RANU HAZARIKA & ORS.versusSTATE OF ASSAM & ORS.

                         [2011) 3 S.C.R. 280


 A                    RANU HAZARIKA & ORS.
                                  v.
                     STATE OF ASSAM & ORS.
                 (Civil Appeal No.2153 of 2011 etc.)
                        FEBRUARY 28, 2011
 B
                 [D.K. JAIN AND H.L. DATTU, JJ.]

        Assam Elementary Education (Provincialization)
     (Amendment) Rules, 2005:
 c
         Teachers Training - Elementary/Primary Schools - The
    amendment Rules substituting the requirement of diploma in
    teachers training by providing that preference would be given
    to trained candidates - High Court holding the amendment
    invalid being contrary to the NCTE Act and the Regulation
  0
    2001, but allowing the State Government to complete the
    recruitment process - Held: The decision of the High Court,
    permitting the State Government to continue with the
    recruitment process, initiated on the basis of the Amendment
  E Rules, 2005, which have been declared by it to be illegal, is
    clearly indefensible - High Court could not have permitted
    the State Government to perpetuate an illegality - Having
    failed to sustain the Amendment Rules, 2005 before the High
    Court, it would be improper for the State to go ahead with the
    recruitments under the said amended Rules which have been
  F declared null and void, particularly, when the decision of the
    High Court on that issue has not been questioned by it - The
    leave granted by the High Court to the State to complete the
    selection process in terms of employment notice dated 2-12-
    2005, is set aside and the said notice (dated 02-12-2005) is
· G a/so quashed - Assam Elementary Education
    (Provincialization) Rules, 1977 - National Council for Teacher
    Education (Determination of Minimum Qualifications for
    Recruitment of Teachers in Schools) Regulations, 2001 -
    National Council for Teacher Education Act, 1993.
 H                               280
  RANU HAZARIKA & ORS. v. STATE OF ASSAM &              281
                   ORS.
                                                                   1
     Writ petitions were filed before the High Court A
 challenging the Assam Elementary Education
 (Provincialization) (Amendment) Rules, 2005 whereby the
State Government provided that preference to trained
candidates would be given in the appointments of
teachers in elementary/primary schools., and the B
consequent employment notice dated 2.12.2005. It was
the case of the writ petitioners that in the State of AssalTI,
in March 1999, a pre-service teacher's training course of
two years duration leading to award of diploma had been
introduced and the admission to the said course was c
regulated by an advertisement published in the
newspapers on 14-4-1999. In the said advertisement, it
was mentioned that the pre-service training course
leading to an award of diploma in education, for which
applications were invited, had be6n designed to secure 0
improvement of the professional skill of the persons to
be recruited as teachers in elementary schools against
the vacancies that would occur in the near future. Most
of the writ petitioners applied for joining the diploma
course pursuant to the said notice/advertisement and E
completed the two years course leading to the award of
diploma. After the commencement of the said course in
the year 2000, two batches, totalling 900 persons,
completed the course, qualified and were awarded
diploma. However, the State Government discontinued
the course with effect from the year 2003. The High Court F
though held the Assam Elementary Education
(Provincialization) (Amendment) Rules, 2005 as invalid
being contrary to National Council for Teacher Education
Act, 1993 and the National Council for Teacher Education
(Determination of Minimum Qualifications for Recruitment G
of Teachers in Schools) Regulations, 2001, yet atlowed
the State Government to complete the recruitment
process initiated pursuant to 'the employment notice
dated 2.12.2005. Aggrieved, the writ petitioners filed the
appeals.                                                       H
    282       SUPREME COURT REPORTS          [2011] 3 S.C.R.


A         Allowing the appeals, the Court
      HELD: 1.1 It is manifest from the Preamble to the
  National Council for Teacher Education Act, 1993 that it
  had been enacted with a view to achieving planned and
8 coordinated development; and proper maintenance of
  norms and standards in the teacher education system
  etc. throughout the country. In exercise of powers
  conferred on the NCTE u/s 32(2)(d)(i) of the Act, it framed
  National Council for Teacher Education (Determination of
C Minimum Qualifications for Recruitment of Teachers in
  Schools) Regulations, 2001, which in so far as the
  elementary/primary schools are concerned, inter alia,
  provided Diploma of certificate in basic teachers training
  of a duration of not less than two years or Bachelor of
0 Elementary Education (B.E.Ed)" [para 3 and 5] [284-E;
  285-C-E]
       1.2 The decision of the High Court, permitting the
  State Government to continue with the recruitment
  process, initiated on the basis of the Amendment Rules,
E 2005 which have been declared by it to be illegal is clearly
  indefensible. Having clearly held that "the requirement of
  adherence to the Statutory Regulations framed by the
  NCTE cannot be left to be determined at the discretion
  of the authorities of the State Government and that there
F was no compelling reason with the State to justify a
  departure from the Statutory Regulations, any action
  under illegal rules would be null and void", the High Court
  could not have permitted the State Government to
  perpetuate an illegality. Having failed to sustain the
G Amendment Rules, 2005 before the High Court, it would
  be improper for the State to go ahead with the
  recruitments under the said amended Rules which have
  been declared null and void, particularly, when the
  decision of the High Court on that issue has not been
H questioned by it. The impugned observation by the High
  RANU HAZARIKA & ORS. v. STATE OF ASSAM &                 283
                   ORS.
Court would be clearly inimical to the rule of law. While it       A
is trite that Courts can exercise judicial discretion in
moulding the relief, however, such discretion cannot be
exercised to perpetuate and encourage an illegality. [para
16] [289-H; 290-A-D]
                                                                   B
    M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu &
                          =
Ors.1999 (3) SCR 1066 (1999) 6 SCC 464 - relied on.

    2. The leave granted by the High Court to the State
to complete the selection process in terms of
employment notice dated 2-12-2005, is set aside and the            C
notice dated 02-12-2005 is also quashed. [para 17] [290-
E]
                      Case Law Reference:
                                                                   D
     1999 (3) SCR 1066         relied on             para 16

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2153 of 2011.

    From the Judgment & Order dated 09.04.2009 of the High         E
Court of Guahati at Gauhati in Writ Petition (Civil) No. 3254 of
2006.

                               WITH

C.A. Nos. 2154-2167 & 2168-2170 of 2011.                           F

      R.F. Nariman, Arunabh Chowdhury, Parthiv Goswami,
Anupam Lal Das, Hrishikesh Das, Praveen Chaturvedi, Jyoti
Chaturvedi, Azim H. Laskar, Sachin Das, Abhijit Sengupta,
Avijit Roy (for Corporate Law Group) for the appearing parties.    G

     D.K. JAIN, J. 1. Leave granted.
    2. This batch of appeals, by grant of leave, arises out of
judgments and orders dated 9th April 2009, 22nd June 2009,
17th July 2009 and 18th September 2009 respectively passed         H
                                                                       •
    284      SUPREME COURT REPORTS                [2011] 3 S.C.R.


A by the Gauhati High Court at Guwahati. By the impugned
  judgments, the High Court has held that the Assam Elementary
  Education (Provincialization) (Amendment) Rules, 2005 (for
  short "the Amendment Rules, 2005") are ultra vires the
  provisions of the National Council for Teacher Education Act,
B 1993 (for short "the Act") and the Regulations framed
  thereunder.
          3. The material facts leading up to the filing of the writ
    petitions before the High Court may be stated as follows :
       The National Council for Teacher Educ:ition (for short "the -
C NCTE") was set up ir. the year 1973 by a Government
  Resolution as a National Expert Body to advise the Central and
  State Governments on all matters pertaining to teacher
  education. Since the role assigned to the NCTE was purely
  advisory in nature, it had very little impact on the standards of
D teacher training institutions in the country and on their unplanned
  growth. Therefore, in order to empower the NCTE to make
  qualitative improvements in the system of teacher training, in
  the year 1993, the Act was enacted by the Parliament giving
  statutory recognition to the NCTE. It is manifest from the
E Preamble to the Act that it had been enacted with a view to
  achieving planned and coordinated development; and proper
  maintenance of norms and standards in the teacher educati°'l
  system etc. throughout the country.

F      4. Section 12 of the Act enumerates the functions of the
  NCTE. Primarily, it provides that it shall be the duty of the NCTE
  to take all such steps as it may think fit to ensure that there is
  planned and coordinated development of teacher education
  and proper standards in that behalf, determined by it, are
  maintained. For achieving the object for which the Act was
G enacted, several functions enlisted in the Section have been
  assigned to the NCTE, which includes laying down guidelines
  in respect of minimum qualifications for a person to be
  employed as a teacher In schools orin recognized institutions.
  Section 32 of the Act confers on the NCTE power to make
H Regulations. Sub-clause (d)(i) of sub-section (2) of Section 32
    RANU HAZARIKA & ORS. v. STATE OF ASSAM &                   285
               ORS. [D.K. JAIN, J.]

  provides that the NCTE may lay down minimum qualifications          A
  for a person to be employed as a teacher under clause (d) of
  Section 12. Under Section 33 of the Act, the Regulations made
  by the NCTE are required to be laid before each House of
  Parliament and it is only upon due approval of such Regulations
  or upon modifications as may be made by the Parliament that         B
  the Regulations take effect.

       5. In exercise .of powers conferred on the NCTE under
  Section 32(2)(d)(i) of the Act, it framed a set of Regulations
  viz. National Council for Teacher Education (Determination of C
  Minimum Qualifications for Recruitment of Teachers in Schools)
  Regulations, 2001. In the schedule to the said Regulations, the
  minimum academic and professional qualifications for
  recruitment of teachers at different levels have been stipulated. ·.
  In so far as, the elementary/primary schools are concerned, the
  qualifications prescribed by the schedule· are as follows :          D

       "(i) Senior Secondary School Certificate.

       (ii) Diploma of certificate in basic teachers training of a
       duration of not less than two years,                           E

       Or

       Bachelor of Elementary Education (B.E.Ed)"

  The said Regulations further contemplated that the existing         F
  Recruitment Rules would be modified within a period of three
- years so as to bring such Rules in conformity with the
  qualifications prescribed in the schedule to the Regulations.

      6. In the State of Assam, in March 1999, a pre-service
 teacher's training course of two years duration leading to award G
 of diploma had been introduced and the admission to the said
 course was regulated by an advertisement published in the
 newspapers on 14th April, 1999. In tt:e said advertisement, it
 was mentioned that the pre-service training course leading to
 an award of diploma in education, for which applications were H
    286      SUPREME COURT REPORTS                [2011] 3 S.C.R.


A   invited, had been designed to secure improvement of the
    professional skill of the persons to be recruited as teachers
    in elementary schools against the vacancies that will occur in
    the near future. Admittedly, most of the writ petitioners had
    applied for joining the diploma course pursuant to the said
B   notice/advertisement and thus, completed the two years course
    leading to the award of diploma. After the commencement of
    the said course in the year 2000, two batches, totalling 900
    persons, completed the course, qualified and were awarded
    diploma. However, the State Government discontinued the
c   course with effect from the year 2003.

         7. It seems that on the insistence of the NCTE, the State
    of Assam amended the Assam Elementary Education
    (Provincialization) Rules, 1977 with effect from 10th November,
    2005. By the said amendment instead of making the
D   requirement of a diploma in teachers training mandatory, as
    stipulated in the Regulations framed by the NCTE, it was
    provided that preference to trained candidates will be given.
    Schedule-I to tile amended Rules stipulated that such
    preference will be in the form of 10 additional marks to trained
E   teachers in the selection process for the recruitment of
    teachers. Having carried out the said amendment, an
    employment notice dated 2nd December, 2005 was issued
    in the newspapers inviting applications for filling up 5372 posts
    of Assistant Teachers. The prescribed minimum educational
F   qualification was higher secondary, with preference to trained
    candidates.

         8. Being aggrieved by the said amendment which waived
    the requirement of a diploma for selection of teachers, a group
G   of writ petitions were filed, seeking quashing of the
    Amendment Rules, 2005, inter-alia, on the ground that the
    amendment was not in confotmity with the Statutory
    Regulations framed by the NCTE. A prayer for setting aside
    advertisement dated 2nd December 2005 was also made.
H
       RANU HAZARIKA & ORS. v. STATE OF ASSAM &                   287
                  ORS. [D.K. JAIN, J.]

           9. In the writ proceedings, the State chose not to spell out   A
     its stand on the issue, inasmuch as neither a. counter affidavit
     on its behalf was filed nor any instructions were imparted to the
     counsel representing it before the High Court. Under the given
     circumstances, the High Court proceeded to decide the writ
     petitions on the basis of the material available on record.·         B

         10. As stated above, by the impugned judgment, the High
     Court has struck down the Amendment Rules, 2005, ob$erving
     thus:

         "15. In the present group of cases, as already noticed, the C
         State has neither filed an affidavit nor has the State taken
         any particular stand before the Court. No compelling
         reasons dictated by public interest have been disclosed
         by the State to enable the Court to understand that the
         provisions of the Amendment Rules, though in departure D
         from the Regulations framed by the Council, is dictated by
         acceptable reasons in public interest. Though in the course
         of the hearing the learned Standing Counsel of the
         Department has pointed out that in the State of Assam
         teachers in lower Primary schools are required to undergo E
         a Basic training course after their appointment and till
         completion of the said course such teachers are not put
         on the regular scale of pay, the said facts cannot constitute
         adherence or even substantial compliance with the
         provisions of the Regulations in as much as the F
         Regulations prescribe completion of the teachers training
         course as a positive condition of eligibility which is
         conspicuously absent in the Amendment Rules. The failure
         of the State to show any compelling or supervening
         circumstances justifying the said departure from the G
         Regulations has, therefore, to be understood by the Court
         to be due to the absence of any such reasons~ lnsuch a .
         situation, the requirementof adherence to the statutory ··
         Regulations framed by the Council can11ot be leftto b13 ··
-,       determined at the discretion of the authorities of the State H
    288      SUPREME COURT REPORTS                [2011] 3 S.C.R.


A         Government of Assam. That apart, the Regulations
          framed (sic) by the Council has the effect of enhancing
          the quality of education at the primary level and in the
          absence of any compelling reason to justify a departure
          therefrom, the Court would lean in favour of an
B         interpretation that would advance the cause of quality
          education in the State.

          16. Consequently and in the light of the foregoing
          discussions the provisions of the Assam Elementary
          Education (Provincialization) (Amendment) Rules, 2005
c         insofar as giving of preference to trained teachers is
          concerned is held to be invalid being contrary to the
          provisions of the National Council for Teachers Education
          Act, 1993 and the Regulations framed thereunder. As a
          corollary thereto, it will now be incumbent on the part of
D         the State Government to revive the training institutes for
          imparting pre-service teachers training of two years
          duration leading to award of diploma."

    Insofar as the recruitment process initiated by the issue of
E   advertisement dated 2nd December 2005 by the State
    Government, granting preference to the trained teachers was
    concerned, the High Court observed that since the
    Amendment Rules, 2005, which had now been adjudged as
    illegal and ultra vires the Act, were in force when the said
F   advertisement was issued, if the State is inclined to complete
    the recruitment process initiated pursuant to the said
    advertisement, it may be completed in terms of the said
    advertisement. However, henceforth and in the future, the
    process of recruitment of teachers in the lower Primary
G   Schools will have to conform to the requirement of academic
    and professional qualifications spelt out by the National
    Council for Teachers Education (Determination of Minimum
    Qualifications for Recruitment of Teachers in Schools) .
    Regulations, 2001.
H
   RANU HAZARIKA & ORS. v. STATE OF ASSAM &                    289
              ORS. [D.K. JAIN, J.]
      11. Being aggrieved with the observations in respect of         A
 advertisement dated 2nd December 2005, the diploma holders
 are before us in these appeals.

       12. At the outset, it is pertinent to note that the State
  Government has not questioned the correctness of the                8
  impugned judgments. However, in the counter affidavit filed on
  behalf of the State, it is stated that in furtherance of the
  recruitment process, a select list had been prepared by the
. District Committees but the same could not be published
: because of certain directions by the Gauhati High Court in          C
I another set of cases filed for regularization of OBB teachers.




     13. We have heard Mr. R.F. Nariman, learned senior
 counsel appearing for the appellants and Mr. Avijit Roy, learned
 counsel for the State.
                                                                    D
        14. It was submitted by learned counsel for the appellants
 thc;it having declared the Amendment Rules, 2005 as illegal, the .
 High Court fell into an error in not setting aside the entire
 selection process initiated vide employment notice dated 2nd
 December, 2005. It was asserted that once the Amendment E
 Rules, 2005, on the basis whereof the said notice was issued,
 had been declared as null and void, the High Court had no
 option but to quash the entire recruitment process.

       15. Learned counsel appearing for the State, on the other
hand, submitted that since the High Court had left it to the State F
to take decision in respect of the selection process initiated
vide adv3rtisement dated 2nd December 2005, the State
Government in its own wisdom decided to go ahead with the
:::aid selections, thol!gh appointment letters had not yet been
issl!-:d to the selected candidates.                               ·G

     16. Having bestowed our anxious consideration to the
 matter, we are of the opinion that the decision of the High Court,
 permitting the Stc;ite Government to continue with the recruitment
 process, initiaied on the basis of the Amendment Rules,· 2005        H   I
    290        SUPREME COURT REPORTS                (2011] 3 S.C.R.


A which have been declared by it to be illegal is clearly
  indefensible. Having clearly held that "the requirement of
  adherence to the Statutory Regulations framed by the NCTE
  cannot be left to be determined at the discretion of the
  authorities of the State Government and that there was no
s compelling reason with the State to justify a departure from the
  Statutory Regulations, any action under illegal rules would be
  null and void", the High Court could not have permitted the State
  Government to perpetuate an illegality. To say the least, we are
  equally amazed by the stand of the State Government. Having
c failed to sustain the Amendment Rules; 2005 before the High
  Court, it would be improper for the State to go ahead with the
  recruitments under the said amended Rules which have been
  declared null and void, particularly when the decision of the High
  Court on that issue has not been questioned by it. We are of
D the view that the impugned observation by the High Court would
  be clearly inimical to the rule of law. While it is trite that Courts
  can exercise judicial discretion in moulding the relief, however,
  such discretion cannot be exercised to perpetuate and
  encourage an illegality. (See : M.I. Builders Pvt. Ltd. Vs.
E Radhey Shyam Sahu & Ors. 1)

       1·1. For the foregoing reasons, the appeals are allowed;
  the leave granted by the High Court to the State to complete
  the selection process in terms of employment notice dated 2nd
  December, 2005 is set aside and the said notice (dated 2nd
F December, 2005) is also quashed.
        18. However, in the facts and circumstances of the case,
    we make no order as to costs.

    R.P.                                           Appeals allowed.
G




    1.   (1999) a sec 464.