सरकारी नौकरी शिक्षक भर्ती/नियुक्ति परिणाम / टीईटी Sarkari Naukri Recruitment/Appointment Result. Latest/Updated News - UPTET, CTET, BETET, RTET, APTET, TET (Teacher Eligibility Test) Merit/Counselling for Primary Teacher(PRT) of various state government including UP, Bihar
Big Breaking and good news... शिक्षकों की होगी जीपीएफ कटौती: पुरानी पेंशन बहाल का ऐतिहासिक फैसला हाईकोर्ट का - शिक्षकों की होगी जीपीएफ कटौती: पुरानी पेंशन बहाल ... माननीय उच्च न्यायालय ने आज सुनाया ऐतिहासिक फैसला .... Court No. - 7 Case :- WRIT - A No. - 57686 of 2015 Petitioner :- Vishisht B.T.C. Shikshak Welfare Association And 94 Others Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare Counsel for Respondent :- C.S.C.,A.K. Yadav,Sri R.B. Pradhan,Vikram Bahadur Singh,Y.S. Bohra Hon'ble B. Amit Sthalekar,J. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare, for the petitioners, Sri Y.S. Bohra, learned counsel for the respondent no.6, Sri R.B. Pradhan, learned counsel for the respondent no.7, Sri A.K. Yadav, learned standing counsel for the respondents no. 1 to 5 and Sri Vikram Bahadur Singh, learned counsel for the respondent no.8. The petitioners are seeking quashing of the order 16.04.2014 whereby the benefit of new pension scheme has been denied to them. The contention of the petitioners is that on completion of their B.T.C. Training they were appointed on different dates in the month of December, 2005 and also drawing their stipend. Therefore, they are entitled to the benefit of pension. The matter requires consideration. Issue notice to the respondents no.9 & 10 returnable within six weeks. The petitioners will take steps for service on the respondents no. 9 & 10 within three days. All the respondents may file counter affidavit within six weeks. It is provided that the respondents shall make necessary deductions from the salary of the petitioners towards the G.P.F. fund which shall be subject to the final out come of the writ petition. LikeShow more reactionsCommentSha UPTET / टीईटी / TET - Teacher EligibilityTest Updates / Teacher Recruitment / शिक्षक भर्ती / SARKARI NAUKRI NEWS UP-TET 2011, 72825 Teacher Recruitment,Teacher Eligibility Test (TET), 72825 teacher vacancy in up latest news join blog , UPTET , SARKARI NAUKRI NEWS, SARKARI NAUKRI
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UPTETSARKARI NAUKRI News - Shiksha Mitra High Court Order Part 4, Shiksha Mitra Bhrtee aur Uske Niyam Purntaya Nirast -
Shiksha Mitron ki Bhrtee ko Asamvedhanik Karar Dete Hue Nirast Kar Deeyaa hai, Aur Saare Niyamo ko Bhee. Lekin Unkee Training Bach Gayee, Kyunki Us Par Koee Nirnay Nahin Hai.
Khas
Baten Ye Thee Ki Shiksha Mitron Ne Baad Mein Qualification Lee, 11
Month Contract Teacher The, Aarakshan Ke Niyam Ka Palan Nahin Hua Tha,
TET Pass nahin Kiya Thaa. NCTE ne Inkee Training ko Sahee Nahin Mana Lekin Is par Court ne koee Order Nahin Deeya hai
Final Order Allahabad High Court ne Yeh Deeya Hai :-
For all these reasons, we allow the writ petitions in the following terms: (i)
The amendment made by the State Government by its notification dated 30
May 2014 introducing the provision of Rule 16-A in the Uttar Pradesh
Right of Children to Free and Compulsory Education Rules, 2011 by the
Uttar Pradesh Right of Children to Free and Compulsory Education (First
Amendment) Rules 2014 is held to be arbitrary and ultra vires and is
quashed and set aside; (ii) The Uttar Pradesh Basic Education
(Teachers) Service (Nineteenth Amendment) Rules 2014, insofar as they
prescribe as a source of recruitment in Rule 5(2) the appointment of
Shiksha Mitras; the academic qualifications for the recruitment of
Shiksha Mitras in Rule 8(2)(c) and for the absorption of Shiksha Mitras
as Assistant Teachers in junior basic schools under Rule 14(6) are set
aside as being unconstitutional and ultra vires; and (iii) All
consequential executive orders of the State Government providing for the
absorption of Shiksha Mitras into the regular service of the State as
Assistant Teachers shall stand quashed and set aside. The batch of writ petitions shall stand disposed of in the aforesaid terms. However, there shall be no order as to costs. Order Date:- 12.09.2015
Matlab Shiksha Mitron ki Bhrtee ko Asamvedhanik Karar Dete Hue Nirast Kar Deeyaa hai, Aur Saare Niyamo ko Bhee. Lekin Unkee Training Bach Gayee, Kyunki Us Par Koee Nirnay Nahin Hai.
Khas Baten Ye Thee Ki Shiksha Mitron Ne Baad Mein Qualification Lee, 11 Month Contract Teacher The, Aarakshan Ke Niyam Ka Palan Nahin Hua Tha, TET Pass nahin Kiya Thaa. NCTE ne Inkee Training ko Sahee Nahin Mana Lekin Is par Court ne koee Order Nahin Deeya hai
Shiksha Mitra High Court Order Contined Part 4 Here ->>>>>>>>> PART B : Submissions B1 Area of challenge Broadly, the area of challenge in these proceedings has traversed four areas, which are: (i) The nature of the appointment of Shiksha Mitras and the object and purpose of the selection; (ii)
The validity of the notification which has been issued by NCTE on 14
January 2011 accepting the request of the State Government for the grant
of training through the open and distance learning mode to graduate
Shiksha Mitras; (iii) The process of relaxation and absorption of Shiksha Mitras which is stated to have commenced on 14 January 2011; and (iv)
The exemption which has been granted from the passing of the TET by the
State Government by amending the Service Rules of 1981. The submissions which have been urged on behalf of the petitioners can now be summarised:
B2 Submissions for the petitioners (I)
The Service Rules framed by the State Government in 1981 to govern
teachers employed in schools conducted by the Basic Education Board
contain statutory requirements in regard to the creation of the cadre,
possession of qualifications, applicability of reservations, pay scales,
and conditions for relaxation of the requirement contemplated in the
Rules. These Rules uniformly govern the services of all teachers who
were employed in junior basic schools; (II) The object and purpose of
the Shiksha Mitra Scheme which was adopted by a Government Order dated
26 May 1999 would indicate that these were essentially contractual
appointments which were not made against sanctioned posts. In the case of Shiksha Mitras: (a) there was
no requirement of obtaining a teacher's training certificate and the
qualification prescribed was only intermediate in comparison with a
graduate qualification required for regularly appointed teachers; (b) appointments were made at the village level, failing which at the unit of the Nyay Panchayat; and (c) the
appointments were envisaged to be for a contractual term of eleven
months with a renewal contemplated in the event of satisfactory service. Every person
appointed as Shiksha Mitra was placed on notice of the fact that the
appointment was not in the nature of a regular employment in the service
of the State but was an appointment of a stipulated duration for the
purpose of enabling the person engaged to render community service; (III) The appointments
of Shiksha Mitras were clearly de hors the statutory Service Rules of
1981 which have held the field at all material times; (IV)
After the enforcement of the Regulations by NCTE on 3 September 2001
under the provisions of the NCTE Act, minimum qualifications required
for appointment as a primary school teacher were to be stipulated.
Between 3 September 2001 and 23
August 2010, when NCTE issued its notification under the RTE Act of
2009, no Shiksha Mitra fulfilled the training qualification prescribed
under the central regulations. Upon the enforcement of the
notification dated 23 August 2010, every primary school teacher was
required to comply with the minimum qualifications prescribed by NCTE. Shiksha
Mitras did not fall within the purview of the exemption granted either
by clause (4) or by clause (5) of the notification dated 23 August 2010; (V) The Regulations framed in 2009 by NCTE permitting the grant of a training qualification through the open and distance learning mode, properly construed, apply to a person who is validly appointed as a teacher. A 'working teacher' as defined in Appendix-9 to the Regulations of 2009 would govern a person whose appointment has been validly made under the applicable recruitment rules. In the context of the 1981 Service Rules which have held the field in the State of U P, this would cover only those teachers who were appointed after relaxing the norms governing eligibility and qualifications under Rule 10; (VI) The proposal
which was submitted by the State Government to NCTE for training of
untrained Shiksha Mitras was for the provision of training to 1,24,000
graduate Shiksha Mitras.NCTE's
approval dated 14 January 2011 was in response to this proposal of the
State Government of 3 January 2011 for the training of graduate Shiksha
Mitras. Yet, when the Government
issued a Government Order dated 27 July 2012, it incorporated, in
addition, training for 46,000 Shiksha Mitras who were only intermediate
passed persons and were not covered by the permission which was granted by NCTE. The State
violated the permission which was granted by NCTE which did not cover
training through the open and distance learning mode to Shiksha Mitras; (VII) The guidelines which have been framed by the Central Government under Section 35(1) of the RTE Act of 2009 on 8 September 2010 specifically provide that there can be no exemption from the acquisition of a TET as a minimum qualification for eligibility as a primary school teacher. The notification issued by NCTE on 23 August 2010 makes the holding of a TET certificate a mandatory requirement. Initially, when the State Government framed RTE Rules in 2011 under the RTE Act of 2009, the Rules followed the Central Rules of 2010.
The Central Rules as well as the original Rules of 2011 framed by the
State Government were made in view of the provisions of Section 23(2) of
the RTE Act of 2009 which vests the power to grant a relaxation only in the Central Government. Initially, the State Government also amended the Service Rules of 1981 to bring them into conformity with the notification dated 23 August 2010 issued by NCTE by making the holding of a TET qualification mandatory.
However, as a result of successive amendments which have been made to
the Service Rules of 1981 as well as to the UP RTE Rules of 2011, the State Government has arrogated to itself the power to grant an exemption from the holding of minimum qualifications. This is a power which can be exclusively exercised by the Central Government and by the Central Government alone. The assumption of such a power by the State Government under Rule 16-A, as newly inserted, is ultra vires the provisions of Section 23(2) of the NCTE Act; (VIII)
The State Government has simultaneously purported to amend the Service
Rules of 1981 so as to provide for the absorption of all Shiksha Mitras.
The absorption of Shiksha Mitras is in violation of the principles which have been laid down by the Hon'ble Supreme Court in Secretary, State of Karnataka Vs Umadevi (3)18 and by a long line of precedents which has emerged thereafter. The State Government has purported to absorb 1,70,000 Shiksha Mitras in the face of the fact that these appointments were (i) made contrary to and de hors the Service Rules of 1981 which govern the services of teachers in junior basic schools; (ii) not made against sanctioned posts; (iii) in breach of the normal rule of recruitment and selection which apply to regularly appointed teachers; (iii) made
without following norms of reservations in regard to the Schedule
Castes, Scheduled Tribes and Other Backward Classes and other categories
including horizontal reservation. The grant of regularisation or, as the case may be, absorption is fundamentally violative of Articles 14 and 16 of the Constitution; and (IX) The Union Government in its counter affidavit which has been filed in these proceedings has indicated that there can be no exemption from passing the TET.NCTE has in its counter affidavit specifically made a grievance of the fact that the State
Government had not informed it as to whether Shiksha Mitras were
regularly appointed teachers or were appointed only for a specified
duration.
B3 Submissions for the State Government The learned Additional Advocate General, who has addressed arguments on behalf of the State, has urged the followingsubmissions:
(I)
The Scheme which was envisaged by the State Government of appointing
Shiksha Mitras was in order to implement the provisions of Article 45 of
the Constitution and in pursuance of the policy of SSA which was
implemented by the Union Government. This will not fall within the
mischief of the back door entry principle which has been laid down by
the Supreme Court; (II) Shiksha Mitras are teachers like other
teachers in the service of the State and are engaged for imparting
teaching in institutions conducted by the Basic Education Board since
1999. All Shiksha Mitras fall within the definition of the expression 'teacher' as provided in the Service Rules of 1981.
Hence, they would be beneficiaries of clauses (4) and (5) of the
notification issued by NCTE on 23 August 2010. As against a sanctioned
strength of 3,28,220 teachers, there is a working strength of 2,32,136
Assistant Teachers including 1,70,000 Shiksha Mitras. There are 96,084
vacancies at present of which 87,825 vacancies have been advertised; (III) Appointments
of Shiksha Mitras were made in pursuance of the recommendations of
Village Education Committees which have a statutory status under the
provisions of Section 11 of the Basic Education Act of 1972; (IV)
Appendix-9 to the Regulations framed by NCTE in 2009 for open and
distance learning courses provided for the imparting of training to
'working teachers'. Working
teachers would mean not only teachers regularly employed by the State
in pursuance of the Service Rules of 1981 but would also cover Shiksha
Mitras. The eligibility as specified in Appendix-9 is a senior
secondary certificate. Consequently, there was no infraction on the part
of the State Government in mooting a proposal before NCTE for the
training of Shiksha Mitras. The correspondence on the record would
indicate that before the NCTE granted its approval on 14 January 2011,
the State Government had mooted a proposal on 10 August 2010 which was
followed up on 24 December 2010 and 3 January 2011 and by discussions
with the officials of the Ministry of Human Resource Development of the
Union Government. In seeking
permission for the grant of training to Shiksha Mitras through the open
and distance learning mode, the State Government duly disclosed that
these were contractual appointments of persons who did not, at the
relevant time, hold the qualifications prescribed in the Service Rules
of 1981. There was no suppression of fact from the Union Government; (V) The
main objective of undertaking the training course was to deal with a
shortage of teachers in the State of Uttar Pradesh which was remedied by
training 1,70,000 Shiksha Mitras;
(VI) Shiksha Mitras
engaged by the State Government, albeit on a contractual basis, were
persons who fulfilled the qualifications prescribed in the Regulations
of 2001 and in Appendix-9 of the Regulations of 2009 framed by NCTE,
save and except for the training requirement which they did not possess.
Subsequently, the training requirement has been duly completed in accordance with the permission granted by NCTE on 14 January 2011;
(VII) Approval and relaxation having been granted by a body competent to do so, there is no illegality in their absorption;
(VIII)
The purpose of the guidelines issued by the Union Government on 2
February 2011 for conducting the TET under Section 35 has been fulfilled
by the State Government by imparting training qualifications and hence,
there is no illegality in the deviation made by the State Government
from the norm of passing the TET;
(IX) Shiksha
Mitras have worked for nearly 16 years and there was nothing arbitrary
in the decision of the State Government seeking to absorb them into
regular service. The mode of recruitment has been amended in the
Rules so as to bring Shiksha Mitras into regular service of the State in
pursuance of its Scheme; and
(X) The amendments made to the Service Rules of 1981 are not ultra vires.
B4 Submissions of NCTE
The learned counsel appearing for the NCTE has submitted that: (I) NCTE was not apprised of the true nature and character of the appointment of Shiksha Mitras.Shiksha
Mitras had evidently been appointed in violation of the Service Rules
of 1981 and therefore their absorption was clearly unjustified; (II) NCTE
is the body/academic authority enjoined to prescribe the minimum
qualifications required of teachers working in schools covered by the
RTE Act. NCTE did not and never intended to exempt teachers in primary schools from obtaining the TET certification; (III) TheCentral Government by its order dated 10 September 2012 has clarified that TET as a qualification has not been relaxed; (IV) The
amendments made in the Service Rules of 1981 are clearly beyond the
domain of the state authorities as the power of relaxation stands
reserved exclusively in favour of the Central Government under the
provisions of the RTE Act; (V) Admittedly the appointment of Shiksha Mitras was contractual for a period of 11 months and therefore it was incorrect to describe them as untrained teachers. Acquiring the TET qualification is essential with reference to the aims and objects of the RTE Act and the need for adherence to a national standard and benchmark liable to be possessed by all persons aspiring to be appointed as teachers of primary schools; and (VI) There is no challenge to the inclusion of TET as a qualification either by the State or by the Shiksha Mitras.
B5 Submissions of Shiksha Mitras The
submissions which have been urged before the Court by the learned
Additional Advocate General have been followed and adopted by learned
counsel appearing on behalf of the respondent Shiksha Mitras. The submissions urged by the supporting learned counsel are summarised hereafter: (1) The proviso to Section 12-A would cover persons, such as the Shiksha Mitras in the State of Uttar Pradesh. The effect of Section 12-A is that their services should not
be adversely affected by the introduction of a statutory provision
empowering NCTE to lay down minimum qualifications for appointment of
teachers of primary schools; (2) NCTE
obtained the power to frame Regulations under Section 12-A by the
amendment of 2011 and actually exercised that power by notifying
Regulations on 16 December 2014. Section 12-A contemplates that there must be a Regulation under the substantive provision. The proviso to Section
12-A protects the continuance of any person recruited under an order of
the State Government whose services would not be adversely affected
solely on the ground of non fulfillment of qualifications specified by
NCTE. However, the qualifications would have to be acquired
within the period specified in the RTE Act of 2009. Before NCTE notified
its Regulations on 16 December 2014, the Shiksha Mitras had obtained their bachelor's degrees, and the training qualifications with permission of NCTE; (3) There was no imbalance in the principle of reservation in the recruitment of Shiksha Mitras since, broadly,
the appointments of Shiksha Mitras followed the same category for which
the post of Gram Pradhan was reserved in the case of each Gaon Sabha; (4) Shiksha Mitras were not recruited through the back door but by the procedure prescribed by the State itself; and (5) Clause (4) of the notification issued by NCTE contemplates the grant of an exemption to persons with a BEd (Special Education) and DEd (Special Education) qualification. These are not qualifications maintained in the Regulations of 2001.
Since such persons were basically untrained and have yet been given an
exemption from the requirement of passing the TET, Shiksha Mitras
should, by parity of reasoning, be entitled for the same benefit.
Moreover,
it has also been urged that, as a part of the exercise which has been
conducted by the Court in these proceedings, the following issues would
require determination: (1) Whether the appointment of Shiksha Mitras in pursuance of the Government Order dated 26 May 1999 was of a statutory character; (2) Whether
the State Government did have the power, by virtue of Section 13(1) of
the Basic Education Act 1972 and having due regard to the provisions of
Entry 25 of the Concurrent List to the Seventh Schedule, to issue the
Government Order dated 26 May 1999; (3) Whether the Government
Order dated 26 May 1999 can be regarded as a valid exercise of power
under Article 162 of the Constitution, where the Service Rules of 1981
were silent in regard to the appointment of untrained teachers; (4)
Whether the Village Education Committees had a statutory character by
virtue of Section 11 of the U P Basic Education Act, 1972; (5)
Whether the appointment of Shiksha Mitras can be regarded as being made
against substantive posts, since the number was determined in the ratio
of students to teachers in the proportion of 1:40; (6) Whether the permission granted by NCTE on 14 January 2011 is a valid permission under Section 16(3)(d) of the NCTE Act; (7) Whether the petitioners could be regarded as being persons aggrieved to challenge the permission granted by NCTE; (8)
Whether the effort on the part of the State to grant training to
untrained teachers can be regarded as a reasonable effort and not mala
fide; (9) Whether the appointment of Shiksha Mitras has been duly
protected by the proviso to Section 12-A and could be validly brought
into the regular cadre of Assistant Teachers by amendment of the Service
Rules of 1981; (10) Whether the power of NCTE to lay down minimum
qualifications could only be exercised by framing Regulations under
Section 32 of the NCTE Act; and (11) Would the effect of the
insertion of Section 12-A suspend the effect and operation of the
notification dated 23 August 2010. PART C : ANALYSIS
The submissions now fall for consideration.
C1 Nature of appointment of Shiksha Mitras
The
Uttar Pradesh Basic Education Act was enacted in 1972 to regulate the
imparting of education up to the eighth standard. The Board of Basic
Education was constituted by the Act to regulate the imparting of basic
education teachers' training and the conduct of basic training
certificate examinations. When it was enacted, the Act envisaged
transfer of control over basic schools from Zila Parishads in the rural
areas and the Municipal Boards and Mahapalikas in the urban areas to the
Basic Education Board. Subsequently, as we have noted, by the amendment
which the state legislature brought about in 2000, statutory duties in
regard to the conduct of basic education including control over basic
schools was transferred to gram panchayats and municipalities subject to
the over all control of the State Government. When
the State Government formulated the Uttar Pradesh Basic Education
(Teachers) Service Rules 1981, specific provisions were made in regard
to the services of teachers to be engaged for imparting instruction in
basic schools, junior basic schools or senior basic schools. The
junior and senior basic schools covered the entire canvas of primary
education from classes I to VIII. The Service Rules of 1981 contemplate
the creation of a separate cadre of service for each local area under
Section 4. Consistent with the norm of government control over basic
education, the strength of the cadre of the teaching staff for each
local area and the number of posts in the cadre are required to be
determined by the Board of Basic Education with the previous approval of
the State Government. Recruitment to the posts of Assistant Teachers in
junior basic schools is to take place by direct recruitment as provided
in Rule 5(a)(2). Rule 8 spells out the academic qualifications required
for appointment of Assistant Teachers in a junior basic school. As it
was originally framed, the requirement was of an intermediate
qualification and a basic teacher's certificate or a qualification
equivalent. Since under the Rules, cadres to govern the service of
teachers of basic schools were created, a provision is made in Rule 9
for reservation for the Scheduled Castes, Scheduled Tribes, Other
Backward Classes as well as for other categories provided in
governmental orders including dependents of freedom fighters and
ex-servicemen. Rule 10 stipulates the grant of a relaxation in favour of
certain specified categories from the age and qualification norms laid
down in the rules as well as in regard to the procedural requirements
for recruitment. The Rules contain specific provisions in regard to the
manner in which the appointing authority would determine the number of
vacancies, the extent of vacancies reserved, the manner in which
vacancies would be advertised, the placement of candidates for the
purpose of selection, the constitution of Selection Committees and the
manner of appointment. Provisions are also made in regard to other
consequential matters of an essential nature associated with the
constitution of a service including seniority, placement on probation,
confirmation, scales of pay and superannuation. In the case of teachers
recruited through direct recruitment for teaching a language, the Rules
make a provision for a written examination and the evaluation of
candidates on the basis of marks obtained in the examination and quality
points. This is the statutory framework which has consistently held the
field in the State of Uttar Pradesh at all material times after the
Service Rules came to be framed in 1981. The Shiksha Mitra Scheme was
introduced by the Government Order dated 26 May 1999. Clause 1 deals
with the concept of Shiksha Mitra. It provides that a person possessing
educational qualifications upto intermediate level be engaged by the
Village Education Committee constituted under the Act of 1972 Act on a
contractual basis and on the payment of honorarium taking into
consideration the local requirement at the Gram Sabha level. Such a
person shall be called a Shiksha Mitra. Clause 7 provides that the
engagement of a Shiksha Mitra would be only for an academic year on a
contractual basis and the engagement shall automatically come to an end
on 31 May. The subsequent Government Order dated 1 July 2001,
however, provides that the term of a Shiksha Mitra can be extended
provided the teaching work and conduct are found to be suitable. This
Government Order also contains two proformas. The first is in regard to
the application to be submitted by a Shiksha Mitra for seeking
engagement, while the second is in connection with the acceptance letter
to be submitted by a Shiksha Mitra. The application to be submitted
requires applicants to mention that they are applying for seeking
engagement in community service. The acceptance letter requires the
applicant to specifically state that he/she would perform teaching work
as a social worker and will not consider himself or herself to be in the
employment of the State Government/Board. The applicant has also to
state that for this social service, he/her would not claim any wages and
would be entitled only to payment of honorarium. The essential
characteristics of the Shiksha Mitra Scheme envisaged, firstly, that
each appointment was made on a contractual basis for a stipulated term
of eleven months, renewable subject to satisfactory performance and on
an honorarium. Secondly, the Scheme, as notified, contemplated that the
engagement of Shiksha Mitras was not in the regular service of the
State, as indeed it could not have been, having due regard to the
provisions of the Service Rules of 1981 which held the field in regard
to the constitution of a cadre of teachers imparting basic education and
regularly engaged for that purpose. Thirdly, each of the persons
appointed as Shiksha Mitras was placed on notice of the fact that this
was a Scheme envisaging service by the unemployed youth for the benefit
of the community against the payment of an honorarium. Shiksha Mitras
were not entitled to the payment of a salary in the regular pay scale
but would only receive a Mandeya (honorarium). The application form
which every prospective candidate was required to fill up in terms of
the Government Order dated 1 July 2001, envisaged a statement of
acceptance that the candidate would be bound by the terms and conditions
governing the Scheme. The consent form required to be filled in by
every candidate envisaged that he/she would not be treated as a regular
employee of the State Government and would only be entitled to the
payment of honorarium. Moreover, Clause 3 of Form-II appended to the
Government Order stipulated that the training which was imparted to a
candidate was only to enable him or her to render community service in
the capacity of a Shiksha Mitra. Fourthly, appointments as Shiksha
Mitras were not against sanctioned posts as determined by the Board of
Basic Education with the previous approval of the State Government under
Rule 4 of the Service Rules of 1981. Fifthly, the manner of making
appointments and the procedure for recruitment was not in conformity
with the provisions contained in Rules 14, 15, 16 and 17 of the Service
Rules of 1981. Instead, what the Shiksha Mitra Scheme envisaged, was
that appointments should be made by Village Education Committees at the
village level. At the district level, there was a Committee chaired by
the District Collector and consisting, inter alia, of the District
Panchayat Raj Officer and the Basic Education Officer. The District
Level Committee was constituted to oversee the implementation of the
Scheme in the district. Sixthly, the qualification which was prescribed
for appointment as a Shiksha Mitra under the Government Order dated 26
May 1999 was the possessing of an intermediate qualification. Prior
thereto, an amendment was made in the Service Rules on 9 July 1998 by
which Rule 8 was amended to prescribe the holding of a graduate degree
for appointment as a regular teacher. Under the Service Rules of 1981, a
regular teacher was required to also possess a basic teacher's
certificate. This was not a requirement for Shiksha Mitras under the
Government Order. Shiksha Mitras did not fulfill the qualifications for a
regular teacher under the Service Rules of 1981. Seventhly, the manner
in which reservations were to be worked out under the Rules of 1981 was
evidently not the manner in which reservations in the recruitment of
Shiksha Mitras would operate. At the highest, what has been urged before
the Court by the Additional Advocate General and supporting counsel is
that the selection of Shiksha Mitras at the village level envisaged that
a Shiksha Mitra to be appointed should belong to the same category as
the Gram Pradhan, thereby resulting in a rough and ready adoption of the
norm of reservation. This is certainly not the manner in which the
policy of reservation as envisaged by the State is implemented in the
case of regularly selected candidates, including by the application of
the roster and implementing horizontal and vertical reservations. Rule
9, it must be noted, envisages reservation not only for the Scheduled
Castes, Scheduled Tribes and Other Backward Classes, but other
categories also including the dependents of freedom fighters and
ex-servicemen. Moreover, the orders of the State Government also
contemplate horizontal reservation across various classes. These aspects
leave no manner of doubt that the engagement of Shiksha Mitras was envisaged under an administrative scheme by the State Government on a contractual basis with a specified purpose and object and de hors the governing provisions of the applicable Service Rules of 1981. The
object and purpose of engaging Shiksha Mitras, the learned Additional
Advocate General stated before the Court, was to implement the Sarva
Shiksha Abhiyan in relation to the State of Uttar Pradesh. While
notifying the SSA policy, the Union Government, in fact, envisaged a
mission mode for the provision of community owned modalities for
propagating universal elementary education. SSA acknowledged that States
had their own norms for recruitment of teachers and would consequently
be free to follow their own norms so long as they were consistent with
the norms established by NCTE. The fact that the number of persons
engaged as Shiksha Mitras may have been determined on an application of a
teacher-student ratio of 1:40, is not an indicator that the Shiksha
Mitras were appointed to sanctioned posts. They did not belong to the
regular cadre and were contractual appointees. They were not appointed
against sanctioned posts. The Union Government, in formulating SSA,
envisaged the application of the Gujarat model of recruitment of fully
trained teachers on fixed pay, as an interim strategy in states with
large scale teacher vacancies. The policy was envisaged to improve the
accountability of teachers vis-a-vis the local community without
diluting the standards for selection of teachers as laid down from time
to time by NCTE. Persons who were engaged as Shiksha Mitras in the State
of Uttar Pradesh were engaged on the basis of their possessing only the
intermediate qualification, without possessing a certificate of
training as prescribed by Rule 8 of the Service Rules of 1981. By the
time Sarva Shiksha Abhiyan was circulated as a policy for implementation
by the Union Ministry of Human Resource Development on 31 July 2001,
the Regulations of 3 September 2001 had also been notified by NCTE. The
SSA policy document, therefore, clearly envisaged that there would be no
dilution of the standard for selection of teachers as laid down from
time to time by NCTE. The
nature of the appointment of Shiksha Mitras in the State of Uttar
Pradesh came up for consideration before a Full Bench of this Court in
Km Sandhya Singh Vs State of Uttar Pradesh 19. The Full Bench held as follows:
"It
could not be disputed by the petitioners that the scheme for
appointment of Shiksha Mitra came into being through the government
orders i.e. executive instructions. To put it differently, the
petitioners' appointment/selection is contractual appointment as Shiksha
Mitra. Meaning thereby, there is no statutory backing to the
petitioners' claim. The petitioners' argument proceeds on the footing
that the post of Shiksha Mitra is a civil post and is governed by the
principle of statutory service rules. The scheme itself provides that a
person shall be allowed to function as Shiksha Mitra under a contract
for a fixed period which will come to an end on 31st of May of the next
year. No honorarium shall be payable for the month of June.
The scheme shows that it will commence in the month of July of each
year and will end on 31st of May i.e. for eleven months. By modification
it has been provided that if nothing is there against a person he may
continue as Shiksha Mitra for the next academic session, subject to
receiving a short refresher training. All this cumulatively shows that
the tenure of
Shiksha Mitra is a fixed term tenure, maximum up to the period of eleven
months which, of course, in view of the subsequent amendments by the
Government Order can be renewed for subsequent academic sessions."
The
Full Bench cited with approval the observations contained in a judgment
of a Division Bench of this Court presided over by Chief Justice H L
Gokhale (as His Lordship then was) in Sanjay Kumar Singh Vs State of UP
20, where it was held as follows: "Everybody is forgetting that the scheme of Shiksha Mitra is to spread education and it is not a scheme for employment. What is being given is an honorarium to the concerned teacher. The appointment comes to an end at the end of the academic year, with right to continue if the performance is good."
These
observations of the Division Bench in Sanjay Kumar Singh's case and of
the Full Bench in Km Sandhya Singh are we say with respect, a correct
assessment of the Shiksha Mitra Scheme. The submission which has been
urged on behalf of the State and by some of the supporting counsel, is
that Section 11 of the U P Basic Education Act, 1972 contemplates the
constitution of Village Education Committees. This does not render the
Shiksha Mitra Scheme a statutory scheme. The function of Village
Education Committees as defined in sub-section (2) of Section 11 is to
establish, administer, control and manage basic schools in the Panchayat
area and to discharge such other functions pertaining to basic
education as may be entrusted by the State Government. This, in our
opinion, does not render the Scheme of appointing Shiksha Mitras of a statutory nature or character.
If such a Scheme was to be intended to have a statutory flavour, there
could have been no escape from the requirement of complying with the
norms which govern the regular teachers of basic schools as prescribed
in the Service Rules of 1981. On the contrary, compliance with the
Service Rules of 1981 was sought to be obviated by engaging barefoot
volunteers across the State on a contractual basis for which an
administrative scheme was envisaged under the Government Order dated 26
May 1999. Similarly,
the power of the State Government to issue directions to the Board of
Basic Education in Section 13 was not the power which the State
Government wielded while issuing diverse Government Orders that govern
the Shiksha Mitra Scheme. The power to issue directions under
Section 13 could not have been exercised contrary to the provisions of
the Service Rules of 1981 which were made by the State Government in
exercise of the subordinate law-making power. Even if it is held that Village
Education Committees were entrusted with the duty of selecting Shiksha
Mitras in pursuance of the provisions of Section 11(2)(g), the fact
remains that appointments of Shiksha Mitras were independent of
and not subject to the discipline of the provisions of the Service Rules
of 1981. Neither was the engagement against sanctioned posts nor were
the provisions for recruitment envisaged in the Service Rules of 1981
followed. They were not qualified candidates. Understanding the true
nature and purpose of Shiksha Mitras lies at the heart of the dispute in
the present case. Having elaborated on this aspect, it would now be
necessary to deal with the regulatory provisions contained, firstly in
the NCTE Act and the later enactment of the RTE Act of 2009.
C2 NCTE Act 1993 and RTE Act 2009: The effect of Section 23
The
NCTE Act, 1993 was enacted by Parliament in order to achieve planned
and coordinated developed of teacher education. The expression 'teacher
education' in Section 2(l) covers programmes of education, research or
training in order to equip individuals to teach at the pre-primary,
primary, secondary and senior secondary stages, and to include
non-formal education, part- time education, adult education and
correspondence education. NCTE, as a statutory body, is constituted in
accordance with the provisions of Chapter II of the Act to ensure
planned and coordinated development of teachers and for maintenance of
norms and standards of teacher education. The functions of NCTE under
Section 12 are not confined to primary education alone and this would
assume significance having due regard to the ambit and sweep of the NCTE
Act when it is considered in juxtaposition to the RTE Act of 2009 which
was made specifically in the context of providing the right of free and
compulsory elementary education. The powers of NCTE under the NCTE Act,
1993 include the grant of recognition to teacher education institutions
for which provisions are made under Chapter IV. By the Act, NCTE is
given a substantive power to frame Regulations in Section 32. Included
in the range of its regulatory powers in clause (d) of sub-section (2)
of Section 32 is the power to lay down norms, guidelines and standards
in respect of the minimum qualifications for a person to be appointed as
a teacher and in respect of specified categories of courses or training
in teacher education under clause (e) of Section 12. A broad range of
statutory powers is entrusted to NCTE in the legislation enacted by
Parliament in 1993. The range of its functions is evident from the
nature of the subjects brought within the control of NCTE by Section 12. NCTE
framed, on 3 September 2001, Regulations in the exercise of its
statutory powers. In the Regulations which were notified and published
in the Gazette of India on 4 September 2001, NCTE laid down
qualifications for the recruitment of teachers including at the
elementary level. The elementary level included primary school teachers
where the prescribed qualification was (i) a senior secondary school
certificate or intermediate or its equivalent and (ii) a diploma or
certificate in basic teacher's training of a duration of not less than
two years or a bachelor's degree in elementary education. For the upper
primary sections, the prescribed educational qualification is the same
as for the primary level and a diploma or certificate in elementary
teachers training of a duration of not less than two years or a graduate
degree with a Bachelor of education or its equivalent. In a Note which
is appended to the First Schedule, NCTE clarified that for teaching in
primary schools, a basic teachers training programme of two years'
duration is required and that the BEd is not a substitute. The striking
aspect, insofar as the present case is concerned, is that Shiksha Mitras
who were engaged after 1999 did not when they were appointed fulfill
the requirement which was spelt out in the NCTE Regulations of 3
September 2001. None of them fulfilled the requirement of a two year
basic teachers training certificate. Parliament enacted the RTE Act
of 2009 to implement the provisions of Article 21-A of the Constitution
which mandates the State to provide free and compulsory education to all
children between the ages of six and fourteen. The definition of the
expression 'child' in Section 2(c) covers children in this age group and
the expression 'elementary education' in Section 2(f) makes it
abundantly clear that education from classes I to VIII forms the subject
matter of the enactment of 2009. Section 23 of the RTE Act of 2009
provides in sub-section (1) for eligibility for appointment as a
teacher. Under sub-section (1) of Section 23, to be eligible for
appointment as a teacher, a person has to possess such minimum
qualifications as are "laid down" by an academic authority authorised by
the Central Government by a notification. NCTE was designated as the
authority under sub-section (1) on 31 March 2010. Sub-section (2) of
Section 23 recognises that a state may not have adequate institutions
offering courses or training in teacher education. Sub-section (2) also
constitutes an acknowledgement by Parliament of a situation where
teachers possessing the minimum qualifications laid down under
sub-section (1) may not be available in sufficient numbers in a state.
Having due regard to this eventuality, the Central Government was
statutorily vested with the authority under sub-section (2) to relax the
minimum qualifications laid down under sub-section (1) for appointment
as a teacher. The Central Government was left with the discretion to
define the period over which the relaxation is to remain operative
subject to the stipulation that this would operate for a period not
exceeding five years. The proviso to sub-section (2) of Section 23
envisages that a teacher who, at the commencement of the Act, does not
possess the minimum qualifications as laid down in sub-section (1) would
acquire them within a period of five years. The provisions contained in
sub-section (1) and those in the substantive part of sub-section (2)
and the proviso comprise of a composite statutory scheme. By sub-section
(1), an authority which is notified by the Central Government is to
prescribe qualifications defining the conditions of eligibility for
appointment as a teacher. Under sub-section (2), the Central Government
is permitted to grant a relaxation of those qualifications for a period
of not more than five years. While the laying down of qualifications is
entrusted to the authority under sub-section (1), the power to grant a
relaxation is conferred upon the Central Government under sub-section
(2). The proviso deals with those teachers who, on the date of the
commencement of the Act, did not possess minimum qualifications
prescribed under sub-section (1) and to such teachers a window of five
years was granted to acquire the minimum qualifications. The Central
Government authorised the NCTE as the academic authority to lay down the
minimum qualifications for a person to be eligible for appointment as a
teacher by a notification dated 31 March 2010 issued in exercise of the
powers conferred by Section 23 (1) of the RTE Act of 2009. NCTE
notified the minimum qualifications required for appointment as a
teacher in terms of sub-section (1) of Section 23 by its notification on
23 August 2010 defining eligibility for appointment as a teacher to
classes I to VIII in a school covered by Section 2(n) of the RTE Act of
2009. The minimum qualifications prescribed by NCTE envisaged broadly
(i) a senior secondary certificate; (ii) a diploma in elementary
education; and (iii) passing of the TET to be conducted by the
appropriate government in accordance with NCTE guidelines. These were
the qualifications prescribed for teachers of classes I to V and
corresponding qualifications were also prescribed in the notification
dated 23 August 2010 in relation to teachers of classes VI to VIII. Both
for teachers of classes I to V and for those of classes VI to VIII,
NCTE made the passing of the TET mandatory. Clause 3 of the notification
provided for a post-appointment training under an NCTE recognized six
month special programme in elementary education in the case of two
categories: the first being for those with a BA/BSc degree and BEd
qualification, and the second for those with a BEd (Special Education)
or DEd (Special Education). While laying down the minimum
qualifications in clause (1) of the notification, NCTE dealt in Para 4
with the issue of those teachers appointed for classes I to VIII prior
to the date of the notification. In their case, it was mandated that
acquisition of minimum qualifications in Para 1 would not be necessary
in three categories. The first category was of teachers appointed on or
after 3 September 2001 when the Regulations of 2001 had come into force,
in accordance with those Regulations. The expression 'in accordance
with that Regulation' meant that in order to avail of the benefit of
clause (a) of Para 4, a teacher had to be appointed in accordance with
the Regulations of 3 September 2001 and after the date of enforcement of
the Regulations. To be a teacher appointed "in accordance with that
Regulation", a person had to have both the educational qualifications
prescribed (senior secondary school certificate or intermediate or an
equivalent) and a diploma or certificate in basic teachers training (for
primary classes from standard I to V.) Similarly, in the case of a
teacher of the upper primary classes for standards VI to VIII, the
teacher was required to possess both a senior secondary school
certificate or intermediate or its equivalent and either a diploma or
certificate in elementary teachers' training of two years or a
graduation with BEd or its equivalent. In other words, in order to avail
of the benefit of clause (a) of Para 4 of the notification dated 23
August 2010, the mandatory condition was that the appointment had to be
made after 3 September 2001 in accordance with the Regulations. The
second category to which it was provided that the minimum qualification
would not apply, were teachers of classes I to V with a BEd
qualification who had completed a six months' special BTC course
approved by NCTE. The third category comprised of teachers appointed
before 3 September 2001. These teachers were appointed before the
Regulations came to be notified for the first time by NCTE under the
NCTE Act of 1993. Teachers appointed in accordance with the prevalent
recruitment rules were governed by clause (c) of Para 4 of the
notification. The notification dated 23 August 2010 was subsequently
amended by a notification dated 29 July 2011. The minimum qualifications
for a person to be eligible for appointment as an Assistant Teacher
contained in sub-paras (i) and (ii) of Para (I) of the principal
notification were substituted. Evidently, Shiksha Mitras could not
either seek the benefit of clause (a) or clause (c) of Para 4 of the
notification dated 23 August 2010. They were not teachers appointed in
accordance with the Regulations of 3 September 2001 since, admittedly
they did not possess the BTC qualification. Moreover, Shiksha Mitras did
not have the benefit of clause (c) of Para 3 since any appointment made
prior to 3 September 2001 had to be in accordance with the prevalent
recruitment rules. The engagements of Shiksha Mitras were de hors the
recruitment rules and were not in accordance with the Service Rules of
1981 which apply to appointments of basic teachers in the State of Uttar
Pradesh. The proviso to sub-section (2) of Section 23 governs persons
who are teachers and who, at the commencement of the RTE Act of 2009,
did not possess the minimum qualifications prescribed under sub-section
(1). They were given a period of five years to acquire the minimum
qualifications. The proviso would govern persons who were recruited as
teachers in the State of Uttar Pradesh under the Act and the Service
Rules of 1981 and can have no application to Shiksha Mitras.
C3 Amendments of 2011 to NCTE Act
Now,
at this stage, it would be necessary for the Court to dwell, briefly,
on the legislative history which led to the amendments to the NCTE Act
of 1993 in 2011. In Basic Education Board, Uttar Pradesh Vs Upendra
Rai21, a Bench of two learned Judges of the Supreme Court held that the
NCTE Act deals only with teachers training institutions and had nothing
to do with ordinary educational institutions, such as primary schools,
high schools and intermediate colleges. The view which was taken was
that qualifications for appointment as teachers in 'ordinary'
educational institutions, like primary schools, could not be prescribed
under the NCTE Act. The correctness of the judgment in Upendra Rai was
referred to a larger Bench of the Supreme Court in Irrigineni Venkata
Krishnanand Vs Government of Andhra Pradesh22. During the pendency of
the reference to the Bench of three learned Judges of the Supreme
Court, Parliament enacted Amending Act 18 of 2011 to provide for the
insertion of Section 12-A into the NCTE Act of 1993. Section 12-A
contemplates that NCTE may by Regulations determine the qualifications
of persons for being recruited as teachers in any pre-primary, primary,
upper primary, secondary, senior secondary or intermediate schools or
colleges run, aided or recognised by the Central Government, State
Government or a local authority. Section 12-A was introduced by
Parliament to explicitly provide for a power in NCTE of a nature that
the Act had contemplated in the power to frame regulations under Section
32(2)(d). The Statement of Objects and Reasons accompanying the
introduction of the Bill in Parliament clarified that the intent of
Parliament in introducing the amendment was of a clarificatory nature.
The proviso to Section 12-A stipulated that nothing in the Section shall
affect adversely the continuance of any person recruited under a rule,
regulation or order of the Central or State Government or local or other
authority, immediately before the commencement of the Amending Act, on
the ground of non-fulfillment of such qualifications as may be
prescribed by the NCTE. However, the minimum qualifications were
required to be acquired within the period specified under the NCTE Act
or under the RTE Act of 2009. The effect of the proviso was to ensure
that while NCTE was recognised to possess a regulatory power to
determine the qualifications for recruitment of teachers including in
primary or upper primary schools, the insertion of Section 12-A would,
by itself, not affect the continuance of a person who was recruited in
pursuance of rules, regulations or orders of the government or authority
concerned. Section 12-A was a provision which was introduced by way of
abundant caution so as not to affect the continuance of such persons.
Section 12-A is not a validation of the appointments of Shiksha Mitras
nor, for that matter, does it elevate the engagements of such persons
from a pure contractual level to anything higher. Section 12-A is
intended to ensure that the objection to the regulatory power of NCTE
over teachers of educational institutions other than teacher training
institutions which had found acceptance in a judgment of two learned
Judges of the Supreme Court in Upendra Rai, was placed beyond the pale
of controversy. Hence, when the reference before a larger Bench of the
Supreme Court came up for consideration, the Bench of three learned
Judges held that, as a result of the subsequent amendments, the
questions which were referred to the larger Bench had become academic
and did not require any answer. Section
12-A does not deal with the nature of the appointments of Shiksha
Mitras nor does it place them on a higher or surer legal footing than as
contractual appointees.
C4 Training imparted to Shiksha Mitras The
next aspect of the matter which needs to be analysed is the training
which was imparted to Shiksha Mitras in the State of Uttar Pradesh in
pursuance of the permission which was granted by NCTE on 14 January
2011. NCTE framed Regulations in 2009 to prescribe recognition norms and
procedures. Regulation 3 provides that the Regulations apply to all
matters related to teacher education programmes covering norms,
standards and procedure for recognised institutions, the commencement of
new programmes and the addition of sanctioned intake to existing
programmes. Appendix-9 to the Regulations of 2009 lays down standards
for a diploma in elementary education through the open and distance
learning system. As the Preamble to Appendix-9 indicates, this was
intended primarily for upgrading the professional competence of "working
teachers" in elementary schools and for bringing into its fold those
teachers who had entered into the profession without formal teacher
training. NCTE
accepted the open and distance learning system as a viable mode for the
training of teachers presently serving in the elementary schools and for
additional educational support to the teachers and educational
functionaries working in the school system. Eligibility is
defined in sub-clause (2) of Clause 5 of Appendix-9 to cover (i) senior
secondary (class XII) or equivalent examinations passed with fifty
percent marks; and (ii) two years' teaching experience in a government
or government recognised primary/elementary school. The State
Government moved the Central Government for the grant of permission on
24 December 2010 in which it disclosed the functioning of 1.78 lac
Shiksha Mitras of whom 1,24,000 were stated to be graduates. The State
Government indicated in its letter that these persons were engaged on a
contract basis and with a stipulation of a minimum qualification of
intermediate though, under the service rules, the prescribed
qualification was a graduate degree. Subsequently, on 3 January 2011, a
revised proposal was submitted which envisaged training being imparted
to 1,24,000 graduate Shiksha Mitras out of a total complement of
1,70,000. The permission which was granted by NCTE on 14 January 2011
was specifically in the context of the request made on 3 January 2011
for granting permission for the training of 1,24,000 untrained graduate
Shiksha Mitras. Eventually, what seems to have transpired was that the
State Government issued a Government Order on 14 August 2012 so as to
provide for training to those Shiksha Mitras who had acquired graduate
degrees by 25 July 2012. However, it is not in dispute before this Court
that training was
imparted not only to graduate Shiksha Mitras who were within the terms
of the permission granted by NCTE by its letter dated 14 January 2011,
but also to 46,000 Shiksha Mitras holding the intermediate qualification
which was not within the purview of the permission which was granted by
NCTE on 14 January 2011. NCTE
had not permitted the State of U P to train the non-graduate Shiksha
Mitras through the open and distance learning methodology. NCTE, we must note, has stated in its counter affidavit
filed in these proceedings, that it was not specifically apprised of
the nature of the engagement of Shiksha Mitras by the State. The counter affidavit which has been filed by NCTE, insofar as is material, reads as follows: "That the rationale for including the T.E.T.
as minimum qualification for a person to be eligible for appointment as
a teacher is that it would bring national standards and benchmark to
quality teaching before the recruitment process is completed for appointing a candidate as a trained teacher.
That it is pertinent to mention here that since the State Authorities have not clearly sent the report that initial engagement of Shiksha Mitras was for a period of 11 months, as such the
nomenclature of these Shiksha Mitras as untrained teacher was not in
consonance with the provisions so issued after the Right of Children to
Free and Compulsory Education Act, 2009 came into effect."
The State has disputed this.
However,
the fact which remains is that the NCTE did not proceed to revoke the
permission which was granted by it on 14 January 2011 at any stage. The
eligibility qualification prescribed in Appendix-9 is intermediate.
Hence, at this stage, this Court deems it inappropriate, in the
considered exercise of its writ jurisdiction under Article 226 of the
Constitution, to issue a direction which would have the effect of
nullifying or abrogating the training qualifications which have been
imparted to a large body of persons by the State Government. However,
this would not preclude NCTE from duly verifying compliance with the
conditions prescribed by it and particularly whether the training
imparted is in accord with NCTE norms and standards.
C5 Amendments to the State RTE Rules 2011 and the Service Rules of 1981
That
leads the Court to the final aspect of the matter which relates to the
amendment made by the State Government in the RTE Rules of 2011 framed
under the RTE Act 2009 and in the Service Rules of 1981. The basic
premise with which the discussion on this aspect must commence is that
under Section 23(2) of the RTE Act 2009, the power to grant a relaxation
from the minimum qualifications which are laid down by NCTE is vested
exclusively in the Central Government. Parliament while enacting the
legislation has carefully envisaged that minimum qualifications would be
prescribed by NCTE under sub-section (1) of Section 23. The nature and
extent of the relaxation under sub-section (2) is to be determined by
the Central Government. In deciding whether to grant a relaxation, the
guiding principles are laid down in the substantive part of sub-section
(2). The Central Government has to determine whether or not the state
has adequate institutions offering courses or training in teacher
education or teachers possessing the minimum qualifications as laid down
under sub-section (1). The Central Government has exercised powers
under sub-section (2) of Section 23 on 10 September 2012. The Union
Ministry of Human Resource Development, in its notification, has granted
a relaxation until 31 March 2014 only in respect of persons referred to
in sub-clause (a) of Clause (1) of Para 3 of the notification dated 23
August 2010 as amended. This category covers persons with BA/BSc degrees
with at least fifty percent marks and holding a BEd qualification.
While issuing a notification on 10 September 2012 for the purpose of
relaxing the qualifications under Section 23(2) in regard to a limited
category of persons, the Central Government has also clarified that this
shall be a 'one time relaxation' and that no further relaxation under
Section 23(2) shall be granted in the State of Uttar Pradesh. The Union
Government has also directed that the State Government shall take steps
to increase institutional capacity for preparing persons with specified
qualifications so as to ensure that only persons possessing the
qualifications laid down under the said notification are appointed as
teachers for classes I to V after 31 March 2014. No relaxation has been
granted by the Central Government in terms of the provisions of
sub-section (2) of Section 23 to obviate compliance by Shiksha Mitras
with the minimum qualifications laid down. NCTE has also issued
Regulations on 12 December 2014 under the NCTE Act stipulating that the
qualifications for primary and upper primary teachers shall be those as
prescribed by its notification dated 23 August 2010 under Section 23(1)
of the RTE Act of 2009. Rules were formulated by the Central
Government in 2010 under the RTE Act of 2009. The Rules being
subordinate legislation could not have and did not prescribe any norm at
variance with what was prescribed under sub-section (2) of Section 23.
Rules 15, 16 and 17 of the Rules framed by the State Government in 2011
under the RTE Act of 2009 envisage that (i) the State Government would
move the Central Government for relaxation of the prescribed minimum
qualifications if teachers possessing the prescribed minimum
qualifications are not available; and (ii) no appointment of a teacher
for any school shall be made in respect of a person not possessing the
minimum educational qualifications prescribed under Rule 15 without a
notification of the Central Government under sub-rule (3) of Rule 16. What
has happened in the State of Uttar Pradesh is that the State
Government, in a clear violation of the mandate of Section 23(2) which
vests the power to relax the minimum qualifications in the Central
Government, has arrogated to itself a power which it lacks, to grant
exemption from the mandatory qualifications which are laid down by NCTE
in their application to Shiksha Mitras in the State. The State
Government has, in our view, acted in clear violation of its statutory
powers. Parliament has legislated to provide, in no uncertain terms,
that any relaxation of the minimum educational qualifications can only
be made by the Central Government. However, Rule 16-A which has been
introduced by the State Government by a notification dated 30 May 2014
purports to provide a non-obstante provision which will operate
notwithstanding anything contained in Rules 15 and 16 of the State
Rules. Rules 15 and 16 of the State Rules were originally formulated in a
manner consistent with the provisions of Section 23(2) and the
provisions contained in Rules 17 and 18 of the Central Rules of 2010.
However, as a result of the introduction of Rule 16-A, the State
Government has assumed to itself the power to make provisions for
relaxing the minimum educational qualifications for appointment of
Shiksha Mitras as Assistant Teachers in junior basic schools "as are
considered otherwise eligible and in order to implement the provisions
of the Act". There can be no manner of doubt that far from implementing
the provisions of the Act, the State Government by its amendment of the
subordinate legislation has purported to negate the very object and
purpose of the RTE Act of 2009.
C6 Extent of the rule-making power
The
provisions of Section 38 of the RTE Act of 2009 confer a rule making
power on the appropriate government. In exercise of the above powers the
State had framed the Uttar Pradesh Right of Children to Free and
Compulsory Education Rules, 2011. A reading of sub-section (2) of
Section 38 establishes that the only clause which could be said to touch
upon the issue raised before us would be clause (l) thereof. Clause (l) confers a power upon the State to frame rules on the following subject matter: "The
salary and allowances payable to, and the terms and conditions of
service of, teacher, under sub-section (3) of Section 23.'
Sub-section (3) of Section 23 provides as follows:
"(3) The salary and allowances payable to, and the terms and conditions service of, teacher shall be such as may be prescribed."
The
power to frame a rule like Rule 16-A as inserted by the Uttar Pradesh
Right of Children to Free and Compulsory Education (First Amendment)
Rules, 2014 is liable to be tested in the above background.
The
power to fix qualifications is conferred upon an authority to be
designated by the Central Government under sub section (1). The power to
relax as we have found stands conferred upon the Central Government
alone under sub-section (2) of Section 23. The subject of qualification
of teachers and relaxation thereof stands encompassed in sub-sections
(1) and (2) of Section 23. In our view, the subject matter of
qualification of teachers cannot fall within the expression "salary and
allowances" or "terms and conditions of service" as employed in
sub-section (3) of Section 23. This is not just because the
"qualification of teachers" would not fall within the above expressions
when accorded their plain and literal meaning but also on account of the
fact that the power to fix such qualifications stood conferred on two
different authorities specified as such in sub-sections (1) and (2) of
Section 23. The field thus stood occupied completely. Obviously,
therefore, when the State framed a rule under Section 38(2)(l), the same
could not have been utilized to fix a qualification or to relax one
fixed by the authority under sub-section (1). For these reasons also we
are unable to sustain the provision made in Rule 16-A.
C7 Extent of State power under Article 162 to order regularisation
In
State of UP Vs Neeraj Awasthi23, the Supreme Court considered the issue
of a State direction refusing to accord approval to a regulation sought
to be framed for regularization of illegal appointments. The Supreme
Court approved the principles enunciated in the following cases:
(a) A Umarani Vs Registrar, Coop Societies24 where it was held that: "45.
No regularization is, thus, permissible in exercise of statutory power
conferred under Article 162 of the Constitution if the appointments have
been made in contravention of the statutory rules."
(b) Mahendra L Jain Vs Indore Development Authority25 where it was held that:
"...
An illegal appointment cannot be legalized by taking recourse to
regularization. What can be regularized is an irregularity and not an
illegality..."
In Neeraj Awasthi, the Supreme Court observed that:
"57.
If no appointment could be made by the State in exercise of its power
under Article 162 of the Constitution as the same would be in
contravention of the statutory rules, there cannot be any doubt
whatsoever that the Board or for that matter the Market Committee cannot
make an appointment in violation of the Act and Regulations framed
thereunder."
C8 Experience on the job is not a substitute for qualification
The
contention that the experience gained by Shiksha Mitras over the course
of their engagement should obviate the need of obtaining the essential
qualification cannot be accepted for more than one reason. Firstly, the
essential qualification must be held by the person on the date of entry
into the service. If the entry be preceded by a selection process it is
liable to be tested with reference to the date of advertisement. Viewed
from any angle, the Shiksha Mitras did not possess the requisite
qualification on either of the relevant cut off dates. Secondly, the
experience that may have been gained by a person has never been
construed as a substitute for an essential qualification that is
statutorily prescribed. Acceptance of this contention would have grave
ramifications, fall foul of settled precedent on the subject and be
against the basic tenets of Article 16 and principles governing public
employment. While dealing with a similar contention, the Supreme Court in State of M P Vs Dharam Bir26 observed: "31.
The plea that the Court should have a "human approach" and should not
disturb a person who has already been working on this post for more than
a decade also cannot be accepted as the Courts are hardly swayed by
emotional appeals. In dispensing justice to the litigating parties, the
courts not only go into the merits of the respective cases, they also
try to balance the equities so as to do complete justice between them.
Thus the courts always maintain a human approach. In the instant case
also, this approach has not been departed from. We are fully conscious
that the respondent had worked on the post in question for quite a long
time but it was only in ad hoc capacity. We are equally conscious that a
selected candidate who also possesses necessary educational
qualification is available. In this situation, if the respondent is
allowed to continue on this post merely on the basis of his concept of
"human approach", it would be at the cost of a duly selected candidate
who would be deprived of cleared the selection. In fact, it is the
"human approach" which requires us to prefer the selected candidate over
a person who does not possess even the requisite qualification. The
Courts as also the Tribunal have no power to override the mandatory
provisions of the Rules on sympathetic consideration that a person,
though not possessing the essential educational qualifications. should
be allowed to continue on the post merely on the basis of his
experience. Such an order would amount to altering or amending the
Statutory provisions made by the Government under Article 309 of the
Constitution.
32. "Experience" gained by the respondent on
account of his working on the post in question for over a decade cannot
be equated with dducational qualifications required to be possessed by a
candidate as a condition of eligibility for promotion to higher posts.
If the Government, in exercise of its executive power, has created
certain posts, it is for it to prescribe the mode of appointment or the
qualifications which have to be possessed by the candidates before they
are appointed on those posts. The qualifications would naturally vary
with the nature of posts or the service created by the Government."
C9 Significance of TET
The
importance of the TET and its mandatory nature and character have been
dealt with in a judgment of a Full Bench of this Court in Shiv Kumar
Sharma Vs State of U P27. The Full Bench has observed as follows: "...the
purpose of a teacher eligibility test is to ensure that the candidate
claiming himself to be possessed of such attributes and abilities, has
actually acquired his academic and training qualifications genuinely.
The capacity of a candidate claiming to be possessed of the educational
and training qualifications has therefore to be screened to treat him to
be qualified and then eligible for being appointed as a teacher. This
is in tune with the object of 2009 Act to provide good and quality
education at the elementary level with the aid of the best teachers. If
the Council, duly authorised by the Central Government, has prescribed
this norm which is for the purpose of ensuring the implementation of the
Act, then the argument that the prescription is ultra vires to Section
23 of the Act has to be rejected."
The Full Bench has held
that the object of the TET is to ensure that a teacher is qualified in
the field which he is about to enter. Affirming the view which was taken
in an earlier judgment of a Division Bench, the Full Bench affirmed the
power of NCTE to prescribe qualifications and held that after the
coming into force of the RTE Act of 2009 and the prescription of
qualifications by NCTE, the State is not a free agent to do as it wills.
The failure of the State Government to timely implement the
qualifications which were laid down by NCTE, it was held, would not
dilute or take away the impact of the notification which was mandatory.
In the view of the Full Bench: "...In our opinion, however, merely
because the State incorporated these provisions in its rules later on
would not take away the impact of the norms prescribed by the National
Council for Teacher Education that stood enforced w.e.f. 23.8.2010. The
delegated legislation of the State Government was subject to the primary
legislation of the Central Government. The framing of rules as a
subordinate legislation is subservient to the provisions framed by the
Central Government. The notification dated 23.8.2010 therefore has an
overriding effect and it could not have been ignored. If the State
Government has proceeded to make appointments after 23.8.2010 without
complying with the provisions of teacher eligibility test then such
appointments would be deficient in such qualification."
The State
Government could not have been unaware of the law laid down by the Full
Bench of this Court. Yet, the effect of the amendment which was brought
in by the introduction of Rule 16-A is to negate the prescription of
norms laid down by NCTE and to allow the State Government to grant a
relaxation. This power is conferred not upon the State Government by the
statute but upon the Central Government.
C10 Validity of amendment to the Service Rules of 1981
On
30 May 2014 - the same day on which the UPRTE Rules of 2011 were
amended, the State Government amended the Service Rules of 1981.
Significantly, even the Service Rules, as amended, continue with the
same definition of a teacher in Rule 2(o) to mean 'a person employed for
imparting instructions in nursery schools, basic schools, junior basic
schools or senior basic schools. By and as a result of an amendment to
Rule 5, an additional source of recruitment has been provided by
allowing the appointment of such Shiksha Mitras as were engaged and were
working on the date of the commencement of the amended Rules of 2014.
By Rule 6, as amended, the upper age limit for the engagement of Shiksha
Mitras has been enhanced to sixty years. As a result of the amendment
of Rule 8, the requirement of passing the TET has been completely done
away with in the case of Shiksha Mitras. For the recruitment of
Assistant Teachers from amongst Shiksha Mitras, it has been provided
that the only requirement would be the possession of a bachelor's degree
and the completion of a two year distance learning BTC course or a
course equivalent thereto. The State Government has acted ultra vires
the scope of the statutory powers conferred upon it by laying down
qualifications for appointment of Shiksha Mitras as Assistant Teachers
in direct conflict with what has been prescribed by NCTE both in
pursuance of its powers under Section 23(1) of the RTE Act, 2009 (by the
notification dated 23 August 2010) and in pursuance of its power to
frame Regulations under Section 32 (2) of the NCTE Act of 1993 (by the
Regulations of 12 December 2014 which adopt the notification dated 23
August 2010 for primary and upper primary teachers). The prescription of
qualifications by the State Government by an amendment of its service
rules in conflict with the minimum qualifications prescribed by NCTE is
ultra vires. NCTE has the sole and exclusive authority to prescribe
minimum qualifications. The encroachment by the State Government on the
domain of NCTE is illegal and ultra vires.
Rule 14(6)(a) provides
that Shiksha Mitras, after the completion of two years' training
through the distance BTC course, would be appointed as Assistant
Teachers in junior basic schools against substantive posts. The
appointing authority is under a mandate under clause (b) of Rule 14(6)
to prepare a list of such Shiksha Mitras who possess the prescribed
qualifications. Their names are to be arranged in ascending order on the
basis of their dates of birth.
The object and purpose of
introducing the TET is to ensure that a teacher who embarks upon
instructing students of primary and upper primary classes is duly
equipped to fulfil the needs of the students, understands the relevance
of education for a child at that stage and can contribute to the well
rounded development of the child. Teaching a child is not merely a
matter of providing information. Deeply embedded in the process of
imparting education is sensitivity towards the psyche of the child, the
ability to understand the concerns of a young student of that age, the
motivations which encourage learning and the pitfalls which have to be
avoided. The emphasis on clearing the TET is to ensure the maintenance
of quality in imparting primary education. These requirements which have
been laid down by NCTE fulfil an important public purpose by ensuring a
complement of trained teachers who contribute to the learning process
of children and enhance their growth and development. These requirements
should not be viewed merely as norms governing the relationship of a
teacher with the contract of employment. These norms are intended to
fulfil and protect the needs of those who are taught, namely, young
children. India can ignore the concerns of its children only at the cost
of a grave peril to the future of our society. The effort of the State
Government to by-pass well considered norms which are laid down by NCTE
must be disapproved by the Court. We have done so on the ground that the
State Government lacks the legislative power and competence to do so.
Equally, fundamental is the concern that a relaxation of the norms
prescribed by an expert body will result in grave detriment to the
development and growth of our young children and the provision of
quality education to them. Providing quality education is crucial for
students belonging to every strata of society. Education which is
provided in schools conducted by the Basic Education Board should not be
allowed to degenerate into education of poor quality which it will, if
the norms which are prescribed by an expert body under legislation
enacted by Parliament in the national interest are allowed to be ignored
by the State Government on the basis of parochial or populist
perceptions. Such an attempt is ultra vires the statutory powers of the
State and is arbitrary and violative of Article 14 of the Constitution.
C11 Validity of absorption The
issue before the Court is in regard to the legality of the absorption.
Articles 14 and 16 of the Constitution provide for equality in matters
of public employment. The limit on the power of the State to grant
regularization was considered by a Constitution Bench of the Supreme
Court in a judgment in Secretary of State of Karnataka Vs Umadevi
(supra). Emphasizing the principle of the 'rule of equality' in public
employment, the Constitution Bench Court held as follows: "...Thus,
it is clear that adherence to the rule of equality in public employment
is a basic feature of our Constitution and since the rule of law is the
core of our Constitution, a Court would certainly be disabled from
passing an order upholding a violation of Article 14 or in ordering the
overlooking of the need to comply with the requirements of Article 14
read with Article 16 of the Constitution. Therefore, consistent with the
scheme for public employment, this Court while laying down the law, has
necessarily to hold that unless the appointment is in terms of the
relevant rules and after a proper competition among qualified persons,
the same would not confer any right on the appointee. If it is a
contractual appointment, the appointment comes to an end at the end of
the contract, if it were an engagement or appointment on daily wages or
casual basis, the same would come to an end when it is discontinued."
(emphasis supplied)
The Supreme Court held that there may be
cases where certain appointments were not illegal but were irregular.
These are situations where an appointment has been made (i) of duly
qualified persons; and (ii) in duly sanctioned vacant posts and the
employees would have continued to work for more than ten years without
the intervention of the orders of the court or tribunal. In those cases,
the judgment of the Supreme Court in Umadevi left it open to the State
Governments, the Union Government and their instrumentalities to take
steps to regularize, as a one time measure, the services of such
irregularly appointed persons. The relevant observation in that regard
is as follows: "One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as explained in
S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN
(supra), and referred to in paragraph 15 above, of duly qualified
persons in duly sanctioned vacant posts might have been made and the
employees have continued to work for ten years or more but without the
intervention of orders of courts or of tribunals. The question of
regularization of the services of such employees may have to be
considered on merits in the light of the principles settled by this
Court in the cases above referred to and in the light of this judgment.
In that context, the Union of India, the State Governments and their
instrumentalities should take steps to regularize as a one time measure,
the services of such irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not under cover of orders of
courts or of tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant sanctioned posts that
require to be filled up, in cases where temporary employees or daily
wagers are being now employed. The process must be set in motion within
six months from this date. We also clarify that regularization, if any
already made, but not sub judice, need not be reopened based on this
judgment, but there should be no further by-passing of the
constitutional requirement and regularizing or making permanent, those
not duly appointed as per the constitutional scheme."
The
observations of the Constitution Bench in paragraph 53 of the decision
in Umadevi were elaborately explained in a subsequent decision of a
Bench of two learned Judges of the Supreme Court in State of Karnataka
Vs M L Kesari28. The exception which the judgment contemplated to the
general principle which militated against regularization was laid down
as follows: "It is evident from the above that there is an exception
to the general principles against `regularization' enunciated in
Umadevi, if the following conditions are fulfilled: (i) The employee
concerned should have worked for 10 years or more in duly sanctioned
post without the benefit or protection of the interim order of any court
or tribunal. In other words, the State Government or its
instrumentality should have employed the employee and continued him in
service voluntarily and continuously for more than ten years. (ii)
The appointment of such employee should not be illegal, even if
irregular. Where the appointments are not made or continued against
sanctioned posts or where the persons appointed do not possess the
prescribed minimum qualifications, the appointments will be considered
to be illegal. But where the person employed possessed the prescribed
qualifications and was working against sanctioned posts, but had been
selected without undergoing the process of open competitive selection,
such appointments are considered to be irregular." (emphasis supplied)
In
M L Kesari's case, the Supreme Court emphasized that the period of six
months as 'a one time measure' would have to be considered in its proper
perspective. At the end of six months from the date of the decision in
Umadevi, cases of several daily wagers/casual employees were still
pending before the Court, as a result of which the one time
regularization process was not undertaken. In many cases, regularization
was not undertaken because cases were pending in courts or due to sheer
oversight. The Supreme Court held that such persons will not lose their
right to be considered for regularization because the one time exercise
was completed without considering their cases or because the six months
period stipulated in Umadevi had expired. In Amarendra Kumar
Mohapatra Vs State of Orissa29, the principles which were laid down in
Umadevi and M L Kesari were applied by the Hon'ble Supreme Court while
considering the validity of a legislative enactment by which
regularization was granted. In the case before the Supreme Court, it was
held that degree holder junior engineers were qualified for appointment
as assistant engineers and they were appointed against sanctioned
posts. All of them had worked for more than ten years and, in some
cases, as long as for twenty years and some of them had, in fact,
retired from their respective departments. In this background, it was
held that the legislative enactment granting regularization did not call
for interference at that late stage. Thus, the validity of a
legislative provision providing for regularisation has also been judged
on this touchstone. An illegal appointment cannot be regularised because
that would infringe Articles 14 and 16. The decision of the
Constitution Bench in Umadevi as well as the subsequent decisions have
circumscribed the power of the State Government to grant regularization
by making a distinction between the illegal and irregular appointments.
The Supreme Court has held that where appointments are not made or
continued against sanctioned posts or where the persons appointed did
not possess the prescribed minimum qualifications, such appointments
would be considered to be illegal. However, if the person employed has
possessed the prescribed qualifications and was working against a
sanctioned post but was selected without going through the process of
open competitive examination, such an appointment would be considered as
irregular. In deciding upon the validity of the provisions made by
the State Government in the amended Rules for regularization, it is
these decisions which have to be applied by the Court. The submission
of the learned Additional Advocate General was that Shiksha Mitras had
continued to work in schools for a long period of 16 years and,
therefore, there is no requirement of asking them to clear the Teachers
Eligibility Test. It was also submitted that since there was a paucity
of qualified Assistant Teachers and there may not be a sufficient number
of eligible candidates, the State is justified in granting appointment
to the Shiksha Mitras as Assistant Teachers. These submissions cannot be accepted.
The
Supreme Court in Yogesh Kumar Vs Government of NCT, Delhi30 held that
mere paucity of candidates holding a TTC qualification would not justify
a departure from the prescribed qualifications.
Teachers
Eligibility Test is conducted to ensure that a person has the required
knowledge and aptitude to teach students studying in classes I to V.
This is an important test which cannot be ignored even if a person has
been engaged in teaching students of classes I to V for a number of
years as Shiksha Mitra. In Dilip Kumar Ghosh Vs Chairman31, the Supreme
Court formulated the following principle: "(i) In the case of the
junior basic training and primary teachers training certificate the
emphasis is on the development of the child. The primary education is up
to IVth standard. Thereafter there is middle education and then the
secondary and higher secondary education. But in the primary school one
has to study the psychology and development of child at a tender age.
The person who is trained in B.Ed. Degree may not necessarily be
equipped to teach a student of primary class because he is not equipped
to understand the psychology of a child at that early stage."
The
concept of relaxation which was explained by the Supreme Court in
Umadevi's case requires that a person at the time of engagement must
possess the requisite qualifications under the service rules. It is,
therefore, important that Shiksha Mitras at the time of initial
engagement should have possessed the requisite qualifications contained
in the service rules. This is also what was observed by the Supreme
Court in Pramod Kumar Vs U P Secondary Education Services Commission32.
The Supreme Court held that if the essential qualification for
recruitment to a post is not satisfied, ordinarily the same cannot be
condoned and an appointment which is contrary to the Statutes/statutory
rules would be void in law.
From the material which has emerged
before the Court, it is clear that Shiksha Mitras to whom the benefit of
regularization has been granted neither fulfilled the prescribed
minimum qualifications nor were they appointed against sanctioned posts.
The fact that Shiksha Mitras did not fulfill the qualifications
prescribed by NCTE which has the unquestioned jurisdiction under the
NCTE Act of 1993 and RTE Act of 2009 is evident from the fact that the
State Government, by inserting Rule 16-A into the Rules of 2011 has
assumed to itself a power to relax the minimum qualifications required
to be observed, in the case of Shiksha Mitras. In other words, by Rule
16-A, the State Government has created an island of exclusion for the
benefit of Shiksha Mitras who, in the exercise of the rule-making power
of the State under Rule 16-A, would not have to fulfil the minimum
qualifications prescribed by NCTE. The State Government has sought to
get over the inseparable obstacle that the Shiksha Mitras do not fulfil
the TET requirement by unlawfully conferring power on itself to relax
the requirement. Having committed that illegality, the State has
proceeded to do away with the TET qualification in its application to
Shiksha Mitras, by unlawfully amending the service rules. These
amendments have been held to be ultra vires and an impermissible
encroachment on the exclusive domain of NCTE. Having done this the State
Government has compounded its illegality by regularising/absorbing the
Shiksha Mitras as Assistant Teachers. As a consequence, qualified
candidates fulfilling the NCTE norms are denied the equality of
opportunity to seek appointment as Assistant Teachers. We have earlier
held Rule 16-A to be ultra vires the rule-making authority of the State
Government since the power to grant a relaxation from the minimum
qualifications is vested exclusively in the Central Government. In
assuming to itself a power to relax the minimum qualification and
thereafter by diluting the minimum qualifications in the case of Shiksha
Mitras, the State Government has patently acted in a manner which is
arbitrary, ultra vires the governing central legislation and in breach
of the restraint on the limits of its own statutory powers. By this
exercise, the State Government has sought to grant regularization to
persons who failed to fulfil the minimum qualifications and who were
never appointed against sanctioned posts. In these circumstances, the
grant of largesse by the State Government to Shiksha Mitras cannot be
upheld and the amendment to the Rules is ultra vires and
unconstitutional. The Additional Advocate General submitted that
Shiksha Mitras were appointed in pursuance of a scheme implemented by
the State Government and hence their appointments cannot be regarded as a
backdoor entry. This submission will not support the absorption of
Shiksha Mitras as Assistant Teachers in the regular service of the
State. In Grah Rakshak, Home Guards Welfare Association Vs State of
Himachal Pradesh33, Home guards appointed by the States of Himachal
Pradesh, Punjab and NCT of Delhi sought regularisation of their services
but their writ petitions were dismissed by the High Court. The Supreme
Court held that the enrolment of the Home guards may not have been a
back door engagement, but that would not entitle them to regularisation
of service or the grant of regular appointments. They were never paid a
regular salary and were engaged only as volunteers. They were not
regular appointees in the service of the State. They had agreed to the
conditions of engagement, by making declarations. In the present
case, it is evident that the Shiksha Mitras do not fulfil any of the
norms laid down by the Supreme Court for regular absorption into the
service of the State. They were at all material times appointed as and
continued to be engaged as contractual appointees. Their appointments
were not against sanctioned posts. They did not fulfil the minimum
qualifications required for appointment as Assistant Teachers.
C12 Locus of the petitioners Admittedly,
all the petitioners were qualified to apply for and be considered for
appointment as Assistant Teachers. Their right of consideration was
clearly affected and is in fact eclipsed by the absorption of Shiksha
Mitras. It cannot therefore be said that the petitioners lacked locus to
maintain the writ petitions.
PART D : OPERATIVE ORDERS For all these reasons, we allow the writ petitions in the following terms: (i)
The amendment made by the State Government by its notification dated 30
May 2014 introducing the provision of Rule 16-A in the Uttar Pradesh
Right of Children to Free and Compulsory Education Rules, 2011 by the
Uttar Pradesh Right of Children to Free and Compulsory Education (First
Amendment) Rules 2014 is held to be arbitrary and ultra vires and is
quashed and set aside; (ii) The Uttar Pradesh Basic Education
(Teachers) Service (Nineteenth Amendment) Rules 2014, insofar as they
prescribe as a source of recruitment in Rule 5(2) the appointment of
Shiksha Mitras; the academic qualifications for the recruitment of
Shiksha Mitras in Rule 8(2)(c) and for the absorption of Shiksha Mitras
as Assistant Teachers in junior basic schools under Rule 14(6) are set
aside as being unconstitutional and ultra vires; and (iii) All
consequential executive orders of the State Government providing for the
absorption of Shiksha Mitras into the regular service of the State as
Assistant Teachers shall stand quashed and set aside. The batch of writ petitions shall stand disposed of in the aforesaid terms. However, there shall be no order as to costs. Order Date:- 12.09.2015 AHA (Dr D Y Chandrachud, CJ)
