[2017] 10 S.C.R. 428

STATE OF U.P. & ANR. ETC.

ANAND KUMAR YADAV & ORS. ETC.

(Civil Appeal No. 9529 of 2017 etc.)

JULY25, 2017

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

Uttar Pradesh Right of Children to Free and Comp11/sory Ed11cation Rules, 2011: c r.16-A [inserted by Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) R11/es, 2014} - Prescribing absorption of 'Shiksha Mitras' as Assistant Teachers in junior basic schools - By relaxing minimum educational qualifications for the post provided u/s. 23 of the Right of Children to Free and Compulsory Education Act, 2009 - Executive orders D issued for absorption of 1,24,000 'Shiksha Mitras' as Assistant Teachers - Constitutional validity of - Held: The fundamental right of right to education is right to quality education - To make the right to education meaningful, a qualified teacher has significant role - In view of clear mandate of law statutorily requiring minimum E qualification/or appointment of teachers, no appointment was permissible without such qualifications - Since 'Shiksha Mitras' were never appointed as teachers as per applicable qualifications and are not covered by relaxation order uls. 23(2) of 2009 Act, they could not be appointed as teachers in breach of s. 23(2) of 2009 Act-State is not competent to relax the qualijlcatioi1s - In the peculiar F facts of present case, 'Shiksha Mitras' are given opportunity to be considered for recruitment, !f they have acquired or now acquire requisite qualification - Right of Children to Free and Compulsory Education Act, 2009 - s.23.

G Disposing of the appeals and Writ Petitions, the Court

HELD: 1. Fundamental right to free and compulsory education is one of the most important rights. Right to education is right to quality education. To make the right to education meaningful, a qualified teacher undoubtedly has significant role.

It is not correct that even unqualified teachers ought to be allowed H to continue ignoring the legislative mandate or that this Court 428

STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & - 429

ORS. ETC.

should exercise jurisdiction under Article 142 to undo the said A mandate. Consideration for career of 1.78 lac -Shik.sha Mitra.s, over and above their legal right, cannot be at the cost of fundamental right of children to free quality education by duly qualified teachers in terms of legislative mandate. [Paras 16,17 and 19] [457-F; 459-A; 466-G-H]

A.shoka Kumar Thakur v. Union of India (2008) 6 SCC

1 : (2008] 4 SCR 1 - relied on.

Shiv Kumar Sharma vs. State of Uttar Pradesh 2013

(6) ADJ 310 (FB) - approved.

2. In view of clear mandate of law statutorily requiring C minimum qualification for appointment of teachers to be appointed after the date of Notification dated 23'd August, 2010, there is no doubt that no appointment was permissible without such qualifications. Appointments in the present case arc clearly after the said date. Relaxation provision could be invoked for a limited D period or in respect of persons already appointed in terms of applicable rules relating to qualifications. The Sltik.slta Mitra.s in the present case do not fall in the category of pre 23'd August, 2010 Notification whose appointment could be regularized.

Therefore, the Shiksha Mitra.s have not, under the law, right to be appointed or absorbed as teachers de /tors the prescribed E qualifications. [Paras 20, 21] [467-A; 476-D-E)

3. Appointment of Slrikslta 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 regularized as teachers. Regularization could only F be of mere irregularity. The exceptions carved out by this Court do not apply to the case of the present nature. [Para 22) [476-F- G] .

4. Thus, since the Shiksha Mitras were never appointed as teachers as per applicable qualifications and arc not covered G by relaxation order under Section 23(2) of the Right of Children _ to Free and Compulsory Education Act, 2009, 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. [Para 23]

(476-G-H] H

5. In the peculiar fact situation, Sllikslla Mitras 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 B some weightage for their experience as may be decided by the concerned authority. 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. [Para 26] [477-D-E]

State of Karnataka v. Uma Devi (2006) 4 SCC 1 : [2006] 3 SCR 953; Km Sandhya Singh v. State of Uttar Pradesh 2013 (7) ADJ 1 (FB); State of Karnataka v.

M.L. Kesari (2010) 9 SCC 247: (2010] 9 SCR 543; Amarendra Kumar Mahapatra v. State of Orissa (2014)

4 SCC 583 : [2014] 2 SCR 1031; Sant Ram Sharma v.

State of Rajasthan (1968] 1 SCR 111; Union Carbide

Corporation v. Union of India (1991) 4 SCC 584 : [1991] 1 Suppl. SCR 251; Official Liquidator v.

Dayanand (2008) 10 SCC 1 : (2008] 15 SCR 331; Amrit Lal Berry v. Collector of Central Excise, New Delhi

(1975) 4 SCC 714 : [1975] 2 SCR 960; Ramchander Sunda v. Union of India (1999) 9 SCC 105; Common

Cause, A Registered Society v. Union of India (1994) 5 SCC 557; Surayya Begum (MST) v. Mohd. Usman

(1991) 3 SCC 114 : [1991] 2 SCR 517; Olga Tellis v.

Bombay Municipal Corporation (1985) 3 SCC 545 : [1985] 2 Suppl. SCR 51; Union of India v. Arulmozhi Iniarasu (2011) 7 SCC 397 : [2011] 9 SCR 1; Grah Rakshak, Home Guards Welfare Association vs. State ofHimachal Pradesh (2015) 6 SCC 247 : [2015] 2 SCR 800; M.L. Kesari (2010) 9 SCC 247 : [2010] 9 SCR 543; Yogesh Kumar vs. Govt. of NCT, Delhi (2003) 3 SCC 548 : [2003] 2 SCR 66.2; K. Narayanan vs. State of Karnataka (1994) Suppl.(!) 44 : [1993] 2 Suppl.

SCR 105 - referred to.

Case Law Reference

[2006] 3 SCR 953 referred to Para 7

STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & . 431

ORS. ETC.

2013 (7) ADJ 1 (FB) referred to Para 10 A

2013 (6) ADJ 310 (FB) approved Para 11

(2010) 9 SCR 543 referred to Para 11

(2014] 2 SCR 1031 referred to Para 11

(1968(1 SCR 111 referred to Para 12 _

(1991] 1 Suppl. SCR 251 referred to Para 12 B

[2008] 15 SCR 331 _ referred to Para 12

[1975] 2 SCR 960 referred to Para 12

_ (1999). 9 sec 105 referred to Para 12

(1994) 5 sec 557 referred to Para 12 c

(1991] 2 SCR 517 referred to Para 12

(1985] 2 Suppl. SCR 51 referred to Para 12

(2011) 9 SCR:l referred to Para 12

[2015! 2 SCR 800 referred to Para 12

(2010) 9 SCR 543 referred to Para 12 D

(2003] 2 SCR 662 referred to Para 12 - '(1993) 2 Suppl. SCR 105 referred to Para 12

(2008] 4 SCR 1 relied on Para 16

CIVIL APPELLATE JtJRISDICTION : Civil Appeal No. 9529 E of2017.

From the Judgment and Order dated i 2 .09.2015 of the High Court of Judicature at Allahabad in Writ-A No. 34833 00014.

WITH F Civil Appeal Nos.9531-9542, 9544, 9545, 9557, 9576, 9571, 9574, 9575,9573,9572,9584,9581,9570,9569,9577,9583,9585,9580,9582, 9586-9587,9578;9605,9579,9588, 9636,9589,9696,9744,9697-9698, 9699, 9606, 9712-9714, 9717, 9721, 9722, 9723, 9724-9727, 9728-9731, 9733-9736,9756-9759,9737-9739,9740-9743,9745,9746-9747,9748, 9749,9751,9752,9753,9754,9755 of2017 G

Writ Petition (Civil) Nos. 75, 112, 109, 99, 104, 121, 102, 120, 124, 149, 188,158,176,215,206,244,276,287,605,826,915 of2016

Contempt Petition (Civil)Nos. 453, 781 of2016 in Civil Appeal Nos. 4347-4375 of2014 'H

A Contempt Petition (Civil) No. 928 of2017 in Writ Petition (Civil) No. 167 of2015

ANS Nadkami, ASG, Ajay Kumar Mishra, Sr.Adv.(AAG ofU.P.), Ms. V. Mohana, Pramod Swarup, Ram Jethmalani, Shekhar Naphade, Jagdccp Dhankar, Shanti Bhushan, Manoj Prasad, R.S. Suri, Ms. Parag B P. Tripathi, P. Chidambaram, Amit Sibal, Abhishek Manu Singhavi, K.T.S. Tulsi, Dushyant Dave, Salman Khurshid, Guru Charan, Guru Kishan Kumar, V. Shekhar, Harish N. Salve, P.N. Mishra, Sudhir Chandra Aggarwal, Mohan Parasaran, C. U. Singh, Ms. Mahalakshmi Pavani, J. N. Dubey, Ajit Kr. Sinha, Dhruv Mehta, Susheel Kumar Jain, Pallav Sisodia, Nidesh Gupta, Vikas Singh, Ranji Thoms, Haren P.Ravel, C Rupendra Singh Suri, Harin Raval, Krishanan Venugopal, Jaideep Gupta, Nagendra Rai, Vikash Pahawa, S. R. Singh, Sudhir Aggrawala, P. N. Mishra, Ms. MeenakshiArora, R. Vcnkataramani, Nidesh Gupta, V. K. Uniyal, Jayant Bhushan, S. N. Jha, Neeraj Kumar Jain, Subramonium Prasad, Ms. Vibha Datta Makhija, A. K. Panda, Vikas D Singh, S. P. Singh, Jayant Bhushan, Dhruv Mehta, P.N. Mishra, Colin

Gonsalves, Rakesh Khanna, Pradeep Kant, Sr. Advs., Ms. S. Janani, Anuvrat Sharma, AbhiShek Srivastava, Ms. Alka Sinha, lnderjeet Singh,

Abhishek Gupta, M.R. Shamshad, Dhirendra Singh Parmar, Ajay Awasthi, Chirag Madan, Rajesh Srivastava, Kartik Seth, Ms. Nalin Kohli, Gaurav Yadav, Alexander Iqbal, Avinash C. Srivastava, Ajay Kumar Srivastava, E Siddhartha Dave, Thomas P. Joseph, R. K. Singh, Ms. Neeraj Singh,

Kumar Gaurav, B. N. Dubey, Ms. Priyanka Agrawal, Ms. Maudak Jai Singh, Robin Khokhar, Tom Joseph, P. Dayal, Amit Kumar, Prabhoo Dayal Tiwari, Surya Kumar, Ajay Kumar Tiwari, Rameshwar Prasad Goyal, K. L. Janjani, Ms. Varsha Rana, Shovan Mishra, Ms. Cordelia F Slong, G. Balaji, Anurag Dubey, Ms. Meenaesh Dubey, Ms. Meenakshi

Praihar, Jayesh Gaurav, K. B. Upadhyay, S.N. Tripathi, E.P. Pandey, Varun Chauhan, S. R. Setia, Dinesh Kr. Tiwari, Mrs. Rajmala Dohare, Dheeraj, Narender Kumar Verma, Prakash Ranjan Nayak, Ms. Aishwarya Bhati, Susheel Tomar, Srisatya Mohanty, Balraj Dewan, Ms. Abha R. Sharma, Puneet V., Uviti GujvaL Divy Partap, Mrinmay G B., D. Partap, Dileep Kr. Dubey, Sanjay Kumar Tyagi, Manoj Kumar Mishra, Umcsh Dubey, Pradeep Kumar Dwivedi, S. K. Pathak, Naehiketa Joshi, Prashant Shukla, T. D. Bhaskar, Shiv Baboo, A. Kalam, Satyajeet Kumar, Girdhar Upadhyay, Hari Shankar Saran, Ms. Asha Upadhyay, Braham Singh, R. D. Upadhyay, Mohd. Shahid Hussain,

STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 433

ORS. ETC.

Mohan Lal Sharma, Mehul M.Gupta, R. P. Gupta, Ms. Charu Mathur, Mr. Ravindera Sethi, Haribansh M., Avnish Singh, Ujjawal Pandey, Ms. Shweta Yadav, Shivam Tripathi, Ankur Yadav, Yashpal Dhingra, B.K. Rai, J. K. Shukla, Prakash Kumar Singh, Prashant Shukla, Jayant Mehta, Anand Nandan, Amit Pawan, Abhishek Amritanshu, Gaurav Singh, Hassan Zubair Waris, Zubair Waris, Akshat Srivastava, Wills Mathews, Mukesh Kr.Verma, Neeraj Kr. Shanna, Vivek Sharma, Sudhanshu Tomar, Ginesh P., Rabin. Majumder, Shivpati B. Pandey, V. N. Raghupathy, B. K. Jauhari, Ms. Purnima Jauhari, Animesh Khanna, Deepak Anand, V. K. Mishra, Ms. Radhika Dwivedi,. Kundan Kumar Lal, K. K. Srivastava, Vijay Pal, Ms. Mamta Chandel, Kundan Pal, Avinash Kumar Jain, Amit Kumar, Swet Kumar, Arun Kumar, Avinash Kumar Jain, Ram Swarup Sharma, Dinesh Kr. Tiwary, Mrs. Rajmala Dohare, Rakesh Kumar, Sanjay Chakraborty, Sandeep Kr. Dwivedi, Umesh Dubey, Vivek Tiwari, Ms. Madhu Bala, D. N. Dubey, Dheeraj Kumar Dubey, Pradeep Kumar Tewari, S. Pal, Anupam Dwivedi,

Dr. Vinod Kumar Tewari, Vipin Kumar, K.K. Srivastava, Yashwant Yadav, D Vijay Pal, Anubhav, Shwet Kumar, Vijay Kumar, Dr. Kailash Chand, Ms. Rashmi Nandakumar, Mrigank Prabhakar, Aman Mishra, Shovan Mishra, Ms. Parul Shuk[a, Udayaditya Banerjee, E. C. Agrawala, Yashraj Singh Bundela, Anuvrat Sharma; Robin Khokhar, Swarupama Chaturvcdi, P. Dayal, Sajith. P, Dinesh K. Garg, Deepak Mishra, Abhishek Garg, Dhananjay Garg, M. M.Singh, Rahul Gupta, All Mushtaq Nawazish, Dinesh Kr.Tiwary, Chandan Kumar, Mrs .. Rajmala Dohare, Keshav Chaudhary, Prakash Ranjan Nayak, Sanjay Singh, Umang Shankar, Ajayinder Sangwan, Tarunesh Kumar, Sun ii Kr, Pandey, Rohan Sharma, Irfan Firidaus, Ms. Sweety Chatopadhyay, Pradeep Kumar, Anirudh Kr.Rai, Kundan Kumar Lal, Dr. Bheem Pratap Singh, Pramod K. Singh, J.R.D. Singh, Manish Khandelawal, R. Gopalakrsihnan, Rajiv Ranjan Dwivedi, Jitendra Tripathi, Anshuman Nayak, Vipul Agarwal, Vinay Navarc, Ram Anu Grah Singh, Rakcsh Tiwari, Dr. Rajeev Sharma, .

Suryerdaya Prakash Tiwari, Rahul Kumar Tripathi, R.K. Chaudhary, T.N. Saxena, H. C. Kharbanda, Vi pin Kumar Saxena, Anil Kumar, Bari Om Yadhuvansh, Dr. Monika Gusain, Dinesh Kumar Tiwary, Mrs. Rajmala Dohare, Ramesh Thakur, Raghwendra Ti wary, Mrs. Kirti Renu Mishra, Ms. Apurna U., Ms. K.Sarda Devi, Mrs. Shally Bhasin, Ms. Bina Gupta, Aftab Ali Khan, Md. Rashid Saeed, Ms. Ranjeeta Rohatgi, Fuzail Ahmad Ayyubi, Anj ani Kumar Mishra, Ms. Pragya Baghel,

A R. Gopalakrishnan, Praveen Swamp, Raj Kishor Choudhary, Hema!

Kiritkumar Sheth, Ajay Awasthi, Varun Chauhan, Ms. Asha Gopalan Nair, Ms. Nivedita Nair, Pitamber Dutt Nautiyal, NishitAgrawal, Shrey Kapoor, Sitesh N. Singh, Talha A. Rahman, Utkarsh Sharma, (for Mis Aura & Co.), Ms. Disha Yaish, Ms. Anisha Mathur, Sanjai Kumar B Pathak, Wasim A. Qadri, D. Gobardhan, Sarad Kr. Singhania, Gurmeet Singh Makker, A. Qadir, Abbula Kalam, Farrukh Rasheed, Mrigank Prabhakar, Susheel Tomar, Srisatya Mohanty, Balraj Dewan, R. D. Upadhaya, Shovan Mishra, Talha A. Rehman, Sunny Choudhary, Sudhandhu Palo, Gunjan Singh, Ms. Jyoti Mendiratta,. Mr. Rakesh Mishra, Mr. Ankit Mishra, Dwarka Sawale, Manohar Pratap, Ms. Priyanka Singh, C Ms. Manju Jetley, Pradeep Kumar Yadav, Ms. Jaya Yadav, Ashutosh Yadav, Alok Singh, Purvish Jitendra Malkan, Arnn Kumar Singh, Satya Mitra, San jay Kumar Yadav, Abhishek Sarkar, Y. K. Pandey, Partha Sil, Mukesh Verma, Pawan Kumar Shukla, Bikash Kumar Sinha, D. N. Dubey, Avnish Singh, Yash Pal Dhirigra, Sujeet Kumar, Ms. Reena D Patel, Akhilcsh Pimdey, Ms. Sheenu Chauhan, Ajay Kumar Singh,

Bijender Chaudhary, Hitesh Kumar Sharma, T.Vijay Pratap Singh, Shreekant N. Terdal, Anilcndra Pandey, Karunakar Mahalik, Yogesh Kumar .Sha1ma, Amit Kumar, Neeraj Sharma, Ali Mushtaq, Pranav Kumar, Dushyant Parashar, D .P. Singh Yadav, Varinder Kumar Sharma, Devesh Kumar Tripathi, Rohit Pandey, Dinesh Tiwari, Dinesh Kumar E T., Chandan Kumar, Ramesh Thakur, Rajmala Dohare, Swami Nath, Vinay Pandey, Sanjay Chakrabarty, Anupam Mishra, Ms. Pooja Singh, Ms. Renu Bhandari, Swyodaya Prakash Tiwari, Rahul Kumar Tripathi, Devesh Kumar Shukla, Harish Pandey, Manoj K. Mishra, Umesh Dubey, S.K.Pathak, Ashish Kumar Mishra, Yunus Malik, Anish Maheshwari, Prashant Chaudhary, Praveen Kumar Rai, Hema] Kirti Kumar Sheth, F D.P.Shukla, Devyanshu S., Jetendra Singh, Ms. Kalpana Sabharwal, Ms. Priyanka Singh, V. K. Kaushik, Ms. Manju Sharma Jetley, Mahendra Pratap Singh, K. Parameshwar, Prashant Shukla, Yashpal Dhingra, Anup Jain, Abhishek Baid, Anup Jain, Pulkit, Ms. Ranjeeta Rohatgi, Amit Pawan, Ms. Asha Gopalan Nair, Gyan Prakash Srivastava, G M. R. Shamshad, Santosh Kumar Tripathi, Ms. Kamakshi S. Mehlwal,

Swmy Choudhary, Ms. S. Ramamani, Deepak Anand, Pahlad Singh Sharma, RiteshAgrawal, Dr. Vi nod Kumar Tewari, Ms. Cham Mathur, Abhisth Kumar, Venkita Subramoniam T. R., Fuzail AhmadAyyubi, Ravi Prakash Mehrotra, San jay Kumar Tyagi, K. L. J anjani, E. C. Agrawala,

STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 435

ORS. ETC ..

Sibo Sankar Mishra, R. P. Wadhwani, Mohan Lal Shanna, Ms. Arti A Gupta, Kedar Nath Tripathy, Gaurav Sharma, Ms" K.Sarda Devi, Ms. Archana Pathak Dave, R. P. Wadhwani, Ms. Mridula Ray Bharadwaj, Gyan Prakash Srivastava, Arvind Minocha, Vikrant Singh Bais, Advs. for the appearing parties.

The Judgment of the Cowi was delivered by B

ADARSH KUMAR GOEL, J. l. Leave granted.

This batch of cases arises out of judgment of the Allahabad High Court dated 121h September, 2015 in Writ Appeal No. 34833 of 2015 1 and connected matters. The High Court allowed the batch of writ petitions and directed as follows: c

''(i) The amendment made by the State Government by its notification dated 30 May 2014 introducing the provision of Rule 16-A in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 by the Uttar Pradesh Right of Children to Free and Compulsory Education (First D Amendment) Rules 2014 is held to be arbitrary and ultra vires and is quashed and set aside;

(ii) The Uttar Pradesh Basic Education (Teachers) Service (Nineteenth Amendment) Rules 2014, insofar as they prescribe as a source of recruitment in Rule 5(2) the appointment of Shiksha Mitras; the academic qualifications for the recruitment of Shiksha Mitras in Rule 8(2}(c) and for the absorption of Shiksha Mitras as Assistant Teachers in junior basic schools under Rule 14(6) are set aside as being unconstitutional and ultra vires; and

(iii) All consequential executive orders of the State Government providing for the absorption of Shikha Mitrcis into the regular service of the State as Assistant Teachers shall stand quashed and set aside. "

2. Main question for consideration is whether it is permissible to appoint teachers for basic education who do not have the requisite G statutory qualifications?

FACTS:

3.1 Brief factual matrix may be noted. U.P. Basic Education Act,

1 (2015) !LR All II 08 : (2015) 8 ADJ 338 Anand Kumar Yadav vs. UOI H

A 1972 (the 1972, Act) was enacted to regulate and control basic education in the State of U.P. Section 19 of the 1972, Act authorizes the State Government to make rules to carry out the puIJJose of the Act. U.P.

Basic Education (Teachers) Service Rules, 1981 (1981 Rules) lay down sources of recruitment and qualification for appointment of teachers.

B 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 (RTE Act, 2009) was enacted by the Parliament for free and compulsory education to all children of the age of 6 to 14 years. Section 23 provides for qualification forappointment of C teachers. The NCTE was designated as authority under Section 23(1) to lay down the qualifications for appointment of teachers.

3.2 The NCTE issued notification dated 23"1 August, 2010 laying down such qualifications. With regard to teachers appointed prior to the said notification, it was stated that they were required to have D qualifications in terms of the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment ofTeachers in Schools) Regulations, 2001 (the 2001 Regulations), if the teachers were appointed on or after 3ro September, 2001 subject to their undergoing NCTE recognized six months special programme in certain situations.

Teachers appointed before 3rct September, 2001 were required to have E 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'hNovcmber, 20 I 0, the Central Government sought proposals for relaxation under Section 23 (2) of the RTE Act which was followed by the relaxation F Order dated I O'h September, 2012 for certa.in categories of persons which was to operate till 31" March, 2014. Vide letter of the NCTE dated 14'h January, 2011, the NCTE accepted the proposal of the State ofUttar 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.

3.3 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 ofU.P. also purported to frame rules called U.P. RTE Rules, 2011.

3.4 Reference may now be made to the scheme under which the A Shiksha Mitras were recruited. On 26'h May, 1999, a Government Order was issued by the State ofU.P. for engagement of Shiksha Mitras(Para- Teacher). The purported object of the Order was to provide universal. primary education and for maintenance of teachers student ratio in primary schools by hiring persons who were not duly qualified at lesser B cost as against the prescribed salary of a qualified teacher. The Government Order (G.0.) stated that upto the limit of 10,000, Shiksha Mitras could be contracted for academic session 1999-2000 at honourarium ofRs.1450 per month. The salient aspects of the scheme as summed up in the impugned judgment of the High Court from the said G.O. were:- C

"(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. wo.u/d 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 E the jurisdiction of the Nyay 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 F.

(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 Panchajiat Raj Officer and the District Basic Education Officer among other members to oversee implementation. " G

3.5. Further G.O.s_, were issued by the State ofU.P. including G.O. dated l" July, 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.

A 3.6 Even though vide Notification dated 23rd August, 2010, minimum statutory qualification was laid down by the 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 pai1icular State did not have adequate institutions for teachers B 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 upto 31" March, 2014.

3. 7 The State Government submitted a revised proposal dated 3rct January, 2011 envisaging giving of training to the shiksha Mitras which was accepted by the Central Government in terms of the letter dated l 4m January, 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.

3.8 Finally, the State of U.P. took following steps which were subject matter of challenge before the High Court:

A. Notification dated 30'h May, 2014 amending U.P. RTE Rules introducing Rule 16-A authorizing the State Government to relax minimum educational qualifications for appointment of Assistant Teachers in Junior Basic Schools.

B. Notification dated 30'h May, 2014, amending the l 981 Rules:- Rule 8 laid down revised qualifications for appointment of Assistant Master and Assistant Mistress ofJunior 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 G substantive posts without having the qualifications prescribed under

Section 23 of the RTE Act.

C. G.0. dated l 9'h June, 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 RTE Act, 2009. A time table was laid down for absorption of Shiksha A Mitras as Assistant Teachers.

D. The consequential executive orders were issued for absorption of

1,24,000 graduate Shiksha Mitras a11d 46,000 intermediate Shiksha Mitras.

4. From the above resume of facts, following points are clear:

(i) Shiksha Mitras were appointed on contractual basis to enable the rural youth to render community service on honorarium which was less than the pay scale of teachers.

(ii) They were not required to have the statutory qualifications for appointment of teachers.

(iii) The impugned notifications and the G.O. of the U.P.

Government to regularize and appoint Shiksha Mitras as teachers in regular pay scale do not conform to the statutory requirement of qualifications for appointment of teachers in terms ofNotification dated 23'd August, 2010.

(iv) Relaxation provisions under Section 23(2) could neither apply forever nor could apply to Shiksha Mitras who were not appointed as teachers in terms of statutory qualifications and on pay scale of teachers.

(v) Training undergone by them in terms of proposal of the State Government is not a substitute for the .statutory qualifications as per E mandate of Sec.!ion 23 of the RTE Act

(vi) Regularization was not on posts on which the Shiksha Mitras were appointed and were working but on the post of teachers on which neither they were initially appointed nor they were qualified.

The Statutory provisions and relevant documents

5. Significant provisions/ notifications to which reference is necessary are as follows :

(i) Section 23 of the RTE Act

 ''23. Qualifications for appointment and terms and conditions G 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) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under subsection (1) are not available in sufficient numbers, the

Central Government may, if it deems necessary, by not(fication, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification: Provided

that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under subsection (1), shall acquire such minimum qualifications within a period of five years. . ..

(ii) Notification dated 23'd August, 2010 under Section 23(1) of the RTE Act :

"Notification dated 2314 August. 2010

NATIONAL COUNCIL FOR TEACHER EDUCATION

NOTIFICATION

New Delhi, the 23rd August, 2010

F No. 61-03/2012010/NCTEl(N & S).-ln exercise of the powers conferred by Sub-section (I) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), and in pursuance of Notification No.

S.O. 750(E) : MANUIHRDT/001312010 dated 31st March, 2010 issited by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, the National Council for Teacher Education (NCTE) hereby lays down the following minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII in a school referred to in clause

(n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009, with effect from the date of this notiflcation:-

1. Minimum Qualifications:-

(i) CLASSES 1-V

(a) Senior Secondwy (or its equivalent) with at least 50%

marks and 2 year Diploma in Elementary Education (by A whatever name known)

Senior Secondary (or its equivalent) with at least 45% marks and 2 year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition B Norms and Procedure), Regulations 2002.

Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Eleme1itary Education (B.El.Ed.) C

Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Education (Special Education)

AND

(b) Pass in the Teacher Eligibility Text (TET), to be conducted by the appropriate Gover111nent i!I accordance with the Guidelines framed by the NCTE for the purpose.

(ii) Classes VJ-Vil!

(a) B.AIB.Sc. and 2 year Diploma in Elementary Education E (by whatever name known)

B.AIB.Sc. with at least 50% marks and 1 year Bachelor in Education (B.Ed.)

B.AIB.Sc. with at least 45% marks and 1 year Bachelor in Education (B.Ed.), in accordance with the NCTE

(Recognition Norms and Procedure) Regulations issued from

time to time in this regard.

Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor in Elementary Education (B.El.Ed.)

OR H

Senior Secondary (or its equivalent) with at least 50% marks and 4 year BAIR.Sc. Ed or B.A.Ed.IB.Sc. lid.

B.A./B.Sc. with at least 50% marks and 1 year B.Ed. (Special Education)

AND

(b) Pass in the Teacher Eligibility Text (TET), to be conducted by the appropriate Government in accordance with the Guidelinesframed by the NCTE for the purpose.

2. Diploma/Degree Course in Teacher Education:- For the purposes of this Notification, a diploma/degree course in teacher education recognized by the National Council for Teacher Education (NCTE) only shall be considered.

However, in case of Diploma in Education (Special Education) and B.Ed (Special Education), a course recognized by the Rehabilitation Council of India (RC!) only shall be considered.

3. Training to be undergone:- A person-(a) with B.AIB.Sc. with at least 50% marks and B.Ed. qualification shall also be eligible for appointment for class I to V upto I st January, 2012, provided he undergoes, after appointment, an NCTE recognized 6 nz'onth special programme in Elementary Education.

(b) with D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment, an NCTE recognized 6 month special programme in Elementary Education."

(iii) Extract from NCTE Regulations, 2001 laying down qualifications for recruitment of teachers:-"

III. Elementary

(a) Primary

(i) Senior Secondary School certificate of Intermediate or its equivalent; and

(ii) Diploma or certificate in basic teachers training of a duration of not less than two years. OR

Bachelor of Elementary Education A (B El Ed)

(b) Upper Primary (Middle school section)

(i) Senior Secondary School certificate or Intermediate or its equivalent; and B

(ii) Diploma or certificate in elementary teachers training of a duration of not less than two yem:~.

OR Bachelor of Elementary Education (B El Ed) OR Graduate with Bachelor of C Education (B Ed) or its equivalent . . ,

(iv) AppeJ!dix-9 laying down norms and standards for diploma in elementary education through open and distance learning:- - D

"Preamble.-(i) The elementary teacher education programme through Open and Distance Learning System is intended primarily for upgrading the professional competence of working teachers in the elementary schools (primary and upper primary/middle). It also envisages E bringing into its fold those teachers who have entered the profession without formal teacher training.

(ii) The NCTE accepts open and distance learning (ODL) system as a usefitl and viable mode for the training of teachers presently serving in the elementary schools. This F mode is useful for providing additional education support to the tachers and several other .educational functionaries working in the school system. "

(v) Letter of the Central Government 8'" November, 2010 for relaxation of norms fixed by NCTE : G

"3. In order to enable the Central Government to provide relaxalion under-sub-section (2) of section 23 to a State, it'is

1:-' ,, ) considered necessm:v to obtain relevant information from the State Government relating to demand of teachers and availability/ supply of qualified persons who are eligible for H

A appointment as a teacher. Accordingly, a State Government, which intends to seek relaxation under the said sub-section would be required to make a request to the Central Government by providing the following information:

(a) Quantitative information as per the format prescribed B in the Annexure to the Guideline.

(b) Nature of relaxation sought, separately for classes I to V and VI to Vll!, along with just{fication;

(c) The time period for which relawtion is sought;

(d) The manner in which and the time period within which the State Government would enable teachers, appointed with relaxed qualification, to acquire the prescribed qualification;

(e) The manner in which and the time period within which the State Government would enable existing teachers, not possessing the prescribed qualification, to acquire the prescribed qualification. Reference in this regard is invited to para 4 of the aforementioned Notification of the NCTE;

(f) Any other information the State Government may like to furnish in support of its request for seeking relaxation under section 23(2).

4. The condition of passing TETwill be relaxed by the Central Government.

5. The Central Government will examine the request of the State Government based on the proposal submitted by the State Government and additional information which the Central Government may request the State Government to furnish, take a decision to issue ll[otification under section 23(2) of the Act.

Onv after the Notification is issued would the State Government or a local authority or any aided/ unaided school in the State appoint teachers with the relaxed qualification in accordance with terms and condition mentioned in the said Notification."

(vi) Rule 5 of the 1981 Rules as amended on 30'h May, 2014 :

H "5. Sources of recruitment-The mode of recruitment to the

various categories of posts mentioned below shall be as A follows:

(a) (i) Mistresses of Nursery School

(ii} Assistant Masters and Assistant Mistresses of Junior Basic Schools

By direct recruitment as provided in rules 14 and 15;

By direct recruitment as provided B in rules 14 and 15; or By appointmeni of such Shiksha Mitras as are engaged as Shiksha Mitra and working as such on the date of commencement of thi-

Uttar Pradesh Basic Education (Teachers) (Nineteenth Amendment) Rules, 2014. *

(vii) Amendment to Ruic 8 of the 1981 Rules in terms of the Notification dated 30'h May, 2014 defining qualification for D eligibility for appointment of a teacher:

(ii) Assistant Master and Assistant Mistresses of Junior Basic Schools

(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 recognized by the G_overnment as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate (BTC}, two years BTC (Urdu), Vishisht BTC and teacher eligibility test passed, conducted by the Government or by the Government of India; ' (b) a Trainee Teacher who has completed successfully six months special training programme in elementary

education recognized by NCTE; H

(c) A Shiksha Mitra who possessed Bachelors degree from a University established by law in India or a degree recognized by the Government equivalent thereto and has completed successfully two years distant learning BTC

course or Basic Teacher's Certificate

(BTC), Basic Teacher's Certificate

(BTC) (Urdu) or Vashist

BTC conducted by the State Council of Educational Research and training (SCERT). (emphasis supplied)

(viii) Rule 14 (6)(a) of the 1981 Rules as amended on 30'h May, 2014 :

"14(6)(a) The Shiksha Mitra after obtaining the certificate of successji.11 completion of two years distant BTC course or Basic Teacher '.s Certificate (BTC), Basic Teachers Certificate (BTC) (Urdu) or Vishisht BTC conducted by State Council of Educational Research and Training (SCERT) shall be appointed as assistant teachers in junior basic schools against substantive post. To appoint the Shiksha Mitras as assistant teachers in junior basic schools, the appointing authority shall determine the number of vacancies including the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes and other categories under Rule 9."

(ix) Rule 16-A introduced into the U.P. RTE Rules, 2011 on 3011i May, 2014:

"16-A. Notwithstanding anything contained in rules 15 and 16, the State Government may, in order to implement the provisions of the Act. by order make provisions for relaxation

of minimum educational qualification for appointment of A such Shiksha Mitras as Assistant Teachers in Junior Basic Schools as are considered otherwise eligible. "

(x) Government Order dated 19111 June, 2014 :

"'2. In reference to the above subject I have been directed to say that the permission for appointment of Shiksha Mitra '.5.

B on the post of assistant teacher in primary schools by the

U.P. Basic Education Board is being given as follows:

I. Eligibilitythose Shiksha Mitra who have been working in Junior Basic Schools run by the U.P. Basic Education Board prior to the framing of U.P. Right of Children to C Free and Compulsory Education Rules 2011.

2. Agethe minimum age limit will be sixty years for the Shiksha Mitra s to be appointed on the post of Assitant Teacher.

3. Educational Qualificationthose Shiksha Mitras who have graduation degree through a University established under a law or its equivalent and also have passed B.TC. two years course through ODL System under State Council for Education, Research and Training, B. TC. (Urdu),

Special B.TC.

4. Selection Process-

A. Shiksha lvfitras who have passed B.TC. two years course through ODL System under State Council for Education, Research and Training, B.TC. (Urdu), Special B.TC. and F after obtaining its certificate they will be given substantive appointment on the post of assistant teacher in junior basic school run by the U.P. Basic Shiksha Parishad. In order to give them the substantive appointment on the post of assistant teacher in junior basic school run by the U.P.

Basic Shiksha Parishad, the appointing authorily will G determine the number of vacancy and shall also consider the grant of reservation to schedule caste, schedule tribe and other backward classes as per rule 9 of the U.P. Basic (Teacher) Service Rules, 1981.

B. The appointing authority shall prepare a list under Rule 9(2)(c) of those shikshamitras who are eligible for appointment:

C. The list which has been prepared for appointment on the post of assistant teacher for junior basic shoot shat/he arrange din the ascending order of the Date of Birth meaning a candidate who is elder in age will he placed higher.

If the date of birth of two Shiksha Mitras is common then their name shall be arranged in accordance with alphabetical order (English)

D. Shiksha Mitra will not be considered to he eligible for substantive appointment on the post of Assistant teacher in junior basic school unless his name is included in the abovementioned list.

E. A list prepared by the appointing authority under C/.(C) above shall be forwarded to a selection committee constituted under Rule 16 of the UP. basic education

(teachers) Service Rules, 1981 which shall be as follows:-

(A) Principal, District Institute of Chairman education and traininf!

(B) District basic education officer Member/ Secretary

(CJ Principal of Govt. Girls Inter Member

College situated at district headauarter

(D) An expert in Hindi, Urdu or other Member

languages appointed by the District Ma[!; istrate

Note:- If the selection committee constituted in the manner as stated above does not include a person belonging to Schedule caste, Schedule Tribe, OBC then the district magistrate shall appoint any officer of the district belonging to above caste as a member of the selection committee.

F The. selection committee shall after going through the A list prepared under clause (C) and after verifying the educational and training certificates of the Shiksha Mitras shall after its due approval forward the same to the appointing authority.

G The appointing authority shall issue the appointment order in accordance with Rule 20 of the U.P Basic Education (teachers) Service Rules, 1981 meaning all appointments made under these rules shall be given posting through written orders in accordance with U.P Basic Education (teacher) posting rules, 2008 (as amended).

(5) Time table for absorption of trained and eligible Shikshamitras on the post of assistance teacher in first phase.

1- To make available the list of Till 30June, 2014 candidates to District Basic Education Officer who have qualified two years ETC training through distance mode from District Institute of Education and Traininf! 2- Publication of the advertisement by Within one week of the District Basic Education officer the receipt of the for the counseling of Shiksha Mitras list. including the name, date of counsellinf! and place of counsellinf!. 3- Participation of the Shiksha Mitras From JO July, 2014 in the counselling with their to 22 July, 2014 educational/ training certificates and residence/ caste certificates. 4- Process of Approval of the Till 25'" July, 2014 selection list by Selection Committee 5- Process of issuance of appointment Till 31.07.2014 letter

3. Therefore it is requested to ens'Ure the appoilitinents of the Shiksha Mitras in primary schools run by U.P. Basic Education Board in accordance with the determined conditions and the time table."

B ,

SUPREME COURT REPORTS

[2017] IOS.C.R.

A Proceedings before the High Court

6. Batch of Writ Petitions were 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 regularizing the Shiksha Mitras against the said vacancies, praying as under:

"(a) A writ, order or direction in the nature of certiorari quashing the notifications dated 30.5.14 issued by the State Government notifying the UP. Right of Children to Free and Compulsory Education (First Amendment) Rules 2014 and UP. Baisic Shiksha Adhyapak Seva (19 1 " Sansodhan) Niyamawali 2014 (Annexure Nos.22A & 22B);

(b) A writ, order of direction in the nature of certiorari quashing the Government Orders dated 7.2.13 and 16.6.14 (Annexure Nos.21 & 23)

(c) A writ, order or direction of a suitable nature restraining the respondents from taking any action on the basis of the impugned notifications/ Government Orders;

(d) Any other writ, order or direction as this Hon 'ble Court may deem flt and proper in the circumstances of the case; and

(e) Award cost of the petition to he paid to the petitioners."

7. Case set out in the petition was that in view of Notification issued by the NCTE 23rd August, 20 I 0 laying down minimum qualification for appointment of Assistant Teacher for classes I to VIII, the decision of the U.P. Govenunent dated 19'h June, 2014 and amendments made by the U.P Government on 301h May, 2014 were in conflict with the Notification issued by the NCTE on 23'd August, 2010 and could not, thus, be justified. The 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 23rd August, 2010 notification and being not o 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 versus Uma De11i 2 as their appointment was de hors the 1981 Rules, having not been made after following the rules for appointment of teachers. It

H 'c2006J 4 sec 1

was also submitted that the nature of appointment of Shiksha Mitras A 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 de hors the rules.

Moreover, 46,000 Shiksha Mitras were not even graduates which was B a condition for approval by the NCTE in its letter dated 14'11 January,

2011. There could be no permanent exemption from TET and relaxation could only be for a limited period. Relaxation could be only for teachers already appointed and not for Shiksha Mitras. On the date of regular appointment in terms of the G.O., the Shiksha Mitras did not have the requisite statutory qualifications under Section 23 of the RTE Act.

8. The Writ Petitions were opposed by the State Government and the Shiksha Mitras by stating that the Scheme of the Shiksha Mitras was to meet a situation where sufficient trained teachers were not available while the constitutional mandate of imparting elementary education was to be fulfilled. The Shiksha Mitras were also teachers D and their appointments were made on recommendation of Village Education Committee which had a statutory status. They had undergone training as per Appendix-9 to the 2009 Regulation of the NCTE and having regard to the fact they worked for nearly 16 years, the State Government was justified in regularizing their services.

9. The Full Bench of the High Court considered the matter after framing following issues:

"(1) Whether the appointment of Shiksha Mitras in pursuance of the Government Order dated 26 May 1999

was of a statutory character; F

(2) Whether the State Government did have the power, by

Firtue of Section 13(1) of the Basic Education Act 1972 and having due regard to the provisions of Entry 2 5 of the Concurrent List to the Seventh Schedule, to issue the Government Order dated 26 May 1999; G

(3) Whether the Gowrnment Order dated 26 May 1999 can be regarded as a valid exercise of power under Article 162 of the Constitution, where the Service Rules of 1981 were silent in regard to the appointment o.f untrained teachers;

(4) Whether the Village Education Committees had a statutory character by virtue of Section 11 of the UP. Basic Education Act, 1972:

(5) Whether the appointment of Shiksha Mitras can be regarded as being made against substantive posts, since the B number was determined in the ratio of students to teachers in the proportion of 1:40;

(6) Whether the permission granted by NCTE on 14 January 2011 is a valid permission under Section l 6(3)(d) of the NCTE Act.:

(7) Whether the petitioners could be regarded as being persons aggrieved to challenge the permission granted by

NCTE;

(8) Whether the effort on the part of the State to grant training to untrained teachers can be regarded as a D reasonable effort and not ma/a fide;·

(9) Whether the appointment of Shiksha Mitras has been duly protected by the proviso to Section 12-A and could be validly brought into the regular cadre of Assistant Teachers by amendment of the Service Rules of 1981;

(10) Whether the power o/NCTE to lay down minimum qualifications could only be exercised by framing Regulations under Section 32 of the NCTE Act; and

(11) Would the effect of the insertion of Section 12-A suspend the effect and operation of the notification dated 23 August 2010."

IO. The findings of the High Court in briefare that having regard to the nature ofappointment of Shiksha Mitras, they could not be treated as teachers in terms of 1981 Rules. They also did not have the qualifications prescribed under the said Rules in as much as on the date G 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 H

Bench judgment in Km Sandhya Singh versus State of Uttar Pradesh3 A with regard to the nature of such appointments.

11. 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 . B Kumar Sharma versus State of Uttar Pradesh4 for post 23rd August, 2010 appointments. Nor pre 23rd August, 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 23rd August, 20 I 0.

The amendments to the State RTE Rules, 2011 and the Service Rules of C 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. Moreoyer, the regularization of Shiksha Mitras as teachers was not permissible in view of the law laid down in Uma Devi (supra). The appointment of Shikha Mitras was not as teachers nor it could be held to be merely irregular in absence D of their minimum qualifications for the post of teachers which was a distinguishing feature rendering the judginents State of Karnataka versus M.L. Kesari5 and Amarendra Kumar Mohapatra ver.rns State of Orissa6 inapplicable.

Rival Contentions :

12. We may now deal with the contentions raised before this Court in assailing the judgment of the High Court. Following are the broad contentions of the appellants, the State ofU .P. and the Shiha Mitras;

(i) Free and compulsory education to children of the age of 6 to 14 is a fundamental right under Article 2 lA which was earlier a directive principle F under Atticle 45 of the Constitution. For elementary education ofchildren of this age, extremely learned teachers were not required nor are affordable. This is the reason that as against the requirement of 3 lakhs, the State ofU.P. had about l lakh teachers. The Shiksha Mitras scheme was to achieve the object of education for all at less cost. The Shiksha 0 Mitras were duly 'selected and had undergone training at district training

3 2013 (7) ADJ 1 (FB)

4 2013 (6) ADJ 310 (FB) 'c2010) 9 sec 247 ,, (2014) 4 sec 583 H

institutes. Most of them were graduates and all of them were at least intermediate. It was submitted that NCTE vide letter dated 261h October, 2015 clarified to the State Government that TET was applicable to teachers appointed after 25'h August, 20 I 0. Those appointed earlier and are in continuous service did not require the TET. It was also submitted that vide Notification dated I31h April, 2017, the Central Government had extended the time for acquiring minimum qualification up to 31" March, 2019 exercising its power under Section 23(2) of the Act in respect of the State of Assam.

Reference was also made to the Right of Children to Free and Compulsory Education (Amendment) Bill, 2017 (Bill No. 75 of 2017) whereby a proviso was to be added to Section 23(2) permitting four years further time from the date of amendment for acquiring minimum qualification required under Section 23( I) of the Act.

(ii) Article 243G of the Constitution provides for punchayat :v functions as institution for self governance with respect to schemes of social justice in relation to matters listed in XI Schedule which includes D under Entry 17 Education, including primary and secondary schools.

Thus, the scheme of Shiksha Mitras was consistent with the said provision and enabled decentralization of powers.

(iii) If qualified persons are not available, government is free to frame policy in absence of legislation as held in Sant Ram Sharma E versus State of Rajasthan7•

(iv) The Notification dated 23r<l August, 2010 was repugnant to the regulations framed by the NCTE and the said regulations have to prevail in case ofrepugnancy.

(v) In any case power under Article 142 should be exercised by F this Court in the interest of justice in the light of observations in Union Carbide Corporation versus Union of India8•

(vi) The regularization cannot be held to be invalid in view oflong length of service of the Shiksha Mitras in view of the law laid down by this Court in M.L. Kesari9 andAmarendra Kumar Mahapatra (supra).

G Referring to abridged report of the "Development and Professional Competence of Para-Teachers" by the EdCII (India) Limited (A Government of India Enterprise), it was submitted that large scale

7 (1968) l SCR 11 I at I 19 , (1991) 4 sec 584 H '(2010) 9 sec 247

appointment of para teachers has led to lower pupil teacher ratio. Thus, A it was submitted that the impact of appointment of Shiksha Mitras has advanced the constitutional cause of elementary education for all.

(vii) It was next submitted that even th._ough regularization may not be permitted, the State can specify a source for fresh recruitment with relaxed educational qualification as held in Official Liquidator • B versus Daya11and10•

(viii) Order I Rule 8 C.P.C. having not been followed and all Shiksha Mitras having not been impleaded as parties before the High Court, the High.Court judgment should be held to be a nullity in view of law laid down in Amrit Lal Berry versus Collector of Central Excise, c New Delhi11, Ramchamler Sunda i•ersus Union of lndia 11 and

Common Cause, A Registered Society versus Union of India 13•

13. The above submissions have been opposed by the original writ petitioners. They support the impugned judgment. Their contentions are summarized as follows: D

i. While free and compulsory education for children of age of 6 to 14 years was a constitutional mandate and ad hoc arrangements may have been necessary in absence of qualified teachers being available, having trained and qualified teachers was equally important for maintaining quality of education. If the Parliament incorporates a minimum mandatory E statutory qualification and views lack of such qualification as being detrimental to the development and growth of young children and the quality of education, the same cannot be ignored. Moreover, the State had no legislative or other competence to dilute the educational standards laid down by the Parliament on a subject falling under Entry 25 of the Concurrent List.

ii. The High Court has clearly and rightly found that the impugned rules/ decisions of the State ofU.P.\vere in conflict with the mandate under Section 23(1) of the RTE Act. Even the training imparted to Shiksha Mitras did not render them eligible in terms of Section 23(1 ). Neither the relaxation provision under Section 23(2) (which was meant only for G duly appointed teachers) was applicable for appointing Shiksha Mitras

10 (2008) 1 o sec 1

II (l 975) 4 sec 714 para 28

12 (1999)9SCC 105 " (1994 l 5 sec 557 para 2 H

A as teachers nor the relaxation power was applicable to post 23"1 August,

2010 appointees (except for a limited period). Proposed amendment giving further time for acquiring minimum qualifications was applicable to otherwise validly appointed teachers only.

iii. Article 2430 or the concept of de-centralization of powers to the B Panchayats did in any manner permit violation ofa valid legislation on the subject.

iv. There was no basis whatsoever for holding the 23'd August, 2010 Notification to be rn any manner ultra vires.

v. Power under A11icle 142 of the Constitution should be exercised to advance justice and not to defeat the Parliamentary mandate for advancement of proper education.

vi. Alleged non-compliance of provisions of Order l Rule 8 CPC was inconsequential in the present case as the State and the Shiksha Mitras were duly represented. The whole issue has been considered by the D Full Bench of the High Court. Moreover, due publication of proceedings in this Court has been made and the view point of all the Shiksha Mitras has been placed before this Court. All the Shiksha Mitras had given undertaking in terms of their condition of appointment that they will not claim any right to employment. Reliance was placed on Surayya Begum E (MST) versus Mohd. Usman 14 and Olga Tellis versus Bombay Municipal Corporation 15•

vii. Regularization of Shiksha Mitras as teachers is contrary to the law laid down by this Court in Uma Devi (supra), Union of India versus Arulmozhi Iniarasu 16 and Grah Rakshak, Home Guards Welfare F Association versus State of Himachal Pradesh 17• Judgments in M.L.

Ke.rnri 18 and Amarendra Kumar Mahapatra (supra) arc not applicable. The Shiksha Mitras were not being regularized against the , posts of Shiksha Mitras (which was only an ad hoc arrangement) but against post of teachers for which mandatory statutory qualification was required. Even if a different source for recruitment was permissible, G the same could not be against the mandate of law with regard to the

"(1991) 3 sec 114 "(1985) 3 sec 545

16 (2011) 7 sec 397 para 23 "(2015) 6 sec 247 para 33 H "(2010) 9 sec 247

minimum statutory qualifications. Reliance was placed on Yogesh A Kumar versus Govt. of NCT, Delhi19 and K. Narayanan versus State of Karnataka10•

Questions before the Court :

14. Thus, questions which need to be gone into are:

i) Whether under the scheme of appointment of Shiksha Mitras, they could be treated as teachers appointed as per applicable qualifications?

ii) If Shiksha Mitras were not duly appointed teachers, could they be regularized as teachers?

iii) Whether qualification laid down under Section 23( 1) of the RTE Act C was applicable or stood relaxed in the case ofShiksha Mitras?

iv) Whether statutory qualifications in a Central Statute on a concurrent list subject could be relaxed by a State legislative/ administrative action?

Our consideration and reasons:

15. We have given serious thought to the rival submissions on the above questions and have also perused the findings of the High Court thereon. We have also perused the relevant statutory provisions, notifications, orders of Central Government and other authorities and

the decisions cited at the Bar. We have seriously considered the fact E that the matter involves 1.78 lakhs persons and the question whether benefit once given to them (even unlawfully) ought to be now withdrawn ifthe view taken by the High Court is found to be correct.

16. At the outset, we may note that fundamental right to free and compulsory education is one of the most important rights as without education one may never know his other rights. It goes without saying that right. to educatio.n is right to quality education. Concern for upsatisfactory quality of education has been expressed by this Court on several occasions. This Court in Ashoka Kumar Thakur v. Union of I11dia11 observed as under:

"422. In Unni Krishnan [1993} I SCC 645, Reddy, J. observed that the quality of education in government schools was extremely poor and that the schools were woejz1/ly

"(2003) 3 SCC 548 Para 5 '° ( 1994) Suppl.( I) Page 44 Para 6 11 (2008) 6 SCC I -Ashok Kumar Thakur v. Union oflndia

inadequate to the needs of the children. He noted that many countries spend 6% to 8% of gross domestic product on education. Our expenditure on education is just 4% of GDP

423. Though an improvement over past performance, the overall education picture leaves much to be desired. The bad news is really bad. Even where we have seen improvement, there is still failure. A survey by Pratham, an NGO, fleshes out the acute problems found in rural schools. (See ASER 2007-Rural Annual Status of Education Report for 2007, published on 16-1-2008.) The survey covered 16,000

villages. As Prat ham indicates, there are an estimated 140 million children in the age group of 6 to 14 years in primary schools. Of these 30 million cannot read, 40 million can recognise a few alphabets, 40 million can read some word~, and 30 million can read paragraphs. Over 55 million of these children will not complete four years of school, eventually adding to the illiterate population of India. The national literacy rate is 65%.

424. 24 districts with more than 50,000 out of school children means we have failed 24 times over. 71 districts in which there are 60 students per teacher is just as bad, if not worse.

According to Pratham (and in-line with the Minisf!J' of HRD s six-month review), the number of out of school children has hovered around 7,50,000. (p. 6) Moreover, it goes without saying that children need proper facilities. Today, just 59% of schools can boast of a usable toilet. (p. 49)

425. The quality of education is equally troubling. For Standards I and II, only 78.3% of students surveyed could recognise letters and read words or more in their own language. (p. 47) In 2006, it was even worse-only 73.1% could do so. It is disheartening to peruse the statistics for Standards Ill to V, where only 66.4% could read Standard I text or more in their own language in 2007. (p. 47) As Pratham stated at p. 7:

"What should be more worrying though, is the fact that in Class 2, only 9 per cent children can read the text appropriate to them, and 60 per cent cannot even recognise numbers between I 0 and 99. "

17. To make the right to education meaningful, a qualified teacher A undoubtedly has significant role. In this regard we may quote with approval the following observations dealing with the importance of a trained teacher in the Full Bench judgment of the High Court in Shiv Kumar Sharma( supra):

"55. • •.•.... . The training of a child, that is an integral part B of child development, is essential for his grooming, as a human mind, without proper training is like a horse without a bridle difficult to ride. Children in their cradle of life with the help of teachers can mould their lives for higher ambitions in their manhood. To assess and mould children with these ideals is the job of a skilled teacher and the art of C such skill is pedagogy. Teachers have to serve the larger interest of the society as they are building the future. Henry

Brook~ Adams said, "A teacher affects eterniv; he can never tell where his influence stops" and more appropriately Christa Mcauliffe said " I touch the fitture. I teach". This D requires the possession of virtues like sacrifice and honour which in turn brings respect to the status of a teacher and infuses confidence in the pupil.

56. Many children are victims of apathy and wrongly motived parental treatment. Their emotional and skilful assessment, and proper treatment, has to be handled within the clinic of an elementary school where the sole physician is none else than a trained teacher. A candidate possessing a mere educational or a training qualification without any genuine attribute may not necessari(v be a good teacher.

57. It is in this background that one may remember those who have contributed to this skilful art of pedagogy. In the modern world the great philosopher and Educationist Rousseau, followed by the Swiss Predecessor of his German Pupils, Pestalozzi, are worth remembering. They were followed by the famous Germans Herbart and Froebe!. The G English with Lancaster and Bell followed suit and in the modern world it would be improper to forget the great contributions of Maria Montessori.

58. We do not wish to pile up names but this is 011/y to emphasize that a great scientific contribution has been made H

to this skilfi1l art of pedagogy. If one goes through the work~ of these great people, one can understand that child evelopment and teaching children is no easy task and cannot be confined with the acquisition of a couple of degrees as a supplement to the complete attribute required of a teacher.

The narrow meaning of qualification therefore that was being pressed into service by Sri Rahul Agrawal cannot be countenanced in view of the vast ocean of understanding that is required of a skilful teacher.

59. In the instant case the skill of the teacher should be lined with such ingredients that it kindles the spark of a child and balances a group of mentally uneven children.

The duty of a good teacher is to bring the student into contact with the learning of fruitful elements that ensue an enduring significance in life, affirmative information of all modes of intellectual, systematical and practical activity that play a major part in the building of human mind and spirit. Their interplay is the exercise that has to he undertaken by a teacher. This exercise, particularly, in a class room of infants should be underlined with methods that are elastic enough to fit the varying needs of different types of children. The cultivation of mental training and discipline is the prime object of good teaching. We celebrate 5th of September each year as Teachers' Day to commemorate the birth of our late . President Dr. S. Radhakrishnan. He defined the good qualities of a teacher as follows:

A good teacher must know how to arouse the interest of the pupil in the field of study for which he is responsible,

he must himself be a master in the field and be in touch with the latest developments in his subject,

he must himself be a fellow traveler in the exciting pursuit of knowledge ..... .

61. Describing the role model of teachers, our Former President of India D1: A.P.J. Abdul Ka/am, narrated his experience in his teachers' day speech on 5th September, 2003 and said that a school must have the best of teachers

who have the abiliy to teach, love teaching and build moral A qualities.

62. These are the challenges of teaching which have been referred to in the guidelines dated 11th February, 2011. It is in order to ensure that the candidate is possessed of such attributes. The guidelines further provide that a candidate B will be presumed to have succeeded in the test ((he scores 60% or more. Some confessions have been given for reduction in the said-percentage in the c.ase of scheduled caste, scheduled tribes, and other bac/..""ward classes as well as differentv abled persons. c

63. The reason for this is that the art of teaching is designed to educate a child. Education is not mere acquisition of qualifications but is an overall development of a child to ensure growth and development. It is the awakening of the inner self and faculty of the child to the ways of the world.

The teacher therefore should be possessed such qualities D that he satisfies the curiosity of a child that enables him not only to read but to distinguish what is worth reading. The job of a teacher is not to fill the time-table with dull

unintelligible tasks. This violates common sense and creativity brutally. Teaching and training cannot be effected in the E absence of knowledge about the mind which is to receive them.

64. It is the systematic and purposeful construction of a personality, so that it leaves an everlasting effect on the mind. The job of a teacher is to get across the confidence in p a pupil, that there were good reasons for everything the teacher did. He has to be transparent and he cannot leave a pupil to guess that there are any hidden answers. A good teacher would like the pupil to lead the way. The teacher would follow and let the pupil know that his efforts would be recognised. This confidence would help the child to G develop a strength in himself to cope up with his own world by observing and solving problems. The art of teaching should not be confined only to oral transmissions because what one hears one can forget. However, what one sees,

one remembers but what one. does he understands. This is what should teaching be comprised of The teacher should therefore be in a position to infuse into a child such attributes that he or she acquires the ability to assume responsibility for himse!fiherself. A psychological independence tht

enables him/her to decide at the same time and differentiate right from wrong. This capacity of a child which lies concealed in him has to be discovered in a way that the child finds this world an interesting place to live in. For this good teaching may be I/4th preparation and 3/4th performance.

65. A teacher is like a professional as said by Danny Hillis,

"A layman knows he has to kick it; and an amateur knows where to kick it; a professional knows how hard." This quality should be possessed professionally by a teacher as the object of teaching a child is to enable him to get alone without a teacher.

66. The skill of such a performance has to be assessed because teaching is a great art to educate youth to enable him to find out and discover his own peculiar aptitudes or create where none exists. A teacher has to create inclinations in the child which may serve as substitutes. The level of inspiration that has to be infused in a child should be such that he is able to make a mark in life as a complete human being. One should remember that "millions see the apple fall, but Newton was the one to ask why?" The job of a teacher at the primary level is to generate this element of curiosity in a child.

67. For this teachers have to be attributed with qualities that they are able to handle the weak and the nervous, the . mediocre and intelligent with measured skill. This expertise is a onerous task and is a substantial part of pedagogy. To teach a child to become self sufficient is the art which has lo be developed with caution so as not to destroy the fragile confidence by using harsh methods. The teacher eligibility test appears to be designed for this purpose.

68. It is to be remembered that teachers are to impart education to those souls who are between the period of

innocence of childhood and the folly of youth. It is this A aspect a/pedagogy to educate a child to lead life that attains importance.

69. The art of dealing with children also involves knowing what not to say, and, on the other hand patiently answering the unpredictable questions of an inq1; isitive child. A teacher B should not give answers to children to remember only, but. he should be able to give them problems to solve. It is then that the potentiality of the human race is better put to use

"because a child is not a vase to be jilted but a fire to be lit." (Francois Rabelais) . A Chinese Proverb goes a long way to say "give a man a fish and you feed him for a day.

C Teach a man to fish and you feed him for a lifetime:" Teaching is infusing of ideas instead of stuffing the brain with facts. William Arthur Ward a famous educationist said that The mediocre teacher tells, a Good teacher explains, a Superior teacher demonstrates but the great teacher D inspires.

70. Children come from different backgrounds often being victimised by unwise and wrongly motived parental treatment.

The teacher has to be more careful for he js enjoined with the duty of child development. This therefore is the E

backgroundin which the teachers role attains immense significance. It is for such reasons that the Union and the State appear to have come up with the necessity of a teacher eligibilitcv test. ·

71. The importance of teaching and a teacher '.s selection should be to find out whether a candidate fulfils and is possessed of such attributes, that is capable of bringing out

the best to ensure child development. "The art of teaching is

the art of assisting discovery (Mark Van Doran)". This compulsory attribute is therefore to be assessed by the State while judging the capability of a teacher and which therefore G is an essential qualification and not only a minimum qualification. The essential nature of this test therefore leaves no room for doubt that mere possession of educational qualification and a teachers training course is not su.f!icient to assess the capacity of a teacher.

72. Sir Winston Churchill while assessing the role of a teacher observed that the Head Masters of elementary schools have powers at their disposal with which even Prime Ministers have never been vested with. The reason is that the school master has to reckon not only with his pupils human tendency to run, but also with the unwisdom of parents in their earZv dealings with early tendenGy; elimination of wrong doing, not by plainly repressive methods is also one of the arts that has to be possessed by a skiljiil teacher.

73. All this goes to fi1/fil the objectives with which Article 45 of the Constitution of India was incorpqrated under the United'Nations declaration which says that mankind owes to the child the best it has to give. An infant who does not know how to express himself, enters in an elemenfary school where he has to be taught his initial alphas and betas. The pronunciation, sentence-forming, elementary grammar and understanding of his first alphabets have to be installed in his mind with expertise. It is for this reason that the curriculum of the TET includes proficiency in the language oft he medium of instruction, an optional language for a better understanding with the student, mathematics to assess the investigative strength of the mind and finally environmental studies to gauge the overall awareness of human life and nature. This has to be coupled with moral education and discipline and this entire combination in one pe1j'ormance is the skill of a teacher. He has to handle the weak and the nervous, the mediocre and intelligent, with an adequate measured skill for which a basic attribute with intelligence is required to be possessed by a teacher. A teacher cannot employ methods like knocking of a child because such methods do not always turn a timid hoy into a courageous one nor does it turn a spoilt brat into an angel. Nonetheless it is usejiil to remember Bishop Fulton J Sheen who said

"Every child should have an occasional pat on the back, as long as it is applied low enough and hard enough". For teachers and guardians the proverb "Give a child enough rope, and you will trip" is also a cautionary note. The acquisition of such expertise is what is desired to be assessed and that is what the teacher eligibility test is designed for. It

is only to assess these qualities that would qualify a teacher A for being appointed as such and therefore the teacher eligibility test is not a mere eligibility criteria but a qualification as prescribed in addition to the academic and iraining qualifications.

74. It would be apt to quote Charles Dickens in his famous B book" "Hard Times" where the quality of a teacher has been expressed from another angle as follows:

"What l want is facts. Teach these boys and girls nothing but facts. Facts alone are wanted in life. Plant nothing else, and root out eve1ything else. " C

75. The role of teaching is therefore of a mediator of learning, a parent substitute, a controller of students' behaviour, an agent of social change and finaly a judge of achievement.

The teacher who enters a sch9ol imparting elementary education has to act like a group leader who can remove D the hindrances of doubts in the mind of an infant and generate cieative development. Above all he has to in still in the mind of a youngster all virtues of courage and honesty as this part of education is a vital portion of child development. It is in the early years that the importance of education has to be preached so as 10 achieve what a former E U.S. President G(l/.field said "Next in importance to freedom and justice is education without which the other two cannot be entertained."

18. In the iinpugnedjudgment the Full Bench of the High Court highlighted the importance of the prescribed TET qualification as follows:

"93. The object and purpose of introducing the TET is to ensure that a teacher who embarks upon instmcting students o_f'primary and upper prim(l/y classes is duly equipped to fulfill the needs of the students, understands the relevance

of education for a child at that stage and can contribute to G the well rounded development of the child. Teaching a child is not merely a matter of providing iitformation. Deeply embedded in the process of imparting education is sensitivity towards the psyche of the child, the ability to understand the concerns of a young student of that age, the motivations H

which encourage learning and the pitfalls which have to be avoided. The emphasis on clearing the TET is to ensure the maintenance of quality in imparting primary education. These requirements which have been laid down by NCTE f11lfill an important public purpose by ensuring a complement of trained teachers who contribute to the learning process of children and enhance their growth and development. These requirements should not be viewed merely as norms governing the relationship of a teacher with the contract of employment.

These norms are intended to fulfill and protect the needs of those who are taught, namely, young children. India can ignore the concerns of its children only at the cost of a grave peril to the future of our society. The effort of the State

Government to by-pass well considered norms which are laid down by NCTE mui1t be disapproved by the Court. We have done so 011 the ground that the State Government lach the legislative power and competence to do so. Equally, jimdamental is the concern that a relaxation of the norms prescribed by an expert body will result in grave detriment to the developmen( and growth of our young children and the provision of quality education to them. Providing quality education is crucial for students belonging to every strata of society. Education which is provided in schools conducted by the Basic Education Board should not be allowed to degenerate into education of poor quality which it will, if the norms which are prescribed by an expert body under legislation enacted by Parliament in the national interest are allowed to be ignored by the State Government on the basis ofparochial or populist perceptions. Such an attempt is ultra vires the statutory powers of the State and is arbitrary and violative of Article 14 of the Constitution. "

19. We are in agreement with the above observations. We are unable to agree that even unqualified teachers ought to be allowed to G continue ignoring the legislative mandate or that we should exercise our jurisdiction under Article 142 to undo the said mandate. Consideration for career of 1.78 lac Shiksha Mitras, over and above their legal right, cannot be at the cost of fundamental right of children to free quality education by duly qualified teachers in terms oflegislative mandate.

20. We may now further examine the question whether the Shiksha A Mitras have, under the Jaw, right to be appointed or absorbed as teachers de hors the prescribed qualifications. In this regard, the finding in the impugned judgment is as follows:

B "58. The essential characteristics of the Shiksha Mitra Scheme envisaged, fif:5t/y, that each appointment was made on a contractual basis for a stipulated term of eleven months, renewable subject to satisfactory pe1formance and on an honorarium. Second(v, the Scheme, as notified, contemplated that the engagement of Shiksha Mitras was not in the regular service of the State, as indeed it could not have been, having due regard to the provisions of the Service Rules of 1981 C which held the field in regard to the constitution of a cadre of teachers imparting basic education and regularly engaged for that purpose. Thirdly, each of the persons appointed as Shiksha Mitras was placed on notice of the fact that this was a Scheme envisaging serviG'e by the D unemployed youth for the benefit of the community against the payment of an honorarium. Shiksha Mitras were not entitled to the payment of a salary in the regular pay scale but would only receive a Mandeya (honorarium). The application form which eve1y prospective candidate was required to Jill up in terms of the Government Order dated 1 July 2001, envisaged a statement of acceptance that the candidate would be bound by the terms and conditions governing the Scheme. The consent form required to be filled

F in by every candidate envisaged that he/she would not be treated as a regular employee of the State Government and would only be entitled to the payment of honorarium; Moreover, Clause 3 of Form-II appended to the Government Order stipulated that the training which was imparted to a candidate was only to enable him or her to render community service in the capacity of a Shiksha Mitra. Fourthly, appointments as Shiksha Mitras were not against sanciioned G posts as determined by the Board of Basic Education with the previous approval of the State Government under Rule 4 of the Service Rules of 1981. Fifthly, the manner of making appointments and the procedure for recruitment was not in

conformity with the provisions contained in Rules 14, 15, 16 and 17 of the Service Rules of 1981. instead, what the Shiksha Mitra Scheme envisaged, was that appointments should be made by Village Education Committees at the village level. At the district level, there was a Committee chaired by the District Collector and consisting, inter alia, of the District Panchayat Raj Officer and the Basic Education Officer. The District Level Committee was constituted to oversee the implementation of the Scheme in the district. Sixthly, the qualification which was prescribed for appointment as a Shiksha Mitra under the Government

Order dated 26 May 1999 was the possessing of an intermediate qualification. Prior thereto, an amendment was made in the Service Rules on 9 July 1998 by which Rule 8 was amended to prescribe the holding of a graduate degree for appointment as a regular teacher. Under the Service Rules of 1981, a regular teacher was required to also possess a basic teacher's certificate. This was not a requirement for

Shikha Mitras under the Govemment Order. Shiksha Mitras did not fulfill the qualifications for a regular teacher under the Service Rules of 1981. Seventhly, the manner in which reservations were to be worked out under the Rules of 1981 was evidently not the manner in which reservations in the recniitment of Shiksha Mitras would operate. At the highest, what has been urged before the Court by the Additional Advocate General and supporting counsel is that the selection of Shiksha Mitras at the village level envisaged that a Shiksha Mitra to be appointed should belong to the same categ01:v as the Gram Pradhan, thereby resulting in a rough and ready adoption of the norm of reservation. This is certainv not the manner in which the policy of reservation as envisaged by the State is implemented in the case of regularly selected candidates, including by the application of the roster and implementing horizontal and vertical reservations. Rule 9, it must be noted, envisages reservation not only for the Scheduled Castes, Scheduled Tribes and Other Backward Classes, but other categories also including the dependents of freedom fighters and ex-servicemen.

Moreover, the orders of the State Government also

STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV &

ORS. ETC. [ADARSH KUMAR GOEL, J.]

contemplate horizontal reservation across various classes.

These aspects leave no manner of doubt that the engagement of Shiksha Mitras was envisaged under an administrative scheme by the State Government on a contractual basis with a specified purpose and object and de hors the governing provisions of the applicable Service Rules of 1981 . ........ .

62. The submission which has been urged on behalf of the State and by some of the supporting counsel, is that Section

11 of the UP Basic Education Act, 1972 contemplates the constitution of Village Education Committees. This does not render the Shiksha Mitra Scheme a statuto1y scheme. The function of Village Education Committees as defined in sub- C section (2) of Section 11 is to establish, administe1; control and manage basic schools in the Panchayat area and to discharge such other fanctions pertaining to basic education as may be entrusted by the State Government. This, in our opinion, does not render the Scheme of appointing Shiksha D Mitras of a statutory nature or character. If such a Scheme . was to be intended to have a statutory flavour, there could have been no escape from the requirement of complying with the norms which govern the regular teachers of basic schools as prescribed in the Service Rules of 1981. On the contr(ll:V, compliance with the Service Rules of 1981 was sought to be obviated by engaging barefoot volunteers across the State on a contractual basis for which an administrative scheme was envisaged under the Government Order dated 26 May

1999. Similarly, the power of the State Government to issue directions to the Board of Basic Education in Section 13 was not the power which the State Government wielded while issuing diverse Government Orders that govern the Shiksha Mitra Scheme. The power to issue directions under Section 13 could not have been exercised contrary to the provisions

of the Service Rules of 1981 which were made by the State Government in exercise of the subordinate law-making G power. Even if it is held that Village Education Committees were entrusted with the duty of selecting Shiksha Mitras in pursuance of the provisions of Section 11 (2)(g), the fact remains that appointments of Shiksha Mitras were independent of and not suject to the discipline of the H

provisions of the Service Rules of 1981. Neither was the engagement against sanctioned posts nor were the provisions for recruitment envisaged in the Service Rules of 1981 .followed. They were not qualified candidates. Understanding

the true nature and purpose of Shiksha Mitras lies at the heart of the dispute in the present case. .. .

70. Evidenty, Shiksha Mitras could not either seek the benefit of clause (a) or clause (c) of Para 4 of the notification dated 23 August 2010. They were not teachers appointed in accordance with the Regulations of 3 September 2001 since, admittedly they did not possess the ETC qualification.

Moreover. Shiksha Mitras did not have the benefit of clause

(c) of Para 3 since any appointment made prior to 3 September 2001 had to he in accordance with the prevalent recruitment rules. The engagements of Shiksha Mitras were de hors the recruitment rules and were not in accordance with the Service Rules of 1981 which apply to appointments of basic teachers in the State of Uttar Pradesh. The proviso to subsection (2) of Section 23 governs persons who are teachers and who, at the commencement of the RTE Act of 2009, did not possess the minimum qualifications prescribed under sub-section (1). They were given a period of five years to acquire the minimum qualifications. The proviso would govern persons who were recruited as teachers in the State of Uttar Pradesh under the Act and the Service Rules of 1981 and can have no application to Shiksha Mitras . ......

75. The State Government moved the Central Government for the grant of permission on 24 December 2010 in which it disclosed the functioning of 1.78 lac Shiksha Mitras of whom 1,24,000 were stated to be graduates. The State Government indicated in its letter that these persons were engaged on a contract basis and 'with a stipulation of a minimum qualification of intermediate though, under the service rules, the prescribed qualification was a graduate degree. Subsequently, on 3 January 2011, a revised proposal was submitted which envisaged training being imparted to 1,24,000 graduate Shiksha Mitras out of a total complement of 1,70,000. The permission which was granted by NCTE 011

14 January 2011 was specifically in the context of the A request made on 3 January 2011 for granting permission for the training of 1,24,000 untrained graduate Shiksha

Mitras. Eventually, what seems to have transpired was that the State Government issued a Government Order on 14 August 2012 so as to provide for training to those Shiksha B Mitras who had acquired graduate degrees by 25 July 2012.

However, it is not in dispute before this Court that training. was imparted not only to graduate Shik.sha Mitras who were within the terms of the permission granted by NCTE by its letter dated 14 Jpnuary 2011, but also to 46,000 Shiksha Mitras holding the intermediate qualification which was not C within the purview of the permission which was granted by NCTE on 14 January 2011. NCTE had not permitted the State of U.P to train the non-graduate Shiksha Mitras through the open and distance learning methodology. NCTE, we must note, has stated in its counter-affidavit }/led in these D proceedings, that it was not specifically apprised of the nature of the engagement of Shiksha Mitras by the State.

The counter-affidavit which has been flied by NCTE, insofar as is material, reads as follows: "That the rationale for including the T.E. r as minimum qualification for a person to be eligible for appointment as a teacher is that it would E bring national standards and benchmark to quality teaching before the recruitment process is completed for appointing a candidate as a trained teacher. That it is pertinent to mention here that since the State Authorities have not clearly sent the report that initial engagement of Shiksha Mitras F was for a period of 11 months, as such the nomenclature of these Shiksha Mitras as untrained teacher was not in consonance with the provisions so issued after the Right of Children to Free and Compulsory Education Act, 2009 came into effect. " The State has disputed this.

80. What has happened in the State of Uttar Pradesh is that G the State Government, in a clear violation of the mandate of Section 23(2) which vests the power to relax the minimum qualifications in the Central Government, has arrogated to itself a power which it lacks, to grant exemption from the mandatory qualifications which are laid down by NCTE in H


[2017] IOS.C.R.

their application to Shikvha Mitras in the State. The State Government has, in our view, acted in clear violation of its statutory powers. Parliament has legislated to provide, in no uncertain terms, that any relaxation of the minimum educational qualifications can onZv be made by the Central Government. However, Rule I 6-A which has been introduced by the State Government by a notification dated 30 May 2014 purports to provide a non-obstante provision which will operate notwithstanding anything contained in Rules I 5 and 16 of the State Rules. Rules I 5 and I 6 of the State Rules were originalZv formulated in a manner consistent with the provisions of Section 23(2) and the provisions contained in Rules I 7 and 18 of the Central Rules of 20 JO. However, as a result of the introduction of Rule 16-A, the State Government has assumed to itself the power to make provisions for relaxing the mii1imum educational qualifications for appointment of Shiksha Mitras as Assistant Teachers in junior basic schools "as are considered othenvise eligible and in order to implement the provisions of the Act". There can be no manner of doubt that far from implementing the provisions of the Act, the State Government by its amendment of the subordinate legislation has purported to negate the very object and purpose of the RTE Act of 2009. .. . ... . ..

86. The contention that the experience gained by Shiksha Mitras over the course of their engagement should obviate the need of obtaining the essential qualification cannot be accepted for more than one reason. Firstly, the essential qualification must .be held by the person on the date of entry into the service. If the entry be preceded by a selection process it is liable to be tested with reference to the date of advertisement. Viewed from any angle, the Shiksha Mitras did not possess the requisite qualification on either of the relevant cut off dates. Secondly, the experience that may have been gained by a person has never been construed as a subsfitute for an essential qualification that is statutorily prescribed. Acceptance of this contention would have grave ramifications, fall foul of settled precedent on the suject and be against the basic tenets of Article I 6 and principles governing public employment . ................. .

94. The issue before the Court Ls in regard to the legality of A the absorption. Articles 14 and 16 of the Constitution provide for equality" in matters of public employment. The limit on the power of the State to grant regularization was considered by a Constitution Bench of the Supreme Court in a judgment in Secretary of State of Karnataka v. Umadevi (2006) 4 SCC B I. Emphasizing the principle of the Yule of equality' in public employment, the Constitution Bench Court held as follows:

" ... Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order C upholding a violation of Article 14 or in ordering the overlooking of the need to comply iith the requirements of Article 14 read with Article 16 of the Constitution.

Therefore, consistent with the scheme for public employment, this Court while laying down the law, has D necessarily to hold that unless the appointment is in terms of the relevant rules and ajier a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if E it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. "

95. The Supreme Court held that there may be cases where certain appointments were not illegal but were irregular.

These are situations where an appointment has been made

(i) of duly qualified persons; and (ii) in duly sanctioned vacant posts and the employees would have continued to work for more than ten .vears without the intervention of the orders of the Court or tribunal. In those cases, the judgment

of the Supreme Court in Umadevi left it open to the State G . Governments, the Union Government and their instrumentalities to take steps to regularize, as a one time measure, the services of such irregularly appointed persons.

The relevant observation in that regard is as follows:

"One aspect needs to be clarified. There may be cases H

where irregular ppointments (not illegal appointments) as explained in S.V. NARAYANAPPA (AIR 1967 SC 1071), R.N.

NANJUNDAPPA (1972)1SCC409, and B.N. NAGARAJAN

(1979) 4 507, and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of Courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure. the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no fi1rther by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

101. The Central Government has exercised powers under sub-section (2) of Section 23 on 10 September 2012. The Union Ministry of Human Resource Development, in its notification, has granted a relaxation until 31 March 2014 only in respect of persons referred to in sub-clause (a) of Clause (1) of Para 3 of the notification dated 23 August 2010 as amended. This category covers persons -ivith BAI BSc degrees with at least fifty percent marks and holding a BEd qualification. While issuing a notification on 10 September 2012 for the pwpose of relaxing the qualifications

Shiksha Mitras to whom the benefit of regularization has A been granted neither fulfilled the prescribed minimum qualifications nor were they appointed against sanctioned posts. The fact that Shiksha Mitras did not fulfill the qualifications prescribed by NCTE which has the unquestioned jurisdiction under the NCTE Act of 1993 and B RTE Act of 2009 is evident from the fact that the State Government, by inserting Rule 16-A into the Rules of 2011 has assumed to itself a power to relax the minimum qualifications required to be observed, in the case of Shiksha Mitras. In other words, by Rule 16-A, the State Government has created gn island of exclusion for the benefit of Shiksha C Mitras who, in the exercise of the rule-making power of the State under Rule 16-A, would not have to fulfill the minimum qualifications prescribed by NCTE. The State Government has sought to get over the inseparable obstacle that the Shiksha Mitras do not fidjlll the TET requirement by D unlm1jully conferring power on itsef to relax the requirement. Having committed that illegality, the State has proceeded to do away with the TET qualification in its application to Shiksha Mitras, by unlawfidly amending the service rules. These amendments have been held to be ultra vires and an impermissible encroachment on the exclusive E domain of NCTE. Having done this the State Government has compounded its illegality by regularizing/absorbing the Shiksha Mitras as Assistant Teachers. As a consequence, qualified candidates fulfilling the NCTE norms are denied the equality of opportunity to seek appointment as Assistant Teachers. We have earlier held Rule 16-A to be ultra vires the rule-making authority of the State Government since the power to grant a relaxation ji'Om the minimum qualifications is vested exclusively in the Central Government. In assuming

to itself a power to relax the minimum qualification and thereafter by diluting the minimum qualifications in the case G of Shiksha Mitras, the State Government has patently acted in a manner which is arbitrary, ultra vires the governing central legislation and in breach of the restraint on the limits of its own statutory powers. By this exercise, the State Government has sought to grant regularization to persons H

A who failed to fulfill the minimum qualifications and who were never appointed against sanctioned posts. In these circumstances, the grant of largesse by the State Government to Shiksha Mitras cannot be upheld and the amendment to the Rules is ultra vires and unconstitutional.

103. Jn the present case, it is evident that the Shiksha Mitras do not fulfill any of the norms laid down by the Supreme Court for regular absorption into the service of the State.

They were at all material times appointed as and continued to be engaged as contractual appointees. Their appointments were not against sanctioned posts. They did not fulfill the minimum qualifications required for appointment as Assistant Teachers."

21. We are in agreement with the above findings. In view of clear mandate oflaw statutmily requiring minimum qualification for appointment D of teachers to be appointed after the date of Notification dated 23'd August, 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 E rules relating to qualifications. The Shiksha Mitras in the present case do not fall in the category of pre 23'd August, 2010 Notification whose appointment could be regularized.

22. Further difficulty which stares one in the face is the law laid down by this Court on regularization of contractually appointed persons F 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 regularized as teachers. Regularization could only be of mere irregularity. The exceptions carved out by this Court do not apply to the case of the present nature.

23. 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.

24. Since, we have given full hearing to all Shiksha Mitras through A their respective counsel, it is not necessary to consider the argument of breach of procedure under Order [ Rule 8 CPC.

25. On the one hand, we have the claim of l.78 Lakhs persons to be regularized in violation oflaw, on the other hand is the duty to uphold the rnle of law and also to have regard to the right of children in the age B of 6 to 14 years to receive quality education from duly qualified teachers.

Thus, even iffor 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. Regularization of Shiksha Mitras as teachers was C not permissible. In view of this legal position, our answers are obvious.

We do not find any error in the view taken by the High Court.

26. Question now is whether in 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 D 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 wcightage for their experience as may be decided by the concerned authority. Till they avail of this oppo11unity, the State is E 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.

27. Accordingly, we uphold the view of the High Court subject to above observations. All the matters will stand disposed ofaccordingly.

Kalpana K. Tripathy Appeals and Writ Petitions dispo-scd of.