RAM SHARAN MAURYA AND OTHERS versus STATE OF U.P. AND OTHERS
[2020] 12 S.C.R. 466, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Body
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RAM SHARAN MAURYA AND OTHERS
v.
STATE OF U.P. AND OTHERS
(Civil Appeal No. 3707 of 2020 etc.)
NOVEMBER 18, 2020
[UDAY UMESH LALIT AND
MOHAN M. SHANTANAGOUDAR, JJ.]
Service Law:
Recruitment – To the post of Assistant Teacher of Junior Basic
School – By judgment in *Anand Kumar Yadav case ‘Shiksha Mitras’
were given opportunity to be considered for next two recruitments
to the post of Assistant Teacher – State amended U.P. Basic Education
(Teachers) Service Rules, 1981 making ‘Shiksha Mitras’ eligible
for appointment to the post of Assistant Teachers of Junior Basic
Schools – Qualification for the same  included passing of Teachers
Eligibility Test (TET) and Assistant Teacher Recruitment Examination
(ATRE) – For ATRE-2018, minimum qualifying marks for General
& OBC candidates was 45% and for SC/ST was 40% – Candidates
were selected for appointment – National Council for Teachers
Education by Notification dated 28.6.2018 laid down that
candidates holding B.Ed. degree could be entitled to be appointed
as teacher for classes I to V provided they undergo six months bridge
course – Rules 1981 were subsequently amended in terms of the
NCTE Notification dated 28.6.2018 with retrospective effect –
Thereafter ATRE-2019 was notified for filling up 69000 vacancies
for Assistant Teachers – The same was conducted without notifying
minimum qualifying marks – After conducting the exam, State
prescribed minimum qualifying marks i.e.
65% for General category
and 60% for all other reserved categories – Writ petitions filed by
‘Shiksha Mitras’ assailing fixation of minimum qualifying marks –
Single Judge of High Court allowed the wirt petition filed by ‘Shiksha
Mitras’ – In appeal, Division Bench of High Court reversed the
order of Single Judge – Appeal to Supreme Court – Held: NCTE is
entitled to lay down the norms for appointment of teachers for classes
I to V – Such prescription is binding on the State – Amendment of
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1981 Rules has to be read in confirmity with the NCTE Notification
dated 28.6.2018 – The eligibility norms having already been
conferred by Notification dated 28.6.2018, amendments to 1981
Rules with retrospective effect cannot be said to have conferred
eligibility norms for the first time – Therefore, B.Ed. candidates were
rightly allowed to participate in the selection process – Cut-off marks
for ATRE-2019 at 65-60% cannot be termed as exclusionary or
illegal as the same was designed to garner the best talent which is
in consistence with the objectives of RTE Act – Government is
empowered to lay down minimum marks from time to time – Such
power can be exercised even after the examination is over, provided
such exercise is not actuated by any malice or ill-will – National
Council for Teachers Education Act, 1993 – Right to Education
Act, 2005 – Uttar Pradesh Basic Education (Teachers) Service
Rules, 1981 – Rules 2(1)(x), 8 and 14.
Dismissing the appeals preferred by Shiksha Mitras, ex-
servicemen and persons with disability and disposing of those
filed by B.Ed./B.T.C. candidates, the Court
HELD : 1.1 In Teachers’ Eligibility Test (TET) examination
held in March, 2018, out of 3,86,000 qualified candidates, Shiksha
Mitras were 40,000 only; meaning thereby that a large number
of candidates other than Shiksha Mitras had been declared
qualified.  Paragraph 4(2) of G.O. dated 01.12.2018, referred to
certain directives of National Council for Teachers Education
(NCTE) which in turn, had dealt with eligibility of B.Ed.
candidates.  It was, therefore, quite apparent that in the ensuing
selection process, considerable number of B.Ed. candidates would
participate.  In this background, the absence of any challenge to
the entitlement of B.Ed. candidates to participate in the process
and to appear at Assistant Teacher Recruitment Examination-
2019 (ATRE-2019) is crucial. [Para 37][530-B-D]
1.2 Going by the Parliamentary intent in empowering NCTE
under the provisions of the National Council for Teachers
Education Act, 1993 (NCTE Act) and specific authorization in
favour of NCTE under the Notification dated 31.03.2010, the
authority of NCTE is beyond any doubt.  Though there is no
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specific regulation as contemplated under Section 32 read with
Sections 12 and 12A of the NCTE Act, for the present purposes
by virtue of the specific authorization under the Notification dated
31.03.2010, NCTE was entitled to lay down that those holding
the qualification of ‘Bachelor of Education’ as detailed in said
Notification are entitled to be appointed as teachers for classes I
to V.  Such prescription on part of the NCTE would be binding.  It
is for this reason that G.O. dated 01.12.2018 notifying ATRE-
2019 clearly stated that the candidates possessing minimum
qualifications specified in Notifications issued by the NCTE
including one dated 28.06.2018 were entitled to participate in
ATRE-2019.  [Para 41][534-E-H]
1.3 The Notification dated 28.06.2018 being binding on the
State Government, the statutory regime put in place by the State
has to be read in conformity with said Notification.  The eligibility
or entitlement being already conferred by Notification dated
28.06.2018, the amendments to Uttar Pradesh basic Education
(Teachers) Service Rules, 1981 (1981 Rules) were effected only
to make the statutory regime consistent with the directives issued
by the NCTE.  The right or eligibility was not conferred by
amendments effected to 1981 Rules for the first time and
therefore the element of retrospectivity present in the concerned
amendments has to be read in that perspective.  The intent behind
those
amendments was not to create a right for the first time
with retrospective effect but was only to effectuate the statutory
regime in tune or accord with NCTE directives.  Theoretically,
even if such statutory regime was not made so consistent, the
concerned candidates holding B.Ed. degrees could still be eligible
and could not have been denied candidature for ATRE-2019. [Para
43][535-E-H]
1.4 Once, the NCTE laid down that candidates holding B.Ed.
degrees would be entitled to be appointed as teachers for classes
I to V, provided they undergo a six months’ Bridge Course, the
stipulation in 1981 Rules (before 23rd Amendment) that they must
first be appointed as trainee teachers must give way to that under
the Notification dated 28.06.2018.  Said stipulation in 1981 Rules
cannot be considered as an additional norm. It ran completely
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counter to that under the Notification dated 28.06.2018 which is
why the Amendment in that behalf was given retrospective effect
to bring in consistency. The B.Ed. candidates were rightly allowed
to participate in the instant selection process. [Paras  45 and
46][536-E-H]
P. Mahendran and others etc. v. State of Karnataka
and others (1990) 1 SCC 411 : [1989] 2 Suppl. SCR
385 ; Madan Mohan Sharma and another v. State of
Rajasthan and others (2008) 3 SCC 724 : [2008] 3
SCR 232 – held inapplicable.
State of Maharashtra vs. Sant Dnyaneshwar Shikshan
Shastra Mahavidyalaya and others (2006) 9 SCC 1 :
[2006] 3 SCR 638 ; Basic Education Board, U.P.  vs.
Upendra Rai and others (2008) 3 SCC 432: [2008] 2
SCR 707 ; Dr. Preeti Srivastava and another etc. vs.
State of M.P. and others etc. (1999) 7 SCC 120 : [1999]
1 Suppl. SCR 249  – referred to.
2.1 The percentage of qualifying candidates in ATRE-2018
was 38.83%. The percentage of qualifying candidates in ATRE-
2019 was 37.62%, which was almost equal to that in ATRE-2018.
However, the number of qualified candidates in ATRE-2018 was
less than the number of vacancies; while even with the cut off at
65-60% the number of qualified candidates in the present
selection i.e. ATRE-2019 was far in excess of the number of posts.
These figures give indications about the nature and the difficulty
level of the examinations and show that even with cut off at 65-
60%, the percentage of qualifying candidates was almost the same.
[Para 48][537-F-H; 538-A]
2.2 Though the syllabus and subject wise allocation of marks
were identical in both i.e. ATRE-18 and ATRE-19, the nature of
ATRE-2019 was entirely different. The nature and the difficulty
level of both the examinations were different. Therefore it must
be accepted that there could be different parameters regarding
minimum qualifying marks for ATRE-2019. [Para 50][538-D-F]
2.3 All the candidates including Shiksha Mitras who
appeared in ATRE 2018 formed one class while those who
appeared in ATRE 2019 formed another class.  There cannot be
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inter se connection or homogeneity between candidates appearing
in one examination or selection with those appearing in another
examination or selection.  The candidates would undoubtedly
compete with each other in the same examination on a para meter
which applies to all of them equally.  But to say that Shiksha Mitras
who appeared in ATRE-2019 must be allowed equality with
candidates of ATRE-2018, who were part of a different selection
process would be incorrect and illogical.  The basic norms of
ATRE-2019 must be tested on their own and cannot depend upon
para meters or norms on the basis of which ATRE-2018 was held.
Otherwise the integrity of the examination process will get
defeated and nullified. [Para 51][538-F-H; 539-A-B]
2.4 The object of giving opportunities to Shiksha Mitras
was to ensure that they were given fair chance to compete with
others so that the best of the lot would be available to take care
of primary education in the State.  Therefore, it is not correct to
say that there should not be a different yardstick for Shiksha
Mitras, who had been rendering service as teachers, as against
what could be applied for fresh graduates. [Paras 52 and 47
(c)][540-D-E; 537-C-D]
2.5 The fixation at 65-60% level was to garner the best
available talent.  Even with this qualifying norm, the percentage
of qualified candidates in ATRE-2019 was 37.62% which was quite
close to 38.83% in ATRE-2018 and the number of
qualified
candidates was far in excess of the vacancies required to be filled
up.  Thus, cut off at 65-60% level in the present case, by itself
cannot be termed as incorrect or illegal exercise of power. [Para
53][541-B-C]
2.6 Though as a result of the 22nd Amendment, passing of
ATRE ceased to be part of Rule 8, the requirement was
specifically retained in Rule 14 of 1981 Rules.  Further, 60% of
the marks scored by a candidate in ATRE, in terms of Appendix
I read with Rule 14(2) would go in determining quality points to
prepare the merit list.  The major portion of quality points being
directly relatable to the performance in ATRE, mere fixation at
65-60% level which applied to all the candidates across the board
cannot be said to be exclusionary, nor was it intended to deprive
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the Shiksha Mitras of the advantage of weightage for experience.
ATRE featured as the common platform on the basis of which
individual merit of various candidates could be tested, which is
why a major portion of allocable quality points was assigned to
the performance in ATRE.  In the circumstances, the performance
in ATRE-2019 was given adequate and due weightage by fixation
of cut off at 65-60% level. [Paras 55 and 56][541-E-G]
2.7 Therefore, the fixation of cut off at 65-60% in ATRE-
2019 was perfectly valid and justified.  Considering the large
number of candidates who appeared at ATRE-2019 as well as the
nature and difficulty level of the examination, the cut off was
designed to draw the best available talent.  The endeavour on
part of the State in attempting to secure the best of the teachers
was therefore fully justified.  The right to education guaranteed
in terms of Article 21A of the Constitution would envisage quality
education being imparted to the children which in turn, would
signify that the teachers must be meritorious and the best of the
lot. Any process which applied equally to all the candidates and
was designed to garner the best talent, cannot be called arbitrary
or irrational. [Para 57][542-D-F]
State of M.P. and others vs. Gopal D. Tirthani and others
(2003) 7 SCC 83 : [2003] 1 Suppl. SCR 797 –
distinguished.
3.1 In terms of Rule 2(1)(x) of 1981 Rules, qualifying marks
of ATRE are such minimum marks as may be determined ‘from
time
to time’ by the Government.  Clause (C) of Rule 14 of 1981
Rules lays down that a candidate must have ‘passed Assistant
Teacher Recruitment Examination conducted by the Government’.
Thus, one of the basic requirements for being considered to be
appointed as an Assistant Teacher under 1981 Rules is passing
of ATRE with such minimum marks as may be determined by the
Government.  Unlike para 7 of the Guidelines for ATRE-2018
which had spelt out that a candidate must secure minimum of
45% or 40% marks (for ‘general’ and ‘reserved’ categories
respectively) for passing ATRE-2018, no such stipulation was
available in G.O. dated 01.12.2018 notifying ATRE-2019.  Though,
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the minimum qualifying marks were set out in the Guidelines for
ATRE-2018, it is not the requirement of 1981 Rules that such
stipulation must be part of the instrument notifying ATRE.  By
very nature of entrustment, the Government is empowered to
lay down minimum marks ‘from time to time’.  If this power is
taken to be conditioned with the requirement that the stipulation
must be part of the instrument notifying the examination, then
there was no such stipulation for ATRE-2019.  Such reading of
the rules will lead to somewhat illogical consequences.  On one
hand, the relevant Rule requires passing of ATRE while, on the
other hand, there would be no minimum qualifying marks
prescribed.  A reasonable construction on the relevant rules would
therefore imply that the Government must be said to be having
power to lay down such minimum qualifying marks not exactly
alongside instrument notifying the examination but at such other
reasonable time as well.  [Para 60][552-E-H; 553-A-B]
3.2 In the present case, the requirement in terms of Rule
2(1)(x) read with Rule 14 is that the minimum qualifying marks
as stipulated by the Government must be obtained by a candidate
to be considered eligible for selection as Assistant Teacher.  It
was thus always contemplated that there would be some minimum
qualifying marks.  What was done by the Government by virtue
of its orders dated 07.01.2019 was to fix the quantum or number
of such
minimum qualifying marks. The candidate had to pass
ATRE-2019 and he must be taken to have known that there would
be fixation of some minimum qualifying marks for clearing ATRE-
2019.  [Para 61][553-E-H; 554-A]
3.3 If the Government has the power to fix minimum
qualifying marks ‘from time to time’, there is nothing in the Rules
which can detract from the exercise of such power even after the
examination is over, provided the exercise of such power is not
actuated by any malice or ill will and is in furtherance of the object
of finding the best available talent. [Para 63][554-E-F]
Municipal Corporation of Delhi vs. Surender Singh and
others (2019) 8 SCC 67; Jharkhand Public Service
Commission vs. Manoj Kumar Gupta (2020) 1 SCALE
504 – relied on.
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3.4 If the ultimate object is to select the best available talent
and there is a power to fix the minimum qualifying marks, in
keeping with the law laid down by this Court, there is no illegality
or impropriety in fixation of cut off at 65-60% vide order dated
07.01.2019.  The facts on record indicate that even with this cut
off, the number of qualified candidates is more than twice the
number of vacancies available. [Para 64][555-A-C]
State of Haryana vs. Subash Chander Marwaha and
others (1974) 3 SCC 220 : [1974] 1 SCR 165; State of
U.P. etc. v. Rafiquddin and others etc. 1987 (Supp) SCC
401 : [1988] SCR 794 – relied on.
3.5 It must be accepted that after considering the nature
and difficulty level of examination, the number of candidates who
appeared, the concerned authorities have the requisite power to
select a criteria which may enable getting the best available
teachers.  Such endeavour will certainly be consistent with the
objectives under the Right to Education Act, 2005 (RTE Act).
[Para 64][555-C-D]
3.6 In the circumstances, the view taken by the Division
Bench of the High Court is confirmed and it is concluded that in
the present case, the fixation of cut off at 65-60%, even after the
examination was over, cannot be said to be impermissible.  The
Government was well within its rights to fix such cut off. [Para
65][555-D-E]
State of Haryana vs. Subash Chander Marwaha and
others (1974) 3 SCC 220: [1974] 1 SCR 165; State of
U.P. etc. v. Rafiquddin
and others etc. 1987 (Supp) SCC
401: [1988] 1 SCR 794 – relied on.
K. Manjusree vs. State of Andhra Pradesh and another
(2008) 3 SCC 512: [2008] 2 SCR 1025; Hemani
Malhotra etc. vs. High Court of Delhi (2008) 7 SCC
11: [2008] 5 SCR 1066 – distinguished.
P.K. Ramachandra Iyer and others v. Union of India
and others (1984) 2 SCC 141: [1984] 2 SCR 200;
Umesh Chandra Shukla v. Union of India and others
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(1985) 3 SCC 721: [1985] 2 Suppl. SCR 367;
Durgacharan Misra v. State of Orissa (1987) 4 SCC
646: [1987] 3 SCR 1097; Maharashtra State Road
Transport Corporation and others v. Rajendra Bhimrao
Mandve and others (2001) 10 SCC 51; Tej Prakash
Pathak and others vs. Rajasthan High Court and others
(2013) 4 SCC 540; Yogesh Yadav vs. Union of India
and others  (2013) 14 SCC 623: [2013] 8 SCR 194;
Salam Samarjeet Singh v. High Court of Manipur at
Imphal and another (2016) 10 SCC 484: [2016] 9 SCR
771; Sivanandam C.T. and others v. High Court of
Kerala and others (2018) 1 SCC 239: [2017] 13 SCR
226; Municipal Corporation of Delhi v. Surender Singh
and others (2019) 8 SCC 67; Jharkhand Public Service
Commission v. Manoj Kumar Gupta (2020) 1 SCALE
504 – referred to.
4. Consequently, the challenge at the instance of Shiksha
Mitras in all these matters, is negated and the appeals preferred
by Shiksha Mitras are dismissed. The appeal preferred by the
Association of Shiksha Mitras also prayed for absorption of
Shiksha Mitras.  Such a prayer cannot be granted in view of the
pronouncement of the decision of this Court in *Anand Kumar
Yadav.  Said appeal is, therefore, dismissed. However, one more
opportunity shall be afforded to Shiksha Mitras to compete in
the next selection. It is left to the discretion of the State
Government to consider the manner and the modalities in which
such opportunity can be availed of. [Paras 66 and
67][555-E-H]
5. The cut off at 65-60% having been held valid and
justified, the appeals preferred by ex-servicemen or persons with
disability are also dismissed. If there are less number of candidates
against the vacancies for these categories, such vacancies shall
be subject to the Rules in that behalf.   If the vacancies cannot be
carried forward, the same shall and must enure to the advantage
of the candidates in the present selection.  [Para 68][556-A-C]
6. Similarly, Writ Petition and appeals arising out of petitions
preferred by B.Ed./B.T.C. candidates as well as Contempt
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Petition and all Intervention Applications also stand disposed of
in same terms. [Para 68][556-C]
7. The State Government shall now be entitled to fill up all
the concerned posts in terms of the result declared on 12.05.2020
and in accordance with law. [Para 69][556-C-D]
*State of U.P. and another vs. Anand Kumar Yadav and
others (2018) 13 SCC 560 : [2017] 10 SCR 428 –
referred to.
Case Law Reference
[2017] 10 SCR 428
referred to
Para 2
[2006] 3 SCR 638
referred to
Para 38.1
[2008] 2 SCR 707
referred to
Para 38.2
[1989] 2 Suppl. SCR 385
held inapplicable
Para 42
[2008] 3 SCR 232
held inapplicable
Para 42
[1999] 1 Suppl. SCR 249
referred to
Para 45
[2003] 1 Suppl. SCR 797
distinguished
Para 52
[1974] 1 SCR 165
referred to
Para 58
[1988] 1 SCR 794
referred to
Para 58
[1974] 1 SCR 165
referred to
Para 58
[1984] 2 SCR 200
referred to
Para 58
[1985] 2 Suppl. SCR 367
referred to
Para 58
[1987] 3 SCR 1097
referred to
Para 58
(2001) 10 SCC 51
referred to
Para 58
(2013) 4 SCC 540
referred to
Para 58
[2013] 8 SCR 194
referred to
Para 58
[2016] 9 SCR 771
referred to
Para 58
[2017] 13 SCR 226
referred to
Para 58
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(2019) 8 SCC 67
referred to
Para 58
[2008] 2 SCR 1025
distinguished
Para 61
[2008] 5 SCR 1066
distinguished
Para 61
(2019) 8 SCC 67
relied on
Para 63
[1974] 1 SCR 165
relied on
Para 64
[1988] SCR 794
relied on
Para 64
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3707
of 2020.
From the Judgment and Order dated 06.05.2020 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Special Appeal
No. 207 of 2019.
With
Civil Appeal Nos. 3708, 3709, 3710, 3711, 3720, 3721, 3722, 3728,
3729, 3725, 3732, 3731, 3724, 3723, 3730, 3726, 3712, 3713, 3714, 3717,
3715, 3716, 3718, 3719, 3727, 3733, 3734 of 2020, Contempt Petition (C)
No. 418 of 2020 in Special Leave Petition (Civil) No. 6841 of 2020,
Special Leave Petition (Civil) D. No. 13142 of 2020, Writ Petition (Civil)
No. 703 of 2020.
Ms. 
Aishwarya 
Bhati, 
ASG, 
K.V. 
Viswanathan,
R. Balasubramanian,  Sr. Advs., Harish Pandey, Anup Kumar, Sachin
Sharma, Talha Abdul Rahman,  Kushagra Pandey, Mohd. Shaz Khan,
Udit Konkanthankar,  Mukesh Verma,  Raj Singh Rana,  Anand Nandan,
Satya Mitra,  Pankaj Kumar Singh,  Kamal Kumar Pandey,  Yash Pal
Dhingra,  Akshay Verma,  Atul Khenja, D.K. Pandey, Ms. Tanya Agarwal,
Ms. Rani Chhabra, Ms. Saroj Tripathi,  Naveen Kumar Tripathi,  Abhishek
Kumar Singh, Dr. Sumant Bharadwaj,  Vedant Bharadwaj, Ms. Mridula
Ray Bharadwaj,  Kausar Raza Faridi, D.P. Shukla,  Prashant Shukla,
Dr. Brij Bhushan K. Jauhar,  Gaurav Yadav,  Harsh
Mahan,  Lalit Chahar,
Ms. Purnima Jauhari, R.K. Singh, Ms. Neeraj Singh, Kumar Gaurav,
Ms. Ritu Reniwal, Ms. Anzu. K. Varkey, Aman Rastogi,  Sanjay Rastogi,
Ms. Ritu,  Abhishek Kishor,  Parminder Singh Bhullar, Tom Joseph,
Pushkar Sharma,  Satish Pandey, Ms. Geeta Verma,  Abdul Qadir,  Nishit
Agrawal,  Harsh Mishra, Dr. Vinod Kumar Tewari, Ms. Priyanka Dubey,
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Vivek Tiwari,  Amit Pawan,  Sahil Bhalaik,  Tarun Gupta,  Rakesh Mishra,
Krishnanand Pandeya,  Priyank Upadhyay,  Piyush Dwivedi,
Rameshwar Prasad Goyal, Ms. Tanima Kishore,  Satyajeet Kumar,
Rakesh Dahiya,  Santosh Kumar Tripathi, Advs. for the appearing parties.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. Except Special Leave Petition (Civil) D.No.13142 of 2020: (i)
permission to file Special Leave Petition is granted in all the concerned
matters; and (ii) Special Leave to Appeal is granted in all matters.
2. These appeals arise out of the final judgment and order dated
06.05.2020 passed by the Division Bench of the High Court1 in Special
Appeal No.207 of 2019 and all connected matters whereby the Division
Bench of the High Court set aside the Order dated 29.03.2019 passed
by the Single Judge of the High Court in Writ Petition No.1188(SS) of
2019 and other connected matters.  These appeals, inter alia, deal with
the extent of rights of Shiksha Mitras and benefits conferred upon them
by the decision of this Court in State of U.P. and another vs. Anand
Kumar Yadav and others2.
3. The facts leading to the decision of this Court in Anand Kumar
Yadav2 were set out in said decision as under:-
“3. Brief factual matrix may be noted. The 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
authorises the State Government to make rules to carry out
the
purpose of the Act. The U.P. Basic Education (Teachers) Service
Rules, 1981 (the 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 (the RTE Act, 2009) was enacted by
Parliament for free and compulsory education to all children of
the age of 6 to 14 years. Section 23 provides for qualification for
1 The High Court of Judicature at Allahabad, Lucknow Bench
2 (2018) 13 SCC 560
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appointment of teachers. NCTE was designated as authority under
Section 23(1) to lay down the qualifications for appointment of
teachers.
4. NCTE issued Notification dated 23-8-2010 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 3-9-2001
subject to their undergoing NCTE recognised six months’ special
programme in certain situations. Teachers appointed before 3-9-
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 8-11-2010, the Central
Government sought proposals for relaxation under Section 23(2)
of the RTE Act which was followed by the relaxation Order dated
10-9-2012 for certain categories of persons which was to operate
till 31-3-2014. Vide Letter of NCTE dated 14-1-2011, NCTE
accepted the proposal of the State of Uttar Pradesh for training
of untrained graduate Shiksha Mitras by open and distance learning
but it was made clear that no appointment of untrained teachers
was permitted.
5. 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 the U.P.
RTE Rules, 2011.
6. Reference may now be made to the scheme under which the
Shiksha Mitras were recruited. On 26-5-1999, a Government
Order was issued by the State of U.P. for engagement of Shiksha
Mitras (Parateacher). The purported object of the Order was to
provide universal primary education and for maintenance of
teacher 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 up to the limit of 10,000, Shiksha Mitras could be contracted
for academic session 1999-2000 at honorarium of Rs 1450 per
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month. The salient aspects of the scheme as summed up in the
impugned judgment? of the High Court from the said G.O. were:
(Anand Kumar case3, SCC OnLine All para 17)
“(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 Nyaya 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.”
7.  Further G.Os. were issued by the State of U.P. including G.O.
dated 1-7-2001 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.
8. Even though vide Notification dated 23-8-2010, minimum
statutory qualification was laid down by 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
3 2015 SCC OnLine All 3997 : ILR 2015 All 1108 [Anand Kumar Yadav vs. Union of
India]
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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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 up to 31-3-2014.
9. The State Government submitted a revised proposal dated 3-1-
2011 envisaging giving of training to the Shiksha Mitras which
was accepted by the Central Government in terms of the Letter
dated 14-1-2011 for two years’ diploma in elementary education
through open and distance learning mode with a clear
understanding that no untrained teachers will be appointed.
10. Finally, the State of U.P. took the following steps which were
subject-matter of challenge before the High Court:
10.1. The Notification dated 30-5-2014 amending the U.P. RTE
Rules introducing Rule 16-A authorising the State Government to
relax minimum educational qualifications for appointment of
Assistant Teachers in Junior Basic Schools.
10.2. The Notification dated 30-5-2014, 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.
10.3. G.O. dated 19-6-2013 was issued giving permission for
appointment of Shiksha Mitras on the post of Assistant Teachers
in primary schools without having the eligibility and qualifications
in terms of the RTE Act, 2009. A time table was laid down for
absorption of Shiksha Mitras as Assistant Teachers.
10.4. The consequential executive orders were issued for
absorption of 1,24,000 graduate Shiksha Mitras and 46,000
intermediate Shiksha Mitras.”
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13. Batch of writ petitions was 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
regularising the Shiksha Mitras against the said vacancies……….
14. Case set out in the petition was that in view of Notification
issued by NCTE on 23-8-2010 laying down minimum qualification
for appointment of Assistant Teacher for Classes I to VIII, the
decision of the U.P. Government dated 19-6-2014 and amendments
made by the U.P. Government on 30-5-2014 were in conflict with
the Notification issued by NCTE on 23-8-2010 and could not,
thus, be justified. 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 23-8-2010 Notification and being
not covered by the conditions for relaxation. The 1981 Rules of
the State could not incorporate a provision for absorption of Shiksha
Mitras in violation of law laid down by this Court in State of
Karnataka v. Umadevi (3)4as their appointment was dehors 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 dehors
the rules. Moreover, 46,000 Shiksha Mitras were not even
graduates which was a condition for approval by NCTE in its
letter dated 14-1-2011………”
3.1 The decision rendered by the Full Bench of the High Court of
Judicature at Allahabad was dealt with as under:-
“17. 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 the 1981 Rules. They also did not
have the qualifications prescribed under the said Rules inasmuch
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
4 (2006) 4 SCC 1 : 2006 SCC (L&S) 753
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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
Sandhya Singh v. State of U.P.5with regard to the nature of
such appointments.
18. 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 v. State of U.P.6 for post-23-8-
2010 appointments. Nor pre-23-8-2010 appointments could be
saved unless initial appointments were to the post of teachers in
terms of applicable rules as stated in the Notification dated 23-8-
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 regularisation of Shiksha Mitras as teachers was
not permissible in view of the law laid down in Umadevi (3)4. The
appointment of Shiksha Mitras was not as teachers nor could it
be held to be merely irregular in the absence of their minimum
qualifications for the post of teachers which was a distinguishing
feature rendering the judgments State of Karnataka v. M.L.
Kesari7 and
Amarendra Kumar Mohapatra v. State of Orissa8
inapplicable.
3.2. Affirming the view taken by the Full Bench, this Court
concluded:-
“28. 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 the
Notification dated 23-8-2010, 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
5 (2013) 7 ADJ 1 (FB)
6 2013 SCC OnLine All 4097 : (2013) 6 ALJ 366 : 6 ADJ 310 (FB)
7 (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826
8 (2014) 4 SCC 583 : (2014) 2 SCC (L&S) 54
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already appointed in terms of applicable rules relating to
qualifications. The Shiksha Mitras in the present case do not fall
in the category of pre 23-8-2010 Notification whose appointment
could be regularised.
29. Further difficulty which stares one in the face is the law laid
down by this Court on regularisation 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 regularised as teachers.
Regularisation could only be of mere irregularity. The exceptions
carved out by this Court do not apply to the case of the present
nature.
30. 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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32. On the one hand, we have the claim of 1.78 lakh persons to
be regularised 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. Regularisation 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 view3 taken by the
High Court.”
3.3 However, in the peculiar fact situation, following observations
were made by this Court:-
“33. Question now is whether in the absence of any right in favour
of Shiksha Mitras, they are entitled to any other relief or preference.
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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 authority concerned. 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.”
4. Paragraph 33 of the decision in Anand Kumar Yadav2 thus
directed that Shiksha Mitras be given:-
a)
opportunity to be considered for recruitment if they had
acquired or would acquire requisite qualifications in terms of
advertisement for recruitment.
b)
for next two consecutive recruitments; and
c)
in such recruitments, they would be entitled to:-
i)
suitable age relaxation; and
ii)
some weightage for their experience, as may be decided
by the authority concerned.
5. After the decision in Anand Kumar Yadav2, a Press Note
was released by the State Government on 21.08.2017, which referred to
the directions in aforesaid paragraph 33 and stated:
“1.  In sequence of compliance of above, Government to such
teachers who were absorbed/ adjusted at the post of teacher,
they will be deemed reverted on the post of Shiksha Mitra w.e.f.
1.8.2017.  They will have
option to join duty in their present school
or at the school of their original posting.
2. State Government shall organize exam of TET in the month of
October 2017 and all such Shiksha Mitras shall be provided an
opportunity to acquire the required qualification.
3. After TET examination is held, for the purposes of selection of
Assistant Teachers in the Primary Schools under the Board,
advertisement of vacancy in appropriate number shall be got
published in the month of December 2017 and all the eligible
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4. In sequence of the order passed by the Hon’ble Supreme Court,
amendment was brought in “Uttar Pradesh Basic Shiksha
(Teachers) Service Rule, 1981” and for the purposes of recruitment
on vacant posts of Assistant Teachers, advertisement shall be
made.  Above said amendment shall be brought in educational
qualification and in determining the factor which shall be as under:-
a.
Existing and proposed amendment in UP Basic Education
(Teacher) Service Rule, 1981 for the purposes of selection
on the basis of Educational Factor:-
Appendix
On the basis of Educational factor
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5. All Shiksha Mitras shall be given honorarium of Rs.10,000/-
per month w.e.f. 1.8.2017.”
6. On 09.11.2017, the State Government notified UP Basic
(Teachers) Service (20th Amendment) Rules, 2017 amending 1981 Rules9.
Following expressions were defined in Rule 2 as under:-
“(s) “Teacher Eligibility Test” means the Teacher Eligibility Test
conducted by the Government or by the Government of India;
(t) “Qualifying marks in Teacher Eligibility Test” Qualifying marks
in Teacher Eligibility Test will be such as may be prescribed from
time to time by the National Council for Teacher Education, New
Delhi;
(u) “Trainee teacher” means a candidate who has passed B.Ed./
B.Ed. (Special Education)/D.Ed. (Special Education) and has also
passed the teacher eligibility test and has been selected for eventual
appointment as assistant teacher in Junior Basic School after
successful completion of six months special training programme
in elementary education recognised by National Council for
Teacher Education (NCTE);
(v) “Shiksha Mitra” means a person working as such in junior
basic schools run by Basic Shiksha Parishad under the Government
Orders prior to the commencement of Uttar Pradesh Right of
Children to Free and Compulsory Education Rules, 2011;
Or a person who has been a Shiksha Mitra and appointed as an
Assistant Teacher in Junior Basic Schools run by Basic Shiksha
Parishad and reverted to work as Shiksha Mitra in pursuance of
the judgment of the Apex Court in SLP No. 32599/2015 State of
U.P. and others v. Anand Kumar Yadav and others.
(w) “Assistant Teacher Recruitment Examination” means a
written examination conducted by the Government for recruitment
of a person in junior basic schools run by Basic Shiksha Parishad;
(x) “Qualifying Marks of Assistant Teacher Recruitment
Examination” means such minimum marks as may be determined
from time to time by the Government.
9 UP Basic Education (Teachers) Service Rules, 1981

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(y) “Guidelines of Assistant Teacher Recruitment
Examination” means such guidelines as may be determined from
time to time by the Government.”
6.1. The sources of recruitment of teachers now set out in Rule 5
were:-
“5. Sources of recruitment. - The mode of recruitment to the
various categories of posts mentioned below shall be as follows :
Provided that if suitable candidate s are not available for promotion
to the posts mentioned at (v) and (vi) above, appointment may be
made by direct recruitment in the manner laid down in Rule 15.”
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]

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6.2. The Essential Qualifications for appointment to the posts
referred to in Clause (a) of Rule 5 were stipulated in Rule 8(1) as under:-
“8. Academic Qualifications-(1) The essential qualifications of
candidates for appointment to a post referred to in clause (a) of
Rule 5 shall be as shown below against each:
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Thus, Shiksha Mitras became eligible for appointment to the posts
of “Assistant Masters and Assistant Mistresses of Junior Basic Schools”
and the required academic qualifications as stated in Rule 8 were:-
a) Bachelor’s degree from a University.
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b) Successful completion of two years distant learning of B.T.C.
course or its equivalent course.
c) Passing of the Teachers’ Eligibility test (‘TET’, for short).
d) Passing of Assistant Teacher Recruitment Examination
(“ATRE”, for short) conducted by the State Government.
6.3. Rule 14 dealt with determination of vacancies and preparation
of list as under:-
“14. Determination of vacancies and preparation of list-
(1)(a) In respect of appointment, by direct recruitment to the post
of Mistress of Nursery Schools and Assistant Master or Assistant
Mistress of Junior Basic Schools under clause (a) of Rule 5, the
appointing authority shall determine the number of vacancies as
also the number of vacancies to be reserved for candidates
belonging to Scheduled Castes, Scheduled Tribes, Backward
Classes, and other categories under Rule 9 and at least two leading
daily newspapers having adequate circulation in the State as well
as in concerned district inviting applications from candidates
possessing prescribed training qualification and teacher eligibility
test passed, conducted by the Government or by the Government
of India and passed Assistant Teacher Recruitment Examination
conducted by the Government.
(b) The Government may from time to time decide to appoint
candidates, who are graduates along with B.Ed./B.Ed. (Special
Education)/D.Ed. (Special Education) and who have also passed
teacher eligibility test conducted by the
Government or by the
Government of India, as trainee teachers.  These candidates after
appointment will have to undergo six months special training
programme in elementary education recognised by National
Council of Teacher Education (NCTE).  The appointing authority
shall determine the number of vacancies as also the number of
vacancies to be reserved for candidates belonging to Scheduled
Castes, Scheduled Tribes, Backward Classes, and other categories
under Rule 9 and advertisement would be issued in at least two
leading daily newspapers having adequate circulation in the State
as well as in concerned district inviting applications from candidates
who are graduates along with B.Ed./B.Ed. (Special Education)/
D.Ed. (Special Education) and who have also passed teacher
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eligibility test conducted by the Government or by the Government
of India.
(c) The trainee teachers, after obtaining the certificate of
successful completion of six months special training in elementary
education shall be appointed as assistant teachers in junior basic
school against substantive post in regular pay-scale.  The appointing
authority will be duty bound to appoint the trainee teachers as
assistant teachers within one month of issue of certificate of
successful completion of said training.
(2) The appointing authority shall scrutinize the applications
received in pursuance of the advertisement under clause (a) or
(b) of sub-rule (1) of Rule 14 and prepare a list of such persons as
appear to possess the prescribed academic qualifications and be
eligible for appointment.
(3)
(a) The names of candidates in the list prepared under
sub-rule (2) in accordance with clause (a) of sub-rule
(1) of Rule 14 shall then be arranged in such manner
that the candidate shall be arranged in accordance with
the quality points and weightage as specified in the
Appendix-I :
Provided that if two or more candidates obtain equal
marks, the candidate senior in age shall be placed higher.
(b) The names of candidates in the list prepared under
sub-rule (2) in accordance with clause (b) of sub-rule
(1) of Rule 14 shall then be arranged in such manner
that the candidate shall be arranged in accordance with
the quality points specified in the appendix-II :
Provided that if
two or more candidates obtain equal
marks, the candidate senior in age shall be placed higher.
(c) The names of candidates in the list prepared in
accordance with clause (c) sub-rule (1) of Rule 14 for
appointment as assistant teacher shall be same as the
list prepared under clause (b) sub-rule (3) of Rule 14
unless the candidate under the said list is unable to
successfully complete the six months special training
course in elementary education in his first attempt.  If
the candidate successfully completes the six months
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special training in his second and final attempt, the
candidate’s name shall be placed under the names of all
those candidates who have completed the said six months
special training in their first attempt.
(4) No person shall be eligible for appointment unless his or her
name is included in the list prepared under sub-rule (2).
(5) The list prepared under sub-rule (2) and arranged in accordance
with clause (a) and (b) of sub-rule (3) of Rule 14 shall be forwarded
by the appointing authority to the selection committee.”
6.4. Appendix I referable to Rule 14(3)(a) and Appendix II referable
to Rule 14(3)(b) as amended by the 20th Amendment were as under:-
“APPENDIX-I10
[See Rule 14 (3)a]
Quality points and weightage for selection of candidates
10 Appendix-I Subs. by Noti. No.2282/LXXIX-5-2017-282-98 dated 9th Nov., 2017
(Twentieth Amendment) Rules, 2017. Published in U.P. Gazette. Extra., Part 4, Section
(Ka), dated 9th November, 2017 (w.e.f. 9.11.2017).
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Notes I – If two or more candidates have equal quality points, the
name of the candidate who is senior in age shall be placed higher
in the list.
2. If two or more candidates have equal quality points and age,
the name of the candidate shall be placed in the list in English
alphabetical order.”
“APPENDIX-II11
[See Rule 14 (3)(b)]
Quality Points for Selection of candidates
11Appendix Ins. by (Sixteenth Amendment) Notification No.3338/LXXIX-5-2012-
14(10)-2010, dated 4 December, 2012 (w.e.f. 4-12-2012)
Note – If two or more candidates have equal quality points the
name of the candidate who is senior in age shall be placed higher
in the list. If two or more candidates have equal quality point; and
age, the name of the candidate shall be placed in the list in English
alphabetical order.”
7. On 09.01.2018, a G.O. was issued framing Guidelines for ATRE
to be conductedin 2018 (“ATRE-2018”, for short) for filling up 68,500
posts of Assistant Teachers for junior basic schools.  Paragraph 7 of the
Enclosure to the G.O. prescribed the minimum qualifying marks for ATRE
2018 as minimum of 67 marks out of 150 i.e. 45% for General and OBC
candidates and 60 out of 150 i.e. 40% for SC/ST candidates.  Paragraphs
4.1, 5 and 7 of the Enclosure to G.O. were:-
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“4. The minimum qualification for the application:-
(1) In Rule 8 of the Uttar Pradesh Basic Education (Teachers)
Service (20th Amendment) Rules, 2017 the described educational,
training passed, Government of India or by the State Government
the organized Teachers Eligibility Examination (Primary Level)
passed candidates will be eligible for filing the application in the
Assistant Teachers Recruitment Examination, 2018.
5. The Subject Matter and the Structure of the Recruitment
Examination of the Assistant Teachers:-
By the office of the Secretary, Uttar Pradesh Basic Education
Council, Allahabad and in accordance with the advertisement which
has been published vide Advertisement bearing No.Basic Education
Council/15876/2017-18 dated 28.10.2017:-
Time of the examination 3.00 hours Total Marks 150
Type of questions very small question No. of question 150
The level of the Subject Matter:-
(1) Hindi Language, Sanskrit and English, Science, Maths,
environment and Social Studies (upto Class 12 level).
(2) Teaching Efficiency, Child Psychology, Information Technology,
Life Efficiency Management and Attitutde – (Upto D.L.Ed.
syllabus).

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[UDAY UMESH LALIT, J.]

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7. Qualifying Marks:
1. In the Assistant Teachers Recruitment Examination, the
candidates who are participating for them the examination result
will be issued / given on the website. For the General and OBC
Class candidates who receive 67 marks out of total 150 marks
viz. 45% marks or more and then only those General and OBC
Class candidates will be issued passed certificate in the Assistant
Teachers Recruitment Examination.
2. For the Scheduled Caste / Scheduled Tribes candidates the
minimum qualifying marks will be 40% viz. 60 marks out of total
150 marks.
3. Only by passing the Assistant Teachers Recruitment
Examination will not give any right of employment to those
candidates because for this appointment only this is one of the
eligible measurement.”
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8. On 15.03.2018, by 22nd Amendment, 1981 Rules were amended
removing the requirement of passing of ATRE from the essential
qualifications contained in Rule 8.  However, the requirement was
retained in Rule 14 dealing with the procedure for selection of Assistant
Teachers.  The relevant part of Rule 8(1) dealing with Academic
Qualifications for “Assistant Master and Assistant Mistresses of Junior
Basic Schools” read as follows:-
“ii. (a) Bachelors degree from a University established by law in
India or a degree recognised by the Government equivalent thereto
together with any other training course recognized by the
Government as equivalent thereto together with the training
qualification consisting of a Basic Teacher’s Certificate (BTC),
two year BTC (Urdu) Vishisht BTC. Two year Diploma in
Education (Special Education) approved by the Rehabilitation
Council of India or four year degree in Elementary Education
(B.El.Ed.), two year Diploma in Elementary Education (by
whatever name known) in accordance with the National Council
of Teacher Education (Recognition, Norms and Procedure)
Regulations, 2002 or any training qualifications to be added by
National Council for Teacher Education for the recruitment of
teachers in primary education.
and
teacher eligibility test passed conducted by the Government or by
the Government of India.”
Rule 14 dealing with Procedure of selection stood substituted as
under:-
“14(1)(a) –
Determination of vacancies
In respect of appointment, by direct recruitment to the post of
Mistress of Nursery Schools and Assistant Master or Assistant
Mistress of Junior Basic Schools under clause (a) of rule 5, the
appointing authority shall determine the number of vacancies as
also the number of vacancies to be reserved for candidates
belonging to Scheduled Castes, Scheduled Tribes, Backward
Classes, and other categories under rule 9 and published in at
least two leading daily newspapers having adequate circulation in
the State as well as in concerned district inviting applications from
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candidates possessing prescribed training qualification and passed
teacher eligibility test, conducted by the Government or by the
Government of India and passed Assistant Techer Recruitment
Examination conducted by the Government.
(b) Recruitment Examination- For every notified vacancy under
clause (a) for recruitment of Assistant Master or Assistant Mistress
of Junior Basic School, a separate Assistant Techer Recruitment
Examination shall be conducted by the Government.
(c) The Government may from time to time decide to appoint
candidates, who are graduates along with B.Ed/B.Ed. (Special
Education)/D.Ed. (Special Education) and who have also passed
teacher eligibility test conducted by the Government or by the
Government of India, as trainee teachers.  These candidates after
appointment will have to undergo six months training programme
in elementary education recognized by National Council of Teacher
Education (NCTE).  The appointing authority shall determine the
number of vacancies as also the number to be reserved for
candidates belonging to Scheduled Castes, Scheduled Tribes,
Backward Classes, and other categories under rule 9 and
advertisement would be issued in at least two leading daily news
papers having adequate circulation in the State as well as in
concerned district inviting applications from candidates who are
graduates along with B.Ed./B.Ed. (Special Education)/D.Ed.
(Special Education) and who have also passed teacher eligibility
test
conducted by the Government or by the Government of India
and passed Assistant Teacher Recruitment Examination conducted
by the Government.
(d) The trainee teachers, after obtaining the certificate of
successful completion of six months special training in elementary
education, shall be appointed as assistant teachers in junior basic
schools against substantive post in regular pay-scale.  The
appointing authority will be duty bound to appoint the trainee
teachers as assistant teachers within one month of issue of
certificate of successful completion of said training.
(2) Preparation of Merit List – The appointing authority shall
scrutinize the applications received in pursuance of the
advertisement under clause (a) or clause (c) of sub-rule (1) and
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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prepare a merit list of such persons as appear to possess the
prescribed academic qualifications and passed Assistant Teacher
Recruitment Examination be eligible for appointment.
(3)(a) The names of candidates in the list prepared under sub-
rule (2) in accordance with clause (a) of sub-rule (1) of rule 14
shall then be arranged in such manner that the candidate shall be
arranged in accordance with the quality points and weightage as
specified in the appendix-I.
Provided that if two or more candidates obtain equal marks, the
candidates senior in age shall be placed higher.
Provided that a person working as Shiksha Mitra in Junior Basic
Schools run by Basic Shiksha Parishad shall be given weightage
in the recruitment of the post of Assistant Teacher, only in two
consecutive Assistant Teacher Recruitment Examination
conducted by the Government after July 25, 2017.
(b) The names of candidates in the list prepared under sub-rule
(2) in accordance with clause (c) of sub-rule (1) of rule 14 shall
then be arranged in such manner that the candidate shall be
arranged in accordance with the quality points specified in the
appendix-II:
Provided that if two or more candidates obtain equal marks, the
candidate senior in age shall be placed higher.
(c) The names of candidates in the list prepared in accordance
with clause (d) of sub-rule (1) of rule 14 for appointment as
assistant teacher shall be same as the list prepared under
clause
(c) sub-rule (3) of rule 14 unless the candidate under the said list
is unable to successfully complete the six months special training
course in elementary education in his first attempt.  If the candidate
successfully completes the six months special training in his second
and final attempt, the candidate’s name shall be placed under the
names of all those candidates who have completed the said six
months special training in their first attempt.
(4) No person shall be eligible for appointment unless his or her
name is included in the list prepared under sub-rule (2).
(5) The list prepared under sub-rule (2) and arranged in accordance
with clause (a) and (b) of sub-rule (3) of rule 14 shall be forwarded
by the appointing authority to the selection committee.”
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9. In March, 2018, TET examination was held, in which
approximately 3,86,000 candidates including about 40,000 Shiksha Mitras
qualified.
10. On 21.05.2018, a G.O. was issued relaxing the qualifying marks
of 45-40% to 33-30% for General and Reserved categories respectively.
This relaxation was challenged by filing W.P. No.20404 of 2018 by some
candidates and the operation of said G.O. was stayed by the High Court
vide Order dated 23.07.2018.
11. On 27.05.2018 ATRE-2018 was conducted.  In the results,
41,556 candidates were declared to have qualified with qualifying marks
of 45-40% out of which, 40296 candidates applied for counselling and
were selected for appointment on 13.08.2018.  About 4500 candidates
were added to this number after re-valuation process.
12. On 28.06.2018, the National Council for Teachers Education
(“NCTE”, for short) amended its OM dated 23.08.2018.  The notification
dated 28.06.2018 was to the following effect:-
“F.No.NCTE-Regl 012/16/2018.- In exercise of the powers
conferred by sub-section (1) of Section 23 of Right of Children to
Free and Compulsory Education Act, 2009 (35 of 2009) and in
pursuance of notification number S.O. 750(E), dated the 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 makes the following further amendments to the notification
number F.N. 61-03/20/2010/NCTE(N&S),
dated the 23rd August,
2010, published in the Gazette of India, Extraordinary, Part III,
Section 4, dated the 25th August, 2010, hereinafter referred to as
the said notification namely:-
(1) In the said notification, in para 1 in sub-para (i), in clause (a)
after the words and brackets “Graduation and two year Diploma
in Elementary Education (by whatever name known), the following
shall be inserted, namely:-
OR
“Graduation with at least 50% marks and Bachelor of
Education (B.Ed.)”
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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(2) In the said notification in para 3, for sub-para(a), the following
sub-para shall be substituted namely:-
“(a) who has acquired the qualification of Bachelor of Education
from any NCTE recognised institution shall be considered for
appointment as a teacher in classes I to V provided the person
so appointed as a teacher shall mandatorily undergo a six month
Bridge Course in Elementary Education recognised by the
NCTE, within two years of such appointment as primary
teacher”
13. On 26.09.2018, while dealing with the issue as to the stage at
which the weightage is to be given to Shiksha Mitras for their experience
in terms of the directions of this Court in Anand Kumar Yadav2 and
1981 Rules, Division Bench of the High Court of Judicature at Allahabad
in Kulbhushan Mishra and another vs. State of U.P. and others
(Special Appeal No. 812 of 2018 etc.) observed:-
“…we are of the considered view that weightage was not
contemplated to be added to the marks obtained by a person in
the Assistant Teacher Recruitment Examination.”
14. On 01.12.2018, a G.O. was issued notifying 2nd ATRE (“ATRE-
2019”, for short) for filling up 69,000 vacancies of Assistant Teachers.
Paragraphs 1, 4.1, 4.2 and 5 of the Annexure to the G.O. were:-
“In the schools managed by the Basic Education Department the
teachers imparting education have major role in the development
of girls and boys studying in the schools.  It has been therefore
decided
that in order to fill the vacant seats of the teachers in the
primary schools a state level Assistant Teachers Recruitment
Examination will be conducted.
Only those candidates who are graduate, trained and those who
have passed the Teachers Eligibility Test will be eligible to appear
in the said examination.
…
   …
   …
4. The minimum qualification, age and residence for the
application:-
(1) In Rule 8 of the Uttar Pradesh Basic Education (Teachers)
Service (22nd Amendment) Rules, 2018 the described educational,
training passed, Government of India or by the State Government
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the organized Teachers Eligibility Examination (Primary Level)
passed candidates will be eligible for filing the application in the
Assistant Teachers Recruitment Examination, 2019.
(2) By the National Teachers Education Council, New Delhi the
Minimum Qualification with regard to the Class-1 to Class-5 the
issued Notification dated 23.08.2010, 29.07.2011, 12.11.2014 and
28.11.2014 (has been described in Appendix-2 in preamble 1.2)
and on 28.06.2018 fixed eligible candidates are entitled to file
application in the Assistant Teachers Recruitment Examination,
2019.”
5. The Subject Matter and the Structure of the Recruitment
Examination of the Assistant Teachers:-
Time of the examination 2.30 hours (from 11.00 a.m. to 13.30
p.m.) Total Marks 150
Type of questions very small optional question, No. of questions
150
The level of the Subject Matter:-
(1) Hindi Language, Sanskrit and English, Science, Maths,
Environment and Social Studies (upto Class 12 level).
(2) Teaching Efficiency, Child Psychology, Information Technology,
Life Efficiency Management and Attitude – (Upto D.L.Ed.
syllabus).”
The tabular chart appended thereafter was identical to one in
G.O. dated 09.01.2018 for ATRE-2018.  The chart dealt with same
subjects with identical syllabus and marks against each subject.
15. An advertisement was thereafter issued on 29.12.2018 notifying
that ATRE-2019 would be conducted on 06.01.2019.
16. On 03.01.2019, an order was passed by the High Court of
Judicature
at Allahabad in Writ A No.27461 of 2018 to the following
effect:-
“The grievance raised by means of the present writ petition is
that without notifying the minimum qualifying marks the
respondents are going to conduct written examination of Assistant
Teacher Recruitment Examinatin-2019 on 06.01.2019.
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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According to the petitioners, earlier when the examinations were
conducted, minimum qualifying marks were duly declared by the
respondents.  In this regard the circular issued by the State
Government dated 01st December, 2018 (Annexure-1 to the writ
petition) has been placed before this Court.
Standing Counsel has put in appearance on behalf of respondent
nos. 1 and 3.  Sri A.K. Yadav has put in appearance on behalf of
respondent no.2.
All the respondents are granted three days’ time to seek instruction
in the matter.
Put up this matter as fresh on 08.01.2019.”
17. ATRE-2019 was conducted on 06.01.2019 without there being
any specification of minimum qualifying marks.
18. However, on the next day i.e. on 07.01.2019, following order
was passed by the Special Secretary to the State Government:-
“To
1. Director,
State Education Research and Training Council, Uttar Pradesh,
Lucknow.
2. Secretary, Exam Controller Authority, U.P. Prayagraj.
Basic Siksha Anubhag – 4 Lucknow Date 07 January 2019.
Subject:-  Regarding prescribing the minimum qualifying marks in
respect of ‘Assistant Teacher Recruitment Exam 2019’  for
Primary Schools run by Uttar Pradesh, Basic Siksha Council.
Sir,
Refer to the letter no. B.S.C. 16426-27/2018-19 dated 05 January,
2019 of the Secretary, Basic Siksha Council regarding aforesaid
subject, whereby it has been requested to prescribe the minimum
qualifying marks for the ‘Assistant Teacher
Recruitment Exam
2019’.
2. In this regard I have been directed to state that after proper
deliberation by the Government, in pursuant to the G.O. No.2056/
68-4-2018 dated 01.12.2018 issued for conducting the ‘Assistant
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Teacher Recruitment Exam 2019’, for the purpose of result
minimum qualifying marks are being prescribed.  This Minimum
Qualifying Marks will be only for ‘Assistant Teacher Recruitment
Exam 2019’:-
(a) For the candidates of General Category, candidates getting
97 marks of the total 150 meaning 65% and more will be
considered passed for ‘Assistant Teacher Recruitment Exam
2019’.
(b) For the candidates of all other Reserved Categories,
candidates getting 90 marks of the total 150 meaning 60 percent
and more will be considered passed for ‘Assistant Teacher
Recruitment Exam 2019’.
(c) Candidates qualified on the basis of aforesaid ‘a’ and ‘b’
will be eligible to apply against the 69000 vacancies advertised
and on qualifying merely on the basis of aforesaid minimum
marks will not have any claim for recruitment because this
exam is only one of the eligible standard for recruitment.
(d) In case of more candidates qualifying than the prescribed
number of posts (69000), of the total qualified candidates,
eligible candidates will be selected on the basis of final merit
list against the advertised posts in accordance with Appendix-
I of twentieth Amendment of Uttar Pradesh Basic Siksha
(teachers) Rules, 1981.  Remaining candidates will
automatically be out from the selection process and they will
not have any claim on the basis of the ‘Assistant Teacher
Recruitment Exam 2019’.
(e) No communication will be entertained in respect of the
Minimum Qualifying Marks.”
19.
On or about 16.01.2019, the first petition namely W.P.
No.118(SS) of 2019 was filed by some Shiksha Mitras challenging the
aforementioned Order dated 07.01.2019 and assailing the fixation of
minimum qualifying marks.  About 99 Writ Petitions in all were filed by
Shiksha Mitras questioning the Order dated 07.01.2019.
20. On 24.01.2019, 23rd Amendment to 1981 Rules was published.
By this Amendment, the essential qualifications in Rule 8(ii) were
substituted as under:-
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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“(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 recognised by the
Government as equivalent thereto together with the training
qualification consisting of a Basic Teacher’s Certificate (BTC),
two year BTC (Urdu) Vishisht BTC.  Two year Diploma in
Education (Special Education) approved by Rehabilitation council
of India or four year Degree in Elementary Education (B.El.Ed.),
two year Diploma in Elementary Education (by whatever name
known) in accordance with the National Council of Teacher
Education (Recognition, Norms and Procedure), Regulations 2002,
Graduation with at least fifty percent marks and Bachelor of
Education (B.Ed.), provided that the person so appointed as a
teacher shall mandatorily undergo a six month Bridge Course in
Elementary Education recognised by the NCTE, within two years
of such appointment as primary teacher or any training
qualifications to be added by National Council of Teacher
Education for the recruitment of teachers in primary education.
and
teacher eligibility test passed conducted by the Government or by
the Government of India.”
Consequently, Graduates having 50 per cent or more marks and
holding degree of Bachelor of Education (B.Ed.) became eligible for
posts of Assistant Master and Assistant Mistresses in Junior Basic Schools
in the manner laid down in the
Amendment.  The concerned provisions
in 1981 Rules dealing with eligibility of such candidate were given
retrospective effect from 01.01.2018.
21. On 07.03.2019, 24th Amendment to 1981 Rules was published
further amending Rule 8(ii) by adding sub-clause (aa) after sub-clause
(a) to the following effect:-
“(aa)  Graduation with at least fifty percent marks and Bachelor
of Education (B.Ed.), provided that the person so appointed as a
teacher shall mandatorily undergo a six month Bridge Course in
Elementary Education recognised by the NCTE, within two years
of such appointment as primary teacher or any training
qualifications to be added by National Council of Teacher
Education for the recruitment of teacher in primary education,
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and teacher eligibility test passed conducted by the Government
or by the Government of India.”
This Amendment gave retrospective effect to sub clause (aa)
of Rule 8(ii) from 28.06.2018.
22. A Single Judge of the High Court allowed W.P. No.1188(SS)
of 2019 (Mohd. Rizwan and others vs. State of U.P.) and other 98 Writ
Petitions by common judgement and order dated 29.03.2019.  Some of
the relevant passages from the judgement are:-
“1.   The order under challenge is Government Order bearing
No.46/68-4-2019-2056/2019 dated 7.1.2019 issued by the Special
Secretary, Basic Education Anubhag-4, Government of U.P.,
Lucknow fixing the minimum qualifying marks for Assistant
Teacher Recruitment Examination, 2019 as 65% for general
category and 60% for reserved category.  Undisputedly, no
minimum qualifying marks have been fixed vide Government Order
dated 01.12.2018 and notification/advertisement dated 05.12.2018,
pursuant to which, the examination in question has been conducted
on 6.1.2019.  Undisputedly, the exercise for fixing minimum
qualifying marks have been started pursuant to the letter bearing
no. B.Sh.P.-16426-27/2018-19 dated 5.1.2019 preferred by the
Secretary, Board of Basic Education to the Government making
request for fixation of minimum qualifying marks for the
examination in question, meaning thereby, the State Government
must be intending something other way to declare the result of
Assistant Teacher Examination, 2019.
…
…
…
157. Under the given
circumstances it has been noted that the
Assistant Teacher Recruitment Examination may not be treated
as shortlisting examination by prescribing such a high minimum
qualifying marks as the same may affect the rights of the petitioners
(Shiksha Mitras) who may likely to be deprived from getting
weightage of 25 marks which is statutory prescription in the 22nd
Amendment.  Further, since the Assistant Teacher Recruitment
Examination is not the minimum qualification prescribed by the
Academic authority and the same has been added in the Rules of
1981 by way of 20th and 22nd Amendment, therefore, the qualifying
marks should be minimum qualifying marks.  Further, the said
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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qualifying marks should be seen like minimum.  Further, the Shiksha
Mitras should be subjected for the same treatment as has been
given to them in earlier examination of Assistant Teacher
Recruitment Examination-2018 in terms of judgment of Hon’ble
Apex Court in re: Anand Kumar Yadav (supra).  Since this
examination would be the second and last examination for the
Shiksha Mitras in terms of the aforesaid judgement of Hon’ble
Apex Court, therefore, this examination i.e. Assistant Teacher
Recruitment Examination-2019 should be conducted in a similar
manner as the Assistant Teacher Recruitment Examination-2018
has been conducted.
…         …          …
159. To be more precise, since to provide weightage to the
candidates, who have qualified Assistant Teacher Recruitment
Examination, is a legal prescription under Rule 14(3)(a) of the
Rules and the same weightage has been provided in the earlier
examination to those candidates, who have qualified Assistant
Teacher Recruitment Examination with the minimum 45% and
40% qualifying marks, therefore, enhancing the qualifying marks
up to 65% and 60%, permitting the candidates, who are having
B.Ed. qualification and quality point marks of those candidates
may not be determined as per Appendix-I is nothing but appears
to be an attempt to oust those persons, who are eligible for the
weightage.
…         …         …
163.  It would be apt to consider here the relevant provision of
law, which provides about qualifying marks in Teacher Eligibility
Test and qualifying marks in Assistant Teacher Recruitment
Examination.  As per Rule 2(t) of the Rules 1981 (as amended by
Twenty Second Amendment, 2018), qualifying marks in Teacher
Eligibility Test will be such as may be prescribed from time to
time by the NCTE, whereas as per Rule 2(x), qualifying marks of
Assistant Teacher Recruitment Examination means such minimum
marks as may be determined from time to time by the Government.
Conjoint reading of aforesaid provisions reveals that for Teacher
Eligibility Test, qualifying marks shall be prescribed by the NCTE
and there is no rider as to what qualifying marks should be fixed,
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therefore, for Teacher Eligibility Test, the qualifying marks is 60%
and 55% for both the category and there is no quarrel on it.
164. However, in Assistant Teacher Recruitment Examination, it
has categorically been indicated in Rule 2(x) that the qualifying
marks means such minimum marks determined by the State
Government from time to time.  On account of aforesaid
prescription, the State Government has firstly determined the
minimum qualifying marks as 45% and 40% for both the categories
and thereafter, for the same selection of Assistant Teacher
Recruitment Examination, it has been fixed as 33% and 30% as
the State Government could have determined any minimum marks
from time to time, therefore, it is the domain of the State
Government to fix the qualifying marks for the Assistant Teacher
Recruitment Examination, but such qualifying marks should be
‘minimum’ and ‘minimum’ should be seen like ‘minimum’.
‘Minimum’ may not be seen as ‘maximum’.
165. Further, since the person, who qualifies the Assistant Teacher
Recruitment Examination with minimum qualifying marks shall
not be appointed on the post of Assistant Teacher, rather, he/she
shall only be eligible to reach in the next stage, thereby he/she
shall be awarded weightage and the his/her total quality points
shall be calculated.  On the basis of total quality points, the candidate
shall come in the zone of eligible candidate, who shall be appointed
according to his/her merit.  Meaning thereby,
qualifying the
examination of Assistant Teacher Recruitment Examination does
not make the person eligible to be selected on the post of Assistant
Teacher, but it only makes him/her eligible to get weightage,
therefore, the submission of learned counsel for the State-
respondents that so as to short list the eligible candidates, merit of
Assistant Teacher Recruitment Examination has been enhanced
up to 65% is misfit argument.
…        …         …
172. Admittedly, the examinees were not aware about the decision
of the State Government regarding minimum qualifying marks
before the examination in question so besides the fact that rules
of game may not be fixed after start of the game, one more aspect
is relevant here that in view of the dictum of Hon’ble Apex Court
in re: P.V. Indirsan (2) (supra) and Rahul Dutta (supra) the
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[UDAY UMESH LALIT, J.]
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minimum eligibility marks should be declared before the
examination and if the marks have not been fixed prior to the
examination in question, may not be fixed later on, therefore the
impugned order dated 07.01.2019 would be said to have been
issued in derogation of aforesaid laws of the Hon’ble Apex Court.
173.  Therefore, in view of the aforesaid findings I am of the
considered view that by not declaring the minimum qualifying
marks of Assistant Teacher Recruitment Examination before
holding examination is causing prejudice to the petitioners, including
all aspirants, as they have been denied an opportunity to adequately
prepare for the result.  Further, since the State Government had
to conduct two examinations to appoint Assistant Teacher pursuant
to the direction of Hon’ble Apex Court in re: Anand Kumar Yadav
(supra), therefore, the manner of these two examinations should
be similar inasmuch as for Shiksha Mitras, Assistant Teacher
Recruitment Examination-2019 was the second and last
examination to get benefit of weightage as per judgement of Anand
Kumar Yadav (supra).”
22.1 While considering the issue of eligibility of B.Ed. candidates,
it was observed:-
“154.    It is true that there is no challenge in any of the writ
petitions that the inclusion of B.Ed. candidates is unwarranted
and uncalled for and they may not be selected getting quality point
marks as per Appendix-I, but circumstances under which the
aforesaid anomaly has been committed by the State Government
has nowhere been explained in the counter affidavit or by way of
argument.
…        …        …
168.  I also find favour in the submission of Sri U.N. Misra that it
cannot be comprehended as to what is the object of enhancing
minimum qualifying marks from 45% to 65% for Assistant Teacher
Recruitment Examination when it is only a qualifying examination.
Mr. U.N. Misra has rightly submitted that if the averment of the
counter affidavit is believed to be correct, the said enhancement
has been made to select the best available candidates, then who
are the best candidates, as per State-respondent.  Since the
inclusion of B.E.d. candidates have been made in the present
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examination, therefore, it appears that the enhancement has been
made to oust the Shiksha Mitras from the selection in question
and to select the B.Ed. candidates.  If it is the intention of the
State-respondent to enhance the minimum qualifying marks, then
it would be violative to the rules itself which categorically provides
that the Shiksha Mitras would be getting 25 marks as weightage.
…        …        …
178. Besides, the counsel for the State-respondent could not
convince as to how the quality points marks of B.Ed. candidates
would be determined / calculated as per Appendix – I when these
B.Ed. candidates would not be getting any marks for item no.4
[marks of B.T.C] and item no.6 [weightage of 25 marks].  If
these B.Ed. candidates are given quality point marks as per
Appendix-II, they can easily get marks for all the items but quality
points marks for this examination would be calculated as per
Appendix-I.
179. This Court is unable to comprehend the rationale behind it
but since this particular point has not been directly assailed,
therefore, no order on this point needs to be issued.
180. However, it clearly reveals that neither the Board of Basic
Education nor the State Government has carried out proper
exercise before conducting selection in question permitting B.Ed.
candidates in the present selection in question which increased
the number of aspirants drastically without deciding the method
for calculating their quality points marks, without
determining the
vacancies for them as B.Ed. candidates are different from B.T.C.
candidates, enhancing the minimum qualifying marks for the
Assistant Teacher Recruitment Examinatoin-2019 by way of G.O.
dated 07.01.2019 and conducting Assistant Teacher Recruitment
Examination-2019 differently from Assistant Teacher Recruitment
Examination-2018 whereas the State Government was to conduct
two examinations in a same manner as per dictum of Hon’ble
Apex Court.  This unexplained anomaly may convince this Court
to quash the entire selection process but keeping in view the fact
that large number of candidates have already appeared in selection
process, therefore, this Court is only examining/testing the fitness
of Government Order dated 07.01.2019.”
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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22.2 It was concluded:-
“181. Considering the entire facts and circumstances of the issue
and case law so cited by the learned counsel for the respective
parties I am of the considered view that the Government Order
dated 07.01.2019 is not sustainable in the eyes of law being
arbitrary and violative of Article 14 of the Constitution of India as
it makes an unreasonable classification by giving different
treatment to two groups of identically situated persons appearing
in two consecutive examinations and there is no valid reason and
justification for drastically increasing minimum qualifying marks
without having any nexus with the object sought to be achieved.
It further appears that the Government Order dated 07.01.2019 is
nullifying the beneficial direction of the Hon’ble Apex Court in re:
Anand Kumar Yadav (supra), pursuant to which 25 marks of
weightage has been prescribed under Rule 14(3)(a) of the Rules
1981 (22nd Amendment, 2018) purposely for practical experience
which is an integral part of merit.”
23. On 14.06.2019, 25th Amendment to 1981 Rules was published.
By this Amendment, Appendix I which was referable to Rule 14(3)(a)
was amended as under:-
“APPENDIX-I
Quality points and weightafe for selection of candidates
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Note:
1. If two or more candidates have equal quality points, the
name of the candidate who is senior in age shall be placed
higher in the list.
2. If two or more candidates have equal quality points and age,
the name of the candidates shall be placed in the list in English
alphabetical order.”
23.1 Appendix II, referable to Rule 14(3)(b) was omitted by the
same Amendment.
23.2 Resultantly, Appendix I as it now stands after said
Amendment, is the only and common Appendix for both the sources
referred to in Rule 14.
24. Special Appeals arising from the judgment and order dated
29.03.2019 passed by the Single Judge, were allowed by the Division
Bench of the High Court by its common judgment and order dated
06.05.2020.  It must be stated that though 99 Writ Petitions were allowed
by the Single Judge, appeals were preferred only in 24 matters.  Therefore,
many Shiksha Mitras who had succeeded before the Single Judge, were
not parties before the Division Bench.
25. Two principal issues were considered by the Division Bench
of the High Court; one relating to the fixation of 65-60% as minimum
qualifying marks for ATRE-2019 and particularly after the holding of the
examination; and the other concerning the eligibility of B.Ed. candidates
for the posts of Assistant Teachers under 1981 Rules.
25.1  With regard to the first issue, the conclusions of the Division
Bench were:-
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[UDAY UMESH LALIT, J.]
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“71. In Anand Kumar Yadav (supra), the Hon’ble Supreme
Court merely provided that the Shiksha Mitras shall be given
an opportunity to participate in the selection process at hand in
two consecutive selections, irrespective of age while being given
benefit of age relaxation as determined by the State
Government, in an open and transparent selection process along
with other duly qualified candidates and it nowhere provided
that the Shiksha Mitras shall constitute a homogeneous class
apart from other duly qualified candidates participating in the
selection process.  The Hon’ble Supreme Court while keeping
in mind the interest of the school children held that the
regularization of unqualified Shiksha Mitras on the post of
Assistant Teacher was illegal as the school children whose
interests, though were not duly represented, had a right to obtain
quality education from duly qualified teachers under the
provisions of Right to Education Act and gave due importance
to the merit of the candidates who are ultimately going to be
appointed on the post of Assistant Teacher as the ultimate losers
would be the small primary school children if the merit is
compromised in the selection process.
72. As a common parlance, qualifying marks are prescribed
after the examination is conducted as the Recruiting Authority
is in a position to assess how the candidates have performed
and determine the benchmark keeping in mind the number of
vacancies.  The State Government rightly in the advertisement
dated 1.12.2018 did not declare the cutoff marks for qualifying
the ATRE – 2019.
73. Thus, the arguments of the writ petitioners and finding
recorded by the learned Writ Court that the increase in cut-off
marks from 45% and 40% to 65% and 60% by the Government
Order dated 07.01.2019 is nullifying the beneficial direction of
the Hon’ble Supreme Court in Anand Kumar Yadav (supra)
has no legs to stand, and is pre-mature as the benefit is available
only at the time of recruitment, once they hold the prescribed
minimum qualifications and their names are published in the
merit list prepared under Rule 14(2) of the 1981 Rules.”
25.2 The issue regarding the eligibility of B.Ed. candidates was
dealt with as under:-
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“81.    By virtue of the amendment in the NCTE notification dated
23.8.2010 on 28.6.2018, the appellants of Special Appeal
No.165(D) of 2019 participated in the TET examination on
18.11.2018 and qualified the same and therefore becoming eligible
for appearing in the ATRE 2019, the writ petitioners knowing well
about the amendment in the notification dated 23.8.2010 by NCTE
notification dated 28.6.2018, they never challenged the validity of
the said notification and thus, the notification issued by the NCTE
being under a Central Enactment which is referable to Entry 66
of list I of the Seventh Schedule is binding upon the State
Government and even a legislative exercise done by the State in
the matter of laying down of standards in education would have
to yield to the notifications of the NCTE inasmuch as the exercise
of power by the State Government is referable to Entry 25 of List
III of the Seventh Schedule, which besides being in the concurrent
list is, subject to Entry 63, 64, 65 and 66 of List – I.  The State
Government rightly followed the mandate issued by the NCTE
and permitted the B.Ed. candidates to appear in the second ATRE
- 2019.
…        …        …
87. The educational qualifications fixed by the NCTE for
appointment as Assistant Teachers are binding on the recruitment
made by the State Governments.  The participation of B.Ed.
candidates was never challenged before the learned Writ Court
and the observations made in the impugned order dated
29.3.2020
pertaining to participation of B.Ed. candidates in the selection
process are merely the obiter dicta having no bearing on the issue
raised before the learned Writ Court regarding the legality and
validity of the Government Order dated 7.1.2019 whereby the
minimum qualifying marks had been fixed for ATRE – 2019
examination.
…        …        …
89. The Apex Court in the case of State of U.P. vs. Shiv Kumar
Pathak (supra), has held that the eligibility conditions for
appointment of Assistant Teachers as laid down by the NCTE
are binding on the State Government as the NCTE is the competent
authority for fixing such educational qualifications and therefore,
the B.Ed. candidates had been included by the State Government
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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in clause 4 (2) of statutory guidelines dated 1.12.2018.  In the
aforesaid clause, it is very categorically stated that the notification
dated 28.6.2018 issued by the NCTE whereby B.Ed. candidates
were made eligible for appointment as Teacher in Primary Schools
for teaching classes I to V provided the person so appointed as an
Assistant Teacher shall mandatorily undergo six months’ Bridge
Course in Elementary Education recognised by the NCTE within
two years after such appointment as Assistant Teachers.
…        …        …
92. Thus, we are of the view that once the B.Ed. candidates
were made eligible to be considered for appointment to the post
of Assistant Teacher, subject to them acquiring the minimum
qualification, the State Government was bound to permit them to
participate in the ARTE – 2019 passing which is the minimum
qualification to be considered for appointment to the post of
Assistant Teacher.  Accordingly, the State Government carried
out the necessary amendments to the 1981 Rules to align them
with the NCTE notification, prior to commencement of the
recruitment process.”
25.3 The operative directions issued by the Division Bench of the
High Court were :-
“105. For the reasons aforementioned, it cannot be said that the
Government Order dated 7.1.2019 is violative of Article 14 of the
Constitution of India nor it makes an unreasonable classification
or is nullifying the judgement of the Apex Court in the
case of
Anand Kumar Yadav (supra).  Accordingly, we set aside the
impugned order 29.3.2019 passed in Writ Petition No.1188 (SS)
of 2019 and other connected matters filed by Shiksha Mitras and
dismiss the said writ petitions by allowing all the Special Appeals
and direct the State of U.P. to declare the result of examination
which was held on 6.1.2019 in terms of the Government Order
dated 7.1.2019 at the earliest as directed by the Apex Court in the
case of Bhola Prasad Shukla v. Union of India and others (supra).
All applications for intervention/impleadment/civil miscellaneous
applications are also disposed of in same terms.”
26. Accordingly, the result was declared by the Examining Body
on 12.05.2020 and 1,46,060 candidates were declared successful.
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Thereafter, U.P. Basic Education Board issued an advertisement on
16.05.2020 inviting applications from those candidates who were declared
successful in ATRE-2019.
27. Being aggrieved by the decision of the Division Bench of the
High Court, the present appeals by special leave have been preferred by
various appellants.  A Writ Petition has also been preferred.  Broadly,
the matters can be classified into three categories.  Those filed by i)
Shiksha Mitras, ii) Persons having B.Ed./BTC qualifications; and iii) Ex-
servicemen or persons with disability etc.  These matters squarely deal
with the aforestated two issues considered by the Division Bench of the
High Court in the judgement under appeal.
However, SLP (Diary) No.13142 of 2020 filed by persons who
were not parties at any stage of the proceedings in the High Court,
seeks permission to file special leave petition and submits that they be
given the benefit of erroneous questions in the examination.  Since the
issue raised in said petition is unconnected with the rest of the matters,
permission to file special leave petition is not granted.  The concerned
petitioners are at liberty to agitate the issue, if required, in properly
instituted proceedings.
Rest of the matters can be tabulated in following three
categories: -
A] Filed by Shiksha Mitras
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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B] Filed by B.Ed./BTC Candidates
C] Filed by Ex-Servicement or Persons with Disability
28. While issuing notice in the matters, by Order dated 21.05.2020,
the State Government was called upon by this Court to furnish details
regarding:-
“(i) How many Shiksha Mitras are presently working in the State
and how many Shiksha Mitras appeared in the instant selection
process;
(ii) How many Shiksha Mitras secured more than 45% marks in
General Category or more than 40% marks in reserved category;”
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29. In the counter affidavit-filed on behalf of the State, following
details were provided in paragraphs 6, 18 and 32:-
“6.  The brief facts of the case are that in the State of Uttar
Pradesh, out of 1,78,000 ‘Siksha Mitras’, who were given fortuitous
appointments as Primary Teachers on contractual basis, a total of
approximately 1,37,500 ‘Siksha Mitras’ were absorbed as Assistant
Teachers in Junior Basic Schools.  Their absorption into the regular
service of State as Assistant Teachers by amendment made by
the State Government by its notification dated 30.05.2014
introducing the provision of Rule 16-A in the U.P. Right of Children
to Free and Compulsory Education Rules, 2011 by the U.P. Right
of Children to Free and Compulsory Education (First Amendment)
Rules, 2014 and consequential executive orders of the State
Government were challenged before Hon’ble High Court of
Judicature at Allahabad in Writ-A No.34833 of 2014, Anand Kumar
Yadav and others v.  Union of India.
…        …        …
18.  It is submitted that the details of total number of candidates
and Shiksha Mitras who participated and qualified in ATRE-2019
are as under;
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]

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32. In compliance of Order dated 21.05.2020 the details are given
herein below,
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29.1. It was also submitted in the counter affidavit:-
“11. It is submitted that guidelines for ATRE-2018 was issued for
recruitment of 68,500 Assistant Teachers.  It is pertinent to mention
herein that the ATRE is merely a qualifying examination and which
is conducted for a particular year of vacancy.  Thus ATRE-2018
was conducted for filling up 68500 vacancies of Assistant
Teachers.  Clause 1 (Kha) of guidelines dated 09.01.2018 for
ATRE-2018 clearly stipulates that the examination is valid for this
very recruitment only.  Further Clause 7(3) states that passing of
ATRE will not give any right of employment to those candidates
because this is only one of the qualifying criteria of selection.
12. The total number of candidates who participated in ATRE-
2018 are 1,07,873 out of which 41556 qualified.  Total number of
Shiksha Mitras who participated in ATRE-2018 are 34,311 out of
which finally 8588 qualified.
13. Thus it is apparent that ATRE-2018 was conducted as qualifying
examination for a particular year of appointment where qualifying
marks were prescribed as 45% and 40% for General and Reserved
Category candidates. Therefore relief sought by Petitioners that
the cut off marks of ATRE-2018 be fixed for ATRE-2019 is totally
misconceived.
…
…
…
26. Thus it is submitted that fixing of qualifying marks does not
amount to bringing a change in the process of examination or
changing any criteria.  In any view of the matter after the
examination are over, the
candidate qualifying in merit from top
alone are entitled for recruitment and while doing so, there is a
likely hood that a percentage fixed by the State Government may
further rise in as much as against the 69000 vacancies, 4.10 lacs
candidates have appeared.  Thus, prescribing minimum qualifying
marks is neither illegal nor arbitrary.  The Hon’ble High Court in
the impugned Judgement has discussed in detail and held that the
fixing cut off marks is neither arbitrary nor discriminatory.  The
Ld. Division bench in para 72 and 73 of the impugned judgement
has held that State government has rightly in the advertisement
dated 01.12.2019 did not declare the cut off marks for applying in
ATRE-2019 as the recruiting authority is in a position to assess
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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how the candidates have performed and determine the benchmark
keeping in mind the number of vacancies.  The Hon’ble High
Court further held that the beneficial direction of this Hon’ble
Court in Anand Kumar Yadav case is available to Petitioners once
they hold the prescribed minimum qualifying marks.
…        …        …
28. The contention of Petitioners that Shiksha Mitras who appeared
in ATRE-2018 and ATRE-2019 form a homogeneous class is totally
misconceived.  The Hon’ble Division Bench has rightly rejected
the contention of the Petitioners that they do not constitute a
homogeneous class.  It is submitted that this Hon’ble Court in the
case of Anand Kumar Yadav case never held that Shiksha Mitras
constitute homogeneous class.  It is submitted that both the
examinations were conducted under different guidelines for
different vacancies therefore it is wholly misconceived arguments
that there should be same cut off marks for both ATRE.”
30. It must be stated here that except for the posts held by Shiksha
Mitras presently working and who appeared in ATRE-2019, the State
Government was permitted by interim orders passed by this Court, to fill
up the remaining posts of Assistant Teachers in Junior Basic Schools.
31. The contest in the present case is principally between Shiksha
Mitras on one side, who are aggrieved by fixation of minimum qualifying
marks at 65-60% levels and permitting B.Ed. candidates to participate
in
the selection process; while the opposition is from the State Government
and B.Ed./BTC candidates who are Non Shiksha Mitras.
32. The submissions on behalf of Shiksha Mitras were advanced
by Mr. P.S. Patwalia, Mr. C.A. Sundaram, Mr. Rakesh Dwivedi, Dr.
Rajiv Dhawan, Mr. Nidhesh Gupta, Mr. V. Shekhar, Mr. S. Guru Krishna
Kumar, Ms. Meenakshi Arora, Mr. Dinesh Diwedi, Mr. K.T.S. Tulsi,
Mr. Jayant Bhushan, learned Senior Advocates and Mr. Gaurav Agrawal
and Ms. Tanya Agarwal, learned Advocates.  Their submissions were :-
a)
1,37,500 Shiksha Mitras who were initially
absorbed in regular service and whose
absorption was set aside as a result of the
orders passed by the Full Bench of the High
Court of Judicature at Allahabad and by this
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Court in Anand Kumar Yadav2, constituted
a homogeneous class.
b)
As against the minimum qualifying percentage
which was at the level of 45-40% for ATRE-
2018, the fixation of minimum qualifying
percentage at the level of 65-60% for ATRE-
2019 created unnatural and arbitrary distinction
between two sets of Shiksha Mitras.
c)
Such fixation at 65-60% was done after the
examination and would amount to changing the
rules of the game post examination.   Reliance
was placed on the judgments of this Court in
K. Manjusree vs. State of Andhra Pradesh
and another12 and other cases.
d)
Being in service for last more than 15 years
where they were required to obtain essential
qualifications and prepare for ATRE-2019 while
discharging their service obligations, Shiksha
Mitras could not be put at the same level as
fresh 
graduates 
having 
B.Ed./BTC
qualifications.
e)
The fixation of minimum qualifying percentage
in ATRE-2019 at 65-60% incorporated an
exclusionary element as against Shiksha Mitras
who, despite being entitled to weightage for
their experience as Shiksha Mitras in terms of
specific amendment in 1981 Rules, were now
being denied said benefit.
f)
In terms of 1981 Rules, only 60% of the score
obtained in ATRE would be considered along
with other parameters in arriving at the quality
points.  However, ATRE-2019 turned into a
principal selection criteria.
g)
With 5% reservation for ex-servicemen, seats
allocable to them come to 3450 against which
12(2008) 3 SCC
512
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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about 650-700 candidates applied.  At 65-60%
cut off level, very few of them would stand a
chance.  Similar would be the situation in
respect of other reserved categories such as
physically handicapped and dependants of
freedom fighters.  All these categories would
have greater chances at 45-40% cut off.
With regard to the issue of eligibility of B.Ed. candidates, some of
the learned counsel submitted:-
i)
In terms of 1981 Rules, as they stood when
ATRE-2019 was conducted, the persons
holding B.Ed. degree could not be appointed
as Assistant Teachers but would first be
appointed as Trainee Teachers; and they could
be considered for the posts of Assistant
Teachers only after their successful completion
of six months’ training as Trainee Teachers.
ii)
As per Rule 14(b), it was upto the Government
to consider and decide the number of
candidates to be appointed as Trainee
Teachers, which exercise was never done.
iii)
23rd, 24th and 25th Amendments to 1981 Rules
were effected after ATRE-2019 was held.  The
retrospective effect granted to these
amendments was beyond the rule making
power of the State Government and thus could
not save the obvious illegality.
33. Ms. Aishwarya Bhati, learned Additional Solicitor General
appeared for the State while Mr. H.N. Salve, Mr. R. Venkataramani,
Mr. Pallav Shishodiya, Mr. K.V. Vishwanathan and Ms. V. Mohana,
learned Senior Advocates appeared for B.Ed./BTC candidates.  Their
submissions were:-
A)
The State was within its rights to fix cut off
marks at 65-60% level.  As per Rule 2(1)(x)
of 1981 Rules, qualifying marks in respect of
ATRE would be “such minimum marks as

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may be determined from time to time by the
Government”.
B)
The order dated 07.01.2019 itself disclosed that
the proposal for fixing the cut off was initiated
on 05.01.2019 i.e. before ATRE-2019 was
held on 06.01.2019.  The proposal stated that
approximately 11 lakh candidates had
appeared in TET-2018 out of which 3,86,000
were declared successful and “there being a
possibility of competition”, it was proposed
that the cut off marks be fixed at 5% higher
than TET Examination”.
C)
The reasons for fixing the cut off marks at 65-
60% level were:-
(i)
to narrow down the scope of
selection because of the
increased 
number 
of
applications; and
(ii)
to achieve improvement in
academic 
performance
whereby 
meritorious
candidates with higher marks
would alone be permitted to
enter 
the 
zone 
of
consideration.
(iii)
The pattern of ATRE-2019
was completely different.  As
against short descriptive
answers required in ATRE-
2018, the emphasis in ATRE-
2019 was on multiple choice-
objective questions.
D)
There was no change in the rules of game as
the cut off marks were prescribed for the first
time by order dated 07.01.2019.  Reliance
was placed on the decision of this Court in
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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Yogesh Yadav vs.  Union of India and
others13 and Jharkhand Public Service
Commission vs. Manoj Kumar Gupta14.
E)
The ATRE was valid only for recruitment of
that particular year and the candidates had to
abide by the conditions of recruitment pertaining
to the concerned ATRE examination.  Shiksha
Mitras who participated in ATRE-2018 and in
ATRE-2019 did not form a homogeneous class.
F)
Since 60% marks from ATRE would be taken
into account while preparing quality points,
there was no occasion for any candidate not
doing his best at ATRE-2019.  Thus, non-
disclosure of cut off marks in the
advertisement/Guidelines was inconsequential.
G)
The eligibility and entitlement of B.Ed.
candidates to take part in ATRE-2019 was
never in challenge before the Single Judge.
H)
In the Guidelines dated 01.12.2018, under the
heading ‘minimum qualifications’, it was
specifically mentioned that the eligibility of the
candidates would be in terms of minimum
qualifications fixed by NCTE through its various
notifications including one dated 28.06.2018.
(I)
1981 Rules were amended prior to the
commencement of recruitment process which
now provided for recruitment of B.Ed.
candidates directly to the post of Assistant
Teacher subject to their undergoing post-
appointment training which was in accordance
with law.
34. It was also submitted by Ms. Bhati, learned Additional Solicitor
General that the State would provide one more opportunity to
Shiksha
Mitras to compete in the next selection to dispel any impression of
13 (2013) 14 SCC 623
14 (2020) 1 SCALE 504

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prejudice but the present selection be allowed to go ahead with cut off at
65-60% level.
34.1 In the written submissions filed on behalf of the State, an
example was placed as under:-
“3.
A tabular chart showing that a candidate who
has throughout obtained 70% marks will be
left out by a Shiksha Mitra who has obtained
50% marks throughout his career in case cut
off marks are reduced to 45% & 40% from
65% & 60%.
Thus, it is clear that not only quality of teachers will be
compromised but a meritorious candidate will be ignored in
case cut off marks are reduced to 45% & 40% from 65% &
60%.”
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]

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34.2  In the written submissions filed on behalf of B.Ed./BTC
candidates, following charts were also presented:-
“On important statistics of ATRE 2018 and 2019
“The following chart illustrates how a Shiksha Mitra having 35%
marks through out his academic career (except 50% in BTC,
which is passing marks) would be selected if the qualifying marks
in ATRE-2019 is lowered to 45%, whereas a BTC candidates
having secured 67% marks through out his academic career would
be left out:
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35. As stated in the counter affidavit of the State, out of 1,78,000
Shiksha Mitras who were given fortuitous appointments as Primary
Teachers on contractual basis, 1,37,500 Shiksha Mitras were absorbed
as Assistant Teachers in Junior Basic Schools.  Their absorption was
subject matter of challenge and the orders passed by the State conferring
the advantage of absorption were set aside on the ground that no such
benefit could be conferred upon persons who did not have the requisite
qualifications to be appointed as Assistant Teachers in Junior Basic
Schools.  The number of 1,37,500 has some significance as ATRE-2018
and ATRE-2019 were conducted to fill up 68,500 and 69,000 posts of
Assistant Teachers respectively; the aggregate being 1,37,500.
After suitable amendments to 1981 Rules, Shiksha Mitras became
eligible for appointment to the posts of “Assistant Masters and Assistant
Mistresses of Junior Basic Schools” provided they acquired the academic
qualifications prescribed in 1981 Rules.
As per para 34 of the counter affidavit, 1,52, 330 Shiksha Mitras
are presently working in the State and 45, 357 Shiksha Mitras appeared
in ATRE-2019.  Thus, more than 1,02,000 Shiksha Mitras did not appear
in ATRE-2019 either because they did not have the requisite qualifications
or they were not interested in competing for the posts of Assistant
Teachers.
36. According to the record, out of 1,46,060 candidates who
qualified in ATRE-2019, 8018 are Shiksha Mitras while
B.Ed. and BTC
candidates are 97,368 and 38,610 respectively and the candidates having
other qualifications are 2064.  As against the total number of qualified
candidates, 8018 Shiksha Mitras thus constitute 17.67%.  It must be
noted here that B.Ed. candidates were not allowed to participate in the
earlier selection process and could not appear at ATRE-2018.  Their
entitlement, as a matter of fact, arose for the first time after ATRE-
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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2018.  Even when B.Ed. candidates were out of contest, the percentage
of qualified Shiksha Mitras in ATRE-2018 (25.02%) was not substantially
high as is evident from the chart extracted in paragraph 34.2 hereinabove.
37. We must now consider the issue of eligibility of B.Ed.
candidates in the present selection.  In TET examination held in March,
2018, out of 3,86,000 qualified candidates, Shiksha Mitras were 40,000
only; meaning thereby that a large number of candidates other than
Shiksha Mitras had been declared qualified.  Paragraph 4(2) of G.O.
dated 01.12.2018, referred to certain directives of NCTE which in turn,
had dealt with eligibility of B.Ed. candidates.  It was, therefore, quite
apparent that in the ensuing selection process considerable number of
B.Ed. candidates would participate.  In this background, the absence of
any challenge to the entitlement of B.Ed. candidates to participate in the
process and to appear at ATRE-2019 is crucial.
But we do not propose to rely only on this aspect and proceed to
consider whether the candidates holding B.Ed. degrees are entitled in
law to be considered eligible in the present selection process.
38. The National Council for Teachers Education Act, 1993 (‘the
NCTE Act’, for short) was enacted, inter alia, to provide for the
regulation and proper maintenance of norms and standards in the teacher
education system.  Chapter II of the NCTE Act deals with establishment
of
the Council while Chapter III deals with ‘Functions of the Council’.
Some of the functions of the Council, as laid down in Section 12, are as
under:-
“12. Functions of the Council.- It shall be the duty of the Council
to take all such steps as it may think fit for ensuring planned and
coordinated development of teacher education and for the
determination and maintenance of standards for teacher education
and for the purposes of performing its functions under this Act,
the Council may–
(a)-(b)                   …
…
…
(c) co-ordinate and monitor teacher education and its development
in the country;
(d) lay down guidelines in respect of minimum qualifications for a
person to be employed as a teacher in schools or in recognised
institutions;
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(e) lay down norms for any specified category of courses or
trainings in teacher education, including the minimum eligibility
criteria for admission thereof, and the method of selection of
candidates, duration of the course, course contents and mode of
curriculum;
(f)-(m)                  …
…
…
(n) perform such other functions as may be entrusted to it by the
Central Government.”
38.1 The NCTE Act, as originally enacted, was primarily concerned
with regulating standards in “teacher education system”.  The provisions
of the NCTE Act came up for consideration in State of Maharashtra
vs.  Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and
others15.  This Court held:-
“62. From the above decisions, in our judgment, the law appears
to be very well settled. So far as coordination and determination
of standards in institutions for higher education or research,
scientific and technical institutions are concerned, the subject is
exclusively covered by Entry 66 of List I of Schedule VII to the
Constitution and the State has no power to encroach upon the
legislative power of Parliament. It is only when the subject is
covered by Entry 25 of List III of Schedule VII to the Constitution
that there is a concurrent power of Parliament as well as the
State Legislatures and appropriate Act can be made by the State
Legislature subject to limitations and restrictions under the
Constitution.
63. In the instant case, admittedly, Parliament has enacted the
1993 Act, which is
in force. The preamble of the Act provides for
establishment of National Council for Teacher Education (NCTE)
with a view to achieving planned and coordinated development of
the teacher-education system throughout the country, the regulation
and proper maintenance of norms and standards in the teacher-
education system and for matters connected therewith. With a
view to achieving that object, the National Council for Teacher
Education has been established at four places by the Central
Government. It is thus clear that the field is fully and completely
15 (2006) 9 SCC 1
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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occupied by an Act of Parliament and covered by Entry 66 of List
I of Schedule VII. It is, therefore, not open to the State Legislature
to encroach upon the said field. Parliament alone could have
exercised the power by making appropriate law. In the
circumstances, it is not open to the State Government to refuse
permission relying on a State Act or on “policy consideration”.
38.2 In Basic Education Board, U.P.  vs.  Upendra Rai and
others16,  the issue was whether the provisions of the NCTE Act related
to the ordinary educational institutions and whether they would override
the provisions of U.P. Basic Education Act and Rules made thereunder.
This Court held:-
“22. It may be mentioned that the word “institution” is defined in
Section 2(e) of the NCTE Act to mean an institution which offers
courses or training in teachers’ education. Thus, the NCTE Act
does not deal with the ordinary educational institutions like primary
schools, high schools, intermediate college or university. The word
“institution” as defined in Section 2(2) [sic 2(e)] only means
teachers’ training institutes and not the ordinary educational
institutions. Hence, it is only the teachers’ training institutions which
have to seek grant of recognition or continuation of recognition
from the Regional Committee. The ordinary educational institutions
do not have to seek any such recognition or continuation under
the NCTE Act. In fact, the NCTE Act does
not relate to the
ordinary educational institutions at all. We, therefore, fail to
understand how it can be said that the NCTE Act overrides the
U.P. Basic Education Act and the Rules made thereunder. In fact,
the two Acts operate in altogether two different fields. The NCTE
Act deals with the teachers’ training institutions while the U.P.
Basic Education Act deals with the ordinary primary schools in
U.P. and not any teachers’ training institute. The argument of
learned counsel for the respondent is thus wholly misconceived.”
38.3 The NCTE Act was thereafter amended in 2011 by Act* 18
of 2011 and after such amendment the long title to the Act now reads
‘an Act to provide for the establishment of a National Council for Teacher
Education with a view to achieving planned and co-ordinated development
16 (2008) 3 SCC 432
* National Council for Teachers Education (Amendment) Act (18 of 2011)
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of the teacher education system throughout the country, the regulation
and proper maintenance of norms and standards in the teacher education
system including qualifications of school teachers and for matter
connected therewith’.
By the same amendment Section 12A was inserted in the
NCTE Act, the relevant part of said Section being:-
“12A.  Power of Council to determine minimum standards
of education of school teachers.-  For the purpose of maintaining
standards of education in schools, the Council may, by regulations,
determine the qualifications of persons for being recruited as
teachers in any pre-primary, primary, upper primary, secondary,
senior secondary or intermediate school or college, by whatever
name called, established, run aided or recognised by the Central
Government or a State Government or a local or other authority:
…
…
…”
Section 32 of the NCTE Act empowers the NCTE to make
regulations by issuing notification in the official gazette generally to carry
out the provisions of the NCTE Act which regulations may now provide
for ‘the qualifications of teachers under 12A#.
38.4 It is thus clear that for maintaining standards of education in
schools, the NCTE is now specifically empowered to determine the
qualifications of persons for being recruited as teachers in schools or
colleges. In addition to regulating standards in “teacher education
system”, the NCTE Act now deals with regulation and proper
maintenance of norms and standards in respect
of qualifications of persons
to be recruited as teachers.
39. Having noted the aforestated change in the scope and ambit
of the NCTE Act, another development must also be noticed.  The Right
of Children to Free and Compulsory Education Act, 2009 (‘the RTE
Act’, for short) was enacted by the Parliament, inter alia, to provide to
the children in the age group of six to fourteen years “full time elementary
education of satisfactory and equitable quality in a formal school which
satisfies certain essential norms and standards”.  Section 23 of the RTE
Act deals with qualifications for appointment of teachers and states:-
# Section 32(2)(dd) of the NCTE Act
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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“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.
(2)
……
(3)
……”
40. By Notification dated 31.03.2010, the Central Government, in
exercise of powers conferred under Section 23 of the RTE Act authorised
the NCTE as an “Academic Authority” to lay down the minimum
qualifications for a person to be eligible for appointment as a teacher.
The Notification dated 28.06.2018 issued by the NCTE was in
exercise of power so conferred upon it by virtue of the Notification
dated 31.03.2010.  In terms of the Notification dated 28.06.2018, the
qualification of ‘Bachelor of Education’ from any NCTE recognised
institution shall now be a valid qualification for appointment as a teacher
in classes I to V provided the person so appointed as a teacher
mandatorily undergoes six months’ Bridge Course in elementary education
within two years of such appointment.
41. Going by the Parliamentary intent in empowering NCTE under
the provisions of the NCTE Act and specific authorization in favour of
NCTE under said Notification dated 31.03.2010, the authority of NCTE
is beyond any doubt.  Though there is no specific regulation as
contemplated under Section 32 read with Sections 12 and 12A of the
NCTE Act, for the
present purposes by virtue of the specific authorization
under the Notification dated 31.03.2010, NCTE was entitled to lay down
that those holding the qualification of ‘Bachelor of Education’ as detailed
in said Notification are entitled to be appointed as teachers for classes I
to V.  Such prescription on part of the NCTE would be binding.  It is for
this reason that G.O. dated 01.12.2018 notifying ATRE-2019 clearly stated
that the candidates possessing minimum qualifications specified in
Notifications issued by the NCTE including one dated 28.06.2018 were
entitled to participate in ATRE-2019.
42. The eligibility and entitlement of B.Ed. candidates in law, thus
being beyond any doubt, the next question to be considered is whether
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without making appropriate consequential amendments to 1981 Rules
before ATRE-2019 was held, the candidates possessing B.Ed.
qualification could be allowed to take part in ATRE-2019.  Reliance was
placed on the following observations from the decisions of this Court.
i) P. Mahendran and others etc.  v. State of Karnataka and
others17
“4. … …In the absence of any express provision contained in
the amending Rules it must be held to be prospective in nature.
The Rules which are prospective in nature cannot take away
or impair the right of candidates holding Diploma in Mechanical
Engineering as on the date of making appointment as well as
on the date of scrutiny by the Commission they were qualified
for selection and appointment. … …”
ii) Madan Mohan Sharma and another v. State of Rajasthan
and others18
“…Once the advertisement had been issued on the basis of
the circular obtaining at that particular time, the effect would
be that the selection process should continue on the basis of
the criteria which were laid down and it cannot be on the basis
of the criteria which has been made subsequently”
43. The Notification dated 28.06.2018 being binding on the State
Government, the statutory regime put in place by the State has to be
read in conformity with said Notification.  The eligibility or entitlement
being already conferred by Notification dated 28.06.2018, the
amendments to 1981 Rules were effected only to make the statutory
regime consistent with the
directives issued by the NCTE.  The right or
eligibility was not conferred by amendments effected to 1981 Rules for
the first time and therefore the element of retrospectivity present in the
concerned amendments has to be read in that perspective.  The intent
behind those amendments was not to create a right for the first time
with retrospective effect but was only to effectuate the statutory regime
in tune or accord with NCTE directives.  Theoretically, even if such
statutory regime was not made so consistent, the concerned candidates
holding B.Ed. degrees could still be eligible and could not have been
denied candidature for ATRE-2019.
17 (1990) 1 SCC 411
18 (2008) 3 SCC 724
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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44. Pertinently, the performance in ATRE is one of the indicia that
goes into making of quality points which in turn have to be considered at
the stage of preparation of merit list for selection.  By the time the actual
process of selection was undertaken, the statutory regime in the form of
1981 Rules was perfectly consistent and in order.
The decisions relied upon and quoted above therefore have no
application to the instant case.
45. The decision of the Constitution Bench of this Court in Dr.
Preeti Srivastava and another etc. vs. State of M.P. and others etc.19
was also relied upon to submit that since the requirements in 1981 Rules
(as they stood before 23rd Amendment) in so far as entitlement of B.Ed.
candidates was concerned, were in addition to the conditions emanating
from the Notification dated 28.06.2018, it must be independently satisfied
and as such there could be no retrospective amendment to 1981 Rules.
In said decision, it was held by this Court.
“39. ... In every case the minimum standards as laid down by the
Central statute or under it, have to be complied with by the State
while making admissions. It may, in addition, lay down other
additional norms for admission or regulate admissions in the
exercise of its powers under Entry 25 List III in a manner not
inconsistent with or in a manner which does not dilute the criteria
so laid down.”
As held by this Court, an additional norm laid down by the
State
would certainly be applicable and enforceable. But once, the NCTE laid
down that candidates holding B.Ed. degrees would be entitled to be
appointed as teachers for classes I to V, provided they undergo a six
months’ Bridge Course, the stipulation in 1981 Rules (before 23rd
Amendment) that they must first be appointed as trainee teachers must
give way to that under the Notification dated 28.06.2018.  Said stipulation
in 1981 Rules cannot be considered as an additional norm. It ran
completely counter to that under the Notification dated 28.06.2018 which
is why the Amendment in that behalf was given retrospective effect to
bring in consistency.
46. In the circumstances, we approve the conclusions drawn by
the High Court with regard to this issue and hold that the B.Ed. candidates
were rightly allowed to participate in the instant selection process.
19 (1999) 7 SCC 120
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47. We now deal with the questions concerning fixation of 65-
60% as minimum qualifying marks for ATRE 2019.
The first question deals with the submission that such fixation
was arbitrary and irrational and can be considered under following sub-
heads:-
(a)
Whether there could be different parameters
regarding minimum qualifying marks in ATRE-
2019 as against those in ATRE-2018.
(b)
Whether Shiksha Mitras who appeared in
ATRE-2018 and ATRE-2019 constituted one
single homogenous class.
(c)
Should there not be a different yardstick for
Shiksha Mitras, who had been rendering service
as teachers, as against what could be applied
for fresh graduates.
(d)
Should not “minimum qualifying marks” appear
to be minimum?  Was not the cut off at 65-60%
per se arbitrary;
(e)
Could ATRE-2019 be converted into an
exclusionary test and thereby deny to the
Shiksha Mitras the benefit of weightage for
experience.
The second question concerns about the correctness of the exercise
of power in such fixation after ATRE-2019 was held.
48. For selection of 68,500 posts, 1,07,000 candidates had
participated in ATRE-2018; and with qualifying marks at 45-40%, 41,556
candidates had qualified.  The percentage of qualifying candidates was
thus 38.83%.   On the other hand, 4,09,530 candidates participated in the
present selection process for 69,000 posts and with 65-60% cut off marks,
1,46,078 candidates had qualified. The percentage of qualifying candidates
this time was 37.62%, which was
almost equal to that in ATRE-2018.
However, the number of qualified candidates in ATRE-2018 was less
than the number of vacancies; while even with the cut off at 65-60% the
number of qualified candidates in the present selection was far in excess
of the number of posts. These figures give indications about the nature
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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and the difficulty level of the examinations and show that even with cut
off at 65-60%, the percentage of qualifying candidates was almost the
same.
49. It is true that the total number of posts of Assistant Teachers
sought to be filled up by ATRE-2018 and 2019 was 1,37,500, the exact
number of Shiksha Mitras whose absorption as Assistant Teachers was
set aside; and that Shiksha Mitras were granted certain benefits in terms
of the directions issued by this Court in Anand Kumar Yadav2.  One of
the submissions was that all Shiksha Mitras who were granted such
benefit constituted a homogenous class and as such there could not be
any inter se distinction between Shiksha Mitras who appeared in ATRE-
2018 on one hand and those who appeared in ATRE-2019 on the other.
It was also contended that the syllabus for both the examinations with
allocation of marks for different subjects being identical, any distinction
between two sets of Shiksha Mitras and subjecting those who appeared
at ATRE-2019 to considerably high cut off would be arbitrary and illogical.
50. It needs to be stated here that though the syllabus and subject
wise allocation of marks were identical, the nature of ATRE-2019 was
entirely different.  The questions in ATRE-2018 were descriptive in nature
and the duration of examination was three hours.  However, those in
ATRE 2019 were multiple choice – objective questions and the duration
of examination was also
different.  Rather than writing descriptive
answers to questions which was the modality in ATRE-2018, multiple
choices were given and the correct answer was to be tick marked in
ATRE 2019.  Naturally, the nature and the difficulty level of both the
examinations were different. Sub question (a) must therefore be
answered in the affirmative and it must be accepted that there could be
different parameters regarding minimum qualifying marks for ATRE-
2019.
51. All the candidates including Shiksha Mitras who appeared in
ATRE 2018 formed one class while those who appeared in ATRE 2019
formed another class.  There cannot be inter se connection or
homogeneity between candidates appearing in one examination or
selection with those appearing in another examination or selection.  The
candidates would undoubtedly compete with each other in the same
examination on a para meter which applies to all of them equally.  But to
say that Shiksha Mitras who appeared in ATRE-2019 must be allowed
equality with candidates of ATRE-2018, who were part of a different
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selection process would be incorrect and illogical.  The basic norms of
ATRE-2019 must be tested on their own and cannot depend upon para
meters or norms on the basis of which ATRE-2018 was held.  Otherwise
the integrity of the examination process will get defeated and nullified.
Shiksha Mitras were given chances in two successive selections
and some of the Shiksha Mitras who had failed in ATRE-2018 appeared
in ATRE-2019 in exercise of such chance.  Those who could not clear
ATRE-2018 with 45-40% cut off cannot now be heard to say that the
same cut off ought to be maintained when the nature of examination and
the difficulty level had completely changed.
We, therefore, reject the submission that Shiksha Mitras who
appeared in ATRE-2018 and ATRE-2019 formed a homogenous class
and answer sub question (b) accordingly. The candidates who appeared
in ATRE-2018 between themselves formed one class while those who
appeared in ATRE-2019 formed another class.  The merit of one class
had to be tested on the basis of the examination which the candidates
forming that class had undergone and no para meters or norms of the
earlier examination could be imported or implanted in the latter
examination.
52. Relying on the decision of this Court in State of M.P. and
others vs.  Gopal D. Tirthani and others20, it was submitted that Shiksha
Mitras who had been discharging their services as teachers could not be
put at the same level with fresh graduates having B.Ed./BTC
qualifications.  In that case, this Court was called upon to consider setting
apart of certain seats by the State Government for in service candidates
in Post Graduate courses. It was observed by this Court: -
“21. … There is nothing wrong in the State Government setting
apart a definite percentage of educational seats at postgraduation
level consisting of degree and diploma courses exclusively for the
in-service candidates. To the extent of the seats so set apart,
there is a separate and exclusive source of entry or channel for
admission. It is not reservation. In-service candidates, and the
candidates not in the service of the State Government, are two
classes based on an intelligible differentia. There is a laudable
purpose sought to be achieved. In-service candidates, on attaining
higher academic achievements, would be available to be posted
20 (2003) 7 SCC 83
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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in rural areas by the State Government. It is not that an in-service
candidate would leave the service merely on account of having
secured a postgraduate degree or diploma though secured by virtue
of being in the service of the State Government. If there is any
misapprehension, the same is allayed by the State Government
obtaining a bond from such candidates as a condition precedent
to their taking admission that after completing PG degree/diploma
course they would serve the State Government for another five
years. Additionally, a bank guarantee of rupees three lakhs is
required to be submitted along with the bond. There is, thus, clearly
a perceptible reasonable nexus between the classification and the
object sought to be achieved.”
This Court was considering validity of certain percentage of seats
earmarked for in-service candidates and it found the classification to be
correct, having nexus with the object of ensuing availability of competent
professionals in the rural parts of the State.  On the other hand, the
object of giving opportunities to Shiksha Mitras was to ensure that they
were given fair chance to compete with others so that the best of the lot
would be available to take care of primary education in the State.  In our
view, the submission does not deserve acceptance.  Sub question (c) is
answered accordingly.
53. It was further submitted that the fixation of cut off at 65-60%
was at a considerably high
level and ceased to be “minimum qualifying
marks” as contemplated by the relevant provisions of 1989 Rules.  This
submission found favour with the Single Judge of the High Court who
observed that the minimum qualifying marks must appear to be minimum.
The minimum marks required to pass the TET examination are at
a level of 60% for open category.  Those who desired to be teachers
had already gone through a process rigorous enough to test their ability
with minimum passing percentage at 60%%.  Moreover, 60% of the
marks scored by a candidate in ATRE-2019 would go to determine the
quality points allocable to a candidate.  Leaving aside the weightage
allowable for Shiksha Mitras, the overall academic performance of a
candidate thus constituted about 40% of quality points whereas a large
chunk thereof depended upon the performance in ATRE-2019.  In terms
of 1981 Rules, a candidate would be required to “pass” ATRE and thus
ATRE was not only an examination that had to be cleared to get into the
zone of consideration but 60% of marks scored in that examination would
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be used for the purposes of preparation of merit list. From the perspective
of selection, ATRE deserved adequate importance and emphasis. The
reason was obvious that all the candidates would be tested on a parameter
or a norm which would be equal and identical to all the competing
claimants.
The fixation at 65-60% level was to garner the best available
talent.  Even with this qualifying norm, the percentage of qualified
candidates in ATRE-2019 was 37.62% which was quite close to 38.83%
in ATRE-2018 and the number of qualified candidates was far in excess
of the vacancies required to be filled up.  Thus, cut off at 65-60% level
in the present case, by itself cannot be termed as incorrect or illegal
exercise of power. Sub question (d) is answered accordingly.
54. It was then submitted that going by the provisions of 1981
Rules, the performance in ATRE was supposed to be only one of the
indicia.  However, by fixing the cut off at 65-60% level, instead of
subserving the requirement of furnishing one of the indicia, ATRE-2019
became an exclusionary test. It was submitted that the performance in
ATRE overshadowed every other parameter and in the process the benefit
of weightage that every Shiksha Mitra was entitled to, stood denied to
him.
55. Though as a result of the 22nd Amendment, passing of ATRE
ceased to be part of Rule 8, the requirement was specifically retained in
Rule 14 of 1981 Rules.  Further, 60% of the marks scored by a candidate
in ATRE, in terms
of Appendix I read with Rule 14(2) would go in
determining quality points to prepare the merit list.  The major portion of
quality points being directly relatable to the performance in ATRE, mere
fixation at 65-60% level which applied to all the candidates across the
board cannot be said to be exclusionary.  ATRE featured as the common
platform on the basis of which individual merit of various candidates
could be tested, which is why a major portion of allocable quality points
was assigned to the performance in ATRE.  In the circumstances, the
performance in ATRE-2019 was given adequate and due weightage by
fixation of cut off at 65-60% level.
56. The submission that as a result of such fixation large number
of Shiksha Mitras were denied advantage of weightage as determined
under the provisions of 1981 Rules, also does not deserve acceptance.
In Kulbhushan Mishra and another vs.  State of U.P. and others, the
Division Bench of the High Court had concluded that weightage allocable
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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to the experience of Shiksha Mitras was not contemplated to be added
to the marks obtained by a person in the ATRE. All the Shiksha Mitras
were thus aware that they had to qualify in the ATRE and they would be
entitled to weightage for their experience only thereafter. More than
8000 Shiksha Mitras did qualify in ATRE-2019, which number must have
included those who had earlier failed to make it in ATRE-2018.   Those
Shiksha Mitras who were meritorious and took the examination with
seriousness that it deserved, certainly succeeded in securing marks more
than the cut off of 65-60%. The directions issued by this Court in Anand
Kumar Yadav2were to ensure that regardless of any other
considerations, Shiksha Mitras would have opportunity to match their
skills against other candidates.  Viewed thus, the fixation of cut off at
65-60% which was intended to select the best of the candidates cannot
be termed as exclusionary nor was it intended to deprive the Shiksha
Mitras of the advantage of weightage for experience. Sub question (e)
must therefore be answered against Shiksha Mitras.
57. While answering the first question, we therefore conclude
that the fixation of cut off at 65-60% in ATRE-2019 was perfectly valid
and justified.  Considering the large number of candidates who appeared
at ATRE-2019 as well as the nature and difficulty level of the examination,
the cut off was designed to draw the best available talent.  The
endeavour
on part of the State in attempting to secure the best of the teachers was
therefore fully justified.  It needs no emphasis that the right to education
guaranteed in terms of Article 21A of the Constitution would envisage
quality education being imparted to the children which in turn, would
signify that the teachers must be meritorious and the best of the lot. Any
process which applied equally to all the candidates and was designed to
garner the best talent, cannot be called arbitrary or irrational.
58. With regard to the second question, it is clear from the record
that the cut off at 65-60% for ATRE-2019 was declared a day after the
examination was held. As is reflected from the Order dated 07.01.2019,
the process was initiated on 05.01.2019 but the actual declaration was
on 07.01.2019. The correctness of such exercise was called in question
by Shiksha Mitras and certain decisions of this Court were relied upon.
The basic submissions were that the candidates ought to have been
made aware of the cut off well in advance and the fixation of cut off
after the examination was over, would be incorrect and invalid.
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We may now consider some of the decisions relied upon by either
side.
A] In  State of Haryana vs. Subash Chander Marwaha and
others21, a bench of two judges of this Court considered the question
whether the action of the State in appointing first seven persons from
the list of qualified candidates leaving out other qualified candidates when
there were enough vacancies, was correct. It was observed:-
“10.  One fails to see how the existence of vacancies give a legal
right to a candidate to be selected for appointment. The examination
is for the purpose of showing that a particular candidate is eligible
for consideration. The selection for appointment comes later. It is
open then to the Government to decide how many appointments
shall be made. The mere fact that a candidate’s name appears in
the list will not entitle him to a mandamus that he be appointed.
Indeed, if the State Government while making the selection for
appointment had departed from the ranking given in the list, there
would have been a legitimate grievance on the ground that the
State Government had departed from the rules in this respect.
The true effect of Rule 10 in Part C is that if and when the State
Government propose to make appointments of Subordinate Judges
the State Government (i) shall not make such appointments by
travelling outside the list, and (ii) shall make the selection for
appointments strictly in the order the candidates have been placed
in the list published in the
Government Gazette. In the present
case neither of these two requirements is infringed by the
Government. They have appointed the first seven persons in the
list as Subordinate Judges. Apart from these constraints on the
power to make the appointments, Rule 10 does not impose any
other constraint. There is no constraint that the Government shall
make an appointment of a Subordinate Judge either because there
are vacancies or because a list of candidates has been prepared
and is in existence.”
B] In State of U.P. etc. v. Rafiquddin and others etc.22, the
distinction between a normal test and a competitive examination in the
light of the submission that the minimum marks were fixed without notice
to the candidates, was brought out by this Court as under:-
21 (1974) 3 SCC 220
22 1987 (Supp) SCC 401
RAM SHARAN MAURYA v. STATE OF U.P.
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“12. The Division Bench of the High Court observed that the
Commission had no authority to fix any minimum marks for the
viva voce test and even if it had such a power it could not prescribe
the minimum marks without giving notice to the candidates. The
Bench further observed that if the Commission had given notice
to the candidates before the steps for holding the competitive
examination were taken the candidates may or may not have
appeared at the examination. In our opinion the High Court
committed a serious error in applying the principles of natural
justice to a competitive examination. There is a basic difference
between an examination held by a college or university or
examining body to award degree to candidates appearing at the
examination and a competitive examination. The examining body
or the authority prescribes minimum pass marks. If a person
obtains the minimum marks as prescribed by the authority he is
declared successful and placed in the respective grade according
to the number of marks obtained by him. In such a case it would
be obligatory on the examining authority to prescribe marks for
passing the examination as well as for securing different grades
well in advance. A competitive examination on the other hand is
of different character. The purpose and object of the competitive
examination is to select most suitable candidates for appointment
to public services. A person may obtain sufficiently
high marks
and yet he may not be selected on account of the limited number
of posts and availability of persons of higher quality. Having regard
to the nature and characteristics of a competitive examination it is
not possible nor necessary to give notice to the candidates about
the minimum marks which the Commission may determine for
purposes of eliminating the unsuitable candidates. The rule of
natural justice does not apply to a competitive examination.”
(Emphasis supplied)
C] The procedure for selection of ten posts of District and Sessions
Judges (Grade-II) by direct recruitment was in issue in K. Manjusree12.
According to the resolution dated 30.11.2004, the method of selection
comprised of a written examination for 75 marks and oral examination
for 25 marks.  There would be minimum percentage of marks required
for passing the written examination and the successful candidates would
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be called for interview; and the merit would be determined, according to
the aggregate of marks in written and oral examinations.  There was
thus no requirement of any minimum qualifying marks in the oral interview.
However, after the entire process was over, the Sub-Committee
introduced a cut off percentage for oral examination, as a result of which,
certain candidates stood disqualified.  While dealing with the challenge
by four such candidates, a bench of three judges of this Court observed:
“27. But what could not have been done was the second change,
by introduction of the criterion of minimum marks for the interview.
The minimum marks for interview had never been adopted by the
Andhra Pradesh High Court earlier for selection of District &
Sessions Judges, (Grade II). In regard to the present selection,
the Administrative Committee merely adopted the previous
procedure in vogue. The previous procedure as stated above was
to apply minimum marks only for written examination and not for
the oral examination. We have referred to the proper interpretation
of the earlier Resolutions dated 24-7-2001 and 21-2-2002 and held
that what was adopted on 30-11-2004 was only minimum marks
for written examination and not for the interviews. Therefore,
introduction of the requirement of minimum marks for interview,
after the entire selection process (consisting of written examination
and interview) was completed, would amount to changing the rules
of the game after
the game was played which is clearly
impermissible. We are fortified in this view by several decisions
of this Court. It is sufficient to refer to three of them — P.K.
Ramachandra Iyer v. Union of India23, Umesh Chandra Shukla
v. Union of India24 and Durgacharan Misra v. State of
Orissa25.”
(Emphasis supplied)
After considering the earlier decisions in P.K. Ramachandra Iyer
and others v. Union of India and others23, Umesh Chandra Shukla
v. Union of India and others24, Durgacharan Misra v. State of
Orissa25and Maharashtra State Road Transport Corporation and
others v. Rajendra Bhimrao Mandve and others26, this Court observed:
23 (1984) 2 SCC 141
24 (1985) 3 SCC 721
25 (1987) 4 SCC 646
26 (2001) 10 SCC 51
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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“33. The Resolution dated 30-11-2004 merely adopted the
procedure prescribed earlier. The previous procedure was not to
have any minimum marks for interview. Therefore, extending the
minimum marks prescribed for written examination, to interviews,
in the selection process is impermissible. We may clarify that
prescription of minimum marks for any interview is not illegal.
We have no doubt that the authority making rules regulating the
selection, can prescribe by rules, the minimum marks both for
written examination and interviews, or prescribe minimum marks
for written examination but not for interview, or may not prescribe
any minimum marks for either written examination or interview.
Where the rules do not prescribe any procedure, the Selection
Committee may also prescribe the minimum marks, as stated
above. But if the Selection Committee wants to prescribe minimum
marks for interview, it should do so before the commencement of
selection process. If the Selection Committee prescribed minimum
marks only for the written examination, before the commencement
of selection   process, it cannot either during the selection process
or after the selection process, add an additional requirement that
the candidates should also secure minimum marks in the interview.
What we have found to be illegal, is changing the criteria after
completion of the selection process, when the entire selection
proceeded on the basis that there
will be no minimum marks for
the interview.
36. The Full Court however, introduced a new requirement as to
minimum marks in the interview by an interpretative process which
is not warranted and which is at variance with the interpretation
adopted while implementing the current selection process and the
earlier selections. As the Full Court approved the Resolution dated
30-11-2004 of the Administrative Committee and also decided to
retain the entire process of selection consisting of written
examination and interviews it could not have introduced a new
requirement of minimum marks in interviews, which had the effect
of eliminating candidates, who would otherwise be eligible and
suitable for selection. Therefore, we hold that the action of the
Full Court in revising the merit list by adopting a minimum
percentage of marks for interviews was impermissible.”
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This Court, thus, allowed the challenge and directed the High Court
to prepare a fresh merit list in regard to 83 candidates who had qualified
in the written examination with reference to their marks in written test
and interview without applying any minimum marks for interviews.
D] Relying on the decision in K. Manjusree12, a bench of two
judges of this Court in Hemani Malhotra etc. vs. High Court of Delhi27,
concluded:-
“15. There is no manner of doubt that the authority making rules
regulating the selection can prescribe by rules the minimum marks
both for written examination and viva voce, but if minimum marks
are not prescribed for viva voce before the commencement of
selection process, the authority concerned, cannot either during
the selection process or after the selection process add an additional
requirement/qualification that the candidate should also secure
minimum marks in the interview. Therefore, this Court is of the
opinion that prescription of minimum marks by the respondent at
viva voce test was illegal.”
(Emphasis supplied)
E] In Tej Prakash Pathak and others Vs. Rajasthan High Court
and others28, a bench of three judges was called upon to consider a
situation identical to that considered in State of Haryana vs. Subash
Chander Marwaha and Others21, where only three candidates were
selected while others were ruled out despite there being vacancies. This
Court doubted the decision in K. Manjusree12 and referred the matter
to a larger
bench. Some of the observations were as under: -
“1. Leave granted.
“5. … the rules of the game … the criteria for selection cannot
be altered by the authorities concerned in the middle or after
the process of selection has commenced.”
“27. … changing the rules of the game after the game was
played … is clearly impermissible.”
The above, and statements to the similar effect have petrified
into a rule of law in the context of employment under the State
27 (2008) 7 SCC 11
28 (2013) 4 SCC 540
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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or its instrumentalities. Whether such principle of law is
immutable, what are those “rules of the game” which cannot
be changed after the game is either commenced or played, in
our opinion requires an authoritative pronouncement by a larger
Bench of this Court.”
…
…
     …
6. Therefore, the appellants challenged the selection process on
the ground that the decision of the Chief Justice to select only
those candidates who secured a minimum of 75% marks would
amount to “changing the rules of the game after the game is
played”—a cliché whose true purport is required to be examined
notwithstanding the declaration of this Court in Manjusree12case
that it is “clearly impermissible”.
…
   …
   …
14. Unfortunately, the decision in Subash Chander Marwaha21
does not appear to have been brought to the notice of Their
Lordships in Manjusree12. This Court in Manjusree relied upon
P.K. Ramachandra Iyer v. Union of India23, Umesh Chandra
Shukla v. Union of India24 and Durgacharan Misra v. State
of Orissa25. In none of the cases, was the decision in Subash
Chander Marwaha21 considered.
15. No doubt it is a salutary principle not to permit the State or its
instrumentalities to tinker with the “rules of the game” insofar as
the prescription of eligibility criteria is concerned as was done in
C. Channabasavaih v. State of Mysore29, etc. in order to avoid
manipulation of the recruitment process and its results. Whether
such a principle
should be applied in the context of the “rules of
the game” stipulating the procedure for selection more particularly
when the change sought is to impose a more rigorous scrutiny for
selection requires an authoritative pronouncement of a larger
Bench of this Court. We, therefore, order that the matter be placed
before the Hon’ble Chief Justice of India for appropriate orders
in this regard.”
29 AIR 1965 SC 1293
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F] In Yogesh Yadav13, the attempt on part of the authorities in
employing a cut off to select the best candidates was questioned.  A
bench of two Judges of this Court observed:-
“13. The instant case is not a case where no minimum marks are
prescribed for viva voce and this is sought to be done after the
written test. As noted above, the instructions to the examinees
provided that written test will carry 80% marks and 20% marks
were assigned for the interview. It was also provided that
candidates who secured minimum 50% marks in the general
category and minimum 40% marks in the reserved categories in
the written test would qualify for the interview. The entire selection
was undertaken in accordance with the aforesaid criterion which
was laid down at the time of recruitment process. After conducting
the interview, marks of the written test and viva voce were to be
added. However, since a benchmark was not stipulated for giving
the appointment. What is done in the instant case is that a decision
is taken to give appointments only to those persons who have
secured 70% marks or above marks in the unreserved category
and 65% or above marks in the reserved category. In the absence
of any rule on this aspect in the first instance, this does not amount
to changing the “rules of the game”. The High Court has rightly
held that it is not a situation where securing of minimum marks
was introduced which was not stipulated in the advertisement,
standard was fixed for
the purpose of selection. Therefore, it is
not a case of changing the rules of the game. On the contrary in
the instant case a decision is taken to give appointment to only
those who fulfilled the benchmark prescribed. The fixation of such
a benchmark is permissible in law. This is an altogether different
situation not covered by Hemani Malhotra case27.”
G] In Salam Samarjeet Singh vs. High Court of Manipur at
Imphal and another30, there was disagreement between two judges of
this Court. Banumathi, J. did not accept the submission that the fixation
of minimum marks for ‘interview’ amounted to changing the “rules of
the game” and concluded that fixing of 40% marks for interview was
consistent with the concerned Rules. Shiva Kirti Singh, J. took a different
view while relying upon the decision in K. Majushree12 and Hemani
Malhotra27. The matter, therefore stands referred to a larger Bench.
30 (2016) 10 SCC 484
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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H] In Sivanandam C.T. and others vs. High Court of Kerala
and others31,  while dealing with the correctness of the decision in fixing
minimum qualifying marks for interview after the process was over, a
bench of two judges of this Court relied upon the order in Tej Prakash
Pathak 28 and referred the matter to a larger Bench.
I] The facts in Municipal Corporation of Delhi vs. Surender
Singh and others32 show that the selection was for the posts of Assistant
Teachers (Primary) in the schools of the appellant and clause 25 of the
advertisement provided discretion to the Selection Board to fix minimum
qualifying marks for each category of vacancies. A bench of two judges
of this Court observed:-
“18. From a perusal of the said clause it is noticed that though
under the very clause there are no cut-off marks specified, Clause
25 would, however, provide the full discretion to DSSSB to fix the
minimum qualifying marks for selection. In the instant case, keeping
in view that the recruitment was for the post of Assistant Teacher
(Primary) and also taking note of the orders passed by the High
Court in an earlier petition requiring the maintenance of minimum
standards, DSSSB while preparing the select list had stopped the
selection at a point which was indicated as the cut-off percentage.
In a circumstance where Clause 25 was depicted in Advertisement
No. 1/2006, when the private respondents herein and the other
petitioners
before the High Court were responding to the said
advertisement, if at all they had a grievance that the clause is
arbitrary and might affect their right ultimately since no minimum
marks that is to be obtained have been indicated therein, they
were required to assail the same at that stage. On the other hand,
despite being aware of the clause providing discretion to DSSSB
to fix the minimum qualifying marks, they have participated in the
selection process by appearing for the qualifying examination
without raising any protest. In that circumstance, the principle of
approbate and reprobate would apply and the private respondents
herein or any other candidate who participated in the process
cannot be heard to complain in that regard.
19. It is no doubt true that the select list was concluded at the
particular cut-off point wherein the last selected candidate under
31 (2018) 1 SCC 239
32 (2019) 8 SCC 67
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the unreserved category had obtained 89.25%. The said decision
had been taken by DSSSB to ensure the minimum standard of the
teachers that would be recruited and the appellant herein being
the recruiting agency in any event, did not have objection. In any
event, it is not the case of the petitioners that they had obtained
higher marks than the candidate who was shown as the last
candidate in the merit list. If that was the position and when it is
noticed that the appellant and the other writ petitioners had secured
lesser percentage of marks than the last candidate included in the
merit list, there could not have been any further consideration
whatsoever in the course of judicial review. To that extent, the
learned Single Judge, from the observations as noticed above has
kept in view all aspects of the matter and in that light had arrived
at the conclusion that no error was committed either by DSSSB
or the appellant herein.”
(Emphasis supplied)
J] In Jharkhand Public Service Commission vs. Manoj Kumar
Gupta and another14, the cut off in respect of Paper III was fixed after
the examination. Reversing the decision of the High Court, a bench of
two Judges of this Court observed:-
“7. A perusal of Clause 4.1 of the scheme clearly indicates that
the   moderation   committee   has   been   constituted   only   for
the purpose   of   deciding   the   cut-off   marks   in   each   subject
for declaring the result.   The advertisement clearly indicates that
only
those candidates who obtained 50% marks in Paper I and II
would be eligible to take the test in Paper III.   The minimum
qualifying marks in case of General/OBC candidates was 50%.
At this stage, there was no need to fix the qualifying marks for
Paper III. That   need   will   arise   only   when   the   moderation
committee   meets   and   decides   what   should   be   the   level
of competence expected from the people who are to be considered
for appointment as Lecturers.  It is for the moderation committee
to decide what should be the cut-off marks. There could be the
subject where all the people who qualified Paper I and II get very
low marks in Paper III and the moderation committee may be
justified in lowering the standards and prescribing  lower qualifying
standards. On the other hand, there may be a subject where   there
are   many   candidates   who   do   extremely   well   in Paper   III
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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and   the   moderation   committee   may   decide   to   fix   a higher
minimum standard. The constitution of a moderation committee is
normally done only to do this sort of moderation.
8. As far as the finding of the High Court that the rules of the
game were changed after the selection process had started, we
are of the considered view that this is not the case as far as the
present case is concerned. There were no minimum marks
provided for Paper III in the advertisement. This could be done
by the moderation committee even at a later stage. This is not a
change brought about but an additional aspect brought in while
determining the merit of the candidates who are found fit to be
eligible for consideration for appointment of Lecturers.”
59. Having set out relevant portions from the decisions of this
Court, the answer to the second question will depend upon whether the
present case is fully covered by the principles laid down in K.
Manjusree12.  If the case is so covered, in keeping with the Orders of
reference in Tej Prakash Pathak28, Salam Samarjeet Singh30 and
Sivanandam31, the instant matter must either be referred to a larger
Bench to be heard along with those matters or must await the decision
in the reference to the larger Bench.
60. In terms of Rule 2(1)(x) of 1981 Rules, qualifying marks of
ATRE are such minimum marks as may be determined ‘from time to
time’ by the Government.  Clause (C) of Rule 14 of 1981
Rules lays
down that a candidate must have ‘passed Assistant Teacher
Recruitment Examination conducted by the Government’.  Thus, one
of the basic requirements for being considered to be appointed as an
Assistant Teacher under 1981 Rules is passing of ATRE with such
minimum marks as may be determined by the Government.  Unlike para
7 of the Guidelines for ATRE-2018 which had spelt out that a candidate
must secure minimum of 45% or 40% marks (for ‘general’ and ‘reserved’
categories respectively) for passing ATRE-2018, no such stipulation was
available in G.O. dated 01.12.2018 notifying ATRE-2019.  Though, the
minimum qualifying marks were set out in the Guidelines for ATRE-
2018, it is not the requirement of 1981 Rules that such stipulation must
be part of the instrument notifying ATRE.  By very nature of entrustment,
the Government is empowered to lay down minimum marks ‘from time
to time’.  If this power is taken to be conditioned with the requirement
that the stipulation must be part of the instrument notifying the examination,
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then there was no such stipulation for ATRE-2019.  Such reading of the
rules will lead to somewhat illogical consequences.  On one hand, the
relevant Rule requires passing of ATRE while, on the other hand, there
would be no minimum qualifying marks prescribed.  A reasonable
construction on the relevant rules would therefore imply that the
Government must be said to be having power to lay down such minimum
qualifying marks not exactly alongside instrument notifying the examination
but at such other reasonable time as well.   In that case, the further
question would be at what stage can such minimum qualifying marks be
determined and whether by necessity such minimum qualifying marks
must be declared well before the examination.
61. K. Manjusree12 and Hemani Malhotra27were the cases
which pertained to selections undertaken to fill up posts in judicial service.
In these cases, no minimum qualifying marks in interview were required
and the merit list was to be determined going by the aggregate of marks
secured by a candidate in the written examination and the oral
examination.  By virtue of stipulation of minimum qualifying marks for
interview, certain candidates, who otherwise, going by their aggregate
would have been in zone of selection, found themselves to be disqualified.
The stipulation of minimum qualifying marks having come for the first
time and after the selection process was underway or through, this Court
found such exercise to be impermissible.
These were cases where, to begin with, there was no stipulation
of any minimum qualifying marks for interview.  On the other hand, in
the present case, the requirement in terms of Rule 2(1)(x) read with
Rule 14 is that the minimum qualifying marks as stipulated by the
Government must be obtained by a candidate to be considered eligible
for selection as Assistant Teacher.  It was thus always contemplated
that there would be some minimum qualifying marks.  What was done
by the Government by virtue of its orders dated 07.01.2019 was to fix
the quantum or number of such minimum qualifying marks.  Therefore,
unlike the cases covered by the decision of this Court in K. Manjusree12,
where a candidate could reasonably assume that there was no stipulation
regarding minimum qualifying marks for interview, and that the aggregate
of marks in written and oral examination must constitute the basis on
which merit would be determined, no such situation was present in the
instant case.  The candidate had to pass ATRE-2019 and he must be
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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taken to have known that there would be fixation of some minimum
qualifying marks for clearing ATRE-2019.
Therefore, there is fundamental distinction between the principle
laid down in K. Manjusree12 and followed in Hemani Malhotra27on
one hand and the situation in the present case on the other.
62. We are then left with the question whether prescription of
such minimum qualifying marks by order dated 07.01.2019 must be set
aside merely because such prescription was done after the examination
was conducted.  At this juncture, it may be relevant to note that the
basic prayer made in the leading Writ Petition before the single Judge
was to set aside the order dated 07.01.2019. What could then entail as a
consequence is that there would be no minimum qualifying marks for
ATRE-2019, which would run counter to the mandate of Rule 2(1)(x)
read with Clause (C) of Rule 14. It is precisely for this reason that what
was submitted was that the same norm as was available for ATRE-2018
must be adopted for ATRE-2019.  In order to lend force to this submission,
it was argued that Shiksha Mitras who appeared in ATRE-2018 and
ATRE-2019 formed a homogeneous clause and, therefore, the norm
that was available in ATRE-2018 must be applied. This argument, on the
basis of homogeneity, has already been dealt with and rejected.
63. If the Government has the power to fix minimum qualifying
marks ‘from time to time’, there is nothing in the
Rules which can detract
from the exercise of such power even after the examination is over,
provided the exercise of such power is not actuated by any malice or ill
will and is in furtherance of the object of finding the best available talent.
In that respect, the instant matter is fully covered by the decisions
of this Court in Municipal Corporation of Delhi vs. Surender Singh32
and Jharkhand Public Service Commission vs. Manoj Kumar Gupta
and another14.  In the first case, the power entrusted under Clause 25
of the advertisement also provided similar discretion to the Selection
Board to fix minimum qualifying marks for each category of vacancies.
While construing the exercise of such power, it was found by this Court
that it was done ‘to ensure the minimum standard of the teachers that
would be recruited’.  Similarly, in Jharkhand Public Service
Commission14, the exercise of power after the examination in paper III
was over, was found to be correct and justified.
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64. If the ultimate object is to select the best available talent and
there is a power to fix the minimum qualifying marks, in keeping with the
law laid down by this Court in State of Haryana vs. Subash Chander
Marwaha and Others21, State of U.P. vs. Rafiquddin and Others22,
Municipal Corporation of Delhi  vs. Surender Singh32and Jharkhand
Public Service Commission  vs.  Manoj Kumar Gupta and another14,
we do not find any illegality or impropriety in fixation of cut off at 65-
60% vide order dated 07.01.2019.  The facts on record indicate that
even with this cut off the number of qualified candidates is more than
twice the number of vacancies available.
It must be accepted that after considering the nature and difficulty
level of examination, the number of candidates who appeared, the
concerned authorities have the requisite power to select a criteria which
may enable getting the best available teachers.  Such endeavour will
certainly be consistent with the objectives under the RTE Act.
65. In the circumstances, we affirm the view taken by the Division
Bench of the High Court and conclude that in the present case, the
fixation of cut off at 65-60%, even after the examination was over, cannot
be said to be impermissible.  In our considered view, the Government
was well within its rights to fix such cut off.
66. Consequently, the challenge at the instance of Shiksha Mitras
in all these matters, specifically referred to in Para 27 hereinabove, is
negated and
the appeals preferred by Shiksha Mitras are dismissed.
The appeal arising out of SLP(C) No.6846 of 2020 preferred by
the Association of Shiksha Mitras also prayed for absorption of Shiksha
Mitras.  Such a prayer cannot be granted in view of the pronouncement
of the decision of this Court in Anand Kumar Yadav2.  Said appeal is,
therefore, dismissed.
67. Though we have rejected the challenge on behalf of the Shiksha
Mitras and dismissed their appeals, we hope that in keeping with the
submissions made on behalf of the State, as recorded in paragraph 34
hereinabove, one more opportunity shall be afforded to Shiksha Mitras
to compete in the next selection.  We leave it to the discretion of the
State Government to consider the manner and the modalities in which
such opportunity can be availed of.  Needless to say, the matter in that
behalf is entirely left to the discretion of the State Government.
RAM SHARAN MAURYA v. STATE OF U.P.
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68. In the appeals preferred by ex-servicemen or persons with
disability, it was submitted that as against the vacancies earmarked for
these categories, very few candidates had applied and at 65-60% cut
off the number of qualified candidates was far lesser.  The cut off at 65-
60% having been held valid and justified, these appeals are also dismissed.
If there are less number of candidates against the vacancies for these
categories, such vacancies shall be subject to the Rules in that behalf.
If the vacancies cannot be carried forward, the same shall and must
enure to the advantage of the candidates in the present selection.
Similarly, Writ Petition (Civil)No.703 of 2020 and appeals arising
out of petitions preferred by B.Ed./B.T.C. candidates as well as Contempt
Petition (Civil) No. 418 of 2020 and all Intervention Applications also
stand disposed of in same terms.  No costs.
69. The State Government shall now be entitled to fill up all the
concerned posts in terms of the result declared on 12.05.2020 and in
accordance with law.
Kalpana K. Tripathy
Matters disposed of.