The Allahabad High Court has held that the appointment of an Assistant Teacher who did not possess the Teacher Eligibility Test (TET) qualification at the time of appointment is saved where the teacher clears the TET before 31.03.2015, the time limit available under the first proviso to Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 and the State's Government Order dated 05.12.2012.

It held that the NCTE notification requiring TET, issued under the same Act, could not be used to terminate the teacher while denying him the protection given by the Act itself.

The first proviso to Section 23 of the Act requires a teacher who did not possess the minimum qualifications at the commencement of the Act to acquire them within five years. As the Act came into force on 01.04.2010, the Court noted that this period ran till 31.03.2015.

The bench of Justice J.J. Munir and Justice Indrajeet Shukla held,

“If the notification dated 23.08.2010 issued in pursuant to Act,2009 being a Central legislation is binding on the State Government and that could be a cause/foundation for termination of services, there is no reason why the statutory protection available in the same Act i.e. Act 2009, particularly the first proviso appended to Section 23 (1) therein, would not come to the petitioner's rescue.”

Appellant was appointed as Assistant Teacher in Bal Bari Junior High School, Kasya, Kushinagar under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. The District Basic Education Officer, Kushinagar approved the appointment on 30.07.2011 and the appellant joined on 10.08.2011. He passed the TET in 2014.

On 02.08.2014, the Manager of the Committee of Management terminated his services alleging concealment and forgery, without giving details of any forged document. The District Basic Education Officer disapproved the termination on 28.11.2014 under Rule 15 of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, which bars termination of an Assistant Teacher without the prior written approval of the District Basic Education Officer.

The Management never challenged the disapproval. However, the appellant was neither allowed to resume duties nor paid. He filed a writ petition seeking continuance on the post and salary with arrears.

In its counter affidavit, the Management pleaded for the first time that the appellant did not have the TET certificate when he was appointed and was therefore ineligible. The Single Judge dismissed the writ petition on 23.04.2015, holding that TET was an essential qualification from the date of the NCTE notification dated 23.08.2010 and that clearing it later could not validate the initial appointment. The Single Judge left it open to the appellant to apply under the 1974 Rules. Petitioner filed an intra-court appeal.

Relying on Mohinder Singh Gill and another vs Chief Election Commissioner, the High Court held that an order has to stand on the reasons given in it and cannot be improved later through an affidavit. It observed that lack of TET was never a ground in the termination order, and the Single Judge erred in allowing the respondents to raise it.

“The introduction of a new ground to defend the initial termination order cannot be permitted, as every order would be attempted to be salvaged by introducing new grounds and the basic character of the initial order would be changed, frustrating the power of judicial review exercise by the Constitutional Courts.”

The Court held that the Single Judge also failed to consider the Government Order dated 05.12.2012, by which the State gave effect to the NCTE notification while allowing teachers already working without TET time till 31.03.2015 to acquire it. It noted that the State had resolved to protect teachers appointed after 01.04.2010 by amending the 1978 Rules, but the protective amendment was inadvertently left out, while the TET requirement was added to Rule 4.

The Court observed that when the appellant was appointed on 08.08.2011, the 1978 Rules did not prescribe TET as an eligibility qualification. It held that the respondents could not approbate and reprobate by treating the NCTE notification as binding for terminating his services while denying him the protection available under the same Central legislation.

Since the appellant had cleared TET well before 31.03.2015, the Court held,

“The inescapable conclusion is that the initial appointment of the petitioner is saved by the virtue of the statutory amendments brought in the Rules, 2011 read with the first proviso to Section 23 of the Act, 2009 and the intention of the Government Order dated 05.12.2012 expressed therein.”

The Court further held that the refusal to let the appellant work despite the disapproval of his termination attracted the doctrine of malice in law. It noted that even after the disapproval, the Management had written to the District Magistrate on 16.12.2014 seeking recall of the District Basic Education Officer's order.

On back wages, the Court observed that neither side had pleaded whether the appellant was gainfully employed during the 12 years he was kept out, and this could not be decided on affidavits.

Distinguishing the case from an ordinary wrongful termination, the Court held,

“It is a case where deliberately the order disapproving the termination has been dishonored by keeping the petitioner out of employment. Hence it cannot be equated with wrongful termination/ dismissal, where there may be at least an iota of bona fides, but here the arbitrariness is writ large, defeating the statutory procedure and orders of the competent authority passed under the rules.”

Holding that the appellant was entitled to his salary as he had been arbitrarily prevented from working, the Court ordered payment of the entire arrears with interest instead of assessing back wages on the parameters laid down in precedents.

Accordingly, the Special Appeal was allowed, the order of the Single Judge was set aside and the writ petition was allowed. The Court directed that the appellant be reinstated forthwith with consequential monetary benefits, including arrears of salary with 6% simple interest.

Case Title: Mohd. Mustafa Siddiqui v. District Basic Education Officer and 4 others