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Wednesday, August 19, 2015

UPTET SARKARI NAUKRI News - JRT ORDER PART 12 -

UPTET SARKARI NAUKRI   News - JRT ORDER PART 12 -

85. The common men's schools cater the need of Primary Education to only those poor people, whom Hon'ble Mr. Justice Krishna Iyer once said, "tiny million Indians", who find it difficult to make arrangement for two times of meals what to talk of other things. Whatever is made available by system they have no choice but to avail it in conditions "as and where it is". The Government at the level of State and Central, both, are harping every time and almost very frequently on the need of improved Primary School, but their intention has not resulted in execution and reality at grass root level.
86. The hard real fact is that these institutions, run by Board of Basic Education, are victim of highest level of misappropriation, maladministration and widespread corruption. Standard of teaching is the biggest casualty. Nobody cares for making improvement in the standard of tutorial staff. A competition is going on for political reasons to make lacs of vacancies available in Primary Schools as a source to create committed voters by appointing persons, if not illiterate, but not really competent to teach children of Primary School. A competition is going on to somehow get such persons appointed as teachers in these schools whom they would not like at all to teach their own children. Initially, after making statutory rules under Act, 1972, in 1975, 1978 and 1981, the State tried to fill up the gap of teachers vacancies by appointing much lesser qualified persons i.e. Shiksha Mitra, Anganbari Karyakatri etc. A persistent effort is going on now to absorb these persons as Teachers in Primary Schools run by the Board, if necessary, even by frequent amendments in Rules, without caring but compromising with standard. Is State not answerable to the people at large that competent Teachers should be appointed in Primary Schools by those who are administering institutions so as to make such institutions at par with those where they like to have their wards taught. Since bureaucrats, politicians, rich people and others, all have their alternative channel by having their wards taught in Primary Schools falling in the category of Elite and Semi-Elite, nobody cares of the standard to be maintained in Primary Schools of the Board.
87. A competition is going on to bring standard of Common-men's Schools down, as much as possible. In my view, now the time has come where immediate attention need be drawn for improvement, not only of infrastructure in these institutions but first of all in respect of teaching staff. That is the basic purpose for which the entire system of Basic Education is, consuming huge public money from public exchequer. The time has come where State must make it compulsory to all those who gets salary, perks and other benefits from State exchequer to have their wards sent to Primary Schools maintained by Board which I have termed Common-men's Schools and not to Schools which, come in the category 1 and 2, i.e., Elite and Semi-Elite and are privately managed. In case, any one flouts this condition, a penal provision should also be made. It is only then the improvement of these institutions will be ensured by those who are responsible for its management in a proper way. It will also boost social equation. It will give an opportunity to children of common men to interact and mix-up with children of so-called high or semi high society, giving them a different kind of atmosphere, confidence and other opportunities. This would give a boost and bring revolution in changing Society from grass root level. The initial level mixing among all children will have a different consequences.
88. Moreover, when Officials/Government servants would be required to send their wards for primary education in institutions maintained by the Board, they would become serious enough to look into the requirements of concerned Primary Schools and would ensure that same are made available and Schools are run in good/best conditions and standard, else it may affect their own wards.
89. It is the lack of accountability and casual approach on the part of officials of Basic Education Department that mindless, negligent, casual amendments in Rules; defective Government Orders have been issued from time to time creating cause for multifarious litigations resulting not only in delay in appointment of Primary Teachers but also a very heavy pressure on this Court also. Had a little care been there on the part of responsible Officers in making legislation for making recruitment, huge litigation resulting in lacs of vacancies in Primary Schools maintained by Board would not have caused.
90. Therefore, the Chief Secretary, U.P. Government is directed to take appropriate action in the matter in consultation with other Officials, responsible in this regard, to ensure that the children/wards of Government servants, semi-Government servants, local bodies, representatives of people, judiciary and all such persons who receive any perk, benefit or salary etc. from State exchequer or public fund, send their child/children/wards who are in age of receiving primary education, to Primary Schools run by Board. He shall also ensure to make penal provisions for those who violate this condition; for example, if a child is sent to a Primary School not maintained by Board, the amount of fee etc. paid in such privately managed Primary School, an equal amount shall be deposited in the Government funds, every month, so long as such education in other kind of Primary School is continued. This amount collected can be utilised for betterment of schools of Board. Besides, such person, if in service, should also be made to suffer other benefits like increment, promotional avenues for certain period, as the case may be. This is only illustrative. The appropriate provisions can be made by Government so as to ensure that ward(s)/child/children of persons, as detailed above, are compelled necessarily to receive primary education in the Primary Schools run by Board.
Result:
91. In the result, subject to directions as contained above, Writ Petitions No. 57476 of 2013 and 28003 of 2015 are partly allowed. Respondents shall re-prepare the list of candidates under Rule 14 of Rules, 1981 in accordance with law and in the light of observations made above and, thereafter proceed to make appointment accordingly.
92. Writ Petitions No. 58712 of 2013, 62241 of 2013, 50787 of 2013, 57236 of 2013, 2999 of 2015, 15541 of 2015 and 628 of 2015 are dismissed.
93. Writ Petition No. 28977 of 2015 is disposed of with the direction that in case petitioner's name finds mention in the list now prepared by respondent in the light of this judgment passed in First and Second Petition, Group-A, respondents shall proceed to make appointment of petitioner without any further delay.
94. With regard to directions contained in Para 90, effective steps shall be taken by Chief Secretary within six months so as to make the aforesaid directions effective from the next academic session of Primary Schools, and, a compliance report shall be submitted to this Court by way of affidavit immediately after expiry of period of six months.
Dt. 18.08.2015
PS

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UPTET SARKARI NAUKRI News - JRT ORDER PART 11 -

UPTET SARKARI NAUKRI News - JRT ORDER PART 11 -

Group-E:
74. Now coming to sole writ petition in Group-E, i.e., Writ Petition No. 628 of 2015, here the question of benefit of reservation has been raised. It is said that those who have passed TET examination, taking advantage of reservation with lower marks cannot be considered against vacancies available for general category advertised for recruitment under Rules, 1981.
75. In my view, the submission is thoroughly misconceived.
76. TET examination is one of the qualifications. At the time of obtaining qualification, if some concessions are provided to the candidates belong to Other Backward Classes, Scheduled Castes or Scheduled Tribes, etc. as are permissible under Article 15 (3) and 16(3) (4) read with Article 14, it cannot be said that those concessions will debar those candidates to participate in a recruitment process against general vacancies. Earlier benefit was only in the context of acquiring qualification, and rest is a matter of contest in recruitment and appointment availing equal opportunity of employment or as provided in the Rules for reserved category candidate. Recruitment commences with advertisement. Before that, while acquiring any qualification or eligibility test, if some concession have been availed by reserved category candidates, that will not deprive them of opportunity to contest for unreserved vacancies in the recruitment. The distinction in respect of eligibility conditions, qualifications and the concessions available therefor and the benefit of reservation in recruitment has been discussed in detail by a Division Bench of this Court in Sanjeev Kumar Singh Vs. State of U.P. and others 2007(2) ALJ 86 and appellate judgment of Apex Court in Jitendra Kumar Singh and another vs. State of U.P. and others; (2010) 3 SCC 119.
77. In view thereof, the mere fact that some of the candidates have passed TET examination having benefit of reserved category candidates, cannot be treated to be an identity of those candidates to deny them participation in recruitment for the post of Assistant Teacher in question against general vacancies since it is a different phenomena and procedure vis-à-vis the TET examination. Holding of TET examination was not under Rules, 1981 while recruitment under Rules, 1981 commences with the advertisement and, therefore, it is different entirely.
78. In view thereof, I find no merits in this writ petition also and it deserves to be dismissed.
79. However, before parting, this Court finds something necessary to be said with respect to primary education in the State and shabby manner it is being dealt with by the Department and Officers responsible therefor which has resulted in multiple litigation also. It is a matter of common knowledge that basic education in State of U.P. is being administered through the Department of Basic Education, which is under the Secretary (Basic Education) and is under a separate ministry. Annual budget allocation for maintaining basic schools recognized by U.P. Board of Basic Education (hereinafter referred to as "Board") under the provisions of U.P. Basic Education Act, 1972 (hereinafter referred to as "Act, 1972") is one of the highest budgetary allocations. The total number of Primary Schools, i.e. Jr.P.S. and Sr.P.S. is around 1.4 lacs which are maintained by Board. The number of teaching staff and Head Masters, therefore, also come to be in lacs. Division Bench judgment in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra) has noticed that about 2.70 lacs posts of Assistant Teachers in Primary Schools run by Board are lying vacant. That was in November' 2013. The recruitment of thousands of posts at a time used to commence but got trapped in huge litigation due to unmindful, irregular and casual approach of the official(s) responsible for managing such recruitment, lack of accountability and credibility as well as sincerity. Unmindful and casual legislation by way of frequent amendment of Rules has worsened the situation.
80. Today, judicial cognizance can be taken of the fact that there are three categories of Primary Schools running in the State of U.P., imparting education to minor children of this State. One of such categories, which is catering to the need of almost 90 per cent of the population of minor children are run by Board and in the most shabby conditions.
81. There are a very few number of Primary Schools run by elite and highly privileged category of people which are branded public schools. Some English/Convent Schools are run by Christian minority wherein children of poor and lower-middle class have virtually negligible scope. This category of Schools basically cater to the need of highly rich people, high class Bureaucrats, Ministers, peoples' representatives, like, Members of Parliament, Members of Legislative Assemblies and high-middle class people. The wards of a limited class of elite society can get education therein. Most of the people cannot meet even financial standards of fees. Admission standards are very strict and mostly available due to high resources. These Schools have best kind of infrastructures, tutorial staff and all other facilities. These Schools can be termed as 'Elite Schools'.
82. In the second category comes, those Primary Schools which are run by normally some private bodies or individuals, catering to wards of lower middle class. Though infrastructure in these Schools is not so sophisticated and ultra modern as that of Elite Schools, still is much better and comparatively even tutorial staff is sufficiently good. They may be termed 'Semi-Elite Schools'.
83. However, in the third category comes almost all Primary Schools run and managed by Board under its administration. These can be termed as 'Common-men's Schools'. They are the Schools, who cater to the entire category of rural class, urban rural class and those who cannot afford expenses of other two categories. The number of students therein constitute almost 90 per cent population of minor children in the State. The real catch lies here.
84. The Constitution has now recognized primary education as a fundamental right for children from 6 to 14 years of age, i.e., virtually upto Class-VIII. In the name of discharge of this constitutional obligation, as already said, more than 1.25 lac and odd Jr.P.S. and Sr.P.S. are being run by Board of Basic Education, for which funds are provided by State. The education in these Schools is supposed to be free, but that is how every thing is free. Virtually a complete lack of infrastructure one can find in these Schools. After more than 65 years of independence, these Schools are still struggling to have basic amenities for children, coming thereat, like drinking water, space for natural calls etc. Even classrooms are in extremely shabby and bad conditions. At many places, classes are being run in open space. The structure, if any, is in dilapidated condition. Though huge money is being invested and spent every year in the name of welfare, of basic education to the wards of poor people but actually nothing has improved. It is not difficult to understand, why conditions of these Schools has not improved. The reason is quite obvious and simple, though the State Government is not able to see. There is no real involvement of administration with these Schools. Any person who has some capacity and adequate finances, sends his child/children in Elite and Semi-Elite Primary School. They do not even think of sending their wards for primary education to Schools run and managed by Board. Whether it is the District Collector or Police Chief in the District or any other Government Servant, they ensure that their children should get primary education in Primary Schools having better infrastructure and other facilities which obviously belong to first and second categories of Primary Schools, as noted above and completely exclude third category Schools, i.e. Common-men's Schools. The public administration therefore has no actual indulgence to see functioning and requirements of these schools. These schools have become a mode of earning political mileage instead of real catering to its need.

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UPTET SARKARI NAUKRI News - JRT ORDER PART 10 -

UPTET SARKARI NAUKRI News - JRT ORDER PART 10 -

61. Whether this substitution and alteration in the source of recruitment is permissible? Instead of 100 per cent promotion on the post of Assistant Teacher, Sr.P.S. now 50 per cent shall be recruited by promotion and rest 50 per cent by direct recruitment whether it affects any vested right? In my view, none of the fundamental rights have been infringed nor any vested right has been divested.
62. The contention pre-supposes that an employee has a vested right to be governed by Rules as they stand on the date of his entry in service and rule framing authority would have no power to make amendment in the Rules in one or the other manner. Once the power of legislation is there, it can be exercised from time to time which includes new legislation or replacement of entire existing legislation by a new one. In the present case, Rule 5, as it stood earlier, provided for only source of recruitment on the post of Assistant Teacher, Sr.P.S. "by promotion". Now the rule framing authority has made a change that only 50 per cent shall be recruited by promotion and remaining 50 per cent by direct recruitment. An employee working in feeder cadre wherefrom promotion is to be made on higher post, has no vested right in respect to number of posts in higher cadre to be filled in from any particular source of recruitment. The reason being that the right conferred by Article 16 is only a fundamental right of consideration for promotion and not chance of promotion. Whenever, vacancy in higher cadre is available and under the Rules is liable to be filled in by promotion, it shall be filled in accordingly, but it cannot be said that rule framing authority cannot make any alteration with respect to quota to be determined by Rules.
63. In Dwarka Prasad and others Vs. Union of India and others 2003 (6) SCC 535, the Court said:
"Articles 14 & 16 of the Constitution of India cannot be pressed into service to describe the fixation of lower quota for POs as discriminatory. It is well established in law that the right to be considered for promotion on fair and equal basis without discrimination may be claimed as a legal and a fundamental right under Article 14 & 16 of the Constitution but chances of promotion as such cannot be claimed as of right." (emphasis added)
64. In Reserve Bank of India Vs. N. C. Paliwal AIR 1976 SC 2345, there was a integration of non clerical with clerical service. It was challenged as infringing the principles of equality. Court held that it is entirely a matter of State to decide to have the several different cadres or one integrated cadre in its service. That is a matter of policy which does not attract the applicability of equality clause.
65. In State of Mysore Vs. G.B. Purohit 1967 SLR 753, the Court said that though a right to be considered for promotion is a condition of service, mere chances of promotion are not and that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service.
66. In Mohammad Shujat Ali and others Vs. Union of India (UOI) and others 1975 (3) SCC 76, a Constitution Bench said that mere chance of promotion is not a condition of service.
67. Here by altering the number of vacancies available for promotion by making amendment in Rules, only chances of promotion have been affected and not the right of promotion. Therefore, basic contention, in my view, stands on a fallacy and has to be rejected outright. No authority has been cited in favour of proposition that such alteration by amendment in Rules is not possible.
68. By amending Rules, the right to be considered for promotion to the post of Assistant Teacher, Sr.P.S. has not been denied at all but what the Rule provides is that availability of vacancies to higher post now stands reduced to 50 per cent, meaning thereby, it is the chance of promotion which has been affected and not the right of promotion. Besides, it is not the case that the Rule framing authority otherwise has any incompetency in framing the Rules, therefore, by amending Rules and changing source of recruitment by providing 50 per cent by direct recruitment and 50 per cent by promotion, in my view, no invalidity has been brought in Rules and Rule 5 cannot be said to be bad in law in any manner.
69. All these writ petitions, therefore, have no substance and deserve to be dismissed.
Group-C:
70. The two writ petitions in Group-C, i.e., Writ Petitions No. 57236 of 2013 and 2999 of 2015 are founded on patently fallacious submissions.
71. It is contended that in Sr.P.S., the post of Assistant Teacher should not be advertised subjectwise. The submission is thoroughly misconceived. It cannot be doubted that in Sr.P.Sc, specified subjects are taught to students. The Teachers, who have no knowledge of Science or Maths cannot be expected to teach students in the subjects of Maths and Science with appropriate efficiency. Therefore, the contention that recruitment cannot be made subjectwise is wholly misconceived. In Writ Petition No. 2999 of 2015, an attempt has been made to read the words "Subject Teachers" as constituting a single group irrespective of the subject. It is urged that it should be treated in contradiction with 'Language Teachers'. Here also purposive reasonable interpretation has to be given. The rule framing authority has divided, broadly the category of Teachers as Language Teachers, like, Hindi, Urdu, Sanskrit, English; and, for remaining subjects, it has used the words "Subject Teachers". This Court does not find any justification to read that for all subjects other than languages, there is no scope under Rules for making any distinction and even if the Teachers are required for imparting education in Science and Maths, recruitment can be made without specifying the aforesaid subjects and by recruiting persons who have no knowledge, whatsoever, in Maths and Science and are not competent at all to teach those subjects. These writ petitions, therefore, have no merit and deserve to fail.
Group-D:
72. The sole writ petition in Group-D is Writ Petition No. 15541 of 2015. It has been filed by 5 petitioners, namely, Rohit Kumar, Arvind Kumar, Mukesh Kumar Yadav, Buddhi Lal and Shailendra Kumar, seeking a mandamus directing respondents not to allow counselling to such professional degree holders, who are not eligible as per advertisement/notification dated 23.8.2013, as clarified by Secretary, Basic Education Board in its affidavit filed before Lucknow Bench of this Court in Writ Petition No. 5348 of 2013 and to exclude such candidates from the zone of consideration. It is suggested that the candidates possessing degree of B.Sc. (Agriculture), B.Tech., B.C.A., B.B.A., BUMS, MHMUS and B. Pharma are not eligible to apply for the post of Assistant Teacher in Sr.P.S. since these are professional degrees and cannot be treated to be Science graduation degree so as to make them eligible to participate in the aforesaid selection. Names of some of candidates are given in para 24 of the writ petition, though none of them has been made party in the writ petition.
73. I find basic submission absolutely fallacious and misconceived. Though degrees of B.Sc. (Agriculture), B.Tech., B.C.A., B.B.A., BUMS, MHMUS and B. Pharma etc. provide education in certain fields making the incumbents professional in a particular aspect, and, therefore, they are called "professional course", but it cannot be doubted at all that these all are bachelor degrees and, therefore, those, who possess these qualifications, are graduates in those disciplines. It, thus, cannot be said that when requirement is graduation, professional courses can be excluded. It is nothing but reading something which is not provided in the Rules, which, in my view, is neither permissible nor there is any compulsion to do so. In view thereof, this writ petition, in my view, lacks merits and deserves to be dismissed.
Group-E:

UPTET SARKARI NAUKRI News - JRT ORDER PART 9 -

UPTET SARKARI NAUKRI   News - JRT ORDER PART 9 -

50. There is one more angle from which the matter can be examined. Rule 14 (3) of Fifteenth Amendment Rules, 2012 was already struck down by Division Bench in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra). Rule 14(3)(a) of Sixteenth Amendment Rules, 2012 in all respects is pari-materia to Rule 14 (3). Therefore, the reasons which impelled this Court to declare Rule 14(3), Fifteenth Amendment Rules, 2012 ultra vires equally apply to Rule 14(3) (a) and (b) of Sixteenth Amendment Rules, 2012 also. I have no hesitation in my mind that for the reasons contained in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra), Rule 14 (3) of Sixteenth Amendment Rules, 2012 also cannot be sustained and it is also arbitrary and ultra vires.
51. In view of the above, Writ Petitions No. 57476 of 2013 and 28003 of 2015 are allowed partly. Respondents are directed to prepare the list of candidates under Rule 14 of Rules, 1981 afresh, in accordance with law and thereafter proceed to make appointment accordingly.
52. Writ Petition No. 28977 of 2015 is disposed of with the direction that in case petitioner's name finds place in the list now re-prepared by respondents in the light of this judgment in First and Second Petition, respondents shall proceed to make appointment of petitioner without any further delay.
Group-B:
53. Writ Petition No. 58712 of 2013 (hereinafter referred to as "First Petition, Group-B") is at the instance of two petitioners, namely, Jayant Kumar Singh and Pramod Kumar, who have sought a writ of certiorari for quashing Notification dated 29.08.2013 published in daily newspaper dated 30.08.2013 for appointment of 151 Assistant Teachers of Maths and 151 Assistant Teachers of Science in Sr.P.S. (i.e. the Junior High School) and to declare the amendment made in Rule 5 providing 50 per cent recruitment by promotion and 50 per cent by direct recruitment as ultra vires on the ground that amendment is harsh, unjust and otherwise illegal being discriminatory.
54. Writ Petition No. 62241 of 2013 (hereinafter referred to as "Second Petition, Group-B") has been filed by four petitioners, namely, Sabarjeet Verma, Arun Kumar Singh, Manik Chandra Patel and Ram Ashraya Yadav, seeking a writ of certiorari for quashing GO dated 11.07.2013 insofar as it proceeds for recruitment of Assistant Teachers in Sr.P.S. by direct recruitment. The basic contention is that under Rules, 1981, earlier, recruitment on the aforesaid post of Assistant Teachers, Sr.P.S. was solely on the basis of promotion but by means of amendment, now 50 per cent vacancies have been made available for direct recruitment and only 50 per cent are available for promotion. This reduction in number of vacancies available for promotion is arbitrary and illegal. It is said that this amendment made by Sixteenth Amendment Rules, 2012 is bad.
55. Writ Petition No. 50787 of 2013 (hereinafter referred to as "Third Petition, Group-B") is at the instance of five petitioners, Satya Prakash Singh, Sanjay Kumar Dwivedi, Gyan Prakash Yadav, Anil Kumar Singh and Archana Kumari, who have challenged the advertisement dated 30.08.2013 published in daily newspaper "Amar Ujala" for making recruitment on the post of Assistant Teacher, Sr.P.S. in Science Group by way of direct recruitment. They have also assailed the GO dated 11.07.2013 as ultra vires to Rule 5 of Rules, 1981 providing for direct recruitment on the aforesaid post and they have sought a mandamus, commanding respondents to proceed to make appointment only by promotion on the aforesaid posts.
56. For the purpose of having brief facts, with the consent of learned counsels for parties, I have taken Writ Petition No. 58712 of 2013 as leading case. In this writ petition, two petitioners, namely, Jayant Kumar singh and Pramod Kumar, both were appointed as Assistant Teacher in Jr.P.S. in 2006 and 30.12.2005 respectively. Under Rules, 1981, they were entitled to be considered for promotion to the post of Assistant Teacher, Sr.P.S. or Head Master, Jr.P.S after acquiring eligibility. District Basic Education Officer, Chandauli determined 151 vacancies of Assistant Teachers in Sr.P.s. for Science and 151 vacancies of Assistant Teachers in Sr.P.S. for Maths which were to be filled in by promotion. He initiated selection process by issuing Notification dated 13.8.2013 published in Daily News Paper "Dainik Jagran". All eligible and qualified candidates were to attend counseling at District Institute of Education and Training (DIET), Chandauli on 16.8.2003. When they reached the venue, it was informed that counseling has been cancelled and next date shall be informed but none was informed. Instead, another Notification dated 29.8.2013 was published for recruitment of 151 Assistant Teachers (Science) and 151 Assistant Teachers (Maths) in Jr.P.S. by direct recruitment. The aforesaid advertisement/Notification dated 29.8.2013 published in Daily Newspaper "Dainik Jagran" on 30.8.2013 has been issued pursuant to GO dated 11.7.2013 whereby Rules 5 and 8 of Rules, 1981 have been amended, providing 50 per cent posts to be filled in by promotion and 50 per cent by direct recruitment, though earlier all these posts of Assistant Teachers, Sr.P.S. were available for promotion only. Consequently, it is contended that this amendment in the Rules is arbitrary and violative of Articles 14 and 16.
57. It is, however, not disputed that Rule 5 was amended vide Notification dated 30.8.2012 and when advertisement dated 13.8.2013 was issued, this amendment of Rule 5 was not noticed. In fact, in ignorance of amendment of Rule 5, the authority issued notice of vacancies to be filled in by promotion, but did not proceed when this omission came to their knowledge.
58. Basic contention of learned counsel appearing in these three writ petitions (Group-B) is that alteration in the source of recruitment and to the extent recruitment is to be made from particular source is illegal and arbitrary inasmuch petitioners on the date of appointment in feeder cadre, i.e., Assistant Teacher, Jr.P.S. had a right to be considered for promotion to all the posts of Assistant Teachers available in various Sr.P.S. by way of promotion and that right stood vested in them which cannot be divested by reducing the number of vacancies of Assistant Teacher, Sr.P.S. available to Teachers in feeder cadre. Now it has been reduced from 100 per cent to 50 per cent.
59. In view of the above, the question, which has to be considered, is "whether an employee has a vested right in respect of quota determined for promotion in the higher post"; and, "whether the rule framing authority cannot change the extent and strength of promotion quota by exercising power of amendment of Rules".
60. A perusal of Rules, 1981 as amended vide Fifteenth Amendment Rules, 2012 makes it clear that Rule 5 has now been substituted by another Rule 5 and it reads as under:
5- Sources of recruitment- The mode of recruitment to the various categories of posts mentioned below shall be as follows:
5- Sources of recruitment- The mode of recruitment to the various categories of posts mentioned below shall be as follows:
(a) (i) Mistresses of Nursery Schools
By Direct recruitment as provided in rules 14 and 15
(a) (i) Mistresses of Nursery Schools
By Direct recruitment as provided in rules 14 and 15
(ii) Assistant Masters and Assistant Mistresses of Junior Basic Schools
-Ditto-
(ii) Assistant Masters and Assistant Mistresses of Junior Basic Schools
-Ditto-
(b)(i) Head Mistresses of Nursery Schools
By promotion as provided in the rule 18;
(b)(i) Head Mistresses of Nursery Schools
By promotion as provided in the rule 18;
(ii) Head Masters and Head Mistresses of Junior Basic Schools
By promotion as provided in Rule 18;
(ii) Head Masters and Head Mistresses of Junior Basic Schools
By promotion as provided in Rule 18;
(iii) Assistant Masters of Senior Basic Schools
-Ditto-
(iii) Assistant Masters of Science-Maths for Senior Basic Schools
50% by direct recruitment and 50 % by promotion
(iv) Assistant Mistresses of Senior Basic Schools
-Ditto-
(iv) Assistant Mistresses of Science-Maths for Senior Basic Schools
-Ditto-

(v) Assistant Masters of other than Science-Maths for Senior Basic Schools
By promotion as provided in rule 18;

(vi) Assistant Mistresses of other than Science-Maths for Senior Basic Schools
-Ditto-
(v) Head Masters of Senior Basic Schools
-Ditto-
(vii) Head Masters of Senior Basic Schools
-Ditto-
(vi) Head Mistresses of Senior Basic Schools
-Ditto-
(viii) Head Mistresses of Senior Basic Schools
-Ditto-
Provided that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv) above appointment may be made by direct recruitment in the manner laid down in rule 15.
Provided that if suitable candidates are not available for promotion to the posts mentioned at (v) and (vi) above appointment may be made by direct recruitment in the manner laid down in rule 15.

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UPTET SARKARI NAUKRI News -JRT ORDER 8 -

UPTET SARKARI NAUKRI News -JRT ORDER 8 -

35. Whenever a provision, whether principal or subordinate legislation, is struck down, being ultra vires and/or violative of any provision of Constitution, and, in particular, fundamental rights under Part-III of the Constitution, in view of declaration contained in Article 13(2) of the Constitution, such provision is void-ab-initio. It is like a stillborn provision incapable of repeal or substitution of an existing provision.
36. In N.P.V. Sundara Vs. State of Andhra Pradesh AIR 1958 SC 468 considering the doctrine of still-born piece of legislation a Constitution Bench said:
"If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect to breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment."
37. In Sagir Ahmad Vs. The State of U.P. & Ors AIR 1954 SC 728 the Court examined challenge to the Constitutional validity of U.P State Transport Act, 1951 under which the State was enabled to run Stage Carriage Service to the exclusion of others. In exercise of its power under the Act, the State Government made a declaration extending the Act to a particular area and frame a scheme for operation of stage carriage service on certain routes. At the relevant time, State did not have the power to deny citizen of his right to carry on transport service. However, after the Constitution (First) Amendment Act of 1951, the State became entitled to carry on any trade or business either by itself or through Corporation, owned or controlled by it, to the exclusion of private citizens wholly or in part. One of the question raised was whether Constitution (First) Amendment Act could be invoked to validate an earlier legislation. The Court held that the Act was unconstitutional at the time of enactment and therefore it was stillborn and could not be vitalized by a subsequent amendment of the Constitution removing constitutional objection and must be re-enacted. Hon'ble Mukherjea, J. speaking for the Court referred to Prof. Cooley in his work on "Constitutional Limitations" (Vol. I page 384) and said:
"a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted".
38. The Hon'ble Court further observed that it is of the view that this is a sound law.
39. This view was reiterated in Deep Chand Vs. The State of U.P. & Ors. AIR 1958 SC 648 where the Court said that a plain reading of Article 13(2) indicates, without any reasonable doubt, that prohibition goes to the root of the matter and limits State's power to make law; the law made in spite of the prohibition is a still-born law.
40. Again another Constitution bench in Mahendra Lal Jaini Vs. State of U.P. AIR 1963 SC 1019 reiterated the above view in para 22 of the report. It says,
"..it must be held that unlike a law covered by Art. 13(1) which was valid when made, the law made in contravention of the prohibition contained in Art. 13(2) is a still-born law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse." (emphasis added)
41. This view has been followed in Rakesh Vs. Dr. JT 2005 (12) SC 1.
42. Once a Rule is struck down as arbitrary, unreasonable and violative of Article 14, the effect is as if such a provision was never in effect, being 'stillborn'. Even if, in a given case, in subsequent amendment, there is a reference of such provision which has been struck down, yet it cannot be followed being non-est. The mere fact that before being struck down, it has been referred to in a subsequent amendment, would make no difference.
43. Respondents-authorities, in my view, therefore were not entitled to prepare list of candidates selected for appointment in accordance with Rule 14(3) of Fifteenth Amendment Rules, 2012, read with Appendix which has been referred to as Appendix-I in Sixteenth Amendment Rules, 2012, since the Appendix which has been subsequently referred to as Appendix-I in Sixteenth Amendment Rules, 2012, has rendered non-est. Rule 14(3) of Fifteenth Amendment Rules, 2012 in its entirety having been struck down by this Court as arbitrary and unreasonable, it disappears, as if, it never existed. Hence list prepared by taking into account aforesaid Appendix is clearly illegal.
44. The next question, which is though necessary but incidental, and of utmost importance arises whether Sub-rule (3) of Rule 14 as it stood before Fifteenth Amendment Rules, 2012 would stand revived or after striking down Rule 14(3) of Fifteenth Amendment Rules, 2012 it would result in a gap in the Rules requiring an appropriate legislation so as to bring on the Statute-book, valid Rule 14 (3).
45. In B.N. Tiwari Vs. Union of India and others AIR 1965 SC question came up for consideration was, whether old Rule revives after substituted Rule is struck down. The Central Services Rules of 1952 provided for carry forward rule whereby unfilled reserved vacancies of a particular year could have been carried forward for one year. In 1955, the said Rules of 1952 were amended by substitution and another Rules providing that unfilled unreserved vacancies of a particular year can be carried forward for two years was brought in. 1955 amendment of Rule was declared ultra vires. The question was, whether this declaration would result in revival of 1952 Rules. A Constitution Bench said that 1952 Rules having already been repealed and substituted by 1955 Rules, after striking down of 1955 Rules, old Rule would not revive.
46. In Firm A. T. B. Mehtab Majid and Co. v. State of Madras AIR 1963 SC 928 also the Court held, where an old Rule has been substituted by a new Rule, it ceases to exist and would not get revive when the new Rule is held invalid.
47. In West U.P. Sugar Mills Association and others Vs. State of Uttar Pradesh and others 2002 (2) SCC 645, following the authorities in B.N. Tiwari (supra) and A. T. B. Mehtab Majid and Co. (supra) a three-Judge Bench also took the same view by showing its total agreement with the statement of law declared in the aforesaid decisions. The Court also said, if there would be still a modification in existing law and subsequent modification is held to be void, it would mean as if earlier law has never been modified or repealed and may continue to be in force but where the earlier provision is repealed by substitution and another provision is brought in, earlier provision will not revive when subsequent provision is struck down. Para 15 of judgment in West U.P. Sugar Mills Association (supra) reads as under:
"15. It would have been a different case where a subsequent law which modified the earlier law held to be void. In such a case, the earlier law shall be deemed to have never been modified or repealed and, therefore, continued to be in force. Where it is found that the legislature lacked competence to enact a law, still amends the existing law and subsequently it is found that the legislature or the authority was denuded with the power to amend the existing law, in such a case the old law would revive and continue. But it is not the case here. It is not disputed that the State government under Section read with Section of the Act, has power to frame rule prescribing the society commission. The State government by substituting new Rule 49 never intended to keep alive the old rule. The totality of the circumstances shows that the old rule was deleted and came to be substituted by new Rule 49 and, therefore, we are of the view that after new Rule 49 ceased to be operative, the old Rule 49 did not revive." (emphasis added)
48. When a provision is substituted by replacing another provision, substitution results in repeal of existing provision. Insertion of another provision brings the effect of replacement to new provision. When the Legislature substitute an existing provision by new one, it means it did not intend to keep alive old rule. There is a distinctions between "supercession" and "substitution". "Substitution" has two steps. First the old rule is made cease to exist, and next, the new rule is brought into existence in its place, while supercession has single stroke of overriding the existing provision. This distinction has been discussed by a three-Judge Bench in Koteswar Vittal Kamath Vs. K. Rangappa Baliga & Co. 1969 (3) SCR 40 and followed in Zile Singh Vs. State of Haryana 2004 (8) SCC 1.
49. Therefore, Rule 14 (3) of Fifteenth Amendment Rules, 2012 having been struck down will not revive the earlier provision and Rule 14 (3) (a) of Sixteenth Amendment Rules, 2012 having referred to a provision, i.e. Appendix, which has already been struck down, is inoperative and cannot be acted upon.

UPTET SARKARI NAUKRI News - JRT ORDER PART 7 -

UPTET SARKARI NAUKRI News - JRT ORDER PART 7 -

30. Now what has come on record is that Rule 14(3) of Fifteenth Amendment Rules, 2012 has been struck down in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra), deciding 29 appeals by a common judgment dated 20.11.2013 by Division Bench consisting of Hon'ble Ashok Bhushan and Hon'ble Vipin Sinha, JJ. The Division Bench has struck down Rule 14(3) on the ground that it is arbitrary, unreasonable and violative of Article 14 of the Constitution. The relevant discussion and findings are as under:
"The 15th amendment rules has been challenged on the ground of it being arbitrary and unreasonable being violative of Article 14 of the Constitution. The notification dated 23.8.2010 issued under Section 23 (1) of the Act, 2009 being under a Parliamentary enactment has to prevail over any rules made by the State under a State Act. The Rules, 1981 right from 1993 contains an Appendix which provides a formula for selecting a teacher. Appendix indicates that selection was based only on the educational qualification of an candidate including the training qualification. After the notification dated 23.8.2010 and guidelines dated 11.2.2011 issued by the National Council for Teacher Education, the State amended its Rules, 1981 by 12th amendment rules to bring it in conformity with the above notification and guidelines. The 12th amendment rules was perfectly in accordance with law and the challenge to the aforesaid rules have also been repelled by this Court in two judgments of Seeta Ram and Govind Kumar Dixit's case (supra). The decision of the State Government not to give any weightage to the marks obtained in the Teacher Eligibility Test Examination-2011 cannot be said to be in conformity with the guidelines of the National Council for Teacher Education referred to above and was clearly arbitrary. The Full Bench of this Court in Shiv Kumar Sharma's case (supra) has already held that the State Government cannot disregard the guidelines of National Council For Teacher Education dated 11.2.2011. The 15th Amendment Rules is thus also contrary to law declared by this Court. The Teacher Eligibility Test (Examination-2011) which has been recognised as an essential qualification for the teachers selection, hence without giving any weightage to the said examination the State cannot proceed with the selection. As noted above, the allegations made against few candidates of committing irregularities in the Teacher Eligibility Test or involvement in criminal offence cannot be a ground to deny benefit of Teacher Eligibility Test to lacs and lacs of the candidates against whom there is neither any allegation nor any charge. The State having not cancelled the Teacher Eligibility Test-2011 and having allowed the Teacher Eligibility Test to be utilised for qualification of candidates ought to have given full effect to the result of the Teacher Eligibility Test examination. The allegations of irregularities and involvement in criminal offence by some candidates was fully neutralised by the State's decision to debar any such candidates from the selection against whom there are allegations of irregularities or involvement in criminal offence. The High Powered Committee has further stated in its report that an undertaking be taken on an affidavit from all the candidates that in event anything adverse is found against them, their selection shall be cancelled. The State having given effect to the notification dated 23.8.2011 as well as the guidelines dated 11.2.2011 issued by the National Council for Teacher Education by amending its rules by 12th amendment rules, which was in consonance with the scheme under the Act, 2009, a Parliamentary enactment cannot be allowed to go back and resort to its old criteria for selection which was prevalent prior to the Act, 2009 and prior to the notification dated 23.8.2010 and guidelines dated 11.2.2011. We are, thus of the view that Rule 14(3) of the 15th amendment rules by which the criteria for selection was changed has to be held to be arbitrary and unreasonable and deserves to be struck down. ....
In view of the foregoing discussions, we conclude that the decision of the State Government to change the criteria of selection by restoring the criteria of selection as prevalent prior to 12th amendment rules was not in conformity with law. The 15th amendment rules, in so far as Rule 14(3) as well as the Government Order dated 31.8.2012 were also not sustainable."
(emphasis added)
31. Having said so, Division Bench also set aside G.O. Dated 31.08.2012, issued consequent to the aforesaid amendment, holding that advertisement dated 30.11.2011 has become ineffective and stands cancelled. Thereafter the Court granted relief in the following manner:
In the result all the Special Appeals are allowed to the following extent:
1. The Government Order dated 26.7.2011 insofar as it directs for restoration of criteria for selection as was prevalent prior to 12th amendment rules is set-aside.
2.The U.P. Basic Education (Teachers) Service Amendment Rules, 2012 (15th Amendment Rules dated 31.8.2012) in so far as Rule 14 (3) is concerned is declared to be ultra-vires to Article 14 of the Constitution and are struck down. Consequently, the Government Order dated 31.8.2012 as well as the communication dated 31.8.2012 issued by the board of Basic Education are set-aside.
3. Respondents are directed to proceed and conclude the selection as per the advertisement dated 30.11.2011 as modified on 20.12.2011 to its logical end within the time allowed by the Central Government vide its notification issued under Section 23 (2) of the Act, 2009.
4. The judgment of the learned Single Judge is modified to the above extent. (emphasis added)
32. This Court has no manner of doubt, when Rule 14(3) as inserted by Fifteenth Amendment Rules, 2012 has been struck down vide Court's judgment dated 20.11.2013, it would result in making this provision, non-est. By that time, G.O. dated 31.8.2012 providing for recruitment was already issued. It has referred to Appendix-A i.e. Appendix-I as inserted in Rules, 1981. Once it is struck down, it disappears from its very inception. Therefore, any preparation of list following Appendix-I of Rule 14 (3) as inserted by Fifteenth Amendment Rules, 2012 would be clearly illegal and erroneous.
33. The case set up by respondent-State is that this selection has been finalized in accordance with Rules, 1981, as amended by Fifteenth Amendment Rules, 2012 and Sixteenth Amendment Rules, 2012. Admittedly they have followed Rule 14(3) and its Appendix, as substituted and inserted by Fifteenth Amendment Rules, 2012, read with Sixteenth Amendment Rules, 2012.
34. Thus, the only question up for consideration is, whether respondents-authorities are justified in preparing list of selected candidates in accordance with Rule 14(3) read with its Appendix, as substituted by Fifteenth Amendment Rules, 2012 read with Rule 14(3) of Sixteenth Amendment Rules, 2012.