2025 INSC 365
SUPREME COURT OF INDIA
(HON’BLE
B.R. GAVAI, J. AND HON’BLE AUGUSTINE, JJ.)
VISHWANATH
Petitioner
VERSUS
STATE OF UTTARAKHAND
Respondent
Transfer
Petition (C) Nos. 42-43 OF 2025 With Ia No. 37419 OF 2025 In Transfer Petition
(C) Nos. 42-43 OF 2025-Decded on 05-03-2025
Service Law
Right of Children to
Free and Compulsory Education Act, 2009, Section 23(1), (2) - Uttarakhand
Government Elementary Education (Teacher) Service Rules, 2012 – Service Law - Eligibility – Recruitment - Educational
qualification - Applicants are holding the 18 months D.El.Ed. qualification
from the National Institute of Open Schooling (NIOS) under the Open and
Distance Learning (ODL) mode seek to participate in the ongoing
counselling process and to subsequently be appointed to the vacant posts
in the ongoing recruitment - Grievance of the applicants is that though
they are eligible as per the original judgment of this Court dated 28th
November 2023 and the clarification dated 10th December 2024, inasmuch as the
advertisement in State of Uttarakhand is dated 29th May 2024, that is after the
judgment was delivered on 28th November 2023, the State of Uttarakhand is not
considering their claim - Learned
counsel appearing on behalf of the State submits that vide the judgment dated
28th November 2023, this Court had upheld the 2012 Rules of the State of
Uttarakhand which provided that a diploma of two years’ or equivalent was
necessary for being appointed as teachers – Held that that though this Court
has upheld the 2012 Rules framed by the State Government, vide the judgment
dated 28th November 2023 yet at the same time, this Court had clarified that
such of the teachers, who were already in employment as on 10th August 2017,
would be entitled to the benefit of One Time Scheme provided by the Government
of India who have completed the diploma
course of 18 months would be treated as valid diploma holders for the purpose
of applying in other institutions or for promotional avenues - Case of the
present applicants would be covered by this Court’s clarification dated 10th
December 2024 - State Government
directed to consider the claim of the applicants in accordance with the
clarification dated 10th December 2024 and if the applicants are found to be
eligible, to appoint them in accordance with law within a period of three
months.
(Para
15 to 23)
JUDGMENT
B.R. Gavai, J.:-
IA
No. 37419 of 2025 in T.P.(C) NOS. 42-43 OF 2025
1.
By way of this application, the applicants have approached this Court for a
direction on the respondent to permit the applicants who are holding the 18
months D.El.Ed. qualification from the National
Institute of Open Schooling (NIOS) under the Open and Distance
Learning (ODL) mode to participate in the ongoing counselling
process and to subsequently be appointed to the vacant posts in
the ongoing recruitment.
2.
The case has a chequered history.
3.
In 2017, an amendment had been carried out to the Right of Children to
Free and Compulsory Education Act, 2009 (hereinafter referred to as “RTE
Act”) vide which clause (2) was inserted in Section 23 of the said
Act. The Right to Free and Compulsory Education (Amendment) Act, 2017 was made
retrospectively applicable from 31st March 2015. It was provided that every
teacher who had been appointed or was in service as on 31st March 2015 but did
not possess the minimum qualifications of two years as laid down under sub-
section (1) of Section 23 would acquire such minimum qualifications
within a period of four years from the date of commencement of the Amendment
Act, 2017.
4.
In view of the provisions of the second proviso to sub- section (2)
of Section 23 of the RTE Act, Ministry of Human Resource Development
(MHRD) had issued a letter on 3rd 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 such teachers to acquire minimum
qualifications till 31 st March 2019. Failure to acquire the said qualification
within the stipulated period would result in dismissal from service.
5.
Since the time gap between 31st March 2015 as provided in the 2017 Amendment
Act and 31st March 2019 as specified in the direction issued by the MHRD was 18
months, the NCTE issued a recognition order dated 22nd September 2017 for
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 Unaided and Unaided Private
Schools. The said recognition order also reduced duration of diploma from 2
years to 18 months.
6.
Subsequently, the State of Uttarakhand issued district- wise advertisements for
the post of Assistant Teachers in Primary Schools in accordance with the
Uttarakhand Government Elementary Education (Teacher) Service Rules, 2012 (for
short, “2012 Rules”) framed by the Government of Uttarakhand which provided
that for being eligible to be appointed as teachers, it was necessary to have a
diploma course of two years or equivalent.
7.
Initially, on 15th January 2021, the Secretary, Government of Uttarakhand
issued a letter 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 Teachers (Primary)
against vacancies issued through the aforementioned district-wise
advertisements. This was done in compliance with the letter dated 6th January
2021 issued by the NCTE to the Chief Secretaries to all the States and Union
Territories requesting them to consider all those candidates who had completed
D.El.Ed. course of NIOS through ODL Mode. However, shortly thereafter, upon realizing that the 2012 Rules did
not recognize the 18 months D.El.Ed. diploma
through ODL Mode from NIOS as a minimum qualification for eligibility, the
Government of Uttarakhand issued another communication dated 10 th February
2021 whereby its earlier letter dated 15th January 2021 was withdrawn.
8.
The aforesaid communication dated 10th February 2021 was challenged in a bunch
of writ petitions before the High Court of Uttarakhand at Nainital. On 14th
September 2022, the High Court held that the 18 months D.El.Ed. training/diploma conducted through the ODL Mode by NIOS
cannot be said to be a lower or inferior qualification as compared with the 2
years D.El.Ed. programme and the same was valid for
applying against the post of Assistant Teachers (Primary) in the State of
Uttarakhand.
9.
Challenging the aforesaid judgment and order passed by the High Court, a batch
of appeals came to be filed before this Court. The said appeals were decided in
the case of Jaiveer Singh and Others v. State of Uttarakhand and
Others1 dated 28th November 2023. In the said judgment (in which
one of us was a Member), this Court upheld the validity of the 2012 Rules.
10.
In the aforesaid case itself, this Court had clarified that the scheme which
was framed by the Government of India vide the aforementioned recognition order
was done in order to provide a one-time opportunity to such of the teachers who
were already in employment as on 10 th August 2017 to get a qualification of a
diploma course as required under Section 23(2) of the RTE Act which
had been inserted by the 2023 SCC OnLine SC 1584 2017 Amendment Act
with retrospective effect from 1st April 2015.
11.
It had also been held by this Court that the period of 18 months had been
prescribed in order to meet the deadline for appointment of teachers as
specified under Section 23(2) of the RTE Act. Noticing how this was a
one-time opportunity to ensure that in-service teachers remained in service,
this Court had held that it would not be equivalent to the two- year diploma
which is the requisite qualification.
12.
It appears that there was some confusion in some of the States and, therefore
review petitions/miscellaneous applications were filed.
13.
This Court had declined to entertain the review petitions/miscellaneous
applications on the ground that the judgment was clear enough and it held that
One Time Scheme was provided solely to safeguard the interests of those
teachers who were employed as on 10th August 2017.
14.
This Court had further clarified vide paragraphs 3 and 4 of the order dated
10th December 2024 passed in R.P.(C) Diary No. 4961 of 2024 titled as
“Viswanath and Others v. The State of Uttarakhand and Others”, as under:
3. However, to avoid any confusion, we again
clarify that the 18 months diploma obtained by such persons, who were in
employment as on 10.08.2017 and who have completed the diploma course of 18
months, would be treated as valid diploma holders for the purpose of applying
in other institutions or for promotional avenues.
4. Needless to state
that the clarification will be effective from the date of pronouncement of the
judgment under review.
15.
The grievance of the applicants herein is that though they are eligible as per
the original judgment of this Court dated 28th November 2023 and the
clarification dated 10th December 2024, inasmuch as the advertisement in State
of Uttarakhand is dated 29th May 2024, that is after the judgment was delivered
on 28th November 2023, the State of Uttarakhand is not considering their claim.
16.
It is submitted that in the reply given by the State Government, it is stated
that the selection process is almost complete and, therefore, the claim of the
applicants cannot be considered.
17.
Shri. Gopal Sankaranarayanan, learned senior counsel appearing for the
applicant(s) submits that the information received under the Right to
Information Act, 2005 would reveal that there are 279 posts vacant and the
number of
applicants are 239.
18.
Shri Sankaranarayanan, fairly, states that the applicants do not intend to
affect the selection process already done.
19.
Ms. Vanshaja Shukla, learned counsel appearing on behalf of the State, on the
contrary, submits that vide the judgment dated 28th November 2023, this Court
had upheld the 2012 Rules of the State of Uttarakhand which provided that a
diploma of two years’ or equivalent was necessary for being appointed as
teachers. She further states that any interference, at this stage, would cause
the complications in the selection process already completed.
20.
No doubt that, this Court has upheld the 2012 Rules framed by the State Government, vide the judgment dated 28th November 2023.
However, at the same time, this Court had clarified that such of the teachers,
who were already in employment as on 10th August 2017, would be entitled to the
benefit of One Time Scheme provided by the Government of India. This Court had
held that such of the teachers who have completed the diploma course of 18 months
would be treated as valid diploma holders for the purpose of applying in
other institutions or for promotional avenues.
21.
Indisputably, the ‘other institutions’ would also include the schools run by
the State Governments.
22.
We find that the case of the present applicants would be covered by this
Court’s clarification dated 10th December 2024.
23.
We, therefore, direct the State Government to consider the claim of the
applicants in accordance with the clarification dated 10th December 2024 and if
the applicants are found to be eligible, to appoint them in accordance with
law. The same shall be done within a period of three months from today.
24.
We further clarify that while doing so, the State Government would not reopen
the selection already conducted, which has reached finality.
25.
The application is, accordingly, disposed of T.P.(C)
NOS. 42-43 OF 2025
1. The transfer
petitions are taken on Board.
2. In view of the
aforesaid order passed in IA No. 37419 of 2025 in T.P.(C)
NOS. 42-43 OF 2025, no order is required to be passed in the transfer
petitions. The transfer petitions are, accordingly, disposed of.
3. We further find
that the grievance of the petitioner(s) as raised in the writ petitions would
stand satisfied with the aforesaid observations. Consequently,
the writ petition being Nos. WPSS/2419/2024 and WPSS/04/2025 pending
before the High Court of Uttarakhand stand disposed of in terms of the aforesaid
order.
4. Pending
applications, if any, stand disposed of.
T.P.(C)
Nos. 42-43 of 2025
1. The transfer
petitions are taken on Board.
2. The transfer
petitions are disposed of in terms of the signed judgment.
3. Pending
application(s), if any, stand disposed of.
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