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September 25, 2017

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Uttar Pradesh's RTE Experience


- Priti Iyer, Executive [ Wockhardt Hospitals Limited ]

Priti Iyer

The state government, in a clear violation of the mandate of Section 23(2), which vests power to relax minimum qualifications in the central government, arrogated to itself a power which it lacked of granting exemption from mandatory qualifications laid down by NCTE for Shiksha Mitras

Early education in India commenced under the supervision of a guru. Initially, education was open to all and seen as one of the methods to achieve Moksha in those days, or enlightenment. As time progressed, due to superiority complexes, education was imparted on the basis of caste and related duties one had to perform as member of a specific caste. The Brahmins learned about scriptures and religion, while the Kshatriya was educated in various aspects of warfare. The Vaishya caste learned commerce and other specific vocational courses, while education was largely denied to the Shudras, the lowest caste. The earliest venues of education in India were often secluded from the main population. Students were expected to follow strict monastic guidelines prescribed by the guru and stay away from cities in ashrams. However, as population increased under the Gupta Empire, centers of urban learning became increasingly common and cities such as Varanasi and the Buddhist center at Nalanda became increasingly visible.

The Indian Constitution has provisions to ensure that a state provides education to all its citizens. The Indian Constitution in its original enactment defined education as a state subject. Under Article 42 of the Constitution, an amendment was added in 1976 and education became a concurrent list subject which enabled the central government to legislate on it in any manner it deemed fit. Besides, India is a signatory to a number of international covenants i.e. Jomtien Declaration, UNCRC, MDG Goals, Dakar Declaration, SAARC SDG Charter for children which makes it binding on the country to make education a reality for all children. Nearly eight years after the Constitution was amended to make education a fundamental right, the Government of India from April 1, 2010, implemented the law to provide free and compulsory education to all children in the age group of 6-14 years.

The Constitution (eighty-sixth) Amendment Act has now inserted Article 21A in the Constitution which makes education a fundamental right for children in the age group of 6-14 years by providing that; “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may, by law, determine”. This act is being enforced from April 1, 2010, to provide free and compulsory education to all children between the ages of six and fourteen years. The 86th Amendment of the Constitution in December 2002 and its enactment since April 1, 2010, has made free and compulsory education for all children in the 6-14 age group a justifiable fundamental right. The ‘Right of Children to Free and Compulsory Education Act’ or ‘Right to Education Act also known as RTE’, is an Act of the Parliament of India enacted on August 4, 2009, which describes modalities of the importance of free and compulsory education for children between 6 and 14 in India under Article 21A of the Indian Constitution. ‘Compulsory education’ casts an obligation on the appropriate government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age group. The Children’s Right to Free and Compulsory Education Act - The law came into effect in the whole of India except the state of Jammu and Kashmir from April 1, 2010.

The RTE Act provides for the: Right of children to free and compulsory education till completion of elementary education in a neighborhood school. It clarifies that ‘compulsory education’ means obligation of the appropriate government to provide free elementary education and ensure compulsory admission, attendance and completion of elementary education to every child in the six to fourteen age group.

In the matter of

The state of U.P. & Anr. etc. ...Appellants versus Anand Kumar Yadav & Ors. etc.

Facts


U.P. Basic Education Act, 1972 (the 1972, Act) was enacted to regulate and control basic education in the State of U.P. Section 19 of the 1972, Act authorizes the state government to make rules to carry out the purpose of the Act.

U.P. Basic Education (Teachers) Service Rules, 1981 (1981 Rules) lays down sources of recruitment and qualification for appointment of teachers. The National Council for Teachers’ Education Act, 1993, (NCTE Act) was enacted by the Parliament for planned and coordinated development for teacher education system.

The Right of Children to Free and Compulsory Education Act, 2009, (RTE Act, 2009) was enacted by the Parliament for free and compulsory education of all children of the age of 6 to 14 years.

Section 23 provides for qualification for appointment of teachers. The NCTE was designated as authority under Section 23(1) to lay down qualifications for appointment of teachers.

The NCTE issued notification dated August 23, 2010, laying down such qualifications. With regard to teachers appointed prior to the said notification, it was stated that they were required to have qualifications in terms of the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (the 2001 Regulations), if the teachers were appointed on or after 3 September, 2001, subject to their undergoing the NCTE-recognized six months’ special program in certain situations. Teachers appointed before September 3, 2001, were required to have qualifications as per prevalent recruitment rules. One of the requirements under the said notification is the requirement of passing the Teachers’ Eligibility Test (TET) qualifications as per prevalent recruitment rules. Section 23(2) of the RTE Act which was followed by the relaxation order dated September 10, 2012, for certain categories of persons which was to operate till March 31, 2014.

The NCTE by its letter dated January 14, 2011, accepted the proposal of the State of Uttar Pradesh for training of untrained graduate Shiksha Mitras by open and distance learning but it was made clear that no appointment of untrained teachers was permitted.

The Shiksha Mitras were appointed on a contractual basis for a stipulated period of eleven months’ renewable subject to satisfactory performance and on an honorarium. The Shiksha Mitras were notified of the fact that this was a Scheme envisaging service by unemployed youth for the benefit of the community against payment of an honorarium. Appointments of Shiksha Mitras were not against sanctioned posts as determined by the Board of Basic Education with previous approval of the state government under Rule 4 of the Service Rules, 1981.

Observations


The Supreme Court held that the manner of appointment was not in conformity with the provisions contained in Rules 14, 15, 16 and 17 of the Service Rules 1981. Shiksha Mitras did not fulfill the qualifications for a regular teacher under the Service Rules of 1981. These aspects leave no manner of doubt that the engagement of Shiksha Mitras was envisaged under an administrative scheme by the state government on a contractual basis with a specified purpose and object and dehors the governing provisions of the applicable Service Rules of 1981. The Scheme of appointing Siksha Mitras doesn’t have a statutory character because there has been escape from the requirement of complying with the norms which govern the regular teachers of basic schools as prescribed in the Service Rules of 1981.

The power to issue directions under Section 13 could not have been exercised contrary to the provisions of the Service Rules of 1981 which were made by the state government in exercise of the subordinate law-making power. The engagements of Shiksha Mitras were dehors the recruitment rules and were not in accordance with the Service Rules of 1981 which apply to appointments of basic teachers in the State of Uttar Pradesh. The permission which was granted by NCTE on January 14, 2011, was specifically in the context of the request made on January 3, 2011, for granting permission for training of 1,24,000 untrained graduate Shiksha Mitras.

The state government, in a clear violation of the mandate of Section 23(2) which vests the power to relax the minimum qualifications in the central government, has arrogated to itself a power which it lacks, to grant exemption from the mandatory qualifications which are laid down by NCTE in their application to Shiksha Mitras in the state. Any relaxation of the minimum educational qualifications can only be made by the central government.

Outlook


“A mere talker cannot be the Guru”- Swami Vivekananda

‘Are good teachers a good investment?’ As is rightly said – “The function of education is to teach one to think intensively and to think critically. Intelligence plus character - that is the goal of true education” - Martin Luther King, Jr. Education is a powerful tool by which economically and socially marginalized adults and children can uplift themselves out of poverty and participate fully as citizens. The gap between discourse and operational framework in all policy efforts in education, and more widely development, has long been cited as a reason for India’s poor performance in securing equitable educational opportunity for all. Despite a range of commitments made in the Indian Constitution to equality, addressing the historical disadvantage faced by certain groups, and universal education, policies on the ground have done little to fulfill the ambitious vision developed at the birth of the modern Indian nation-state.

The role of the teacher is that of a mediator of learning, a parent substitute, a controller of students’ behavior, an agent of social change, and finally a judge of achievement. The teacher who enters a school imparting elementary education has to act like a group leader who can remove the hindrances of doubts in the mind of an infant and generate creative development. Above all, he has to instill in the mind of a youngster all virtues of courage and honesty as this part of education is a vital portion of the child’s development.

The whole purpose of the act was to impart “quality education” to every individual. The appointment of unqualified teachers has led to dilution of the whole intent behind spreading education.

Disclaimer – This article is based on research on public domain by the author and not the views of Wockhardt Group.

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