Arun Mishra, C.J. - (1.) IN these writ petitions, the Petitioners have prayed for relief to quash the Gazette Notification dated 23rd August, 2010 issued by the National Council for Teacher Education (hereinafter referred to as "the NCTE") 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 (hereinafter referred to as "the Act of 2009") laying down minimum qualifications to be eligible for appointment as a Teacher in Class I to VIII in a school referred to in Clause (n) of Section 2 of the Act of 2009. Prayer has also been made by the Petitioners to quash the condition of having minimum 45% or 50% marks in graduation. In some of the matters, prayer has been made to include the qualification of B. Com. also in graduation. Prayer has also been made to declare that the Notification dated 23.8.2010 shall operate prospectively. In some of the petitions, the Petitioners have prayed that as they have passed graduation from the University in Jammu and Kashmir, the Respondents be directed to ignore the minimum percentage in the graduation. Prayer has also been made in some of the petitions that Vidhyarthi Mitra and Serva Shiksha Karmik (CRCF) may not be compelled to qualify the Teacher Eligibility Test (hereinafter referred to as "the TET").
(2.) THE reference has been made by the Single Bench to 5 the Division Bench in Writ Petition No. 3964/2011 Sushil Sompura and Ors. v. State of Rajasthan and Ors. vide order dated 9th May, 2011. The following questions have been referred for adjudication by Division Bench: (A) Whether in absence of any eligibility or qualification in the rules the State Government can be permitted to conduct TET without amending the service rules made under Article 309, Constitution of India on the basis of notification dated 23.08.2010 which the Division Bench held vide order dated 13.4.2011 that it is not statutory in character? (B) Whether in view of the fact that stay order was in existence on 06.05.2011 upon conducting the TET in S.B. Civil Writ Petition No. 3749/2011 and order for modifying the order dated 15.4.2011 passed in S.B. Civil Writ Petition No. 3068/2011 could be made allowing the State Government to go ahead with conducting the TET examination? (C) Whether once opinion is expressed by the Division Bench that notification dated 23.8.2010 is not statutory in character, the learned Single Bench can pass order permitting the State Government to conduct TET examination which is not even enumerated in the service rules as eligibility or qualification on the basis of notification dated 23.8.2010 which is admittedly found to be administrative instruction by the Division Bench? (D) Whether in absence of eligibility prescribed in the rules the State Government will suffer any irreparable injury in not conducting TET till adjudication of the matter and whether while conducting TET and declaring any candidate unsuccessful and thereby denying consideration for appointment on the post of Teacher under the existing rules is legal? (E) Whether the State Government can withhold recruitment on the ground that first they will 6 conduct TET and thereafter proceed for prescribing qualification in the rules? It appears that there are conflicting opinion expressed by the Single Benches whether the cases are required to be heard by Single Bench or Division Bench. There are also conflicting orders of interim stay granted in different matters by different Benches, as such, cases have been referred to the Division Bench. Considering the fact that the Notification dated 23.8.2010, which has been issued by the NCTE, is under Section 23(1) of the Act of 2009, we have directed for listing of all the petitions before the Division Bench and have heard the learned Counsel appearing on behalf of the parties on merits of the cases including questions which have been referred and they are being decided by this common order.
(3.) IT is averred in Writ Petition No. 3964/2011 that the Petitioners have qualified three years degree course of graduation from respective colleges/university and thereafter, they have completed B. Ed. Course. Some of them have been appointed as Vidhyarthi Mitra under the Scheme introduced by the State Government for the purpose of teaching students of primary, upper primary, secondary and senior secondary schools. One incumbent is working on the post of CRCF in the Sarva Shiksha Abhiyan.;