[2017] 6 S.C.R. 430

RAM KUMAR PATEL & ORS. ETC.

STATE OF U.P. & ORS. ETC.

(Civil Appeal No. 9546 of2017)

JULY25,2017

[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.)

Uttar Pradesh Basic Education (Teachers) Service Rules, 1981:

C Amendment of l 981 Rules - By Uttar Pradesh Basic Education (Teachers) Service (161h Amendment) Rules, 2012 - Propriety of - High Court quashed the 20 l 2 amendment on the ground that the amendment by the State was in conflict with the Notification dated l l'h February, 201 l issued by the Central

Government - On appeal, held: There is no conflict in the D Notification issued by the Central Government and the amendment to the Sta_te Rules since weightage to the Teachers Eligibility Test marks in the process of appointment of teachers, was not mandatory and was merely a guideline - Therefore, State Rule cannot be held to be void on the ground of repugnancy - Appeals allowed - E Constitution of India - Schedule VII, List III, Entry 25.

Shiv Kumar Pathak v. State of U.P. 2017 (7) JT 352 : 2017 (8) SCALE 202 - relied on.

Prabhakar Singh v. State of U.P. (2013) 1 ADJ 651 - approved.

Shiv Kumar Sharma v. State of U.P. (2013) 6 ADJ 310

- referred to.

Case Law Reference

2017 (7) JT 352 relied on Para2

(2013) 1 ADJ 651 approved Para7

(2013) 6 ADJ 310 referred to Para 7

RAM KUMAR PATEL & ORS.

v. STATE OF U.P. & ORS. 431

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9546 A of2017.

From the Judgment and Order dated 04.07.2016 of the High Court of Judicature at Allahabad in Writ-A No. 26952of2016

WITH

Civil Appeal Nos. 9547, 9548, 9549, 9551, 9550, 9706, 9710, 9554, 9715, 9716, 9718; 9719 and 9720 of2017

 Writ Petition (Civil) Nos. 900 and 107 of2016

Writ Petition (Civil) No. 167 of2015.

Ajay Kumar Mishra, Sr.Adv.(AAG, UP), R. S. Suri, K.T.S. Tulsi, Salman Khurshid, Dinesh Dwivedi, Colin Gonsalves, V. Shekhar, Nidesh Gupta, Mahabir Singh, Ms. Meenakshi Arora, Pallav Sisodia, R. Venkataramani, Ranji Thomas, Nagendra Rai, Rakesh Khanna,

Sr. Advs., R. K. Singh, Kumar Gaurav, B.N. Dubey, Ms. Neeraj Singh, Tom Joseph, Ms. PriyankaAggarwal, Rameshwar Prasad Goyal, Nishant D Singh, Krishnan Mishra, Yasharth Kant, V. K. Mishra, Ms. Radhika Dwivedi, Ms. Lubna Naaz, Ms. Kunika, Ms. Tehsina Wasim, Ms. Sanchita, Kundan Kumar Lal, Ms. Robin Khokhar, P. Dayal, Sajith P., Swarupama Chaturvedi, Pradeep Kumar Dwivedi, Ms. Madhu Bala, Pradeep Kr. Tiwari, Pyush Pandey, Dr. Vi nod Kumar Tewari, Dr.

B.K. Jauhari, Ms. Purnima Jauhari, Deepak Anand, Ms. Parul Shukla, Udayaditya Banerjee, Ms. Anannya Ghosh, E.C. Agrawala, Dheeraj Dubey, Mrs. Shally Bhasin, Manoj K. Mishra, Umesh Dubey, Ms. Nazish Fatima, Nachiketa Joshi, Sandeep Kumar Dwivedi, Vivek Tewari, Pankaj Singh, Anupam Dwivedi, Satyam Pandey, Amit Pawan, Dhananjay Garg, Pratham Kant, Nirmal Singh B. Sanjay Singh, Raj Kishor Chaudhary, Anuvrat Sharma, Ms. Alka Singh, M. R. Shamshad, Ms. Asha Gopalan Nair, Ms. Nivedita Nair, Pitamber Dutt Nautiyal, Sanoth Rebello, Rakesh Mishra, Yashraj Singh Bundela, Rakesh Mishra, Prashant Shukla, T.D. Bhaskar, Satyajeet Kumar, Dinesh Kr. Tiwari, Mrs. Rajmala Dohare, Ra1111esh Thakur, Swami Nath, Bishnu Prasad Tiwari, Sal'ttosh Kr. Tripathi, Amit Pawan, Abhishek Asmritanshu, Anand Nandan, Akshat Srivastav, G Gaurav Singh, Hassan Zubhair Waris, Akshay Sinha, Suryodaya Prakash Tiwari, Rahul Kumar Tripathi, Harish Pandey, Rakesh Mishra, Ankit Mishra, Sujeet Kumar, P. Gautam, Ms. Reena Patel, Mehul M.

Gupta, R. P.Gupta, Anupam Mishra, Shashank Mishra, Ms. Dwarka Sawale, Ms. Manju Jetley, Advs. for the appearing parties.

A The Judgment of the Court was delivered by

ADARSH KUMAR GOEL, J. I. Leave granted. This batch of appeals has arisen from the judgment dated I" December, 2016 of the High Court of Judicature at Allahabad in Special Appeal No.657 of 2015 1 and batch of the High Court ofJudicature at Allahabad. The High

. B Court has quashed the U.P. Basic Education (Teachers) Service (I 61h Amendment) Rules, 2012 on the ground that the said amendment was in conflict with the Notification dated 11 •h February, 2011 issued by the National Council of Teachers Education (NCTE).

2. It is not necessary to discuss the issue in detail as in the c impugned judgment the High Court has followed its earlier judgment in Shiv Kumar Pathak v. State of U.P.2 wherein the issue of validity of I 51h Amendment to the same rule was considered on the same ground.

The said issue has been gone into by this Court in a separate judgment in Civil Appeal Nos. 4347-4375 of 2014 entitled State of U.P. and ors. versus Shiv Kumar Pathak and Ors. The High Court in the impugned D judgment observed:

" ......... During the course of submissions advanced by the rival parties before us, we noted that the issues which were being canvassed were in fact identical and similar to those framed by the Supreme Court especially issues such as whether the guidelines framed by the NCTE were valid, could they form the sole criteria for filling vacancies and if held to be intra vires what interpretation is liable to be rendered to the word "weightage." in paragraph 9(b) of the Guidelines dated J J1h February,

20ll. Upon this being pointed out, the majority of the learned counsels for the parties urged us to proceed to dispose of this batch of matters so as to enable them to take their matters also to the Supreme Court and raise all contentions so that a quietus to the entire controversy is ultimately rendered. We accordingly proceeded to hear theparties on merits and consequently note the submissions advanced hereinafter. . . . . . . . ..

We find no ground which may warrant taking a different view. Following the dictum laid down in Shiv ------

12017(1)ADJ 141, 2017(1)ALJ 445

. H

'2013(1) ADJ 21

Kumar Sharma by the Full Bench as reiterated in Shiv A Kumar Pathak, we uphold the guidelines and hold that they are not liable to be struck down on the grounds urged before us . ........ .

As discussed in the earlier part of this judgment, the l61h Amendment Rules which came into force with effect from 41h December, 2012 did not remedy the situation. Rule 14(3) (a) which came to be introduced provided that the names of candidates would be arranged in accordance with quality points specified in Appendix-I. Appendix-I, as noted above, did not have any independent existence.

It was introduced only by 151h Amendment Rules. Once the Division Bench had struck down Rule 14(3) as introduced

by the J 51h Amendment Rules in Shiv Kumar Pathak, it cannot be said that the Appendix which came to be introduced by the said provisions continued to exist or remained on the statute book. The Appendix to the original D 1981 Rules as has been noted by us earlier had only a limited application. The J 61h Amendment Rules therefore were clearly otiose and unworkable.

We are constrained to hold so in light of the settled principle that when a statutory provision is struck down, the effect of such a judicial declaration is that it will be deemed to have never existed. The declaration in Shiv Kumar Pathak had the effect of erasing Rule 14(3) as introduced by the J 51h Amendment Rules along with the Appendix introduced therein which also stood completely erased and effaced.

We are constrained to record this conclusion in light of the undisputed factual position that the insertion of Rule 14(3) by the J 51h Amendment Rules

led to a situation where original Rule 14 was completely substituted and consequently ceased to exist.

The subsequent striking down of the amending rules will not G revive the provisions as they stood earlier either at the time of promulgation of the 12'h or the 15'h Amendment Rules. Presently therefore as the enactment exists there is no revival of the Appendix or Rule 14 as it stood prior to the promulgation of the 12'h Amendment Rules.

We are H

A therefore of the considered opinion that the l 61h Amendment Rules must necessarily fall. "

3. Accordingly, we may deal with the matter very briefly. The Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (1981 Rules) have been framed under Section 19 ofU.P. Basic Education Act, B 1972 (1972 Act).

Basic education in the State of Uttar Pradesh is regulated by the 1972 Act. Section 19 of the 1972 Act, provides for rules to determine the qualification for appointment as teachers and conditions of service of teachers of basic schools.

4. Rule 8 of the 1981 Rules prescribes the academic qualification c for appointment of a teacher. The qualification prescribed is the bachelor's degree together with the training qualification i.e. Basic Teacher's Certificate (BTC), Hindustani Teacher's Certificate, Junior Teachers' Certificate, Certificate ofTeaching or any other training course recognized by the Government as equivalent thereto. Rule 14 lays down the manner of appointment.

D 5.The 1981 Rules were amended in 2011 by the 12'h Amendment. Prior to the amendment, there was a provision for quality points under Rule 14( 4) as follows:

"(4) The names of candidates in the list prepared under E sub-rule (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have passed the said training course later and the candidates who .h(lve passed the training course in a - particular years shall be arranged in accordance with F the quality points specified in the appendix. "

6. The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act), enacted in the wake of Eighty Sixth Amendment to the Constitution in the year 2002, regulates elementary education and also deals with the qualification for appointment of teachers under Section G 23 of the RTE Act. NCTE constituted under the National Council for Teachers' Education Act, 1993 (NCTE Act) has been prescribed as an 'academic authority' by the Central Government to lay down the minimum qualification prescribed for appointment of a teacher. Accordingly, Notification dated 23n1 August, 2010 has been issued by the NCTE laying H down such qualification. Teacher Eligibility Test (TET) is the essential

qualification prescribed under the said Notification. However, the A guidelines/ Notification dated 11 'h February, 2011 provided that in the process of appointment of teachers, weightage has to be given to the marks obtained in TET examination.

7. As already noted, the State ofUttar Pradesh amended 1981 Rules by 12"' Amendment. This was done to comply with the Notification B dated 11 'h February, 2011. However, subsequently there was further amendment. Some of which were challenged before the High Court on the ground of being repugnant to the Central Rule/Notification dated 11 'h February, 2011. Conflicting views were taken in the judgments of the Allahabad High Court. In Prabhakar Singh versus State of U.P. 3 C it was held that weightage to the TET marks laid down in Notification dated l l'h February, 2011 was not mandatory. The said judgment was doubted and the matter was referred to a Full Bench. The Full Bench in Shiv Kumar Sharma versus State of U.P. 4 held a different view. It was held that by virtue of power of the Central Government on a subject in Concurrent List, in case ofrepugnancy, the State rule was required to D comply with the disposition in a central legislation. Same view was taken in Shiv Kumar Pathak (supra). Therein, Fifteenth Amendment to the Rules was held to be in conflict with the NCTE Notification dated

11"' February, 2011. On the same reasoning, the impugned judgment has struck down the Sixteenth Amendment.

8. We have heard learned counsel for the parties.

9. Learned counsel for the State ofU.P. submitted that there was no conflict in the notifications issued by the NCTE and the amendment in the State Rules. It was submitted that the jurisdiction of the NCTE under Section 23(1) was limited to laying down of qualification as a condition for appointment and the power conferred under the said section did not stipulate regulation of the selection process.

10. The NCTE has taken a stand that its notification suggesting weightage to TET marks was not mandatory. The original writ petitioners G however support the impugned judgment by submitting that since the issue is covered by Entry 25 List III of the Seventh Schedule to the Constitution, any standard laid down by the Central Government will bind the State and any conflicting decision of the State will be unconstitutional.

11. We find that there is no conflict in the notification issued by the Central Government and the amendment to the State Rules since the Notification dated 11 'h February, 2011 to the extent of suggesting weightage to TET marks can be held to be merely a guideline.

12. We have already dealt with the matter in Civil Appeal Nos.

B 4347-4375 of2014 entitled State of U.P. and ors. versus Shiv Kumar Pathak and Ors. and held that weightage to the TET marks was not mandatory and the State rules, not being in conflict with the norms laid down by the NCTE, may not be held to be void on the ground of repugnancy. c

13. Accordingly, we allow these appeals and set aside the impugned judgment. The State is at liberty to proceed with the matter in accordance with law.

Kalpana K. Tripathy Appeals allowed