1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 2010
ARISING OUT OF
SPECIAL LEAVE PETITION (C) NOs. 4854-4856 OF 2009
STATE OF U.P. & ORS. ... APPELLANTS
VERSUS
BHUPENDRA NATH TRIPATHI & ORS. ... RESOPNDENTS
WITH
CIVIL APPEAL NO. 2010
ARISING OUT OF
SPECIAL LEAVE PETITION (C) NO. 11223 OF 2009
STATE OF U.P. & ORS. ... APPELLANTS
VERSUS
BHUPENDRA NATH TRIPATHI & ORS. ... RESOPNDENTS
JUDGMENT
B. SUDERSHAN REDDY, J.
1. Leave granted.
2. The State of Uttar Pradesh and its authorities are in
appeal before us challenging the correctness of the
2
judgment rendered by a Full Bench of the High Court of
Judicature at Allahabad whereby and whereunder the High
Court held that the restriction as contained in the
Government Order dated 10th July, 2007 limiting the
eligibility to apply for Special Basic Training Course 2007
only to such of those candidates who have passed B.Ed.
from the institutions recognized by the National Council
for Teacher Education (NCTE) as arbitrary and
unreasonable. The High Court held that the exclusion of
candidates from the field of eligibility for the said course
who have obtained B.Ed. degree prior to enforcement of
National Council for Teacher Education Act, 1993 (for
short `the Act’) or after the enforcement of the Act during
the period when the application of any institution or
University was pending consideration is arbitrary,
unreasonable and violative of Articles 14 and 16 of the
Constitution of India.
3. In order to appreciate as to whether the impugned
judgment rendered by the Full Bench suffers from any
3
infirmities requiring our interference, few relevant facts
may have to be noticed:
BACKGROUND FACTS
Although appalling and almost unbelievable, but the
fact remains that in State of Uttar Pradesh, more than
60,000 posts of Assistant Teacher in primary institutions run
by Uttar Pradesh Basic Shiksha Parishad are lying vacant
and unfilled for a long time for whatever be the reasons
thereof. The appointment of teachers in primary institutions
is governed and regulated by the statutory rules known as
U.P. Basic Education (Teachers) Service Rules, 1981 framed
by the Government of Uttar Pradesh in exercise of its power
under U.P. Basic Education Act, 1972. The rules provide that
for appointment of Assistant Master and Assistant Mistress in
Junior Basic Schools, one is required to possess a bachelor’s
degree from a University established by law in India
together with Basic Teacher’s Training Certificate (BTC) or
any other training course recognized by the Government as
equivalent thereto. The BTC course in the State of U.P. is
4
imparted by District Institute of Education and Training
(DIET) run by the State in different Districts with limited
intake capacity on account of which a large number of posts
remain vacant as suitable candidates were not available for
being appointed as Assistant Teachers.
4. It is under those circumstances, the State had formulated
a scheme for the imparting of the Special BTC course to
such of those candidates who were already holding the
Degree of B.Ed. Such an exercise was undertaken in the
year 1998, 2004 and 2007. We are concerned in the
present case with the Special Basic Training Course 2007.
The State submitted proposals to the Regional Committee
of the National Council for Teacher Education seeking
appropriate permission to impart Special Basic Training
Course in recognized DIETs of U.P. to the candidates who
are already holders of B.Ed. qualification. Such permission
is required for starting any new course or training in
teacher education by any recognized institution under the
provisions of the Act. The NCTE vide its order dated 27 th
5
June, 2007 granted permission for imparting Special BTC
Course as requested by the State. The State Government
issued an order specifying guidelines and conditions for
imparting Special BTC Course, 2007 which, inter alia,
provide minimum educational qualification for Special BTC
Course, 2007 as Graduation with B.Ed. from any
recognized college run by State/Central Government and
approved by the NCTE under the provisions of the said
Act. In pursuance of the Government Order dated 10th
July, 2007, advertisement was issued which was
published in various newspapers on 18th July, 2007
inviting applications from the eligible candidates for
Special BTC Course, 2007.
5. The writ petitioners possess B.Ed. degrees (Shiksha
Shastri Pariksha) having obtained the same from
institutions affiliated to Sampurnand Sanskrit
Vishwavidyalaya, Varanasi and from Purvanchal
Vishwavidyalaya, Jaunpur. They have passed their B.Ed.
in different years between 1993 and 1998. Minor details,
6
if any, with regard to other candidates are not really
material for our present purpose. Suffice it to note that all
the writ petitioners submitted their applications to DIETs
and were called for counselling in November, 2007. That a
list was prepared and published revealing that they have
been selected for counseling and after counselling, they
were called for training and their names were accordingly
included in the final selection list.
6. It is at this juncture, the controversy begins. Before the
writ petitioners were actually sent for training, the
Director, State Council for Research and Training put the
DIETs on notice of a Division Bench judgment in Smt.
Sunita Upadhyay Vs. State of U.P. & Ors. requiring all the
Principals of DIETs to act in accordance with the said
Judgment. This was followed by the letters issued by
DIETs duly intimating the writ petitioners that in the year
when they have passed the B.Ed., the institutions from
which they have obtained the Degree were not duly
recognized by NCTE and therefore, they were not eligible
7
and cannot be sent for Special BTC Course. The same
were challenged by the writ petitioners on various
grounds. The writ petition was dismissed by a learned
Single Judge declaring that it was always open to the
State Government to provide a further higher qualification
for admission into the course in addition to the
qualifications which have been duly prescribed by the
NCTE. The learned Single Judge while relying on
judgments of Division Bench in Sanjai Kumar & Ors. Vs.
State of U.P. & Ors. and Sunita Upadhyaya (supra)
distinguished the judgment rendered by another Division
Bench in Ekta Shukla & Ors. Vs. State of U.P.1.
7. Aggrieved by the same, the writ petitioners preferred
Special Appeal against the judgment of the learned Single
Judge. The Division Bench noticed the apparent conflict
between the decisions rendered by Division Benches in
Sunita UPadhyaya and Sanjai Kumar. The Division Bench,
after considering the issues raised in the appeal, referred
the matter for consideration by a larger Bench. That is
1
2006 (1) ESC 531
8
how the matter has been placed before the Full Bench of
the High Court resulting in the impugned judgment.
8. The Full Bench, after an elaborate consideration of the
matter, held:
(a) The candidates who have B.Ed. degree obtained from an
institution or University during the period when the
application of the institution or the University for grant of
recognition under Section 14 of the National Council for
Teacher Education Act, 1993 was pending, are eligible for
Special BTC Course 2007 as laid down by the Division Bench
in Ekta Shukla’s case (supra).
(b) The proviso to Section 14(1) recognizes continuance of
the course, which was being run immediately before the
appointed day provided application is submitted within the
continuance of such course is deemed recognition of such
course and degree awarded therein by express provisions of
proviso to Section 14(1) of National Council for Teacher
Education Act, 1993.
9
(c) The exclusion of the candidates from the field of
eligibility for Special BTC Course 2007 who have obtained
B.Ed. degree prior to the enforcement of NCTE Act, 1993 or
after the enforcement of the said Act during the period when
the application of the institution or University was pending
consideration is arbitrary, unreasonable and violative of
Article 14 of the Constitution. The above two categories of
candidates are also eligible to participate in Special BTC
Course 2007.
9. The conclusions drawn by the Full Bench are seriously
challenged by the State in these appeals on various
grounds.
10.We have heard Shri P.P. Rao, learned senior advocate on
behalf of the State and M/s A.M. Singhvi and P.S.
Narsimha, learned senior counsel for the respondents-writ
petitioners.
RIGHT TO EDUCATION
11. We have given our thoughtful consideration to the entire
issue that arises in this matter for our consideration. The
10
directive principle contained in Article 45 has made a
provision for free and compulsory education for all
children upto the age of 14 years within 10 years of
promulgation of the Constitution of India but the nation
could not achieve this goal even after 50 years of
adoption of the provision. The task of providing education
to all children in this age group gained momentum after
National Policy of Education (NPE) was announced in
1986. It was felt that though the Government of India in
partnership with State Governments had made strenuous
efforts to fulfill the mandate and though significant
improvements were seen in various educational
indicators, the ultimate goal of providing universal and
quality education still remained unfulfilled. In order to
fulfill that goal, it was felt that an explicit provision should
be made in the Part of the Constitution relating to
Fundamental Rights. Right to Education is now a
guaranteed fundamental right under Article 21A. It
commands that the State shall provide free and
11
compulsory education to all children of the age of 6 to 14
years in such manner as the State may, by law,
determine. The State as at present is under the
constitutional obligation to provide education to all
children of the age of 6 to 14 years. The State by virtue of
Article 21A is bound to provide free education, create
necessary infrastructure and effective machinery for the
proper implementation of the right and meet total
expenditure of the schools to that extent. Right to
Education guaranteed by Article 21A would remain illusory
in the absence of State taking adequate steps to have
required number of schools manned by efficient and
qualified teachers. Before teachers are allowed to teach
the children, they are required to receive appropriate and
adequate training from a duly recognized training
institute. It has been observed by this Court : “Allowing
ill-trained teachers coming out of derecognized or
unrecognized institutes or licensing them to teach the
children of impressionable age, contrary to the norms
12
prescribed, will be detrimental to the interest of the
nation itself in the sense that in the process of building a
great nation, teachers and educational institutions also
play vital role. In cases like these, interest of individuals
cannot be placed above or preferred to larger public
interest” [See L. Muthukumar Vs. State of Tamil
Nadu2]. Such is the importance of proper training to the
teachers before they are allowed to teach the children of
impressionable age. Part of the mantra of development
economics today is a stress on universal primary
education, including specific emphasis on educating girls.
Several countries have shown with experience that
investing in primary education has been a fundamental
factor resulting in economic and social development. But
in some countries including ours, it has been very difficult
to achieve high enrollment rates, it is precisely for that
reason and with a view to create a culture in which the
expectation was that everyone went to school and that
the entitlement to free primary education was universal, a
2
(2000) 7 SCC 618
13
provision is made in Part III of the Constitution imposing
an obligation on the State to provide free and compulsory
education to all children of the age of 6 to 14 years. The
provision intends a systemic change to empower the
marginal and deprived sections of the society.
EFFORTS MADE BY THE STATE OF UTTAR PRADESH
12. As pointed out in the instant case, the problem
confronting the State of Uttar Pradesh with respect to
imparting free and compulsory education appears to be a
gigantic one. A scheme known as Sarva Shiksha Abhiyan
was launched by the Government of India and for
universalization of education, time bound goals have been
ascertained. In order to achieve those goals, the State of
Uttar Pradesh appointed 33,000 B.Ed. graduates in the
primary schools controlled by U.P. Basic Education after
the selection and successful completion of six months
Special BTC Course. The State, thereafter, addressed
NCTE requesting it to accord necessary
recognition/consent to conduct and to select the
14
candidates for Special BTC Training 2006 as proposed by
the State Government to fill the vacancies in Parshadiya
School of Basic Education all over U.P. and to admit the
B.Ed./L.T.B.P.Ed./C.P.Ed./D.P.Ed. trained candidates in
the training. The NCTE, having considered the proposal
submitted by the Government of Uttar Pradesh for Special
BTC Course of six months duration granted one time
approval for training candidates for being appointed as
primary teachers who were already B.Ed. subject to the
fulfillment of the following:
(a) The teachers are to be trained only in the DIETs
recognized by NRC-NCTE.
(b) The SGERT to submit the date of commencement of
the course along with the list of the recognized
DIETs where the proposed training is to be
conducted.
(c) The quarterly progress report of the programme is
to be submitted to NRC-NCTE.
15
(d) The curriculum as finalized in the meeting between
the NCTE and the State Government of U.P. is to be
followed for the programme.
This was followed by the guidelines, terms and conditions
issued by the Government for the selection process and
training of the selected candidates for Special BTC Training,
2007 which, inter alia, provide Graduation as the minimum
academic eligibility and they must have passed the B.Ed.
degree recognized by NCTE from the institutions/University
established under law and recognized as regular candidate
fulfilling all other conditions. After completion of the six
months training of all the candidates of the concerned
District, a formal written examination would be held and
successful candidates would be eligible for appointment as
Assistant Teacher in Parshadiya Primary Schools. That is the
scheme in vogue.
13. The candidates in the present case were finally selected to
undergo Special Basic Training course, 2007. Before they
could be actually sent for training, the Director, State
16
Council of Research and Training addressed DIETs in the
State to follow the judgment in Sunita Upadhyay which
declared that so far as the BCT course is concerned, there
is a specific stipulation in the advertisement that the
candidates concerned to have the degree or diploma from
the NCTE recognized institutions and since the candidates
therein did not have the recognition of NCTE as on the
date when they have obtained their B.Ed. and therefore,
were not eligible to join the BTC course.
14. Before we proceed further, one important factor that is
required to be borne in mind in the present case is that on
the date of notification all the colleges from which the writ
petitioners obtained their degrees were recognized by
NCTE. We make it clear that the candidates securing the
degrees from those institutions whose applications were
ultimately rejected by NCTE stands entirely on different
footing.
15. The real question that falls for our consideration is
whether only B.Ed. candidates who have obtained this
17
degree after grant of recognition by NCTE or those
candidates who have obtained their degree when the
application of the institution for recognition was pending
or such of those candidates who have obtained B.Ed.
degree prior to commencement of the Act on 1st July,
1995 are also eligible to join the BTC course. On an
analysis of the material available on record and the
submissions, the following are the various possible
distinctions identified during the course of several levels
of litigation concerning the issue :
(I) Degrees obtained from recognised institutions
which have initiated such courses after the
commencement of NCTE Act;
(II) Degrees obtained from institutions after the
commencement of the Act during the pendency of
applications seeking recognition which ultimately
did not receive the recognition;
18
(III) Degrees obtained from institutions during the
pendency of applications after which they have been
recognized;
(IV) Degrees obtained from Universities and affiliated
colleges thereof before the commencement of NCTE
Act which have been granted recognition after the
Act coming into force; and
(V) Degrees obtained from Universities and affiliated
colleges before the commencement of the Act which
have not been granted recognition.
SCHEME OF THE ACT
16. The NCTE Act, 1993 is an Act to provide for the
establishment of National Council for Teacher Education
with a view to achieving planned and coordinated
development of the teacher education system throughout
the country, for regularization and proper maintenance of
norms and standards in the teacher education system and
for matters connected therewith. The Act came into force
with effect from July 1, 1995 the appointed date under
19
Section 1 (3) of the Act. Section 2(i) defines “recognized
institution” which means an institution recognized by the
Council under Section 14. The said Section 14 which is
relevant for our present purposes reads as under :
Section 14 : Recognition of institutions offering
course or training in teacher education :
(1) Every institution offering or intending to offer
a course or training in teacher education on or
after the appointed day, may, for grant of
recognition under this Act, make an application to
the Regional Committee concerned in such form
and in such manner as may be determined by
regulations:
Provided that an institution offering a course or
training in teacher education immediately before
the appointed day, shall be entitled to continue
such course or training for a period of six months,
if it has made an application for recognition within
the said period and until the disposal of the
application by the Regional Committee.
(2) The fee to be paid along with the application
under subsection (1) shall be such as may be
prescribed.
(3) On receipt of an application by the Regional
Committee from any institution under sub-section
(1), and after obtaining from the institution
concerned such other particulars as it may
consider necessary, it shall,-
20
(a) if it is satisfied that such institution has
adequate financial resources, accommodation,
library, qualified staff, laboratory and that it fulfils
such other conditions required for proper
functioning of the institution for a course or
training in teacher education, as may be
determined by regulations, pass an order granting
recognition to such institution, subject to such
conditions as may be determined by regulations;
or
(b) if it is of the opinion that such institution does
not fulfill the requirements laid down in sub-clause
(a), pass an order refusing recognition to such
institution for reasons to, be recorded in writing:
Provided that before passing an order under sub-
clause (b), the Regional Committee shall provide a
reasonable opportunity to the concerned
institution for making a written representation.
(4) Every order granting or refusing recognition to
an Institution for a course or training in teacher
education under sub-section (3) shall be published
in the Official Gazette and communicated In
writing for appropriate action to such institution
and to the concerned examining body, the local
authority or the State Government and the Central
Government.
(5) Every institution, in respect of which
recognition has been refused shall discontinue the
course or training in teacher education from the
end of the academic session next following the
date of receipt of the order refusing recognition
passed under clause (b) of sub-section (3).
(6) Every examining body shall, on receipt of the
order under subsection (4),-
21
(a) grant affiliation to the institution, where
recognition has been granted; or
(b) cancel the affiliation of the institution, where
recognition has been refused.
17. Section 16 of the Act mandates that the affiliating body to
grant affiliation only after the institution concerned has
obtained recognition from the Regional Committee
concerned under Section 14 or permission for a course or
training under Section 15. Section 17 (3) declares that
once the recognition of a recognized institution is
withdrawn under sub-section (1), such institution shall
discontinue the course or training in teacher education,
and the concerned University or the examining body shall
cancel affiliation of the institution with effect from the end
of the academic session next following the date of
communication of the said order.
18. A fair reading and analysis of the scheme of the Act with
respect to recognition of the institution imparting course
or training in teacher education is an essential prelude to
22
the core questions involved. On a plain reading of the
provisions it is evident that on and from the date of
enforcement of the Act, every institution offering or
intending to offer the course or training in teacher
education, was required to make application to the
Regional Committee in such form and manner as may be
determined by the regulations as provided in Section 14
of the Act. The proviso to Section 14(1) states that an
institution offering a course or training in teacher
education immediately before the appointed day, shall be
entitled to continue such course or training for a period of
six months if it has made an application for recognition
within the said period and until disposal of the application
by the Regional Committee. What happens in case of
existing institution makes application seeking recognition
within the prescribed time but no decision is taken by the
Council within the period of six months? Does it mean
that the institution can impart training only for a period of
six months and thereafter close the institution? Section
23
14(5) states that every institution, in respect of which
recognition has been refused shall discontinue the course
or training in teacher education from the end of the
academic session next following the date of receipt of the
order refusing recognition passed under clause (b) of sub-
section (3).
19. A plain reading of provisions suggests that all such
institutions offering a course or training in teacher
education prior to the Act coming into force, are entitled
to continue such course or training until the application is
disposed of provided such an application has been made
within six months from the appointed day. The
consequence of not being able to gain recognition is the
discontinuance of the course. Once an application seeking
recognition has been filed by the institution within the
prescribed period of six months the institution is entitled
to continue offering a course or training in teacher
education until the disposal of the application by the
Regional Committee. Once the recognition is granted by
24
the Regional Committee to the institution offering a
course or training in teacher education, the same shall
relate back to the date of filing of application. Section
14(5) read with Section 14(1) enables the institution
offering a course or training in teacher education on the
appointed day to continue the course or training as the
case may be during the pendency of the application
seeking recognition and even in case of refusal of
recognition, the course may have to be discontinued, only
at the end of academic session. The institution offering
training or course is entitled to award degree or
certificate as the case may be.
VIEW OF THE NCTE
20. The NCTE made its stand clear, as is evident from the
impugned order that after the enforcement of NCTE Act,
the existing institutions on the appointed day offering a
course or training in teacher education are entitled to
continue such course or training provided such institutions
apply for the grant of recognition under Section 14(1) of
25
the Act within a period of six months and until the
disposal of their application by the Regional Committee.
The degrees obtained during the pendency of the
application are valid and recognition of such institutions
shall relate back to the date of application and all such
institutions shall be deemed to have been recognized for
all purposes in view of Section 14(1) of the NCTE Act. The
NCTE reiterated its stand before us.
21. Prior to the enactment of NCTE Act, the degrees such as
B.Ed. course for teacher education were being awarded by
the Universities or by the recognized institutions by the
University Grants Commission or by such bodies as
authorized by the University Grants Commission. It is
unreasonable to hold that all those degrees granted by
the Universities or the bodies authorized by the University
Grants Commission as the case may be were of sub-
standard in nature in comparison to those degrees
granted by the recognized institutions after the NCTE Act
came into force. Such a view may amount to undermining
26
the importance of the university education and the role
played by the Universities in promoting the education and
educational standards. Each of the Universities have their
own systems and mechanism to grant affiliation to the
institutions offering courses at the college/University level
and grant of affiliation is never considered to be a matter
of course. Universities always ensure maintenance of
standards and degrees awarded only after successfully
completing the prescribed syllabi and the examinations
conducted by the Universities. The NCTE Act in no
manner makes any distinction between the degrees
granted by the Universities or authorized bodies
recognized by the University Grants Commission prior to
the enactment of the Act and the degrees granted by the
recognized institutions after the Act has come into force.
NCTE Act provides for the recognition of the institution
offering course or training in teacher education and does
not speak about recognition of the degrees granted by the
institution prior to the Act coming into force. Thus,
27
degrees granted by the institutions already in existence
offering a course or training in teacher education shall be
deemed to be at par with the degrees or certificates
granted by the recognized institutions after the
commencement of the Act provided those institutions in
existence offering the course also received recognition
under the Act.
22. In our considered view the State Government cannot
make any distinction between the degrees obtained from
the existing institutions prior to the Act coming into force
but received recognition after the commencement of the
Act and the degrees obtained from the recognized
institutions after the Act coming into force. It is not shown
how such a classification is based on an intelligible
differentia and on a rational consideration and further how
it bears a nexus to the purpose and object thereof. The
impugned action of the State results in the classification
or division of members of a homogeneous group and
28
subjecting them to differential treatment without any
rhyme or reason.
23. Learned senior counsel appearing for the State however
submitted that the State which runs a training course with
the approval of NCTE is entitled to prescribe the
qualifications for candidates seeking admission to the
course so long as the qualifications prescribed are not
lower than those prescribed by or under the NCTE Act.
The submission was that after the NCTE Act has come into
force the State is justified in insisting and prescribing
B.Ed. qualification from only such of those institutions
recognized by NCTE. Reliance has been placed upon the
decisions of this court in State of A.P. and Ors. Vs.
Lavu Narendranath & ors. etc.3, Dr. Preeti
Srivastava & Anr. Vs. State of M.P. & Ors.4 and State
of T.N. & Anr. Vs. S.V. Bratheep (Minor) & Ors.5
24. There is no quarrel with the proposition that the State in
its discretion is entitled to prescribe such qualifications as
3
(1971) 3 SCR 699
4
(1999) 7 SCC 120
5
(2004) 4 SCC 513
29
it may consider appropriate for candidates seeking
admission into BTC course so long as the qualifications so
prescribed are not lower than those prescribed by or
under the NCTE Act. The State can always prescribe
higher qualification, but the argument proceeds on the
assumption that B.Ed. qualification obtained from only
such of those institutions established and recognized by
NCTE after the Act coming into force is higher or superior
than the B.Ed. qualification obtained from the Universities
or affiliated colleges duly recognized by the University
Grants Commission prior to the Act coming into force.
What is the rational basis for such a presumption? None.
This fact assumes significance particularly in the light of
the fact that all the institutions from where the candidates
obtained their B.Ed. qualification have themselves
received recognition from the Regional Council after the
NCTE Act came into force.
30
25. For all the aforesaid reasons, we are of the opinion that
the impugned judgments do not suffer from any
infirmities requiring our interference.
26. As a result, the appeals fail and are accordingly
dismissed.
…………………………………………J.
(B. SUDERSHAN REDDY)
…………………………………………J.
(SURINDER SINGH NIJJAR)
NEW DELHI,
OCTOBER 29, 2010.