Case: Ram Kumar Patel  Vs. State Of U.P

judicial declaration is that it will be deemed to have never existed. The declaration in Shiv Kumar Pathak had the effect of erasing Rule 14(3) as introduced by the 15th Amendment Rules along with the Appendix introduced therein which also stood completely erased and effaced. We are constrained to record this conclusion in light of the undisputed factual position that the insertion of Rule 14(3) by the 15th Amendment Rules led to a situation where original Rule 14 was completely substituted and consequently ceased to exist. The subsequent striking down of the amending rules will not revive the provisions as they stood earlier either at the time of promulgation of the 12th or the 15th Amendment Rules. Presently therefore as the enactment exists there is no revival of the Appendix or Rule 14 as it stood prior to the promulgation of the 12th Amendment Rules. We are therefore of the considered opinion that the 16th Amendment Rules must necessarily fall.?3. Accordingly, we may deal with the matter very briefly. The Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (1981 Rules) have been framed under Section 19 of U.P. Basic Education Act, 1972 (1972 Act). Basic education in the State of Uttar Pradesh is regulated by the 1972 Act. Section 19 of the 1972 Act, provides for rules to determine the qualification for appointment as teachers and conditions of service of teachers of basic schools.4. Rule 8 of the 1981 Rules prescribes the academic qualification for appointment of a teacher. The qualification prescribed is the bachelor?s degree together with the training qualification i.e. Basic Teacher?s Certificate (BTC), Hindustani Teacher?s Certificate, Junior Teachers? Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto. Rule 14 lays down the manner of appointment.5. The 1981 Rules were amended in 2011 by the 12th Amendment. Prior to the amendment, there was a provision for quality points under Rule 14(4) as follows:?(4) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have passed the said training course later and the candidates who have passed the training course in a particular years shall be arranged in accordance with the quality points specified in the appendix.?6. The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act), enacted in the wake of Eighty Sixth Amendment to the Constitution in the year 2002, regulates elementary education and also deals with the qualification for appointment of teachers under Section 23 of the RTE Act. NCTE constituted under the National Council for Teachers? Education Act, 1993 (NCTE Act) has been prescribed as an ‘academic authority? by the Central Government to lay down the minimum qualification prescribed for appointment of a teacher. Accordingly, Notification dated 23rd August, 2010 has been issued by the NCTE laying down such qualification. Teacher Eligibility Test (TET) is the essential qualification prescribed under the said Notification. However, the guidelines/ Notification dated 11th February, 2011 provided that in the process of appointment of teachers, weightage has to be given to the marks obtained in TET examination.7. As already noted, the State of Uttar Pradesh amended 1981 Rules by 12th Amendment. This was done to comply with the Notification dated 11th February, 2011. However, subsequently there was further amendment. Some of which were challenged before the High Court on the ground of being repugnant to the Central Rule/Notification dated 11th February, 2011. Conflicting views were taken in the judgments of the Allahabad High Court. In Prabhakar Singh versus State of U.P. (2013) 1 ADJ 651 )it was held that weightage to the TET marks laid down in Notification dated 11th February, 2011 was not mandatory. The said judgment was doubted and the matter was referred to a Full Bench. The Full Bench in Shiv Kumar Sharma versus State of U.P. (2013) 6 ADJ 310 )held a different view. It was held that by virtue of power of the Central Government on a subject in Concurrent List, in case of repugnancy, the State rule was required to comply with the disposition in a central legislation. Same view was taken in Shiv Kumar Pathak (supra). Therein, Fifteenth Amendment to the Rules was held to be in conflict with the NCTE Notification dated 11th February, 2011. On the same reasoning, the impugned judgment has struck down the Sixteenth Amendment.8. We have heard learned counsel for the parties.9. Learned counsel for the State of U.P. submitted that there was no conflict in the notifications issued by the NCTE and the amendment in the State Rules. It was submitted that the jurisdiction of the NCTE under Section 23(1) was limited to laying down of qualification as a condition for appointment and the power conferred under the said section did not stipulate regulation of the selection process.10. The NCTE has taken a stand that its notification suggesting weightage to TET marks was not mandatory. The original writ petitioners however support the impugned judgment by submitting that since the issue is covered by Entry 25 List III of the Seventh Schedule to the Constitution, any standard laid down by the Central Government will bind the State and any conflicting decision of the State will be unconstitutional.11. We find that there is no conflict in the notification issued by the Central Government and the amendment to the State Rules since the Notification dated 11th February, 2011 to the extent of suggesting weightage to TET marks can be held to be merely a guideline.12. We have already dealt with the matter in Civil Appeal Nos. 4347-4375 of 2014 entitled State of U.P. and ors. versus Shiv Kumar Pathak and Ors. and held that weightage to the TET marks was not mandatory and the State rules, not being in conflict with the norms laid down by the NCTE, may not be held to be void on the ground of repugnancy.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. We find that there is no conflict in the notification issued by the Central Government and the amendment to the State Rules since the Notification dated 11th February, 2011 to the extent of suggesting weightage to TET marks can be held to be merely a guideline.12. We have already dealt with the matter in Civil Appeal Nos.of 2014 entitled State of U.P. and ors. versus Shiv Kumar Pathak and Ors. and held that weightage to the TET marks was not mandatory and the State rules, not being in conflict with the norms laid down by the NCTE, may not be held to be void on the ground of repugnancy.