# CASE DETAILS DEVESH SHARMA v. UNION OF INDIA AND ORS

- **Citation:** 2023 INSC 704
- **Court:** Supreme Court of India
- **Decided:** 2023-08-11
- **Case number:** Civil Appeal No. 5068 of 2023
- **Bench:** Aniruddha Bose, Sudhanshu Dhulia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-devesh-sharma-v-union-of-india-and-ors-36249
- **Pages:** 31

## Headnote

Issue for consideration : Whether National Council for Teacher
Education-NCTE vide notifi cation dated 28.06.2018, was right in including
B.Ed. qualifi cation as an equivalent and essential qualifi cation for appointment
to the post of primary school teacher (Level-1); and whether the High Court
was justifi ed in quashing the said notifi cation, holding the B.Ed. candidates
to be unqualifi ed for the posts of primary school teachers (Level-1).
Right to Education Act, 2009 - s. 23(1) - Appointment to the post of
primary school teachers - Inclusion of B.Ed as a necessary qualifi cation
by NCTE vide notifi cation dated 28.06.2018 - Justifi cation:
Held : Not justifi ed - B.Ed. is not a qualifi cation for teachers at Primary
level of schooling - Pedagogical skills and training required from a teacher at
Primary level is not expected from a B.Ed. Trained teacher - They are trained to
teach classes at higher level, post primary, secondary and above - For Primary
level i.e. class I to class V the training is D.El.Ed-Diploma in elementary
education - Thus, by implication the inclusion of B.Ed. as a qualifi cation
amounts to lowering down of the 'quality' of education at Primary level -
Need for 'quality' and meaningful primary education has been emphasized by
the legislature as well as by the academic authority - In primary education,
any compromise on 'quality' of education would mean going against the very
mandate of Article 21A and the RTE Act - Thus, the decision of the NCTE to
include B.Ed. as a qualifi cation for teachers in a primary school is arbitrary,
unreasonable and has no nexus with the object sought to be achieved by the
Act - NCTE had so far consciously kept B.Ed. Degree out of the eligibility
168
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[2023] 11 S.C.R.
requirement - Thus, the High Court rightly struck down the notifi cation
dated 28.06.2018. [Paras 27, 29, 31, 33 and 34]
Administrative law - Policy decision - Introduction of B.Ed. as a
qualifi cation for teachers in primary school by NCTE vide notifi cation
dated 28.06.2018, on the directions of the Central Government -
Interference with:
Held : Policy decisions of the Government should normally not
be interfered with, by a constitutional Court in exercise of its powers of
judicial review - Powers of judicial review must be exercised only if the
policy decision itself is contrary to the law and is arbitrary and irrational,
or a decision has been taken without proper application of mind, or in total
disregard of relevant factors - Decision to include B.Ed. as a qualifi cation
is not an independent decision of NCTE, but was the decision of the
Central Government and NCTE was simply directed to carry it out being
a direction u/s. 29 of NCTE Act - This cannot be seen as a policy decision
- Even presuming it to be a policy decision, the decision is not correct
as it is contrary to the purpose of the Act - It goes against the letter and
spirit of Art. 21A and the RTE Act, which calls for a free, compulsory
and meaningful primary education to children - By including B.Ed. as a
qualifi cation for teachers for primary school, the Central Government has
acted against the provisions of the Constitution and the laws - Notifi cation
dated 28.06.2018 is quashed and set aside - National Council for Teacher
Education Act, 1993 - s. 29 - Judicial review. [Paras 36 and 37]
Constitution of India - Art.21A - Right to education -
Fundamental right:
Held : Every child upto 14 years of age, has a fundamental right
to have 'free' and 'compulsory' elementary education, which has to be
of good 'quality' - The same is the object and purpose of the Right to
Education Act, 2009. [Para 17]
LIST OF CITATIONS AND OTHER REFERENCES
Unni Krishnan J.P. versus State of Andhra Pradesh and Ors. AIR
1993 SC 2178 : [1993] 1 SCR 594; Dilip Kumar Ghosh and Others versus
Chairman and Others (2005) 7 SCC 567 : [2005] 3 Suppl. SCR 158;
169
DEVESH SHARMA v. UNION OF INDIA AND ORS.
P.M. Latha and Another versus State of Kerala and O

## Text

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[2023] 11 S.C.R. 167 : 2023 INSC 704
167
CASE DETAILS
DEVESH SHARMA
v.
UNION OF INDIA AND ORS.
(Civil Appeal No. 5068 of 2023)
AUGUST 11, 2023
[ANIRUDDHA BOSE AND SUDHANSHU DHULIA, JJ.]
HEADNOTES
Issue for consideration : Whether National Council for Teacher
Education-NCTE vide notifi cation dated 28.06.2018, was right in including
B.Ed. qualifi cation as an equivalent and essential qualifi cation for appointment
to the post of primary school teacher (Level-1); and whether the High Court
was justifi ed in quashing the said notifi cation, holding the B.Ed. candidates
to be unqualifi ed for the posts of primary school teachers (Level-1).
Right to Education Act, 2009 - s. 23(1) - Appointment to the post of
primary school teachers - Inclusion of B.Ed as a necessary qualifi cation
by NCTE vide notifi cation dated 28.06.2018 - Justifi cation:
Held : Not justifi ed - B.Ed. is not a qualifi cation for teachers at Primary
level of schooling - Pedagogical skills and training required from a teacher at
Primary level is not expected from a B.Ed. Trained teacher - They are trained to
teach classes at higher level, post primary, secondary and above - For Primary
level i.e. class I to class V the training is D.El.Ed-Diploma in elementary
education - Thus, by implication the inclusion of B.Ed. as a qualifi cation
amounts to lowering down of the 'quality' of education at Primary level -
Need for 'quality' and meaningful primary education has been emphasized by
the legislature as well as by the academic authority - In primary education,
any compromise on 'quality' of education would mean going against the very
mandate of Article 21A and the RTE Act - Thus, the decision of the NCTE to
include B.Ed. as a qualifi cation for teachers in a primary school is arbitrary,
unreasonable and has no nexus with the object sought to be achieved by the
Act - NCTE had so far consciously kept B.Ed. Degree out of the eligibility
168
SUPREME COURT REPORTS
[2023] 11 S.C.R.
requirement - Thus, the High Court rightly struck down the notifi cation
dated 28.06.2018. [Paras 27, 29, 31, 33 and 34]
Administrative law - Policy decision - Introduction of B.Ed. as a
qualifi cation for teachers in primary school by NCTE vide notifi cation
dated 28.06.2018, on the directions of the Central Government -
Interference with:
Held : Policy decisions of the Government should normally not
be interfered with, by a constitutional Court in exercise of its powers of
judicial review - Powers of judicial review must be exercised only if the
policy decision itself is contrary to the law and is arbitrary and irrational,
or a decision has been taken without proper application of mind, or in total
disregard of relevant factors - Decision to include B.Ed. as a qualifi cation
is not an independent decision of NCTE, but was the decision of the
Central Government and NCTE was simply directed to carry it out being
a direction u/s. 29 of NCTE Act - This cannot be seen as a policy decision
- Even presuming it to be a policy decision, the decision is not correct
as it is contrary to the purpose of the Act - It goes against the letter and
spirit of Art. 21A and the RTE Act, which calls for a free, compulsory
and meaningful primary education to children - By including B.Ed. as a
qualifi cation for teachers for primary school, the Central Government has
acted against the provisions of the Constitution and the laws - Notifi cation
dated 28.06.2018 is quashed and set aside - National Council for Teacher
Education Act, 1993 - s. 29 - Judicial review. [Paras 36 and 37]
Constitution of India - Art.21A - Right to education -
Fundamental right:
Held : Every child upto 14 years of age, has a fundamental right
to have 'free' and 'compulsory' elementary education, which has to be
of good 'quality' - The same is the object and purpose of the Right to
Education Act, 2009. [Para 17]
LIST OF CITATIONS AND OTHER REFERENCES
Unni Krishnan J.P. versus State of Andhra Pradesh and Ors. AIR
1993 SC 2178 : [1993] 1 SCR 594; Dilip Kumar Ghosh and Others versus
Chairman and Others (2005) 7 SCC 567 : [2005] 3 Suppl. SCR 158;
169
DEVESH SHARMA v. UNION OF INDIA AND ORS.
P.M. Latha and Another versus State of Kerala and Others (2003) 3 SCC
541 : [2003] 2 SCR 653; Yogesh Kumar v. Government of NCT, Delhi
(2003) 3 SC 548 : [2003] 2 SCR 662; Society for Unaided Private Schools
of Rajasthan v. Union of India & Anr. (2012) 6 SCC 1 : [2012] 2 SCR 715;
Council of Civil Service Unions v. Minister for the Civil Service (1984) 3
All ER 935; State of NCT of Delhi v. Sanjeev (2005) 5 SCC 181 : [2005]
3 SCR 151; State of M.P. & Ors. v. Mala Banerjee (2015) 7 SCC 698 :
[2015] 3 SCR 704; Brij Mohan Lal v. Union of India (2012) 6 SCC 502 :
[2012] 5 SCR 305; State of Manipur & Ors. v. Surjakumar Okram & Ors.
2022 SCC Online SC 130 - referred to.
Austin, Granville. "The Conscience of the Constitution". The Indian
Constitution, Cornerstone of a Nation, Oxford University Press, 2000, pp.
50; Barzun, Jacques. "Profession: Teacher". Teacher in America, published
by Little Brown 7 Co. in association with Atlantic Monthly Press, 1945, pp.
3-13; Weiner Myron (1991) : The Child and the State In India in Comparative
Perspective - Princeton University Press - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil Appeal
No.5068 of 2023.
From the Judgment and Order dated 25.11.2021 of the High Court of
Judicature for Rajasthan at Jodhpur in DBCWP No.2109 of 2021.
With
Civil Appeal Nos.5122, 5070, 5086, 5121, 5069, 5071-5084, 5085,
5087, 5088-5120, 5125, 5123-5124 Of 2023, Writ Petition (Civil) Nos.137,
881 And 355 of 2022.
Appearances:
Ms. Aishwarya Bhati, Vikramjit Banerjee, ASGs, P. S. Patwalia, Ms.
Meenakshi Arora, Kapil Sibal, Dr. Manish Singhvi, Sr. Advs., Amit Pawan,
Abhishek Amritanshu, Gauravjeet Singh Patwalia, Anand Nandan, Hassan
Zubair Waris, Ms. Shivangi, Aakarsh, Suchit Singh Rawat, Kushagra Raj,
Chittapriya Ghosh, Somesh Kumar Ghosh, Anindo Mukherjee, R. P. Goyal,
Amit Agrawal, Vigyan Shah, Ms. Radhika Yadav, Akshit Gupta, Ms. Sana
170
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Jain, Anmol Chandan, Ms. Vishakha, Ms. Ruchi Kohli, Ms. Shreya Jain,
Aman Sharma, A. K. Kaul, Raj Bahadur Yadav, Sughosh Subramanyam, G.
S. Makker, Puneet Jain, Vigyan Shah, Ms. Christi Jain, Ms. Shruti Singh,
Akshit Gupta, Umang Mehta, Yogit Kamat, Mann Arora, Sarah Sharma,
Ms. Pragya Seth, Shipra Singh, Ms. Akriti Sharma, Arpit Parkash, Vikalp
Sharma, Apurv S., Shaswat Mehra, Dibyadyuti Banerjee, Ms. Sumedha
Haldar, Rohit Jaiswal, Umang Gupta, Manoj Rajpoot, Abhijit Sengupta,
Ms. Manisha T. Karia, Ms. Nidhi Nagpal, Adarsh Kumar, Aditya Kesar,
Naresh Kaushik, Vardhaman Kaushik, Manoj Joshi, Vinay Kaushik, Ms.
Shikha Kaushik, Dhruv Joshi, Nishant Gautam, Subham Dwivedi, Ms. Lalita
Kaushik, Arjun Shukla, Ms. Shelly Arora, Nachiketa Joshi, Amit Sharma,
Ishaan Sharma, Sunil Fernandes, Divyansh Tiwari, Ms. Astha Sharma,
Ravinder Singh, Srisatya Mohanty, Ms. Raveesha Gupta, Ms. Mantika
Haryani, Sanjeev Kaushik, Shreyas Awasthi, Himanshu Chakravarty,
Devvrat Singh, Muskan Surana, Manish Kumar, Vijay Sharma, Mridul
Jhalani, Satish Kumar, Gaurav Jain, Ms. Abha Jain, Subir Sanyal, Somesh
Ghosh, Jaivir Singh, Abhishek Misra, Ms. Deepika Mishra, Aniteja Sharma,
Mohan Lal Sharma, Mrs. Shikha John, Mrs. Lalitha Kaushik, Mrs. Shikha
Kaushik, Abhinav Singh, Mayank Sharma, Gurmeet Singh Makker,
Santosh Kumar Tripathi, Ms. Beena Goyal, Hitesh Kumar Sharma, S. K.
Rajora, Akhileshwar Jha, Ms. Niharika Dwivedi, Ravish Kumar Goyal,
Nitin Sharma, Narendra Pal Sharma, Dr. (Mrs.) Vipin Gupta, Ajay Singh,
Ketan Paul, Ashish Batra, Akshat Srivastava, Dr. Sushil Balwada, Ms.
Neelam Singh, Sanjay Rastogi, R.K. Singh, Mrs. Neeraj Singh, Kumar
Gaurav, Ms. Ritu Reniwal, Ajay Choudhary, Aman Rastogi, Advs. for the
appearing parties.
JUDGMENT/ORDER OF THE SUPREME COURT
JUDGMENT
SUDHANSHU DHULIA, J.
Leave granted.
2. A Division Bench judgment of Rajasthan High Court, dated
25.11.2021, is under challenge before this Court. Apart from the
appeals, there are three Writ Petitions as well before this Court, on
the same issue. All the same, while dealing with these cases, for facts,
we would be referring to Civil Appeal @ SLP (C) No.20743 of 2021
Devesh Sharma versus Union of India, which arises out of the order
171
DEVESH SHARMA v. UNION OF INDIA AND ORS.
[SUDHANSHU DHULIA, J.]
dated 25.11.2021 passed by the High Court in D.B. Civil Writ Petition No.
2109 of 2021.
3. What lies at the core of the dispute before this Court is the
notifi cation dated 28.06.2018, issued by the National Council for Teacher
Education (hereafter 'NCTE'), made in exercise of its powers under Section
23(1) of the Right to Education Act, 2009 (hereinafter referred to as the
'Act'). This notifi cation made B.Ed. degree holders eligible for appointment
to the post of primary school teachers (classes I to V). All the same, in spite
of the above notifi cation, when the Board of Secondary Education, State of
Rajasthan, issued an advertisement on 11.01.2021, for Rajasthan Teacher
Eligibility Test (RTET Level-1), it excluded B.Ed. degree holders from the
list of eligible candidates. This action of the Rajasthan Government was
challenged before the High Court. The petitioner Shri Devesh Sharma has a
B.Ed. degree, and as per the Notifi cation dated 28.06.2018, he was eligible,
like many other similar candidates. Consequently, he fi led his petition
before the Rajasthan High Court, inter alia, praying that the advertisement
dated 11.01.2021 be quashed, as it was in violation of the notifi cation dated
28.06.2018 issued by the NCTE.
4. Apart from the above batch of petitioners, there was another set
of petitioners, with their own grievance. These are the candidates who are
diploma holders in Elementary Education (D.El.Ed.)1, which was the only
teaching qualifi cation required for teachers at primary level, and who are
aggrieved by the inclusion of B.Ed. qualifi ed candidates. They too fi led
Writ Petitions before the Rajasthan High Court challenging the legality of
the notifi cation dated 28.06.2018. The State of Rajasthan understandably
supported these second batch of candidates before the High Court, as they
would do before this Court.
5. Out of the three writ petitions before us two (W.P. No. 137 of
2022 and 881 of 2022) are challenging the notification dated 28.06.2018
and the subsequent notifications issued by the Government of Bihar
and U.P. respectively calling for application from eligible candidates
including B.Ed. W.P. No. 355 of 2022 again challenges the notification
dated 28.06.2018. SLP (C) No. 22923 of 2022 is against an interim
1
It is possible that this diploma is called by diff erent names in diff erent States. It is for this
reason that at some place it may just be referred as a diploma in elementary education.
172
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[2023] 11 S.C.R.
order of the Calcutta High Court which denied relief to the petitioners who
were seeking a stay of the notifi cation dated 28.06.2018.
6. Hence the question of law to be answered in these cases is whether
NCTE was right in including B.Ed. qualifi cation as an equivalent and
essential qualifi cation for appointment to the post of primary school teacher
(Level-1)? The Rajasthan High Court in the impugned judgment has quashed
the notifi cation dated 28.06.2018, holding B.Ed. candidates to be unqualifi ed
for the posts of primary school teachers (Level-1).
7. On behalf of the Petitioners, we have heard learned Senior Counsel,
Mr. Paramjit Singh Patwalia who has assailed the Judgement of the Rajasthan
High Court. Mr. Patwalia appeared for the B.Ed. qualifi ed candidates and
would support the notifi cation dated 28.06.2018, and the petitioners who had
challenged their exclusion before the Rajasthan High Court. Ms. Meenakshi
Arora, learned senior counsel was also heard for the appellants. The learned
counsel would argue that the High Court failed to consider that the notifi cation
dated 28.06.2018 was a policy decision taken by the NCTE after the Central
Government had issued directions in this regard, under Section 29 of the NCTE
Act, and the High Court was wrong in interfering with the policy decision
of the Central Government. The NCTE broadly agrees with the submissions
which have been made by Shri Patwalia, and Ms. Arora, while assailing the
impugned judgement.
8. We have also heard the submissions by the learned Senior Counsel
Mr. Kapil Sibal and Dr. Manish Singhvi who appeared for the Diploma
holders and the State of Rajasthan respectively who would argue, inter alia,
that the NCTE being an expert body had to take an independent decision in
this case, based on the objective realties. Even if the NCTE had to follow the
directions of the Central Government, the NCTE must demonstrate that these
directions had been independently considered by them and not implemented
in a mechanical manner.
9. On behalf of the Union of India we have heard learned Additional
Solicitor General(s) Ms. Aishwarya Bhati and Mr. Vikramjeet Banerjee. They
would argue that the Impugned Judgement has been passed ignoring the
powers of the Central Government given both under the Act as well as NCTE
Act. Moreover, an objection has also been raised that the Union of India was
not even made a party in the proceedings before the Rajasthan High Court!
173
DEVESH SHARMA v. UNION OF INDIA AND ORS.
[SUDHANSHU DHULIA, J.]
10. During the course of hearing, this Court had passed an order
dated 24.08.2022, granting liberty to the Board of Secondary Education
for diff erent States, and other stake holders to be impleaded as intervenors.
Pursuant to this order, several Interlocutory Applications were fi led which
are being heard along with these appeals.
11. "The Indian Constitution is fi rst and foremost a social document",
writes Granville Austin2. The Rights contained in Part III and the Directive
Principles of State Policy contained in Part IV together establish conditions
which further the goal of this social revolution3. Austin goes on to call Part
III and Part IV of the Constitution as "The Conscience of the Constitution"4.
Free and compulsory education for children was a part of the social vision,
of the framers of our Constitution.
12. Elementary education for children is today a Fundamental Right
enshrined under Article 21A of Part III of the Constitution of India. Every
child (upto 14 years of age), has a fundamental Right to have 'free' and
'compulsory' elementary education. But then 'free' and 'compulsory'
elementary education is of no use unless it is also a 'meaningful' education.
In other words, elementary education has to be of good 'quality', and not
just a ritual or formality!
13. Our progress, in achieving this constitutional goal, has been slow.
In some ways, it is still a work in progress. Prior to the Constitutional 86th
Amendment, the Right to Education was in Part-IV of the Constitution
(Article 45), as a Directive Principle of State Policy. Directive Principles,
as we know, are a set of goals which the state must strive to achieve. The
goal set out in Article 455 of the Constitution (as it stood at that time), was
to make elementary education free and compulsory for all children up to
age of 14 years, within 10 years of the promulgation of the Constitution.
All the same, it would take much more than ten years to achieve this goal.
2
Austin, Granville. "T e Conscience of the Constitution". T e Indian Constitution, Cornerstone of a Nation, Oxford University Press, 2000, pp. 50
3
Ibid - pp 50.
4
Ibid - pp 50.
5
Article 45 of the Constitution as it existed prior to the 86th Amendment:
 "Provision for free and compulsory education for children.- T e State shall
endeavour to provide, within a period of ten years from the commencement of this
Constitution, for free and compulsory education for all children until they complete
the age of fourteen years."
174
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[2023] 11 S.C.R.
14. The 1986 National Policy on Education, modified in the
year 1992, declared that free and compulsory elementary education of
'satisfactory quality' be given to all children up to the age of fourteen
years, before the nation enters the next century i.e., 21st Century.
15. Later in the seminal judgment of this court in Unni Krishnan
J.P. versus State of Andhra Pradesh and Ors. (AIR 1993 SC 2178), it
was held that children have a fundamental right to free education, till they
complete the age of fourteen years.
16. In the year 1997, in order to make free and compulsory
education a fundamental right the 83rd Constitutional Amendment Bill
was introduced in Parliament, to insert a new Article in Part III of the
Constitution of India, which was to be Article 21A. The Bill was sent
for the scrutiny of the Parliamentary Standing Committee on Human
Resources Development. The Standing Committee not only welcomed
the amendment but in addition emphasizes on the 'quality of elementary
education'. This is what it said.
"The eminent educationists felt that the Bill is silent on the 'Quality'
of Education. They suggested that there should be a reference to 'quality'
of education in the Bill. The Secretary, Education agreed that the 'quality'
aspect also has to be seen. Education defi nitely must mean 'quality'
education and anything less than that should not be called education.
Therefore, the emphasis would be through strengthening the teacher
education content, the Secretary stated."6
Finally, by way of the Constitution (86th Amendment) Act of
2002, Article 21A, was inserted as a Fundamental Right in Part III of
the Constitution, and made eff ective from 01.04.2010. Article 21A of the
Constitution reads as under:
"Article 21A: The State shall provide free and compulsory education
to all children of the age of six to fourteen years in such manner as
the State may, by law, determine."
17. In order to fulfi l the above mandate Right to Education Act,
2009, was passed by the Parliament on August 20, 2009, which became
eff ective from 01.04.2010. The object and reasons of the Act declared
loud and clear that what the Act seeks to achieve is not merely 'free' and
'compulsory' elementary education, but equally important would be the
6
Para 13 of the Report of the Parliamentary Standing Committee on Human Resource
Development.
175
DEVESH SHARMA v. UNION OF INDIA AND ORS.
[SUDHANSHU DHULIA, J.]
'Quality' of this education! The Preamble to the Act states "that every child
has a right to be provided full time elementary education of satisfactory
and equitable 'quality' in a formal school which satisfi es certain essential
norms and standards".
18. When the validity of the Act was challenged before this Court7, this
Court, while upholding its validity emphasized that the Act, was intended
not only to impart "free" and "compulsory" education to children, but the
purpose was also to impart 'quality' education!
"The provisions of this Act are intended not only to guarantee right to
free and compulsory education to children, but it also envisages imparting of
'quality' education by providing required infrastructure and compliance of
specifi ed norms and standards in the schools." [See Para 8, (2012) 6 SCC 1]
19. As we can see, the purpose behind bringing this pathbreaking
legislation was not to complete the formality of 'free and compulsory'
elementary education for children, but to make a qualitative diff erence in
elementary education and to impart it in a meaningful manner. Provisions like
'Right to be admitted in a neighbourhood school'8, 'No denial of admission'9
and 'Prohibition of physical punishment and mental harassment'10, are some
of the heartwarming provisions of the Act.
20. The Act sets down certain norms and standards which have to be
followed in elementary schools, and this is with the purpose of providing
a meaningful and 'quality' education. To name some of these requirements
such as:-
A. The necessary infrastructure requirement.
B. Pupil teacher ratio which is 30:1 and
C. The absolute necessity of trained as well as qualifi ed teachers.
21.Free and compulsory education for children becomes meaningless
if we make compromise on its 'quality'. We must recruit the best qualifi ed
teachers. A good teacher is the fi rst assurance of 'quality' education in a
7
In Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. [(2012) 6
SCC 1]
8
Section 3 of the Right to Education Act, 2009.
9
Section 15 of the Right to Education Act, 2009.
10 Section 17 of the Right to Education Act, 2009.
176
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[2023] 11 S.C.R.
school. Any compromise on the qualifi cation of teachers would necessarily
mean a compromise on the 'quality' of education. Jacques Barzun, the
American educationalist and historian, in his seminal work 'Teacher in
America', says "teaching is not a lost art, but the regard for it is a lost
tradition"11. Though this comment was for the state of higher education in
America, it is equally relevant here on the treatment of Primary education
in our country, as it emerges from the facts before us.
22. Elementary education in India is at two levels. A is the 'Primary'
level i.e. class I to V, and B is the Senior primary level i.e., classes VI
to VIII. Presently we are only concerned with the "primary level" of
education.
23. Section 23 of the Act is extremely important as it not only
provides as to who shall determine the qualifi cations of teachers in a
Primary school, but as to who can relax these qualifi cations, and for how
long.
It reads as under :-
"Section 23. Qualifi cations for appointment and terms and
conditions of service of teachers.-(1) Any person possessing such
minimum qualifi cations, as laid down by an academic authority,
authorised by the Central Government, by notifi cation, shall be
eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions off ering courses
or training in teacher education, or teachers possessing minimum
qualifi cations as laid down under sub-section (1) are not available
in suffi cient numbers, the Central Government may, if its deems
necessary, by notifi cation, relax the minimum qualifi cations required
for appointment as a teacher, for such period, not exceeding fi ve
years, as may be specifi ed in that notifi cation:
Provided that a teacher who, at the commencement of this Act, does
not possess minimum qualifi cations as laid down under sub-section
(1), shall acquire such minimum qualifi cations within a period of
fi ve years:
11 Barzun, Jacques. "Profession: Teacher". Teacher in America, published by Little Brown
7 Co. in association with Atlantic Monthly Press, 1945, pp. 3-13
177
DEVESH SHARMA v. UNION OF INDIA AND ORS.
[SUDHANSHU DHULIA, J.]
[Provided further that every teacher appointed or in position as on
the 31st March, 2015, who does not possess minimum qualifi cations
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."
24. Whereas sub-Section (1) of Section 23 is the provision where the
'academic authority' has been empowered to prescribe qualifi cations for
teachers in elementary schools, sub-section (2) of Section 23 empowers the
Central Government to relax the minimum 'qualifi cations' prescribed by the
'academic authority', under certain circumstances and for a limited period.
The 'Academic Authority' under Section 23(1) of the Act is the
National Council for Teachers Education (NCTE), which brought a
notifi cation on 23.08.2010, laying down the necessary qualifi cations for
teachers, both at primary, as well as upper primary level. Inter alia, this
notifi cation prescribes as under:-
1. Minimum Qualifi cations: -
(i) Classes I-V
(a) Senior Secondary (or its equivalent) with atleast 50% marks and
2- year Diploma in Elementary Education (by whatever name known)
OR
Senior Secondary (or its equivalent) with atleast 45% marks and
2-year Diploma in Elementary Education (by whatever name known),
in accordance with NCTE (Recognition Norms and Procedure),
Regulations 2002
OR
Senior Secondary (or its equivalent) with atleast 50% marks and 4-year
Bachelor of Elementary Education (B.El.Ed.)
OR
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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 its purpose.
The above notifi cation dated 23.08.2010, does not provide B.Ed.
as a qualifi cation for appointment to the post of primary school teachers.
Later this notifi cation was amended, but B.Ed. was never included (till the
impugned notifi cation dated 28.06.2018), as an essential qualifi cation for
teachers of primary school i.e. for classes I to V.
A candidate for the post of a teacher in a primary school was to have
these three qualifi cations.
A. He must have passed higher secondary level.
B.
He must have a Diploma in elementary education (D.El.Ed.),
by whatever name it was called in that State.
C.
He should then pass an examination to be conducted by the
State known as Teachers Eligibility Test or TET.
25. The academic authority, which is NCTE considered the
appointment of trained and qualifi ed teachers as an absolute necessity
in primary schools. It is for this reason that the qualifi cation which was
prescribed for a teacher in primary school was a diploma in elementary
education (D.El.Ed.), and not any other educational qualifi cation, including
B.Ed. Apart from this the teachers eligibility test or TET would further test
the skills of a candidate to handle students at primary level.
It must be emphasised that the pedagogical approach required from
a teacher at primary level is in some manners unique. These are the initial
formative years where a student has just stepped inside a classroom, and
therefore needs to be handled with care and sensitivity. A candidate who has
a diploma in elementary education (D.El.Ed.) is trained to handle students
at this level, as he has undergone a pedagogical course specifi cally designed
for this purpose.
The 'Academic Authority' which is NCTE is mandated by the
Act to set up a curriculum and evaluation procedure for the all round
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DEVESH SHARMA v. UNION OF INDIA AND ORS.
[SUDHANSHU DHULIA, J.]
development of a 'child', mindful of all the fears and anxieties which a child
may have. Section 29 of the Act reads as under :-
29. Curriculum and evaluation procedure.-(1) The curriculum
and the evaluation procedure for elementary education shall be laid
down by an academic authority to be specifi ed by the appropriate
Government, by notifi cation.
(2) The academic authority, while laying down the curriculum
and the evaluation procedure under sub-section (1), shall take into
consideration the following, namely:-
(a) conformity with the values enshrined in the Constitution;
(b) all round development of the child;
(c) building up child's knowledge, potentiality and talent;
(d) development of physical and mental abilities to the fullest
extent;
(e) learning through activities, discovery and exploration in a
child friendly and child-centered manner;
(f) medium of instructions shall, as far as practicable, be in child's
mother tongue;
(g) making the child free of fear, trauma and anxiety and helping
the child to express views freely;
(h) comprehensive and continuous evaluation of child's
understanding of knowledge and his or her ability to apply the
same."
As we can see the curriculum and evaluation procedure which the
'Academic Authority' is mandated to set up requires a pedagogical approach
which can be best given by teachers who are trained to deal with child
students.
A person who has a B.Ed. qualifi cation has been trained to impart
teaching to secondary and higher secondary level of students. He is not
expected to impart training to primary level students.
In order to appreciate the difference between Diploma in
Elementary Education (it is called by diff erent names in each State), and
Bachelor of Education (B.Ed.), we look no further than the Notifi cations
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issued by National Council for Teacher Education (NCTE) itself from time
to time.
The Appendix 2 to the NCTE Regulations, 2009 spells out as to what
is the aim of Elementary Education. It is stated to be as follows:
"1. Preamble
1.1 The Diploma in Elementary Education (D.El.Ed) is a two year
professional programme of teacher education. It aims to prepare
teachers for the elementary stage of education, i.e. classes I to VIII.
The aim of elementary education is to fulfi ll the basic learning needs
of all children in an inclusive school environment bridging social and
gender gaps with the active participation of the community.
1.2 The elementary teacher education programme carries diff erent
nomenclatures such as BTC, J.B.T, D.Ed. and (Diploma in Education).
Henceforth, the nomenclature of the programme shall be the same
across all states and it shall be referred to as the 'Diploma in
Elementary Education'(D.El.Ed)."
The same Regulation in its appendix 4 describes B.Ed as follows:
"1. Preamble
The Bachelor of Education programme, generally known as B.Ed., is a
professional course that prepares teachers for upper primary or middle
level (classes VI-VIII), secondary level (classes IX-X) and senior
secondary level (classes XI-XII). The programme shall be off ered in
composite institutions as defi ned in clause (b) of Regulations 2."
It is therefore clear that a B.Ed. course is not designed for teaching
at primary level.
Moreover, the inclusion of B.Ed. candidates for primary classes is
in the teeth of several decisions of this Court, as this Court has consistently
held that Diploma in elementary education (D.El.Ed.) and not B.Ed., is the
proper qualifi cation in Primary Schools.
26. In Dilip Kumar Ghosh and Others versus Chairman and
Others12, this Court had to decide on the question whether B.Ed degree
12 (2005) 7 SCC 567
181
DEVESH SHARMA v. UNION OF INDIA AND ORS.
[SUDHANSHU DHULIA, J.]
candidate can be equated with a candidate who holds training in Primary
School teaching or in other words who is trained specifi cally for Primary
Schools. The Contention of the appellants (in the aforesaid case) who
were B.Ed. candidates was that, their course (B.Ed.), equips them to teach
Primary Classes. Their contention was rejected by this Court. In Para 9, it
stated as under:
"In B.Ed. curriculum such subjects like child psychology are not found.
On the other hand, the curriculum is of a generic nature and deals
with subjects like the principle of educational-curriculum studies,
educational psychology, development of education in modern India,
social organization and instructional methods, etc."
Then again in Para 10 it was stated as under:
"............For teaching in the primary school, therefore, one must know
the child psychology and development of a child at a tender age. As
already noticed, the candidates like the appellants who are trained in
B.Ed. degree are not necessarily to be equipped to teach the students
of primary class. They are not trained and equipped to understand the
psychology of a child of tender age."
In P.M. Latha and Another versus State of Kerala and Others13 the
argument that B.Ed. qualifi cation is a higher qualifi cation than Diploma in
Elementary Education (D.El.Ed.) was rejected. Again, it was a case before
the Apex Court where B.Ed candidates, were claiming appointment as
Primary School teachers on the basis of the claim that their educational
qualifi cation (i.e. B.Ed.) was even higher than the Diploma in Elementary
Education (D.El.Ed.) which was held by the other candidates. In para 10 of
the said case, it was stated as under:
"We find absolutely no force in the argument advanced by the
respondents that B.Ed. qualifi cation is a higher qualifi cation than
TTC and therefore, the B.Ed. candidates should be held to be eligible
to compete for the post................"
These fi ndings were reiterated by Supreme Court in Yogesh Kumar v.
Government of NCT, Delhi14, holding that though B.Ed. is a well-recognized
13 (2003) 3 SCC 541
14 (2003) 3 SC 548
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qualifi cation in the fi eld of teaching, yet it is a training which equips a
candidate to teach higher classes, not classes at primary level.
27. B.Ed. is not a qualifi cation for teachers at Primary level of
schooling. The pedagogical skills and training required from a teacher
at Primary level is not expected from a B.Ed. trained teacher. They are
trained to teach classes at higher level, post primary, secondary and above.
For Primary level i.e. class I to class V the training is D.El.Ed or what is
known as diploma in elementary education. It is a D.El.Ed. training course
which is designed and structured to impart skills in a teacher who is to teach
Primary level of students.
Therefore, by implication the inclusion of B.Ed. as a qualifi cation
amounts to lowering down of the 'quality' of education at Primary level.
'Quality' of education which was such an important component of the entire
elementary education movement in this country, which we have discussed
in the preceding paragraphs of this order.
28. We are also conscious of the fact that, till the notifi cation dated
28.06.2018, the consistent policy of NCTE had been to exclude B.Ed.
candidates from the eligibility criteria of Primary School Teachers. In the
23.08.2010 notifi cation - the fi rst given by NCTE in its capacity as the
"academic authority" under Section 23 of the RTE Act, which has been
referred in the preceding paragraphs, B.Ed. qualifi ed teachers were not
considered for primary classes. All the same, purely in order to equip the
various State governments to establish enough training colleges/centres for
imparting specialised training centres for elementary teachers, the B.Ed.
candidates were to continue for a very limited period.
29. This was during the initial period starting from the year 2010
onwards, when the Act and the subsequent order of NCTE laid down the
qualifi cations for Primary School Teachers throughout the country. But
essentially B.Ed. qualifi ed teachers were kept out from the purview of the
eligibility of the teachers in primary schools as B.Ed. was not considered a
"qualifi cation" for teachers at primary level.
The inherent pedagogical weakness in B.Ed. courses (for primary
classes), is well recognised, and it is for this reason that in the impugned
notifi cation itself it is provided that B.Ed. trained teachers will have to
undergo a six months training in elementary classes, within the fi rst two
years of their appointment.
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DEVESH SHARMA v. UNION OF INDIA AND ORS.
[SUDHANSHU DHULIA, J.]
In this background, the inclusion of B.Ed. candidates for primary
level classes is beyond our comprehension.
We have seen so far that the need for 'quality' and meaningful primary
education was emphasized by the legislature as well as by the academic
authority all throughout. In primary education, any compromise on 'quality'
of education would mean going against the very mandate of Article 21A and
the Act. The value of Primary education can never be overstated.
Myron Weiner in his important book on Child Labour in India15, links
child labour problems in India to the lack of eff ective measures in the past
in the fi eld of elementary education. Great care must be taken to nurture
these institutions as our future takes shape in these classes. Victor Hugo
had famously said 'one who opens a school door, closes a prison.' Children
still working in hazardous environment and juveniles in confl ict with law, in
some measure, do point towards the weakness in our elementary education
system, both on its accessibility and its 'quality'.
The pedagogical skills of a teacher must be given a very high priority.
But our priority seems to be diff erent. It is not to impart 'quality' education,
but to provide more job avenues to B.Ed. trained candidates, as this seems to
be the only reason for their inclusion, in presence of overwhelming evidence
that B.Ed. course is not a suitable course for primary classes.
The material which has been placed before this Court in the form of
offi cial communications and meetings at the highest level makes it clear
that in the present case the decision taken by NCTE is not an independent
decision of an expert body which is created by the statute and mandated to
take independent decisions. The aim of NCTE is to improve the standard of
education and not to provide further avenues for employment to B.Ed. trained
teachers. We may also mention that this is being done when teachers trained
in elementary education can be employed only as teachers in elementary
schools and nowhere else, when compared to B.Ed. qualifi ed teacher,
who can be employed in senior elementary classes (VI to VIII), as well as
secondary and higher secondary classes. It is therefore in any case not fair
on the Diploma holders, who will now be seeing the only space available
for them shrinking further.
15 Weiner Myron (1991) : T e Child and the State In India in Comparative Perspective-

Princeton University Press
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SUPREME COURT REPORTS
[2023] 11 S.C.R.
The inclusion of B.Ed. as a 'qualifi cation' was done by the notifi cation
dated 28.06.2018, which was impugned before the Rajasthan High Court. This
notifi cation is reproduced below: -
"National Council for Teacher Education
Notifi cation
New Delhi, the 28th of June, 2018
F. No. NCTE-Regl 012/16/2018-In exercise of the powers conferred by
sub-section (1) of Section 23 of Right to Children to Free and Compulsory
Education Act, 2009 (35 of 2009) and in pursuance of notifi cation number
S.P. 750(E), dated the 31st March, 2010 issued by the Department
of School Education and Literacy, Ministry of Human Resource
Development, Government of India, the National Council for Teacher
Education (NCTE) hereby makes the following further amendments to
the notifi cation number F.N. 61-03/20/2010/NCTE/(N&S), dated the 23rd
August, 2010 published in the Gazette of India, Extraordinary, Part III,
Section 4, dated the 25th August, 2010 hereinafter referred to as the said
notifi cation namely:-
(1) In the said notifi cation, in para 1 in sub-para (i), in clause (a) after the
words and brackets "Graduation and two year Diploma in Elementary
Education (by whatever name known), the following shall be inserted,
namely:-
OR
"Graduation with at least 50% marks and Bachelor of Education (B.Ed.)"
2. In the said notifi cation in para 3, for sub-para (a), the following subpara shall be substituted namely:-
"(a) who has acquired the qualifi cation of Bachelore of Education from
any NCTE Recognized institution shall be considered for appointment as
a teacher in classes I to V provided the person so appointed as a teacher
shall mandatorily undergo a six month Bridge course in Elementary
Education recognized by the NCTE, within two years of such appointment
as primary teacher"
(Emphasis supplied)
185
DEVESH SHARMA v. UNION OF INDIA AND ORS.
[SUDHANSHU DHULIA, J.]
30. The sequence of events, which are now well established by the
documents which were placed before the Rajasthan High Court and before
this Court, make it clear, that the decision to include B.Ed. as a qualifi cation
was apparently triggered by a letter of the Commissioner of KVS16, who
made a request requested that since in the Primary classes of Central Schools
suffi cient number of trained Diploma holders are not available, they may be
permitted to appoint B.Ed. qualifi ed teachers, who are readily available.