Suneet Kumar, J. - (1.) Heard Sri R.K. Ojha, Sri Ashok Khare, learned Senior Counsels assisted by Sri S.C. Tripathi, learned counsel for the petitioner. Sri M.C. Chaturvedi, learned Additional Advocate General, Sri J.N. Maurya, learned Chief Standing Counsel and Sri Vivek Kumar Rai, learned Additional Chief Standing Counsel for the State respondents. Sri Bharat Pratap Singh has put in appearance on behalf of fourth respondent and Sri Ashok Kumar Yadav, learned counsel on behalf of U.P. Basic Shiksha Parishad, Allahabad.
(2.) The Court upon rival submissions passed the following order on 12 October 2017, which is extracted: "Heard learned counsel for the parties. Pursuant to government order dated 16 June 2016 initiating process/selection of 16448 assistant teachers in Junior Basic School run and managed by the Basic Education Board, petitioner applied in terms of circular dated 25 June 2016 issued by the second respondent, Secretary, Basic of Education, U.P. Lucknow. Petitioner is having graduation degree and two years Diploma in Elementary Education (D.El.Ed), passed in 2011 from District Institute for Education and Training (DIET), Seppa, District East Kameng, Arunanchal Pradesh, which is duly recognized by the NCTE vide order dated 4 January 2006. Petitioner has also passed and qualified the Teachers Eligibility Test (T.E.T.) for class 1 to 5. Petitioner appeared at District Siddharth Nagar for counseling, having merit above the cut of marks, but despite having merit, respondents have not issued appointment letter to the petitioner, though the petitioner's name finds place in the select list prepared by the District Basic Education Officer. Aggrieved, petitioner approached this Court by filing a petition being Writ-A No. 16512 of 2017 which was disposed of on 19 April 2017. No order was passed on the representation. Aggrieved, petitioner was compelled to file contempt application No. 2584 of 2017 which was disposed of on 31 May 2017 directing the second respondent to take a decision within four weeks. No decision was taken and the matter was kept pending. Petitioner was compelled to file a second contempt petition being application No. 3086 of 2017, in which, notice was issued to the second respondent. Pursuant thereof, impugned order dated 15 September 2017 was passed by the second respondent rejecting the representation for the reason that D.El.Ed/D.Ed. has not been accepted as an essential qualification, further, it has been noted in the impugned order that since petitioner has Diploma in Education (D.Ed.), therefore, lacks qualification pursuant to notification dated 23 August 2010, as amended on 29 July 2011, issued by the NCTE. The Secretary, Board of Basic Education, U.P., Allahabad, was summoned to explain as to how the petitioner lacks the requisite qualification as notified by the NCTE. Sri B.P. Singh, learned counsel for the appearing for the second respondent would submit that NCTE circulars dated 23 August 2010, 29 July 2011 and 28 November 2014, wherein, the norms/standards for diploma in elementary teacher education programme having been prescribed, however, it does not pertain to degree/certificate mentioned therein which the candidate is required to possess while considering his candidature for appointment as a teacher. He would further submit that the notifications issued by the NCTE prescribing qualification/eligibility conditions would not have an overriding effect upon the Act and Rules governing appointment of assistant teachers in basic institution, therefore, would urge that the NCTE circulars are not binding upon the second respondent. Learned Senior Counsel appearing for the petitioner would submit that the second respondent has been subjecting the candidates to harassment, the conduct of the officer tantamounts to criminal contempt for the reason that the second respondent in substance has taken a stand that he is not bound by the legislative intent enunciated in enacting the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to 'Act 2009') which provides for free and compulsory education to children from 6 years to 14 years as mandated by Article 21A. Pursuant to Section 23(1) of Act 2009, NCTE on 23 August 2010 prescribed the minimum qualification for appointment of assistant teacher for class 1 to 8 which was subsequently amended on 23 July 2011 prescribing the qualification for teachers for class 1 to 5. NCTE is duly constituted under the National Council For Teacher Education Act, 1993, and in exercise of power under Section 32, NCTE framed National Counselling for Teachers Education (norms and procedure) Rule 2014, prescribing norms and standard for elementary teachers education programme leading to diploma in elementary education. Relevant portion is extracted : 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 1 to VIII. The aim of elementary education is to fulfill 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 different 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.). Further, would submit that in view of the ratio laid down by the Full Bench in Shiv Kumar Sharma and others Vs. State of U.P. and others, 2013 6 ADJ 310, wherein, it has been held that notification dated 23 August 2010 and the qualifications determined by the NCTE would have overriding effect in so far State Legislation Act, Rules or Regulation are in conflict with the notification issued by the NCTE, which therefore, has to be ignored. The principle has been reiterated in the subsequent Full Bench decision rendered in Anand Kumar Yadav and others Vs. Union of India and others, 2015 8 ADJ 338 (FB). The decision has been afirmed by the Supreme Court in State of U.P. v. Anand Kumar Yadav, 2017 8 ADJ 173, wherein, one of the question posed before the Court was as follows: "(i)................. (ii)............... (iii)........... (iv) Whether statutory qualifications in a Central Statute on a concurrent list subject could be relaxed by a State legislative/administrative action? The Supreme Court in para 80 held as follows: "80. What has happened in the State of Uttar Pradesh is that the State Government, in a clear violation of the mandate of Section 23(2) which vests the power to relax the minimum qualifications in the Central Government, has arrogated to itself a power which it lacks, to grant exemption from the mandatory qualifications which are laid down by NCTE in their application to Shiksha Mitras in the State. ......... Parliament has legislated to provide, in no uncertain terms, that any relaxation of the minimum educational qualifications can only be made by the Central Government." In State of U.P. v. Shiv Kumar Pathak, 2017 8 ADJ 164, the question posed before the Supreme Court was with regard to the validity of the decision of the State of Uttar Pradesh in prescribing qualifications for recruitment of teachers at variance with the guidelines of the National Council for Teachers Education (NCTE) dated 11th February, 2011 under Section 12 (d) read with Section 12A of the National Council for Teachers Education Act, 1993 (NCTE Act) and Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) on the ground of repugnancy of State law with the Central law on a subject falling in concurrent list. The Court held as follows: "16. there is no manner of doubt that the NCTE, acting as an 'academic authority' under Section 23 of the RTE Act, under the Notification dated 31st March, 2010 issued by the Central Government as well as under Sections 12 and 12A of the NCTE Act, was competent to issue Notifications dated 23 rd August, 2010 and 11th February, 2011. The State Government was under obligation to act as per the said notifications and not to give effect to any contrary rule. ........ Accordingly, while we uphold the view that qualifications prescribed by the NCTE are binding........................." In the backdrop of the settled legal position, it is sought to be urged that the second respondent has become law unto himself. The Second respondent, which is an agency for ensuring training of teachers and a creature of the statutory scheme refuses to accept the provisions and notifications issued under the National Council for Teacher Education Act and Act 2009. In the circumstances, first respondent-Secretary, Basic Education, Lucknow, shall file personal affidavit explaining as to which degree/certificate is a valid qualification to be accepted by the second respondent, failing which he shall appear in person. The second respondent shall also file counter affidavit.
(3.) Pursuant thereof, the first respondent, State Government has issued notification dated 27 November 2017, whereby, notifications issued by the National Council for Teacher Education (hereinafter referred to as "N.C.T.E.") on 23 August 2010, 29 July 2011, 12 November 2014 and 28 November 2014, prescribing qualification for the post of Assistant Teacher in Primary Institutions of the State, has been incorporated.;