WP(C) 2137/2010 BEFORE THE HON’BLE MR JUSTICE I.A. ANSARI The Government of India, Ministry of Human Resources Development Departm ent, with a view to ensuring free and compulsory education for all children, up to the age group of 14 years, adopted various schemes as an integral part of uni versalization of elementary education, under ’Sarva Sikshya Abhiyan’, commonly k nown as ’SSA’, namely, Non-formal education, District Primary Education Programm e, popularly known as ’DPEP’, Alternative Schooling, commonly called ’AS’, etc., but since these programmes could not cover all the children of 6-14 years age g roup, the Government of India, Ministry of Human Resources Development Departmen t, adopted a new scheme, known as Education Guarantee Scheme, which is called an d knows as ’EGS’. Under the EGS, EGS centers were required to be set up in thos e areas, where no schooling facilities existed within a radius of 1.5 Kilometer and where, at least, 15 children, in the age group of 6-14 years, were not going to school. In exceptional cases, however, EGS centers could be established eve n for 10 children. 2. The Government of Assam signed a Memorandum of Understanding (MOU) with the Department of Elementary Education and Literacy, Government of India, for im plementation of the EGS. The funds of EGS were shared in ratio of 75:25 between the Central and the State Governments. The EGS centers were to be upgraded to the level of formal schools. 3. The EGS centers were funded under the SSA and were manned by Village Edu cation Committee (in short, ’VEC’). Under the EGS, one Education Volunteer (Sik shya Mitra) was to be appointed in every EGS centre and a Sikshya Mitra was to b e selected by the concerned VEC. The EGS prescribed the qualification, for appo intment of Sikshya Mitra by laying down that a Sikshya Mitra must have passed hi gher secondary or equivalent exam from a recognized Board/Organization. 4. What was, however, important is the fact that a candidate, for appointme nt as Sikshya Mitra, ought to have been from the concerned Gaon Panchayat. 5. On selection, a Sikshya Mitra (education volunteer) was required to ente r into an agreement with the VEC. Each of these agreements provided that the co ntract agreement would stand terminated on completion of a period of eleven mont hs unless renewed. One of the stipulations, under the agreement, was that any s ervice, rendered under the agreement, should not, under any circumstances whatso ever, vest, in the Sikshya Mitras, any right to claim absorption in regular vaca ncies that existed then, or to be arisen in future, in the said area or in other educational institutions. The Sikshya Mitras were entitled to honourarium of Rs . 1,000/- per month. At a later stage, the honourarium was enhanced to Rs. 1,70 0/- per month. In course of time, altogether 5017 EGS centers were established throughout the State of Assam and Sikshya Mitras (Education Volunteers) were app ointed in those EGS centers. 6. Pursuant to the grant of approval by the Project Approval Board, Governm ent of India, Ministry of Human Resources Development Department, in its 119th m eeting held on 25.02.2009, the Government of Assam upgraded altogether 1521 EGS centers to the level of Lower Primary Schools by issuing notification, in this r egard, on 31.12.2009, the notification having been issued by the Secretary of Ed ucation, Elementary and Secondary Education, Government of Assam, where it was s pecifically mentioned that upon such upgradation of the 1521 EGS centers to Lowe r Primary Schools, the EGS centers shall stand abolished. The said notification was followed by another order, contained in letter, dated 06.01.2010, issued by the Commissioner & Secretary, Education-cum-Mission Director, SSA, wherein it w as stated that upon upgradation of EGS centers, the newly formed LP schools woul d come under the purview of Education (Elementary) Department and the Director o f Elementary Education. In the said letter, it was also stated that the academi c supports provided by the volunteers (Sikshya Mitras) would be accepted and the y shall be allowed to continue until alternative arrangements were made by the G overnment in this regard. It was accordingly decided to provide financial suppo rt by SSA upto March, 2010, for the services to be rendered by the Sikshya Mitra s (education volunteers). 7. On 31.12.2010, the Commissioner & Secretary, Education (Elementary) Depa rtment, issued a notification, whereby the remaining 3496 EGS centers were upgra ded to LP Schools and, consequent thereupon, the EGS centers were abolished. Ho wever, no budgetary provision was made for re-engagement of the Sikshya Mitras b eyond 31.12.2010. Thus, all the 5017 EGS centers have been upgraded as provinci alised LP Schools. 8. Pursuant to the promulgation of the Right of Children to Free and Compul sory Education Act, 2009, the National Council for Teacher Education (NSTE) issu ed a notification, on 23.08.2010, prescribing the minimum educational qualificat ion for person to be eligible for appointment as Teacher in LP Schools (for Clas s I to VIII). As per the notification, dated 23.08.2010, the minimum qualifica tions for appointment as teachers, in LP school, are as follows: 1. Minimum qualification: (i) Classes I-V (a) Senior Secondary (or its equivalent) with at least 50% marks and 2 year Dipl oma 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 (R ecognition Norms and Procedure) Regulations, 2002, Or Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor Elementary Education (B.El.Ed.), Or Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education) And (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropria te Government in accordance with the guidelines framed by the NCTE for the purpo se. 9. It, now, becomes clear that the educational qualifications, required for appointment as Sikshya Mitra, in CGS centers, were distinct and different from the educational qualifications prescribed for appointment as teachers in LP Scho ols; more particularly, the requirement of Teachers Eligibility Test was not adh ered to, while appointing Sikshya Mitras. The Sikshya Mitras were basically app ointed in terms of the criteria embodied in the scheme meant therefor. [No fun d has been provided by the SSA for maintenance of EGS centers beyond 31.12.2010] 10. It is imperative to note here, in this regard, that paragraph 2.4.1. of the policy document of the Central Government for upgradation of EGS centers and Alternative and Innovative Education (in short, ’AIE’), read as under: In the past SSA has supported alternate schooling facilities in the form of cen tres under the Education Guarantee Scheme (EGS) and Alternative and Innovative E ducation (AIE). EGS and AIE centres across the country have been invaluable in reaching education to children from disadvantaged groups and weaker sections, es pecially children in unserved habitations. However, EGS centres were, since inc eption, envisaged as transitory measures to provide schooling till such time as regular, full time schooling faculties could be provided in the area concerned. AIE centres catered to the bridging needs of out of school children till they w ere mainstreamed into regular schools. Indeed, the RTE mandate for full time sc hooling facilities for all children implies that EGS centres will now have to be upgraded to regular primary schools and all children availing AIE will need to be mainstreamed into full time schools in a time bound manner. Therefore, in ke eping with the RTE mandate: (i) EGS centres: Esisting EGS centres will continue to be supported for a period of two years (2010-11, 2011-12) during which period States would take steps to convert the EGS centres into regular primary schools. No new EGS centres will b e sanctioned under SSA with effect from the financial year 2010-2011. In case, the existing EGS centre is not required to be converted into a regular school, o n account of an existing neighbourhood school, the EGS centre would be closed do wn and children mainstreamed in the neighbourhood school. (ii) In place of AIE centres facilities for ’Special Training’ will be provided to out-of-school children, who have been admitted to school, to enable them to c ope with age-appropriate enrolment and participation in regular elementary schoo ls. 11. What can be gathered from the above document is that the EGS and the AIE centers, across the country, were envisaged as a transitory measure to provide schooling to children till such time as regular full time school faculties could be provided in the areas concerned. No new EGS centers were to be sanctioned u nder SSA with effect from the financial year 2010-2011. In the event an existin g EGS center was not required to be converted into a regular school on account o f any existing neighbourhood school, the EGS center was to be closed down and th e children mainstreamed into the neighbourhood school. 12. In the backdrop of the above noticeable features of the cases of the pet itioners, in the present set of writ petitions, which all have been heard togeth er on the request made by the learned counsel for the parties concerned inasmuch as all these writ petitions have raised common issues, based on substantially i dentical facts, all these three writ petitions are being disposed of by this com mon judgment and order. 13. With effect from 19-03-1979, teaching of Elementary Education, in Assam, was provincialised by the Assam Elementary Education (Provincialisation) Rules, 1977, framed in exercise of powers conferred on the Governor by the proviso to Article 309 of the Constitution of India. The said Rules divided the Elementary Education into two parts, lower primary school and upper primary school, the low er primary school being required to impart education upto Class-IV, whereas uppe r primary school was required to impart education upto Class-VII including ME sc hools or MV schools or ME Madrassa or Senior Basic School individually or in com bination of any two or three of or all the four categories of these institutions . 14. The conditions of recruitment of Assistant Teachers, constitution of Sel ection Committee, procedure for selection and appointment have all been provided for in the said Rules, which are hereinafter referred to as the ’Provincialisat ion Rules, 1977’. In terms of the Provincialisation Rules, 1977, the age of a ca ndidate of general category ought to be between 18 years and 36 years on 1st Jan uary of the year of the advertisement, but the upper age limit, in the case of c andidates of Scheduled Castes and Scheduled Tribes, ought to be as per rules mad e by the Government. As far as qualification is concerned, the Provincialisation Rules, 1977, provide the minimum qualification for Assistant Teacher, the quali fication being Higher Secondary or any other examination of equivalent standard having 45% marks in any one of the qualifying examination (Higher Secondary of H SLC) for candidates of general categories and minimum 40% marks for candidates o f reserved categories. The Provincialisation Rules, 1977, further provide for re servation in favour of Scheduled Caste, Scheduled Tribe, Other Backward Class, M ore Other Backward Class, etc. Thus, the Provincialisation Rules, 1977, were a s et of comprehensive rules for selection and appointment of Assistant Teachers in lower primary as well as upper primary schools, which impart elementary educati on, the effect of the provincialisation being that the salary and allowances of a provincialised teacher became the responsibility of the State by deeming them to be public servants. 15. On coming into force of Provincialisation Rules, 1977, with effect from 19-03-1979, the sole mode of recruitment, for Assistant Teachers, in lower prima ry as well as upper primary schools, in order to treat them as validly appointed teachers, were required to made, and ought to have been made, in terms of the P rovincialisation Rules, 1977. 16. The National Council for Teachers Education (hereinafter referred to as ’NCTE’) came to be set up, in the year 1973, by the resolution of Government of India as a national expert body to advise the Central and the State Governments on all matters pertaining to education of teachers. As the role assigned to the NCTE was purely advisory in nature, it did not have desired impact on standardiz ation of teachers’ training institutions in the country and led to unplanned gro wth. In order to empower the NCTE to make qualitative improvement in the system of teachers’ training, National Council for Teachers Education Act, 1993 (herein after referred to as ’the NCTE Act, 1993’) was enacted by the Parliament by best owing statutory recognition on the NCTE, the Preamble to the NCTE Act, 1993, mak ing it clear that the Act was enacted with a view to attaching plan and coordina ted development and proper maintenance of norms and standards in the teachers’ e ducation system, etc., throughout the country. 17. Section 32 of the NCTE Act, 1993, confers on the NCTE the power to make regulations inasmuch as Section 32 provides that NCTE may lay down minimum quali fications for a person to be employed as a teacher under Clause(d) of Section 12 . 18. In exercise of its power conferred by Section 32 of the NCTE Act, 1993, the NCTE made a set of Regulations, namely, National Council for Teacher Educati on (Determination of Minimum Qualifications for Recruitment of Teachers in Schoo ls) Regulations, 2001 (hereinafter referred to as ’the 2001 Regulations’). In th e schedule to the Regulations, so framed by NCTE, the minimum academic and profe ssional qualifications for recruitment of teachers, at different levels, have be en stipulated. The qualifications prescribed for selection and appointment of a teacher, in an elementary/primary school, being as under: (i) Senior Secondary School Certificate. (ii) Diploma of certificate in basic t eachers training of a duration of not less than two years, or bachelor of Elemen tary Education (B.E.Ed.) 19. On the insistence of the NCTE that its Regulations be adhered to in resp ect of appointments of teachers in schools in Assam, the State of Assam had amen ded, with effect from 10-11-2005, the Provincialised Rules, 1977, the amended Ru les being called the Assam Elementary Education (Provincialization)(Amendment) R ules, 2005 (hereinafter referred to as ’Amended Rules, 2005’), whereunder instea d of making the requirement of a diploma in teachers training mandatory, as stip ulated in the Regulations framed by the NCTE, the Amended Rules, 2005, provided that preference to trained candidates would be given. Schedule-I to the Amended Rules, 2005, stipulated that such preference would be in the form of 10 addition al marks to trained teachers in the selection process for the recruitment of tea chers. Having carried out the said amendments, an employment notice, dated 2nd D ecember, 2005, was issued, in the newspapers, inviting applications for filling up of 5372 posts of Assistant Teachers. The prescribed minimum educational quali fication was higher secondary with preference to trained candidates. 20. Aggrieved by the amendments introduced by the help of the Amended Rules, 2005, waiving thereby the requirement of diploma for selection of teachers, a s et of writ petitions were filed seeking quashing of the Amended Rules, 2005, on the ground, inter alia, that the amendments were not in conformity with the stat utory Regulations framed by the NCTE. In the writ petitions, the writ petitioner s also sought for setting aside and quashing the advertisement, dated 02-12-2005 , aforementioned. A Division Bench of this Court, while dealing with the said wr it petitions, took the view that the requirement of adherence to the statutory R egulations, framed by the NCTE, cannot be left to be determined at the discretio n of the authorities of the State Government of Assam. That apart, the Regulatio ns, framed by the NCTE, have the effect of enhancing the quality of education at the primary level and, in the absence of any compelling reasons to justify a de parture therefrom, the Court would lean in favour of an interpretation that woul d advance the cause of quality education in the State. The Division Bench accord ingly set aside the Amended Rules, 2005, by holding the same as illegal. However , while holding the Amended Rules, 2005, as ultra vires the NCTE Act, 1993, and setting aside the Amended Rules, 2005, the Division Bench allowed the State to c omplete the recruitment process already initiated pursuant to the advertisement, dated 02-12-2005, aforementioned. 21. Aggrieved by the fact that the Division Bench had allowed the recruitmen t of teachers, to proceed, as mentioned above, pursuant to the advertisement, da ted 02-12-2005, while the Amended Rules, 2005 have been held to be ultra vires, the NCTE Act, 1993, the writ petitioners carried the matter, in appeal, to the S upreme Court, the Supreme Court, which agreed with the conclusions reached by th e Division Bench of this Court to the effect that the Regulations, framed by the NCTE, had to be adhered to by the State Government for making selection and app ointment and, hence, when the Amended Rules, 2005, had been nullified by holding the same to be ultra vires the Provincialised Rules, 1977, the recruitment, pur suant to the advertisement, dated 02-12-2005, could not have been allowed to be continued, because this would amount to perpetuating and encouraging an illegali ty. The Supreme Court accordingly allowed the appeal and set aside the selection process, which had been set into motion by the advertisement, dated 02-12-2005. This decision has come to be reported in the case of Ranu Hazarika and Ors. -vs - State of Assam and Ors, reported in 2001 (1) GLT 52. In the face of the decisi on of Ranu Hazarika (supra), there can be no escape from the conclusion that the Regulations, framed by the NCTE, are mandatory in nature and the appointments o f teachers, in schools, including the primary schools, have to be in terms of th e prescriptions of the Regulations so framed by the NCTE. 22. In the backdrop of the above facts, let me set out, in substance, as to what the case of the writ petitioners is and what reliefs they have sought for a nd in the light of the objections raised by the State respondents and the provis ions of law relevant thereto, whether the petitioners are entitled to the relief s, if any. The case of the petitioners is, in a nutshell, thus: (i) The petitioners herein were, upon selection by Village Education Committee ( VEC), engaged as Siksha Mitras (Education Volunteers) pursuant to the Education Guarantee Scheme (EGS). Each of the writ petitioners were engaged as Siksha Mitr as and entered, in this regard, into an agreement with the VEC, which provided, inter alia, that the contract agreements, appointing the petitioners, as Sikshya Mitras, would stand terminated on completion of a period of 11 months unless re newed and also that any service, rendered under the agreement, should not, under any circumstances whatsoever, would give a Sikshya Mitra the right to claim abs orption in regular vacancies that existed then or to be arisen, in future, in th e State or in any other educational institution, the Sikshya Mitras being, howev er, entitled to an honorium of Rs. 1,000/- pm, which was, later on, enhanced to Rs. 1,700/- pm. The terminations and re-engagements of the petitioners as Sikshy a Mitras, on completion of 11 months, were, according to the writ petitionrs, ar tificial in nature inasmuch as the agreements, re-appointing the writ petitioner s as Sikshya Mitras, were renewed after lapse of every 11 months. In consequence thereof, the writ petitioners have, in effect, continued to work as Sikshya Mit ras since the introduction of the EGS. (ii) By virtue of orders issued, on 31-12-2009 and 31-12-2010, by the State Gove rnment, the EGS Centers have been upgraded to LP Schools and the Government has disengaged the petitioners as Sikshya Mitras; whereas the writ petitioners, havi ng worked for almost a decade as Sikshya Mitras and having acquired the experien ce of teaching, ought to have been continued. The disengagement of the petitione rs as Sikshya Mitras is also artificial inasmuch as some of them are still worki ng in the EGS Centers, which have been upgraded to LP Schools, but they are not being paid their dues. The State has the obligation of absorbing the writ petiti oners, particularly, those, who have the minimum qualifications required for bei ng appointed as teachers in the sense that those, who have passed higher seconda ry examination with requisite percentage of marks. 23. In effect, thus, contending that with the upgradation of the EGS Centers to LP Schools, the services of the writ petitioners ought to have been provinci alised or regularized, the writ petitioners have filed a set of writ petitions, under Article 226 of the Constitution of India, seeking, inter alia, following r eliefs: 1. Issuance of a writ of Mandamus directing the respondents to upgrade/provinci alise the services of the petitioners along with the up gradation of their EGS C entrs into LP Schools within a stipulated time period. 2. Issuance of a Writ of Mandamus directing/restraining the respondents from att achment of teachers from nearby LP Schools with the petitioners upgraded EGS Cen ters. 24. I have heard Mr. AK Bhattacharjee, learned Senior counsel, Mr. N Dutta, learned Senior Counsel, Mr. BC Das, learned Senior Counsel, and Mr. MK Choudhury , learned Senior Counsel, appearing on behalf of the writ petitioners. As far as the remaining learned counsel for the writ petitioners are concerned, they have adopted the arguments advanced by the learned Senior counsel. I have also heard Mr. D Saikia, learned Additional Advocate General, Assam, and Mr. M. R. Pathak, learned Standing counsel, Education Department, Government of Assam, appearing on behalf of the State respondents. 25. The case of the State respondents is, in brief, as under: (i) EGS was introduced in, the year 2002-03, as Centrally sponsored scheme and w as executed by Sarba Siksha Abhayan, commonly known as SSA, Assam. The basic obj ective of the scheme was to assist the local community of schoolless habitation to establish EGS Centers to achieve the goal of universalisation of elementary e ducation. Under the scheme, one Sikshya Mitra was engaged in each EGS Center. Th e selection was limited and kept confined to the candidates coming from the Gaon Panchayat concerned and the selection of Sikshya Mitra was, thus, made by the V illage Education Committee (VEC) from the candidates belonging to a given Gaon P anchayat. The minimum educational qualification for Sikshya Mitras was higher se condary passed and he was to get Rs. 1,000/- per month as honorium and this amou nt was, later on, enhanced to Rs. 1,700/- per month. (ii) The appointment of Sikshya Mitra was, thus, under a given scheme and at the time, when this scheme was implemented, the appointment of Sikshya Mitras were not in keeping with the conditions of recruitment, as prescribed by the Provinci alisation Rules, 1977, inasmuch as the minimum educational qualification, prescr ibed by the Provincialisation Rules, 1977, had not been adhered to, while appoin ting Sikshya Mitras. As the appointment of the Sikshya Mitras were not in tune with the conditions of recruitment, as contained in the Provincialisation Rules, 1977, it becomes crystal clear that the Sikshya Mitras, even if treated as teac hers, they cannot be treated to have been appointed as teachers in terms of the relevant recruitment rules, in force, in the State at the relevant point of time and they were mere appointees, as Sikshya Mitras, under an inherently temporary scheme, namely EGS, and they all along knew the actual nature of their respecti ve appointments. (iii) What cannot and must not be ignored is that the agreement, which the petit ioners, as