UPTET SARKARI NAUKRI News - Pure Acadmic Merit Se Bhrti Ka Rule Radd Kiya HighCourt Ne , Supreme Court Antim Rasta -

UPTET SARKARI NAUKRI   News - Pure Acadmic Merit Se Bhrti Ka Rule Radd Kiya HighCourt Ne , Supreme Court Antim Rasta -

NCTE Guielines ko Challenge karne Vali Yachikayen Bhee Radd.

Jaisa ki Hamara Blog Shuru se Kehta Aaya Hai ki TET Wtz is Must.

UP Govt ko Pata hote hue bhee afasron ne manmane rule parit kar bhrti shuru kee.

Yahan tak ke kayee rajyon, KVS, NVS,DSSSB mei LT Grade star (class 6-10 ) ki bhrti mein bhee TET qualification mangee jaa rahee hai.

UP ulta pulta mein fans raha hai.

Ab Aakhiri Rasta Supreme Court se Tay Hoga,
Lekin koee kismat hee shayad bacha paye.
Kaaran Guidelines spasht hain, aur manne badhykari hai. TET mein achhe ank paaye log bhee apne hiton ke liye lad rahe hain to aise mein supreme court shayad hee faisla palte.

TET wtz is MUST MUST, Ab usme hal kaise nikaal sakte ho vo dekh lo.
Lekin dusree taraf TET mein 130 number paya vyakti bhee lad raha hai, aur court uske adhikaron aur guidelines ko dekhegee

***************************

Main Part of Judgement ->>

18. In view of the rule as already noted that the power to constitute Benches and allotment of work to the learned Judges vests absolutely in the Chief Justice and the Rules 1, 6, and 17 of Chapter V and Rule 2 of Chapter VIII of the Allahabad High Court Rules also clearly provide for the same. In that view of the matter the order passed by the learned Single Judge in the instant case appears to us to be without jurisdiction and void." 

However the judgment of the learned Single Judge in the ultimate analysis would not have much impact on these proceedings since we have independently considered the validity of the 16th Amendment Rules and have come to the conclusion that Rule 14 (3)(a) of the said Rules is liable to be struck down for the reasons recorded hereinbefore. 
Accordingly and for the reasons set forth above, Special Appeal No. 657 OF 2015 and all other connected Special Appeals which challenge the judgment of the learned Single Judge dated 18 August 2015 are disposed of. We allow Writ Petition No. 59431 of 2015 and other connected writ petitions. Rule 14 (3)(a) as introduced by the 16th Amendment Rules is hereby declared invalid and ultra vires. We turn down the challenge to the Guidelines dated 11 February 2011. Consequently Writ Petition No. 23938 of 2016, Writ Petition No. 54416 of 2015 and Writ Petition No. 39410 of 2016 shall stand dismissed. We have been apprised of the various interim orders passed by the Supreme Court in the pending Civil Appeals emanating from the judgment of this Court in Shiv Kumar Pathak and other connected matters. The parties shall therefore abide by the interim directions so issued and maintain status quo subject to further directions that may be issued in the pending Civil Appeals 
Order date: 1.12.2016 
LA/Arun K. Singh 
(D.B. Bhosale, CJ) 


(Yashwant Varma, J)

**************************************

See


See Complete Order :- >

Hon'ble Dilip B. Bhosale,Chief Justice 
Hon'ble Yashwant Varma,J. 

This batch emanates from a challenge laid to the U.P. Basic Education (Teachers) Service (16th Amendment) Rules, 20121. The aforesaid 16th Amendment Rules are liable to be read in the context of the U.P. Basic Education (Teachers) Service (15th Amendment) Rules, 20122 which came to be struck down by a Division Bench of this Court in Shiv Kumar Pathak Vs. State of U.P.3 Initially a challenge to the 16th Amendment Rules came to be raised before a learned Single Judge of the Court, who on 18 August 2015 proceeded to hold that since Rule 14(3) of the 15th Amendment Rules had already been struck down, the 16th Amendment Rules were rendered inoperative and could not be acted upon. Accordingly, the learned Single Judge allowed the challenge to the validity of the 16th Amendment Rules and directed the State respondents to prepare a fresh list of candidates in accordance with the provisions of Rule 14 of the U.P. Basic Education (Teachers) Service Rules, 19814 The special appeals emanate from this judgment of the learned Single Judge. One of the objections which was taken to the judgment of the learned Single Judge aforementioned is that he had no jurisdiction, in light of the orders then prevailing of Hon'ble the Chief Justice, to either entertain, consider or rule upon a challenge relating to the validity of a statutory enactment or Rules framed thereunder. It was therefore, contended that the judgment had been rendered without jurisdiction and was liable to fall on this short ground alone. Faced with the aforesaid objection, various independent writ petitions came to be preferred which were connected with the special appeals. These writ petitions laid an independent and renewed challenge to the 16th Amendment Rules. We further note that the State has also filed appeals against the judgment rendered by the learned Single Judge on 18 August, 2015. Apart from the said challenge, there are two petitions which stand tagged with this group namely Writ Petition No. 23938 of 2016 and Writ Petition No. 54416 of 2015 both of which challenge the validity of the Guidelines dated 11 February 2011 framed by the National Councill for Teacher Education5 in purported exercise of powers conferred by Section 23 of the Right of Children to Free and Compulsory Education Act, 20096. Before noticing the rival submissions which fall for consideration, it would be pertinent to briefly notice the background facts since the litigation itself has a history. 
Primary schools in the State are administered and managed by the Board of Basic Education which stands constituted under the provisions of the U.P. Basic Education Act, 19727. A "basic school" under the 1972 Act is defined to mean a school where instructions are imparted from Class I to VIII. A "junior basic school" is defined to mean a school where instructions from Class I to V are imparted. For the purposes of appointment of teachers, the State Government in exercise of powers conferred by Section 19 of the 1972 Act has framed the 1981 Rules. Since we are concerned with the issue of appointment of Assistant Teachers, we may only note the relevant part of Rule 8 which prescribed the academic qualifications liable to be possessed by a person to be considered for appointment as an Assistant Teacher. The relevant part of Rule 8 as it originally stood is extracted herein below: 
(ii) Assistant Master and Assistant Mistress of Junior Basic School 
A Bachelor's Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto: 
Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course." 

Rule 14 set forth the procedure for determination of vacancies, preparation of a select list and the manner in which Assistant Teachers are liable to be selected and appointed. The said Rule as it stood prior to the amendments in question as well as the U.P. Basic Education (Teachers) Service (12th Amendment) Rules 20118, read as follows: 
"14. Determination of vacancies and preparation of list-(1) In respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, dependants of freedom-fighters and other categories under Rule 9 and notify the vacancies to the Employment Exchange and in at least two news papers having adequate circulation in the State as well as in the concerned district inviting applications from candidates possessing prescribed training qualification from the district concerned. 
(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement and the names of candidates received from the Employment Exchange and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment. 
(3) The Regional Assistant Director of Education (Basic) may, on the application of a candidate, and for reasons to be recorded, direct that his name be included at the bottom of the list prepared under sub-rule (2). 
(4) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have passed the said training course later and the candidates who have passed the training course in a particular years shall be arranged in accordance with the quality points specified in the appendix. 
(5) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2). 
(6) The list prepared under sub-rule (2) and arranged in accordance with sub-rule (4) shall be forwarded by the appointing authority to the Selection Committee." (emphasis supplied) 
By the Constitution (Eighty Sixth Amendment) Act, 2002, Article 21A came to be inserted by providing for free and compulsory education to all children falling in the age group of six to fourteen years as a fundamental right in such manner as the States may by law determine. In order to give effect to this constitutional amendment, the Union Government enacted the 2009 Act. The Act was enforced w.e.f. 1 April 2010. The "appropriate Government" under the 2009 Act has been defined to mean the Union Government in relation to a school established, owned or controlled by it and in relation to all other schools, the State Governments or the Union territories within whose territorial area the school may be situate. "Elementary education" is defined therein to mean education from class I to VIII. Section 3 of the 2009 Act mirrors the constitutional guarantee enshrined in Article 21A by providing that every child of the age of six to fourteen years shall have the right to free and compulsory education in a neighbourhood school till the completion of his or her elementary education. The controversy which stands raised before us turns and primarily revolves around and upon the provisions of Section 23 of the 2009 Act which reads as follows: 
"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, teacher shall be such as may be prescribed." 
As is evident from a reading of Section 23, the minimum qualifications which must be possessed by a person in order to be eligible for appointment as a teacher are to be those which may be prescribed by an academic authority authorised by the Union Government. NCTE had initially come to be constituted in terms of the provisions of the National Council for Teacher Education Act, 19939. By a notification dated 31 March 2010, the Union Government designated NCTE to be the academic authority for the purposes of implementation of the 2009 Act. Upon being so designated, NCTE on 23 August 2010 issued a notification laying down the minimum qualifications required to be possessed by a person in order to be eligible for appointment as an Assistant Teacher in class I to VIII in a school covered by the provisions of the 2009 Act. The extract of this notification insofar as it is relevant for our purposes reads as follows: 

"(ii) Classes VI-VIII 
(a) B.A/B.Sc and 2 year Diploma in Elementary Education (by whatever name known) 
OR 
B.A/B.Sc. with at least 50% marks and 1 year Bachelor in Education (B.Ed.) 
OR 
B.A/B.Sc with at least 45% marks and 1 year Bachelor in Education (B.Ed), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard. 
OR 
Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor in Elementary Education (B.El. Ed) 
OR 
Senior Secondary (or its equivalent) with at least 50% marks and 4 year BA/B.Sc. Ed or B.A.Ed./B.Sc. Ed. 
OR 
B.A./B.Sc. with at least 50% marks and 1 year B.Ed. (Special Education) 
AND 
(b) Pass in the Teacher Eligibility Text (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose." (emphasis supplied) 

A perusal of the notification so prescribed evidences that apart from holding a graduate degree or other educational qualification as prescribed, NCTE also requires a prospective teacher to have passed a Teachers Eligibility Test (TET). This notification further provides that TET would be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for the said purpose. These guidelines were framed by the NCTE and circulated under cover of its letter dated 11 February 2011. It was at this stage that the State Government for the first time proceeded to amend the 1981 Rules by promulgating the 12th Amendment Rules on 9 November 2011. Rule 8 which prescribed the qualifications liable to be possessed by an Assistant Teacher was also consequently amended and the rule mandated a teacher to have passed the TET examination conducted by the State of U.P. Rule 14 was also amended and sub-rule (3) laid down that the name of candidates shall be prepared and placed in descending order on the basis of marks obtained in the TET examination conducted by the Government of U.P. This amendment in the 1981 Rules as is evident was primarily brought about to bring the provisions of the 1981 Rules in consonance with the notification dated 23 August 2010 issued by the NCTE. The validity of the 12th Amendment Rules, we are informed was upheld in Seeta Ram Vs. State of U.P.10 and Govind Kumar Dixit and others V State of U.P. and others11. 
The authority of the NCTE to issue the notification dated 23 August 2010 and the requirement of passing a TET examination as amended thereunder was raised before this Court. In Prabhakar Singh and others Vs. State of U.P.12, referring to paragraph 3 (a) of the notification dated 23 August 2010 it was held that the compliance with the requirement of passing the TET examination was not mandatory for the category of persons falling in the paragraph aforementioned. Doubting the correctness of this judgment, a learned Single Judge referred the issues arising from the judgment in Prabhakar Singh for consideration by a larger Bench. Consequently, a Full Bench of the Court came to be constituted. The Full Bench answered the issues raised for its consideration by its judgment dated 31 May 2013 in Shiv Kumar Sharma and others Vs. State of U.P. And others13. During the course of its deliberations, the Full Bench framed the following issues as is evident from paragraph 11 of the report:- 
"To address the issue involved, we had heard the matter and framed 3 questions as follows:- 
"(a) What does the phrase "minimum qualifications" occurring in Section 23 (1) of the right of Children to Free and Compulsory Education Act, 2009 (the Act) mean - whether passing the 'Teacher's Eligibility Test', is a qualification for the purposes of Section 23 (1), and it insistence by the NCTE in the Notification dated 23.8.2010 is in consonance with the powers delegated to the NCTE under Section 23 (1) of the Act? 
(b) Whether clause 3 (a) of the Notifications dated 23.8.2010 and 29.7.2011 issued by the NCTE under Section 23 (1) of the Act, permits persons coming under the ambit of that clause to not undergo the 'Teacher's Eligibility Test', before they are eligible for appointment as Assistant Teachers? What is the significance of the words "shall also be eligible for appointment for Class-I to V upto 1st January, 2012, provided he undergoes, after appointment an NCTE recognized six months special programme in elementary education"? 
(c) Whether the opinion expressed by the Division Bench in Prabhakar Singh and others Vs. State of U.P. and others, 2013 (1) ADJ 651 (DB), is correct in law?" 
Dealing with issue No. 1, the Full Bench traced the history and the constitutional background which led to the insertion of Article 21A and the promulgation of the 2009 Act. It proceeded to observe as follows: 
"87. The legislative competence and the intent therefore lead to the conclusion that the Central Government has authorised the National Council for Teacher Education to make provisions and which have been carefully en-grafted in the Notification dated 23.8.2010. The State Government has followed suit. However, the State Government delayed the incorporation as the Rules were framed by it later on in 2011 and the 1981 Rules were amended much later. The 12th, 13th, 14th, 15th and 16th amendment in the 1981 Rules were brought at a later period. In our opinion, however, merely because the State incorporated these provisions in its rules later on would not take away the impact of the norms prescribed by the National Council for Teacher Education that stood enforced w.e.f. 23.8.2010. The delegated legislation of the State Government was subject to the primary legislation of the Central Government. The framing of rules as a subordinate legislation is subservient to the provisions framed by the Central Government. The notification dated 23.8.2010 therefore has an overriding effect and it could not have been ignored. If the State Government has proceeded to make appointments after 23.8.2010 without complying with the provisions of teacher eligibility test then such appointments would be deficient in such qualification. 
88. It may be emphasised that there is no challenge raised to such appointments against rules, but the law is certain that appointment de-hors the rules cannot be said to be valid. After the enforcement of the notification dated 23.8.2010 every candidate aspiring to become a teacher of elementary education in any of the institutions defined under the 2009 Act has to be possessed of the qualifications prescribed therein. The intention therefore of the legislature is clear that no teacher without such a qualification can be allowed to continue as a teacher in the institution. We wish to clarify that the binding effect of the notifications and the guidelines is such that the weightage which is contemplated under the guidelines dated 11th February, 2011 cannot be ignored. The minimum score that is required of a candidate is 60% to pass the teacher eligibility test. A concession of 5% has been made in favour of the reserved category candidates including the physically challenged and disabled persons. This norm therefore cannot be diluted. Apart from this, the State Government has to take notice of the fact that weightage has to be given in the recruitment process as well. It is for the State Government to suitably adopt the said guidelines and we do not wish to add anything further at this stage as we are only concerned with the essentiality of the qualification of the teacher eligibility test to be possessed by any candidate aspiring to be appointed as a teacher." (emphasis supplied) 
It ultimately answered the questions framed by it in the following terms: 
"The questions that have been therefore framed by us are answered as follows:- 
1. The teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5 as per the notification dated 23.8.2010 which notification is within the powers of the NCTE under Section 23 (1) of the 2009 Act. 
2. Clause 3(a) of the notification dated 23.8.2010 is an integral part of the notification and cannot be read in isolation so as to exempt such candidates who are described in the said clause to be possessed of qualifications from the teacher eligibility test. 
3. We approve of the judgment of the division bench in Prabhakar Singh's case to the extent of laying down the interpretation of the commencement of recruitment process under Clause 5 of the notification dated 23.8.2010 but we disapprove and overrule the ratio of the said decision in relation to grant of exemption and relaxation from teacher eligibility test to the candidates referred to in Clause 3 (a) of the notification dated 23.8.2010, and consequently, hold that the teacher eligibility test is compulsory for all candidates referred to in Clause 1 and Clause 3 (a)." 
It becomes relevant to note that although the Full Bench delivered judgment on 31 May 2013, in the meanwhile on 31 August 2012, the State promulgated the 15th Amendment Rules. These Rules amended sub-rule (3) of Rule 14 to provide that the names of selected candidates shall be arranged in accordance with the quality points specified in Appendix-1. Appendix-1 earmarked the award of quality points in respect of the marks obtained by a candidate in the High School, Intermediate and graduation examinations. This amendment assumes significance inasmuch as the position which was brought about by the 12th Amendment Rules and which mandated selection only on the basis of marks obtained in the TET examination came to be fundamentally altered. To clarify it becomes relevant to state that while Rule 8 continued to require an aspiring teacher to possess a TET certificate, the system by which his selection was made dependent solely upon the marks obtained by him in the said examination was completely done away with. Consequently while TET remained part of the minimum qualifications required of an Assistant Teacher, the consideration of marks obtained by a person in the TET examination was done away with. 
The 15th Amendment Rules were again challenged before this Court in a batch of writ petitions. Two learned Judges of the Court in Shiv Kumar Patkak Vs. State of U.P.14 considered the challenge and ultimately held that the change in the criteria of selection to the position as it prevailed prior to the 12th Amendment Rules was not in conformity with law. It accordingly struck down Rule 14(3) as introduced by the 15th Amendment Rules. The Division Bench while considering the challenge to the 15th Amendment Rules duly took note of the notification dated 23 August 2010 issued by the NCTE as well as the Guidelines issued by it on 11 February 2011. It proceeded to frame the following issues for resolution:- 
"From the submissions of learned counsel for the parties and the pleadings on record, following are the issues which arise for consideration in this bunch of appeals. 
1.Whether 1981 Rules are applicable for selection of B.Ed. Candidates for imparting six months training for appointment as Assistant Teachers in junior basic schools? 
2.Whether the advertisement dated 30.11.2011 for selection and appointment as trainee teacher against 72,825 posts in different junior basic schools was invalid on the ground that there was no cadre of trainee teachers in 1981 Rules ? 
3.Whether the guidelines dated 11.2.2011 issued by the National Council For Teacher Education requiring that State should give weightage to the marks of Teachers Eligibility Test while appointing the teachers were not binding on the State and could have been ignored while making selection and appointment on the post Assistant Teachers in junior basic schools? 
4.Whether the State Government's order dated 26.7.2012 to make Teachers Eligibility Test only as a minimum qualification and restoration of the mechanism of giving weightage only on the basis of educational qualification for appointment of teachers as was in force prior to 12th Amendment Rules was in accordance with law? 
5. Whether there were valid reasons for the State Government to declare the advertisement dated 30.11.2011 as ineffective and to cancel the advertisement? 
6.Whether the U.P. Basic Education (Teachers) Service (15th Amendment) Rules dated 31.8.2012 and the Government Order dated 31.8.2012 were in accordance with law? 
7. To what reliefs, the appellants are entitled in these appeals, if any?" 
It accordingly proceeded to consider the question as to whether the Guidelines framed by the NCTE would be binding on the State. While considering the said issue, the Division Bench also noted what the Full Bench had come to hold in respect of the powers of the NCTE and the binding character of the standards laid down by it in exercise of powers conferred by Section 23 of the 2009 Act. The Division Bench then proceeded to hold as follows: 
"66. While deciding the Issue No.3 we have already held that the guidelines dated 11.2.2011, issued by the National Council for Teacher Education require the State to give weightage of the marks obtained in the 'Teacher Eligibility Test' Examination -2011 in appointment on the post of Teachers. The guidelines dated 11.2.2011 issued by the National Council for Teacher Education have been held to be binding. A Full Bench of this Court in Shiv Kumar Sharma (Supra) in paragraph 88 (as quoted above) has already laid down that the State Government has to give weightage to the marks of the Teacher Eligibility Test in the recruitment process. In view of the binding nature of the guidelines dated 11.2.2011, issued by the National Council for Teacher Education and the decision of the Full Bench of this Court in Shiv Kumar Sharma's case (Supra) the State Government could not have taken any decision to ignore the weightage of the marks of the Teacher Eligibility Test Examination-2011. It is relevant to note that immediately after the advertisement dated 30.11.2011, as well as the 12th amendment Rules dated 09.11.2011, by which the selection was contemplated as per the marks of the Teacher Eligibility Test, a challenge to advertisement dated 30.11.2011 and 12th Amendment Rules was raised in this Court by means of Writ Petition No.71558/2011, Seeta Ram Vs. State of U.P. & Ors and Writ Petition No.72433/2011, Govind Kumar Dixit & Ors Vs. State of U.P. & Ors. Writ Petition No.71558/2011, Seeta Ram Vs. State of U.P. & Ors was dismissed on 12.12.2011 by the learned Single Judge of this Court who repelled the challenge to the advertisement dated 30.11.2011, as well as the 12th amendment Rules dated 09.11.2011. While dismissing the writ petition following was laid down in paragraph 9. 
"9. So far as making of qualifying examination basis of selection is concerned, it is always permissible to the rules framing authority to determine the criteria for selection which may base on the merits of the candidate possessed in various academic qualifications or qualifying test or any other criteria which may otherwise be valid and once it is so determined, unless it can be said that the same amendment in the rule is contrary to any statutory provision or otherwise ultra vires or vitiated in law, the same cannot be interfered. 
70. 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. The Government Order dated 31.8.2012 was issued by the State in consequence to the 15th amendment rules. The Government Order dated 31.8.2012 states that in view of the 15th amendment rules the earlier advertisement (dated 30.11.2011) has become ineffective and thus be cancelled. For cancelling the advertisement no other reason have been given except the changed criteria of selection by 15th amendment rules. The Government Order dated 31.8.2012 having not given any other reason for cancelling the advertisement except that it had become ineffective after the 15th amendment rules, thus the Government Order dated 31.8.2012, also deserves to be set-aside including the consequential communication dated 31.8.2012 issued by the Board of Basic Education." (emphasis supplied) 
On 4 December 2012, the State Government yet again proceeded to amend the 1981 Rules and promulgated the 16th Amendment Rules. Significant for our purpose is the amendment brought about to Rule 14 (3). This rule provided that the name of candidates in the list prepared in sub-rule (2) was liable to be arranged in accordance with the quality points obtained by a candidate and as specified in Appendix-1. It becomes pertinent to note here that no separate Appendix-1 was introduced by the 16th Amendment Rules. The reference to Appendix-1 was obviously to the amendment which had been introduced by the 15th Amendment Rules which had drawn up and specified the particulars which must be taken into consideration and had enumerated the same in Appendix-1 as introduced thereby. This aspect assumes significance in view of the fact that Appendix-1 to the 1981 Rules had come to be introduced by the newly amended Rule 14(3) as introduced by the 15th Amendment Rules. Rule 14(3) as introduced thereby had come to be declared as unconstitutional and ultra vires by the Division Bench in Shiv Kumar Pathak. It was in this backdrop that the challenge to the 16th Amendment Rules came to be preferred before the learned Single Judge. The learned Single Judge as noted above, proceeded to hold that since the 15th Amendment Rules had already been struck down, the 16th Amendment was rendered wholly unworkable. This observation came to be made in light of what has been noted by us above namely Appendix-1 having been totally effaced from the statute book by virtue of the judicial declaration entered by the Division Bench in Shiv Kumar Pathak. It was in this backdrop of the facts that the learned Single Judge came to hold that Rule 14(3) as introduced by the 16th Amendment Rules was wholly otiose. 
It is important to note that the judgment of the Division Bench in Shiv Kumar Pathak has been taken in appeal to the Supreme Court. In the pending Civil appeals, we note that on 2 November 2015, the Supreme Court has proceeded to formulate the following issues for consideration: 
"At this juncture, we must formulate the issues that the learned counsel should address while arguing the matter on the next date, for we are not inclined any more to deal with the matter as interim measures. The issues are as under : 
a) Whether the NCTE Guidelines fixing the minimum qualification are arbitrary and unreasonable? 
b) Whether the marks obtained in the TET Examination is the sole criterion for filling up the vacancies? 
c) Whether the High Court is justified in declaring the 15th Amendment brought in on 31.08.2012 to the U.P. Basic Education (Teachers) Service Rules, 1981? 
d) Assuming, the guidelines framed by the NCTE are treated as intra vires, the question will be what interpretation would be placed by the Court on the concept of weightage as mentioned in the guidelines of the NCTE? " 

We have been informed by the learned counsel for the parties that the judgment of the Division Bench in Shiv Kumar Pathak has not been stayed by the Supreme Court till date. During the course of submissions advanced by the rival parties before us, we noted that the issues which were being canvassed were in fact identical and similar to those framed by the Supreme Court especially issues such as whether the guidelines framed by the NCTE were valid, could they form the sole criteria for filling vacancies and if held to be intra vires what interpretation is liable to be rendered to the word "weightage" in paragraph 9(b) of the Guidelines dated 11 February 2011. Upon this being pointed out, the majority of the learned counsels for the parties urged us to proceed to dispose of this batch of matters so as to enable them to take their matters also to the Supreme Court and raise all contentions so that a quietus to the entire controversy is ultimately rendered. We accordingly proceeded to hear the parties on merits and consequently note the submissions advanced hereinafter. 
Leading the challenge to the validity of the 16th Amendment Rules as raised in the writ petitions before us, Sri Khare, learned Senior Counsel has urged the following contentions: 
He submits that the learned Single Judge was justified in proceeding to strike down the 16th Amendment Rules in light of the binding verdict rendered by the Full Bench of the Court as well as the Division Bench which had struck down the 15th Amendment Rules. Sri Khare submitted that the 16th Amendment Rules and more particularly Rule 14(3) thereof was clearly unworkable in the absence of an Appendix - I remaining on the statute book. He contended that the declaration of the Division Bench in Shiv Kumar Sharma in respect of Rule 14 as introduced by the 15th Amendment Rules would have the effect of the same being wholly erased and removed. He drew our specific attention to the fact that Appendix-I had in fact come to be introduced only by the 15th Amendment Rules. He then referred to the principles enunciated by the Full Bench in respect of the jurisdiction and authority of NCTE and submitted that since it had been anointed as the academic authority by the Union Government, the notifications and guidelines issued by it must have primacy. Sri Khare submitted that insofar as the subject of primary education is concerned, the legislative power of the State as flowing from Entry 45 of List-III of the Seventh Schedule to the Constitution is no longer untrammelled. It is his submission that the legislative power of the State must yield and be subject to such overriding directives as may be issued by a competent authority under a central legislation which governs the field. He submits that both the notification dated 23 August 2010 as well as the Guidelines framed by the NCTE on 11 February 2011 are clearly of binding character and cannot be ignored by the State. He submits that the use of the word "weightage" in Para 9(b) of the Guidelines clearly incorporates and represents the conscious decision taken by NCTE to ensure that the marks obtained by a candidate in the TET Examination, must be accorded some consideration. His submission is that the possession of a TET Certificate being given the status of only a minimum requirement would not be in consonance with the decision of the primary academic authority that weightage be accorded to the marks obtained by a candidate in the said examination. Sri Khare has clarified that it is not the contention of the petitioner that TET marks alone form the basis for selecting a particular candidate. He submits that the use of the word "weightage" in Para 9(b) clearly mandates some credence and weight being attached and accorded to marks obtained in the TET Examination. Referring to the Appendix to the 1981 Rules as it existed prior to the 12th Amendment, Sri Khare submits that the said Appendix came into play only in a case where there were candidates who had passed the training course in the same year. The Appendix, Sri Khare submits, was restricted in its application only to such a contingency. Insofar as the Appendix which came to be introduced by the 15th Amendment Rules is concerned, Sri Khare points out that the same no longer exists consequent to Rule 14(3) being struck down and declared invalid by the Division Bench in Shiv Kumar Pathak. The Rules therefore in the submission of Sri Khare have been rendered wholly unworkable. Sri Khare has contended that assuming that the learned Single Judge lacked the authority to consider a challenge connected to the validity of legislation, this Court may independently consider the legal challenge to the 16th Amendment Rules in the writ petitions preferred thereafter and placed before us as part of this batch. 
Sri Shailendra, learned counsel who has advanced submissions on the appeals taken against the judgment of the learned Single Judge, has submitted that the learned Single Judge had clearly erred in proceeding to entertain and rule upon a challenge to legislation, even though as per the roster no such jurisdiction stood conferred upon him. He further submitted that the appellants represented by him were afforded no opportunity of hearing and that even their impleadment applications had not been disposed of. He further referred to the fact that although he was heard on 25 May 2015 and asked to file written submissions by the next date, though such submissions were filed on 26 May 2015 the same were neither noticed nor considered by the learned Single Judge. He further laid stress upon the fact that in the writ petition itself no prayer had been made for declaring the 16th Amendment Rules to be invalid. He submitted that the only relief of significance which was sought was for the issuance of a writ of certiorari quashing the Notifications dated 30 August 2012 and 5 December 2012 (being the notifications by which the 15th and 16th Amendment Rules respectively, were promulgated). These submissions have to some extent been reiterated by the State which is also in appeal against the judgement rendered by the learned Single Judge. 
Leading the arguments on behalf of the candidates who have come to be selected during the pendency of the litigation, Sri H.N. Singh, learned Senior Counsel has raised various contentions for our consideration. Sri Singh, learned Senior Counsel has primarily contended that the guidelines issued by the NCTE are merely advisory in character and cannot eclipse or override the legislative authority of the State to frame rules for the appointment of teachers in primary educational institutions. Sri Singh has submitted that by virtue of Article 45 of the Constitution, the subject of recruitment and prescribing the terms and conditions of service of teachers in primary institutions is the exclusive province of the State. He submits that NCTE had exercised the powers under Section 23 by promulgating the Notification dated 23 August 2010. The Guidelines issued on 11 February 2011, in the submission of Sri Singh, are not referable to the said provision at all. He seeks to draw sustenance for the submission from the fact that the guidelines as promulgated by NCTE have not been claimed or declared by it to have been issued in exercise of powers conferred by Section 23. Sri Singh has then contended that a reading of Clause 9(b) of the guidelines itself indicates that even NCTE does not envisage TET to be the sole criteria for selection. Referring to the provisions of sub-section (3) of Section 23, Sri Singh submits that the power to lay down "terms and conditions of service" is vested exclusively with the appropriate State Government. It is his contention that the phrase "terms and conditions of service" as employed in section 23 (3), would include the jurisdiction and authority of the State to frame rules relating to the qualifications which must be possessed by a candidate who aspires to be appointed as an Assistant Teacher. Insofar as the judgment rendered by the Full Bench is concerned, Sri Singh submits that from the issues as framed, it is more than apparent that what the Full Bench was considering was the binding effect and character of the Notification dated 23 August 2010. He submits that the Full Bench was neither called upon nor could it be said to have considered or ruled upon the validity of the guidelines. He submits that the issue of whether Para 9(b) of the guidelines, would have overriding effect and operation over the rules framed by the State, neither arose nor fell for consideration of the Full Bench. In this light, Sri Singh submits that the Division Bench which decided Shiv Kumar Pathak, clearly erred in proceeding as if this issue had been authoritatively decided and ruled upon by the Full Bench. 
Sri Ravi Kant, learned Senior Counsel and Sri Anoop Trivedi, learned counsel, have advanced submissions on behalf of the petitioners who have challenged the validity of the guidelines directly. According to them, the only obligation which stands placed on the State under the 2009 Act is that the teachers who came to be appointed must possess the minimum qualifications prescribed by NCTE. It is their submission that the method and manner of selection is within the exclusive domain of the State Government. They submit that the guidelines framed by the NCTE were merely advisory in nature and in case the State chose not to give any weightage to TET marks, it has committed no error. They submit that the administrative guidelines cannot supplant the substantive rule making power conferred upon the State Government by Section 19 of the 1981 Act. 
It is these rival submissions which now fall for our determination. 
In order to appreciate the rival submissions, it would be apposite to briefly notice the legislative history which surrounds the subject of education. Education as a subject at the time when the Constitution was originally framed was contained in Entry - 11 of List-II of the Seventh Schedule to the Constitution. At this time, primary educational institutions in the State of U.P. were being managed and administered by municipal authorities and formed the subject matter of as many as three separate enactments. The need was therefore felt to bring about a comprehensive legislation to deal with the subject of primary education and for the State to take over the control of elementary educational institutions. It was with this avowed object that the 1972 Act came to be promulgated. It was the 1972 Act which contemplated and gave birth to the Board of Basic Education. Article 45 of the Constitution which stood placed in the Chapter relating to Directive Principles, was found not to have brought about any significant change. It had also not led to the fulfilment of the constitutional objective and goal of providing free and compulsory education to children till the completion of fourteen years of age. By virtue of the Constitution (Forty Second Amendment) Act, 1976, the subject of "education" was withdrawn from List II and placed in Entry 25 of List III. Thus, education came to fall in the category of concurrent subjects and in respect of which both the Union as well as the State would have powers to legislate. Decades after the adoption of the Constitution, Parliament, by virtue of the Constitution (Eighty Sixth Amendment) Act, 2002 added Article 21A. The constitutional goal of ensuring free and compulsory education for children upto the age of 14 years, was lifted from the position of being a mere aim of State action to that of a fundamental right. This Constitution amending Act also amended Article 45 by providing that the State would endeavour to provide early childhood care and education for all children till they complete the age of six years. The 2009 Act was promulgated in order to give effect to the objectives underlying the insertion of the aforementioned two Articles. NCTE, in terms of the provisions of Section 23 of the 2009 Act, has been conferred the jurisdiction of the "academic authority" by virtue of which it is obliged to prescribe the minimum educational qualifications required to be possessed by a person who aspires to impart instructions in primary educational institutions. It is by virtue of its anointment as the academic authority under Section 23 of the 2009 Act that NCTE issued the Notification dated 23 August 2010. In order to underline and reiterate its position of being the primary academic authority charged with overseeing the field of primary education and to give effect to the constitutional thrust upon the subject of elementary education, NCTE which was initially envisaged to be the central authority in the field of teacher training and education, has been conferred added powers by virtue of the insertion of Section 12A in the 1993 Act. The insertion of this provision in 1993 Act, in our considered view, is essentially clarificatory in nature inasmuch as its position as the primary academic authority already stood recognised by virtue of the notification issued by the Union Government on 31 March 2010. The insertion of Section 12A was thus essentially a recognition and reassertion of the changed status, function and authority of the NCTE.
Bearing in mind the new constitutional mandate in respect of the field of primary education and the promulgation of the 2009 Act, it is no longer open to the States to refuse to recognise the elevation in the status of the NCTE from being a mere body which was charged only with overseeing and administering the field of teacher training to being the primary academic authority insofar as the field of primary education is concerned. The directives and policy measures formulated by NCTE must, therefore, be give due consideration and be permitted to flow with added authority and weight. It was in the backdrop of this paradigm legislative shift that the Full Bench in Shiv Kumar Sharma noted that the notification and guidelines issued by it must be treated as binding upon the State and that it cannot be permitted to ignore them. The Full Bench dealing with the subject further noted that the norms formulated by it cannot be permitted to be diluted and accordingly proceeded to hold that it was imperative for the State to suitably adopt the guidelines framed by NCTE. 
It would be relevant at this stage to consider the contention of the learned counsels who have sought to canvass the argument that these observations as appearing in the judgment of the Full Bench were uncalled for. We do not agree with the said submission. The issue before the Full Bench was the binding character of the Notification dated 23 August 2010 and the powers of the NCTE as flowing from the 2009 Act vis a vis the State Government in the field of primary and elementary education. It was while dealing with this issue that the observations came to be entered by the Full Bench. The authority of the NCTE to frame the qualifications required of a teacher desirous of imparting instructions in primary schools, its position in the field of primary education by virtue of the 2009 Act were issues directly raised in Shiv Kumar Sharma. Additionally the Full Bench was called upon to consider the issue of whether such directives and formulation of standards by NCTE would be binding upon the appropriate governments. On both issues the Full Bench answered in favour of the writ petitioners and in unambiguous terms recognised the authority and jurisdiction of the NCTE to formulate and prescribe standards. It further held that the directives so issued by the NCTE could not be ignored by the State Government. It was in this very context that it observed that the State is no longer a "free agent", that the notification issued by the NCTE could not be diluted and that every rule of the State Government must abide by the same "by virtue of the force of section 23 (1) of the 2009 Act". We are, therefore, unable to sustain the submission that these observations were uncalled for. In any view of the matter, it is not open for us to hold that these observations are not binding. 
Shiv Kumar Pathak was based upon the above principles enunciated by the Full Bench. It was in this very context that the Division Bench held that the requirement of according weightage to the marks obtained in the TET was an imperative which could not be ignored. We are of the considered view that the mandate of section 23 and the other provisions of the 2009 Act must be accorded the weight and authority which flows from Articles 21A and 45 of the Constitution. The legislative policy is clear to provide free and compulsory elementary education as well as to formulate national standards so as to ensure that the constitutional importance accorded to elementary education achieves fruition. While not disputing that education is a concurrent subject, the Union Government has thought it fit, in order to bring about uniformity in standards to constitute the NCTE as the academic authority. The 2009 Act embodies a policy measure designed to bring about a metamorphic change in the field of elementary education. It is the above legislative objective which must be borne in mind while conceding an over arching presence to the 2009 Act. Viewed in that light it is apparent that the concurrent power of the State is not in any manner diluted. 
Additionally, it may be noted that the National Council for Teacher Education (NCTE) was empowered to issue directions and guidelines by virtue of being an academic authority under the 2009 Act. This power conferred upon the NCTE was re-enforced and clarified by the National Council for Teacher Education (Amendment) Act 2011. It would be at this stage relevant to note the Statement of Objects and Reasons of the said amending Act which was as follows:- 

"Prefatory Note - Statement of Objects and Reasons. - The National Council for Teacher Education Act, 1993 has been enacted to provide for the establishment of a National Council for Teacher Education with a view to achieving planned and co-ordinated development of teacher education system in the country and the regulation and proper maintenance of norms and standards in the said system and for matters connected therewith. 

2. Clause (d ) of section 12 of the aforesaid Act empowers the Council to lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions. The object of this provision is to ensure quality of teachers, and thereby, teaching in schools uniformly across the country. In pursuance of this provision, the Council has framed Regulations which are binding on all State Governments in the matter of appointment of school teachers. 

3. The Hon'ble Supreme Court in the case of Basic Education Board, U.P. v. Upendra Rai and others, (2008) 3 SCC 432, has held that the Act does not deal with educational institutions like primary schools, etc. Hence, the qualifications for appointment as teacher in the ordinary educational institutions like the primary schools cannot be prescribed under the aforesaid Act, and the essential qualifications are prescribed by the local Acts and Rules in each State. 

4. The purpose of regulating the teacher education system is to ensure quality of teachers in the education system. In view of the aforesaid judgment, the minimum qualification for appointment of teachers in schools laid down by the Council has become redundant. 

5. In the circumstances, it is considered necessary to amend the Act to clarify that the Act applies to schools, school teachers and the minimum qualifications for appointment of school teachers, so as to have uniform standards of teaching in schools in the country. 

6. The Bill seeks to achieve the above objects." 


The insertion of Section 12-A was thus explanatory in nature and clarified the new added role which the NCTE was to perform. It becomes pertinent to note that Section 12-A empowered the NCTE to 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 regulations. The amending Act received the assent of the President on 12 October 2011 and was published in the Gazette of India on 13 October 2011. The guideline issued by the NCTE are prior in point of time. It would therefore be incorrect to sustain the submission that a direction or a guideline framed by the NCTE could have been promulgated only by way of a statutory rule or regulation framed by it. In distinction to the above, it may be noted that Section 23 of the 2009 Act while empowering the NCTE to determine the minimum qualification does not prescribe the qualifications to be framed in the shape of a rule or regulation. The moment the NCTE was authorised by the Central Government by notification to be the academic authority under the 2009 Act, it came to be armed with full authority and jurisdiction to frame the minimum qualifications. The Guidelines in our opinion are clearly referable to the power conferred upon the NCTE by virtue of the provisions of Section 23. They thus have statutory flavour and character. 
Additionally, we note that in Shiv Kumar Pathak, the Division Bench has clearly noted that the Guidelines are incidental and consequential to the object which is sought to be achieved by the 2009 Act. In Shiv Kumar Pathak, it was unequivocally held that a statutory authority must be conceded all incidental and consequential powers which are liable to be possessed by it in order to effectuate the purpose and object of the Act. It was based upon this reasoning that the Division Bench ultimately concluded that the Guidelines dated 11 February 2011 are binding on the State and could not have been discarded while proceeding to make recruitment of Assistant Masters/Assistant Mistress in primary schools run by the Board. We find no ground which may warrant taking a different view. Following the dictum laid down in Shiv Kumar Sharma by the Full Bench as reiterated in Shiv Kumar Pathak, we uphold the guidelines and hold that they are not liable to be struck down on the grounds urged before us. 
The Guidelines as is evident command the appropriate Governments to give due weightage to the marks obtained by a candidate in the TET examination. The word ''weightage' is derived from the word 'weigh'. The Oxford English Dictionary, Second Edition defines the word 'weigh' in the following terms to mean 
"to balance with or against (and other object regarded as counter poise) in order to obtain a comparative estimate." 
"to consider (a fact, circumstance, statement etc) in order to assess its value or importance; to ponder estimate, examine, take due account of; to balance in the mind with a view to choice of preference." 

Similarly the word "weight" is defined in the following terms:- 
"Importance, moment, claim to consideration...." 
Explaining the use of the word in phrases it defines it to mean:- 
"...to urge (a person) to do something (obs.); to attach importance or value to." 
"....to make an impression on, weigh with (those who judge a matter); to receive favorable consideration; to be recognized as valid and important." 

The word 'weightage' is defined in the same dictionary in the following terms: 
"(the assignment) of a weighting factor compensating for some, numerical disadvantage, esp. in favour of partially populated area or to a minority party, etc; the amount so added". 
From the above, it is more than apparent that the expression 'weightage' would necessarily mean according some consideration to the marks obtained by a candidate in the TET examination. The reasons for this are not far to seek. These reasons flow from the very nature of the TET certification and its intrinsic connect with the qualities which a teacher must possess in order to impart instructions to students in the primary section. In this connection it would apposite to note what the Full Bench held in Shiv Kumar Sharma. The distinct qualities which a teacher of a primary section must possess were eloquently described in the following words:- 
64. The reason for this is that the art of teaching is designed to educate a child. Education is not mere acquisition of qualifications but is an overall development of a child to ensure growth and development. It is the awakening of the inner self and faculty of the child to the ways of the world. The teacher therefore should be possessed such qualities that he satisfies the curiosity of a child that enables him not only to read but to distinguish what is worth reading. The job of a teacher is not to fill the time-table with dull unintelligible tasks. This violates common sense and creativity brutally. Teaching and training cannot be effected in the absence of knowledge about the mind which is to receive them. 
xxx xxx xxx 
70. The art of dealing with children also involves knowing what not to say, and on the other hand patiently answering the unpredictable questions of an inquisitive child. A teacher should not give answers to children to remember only, but he should be able to give them problems to solve. It is then that the potentiality of the human race is better put to use "because a child is not a vase to be filled but a fire to be lit." (Francois Rebelais ). A Chinese Proverb goes a long way to say "give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime." Teaching is infusing of ideas instead of stuffing the brain with facts. William Arthur Ward a famous educationist said that "The mediocre teacher tells, a Good teacher explains, a Superior teacher demonstrates but the great teacher inspires." 

71. Children come from different backgrounds often being victimised by unwise and wrongly motived parental treatment. The teacher has to be more careful for he is enjoined with the duty of child development. This therefore is the background in which the teachers role attains immense significance. It is for such reasons that the Union and the State appear to have come up with the necessity of a teacher eligibility test." 

The second aspect which was considered by the Full Bench was in respect of the submissions advanced before it that the TET certificate was not a qualification. Repelling the said submission, it observed as follows:- 
"48. To further understand as to why the teacher eligibility test is a qualification one can refer to the guidelines dated 11th February, 2011 where the background and rationale for conducting the said test has been referred. We may mention at the outset that the said guidelines had totally escaped the notice of the division bench and its ingredients while proceeding to treat the teacher eligibility test to be not necessary for the candidates falling under Clause 3 of the Notification dated 23.8.2010. The guidelines provide that persons to be recruited as teachers should possess the essential aptitude and ability to meet the challenges of teaching at the elementary level. The consequences were explained by the rationale that it would bring about national standards and bench mark of teacher quality in the recruitment process. It would further induce teacher education institutions to improve their performance standards and a positive signal to all stake holders that the Government lays special emphasis on teacher quality. This rationale therefore justifies the teacher eligibility test as an additional norm apart from the educational and training qualifications." 


It is in the above backdrop that the issues of according weightage to the TET certificate is liable to be considered. Upon an overall conspectus of the conclusions recorded by us hereinbefore, we are of the considered view, that the use of word "wieghtage" in paragraph 9 (b) clearly mandates the State to accord consideration to the marks obtained in the TET examination. These Guidelines, though described as such, as observed in Shiv Kumar Sharma and Shiv Kumar Pathak cannot be ignored. The State is bound to adhere to and implement the same. The mere prescription of TET certification as a minimum qualification would not be in consonance with the aim and object of the Guidelines in question. Any rule or regulation framed by the State, which refuses to take into consideration the above, cannot therefore be sustained. 
As discussed above, the 1981 Rules as they originally stood provisioned for the selection of candidates as Assistant Teachers only on the basis of the year in which they had obtained the training certificate. The Appendix appended to the 1981 Rules came into play only where there were two or more persons who had obtained the training certificate in the same year. When the State promulgated the 12th Amendment Rules, it completely changed the method and mode of selection and made it dependent solely upon the marks obtained by the candidate in the TET examination. However, this position was not permitted to prevail for too long and came to an end with the promulgation of the 15th Amendment Rules on 31 August 2012. The 15th Amendment Rules while continuing the requirement of TET certificate as a minimum eligibility criteria did not provide for any weightage being given to the marks obtained by a candidate in the TET examination. Appendix-1, which came to be inserted by virtue of the 15th Amendment Rules provided for the awarding of quality points only on the basis of marks obtained by a candidate in the High School, Intermediate and Graduation levels and the divisions obtained by him or her in the training course. It is thus apparent that no weightage or separate consideration was accorded to the marks obtained by a candidate in the TET examination. It was this position which was found to be unsustainable by the Division Bench in Shiv Kumar Pathak. Referring to the provisions of para 9 (b) of the guidelines, the Division Bench has clearly held that the State was obliged and bound to give some weightage to the marks obtained by a candidate in the TET examination. It further held that in light of the principles enunciated by the Full Bench in Shiv Kumar Sharma, the State could not have taken a decision to completely ignore the weightage liable to be accorded to marks of the TET examination. It accordingly proceeded to hold that the 15th Amendment Rules could not be said to be in conformity with the Guidelines framed by the NCTE. While this was the position which prevailed under the 15th Amendment Rules, the position is again liable to be tested with reference to the 16th Amendment Rules. 
As discussed in the earlier part of this judgment, the 16th Amendment Rules which came into force with effect from 4 December 2012 did not remedy the situation. Rule 14 (3) (a) which came to be introduced provided that the names of candidates would be arranged in accordance with quality points specified in Appendix-1. Appendix-1, as noted above, did not have any independent existence. It was introduced only by the 15th Amendment Rules. Once the Division Bench had struck down Rule 14 (3) as introduced by the 15th Amendment Rules in Shiv Kumar Pathak, it cannot be said that the Appendix which came to be introduced by the said provisions continued to exist or remained on the statute book. The Appendix to the original 1981 Rules as has been noted by us earlier had only a limited application. The 16th Amendment Rules therefore were clearly otiose and unworkable. 
We are constrained to hold so in light of the settled principle that when a statutory provision is struck down, the effect of such a judicial declaration is that it will be deemed to have never existed. The declaration in Shiv Kumar Pathak had the effect of erasing Rule 14 (3) as introduced by the 15th Amendment Rules along with the Appendix introduced therein which also stood completely erased and effaced. We are constrained to record this conclusion in light of the undisputed factual position that the insertion of Rule 14 (3) by the 15th Amendment Rules led to a situation where original Rule 14 was completely substituted and consequently ceased to exist. The subsequent striking down of the amending rules will not revive the provisions as they stood earlier either at the time of promulgation of the 12th or the 15th Amendment Rules. Presently therefore as the enactment exists there is no revival of the Appendix or Rule 14 as it stood prior to the promulgation of the 12th Amendment Rules. We are therefore of the considered opinion that the 16th Amendment Rules must necessarily fall. 
We may at this stage also dispose of an ancillary argument raised by Sri Singh who submitted that the use of the phrase "conditions of service" as used in Section 23 (3) would embrace in its ambit also the right of the State to prescribe the mode and method of recruitment. We find ourselves unable to sustain the said submission. The distinction between a rule of "recruitment" and "condition of service" is no more res integra having already been settled by a long line of judgments rendered by the Supreme Court. In State of U.P. Vs. Shardul Singh15 the Supreme Court held that the term "conditions of service" means all those conditions which regulate the holding of a post by a person right from the time of his appointment till retirement and even pension etc. This proposition was reiterated in I.N. Subbareddy Vs. State of A.P.16 In Syed Khalid Rizvi Vs. Union of India17 the Supreme Court observed that where a rule permits relaxation of provisions pertaining to "conditions of service", the same would be applicable to the condition after appointment to the service in accordance with rules. It also held that that "conditions of recruitment" and "conditions of service" are distinct and the latter is preceded by an appointment according to rules, the former cannot be relaxed." 
We then proceed to consider the challenge laid to the judgment of the learned Single Judge which stands challenged in the Special Appeals. As is evident from a perusal of the reliefs claimed in the leading writ petition, the primary prayer made was as follows:- 
"(i) a writ, order or direction in the nature of certiorari quashing the notifications dated 30.08.12 and 05.12.12 issued by the State Government amending UP Basic Education Teachers Service Rules 1981 in so far as they limit the basis of selection to the performance in the academic qualifications alone and do not provide for any weight age on the scores obtained by the candidates in Teachers Eligibility Test (Annexure 1 & 3 to the writ petition)." 
Decades back the Supreme Court in Prabodh Varma V State of U.P.18, observed as follows:- 
"38. A writ in the nature of certiorari is thus a wholly inappropriate relief to ask for when the constitutional validity of a legislative measure is challenged and it is surprising to find that in spite of repeated pronouncements of this Court as to the true nature of this writ it should have been asked for in the Sangh's petition. As pointed out in Dwarkanath case [AIR 1966 SC 81 : (1965) 3 SCR 536, 540-41 : 57 ITR 349] under Article 226 the High Courts have the power to issue directions, orders and writs, including prerogative writs. This power includes the giving of declarations as also consequential reliefs including relief by way of injunction. The proper relief for the petitioners in the Sangh's petition to have asked was a declaration that U.P. Ordinance 22 of 1978 was unconstitutional and void and, if a consequential relief was thought necessary, a writ of mandamus or writ in the nature of mandamus or a direction, order or injunction restraining the State and its officers from enforcing or giving effect to the provisions of that Ordinance. The High Court granted the proper relief by declaring that Ordinance to be void but it should have, before proceeding to hear the writ petition, insisted that the petitioners should set their house in order by amending the petition and praying for proper reliefs. The High Court was too indulgent in this matter. After all, it was not a petition from a prisoner languishing in jail or from a bonded labourer or a party in person or by a public-spirited citizen seeking to bring a gross injustice to the notice of the court. Here, the High Court had before it as the main petitioner a union which had taken collective action to enforce its demands and had defied the Government by flouting its orders and an Ordinance promulgated by the Governor, namely, U.P. Ordinance 25 of 1977, and had by reason of its collective might ultimately made the Government come to terms with it. The petitioners were represented by well-known counsel, one of them practising in this Court. It is true that neither this Court nor any High Court should dismiss a writ petition on a mere technicality or just because a proper relief is not asked for; but from this it does not follow that it should condone every kind of laxity. We would not have dwelt upon this aspect of the case but for the fact that we find that laxity in drafting all types of pleadings is becoming the rule and a well-drafted pleading, an exception. An ill-drafted pleading is an offspring of the union of carelessness with imprecise thinking and its brothers are slipshod preparation of the case and rambling and irrelevant arguments leading to waste of time which the courts can ill afford by reason of their overcrowded dockets." 

The learned counsels for the appellants are in our considered view correct in the technical objection which they take in respect of a proper relief having been sought in respect of the 16th Amendment Rules. The relief was clearly unhappily worded. The challenge was only to the notifications by which the rules had been published. No prayer or effort appears to have been made to have the relief amended either. 
This then takes us to the other fundamental objection taken by the appellants that the learned Single Judge did not, as per the then prevailing roster, have the jurisdiction to either entertain or rule upon the challenge. The roster which was prevailing at the time dated 23rd March 2015 and 25th May 2015 clearly provided that all cases where vires of central or state legislation was challenged were to go to the Bench presided over by the Hon'ble Chief Justice. The aspect of a judgment being rendered contrary to the roster has been duly considered by a Division Bench of the Court in Prof. Y.C. Simhadri V.C. BHU V Deen Bandhu Pathak19, where after reviewing the entire body of precedent on the subject including the judgments rendered by Full Benches of this Court, it was ultimately held as follows:- 
"16. Thus, the following principles emerge from the foregoing discussions: 
(1) The administrative control of the High Court vests in the Chief Justice alone and it is his prerogative to distribute business of the High Court both judicial and administrative. 
(2) The Chief Justice alone has the right and power to decide how the Benches of the High Court are to be constituted; which Judge is to sit alone and which cases he can and is required to hear as also which Judges shall constitute a Division Bench and what work those Benches shall do. 
(3) The Puisne Judges can only do what work which is allotted to them by the Chief Justice or under his directions. No Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court unless the case is alloted to him or them by the Chief Justice. 
(4) Any order which a Bench or a Single Judge may choose to make in a case that is not placed before them or him by the Chief Justice or in accordance with his direction is an order without jurisdiction and void. 
(5) Contempt jurisdiction is an independent jurisdiction of original nature whether emanating from the Contempt of Courts Act or under Article 215 of the Constitution of India. 
(6) For exercising the jurisdiction under Article 215 of the Constitution of India the procedure prescribed by law has to be followed. 
17. It appears that on 26.3.2001 when the learned Judge passed the said order, he was allotted and assigned the determination with regard to the following matters by the Chief Justice as appears from the printed cause list: 
"FRESH WRITS IN EDUCATIONAL MATTERS (EXCEPT SERVICE WRITS) FOR ORDERS, ADMISSION AND HEARING AND ALL SINGLE JUDGE WRIT-C FOR ORDER, ADMISSION AND HEARING INCLUDING BUNCH CASES." 
The learned Judge on the face of the record, therefore, had no determination assigned to him by the Chief Justice with regard to the matters relating to contempt and the said jurisdiction had been assigned to another Hon'ble Single Judge. 

18. In view of the rule as already noted that the power to constitute Benches and allotment of work to the learned Judges vests absolutely in the Chief Justice and the Rules 1, 6, and 17 of Chapter V and Rule 2 of Chapter VIII of the Allahabad High Court Rules also clearly provide for the same. In that view of the matter the order passed by the learned Single Judge in the instant case appears to us to be without jurisdiction and void." 

However the judgment of the learned Single Judge in the ultimate analysis would not have much impact on these proceedings since we have independently considered the validity of the 16th Amendment Rules and have come to the conclusion that Rule 14 (3)(a) of the said Rules is liable to be struck down for the reasons recorded hereinbefore. 
Accordingly and for the reasons set forth above, Special Appeal No. 657 OF 2015 and all other connected Special Appeals which challenge the judgment of the learned Single Judge dated 18 August 2015 are disposed of. We allow Writ Petition No. 59431 of 2015 and other connected writ petitions. Rule 14 (3)(a) as introduced by the 16th Amendment Rules is hereby declared invalid and ultra vires. We turn down the challenge to the Guidelines dated 11 February 2011. Consequently Writ Petition No. 23938 of 2016, Writ Petition No. 54416 of 2015 and Writ Petition No. 39410 of 2016 shall stand dismissed. We have been apprised of the various interim orders passed by the Supreme Court in the pending Civil Appeals emanating from the judgment of this Court in Shiv Kumar Pathak and other connected matters. The parties shall therefore abide by the interim directions so issued and maintain status quo subject to further directions that may be issued in the pending Civil Appeals 
Order date: 1.12.2016 
LA/Arun K. Singh 
(D.B. Bhosale, CJ) 


(Yashwant Varma, J)


 UPTET  / टीईटी / TET - Teacher EligibilityTest Updates /   Teacher Recruitment  / शिक्षक भर्ती /  SARKARI NAUKRI NEWS  
UP-TET 2011, 72825 Teacher Recruitment,Teacher Eligibility Test (TET), 72825 teacher vacancy in up latest news join blog , UPTET , SARKARI NAUKRI NEWS, SARKARI NAUKRI
Read more: http://naukri-recruitment-result.blogspot.com
http://joinuptet.blogspot.com
 Shiksha Mitra | Shiksha Mitra Latest News | UPTET 72825 Latest Breaking News Appointment / Joining Letter | Join UPTET Uptet | Uptet news | 72825  Primary Teacher Recruitment Uptet Latest News | 72825  Teacher Recruitment Uptet Breaking News | 72825  Primary Teacher Recruitment Uptet Fastest News | Uptet Result 2014 | Only4uptet | 72825  Teacher Recruitment  Uptet News Hindi | 72825  Teacher Recruitment  Uptet Merit cutoff/counseling Rank District-wise Final List / th Counseling Supreme Court Order Teacher Recruitment / UPTET 72825 Appointment Letter on 19 January 2015A | 29334 Junior High School Science Math Teacher Recruitment,

CTET, TEACHER ELIGIBILITY TEST (TET), NCTE, RTE, UPTET, HTET, JTET / Jharkhand TET, OTET / Odisha TET  ,
Rajasthan TET /  RTET,  BETET / Bihar TET,   PSTET / Punjab State Teacher Eligibility Test, West Bengal TET / WBTET, MPTET / Madhya Pradesh TET, ASSAM TET / ATET
, UTET / Uttrakhand TET , GTET / Gujarat TET , TNTET / Tamilnadu TET , APTET / Andhra Pradesh TET , CGTET / Chattisgarh TET, HPTET / Himachal Pradesh TET
 

UPTET SARKARI NAUKRI News - Shiksha Mitra High Court Order Part 4 -

UPTET SARKARI NAUKRI   News - Shiksha Mitra High Court Order Part 4, Shiksha Mitra Bhrtee aur Uske Niyam Purntaya Nirast -




Shiksha Mitron ki Bhrtee ko Asamvedhanik Karar Dete Hue Nirast Kar Deeyaa hai, Aur Saare Niyamo ko Bhee.
Lekin Unkee Training Bach Gayee, Kyunki Us Par Koee Nirnay Nahin Hai.


Khas Baten Ye Thee Ki Shiksha Mitron Ne Baad Mein Qualification Lee, 11 Month Contract Teacher The, Aarakshan Ke Niyam Ka Palan Nahin Hua Tha, TET Pass nahin Kiya Thaa.
NCTE ne Inkee Training ko Sahee Nahin Mana Lekin Is par Court ne koee Order Nahin Deeya hai


Final Order Allahabad High Court ne Yeh Deeya Hai :- 

For all these reasons, we allow the writ petitions in the following terms:
(i) The amendment made by the State Government by its notification dated 30 May 2014 introducing the provision of Rule 16-A in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 by the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules 2014 is held to be arbitrary and ultra vires and is quashed and set aside;
(ii) The Uttar Pradesh Basic Education (Teachers) Service (Nineteenth Amendment) Rules 2014, insofar as they prescribe as a source of recruitment in Rule 5(2) the appointment of Shiksha Mitras; the academic qualifications for the recruitment of Shiksha Mitras in Rule 8(2)(c) and for the absorption of Shiksha Mitras as Assistant Teachers in junior basic schools under Rule 14(6) are set aside as being unconstitutional and ultra vires; and
(iii) All consequential executive orders of the State Government providing for the absorption of Shiksha Mitras into the regular service of the State as Assistant Teachers shall stand quashed and set aside.
The batch of writ petitions shall stand disposed of in the aforesaid terms. However, there shall be no order as to costs.
Order Date:- 12.09.2015

Matlab Shiksha Mitron ki Bhrtee ko Asamvedhanik Karar Dete Hue Nirast Kar Deeyaa hai, Aur Saare Niyamo ko Bhee.
Lekin Unkee Training Bach Gayee, Kyunki Us Par Koee Nirnay Nahin Hai.


Khas Baten Ye Thee Ki Shiksha Mitron Ne Baad Mein Qualification Lee, 11 Month Contract Teacher The, Aarakshan Ke Niyam Ka Palan Nahin Hua Tha, TET Pass nahin Kiya Thaa.
NCTE ne Inkee Training ko Sahee Nahin Mana Lekin Is par Court ne koee Order Nahin Deeya hai
 

****************************************************

 Shiksha Mitra High Court Order Contined Part 4 Here ->>>>>>>>>
 
PART B : Submissions
B1 Area of challenge
Broadly, the area of challenge in these proceedings has traversed four areas, which are:
(i) The nature of the appointment of Shiksha Mitras and the object and purpose of the selection;
(ii) The validity of the notification which has been issued by NCTE on 14 January 2011 accepting the request of the State Government for the grant of training through the open and distance learning mode to graduate Shiksha Mitras;
(iii) The process of relaxation and absorption of Shiksha Mitras which is stated to have commenced on 14 January 2011; and
(iv) The exemption which has been granted from the passing of the TET by the State Government by amending the Service Rules of 1981.
The submissions which have been urged on behalf of the petitioners can now be summarised:

B2 Submissions for the petitioners
(I) The Service Rules framed by the State Government in 1981 to govern teachers employed in schools conducted by the Basic Education Board contain statutory requirements in regard to the creation of the cadre, possession of qualifications, applicability of reservations, pay scales, and conditions for relaxation of the requirement contemplated in the Rules. These Rules uniformly govern the services of all teachers who were employed in junior basic schools;
(II) The object and purpose of the Shiksha Mitra Scheme which was adopted by a Government Order dated 26 May 1999 would indicate that these were essentially contractual appointments which were not made against sanctioned posts. In the case of Shiksha Mitras: (a) there was no requirement of obtaining a teacher's training certificate and the qualification prescribed was only intermediate in comparison with a graduate qualification required for regularly appointed teachers; (b) appointments were made at the village level, failing which at the unit of the Nyay Panchayat; and (c) the appointments were envisaged to be for a contractual term of eleven months with a renewal contemplated in the event of satisfactory service. Every person appointed as Shiksha Mitra was placed on notice of the fact that the appointment was not in the nature of a regular employment in the service of the State but was an appointment of a stipulated duration for the purpose of enabling the person engaged to render community service;
(III) The appointments of Shiksha Mitras were clearly de hors the statutory Service Rules of 1981 which have held the field at all material times;
(IV) After the enforcement of the Regulations by NCTE on 3 September 2001 under the provisions of the NCTE Act, minimum qualifications required for appointment as a primary school teacher were to be stipulated. Between 3 September 2001 and 23 August 2010, when NCTE issued its notification under the RTE Act of 2009, no Shiksha Mitra fulfilled the training qualification prescribed under the central regulations. Upon the enforcement of the notification dated 23 August 2010, every primary school teacher was required to comply with the minimum qualifications prescribed by NCTE. Shiksha Mitras did not fall within the purview of the exemption granted either by clause (4) or by clause (5) of the notification dated 23 August 2010;
(V) The Regulations framed in 2009 by NCTE permitting the grant of a training qualification through the open and distance learning mode, properly construed, apply to a person who is validly appointed as a teacher. A 'working teacher' as defined in Appendix-9 to the Regulations of 2009 would govern a person whose appointment has been validly made under the applicable recruitment rules. In the context of the 1981 Service Rules which have held the field in the State of U P, this would cover only those teachers who were appointed after relaxing the norms governing eligibility and qualifications under Rule 10;
(VI) The proposal which was submitted by the State Government to NCTE for training of untrained Shiksha Mitras was for the provision of training to 1,24,000 graduate Shiksha Mitras. NCTE's approval dated 14 January 2011 was in response to this proposal of the State Government of 3 January 2011 for the training of graduate Shiksha Mitras. Yet, when the Government issued a Government Order dated 27 July 2012, it incorporated, in addition, training for 46,000 Shiksha Mitras who were only intermediate passed persons and were not covered by the permission which was granted by NCTE. The State violated the permission which was granted by NCTE which did not cover training through the open and distance learning mode to Shiksha Mitras;
(VII) The guidelines which have been framed by the Central Government under Section 35(1) of the RTE Act of 2009 on 8 September 2010 specifically provide that there can be no exemption from the acquisition of a TET as a minimum qualification for eligibility as a primary school teacher. The notification issued by NCTE on 23 August 2010 makes the holding of a TET certificate a mandatory requirement. Initially, when the State Government framed RTE Rules in 2011 under the RTE Act of 2009, the Rules followed the Central Rules of 2010. The Central Rules as well as the original Rules of 2011 framed by the State Government were made in view of the provisions of Section 23(2) of the RTE Act of 2009 which vests the power to grant a relaxation only in the Central Government. Initially, the State Government also amended the Service Rules of 1981 to bring them into conformity with the notification dated 23 August 2010 issued by NCTE by making the holding of a TET qualification mandatory. However, as a result of successive amendments which have been made to the Service Rules of 1981 as well as to the UP RTE Rules of 2011, the State Government has arrogated to itself the power to grant an exemption from the holding of minimum qualifications. This is a power which can be exclusively exercised by the Central Government and by the Central Government alone. The assumption of such a power by the State Government under Rule 16-A, as newly inserted, is ultra vires the provisions of Section 23(2) of the NCTE Act;
(VIII) The State Government has simultaneously purported to amend the Service Rules of 1981 so as to provide for the absorption of all Shiksha Mitras. The absorption of Shiksha Mitras is in violation of the principles which have been laid down by the Hon'ble Supreme Court in Secretary, State of Karnataka Vs Umadevi (3)18 and by a long line of precedents which has emerged thereafter. The State Government has purported to absorb 1,70,000 Shiksha Mitras in the face of the fact that these appointments were (i) made contrary to and de hors the Service Rules of 1981 which govern the services of teachers in junior basic schools; (ii) not made against sanctioned posts; (iii) in breach of the normal rule of recruitment and selection which apply to regularly appointed teachers; (iii) made without following norms of reservations in regard to the Schedule Castes, Scheduled Tribes and Other Backward Classes and other categories including horizontal reservation. The grant of regularisation or, as the case may be, absorption is fundamentally violative of Articles 14 and 16 of the Constitution; and
(IX) The Union Government in its counter affidavit which has been filed in these proceedings has indicated that there can be no exemption from passing the TET. NCTE has in its counter affidavit specifically made a grievance of the fact that the State Government had not informed it as to whether Shiksha Mitras were regularly appointed teachers or were appointed only for a specified duration.

B3 Submissions for the State Government
The learned Additional Advocate General, who has addressed arguments on behalf of the State, has urged the following submissions:

(I) The Scheme which was envisaged by the State Government of appointing Shiksha Mitras was in order to implement the provisions of Article 45 of the Constitution and in pursuance of the policy of SSA which was implemented by the Union Government. This will not fall within the mischief of the back door entry principle which has been laid down by the Supreme Court;
(II) Shiksha Mitras are teachers like other teachers in the service of the State and are engaged for imparting teaching in institutions conducted by the Basic Education Board since 1999. All Shiksha Mitras fall within the definition of the expression 'teacher' as provided in the Service Rules of 1981. Hence, they would be beneficiaries of clauses (4) and (5) of the notification issued by NCTE on 23 August 2010. As against a sanctioned strength of 3,28,220 teachers, there is a working strength of 2,32,136 Assistant Teachers including 1,70,000 Shiksha Mitras. There are 96,084 vacancies at present of which 87,825 vacancies have been advertised;
(III) Appointments of Shiksha Mitras were made in pursuance of the recommendations of Village Education Committees which have a statutory status under the provisions of Section 11 of the Basic Education Act of 1972;
(IV) Appendix-9 to the Regulations framed by NCTE in 2009 for open and distance learning courses provided for the imparting of training to 'working teachers'. Working teachers would mean not only teachers regularly employed by the State in pursuance of the Service Rules of 1981 but would also cover Shiksha Mitras. The eligibility as specified in Appendix-9 is a senior secondary certificate. Consequently, there was no infraction on the part of the State Government in mooting a proposal before NCTE for the training of Shiksha Mitras. The correspondence on the record would indicate that before the NCTE granted its approval on 14 January 2011, the State Government had mooted a proposal on 10 August 2010 which was followed up on 24 December 2010 and 3 January 2011 and by discussions with the officials of the Ministry of Human Resource Development of the Union Government. In seeking permission for the grant of training to Shiksha Mitras through the open and distance learning mode, the State Government duly disclosed that these were contractual appointments of persons who did not, at the relevant time, hold the qualifications prescribed in the Service Rules of 1981. There was no suppression of fact from the Union Government;
(V) The main objective of undertaking the training course was to deal with a shortage of teachers in the State of Uttar Pradesh which was remedied by training 1,70,000 Shiksha Mitras;

(VI) Shiksha Mitras engaged by the State Government, albeit on a contractual basis, were persons who fulfilled the qualifications prescribed in the Regulations of 2001 and in Appendix-9 of the Regulations of 2009 framed by NCTE, save and except for the training requirement which they did not possess. Subsequently, the training requirement has been duly completed in accordance with the permission granted by NCTE on 14 January 2011;

(VII) Approval and relaxation having been granted by a body competent to do so, there is no illegality in their absorption;

(VIII) The purpose of the guidelines issued by the Union Government on 2 February 2011 for conducting the TET under Section 35 has been fulfilled by the State Government by imparting training qualifications and hence, there is no illegality in the deviation made by the State Government from the norm of passing the TET;

(IX) Shiksha Mitras have worked for nearly 16 years and there was nothing arbitrary in the decision of the State Government seeking to absorb them into regular service. The mode of recruitment has been amended in the Rules so as to bring Shiksha Mitras into regular service of the State in pursuance of its Scheme; and

(X) The amendments made to the Service Rules of 1981 are not ultra vires.

B4 Submissions of NCTE

The learned counsel appearing for the NCTE has submitted that:
(I) NCTE was not apprised of the true nature and character of the appointment of Shiksha Mitras. Shiksha Mitras had evidently been appointed in violation of the Service Rules of 1981 and therefore their absorption was clearly unjustified;
(II) NCTE is the body/academic authority enjoined to prescribe the minimum qualifications required of teachers working in schools covered by the RTE Act. NCTE did not and never intended to exempt teachers in primary schools from obtaining the TET certification;
(III) The Central Government by its order dated 10 September 2012 has clarified that TET as a qualification has not been relaxed;
(IV) The amendments made in the Service Rules of 1981 are clearly beyond the domain of the state authorities as the power of relaxation stands reserved exclusively in favour of the Central Government under the provisions of the RTE Act;
(V) Admittedly the appointment of Shiksha Mitras was contractual for a period of 11 months and therefore it was incorrect to describe them as untrained teachers. Acquiring the TET qualification is essential with reference to the aims and objects of the RTE Act and the need for adherence to a national standard and benchmark liable to be possessed by all persons aspiring to be appointed as teachers of primary schools; and
(VI) There is no challenge to the inclusion of TET as a qualification either by the State or by the Shiksha Mitras.

B5 Submissions of Shiksha Mitras
The submissions which have been urged before the Court by the learned Additional Advocate General have been followed and adopted by learned counsel appearing on behalf of the respondent Shiksha Mitras.
The submissions urged by the supporting learned counsel are summarised hereafter:
(1) The proviso to Section 12-A would cover persons, such as the Shiksha Mitras in the State of Uttar Pradesh. The effect of Section 12-A is that their services should not be adversely affected by the introduction of a statutory provision empowering NCTE to lay down minimum qualifications for appointment of teachers of primary schools;
(2) NCTE obtained the power to frame Regulations under Section 12-A by the amendment of 2011 and actually exercised that power by notifying Regulations on 16 December 2014. Section 12-A contemplates that there must be a Regulation under the substantive provision. The proviso to Section 12-A protects the continuance of any person recruited under an order of the State Government whose services would not be adversely affected solely on the ground of non fulfillment of qualifications specified by NCTE. However, the qualifications would have to be acquired within the period specified in the RTE Act of 2009. Before NCTE notified its Regulations on 16 December 2014, the Shiksha Mitras had obtained their bachelor's degrees, and the training qualifications with permission of NCTE;
(3) There was no imbalance in the principle of reservation in the recruitment of Shiksha Mitras since, broadly, the appointments of Shiksha Mitras followed the same category for which the post of Gram Pradhan was reserved in the case of each Gaon Sabha;
(4) Shiksha Mitras were not recruited through the back door but by the procedure prescribed by the State itself; and
(5) Clause (4) of the notification issued by NCTE contemplates the grant of an exemption to persons with a BEd (Special Education) and DEd (Special Education) qualification. These are not qualifications maintained in the Regulations of 2001. Since such persons were basically untrained and have yet been given an exemption from the requirement of passing the TET, Shiksha Mitras should, by parity of reasoning, be entitled for the same benefit.

Moreover, it has also been urged that, as a part of the exercise which has been conducted by the Court in these proceedings, the following issues would require determination:
(1) Whether the appointment of Shiksha Mitras in pursuance of the Government Order dated 26 May 1999 was of a statutory character;
(2) Whether the State Government did have the power, by virtue of Section 13(1) of the Basic Education Act 1972 and having due regard to the provisions of Entry 25 of the Concurrent List to the Seventh Schedule, to issue the Government Order dated 26 May 1999;
(3) Whether the Government Order dated 26 May 1999 can be regarded as a valid exercise of power under Article 162 of the Constitution, where the Service Rules of 1981 were silent in regard to the appointment of untrained teachers;
(4) Whether the Village Education Committees had a statutory character by virtue of Section 11 of the U P Basic Education Act, 1972;
(5) Whether the appointment of Shiksha Mitras can be regarded as being made against substantive posts, since the number was determined in the ratio of students to teachers in the proportion of 1:40;
(6) Whether the permission granted by NCTE on 14 January 2011 is a valid permission under Section 16(3)(d) of the NCTE Act;
(7) Whether the petitioners could be regarded as being persons aggrieved to challenge the permission granted by NCTE;
(8) Whether the effort on the part of the State to grant training to untrained teachers can be regarded as a reasonable effort and not mala fide;
(9) Whether the appointment of Shiksha Mitras has been duly protected by the proviso to Section 12-A and could be validly brought into the regular cadre of Assistant Teachers by amendment of the Service Rules of 1981;
(10) Whether the power of NCTE to lay down minimum qualifications could only be exercised by framing Regulations under Section 32 of the NCTE Act; and
(11) Would the effect of the insertion of Section 12-A suspend the effect and operation of the notification dated 23 August 2010.
PART C : ANALYSIS

The submissions now fall for consideration.

C1 Nature of appointment of Shiksha Mitras


The Uttar Pradesh Basic Education Act was enacted in 1972 to regulate the imparting of education up to the eighth standard. The Board of Basic Education was constituted by the Act to regulate the imparting of basic education teachers' training and the conduct of basic training certificate examinations. When it was enacted, the Act envisaged transfer of control over basic schools from Zila Parishads in the rural areas and the Municipal Boards and Mahapalikas in the urban areas to the Basic Education Board. Subsequently, as we have noted, by the amendment which the state legislature brought about in 2000, statutory duties in regard to the conduct of basic education including control over basic schools was transferred to gram panchayats and municipalities subject to the over all control of the State Government. When the State Government formulated the Uttar Pradesh Basic Education (Teachers) Service Rules 1981, specific provisions were made in regard to the services of teachers to be engaged for imparting instruction in basic schools, junior basic schools or senior basic schools. The junior and senior basic schools covered the entire canvas of primary education from classes I to VIII. The Service Rules of 1981 contemplate the creation of a separate cadre of service for each local area under Section 4. Consistent with the norm of government control over basic education, the strength of the cadre of the teaching staff for each local area and the number of posts in the cadre are required to be determined by the Board of Basic Education with the previous approval of the State Government. Recruitment to the posts of Assistant Teachers in junior basic schools is to take place by direct recruitment as provided in Rule 5(a)(2). Rule 8 spells out the academic qualifications required for appointment of Assistant Teachers in a junior basic school. As it was originally framed, the requirement was of an intermediate qualification and a basic teacher's certificate or a qualification equivalent. Since under the Rules, cadres to govern the service of teachers of basic schools were created, a provision is made in Rule 9 for reservation for the Scheduled Castes, Scheduled Tribes, Other Backward Classes as well as for other categories provided in governmental orders including dependents of freedom fighters and ex-servicemen. Rule 10 stipulates the grant of a relaxation in favour of certain specified categories from the age and qualification norms laid down in the rules as well as in regard to the procedural requirements for recruitment. The Rules contain specific provisions in regard to the manner in which the appointing authority would determine the number of vacancies, the extent of vacancies reserved, the manner in which vacancies would be advertised, the placement of candidates for the purpose of selection, the constitution of Selection Committees and the manner of appointment. Provisions are also made in regard to other consequential matters of an essential nature associated with the constitution of a service including seniority, placement on probation, confirmation, scales of pay and superannuation. In the case of teachers recruited through direct recruitment for teaching a language, the Rules make a provision for a written examination and the evaluation of candidates on the basis of marks obtained in the examination and quality points. This is the statutory framework which has consistently held the field in the State of Uttar Pradesh at all material times after the Service Rules came to be framed in 1981.
The Shiksha Mitra Scheme was introduced by the Government Order dated 26 May 1999. Clause 1 deals with the concept of Shiksha Mitra. It provides that a person possessing educational qualifications upto intermediate level be engaged by the Village Education Committee constituted under the Act of 1972 Act on a contractual basis and on the payment of honorarium taking into consideration the local requirement at the Gram Sabha level. Such a person shall be called a Shiksha Mitra. Clause 7 provides that the engagement of a Shiksha Mitra would be only for an academic year on a contractual basis and the engagement shall automatically come to an end on 31 May.
The subsequent Government Order dated 1 July 2001, however, provides that the term of a Shiksha Mitra can be extended provided the teaching work and conduct are found to be suitable. This Government Order also contains two proformas. The first is in regard to the application to be submitted by a Shiksha Mitra for seeking engagement, while the second is in connection with the acceptance letter to be submitted by a Shiksha Mitra. The application to be submitted requires applicants to mention that they are applying for seeking engagement in community service. The acceptance letter requires the applicant to specifically state that he/she would perform teaching work as a social worker and will not consider himself or herself to be in the employment of the State Government/Board. The applicant has also to state that for this social service, he/her would not claim any wages and would be entitled only to payment of honorarium.
The essential characteristics of the Shiksha Mitra Scheme envisaged, firstly, that each appointment was made on a contractual basis for a stipulated term of eleven months, renewable subject to satisfactory performance and on an honorarium. Secondly, the Scheme, as notified, contemplated that the engagement of Shiksha Mitras was not in the regular service of the State, as indeed it could not have been, having due regard to the provisions of the Service Rules of 1981 which held the field in regard to the constitution of a cadre of teachers imparting basic education and regularly engaged for that purpose. Thirdly, each of the persons appointed as Shiksha Mitras was placed on notice of the fact that this was a Scheme envisaging service by the unemployed youth for the benefit of the community against the payment of an honorarium. Shiksha Mitras were not entitled to the payment of a salary in the regular pay scale but would only receive a Mandeya (honorarium). The application form which every prospective candidate was required to fill up in terms of the Government Order dated 1 July 2001, envisaged a statement of acceptance that the candidate would be bound by the terms and conditions governing the Scheme. The consent form required to be filled in by every candidate envisaged that he/she would not be treated as a regular employee of the State Government and would only be entitled to the payment of honorarium. Moreover, Clause 3 of Form-II appended to the Government Order stipulated that the training which was imparted to a candidate was only to enable him or her to render community service in the capacity of a Shiksha Mitra. Fourthly, appointments as Shiksha Mitras were not against sanctioned posts as determined by the Board of Basic Education with the previous approval of the State Government under Rule 4 of the Service Rules of 1981. Fifthly, the manner of making appointments and the procedure for recruitment was not in conformity with the provisions contained in Rules 14, 15, 16 and 17 of the Service Rules of 1981. Instead, what the Shiksha Mitra Scheme envisaged, was that appointments should be made by Village Education Committees at the village level. At the district level, there was a Committee chaired by the District Collector and consisting, inter alia, of the District Panchayat Raj Officer and the Basic Education Officer. The District Level Committee was constituted to oversee the implementation of the Scheme in the district. Sixthly, the qualification which was prescribed for appointment as a Shiksha Mitra under the Government Order dated 26 May 1999 was the possessing of an intermediate qualification. Prior thereto, an amendment was made in the Service Rules on 9 July 1998 by which Rule 8 was amended to prescribe the holding of a graduate degree for appointment as a regular teacher. Under the Service Rules of 1981, a regular teacher was required to also possess a basic teacher's certificate. This was not a requirement for Shiksha Mitras under the Government Order. Shiksha Mitras did not fulfill the qualifications for a regular teacher under the Service Rules of 1981. Seventhly, the manner in which reservations were to be worked out under the Rules of 1981 was evidently not the manner in which reservations in the recruitment of Shiksha Mitras would operate. At the highest, what has been urged before the Court by the Additional Advocate General and supporting counsel is that the selection of Shiksha Mitras at the village level envisaged that a Shiksha Mitra to be appointed should belong to the same category as the Gram Pradhan, thereby resulting in a rough and ready adoption of the norm of reservation. This is certainly not the manner in which the policy of reservation as envisaged by the State is implemented in the case of regularly selected candidates, including by the application of the roster and implementing horizontal and vertical reservations. Rule 9, it must be noted, envisages reservation not only for the Scheduled Castes, Scheduled Tribes and Other Backward Classes, but other categories also including the dependents of freedom fighters and ex-servicemen. Moreover, the orders of the State Government also contemplate horizontal reservation across various classes. These aspects leave no manner of doubt that the engagement of Shiksha Mitras was envisaged under an administrative scheme by the State Government on a contractual basis with a specified purpose and object and de hors the governing provisions of the applicable Service Rules of 1981.
The object and purpose of engaging Shiksha Mitras, the learned Additional Advocate General stated before the Court, was to implement the Sarva Shiksha Abhiyan in relation to the State of Uttar Pradesh. While notifying the SSA policy, the Union Government, in fact, envisaged a mission mode for the provision of community owned modalities for propagating universal elementary education. SSA acknowledged that States had their own norms for recruitment of teachers and would consequently be free to follow their own norms so long as they were consistent with the norms established by NCTE.
The fact that the number of persons engaged as Shiksha Mitras may have been determined on an application of a teacher-student ratio of 1:40, is not an indicator that the Shiksha Mitras were appointed to sanctioned posts. They did not belong to the regular cadre and were contractual appointees. They were not appointed against sanctioned posts. The Union Government, in formulating SSA, envisaged the application of the Gujarat model of recruitment of fully trained teachers on fixed pay, as an interim strategy in states with large scale teacher vacancies. The policy was envisaged to improve the accountability of teachers vis-a-vis the local community without diluting the standards for selection of teachers as laid down from time to time by NCTE. Persons who were engaged as Shiksha Mitras in the State of Uttar Pradesh were engaged on the basis of their possessing only the intermediate qualification, without possessing a certificate of training as prescribed by Rule 8 of the Service Rules of 1981. By the time Sarva Shiksha Abhiyan was circulated as a policy for implementation by the Union Ministry of Human Resource Development on 31 July 2001, the Regulations of 3 September 2001 had also been notified by NCTE. The SSA policy document, therefore, clearly envisaged that there would be no dilution of the standard for selection of teachers as laid down from time to time by NCTE.
The nature of the appointment of Shiksha Mitras in the State of Uttar Pradesh came up for consideration before a Full Bench of this Court in Km Sandhya Singh Vs State of Uttar Pradesh 
19. The Full Bench held as follows:

"It could not be disputed by the petitioners that the scheme for appointment of Shiksha Mitra came into being through the government orders i.e. executive instructions. To put it differently, the petitioners' appointment/selection is contractual appointment as Shiksha Mitra. Meaning thereby, there is no statutory backing to the petitioners' claim. The petitioners' argument proceeds on the footing that the post of Shiksha Mitra is a civil post and is governed by the principle of statutory service rules. The scheme itself provides that a person shall be allowed to function as Shiksha Mitra under a contract for a fixed period which will come to an end on 31st of May of the next year. No honorarium shall be payable for the month of June. The scheme shows that it will commence in the month of July of each year and will end on 31st of May i.e. for eleven months. By modification it has been provided that if nothing is there against a person he may continue as Shiksha Mitra for the next academic session, subject to receiving a short refresher training. All this cumulatively shows that the tenure of Shiksha Mitra is a fixed term tenure, maximum up to the period of eleven months which, of course, in view of the subsequent amendments by the Government Order can be renewed for subsequent academic sessions."


The Full Bench cited with approval the observations contained in a judgment of a Division Bench of this Court presided over by Chief Justice H L Gokhale (as His Lordship then was) in Sanjay Kumar Singh Vs State of UP 20, where it was held as follows:
"Everybody is forgetting that the scheme of Shiksha Mitra is to spread education and it is not a scheme for employment. What is being given is an honorarium to the concerned teacher. The appointment comes to an end at the end of the academic year, with right to continue if the performance is good."


These observations of the Division Bench in Sanjay Kumar Singh's case and of the Full Bench in Km Sandhya Singh are we say with respect, a correct assessment of the Shiksha Mitra Scheme.
The submission which has been urged on behalf of the State and by some of the supporting counsel, is that Section 11 of the U P Basic Education Act, 1972 contemplates the constitution of Village Education Committees. This does not render the Shiksha Mitra Scheme a statutory scheme. The function of Village Education Committees as defined in sub-section (2) of Section 11 is to establish, administer, control and manage basic schools in the Panchayat area and to discharge such other functions pertaining to basic education as may be entrusted by the State Government. This, in our opinion, does not render the Scheme of appointing Shiksha Mitras of a statutory nature or character. If such a Scheme was to be intended to have a statutory flavour, there could have been no escape from the requirement of complying with the norms which govern the regular teachers of basic schools as prescribed in the Service Rules of 1981. On the contrary, compliance with the Service Rules of 1981 was sought to be obviated by engaging barefoot volunteers across the State on a contractual basis for which an administrative scheme was envisaged under the Government Order dated 26 May 1999. Similarly, the power of the State Government to issue directions to the Board of Basic Education in Section 13 was not the power which the State Government wielded while issuing diverse Government Orders that govern the Shiksha Mitra Scheme. The power to issue directions under Section 13 could not have been exercised contrary to the provisions of the Service Rules of 1981 which were made by the State Government in exercise of the subordinate law-making power. Even if it is held that Village Education Committees were entrusted with the duty of selecting Shiksha Mitras in pursuance of the provisions of Section 11(2)(g), the fact remains that appointments of Shiksha Mitras were independent of and not subject to the discipline of the provisions of the Service Rules of 1981. Neither was the engagement against sanctioned posts nor were the provisions for recruitment envisaged in the Service Rules of 1981 followed. They were not qualified candidates. Understanding the true nature and purpose of Shiksha Mitras lies at the heart of the dispute in the present case.
Having elaborated on this aspect, it would now be necessary to deal with the regulatory provisions contained, firstly in the NCTE Act and the later enactment of the RTE Act of 2009.


C2 NCTE Act 1993 and RTE Act 2009: The effect of Section 23

The NCTE Act, 1993 was enacted by Parliament in order to achieve planned and coordinated developed of teacher education. The expression 'teacher education' in Section 2(l) covers programmes of education, research or training in order to equip individuals to teach at the pre-primary, primary, secondary and senior secondary stages, and to include non-formal education, part- time education, adult education and correspondence education. NCTE, as a statutory body, is constituted in accordance with the provisions of Chapter II of the Act to ensure planned and coordinated development of teachers and for maintenance of norms and standards of teacher education. The functions of NCTE under Section 12 are not confined to primary education alone and this would assume significance having due regard to the ambit and sweep of the NCTE Act when it is considered in juxtaposition to the RTE Act of 2009 which was made specifically in the context of providing the right of free and compulsory elementary education. The powers of NCTE under the NCTE Act, 1993 include the grant of recognition to teacher education institutions for which provisions are made under Chapter IV. By the Act, NCTE is given a substantive power to frame Regulations in Section 32. Included in the range of its regulatory powers in clause (d) of sub-section (2) of Section 32 is the power to lay down norms, guidelines and standards in respect of the minimum qualifications for a person to be appointed as a teacher and in respect of specified categories of courses or training in teacher education under clause (e) of Section 12. A broad range of statutory powers is entrusted to NCTE in the legislation enacted by Parliament in 1993. The range of its functions is evident from the nature of the subjects brought within the control of NCTE by Section 12.
NCTE framed, on 3 September 2001, Regulations in the exercise of its statutory powers. In the Regulations which were notified and published in the Gazette of India on 4 September 2001, NCTE laid down qualifications for the recruitment of teachers including at the elementary level. The elementary level included primary school teachers where the prescribed qualification was (i) a senior secondary school certificate or intermediate or its equivalent and (ii) a diploma or certificate in basic teacher's training of a duration of not less than two years or a bachelor's degree in elementary education. For the upper primary sections, the prescribed educational qualification is the same as for the primary level and a diploma or certificate in elementary teachers training of a duration of not less than two years or a graduate degree with a Bachelor of education or its equivalent. In a Note which is appended to the First Schedule, NCTE clarified that for teaching in primary schools, a basic teachers training programme of two years' duration is required and that the BEd is not a substitute. The striking aspect, insofar as the present case is concerned, is that Shiksha Mitras who were engaged after 1999 did not when they were appointed fulfill the requirement which was spelt out in the NCTE Regulations of 3 September 2001. None of them fulfilled the requirement of a two year basic teachers training certificate.
Parliament enacted the RTE Act of 2009 to implement the provisions of Article 21-A of the Constitution which mandates the State to provide free and compulsory education to all children between the ages of six and fourteen. The definition of the expression 'child' in Section 2(c) covers children in this age group and the expression 'elementary education' in Section 2(f) makes it abundantly clear that education from classes I to VIII forms the subject matter of the enactment of 2009.
Section 23 of the RTE Act of 2009 provides in sub-section (1) for eligibility for appointment as a teacher. Under sub-section (1) of Section 23, to be eligible for appointment as a teacher, a person has to possess such minimum qualifications as are "laid down" by an academic authority authorised by the Central Government by a notification. NCTE was designated as the authority under sub-section (1) on 31 March 2010. Sub-section (2) of Section 23 recognises that a state may not have adequate institutions offering courses or training in teacher education. Sub-section (2) also constitutes an acknowledgement by Parliament of a situation where teachers possessing the minimum qualifications laid down under sub-section (1) may not be available in sufficient numbers in a state. Having due regard to this eventuality, the Central Government was statutorily vested with the authority under sub-section (2) to relax the minimum qualifications laid down under sub-section (1) for appointment as a teacher. The Central Government was left with the discretion to define the period over which the relaxation is to remain operative subject to the stipulation that this would operate for a period not exceeding five years. The proviso to sub-section (2) of Section 23 envisages that a teacher who, at the commencement of the Act, does not possess the minimum qualifications as laid down in sub-section (1) would acquire them within a period of five years. The provisions contained in sub-section (1) and those in the substantive part of sub-section (2) and the proviso comprise of a composite statutory scheme. By sub-section (1), an authority which is notified by the Central Government is to prescribe qualifications defining the conditions of eligibility for appointment as a teacher. Under sub-section (2), the Central Government is permitted to grant a relaxation of those qualifications for a period of not more than five years. While the laying down of qualifications is entrusted to the authority under sub-section (1), the power to grant a relaxation is conferred upon the Central Government under sub-section (2). The proviso deals with those teachers who, on the date of the commencement of the Act, did not possess minimum qualifications prescribed under sub-section (1) and to such teachers a window of five years was granted to acquire the minimum qualifications.
The Central Government authorised the NCTE as the academic authority to lay down the minimum qualifications for a person to be eligible for appointment as a teacher by a notification dated 31 March 2010 issued in exercise of the powers conferred by Section 23 (1) of the RTE Act of 2009. NCTE notified the minimum qualifications required for appointment as a teacher in terms of sub-section (1) of Section 23 by its notification on 23 August 2010 defining eligibility for appointment as a teacher to classes I to VIII in a school covered by Section 2(n) of the RTE Act of 2009. The minimum qualifications prescribed by NCTE envisaged broadly (i) a senior secondary certificate; (ii) a diploma in elementary education; and (iii) passing of the TET to be conducted by the appropriate government in accordance with NCTE guidelines. These were the qualifications prescribed for teachers of classes I to V and corresponding qualifications were also prescribed in the notification dated 23 August 2010 in relation to teachers of classes VI to VIII. Both for teachers of classes I to V and for those of classes VI to VIII, NCTE made the passing of the TET mandatory. Clause 3 of the notification provided for a post-appointment training under an NCTE recognized six month special programme in elementary education in the case of two categories: the first being for those with a BA/BSc degree and BEd qualification, and the second for those with a BEd (Special Education) or DEd (Special Education).
While laying down the minimum qualifications in clause (1) of the notification, NCTE dealt in Para 4 with the issue of those teachers appointed for classes I to VIII prior to the date of the notification. In their case, it was mandated that acquisition of minimum qualifications in Para 1 would not be necessary in three categories. The first category was of teachers appointed on or after 3 September 2001 when the Regulations of 2001 had come into force, in accordance with those Regulations. The expression 'in accordance with that Regulation' meant that in order to avail of the benefit of clause (a) of Para 4, a teacher had to be appointed in accordance with the Regulations of 3 September 2001 and after the date of enforcement of the Regulations. To be a teacher appointed "in accordance with that Regulation", a person had to have both the educational qualifications prescribed (senior secondary school certificate or intermediate or an equivalent) and a diploma or certificate in basic teachers training (for primary classes from standard I to V.) Similarly, in the case of a teacher of the upper primary classes for standards VI to VIII, the teacher was required to possess both a senior secondary school certificate or intermediate or its equivalent and either a diploma or certificate in elementary teachers' training of two years or a graduation with BEd or its equivalent. In other words, in order to avail of the benefit of clause (a) of Para 4 of the notification dated 23 August 2010, the mandatory condition was that the appointment had to be made after 3 September 2001 in accordance with the Regulations.
The second category to which it was provided that the minimum qualification would not apply, were teachers of classes I to V with a BEd qualification who had completed a six months' special BTC course approved by NCTE.
The third category comprised of teachers appointed before 3 September 2001. These teachers were appointed before the Regulations came to be notified for the first time by NCTE under the NCTE Act of 1993. Teachers appointed in accordance with the prevalent recruitment rules were governed by clause (c) of Para 4 of the notification.
The notification dated 23 August 2010 was subsequently amended by a notification dated 29 July 2011. The minimum qualifications for a person to be eligible for appointment as an Assistant Teacher contained in sub-paras (i) and (ii) of Para (I) of the principal notification were substituted.
Evidently, Shiksha Mitras could not either seek the benefit of clause (a) or clause (c) of Para 4 of the notification dated 23 August 2010. They were not teachers appointed in accordance with the Regulations of 3 September 2001 since, admittedly they did not possess the BTC qualification. Moreover, Shiksha Mitras did not have the benefit of clause (c) of Para 3 since any appointment made prior to 3 September 2001 had to be in accordance with the prevalent recruitment rules. The engagements of Shiksha Mitras were de hors the recruitment rules and were not in accordance with the Service Rules of 1981 which apply to appointments of basic teachers in the State of Uttar Pradesh. The proviso to sub-section (2) of Section 23 governs persons who are teachers and who, at the commencement of the RTE Act of 2009, did not possess the minimum qualifications prescribed under sub-section (1). They were given a period of five years to acquire the minimum qualifications. The proviso would govern persons who were recruited as teachers in the State of Uttar Pradesh under the Act and the Service Rules of 1981 and can have no application to Shiksha Mitras.




C3 Amendments of 2011 to NCTE Act

Now, at this stage, it would be necessary for the Court to dwell, briefly, on the legislative history which led to the amendments to the NCTE Act of 1993 in 2011.
In Basic Education Board, Uttar Pradesh Vs Upendra Rai21, a Bench of two learned Judges of the Supreme Court held that the NCTE Act deals only with teachers training institutions and had nothing to do with ordinary educational institutions, such as primary schools, high schools and intermediate colleges. The view which was taken was that qualifications for appointment as teachers in 'ordinary' educational institutions, like primary schools, could not be prescribed under the NCTE Act. The correctness of the judgment in Upendra Rai was referred to a larger Bench of the Supreme Court in Irrigineni Venkata Krishnanand Vs Government of Andhra Pradesh22.
During the pendency of the reference to the Bench of three learned Judges of the Supreme Court, Parliament enacted Amending Act 18 of 2011 to provide for the insertion of Section 12-A into the NCTE Act of 1993. Section 12-A contemplates that NCTE 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 schools or colleges run, aided or recognised by the Central Government, State Government or a local authority. Section 12-A was introduced by Parliament to explicitly provide for a power in NCTE of a nature that the Act had contemplated in the power to frame regulations under Section 32(2)(d). The Statement of Objects and Reasons accompanying the introduction of the Bill in Parliament clarified that the intent of Parliament in introducing the amendment was of a clarificatory nature. The proviso to Section 12-A stipulated that nothing in the Section shall affect adversely the continuance of any person recruited under a rule, regulation or order of the Central or State Government or local or other authority, immediately before the commencement of the Amending Act, on the ground of non-fulfillment of such qualifications as may be prescribed by the NCTE. However, the minimum qualifications were required to be acquired within the period specified under the NCTE Act or under the RTE Act of 2009. The effect of the proviso was to ensure that while NCTE was recognised to possess a regulatory power to determine the qualifications for recruitment of teachers including in primary or upper primary schools, the insertion of Section 12-A would, by itself, not affect the continuance of a person who was recruited in pursuance of rules, regulations or orders of the government or authority concerned. Section 12-A was a provision which was introduced by way of abundant caution so as not to affect the continuance of such persons. Section 12-A is not a validation of the appointments of Shiksha Mitras nor, for that matter, does it elevate the engagements of such persons from a pure contractual level to anything higher. Section 12-A is intended to ensure that the objection to the regulatory power of NCTE over teachers of educational institutions other than teacher training institutions which had found acceptance in a judgment of two learned Judges of the Supreme Court in Upendra Rai, was placed beyond the pale of controversy. Hence, when the reference before a larger Bench of the Supreme Court came up for consideration, the Bench of three learned Judges held that, as a result of the subsequent amendments, the questions which were referred to the larger Bench had become academic and did not require any answer. Section 12-A does not deal with the nature of the appointments of Shiksha Mitras nor does it place them on a higher or surer legal footing than as contractual appointees.

C4 Training imparted to Shiksha Mitras
The next aspect of the matter which needs to be analysed is the training which was imparted to Shiksha Mitras in the State of Uttar Pradesh in pursuance of the permission which was granted by NCTE on 14 January 2011. NCTE framed Regulations in 2009 to prescribe recognition norms and procedures. Regulation 3 provides that the Regulations apply to all matters related to teacher education programmes covering norms, standards and procedure for recognised institutions, the commencement of new programmes and the addition of sanctioned intake to existing programmes. Appendix-9 to the Regulations of 2009 lays down standards for a diploma in elementary education through the open and distance learning system. As the Preamble to Appendix-9 indicates, this was intended primarily for upgrading the professional competence of "working teachers" in elementary schools and for bringing into its fold those teachers who had entered into the profession without formal teacher training. NCTE accepted the open and distance learning system as a viable mode for the training of teachers presently serving in the elementary schools and for additional educational support to the teachers and educational functionaries working in the school system. Eligibility is defined in sub-clause (2) of Clause 5 of Appendix-9 to cover (i) senior secondary (class XII) or equivalent examinations passed with fifty percent marks; and (ii) two years' teaching experience in a government or government recognised primary/elementary school.
The State Government moved the Central Government for the grant of permission on 24 December 2010 in which it disclosed the functioning of 1.78 lac Shiksha Mitras of whom 1,24,000 were stated to be graduates. The State Government indicated in its letter that these persons were engaged on a contract basis and with a stipulation of a minimum qualification of intermediate though, under the service rules, the prescribed qualification was a graduate degree. Subsequently, on 3 January 2011, a revised proposal was submitted which envisaged training being imparted to 1,24,000 graduate Shiksha Mitras out of a total complement of 1,70,000. The permission which was granted by NCTE on 14 January 2011 was specifically in the context of the request made on 3 January 2011 for granting permission for the training of 1,24,000 untrained graduate Shiksha Mitras. Eventually, what seems to have transpired was that the State Government issued a Government Order on 14 August 2012 so as to provide for training to those Shiksha Mitras who had acquired graduate degrees by 25 July 2012. However, it is not in dispute before this Court that training was imparted not only to graduate Shiksha Mitras who were within the terms of the permission granted by NCTE by its letter dated 14 January 2011, but also to 46,000 Shiksha Mitras holding the intermediate qualification which was not within the purview of the permission which was granted by NCTE on 14 January 2011. NCTE had not permitted the State of U P to train the non-graduate Shiksha Mitras through the open and distance learning methodology. NCTE, we must note, has stated in its counter affidavit filed in these proceedings, that it was not specifically apprised of the nature of the engagement of Shiksha Mitras by the State. The counter affidavit which has been filed by NCTE, insofar as is material, reads as follows:
"That the rationale for including the T.E.T. as minimum qualification for a person to be eligible for appointment as a teacher is that it would bring national standards and benchmark to quality teaching before the recruitment process is completed for appointing a candidate as a trained teacher.

That it is pertinent to mention here that since the State Authorities have not clearly sent the report that initial engagement of Shiksha Mitras was for a period of 11 months, as such the nomenclature of these Shiksha Mitras as untrained teacher was not in consonance with the provisions so issued after the Right of Children to Free and Compulsory Education Act, 2009 came into effect."

The State has disputed this.

However, the fact which remains is that the NCTE did not proceed to revoke the permission which was granted by it on 14 January 2011 at any stage. The eligibility qualification prescribed in Appendix-9 is intermediate. Hence, at this stage, this Court deems it inappropriate, in the considered exercise of its writ jurisdiction under Article 226 of the Constitution, to issue a direction which would have the effect of nullifying or abrogating the training qualifications which have been imparted to a large body of persons by the State Government. However, this would not preclude NCTE from duly verifying compliance with the conditions prescribed by it and particularly whether the training imparted is in accord with NCTE norms and standards.

C5 Amendments to the State RTE Rules 2011 and the Service Rules of 1981


That leads the Court to the final aspect of the matter which relates to the amendment made by the State Government in the RTE Rules of 2011 framed under the RTE Act 2009 and in the Service Rules of 1981.
The basic premise with which the discussion on this aspect must commence is that under Section 23(2) of the RTE Act 2009, the power to grant a relaxation from the minimum qualifications which are laid down by NCTE is vested exclusively in the Central Government. Parliament while enacting the legislation has carefully envisaged that minimum qualifications would be prescribed by NCTE under sub-section (1) of Section 23. The nature and extent of the relaxation under sub-section (2) is to be determined by the Central Government. In deciding whether to grant a relaxation, the guiding principles are laid down in the substantive part of sub-section (2). The Central Government has to determine whether or not the state has adequate institutions offering courses or training in teacher education or teachers possessing the minimum qualifications as laid down under sub-section (1).
The Central Government has exercised powers under sub-section (2) of Section 23 on 10 September 2012. The Union Ministry of Human Resource Development, in its notification, has granted a relaxation until 31 March 2014 only in respect of persons referred to in sub-clause (a) of Clause (1) of Para 3 of the notification dated 23 August 2010 as amended. This category covers persons with BA/BSc degrees with at least fifty percent marks and holding a BEd qualification. While issuing a notification on 10 September 2012 for the purpose of relaxing the qualifications under Section 23(2) in regard to a limited category of persons, the Central Government has also clarified that this shall be a 'one time relaxation' and that no further relaxation under Section 23(2) shall be granted in the State of Uttar Pradesh. The Union Government has also directed that the State Government shall take steps to increase institutional capacity for preparing persons with specified qualifications so as to ensure that only persons possessing the qualifications laid down under the said notification are appointed as teachers for classes I to V after 31 March 2014. No relaxation has been granted by the Central Government in terms of the provisions of sub-section (2) of Section 23 to obviate compliance by Shiksha Mitras with the minimum qualifications laid down. NCTE has also issued Regulations on 12 December 2014 under the NCTE Act stipulating that the qualifications for primary and upper primary teachers shall be those as prescribed by its notification dated 23 August 2010 under Section 23(1) of the RTE Act of 2009.
Rules were formulated by the Central Government in 2010 under the RTE Act of 2009. The Rules being subordinate legislation could not have and did not prescribe any norm at variance with what was prescribed under sub-section (2) of Section 23. Rules 15, 16 and 17 of the Rules framed by the State Government in 2011 under the RTE Act of 2009 envisage that (i) the State Government would move the Central Government for relaxation of the prescribed minimum qualifications if teachers possessing the prescribed minimum qualifications are not available; and (ii) no appointment of a teacher for any school shall be made in respect of a person not possessing the minimum educational qualifications prescribed under Rule 15 without a notification of the Central Government under sub-rule (3) of Rule 16.
What has happened in the State of Uttar Pradesh is that the State Government, in a clear violation of the mandate of Section 23(2) which vests the power to relax the minimum qualifications in the Central Government, has arrogated to itself a power which it lacks, to grant exemption from the mandatory qualifications which are laid down by NCTE in their application to Shiksha Mitras in the State. The State Government has, in our view, acted in clear violation of its statutory powers. Parliament has legislated to provide, in no uncertain terms, that any relaxation of the minimum educational qualifications can only be made by the Central Government. However, Rule 16-A which has been introduced by the State Government by a notification dated 30 May 2014 purports to provide a non-obstante provision which will operate notwithstanding anything contained in Rules 15 and 16 of the State Rules. Rules 15 and 16 of the State Rules were originally formulated in a manner consistent with the provisions of Section 23(2) and the provisions contained in Rules 17 and 18 of the Central Rules of 2010. However, as a result of the introduction of Rule 16-A, the State Government has assumed to itself the power to make provisions for relaxing the minimum educational qualifications for appointment of Shiksha Mitras as Assistant Teachers in junior basic schools "as are considered otherwise eligible and in order to implement the provisions of the Act". There can be no manner of doubt that far from implementing the provisions of the Act, the State Government by its amendment of the subordinate legislation has purported to negate the very object and purpose of the RTE Act of 2009.

C6 Extent of the rule-making power

The provisions of Section 38 of the RTE Act of 2009 confer a rule making power on the appropriate government. In exercise of the above powers the State had framed the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011. A reading of sub-section (2) of Section 38 establishes that the only clause which could be said to touch upon the issue raised before us would be clause (l) thereof.
Clause (l) confers a power upon the State to frame rules on the following subject matter:
"The salary and allowances payable to, and the terms and conditions of service of, teacher, under sub-section (3) of Section 23.'

Sub-section (3) of Section 23 provides as follows:

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

The power to frame a rule like Rule 16-A as inserted by the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules, 2014 is liable to be tested in the above background.

The power to fix qualifications is conferred upon an authority to be designated by the Central Government under sub section (1). The power to relax as we have found stands conferred upon the Central Government alone under sub-section (2) of Section 23. The subject of qualification of teachers and relaxation thereof stands encompassed in sub-sections (1) and (2) of Section 23.
In our view, the subject matter of qualification of teachers cannot fall within the expression "salary and allowances" or "terms and conditions of service" as employed in sub-section (3) of Section 23. This is not just because the "qualification of teachers" would not fall within the above expressions when accorded their plain and literal meaning but also on account of the fact that the power to fix such qualifications stood conferred on two different authorities specified as such in sub-sections (1) and (2) of Section 23. The field thus stood occupied completely. Obviously, therefore, when the State framed a rule under Section 38(2)(l), the same could not have been utilized to fix a qualification or to relax one fixed by the authority under sub-section (1). For these reasons also we are unable to sustain the provision made in Rule 16-A.


C7 Extent of State power under Article 162 to order regularisation

In State of UP Vs Neeraj Awasthi23, the Supreme Court considered the issue of a State direction refusing to accord approval to a regulation sought to be framed for regularization of illegal appointments. The Supreme Court approved the principles enunciated in the following cases:

(a) A Umarani Vs Registrar, Coop Societies24 where it was held that:
"45. No regularization is, thus, permissible in exercise of statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules."

(b) Mahendra L Jain Vs Indore Development Authority25 where it was held that:

"... An illegal appointment cannot be legalized by taking recourse to regularization. What can be regularized is an irregularity and not an illegality..."

In Neeraj Awasthi, the Supreme Court observed that:

"57. If no appointment could be made by the State in exercise of its power under Article 162 of the Constitution as the same would be in contravention of the statutory rules, there cannot be any doubt whatsoever that the Board or for that matter the Market Committee cannot make an appointment in violation of the Act and Regulations framed thereunder."

C8 Experience on the job is not a substitute for qualification

The contention that the experience gained by Shiksha Mitras over the course of their engagement should obviate the need of obtaining the essential qualification cannot be accepted for more than one reason. Firstly, the essential qualification must be held by the person on the date of entry into the service. If the entry be preceded by a selection process it is liable to be tested with reference to the date of advertisement. Viewed from any angle, the Shiksha Mitras did not possess the requisite qualification on either of the relevant cut off dates. Secondly, the experience that may have been gained by a person has never been construed as a substitute for an essential qualification that is statutorily prescribed. Acceptance of this contention would have grave ramifications, fall foul of settled precedent on the subject and be against the basic tenets of Article 16 and principles governing public employment.
While dealing with a similar contention, the Supreme Court in State of M P Vs Dharam Bir26 observed:
"31. The plea that the Court should have a "human approach" and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals. In dispensing justice to the litigating parties, the courts not only go into the merits of the respective cases, they also try to balance the equities so as to do complete justice between them. Thus the courts always maintain a human approach. In the instant case also, this approach has not been departed from. We are fully conscious that the respondent had worked on the post in question for quite a long time but it was only in ad hoc capacity. We are equally conscious that a selected candidate who also possesses necessary educational qualification is available. In this situation, if the respondent is allowed to continue on this post merely on the basis of his concept of "human approach", it would be at the cost of a duly selected candidate who would be deprived of cleared the selection. In fact, it is the "human approach" which requires us to prefer the selected candidate over a person who does not possess even the requisite qualification. The Courts as also the Tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications. should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the Statutory provisions made by the Government under Article 309 of the Constitution.

32. "Experience" gained by the respondent on account of his working on the post in question for over a decade cannot be equated with dducational qualifications required to be possessed by a candidate as a condition of eligibility for promotion to higher posts. If the Government, in exercise of its executive power, has created certain posts, it is for it to prescribe the mode of appointment or the qualifications which have to be possessed by the candidates before they are appointed on those posts. The qualifications would naturally vary with the nature of posts or the service created by the Government."

C9 Significance of TET

The importance of the TET and its mandatory nature and character have been dealt with in a judgment of a Full Bench of this Court in Shiv Kumar Sharma Vs State of U P27. The Full Bench has observed as follows:
"...the purpose of a teacher eligibility test is to ensure that the candidate claiming himself to be possessed of such attributes and abilities, has actually acquired his academic and training qualifications genuinely. The capacity of a candidate claiming to be possessed of the educational and training qualifications has therefore to be screened to treat him to be qualified and then eligible for being appointed as a teacher. This is in tune with the object of 2009 Act to provide good and quality education at the elementary level with the aid of the best teachers. If the Council, duly authorised by the Central Government, has prescribed this norm which is for the purpose of ensuring the implementation of the Act, then the argument that the prescription is ultra vires to Section 23 of the Act has to be rejected."


The Full Bench has held that the object of the TET is to ensure that a teacher is qualified in the field which he is about to enter. Affirming the view which was taken in an earlier judgment of a Division Bench, the Full Bench affirmed the power of NCTE to prescribe qualifications and held that after the coming into force of the RTE Act of 2009 and the prescription of qualifications by NCTE, the State is not a free agent to do as it wills. The failure of the State Government to timely implement the qualifications which were laid down by NCTE, it was held, would not dilute or take away the impact of the notification which was mandatory. In the view of the Full Bench:
"...In our opinion, however, merely because the State incorporated these provisions in its rules later on would not take away the impact of the norms prescribed by the National Council for Teacher Education that stood enforced w.e.f. 23.8.2010. The delegated legislation of the State Government was subject to the primary legislation of the Central Government. The framing of rules as a subordinate legislation is subservient to the provisions framed by the Central Government. The notification dated 23.8.2010 therefore has an overriding effect and it could not have been ignored. If the State Government has proceeded to make appointments after 23.8.2010 without complying with the provisions of teacher eligibility test then such appointments would be deficient in such qualification."

The State Government could not have been unaware of the law laid down by the Full Bench of this Court. Yet, the effect of the amendment which was brought in by the introduction of Rule 16-A is to negate the prescription of norms laid down by NCTE and to allow the State Government to grant a relaxation. This power is conferred not upon the State Government by the statute but upon the Central Government.

C10 Validity of amendment to the Service Rules of 1981

On 30 May 2014 - the same day on which the UPRTE Rules of 2011 were amended, the State Government amended the Service Rules of 1981. Significantly, even the Service Rules, as amended, continue with the same definition of a teacher in Rule 2(o) to mean 'a person employed for imparting instructions in nursery schools, basic schools, junior basic schools or senior basic schools. By and as a result of an amendment to Rule 5, an additional source of recruitment has been provided by allowing the appointment of such Shiksha Mitras as were engaged and were working on the date of the commencement of the amended Rules of 2014. By Rule 6, as amended, the upper age limit for the engagement of Shiksha Mitras has been enhanced to sixty years. As a result of the amendment of Rule 8, the requirement of passing the TET has been completely done away with in the case of Shiksha Mitras. For the recruitment of Assistant Teachers from amongst Shiksha Mitras, it has been provided that the only requirement would be the possession of a bachelor's degree and the completion of a two year distance learning BTC course or a course equivalent thereto. The State Government has acted ultra vires the scope of the statutory powers conferred upon it by laying down qualifications for appointment of Shiksha Mitras as Assistant Teachers in direct conflict with what has been prescribed by NCTE both in pursuance of its powers under Section 23(1) of the RTE Act, 2009 (by the notification dated 23 August 2010) and in pursuance of its power to frame Regulations under Section 32 (2) of the NCTE Act of 1993 (by the Regulations of 12 December 2014 which adopt the notification dated 23 August 2010 for primary and upper primary teachers). The prescription of qualifications by the State Government by an amendment of its service rules in conflict with the minimum qualifications prescribed by NCTE is ultra vires. NCTE has the sole and exclusive authority to prescribe minimum qualifications. The encroachment by the State Government on the domain of NCTE is illegal and ultra vires.

Rule 14(6)(a) provides that Shiksha Mitras, after the completion of two years' training through the distance BTC course, would be appointed as Assistant Teachers in junior basic schools against substantive posts. The appointing authority is under a mandate under clause (b) of Rule 14(6) to prepare a list of such Shiksha Mitras who possess the prescribed qualifications. Their names are to be arranged in ascending order on the basis of their dates of birth.

The object and purpose of introducing the TET is to ensure that a teacher who embarks upon instructing students of primary and upper primary classes is duly equipped to fulfil the needs of the students, understands the relevance of education for a child at that stage and can contribute to the well rounded development of the child. Teaching a child is not merely a matter of providing information. Deeply embedded in the process of imparting education is sensitivity towards the psyche of the child, the ability to understand the concerns of a young student of that age, the motivations which encourage learning and the pitfalls which have to be avoided. The emphasis on clearing the TET is to ensure the maintenance of quality in imparting primary education. These requirements which have been laid down by NCTE fulfil an important public purpose by ensuring a complement of trained teachers who contribute to the learning process of children and enhance their growth and development. These requirements should not be viewed merely as norms governing the relationship of a teacher with the contract of employment. These norms are intended to fulfil and protect the needs of those who are taught, namely, young children. India can ignore the concerns of its children only at the cost of a grave peril to the future of our society. The effort of the State Government to by-pass well considered norms which are laid down by NCTE must be disapproved by the Court. We have done so on the ground that the State Government lacks the legislative power and competence to do so. Equally, fundamental is the concern that a relaxation of the norms prescribed by an expert body will result in grave detriment to the development and growth of our young children and the provision of quality education to them. Providing quality education is crucial for students belonging to every strata of society. Education which is provided in schools conducted by the Basic Education Board should not be allowed to degenerate into education of poor quality which it will, if the norms which are prescribed by an expert body under legislation enacted by Parliament in the national interest are allowed to be ignored by the State Government on the basis of parochial or populist perceptions. Such an attempt is ultra vires the statutory powers of the State and is arbitrary and violative of Article 14 of the Constitution.

C11 Validity of absorption
The issue before the Court is in regard to the legality of the absorption. Articles 14 and 16 of the Constitution provide for equality in matters of public employment. The limit on the power of the State to grant regularization was considered by a Constitution Bench of the Supreme Court in a judgment in Secretary of State of Karnataka Vs Umadevi (supra). Emphasizing the principle of the 'rule of equality' in public employment, the Constitution Bench Court held as follows:
"...Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued." (emphasis supplied)

The Supreme Court held that there may be cases where certain appointments were not illegal but were irregular. These are situations where an appointment has been made (i) of duly qualified persons; and (ii) in duly sanctioned vacant posts and the employees would have continued to work for more than ten years without the intervention of the orders of the court or tribunal. In those cases, the judgment of the Supreme Court in Umadevi left it open to the State Governments, the Union Government and their instrumentalities to take steps to regularize, as a one time measure, the services of such irregularly appointed persons. The relevant observation in that regard is as follows:
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

The observations of the Constitution Bench in paragraph 53 of the decision in Umadevi were elaborately explained in a subsequent decision of a Bench of two learned Judges of the Supreme Court in State of Karnataka Vs M L Kesari28. The exception which the judgment contemplated to the general principle which militated against regularization was laid down as follows:
"It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular." (emphasis supplied)

In M L Kesari's case, the Supreme Court emphasized that the period of six months as 'a one time measure' would have to be considered in its proper perspective. At the end of six months from the date of the decision in Umadevi, cases of several daily wagers/casual employees were still pending before the Court, as a result of which the one time regularization process was not undertaken. In many cases, regularization was not undertaken because cases were pending in courts or due to sheer oversight. The Supreme Court held that such persons will not lose their right to be considered for regularization because the one time exercise was completed without considering their cases or because the six months period stipulated in Umadevi had expired.
In Amarendra Kumar Mohapatra Vs State of Orissa29, the principles which were laid down in Umadevi and M L Kesari were applied by the Hon'ble Supreme Court while considering the validity of a legislative enactment by which regularization was granted. In the case before the Supreme Court, it was held that degree holder junior engineers were qualified for appointment as assistant engineers and they were appointed against sanctioned posts. All of them had worked for more than ten years and, in some cases, as long as for twenty years and some of them had, in fact, retired from their respective departments. In this background, it was held that the legislative enactment granting regularization did not call for interference at that late stage. Thus, the validity of a legislative provision providing for regularisation has also been judged on this touchstone. An illegal appointment cannot be regularised because that would infringe Articles 14 and 16.
The decision of the Constitution Bench in Umadevi as well as the subsequent decisions have circumscribed the power of the State Government to grant regularization by making a distinction between the illegal and irregular appointments. The Supreme Court has held that where appointments are not made or continued against sanctioned posts or where the persons appointed did not possess the prescribed minimum qualifications, such appointments would be considered to be illegal. However, if the person employed has possessed the prescribed qualifications and was working against a sanctioned post but was selected without going through the process of open competitive examination, such an appointment would be considered as irregular.
In deciding upon the validity of the provisions made by the State Government in the amended Rules for regularization, it is these decisions which have to be applied by the Court.
The submission of the learned Additional Advocate General was that Shiksha Mitras had continued to work in schools for a long period of 16 years and, therefore, there is no requirement of asking them to clear the Teachers Eligibility Test. It was also submitted that since there was a paucity of qualified Assistant Teachers and there may not be a sufficient number of eligible candidates, the State is justified in granting appointment to the Shiksha Mitras as Assistant Teachers.
These submissions cannot be accepted.

The Supreme Court in Yogesh Kumar Vs Government of NCT, Delhi30 held that mere paucity of candidates holding a TTC qualification would not justify a departure from the prescribed qualifications.

Teachers Eligibility Test is conducted to ensure that a person has the required knowledge and aptitude to teach students studying in classes I to V. This is an important test which cannot be ignored even if a person has been engaged in teaching students of classes I to V for a number of years as Shiksha Mitra. In Dilip Kumar Ghosh Vs Chairman31, the Supreme Court formulated the following principle:
"(i) In the case of the junior basic training and primary teachers training certificate the emphasis is on the development of the child. The primary education is up to IVth standard. Thereafter there is middle education and then the secondary and higher secondary education. But in the primary school one has to study the psychology and development of child at a tender age. The person who is trained in B.Ed. Degree may not necessarily be equipped to teach a student of primary class because he is not equipped to understand the psychology of a child at that early stage."

The concept of relaxation which was explained by the Supreme Court in Umadevi's case requires that a person at the time of engagement must possess the requisite qualifications under the service rules. It is, therefore, important that Shiksha Mitras at the time of initial engagement should have possessed the requisite qualifications contained in the service rules. This is also what was observed by the Supreme Court in Pramod Kumar Vs U P Secondary Education Services Commission32. The Supreme Court held that if the essential qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned and an appointment which is contrary to the Statutes/statutory rules would be void in law.

From the material which has emerged before the Court, it is clear that Shiksha Mitras to whom the benefit of regularization has been granted neither fulfilled the prescribed minimum qualifications nor were they appointed against sanctioned posts. The fact that Shiksha Mitras did not fulfill the qualifications prescribed by NCTE which has the unquestioned jurisdiction under the NCTE Act of 1993 and RTE Act of 2009 is evident from the fact that the State Government, by inserting Rule 16-A into the Rules of 2011 has assumed to itself a power to relax the minimum qualifications required to be observed, in the case of Shiksha Mitras. In other words, by Rule 16-A, the State Government has created an island of exclusion for the benefit of Shiksha Mitras who, in the exercise of the rule-making power of the State under Rule 16-A, would not have to fulfil the minimum qualifications prescribed by NCTE. The State Government has sought to get over the inseparable obstacle that the Shiksha Mitras do not fulfil the TET requirement by unlawfully conferring power on itself to relax the requirement. Having committed that illegality, the State has proceeded to do away with the TET qualification in its application to Shiksha Mitras, by unlawfully amending the service rules. These amendments have been held to be ultra vires and an impermissible encroachment on the exclusive domain of NCTE. Having done this the State Government has compounded its illegality by regularising/absorbing the Shiksha Mitras as Assistant Teachers. As a consequence, qualified candidates fulfilling the NCTE norms are denied the equality of opportunity to seek appointment as Assistant Teachers. We have earlier held Rule 16-A to be ultra vires the rule-making authority of the State Government since the power to grant a relaxation from the minimum qualifications is vested exclusively in the Central Government. In assuming to itself a power to relax the minimum qualification and thereafter by diluting the minimum qualifications in the case of Shiksha Mitras, the State Government has patently acted in a manner which is arbitrary, ultra vires the governing central legislation and in breach of the restraint on the limits of its own statutory powers. By this exercise, the State Government has sought to grant regularization to persons who failed to fulfil the minimum qualifications and who were never appointed against sanctioned posts. In these circumstances, the grant of largesse by the State Government to Shiksha Mitras cannot be upheld and the amendment to the Rules is ultra vires and unconstitutional.
The Additional Advocate General submitted that Shiksha Mitras were appointed in pursuance of a scheme implemented by the State Government and hence their appointments cannot be regarded as a backdoor entry. This submission will not support the absorption of Shiksha Mitras as Assistant Teachers in the regular service of the State. In Grah Rakshak, Home Guards Welfare Association Vs State of Himachal Pradesh33, Home guards appointed by the States of Himachal Pradesh, Punjab and NCT of Delhi sought regularisation of their services but their writ petitions were dismissed by the High Court. The Supreme Court held that the enrolment of the Home guards may not have been a back door engagement, but that would not entitle them to regularisation of service or the grant of regular appointments. They were never paid a regular salary and were engaged only as volunteers. They were not regular appointees in the service of the State. They had agreed to the conditions of engagement, by making declarations.
In the present case, it is evident that the Shiksha Mitras do not fulfil any of the norms laid down by the Supreme Court for regular absorption into the service of the State. They were at all material times appointed as and continued to be engaged as contractual appointees. Their appointments were not against sanctioned posts. They did not fulfil the minimum qualifications required for appointment as Assistant Teachers.

C12 Locus of the petitioners
Admittedly, all the petitioners were qualified to apply for and be considered for appointment as Assistant Teachers. Their right of consideration was clearly affected and is in fact eclipsed by the absorption of Shiksha Mitras. It cannot therefore be said that the petitioners lacked locus to maintain the writ petitions.
 
PART D : OPERATIVE ORDERS
For all these reasons, we allow the writ petitions in the following terms:
(i) The amendment made by the State Government by its notification dated 30 May 2014 introducing the provision of Rule 16-A in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 by the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules 2014 is held to be arbitrary and ultra vires and is quashed and set aside;
(ii) The Uttar Pradesh Basic Education (Teachers) Service (Nineteenth Amendment) Rules 2014, insofar as they prescribe as a source of recruitment in Rule 5(2) the appointment of Shiksha Mitras; the academic qualifications for the recruitment of Shiksha Mitras in Rule 8(2)(c) and for the absorption of Shiksha Mitras as Assistant Teachers in junior basic schools under Rule 14(6) are set aside as being unconstitutional and ultra vires; and
(iii) All consequential executive orders of the State Government providing for the absorption of Shiksha Mitras into the regular service of the State as Assistant Teachers shall stand quashed and set aside.
The batch of writ petitions shall stand disposed of in the aforesaid terms. However, there shall be no order as to costs.
Order Date:- 12.09.2015
AHA
(Dr D Y Chandrachud, CJ)

(Dilip Gupta, J)

(Yashwant Varma, J)

 UPTET  / टीईटी / TET - Teacher EligibilityTest Updates /   Teacher Recruitment  / शिक्षक भर्ती /  SARKARI NAUKRI NEWS  
UP-TET 2011, 72825 Teacher Recruitment,Teacher Eligibility Test (TET), 72825 teacher vacancy in up latest news join blog , UPTET , SARKARI NAUKRI NEWS, SARKARI NAUKRI
Read more: http://naukri-recruitment-result.blogspot.com
http://joinuptet.blogspot.com
UPTET 72825 Latest Breaking News Appointment / Joining Letter | Join UPTET Uptet | Uptet news | 72825  Primary Teacher Recruitment Uptet Latest News | 72825  Teacher Recruitment Uptet Breaking News | 72825  Primary Teacher Recruitment Uptet Fastest News | Uptet Result 2014 | Only4uptet | 72825  Teacher Recruitment  Uptet News Hindi | 72825  Teacher Recruitment  Uptet Merit cutoff/counseling Rank District-wise Final List / th Counseling Supreme Court Order Teacher Recruitment / UPTET 72825 Appointment Letter on 19 January 2015A | 29334 Junior High School Science Math Teacher Recruitment,

CTET, TEACHER ELIGIBILITY TEST (TET), NCTE, RTE, UPTET, HTET, JTET / Jharkhand TET, OTET / Odisha TET  ,
Rajasthan TET /  RTET,  BETET / Bihar TET,   PSTET / Punjab State Teacher Eligibility Test, West Bengal TET / WBTET, MPTET / Madhya Pradesh TET, ASSAM TET / ATET
, UTET / Uttrakhand TET , GTET / Gujarat TET , TNTET / Tamilnadu TET , APTET / Andhra Pradesh TET , CGTET / Chattisgarh TET, HPTET / Himachal Pradesh TET