(Delivered by Hon'ble Saurabh Lavania,J, under Chapter VII Rule 1(2) of the Allahabad High Court Rules, 1952, in Court No.- 26) 1- This is an appeal under Chapter VIII Rule 5 of the Rules of Court, 1952, against the judgment and order dated 13.04.2017 passed in Writ Petition No. 27704 (S/S) of 2016 (Syed Shakeb Ashraf and 3 others Vs. State of U.P. and others).
2- The question involved in the present appeal is that:-
"What would be the qualification of an Assistant Teacher for teaching the students of primary and upper-primary classes(classes I to VIII)in an institution (recognized and aided institution) on which Intermediate Education Act, 1921 (in short "Act of 1921"), including Regulation made therein; the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (in short "Act of 1971"), U.P. Basic Education Act, 1972 (in short "Act of 1972") and U.P. Junior High School (Payment Salaries of Teachers and other Employees) Act, 1978, (in short "Act of 1978") and other Acts and Rules made thereunder are applicable?"
3. The appellants/petitioners being aggrieved by the order dated 15.11.2016 of Zila Basic Shiksha Adhikari, Faizabad (hereinafter referred as "BSA")/respondent no. 4 approached this Court by means of Writ Petition No. 27704 (S/S) of 2016, wherein the judgment under appeal has been passed by the learned Single Judge.
4- The BSA vide order dated 15.11.2016 declined to approve the appointment of the appellants/petitioners on the two main grounds to the effect that (i) the appointment of the appellants/petitioners is in violation/contravention of the provisions of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment & Conditions of Service of Teachers) Rules, 1978 (in short "Rules of 1978"), and (ii) the management has appointed the appellants/petitioners beyond the sanctioned strength.
5- The appellants/petitioners assailed the order dated 15.11.2016 passed by Basic Shiksha Adhikari, before the Writ Court.
6- With respect to the first ground of disapproval of appointment of the appellants as Assistant Teacher, resulting in denial of salary, in the order dated 15.11.2016, the appellants in the writ petition have asserted that the institution namely AIT College, Jaganpur is a minority institution and was initially Junior High School and was receiving grant in aid and the same was upgraded to the High School Standard vide Secondary Education Board's order dated 05.06.1986 and after up-gradation the institution came within the purview of Act of 1921 and Regulations made thereunder and all the appointments after up-gradation would be governed by the Act of 1921 and regulations and other Acts or Rules made thereunder would not apply and according to the Act of 1921 the qualification of the appellants/ petitioners with respect to the post of Assistant Teacher, on which they were appointed by the management, exists and as such they are entitled to the payment of salary from the State Exchequer.
7- With respect to the second ground of disapproval of appointment of the appellants as Assistant Teacher in the order dated 15.11.2016, the appellants in the writ petition have asserted that in the impugned order the BSA has mentioned the strength of students upto 8th class for the year 2013-14, 2014-15 and 2015-16 has 437,340 and 348. Whereas the chart in this behalf was submitted before the BSA vide letter dated 20.10.2016. The strength of the students in institution from 6 to 10th in the respective academic session shown in the chart is 953, 801 and 826 respectively. Similarly the BSA in the impugned order has incorrectly mentioned 14 working teachers in the institution, while only 13 teacher at present are working and 7 new teachers including the petitioners have been appointed in place of the teachers who were working in the institution and have retired. Thus the total strength of teachers comes to 20 in number, which is the sanctioned strength according to post creation order dated 17.06.1989.
8- The learned Single Judge in the judgment under appeal has taken note of and decided the issue of qualification of an Assistant Teacher for teaching the students of primary and upper-primary classes (classes I to VIII)in an institution (recognized and aided institution) on which Act of 1921, including Regulation made thereunder and other allied State Acts and Rules thereunder are applicable.
9. The issue decided by the learned Single Judge relates to ground no. (i) taken by the BSA in the order of disapproval of appointment of appellants dated 15.11.2016.
10- In view of above as well as in view of the question framed hereinbefore, we are only concerned with the question framed by us.
11- Assailing the judgment under appeal the counsel for the appellants placed reliance on the judgment of Full Bench passed in the case of State of U.P. Vs. District Judge, Varanasi, reported in 1981 UPLBEC 336 and submitted that the institution namely AIT College, Jaganpur, in which the appellants were appointed by the management, was initially was Junior High School and was receiving grant in aid and the same was upgraded to the High School Standard vide Secondary Education Board's order dated 05.06.1986 and consequent to upgradation from Junior High School to High School the provisions of the Act of 1921 and Regulations made thereunder as well as allied Acts and Rules made thereunder would apply and selection and appointment of teachers after up-gradation would be governed by the same and the provisions of the Act of 1972 or rules made thereunder, Act of 1978, National Council for Teacher Education Act, 1993 (in short "Act of 1993") and Right of Children to Free and Compulsory Education Act, 2009 (in short "Act of 2009") would not apply and accordingly reasons recorded by the learned Single Judge in the judgment under appeal as well as the disapproval of appointment by BSA vide order dated 15.11.2016 on the ground that the appointment of the appellants is in contravention to the Rules of 1978 are unsustainable and liable to be interfered by this Court.
12- Further submitted that the appellants were appointed in the minority institution and their qualification is as per the provisions of Act of 1921, particularly provided under the Regulation 4, Chapter II of the Act of 1921 and being so their appointment cannot be held to be illegal. The appellants are entitled to salary from State Exchequer.
13- The learned counsel for the official respondents, Sri H.P. Srivastava, Additional Chief Standing Counsel and Sri Ajay Kumar, who appeared for BSA, on the same line submitted that the issue before the Full Bench in the judgment relied upon by the Counsel for the appellants was with respect to payment of salary to the teachers and staff to the upgraded high school not with respect to qualification of an Assistant Teacher for imparting education to the students of primary and upper-primary classes (classes I to VIII) in an institution upgraded to High School or Intermediate or an institution governed by the Act of 1921 and other Acts.
14- Further submitted that the Act of 1993 and Act of 2009 are Central Acts and being so would prevail over the State Acts including the Act of 1921 and accordingly the qualification prescribed under the Central Acts for appointment on posts in issue would be applicable.
15- It has also been contended that in the Act of 1921, keeping in view the requirement of a student of Junior Classes the qualification of an Assistant Teacher was provided and the said provision however was done away on account of declaration of C.T. Grade Cadre as dying cadre. In the Act of 1921 the qualification(s) of the Teacher of High School Classes and Intermediate Classes are also provided. The qualifications of teachers of different classes provided under the Act of 1921 were provided to cater the need of the student of particular class/category. Considering the requirement of students of particular category the different qualifications have been provided in the Act of 1921 as well as in the Act of 1993 and Act of 2009. At the time of initiation of selection process in the instant case, which was initiated through advertisement dated 23.09.2015, the Act of 1993 and Act of 2009 were holding the field and the selection process was taken up for the post of Assistant Teachers of Primary Classes, as the teachers who were teaching the said classes were retired (as appears from the paragraph 10 and 16 of the writ petition), and thus the qualification prescribed under the Regulation issued under Act of 1993 and Act of 2009 should have been taken into account by the management. The qualifications of the appellants are not as provided under the Regulation issued under the Act of 1993 and accordingly their appointment cannot be taken as valid appointment against the posts in issue.
16- At this juncture, it would be useful to refer the judgment of the Apex Court passed in the case of Dilip Kumar Ghosh v. Chiarman reported in (2005) 7 SCC 567. This judgment was also considered by the Full Bench of this Court in the case of Ram Surat Yadav v. State of U.P. reported in (2014) 4 UPLBEC 2625. The para 12 of the judgment passed in the case of Ram Surat Yadav (supra) is quoted below for ready reference:-
"12. In Dilip Kumar Ghosh & Ors. Vs. Chairman & Ors.8, the Supreme Court considered the provisions of the statutory rules in the State of West Bengal. In that case, BEd degree holders who had applied for the post of primary school teachers were aggrieved by the denial of marks against the training qualification on the ground that they did not hold the Junior Basic Training/Primary Teachers Training Certificate. The issue before the Supreme Court was, whether the appellants who had BA/BEd/PhEd qualifications could be equated with candidates who are holders of Junior Basic Training or Primary Teachers' Training Certificates for the purpose of appointment to the post of primary school teachers. In that context, the Supreme Court held as follows:-
"10. The rules, as noticed above, were framed primarily for recruitment of teachers for primary school and the Rules were designed to give an incentive to the teachers who are specifically trained to teach in primary schools. The rationale behind the framing of this Rule is that the JBT/PTTC certificate trained teachers should be appointed so that they can impart proper education to the primary school students in terms of the aims and object with a trained hand. The Rules purposely laid an emphasis that all the candidates for teachers in primary schools who possessed JBT/PTTC should be appointed for the development of the child. The primary education is up to 4th standard. There is a middle education and then secondary and higher secondary education. For teaching in the primary school, therefore, one must know the child psychology and development of a child at a tender age. As already noticed, the candidates like the appellants who are trained in BEd degree are not necessarily to be equipped to teach the students of primary class. They are not trained and equipped to understand the psychology of a child of tender age."
The principles which were formulated by the Supreme Court are as follows:-
"(i) In the case of the junior basic training and primary teachers training certificate the emphasis is on the development of the child. The primary education is up to IVth standard. Thereafter there is middle education and then the secondary and higher secondary education. But in the primary school one has to study the psychology and development of child at a tender age. The person who is trained in BEd degree may not necessarily be equipped to teach a student of primary class because he is not equipped to understand the psychology of a child at that early stage.
(ii) This is only peculiar to the curriculum of the junior basic training course and primary teachers training certificate course. Therefore, looking to the curriculum one can appreciate the distinction between the two courses and the same policy is reflected in Rules framed by the State in exercise of its statutory power.
(iii) To accept a proposition that a candidate who holds a BEd degree, that is, higher degree cannot be deprived appointment to the post of primary school teacher would negate the aims and objects of the Rules for the purpose for which it is framed.
(iv) These Rules were framed primarily for recruitment of the teachers for primary schools and in that context the Rules were designed to give credit to the candidates who are specifically trained to teach in primary schools. The idea behind the framing of these Rules was that the junior basic training and primary teachers training certificate trained teachers should be appointed so that they can impart proper education to the child of tender age who require expert and tending hand.
(v) There is prohibition contained in Rule 6 (d) that no extra credit shall be given for higher qualification."
Consequently, while following the earlier decision in P.M. Latha's case, the Supreme Court affirmed the view of the Division Bench of the High Court holding that persons who did not hold the qualification prescribed for primary teachers could not be considered eligible."
17- The above quoted portion of the judgments speaks in volume that qualification of teacher required to be taken note of and should be prescribed as per the need of the student of a particular category.
18- In addition, the counsel for official respondents further submitted that the qualification in the Rules of 1978, which relates to appointment of teachers in the Junior High School was amended from time to time by the State Government in consonance with the qualification prescribed under the Central Act(s), governing the field. The Act of 1921 after 21.06.2012 (date of amendment in Act of 1921) is silent on the issue of qualification of a teacher to be appointed for imparting education to the students of primary and upper primary classes (Classes I to VIII) and as such keeping in view the same and as also the primacy of Central Act(s), the qualification(s) prescribed under the Act of 1993 and the Act of 2009 can alone be taken into account for appointing a teacher for teaching Class I to VIII or for any other classes which comes within the purview of the Act of 1993.
19- We have considered the arguments of counsels representing the parties and perused the record.
20- We find from the record that the institution was upgraded to the High School vide order dated 05.06.1986 and the selection process was initiated for the posts fell vacant, as appears from the paragraphs 10 and 16 of the writ petition, on account of superannuation of the Assistant Teachers, who were taking classes of class I to VIII, and on up-gradation the Act of 1921 would apply but in the said Act the qualification for appointing an Assistant Teacher for Class I to VIII is not provided, as mentioned in the judgment under Appeal.
21- We also find from the judgment under appeal that the learned Single Judge while holding the applicability of the Act of 1993 on the institution in issue and binding effect of the Act of 1993 considered the relevant provision of the Act of 1993 and settled law on the issue of binding effect of the Act of 1993.
22- In the Act of 1921 earlier the qualification for appointment of a teacher in primary classes (Classes I to VIII) was provided but the same was taken away by the State of U.P. by notification dated 21.06.2012.
23- Prior to notification dated 21.06.2012, the Act of 1993 was amended vide Act No. 18 of 2011 w.e.f. 01.06.2012 The said amendment was made keeping in view the observations made by the Apex Court in the Case of Basic Education Board v. Upendra Rai, (2008)3 SCC 432.
24- The statement of objections and reasons for the amending Act, 18 of 2011, which reads as under:-
"STATEMENT OF OBJECTS AND REASONS The National Council for Teacher Education Act, 1993 has been enacted to provide for the establishment of a National Council for Teacher Education with a view to achieving planned and co-ordinated development of teacher education system in the country and the regulation and proper maintenance of norms and standards in the said system and for matters connected therewith.
2. Clause (d) of section 12 of the aforesaid Act empowers the Council to lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions. The object of this provision is to ensure quality of teachers, and thereby, teaching in schools uniformly across the country. In pursuance of this provision, the Council has framed Regulations which are binding on all State Governments in the matter of appointment of school teachers.
3. The Hon'ble Supreme Court in the case of Basic Education Board, U.P. vs Upendra Rai and others [Appeal (Civil) 8034 of 2001] has held that the Act does not deal with educational institutions like primary schools, etc. Hence, the qualifications for appointment as teacher in the ordinary educational institutions like the primary schools cannot be prescribed under the aforesaid Act, and the essential qualifications are prescribed by the local Acts and Rules in each State.
4. The purpose of regulating the teacher education system is to ensure quality of teachers in the education system. In view of the aforesaid judgment, the minimum qualification for appointment of teachers in schools laid down by the Council has become redundant.
5. In the circumstances, it is considered necessary to amend the Act to clarify that the Act applies to schools, school teachers and the minimum qualifications for appointment of school teachers, so as to have uniform standards of teacher in schools in the country.
6. The Bill seeks to achieve the above objects.
28- Section 1(4) was introduced into the parent act to, inter alia, provide in clause (c)that the Act would apply to schools imparting pre-primary, primary, upper primary, secondary or senior secondary education, and colleges providing senior secondary or intermediate education by whatever name called and to teachers for schools and colleges refered to in clause (c). Section 1(4) reads as under:-
Amendment of Section 1.--In Section 1 of the principal Act, after sub-section (3), the following sub-section shall be inserted, namely--
"(4) Save as otherwise provided in this Act, the provisions of this Act shall apply to-- (a) institutions; (b) students and teachers of the institutions; (c) schools imparting pre-primary, primary, upper primary, secondary or senior secondary education and colleges providing senior secondary or intermediate education irrespective of the fact, by whatever names they may be called; and (d) teachers for schools and colleges referred to in clause (c).". 29- Section 12A introduced by the Amending Act, reads as under:
"12A. For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognized by the Central Government or a State Government or a local other authority:
Provided that nothing in this section shall adversely affect the continuance of any person recruited in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges, under any rule, regulation or order made by the Central Government, a State Government, a local or other authority, immediately before the commencement of the National Council for Teacher Education (Amendment) Act, 2011 solely on the ground of non-fulfilment of such qualifications as may be specified by the Council;
Provided further that the minimum qualifications of a teacher referred to in the first proviso shall be acquired within the period specified in this Act or under the Right of Children to Free and Compulsory Education Act, 2009."
30- In Section 32 of the Act of 1993 in Sub Section (2), after Clause(d) the following clause was inserted.
"(dd)" the qualifications of teachers under Section 12A".
31- The effect of the Amending Act of 2011 is that the parent act would apply to schools imparting education at all levels commencing from the pre-primary stage to the senior secondary stage and to colleges providing senior secondary and intermediate education as well as to teachers of such schools and colleges. The net result of under established Section 3, as defined under Section 2(c) of Section 12A is that the National Council of Teacher Education (in short NCTE) is empowered by the Regulations, under Section 32 of the Act 1993, to determine the qualifications of persons for being recruited as teachers at all levels: pre-primary, primary, upper-primary, secondary, senior secondary or intermediate schools or any college, so long as the institution is established, run, aided or recognized by the Central Government or State Government or by a local or other authority.
32- Section 2(ea) inserted in the Act of 1993 by amending Act No. 18 of 2011 defines "Local Authoity" means "a Municipal Corporation, Municipal Committee, Municipal Council, Zila Parishad, District Board or Nagar Panchayat or Panchayat, or other authority (by whatever name called), legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund;' 33- The proviso to Section 12A however introduced a protection to the effect that the Regulations to be framed by NCTE would not adversely affect the continuance of persons recruited in such institutions before the commencement of the Amending Act of 2011 solely on the ground that they do not fulfill the qualifications prescribed by the Council.
34- However, the second proviso mandates that such teachers who are referred to in the first proviso would have to acquire the minimum qualifications within the period specified in the Act or under the Right of Children to Free and Compulsory Education Act, 2009.
35- From the aforesaid it is evident that the first proviso to Section 12A protects those who were recruited prior to the enforcement of the Amending Act of 2011 but even such teachers are required to obtain the minimum qualifications within the specified period. However, in respect of all teachers who are to be freshly recruited after the date on which the Amending Act of 2011 has been brought into force, the exception which is carved out by the first and second proviso of Section 12A would not be attracted. Recruitments which do not fall within the purview of the exception contained in the first proviso to Section 12A must abide by the minimum qualifications which are prescribed by NCTE.
36- Power to make Regulations consistent to the Act and the Rules made thereunder is provided under Section 32 of the Act of 1993. The Regulations framed in exercise of Power under Section 32 of the Act are statutory Regulation and being so are binding on the subject matter(s) of the Act of 1993, including Section 12 and 12A of the Act of 1993. According to Section 32(2)(d) and 32(2)(dd) read with Section 12 and 12A, the NCTE is empowered to prescribed minimum qualification for a person to be employed as a teacher under Clause d of Section 12 and for a teacher under Section 12A.
37- The aforesaid leaves no doubts as to the scope of the Act of 1993 as also the empowerment of the NCTE to determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary etc., schools and colleges by whatever name called.
38- Thus, the applicability of the Act of 1993 and the qualification determined under the Regulations made by the Council to the institution in question, which is a school within the purview of Act of 1921, can not be doubted, as, the NCTE is empowered to make the regulations in respect of the qualifications of teachers of such institution also and it will prevail over a State enactment to the contrary, if any.
39- From the aforesaid it is crystal clear that prior to 21.06.2012 the qualification for appointment of Assistant Teacher for Class I to VIII was provided under the U.P. Act of 1921 and in the Act of 1993, prior to the amendment of 2011, it was not provided and there was no provision under the Act of 1993 under which the Regulation can be issued in relation to the subject matter provided under the relevant Sections inserted by Amending Act No. 18 of 2011 in the Act of 1993. After Amending Act No. 18 of 2011 come into force w.e.f. 01.06.2012, the NCTE is empowered to issue Regulations of prescribing minimum qualification of a person to be recruited as a teacher, under 12A of the Act of 1993.
40- Needless to say that Act of 1993 does not provides any distinction between minority and non minority institutions, as regards to its applicability. In view of the aims and objects of the Act as well as the provisions of the Amending Act and the decisions of the Apex Court as well as of this Court, the provisions of Act of 1993 would apply over all institutions in the entire country including the minority institutions.
41- A perusal of the above referred provisions and reasons recorded hereinabove would show that under the Act of 1993 the NCTE is empowered to frame regulations, fixing norms/ qualifications for appointment of teachers in the schools/ institutions, including the teachers of Classes I to VIII imparting education in minority education. 42- On the issue of binding effect of Act of 1993 the Full Bench of this Court in the of case Shiv Kumar Mishra Vs. State of U.P., reported in 2013 (3) ESC 1436 (All) (DB) considered the binding effect of Act of 1993 and held that the Act of 1993 and Regulations made thereunder are binding. The issue with respect of binding nature of the Act of 1993 was also taken note of above Full Bench of this Court in the case of Ram Surat Versus State of U.P. reported in (2014) 4 UPLBEC 2625. The Full Bench of this Court after considering the various judgment including the judgment passed in the case of Shiv Kumar (Supra) observed that the Act of 1993 and Regulation made thereunder are binding.
43- In the Full Bench decision by this Court passed in the case of Bijay Kumar Singh v. State of U.P. reported in 2015 (2) ALJ 71, the Full Bench on the issue of binding nature of the Act of 1993 and also on the applicability of the same observed as under:-
14-"The first decision of the Full Bench is in Shiv Kumar Sharma Versus State of U.P. and the second decision is in Ram Surat Yadav Versus State of U.P. In the second Full Bench decision, the position as it emerges after the Amending Act 18 of 2011 was brought into force has been summarized as follows; after duly taking congnizance of the earlier decision:
"In view of the amendments which have been brought about by Amending Act 18 of 2011 with effect from 12 October 2011, it is clear that the NCTE is empowered by Regulations to determine the qualifications of persons for being recruited as teachers in any pri-primary, primary, upper primary, secondary, senior secondary or intermediate school or college which is established, run, aided or recognised by the Central Government or by a State Government or a local or other authority. The first proviso to Section 12A, however, protects the continuance of persons who are recruited immediately prior to the enactment of the amending Act which would not be called into question solely on the ground of non-fulfilment of the qualifications as may be specified by the Council. The second proviso, however, stipulates that the minimum qualifications so prescribed shall be acquired within the specified period. Consequently, in view of the enactment of the Amending Act of 2011, the controversy has been set at rest by Parliament having provided that the NCTE is duly empowered to prescribe the qualifications for persons who are recruited as teachers from the pre-primary to the intermediate school or college level. The provisions of the Act and the Regulations have been held by a Full Bench of this Court in Shiv Kumar Sharma and Ors Vs. State of U.P. and Ors. to be binding."
15-The Regulations which have been framed by NCTE are in pursuance of a legislation which has been enacted by Parliament. Once Parliament has legislated and NCTE as the delegate of Parliament has framed Regulations, all actions by the State in the exercise of its rule making authority have to abide by the rigour and discipline of the Regulations which have been framed by NCTE. NCTE has been constituted as a central authority for the purpose of regulating a subject which falls within its statutory control in the interest of promoting quality education. Article 256 of the Constitution requires that the executive power of every State shall be so exercised as to ensure compliance with laws made by Parliament. Article 257 stipulates that the executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union. In exercise of its executive power, when the State issued an advertisement for the recruitment of teachers the minimum qualifications which are prescribed by NCTE must necessarily govern and no provisions to the contrary can be valid in law. The rules which have been framed by the State have to be in conformity with the statutory regulations framed by NCTE. The state lacks the power or authority to override the regulations framed by NCTE. The minimum qualifications which have been prescribed by NCTE are binding upon the state."
44- Now the question is that if the State Act is silent then whether the provisions of Central Act would apply if the Act of the State and Central Act is on the same subject. The education is the subject mentioned in the Entry 25 of the concurrent list i.e. List III of Schedule 7 of the Constitution of India. The Act of 1993 was enacted by the Parliament and falls in the Entry 25 of List III of Schedule 7 of the Constitution of India and the Act of 1921 is the State Act.
45- At this juncture this Court feels to refer the Article 254 of Constitution of India which deals with inconsistency/ repugnancy between the law made by the Parliament and laws made by the Legislature of States, as in the instant case two statutes are of Parliament and other statutes are of the State of U.P., operating in the same field, including the Act of 1921.
46- The Apex Court in the case of Innoventive Industries Limited v. ICICI Bank, (2018) 1 SCC 407 after considering the catena of judgments on the issue of repugnancy/ inconsistency of the Laws made by the Parliament and the State Act, in para 51, has culled out as under:-
51. The case law referred to above, therefore, yields the following propositions:
51.1. Repugnancy under Article 254 arises only if both the Parliamentary (or existing law) and the State law are referable to List III in the Seventh Schedule to the Constitution of India.
51.2. In order to determine whether the Parliamentary (or existing law) is referable to the Concurrent List and whether the State law is also referable to the Concurrent List, the doctrine of pith and substance must be applied in order to find out as to where in pith and substance the competing statutes as a whole fall. It is only if both fall, as a whole, within the Concurrent List, that repugnancy can be applied to determine as to whether one particular statute or part thereof has to give way to the other.
51.3. The question is what is the subject-matter of the statutes in question and not as to which entry in List III the competing statutes are traceable, as the entries in List III are only fields of legislation; also, the language of Article 254 speaks of repugnancy not merely of a statute as a whole but also "any provision" thereof.
51.4. Since there is a presumption in favour of the validity of statutes generally, the onus of showing that a statute is repugnant to another has to be on the party attacking its validity. It must not be forgotten that that every effort should be made to reconcile the competing statutes and construe them both so as to avoid repugnancy--care should be taken to see whether the two do not really operate in different fields qua different subject-matters.
51.5. Repugnancy must exist in fact and not depend upon a mere possibility.
51.6. Repugnancy may be direct in the sense that there is inconsistency in the actual terms of the competing statutes and there is, therefore, a direct conflict between two or more provisions of the competing statutes. In this sense, the inconsistency must be clear and direct and be of such a nature as to bring the two Acts or parts thereof into direct collision with each other, reaching a situation where it is impossible to obey the one without disobeying the other. This happens when two enactments produce different legal results when applied to the same facts.
51.7. Though there may be no direct conflict, a State law may be inoperative because the Parliamentary law is intended to be a complete, exhaustive or exclusive code. In such a case, the State law is inconsistent and repugnant, even though obedience to both laws is possible, because so long as the State law is referable to the same subject-matter as the Parliamentary law to any extent, it must give way. One test of seeing whether the subject-matter of the Parliamentary law is encroached upon is to find out whether the Parliamentary statute has adopted a plan or scheme which will be hindered and/or obstructed by giving effect to the State law. It can then be said that the State law trenches upon the Parliamentary statute. Negatively put, where Parliamentary legislation does not purport to be exhaustive or unqualified, but itself permits or recognises other laws restricting or qualifying the general provisions made in it, there can be said to be no repugnancy.
51.8. A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject-matter. This need not be in the form of a direct conflict, where one says "do" and the other says "don't". Laws under this head are repugnant even if the rule of conduct prescribed by both laws is identical. The test that has been applied in such cases is based on the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the State legislation or part thereof is identical with that of the Parliamentary legislation, so that they cannot both stand together, then the State legislation will be said to be repugnant to the Parliamentary legislation. However, if the State legislation or part thereof deals not with the matters which formed the subject-matter of Parliamentary legislation but with other and distinct matters though of a cognate and allied nature, there is no repugnancy.
51.9. Repugnant legislation by the State is void only to the extent of the repugnancy. In other words, only that portion of the State's statute which is found to be repugnant is to be declared void.
51.10. The only exception to the above is when it is found that a State legislation is repugnant to Parliamentary legislation or an existing law if the case falls within Article 254(2), and Presidential assent is received for State legislation, in which case State legislation prevails over Parliamentary legislation or an existing law within that State. Here again, the State law must give way to any subsequent Parliamentary law which adds to, amends, varies or repeals the law made by the Legislature of the State, by virtue of the operation of Article 254(2) proviso.
47- The Apex Court in the case of Innoventive Industries Limited (Supra) in paragraph 45, has taken note of the following:-
25. In Colin Howard's Australian Federal Constitutional Law, 2nd Edn. the author while describing the nature of inconsistency between the two enactments observed as follows:
''An obvious inconsistency arises when the two enactments produce different legal results when applied to the same facts.' 48- From the aforesaid including relevant judgments, referred above, it can be inferred that if provisions of Act of 1921 would be applied, wherein presently there is no qualification prescribed for appointment of Assistant Teacher for teaching the students of Classes I to VIII. It would produce different result or a result repugnant / inconsistent to the Act of 1993.
49- Accordingly, though there is no provision in the Act of 1921, so far as it relates to prescribing qualification of Assistant Teacher to be appointed for imparting education to classes I to VIII, but even than if the appointment of a teacher is made as per the qualification prescribed under the Act of 1921 for teaching the classes I to VIII, it would be inconsistent and repugnant to the Act of 1993. In the case of repugnancy the Central Act on the same subject would prevail, as observed hereinabove by the Apex Court. Thus, also the Act of 1993 would apply in the cases of appointment of a teacher in the institution, within the provision of the Act 1921, including the appellants, covered under the Act of 1993 and Regulation made thereunder.
50- After the amendment made in the Act of 1993 in the year 2011 the Regulations made thereunder were issued in the year 2014. The notification was issued on 12.11.2014 and in exercise of powers under Clause (dd) of Sub Section 2 and Section 32 read with Section 12A, inserted in the Act of 1993. The said Regulation superseded the earlier Regulation of 2001.
51- As per Regulation (1) these Regulations may be called the National Council for Teacher Education (Determination of Minimum 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 (in short Regulation of 2014). Regulation 2 of Regulations of 2014 categorically provides that these regulations shall be applicable for recruitment of teachers and physical education teachers in any recognized school imparting pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges imparting senior secondary education. The explanation to the said provision further defines the terms "school". As the opposite party no. 6- educational institution receives grant-in-aid up to the Junior High School from the State Government it is covered under the said definition, therefore, the said regulations apply to it also. Regulation 2 of the Regulation of 2014 reads as under:-
"2.Applicability-These Regulations shall be applicable for recruitment of teachers and Physical Education Teachers in any recognized school imparting Pre-primary, Primary, Upper Primary, Secondary or Senior Secondary or Intermediate Schools or Colleges imparting senior secondary education:-
Explanation:- For the purpose of this regulation, the term "School" includes-
(i) A school established, owned and controlled by the Central Government, or the State Government or a local authority;
(ii) A school receiving aid or grants to meet whole or part of its expenses from the Central Government or the State Government or a Local Authority;
(iii) A school not receiving any aid or grants to meet whole or part of its expenses from the Central Government of the State Government or a Local Authority."
52- Regulation 4 deals with qualifications for recruitment and Clause (a) provides that the qualifications for recruitment of teachers in any recognized school imparting pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges imparting senior secondary education shall be as given in the I and II Schedule(s) annexed to these regulations. Regulation 4 of the Regulations of 2014 reads as under:-
"4. Qualifications for Recruitment-
(a) The qualifications for recruitment of teachers in any recognized school imparting Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges imparting senior secondary education shall be as given in the First and Second Schedule(s) annexed to these Regulations.
(b) For promotion of teachers the relevant minimum qualifications as specified in the First and Second Schedule(s) are applicable for consideration from one level to the next level."
53- The First Schedule referred in Regulation 4 of the Regulations, 2014 reads as under:-
"First Schedule {See Sub-regulation (2) of Regulation (4)} The National Council for Teacher Education (Determination of Minimum Qualification for Persons to be recruited as Education Teachers in Pre-primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014.
LEVEL MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONS
1.Pre-School/Nursery (For children in the age group of 4.6 years)
2. Pre-School/ Nursery followed by first two years in a formal school.
a. (i) Senior Secondary (Class XII or its equivalent) from recognized board with at least 50% marks Or
(ii) Senior Secondary (Class XII or its equivalent) from recognized board with at least 45% marks in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 And;
b. Diploma in Nursery Teacher Education/Pre-School Education/Early Childhood Education Programme (D.E.C.Ed.) of duration of not less than two years, or B.Ed. (Nursery) from National Council for Teacher Education recognized institution.
3. Primary and Upper Primary (For Classes I to VIII) Minimum qualifications as laid down by National Council for Teacher Education vide its notification dated 23.08.2010 as amended from time to time issued in exercise of the powers conferred under Sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009)
4. Secondary/ High School (For Classes IX-X)
(a) Graduate/Post Graduate from recognized University with at least 50% marks in either Graduation or Post Graduation (or its equivalent) and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution.
Or
(b) Graduate/Post Graduate from recognized University with at least 45% marks in either Graduation or Post Graduation (or its equivalent) and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution {in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 and National Council for Teacher Education (Recognition Norms and Procedure) Regulation, 2007 notified on 10.12.2007.
Or
(c) 4-years degree of B.A.Ed./B.Sc.Ed. from any National Council for Teacher Education recognized institution.
5. Senior Secondary/ Intermediate (For Classes XI-XII)
(a) Post Graduate with at least 50% marks (or its equivalent) from recognized University and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution.
Or
(b) Post Graduate with at least 45% marks (or its equivalent) from recognized University and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution {in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 and National Council for Teacher Education (Recognition Norms and Procedure) Regulation, 2007 notified on 10.12.2007.
Or
(c) Post Graduate with at at least 50% marks (or it equivalent) from recognized University and B.A.Ed./B.Sc.Ed. form any NCTE recognized institution.
54- The above quoted provisions were also considered by the learned Single Judge while passing the judgment under appeals.
55- It would be proper to mention that the Regulations of 2014, with respect to teachers of Classes I to VIII, says that qualification as prescribed under the notification dated 23.7.2010 as amended from time to time issued in exercise of power under Sub Section 1 of Section 23 of the Act of 2009 would apply. In view of above, we hold that the Act of 2009, by incorporation, would be applicable on each school/ institution including the minority institution, so far as it relates to qualification of a teacher to be appointed for imparting education to Classes I to VIII.
56- The minimum qualification prescribed on the relevant date in the instant case for appointment of Assistant Teacher which is relevant to this case are as under:-
"Classes VI-VIII
(a) B.A./B.Sc and 2- year Diploma in Elementary Education (by whatever name known) OR B.A./B.Sc. with at least 50% marks and 1-year Bachelor in Education (B.Ed) OR B.A./B.Sc. with at least 45% marks and 1- year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard.
OR Senior Secondary (or its equivalent) with at least 50% marks and 4- year Bachelor in Elementary Education (B.El.Ed) OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year BA/B.Sc. Ed. or B.A. Ed./B.Sc.Ed.
OR B.A./B.Sc. with at least 50% marks and 1- year B.Ed. (Special Education) AND (B) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose."
57- It is evident from the First Schedule, that separate qualifications are prescribed for various levels of school and classes right from Pre-Nursery to Senior Secondary. It is provided to cater the need of a particular class/category of students. Thus, even if a school is upto Secondary Level (High School) or Senior Secondary (Intermediate) the qualifications for teachers at different levels will be different and it can not be said that a teacher qualified for being recruited for teaching Classes XI -XII i.e. Senior Secondary would also be qualified for being recruited for teaching lower classes such as Pre-School/ Nursery or Primary, Upper Primary or Secondary. The requirement/teaching skills etc. is different at different levels of education.
58- In the instant case the advertisement dated 23.9.2015 was issued for the purposes of appointment of appellants by the institution after the Regulation of 2014, which were issued on 12.11.2014, and admittedly the appellants were also appointed on 25.01.2016. On the date of initiation of selection process i.e. 23.9.2015 the appellants were not, admittedly, qualified as per the qualifications mentioned in Regulation of 2014, which was mandatory on that date, as we have held that Act of 1993 of Regulations made thereunder are binding ever the minority institution though is within the purview of Act of 1921.
59- Considering the entirety of the case, as narrated hereinabove, this Court answers the question framed above, in affirmative, meaning thereby that the Act of 1993 and regulations made thereunder would apply on the institutions covered under the Act of 1921 and other State Acts.
60- For the reasons recorded hereinabove we are in the agreement with the findings recorded by the learned Single Judge and accordingly we find that no interference is required in the judgment under appeal dated 28.02.2018.
61- Accordingly the appeal is dismissed with no order as to costs.
Order Date:-31.5.2019 Jyoti/-