UPTET SARKARI NAUKRI News - - Court - TET Wtz Milega, KYUNKI ACCORDING TO LAW BHRTEE KARNE KO BOLA

UPTET SARKARI NAUKRI   News - - 
Court - TET Wtz Milega, KYUNKI ACCORDING TO LAW BHRTEE KARNE KO BOLA



Court ne 15 ven,  16 ven sansidhan ko avedh karar deeya,  lekin pichle sansodhan 12ven arthat TET MERIT KO BHEE JEEVIT NAHIN KEEYA.

JAB PARENT LAW KHATM HO JATA HAI,  TO CHILD LAW BHEE APNE AAP KHATM HO JAATE HAI.

RTE ACT CONSTIONALLY OVER RIDING EFFECT HAI AUR BINDING HAI,  MATLAB RAJYA KO USKO MANNA HEE PADEGA.
FULL BENCH NE TET WTZ KO IGNORE NA KARNE KO BOLA.  MATLAB AB TET WTZ LAGEGEE.

KITNEE LAGEGEE,  KAISEE LAGEGEE YE UP GOVT DECIDE KARKE LIST PREPARE KARKE BHRTEE KAREGEE


 BAKI 1981 KE RULE BANE RAHENGE.

PEHLEE BAAT KI ORDER SIRF AUR SIRF JRT KE LEEYE HAI.
KYUNKI JRT KI BUNCH WRITS PAR SUNVAYEE KI GAYEE HAI. 
 15, 16 ISLEEYE RADD KIYE GAYE KYUNKU US MEIN TET WTZ NAHIN THA,  AUR USKE BAAD BHRTEE KA NIYAM KYA RAHE.  KYA 12VAN WITH TET MERIT LAGU KIYA JAYE.  12VAN PAR BATAY ki ek baar isko change kar deeya to fir ab yeh jrt par jeevit nahin keeya ja sakta.  Court ne saaf shabdo mein kaha ki nayee list banayee jaaye according to rules.  Matlab tet wtz ko include kiya jaaye. Jahan tak mera manna hai ki court ka itna keh dena bahut hai ki TET WTZ LAGAAO.  WARNA BHRTEE ADAMVEDHANIK HOGEE. 

See Court order dated 18 August 2015

20. The grievance of petitioners is that under the Appendix inserted by two Amendment Rules of 2012, no provision giving any weightage in recruitment process, to the scores in TET has been made. TET has been considered only a qualifying examination conferring eligibility for appointment to the post of Assistant Teacher, Sr.P.S. and Head Master, Jr.P.S. but for the purpose of preparation of merit list, no weightage has been given to scores of TET. 

21. It is said that a Full Bench of this Court in Shiv Kumar Sharma and others Vs. State of U.P. and others 2013 (6) ADJ 310 held that guidelines formed by NCTE providing weightage to TET have to be followed by State. It is binding. Since no such weightage was given under Fifteenth and Sixteenth Amendment Rules, 2012, the procedure prescribed in Appendix-I is bad. Attention of this Court is also drawn to the judgment dated 20.11.2013 in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra) and other connected appeals, whereby Division Bench of this Court struck down Rule 14 (3) of Fifteenth Amendment Rules, 2012 and consequently set aside G.O. dated 31.8.2012 and the communication dated 31.8.2012. 

22. It is submitted that once Rule 14 (3) of Fifteenth Amendment Rules, 2012 has been struck down, it has taken away Appendix also, Sixteenth Amendment Rules, 2012 insofar as it declares the existing appendix as Appendix-1 and inserted Appendix-2 is clearly redundant since it seeks to substitute a provision which is/was not existing in the Statue book, having been declared ultra vires. Rule 14 (3) as inserted by Sixteenth Amendment Rules, 2012 is inoperative and not possible to be implemented at all. In any case, it also suffers from the same vice as held in Shiv Kumar Pathak (Supra). 

23. Sri Khare contended that it is in this background of facts this Court has to consider the consequence and effect of striking down of Rule 14 (3) of Fifteenth Amendment Rules, 2012. 

24. Since entire argument is confined now with respect to the manner in which list of candidates, who have applied, pursuant to an advertisement for appointment to the post of Assistant Teacher, Sr.P.S., and, Head Master, Jr.P.S. has to be prepared, scope of scrutiny by this Court is quite narrowed down. I would prefer simultaneously to quote Rules 14 (2) and (3) as they stood before Fifteenth Amendment Rules, 2012, substituted by Fifteenth Amendment Rules, 2012 and further substituted by Sixteenth Amendment Rules, 2012, which read as under: 

Rules 14 (2) and (3) as they stood before Fifteenth Amendment Rules, 2012 

Rules 14 (2) and (3) substituted by Fifteenth Amendment Rules, 2012 

Rules 14 (2) and (3) substituted by Sixteenth Amendment Rules, 2012 

(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment. 

(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment. 

(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement under clause (a) or (b) of sub-rule (1) of rule 14 and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment. 

(3) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that their names shall be placed in descending order on the basis of the marks obtained in Teacher Eligibility Test conducted by the Government of Uttar Pradesh. 

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher. 

(3) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix. In the said rules the following appendix shall be inserted at the end. 

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher. 

(3)(a) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (a) of sub-rule (1) of rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix-I. 

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher 

(b) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (b) of sub-rule (1) of rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix-II. 

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher 

(emphasis added to show changes made) 

25. Prior to Fifteenth Amendment Rules, 2012, Rule 14 (2) and (3) required preparation of list by appointing authority of such persons as appear to possess prescribed academic qualifications and eligible for appointment, in descending order on the basis of marks obtained in TET, conducted by Government of U.P. Where two or more candidates have obtained equal marks, the candidate senior in age was to be placed higher. 

26. Fifteenth Amendment Rules, 2012 changed the criteria for preparation of list. It than provided that names shall be arranged in order of quality point marks prescribed in Appendix. The Appendix was inserted at the end of Rules. The said Appendix provided quality point marks based on High School, Intermediate and Graduation decree as also training including theory and practical. There is no description of TET for the purpose of determining quality point marks in the Appendix. 

27. Sixteenth Amendment Rules, 2012 though maintained the same criteria, but has divided recruitment in clauses 14 (1)(a) and (1)(b).The criteria for preparation of list in respect of vacancies under Rule 14 (1) (a) has been given in Rule 14 (3)(a) and Appendix-1 under Sixteenth Amendment Rules, 2012. The vacancies determined under Rule 14(1)(b) have to be arranged as per the criteria provided in Rule 14(3)(b) read with Appendix-II. 

28. The difference is that for Appendix-II, since eligible candidate also possess qualification of B.Ed./B.Ed.(Special Education)/D.Ed. (Special Education), therefore, for the purpose of quality point marks, the said qualifications have been added in Appendix-II, otherwise, in substance, there is no difference in Appendix-I and II. 

29. Interestingly, Sixteenth Amendment Rules, 2012 contains no Appendix-I. Instead, it refers to existing Appendix in Rules, 1981 as Appendix-I and inserted a new Appendix as Appendix-II. It is admitted by learned Standing Counsel that under Rule 14(3)(a) of Sixteenth Amendment Rules, 2012, what is talked of Appendix-I is nothing but the Appendix which was inserted vide Rule 14(3) of Fifteenth Amendment Rules, 2012. Thus it is not in dispute that what is talked of Appendix-I in Rule 14(3)(a) of Sixteen Amendment Rules, 2012 is the same as is referred and inserted vide Rule 14(3) of Fifteenth Amendment Rules, 2012. 

30. Now what has come on record is that Rule 14(3) of Fifteenth Amendment Rules, 2012 has been struck down in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra), deciding 29 appeals by a common judgment dated 20.11.2013 by Division Bench consisting of Hon'ble Ashok Bhushan and Hon'ble Vipin Sinha, JJ. The Division Bench has struck down Rule 14(3) on the ground that it is arbitrary, unreasonable and violative of Article 14 of the Constitution. The relevant discussion and findings are as under: 

"The 15th amendment rules has been challenged on the ground of it being arbitrary and unreasonable being violative of Article 14 of the Constitution. The notification dated 23.8.2010 issued under Section 23 (1) of the Act, 2009 being under a Parliamentary enactment has to prevail over any rules made by the State under a State Act. The Rules, 1981 right from 1993 contains an Appendix which provides a formula for selecting a teacher. Appendix indicates that selection was based only on the educational qualification of an candidate including the training qualification. After the notification dated 23.8.2010 and guidelines dated 11.2.2011 issued by the National Council for Teacher Education, the State amended its Rules, 1981 by 12th amendment rules to bring it in conformity with the above notification and guidelines. The 12th amendment rules was perfectly in accordance with law and the challenge to the aforesaid rules have also been repelled by this Court in two judgments of Seeta Ram and Govind Kumar Dixit's case (supra). The decision of the State Government not to give any weightage to the marks obtained in the Teacher Eligibility Test Examination-2011 cannot be said to be in conformity with the guidelines of the National Council for Teacher Education referred to above and was clearly arbitrary. The Full Bench of this Court in Shiv Kumar Sharma's case (supra) has already held that the State Government cannot disregard the guidelines of National Council For Teacher Education dated 11.2.2011. The 15th Amendment Rules is thus also contrary to law declared by this Court. The Teacher Eligibility Test (Examination-2011) which has been recognised as an essential qualification for the teachers selection, hence without giving any weightage to the said examination the State cannot proceed with the selection. As noted above, the allegations made against few candidates of committing irregularities in the Teacher Eligibility Test or involvement in criminal offence cannot be a ground to deny benefit of Teacher Eligibility Test to lacs and lacs of the candidates against whom there is neither any allegation nor any charge. The State having not cancelled the Teacher Eligibility Test-2011 and having allowed the Teacher Eligibility Test to be utilised for qualification of candidates ought to have given full effect to the result of the Teacher Eligibility Test examination. The allegations of irregularities and involvement in criminal offence by some candidates was fully neutralised by the State's decision to debar any such candidates from the selection against whom there are allegations of irregularities or involvement in criminal offence. The High Powered Committee has further stated in its report that an undertaking be taken on an affidavit from all the candidates that in event anything adverse is found against them, their selection shall be cancelled. The State having given effect to the notification dated 23.8.2011 as well as the guidelines dated 11.2.2011 issued by the National Council for Teacher Education by amending its rules by 12th amendment rules, which was in consonance with the scheme under the Act, 2009, a Parliamentary enactment cannot be allowed to go back and resort to its old criteria for selection which was prevalent prior to the Act, 2009 and prior to the notification dated 23.8.2010 and guidelines dated 11.2.2011. We are, thus of the view that Rule 14(3) of the 15th amendment rules by which the criteria for selection was changed has to be held to be arbitrary and unreasonable and deserves to be struck down. .... 

In view of the foregoing discussions, we conclude that the decision of the State Government to change the criteria of selection by restoring the criteria of selection as prevalent prior to 12th amendment rules was not in conformity with law. The 15th amendment rules, in so far as Rule 14(3) as well as the Government Order dated 31.8.2012 were also not sustainable." 

(emphasis added) 

31. Having said so, Division Bench also set aside G.O. Dated 31.08.2012, issued consequent to the aforesaid amendment, holding that advertisement dated 30.11.2011 has become ineffective and stands cancelled. Thereafter the Court granted relief in the following manner: 

In the result all the Special Appeals are allowed to the following extent: 

1. The Government Order dated 26.7.2011 insofar as it directs for restoration of criteria for selection as was prevalent prior to 12th amendment rules is set-aside. 

2.The U.P. Basic Education (Teachers) Service Amendment Rules, 2012 (15th Amendment Rules dated 31.8.2012) in so far as Rule 14 (3) is concerned is declared to be ultra-vires to Article 14 of the Constitution and are struck down. Consequently, the Government Order dated 31.8.2012 as well as the communication dated 31.8.2012 issued by the board of Basic Education are set-aside. 

3. Respondents are directed to proceed and conclude the selection as per the advertisement dated 30.11.2011 as modified on 20.12.2011 to its logical end within the time allowed by the Central Government vide its notification issued under Section 23 (2) of the Act, 2009. 

4. The judgment of the learned Single Judge is modified to the above extent. (emphasis added) 

32. This Court has no manner of doubt, when Rule 14(3) as inserted by Fifteenth Amendment Rules, 2012 has been struck down vide Court's judgment dated 20.11.2013, it would result in making this provision, non-est. By that time, G.O. dated 31.8.2012 providing for recruitment was already issued. It has referred to Appendix-A i.e. Appendix-I as inserted in Rules, 1981. Once it is struck down, it disappears from its very inception. Therefore, any preparation of list following Appendix-I of Rule 14 (3) as inserted by Fifteenth Amendment Rules, 2012 would be clearly illegal and erroneous. 

33. The case set up by respondent-State is that this selection has been finalized in accordance with Rules, 1981, as amended by Fifteenth Amendment Rules, 2012 and Sixteenth Amendment Rules, 2012. Admittedly they have followed Rule 14(3) and its Appendix, as substituted and inserted by Fifteenth Amendment Rules, 2012, read with Sixteenth Amendment Rules, 2012. 

34. Thus, the only question up for consideration is, whether respondents-authorities are justified in preparing list of selected candidates in accordance with Rule 14(3) read with its Appendix, as substituted by Fifteenth Amendment Rules, 2012 read with Rule 14(3) of Sixteenth Amendment Rules, 2012. 

35. Whenever a provision, whether principal or subordinate legislation, is struck down, being ultra vires and/or violative of any provision of Constitution, and, in particular, fundamental rights under Part-III of the Constitution, in view of declaration contained in Article 13(2) of the Constitution, such provision is void-ab-initio. It is like a stillborn provision incapable of repeal or substitution of an existing provision. 

36. In N.P.V. Sundara Vs. State of Andhra Pradesh AIR 1958 SC 468 considering the doctrine of still-born piece of legislation a Constitution Bench said: 

"If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect to breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment." 

37. In Sagir Ahmad Vs. The State of U.P. & Ors AIR 1954 SC 728 the Court examined challenge to the Constitutional validity of U.P State Transport Act, 1951 under which the State was enabled to run Stage Carriage Service to the exclusion of others. In exercise of its power under the Act, the State Government made a declaration extending the Act to a particular area and frame a scheme for operation of stage carriage service on certain routes. At the relevant time, State did not have the power to deny citizen of his right to carry on transport service. However, after the Constitution (First) Amendment Act of 1951, the State became entitled to carry on any trade or business either by itself or through Corporation, owned or controlled by it, to the exclusion of private citizens wholly or in part. One of the question raised was whether Constitution (First) Amendment Act could be invoked to validate an earlier legislation. The Court held that the Act was unconstitutional at the time of enactment and therefore it was stillborn and could not be vitalized by a subsequent amendment of the Constitution removing constitutional objection and must be re-enacted. Hon'ble Mukherjea, J. speaking for the Court referred to Prof. Cooley in his work on "Constitutional Limitations" (Vol. I page 384) and said: 

"a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted". 

38. The Hon'ble Court further observed that it is of the view that this is a sound law. 

39. This view was reiterated in Deep Chand Vs. The State of U.P. & Ors. AIR 1958 SC 648 where the Court said that a plain reading of Article 13(2) indicates, without any reasonable doubt, that prohibition goes to the root of the matter and limits State's power to make law; the law made in spite of the prohibition is a still-born law. 

40. Again another Constitution bench in Mahendra Lal Jaini Vs. State of U.P. AIR 1963 SC 1019 reiterated the above view in para 22 of the report. It says, 

"..it must be held that unlike a law covered by Art. 13(1) which was valid when made, the law made in contravention of the prohibition contained in Art. 13(2) is a still-born law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse." (emphasis added) 

41. This view has been followed in Rakesh Vs. Dr. JT 2005 (12) SC 1. 

42. Once a Rule is struck down as arbitrary, unreasonable and violative of Article 14, the effect is as if such a provision was never in effect, being 'stillborn'. Even if, in a given case, in subsequent amendment, there is a reference of such provision which has been struck down, yet it cannot be followed being non-est. The mere fact that before being struck down, it has been referred to in a subsequent amendment, would make no difference. 

43. Respondents-authorities, in my view, therefore were not entitled to prepare list of candidates selected for appointment in accordance with Rule 14(3) of Fifteenth Amendment Rules, 2012, read with Appendix which has been referred to as Appendix-I in Sixteenth Amendment Rules, 2012, since the Appendix which has been subsequently referred to as Appendix-I in Sixteenth Amendment Rules, 2012, has rendered non-est. Rule 14(3) of Fifteenth Amendment Rules, 2012 in its entirety having been struck down by this Court as arbitrary and unreasonable, it disappears, as if, it never existed. Hence list prepared by taking into account aforesaid Appendix is clearly illegal. 

44. The next question, which is though necessary but incidental, and of utmost importance arises whether Sub-rule (3) of Rule 14 as it stood before Fifteenth Amendment Rules, 2012 would stand revived or after striking down Rule 14(3) of Fifteenth Amendment Rules, 2012 it would result in a gap in the Rules requiring an appropriate legislation so as to bring on the Statute-book, valid Rule 14 (3). 

45. In B.N. Tiwari Vs. Union of India and others AIR 1965 SC question came up for consideration was, whether old Rule revives after substituted Rule is struck down. The Central Services Rules of 1952 provided for carry forward rule whereby unfilled reserved vacancies of a particular year could have been carried forward for one year. In 1955, the said Rules of 1952 were amended by substitution and another Rules providing that unfilled unreserved vacancies of a particular year can be carried forward for two years was brought in. 1955 amendment of Rule was declared ultra vires. The question was, whether this declaration would result in revival of 1952 Rules. A Constitution Bench said that 1952 Rules having already been repealed and substituted by 1955 Rules, after striking down of 1955 Rules, old Rule would not revive. 

46. In Firm A. T. B. Mehtab Majid and Co. v. State of Madras AIR 1963 SC 928 also the Court held, where an old Rule has been substituted by a new Rule, it ceases to exist and would not get revive when the new Rule is held invalid. 

47. In West U.P. Sugar Mills Association and others Vs. State of Uttar Pradesh and others 2002 (2) SCC 645, following the authorities in B.N. Tiwari (supra) and A. T. B. Mehtab Majid and Co. (supra) a three-Judge Bench also took the same view by showing its total agreement with the statement of law declared in the aforesaid decisions. The Court also said, if there would be still a modification in existing law and subsequent modification is held to be void, it would mean as if earlier law has never been modified or repealed and may continue to be in force but where the earlier provision is repealed by substitution and another provision is brought in, earlier provision will not revive when subsequent provision is struck down. Para 15 of judgment in West U.P. Sugar Mills Association (supra) reads as under: 

"15. It would have been a different case where a subsequent law which modified the earlier law held to be void. In such a case, the earlier law shall be deemed to have never been modified or repealed and, therefore, continued to be in force. Where it is found that the legislature lacked competence to enact a law, still amends the existing law and subsequently it is found that the legislature or the authority was denuded with the power to amend the existing law, in such a case the old law would revive and continue. But it is not the case here. It is not disputed that the State government under Section read with Section of the Act, has power to frame rule prescribing the society commission. The State government by substituting new Rule 49 never intended to keep alive the old rule. The totality of the circumstances shows that the old rule was deleted and came to be substituted by new Rule 49 and, therefore, we are of the view that after new Rule 49 ceased to be operative, the old Rule 49 did not revive." (emphasis added) 

48. When a provision is substituted by replacing another provision, substitution results in repeal of existing provision. Insertion of another provision brings the effect of replacement to new provision. When the Legislature substitute an existing provision by new one, it means it did not intend to keep alive old rule. There is a distinctions between "supercession" and "substitution". "Substitution" has two steps. First the old rule is made cease to exist, and next, the new rule is brought into existence in its place, while supercession has single stroke of overriding the existing provision. This distinction has been discussed by a three-Judge Bench in Koteswar Vittal Kamath Vs. K. Rangappa Baliga & Co. 1969 (3) SCR 40 and followed in Zile Singh Vs. State of Haryana 2004 (8) SCC 1. 

49. Therefore, Rule 14 (3) of Fifteenth Amendment Rules, 2012 having been struck down will not revive the earlier provision and Rule 14 (3) (a) of Sixteenth Amendment Rules, 2012 having referred to a provision, i.e. Appendix, which has already been struck down, is inoperative and cannot be acted upon. 

50. There is one more angle from which the matter can be examined. Rule 14 (3) of Fifteenth Amendment Rules, 2012 was already struck down by Division Bench in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra). Rule 14(3)(a) of Sixteenth Amendment Rules, 2012 in all respects is pari-materia to Rule 14 (3). Therefore, the reasons which impelled this Court to declare Rule 14(3), Fifteenth Amendment Rules, 2012 ultra vires equally apply to Rule 14(3) (a) and (b) of Sixteenth Amendment Rules, 2012 also. I have no hesitation in my mind that for the reasons contained in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra), Rule 14 (3) of Sixteenth Amendment Rules, 2012 also cannot be sustained and it is also arbitrary and ultra vires. 

51. In view of the above, Writ Petitions No. 57476 of 2013 and 28003 of 2015 are allowed partly. Respondents are directed to prepare the list of candidates under Rule 14 of Rules, 1981 afresh, in accordance with law and thereafter proceed to make appointment accordingly. 

52. Writ Petition No. 28977 of 2015 is disposed of with the direction that in case petitioner's name finds place in the list now re-prepared by respondents in the light of this judgment in First and Second Petition, respondents shall proceed to make appointment of petitioner without any further delay. 






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