Supreme Court of India

DEVESH SHARMAversusUNION OF INDIA AND ORS.

Citation: 2023 INSC 704
Decided: 11 August 2023
Disposal: Dismissed
Bench: ANIRUDDHA BOSE

Holding

The Supreme Court held that the inclusion of B.Ed. as a qualification for primary school teachers was arbitrary, contrary to the Right to Education Act and Article 21A, and therefore the notification dated 28 June 2018 was quashed.

Summary

The National Council for Teacher Education (NCTE) issued a notification on 28 June 2018 that treated a B.Ed. degree as an essential qualification for appointment as a primary school teacher (Level‑1). This was challenged by B.Ed. candidates and by candidates holding a Diploma in Elementary Education (D.El.Ed.) who argued that the inclusion was arbitrary and contrary to the Right to Education (RTE) Act and Article 21A. The Supreme Court examined whether NCTE, under Section 23(1) of the RTE Act and the Central Government’s direction under Section 29 of the NCTE Act, could lawfully make such a change, and whether the policy was unreasonable and violated the statutory purpose of providing quality primary education. The Court held that B.Ed. is not a suitable qualification for primary teaching, the inclusion was arbitrary, and it contravened the RTE Act’s mandate of quality education. Consequently, the Court quashed the 28 June 2018 notification and upheld the Rajasthan High Court’s order, dismissing the appeals.

Issues considered

Whether NCTE, exercising powers under Section 23(1) of the Right to Education Act, could include B.Ed. as an essential qualification for primary school teachers.
Whether the Central Government’s direction under Section 29 of the NCTE Act validly authorized the inclusion of B.Ed. for primary level appointments.
Whether the inclusion of B.Ed. violates the purpose of the Right to Education Act and Article 21A by compromising the quality of primary education.
Whether the Rajasthan High Court’s quashing of the 28 June 2018 notification was legally justified.
Whether a policy decision that is arbitrary, unreasonable or contrary to statute is amenable to judicial review.

Legislation cited

National Council for Teacher Education Act, 1993s. 12A, s. 29
Right to Education Act, 2009s. 23(1), s. 23(2)

Subjects

Right to Education ActArticle 21Ateacher qualificationpolicy decisionjudicial reviewNCTEB.Ed qualificationprimary educationquality of educationadministrative law

Judgment

[2023] 11 S.C.R. 167 : 2023 INSC 704

CASE DETAILS

DEVESH SHARMA
v.
UNION OF INDIA AND ORS.
(Civil Appeal No. 5068 of 2023)
AUGUST 11, 2023
[ANIRUDDHA BOSE AND SUDHANSHU DHULIA, JJ.]

HEADNOTES

Issue for consideration : Whether National Council for Teacher
Education-NCTE vide notiﬁcation dated 28.06.2018, was right in including
B.Ed. qualiﬁcation as an equivalent and essential qualiﬁcation for appointment
to the post of primary school teacher (Level-1); and whether the High Court
was justiﬁed in quashing the said notiﬁcation, holding the B.Ed. candidates
to be unqualiﬁed for the posts of primary school teachers (Level-1).
Right to Education Act, 2009 – s. 23(1) – Appointment to the post of
primary school teachers – Inclusion of B.Ed as a necessary qualiﬁcation
by NCTE vide notiﬁcation dated 28.06.2018 – Justiﬁcation:
Held : Not justiﬁed – B.Ed. is not a qualiﬁcation for teachers at Primary
level of schooling – Pedagogical skills and training required from a teacher at
Primary level is not expected from a B.Ed. Trained teacher – They are trained to
teach classes at higher level, post primary, secondary and above – For Primary
level i.e. class I to class V the training is D.El.Ed-Diploma in elementary
education – Thus, by implication the inclusion of B.Ed. as a qualiﬁcation
amounts to lowering down of the ‘quality’ of education at Primary level –
Need for ‘quality’ and meaningful primary education has been emphasized by
the legislature as well as by the academic authority – In primary education,
any compromise on ‘quality’ of education would mean going against the very
mandate of Article 21A and the RTE Act – Thus, the decision of the NCTE to
include B.Ed. as a qualiﬁcation for teachers in a primary school is arbitrary,
unreasonable and has no nexus with the object sought to be achieved by the
Act – NCTE had so far consciously kept B.Ed. Degree out of the eligibility
167
168 SUPREME COURT REPORTS [2023] 11 S.C.R.

requirement – Thus, the High Court rightly struck down the notiﬁcation
dated 28.06.2018. [Paras 27, 29, 31, 33 and 34]
Administrative law – Policy decision – Introduction of B.Ed. as a
qualiﬁcation for teachers in primary school by NCTE vide notiﬁcation
dated 28.06.2018, on the directions of the Central Government –
Interference with:
Held : Policy decisions of the Government should normally not
be interfered with, by a constitutional Court in exercise of its powers of
judicial review – Powers of judicial review must be exercised only if the
policy decision itself is contrary to the law and is arbitrary and irrational,
or a decision has been taken without proper application of mind, or in total
disregard of relevant factors – Decision to include B.Ed. as a qualiﬁcation
is not an independent decision of NCTE, but was the decision of the
Central Government and NCTE was simply directed to carry it out being
a direction u/s. 29 of NCTE Act – This cannot be seen as a policy decision
– Even presuming it to be a policy decision, the decision is not correct
as it is contrary to the purpose of the Act – It goes against the letter and
spirit of Art. 21A and the RTE Act, which calls for a free, compulsory
and meaningful primary education to children – By including B.Ed. as a
qualiﬁcation for teachers for primary school, the Central Government has
acted against the provisions of the Constitution and the laws – Notiﬁcation
dated 28.06.2018 is quashed and set aside – National Council for Teacher
Education Act, 1993 – s. 29 – Judicial review. [Paras 36 and 37]
Constitution of India – Art.21A – Right to education –
Fundamental right:
Held : Every child upto 14 years of age, has a fundamental right
to have ‘free’ and ‘compulsory’ elementary education, which has to be
of good ‘quality’ – The same is the object and purpose of the Right to
Education Act, 2009. [Para 17]

LIST OF CITATIONS AND OTHER REFERENCES

Unni Krishnan J.P. versus State of Andhra Pradesh and Ors. AIR
1993 SC 2178 : [1993] 1 SCR 594; Dilip Kumar Ghosh and Others versus
Chairman and Others (2005) 7 SCC 567 : [2005] 3 Suppl. SCR 158;
DEVESH SHARMA v. UNION OF INDIA AND ORS. 169

P.M. Latha and Another versus State of Kerala and Others (2003) 3 SCC
541 : [2003] 2 SCR 653; Yogesh Kumar v. Government of NCT, Delhi
(2003) 3 SC 548 : [2003] 2 SCR 662; Society for Unaided Private Schools
of Rajasthan v. Union of India & Anr. (2012) 6 SCC 1 : [2012] 2 SCR 715;
Council of Civil Service Unions v. Minister for the Civil Service (1984) 3
All ER 935; State of NCT of Delhi v. Sanjeev (2005) 5 SCC 181 : [2005]
3 SCR 151; State of M.P. & Ors. v. Mala Banerjee (2015) 7 SCC 698 :
[2015] 3 SCR 704; Brij Mohan Lal v. Union of India (2012) 6 SCC 502 :
[2012] 5 SCR 305; State of Manipur & Ors. v. Surjakumar Okram & Ors.
2022 SCC Online SC 130 – referred to.
Austin, Granville. “The Conscience of the Constitution”. The Indian
Constitution, Cornerstone of a Nation, Oxford University Press, 2000, pp.
50; Barzun, Jacques. “Profession: Teacher”. Teacher in America, published
by Little Brown 7 Co. in association with Atlantic Monthly Press, 1945, pp.
3-13; Weiner Myron (1991) : The Child and the State In India in Comparative
Perspective – Princeton University Press – referred to.

OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES

CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil Appeal
No.5068 of 2023.
From the Judgment and Order dated 25.11.2021 of the High Court of
Judicature for Rajasthan at Jodhpur in DBCWP No.2109 of 2021.
With
Civil Appeal Nos.5122, 5070, 5086, 5121, 5069, 5071-5084, 5085,
5087, 5088-5120, 5125, 5123-5124 Of 2023, Writ Petition (Civil) Nos.137,
881 And 355 of 2022.
Appearances:
Ms. Aishwarya Bhati, Vikramjit Banerjee, ASGs, P. S. Patwalia, Ms.
Meenakshi Arora, Kapil Sibal, Dr. Manish Singhvi, Sr. Advs., Amit Pawan,
Abhishek Amritanshu, Gauravjeet Singh Patwalia, Anand Nandan, Hassan
Zubair Waris, Ms. Shivangi, Aakarsh, Suchit Singh Rawat, Kushagra Raj,
Chittapriya Ghosh, Somesh Kumar Ghosh, Anindo Mukherjee, R. P. Goyal,
Amit Agrawal, Vigyan Shah, Ms. Radhika Yadav, Akshit Gupta, Ms. Sana
170 SUPREME COURT REPORTS [2023] 11 S.C.R.

Jain, Anmol Chandan, Ms. Vishakha, Ms. Ruchi Kohli, Ms. Shreya Jain,
Aman Sharma, A. K. Kaul, Raj Bahadur Yadav, Sughosh Subramanyam, G.
S. Makker, Puneet Jain, Vigyan Shah, Ms. Christi Jain, Ms. Shruti Singh,
Akshit Gupta, Umang Mehta, Yogit Kamat, Mann Arora, Sarah Sharma,
Ms. Pragya Seth, Shipra Singh, Ms. Akriti Sharma, Arpit Parkash, Vikalp
Sharma, Apurv S., Shaswat Mehra, Dibyadyuti Banerjee, Ms. Sumedha
Haldar, Rohit Jaiswal, Umang Gupta, Manoj Rajpoot, Abhijit Sengupta,
Ms. Manisha T. Karia, Ms. Nidhi Nagpal, Adarsh Kumar, Aditya Kesar,
Naresh Kaushik, Vardhaman Kaushik, Manoj Joshi, Vinay Kaushik, Ms.
Shikha Kaushik, Dhruv Joshi, Nishant Gautam, Subham Dwivedi, Ms. Lalita
Kaushik, Arjun Shukla, Ms. Shelly Arora, Nachiketa Joshi, Amit Sharma,
Ishaan Sharma, Sunil Fernandes, Divyansh Tiwari, Ms. Astha Sharma,
Ravinder Singh, Srisatya Mohanty, Ms. Raveesha Gupta, Ms. Mantika
Haryani, Sanjeev Kaushik, Shreyas Awasthi, Himanshu Chakravarty,
Devvrat Singh, Muskan Surana, Manish Kumar, Vijay Sharma, Mridul
Jhalani, Satish Kumar, Gaurav Jain, Ms. Abha Jain, Subir Sanyal, Somesh
Ghosh, Jaivir Singh, Abhishek Misra, Ms. Deepika Mishra, Aniteja Sharma,
Mohan Lal Sharma, Mrs. Shikha John, Mrs. Lalitha Kaushik, Mrs. Shikha
Kaushik, Abhinav Singh, Mayank Sharma, Gurmeet Singh Makker,
Santosh Kumar Tripathi, Ms. Beena Goyal, Hitesh Kumar Sharma, S. K.
Rajora, Akhileshwar Jha, Ms. Niharika Dwivedi, Ravish Kumar Goyal,
Nitin Sharma, Narendra Pal Sharma, Dr. (Mrs.) Vipin Gupta, Ajay Singh,
Ketan Paul, Ashish Batra, Akshat Srivastava, Dr. Sushil Balwada, Ms.
Neelam Singh, Sanjay Rastogi, R.K. Singh, Mrs. Neeraj Singh, Kumar
Gaurav, Ms. Ritu Reniwal, Ajay Choudhary, Aman Rastogi, Advs. for the
appearing parties.

JUDGMENT/ORDER OF THE SUPREME COURT

JUDGMENT
SUDHANSHU DHULIA, J.
Leave granted.
2. A Division Bench judgment of Rajasthan High Court, dated
25.11.2021, is under challenge before this Court. Apart from the
appeals, there are three Writ Petitions as well before this Court, on
the same issue. All the same, while dealing with these cases, for facts,
we would be referring to Civil Appeal @ SLP (C) No.20743 of 2021
Devesh Sharma versus Union of India, which arises out of the order
DEVESH SHARMA v. UNION OF INDIA AND ORS. 171
[SUDHANSHU DHULIA, J.]

dated 25.11.2021 passed by the High Court in D.B. Civil Writ Petition No.
2109 of 2021.
3. What lies at the core of the dispute before this Court is the
notiﬁcation dated 28.06.2018, issued by the National Council for Teacher
Education (hereafter ‘NCTE’), made in exercise of its powers under Section
23(1) of the Right to Education Act, 2009 (hereinafter referred to as the
‘Act’). This notiﬁcation made B.Ed. degree holders eligible for appointment
to the post of primary school teachers (classes I to V). All the same, in spite
of the above notiﬁcation, when the Board of Secondary Education, State of
Rajasthan, issued an advertisement on 11.01.2021, for Rajasthan Teacher
Eligibility Test (RTET Level-1), it excluded B.Ed. degree holders from the
list of eligible candidates. This action of the Rajasthan Government was
challenged before the High Court. The petitioner Shri Devesh Sharma has a
B.Ed. degree, and as per the Notiﬁcation dated 28.06.2018, he was eligible,
like many other similar candidates. Consequently, he ﬁled his petition
before the Rajasthan High Court, inter alia, praying that the advertisement
dated 11.01.2021 be quashed, as it was in violation of the notiﬁcation dated
28.06.2018 issued by the NCTE.
4. Apart from the above batch of petitioners, there was another set
of petitioners, with their own grievance. These are the candidates who are
diploma holders in Elementary Education (D.El.Ed.)1, which was the only
teaching qualiﬁcation required for teachers at primary level, and who are
aggrieved by the inclusion of B.Ed. qualiﬁed candidates. They too ﬁled
Writ Petitions before the Rajasthan High Court challenging the legality of
the notiﬁcation dated 28.06.2018. The State of Rajasthan understandably
supported these second batch of candidates before the High Court, as they
would do before this Court.
5. Out of the three writ petitions before us two (W.P. No. 137 of
2022 and 881 of 2022) are challenging the notification dated 28.06.2018
and the subsequent notifications issued by the Government of Bihar
and U.P. respectively calling for application from eligible candidates
including B.Ed. W.P. No. 355 of 2022 again challenges the notification
dated 28.06.2018. SLP (C) No. 22923 of 2022 is against an interim

1 It is possible that this diploma is called by diﬀerent names in diﬀerent States. It is for this
reason that at some place it may just be referred as a diploma in elementary education.
172 SUPREME COURT REPORTS [2023] 11 S.C.R.

order of the Calcutta High Court which denied relief to the petitioners who
were seeking a stay of the notiﬁcation dated 28.06.2018.
6. Hence the question of law to be answered in these cases is whether
NCTE was right in including B.Ed. qualiﬁcation as an equivalent and
essential qualiﬁcation for appointment to the post of primary school teacher
(Level-1)? The Rajasthan High Court in the impugned judgment has quashed
the notiﬁcation dated 28.06.2018, holding B.Ed. candidates to be unqualiﬁed
for the posts of primary school teachers (Level-1).
7. On behalf of the Petitioners, we have heard learned Senior Counsel,
Mr. Paramjit Singh Patwalia who has assailed the Judgement of the Rajasthan
High Court. Mr. Patwalia appeared for the B.Ed. qualiﬁed candidates and
would support the notiﬁcation dated 28.06.2018, and the petitioners who had
challenged their exclusion before the Rajasthan High Court. Ms. Meenakshi
Arora, learned senior counsel was also heard for the appellants. The learned
counsel would argue that the High Court failed to consider that the notiﬁcation
dated 28.06.2018 was a policy decision taken by the NCTE after the Central
Government had issued directions in this regard, under Section 29 of the NCTE
Act, and the High Court was wrong in interfering with the policy decision
of the Central Government. The NCTE broadly agrees with the submissions
which have been made by Shri Patwalia, and Ms. Arora, while assailing the
impugned judgement.
8. We have also heard the submissions by the learned Senior Counsel
Mr. Kapil Sibal and Dr. Manish Singhvi who appeared for the Diploma
holders and the State of Rajasthan respectively who would argue, inter alia,
that the NCTE being an expert body had to take an independent decision in
this case, based on the objective realties. Even if the NCTE had to follow the
directions of the Central Government, the NCTE must demonstrate that these
directions had been independently considered by them and not implemented
in a mechanical manner.
9. On behalf of the Union of India we have heard learned Additional
Solicitor General(s) Ms. Aishwarya Bhati and Mr. Vikramjeet Banerjee. They
would argue that the Impugned Judgement has been passed ignoring the
powers of the Central Government given both under the Act as well as NCTE
Act. Moreover, an objection has also been raised that the Union of India was
not even made a party in the proceedings before the Rajasthan High Court!
DEVESH SHARMA v. UNION OF INDIA AND ORS. 173
[SUDHANSHU DHULIA, J.]

10. During the course of hearing, this Court had passed an order
dated 24.08.2022, granting liberty to the Board of Secondary Education
for diﬀerent States, and other stake holders to be impleaded as intervenors.
Pursuant to this order, several Interlocutory Applications were ﬁled which
are being heard along with these appeals.
11. “The Indian Constitution is ﬁrst and foremost a social document”,
writes Granville Austin2. The Rights contained in Part III and the Directive
Principles of State Policy contained in Part IV together establish conditions
which further the goal of this social revolution3. Austin goes on to call Part
III and Part IV of the Constitution as “The Conscience of the Constitution”4.
Free and compulsory education for children was a part of the social vision,
of the framers of our Constitution.
12. Elementary education for children is today a Fundamental Right
enshrined under Article 21A of Part III of the Constitution of India. Every
child (upto 14 years of age), has a fundamental Right to have ‘free’ and
‘compulsory’ elementary education. But then ‘free’ and ‘compulsory’
elementary education is of no use unless it is also a ‘meaningful’ education.
In other words, elementary education has to be of good ‘quality’, and not
just a ritual or formality!
13. Our progress, in achieving this constitutional goal, has been slow.
In some ways, it is still a work in progress. Prior to the Constitutional 86th
Amendment, the Right to Education was in Part-IV of the Constitution
(Article 45), as a Directive Principle of State Policy. Directive Principles,
as we know, are a set of goals which the state must strive to achieve. The
goal set out in Article 455 of the Constitution (as it stood at that time), was
to make elementary education free and compulsory for all children up to
age of 14 years, within 10 years of the promulgation of the Constitution.
All the same, it would take much more than ten years to achieve this goal.
2 Austin, Granville. “The Conscience of the Constitution”. The Indian Constitution, Cor-
nerstone of a Nation, Oxford University Press, 2000, pp. 50
3 Ibid – pp 50.
4 Ibid – pp 50.
5 Article 45 of the Constitution as it existed prior to the 86th Amendment:
“Provision for free and compulsory education for children.— The State shall
endeavour to provide, within a period of ten years from the commencement of this
Constitution, for free and compulsory education for all children until they complete
the age of fourteen years.”
174 SUPREME COURT REPORTS [2023] 11 S.C.R.

14. The 1986 National Policy on Education, modified in the
year 1992, declared that free and compulsory elementary education of
‘satisfactory quality’ be given to all children up to the age of fourteen
years, before the nation enters the next century i.e., 21st Century.
15. Later in the seminal judgment of this court in Unni Krishnan
J.P. versus State of Andhra Pradesh and Ors. (AIR 1993 SC 2178), it
was held that children have a fundamental right to free education, till they
complete the age of fourteen years.
16. In the year 1997, in order to make free and compulsory
education a fundamental right the 83rd Constitutional Amendment Bill
was introduced in Parliament, to insert a new Article in Part III of the
Constitution of India, which was to be Article 21A. The Bill was sent
for the scrutiny of the Parliamentary Standing Committee on Human
Resources Development. The Standing Committee not only welcomed
the amendment but in addition emphasizes on the ‘quality of elementary
education’. This is what it said.
“The eminent educationists felt that the Bill is silent on the ‘Quality’
of Education. They suggested that there should be a reference to ‘quality’
of education in the Bill. The Secretary, Education agreed that the ‘quality’
aspect also has to be seen. Education deﬁ nitely must mean ‘quality’
education and anything less than that should not be called education.
Therefore, the emphasis would be through strengthening the teacher
education content, the Secretary stated.”6
Finally, by way of the Constitution (86th Amendment) Act of
2002, Article 21A, was inserted as a Fundamental Right in Part III of
the Constitution, and made eﬀective from 01.04.2010. Article 21A of the
Constitution reads as under:
“Article 21A: The State shall provide free and compulsory education
to all children of the age of six to fourteen years in such manner as
the State may, by law, determine.”
17. In order to fulﬁl the above mandate Right to Education Act,
2009, was passed by the Parliament on August 20, 2009, which became
eﬀective from 01.04.2010. The object and reasons of the Act declared
loud and clear that what the Act seeks to achieve is not merely ‘free’ and
‘compulsory’ elementary education, but equally important would be the
6 Para 13 of the Report of the Parliamentary Standing Committee on Human Resource
Development.
DEVESH SHARMA v. UNION OF INDIA AND ORS. 175
[SUDHANSHU DHULIA, J.]

‘Quality’ of this education! The Preamble to the Act states “that every child
has a right to be provided full time elementary education of satisfactory
and equitable ‘quality’ in a formal school which satisﬁes certain essential
norms and standards”.
18. When the validity of the Act was challenged before this Court7, this
Court, while upholding its validity emphasized that the Act, was intended
not only to impart “free” and “compulsory” education to children, but the
purpose was also to impart ‘quality’ education!
“The provisions of this Act are intended not only to guarantee right to
free and compulsory education to children, but it also envisages imparting of
‘quality’ education by providing required infrastructure and compliance of
speciﬁed norms and standards in the schools.” [See Para 8, (2012) 6 SCC 1]
19. As we can see, the purpose behind bringing this pathbreaking
legislation was not to complete the formality of ‘free and compulsory’
elementary education for children, but to make a qualitative diﬀerence in
elementary education and to impart it in a meaningful manner. Provisions like
‘Right to be admitted in a neighbourhood school’8, ‘No denial of admission’9
and ‘Prohibition of physical punishment and mental harassment’10, are some
of the heartwarming provisions of the Act.
20. The Act sets down certain norms and standards which have to be
followed in elementary schools, and this is with the purpose of providing
a meaningful and ‘quality’ education. To name some of these requirements
such as:-
A. The necessary infrastructure requirement.
B. Pupil teacher ratio which is 30:1 and
C. The absolute necessity of trained as well as qualiﬁed teachers.
21.Free and compulsory education for children becomes meaningless
if we make compromise on its ‘quality’. We must recruit the best qualiﬁed
teachers. A good teacher is the ﬁrst assurance of ‘quality’ education in a

7 In Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. [(2012) 6
SCC 1]
8 Section 3 of the Right to Education Act, 2009.
9 Section 15 of the Right to Education Act, 2009.
10 Section 17 of the Right to Education Act, 2009.
176 SUPREME COURT REPORTS [2023] 11 S.C.R.

school. Any compromise on the qualiﬁcation of teachers would necessarily
mean a compromise on the ‘quality’ of education. Jacques Barzun, the
American educationalist and historian, in his seminal work ‘Teacher in
America’, says “teaching is not a lost art, but the regard for it is a lost
tradition”11. Though this comment was for the state of higher education in
America, it is equally relevant here on the treatment of Primary education
in our country, as it emerges from the facts before us.
22. Elementary education in India is at two levels. A is the ‘Primary’
level i.e. class I to V, and B is the Senior primary level i.e., classes VI
to VIII. Presently we are only concerned with the “primary level” of
education.
23. Section 23 of the Act is extremely important as it not only
provides as to who shall determine the qualiﬁcations of teachers in a
Primary school, but as to who can relax these qualiﬁcations, and for how
long.
It reads as under :-
“Section 23. Qualiﬁ cations for appointment and terms and
conditions of service of teachers.—(1) 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.
(2) Where a State does not have adequate institutions oﬀering courses
or training in teacher education, or teachers possessing minimum
qualiﬁcations as laid down under sub-section (1) are not available
in suﬃcient numbers, the Central Government may, if its deems
necessary, by notiﬁcation, relax the minimum qualiﬁcations required
for appointment as a teacher, for such period, not exceeding ﬁve
years, as may be speciﬁed in that notiﬁcation:
Provided that a teacher who, at the commencement of this Act, does
not possess minimum qualiﬁcations as laid down under sub-section
(1), shall acquire such minimum qualiﬁcations within a period of
ﬁve years:

11 Barzun, Jacques. “Profession: Teacher”. Teacher in America, published by Little Brown
7 Co. in association with Atlantic Monthly Press, 1945, pp. 3-13
DEVESH SHARMA v. UNION OF INDIA AND ORS. 177
[SUDHANSHU DHULIA, J.]

[Provided further that every teacher appointed or in position as on
the 31st March, 2015, who does not possess minimum qualiﬁcations
as laid down under sub-section (1), shall acquire such minimum
qualifications within a period of four years from the date of
commencement of the Right of Children to Free and Compulsory
Education (Amendment) Act, 2017.]
(3) The salary and allowances payable to, and the terms and
conditions of service of, teachers shall be such as may be prescribed.”
24. Whereas sub-Section (1) of Section 23 is the provision where the
‘academic authority’ has been empowered to prescribe qualiﬁcations for
teachers in elementary schools, sub-section (2) of Section 23 empowers the
Central Government to relax the minimum ‘qualiﬁcations’ prescribed by the
‘academic authority’, under certain circumstances and for a limited period.
The ‘Academic Authority’ under Section 23(1) of the Act is the
National Council for Teachers Education (NCTE), which brought a
notiﬁcation on 23.08.2010, laying down the necessary qualiﬁcations for
teachers, both at primary, as well as upper primary level. Inter alia, this
notiﬁcation prescribes as under:-
1. Minimum Qualiﬁcations: -
(i) Classes I-V
(a) Senior Secondary (or its equivalent) with atleast 50% marks and
2- year Diploma in Elementary Education (by whatever name known)
OR
Senior Secondary (or its equivalent) with atleast 45% marks and
2-year Diploma in Elementary Education (by whatever name known),
in accordance with NCTE (Recognition Norms and Procedure),
Regulations 2002
OR
Senior Secondary (or its equivalent) with atleast 50% marks and 4-year
Bachelor of Elementary Education (B.El.Ed.)
OR
178 SUPREME COURT REPORTS [2023] 11 S.C.R.

Senior Secondary (or its equivalent) with at least 50% marks and
2-year Diploma in Education (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 its purpose.
The above notiﬁcation dated 23.08.2010, does not provide B.Ed.
as a qualiﬁcation for appointment to the post of primary school teachers.
Later this notiﬁcation was amended, but B.Ed. was never included (till the
impugned notiﬁcation dated 28.06.2018), as an essential qualiﬁcation for
teachers of primary school i.e. for classes I to V.
A candidate for the post of a teacher in a primary school was to have
these three qualiﬁcations.
A. He must have passed higher secondary level.
B. He must have a Diploma in elementary education (D.El.Ed.),
by whatever name it was called in that State.
C. He should then pass an examination to be conducted by the
State known as Teachers Eligibility Test or TET.
25. The academic authority, which is NCTE considered the
appointment of trained and qualiﬁed teachers as an absolute necessity
in primary schools. It is for this reason that the qualiﬁcation which was
prescribed for a teacher in primary school was a diploma in elementary
education (D.El.Ed.), and not any other educational qualiﬁcation, including
B.Ed. Apart from this the teachers eligibility test or TET would further test
the skills of a candidate to handle students at primary level.
It must be emphasised that the pedagogical approach required from
a teacher at primary level is in some manners unique. These are the initial
formative years where a student has just stepped inside a classroom, and
therefore needs to be handled with care and sensitivity. A candidate who has
a diploma in elementary education (D.El.Ed.) is trained to handle students
at this level, as he has undergone a pedagogical course speciﬁcally designed
for this purpose.
The ‘Academic Authority’ which is NCTE is mandated by the
Act to set up a curriculum and evaluation procedure for the all round
DEVESH SHARMA v. UNION OF INDIA AND ORS. 179
[SUDHANSHU DHULIA, J.]

development of a ‘child’, mindful of all the fears and anxieties which a child
may have. Section 29 of the Act reads as under :-
29. Curriculum and evaluation procedure.—(1) The curriculum
and the evaluation procedure for elementary education shall be laid
down by an academic authority to be speciﬁed by the appropriate
Government, by notiﬁcation.
(2) The academic authority, while laying down the curriculum
and the evaluation procedure under sub-section (1), shall take into
consideration the following, namely:—
(a) conformity with the values enshrined in the Constitution;
(b) all round development of the child;
(c) building up child’s knowledge, potentiality and talent;
(d) development of physical and mental abilities to the fullest
extent;
(e) learning through activities, discovery and exploration in a
child friendly and child-centered manner;
(f) medium of instructions shall, as far as practicable, be in child’s
mother tongue;
(g) making the child free of fear, trauma and anxiety and helping
the child to express views freely;
(h) comprehensive and continuous evaluation of child’s
understanding of knowledge and his or her ability to apply the
same.”
As we can see the curriculum and evaluation procedure which the
‘Academic Authority’ is mandated to set up requires a pedagogical approach
which can be best given by teachers who are trained to deal with child
students.
A person who has a B.Ed. qualiﬁcation has been trained to impart
teaching to secondary and higher secondary level of students. He is not
expected to impart training to primary level students.
In order to appreciate the difference between Diploma in
Elementary Education (it is called by diﬀerent names in each State), and
Bachelor of Education (B.Ed.), we look no further than the Notiﬁcations
180 SUPREME COURT REPORTS [2023] 11 S.C.R.

issued by National Council for Teacher Education (NCTE) itself from time
to time.
The Appendix 2 to the NCTE Regulations, 2009 spells out as to what
is the aim of Elementary Education. It is stated to be as follows:
“1. Preamble
1.1 The Diploma in Elementary Education (D.El.Ed) is a two year
professional programme of teacher education. It aims to prepare
teachers for the elementary stage of education, i.e. classes I to VIII.
The aim of elementary education is to fulﬁll the basic learning needs
of all children in an inclusive school environment bridging social and
gender gaps with the active participation of the community.
1.2 The elementary teacher education programme carries diﬀerent
nomenclatures such as BTC, J.B.T, D.Ed. and (Diploma in Education).
Henceforth, the nomenclature of the programme shall be the same
across all states and it shall be referred to as the ‘Diploma in
Elementary Education’(D.El.Ed).”
The same Regulation in its appendix 4 describes B.Ed as follows:
“1. Preamble
The Bachelor of Education programme, generally known as B.Ed., is a
professional course that prepares teachers for upper primary or middle
level (classes VI-VIII), secondary level (classes IX-X) and senior
secondary level (classes XI-XII). The programme shall be oﬀered in
composite institutions as deﬁned in clause (b) of Regulations 2.”
It is therefore clear that a B.Ed. course is not designed for teaching
at primary level.
Moreover, the inclusion of B.Ed. candidates for primary classes is
in the teeth of several decisions of this Court, as this Court has consistently
held that Diploma in elementary education (D.El.Ed.) and not B.Ed., is the
proper qualiﬁcation in Primary Schools.
26. In Dilip Kumar Ghosh and Others versus Chairman and
Others12, this Court had to decide on the question whether B.Ed degree
12 (2005) 7 SCC 567
DEVESH SHARMA v. UNION OF INDIA AND ORS. 181
[SUDHANSHU DHULIA, J.]

candidate can be equated with a candidate who holds training in Primary
School teaching or in other words who is trained speciﬁcally for Primary
Schools. The Contention of the appellants (in the aforesaid case) who
were B.Ed. candidates was that, their course (B.Ed.), equips them to teach
Primary Classes. Their contention was rejected by this Court. In Para 9, it
stated as under:
“In B.Ed. curriculum such subjects like child psychology are not found.
On the other hand, the curriculum is of a generic nature and deals
with subjects like the principle of educational-curriculum studies,
educational psychology, development of education in modern India,
social organization and instructional methods, etc.”
Then again in Para 10 it was stated as under:
“…………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
B.Ed. 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.”
In P.M. Latha and Another versus State of Kerala and Others13 the
argument that B.Ed. qualiﬁcation is a higher qualiﬁcation than Diploma in
Elementary Education (D.El.Ed.) was rejected. Again, it was a case before
the Apex Court where B.Ed candidates, were claiming appointment as
Primary School teachers on the basis of the claim that their educational
qualiﬁcation (i.e. B.Ed.) was even higher than the Diploma in Elementary
Education (D.El.Ed.) which was held by the other candidates. In para 10 of
the said case, it was stated as under:
“We find absolutely no force in the argument advanced by the
respondents that B.Ed. qualiﬁcation is a higher qualiﬁcation than
TTC and therefore, the B.Ed. candidates should be held to be eligible
to compete for the post…………….”
These ﬁndings were reiterated by Supreme Court in Yogesh Kumar v.
Government of NCT, Delhi14, holding that though B.Ed. is a well-recognized
13 (2003) 3 SCC 541
14 (2003) 3 SC 548
182 SUPREME COURT REPORTS [2023] 11 S.C.R.

qualiﬁcation in the ﬁeld of teaching, yet it is a training which equips a
candidate to teach higher classes, not classes at primary level.
27. B.Ed. is not a qualiﬁ cation for teachers at Primary level of
schooling. The pedagogical skills and training required from a teacher
at Primary level is not expected from a B.Ed. trained teacher. They are
trained to teach classes at higher level, post primary, secondary and above.
For Primary level i.e. class I to class V the training is D.El.Ed or what is
known as diploma in elementary education. It is a D.El.Ed. training course
which is designed and structured to impart skills in a teacher who is to teach
Primary level of students.
Therefore, by implication the inclusion of B.Ed. as a qualiﬁcation
amounts to lowering down of the ‘quality’ of education at Primary level.
‘Quality’ of education which was such an important component of the entire
elementary education movement in this country, which we have discussed
in the preceding paragraphs of this order.
28. We are also conscious of the fact that, till the notiﬁcation dated
28.06.2018, the consistent policy of NCTE had been to exclude B.Ed.
candidates from the eligibility criteria of Primary School Teachers. In the
23.08.2010 notiﬁcation – the ﬁrst given by NCTE in its capacity as the
“academic authority” under Section 23 of the RTE Act, which has been
referred in the preceding paragraphs, B.Ed. qualiﬁed teachers were not
considered for primary classes. All the same, purely in order to equip the
various State governments to establish enough training colleges/centres for
imparting specialised training centres for elementary teachers, the B.Ed.
candidates were to continue for a very limited period.
29. This was during the initial period starting from the year 2010
onwards, when the Act and the subsequent order of NCTE laid down the
qualiﬁcations for Primary School Teachers throughout the country. But
essentially B.Ed. qualiﬁed teachers were kept out from the purview of the
eligibility of the teachers in primary schools as B.Ed. was not considered a
“qualiﬁcation” for teachers at primary level.
The inherent pedagogical weakness in B.Ed. courses (for primary
classes), is well recognised, and it is for this reason that in the impugned
notiﬁcation itself it is provided that B.Ed. trained teachers will have to
undergo a six months training in elementary classes, within the ﬁrst two
years of their appointment.
DEVESH SHARMA v. UNION OF INDIA AND ORS. 183
[SUDHANSHU DHULIA, J.]

In this background, the inclusion of B.Ed. candidates for primary
level classes is beyond our comprehension.
We have seen so far that the need for ‘quality’ and meaningful primary
education was emphasized by the legislature as well as by the academic
authority all throughout. In primary education, any compromise on ‘quality’
of education would mean going against the very mandate of Article 21A and
the Act. The value of Primary education can never be overstated.
Myron Weiner in his important book on Child Labour in India15, links
child labour problems in India to the lack of eﬀective measures in the past
in the ﬁeld of elementary education. Great care must be taken to nurture
these institutions as our future takes shape in these classes. Victor Hugo
had famously said ‘one who opens a school door, closes a prison.’ Children
still working in hazardous environment and juveniles in conﬂict with law, in
some measure, do point towards the weakness in our elementary education
system, both on its accessibility and its ‘quality’.
The pedagogical skills of a teacher must be given a very high priority.
But our priority seems to be diﬀerent. It is not to impart ‘quality’ education,
but to provide more job avenues to B.Ed. trained candidates, as this seems to
be the only reason for their inclusion, in presence of overwhelming evidence
that B.Ed. course is not a suitable course for primary classes.
The material which has been placed before this Court in the form of
oﬃcial communications and meetings at the highest level makes it clear
that in the present case the decision taken by NCTE is not an independent
decision of an expert body which is created by the statute and mandated to
take independent decisions. The aim of NCTE is to improve the standard of
education and not to provide further avenues for employment to B.Ed. trained
teachers. We may also mention that this is being done when teachers trained
in elementary education can be employed only as teachers in elementary
schools and nowhere else, when compared to B.Ed. qualiﬁed teacher,
who can be employed in senior elementary classes (VI to VIII), as well as
secondary and higher secondary classes. It is therefore in any case not fair
on the Diploma holders, who will now be seeing the only space available
for them shrinking further.
15 Weiner Myron (1991) : The Child and the State In India in Comparative Perspective—
Princeton University Press
184 SUPREME COURT REPORTS [2023] 11 S.C.R.

The inclusion of B.Ed. as a ‘qualiﬁcation’ was done by the notiﬁcation
dated 28.06.2018, which was impugned before the Rajasthan High Court. This
notiﬁcation is reproduced below: -
“National Council for Teacher Education
Notiﬁcation
New Delhi, the 28th of June, 2018
F. No. NCTE-Regl 012/16/2018-In exercise of the powers conferred by
sub-section (1) of Section 23 of Right to Children to Free and Compulsory
Education Act, 2009 (35 of 2009) and in pursuance of notiﬁcation number
S.P. 750(E), dated the 31st March, 2010 issued by the Department
of School Education and Literacy, Ministry of Human Resource
Development, Government of India, the National Council for Teacher
Education (NCTE) hereby makes the following further amendments to
the notiﬁcation number F.N. 61-03/20/2010/NCTE/(N&S), dated the 23rd
August, 2010 published in the Gazette of India, Extraordinary, Part III,
Section 4, dated the 25th August, 2010 hereinafter referred to as the said
notiﬁcation namely:-
(1) In the said notiﬁcation, in para 1 in sub-para (i), in clause (a) after the
words and brackets “Graduation and two year Diploma in Elementary
Education (by whatever name known), the following shall be inserted,
namely:-
OR
“Graduation with at least 50% marks and Bachelor of Education (B.Ed.)”
2. In the said notiﬁcation in para 3, for sub-para (a), the following sub-
para shall be substituted namely:-
“(a) who has acquired the qualiﬁcation of Bachelore of Education from
any NCTE Recognized institution shall be considered for appointment as
a teacher in classes I to V provided the person so appointed as a teacher
shall mandatorily undergo a six month Bridge course in Elementary
Education recognized by the NCTE, within two years of such appointment
as primary teacher”
(Emphasis supplied)
DEVESH SHARMA v. UNION OF INDIA AND ORS. 185
[SUDHANSHU DHULIA, J.]

30. The sequence of events, which are now well established by the
documents which were placed before the Rajasthan High Court and before
this Court, make it clear, that the decision to include B.Ed. as a qualiﬁcation
was apparently triggered by a letter of the Commissioner of KVS16, who
made a request requested that since in the Primary classes of Central Schools
suﬃcient number of trained Diploma holders are not available, they may be
permitted to appoint B.Ed. qualiﬁed teachers, who are readily available. The
Ministry takes cognizance of this letter, meetings are held and ultimately it
directs NCTE to appoint B.Ed. trained teachers not just in central schools
but in primary schools throughout the country, which would include State
run schools. The sequence of how it happened is as under.
A meeting was held on 28.05.2018 in the Ministry of Human
Resource Development, headed by the Minister concerned. In the meeting
it was decided to recognize B.Ed. as an additional eligibility criterion for
the appointment to the post of primary teachers in KVS Schools. This was
followed by a note on the very next day, i.e., 29.05.2018, which says that
since B.Ed. qualiﬁed candidates were eligible to be appointed as primary
teachers in KVS Schools, there should be no objection to implement this
direction in other schools as well. These communications culminate in a letter
dated 30.05.2018 issued by the Ministry of Human Resource Development,
which was in the form of a direction issued under Section 29 of the NCTE
Act which required NCTE to amend the eligibility criteria to include B.Ed.
qualiﬁed candidates as Primary Teachers. Complying with the above
directions, NCTE issued the impugned notiﬁcation on 28.06.2018.
The minutes of the meeting dated 28.05.2018, disclose the reason
as to why B.Ed. should be included as a qualiﬁcation. These minutes state
as under :-
“…...
2. The matter was considered in this Ministry and HRM has approved
the proposal of KVS to recruit primary teacher with higher qualiﬁcation
(i.e. B.A./B.Sc., B.Ed.+ TET). Further, HRM has also directed that
NCTE may amend the qualiﬁcation and make B.A./B.Sc., B.Ed. also

16 Kendriya Vidyalaya Sangathan – An autonomous body under Ministry of Education,
Government of India, which looks after the management of Central Schools through-
out the country.
186 SUPREME COURT REPORTS [2023] 11 S.C.R.

eligible for teaching at Primary level with provision of completing
Pedagogical module in 2 years of joining the service, these
directions were conveyed to NCTE on 12.04.2018, however, the
action is still pending at their part.
3. The matter was again discussed and deliberated in detail in
the meeting held today (28th May, 2018) chaired by HRM and
attended by Special Secretary, Chairperson, NCTE, MS, NCTE,
Joint Secretary (SE.I) and KVS Commissioner. KVS Commissioner
raised the issues of insufficient number of candidates applying
for the post of Primary teachers and candidates applying from
few states rather than across the country. It was informed by MS,
NCTE that approximately 7.5 lakh seat are available for D.El.Ed
across the country out of which 50% seats are filled. However,
the TET pass D.El.Ed. candidate would be much less as the result
of TET varies from 6% to 16%. This makes the availability of
eligible D.El.Ed. candidates much less than the desired. HRM
also pointed out the need for better equipped teachers to ensure
quality education in schools. Recruitment of Teachers with higher
qualifications will ultimately be beneficial and in the interest of
the students.
4. In addition to above, NCTE will roll out four year B.Ed.
integrated course from next academic year, therefore, the
prevalent D.El.Ed./B.Ed. etc will phase out in time bound manner.
Further similar kind of request has also been from the state of
Uttrakhand.
5. In view of the above discussions, HRM directed NCTE to
change its regulations, Directions are required to be given under
section 29 of the NCTE Act, 1993. Section 29 of the NCTE Act
is as follows:
(1) The Council shall in the discharge of its functions and duties
under this Act be bound by such directions on questions of policy
as the Central Government may give in writing to it from time
to time.
(2) The decision of the Central Government as to whether a
question is one of policy or not shall be final.
DEVESH SHARMA v. UNION OF INDIA AND ORS. 187
[SUDHANSHU DHULIA, J.]

(6) We may request NCTE to submit draft notiﬁcation to amend NCTE
regulations at the earliest. The draft letter is attached for approval
please. Once the draft notiﬁcation is received, the same will be sent to
Legislative Department for vetting with the approval of HRM.
Submitted.”
The minutes of the meeting dated 29.05.2018 state as under :-
“Note dated 29.05.2018
Please place on ﬁle the letter from NCTE which was handed over to
the HRM by the MS, NCTE during the meeting, the details of which
have been referred to in the draft reply. The meeting clearly took the
decision that in view of the facts presented by the Commissioner, KV
and since the NCTE did not have any objection to permit KV schools to
recruit primary teachers with higher qualiﬁcations, then there should
be no objection to extending this to other schools, and therefore, this
Ministry could issue directions to the NCTE under Section 29.”
Letter dated 30.05.2018 from the Government to NCTE.
“Letter Dated 30.05.2018
Priority
F.No.11-15/2017-EE.10-Part (1)
Government of India
Ministry of Human Resource Development
Department of School Education & Literacy

Shastri Bhawan, New Delhi,
Dated the 30th May, 2018
To,
The Chairperson NCTE,
Hans Bhawan,
Bahadur Shah Zafar Marg,
New Delhi – 110002.
188 SUPREME COURT REPORTS [2023] 11 S.C.R.

Dear Madam,
Kindly refer to the letter of even no. dated 12.04.2018
regarding request of Kendriya Vidaylaya Sangathan for recruiting
primary teachers with higher qualifications i.e. B.A./B.Sc.,
B.Ed. plus TET pass and letter no. NCTE-REG1012/16/2018-
US(Regulation)-HQ dated 23.05.2018 received from NCTE
regarding the same.
2. The above request has been considered in this Ministry. In
order to safeguard the interest of the students and ensure the
quality of education, the competent authority has decided to
agree to the request of KVS to recruit Primary Teachers with
Higher Qualifications. The insufficient number of eligible D.EI.
Ed. candidates due to low pass percentage of TET examination
has also become an issue for recruitment of primary teachers.
Further, with the roll out of four year B.Ed. integrated course
from next academic year, the existing D.EI.Ed./B.Ed. courses will
be phased out in due course of time.
3. NCTE vide their letter No. NCTE-REG1012/16/2018-
US(Regulation)-HQ dated 23.05.2018 stated that “the MHRD
may consider implementing the direction in the detailed noting of
Hon’ble Minister of Human Resource Development, Government
of India”. Further, in view of the facts presented by the
Commissioner, KV and since the NCTE did not have any objection
to permit KV schools to recruit primary teachers with higher
qualifications, then there should be no objection to extending
this to other schools. Therefore, considering the powers vested
in MHRD under Section 29 of the NCTE Act, 1993, the NCTE
Regulation 25.08.2010 (Determining qualification of teacher to
be appointed at primary level Classes 1st to 5th) shall be amended
to include that any person who has acquired the qualification of
B.Ed. from any NCTE recognized course will also be considered
for appointment as a teacher in classes 1st to 5th provided the
person so appointed as a teacher shall mandatorily undergo a 6
month bridge course, which is recognized by NCTE, within two
years of such appointment as primary teacher.
DEVESH SHARMA v. UNION OF INDIA AND ORS. 189
[SUDHANSHU DHULIA, J.]

4. It is therefore, requested that the draft notiﬁcation to amend the NCTE
regulations may please be submitted to this Ministry. This may please be
treated as most urgent.
With regards,
Yours Sincerely,
Sd/-
(Rashi Sharma)
Director(TE)”
This is followed by the notiﬁcation dated 28.06.2018, issued by NCTE,
which has already been referred above.
31. The sequence of events show that what started as an exercise for
consideration of B.Ed. qualiﬁed candidates as teachers for Primary classes
in Central schools, was expanded to include all primary schools throughout
the country. The apparent reasoning given is that B.Ed. qualiﬁed candidates
are better suited for appointment as teachers in Primary schools, as they have
‘higher qualiﬁcations’, and as such they should be appointed as teachers in all
Primary schools. Another reason for doing this is the dearth of qualiﬁed TET
candidates. The ﬁgures given in the meeting suggests that only 6% to 16%
of the candidates who appear in the TET examination qualify the test. The
suggestion appears to be that with the inclusion of B.Ed. candidates the number
of TET qualiﬁed candidates would increase. But this logic does not hold good
when B.Ed. as a qualiﬁcation has not passed the basic pedagogical threshold
for teaching primary classes.
We have already examined this aspect in great detail. B.Ed. is not a
qualiﬁcation for teaching at Primary level of classes, much less a better or
higher qualiﬁcation, in context of Primary classes. This ﬁnding is self-evident
in the very admission of NCTE which mandates that all B.Ed. qualiﬁed teachers
who are appointed to teach Primary level classes must mandatorily undergo a
pedagogical course for elementary classes within two years of their appointment.
32. In Society for Unaided Private Schools of Rajasthan v. Union of
India & Anr. (supra) this Court while upholding the validity of the RTE Act,
held that primary education, which is now a part of fundamental right under
Part III of the Constitution, has to be a meaningful education, and not just a
190 SUPREME COURT REPORTS [2023] 11 S.C.R.

formality. When Diploma in elementary education (D.El.Ed.), was placed
as an essential qualiﬁcation for teachers in Primary school, it was with a
purpose, and the purpose was to declare only such teachers as qualiﬁed
who are trained to impart education to children at ‘primary level’. The
pedagogy for a child who has just entered the school, is an important
consideration. A child has come to face a “teacher”, so to speak, for the
ﬁrst time in a class room. It is the beginning of a journey for the child
student and therefore world over great care is taken in laying down proper
foundations in these formative years. Well qualiﬁed and trained teacher in
elementary school is an extremely vital aspect. A teacher must be trained
to teach students at “primary level”, and this is precisely what the training
of Diploma in elementary education (D.El.Ed.) does; it trains a person to
teach children at primary level. B.Ed. is not a ‘higher qualiﬁcation’, or a
better qualiﬁcation, as is being canvassed in its favour, while comparing it
with ‘Diploma in elementary education’. B.Ed. is a diﬀerent qualiﬁcation;
a diﬀerent training. Even assuming it is a higher qualiﬁcation, it would still
not be a suitable qualiﬁcation for primary level of classes. Unlike Diploma
in elementary education (D.El.Ed.), B.Ed. does not equip a teacher to teach
at primary level. This fact is implicitly recognised in the Notiﬁcation as
well (notiﬁcation dated 28.06.2018), which still requires a person, who is
appointed as a teacher with B.Ed. qualiﬁcation to ‘mandatorily undergo a
six-month Bridge Course in Elementary Education’. This defeats the very
logic of including B.Ed. as a qualiﬁcation, as the very notiﬁcation which
pushes for the inclusion of B.Ed., also recognises its inherent pedagogical
weakness in its relation to primary classes. It is to cover this defect, that all
such candidates, must undergo a mandatory six months Bridge Course in
elementary education! The irony here is that all this is being done when the
State of Rajasthan already has more than the required number of Diploma
qualiﬁed candidates available. This is besides the fact that there is presently
no such “bridge course” available; at least there was none till the disposal
of the petition by the Rajasthan High Court.
33. Under the secircumstances,we are unable to comprehend as to
what was the pressing need to include B.Ed. candidates, who are admittedly
not fully trained to take up Primary Classes! Consequently, the decision
of the NCTE to include B.Ed. as a qualiﬁcation for teachers in a primary
school seems arbitrary, unreasonable and in fact has no nexus with the object
DEVESH SHARMA v. UNION OF INDIA AND ORS. 191
[SUDHANSHU DHULIA, J.]

sought to be achieved by the Act i.e. Right to Education Act, which is to
give to children not only free and compulsory but also ‘quality’ education.
34. In our considered opinion therefore NCTE was not justiﬁed in
including B.Ed. as a qualiﬁcation for appointment to the post of primary
school teacher (Level-1), a qualiﬁcation it had so far consciously kept
out of the eligibility requirement. The Rajasthan High Court by way of
the Impugned Judgement had rightly struck down the notiﬁcation dated
28.06.2018, on the following grounds:-
“(i) The impugned notiﬁcation dated 28.06.2018 is unlawful because: -
(a) it is under the direction of the Central Government, which power
the Central Government under Subsection (1) of Section 23 of the RTE
Act did not have; and
(b) it is not in exercise of power of the Central Government under
Sub-section (2) of Section 23 of RTE Act relaxing the eligibility
criteria prescribed by the NCTE, nor there has been any exercise
for ascertaining existence of the conditions precedent for exercising
such power.
(ii) The petitioners have locus standi to challenge the notiﬁcation dated
28.06.2018. Merely because an additional qualiﬁcation is recognized
as one of the eligibility criteria, the petitioners cannot be prevented
from challenging it.
(iii) Accepting a candidate with B.Ed. degree as eligible for
appointment and thereafter subjecting him to complete the bridge
course within two years of appointment is in the nature of relaxing the
existing eligibility criteria, which the Central Government could have
done only within Sub-section (2) of Section 23 and subject to existence
of circumstances necessary for exercise of such power.
(iv) The State Government could not have ignored the notiﬁcation
of NCTE dated 28.06.2018 while issuing advertisement for REET.
However, when we have declared that this notiﬁcation is illegal and are
in the process of setting aside, the issue becomes one of academic value.
35. One important aspect of the present case must now be dealt
with, on which much emphasis was laid by the counsel for the appellant.
192 SUPREME COURT REPORTS [2023] 11 S.C.R.

The submission is that the Central Government in any case is the ﬁnal
authority in deciding as to what qualiﬁcation has to be there for teachers and
the NCTE is bound to follow the directions of the Central Government in
this regard. Reliance was placed on two provisions of National Council for
Teacher Education Act, (NCTE Act), Section 12A and Section 29. We must
examine these provisions in the light of the submissions made before us.
Section 12A of the Act, reads as under:
“12A. Power of Council to determine minimum standards of
education of school teachers. — 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 recognised by the Central Government or
a State Government or a local or 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 (18 of 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 (35 of 2009).]”
Section 12A was inserted in the NCTE Act that is after the enactment
of Right to Education Act, 2009. Section 12A only compliments Section
23 of the Right to Education Act, which we have already discussed in the
preceding paragraphs.
Next, we come to the Section 29 of the NCTE Act which is as under:
DEVESH SHARMA v. UNION OF INDIA AND ORS. 193
[SUDHANSHU DHULIA, J.]

“29. Directions by the Central Government : (1) The Council shall,
in the discharge of its functions and duties under this Act be bound by
such directions on questions of policy as the Central Government may
give in writing to it from time to time.
(2) The decision of the Central Government as to whether a question is
one of policy or not shall be ﬁnal.”
It was submitted that by a notiﬁcation dated 28.06.2018, NCTE has only
followed the directions of the Central Government which are in the nature
of a policy. Further it is also evident from the minutes of the meeting dated
28.05.2018 where it was clariﬁed that the direction of the Central Government
to include B.Ed. as a qualiﬁcation is a direction under Section 29 of the Act.
The NCTE is bound to follow the directions of the Central Government
in this regard and the direction in the present case was to include B.Ed. as a
qualiﬁcation for teachers in primary school, which has been done by NCTE
through notiﬁcation dated 28.06.2018, are the submission of the learned
counsel for the appellants as well as that of the learned ASG Ms. Aishwarya
Bhati on behalf of the Union of India. Moreover, as per sub-Section (2) of
Section 29, the decision of the Central Government as to what constitutes a
policy decision will ultimately matter, is also the argument.
36. The introduction of B.Ed. as a qualiﬁcation by NCTE on the
directions of the Central Government is a policy decision of the Government,
as has been submitted before this Court, and is also evident from the sequence
of events, the minutes of the various meeting and the order passed in this
regard. Section 29 of NCTE Act which mandates that NCTE must follow the
directions of the Central Government in discharging of its functions. It is a
policy decision which binds NCTE.
We have absolutely no doubt in our mind that policy decisions of the
Government should normally not be interfered with, by a constitutional Court
in exercise of its powers of judicial review. At the same time if the policy
decision itself is contrary to the law and is arbitrary and irrational, powers of
judicial review must be exercised.
A policy decision which is totally arbitrary; contrary to the law, or a
decision which has been taken without proper application of mind, or in total
disregard of relevant factors is liable to be interfered with, as that also is the
194 SUPREME COURT REPORTS [2023] 11 S.C.R.

mandate of law and the Constitution. This aspect has been reiterated by this
Court time and again.
Judicial review becomes necessary where there is an illegality,
irrationality or procedural impropriety. These principles were highlighted
by Lord Diplock in Council of Civil Service Unions v. Minister for the
Civil Service17(commonly known as CCSU case). The above decision
has been referred by this Court in State of NCT of Delhi v. Sanjeev18.
This view was reiterated again by this Court in State of M.P. & Ors. v.
Mala Banerjee19:-
“6. We also ﬁnd ourselves unable to agree with the appellants’
submission that this is a policy matter and, therefore, should not
be interfered with by the courts. In Federation of Railway Oﬃcers
Assn. v. Union of India [(2003) 4 SCC 289] , this Court has already
considered the scope of judicial review and has enumerated that
where a policy is contrary to law or is in violation of the provisions of
the Constitution or is arbitrary or irrational, the courts must perform
their constitutional duties by striking it down...”
In Brij Mohan Lal v. Union of India20 this Court reiterated on this
aspect and made out a distinction as to where an interference to a decision
is required, and whereas it is not :-
“100. Certain tests, whether this Court should or not interfere in the
policy decisions of the State, as stated in other judgments, can be
summed up as:
(I) If the policy fails to satisfy the test of reasonableness, it would
be unconstitutional.
(II) The change in policy must be made fairly and should not give
the impression that it was so done arbitrarily on any ulterior
intention.
(III) The policy can be faulted on grounds of mala fides,
unreasonableness, arbitrariness or unfairness, etc.

17 (1984) 3 All ER 935 : 1985 AC 374 : (1984) 3 WLR 1174 (HL)
18 (2005) 5 SCC 181
19 (2015) 7 SCC 698
20 (2012) 6 SCC 502
DEVESH SHARMA v. UNION OF INDIA AND ORS. 195
[SUDHANSHU DHULIA, J.]

(IV) If the policy is found to be against any statute or the Constitution
or runs counter to the philosophy behind these provisions.
(V) It is dehors the provisions of the Act or legislations.
(VI) If the delegate has acted beyond its power of delegation.
101. Cases of this nature can be classiﬁed into two main classes:
one class being the matters relating to general policy decisions of the State
and the second relating to ﬁscal policies of the State. In the former class
of cases, the courts have expanded the scope of judicial review when the
actions are arbitrary, mala ﬁde or contrary to the law of the land; while in
the latter class of cases, the scope of such judicial review is far narrower.
Nevertheless, unreasonableness, arbitrariness, unfair actions or policies
contrary to the letter, intent and philosophy of law and policies expanding
beyond the permissible limits of delegated power will be instances where
the courts will step in to interfere with government policy.”
The decision whether to include or exclude B.Ed. as a qualiﬁcation
for teachers in primary school is an academic decision, which has to be
taken after proper study by the academic body i.e. NCTE and should be
better left to this expert body.
But as we have seen the decision to include B.Ed. as a qualiﬁcation is
not an independent decision of NCTE, but it was the decision of the Central
Government and NCTE was simply directed to carry it out for that being
a direction under Section 29 of NCTE Act, a direction NCTE followed.
In the present case and in the larger context of the matter, we cannot
even see this as a policy decision. But without getting into this argument,
even presuming for the sake of argument that the decision taken at the
Government level to include B.Ed. as a qualiﬁcation for teachers at primary
level is a policy decision, we must say that this decision is not correct as it is
contrary to the purpose of the Act. In fact, it goes against the letter and spirit
of the Fundamental Right enshrined in the Constitution under Article 21A. It
is against the speciﬁc mandate of the Act, which calls for a free, compulsory
and meaningful primary education to children. By including B.Ed. as a
qualiﬁcation for teachers for primary school, the Central Government has
acted against the provisions of the Constitution and the laws. The only logic
given by the Central Government to include B.Ed. as a qualiﬁcation is that
196 SUPREME COURT REPORTS [2023] 11 S.C.R.

it is a ‘higher qualiﬁcation’. This we have already seen is not correct. Under
these circumstances, we have no hesitation to say that the notiﬁcation has
rightly been quashed and the decision of the Division Bench of the Rajasthan
High Court has to be upheld.
In our considered opinion therefore the direction of the Central
Government dated 30.05.2018 culminating in the notiﬁcation dated 28.06.2018
of NCTE are violative of the principles as laid down in RTE Act. Not only
this, the notiﬁcation goes against the purpose and the mandate of law, which
is to provide a meaningful and ‘quality’ primary education to children.
The entire exercise is also procedurally ﬂawed. The notiﬁcation
dated 28.06.2018 is not an independent decision of NCTE taken after due
deliberation, but it simply follows the direction of the Central Government, a
direction which fails to take into consideration the objective realities of the day.
Having made the above determination we, all the same, are also of the
considered opinion that the State of Rajasthan was clearly in error in not calling
for applications from B.Ed. qualiﬁed candidates, for the reasons that till that
time when such an advertisement was issued by the Rajasthan Government,
B.Ed. candidates were included as eligible candidates as per the statutory
notiﬁcation of NCTE, which was binding on the Rajasthan Government, till
it was declared illegal or unconstitutional by the Court. The Rajasthan High
Court had rightly observed as under :-
“..we are of the opinion that the State Government could not have
ignored the notiﬁcation while inviting applications for REET. Even if the State
Government was of the opinion that such notiﬁcation was unconstitutional or
for any reason illegal, the same had to be stayed or set aside by a competent
court before it could be ignored.”
[Para 45 of the Impugned Judgement]
What the Rajasthan High Court had stated above is the settled legal
position. In a recent three Judge judgment of this Court in State of Manipur
& Ors. v. Surjakumar Okram & Ors.21 this position that a statute which is
made by a competent legislature is valid till it is declared unconstitutional by
a court of law; has been reiterated.

21 2022 SCC Online SC 130
DEVESH SHARMA v. UNION OF INDIA AND ORS. 197
[SUDHANSHU DHULIA, J.]

37. Consequently, the Appeals are dismissed and the judgement
dated 25.11.2021 of the Rajasthan High Court is upheld. The notiﬁcation
dated 28.06.2018 is hereby quashed and set aside. The Writ Petitions and
all pending applications stand disposed of in light of the above order.

Headnotes prepared by: Appeals dismissed.
Nidhi Jain

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