No Acts & Articles mentioned in this case
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9529 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 32599 OF
2015)
State of U.P. & Anr. etc. …Appellants
Versus
Anand Kumar Yadav & Ors. etc. …Respondents
WITH
CIVIL APPEAL NOS.9531-9542 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 33328-33339 OF
2015)
CIVIL APPEAL NO.9544 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36019 OF 2015)
CIVIL APPEAL NO.9545 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19097 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) ……CCNo.1621 OF
2016)
CIVIL APPEAL NO.9557 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 34093 OF 2015)
CIVIL APPEAL NO.9576 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36016 OF 2015)
CIVIL APPEAL NO.9571 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36033 OF 2015)
CIVIL APPEAL NO.9574 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36009 OF 2015)
CIVIL APPEAL NO.9575 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36031 OF 2015)
2
CIVIL APPEAL NO.9573 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36032 OF 2015)
CIVIL APPEAL NO.9572 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36007 OF 2015)
CIVIL APPEAL NO.9584 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36014 OF 2015)
CIVIL APPEAL NO.9581 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 33235 OF 2015)
CIVIL APPEAL NO.9570 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36015 OF 2015)
CIVIL APPEAL NO.9569 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36006 OF 2015)
CIVIL APPEAL NO.9577 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36003 OF 2015)
CIVIL APPEAL NO.9583 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36012 OF 2015)
CIVIL APPEAL NO.9585 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36021 OF 2015)
CIVIL APPEAL NO.9580 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36025 OF 2015)
CIVIL APPEAL NO.9582 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36020 OF 2015)
CIVIL APPEAL NOS.9586-9587 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 36262-36263 OF
2015)
CIVIL APPEAL NO.9578 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36028 OF 2015)
3
CIVIL APPEAL NO.9605 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36024 OF 2015)
CIVIL APPEAL NO.9579 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 35999 OF 2015)
CIVIL APPEAL NO.9588 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 16169 OF 2016)
CIVIL APPEAL NO.9636 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19101 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) ……CCNo.21726 OF
2015)
CIVIL APPEAL NO.9589 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 4515 OF 2016)
CIVIL APPEAL NO.9696 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19103 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) ……CCNo.21689 OF
2015)
CIVIL APPEAL NO.9744 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 7131 OF 2016)
CIVIL APPEAL NOS.9697-9698 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos…19110-19111
OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) ……CCNos.2397-2398 OF
2016)
WRIT PETITION (CIVIL)No. 75 OF 2016
WRIT PETITION (CIVIL)No. 112 OF 2016
CIVIL APPEAL NO.9699 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19113 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) ……CCNo.2678 OF
2016)
CIVIL APPEAL NO.9606 OF 2017
4
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 6858 OF 2016)
WRIT PETITION (CIVIL)No. 109 OF 2016
CIVIL APPEAL NOS.9712-9714 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 5137-5139 OF 2016)
WRIT PETITION (CIVIL)No. 99 OF 2016
CIVIL APPEAL NO.9717 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19122 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 3431 OF
2016)
CIVIL APPEAL NO.9721 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19125 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 3304 OF
2016)
CIVIL APPEAL NO.9722 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19130 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 3498 OF
2016)
WRIT PETITION (CIVIL)No. 104 OF 2016
WRIT PETITION (CIVIL)NO. 121 OF 2016
CIVIL APPEAL NO.9723 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19135 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 3574 OF
2016)
WRIT PETITION (CIVIL)No. 102 OF 2016
CIVIL APPEAL NOS.9724-9727 OF 2017
5
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 10228-10231 OF
2016)
CIVIL APPEAL NOS.9728-9731 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 8511-8514 OF
2016)
CIVIL APPEAL NOS.9733-9736 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19138-19141 OF
2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC Nos. 5273-5276 OF
2016)
CIVIL APPEAL NOS.9756-9759 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 20444-20447 OF
2016)
CIVIL APPEAL NOS.9737-9739 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos.19143-19145 OF
2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC Nos. 5270-5272 OF
2016)
CIVIL APPEAL NOS.9740-9743 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 10224-10227 OF
2016)
CIVIL APPEAL NO.9745 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19147 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 19839 OF
2016)
WRIT PETITION (CIVIL)NO. 120 OF 2016
WRIT PETITION (CIVIL)NO. 124 OF 2016
WRIT PETITION (CIVIL)NO. 149 OF 2016
CIVIL APPEAL NOS.9746-9747 OF 2017
6
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 19837-19838 OF
2016)
WRIT PETITION (CIVIL)NO. 188 OF 2016
WRIT PETITION (CIVIL)NO. 158 OF 2016
WRIT PETITION (CIVIL)NO. 176 OF 2016
WRIT PETITION (CIVIL)NO. 215 OF 2016
WRIT PETITION (CIVIL)NO. 206 OF 2016
CIVIL APPEAL NO.9748 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19148 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 9624 OF
2016)
WRIT PETITION (CIVIL)NO. 244 OF 2016
CIVIL APPEAL NO.9749 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19155 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 10257 OF
2016)
WRIT PETITION (CIVIL)NO. 276 OF 2016
WRIT PETITION (CIVIL)NO. 287 OF 2016
CIVIL APPEAL NO.9751 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19156 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 14277 OF
2016)
CONTEMPT PETITION (CIVIL)NO. 453 OF 2016 IN CIVIL APPEAL
NOS. 4347-4375 OF 2014
7
WRIT PETITION (CIVIL)NO. 605 OF 2016
CIVIL APPEAL NO.9752 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19158 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 14057 OF
2016)
CIVIL APPEAL NO.9753 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19159 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 14058 OF
2016)
CIVIL APPEAL NO.9754 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19160 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 15298 OF
2016)
CIVIL APPEAL NO.9755 OF 2017
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19161 OF 2017)
(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 15910 OF
2016)
WRIT PETITION (CIVIL)NO. 826 OF 2016
CONTEMPT PETTION (CIVIL)NO. 781 OF 2016 IN CIVIL APPEAL
NOS. 4347-4375 OF 2014
WRIT PETITION (CIVIL)NO. 915 OF 2016
CONTEMPT PETITION (CIVIL)NO. 928 OF 2017 IN WRIT PETITION
(CIVIL)NO. 167 OF 2015.
J U D G M E N T
Adarsh Kumar Goel, J.
8
1.Leave granted. This batch of cases arises out of judgment
of the Allahabad High Court dated 12
th
September, 2015 in Writ
Appeal No. 34833 of 2015
1
and connected matters. The High
Court allowed the batch of writ petitions and directed as follows:
“(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.”
1 (2015) ILR All 1108 : (2015) 8 ADJ 338 Anand Kumar
Yadav vs. UOI
9
2.Main question for consideration is whether it is permissible
to appoint teachers for basic education who do not have the
requisite statutory qualifications?
FACTS :
3.1Brief factual matrix may be noted. U.P. Basic Education Act,
1972 (the 1972, Act) was enacted to regulate and control basic
education in the State of U.P. Section 19 of the 1972, Act
authorizes the State Government to make rules to carry out the
purpose of the Act. U.P. Basic Education (Teachers) Service Rules,
1981 (1981 Rules) lay down sources of recruitment and
qualification for appointment of teachers. The National Council
for Teachers’ Education Act, 1993 (NCTE Act) was enacted by
Parliament for planned and coordinated development for teacher
education system. The Right of Children to Free and Compulsory
Education Act, 2009 (RTE Act, 2009) was enacted by the
Parliament for free and compulsory education to all children of the
age of 6 to 14 years. Section 23 provides for qualification for
appointment of teachers. The NCTE was designated as authority
under Section 23(1) to lay down the qualifications for
appointment of teachers.
10
3.2The NCTE issued notification dated 23
rd
August, 2010 laying
down such qualifications. With regard to teachers appointed prior
to the said notification, it was stated that they were required to
have qualifications in terms of the National Council for Teacher
Education (Determination of Minimum Qualifications for
Recruitment of Teachers in Schools) Regulations, 2001 (the 2001
Regulations), if the teachers were appointed on or after 3
rd
September, 2001 subject to their undergoing NCTE recognized six
months special programme in certain situations. Teachers
appointed before 3
rd
September, 2001 were required to have
qualifications as per the prevalent recruitment rules. One of the
requirements under the said notification is the requirement of
passing Teachers Eligibility Test (TET). However, by letter dated
8
th
November, 2010, the Central Government sought proposals for
relaxation under Section 23 (2) of the RTE Act which was followed
by the relaxation Order dated 10
th
September, 2012 for certain
categories of persons which was to operate till 31
st
March, 2014.
Vide letter of the NCTE dated 14
th
January, 2011, the NCTE
accepted the proposal of the State of Uttar Pradesh for training of
untrained graduate Shiksha Mitras by open and distance learning
11
but it was made clear that no appointment of untrained teachers
was permitted.
3.3 In exercise of powers under the RTE Act, 2009, the RTE
Rules, 2010 were framed by the Central Government. At the
same time, the State of U.P. also purported to frame rules called
U.P. RTE Rules, 2011.
3.4Reference may now be made to the scheme under which the
Shiksha Mitras were recruited. On 26
th
May, 1999, a Government
Order was issued by the State of U.P. for engagement of Shiksha
Mitras(Para-Teacher). The purported object of the Order was to
provide universal primary education and for maintenance of
teachers student ratio in primary schools by hiring persons who
were not duly qualified at lesser cost as against the prescribed
salary of a qualified teacher. The Government Order (G.O.) stated
that upto the limit of 10,000, Shiksha Mitras could be contracted
for academic session 1999-2000 at honourarium of Rs.1450 per
month. The salient aspects of the scheme as summed up in the
impugned judgment of the High Court from the said G.O. were:-
12
“(i) The appointment of Shiksha Mitras
was to be against the payment of an
honorarium;
(ii) The appointment was to be for a
period of eleven months renewable for
satisfactory performance;
(iii) The educational qualifications would
be of the intermediate level;
(iv) The unit of selection would be the
village where the school is situated and
in the event that a qualified candidate
was not available in the village, the unit
could be extended to the jurisdiction of
the Nyay Panchayat;
(v) The services of a Shiksha Mitra could
be terminated for want of
satisfactory performance;
(vi) Selection was to be made at the
village level by the Village Education
Committee; and
(vii) The scheme envisaged the
constitution, at the district level, of a
Committee presided over by the District
Magistrate and consisting, inter alia, of
the Panchayat Raj Officer and the
District Basic Education Officer among
other members to oversee
implementation.”
3.5.Further G.O.s were issued by the State of U.P. including G.O.
dated 1
st
July, 2001 expanding the scheme and clarifying that the
Scheme was not for employment in a regular service but to
provide opportunity to the rural youth to render community
service.
13
3.6Even though vide Notification dated 23
rd
August, 2010,
minimum statutory qualification was laid down by the NCTE, the
issue for relaxation under Section 23(2) of the RTE Act was taken
up by the Union Government for relaxation for the limited interim
statutory period and if a particular State did not have adequate
institutions for teachers training or did not have the adequate
number of candidates during the period. The State Government,
in response to the letter of the Central Government, responded by
stating that it had appointed Shiksha Mitras on contractual basis
who were required to be given teachers training. The Central
Government issued an Order for relaxation under Section 23(2)
subject to certain conditions for the period upto 31
st
March, 2014.
3.7The State Government submitted a revised proposal dated
3
rd
January, 2011 envisaging giving of training to the shiksha
Mitras which was accepted by the Central Government in terms of
the letter dated 14
th
January, 2011 for two years diploma in
elementary education through open and distance learning mode
with a clear understanding that no untrained teachers will be
appointed.
14
3.8 Finally, the State of U.P. took following steps which were
subject matter of challenge before the High Court:
A. Notification dated 30
th
May, 2014 amending U.P. RTE Rules
introducing Rule 16-A authorizing the State Government to relax
minimum educational qualifications for appointment of Assistant
Teachers in Junior Basic Schools.
B. Notification dated 30
th
May, 2014, amending the 1981
Rules:- Rule 8 laid down revised qualifications for appointment of
Assistant Master and Assistant Mistress of Junior Basic Schools
which qualifications are different from the statutory qualifications
under Section 23 of the RTE Act. Rule 5 was amended to add
Shiksha Mitras as source for recruitment of teachers in addition to
the existing source of direct recruitment in accordance with the
existing rules. Rule 14 was also amended to enable Shiksha
Mitras to be appointed as teachers against substantive posts
without having the qualifications prescribed under Section 23 of
the RTE Act.
C. G.O. dated 19
th
June, 2013 was issued giving permission for
appointment of Shiksha Mitras on the post of Assistant Teachers in
15
primary schools without having the eligibility and qualifications in
terms of RTE Act, 2009. A time table was laid down for absorption
of Shiksha Mitras as Assistant Teachers.
D. The consequential executive orders were issued for
absorption of 1,24,000 graduate Shiksha Mitras and 46,000
intermediate Shiksha Mitras.
4.From the above resume of facts, following points are clear :
(i) Shiksha Mitras were appointed on contractual basis to
enable the rural youth to render community service on
honorarium which was less than the pay scale of teachers.
(ii) They were not required to have the statutory
qualifications for appointment of teachers.
(iii) The impugned notifications and the G.O. of the U.P.
Government to regularize and appoint Shiksha Mitras as teachers
in regular pay scale do not conform to the statutory requirement
of qualifications for appointment of teachers in terms of
Notification dated 23
rd
August, 2010.
16
(iv) Relaxation provisions under Section 23(2) could neither
apply forever nor could apply to Shiksha Mitras who were not
appointed as teachers in terms of statutory qualifications and on
pay scale of teachers.
(v) Training undergone by them in terms of proposal of the
State Government is not a substitute for the statutory
qualifications as per mandate of Section 23 of the RTE Act.
(vi) Regularization was not on posts on which the Shiksha
Mitras were appointed and were working but on the post of
teachers on which neither they were initially appointed nor they
were qualified.
The Statutory provisions and relevant documents
5.Significant provisions/ notifications to which reference is
necessary are as follows :
(i) Section 23 of the RTE Act
“23. Qualifications for appointment and terms and
conditions of service of teachers.-(1) Any person
possessing such minimum qualifications, as laid down
by an academic authority, authorised by the Central
Government, by notification, shall be eligible for
appointment as a teacher.
17
(2) Where a State does not have adequate institutions
offering courses or training in teacher education, or
teachers possessing minimum qualifications as laid
down under sub-section (1) are not available in
sufficient numbers, the Central Government may, if it
deems necessary, by notification, relax the minimum
qualifications required for appointment as a teacher,
for such period, not exceeding five years, as may be
specified in that notification: Provided that a teacher
who, at the commencement of this Act, does not
possess minimum qualifications as laid down under
sub-section (1), shall acquire such minimum
qualifications within a period of five years. … …
… … …”
(ii) Notification dated 23
rd
August, 2010 under
Section 23(1) of the RTE Act :
“Notification dated 23
rd
August, 2010
NATIONAL COUNCIL FOR TEACHER EDUCATION
NOTIFICATION
New Delhi, the 23rd August, 2010
F. No. 61-03/20/2010/NCTE/(N & S).-In exercise of
the powers conferred by Sub-section (1) of
Section 23 of the Right of Children to Free and
Compulsory Education Act, 2009 (35 of 2009),
and in pursuance of Notification No. S.O. 750(E) :
MANU/HRDT/0013/2010 dated 31st March, 2010
issued by the Department of School Education
and Literacy, Ministry of Human Resource
Development, Government of India, the National
Council for Teacher Education (NCTE) hereby
lays down the following minimum qualifications
for a person to be eligible for appointment as a
teacher in class I to VIII in a school referred to in
clause (n) of Section 2 of the Right of Children to
Free and Compulsory Education Act, 2009, with
effect from the date of this notification:-
18
1. Minimum Qualifications:-
(i) CLASSES I-V
(a) Senior Secondary (or its equivalent) with at
least 50% marks and 2 year Diploma in
Elementary Education (by whatever name
known)
OR
Senior Secondary (or its equivalent) with at least
45% marks and 2 year Diploma in Elementary
Education (by whatever name known), in
accordance with the NCTE (Recognition Norms
and Procedure), Regulations 2002.
OR
Senior Secondary (or its equivalent) with at least
50% marks and 4 year Bachelor of Elementary
Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least
50% marks and 2 year Diploma in Education
(Special Education)
AND
(b) Pass in the Teacher Eligibility Text (TET), to
be conducted by the appropriate Government in
accordance with the Guidelines framed by the
NCTE for the purpose.
(ii) Classes VI-VIII
(a) B.A/B.Sc. and 2 year Diploma in Elementary
Education (by whatever name known)
OR
19
B.A/B.Sc. with at least 50% marks and 1 year
Bachelor in Education (B.Ed.)
OR
B.A/B.Sc. with at least 45% marks and 1 year
Bachelor in Education (B.Ed.), in accordance with
the NCTE (Recognition Norms and Procedure)
Regulations issued from time to time in this
regard.
OR
Senior Secondary (or its equivalent) with at least
50% marks and 4 year Bachelor in Elementary
Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least
50% marks and 4 year BA/B.Sc. Ed or
B.A.Ed./B.Sc. Ed.
OR
B.A./B.Sc. with at least 50% marks and 1 year
B.Ed. (Special Education)
AND
(b) Pass in the Teacher Eligibility Text (TET), to
be conducted by the appropriate Government in
accordance with the Guidelines framed by the
NCTE for the purpose.
2. Diploma/Degree Course in Teacher
Education:- For the purposes of this Notification,
a diploma/degree course in teacher education
recognized by the National Council for Teacher
Education (NCTE) only shall be considered.
However, in case of Diploma in Education
20
(Special Education) and B.Ed (Special Education),
a course recognized by the Rehabilitation
Council of India (RCI) only shall be considered.
3. Training to be undergone:- A person-(a) with
B.A/B.Sc. with at least 50% marks and B.Ed.
qualification shall also be eligible for
appointment for class I to V upto 1st January,
2012, provided he undergoes, after
appointment, an NCTE recognized 6 month
special programme in Elementary Education.
(b) with D.Ed. (Special Education) or B.Ed.
(Special Education) qualification shall undergo,
after appointment, an NCTE recognized 6 month
special programme in Elementary Education.”
(iii) Extract from NCTE Regulations, 2001 laying down
qualifications for recruitment of teachers:-
“III. Elementary
(a) Primary
(i) Senior Secondary School certificate of Intermediate or
its equivalent; and
(ii) Diploma or certificate in basic teachers training of a
duration of not less than two years. OR
Bachelor of Elementary Education (B EI Ed)
(b) Upper Primary (Middle school section)
(i) Senior Secondary School certificate or Intermediate or
its equivalent; and
(ii) Diploma or certificate in elementary teachers training
of a duration of not less than two years.
OR
Bachelor of Elementary Education (B EI Ed) OR Graduate
with Bachelor of Education (B Ed) or its equivalent.”
21
(iv) Appendix-9 laying down norms and standards for
diploma in elementary education through open and
distance learning:-
"Preamble.--(i) The elementary teacher
education programme through Open and
Distance Learning System is intended primarily
for upgrading the professional competence of
working teachers in the elementary schools
(primary and upper primary/middle). It also
envisages bringing into its fold those teachers
who have entered the profession without formal
teacher training.
(ii) The NCTE accepts open and distance learning
(ODL) system as a useful and viable mode for
the training of teachers presently serving in the
elementary schools. This mode is useful for
providing additional education support to the
teachers and several other educational
functionaries working in the school system."
(v) Letter of the Central Government 8
th
November, 2010
for relaxation of norms fixed by NCTE :
“3.In order to enable the Central Government
to provide relaxation under sub-section (2) of
section 23 to a State, it is considered necessary
to obtain relevant information from the State
Government relating to demand of teachers and
availability/ supply of qualified persons who are
eligible for appointment as a teacher.
Accordingly, a State Government, which intends
to seek relaxation under the said sub-section
would be required to make a request to the
Central Government by providing the following
information:
22
(a) Quantitative information as per the
format prescribed in the Annexure to the
Guideline.
(b) Nature of relaxation sought, separately
for classes I to V and VI to VIII, along with
justification;
(c) The time period for which relaxation is
sought;
(d) The manner in which and the time period
within which the State Government would
enable teachers, appointed with relaxed
qualification, to acquire the prescribed
qualification;
(e) The manner in which and the time period
within which the State Government would
enable existing teachers, not possessing the
prescribed qualification, to acquire the
prescribed qualification. Reference in this
regard is invited to para 4 of the
aforementioned Notification of the NCTE;
(f) Any other information the State
Government may like to furnish in support of
its request for seeking relaxation under
section 23(2).
4.The condition of passing TET will be relaxed
by the Central Government.
5. The Central Government will examine the
request of the State Government based on the
proposal submitted by the State Government
and additional information which the Central
Government may request the State Government
to furnish, take a decision to issue Notification
under section 23(2) of the Act. Only after the
Notification is issued would the State
Government or a local authority or any aided/
unaided school in the State appoint teachers
with the relaxed qualification in accordance with
23
terms and condition mentioned in the said
Notification.”
(vi)Rule 5 of the 1981 Rules as amended on 30
th
May,
2014 :
"5. Sources of recruitment--The mode of
recruitment to the various categories of posts
mentioned below shall be as follows:
(a) (i) Mistresses of
Nursery School
By direct recruitment as
provided in rules 14 and 15;
(ii) Assistant Masters and
Assistant Mistresses of
Junior Basic Schools
By direct recruitment as
provided in rules 14 and 15;
or
By appointment of such
Shiksha Mitras as are engaged
as Shiksha Mitra and working
as such on the date of
commencement of the Uttar
Pradesh Basic Education
(Teachers) (Nineteenth
Amendment) Rules, 2014.*
(vii) Amendment to Rule 8 of the 1981 Rules in terms of
the Notification dated 30
th
May, 2014 defining qualification
for eligibility for appointment of a teacher:
(ii) Assistant Master and
Assistant Mistresses of
Junior Basic Schools
(ii)(a) Bachelors degree from a
University established by law in
India or a degree recognized by the
Government equivalent thereto
together with any other training
course recognized by the
Government as equivalent thereto
together with the training
24
qualification consisting of a Basic
Teacher’s Certificate (BTC), two
years BTC (Urdu), Vishisht BTC and
teacher eligibility test passed,
conducted by the Government or by
the Government of India;
(b) a Trainee Teacher who has
completed successfully six months
special training programme in
elementary education recognized by
NCTE;
(c) A Shiksha Mitra who possessed
Bachelors degree from a University
established by law in India or a
degree recognized by the
Government equivalent thereto and
has completed successfully two
years distant learning BTC course or
Basic Teacher’s Certificate (BTC),
Basic Teacher’s Certificate (BTC)
(Urdu) or Vashist BTC conducted by
the State Council of Educational
Research and training (SCERT).
(emphasis
supplied)
(viii) Rule 14 (6)(a) of the 1981 Rules as amended on
30
th
May, 2014 :
"14(6)(a) The Shiksha Mitra after obtaining the
certificate of successful completion of two years
distant BTC course or Basic Teacher's Certificate
(BTC), Basic Teacher's Certificate (BTC) (Urdu) or
Vishisht BTC conducted by State Council of
Educational Research and Training (SCERT) shall
be appointed as assistant teachers in junior
basic schools against substantive post. To
appoint the Shiksha Mitras as assistant teachers
25
in junior basic schools, the appointing authority
shall determine the number of vacancies
including the number of vacancies to be
reserved for candidates belonging to the
Scheduled Castes, the Scheduled Tribes, Other
Backward Classes and other categories under
Rule 9."
(ix) Rule 16-A introduced into the U.P. RTE Rules, 2011 on
30
th
May, 2014:
"16-A. Notwithstanding anything contained in rules 15
and 16, the State Government may, in order to implement
the provisions of the Act, by order make provisions for
relaxation of minimum educational qualification for
appointment of such Shiksha Mitras as Assistant Teachers
in Junior Basic Schools as are considered otherwise
eligible."
(x)Government Order dated 19
th
June, 2014 :
“2.In reference to the above subject I have been directed to
say that the permission for appointment of Shiksha Mitra’s on
the post of assistant teacher in primary schools by the U.P.
Basic Education Board is being given as follows:
1.Eligibility- those Shiksha Mitra who have been working
in Junior Basic Schools run by the U.P. Basic Education
Board prior to the framing of U.P. Right of Children to Free
and Compulsory Education Rules 2011.
2.Age- the minimum age limit will be sixty years for the
Shiksha Mitra’s to be appointed on the post of Assitant
Teacher.
3.Educational Qualification- those Shiksha Mitras who
have graduation degree through a University established
under a law or its equivalent and also have passed B.T.C.
two years course through ODL System under State Council
for Education, Research and Training, B.T.C. (Urdu),
Special B.T.C.
26
4.Selection Process-
A. Shiksha Mitras who have passed B.T.C. two years course
through ODL System under State Council for Education,
Research and Training, B.T.C. (Urdu), Special B.T.C. and
after obtaining its certificate they will be given substantive
appointment on the post of assistant teacher in junior
basic school run by the U.P. Basic Shiksha Parishad. In
order to give them the substantive appointment on the
post of assistant teacher in junior basic school run by the
U.P. Basic Shiksha Parishad, the appointing authority will
determine the number of vacancy and shall also consider
the grant of reservation to schedule caste, schedule tribe
and other backward classes as per rule 9 of the U.P. Basic
(Teacher) Service Rules, 1981.
B. The appointing authority shall prepare a list under
Rule 9(2)(c) of those shikshamitras who are eligible for
appointment.
C. The list which has been prepared for appointment on
the post of assistant teacher for junior basic shool
shallbe arrange din the ascending order of the Date of
Birth meaning a candidate who is elder in age will be
placed higher.
If the date of birth of two Shiksha Mitras is common then
their name shall be arranged in accordance with
alphabetical order (English)
D. Shiksha Mitra will not be considered to be eligible for
substantive appointment on the post of Assistant teacher
in junior basic school unless his name is included in the
abovementioned list.
E. A list prepared by the appointing authority under Cl.
(C) above shall be forwarded to a selection committee
constituted under Rule 16 of the U.P. basic education
(teachers) Service Rules, 1981 which shall be as follows:-
27
(A)Principal, District Institute of
education and training
Chairman
(B)District basic education officerMember/ Secretary
(C)Principal of Govt. Girls Inter
College situated at district
headquarter
Member
(D)An expert in Hindi, Urdu or other
languages appointed by the
District Magistrate
Member
Note:- If the selection committee constituted in the
manner as stated above does not include a person
belonging to Schedule caste, Schedule Tribe, OBC then
the district magistrate shall appoint any officer of the
district belonging to above caste as a member of the
selection committee.
F. The selection committee shall after going through the
list prepared under clause (C) and after verifying the
educational and training certificates of the Shiksha Mitras
shall after its due approval forward the same to the
appointing authority.
G. The appointing authority shall issue the appointment
order in accordance with Rule 20 of the U.P. Basic
Education (teachers) Service Rules, 1981 meaning all
appointments made under these rules shall be given
posting through written orders in accordance with U.P.
Basic Education (teacher) posting rules, 2008 (as
amended).
(5) Time table for absorption of trained and eligible
Shikshamitras on the post of assistance teacher in first
phase.
1- To make available the list of candidates
to District Basic Education Officer who
have qualified two years BTC training
through distance mode from District
Institute of Education and Training
Till 30 June,
2014
2- Publication of the advertisement by theWithin one
28
District Basic Education officer for the
counseling of Shiksha Mitras including the
name, date of counselling and place of
counselling.
week of the
receipt of the
list.
3- Participation of the Shiksha Mitras in
the counselling with their educational/
training certificates and residence/ caste
certificates.
From 10 July,
2014 to 22
July, 2014
4- Process of Approval of the selection list
by Selection Committee
Till 25
th
July,
2014
5- Process of issuance of appointment
letter
Till
31.07.2014
3. Therefore it is requested to ensure the appointments of the
Shiksha Mitras in primary schools run by U.P. Basic Education
Board in accordance with the determined conditions and the
time table.”
Proceedings before the High Court
6.Batch of Writ Petitions were filed before the High Court by
persons who claimed to be eligible for appointment and whose
chances were affected by filling up of vacancies of teachers by
regularizing the Shiksha Mitras against the said vacancies,
praying as under:
“(a) A writ, order or direction in the nature of
certiorari quashing the notifications dated
30.5.14 issued by the State Government
notifying the U.P. Right of Children to Free and
Compulsory Education (First Amendment) Rules
2014 and U.P. Baisic Shiksha Adhyapak Seva
(19
th
Sansodhan) Niyamawali 2014 (Annexure
Nos.22A & 22B);
29
(b) A writ, order of direction in the nature of
certiorari quashing the Government Orders
dated 7.2.13 and 16.6.14 (Annexure Nos.21 &
23)
(c) A writ, order or direction of a suitable nature
restraining the respondents from taking any
action on the basis of the impugned
notifications/ Government Orders;
(d) Any other writ, order or direction as this
Hon’ble Court may deem fit and proper in the
circumstances of the case; and
(e) Award cost of the petition to be paid to the
petitioners.”
7.Case set out in the petition was that in view of Notification
issued by the NCTE 23
rd
August, 2010 laying down minimum
qualification for appointment of Assistant Teacher for classes I to
VIII, the decision of the U.P. Government dated 19
th
June, 2014
and amendments made by the U.P Government on 30
th
May, 2014
were in conflict with the Notification issued by the NCTE on 23
rd
August, 2010 and could not, thus, be justified. The TET being a
mandatory qualification, the State Government could not make
any appointment to the post of teacher without the said
qualification. The appointments did not fall under the relaxation
clause being post 23
rd
August, 2010 notification and being not
covered by the conditions for relaxation. The 1981 Rules of the
30
State could not incorporate a provision for absorption of Shiksha
Mitras in violation of law laid down by this Court in State of
Karnataka versus Uma Devi
2
as their appointment was de
hors the 1981 Rules, having not been made after following the
rules for appointment of teachers. It was also submitted that the
nature of appointment of Shiksha Mitras was contractual to
enable them to render community service and not in terms of
prescribed qualifications for appointment of teachers. Training by
open and distance learning mode was relevant only for teachers
validly appointed and not for contractual employees appointed de
hors the rules. Moreover, 46,000 Shiksha Mitras were not even
graduates which was a condition for approval by the NCTE in its
letter dated 14
th
January, 2011. There could be no permanent
exemption from TET and relaxation could only be for a limited
period. Relaxation could be only for teachers already appointed
and not for Shiksha Mitras. On the date of regular appointment in
terms of the G.O., the Shiksha Mitras did not have the requisite
statutory qualifications under Section 23 of the RTE Act.
2 (2006) 4 SCC 1
31
8.The Writ Petitions were opposed by the State Government
and the Shiksha Mitras by stating that the Scheme of the Shiksha
Mitras was to meet a situation where sufficient trained teachers
were not available while the constitutional mandate of imparting
elementary education was to be fulfilled. The Shiksha Mitras were
also teachers and their appointments were made on
recommendation of Village Education Committee which had a
statutory status. They had undergone training as per Appendix-9
to the 2009 Regulation of the NCTE and having regard to the fact
they worked for nearly 16 years, the State Government was
justified in regularizing their services.
9.The Full Bench of the High Court considered the matter after
framing following issues:
“(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
32
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.”
33
10.The findings of the High Court in brief are that having regard
to the nature of appointment of Shiksha Mitras, they could not be
treated as teachers in terms of 1981 Rules. They also did not
have the qualifications prescribed under the said Rules in as much
as on the date of appointment, they did not have graduate degree
nor they had basic teachers’ certificate as prescribed under the
1981 Rules. Reservation policy had also not been followed. No
doubt they may have served the need of the hour, their regular
appointment in violation of the requisite statutory qualification
was illegal. Reference was made to earlier Full Bench judgment in
Km Sandhya Singh versus State of Uttar Pradesh
3
with
regard to the nature of such appointments.
11. It was further held that Section 23(2) permitted relaxation of
minimum qualification for appointment of teachers only for a
limited period not exceeding five years and qualification for TET
could not be relaxed as held by the Full Bench judgment of the
High Court in Shiv Kumar Sharma versus State of Uttar
Pradesh
4
for post 23
rd
August, 2010 appointments. Nor pre 23
rd
August, 2010 appointments could be saved unless initial
3 2013 (7) ADJ 1 (FB)
4 2013 (6) ADJ 310 (FB)
34
appointments were to the post of teachers in terms of applicable
rules as stated in the Notification dated 23
rd
August, 2010. The
amendments to the State RTE Rules, 2011 and the Service Rules
of 1981 were in conflict with the mandate of Section 23(2) under
which power to relax the minimum qualifications was vested only
with the Central Government for a limited period. Moreover, the
regularization of Shiksha Mitras as teachers was not permissible
in view of the law laid down in Uma Devi (supra) . The
appointment of Shiksha Mitras was not as teachers nor it could be
held to be merely irregular in absence of their minimum
qualifications for the post of teachers which was a distinguishing
feature rendering the judgments State of Karnataka versus
M.L. Kesari
5
and Amarendra Kumar Mohapatra versus
State of Orissa
6
inapplicable.
Rival Contentions :
12.We may now deal with the contentions raised before this
Court in assailing the judgment of the High Court. Following are
5 (2010) 9 SCC 247
6 (2014) 4 SCC 583
35
the broad contentions of the appellants, the State of U.P. and the
Shiksha Mitras;
(i) Free and compulsory education to children of the age of 6 to 14
is a fundamental right under Article 21A which was earlier a
directive principle under Article 45 of the Constitution. For
elementary education of children of this age, extremely learned
teachers were not required nor are affordable. This is the reason
that as against the requirement of 3 lakhs, the State of U.P. had
about 1 lakh teachers. The Shiksha Mitras scheme was to achieve
the object of education for all at less cost. The Shiksha Mitras
were duly selected and had undergone training at district training
institutes. Most of them were graduates and all of them were at
least intermediate. It was submitted that NCTE vide letter dated
26
th
October, 2015 clarified to the State Government that TET was
applicable to teachers appointed after 25
th
August, 2010. Those
appointed earlier and are in continuous service did not require the
TET. It was also submitted that vide Notification dated 13
th
April,
2017, the Central Government had extended the time for
acquiring minimum qualification upto 31
st
March, 2019 exercising
its power under Section 23(2) of the Act in respect of the State of
36
Assam. Reference was also made to the Right of Children to
Free and Compulsory Education (Amendment) Bill, 2017 (Bill No.
75 of 2017) whereby a proviso was to be added to Section 23(2)
permitting four years further time from the date of amendment
for acquiring minimum qualification required under Section 23(1)
of the Act.
(ii) Article 243G of the Constitution provides for punchayat’s
functions as institution for self governance with respect to
schemes of social justice in relation to matters listed in XI
Schedule which includes under Entry 17 Education, including
primary and secondary schools. Thus, the scheme of Shiksha
Mitras was consistent with the said provision and enabled
decentralization of powers.
(iii) If qualified persons are not available, government is free to
frame policy in absence of legislation as held in Sant Ram
Sharma versus State of Rajasthan
7
.
7 (1968) 1 SCR 111 at 119
37
(iv) The Notification dated 23
rd
August, 2010 was repugnant to the
regulations framed by the NCTE and the said regulations have to
prevail in case of repugnancy.
(v) In any case power under Article 142 should be exercised by
this Court in the interest of justice in the light of observations in
Union Carbide Corporation versus Union of India
8
.
(vi) The regularization cannot be held to be invalid in view of long
length of service of the Shiksha Mitras in view of the law laid
down by this Court in M.L. Kesari
9
and Amarendra Kumar
Mohapatra (supra) . Referring to abridged report of the
“Development and Professional Competence of Para-Teachers” by
the EdCII (India) Limited (A Government of India Enterprise), it
was submitted that large scale appointment of para teachers has
led to lower pupil teacher ratio. Thus, it was submitted that the
impact of appointment of Shiksha Mitras has advanced the
constitutional cause of elementary education for all.
(vii) It was next submitted that even though regularization may
not be permitted, the State can specify a source for fresh
8 (1991) 4 SCC 584
9 (2010) 9 SCC 247
38
recruitment with relaxed educational qualification as held in
Official Liquidator versus Dayanand
10
.
(viii) Order I Rule 8 C.P.C. having not been followed and all
Shiksha Mitras having not been impleaded as parties before the
High Court, the High Court judgment should be held to be a nullity
in view of law laid down in Amrit Lal Berry versus Collector of
Central Excise, New Delhi
11
, Ramchander Sunda versus
Union of India
12
and Common Cause, A Registered Society
versus Union of India
13
.
13.The above submissions have been opposed by the original
writ petitioners. They support the impugned judgment. Their
contentions are summarized as follows:
i. While free and compulsory education for children of age of 6
to 14 years was a constitutional mandate and ad hoc
arrangements may have been necessary in absence of qualified
teachers being available, having trained and qualified teachers
was equally important for maintaining quality of education. If the
10 (2008) 10 SCC 1
11 (1975) 4 SCC 714 para 28
12 (1999) 9 SCC 105
13 (1994) 5 SCC 557 para 2
39
Parliament incorporates a minimum mandatory statutory
qualification and views lack of such qualification as being
detrimental to the development and growth of young children and
the quality of education, the same cannot be ignored. Moreover,
the State had no legislative or other competence to dilute the
educational standards laid down by the Parliament on a subject
falling under Entry 25 of the Concurrent List.
ii. The High Court has clearly and rightly found that the
impugned rules/ decisions of the State of U.P. were in conflict with
the mandate under Section 23(1) of the RTE Act. Even the
training imparted to Shiksha Mitras did not render them eligible in
terms of Section 23(1). Neither the relaxation provision under
Section 23(2) (which was meant only for duly appointed teachers)
was applicable for appointing Shiksha Mitras as teachers nor the
relaxation power was applicable to post 23
rd
August, 2010
appointees (except for a limited period). Proposed amendment
giving further time for acquiring minimum qualifications was
applicable to otherwise validly appointed teachers only.
40
iii. Article 243G or the concept of de-centralization of powers to
the Panchayats did in any manner permit violation of a valid
legislation on the subject.
iv. There was no basis whatsoever for holding the 23
rd
August,
2010 Notification to be in any manner ultra vires.
v. Power under Article 142 of the Constitution should be
exercised to advance justice and not to defeat the Parliamentary
mandate for advancement of proper education.
vi. Alleged non-compliance of provisions of Order 1 Rule 8 CPC
was inconsequential in the present case as the State and the
Shiksha Mitras were duly represented. The whole issue has been
considered by the Full Bench of the High Court. Moreover, due
publication of proceedings in this Court has been made and the
view point of all the Shiksha Mitras has been placed before this
Court. All the Shiksha Mitras had given undertaking in terms of
their condition of appointment that they will not claim any right to
employment. Reliance was placed on Surayya Begum (MST)
41
versus Mohd. Usman
14
and Olga Tellis versus Bombay
Municipal Corporation
15
.
vii. Regularization of Shiksha Mitras as teachers is contrary to
the law laid down by this Court in Uma Devi (supra), Union of
India versus Arulmozhi Iniarasu
16
and Grah Rakshak, Home
Guards Welfare Association versus State of Himachal
Pradesh
17
. Judgments in M.L. Kesari
18
and Amarendra
Kumar Mohapatra (supra) are not applicable. The Shiksha
Mitras were not being regularized against the posts of Shiksha
Mitras (which was only an ad hoc arrangement) but against post
of teachers for which mandatory statutory qualification was
required. Even if a different source for recruitment was
permissible, the same could not be against the mandate of law
with regard to the minimum statutory qualifications. Reliance was
placed on Yogesh Kumar versus Govt. of NCT, Delhi
19
and K.
Narayanan versus State of Karnataka
20
.
14 (1991) 3 SCC 114
15 (1985) 3 SCC 545
16 (2011) 7 SCC 397 para 23
17 (2015) 6 SCC 247 para 33
18 (2010) 9 SCC 247
19 (2003) 3 SCC 548 Para 5
20 (1994) Suppl.(1) Page 44 Para 6
42
Questions before the Court :
14.Thus, questions which need to be gone into are:
i) Whether under the scheme of appointment of Shiksha
Mitras, they could be treated as teachers appointed as per
applicable qualifications?
ii) If Shiksha Mitras were not duly appointed teachers, could
they be regularized as teachers?
iii)Whether qualification laid down under Section 23(1) of the
RTE Act was applicable or stood relaxed in the case of Shiksha
Mitras?
iv) Whether statutory qualifications in a Central Statute on a
concurrent list subject could be relaxed by a State legislative/
administrative action?
Our consideration and reasons:
43
15.We have given serious thought to the rival submissions on
the above questions and have also perused the findings of the
High Court thereon. We have also perused the relevant statutory
provisions, notifications, orders of Central Government and other
authorities and the decisions cited at the Bar. We have seriously
considered the fact that the matter involves 1.78 lakhs persons
and the question whether benefit once given to them (even
unlawfully) ought to be now withdrawn if the view taken by the
High Court is found to be correct.
16.At the outset, we may note that fundamental right to free
and compulsory education is one of the most important rights as
without education one may never know his other rights. It goes
without saying that right to education is right to quality education.
Concern for unsatisfactory quality of education has been
expressed by this Court on several occasions. This Court in
Ashoka Kumar Thakur v. Union of India
21
observed as under:
“422. In Unni Krishnan [1993] 1 SCC 645 , Reddy, J.
observed that the quality of education in government
schools was extremely poor and that the schools were
woefully inadequate to the needs of the children. He noted
that many countries spend 6% to 8% of gross domestic
21 (2008) 6 SCC 1 – Ashok Kumar Thakur v. Union of India
44
product on education. Our expenditure on education is just
4% of GDP.
423. Though an improvement over past performance, the
overall education picture leaves much to be desired. The
bad news is really bad. Even where we have seen
improvement, there is still failure. A survey by Pratham, an
NGO, fleshes out the acute problems found in rural schools.
(See ASER 2007—Rural Annual Status of Education Report
for 2007, published on 16-1-2008.) The survey covered
16,000 villages. As Pratham indicates, there are an
estimated 140 million children in the age group of 6 to 14
years in primary schools. Of these 30 million cannot read,
40 million can recognise a few alphabets, 40 million can
read some words, and 30 million can read paragraphs.
Over 55 million of these children will not complete four
years of school, eventually adding to the illiterate
population of India. The national literacy rate is 65%.
424. 24 districts with more than 50,000 out of school
children means we have failed 24 times over. 71 districts in
which there are 60 students per teacher is just as bad, if
not worse. According to Pratham (and in-line with the
Ministry of HRD’s six-month review), the number of out of
school children has hovered around 7,50,000. (p. 6)
Moreover, it goes without saying that children need proper
facilities. Today, just 59% of schools can boast of a usable
toilet. (p. 49)
425. The quality of education is equally troubling. For
Standards I and II, only 78.3% of students surveyed could
recognise letters and read words or more in their own
language. (p. 47) In 2006, it was even worse—only 73.1%
could do so. It is disheartening to peruse the statistics for
Standards III to V, where only 66.4% could read Standard I
text or more in their own language in 2007. (p. 47) As
Pratham stated at p. 7:
“What should be more worrying though, is the
fact that in Class 2, only 9 per cent children can
read the text appropriate to them, and 60 per
45
cent cannot even recognise numbers between
10 and 99.”
”
17.To make the right to education meaningful, a qualified
teacher undoubtedly has significant role. In this regard we may
quote with approval the following observations dealing with the
importance of a trained teacher in the Full Bench judgment of the
High Court in Shiv Kumar Sharma (supra):
“55. … … …The training of a child, that is an integral part
of child development, is essential for his grooming, as a
human mind, without proper training is like a horse without
a bridle difficult to ride. Children in their cradle of life with
the help of teachers can mould their lives for higher
ambitions in their manhood. To assess and mould children
with these ideals is the job of a skilled teacher and the art
of such skill is pedagogy. Teachers have to serve the larger
interest of the society as they are building the future. Henry
Brooks Adams said, "A teacher affects eternity; he can
never tell where his influence stops" and more
appropriately Christa Mcauliffe said " I touch the future. I
teach". This requires the possession of virtues like sacrifice
and honour which in turn brings respect to the status of a
teacher and infuses confidence in the pupil.
56. Many children are victims of apathy and wrongly
motived parental treatment. Their emotional and skilful
assessment, and proper treatment, has to be handled
within the clinic of an elementary school where the sole
physician is none else than a trained teacher. A candidate
possessing a mere educational or a training qualification
without any genuine attribute may not necessarily be a
good teacher.
46
57. It is in this background that one may remember those
who have contributed to this skilful art of pedagogy. In the
modern world the great philosopher and Educationist
Rousseau, followed by the Swiss Predecessor of his German
Pupils, Pestalozzi, are worth remembering. They were
followed by the famous Germans Herbart and Froebel. The
English with Lancaster and Bell followed suit and in the
modern world it would be improper to forget the great
contributions of Maria Montessori.
58. We do not wish to pile up names but this is only to
emphasize that a great scientific contribution has been
made to this skilful art of pedagogy. If one goes through the
works of these great people, one can understand that child
evelopment and teaching children is no easy task and
cannot be confined with the acquisition of a couple of
degrees as a supplement to the complete attribute
required of a teacher. The narrow meaning of qualification
therefore that was being pressed into service by Sri Rahul
Agrawal cannot be countenanced in view of the vast ocean
of understanding that is required of a skilful teacher.
59. In the instant case the skill of the teacher should be
lined with such ingredients that it kindles the spark of a
child and balances a group of mentally uneven children.
The duty of a good teacher is to bring the student into
contact with the learning of fruitful elements that ensue an
enduring significance in life, affirmative information of all
modes of intellectual, systematical and practical activity
that play a major part in the building of human mind and
spirit. Their interplay is the exercise that has to be
undertaken by a teacher. This exercise, particularly, in a
class room of infants should be underlined with methods
that are elastic enough to fit the varying needs of different
types of children. The cultivation of mental training and
discipline is the prime object of good teaching. We
celebrate 5th of September each year as Teachers' Day to
commemorate the birth of our late President Dr. S.
Radhakrishnan. He defined the good qualities of a teacher
as follows:
47
A good teacher must know how to arouse the
interest of the pupil in the field of study for
which he is responsible,
he must himself be a master in the field and be
in touch with the latest developments in his
subject,
he must himself be a fellow traveler in the exciting pursuit
of knowledge … … … … … … … …
…
61. Describing the role model of teachers, our Former
President of India Dr. A.P.J. Abdul Kalam, narrated his
experience in his teachers' day speech on 5th September,
2003 and said that a school must have the best of teachers
who have the ability to teach, love teaching and build moral
qualities.
62. These are the challenges of teaching which have been
referred to in the guidelines dated 11th February, 2011. It
is in order to ensure that the candidate is possessed of such
attributes. The guidelines further provide that a candidate
will be presumed to have succeeded in the test if he scores
60% or more. Some confessions have been given for
reduction in the said percentage in the case of scheduled
caste, scheduled tribes, and other backward classes as well
as differently abled persons.
63. The reason for this is that the art of teaching is
designed to educate a child. Education is not mere
acquisition of qualifications but is an overall development of
a child to ensure growth and development. It is the
awakening of the inner self and faculty of the child to the
ways of the world. The teacher therefore should be
possessed such qualities that he satisfies the curiosity of a
child that enables him not only to read but to distinguish
what is worth reading. The job of a teacher is not to fill the
time-table with dull unintelligible tasks. This violates
common sense and creativity brutally. Teaching and training
cannot be effected in the absence of knowledge about the
mind which is to receive them.
48
64. It is the systematic and purposeful construction of a
personality, so that it leaves an everlasting effect on the
mind. The job of a teacher is to get across the confidence in
a pupil, that there were good reasons for everything the
teacher did. He has to be transparent and he cannot leave a
pupil to guess that there are any hidden answers. A good
teacher would like the pupil to lead the way. The teacher
would follow and let the pupil know that his efforts would be
recognised. This confidence would help the child to develop
a strength in himself to cope up with his own world by
observing and solving problems. The art of teaching should
not be confined only to oral transmissions because what
one hears one can forget. However, what one sees, one
remembers but what one. does he understands. This is
what should teaching be comprised of. The teacher should
therefore be in a position to infuse into a child such
attributes that he or she acquires the ability to assume
responsibility for himself/herself. A psychological
independence that enables him/her to decide at the same
time and differentiate right from wrong. This capacity of a
child which lies concealed in him has to be discovered in a
way that the child finds this world an interesting place to
live in. For this good teaching may be 1/4th preparation and
3/4th performance.
65. A teacher is like a professional as said by Danny Hillis,
"A layman knows he has to kick it; and an amateur knows
where to kick it; a professional knows how hard." This
quality should be possessed professionally by a teacher as
the object of teaching a child is to enable him to get alone
without a teacher.
66. The skill of such a performance has to be assessed
because teaching is a great art to educate youth to enable
him to find out and discover his own peculiar aptitudes or
create where none exists. A teacher has to create
inclinations in the child which may serve as substitutes. The
level of inspiration that has to be infused in a child should
be such that he is able to make a mark in life as a complete
human being. One should remember that "millions see the
apple fall, but Newton was the one to ask why?" The job of
49
a teacher at the primary level is to generate this element of
curiosity in a child.
67. For this teachers have to be attributed with qualities
that they are able to handle the weak and the nervous, the
mediocre and intelligent with measured skill. This expertise
is a onerous task and is a substantial part of pedagogy. To
teach a child to become self sufficient is the art which has
to be developed with caution so as not to destroy the fragile
confidence by using harsh methods. The teacher eligibility
test appears to be designed for this purpose.
68. It is to be remembered that teachers are to impart
education to those souls who are between the period of
innocence of childhood and the folly of youth. It is this
aspect of pedagogy to educate a child to lead life that
attains importance.
69. The art of dealing with children also involves knowing
what not to say, and on the other hand patiently answering
the unpredictable questions of an inquisitive child. A
teacher should not give answers to children to remember
only, but he should be able to give them problems to solve.
It is then that the potentiality of the human race is better
put to use "because a child is not a vase to be filled but a
fire to be lit." (Francois Rabelais) . A Chinese Proverb goes a
long way to say "give a man a fish and you feed him for a
day. Teach a man to fish and you feed him for a lifetime."
Teaching is infusing of ideas instead of stuffing the brain
with facts. William Arthur Ward a famous educationist said
that The mediocre teacher tells, a Good teacher explains, a
Superior teacher demonstrates but the great teacher
inspires."
70. Children come from different backgrounds often being
victimised by unwise and wrongly motived parental
treatment. The teacher has to be more careful for he is
enjoined with the duty of child development. This therefore
is the background-in which the teachers role attains
immense significance. It is for such reasons that the Union
50
and the State appear to have come up with the necessity of
a teacher eligibility test.
71. The importance of teaching and a teacher's selection
should be to find out whether a candidate fulfils and is
possessed of such attributes, that is capable of bringing out
the best to ensure child development. "The art of teaching
is the art of assisting discovery (Mark Van Doran)". This
compulsory attribute is therefore to be assessed by the
State while judging the capability of a teacher and which
therefore is an essential qualification and not only a
minimum qualification. The essential nature of this test
therefore leaves no room for doubt that mere possession of
educational qualification and a teachers training course is
not sufficient to assess the capacity of a teacher.
72. Sir Winston Churchill while assessing the role of a
teacher observed that the Head Masters of elementary
schools have powers at their disposal with which even
Prime Ministers have never been vested with. The reason is
that the school master has to reckon not only with his pupils
human tendency to run, but also with the unwisdom of
parents in their early dealings with early tendency;
elimination of wrong doing, not by plainly repressive
methods is also one of the arts that has to be possessed by
a skilful teacher.
73. All this goes to fulfil the objectives with which Article 45
of the Constitution of India was incorporated under the
United Nations declaration which says that mankind owes to
the child the best it has to give. An infant who does not
know how to express himself, enters in an elementary
school where he has to be taught his initial alphas and
betas. The pronunciation, sentence-forming, elementary
grammar and understanding of his first alphabets have to
be installed in his mind with expertise. It is for this reason
that the curriculum of the TET includes proficiency in the
language of the medium of instruction, an optional
language for a better understanding with the student,
mathematics to assess the investigative strength of the
mind and finally environmental studies to gauge the overall
awareness of human life and nature. This has to be coupled
51
with moral education and discipline and this entire
combination in one performance is the skill of a teacher. He
has to handle the weak and the nervous, the mediocre and
intelligent, with an adequate measured skill for which a
basic attribute with intelligence is required to be possessed
by a teacher. A teacher cannot employ methods like
knocking of a child because such methods do not always
turn a timid boy into a courageous one nor does it turn a
spoilt brat into an angel. Nonetheless it is useful to
remember Bishop Fulton J Sheen who said "Every child
should have an occasional pat on the back, as long as it is
applied low enough and hard enough". For teachers and
guardians the proverb "Give a child enough rope, and you
will trip" is also a cautionary note. The acquisition of such
expertise is what is desired to be assessed and that is what
the teacher eligibility test is designed for. It is only to assess
these qualities that would qualify a teacher for being
appointed as such and therefore the teacher eligibility test
is not a mere eligibility criteria but a qualification as
prescribed in addition to the academic and training
qualifications.
74. It would be apt to quote Charles Dickens in his famous
book "Hard Times" where the quality of a teacher has been
expressed from another angle as follows:
“What I want is facts. Teach these boys and
girls nothing but facts. Facts alone are wanted
in life. Plant nothing else, and root out
everything else.”
75. The role of teaching is therefore of a mediator of
learning, a parent substitute, a controller of students'
behaviour, an agent of social change and finally a judge of
achievement. The teacher who enters a school imparting
elementary education has to act like a group leader who
can remove the hindrances of doubts in the mind of an
infant and generate creative development. Above all he has
to in still in the mind of a youngster all virtues of courage
and honesty as this part of education is a vital portion of
52
child development. It is in the early years that the
importance of education has to be preached so as to
achieve what a former U.S. President Garfield said "Next in
importance to freedom and justice is education without
which the other two cannot be entertained.”
18.In the impugned judgment the Full Bench of the High Court
highlighted the importance of the prescribed TET qualification as
follows:
“93. 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 fulfill 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 fulfill 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 fulfill 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
53
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.”
19. We are in agreement with the above observations. We are
unable to agree that even unqualified teachers ought to be
allowed to continue ignoring the legislative mandate or that we
should exercise our jurisdiction under Article 142 to undo the said
mandate. Consideration for career of 1.78 lac Shiksha Mitras,
over and above their legal right, cannot be at the cost of
fundamental right of children to free quality education by duly
qualified teachers in terms of legislative mandate.
20.We may now further examine the question whether the
Shiksha Mitras have, under the law, right to be appointed or
absorbed as teachers de hors the prescribed qualifications. In
this regard, the finding in the impugned judgment is as follows:
54
“58. 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
55
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. … … … …
… … … … …
56
62. 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.
… … … … … … … … …
57
70. 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 subsection (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. … … …
… … …
75. 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
58
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. … … …
80. 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
59
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. … … … … …
… … … …
86. 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. … … … … … …
94. 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
60
a judgment in Secretary of State of Karnataka v. Umadevi
(2006) 4 SCC 1. Emphasizing the principle of the Yule 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." … … …
…
95. 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 ppointments (not illegal
61
appointments) as explained in S.V. NARAYANAPPA
(AIR 1967 SC 1071), R.N. NANJUNDAPPA (1972)1
SCC 409, and B.N. NAGARAJAN (1979) 4 507, 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."
… … … … … … … … …
101. 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
62
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 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 fulfill the minimum qualifications prescribed by
NCTE. The State Government has sought to get over the
inseparable obstacle that the Shiksha Mitras do not fulfill
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 regularizing/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
63
State Government has sought to grant regularization to
persons who failed to fulfill 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.
… … … … … … … …
103. In the present case, it is evident that the Shiksha
Mitras do not fulfill 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 fulfill the minimum qualifications required for
appointment as Assistant Teachers.”
21.We are in agreement with the above findings. In view of
clear mandate of law statutorily requiring minimum qualification
for appointment of teachers to be appointed after the date of
Notification dated 23
rd
August, 2010, there is no doubt that no
appointment was permissible without such qualifications.
Appointments in the present case are clearly after the said date.
Relaxation provision could be invoked for a limited period or in
respect of persons already appointed in terms of applicable rules
relating to qualifications. The Shiksha Mitras in the present case
64
do not fall in the category of pre 23
rd
August, 2010 Notification
whose appointment could be regularized.
22.Further difficulty which stares one in the face is the law laid
down by this Court on regularization of contractually appointed
persons in public employment. Appointment of Shiksha Mitras
was not only contractual, it was not as per qualification
prescribed for a teacher nor on designation of teacher nor in pay
scale of teachers. Thus, they could not be regularized as
teachers. Regularization could only be of mere irregularity. The
exceptions carved out by this Court do not apply to the case of
the present nature.
23.In view of our conclusion that the Shiksha Mitras were never
appointed as teachers as per applicable qualifications and are not
covered by relaxation order under Section 23(2) of the RTE Act,
they could not be appointed as teachers in breach of Section
23(1) of the said Act. The State is not competent to relax the
qualifications.
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24.Since, we have given full hearing to all Shiksha Mitras
through their respective counsel, it is not necessary to consider
the argument of breach of procedure under Order I Rule 8 CPC.
25.On the one hand, we have the claim of 1.78 Lakhs persons to
be regularized in violation of law, on the other hand is the duty to
uphold the rule of law and also to have regard to the right of
children in the age of 6 to 14 years to receive quality education
from duly qualified teachers. Thus, even if for a stop gap
arrangement teaching may be by unqualified teachers, qualified
teachers have to be ultimately appointed. It may be permissible
to give some weightage to the experience of Shiksha Mitras or
some age relaxation may be possible, mandatory qualifications
cannot be dispensed with. Regularization of Shiksha Mitras as
teachers was not permissible. In view of this legal position, our
answers are obvious. We do not find any error in the view taken
by the High Court.
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26.Question now is whether in absence of any right in favour of
Shiksha Mitras, they are entitled to any other relief or preference.
In the peculiar fact situation, they ought to be given opportunity
to be considered for recruitment if they have acquired or they
now acquire the requisite qualification in terms of advertisements
for recruitment for next two consecutive recruitments. They may
also be given suitable age relaxation and some weightage for
their experience as may be decided by the concerned authority.
Till they avail of this opportunity, the State is at liberty to continue
them as Shiksha Mitras on same terms on which they were
working prior to their absorption, if the State so decides.
27.Accordingly, we uphold the view of the High Court subject to
above observations. All the matters will stand disposed of
accordingly.
…………………………………….J.
(Adarsh Kumar Goel)
…………………………………….J.
(Uday Umesh Lalit)
New Delhi;
25
th
July, 2017.
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