Case: Ram Sharan Maurya and others Vs. State of U.P. and others

3. The facts leading to the decision of this Court in Anand Kumar Yadav (2018) 13 SCC 560     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 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 month. The salient aspects of the scheme as summed up in the impugned judgment(2015 SCC OnLine All 3997 : ILR 2015 All 1108 [Anand Kumar Yadav vs. Union of India]) of the High Court from the said G.O. were: (Anand Kumar case(2015 SCC OnLine All 3997 : ILR 2015 All 1108 [Anand Kumar Yadav vs. Union of India]) , 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 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.… … …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)(2006) 4 SCC 1   : 2006 SCC (L&S) 753 as 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 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. (2013) 7 ADJ 1 (FB) with 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. 2013 SCC OnLine All 4097 : (2013) 6 ALJ 366   : 6 ADJ 310   (FB) 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) (2006) 4 SCC 1   : 2006 SCC (L&S) 753 . 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. Kesari (2010) 9 SCC 247   : (2010) 2 SCC (L&S) 826 and Amarendra Kumar Mohapatra v. State of Orissa (2014) 4 SCC 583   : (2014) 2 SCC (L&S) 54 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 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.… … …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. 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 Yadav (2018) 13 SCC 560 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; andc) in such recruitments, they would be entitled to:-i) suitable age relaxation; andii) some weightage for their experience, as may be decided by the authority concerned.5. After the decision in Anand Kumar Yadav (2018) 13 SCC 560   , 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 applicants shall be provided with opportunity to make application.4. In sequence of the order passed by the Honble 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:-On the basis of Educational factor5. 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 Rules(UP Basic Education (Teachers) Service Rules, 1981) . 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.(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 candidates 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 15.6.2. 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: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) Bachelors degree from a University.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 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) subrule (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 candidates 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:-[See Rule 14 (3)a]Quality points and weightage for selection of candidatesNotes 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.[See Rule 14 (3)(b)]Quality Points for Selection of candidatesNote – 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 conducted in 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:-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).… … …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.

Court's reasoning:
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.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.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 ATRE2019 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-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.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.38.4 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.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-2019.43. 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 ATRE2019.44. 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.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.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 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 Yadav (2018) 13 SCC 560 .   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 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 ATRE2018 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.In our view, the submission does not deserve acceptance. Sub question (c) is answered accordingly.This submission found favour with the Single Judge of the High Court who observed that the minimum qualifying marks must appear to be minimumThe 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 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.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 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 Yadav (2018) 13 SCC 560     were 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.C] The procedure for selection of ten posts of District and Sessions Judges (Grade-II) by direct recruitment was in issue in K. Manjusree (2008) 3 SCC 512 .   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 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 foursuch 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 India (1984) 2 SCC 141   , Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721     and Durgacharan Misra v. State of Orissa (1987) 4 SCC 646.  D] Relying on the decision in K. Manjusree (2008) 3 SCC 512  , a bench of two judges of this Court in Hemani Malhotra etc. vs. High Court of Delhi (2008) 7 SCC 11  , 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.If the case is so covered, in keeping with the Orders of reference in Tej Prakash Pathak (2013) 4 SCC 540  , Salam Samarjeet Singh (2016) 10 SCC 484     and Sivanandam (2018) 1 SCC 239   , 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 ATRE2018, 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, 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. Manjusree (2008) 3 SCC 512     and Hemani Malhotra (2008) 7 SCC 11     were 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. Manjusree (2008) 3 SCC 512   , 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 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. Manjusree (2008) 3 SCC 512     and followed in Hemani Malhotra (2008) 7 SCC 11     on one hand and the situation in the present case on the other.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 ATRE2018 must be applied. This argument, on the basis of homogeneity, has already been dealt with and rejected63. 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 Singh (2019) 8 SCC 67     and Jharkhand Public Service Commission vs. Manoj Kumar Gupta and another (2020) 1 SCALE 504 .   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 Commission 2020) 1 SCALE 504   , the exercise of power after the examination in paper III was over, was found to be correct and justified.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 Others (1974) 3 SCC 220   , State of U.P. vs. Rafiquddin and Others 1987 (Supp) SCC 401 ,   Municipal Corporation of Delhi vs. Surender Singh (2019) 8 SCC 67     and Jharkhand Public Service Commission vs. Manoj Kumar Gupta and another (2020) 1 SCALE 504  , 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