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

This batch of appeals has arisen from the judgment dated 1st December, 2016 of the High Court of Judicature at Allahabad in Special Appeal No.657 of 2015 (2017(1)ADJ 141, 2017(1)ALJ 445) and batch of the High Court of Judicature at Allahabad. The High Court has quashed the U.P. Basic Education (Teachers) Service (16th Amendment) Rules, 2012 on the ground that the said amendment was in conflict with the Notification dated 11th February, 2011 issued by the National Council of Teachers Education (NCTE).2. It is not necessary to discuss the issue in detail as in the impugned judgment the High Court has followed its earlier judgment in Shiv Kumar Pathak v. State of U.P. (2013(1)ADJ 21)wherein the issue of validity of 15th Amendment to the same rule was considered on the same ground. The said issue has been gone into by this Court in a separate judgment in Civil Appealof 2014 entitled State of U.P. and ors. versus Shiv Kumar Pathak and Ors. The High Court in the impugned judgment… … During the course of submissions advanced by the rival parties before us, we noted that the issues which were being canvassed were in fact identical and similar to those framed by the Supreme Court especially issues such as whether the guidelines framed by the NCTE were valid, could they form the sole criteria for filling vacancies and if held to be intra vires what interpretation is liable to be rendered to the word ?weightage? in paragraph 9(b) of the Guidelines dated 11th February, 2011. Upon this being pointed out, the majority of the learned counsels for the parties urged us to proceed to dispose of this batch of matters so as to enable them to take their matters also to the Supreme Court and raise all contentions so that a quietus to the entire controversy is ultimately rendered. We accordingly proceeded to hear the parties on merits and consequently note the submissions advanced hereinafter. … … …We find no ground which may warrant taking a different view. Following the dictum laid down in Shiv Kumar Sharma by the Full Bench as reiterated in Shiv Kumar Pathak, we uphold the guidelines and hold that they are not liable to be struck down on the grounds urged before us. …… …As discussed in the earlier part of this judgment, the 16th Amendment Rules which came into force with effect from 4th December, 2012 did not remedy the situation. Rule 14(3) (a) which came to be introduced provided that the names of candidates would be arranged in accordance with quality points specified in, as noted above, did not have any independent existence. It was introduced only by 15th Amendment Rules. Once the Division Bench had struck down Rule 14(3) as introduced by the 15th Amendment Rules in Shiv Kumar Pathak, it cannot be said that the Appendix which came to be introduced by the said provisions continued to exist or remained on the statute book. The Appendix to the original 1981 Rules as has been noted by us earlier had only a limited application. The 16th Amendment Rules therefore were clearly otiose and unworkable.We are constrained to hold so in light of the settled principle that when a statutory provision is struck down, the effect of such a 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.?

Reasoning:
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.