HC Erred In Holding 18 Months Diploma In Elementary Education Through Open Distance Learning Equivalent To 2 Years Regular Diploma: Supreme Court

The Supreme Court on Monday (28.11.2023) set aside the order of the Uttarakhand High Court that held that 18 months Diploma in Elementary Education ( D.El.Ed.) conducted through the Open and Distance Learning (ODL) mode by the National Institute of Open Schooling (NIOS) is a valid Diploma for applying against the regular posts of Assistant Teachers (Primary) in the State of Uttarakhand.

A bench comprising Justice BR Gavai and Justice Prashant Kumar Mishra held that the High Court "totally erred" in holding that the 18 months Diploma through ODL is equivalent to 2 years regular Diploma. 

In this regard, reference was made to Devender Bhaskar and Others v. State of Haryana and Others where the Supreme Court held that the Courts cannot declare the equivalence of prescribed qualifications.

Background 

In February 2021, the Department of Elementary Education of Uttarakhand recalled its earlier order that permitted candidates with 18 months Diploma through NIOS to apply for the post of Assistant Teacher. This was challenged before the High Court where it was held that the 18 months Diploma in Elementary Education through the Open and Distance Learning (ODL) mode in elementary education by the National Institute of Open Schooling (NIOS) was valid to apply to the said post. Appeals were filed before the Apex Court by the candidates who had completed the 2 years diploma.

Under Section 23(1) of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) to be eligible for appointment as a teacher, a person must possess such minimum qualifications, as laid down by an academic authority, authorised by the Central Government. Under 23(2) of RTE Act, the Central Government can relax the minimum qualifications for appointment as a teacher, the Court noted. This can be done where a State does not have adequate institutions offering courses in teacher education, or when teachers possessing minimum qualifications are not available in sufficient numbers, the Court observed.

Through a 2017 Amendment Act, a second proviso was added to Section 23 (2) of the RTE Act with retrospective effect from 1st April 2015. According to the amendment every teacher appointed or in position as on 31st March 2015, without the minimum qualifications laid down under 23 (1) must acquire such minimum qualifications within a period of four years from the date of commencement of the 2017 Amendment Act.

The Central Government authorised NCTE under the RTE Act, as an academic authority to lay down the minimum qualifications for a person to be eligible for appointment as a teacher. NCTE under its powers under RTE Act, issued a notification on 23rd August 2010 prescribing the minimum qualifications. This notification was amended by notification dated 29th July 2011.

In 2012, the Government of Uttarakhand, notified the Uttarakhand Government Elementary Education (Teacher) Service Rules, 2012 under which the minimum qualifications provided was 2 years Diploma in Elementary Education.

Since, the 2017 amendment had retrospective effect, the teachers, who were appointed or in position as on 31st March 2015, were required to acquire the requisite qualifications within a period of 4 years from 1st April 2015.

All teachers working were required to acquire the minimum qualifications by 31st March 2019 or they would face dismissal from service. Directions were issued by the MHRD so that lakhs of teachers, who were untrained, get the requisite qualifications prior to 1st April 2019.

A recognition order dated 22nd September 2017 was issued by NCTE so that the directives of MHRD dated 8th September 2017 for implementing the 2017 Amendment Act were fulfilled. The Court noted that since the time-gap between the directions issued by MHRD and 31st March 2019 was about 18 months, the period of the course was reduced from 2 years to 18 months.

“NCTE recognition order dated 22nd September 2017 was issued so as to give effect to the directives of MHRD dated 8th 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 were required to acquire the minimum qualifications prior to 1st 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” the Apex Court said.

"....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” the bench said said in this context. 

The Court also said that the finding of the High Court that the 18 months Diploma course in Elementary Education conducted by NIOS is equal to 2 years Diploma is erroneous.

“..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 to 1st 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 of NCTE dated 23rd August 2010 and 29th July 2011” the Apex Court concluded while setting aside the High Court order and allowing the appeals.

Case Title: JAIVEER SINGH V. STATE OF UTTARAKHAND,  CIVIL APPEAL NOS. OF 2023, Arising out of SLP(C) Nos. 23583-84 of 2022

Citation: 2023 LiveLaw (SC) 1023

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