Teacher Eligibility Test; Vikas Sankhala Vs. Vikas Kumar Agarwal [Supreme Court of India, 18-10-2016]

Constitution of India – Article 21 A – Right of Children to Free and Compulsory Education Act, 2009 – Section 23 – Teacher Eligibility Test / TET – Qualifying Marks – Qualifications for appointment and terms and conditions of service of teachers.

Teacher Eligibility Test / TET




OCTOBER 18, 2016

CIVIL APPEAL NOS. 3545 – 3549 OF 2016





CIVIL APPEAL NOS. 3550-3555 OF 2016 CIVIL APPEAL NOS. 3556-3559 OF 2016 CIVIL APPEAL NO. 3560 OF 2016 CIVIL APPEAL NO. 3561 OF 2016 CIVIL APPEAL NO. 3562 OF 2016 CIVIL APPEAL NOS. 3563-3566 OF 2016 CIVIL APPEAL NO. 3567 OF 2016 CIVIL APPEAL NO. 3568 OF 2016 CIVIL APPEAL NO. 3569 OF 2016 CIVIL APPEAL NO. 3570 OF 2016



The Statement of Objects and Reasons of the

Right of Children to Free and Compulsory Education Act, 2009

(hereinafter referred to as the ‘RTE Act’) recognises one of the most profound underlying principle contained in the Constitution, viz. the crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all has been accepted, since inception of our Republic. Other, and equally significant principle that it recognises, is that, in order to ensure equal opportunities to all citizens, it is necessary that elementary education is provided to one and all. Keeping in view this spirit, obligation was imposed upon the State, as per Article 41, read with Article 45, of the Constitution to make effective provisions for securing the right to education, among other. Thus, it is one of the Directive Principles of State Policy enumerated in the Constitution that the State shall provide free and compulsory education to all children. In order to make it a reality, this Court in the case of

Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors., (1993) 1 SCC 645

stretched the limits of Article 45 by reading right to free education as a fundamental right of children upto the age of 14 years so as to enable the children up to the age of 14 years to receive the education as a matter of right. Law Commission also supported it by making recommendation (Report No. 165 of the Law Commission of India) to the Parliament to make suitable amendment in the Constitution. Realising its constitutional commitment, the Parliament obliged, and Article 21-A was added vide the Constitution (Eighty Sixth Amendment) Act, 2002 in the following manner:

Article 21-A. Right to education

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.”

Simultaneously, Article 45 of the Constitution was also substituted with the following Article:

Article 45. Provision for early childhood care and education to children below the age of six years

The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.”

2) Notwithstanding the aforesaid provisions in the Constitution and significant spatial and numerical expansion of elementary schools in the country, goal of universal education continued to allude us. It was found that number of children, particularly children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education, remain very large. It was also noticed that the quality of learning achievement is not always entirely satisfactory even in the case of children who complete elementary education. Having regard to the aforesaid harsh realities, the Parliament enacted the RTE Act with following objects in mind:

“(a) 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;

(b) ‘compulsory education’ casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education;

(c) ‘free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education;

(d) the duties and responsibilities of the appropriate Government, local authorities, parents, schools and teachers in providing free and compulsory education; and

(e) a system for protection of the right of children and a decentralized grievance redressal mechanism.”

3) It hardly needs to be emphasized that for turning the provision of every child to have free and compulsory education into reality, not only sufficient number of schools are required with all necessary facilities and infrastructure, adequate and qualified teaching staff shall also be needed to fulfill this noble purpose. It is for this reason that apart from other provisions in the RTE Act, provisions like Sections 23 to 27 are inserted in the said Act to cater this requirement.

4) For the purpose of present appeals, it is not necessary to refer to each of these provisions. As we are concerned with the educational and other qualifications that are needed for appointment of the teaching staff, the provision directly touching upon this aspect is Section 23 of the RTE Act, which reads as under:

23. Qualifications 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 it 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.

(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.”

5) Since minimum qualifications are to be laid down by an academic authority authorised by the Central Government by notification, such an authority which is so authorised by the Central Government is the National Council for Teacher Education (for short, ‘NCTE’). Thus, NCTE is competent to lay down the minimum qualifications which a person needs to possess to make him eligible for appointment as a teacher.

6) NCTE fulfilled this obligation in the form of Notification dated August 23, 2010, published on August 25, 2010 in the Gazette of India, whereunder minimum qualifications for appointment as teachers were laid down. Apart from other educational qualifications prescribed therein, the said Notification also mandates passing of Teacher Eligibility Test (for short, ‘TET’) and reads as follows:

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