ABHISHEK KUMAR PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) The petitioners, who possess Bachelor of Physical Education Degree (hereinafter referred to as the 'B.P.Ed') or the Diploma in Physical Education (hereinafter referred to as the 'D.P.Ed') have filed these petitions for quashing the Notification dated 23rd August, 2010 issued by the National Council for Teacher Education (hereinafter referred to as the 'NCTE') which lays down the minimum qualifications for a person to be eligible for appointment as a teacher in Class I to VIII. The petitioner have also sought the quashing of the advertisement dated 22nd September, 2011 issued by the Board of High School and Intermediate Education, Uttar Pradesh, Allahabad (hereinafter referred to as the 'Intermediate Education Board') which has been authorised to hold the Teachers' Eligibility Test (hereinafter referred to as the 'TET') to the extent it does not permit the candidates who possess B.P.Ed./D.P.Ed. from appearing at the said test.

(2.) It is stated that in exercise of the powers conferred by Section 23(1) of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the 'Act') and in pursuance of the Notification dated 31st March, 2010 issued by the Government of India, the NCTE issued the Notification dated 23rd August, 2010 laying down the minimum qualifications for a person to be eligible for appointment as a teacher in Classes I to VIII in a School referred to in Section 2(n) of the Act, which amongst others, provides that the person should pass the TET to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose. The Intermediate Education Board, which has been authorised by the State Government to hold such a test, issued the advertisement dated 22nd September, 2011 inviting applications from the eligible candidates for appearing in the UP-TET but persons with B.P.Ed./D.P.Ed. have not been included. They cannot, therefore, appear in the test. It is, therefore, asserted that the petitioners, who have obtained B.P.Ed./D.P.Ed., stand excluded from appointment in Classes I to VIII since a person who has cleared the TET is only considered eligible for appointment. In this connection, it is further stated that physical education and games are essential requirements for students and even the State Government recognised this aspect when it issued the Government Order dated 5th April, 2004 by which Physical Education and Sports was made a compulsory subject in the State. Thus, in order to give effect to the aforesaid requirement, it was necessary for the State to have created posts of teachers in Physical Education and Sports in the Schools but the order dated 5th April, 2004 permits appointment of a sports teacher from amongst the teaching staff of the School after he is given the required training.

(3.) It is submitted by Sri Ashok Khare, learned Senior Counsel appearing for the petitioners that the Notification dated 23rd August, 2010 provides for minimum qualifications for a person to be eligible for appointment as a teacher in Classes I to VIII and passing TET is considered to be an essential requirement but in respect of teachers for physical education, such requirement has been waived under Clause 5(b) of the Notification dated 23rd August, 2010 as amended by the Notification dated 29th July, 2011 and it is provided that the minimum qualification norms for physical education teachers shall be such as provided in National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulation, 2001 (hereinafter referred to as the '2001 NCTE Regulations') as amended from time to time. It is his submission that when under the aforesaid 2001 NCTE Regulations, it is provided that for recruitment of teachers of physical education, the minimum academic and professional qualification for elementary schools shall be Senior Secondary School Certificate or Intermediate or its equivalent and Certificate in Physical Education (C.P.Ed.) of a duration of not less than two years or its equivalent, it was incumbent upon the State to have created posts of physical education in the Schools so that the teachers with such qualifications could be appointed but the Government Order dated 5th April, 2004 permits appointment of sports teacher from amongst the teaching staff of the school after he is given training for a certain period. It is also his contention that persons possessing B.P.Ed./D.P.Ed. should be permitted to appear at the forthcoming UP-TET to be held on 13th November, 2011 so that they can be considered for appointment as teachers.