JAIVEER SINGH vs. THE STATE OF UTTARAKHAND

REPORTABLE IN THE SUPREME COURT OF INDIA 2023 INSC 1024 CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. OF 2023 (Arising out of SLP(C) Nos. 23583-84 of 2022) JAIVEER SINGH AND OTHERS …APPELLANT(S) VERSUS THE STATE OF UTTARAKHAND AND OTHERS …RESPONDENT(S) WITH CIVIL APPEAL NO. OF 2023 [Arising out of SLP (C) No. 23943 of 2022] J U D G M E N T B.R. GAVAI, J. 1. Leave granted. 2. These appeals challenge the common judgment and th order dated 14 September 2022 passed by the High Court of Uttarakhand at Nainital in a bunch of writ petitions which th were filed challenging the order dated 10 February 2021 issued by the Secretary, Department of Elementary Education, Signature Not Verified Uttarakhand, Dehradun vide which he recalled his earlier Digitally signed by Deepak Singh Date: 2023.11.28 13:24:49 IST Reason: th order dated 15 January 2021. The High Court, vide the 1 impugned judgment and order, held that the 18 months Diploma in Elementary Education (for short, “D.El.Ed.”) conducted through the Open and Distance Learning (for short, ‘ODL’) mode in elementary education by the National Institute of Open Schooling (hereinafter referred to as ‘NIOS’) is a valid Diploma for applying against the regular posts of Assistant Teachers (Primary) in the State of Uttarakhand. The High Court therefore directed the State to consider the candidatures of the petitioners therein for the said post on the basis of the applications made by them pursuant to the advertisement issued by the Department of Elementary Education, Government of Uttarakhand, Dehradun. 3. Appeals arising out of SLP(C) Nos. 23583-84 of 2022 are filed by the candidates who are holding the 2 years diploma in elementary education whereas appeal arising out of SLP (C) No. 23943 of 2022 is filed by the State of Uttarakhand. 4. Facts in brief giving rise to the present appeals are as under: th 4.1 On 27 August 2009, the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as “RTE Act”) was notified. Sub-section (1) of Section 23 of the 2 RTE Act provided that any person possessing such minimum qualifications, as laid down by an academic authority, authorized by the Central Government, by notifications, shall be eligible for appointment as a teacher. Sub-section (2) thereof enables the Central Government, if it deems necessary, by notification, to relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years. The first proviso to sub-section (2) thereof provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub- section (1), shall acquire such minimum qualifications within a period of five years. The second proviso to sub-section (2) thereof, which was added by Act 24 of 2017, further provided st that a teacher appointed or in position as on the 31 March 2015, who does not possess minimum qualifications 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 (hereinafter referred to as “2017 Amendment Act”). 3 4.2 The Central Government, through Ministry of Human Resource Development, Department of School Education & Literacy (hereinafter referred to as “MHRD”), vide notification st dated 31 March 2010 authorized the National Council for Teacher Education (for short, “NCTE”) as the academic authority for laying down the minimum qualifications for a person to be eligible for appointment as a teacher. rd 4.3 NCTE, vide notification dated 23 August 2010, prescribed minimum qualifications for a person to be eligible for appointment as a teacher for Class I to VIII. 4.4 In the year 2012, Government of Uttarakhand promulgated Uttarakhand Government Elementary Education (Teacher) Service Rules 2012 (hereinafter referred to as “2012 Service Rules”) by invoking powers conferred under Section 58 of the Uttarakhand School Education Act, 2006. The 2012 Service Rules prescribed minimum eligibility criteria for appointment to the post of Assistant Teachers in Government Elementary Schools in the State of Uttarakhand. The 2012 Service Rules were amended from time to time. th 4.5 On 12 November 2014, NCTE notified National Council for Teacher Education (Determination of Minimum 4 Qualifications for Persons to be Recruited as Education Teachers and Physical Education Teachers in Pre-Primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations 2014 (hereinafter referred to as “2014 Regulations”). The 2014 Regulations were in supersession of all earlier Regulations. 4.6 In view of the provisions of the second proviso to sub- section (2) of Section 23 of the RTE Act, MHRD issued a letter rd on 3 August 2017 to all the Secretaries of States and Union Territories directing that all the teachers in Government Schools must possess minimum qualifications as mandated under the RTE Act and a last chance was being given to all st such teachers to acquire minimum qualifications till 31 March 2019. nd 4.7 NCTE issued a recognition order dated 22 September 2017, thereby conducting D.El.Ed. programme through ODL mode by NIOS through the SWAYAM portal of MHRD for in- service untrained teachers at elementary level working in Government, Government Aided and Unaided Private Schools. The said recognition order also reduced duration of diploma from 2 years to 18 months. 5 th 4.8 MHRD, vide its letter dated 11 October 2017, directed NIOS and the State Governments to sign a Memorandum of Understanding (for short, “MoU”) enclosed with that letter. th 4.9 On 16 February 2018, NIOS issued an office order thereby directing its Regional Directors to implement D.El.Ed. course for training of Untrained In-service Elementary Teachers. 4.10 It appears that the High Court of Patna had passed a st judgment on 21 January 2020 in the case of Sanjay Kumar 1 Yadav and Others v. State of Bihar , holding that the Director, Primary Education, NCTE has illegally issued direction that the persons, who had obtained D.El.Ed. course for 18 months by NIOS, are not eligible for appointment on the post of teachers in Primary Schools. It held that the said direction of the Director, Primary Education, NCTE was issued on misrepresentation and misreading of the clarification issued by NCTE. A similar view was taken by the High Court th of Tripura in its judgment dated 12-13 March 2020 in the 1 CWJC No. 19842 of 2019 6 case of Sri Raju Nama and Others v. The State of Tripura 2 and Others . th 4.11 On 29 December 2020, the State of Uttarakhand has issued District-Wise Advertisements for the post of Assistant Teachers in Primary Schools. The said Advertisements were issued in accordance with the 2012 Service Rules (as amended from time to time). th 4.12 In the meantime, NCTE issued a letter dated 6 January 2021 to the Chief Secretaries of all the States and Union Territories mentioning therein that NCTE decided to accept the verdict of the High Court of Patna in the case of Sanjay Kumar Yadav (supra) and requested to consider all those candidates who have completed D.El.Ed. course of NIOS through ODL mode. It further requested that they may be given an opportunity to apply for fresh recruitment at par with other D.El.Ed. candidates subject to adherence to all other criteria and qualification requirements. 4.13 In pursuance of the said letter of NCTE, the Secretary, th Government of Uttarakhand issued a letter dated 15 January 2 WP(C) No. 87 of 2020 7 2021 to the Director, Elementary Education, Uttarakhand to permit such candidates, who passed 18 months D.El.Ed. Diploma of NIOS through ODL mode, to apply for the post of Assistant Teacher (Primary) against vacancies issued through District-Wise Advertisements. However, shortly thereafter, realizing that, in the 2012 Service Rules (as amended from time to time), the 18 months D.El.Ed. Diploma through ODL mode from NIOS was not recognized as a minimum qualification for eligibility, it issued a communication dated th th 10 February 2021 withdrawing its earlier letter dated 15 January 2021. th 4.14 The aforesaid letter dated 10 February 2021 came to be challenged in a bunch of writ petitions before the High Court. rd Vide order dated 3 March 2021, the High Court directed that th the impugned letter dated 10 February 2021 be kept in abeyance till next date of hearing. The said order was modified st by the High Court on 1 September 2021 allowing the selection process to continue subject to final outcome of writ petitions. 4.15 Vide the impugned judgment and order, the High Court held that 18 months D.El.Ed. Training Diploma conducted 8 through the ODL mode in elementary education by NIOS cannot be said to be a lower or inferior qualification as compared with the 2 years D.El.Ed. programme. It held that, in respect of the in-service teachers, who have undergone the 18 months D.El.Ed. programme conducted by NIOS through ODL mode, the State Government cannot discriminate by debarring them from offering their candidatures for the post of Assistant Teachers (Primary) in the State of Uttarakhand. As th such, it quashed and set aside the letter dated 10 February 2021 issued by the Government of Uttarakhand. Being aggrieved thereby, the present appeals. 5. We have heard Mr. Jatinder Kumar Sethi, Deputy Advocate General appearing on behalf of the State of Uttarakhand, Mr. U.K. Uniyal, learned Senior Counsel appearing on behalf of the appellants in appeals arising out of SLP(C) Nos. 23583-84 of 2022, and Ms. Meenakshi Arora, Mr. V.K. Shukla and Mr. Salman Khurshid, learned Senior Counsel appearing on behalf of the candidates who have completed 18 months diploma in elementary education. We have also heard Mr. Sumeer Sodhi, learned counsel appearing on behalf of the interveners supporting the judgment of the 9 High Court and Ms. Manisha T. Karia, learned counsel appearing on behalf of NCTE. 6. Mr. Uniyal, on behalf of the appellants, has submitted that the 2014 Regulations clearly provide that the 2 years Diploma in Elementary Education was an essential qualification for appointment of teachers for Class I to VIII. It is further submitted that under Clause 4 of the 2014 Regulations, power is granted to NCTE to relax some of the provisions of the Regulations for such time period and subject to such conditions and limitations as it may consider necessary. It further provides that no relaxation would be granted under the Regulations with regard to minimum qualifications for appointment of teachers for Level 3 (Class I to VIII) as specified in the First Schedule. It is further nd submitted that NCTE recognition order dated 22 September 2017 for conducting D.El.Ed. programme by NIOS through ODL mode through the SWAYAM portal of the MHRD was only for the in-service Untrained Teachers at elementary level working in Government, Government Aided and Unaided th Private Schools appointed on or before 10 August 2017. It is submitted that this is clear from the communication of NCTE 10 th dated 6 September 2019. It is further submitted that the said communication itself would clarify that insofar as minimum qualifications for appointment of teachers is concerned, it will be necessary to possess a 2 years Diploma in Elementary Education. 7. Mr. Sethi, on behalf of the State, specifically submitted that a qualification of 2 years Diploma in Elementary Education was specifically prescribed by NCTE in exercise of its powers under Section 23 read with Section 2(j) of the RTE Act. It is submitted that the State has accordingly duly framed 2012 Service Rules in conformity with the prescribed statutory th qualifications. By an executive instruction dated 6 January 2021, NCTE cannot direct the State Government to amend or override a statutory regulation. Reliance in this respect is placed on the judgment of this Court in the case of Employees’ State Insurance Corporation v. Union of India 3 and Others . 8. Mr. Sethi further submitted that neither the Statutory Rules nor the Advertisement prescribing minimum qualification of 2 years Diploma in Elementary Education were 3 (2022) 11 SCC 392/2022 INSC 77 11 challenged by any of the appellants. The original writ petitioners only sought a mandamus to permit them to be also considered for appointment de-hors the stipulations in the advertisement. It is submitted that such a mandamus could not have been issued which is contrary to the minimum qualifications prescribed under the Statutory Rules and the Advertisement. Reliance in this respect is placed on the judgment of this Court in the case of State of Jammu and 4 Kashmir and Others v. Ajay Dogra . 9. Mr. Sethi further submitted that once an advertisement was issued and the selection process was set in motion on the basis of 2012 Service Rules and the Advertisement prescribing minimum qualifications, a mandamus could not have been issued to change the essential stipulations. Reliance in this respect is placed on the judgment of this Court in the case of Sureshkumar Lalitkumar Patel and Others v. State of 5 Gujarat and Others . 10. Mr. Sethi further submitted that the High Court erred in doing the exercise of equalizing 18 months Diploma with 2 4 (2011) 14 SCC 243/2011 INSC 281 5 2023 SCC OnLine SC 167/2023 INSC 145 12 years Diploma. It is submitted that such an exercise was beyond the scope of the powers of judicial review of the High Court under Article 226 of the Constitution of India. 11. Per contra, Ms. Arora, on behalf of the candidates who have completed 18 months diploma in elementary education, submitted that once the State Government had issued a th communication dated 15 January 2021 permitting the candidates who have obtained Diploma of 18 months duration through ODL mode from NIOS to participate in the selection process, it was not permissible for the State to withdraw the th same vide communication dated 10 February 2021. It is submitted that the decision of the State Government taken in th letter dated 10 February 2021 is patently arbitrary . It is submitted that once the 18 months Diploma through ODL mode by NIOS was recognized by NCTE which is a competent authority, the State could not have discriminated amongst the candidates who were having Diploma through a regular 2 years course or 18 months course through ODL mode. It is submitted that the said would amount to creating an artificial discrimination amongst the Diploma Holders when both of them are duly recognized by NCTE. It is submitted that once 13 the candidates have possessed a Diploma duly recognized by NCTE, they are eligible to participate in the selection process. 12. Mr. Khurshid, on behalf of the candidates who have completed 18 months diploma in elementary education, submitted that the court will have to apply the principle of purposive interpretation. He submitted that making a special provision for 18 months Diploma through ODL mode by NIOS was for the purpose of providing a qualification to the Untrained Teachers who were already working. Once they have acquired that qualification, all the parties become equal and it is not permissible to discriminate between the candidates who have completed 18 months diploma and the candidates who have acquired 2 years Diploma. It is submitted that the court will have to invoke the principle of implied equivalence. It is submitted that otherwise the very purpose would be frustrated. 13. Mr. Shukla, on behalf of the candidates who have completed 18 months diploma in elementary education, submitted that NCTE is a competent authority having the final word in the matter. It is submitted that once NCTE, vide its th communication dated 6 January 2021 had decided to accept 14 the verdict of the High Court of Patna in the case of Sanjay Kumar Yadav (supra) and directed the candidates who have completed D.El.Ed. course of NIOS through ODL mode to apply for fresh recruitment, the State could not have acted contrary to the same. 14. Ms. Karia, on behalf of NCTE, submitted that the High Court has rightly allowed the writ petitions. It is submitted nd that the recognition order dated 22 September 2017 was issued by NCTE in exercise of its powers under Section 14(3)(a) and 15(3)(a) of the National Council for Teacher Education Act, 1993 (hereinafter referred to as “NCTE Act”) and Clause 7(6) of the NCTE (Recognition Norms and Procedure) Regulations, 2014 for D.El.Ed. programme vide which it granted recognition for the course of 18 months including 6 months th internship, for the teachers appointed on or before 10 August 2017. She submitted that the said order was issued as per the direction of the Central Government received under Section 29 of the NCTE Act which was binding upon NCTE. She submitted that the order was issued to enable acquisition of minimum qualification and training of around 11 lakhs in- st service Untrained Teachers by 31 March 2019 all over India 15 so as to implement 2017 Amendment Act. Reliance in this respect is placed on the judgment of this Court in the case of 6 Ram Sharan Maurya v. State of U.P. . 15. In support of her proposition, Ms. Karia submitted that NCTE was entitled to provide for the qualifications for appointment of teachers and once it had issued the nd recognition order dated 22 September 2017 providing for D.El.Ed. programme to be conducted by NIOS through ODL mode, the diplomas granted were at par with the candidates who had undergone 2 years course. It is therefore submitted that the impugned judgment and order warrants no interference. 16. For considering the rival submissions, it will be relevant to refer to Section 23 of the RTE Act, which reads thus: “ 23. Qualifications 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. (2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if 6 (2021) 5 SCC 401/2020 INSC 646 16 its deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification: Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years: [Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualifications 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.” 17. It could thus be seen from sub-section (1) of Section 23 of the RTE Act that a person, to be eligible for appointment as a teacher, must possess such minimum qualifications, as laid down by an academic authority, authorised by the Central Government. Sub-section (2) thereof permits the Central Government to relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification. This can be done where a State does not have adequate institutions 17 offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub- section (1) are not available in sufficient numbers. However, the first proviso to sub-section (2) thereof provides that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub- section (1), shall acquire such minimum qualifications within a period of five years. 18. Through 2017 Amendment Act, a second proviso was added to sub-section (2) of Section 23 of the RTE Act with st retrospective effect from 1 April 2015. It provides that every st teacher appointed or in position as on 31 March 2015, who does not possess minimum qualifications 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 2017 Amendment Act. 19. It can further be seen that in exercise of powers conferred under sub-section (1) of Section 23 of the RTE Act, the Central Government authorised NCTE as an academic authority to lay down the minimum qualifications for a person to be eligible for appointment as a teacher. Accordingly, NCTE issued a 18 rd notification on 23 August 2010 prescribing the minimum qualifications. The said notification came to be amended by th notification dated 29 July 2011. Undisputedly, the said notification was issued by NCTE in exercise of its powers under sub-section (1) of Section 23 of the RTE Act. 20. The Government of Uttarakhand, vide notification dated th 28 August 2012, notified the 2012 Service Rules. The minimum qualifications provided under the 2012 Service Rules was 2 years Diploma in Elementary Education (D.El.Ed.) known as B.T.C. in Uttarakhand from the concerned District Institute of Education and Training/District Resource Centre. The said 2012 Service Rules were amended in the year 2014. However, insofar as the requirement of 2 years D.El.Ed. course is concerned, it remained the same. 21. NCTE, in exercise of powers conferred under Clause (dd) of sub-section (2) of Section 32 read with Section 12A of the NCTE Act, notified 2014 Regulations providing for minimum qualifications. Insofar as Class I to VIII are concerned, the minimum qualifications as provided in the earlier notifications remained the same. 19 22. As discussed hereinabove, the second proviso to sub- section (2) of Section 23 of the RTE Act was inserted by 2017 st Amendment Act, however, with retrospective effect from 1 April 2015. As such, the teachers, who were appointed or in st position as on 31 March 2015, were required to acquire the st requisite qualifications within a period of 4 years from 1 Apil rd 2015. The communication dated 3 August 2017 addressed by the Additional Secretary, MHRD will clarify the position, which reads thus: “This is regarding training of untrained in-service elementary teachers in the Govt./Govt. Aided/Unaided-Private Schools. It is apprised that the Amendment to the Section 23 (2) of the RTE Act to extend the period for such training to 31st March, 2019 has been passed by the Parliament. 2. Further, it is reiterated that this will be the last chance to acquire the requisite minimum professional qualifications. Any teacher in the aforementioned schools, who does not have the minimum qualifications mandated under the RTE Act, 2009, would not be allowed to continue in- service beyond 1st April, 2019, and procedure for dismissal shall be initiated against such teachers.” 23. It is thus clear that all such teachers working in either Government/Government Aided/Unaided Private Schools, st were required to acquire the minimum qualifications by 31 March 2019 or they would face dismissal from service. It 20 appears that it was decided by the Central Government to provide a window for all such teachers. A perusal of the said communication would reveal that various directions were issued so that lakhs of teachers, who were untrained, get the st requisite qualifications prior to 1 April 2019. The communication addressed by the Director, Elementary th Education, Uttarakhand dated 8 September 2017 to the Chief Education Officer and District Education Officer, Uttarakhand would further clarify this position. 24. It appears that, in furtherance of the directions issued by nd MHRD, NCTE issued recognition order on 22 September 2017. It will be relevant to refer to the Preamble of the said recognition order, which reads thus: “WHEREAS, the matter of recognition of the Project Proposal of National Institute of Open Schooling (NIOS) Noida for D.EI.Ed. (ODL) programme through SWAYAM Portal of MHRD for training of in-service untrained teachers was considered by NRC and NRC over served as follows – AND WHEREAS, the NCTE has received directions under Section 29 of the NCTE Act, 1993 from the Ministry of Human Resource Development vide their letters no. 11-15/2017-EE-l0 dated 21.08.2017 and 04.09.2017. The project proposal for recognition of Diploma in Elementary Education (D.E1.Ed.) programme through ODL mode has been submitted by National Institute of Open Schooling (NIOS) to NCTE Headquarter). The proposal is for conducting 21 on line D.El.Ed. programme through the SWAYAM portal of the Ministry of HRD for the in- service untrained teachers at elementary level working in Government/ Government aided and unaided private schools in the country. AND WHEREAS, the said project proposal has been considered by an expert committee constituted by NCTE vide order 131 dated 19-09-2017. The Committee considered the project and found that the NIOS is adequately prepared to conduct the programme and the curriculum proposed therein meets the requirement of the D.El.Ed. (ODL) AND WHEREAS, In view of above mentioned directions of the Ministry of Human Resource Development under Section-29 of the NCTE Act, 1993 and after considering the recommendation of the Expert Committee, Chairperson NCTE in exercise of his powers under clause 12 of the NCTE (Recognition Norms and Procedure) Regulations, 2014 -granted relaxation vide NCTE Hqrs letter no. NCTE-Regul0ll/66/2017-US (Regulation)- HQ dated 21-09-2017 & letter dated 22.09.2017 to the following provisions in the NCTE Regulations-2014 for ensuring that the directives of the MHRD for implementing the amendment to the RTE Act, 2009 are duly fulfilled.” 25. It is thus clear that the said recognition order was issued so that the directives of MHRD for implementing the 2017 Amendment Act were duly fulfilled. It appears that since the st time-gap between the directions issued by MHRD and 31 March 2019 was only about 18 months, the period of course was reduced from 2 years to 18 months. This position would 22 be clarified from the said recognition order itself, which reads thus: “II. Any provision related to the duration of the Programme so as to reduce it to 18 months instead of 2 years and the requirement of 6 months internship to be subsumed within the duration of 18 months” th 26. The letter dated 11 October 2017 addressed by the Additional Secretary, MHRD to the Secretaries to the State Governments would further clarify this position. Around 12,91,880 in-service elementary teachers had registered and th made payment on the NIOS portal as on 30 September 2017. It is also clear from the said communication that the said course was exclusively made for ensuring that only in-service elementary teachers are registered for D.El.Ed. course. 27. It is further to be noted that a communication was addressed by the Additional Chief Secretary, Education Department, Government of Bihar seeking clarification with regard to appointment of Primary Teachers possessing D.El.Ed. (ODL) qualification from NIOS. It will be relevant to th refer to the reply of NCTE dated 6 September 2019, which reads thus: 23 “I am directed to refer to your letter dated 29-08-2019 on the subject noted above and to say that your representation regarding appointment of primary teachers qualified with D.El.Ed. (ODL) from NIOS has been examined. The primary notifications are those dated 23-08-20l0 and 29-07-2011 (determination of minimum qualifications for appointment of teachers, Appendix-9 and the order dated 22-09- 2017 issued from NRC, NCTE to NIOS granting recognition to D.El.Ed. (ODL) Programme. The following points are inferred from the above notifications (copies enclosed). I. As per the NCTE Notification dated 23-08-2010 and 29-07-2011 one of the minimum qualification for appointment of teachers for class I-V and VI- VIII is two year Diploma in Elementary Education (emphasis added). II. As per the NRC NCTE order dated 22-09-2017 the D.El.Ed. (ODL) programme of NIOS is only for those un-trained in-service teachers in Govt./Govt. aided/private unaided schools appointed on or before 10-08-2017. The duration of this programme is 18 months (emphasis added). 2. Hence for the fresh appointment of teachers for primary and upper 'primary level, the notification dated 23-08-2010 and 29-07-2011 need to be strictly adhered to TET is also a mandatory requirement.” th 28. It can thus clearly be seen that as on 6 September 2019, it is also the view of the NCTE that the minimum qualifications for appointment of teachers for Class I to VIII is a 2 years Diploma in Elementary Education. It further clarifies that nd NCTE recognition order dated 22 September 2017 was only for those untrained in-service teachers in 24 Government/Government Aided/Unaided Private Schools, th who were appointed on or before 10 August 2017. It further clarifies that for fresh appointment of teachers for Primary and rd Upper Primary level, NCTE notifications dated 23 August th 2010 and 29 July 2011 need to be strictly adhered to. It is rd further to be noted that whereas notifications dated 23 th August 2010 and 29 July 2011 specifically refer to powers conferred under sub-section (1) of Section 23 of the RTE Act, nd NCTE recognition order dated 22 September 2017 refers only to the directives issued by MHRD under Section 29 of the NCTE Act. 29. It is thus clear that the entire scheme was for the purpose of providing a window to the in-service teachers inasmuch as unless they would have acquired requisite qualifications prior st to 1 April 2019, they could not have continued to remain in service and would have faced dismissal from service. As such, we find that the High Court has erred in holding that the 18 months Diploma conducted by NIOS through ODL mode is equivalent to 2 years Diploma as provided in the notifications rd th of NCTE dated 23 August 2010 and 29 July 2011. 25 30. In the impugned judgment and order, the High Court has relied on the judgments of the High Court of Patna in the case of Sanjay Kumar Yadav (supra) and High Court of Tripura in Sri Raju Nama the case of (supra). It is to be noted that, in the judgment of the High Court of Patna, though a reference has been made to the communication addressed by NCTE to the Additional Chief Secretary, Bihar, it brushed aside the said communication on the ground that it is nowhere mentioned that the said course cannot be treated at par with the 2 years training course. In the absence of a specific order of NCTE granting equivalence to the 18 months course with the 2 years course, in our view, the High Court has totally erred in finding that since the said communication does not mention non- equivalence, it would be deemed to be equivalent. 31. We find that the High Court of Patna has totally erred in not giving effect to the stand of NCTE. As a matter of fact, we fail to understand as to why NCTE did not challenge the said order when its specific stand that the said 18 months course was only for in-service candidates and not applicable to fresh ones was rejected by the High Court. We also fail to th understand as to why vide communication dated 6 January 26 2021, NCTE decided to accept the said judgment of the High Court of Patna. 32. Insofar as the High Court of Tripura is concerned, it again relies on the judgment of the High Court of Patna in the case of Sanjay Kumar Yadav (supra). We therefore find that the views taken by both the High Court of Patna and the High Court of Tripura were not correct in law. 33. We further find that the 2012 Service Rules as framed by the State of Uttarakhand were framed on the basis of rd th notifications issued by NCTE on 23 August 2010 and 29 July 2011. These 2012 Service Rules were amended from time to time and as existing on the date of advertisement, they specifically provide for a 2 years D.El.Ed. course known as B.T.C. training in the State of Uttarakhand as a minimum qualification. It also provided that a person to be eligible to apply for the said post must have completed 2 years D.El.Ed. course from NIOS and qualified Teacher Eligibility Test (TET) or who has completed 2 years D.El.Ed. course from any other Institute recognized by NCTE and qualified TET. The advertisements issued by various District Education Officers also provided the same qualifications. It can thus be seen that 27 acquiring of 2 years Diploma in Elementary Education was a minimum qualification as prescribed under the statutory Rules. It will be apposite to refer to the following observations Employees’ State Insurance of this Court in the case of Corporation (supra), wherein this Court has referred to its earlier judgments including that of a Constitution Bench:

28

29

30

34. It can thus be seen that it is a trite law that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, it can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. It is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. 35. As already discussed hereinabove, NCTE recognition nd order dated 22 September 2017 was issued so as to give th effect to the directives of MHRD dated 8 September 2017 so as to provide a one-time window to the teachers who were already working and who in terms of the 2017 Amendment Act 31 were required to acquire the minimum qualifications prior to st 1 April 2019. The said order, in any case, cannot be held to be a direction to the State of Uttarakhand to act in contravention of its 2012 Service Rules and the advertisements issued on the basis of such Service Rules. 36. We further find that the finding of the High Court that the 18 months D.El.Ed. Diploma (ODL) course in Elementary Education conducted by NIOS is equal to 2 years Diploma is erroneous. There is no notification to that effect issued by rd NCTE in supersession of its notifications dated 23 August th 2010 and 29 July 2011, wherein it provided minimum 2 years Diploma as a minimum qualification for appointment of teachers. At the cost of repetition, we clarify that the rd th notifications dated 23 August 2010 and 29 July 2011 of NCTE, were issued in exercise of its powers conferred under Section 23(1) of the RTE Act whereas recognition order dated nd 22 September 2017 order was passed in pursuance of the directions issued by MHRD under Section 29 of the NCTE Act. 37. Assuming for a moment that the 18 months D.El.Ed. Diploma by NIOS through ODL mode is equivalent to the 2 years Diploma in Elementary Education recognized under the 32 rd th notifications of NCTE dated 23 August 2010 and 29 July 2011, the next question that has to be answered is, can the State be prohibited from prescribing the minimum qualifications which is higher than that. A similar question arose for consideration in the case of S. Satyapal Reddy and 7 Others v. Govt. of A.P. and Others , wherein this Court observed thus:

[emphasis supplied] 38. We therefore find that the High Court has erred in directing the State Government to consider the candidates 7 (1994) 4 SCC 391/1994 INSC 196 33 who did not qualify as per the 2012 Service Rules and as per the advertisement based on the Service Rules, particularly when the 2012 Service Rules and the advertisements were not under challenge. The High Court, in our view, could not have issued such a mandamus contrary to such Service Rules. 39. That leaves us with the question as to whether the High Court was justified in holding that the 18 months Diploma conducted by NIOS through ODL mode is said to be equivalent to the 2 years Diploma as required under the notifications of rd th NCTE dated 23 August 2010 and 29 July 2011. 40. It will be relevant to refer to the observations of this Court in the case of Devender Bhaskar and Others v. State of 8 Haryana and Others , which read thus: “ 21. In Mohammad Shujat Ali v. Union of India , (1975) 3 SCC 76 it was held that the question regarding equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications. It was further held that where the decision of the Government is based on the recommendation of an expert body, then the Court, uninformed of relevant data and unaided by technical insights necessary for the purpose of determining equivalence, would not 8 2021 SCC OnLine SC 1116/2021 INSC 783 34 lightly disturb the decision of the Government unless it is based on extraneous or irrelevant considerations or actuated mala fides or is irrational and perverse or manifestly wrong. 22. In J. Ranga Swamy v. Government of Andhra Pradesh , (1990) 1 SCC 288 this Court held that it is not for the court to consider the relevance of qualification prescribed for various posts. 23. In State of Rajasthan v. Lata Arun , (2002) 6 SCC 252 this Court held that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It was held thus: “13. From the ratio of the decisions noted above, it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority.” 24. In Guru Nanak Dev University v. Sanjay Kumar Katwal , (2009) 1 SCC 610 this Court has reiterated that equivalence is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body of the university relating to equivalence should be by a specific order or resolution, duly published. Dealing specifically with whether a distance education course was equivalent to the degree of MA (English) of the appellant university therein, the Court held that no material 35 had been produced before it to show that the distance education course had been recognized as such. 25. In Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad (2019) 2 SCC 404, it was held that the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various qualifications, etc. Judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as recruiting authority, to determine. 26. Having regard to the above, in our view, the High Court has erred in holding that the diploma/degree in Art and Craft given by the Kurukshetra University is equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or diploma in Art and Craft conducted by Director, Industrial Training and Vocational Education, Haryana.” 41. In view of what has been held by this Court hereinabove, we find that the High Court erred in holding that 18 months Diploma conducted by NIOS through ODL mode is equivalent to the 2 years regular Diploma, particularly so, when there was no material placed on record to even remotely hold that such a qualification was recommended by the Expert Body NCTE. 36 th On the contrary, the communication dated 6 September 2019 of NCTE, the directives of MHRD so also the recognition nd order dated 22 September 2017 clearly go on to show that the 18 months Diploma was provided as a one time window to the in-service teachers to acquire the minimum qualifications st between the 2017 Amendment Act and the outer limit of 1 April 2019. In our considered view, the High Court has totally erred in holding that the 2 years Diploma is equivalent to 18 months Diploma. 42. That leaves us with the reliance placed by the learned counsel for NCTE on the judgment of this Court in the case of Ram Sharan Maurya (supra). There can be no doubt that NCTE, as an expert body, has a right to prescribe the minimum qualifications. In the present case itself, by rd th notifications dated 23 August 2010 and 29 July 2011, NCTE has done so. As already discussed hereinabove, nd recognition order dated 22 September 2017 only provides a window for in-service teachers to complete their course prior st to 1 April 2019. As such, the said judgment does not apply to the present case. 37 43. In the result, we pass the following order: (i) The appeals are allowed; th (ii) The impugned judgment and order dated 14 September 2022 passed by the High Court of Uttarakhand at Nainital is quashed and set aside; and (iii) The writ petitions filed by the original writ petitioners are dismissed. 44. Pending application(s), if any, shall stand disposed of in the above terms. ….……..….......................J. [B.R. GAVAI] ……………..….........................J. [PRASHANT KUMAR MISHRA] NEW DELHI; NOVEMBER 28, 2023. 38