Pursuant to its interpretation to Section 23(1) of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017, the Patna High Court's bench of Chief Justice K. Vinod Chandran, Justices Ashutosh Kumar and Rajiv Roy pronounced its 35 page long judgement in Bibi Sakina Khatoon and nine others v. Union of India and 19 others.
The opening paragraph of the judgement reads: "Unqualified and untrained teachers are the bane of any system of education, in which, the students; often celebrated as the citizens of tomorrow, wallow in ignorance and get mired in misinformation, thus, stultifying the development and growth of a Nation State. Quite realizing the importance of a robust educational system; for maintaining and upgrading the teaching standards, with a vision to strengthen the social fabric of democracy and further the Directive Principles of State Policy, the crucial role of elementary education was emphasized by the Union Parliament in enacting the Right of Children to Free And Compulsory Education Act, 2009". The Act mandates free and compulsory education to all children up to the age of 14 years.
The writ petitions had challenge the proviso under Section 23 of the Right of Children to Free and Compulsory Education Act (RTE Act), 2009 which provided a further period of four years after the initial hiatus of five years, on grounds of it being arbitrary, illegal and manifestly wrong. The petitioners asserted that the proviso which was introduced abruptly extinguished the right of those appointed, who were not able to get a training qualification in the interregnum; either on account of their own default or on the disinclination of the State to provide sufficient opportunities to acquire such training.
Notably, Section 23 (1) and sub-section (2) only provided a conditional engagement, the proviso of which required attainment of the required qualification within the initial period itself; which was not been challenged. The challenge was to a proviso introduced subsequently providing a further period for attaining the qualification. That proviso, relaxed the rigor of the earlier requirement and if interfered with, would only result in persons who obtained the training qualification after the initial five years also being terminated.
The appeals which were tagged along with the writ petitions, or rather vice versa, wee from the judgment of a learned Single Judge which considered a batch of writ petitions in which the teachers, who were sent out of employment for having not acquired the training qualification challenged their termination.
The Chief Justice led bench desisted from looking at the individual facts since the interpretation of Section 23 and the second proviso introduced later, would bring a quietus to the issues raised and this would have to be applied across the board in considering the right of continuance as claimed by the individual petitioners/appellants.
The petitioners pointed out the injustice in terminating teachers who had been appointed after a selection process and continued for long. They argued that many of the appointees were not provided with leave and an opportunity to acquire the required qualification. The State also did not have adequate training institutions to carry out the teachers training course and with the meager facilities, the time provided was grossly insufficient. It was submitted that the Single Judge found that there were different categories, whose training was in different stages and they should have been allowed to complete it. There were teachers who failed in some subjects in the duration of the course, but the institutes provide them with two or three supplementary chances to again appear in the exams. Then, the National Institute of Open Schools (NIOS, for short) had a minimum eligibility criterion of 50% for the intermediate exams, which was the essential basic qualification; later waived and relaxed. It is noteworthy that there are teachers appointed on compassionate grounds who cannot be terminated at all. It was submitted the Single Judge erred in so far as holding that even teachers who qualified later to the time provided or in whose cases the certificates were not issued, to be treated as fresh appointments from their date of qualification or issuance of certificate. This erased the entire service put in by them of long years. It was prayed that this Court extend the time for acquiring the qualification since the State Government is not averse to the continuance of the teachers.
The Court recorded the 7 category classification of teachers by the Single Judge:
(1) Teachers who opted for training after March 31, 2019,
(2) Teachers who applied for training and registered with NIOS but did not qualify as on March 31, 2019;
(3) Teachers who completed training but no certificate was issued till March 31, 2019,
(4) Teachers who completed training but results not declared as on March 31, 2019,
(5) Teachers who were Indira Gandhi National Open University (IGNOU) qualified but who could not
carry out the bridge course of 6 months,
(6) Teachers who completed training but results withheld and
(7) Teachers/persons disqualified from acquiring the qualification under the NIOS for reason of their
having not obtained 50% in the intermediate examination; which was the basic requirement as per the NIOS.
It noted the date spoken of as March 31, 2019, is the date on which the Single Judge deemed the hiatus of 5 years plus the extended period of another 4 years, concluded; the Right of Children to Free and Compulsory Education Act, 2009 (RTE) having come into force on April 1, 2010.
The Chief Justice bench underlined that the judgement by Single Judge considered the categories separately and at times together.
A Full Bench of High Court was constituted with three Judges by virtue of Order No.10 dated September 18, 2023 in the Letters Patent Appeals. The matter was referred to a larger Bench noticing the controversy as to the acquisition of diploma in elementary education; the minimum qualification for appointment of teachers in the primary schools as prescribed by the NCTE, having been answered by a Division Bench
approving the impugned judgment. The Division Bench of the High Court before whom the appeals and the writ petitions were posted found that a co-ordinate bench had dismissed one of the appeals from the common judgment of the Single Judge in L.P.A. No.744 of 2022. Therein, the petitioners were Panchayat teachers appointed in the year 2017 long after the relaxation, provided as per the first proviso to Section 23(2), expired. Though, various categories of teachers as classified by the learned Single Judge, were the appellants, it was opined that to have a quietus to the issue and also in the interest of judicial discipline, the matter be referred to a larger bench.
The three Judge Bench was constituted and on November 28, 2023, it was felt that there should be more clarity in the counter affidavit filed by the State, which did not have the details of the training program as also the opportunities given to the teachers for the purpose of appearing in the qualifying examinations. While directing the State to ensure that such a counter affidavit is placed on record, it was also directed that the future appointments made would be subject to the result of the analogous cases. The said order was issued only noticing the fact that the State had brought out Bihar State Schools Teachers (Appointments, Transfer, Disciplinary Proceedings and Service Conditions) Rules 2023, under which a notification was issued for appointment of more than 1,70,000 posts in the primary, secondary and senior secondary schools within the State. There was considerable progress in the said process and some appointments were made. But the process was still going on and there were remaining vacancies; far more than the number of petitioners and appellants herein. In fact, a challenge was made by the existing teachers to the new recruitment and an interim order was prayed for, to restrain the State from proceeding under the Rules of 2023, which was rejected by an interim order dated July 4, 2023 by another Division Bench. The High Court was informed that the interim order was challenged before the Supreme Court without success.
The 3-judge bench dealt with the challenge against the second proviso as introduced by the Right of Children to Free and Compulsory Education (Amendment) Act, 2017.
Section 23 reads: “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, authorized 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: Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017.](3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as
may be prescribed.”
Notably, the Right of Children to Free and Compulsory Education (Amendment) Act, 2017 was promulgated on August 9, 2017. The Amendment Act specifically deemed it to have come into force on April 1, 2015.
The Chief Justice bench issued the following directions:-
(1) those who were appointed prior to 01.04.2010 who have acquired the teaching qualification on or before 08.08.2021 would be entitled to be continued;
(2) the results withheld, when declared, if it relates back to the period before 08.08.2021, those persons should be continued in employment;
(3) the issuance of certificates also would have to concede to the date of publication of results; which if published before 08.08.2021, those persons will be deemed to have been continued;
(4) the unqualified teachers who were appointed during the relaxation period, i.e. between 01.04.2010 and 31.03.2015 will also be deemed to have been continued, if they have acquired the teachers training qualification; the minimum qualification, on or before 08.08.2021.
(5) The persons, who were appointed after 31.03.2015, if are unqualified will have to be terminated even if, they have acquired the qualification within 08.08.2021; since their appointment itself is invalid. There could not have been any unqualified persons appointed after 31.03.2015.
(6) Those who were in place as teachers on 01.04.2010 and then on 31.03.2015, if not acquired the qualification before 08.08.2021 will stand terminated.
The Court observed: "We find that L.P.A. No.744 of 2022 is correctly decided since it was filed by unqualified teachers appointed after 31.03.2015, whose appointments, at the inception, were bad for violating Section 23(1) of the RTE Act. On the above interpretation and reasoning the writ petitions, in so far as the challenge to Section 23, are dismissed and the L.P.As are partly allowed subject to the above directions; on the basis of which individual cases are to be considered by the State Government. Any teacher coming within the ambit of the first and second proviso to Section 23 can approach the State Government with individual representations, which will be considered in the light of our directions herein above. We specify individual representations since we have been shown a tendency to file enmasse representations on behalf of a group of persons, to enable a motion of contempt before this Court to again agitate the causes already decided. The claims raised by individuals should be based on the acquisition of qualification, which revolves around individual facts." The judgement was authored by Chief Justice Vinod Chandran.
