# Mithai Lal and others v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1382
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-11-11
- **Case number:** Civil Misc. Writ Petition No. 59566 of 2011
- **Bench:** Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mithai-lal-and-others-v-state-of-u-p-and-others-42028
- **Pages:** 7

## Headnote

Education Act, 2009 Section 23 (1)-
readwith Section 2 (ii) of National Council
for teachers Education act-Eligibility for
Appointment as teachers in class I to VIIIa teacher having two years teaching
experience
with
2
years
Degree
by
distance mode-not required to qualify
T.E.T.- such direction to appear in T.E.T.-
can not be granted.

Held: Para 18

It is, therefore, clear that the candidates
who have to their credit at least two years
teaching experience in a government or
government
recognized
Primary
Elementary Schools are granted admission
to the aforesaid two years course by
Distance Mode. Persons who have been
appointed as teachers are not required to
under
take
the
U.P.-TET
under
the
notification dated 23rd August, 2010.

## Text

1382 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2011

BEFORE
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 59566 of 2011

Mithai Lal and others
 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan
Sri Abhishek Srivastava

Counsel for the Respondents:
Sri A.K. Singh
Sri R.A. Akhtar
C.S.C.

Right of Children to free and compulsory
Education Act, 2009 Section 23 (1)-
readwith Section 2 (ii) of National Council
for teachers Education act-Eligibility for
Appointment as teachers in class I to VIIIa teacher having two years teaching
experience
with
2
years
Degree
by
distance mode-not required to qualify
T.E.T.- such direction to appear in T.E.T.-
can not be granted.

Held: Para 18

It is, therefore, clear that the candidates
who have to their credit at least two years
teaching experience in a government or
government
recognized
Primary
Elementary Schools are granted admission
to the aforesaid two years course by
Distance Mode. Persons who have been
appointed as teachers are not required to
under
take
the
U.P.-TET
under
the
notification dated 23rd August, 2010.

(Delivered by Hon'ble Dilip Gupta, J. )

1. The petitioners, who have obtained
the B.Ed. two years Degree by Distance
Mode from U.P. Rajshree Tandon Open
University have filed this petition for a
direction upon the respondents to consider it
as a valid qualification for appearing at the
U.P. Teachers Eligibility Test (hereinafter
referred to as the 'U.P.-TET') scheduled to
commence from 13th November, 2011.

2. It is stated that in exercise of the
powers conferred by Section 23(1) of the
Right of Children to Free and Compulsory
Education Act, 2009 (hereinafter referred to
as the 'Act') and in pursuance of the
notification dated 31st March, 2010 issued
by the Government of India, the National
Council for Teachers Education (hereinafter
referred to as the 'NCTE') issued the
notification dated 23rd August, 2010 laying
down the minimum qualifications for a
person to be eligible for appointment as a
teacher in Classes I to VIII in a School
referred to in Section 2(n) of the Act, which
amongst others, provides that the person
should pass the TET to be conducted by the
appropriate Government in accordance with
the Guidelines framed by the NCTE for the
purpose. The Board of High School and
Intermediate Education (hereinafter referred
to as the 'Intermediate Education Board'),
which has been authorised by the State
Government to hold such a test, issued the
advertisement dated 22nd September, 2011
inviting applications from the eligible
candidates for appearing in the UP-TET but
persons who have obtained B.Ed. Degree in
two years by distance mode have not been
permitted to appear in the test. It is,
therefore, asserted that the petitioners, who
have obtained B.Ed. Degree in two years
through Distance Mode stand excluded
from appointment as teachers in Classes I to
VIII since a person who has cleared the
TET is only considered eligible for
appointment.
3 All] Mithai Lal and others V. State of U.P. and others
1383

3. It is contended by Sri Shashi
Nandan, learned Senior Counsel for the
petitioners that notification dated 23rd
August, 2010 issued by the NCTE under
Section 23(1) of the Act regarding
minimum qualification for a person to be
eligible for appointment as a teacher in
Classes I to VIII so far as it restricts
candidates obtaining B.Ed. Degree in one
year should be modified to include
candidates who have obtained B.Ed. Degree
by distance mode in two years as such
candidates are at parity with the candidates
obtaining B.Ed. Degree in one year in view
of the decision of the Division Bench of the
Court in Special Appeal No.1271 of 2007
(Gyanendra Kumar Sharma & 49 others
Vs. State of U.P. & Ors.) decided on 3rd
October, 2007. He, therefore, submits that
the petitioners, who have obtained the B.Ed.
Degree by distance mode in two years,
should also be considered eligible under the
advertisement dated 22nd September, 2011
issued by the Intermediate Education Board.

4. Sri R.A. Akhtar, learned counsel
appearing for the NCTE has pointed out
that the B.Ed. Distance Mode Program is
offered by a University recognised by
NCTE for working Teachers possessing
minimum two years teaching experience
and, therefore, a person who is already
appointed as a teacher is not required to
undertake TET and it is for this reason that
the B.Ed. Degree of two years obtained by
Distance Mode has not been included in the
notification. He has stated that he has made
this submission on the basis of the
instructions sent to him by the NCTE on
26th July, 2011.

5. I have considered the submissions
advanced by the learned counsel for the
parties.

6. The petitioners, who claim to be
possessing B.Ed. degree obtained in two
years through Distance Mode are desirous
of appearing at the UP-TET conducted by
the Intermediate Education Board so that
they can possess the minimum qualification
for a person to be considered eligible for
appointment as a teacher in Classes I to VIII
in a school referred to in Section 2(n) of the
Act.

7. In order to appreciate the
controversy involved in these petitions, it
will be necessary to refer to various
provisions of the Act and the relevant
Regulations and Notifications.

8. Section 23(1) of the Act deals with
the qualification for appointment and terms
and conditions of service of teachers and is
as follows:-

"23. Qualification 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."

9. Elementary Education has been
defined under Section 2(f) of the Act while
a School has been defined under Section
2(n) of the Act and the definitions are as
follows:-

"2(f). "elementary education" means
the education from first class to eight class;"

................

(n) "school" means any recognised
school imparting elementary education and
includes--
1384 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

(i) a school established owned or
controlled by the appropriate Government
or a local authority;

(ii) an aided school receiving aid or
grants to meet whole or part of its expenses
from the appropriate Government or the
local authority;

(iii) a school belonging to specified
category; and

(iv) an unaided school not receiving
any kind of aid or grants to meet its
expenses from the appropriate Government
or the local authority;"

10. The Central Government, by
means of the notification dated 31st March,
2010 published in the Official Gazette dated
5th April, 2010, has authorised the NCTE
as the ''academic authority' to prescribe the
minimum qualifications which notification
is as follows:-

"NOTIFICATION
New Delhi, the 31st March, 2010

S.O. 750(E).--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, the
Central Government hereby authorises the
National Council for Teacher Education as
the academic authority to lay down the
minimum qualifications for a person to be
eligible for appointment as a teacher."

11. The NCTE, accordingly, issued
the notification dated 23rd August, 2010
which was published in the Gazette of India
dated 25th August, 2010. The said
notification lays down the minimum
qualification for a person to be eligible for
appointment as a teacher in Classes I to VIII
in a school referred to in Section 2(n) of the
Act with effect from the date of the
notification. However, another notification
dated 29th July, 2011 was published in the
Gazette of India dated 2nd August, 2011.
This notification made certain amendments
to the notification dated 23rd August, 2010
published in the Gazette of India dated 25th
August, 2010. The minimum qualifications
prescribed in the notification after the
amendment for a person to be eligible for
appointment of a teacher are as follows:-

1. Minimum Qualifications.-

(i) Classes I-V

(a)
Senior
Secondary
(or
its
equivalent) with at least 50% marks and 2year 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).
OR

Graduation and two year Diploma in
Elementary Education (by whatever name
known)
AND

(b) Pass in the Teacher Eligibility Test
(TET), to be conducted by the appropriate
Government
in
accordance
with
the
3 All] Mithai Lal and others V. State of U.P. and others
1385
Guidelines framed by the NCTE for the
purpose.

(ii) Classes VI-VIII

(a) Graduation and 2-year Diploma in
Elementary Education (by whatever name
known)
OR

Graduation with at least 50% marks
and 1-year Bachelor in Education (B.Ed.)
OR

Graduation 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.EI.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

Graduation with at least 50% marks
and 1-year B.Ed. (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.

2.
Diploma/Degree
Course
in
Teacher Education.- For the purprose of
this Notification, a diploma/degree course in
teacher
education
recognised
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 recognised by the Rehabilitation
Council of India (RCI) only shall be
considered.

3. Training to be undergone.- A
person -

(a) with Graduation with at least 50%
marks and B.Ed. qualification or 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 shall also be eligible for appointment
for Class I to V upto 1st January, 2012,
provided
he/she
undergoes,
after
appointment, an NCTE recognised 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
recognised 6-month Special Programme in
Elementary Education.

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 Notification
need
not
acquire
the
minimum
qualifications specified in Para (1) above,

(a) A teacher appointed on or after the
3rd September, 2001, i.e. the date on which
the NCTE (Determination of Minimum
Qualifications for Recruitment of Teachers
in School) Regulation, 2001 (as amended
from time to time) came into force, in
accordance with that Regulation.

Provided that a teacher of class I to V
possessing B.Ed. qualification, or a teacher
possessing B.Ed. (Special Education) or
D.Ed. (Special Education) qualification
shall undergo an NCTE recognised 6-month
1386 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
special
programme
on
elementary
education.

(b) A teacher of class I to V with B.Ed.
qualification who has completed a 6-month
Special Basic Teacher Course (Special
BTC) approved by the NCTE;

(c) A teacher appointed before the 3rd
September, 2001, in accordance with the
prevalent Recruitment Rules.

5.(a) 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 date 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).

(b) The minimum qualification norms
referred to in this notification apply to
teachers of Languages, Social Studies,
Mathematics, Science, etc. In respect of
teachers
for
Physical
Education,
the
minimum qualification norms for Physical
Education teachers referred to in NCTE
Regulation dated 3rd November, 2001 (as
amended from time to time) shall be
applicable. For teachers of Art Education,
Craft Education, Home Science, Work
Education, etc. the existing eligibility norms
prescribed by the State Governments and
other
school
managements
shall
be
applicable till such time the NCTE lays
down the minimum qualifications in respect
of such teachers.

12. It is stated by learned counsel for
the NCTE that 3rd November, 2001 in
paragraph 5(b) of the said notification had
been wrongly mentioned and the date
should be 3rd September, 2001.

13. It is, therefore, clear that it is only
those candidates who have obtained the
B.Ed. Degree in one year who can be
considered eligible under the notification
and, therefore, can appear at the U.P.-TET.

14. It is pointed out by Sri R.A.
Akhtar, learned counsel for NCTE that
persons who obtain the B.Ed. Degree in two
years by distance mode have at least two
years teaching experience and, therefore, it
is not necessary for them to appear at the
U.P.-TET.

15. In this connection it will also be
pertinent to refer to the Norms and Standard
for Diploma in Elementary Education
Programme through Open and Distance
Learning Mode leading to Diploma in
Elementary
Education
contained
in
Appendix-9 to the National Council for
Teachers Education (Recognition, Norms
and
Procedure)
Regulation,
2009
(hereinafter referred to as the '2009Regulation'). The eligibility for admission to
such course is Senior Secondary with 50%
marks and two years teaching experience in
a Government or Government aided
Primary/Elementary School.

16. Clauses 1 to 5 of Appendix-9 to
the 2009-Regulations are relevant for the
purposes of the controversy and are
reproduced below:-

"Appendix-9

Norms and standards for Diploma in
elementary education programme through
Open and Distance Learning System
3 All] Mithai Lal and others V. State of U.P. and others
1387
leading to Diploma in elementary education
(D. El. Ed.).

1.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.

2. Condition of offering the course.-
The institutions or academic units specially
established for offering ODL programmes
like the National Open University, State
Open
Universities
and
the
Directorates/School of Open and Distance
Learning in the Central or State Universities
shall be eligible to offer teacher education
programmes
(The
Deemed
to
be
Universities, Agricultural or Technical
Universities, which specialize in a field
other than teacher education and other
discipline specific Universities/Institutions
are not eligible to offer teacher education
programme through ODL).

3. Territorial Jurisdiction.- The
University
offering
teacher
education
programme
through
ODL
will
have
territorial jurisdiction as defined in the Act
of the University. The Study Centres of the
University shall also be located in the
territorial jurisdiction of the University.

4. Duration.- The duration of the
programme shall be of two academic
sessions/years
(four
semesters).
The
commencement and completion of the
programme shall be so regulated that two
long
spells
of
vacation
(summer/winter/staggered) are available to
the
learners
for
guided/supervised
instruction and fact to face contact sessions.
Sandwitching the programme between two
summer vacations will be an ideal
proposition.

5. Intake, Eligibility and Admission
Procedure.

(1). Intake.- The basic unit of intake
for the D.El.Ed. programme, shall be five
hundred students subject to the condition
that one Study Centre shall enroll not more
than one hundred students in a given
session. The request for additional unit in
any programme shall be examined by the
NCTE on the basis of the availability of
required facilities in respect of study centres
and related support in the territorial
jurisdiction of the university.

(2) Eligibility.-

(i)Senior Secondary (Class XII) or
equivalent examination passed with fifty
percent marks.

(ii)Two years teaching experience in a
Government or Government recognized
primary/elementary school.

(3) Admission Procedure.
1388 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

(i)The State Government shall develop
a suitable procedure for the selection of
candidates.

(ii)The reservation for SC/ST/OBC
and other categories shall be as per the rules
of
the
Central
Government/State
Government, whichever is applicable. There
shall be a relaxation of five percent marks in
favour of SC/ST/OBC and other categories
of candidates."

17. It is true that in Special Appeal
No.1271 of 2007 (Gyanendra Kumar
Sharma & 49 others Vs. State of U.P. &
Ors.) the candidates who had obtained two
years B.Ed. Degree through Distance Mode
were also permitted to seek admission in the
Special B.T.C. Course but in the present
case, it has been pointed out by the NCTE
that only such candidates are permitted to
take admission in B.Ed. two years course by
Distance Mode who have at least 2 years
teaching experience and a person who has
already appointed is not required to
undertake the U.P-TET.

18. It is, therefore, clear that the
candidates who have to their credit at least
two years teaching experience in a
government or government recognized
Primary Elementary Schools are granted
admission to the aforesaid two years course
by Distance Mode. Persons who have been
appointed as teachers are not required to
under take the U.P.-TET under the
notification dated 23rd August, 2010.

19. In such circumstances, the relief
claimed cannot be granted to the petitioners.

20. The petition is, accordingly,
dismissed.
---------