UPTET SARKARI NAUKRI News - Shiksha Mitra High Court Order Part 3 -

UPTET SARKARI NAUKRI   News - Shiksha Mitra High Court Order Part 3 - 

Part 3 mein Shiksha Mitron ke against hee sab kuch dikhayee de raha hai -
1. Training Program unke Skill enhancement ke leeye tha
2. Central Govt ko hee TET se relaxation ka power tha, aur use UP Govt RTE act ne bhee sweekar kiya tha. B Ed n BTC ke case mein TET mandatory bataya state govt ne , Lekin Shiksha Mitro ke case mein nahin
3. TET se relaxation ki power UP Govt. kee bhram ki Upaj thee, Kyunki RTE Act ke anusaar uske pass ye Power thee Hee Nahin

A14 Open and Distance Learning proposal: NCTE permission
On 3 January 2011, a revised proposal was submitted by the State Government for the training of Shiksha Mitras to NCTE. The proposal envisaged that there were 1,78,000 untrained teachers (graduate Shiksha Mitras) engaged on a contract basis by Village Education Committees, working in primary schools. Of these, it was stated that 1,24,000 Shiksha Mitras were graduates and if the untrained graduate Shiksha Mitras were given teacher training, the shortage of qualified teachers in schools would be met. The operational plan which was envisaged by the State, provided that 62,300 untrained graduate Shiksha Mitras would be imparted a two year BTC training during 2011-12 and 2012-13, while the remaining 62,000 would be trained in 2013-14 and 2014-15. The proposal envisaged that the training would be imparted at seventy District Institutes of Education and Training (DIETs) and at twenty Block Resources Centres (BRCs).
On 14 January 2011, the NCTE specifically on the basis of the permission which was sought by the State Government in terms of its letter dated 3 January 2011, acceded to the proposal for training of untrained graduate Shiksha Mitras and, for that purpose, for conducting a two year diploma in elementary education through the open and distance learning mode. NCTE, however, clarified in Clause 13 of its letter that the State Government shall ensure that no appointment of untrained teachers is made in whatsoever manner. On 11 July 2011, details of the training programme were issued by the State Government.

A15 Central Rules under RTE Act, 2009
The Union Government had issued the Right of Children to Free and Compulsory Education Rules, 201016, under the RTE Act 2009. The RTE Rules of 2010 dealt with the acquisition of minimum qualifications in Part VI. Rule 17 empowered the Central Government to notify an academic authority for laying down the academic qualifications for a person to be eligible as a teacher. Once the minimum qualifications were prescribed, they would mandatorily apply to every school governed by Section 2(n) of the RTE Act of 2009. Rule 18 governs a relaxation of the minimum qualification, under which the State Government was required to estimate its teachers' requirement in accordance with the norms prescribed in the Schedule for all schools covered by Section 2(n). Under sub-rule (2) of Rule 18, it is contemplated that the State Government could request the Union Government for a relaxation of the prescribed minimum qualifications in either of two eventualities, namely: (i) where the State did not have adequate institutions offering courses of training in teacher education; or (ii) the State did not have adequate persons possessing the minimum qualifications notified under Rule 17(2) by the authority authorised by the Central Government. On receiving such a request, the Central Government was empowered to specify the nature of the relaxation and the period of time, not exceeding three years but not beyond five years from the commencement of the Act within which the minimum qualifications would have to be acquired. Sub-rule (5) of Rule 18 stipulated that after six months from the commencement of the Act, no appointment of a teacher for any school can be made in respect of a person not possessing the minimum qualifications notified in sub-rule (2) of Rule 17 without a relaxation of qualifications under sub-rule (3). Rule 19 made it mandatory for the State Government to provide adequate training facilities to ensure that all teachers in schools acquired the minimum qualifications within a period of five years from the commencement of the Act.

A16 State Rules under RTE Act 2009

On 27 July 2011, the UPRTE Rules, 2011 were issued. The UPRTE Rules of 2011 which were framed by the State of Uttar Pradesh under the RTE Act of 2009 were in accordance with the provisions which were contained in the Central Rules. The salient provisions of the UPRTE Rules of 2011 were as follows :
(i) Under Rule 15, the minimum educational qualifications for teachers laid down by an authority authorised by the Central Government were to be applicable to every school under Section 2(n);
(ii) For the purpose of applying for a relaxation of the minimum qualifications under Section 23(2), Rule 16 envisaged the same procedure as was contemplated by Rule 18 of the Central Rules of 2010;
(iii) Rule 16 contemplated that the State Government could move the Union Government for the grant of a relaxation of the minimum qualifications and provides that no appointment of a teacher to any school could be made of a person not possessing the minimum educational qualifications without the issuance of a notification of relaxation by the Central Government.

A17 State amendment to Service Rules
The State Government by a notification dated 9 November 2011 amended the Services Rules which were framed in 1981 under the Basic Education Act. By the Rules as amended, which were called the Uttar Pradesh Basic Education (Teachers) Service (Twelfth Amendment) Rules, 2011, the qualifications which were prescribed in Rule 8 were modified so as to make the passing of the TET compulsory. This was as mandated by the notification dated 23 August 2010 issued by NCTE. The notification of the State Government dated 9 November 2011 provided the following academic qualifications for appointment of an Assistant Teacher in a junior basic school:
"(ii) Assistant Master and Assistant Mistresses of Junior Basic Schools
Bachelors degree from a University established by law in India or a degree recognised by the Government as equivalent thereto together with any other training course recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate (BTC), two years BTC (Urdu) Vishisht BTC and have passed teacher eligibility test conducted by the Government of Uttar Pradesh."

These amendments which were made by the State Government were intended to ensure that the qualifications which were prescribed in the Service Rules of 1981 accord with the mandatory requirement of passing the TET which was stipulated by NCTE from 23 August 2010.
 
A18 Amendments to NCTE Act
On 12 October 2011 17, the provisions of the NCTE Act were amended by Parliament by Amending Act 18 of 2011 which was brought into force with effect from 1 June 2012. The amendments, inter-alia, included an amendment to Section 1(3) to make the Act applicable to the following categories:
"(a) Institutions;
(b)students and teachers of the institutions;
(c) schools imparting pre-primary, primary, upper primary, secondary or senior secondary education and colleges providing senior secondary or intermediate education irrespective of the fact, by whatever names they may be called; and
(d) teachers for schools and colleges referred to in Clause (c)."

A definition was inserted in Section 2(ka) of the expression 'school' in the following terms:
"(ka) "school" means any recognized school imparting pre-primary, primary, upper primary, secondary or senior secondary education or a college imparting senior secondary education, and includes-
(i) a school established, owned and controlled by the Central Government, or the State Government or a local authority;
(ii) a school receiving aid or grants to meet whole or part of its expenses from the Central Government, the State Government or a local authority;
(iii) a school not receiving any aid or grants to meet whole or part of its expenses from the Central Government, the State Government or a local authority."

These amendments to the NCTE Act were intended to clarify the intent of Parliament that the Act would apply to schools from the stage of pre-primary education through to the senior secondary or intermediate education covering also all stages between. Section 12-A was introduced into the NCTE Act to provide as follows:
"12-A. Power of Council to determine minimum standards of education of school teachers.- For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognised by the Central Government or a State Government or a local or other authority;
Provided that nothing in this section shall adversely affect the continuance of any person recruited in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or colleges, under any rule, regulation or order made by the Central Government, a State Government, a local or other authority, immediately before the commencement of the National Council for Teacher Education (Amendment) Act, 2011 solely on the ground of non-fulfilment of such qualifications as may be specified by the Council:
Provided further that the minimum qualifications of a teacher referred to in the first proviso shall be acquired within the period specified in this Act or under the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009)."

An amendment was also made to Section 32(2) so as to empower NCTE to frame regulations in regard to the qualifications of teachers under Section 12-A, by the introduction of clause (dd) in sub-section (2) of Section 32.

A19 ODL Training and absorption
On 14 July 2012, a Government Order was issued by the State of Uttar Pradesh recognising that various Shiksha Mitras had obtained graduate degrees during the course of their employment. The Government Order contemplated that such persons would be imparted training through the mode of distance education. This was to apply to those candidates who had obtained their graduate degrees by 25 July 2012. On 7 February 2013, the State Government issued a training schedule for 64,000 Shiksha Mitras. The Government Order recorded that 60,000 Shiksha Mitras had already received their training. The Government Order further referred to the existence of an additional 46,000 Shiksha Mitras who had passed the intermediate stage. The Government Order provided for the absorption of 1,70,000 Shiksha Mitras (comprised of 1,24,000 who had completed their graduate degrees and 46,000 who were expected to complete their graduation by September 2015).

A20 Amendment to State RTE Rules
On 30 May 2014, the State Government amended the UP RTE Rules of 2011 by the First Amendment Rules, 2014. By the amendment, the State Government introduced a definition of the expression 'Shiksha Mitra' to cover those Shiksha Mitras who had been selected and were working in accordance with the Government Orders in junior basic schools conducted by the Basic Education Board. Rule 16-A as introduced into the UP RTE Rules of 2011 by way of amendment, is in the following terms:
"16-A. Notwithstanding anything contained in rules 15 and 16, the State Government may, in order to implement the provisions of the Act, by order make provisions for relaxation of minimum educational qualification for appointment of such Shiksha Mitras as Assistant Teachers in Junior Basic Schools as are considered otherwise eligible."

Rules 16-A contains a non obstante provision. Under it, the State Government assumed the power to relax the minimum educational qualifications prescribed in the case of those Shiksha Mitras who were considered to be otherwise eligible so as to facilitate their appointment as Assistant Teachers in junior basic schools.

A21 Amendment to State Service Rules
On 30 May 2014, the State Government notified the amended Service Rules of 1981. The amended Rules retain the definition of the expression "teacher" in Rule 2(o) of the original Rules. The expression 'teacher' is defined to mean 'a person employed for imparting instructions in nursery schools, basic schools, junior basic schools or senior basic schools'. The expression 'Shiksha Mitra' is defined in Rule 2(v) as follows:
"(v) "Shiksha Mitra" means a person working as such in junior basic schools run by Basic Shiksha Parishad under the Government Orders prior to the commencement of Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011."

In the sources of recruitment in Rule 5, a provision is now made in the Rules, as amended, for the appointment of Shiksha Mitras. Rule 5, as amended, reads as follows:
"5. Sources of recruitment- The mode of recruitment to the various categories of posts mentioned below shall be as follows:
(a) (i) Mistresses of Nursery School
(ii)Assistant Masters and Assistant Mistresses of Junior Basic Schools
By direct recruitment as provided in rules 14 and 15;
By direct recruitment as provided in rules 14 and 15;
or
By appointment of such Shiksha Mitras as are engaged as Shiksha Mitra and working as such on the date of commencement of the Uttar Pradesh Basic Education (Teachers) (Nineteenth Amendment) Rules, 2014."

In Rule 6, the upper age limit in the case of a Shiksha Mitra is provided as sixty years. Rule 8, which defines the qualifications for eligibility for appointment of an Assistant Teacher in a junior basic school, has been amended so as to provide as follows:
"(ii)Assistant Master and Assistant Mistresses of Junior Basic Schools
(ii) (a) Bachelors degree from a University established by law in India or a degree recognized by the Government equivalent thereto together with any other training course recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate (BTC), two years BTC (Urdu), Vishisht BTC and teacher eligibility test passed, conducted by the Government or by the Government of India;
(b) a Trainee Teacher who has completed successfully six months special training programme in elementary education recognized by NCTE;
(c) A Shiksha Mitra who possessed Bachelors degree from a University established by law in India or a degree recognized by the Government equivalent thereto and has completed successfully two years distant learning BTC course or Basic Teacher's Certificate (BTC), Basic Teacher's Certificate (BTC) (Urdu) or Vishist BTC conducted by the State Council of Educational Research and Training (SCERT)." (emphasis supplied)

The striking aspect is the absence of a requirement for a Shiksha Mitra to hold a TET certificate. This requirement is made mandatory by NCTE. In fact in the State Service Rules of 1981, it has been applied in clause (a) to other teachers holding a bachelor's degree and a basic teacher's certificate but has been consciously omitted in the case of Shiksha Mitras.
Rule 14(6)(a) envisages the appointment of Shiksha Mitras against substantive posts of Assistant Teachers. Rule 14(6)(a) contemplates that all Shiksha Mitras shall be appointed against substantive posts of Assistant Teachers in junior basic schools after obtaining a certificate of the successful completion of the two years' distance education BTC course, or other equivalent courses stipulated therein. Rule 14(6)(a) provides as follows:
"14(6)(a)-The Shiksha Mitra after obtaining the certificate of successful completion of two years distant BTC course or Basic Teacher's Certificate (BTC), Basic Teacher's Certificate (BTC) (Urdu) or Vishisht BTC conducted by State Council of Educational Research and Training (SCERT) shall be appointed as assistant teachers in junior basic schools against substantive post. To appoint the Shiksha Mitras as assistant teachers in junior basic schools, the appointing authority shall determine the number of vacancies including the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes and other categories under rule 9."

Rule 14(6)(b) provides that the appointing authority shall draw a list of Shiksha Mitras possessing the prescribed qualification in Rule 8. Under Rule 14(6)(c), the names of Shiksha Mitras are to be drawn up in an ascending order according to their dates of birth. The system of providing for quality point marks, which is mandatory for other categories, has not been prescribed for Shiksha Mitras.

A22 NCTE Regulations, 2014
On 12 November 2014, NCTE issued the National Council for Teacher Education (Determination of Minimum Qualification for Persons to be recruited as Education Teachers and Physical Education Teachers in Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools and Colleges) Regulations, 2014. The Regulations of 2014 provide that for primary classes (classes I to VIII), the minimum qualifications shall be those as have been laid down by NCTE by its notification dated 23 August 2010, as amended from time to time. Regulation 5 empowers NCTE, on receipt of a reference from the State Government, to relax the provisions of the Regulations subject to satisfaction of the existence of special circumstances. However, the proviso to Regulation 5 stipulates that no relaxation shall be granted with regard to the minimum qualifications for appointment of teachers for classes I to VIII as specified in the Schedule.
Now, it is in this background that we would have to consider the nature of the challenge in these proceedings.



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UPTET SARKARI NAUKRI News - Shiksha Mitra High Court Order Part 2 - Annexure A1, A2,A3........... are of relevant facts observed based on documents

UPTET SARKARI NAUKRI   News - Shiksha Mitra High Court Order Part 2 - 

Annexure A1, A2,A3........... are of relevant facts  observed based on documents 

PART A : The legislative, regulatory and administrative framework

The resolution of the controversy before the Court turns upon the relevant legislation, both Central and State, holding the field and the rules and notifications. It is upon the interpretation of the regulatory framework that the dispute would turn.

A1 Uttar Pradesh Basic Education Act, 1972
The Uttar Pradesh Basic Education Act, 19728 was enacted by the state legislature for the purpose of re-organising, reforming and expanding elementary education and, with that purpose in view, to enable the State Government to rest control over elementary education from Zila Parishads in rural areas and Municipal Boards and Mahapalikas in urban areas while vesting it in the Board of Basic Education. The expression 'basic education' is defined in Section 2(b) to mean education upto the eighth class, imparted in schools other than high schools or intermediate colleges. By Section 4(1), the Board is vested with the function of organising, coordinating and controlling the imparting of basic education and teachers' training for the purpose of basic education in the State. Among the powers which are conferred by sub-section (2) upon the Board, is the power in clause (a) to prescribe courses of instruction and teachers' training in basic education and in clause (b) to conduct basic training certificate examinations.
The Act was amended by U P Act No 18 of 2000 to introduce the provisions of Sections 9-A and 10-A and for the substitution of Section 10. As a result of the introduction of Section 9-A, control over teachers and properties of basic schools at the administrative level is entrusted to the gram panchayats or, as the case may be, municipalities within whose territorial limits each basic school is situated. Substituted Section 10, which defines the functions of Zila Panchayats and Section 10-A, as inserted, confers upon the Municipalities, certain statutory duties and functions in regard to basic education in the district or, as the case may be, the municipal area. Under Section 11, for each village or group of villages for which a gram panchayat is established under the U P Panchayat Raj Act, 1947, a Village Education Committee is contemplated to be established consisting of the Pradhan of the Gram Panchayat as its Chairperson. The Village Education Committee is conferred with the statutory function under sub-section (2)(a) to establish, administer, control and manage basic schools in the panchayat area and under clause (g) such other functions pertaining to basic education as may be entrusted by the Government. Section 19 vests a rule-making power in the State Government which comprehends, among other things, in clause (c) of sub-section (2) the power to frame rules in respect of the recruitment and conditions of service of persons appointed to posts of teachers and other employees of basic schools recognised by the Board.

A2 Uttar Pradesh Basic Education (Teachers) Service Rules, 1981
In exercise of the powers conferred by Section 19 (1) of the Act of 1972, the Service Rules of 1981 were published on 3 January 1981. Under Rule 2(1)(b), the appointing authority in relation to teachers referred to in Rule 3 is defined to mean the District Basic Education Officer. A junior basic school under Rule 2(1)(h) is defined to mean 'a basic school where instructions from classes I to V are imparted'. A senior basic school under Rule 2(1)(m) is a basic school where instructions from classes VI to VIII are imparted. Basic school comprehends a school imparting instructions from classes I to VIII. The expression 'teacher' has been defined in Rule 2(1)(o) to mean ' a person employed for imparting instructions in nursery schools, basic schools, junior basic schools or senior basic schools. The Rules incorporate a definition of 'training institution' under Rule 2(1)(p) 'as an institution imparting training for recognized certificate courses of teaching.
Part II of the Rules of 1981 makes provisions for cadre strength. Rule 4(1) contemplates that there shall be separate cadres of service under the Rules for each local area which is defined under clause (i) of sub-section (1) of Section 2 to mean 'the area over which a local body exercises jurisdiction. Under sub-rule (2) of Rule 4, the strength of the cadre of the teaching staff pertaining to a local area and the number of posts in the cadre are to be such, as may be determined by the Board from time to time with the previous approval of the State Government. The Board of Basic Education is empowered, with the previous approval of the State Government, to create temporary posts.
Part III of the Rules of 1981 relates to recruitment. Rule 5 provides for the sources of recruitment and mode of recruitment to various categories of posts. Insofar as the present controversy is concerned, Rule 5(a)(ii) provides for recruitment of Assistant Masters and Assistant Mistresses of junior basic schools by direct recruitment as provided in Rules 14 and 15.
Qualifications for teachers of basic schools are defined in Part IV which, in Rule 6, provides for age. Provisions exist for the extent of relaxation in the case of candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, dependents of freedom fighters and ex-servicemen. Rule 8 deals with academic qualifications and is in the following terms:
"8. Academic qualifications.-(1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be as shown below against each:
Post
Academic qualifications
"...

(ii) Assistant Master and Assistant Mistress of Junior Basic Schools


A Bachelor's Degree from a University established by law in India or a Degree recognised by the State 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 recognised 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 8(1), as it was originally framed, provided that for appointment of an Assistant Teacher in a junior basic school, the required academic qualification was the intermediate of the Board of High School and Intermediate Education or a qualification recognised by the Government as equivalent and a training qualification consisting of a basic teacher's certificate or any other training course recognised by the government as equivalent (including Hindustani Teacher's Certificate, Junior Teacher's Certificate and Certificate of Training). The provisions of Rule 8(1) were modified by the State Government by an amendment to the Rules which came into force with effect from 9 July 1998. As modified, the intermediate qualification was substituted by a Bachelor's degree.
Rule 9 provides for reservations for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, dependents of freedom fighters, ex-servicemen and other categories in accordance with legislation in Uttar Pradesh and orders issued by the State Government issued from time to time. Under Rule 10, a provision for relaxation in the maximum age limit, educational qualifications and procedural requirements of recruitment are contemplated in the following terms:
"10. Relaxation for ex-servicemen and certain other categories.- Relaxation, if any, from the maximum age-limit, educational qualifications or/and any procedural requirements of recruitment in favour of the ex-servicemen, disabled military personnel, dependents of military personnel dying in action, dependents of Board's servants dying in harness and sportsmen shall be in accordance with the general rules or order of the Government in this behalf in force at the time of recruitment."

The Rules of 1981 make elaborate provisions in regard to the procedure for recruitment. Rule 14 requires the appointing authority, while making appointments by direct recruitment to posts of Assistant Teachers in junior basic schools, to determine the number of vacancies, vacancies set apart for reserved categories under Rule 9 and to notify the vacancies to the employment exchange, besides publication in at least two newspapers with an adequate circulation in the State and in the district concerned inviting applications from candidates possessing the prescribed training qualification from the district. Under sub-rule (2), the appointing authority is required to prepare a list of such persons who appear to possess the prescribed academic qualification and are eligible for appointment, from the applications received in pursuance of the advertisement or from the Employment Exchange. Under sub-rule (3), names of candidates are required to be arranged in such manner that a candidate who has passed the required training course earlier in point of time shall be placed higher, candidates having passed the training course in a particular year being required to be arranged in accordance with the quality points. Under Rule 16, a Selection Committee is constituted consisting of the Principal of the District Institute of Education and Training9 as Chairperson and other members including the District Basic Education Officer. A separate procedure for recruitment to a teaching post in respect of a language is provided in Rule 17(1) where a written examination is contemplated. Under Rule 19, the appointing authority is required to make appointment to any post referred to in Rule 5 by taking the names of candidates in the order in which they stand in the list prepared under Rule 17. Hence, no appointment can be made except on the recommendation of the Selection Committee and in the case of direct recruitment only upon the production of a residence certificate. Rule 22 envisages the seniority of a teacher in a cadre as determined by the date of appointment in a substantive capacity. Rule 23 contemplates the appointment of all persons in a substantive vacancy on probation for a period of one year and a confirmation in service under Rule 24 subject to fitness and certification of integrity. Rule 25 provides for scales of pay in respect of persons appointed in a substantive or officiating capacity or as a temporary measure as may be determined by the government from time to time. The manner in which quality points are to be computed is laid down in the Appendix to the Rules. Hence, in the Rules of 1981, comprehensive provisions were made by the rule-making authority while framing the subordinate legislation for prescribing the appointing authority, the unit of appointment, qualifications, determination of vacancies, extent of reservation, the procedure for recruitment and scales of pay, among other things.

A3 National Council for Teacher Education, 1993
On 29 December 1993, the National Council for Teacher Education Act, 199310 enacted by Parliament, received the assent of the President and was published in the Gazette of India on the following day. For the purpose of these proceedings, it would be necessary to understand the ambit of the NCTE Act of 1993 and RTE Act of 2009 which was enacted sixteen years later by Parliament. The scope of the NCTE Act, as its preamble indicates, is to establish a National Council for Teacher Education11 with a view to achieving planned and coordinated development for the teacher education system throughout the country and the regulation and proper maintenance of norms and standards. The ambit of teacher education covers pre-primary, primary, secondary and senior secondary stages in schools and has been comprehensively defined to include non-formal education, part-time education, adult education and correspondence education in Section 2(l).
Chapter II provides for the establishment of a Council (NCTE), while Chapter III provides for its functions. Among the functions of the Council in clause (e) of Section 12 is to lay down norms for any specified category of courses or training in teacher education including the minimum eligibility criteria for admission, the method of selection of candidates, duration, contents and mode of curriculum. Under clause (g), the Council is empowered to lay down standards in respect of examinations leading to teacher education qualifications, criteria for admission to such examinations and schemes of courses or training.
Chapter IV provides for the recognition of teacher education institutions. A rule-making power is conferred upon the Central Government by Section 31(1). Section 32 empowers the Council to frame regulations to carry out the provisions of the Act. Under clause (d) of sub-section (2) of Section 32, the Council is empowered to frame regulations, inter alia, on:
"(d) the norms, guidelines and standards in respect of -
(i) the minimum qualifications for a person to be employed as a teacher under clause (d) of Section 12;
(ii) the specified category of courses or training in teacher education under clause (e) of Section 12."

A4 Contractual engagement of Shiksha Mitras
On 26 May 1999, a Government Order was issued by the State Government of Uttar Pradesh for engagement of Shiksha Mitras. The Government Order stated that the Shiksha Mitra scheme was being implemented so as to provide for universal primary education and for the maintenance of the teacher-student ratio in primary schools. The salient aspects of the Shiksha Mitra scheme were as follows:
(i) The appointment of Shiksha Mitras was to be against the payment of an honorarium;
(ii) The appointment was to be for a period of eleven months renewable for satisfactory performance;
(iii) The educational qualifications would be of the intermediate level;
(iv) The unit of selection would be the village where the school is situated and in the event that a qualified candidate was not available in the village, the unit could be extended to the jurisdiction of the Nyay Panchayat;
(v) The services of a Shiksha Mitra could be terminated for want of satisfactory performance;
(vi) Selection was to be made at the village level by the Village Education Committee; and
(vii) The scheme envisaged the constitution, at the district level, of a Committee presided over by the District Magistrate and consisting, inter alia, of the Panchayat Raj Officer and the District Basic Education Officer among other members to oversee implementation;
Subsequently, Government Orders were issued by the State Government to amplify the nature and ambit of the Shiksha Mitra Scheme. Among them was a Government Order dated 1 July 2001 by which it was clarified that the scheme was not a scheme for employment in regular service since its object was to provide to educated rural youth an opportunity to render community service at the level of primary education. The Government Order also contemplated that persons would be selected on the basis of marks obtained in the high school, intermediate, Bed/LT.

A5 Sarva Shiksha Abhiyan
On 31 July 2001, the Union Government formulated the policy called the Sarva Shiksha Abhiyan12 to universalize elementary education through the provision of community owned quality education in a mission mode. SSA was intended to provide useful and relevant elementary education for all children in the age group of 6 to 14 by 2010. Among the interventions contemplated by SSA, was the provision of one teacher for every forty children in primary and upper primary schools. Para 6.2 acknowledged that States possessed their own norms for recruitment of teachers. States were left free to follow their own norms as long as they were consistent with the norms established by NCTE.

A6 NCTE Regulations, 2001
On 4 September 2001, NCTE, while exercising its power to frame Regulations, notified and issued the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001. The Regulations provided for qualifications for teachers from the pre-school to the senior secondary stages including for teachers of elementary schools imparting instruction at the primary and upper primary/middle school stages. The qualifications for recruitment under Rule 3 read with the First Schedule in respect of teachers of elementary schools were defined in the following terms:
"III. Elementary
(a) Primary
(b) Upper Primary (Middle school section)
(i) Senior Secondary School certificate of Intermediate or its equivalent; and
(ii) Diploma or certificate in basic teachers training of a duration of not less than two years. OR
Bachelor of Elementary Education (B EI Ed)
(i) Senior Secondary School certificate or Intermediate or its equivalent; and

(ii) Diploma or certificate in elementary teachers training of a duration of not less than two years.
OR
Bachelor of Elementary Education (B EI Ed) OR Graduate with Bachelor of Education (B Ed) or its equivalent."


The Note appended to the First Schedule stipulated that for appointment of teachers for primary classes, a basic teachers' training programme of two years duration was required and that the BEd was not a substitute.

A7 Articles 21-A and 45 : The Eighty-sixty Amendment
The Eighty-sixth Constitutional Amendment substituted Article 45, which forms a part of the Directive Principles of State Policy. Article 45 lays down that the State shall endeavour to provide for early childhood care and education to children below the age of six years. Article 21-A of the Constitution was also inserted by the Eighty-sixth Amendment into the Chapter on fundamental rights to stipulate that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as it may, by law, determine.


A8 Right of Children to Free and Compulsory Education Act, 2009

Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009. The Act received the assent of the President on 26 August 2009 and came into force on 1 April 2010. The long title to the Act provides that it is an Act 'for free and compulsory education to all children of the age of six to fourteen years.' Consistent with this ambit, 'child' in Section 2(c) is defined to mean 'a male or female child of the age of six to fourteen years'. Chapter II of the Act makes a provision for the right to free and compulsory education; Chapter III for the duties of the appropriate government, local authority and parents; Chapter IV for the responsibilities of schools and teachers; Chapter V for the curriculum and completion of elementary education; Chapter VI for the protection of rights of children; and Chapter VII for miscellaneous provisions. Section 23, which is a part of Chapter IV, provides as follows:-
"23. Qualification for appointment and terms and conditions of service of teachers.-(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorized by the Central Government, by notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:
Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years.
(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed."

A9 NCTE Regulations, 2009 : Open and Distance Learning

On 31 August 2009, NCTE issued the National Council for Teacher Education (Recognition norms and Procedure) Regulations, 200913. Regulation 3 provides that the Regulations shall be applicable to all matters relating to teacher education programmes covering norms and standards and procedures for recognition of institutions, commencement of new programmes and addition to sanctioned intake in existing programmes and other matters incidental thereto. Rule 5 provided for the manner in which an institution eligible and desirous of conducting a teacher education programme could apply to the Regional Committee of NCTE for recognition. Provisions have been made in the Regulations for the manner in which applications would be processed, in regard to the conditions for the grant of recognition and allied matters. Among the Appendices to the Regulations, Appendix-9 provides for the norms and standards for a diploma programme in elementary education through open and distance learning, leading to a Diploma in Elementary Education (D El Ed). Para 1 of Appendix-9 provides the Preamble and the rationale underlying the adoption of open and distance learning, thus:

"Preamble.-(i) The elementary teacher education programme through Open and Distance Learning System is intended primarily for upgrading the professional competence of working teachers in the elementary schools (primary and upper primary/middle). It also envisages bringing into its fold those teachers who have entered the profession without formal teacher training.

(ii) The NCTE accepts open and distance learning (ODL) system as a useful and viable mode for the training of teachers presently serving in the elementary schools. This mode is useful for providing additional education support to the teachers and several other educational functionaries working in the school system."


Clause 2 of Para 5 provides for eligibility of teachers entitled to be sent for training in the following terms:
"(2) Eligibility
(i) Senior Secondary (Class XII) or equivalent examination passed with fifty percent marks.

(ii) Two years teaching experience in a Government or Government recognized primary/elementary school."

A10 NCTE Notification dated 23 August 2010

On 31 March 2010, NCTE was designated as the authority under Section 23(1) of the Act for laying down the minimum qualifications for appointment as a teacher. On 6 July 2010, a Government Order was issued by the State Government taking note of a judgment rendered by a Division Bench of this Court in Devi Prasad Vs State of U P14 to the effect that Shiksha Mitras could not be accorded leave for the purpose of acquiring higher qualifications. The Government Order provided that the Shiksha Mitras, if they so desire, may obtain a higher qualification by pursuing correspondence courses.
On 23 August 2010, NCTE issued a notification in exercise of powers conferred upon it, pursuant to the authorisation of the Central Government under Section 23(1), laying down the minimum educational qualifications for a person to be eligible for appointment as a teacher for Classes I to VIII. The minimum qualifications are as follows:
"1. Minimum Qualification.-
(i) Classes I-V
(a) Senior Secondary (or its equivalent) with at least 50 % marks and 2-year Diploma in Elementary Education (by whatever name known)
OR
Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor of Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education)
AND
(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.
(ii) Classes VI-VIII
(a) BA/BSc and 2-year Diploma in Elementary Education (by whatever name known)
OR
BA/BSc with at least 50% marks and 1-year Bachelor in Education (BEd)
OR
BA/BSc with at least 45% marks and 1-year Bachelor in Education (BEd), 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/BSc, Ed or BA, Ed/BSc, Ed
OR
BA/BSc with at least 50% marks and 1-year BEd (Special Education)
AND
(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose." (emphasis supplied)

Clause 4 of the notification dealt with the teachers who had been appointed prior to the date of the notification and provided as follows:
"4. Teacher appointed before the date of this Notification.- The following categories of teachers appointed for classes I to VIII prior to date of this Notification need not acquire the minimum qualifications specified in Para (1) above:
(a) A teacher appointed on or after the 3rd September, 2001 i.e. the date on which the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time) came into force, in accordance with that Regulation.
Provided that a teacher of class I to V possessing BEd qualification, or a teacher possessing BEd (Special Education) or DEd (Special Education) qualification shall undergo an NCTE recognized 6-month special programme on elementary education.
(b) A teacher of class I to V with BEd qualification who has completed a 6-month Special Basic Teacher Course (Special BTC) approved by the NCTE;
(c) A teacher appointed before the 3rd September, 2001, in accordance with the prevalent Recruitment Rules."

Clause 5 stipulates that where an appropriate government, local authority or school had issued an advertisement for initiating the process of appointment prior to the date of the notification, appointments could be made in accordance with the Regulations of 2001.
The notification dated 23 August 2010 basically stipulated two sets of minimum qualifications. The first is an educational qualification and the second a training qualification. Apart from these, the notification has made the passing of the Teacher Eligibility Test15 mandatory; the test being required to be conducted by the appropriate government in accordance with the guidelines framed by NCTE. For classes I to V, the minimum educational qualification prescribed is senior secondary (with a stipulated percentage of marks). The training qualification is a diploma in elementary education. For classes VI to VIII, the minimum educational qualification is a bachelor's degree in arts or, as the case may be, science (with a stipulated percentage) coupled with a diploma in elementary education or a bachelor's degree in education. For classes VI to VIII, a senior secondary is also treated as one of the permissible qualifications, provided a candidate has a four year's bachelor's degree in elementary education. Both for teaching students of classes I to V and for imparting instruction to students of classes VI to VIII, the passing of the TET is made mandatory. 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.
Clause 4 of the notification provides for the categories of teachers appointed prior to the date of the notification who were not required to acquire the minimum qualifications specified in Clause 1. Clause 4 basically deals with three categories. The first category consists of teachers appointed after 3 September 2001 which is the date on which the Regulations of 2001 came into force. Teachers who were appointed prior to 23 August 2010 but "in accordance with that Regulation" (meaning thereby the Regulations of 2001) were exempted from the acquisition of the minimum qualifications prescribed by Clause 1. The second category comprises of 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 comprises of teachers appointed prior to 3 September 2001; such of them who were appointed in accordance with the prevalent recruitment rules, that is to say, the rules in existence on the date of the appointment of the teacher, were exempted from the requirement of complying with the minimum qualifications prescribed in the notification. After the date of the notification, the minimum qualifications became mandatory, save and except for the exceptions which were carved out. Clause 5 is to the effect that where an advertisement had been issued prior to the date of the notification, the appointment process could be completed on the basis of the Regulations of 2001 which had held the field until then.

A11 Relaxation of minimum qualifications
On 8 November 2010, the Union Government called upon the States to submit proposals, if any, for relaxation of the norms fixed by NCTE. The power of relaxation, it must be noted, was vested in the Central Government alone by virtue of the provisions of sub-section (2) of Section 23. The Union Government, by its communication to the State Governments, clarified that the requirement of holding the TET would not be relaxed. In order to enable the Union Government to exercise its powers in a considered manner, information was specifically sought from the States on the following aspects in the communication:
"(a) Quantitative information as per the format prescribed in the Annexure to this Guideline;
(b) Nature of relaxation sought, separately for classes I to V and VI to VIII, along with justification;
(c) The time period for which relaxation is sought;
(d) The manner in which and the time period within which the State Government would enable teachers, appointed with relaxed qualification, to acquire the prescribed qualification;
(e) The manner in which and the time period within which the State Government would enable existing teachers, not possessing the prescribed qualification, to acquire the prescribed qualification. Reference in this regard is invited to para 4 of the aforementioned Notification of the NCTE.
(f) Any other information the State Government may like to furnish in support of its request for seeking relaxation under Section 23(2)."

A12 Proposal of State Government for distance learning
On 24 December 2010, the State Government addressed a communication to the Union Government in the Ministry of Human Resource Development, by which it disclosed that 1,78,000 Shiksha Mitras were working in the State, of which 1,24,000 held graduate degrees. The State Government noted that these Shiksha Mitras had been appointed on a contractual basis with an intermediate qualification as the prescribed norm, whereas the required qualification for teachers engaged in primary schools in the State was a graduate degree. The State Government proposed a schedule for imparting training to 1,24,000 graduate Shiksha Mitras and, for that purpose, sought the grant of permission so as to enable training to be commenced from 2010-11.

A 13 Section 23(2) relaxation

On 10 September 2012, the Union Government issued an order under Section 23(2) of the RTE Act of 2009, by which it granted a relaxation to the categories of persons falling in Para 3 of NCTE's notification dated 23 August 2010. The categories of persons covered by this category comprised of persons with BA/BSc degrees with at least 50% marks and BEd qualifications and persons with DEd (Special Education) or BEd (Special Education). The period for obtaining the minimum qualifications was extended by the Central Government from 1 January 2012 until 31 March 2014.

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UPTET SARKARI NAUKRI News - Shiksha Mitra High Court Order Part 1 -

UPTET SARKARI NAUKRI   News - Shiksha Mitra High Court Order Part 1 - 

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Chief Justice's Court
WRIT - A No 34833 of 2014
Anand Kumar Yadav & Ors
Vs
Union of India & Ors
With
WRIT - C No 32572 of 2014
Shivam Rajan & Ors
Vs
State of U P & Ors
With
WRIT - C No 46000 of 2014
Anshuman Srivastava & Ors
Vs
Union of India & Ors
With
WRIT - C No 46363 of 2015
Anshul Mishra & Ors
Vs
State of U P & Ors
With
WRIT - C No 50574 of 2014
Brijesh Kumar Panchal
Vs
Union of India & Ors
With
WRIT - C No 53568 of 2014
Smt Sarojini
Vs
State of U P & Ors
With
WRIT - C No 21180 of 2015
Vinod Kumar & Ors
Vs
State of U P & Ors
With
WRIT - C No 23902 of 2015
Mani Bhushan & Ors
Vs
Union of India & Ors
With
WRIT - C No 29674 of 2015
Akash Chauhan
Vs
Union of India & Ors
With
WRIT - C No 44625 of 2015
Ajay Kumar & Ors
Vs
Union of India & Ors
With
WRIT - C No 49108 of 2015
Manish Srivastava & Ors
Vs
State of U P & Ors
With
WRIT - C No 49118 of 2015
Amit Kumar Singh & Anr
Vs
State of U P & Ors
With
WRIT - C No 49123 of 2015
Mohd Arshad
Vs
State of U P & Ors
With
WRIT - C No 49132 of 2015
Mahendra Pratap Singh Neeraj & Ors
Vs
State of U P & Ors
With
WRIT - C No 49136 of 2015
Aditya Kumar & Ors
Vs
State of U P & Ors
With
WRIT - C No 49140 of 2015
Alok Singh & Ors
Vs
State of U P & Ors
With
WRIT - C No 49143 of 2015
Atul Bajpai & Ors
Vs
State of U P & Ors
With
WRIT - C No 49147 of 2015
Munendra Pal Singh & Ors
Vs
State of U P & Ors
With
WRIT - C No 49151 of 2015
Mohd Arshad & Anr
Vs
State of U P & Ors
With
WRIT - A No 34931 of 2014
Vinod Kumar Patel
Vs
Union of India & Ors

With
WRIT - A No 35050 of 2014
Nilesh Kumar Singh & Ors
Vs
State of U P & Ors
With
WRIT - A No 35407 of 2014
Saurav Kumar Yadav & Ors
Vs
State of U P & Ors
With
WRIT - A No 35824 of 2014
Vivek Chaudhary & Ors
Vs
Union of India & Ors
With
WRIT - A No 36537 of 2014
Km Amita & Ors
Vs
Union of India & Ors
***
Appearances:
For the petitioners:
Mr Ashok Khare, Senior Advocate
Mr Siddharth Khare, Advocate
Miss Saumya Mandhyan, Advocate
Mr Arvind Srivastava, Advocate
Mr Rahul Agarwal, Advocate
Mr Ashok Kumar Dubey, Advocate
Mr Himanshu Raghave, Advocate
Mr Indrasen Singh Tomar, Advocate
Mr Tarun Agrawal, Advocate
Mr Anand Nandan, Advocate
Mr Man Bahadur Singh, Advocate
Mr Navin Kumar Sharma, Advocate
Mr Neeraj Tiwari, Advocate

For the State:
Mr C B Yadav, Addl Advocate General
Mr Shashank Shekhar Singh, Addl CSC

For the respondent-Shiksha Mitras:
Mr H R Mishra, Senior Advocate
Mr R K Ojha, Senior Advocate
Mr Agnihotri Kumar Tripathi, Advocate
Mr K S Kushwaha, Advocate
Mr Abhishek Srivastava, Advocate
Mr Ashok Pandey, Advocate
Mr Neel Kamal, Advocate

For NCTE:
Mr R A Akhtar, Advocate
Mr M Asthana, Advocate
For the Central Government:
Mr Arvind Kr Goswami, Advocate

Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice
Hon'ble Dilip Gupta, J
Hon'ble Yashwant Varma, J

(Per Dr D Y Chandrachud, CJ)

I Constitution of the Full Bench
This Full Bench has been constituted in pursuance of an order dated 27 July 2015 of the Hon'ble Supreme Court in State of Uttar Pradesh Vs Shiv Kumar Pathak1 and connected cases. The Supreme Court directed that all matters before the High Court of Judicature at Allahabad, both at Allahabad and Lucknow, relating to Shiksha Mitras shall be heard by a Full Bench at Allahabad. In pursuance of the order passed by the Supreme Court, the writ petitions relating to Shiksha Mitras which were pending before the Lucknow Bench have been transferred to Allahabad in pursuance of the provisions of Clause 14 of the United Provinces High Courts (Amalgamation) Order, 1948.

II Scope of the challenge
In the leading writ petition2, the relief which has been sought, is for setting aside two notifications which were issued on 30 May 2014 by the Government of Uttar Pradesh for notifying the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules, 20143 and the Uttar Pradesh Basic Education (Teachers) Services (Nineteenth Amendment) Rules, 20144. By and as a result of the amendment , Rule 16-A was introduced into the Rules framed by the State Government under the Right of Children to Free and Compulsory Education Act, 20095, called the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 20116 to reserve to the State Government the power to relax the minimum qualifications prescribed for the appointment of Assistant Teachers in junior basic schools in the case of Shiksha Mitras for the purpose of their appointment in regular service. The second amendment which has been made by the State Government has the effect of amending the Uttar Pradesh Basic Education (Teachers) Services Rules, 19817. By the amendment, the State Government has enabled the appointment of Shiksha Mitras who were working on the date of commencement of the amended Rules into regular service as Assistant Teachers of junior basic schools. The reliefs which have been sought also include a challenge to a Government Order dated 7 February 2013 issued by the Principal Secretary, contemplating the absorption into service, of Shiksha Mitras working in junior basic schools in phases covering a total of 1,24,000 graduate Shiksha Mitras and 46,000 Shiksha Mitras who have completed the intermediate qualification. There is also a challenge to a further Government Order dated 19 June 2014 implementing the decision of the State Government to absorb Shiksha Mitras into regular service.

III For convenience of exposition, the judgment has been divided into the following parts:
(i) PART A : The legislative, regulatory and administrative framework
(ii) PART B : Submissions
(iii) PART C : Analysis
(iv) PART D : Operative orders



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