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
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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)
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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)
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