible

for admission to B.Ed. on that basis, could be treated as qualified

in terms of the said notification. The High Court held that once the

petitioners  are  not  covered  by  the  notification  dated 29th July,

2011, the stand of the NCTE to the contrary could not be relied

upon.  

3. Thus,  the  question  for  consideration  is  whether  the

candidates  who  had  already  passed  B.Ed.,  had  the  requisite

percentage  in  post  graduation  and  are  otherwise  covered  by

notification dated 23rd August, 2010, will stand excluded only on

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the  ground  that  their  marks  in  graduation  were  less  than  the

percentage prescribed in the notification dated 29th July, 2011.

4. The  case  of  the  appellants  is  that  they  had  the  post

graduation  and  B.Ed.  qualifications.   They  also  had  the  TET

qualification.  In post-graduation their marks are more than 50%.

The NCTE is a statutory body under the NCTE Act to achieve the

planned and coordinated development of the teacher education

system.  It lays down qualification for recruitment of teachers and

also criteria for admission to training in teacher education.  The

NCTE (Determination of Minimum Qualifications for Recruitment of

Teachers in Schools) Regulations, 2001 prescribe qualification for

recruitment of teachers.  The said regulations were amended from

time  to  time.   Regulations  were  also  framed  for  admission  to

teacher education programmes including for admission to B.Ed.

The said regulations prescribed requirement of 45% / 50% either

in  graduation  or  in  post  graduation for  admission  to  the  B.Ed.

which the appellants possessed.  Only the impugned notification

dated 29th July,  2011 prescribed requirement  of  50% marks  in

graduation  which  was  earlier  optional  for  those  who  had  50%

marks  in  post  graduation.   On  that  basis,  the  State  of  Uttar

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Pradesh declared candidates who were B.Ed. and TET and were

otherwise qualified in terms of the qualifications laid down by the

NCTE for appointment of teachers as ineligible.   Some persons

who  were  earlier  appointed  but  their  services  were  later

terminated.   The  claim  of  similarly  placed  candidates  was

supported by the NCTE and was also upheld by the High Courts of

Rajasthan and Uttarakhand which judgments were operative and

had become final.  

5. To  appreciate  the  submissions  reference  may  briefly  be

made to relevant notifications. The 2003 amendment to the 2001

regulations  provides  for  requirement  of  graduation  along  with

B.Ed or its equivalent without any minimum marks in graduation.

The 2007 Norms and Standards for Secondary Teacher Education

Programme  leading  to  B.Ed.  require  45%  marks  either  in

Bachelor’s degree or in Master’s degree or any other qualification

equivalent thereto.  The 2009 Norms and Standards for Secondary

Teacher  Education  Programme  through  Open  and  Distance

Learning System leading to B.Ed. do not provide for any minimum

percentage of marks in Bachelor’s degree.  However, in the NCTE

notification dated 23rd August, 2010 the requirement of prescribed

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percentage of marks in graduation was laid down on which basis

the said requirement was laid down in the impugned notification

dated 29th July, 2011denying eligibility to the appellants.    

6. It is submitted that similarly placed candidates approached

the Rajasthan High Court by way of D.B. Civil  Writ Petition No.

3964 of 2011 etc.  titled  Sushil Sompura and Ors.   versus

State  (Education)  and Ors.  The  Division  Bench  of  the  High

Court in its judgment dated 20th May, 2011 upheld their stand and

observed:-

“The relief prayed by the petitioners stands satisfied in view of the agreement expressed on behalf of NCTE to the effect that  in case they have  passed  B.A.,  B.Sc.,  B.Com.,  Senior Secondary  or  its  equivalent  qualification and  obtained  admission  in  the  requisite courses such as B.Ed., B.EI.Ed., D.Ed. etc. as mentioned in para-1 of the Notification dated 23.8.2010, prior to the prescription of the minimum qualifying marks by NCTE in  Bachelor’s  degree  or  Master’s  degree etc.  or  any  other  qualification  equivalent thereto  vide  notification  dated  27.9.2007 and 31.8.2009,  the minimum qualification of having 45% or 50% marks, as the case may  be,  in  the  Bachelor’s  degree  or Master’s  degree  etc.  or  any  other equivalent  qualification,  shall  not  be insisted as stated by Mr. Kuldeep Mathur, learned counsel appearing on behalf of the NCTE  on  being  instructed  by  Regional Director, NCTE.  Thus, the major grievance of

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the petitioners that their qualifications of B.Ed. B.EI.Ed.  etc.  mentioned  in  para  1  are  being derecognized  with  retrospective  effect  when there was no prescription of minimum qualifying marks  of  45%  or  50%,  as  the  case  may  be, stands redressed in view of the statement made by learned counsel  appearing on behalf  of  the NCTE.  It has been further stated by the learned counsel  for  the  NCTE  that  for  the  first  time, de-novo  qualifications  were  prescribed  by  the NCTE  vide  Notification  dated  27.9.2007  and further,  qualifications  were  prescribed  vide Notification  dated  31.8.2009  and  in  case admission has been taken by the incumbents in any  of  the  courses  of  B.Ed.  B.El.Ed.  etc.  as mentioned  in  para-1  of  the  Notification  dated 23.8.2010 prior to aforesaid dates, they shall not insist for having 45% or 50% marks, as the case may be, in qualifying examination for aforesaid courses.   Thus,  respondents  have  to  allow aforesaid incumbents in TET examination, 2011.”

(emphasis added)

7. Again,  similar  issue  was  raised  before  the  High  Court  of

Uttarakhand  in  Writ  Petition  No.  772(SS)  of  2011  etc.  titled

Baldev Singh and ors.  versus  State of Uttarakhand and

ors.  The High Court in its  judgment dated 20th August,  2011,

after  noticing  the  observations  in  the  Rajasthan  High  Court

judgment, observed:

“Apparently  therefore  the  restriction  of  a minimum  percentage  of  marks  in  graduation (45% or 50% as the case might be) is not going to be enforced by NCTE, as it is evident from the above paragraph, as these were the instructions

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of  the  Regional  Director,  NCTE  to  its  counsel before the Hon’ble Rajasthan High Court.   The counsel representing NCTE Mr. Sudhir Singh has fairly  submitted  before  this  Court  that  he  also gets  his  instructions  from  the  same  Regional Director,  NCTE,  yet  there  are  no  such instructions  with  him.   That  being  the  factual position, we leave it at that.

However,  even  assuming  for  the  sake  of argument that the above decision of the Hon’ble Rajasthan High Court does not help the case of the petitioners, yet this Court is of a considered view,  as  it  has  already  been  discussed  in  the preceding paragraphs, that such a restriction (of having  minimum  percentage  in  graduation)  is both unreasonable, unjust and violative of Article 14 of the Constitution of India.  Therefore, this Court  declares  such  condition  of  asking  a minimum  percentage  of  marks  in  graduation from those candidates who are B.Ed. qualified in NCTE  notification  dated  23.8.2010  and subsequent  State  Government  Order  dated 29.4.2011  as  violative  of  Article  14  of  the Constitution of India.  Further this Court directs the  respondents  to  permit  the  petitioners  to appear in TET examination treating them to be qualified under Clause 3 of the notification dated 23.8.2010  and  State  Government  Order  dated 29.4.2011.”

8. Mr.  AS  Nadkarni,  learned  Additional  Solicitor  General,

appearing for the NCTE fairly stated that the appellants may be

treated  at  par  with  those  covered  by  the  Rajasthan  and

Uttarakhand High Courts judgments which have been accepted by

the NCTE.  

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9. In view of fair stand of learned Additional Solicitor General

and the view of Rajasthan and Uttarakhand High Courts, we do

not find any reason to deny similar relief to the appellants.  No

doubt, as rightly held by the High Court the NCTE ought to have

issued a clarification by way of a supplementary notification but

the  NCTE  may  now  do  so  within  one  month  from  today.

Accordingly, we direct that if the appellants or any other similarly

placed  persons  are  entitled  to  any  further  relief  in  terms  of

judgments of Rajasthan and Uttarakhand High Courts, they will be

at  liberty  to  put  forward  their  claim  before  the  concerned

authorities who may take a decision thereon in accordance with

law within one month.  We have not examined any such claim in

these proceedings except what has been stated hereinabove.  

10. The appeal stands disposed of accordingly.  

…………………………………….J. (Adarsh Kumar Goel)

…………………………………….J. (Uday Umesh Lalit)

New Delhi; 25th July, 2017.