STATE OF RAJASTHAN Vs. DURGA DAS AND ORS

JUDGEMENT

(1.) The intra-court appeal has been preferred as against the interlocutory order dated 08.12.2011 passed by the Single Bench. In the writ petition, prayer has been made to declare Clause 9(a) of the Guidelines dated 11.02.2011 to be illegal, arbitrary and contrary to the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as 'Act of 2009') and violative of Article 14, 21 and 335 of the Constitution of India. Prayer has also been made to quash and set aside the same. The State Government has granted relaxation under Clause 9(a) of the aforesaid Guidelines issued by the National Council for Teacher Education (hereinafter referred as 'the NCTE') about the ST/SC/OBC candidates for passing Rajasthan Teachers Eligibility Test (hereinafter referred to as 'RTET') fixing 60% as the minimum passing marks which has been questioned. The male ST/SC/OBC candidates and female general candidates have been given 10% relaxation. Women ST/SC/OBC and widow candidates have been given 15% relaxation and Handicapped candidates have been given 20% relaxation. Section 23(J) of Act of 2009 provides that 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. The NCTE had laid down the minimum academic and professional qualifications for a person to be eligible for appointment as a teacher and the Central Government has been authorised as Notified Academic Authority vide Notification dated 23.08.2010. Statutory guidelines have been issued under Section 23(1) of the Right of Children to Free and Compulsory Education Act, 2009 by the NCTE, Clause (2) of which is quoted below:

(2.) Clause 9 deals with the qualifying marks; a person who scores 60% or more in the RTET exam will be considered as RTET pass. However, in the case of ST/SC/OBC and disabled persons etc., relaxation can be given by the State Government in terms of the reservation policy. It has also been provided in Clause 9 that School Managements should give weightage to the RTET scores in the recruitment process; however, qualifying the RTET would not confer any right on any person for recruitment as it is only one of the eligibility criteria for appointment. Clause 9 is quoted below:

(3.) The Single Bench has granted interim stay with respect to relaxation granted to ST/SC/OBC candidates. Objection has been raised that since statutory guidelines have been questioned, Clause 9 of the guidelines which are having statutory force under Section 23 have been questioned and the matter is required to be heard by the Division Bench as per order issued by the Chief Justice. This aspect has not been considered by the Single Bench and the interim stay has been granted. A Division Bench of this Court has considered the notification which has been issued by the Central Government conferring power on NCTE it has been held that it has statutory force as per decision dated 20.05.2011 rendered in Sushil Sompura & Ors. vs. State (Education) & Ors. [D.B. Civil Writ Petition No.3964/2011] decided along with other matters. This Court has held that the guidelines and notification issued by NCTE under section 23 of the Act are having statutory force. In view of guidelines have statutory force, the matter pertaining to its vires could not have been heard by the Single Bench. It was required to be heard by the Division Bench. The order passed by the Single Bench is found to be without jurisdiction. The Single Bench was not having jurisdiction to hear the matter and to grant interim stay otherwise also, in our considered opinion in such matters, interim stay is not called for when there is clear delegation of power given by the NCTE to the State Government to give relaxation to ST/SC/OBC candidates. Whether it is permissible or not cannot be adjudicated at interim stage.