RAM SHARAN MAURYA AND OTHERS v. STATE OF U.P. AND OTHERS

Citation: [2020] 12 S.C.R. 466; 2020 INSC 646

Court: Supreme Court of India

Bench: UDAY UMESH LALIT , MOHAN M. SHANTANAGOUDAR

Judgment date: 2020-11-18

Case summary

2020 INSC 646. Supreme Court of India judgment dated 2020-11-18. RAM SHARAN MAURYA AND OTHERS v. STATE OF U.P. AND OTHERS. Read the judgment and case...

Judgment text

466 SUPREME COURT REPORTS[2020] 12 S. C. R. 466 [2020] 12 S. C. R. A RAM SHARAN MAURYA AND OTHERS v. STATE OF U. P. AND OTHERS (Civil Appeal No. 3707 of 2020 etc. ) B NOVEMBER 18, 2020 [UDAY UMESH LALIT AND MOHAN M. SHANTANAGOUDAR, JJ. ] Service Law: C Recruitment – To the post of Assistant Teacher of Junior Basic School – By judgment in *Anand Kumar Yadav case ‘Shiksha Mitras’ were given opportunity to be considered for next two recruitments to the post of Assistant Teacher – State amended U. P.

Basic Education (Teachers) Service Rules, 1981 making ‘Shiksha Mitras’ eligible for appointment to the post of Assistant Teachers of Junior Basic D Schools – Qualification for the same included passing of Teachers Eligibility Test (TET) and Assistant Teacher Recruitment Examination (ATRE) – For ATRE-2018, minimum qualifying marks for General & OBC candidates was 45% and for SC/ST was 40% – Candidates were selected for appointment – National Council for Teachers E Education by Notification dated 28. 6. 2018 laid down that candidates holding B. Ed. degree could be entitled to be appointed as teacher for classes I to V provided they undergo six months bridge course – Rules 1981 were subsequently amended in terms of the NCTE Notification dated 28. 6.

2018 with retrospective effect – Thereafter ATRE-2019 was notified for filling up 69000 vacancies F for Assistant Teachers – The same was conducted without notifying minimum qualifying marks – After conducting the exam, State prescribed minimum qualifying marks i. e. 65% for General category and 60% for all other reserved categories – Writ petitions filed by ‘Shiksha Mitras’ assailing fixation of minimum qualifying marks – G Single Judge of High Court allowed the wirt petition filed by ‘Shiksha Mitras’ – In appeal, Division Bench of High Court reversed the order of Single Judge – Appeal to Supreme Court – Held: NCTE is entitled to lay down the norms for appointment of teachers for classes I to V – Such prescription is binding on the State – Amendment of H 466 RAM SHARAN MAURYA v. STATE OF U. P. 467 1981 Rules has to be read in confirmity with the NCTE Notification A dated 28. 6. 2018 – The eligibility norms having already been conferred by Notification dated 28. 6.

2018, amendments to 1981 Rules with retrospective effect cannot be said to have conferred eligibility norms for the first time – Therefore, B. Ed. candidates were rightly allowed to participate in the selection process – Cut-off marks B for ATRE-2019 at 65-60% cannot be termed as exclusionary or illegal as the same was designed to garner the best talent which is in consistence with the objectives of RTE Act – Government is empowered to lay down minimum marks from time to time – Such power can be exercised even after the examination is over, provided such exercise is not actuated by any malice or ill-will – National C Council for Teachers Education Act, 1993 – Right to Education Act, 2005 – Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 – Rules 2(1)(x), 8 and 14. Dismissing the appeals preferred by Shiksha Mitras, ex-servicemen and persons with disability and disposing of those D filed by B. Ed. /B. T. C. candidates, the Court HELD : 1.

1 In Teachers’ Eligibility Test (TET) examination held in March, 2018, out of 3,86,000 qualified candidates, Shiksha Mitras were 40,000 only; meaning thereby that a large number of candidates other than Shiksha Mitras had been declared E qualified. Paragraph 4(2) of G. O. dated 01. 12. 2018, referred to certain directives of National Council for Teachers Education (NCTE) which in turn, had dealt with eligibility of B. Ed. candidates. It was, therefore, quite apparent that in the ensuing selection process, considerable number of B. Ed. candidates would F participate. In this background, the absence of any challenge to the entitlement of B. Ed. candidates to participate in the process and to appear at Assistant Teacher Recruitment Examination- 2019 (ATRE-2019) is crucial. [Para 37][530-B-D] 1.

2 Going by the Parliamentary intent in empowering NCTE G under the provisions of the National Council for Teachers Education Act, 1993 (NCTE Act) and specific authorization in favour of NCTE under the Notification dated 31. 03. 2010, the authority of NCTE is beyond any doubt. Though there is no H 468 SUPREME COURT REPORTS [2020] 12 S. C. R. A specific regulation as contemplated under Section 32 read with Sections 12 and 12A of the NCTE Act, for the present purposes by virtue of the specific authorization under the Notification dated 31. 03. 2010, NCTE was entitled to lay down that those holding the qualification of ‘Bachelor of Education’ as detailed in said Notification are entitled to be appointed as teachers for classes I B to V. Such prescription on part of the NCTE would be binding. It is for this reason that G. O. dated 01. 12.

2018 notifying ATRE- 2019 clearly stated that the candidates possessing minimum qualifications specified in Notifications issued by the NCTE including one dated 28. 06. 2018 were entitled to participate in C ATRE-2019. [Para 41][534-E-H] 1. 3 The Notification dated 28. 06. 2018 being binding on the State Government, the statutory regime put in place by the State has to be read in conformity with said Notification. The eligibility or entitlement being already conferred by Notification dated D 28. 06. 2018, the amendments to Uttar Pradesh basic Education (Teachers) Service Rules, 1981 (1981 Rules) were effected only to make the statutory regime consistent with the directives issued by the NCTE. The right or eligibility was not conferred by amendments effected to 1981 Rules for the first time and therefore the element of retrospectivity present in the concerned E amendments has to be read in that perspective.

The intent behind those amendments was not to create a right for the first time with retrospective effect but was only to effectuate the statutory regime in tune or accord with NCTE directives. Theoretically, even if such statutory regime was not made so consistent, the F concerned candidates holding B. Ed. degrees could still be eligible and could not have been denied candidature for ATRE-2019. [Para 43][535-E-H] 1. 4 Once, the NCTE laid down that candidates holding B. Ed. degrees would be entitled to be appointed as teachers for classes I to V, provided they undergo a six months’ Bridge Course, the G rd stipulation in 1981 Rules (before 23 Amendment) that they must first be appointed as trainee teachers must give way to that under the Notification dated 28. 06. 2018. Said stipulation in 1981 Rules cannot be considered as an additional norm. It ran completely H RAM SHARAN MAURYA v. STATE OF U. P. 469 counter to that under the Notification dated 28. 06.

2018 which is A why the Amendment in that behalf was given retrospective effect to bring in consistency. The B. Ed. candidates were rightly allowed to participate in the instant selection process. [Paras 45 and 46][536-E-H] P. Mahendran and others etc. v. State of Karnataka B and others (1990) 1 SCC 411 : [1989] 2 Suppl. SCR 385 ; Madan Mohan Sharma and another v. State of Rajasthan and others (2008) 3 SCC 724 : [2008] 3 SCR 232 – held inapplicable. State of Maharashtra vs. Sant Dnyaneshwar Shikshan C Shastra Mahavidyalaya and others (2006) 9 SCC 1 : [2006] 3 SCR 638 ; Basic Education Board, U. P. vs. Upendra Rai and others (2008) 3 SCC 432: [2008] 2 SCR 707 ; Dr. Preeti Srivastava and another etc. vs. State of M. P. and others etc. (1999) 7 SCC 120 : [1999] D 1 Suppl. SCR 249 – referred to. 2. 1 The percentage of qualifying candidates in ATRE-2018 was 38. 83%. The percentage of qualifying candidates in ATRE- 2019 was 37. 62%, which was almost equal to that in ATRE-2018.

However, the number of qualified candidates in ATRE-2018 was E less than the number of vacancies; while even with the cut off at 65-60% the number of qualified candidates in the present selection i. e. ATRE-2019 was far in excess of the number of posts. These figures give indications about the nature and the difficulty level of the examinations and show that even with cut off at 65- 60%, the percentage of qualifying candidates was almost the same. F [Para 48][537-F-H; 538-A] 2. 2 Though the syllabus and subject wise allocation of marks were identical in both i. e. ATRE-18 and ATRE-19, the nature of ATRE-2019 was entirely different. The nature and the difficulty level of both the examinations were different. Therefore it must G be accepted that there could be different parameters regarding minimum qualifying marks for ATRE-2019. [Para 50][538-D-F] 2.

3 All the candidates including Shiksha Mitras who appeared in ATRE 2018 formed one class while those who appeared in ATRE 2019 formed another class. There cannot be H 470 SUPREME COURT REPORTS [2020] 12 S. C. R. A inter se connection or homogeneity between candidates appearing in one examination or selection with those appearing in another examination or selection. The candidates would undoubtedly compete with each other in the same examination on a para meter which applies to all of them equally. But to say that Shiksha Mitras who appeared in ATRE-2019 must be allowed equality with B candidates of ATRE-2018, who were part of a different selection process would be incorrect and illogical. The basic norms of ATRE-2019 must be tested on their own and cannot depend upon para meters or norms on the basis of which ATRE-2018 was held. Otherwise the integrity of the examination process will get C defeated and nullified. [Para 51][538-F-H; 539-A-B] 2.

4 The object of giving opportunities to Shiksha Mitras was to ensure that they were given fair chance to compete with others so that the best of the lot would be available to take care of primary education in the State. Therefore, it is not correct to D say that there should not be a different yardstick for Shiksha Mitras, who had been rendering service as teachers, as against what could be applied for fresh graduates. [Paras 52 and 47 (c)][540-D-E; 537-C-D] 2. 5 The fixation at 65-60% level was to garner the best available talent. Even with this qualifying norm, the percentage E of qualified candidates in ATRE-2019 was 37. 62% which was quite close to 38. 83% in ATRE-2018 and the number of qualified candidates was far in excess of the vacancies required to be filled up. Thus, cut off at 65-60% level in the present case, by itself cannot be termed as incorrect or illegal exercise of power. [Para F 53][541-B-C] nd 2.

6 Though as a result of the 22 Amendment, passing of ATRE ceased to be part of Rule 8, the requirement was specifically retained in Rule 14 of 1981 Rules. Further, 60% of the marks scored by a candidate in ATRE, in terms of Appendix G I read with Rule 14(2) would go in determining quality points to prepare the merit list. The major portion of quality points being directly relatable to the performance in ATRE, mere fixation at 65-60% level which applied to all the candidates across the board cannot be said to be exclusionary, nor was it intended to deprive H RAM SHARAN MAURYA v. STATE OF U. P. 471 the Shiksha Mitras of the advantage of weightage for experience. A ATRE featured as the common platform on the basis of which individual merit of various candidates could be tested, which is why a major portion of allocable quality points was assigned to the performance in ATRE.

In the circumstances, the performance in ATRE-2019 was given adequate and due weightage by fixation B of cut off at 65-60% level. [Paras 55 and 56][541-E-G] 2. 7 Therefore, the fixation of cut off at 65-60% in ATRE- 2019 was perfectly valid and justified. Considering the large number of candidates who appeared at ATRE-2019 as well as the nature and difficulty level of the examination, the cut off was C designed to draw the best available talent. The endeavour on part of the State in attempting to secure the best of the teachers was therefore fully justified. The right to education guaranteed in terms of Article 21A of the Constitution would envisage quality education being imparted to the children which in turn, would signify that the teachers must be meritorious and the best of the D lot. Any process which applied equally to all the candidates and was designed to garner the best talent, cannot be called arbitrary or irrational. [Para 57][542-D-F] State of M. P. and others vs.

Gopal D. Tirthani and others (2003) 7 SCC 83 : [2003] 1 Suppl. SCR 797 – E distinguished. 3. 1 In terms of Rule 2(1)(x) of 1981 Rules, qualifying marks of ATRE are such minimum marks as may be determined ‘from time to time’ by the Government. Clause (C) of Rule 14 of 1981 Rules lays down that a candidate must have ‘passed Assistant F Teacher Recruitment Examination conducted by the Government’. Thus, one of the basic requirements for being considered to be appointed as an Assistant Teacher under 1981 Rules is passing of ATRE with such minimum marks as may be determined by the Government. Unlike para 7 of the Guidelines for ATRE-2018 G which had spelt out that a candidate must secure minimum of 45% or 40% marks (for ‘general’ and ‘reserved’ categories respectively) for passing ATRE-2018, no such stipulation was available in G. O. dated 01. 12. 2018 notifying ATRE-2019. Though, H 472 SUPREME COURT REPORTS [2020] 12 S. C. R.

A the minimum qualifying marks were set out in the Guidelines for ATRE-2018, it is not the requirement of 1981 Rules that such stipulation must be part of the instrument notifying ATRE. By very nature of entrustment, the Government is empowered to lay down minimum marks ‘from time to time’. If this power is taken to be conditioned with the requirement that the stipulation B must be part of the instrument notifying the examination, then there was no such stipulation for ATRE-2019. Such reading of the rules will lead to somewhat illogical consequences. On one hand, the relevant Rule requires passing of ATRE while, on the other hand, there would be no minimum qualifying marks C prescribed. A reasonable construction on the relevant rules would therefore imply that the Government must be said to be having power to lay down such minimum qualifying marks not exactly alongside instrument notifying the examination but at such other reasonable time as well. [Para 60][552-E-H; 553-A-B] D 3.

2 In the present case, the requirement in terms of Rule 2(1)(x) read with Rule 14 is that the minimum qualifying marks as stipulated by the Government must be obtained by a candidate to be considered eligible for selection as Assistant Teacher. It was thus always contemplated that there would be some minimum qualifying marks. What was done by the Government by virtue E of its orders dated 07. 01. 2019 was to fix the quantum or number of such minimum qualifying marks. The candidate had to pass ATRE-2019 and he must be taken to have known that there would be fixation of some minimum qualifying marks for clearing ATRE- 2019. [Para 61][553-E-H; 554-A] F 3.

3 If the Government has the power to fix minimum qualifying marks ‘from time to time’, there is nothing in the Rules which can detract from the exercise of such power even after the examination is over, provided the exercise of such power is not actuated by any malice or ill will and is in furtherance of the object of finding the best available talent. [Para 63][554-E-F] G Municipal Corporation of Delhi vs. Surender Singh and others (2019) 8 SCC 67; Jharkhand Public Service Commission vs. Manoj Kumar Gupta (2020) 1 SCALE 504 – relied on. H RAM SHARAN MAURYA v. STATE OF U. P. 473 3. 4 If the ultimate object is to select the best available talent A and there is a power to fix the minimum qualifying marks, in keeping with the law laid down by this Court, there is no illegality or impropriety in fixation of cut off at 65-60% vide order dated 07. 01. 2019.

The facts on record indicate that even with this cut off, the number of qualified candidates is more than twice the B number of vacancies available. [Para 64][555-A-C] State of Haryana vs. Subash Chander Marwaha and others (1974) 3 SCC 220 : [1974] 1 SCR 165; State of U. P. etc. v. Rafiquddin and others etc. 1987 (Supp) SCC 401 : [1988] SCR 794 – relied on. C 3. 5 It must be accepted that after considering the nature and difficulty level of examination, the number of candidates who appeared, the concerned authorities have the requisite power to select a criteria which may enable getting the best available teachers. Such endeavour will certainly be consistent with the D objectives under the Right to Education Act, 2005 (RTE Act). [Para 64][555-C-D] 3.

6 In the circumstances, the view taken by the Division Bench of the High Court is confirmed and it is concluded that in the present case, the fixation of cut off at 65-60%, even after the E examination was over, cannot be said to be impermissible. The Government was well within its rights to fix such cut off. [Para 65][555-D-E] State of Haryana vs. Subash Chander Marwaha and others (1974) 3 SCC 220: [1974] 1 SCR 165; State of U. P. etc. v. Rafiquddin and others etc. 1987 (Supp) SCC F 401: [1988] 1 SCR 794 – relied on. K. Manjusree vs. State of Andhra Pradesh and another (2008) 3 SCC 512: [2008] 2 SCR 1025; Hemani Malhotra etc. vs. High Court of Delhi (2008) 7 SCC 11: [2008] 5 SCR 1066 – distinguished. G P. K. Ramachandra Iyer and others v. Union of India and others (1984) 2 SCC 141: [1984] 2 SCR 200; Umesh Chandra Shukla v. Union of India and others H 474 SUPREME COURT REPORTS [2020] 12 S. C. R. A (1985) 3 SCC 721: [1985] 2 Suppl. SCR 367; Durgacharan Misra v.

State of Orissa (1987) 4 SCC 646: [1987] 3 SCR 1097; Maharashtra State Road Transport Corporation and others v. Rajendra Bhimrao Mandve and others (2001) 10 SCC 51; Tej Prakash Pathak and others vs. Rajasthan High Court and others B (2013) 4 SCC 540; Yogesh Yadav vs. Union of India and others (2013) 14 SCC 623: [2013] 8 SCR 194; Salam Samarjeet Singh v. High Court of Manipur at Imphal and another (2016) 10 SCC 484: [2016] 9 SCR 771; Sivanandam C. T. and others v. High Court of C Kerala and others (2018) 1 SCC 239: [2017] 13 SCR 226; Municipal Corporation of Delhi v. Surender Singh and others (2019) 8 SCC 67; Jharkhand Public Service Commission v. Manoj Kumar Gupta (2020) 1 SCALE 504 – referred to. D 4. Consequently, the challenge at the instance of Shiksha Mitras in all these matters, is negated and the appeals preferred by Shiksha Mitras are dismissed. The appeal preferred by the Association of Shiksha Mitras also prayed for absorption of Shiksha Mitras.

Such a prayer cannot be granted in view of the pronouncement of the decision of this Court in *Anand Kumar E Yadav. Said appeal is, therefore, dismissed. However, one more opportunity shall be afforded to Shiksha Mitras to compete in the next selection. It is left to the discretion of the State Government to consider the manner and the modalities in which such opportunity can be availed of. [Paras 66 and 67][555-E-H] F 5. The cut off at 65-60% having been held valid and justified, the appeals preferred by ex-servicemen or persons with disability are also dismissed. If there are less number of candidates against the vacancies for these categories, such vacancies shall be subject to the Rules in that behalf. If the vacancies cannot be carried forward, the same shall and must enure to the advantage G of the candidates in the present selection. [Para 68][556-A-C] 6. Similarly, Writ Petition and appeals arising out of petitions preferred by B. Ed. /B. T. C.

candidates as well as Contempt H RAM SHARAN MAURYA v. STATE OF U. P. 475 Petition and all Intervention Applications also stand disposed of A in same terms. [Para 68][556-C] 7. The State Government shall now be entitled to fill up all the concerned posts in terms of the result declared on 12. 05. 2020 and in accordance with law. [Para 69][556-C-D] B *State of U. P. and another vs. Anand Kumar Yadav and others (2018) 13 SCC 560 : [2017] 10 SCR 428 – referred to. Case Law Reference [2017] 10 SCR 428 referred to Para 2 C [2006] 3 SCR 638 referred to Para 38. 1 [2008] 2 SCR 707 referred to Para 38. 2 [1989] 2 Suppl. SCR 385 held inapplicable Para 42 [2008] 3 SCR 232 held inapplicable Para 42 D [1999] 1 Suppl. SCR 249 referred to Para 45 [2003] 1 Suppl. SCR 797 distinguished Para 52 [1974] 1 SCR 165 referred to Para 58 [1988] 1 SCR 794 referred to Para 58 E [1974] 1 SCR 165 referred to Para 58 [1984] 2 SCR 200 referred to Para 58 [1985] 2 Suppl.

SCR 367 referred to Para 58 F [1987] 3 SCR 1097 referred to Para 58 (2001) 10 SCC 51 referred to Para 58 (2013) 4 SCC 540 referred to Para 58 [2013] 8 SCR 194 referred to Para 58 G [2016] 9 SCR 771 referred to Para 58 [2017] 13 SCR 226 referred to Para 58 H 476 SUPREME COURT REPORTS [2020] 12 S. C. R. A (2019) 8 SCC 67 referred to Para 58 [2008] 2 SCR 1025 distinguished Para 61 [2008] 5 SCR 1066 distinguished Para 61 (2019) 8 SCC 67 relied on Para 63 B [1974] 1 SCR 165 relied on Para 64 [1988] SCR 794 relied on Para 64 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3707 of 2020. C From the Judgment and Order dated 06. 05. 2020 of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Special Appeal No. 207 of 2019. With Civil Appeal Nos. 3708, 3709, 3710, 3711, 3720, 3721, 3722, 3728, D 3729, 3725, 3732, 3731, 3724, 3723, 3730, 3726, 3712, 3713, 3714, 3717, 3715, 3716, 3718, 3719, 3727, 3733, 3734 of 2020, Contempt Petition (C) No.

418 of 2020 in Special Leave Petition (Civil) No. 6841 of 2020, Special Leave Petition (Civil) D. No. 13142 of 2020, Writ Petition (Civil) No. 703 of 2020. E Ms. Aishwarya Bhati, ASG, K. V. Viswanathan, R. Balasubramanian, Sr. Advs. , Harish Pandey, Anup Kumar, Sachin Sharma, Talha Abdul Rahman, Kushagra Pandey, Mohd. Shaz Khan, Udit Konkanthankar, Mukesh Verma, Raj Singh Rana, Anand Nandan, Satya Mitra, Pankaj Kumar Singh, Kamal Kumar Pandey, Yash Pal Dhingra, Akshay Verma, Atul Khenja, D. K. Pandey, Ms. Tanya Agarwal, F Ms. Rani Chhabra, Ms. Saroj Tripathi, Naveen Kumar Tripathi, Abhishek Kumar Singh, Dr. Sumant Bharadwaj, Vedant Bharadwaj, Ms. Mridula Ray Bharadwaj, Kausar Raza Faridi, D. P. Shukla, Prashant Shukla, Dr. Brij Bhushan K. Jauhar, Gaurav Yadav, Harsh Mahan, Lalit Chahar, Ms. Purnima Jauhari, R. K. Singh, Ms. Neeraj Singh, Kumar Gaurav, G Ms. Ritu Reniwal, Ms. Anzu. K. Varkey, Aman Rastogi, Sanjay Rastogi, Ms.

Ritu, Abhishek Kishor, Parminder Singh Bhullar, Tom Joseph, Pushkar Sharma, Satish Pandey, Ms. Geeta Verma, Abdul Qadir, Nishit Agrawal, Harsh Mishra, Dr. Vinod Kumar Tewari, Ms. Priyanka Dubey, H RAM SHARAN MAURYA v. STATE OF U. P. 477 Vivek Tiwari, Amit Pawan, Sahil Bhalaik, Tarun Gupta, Rakesh Mishra, A Krishnanand Pandeya, Priyank Upadhyay, Piyush Dwivedi, Rameshwar Prasad Goyal, Ms. Tanima Kishore, Satyajeet Kumar, Rakesh Dahiya, Santosh Kumar Tripathi, Advs. for the appearing parties. The Judgment of the Court was delivered by B UDAY UMESH LALIT, J. 1. Except Special Leave Petition (Civil) D. No. 13142 of 2020: (i) permission to file Special Leave Petition is granted in all the concerned matters; and (ii) Special Leave to Appeal is granted in all matters. 2. These appeals arise out of the final judgment and order dated C 1 06. 05. 2020 passed by the Division Bench of the High Court in Special Appeal No.

207 of 2019 and all connected matters whereby the Division Bench of the High Court set aside the Order dated 29. 03. 2019 passed by the Single Judge of the High Court in Writ Petition No. 1188(SS) of 2019 and other connected matters. These appeals, inter alia, deal with D the extent of rights of Shiksha Mitras and benefits conferred upon them by the decision of this Court in State of U. P. and another vs. Anand 2 Kumar Yadav and others . 3. The facts leading to the decision of this Court in Anand Kumar 2 Yadav were set out in said decision as under:- E “3. Brief factual matrix may be noted. The U. P. Basic Education Act, 1972 (the 1972 Act) was enacted to regulate and control basic education in the State of U. P. Section 19 of the 1972 Act authorises the State Government to make rules to carry out the purpose of the Act. The U. P. Basic Education (Teachers) Service Rules, 1981 (the 1981 Rules) lay down sources of recruitment F and qualification for appointment of teachers.

The National Council for Teachers’ Education Act, 1993 (NCTE Act) was enacted by Parliament for planned and coordinated development for teacher education system. The Right of Children to Free and Compulsory Education Act, 2009 (the RTE Act, 2009) was enacted by G Parliament for free and compulsory education to all children of the age of 6 to 14 years. Section 23 provides for qualification for 1 The High Court of Judicature at Allahabad, Lucknow Bench 2 (2018) 13 SCC 560 H 478 SUPREME COURT REPORTS [2020] 12 S. C. R. A appointment of teachers. NCTE was designated as authority under Section 23(1) to lay down the qualifications for appointment of teachers. 4. NCTE issued Notification dated 23-8-2010 laying down such qualifications.

With regard to teachers appointed prior to the said B notification, it was stated that they were required to have qualifications in terms of the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (the 2001 Regulations), if the teachers were appointed on or after 3-9-2001 subject to their undergoing NCTE recognised six months’ special C programme in certain situations. Teachers appointed before 3-9- 2001 were required to have qualifications as per the prevalent recruitment rules. One of the requirements under the said notification is the requirement of passing Teachers Eligibility Test (TET). However, by Letter dated 8-11-2010, the Central D Government sought proposals for relaxation under Section 23(2) of the RTE Act which was followed by the relaxation Order dated 10-9-2012 for certain categories of persons which was to operate till 31-3-2014.

Vide Letter of NCTE dated 14-1-2011, NCTE accepted the proposal of the State of Uttar Pradesh for training of untrained graduate Shiksha Mitras by open and distance learning E but it was made clear that no appointment of untrained teachers was permitted. 5. In exercise of powers under the RTE Act, 2009, the RTE Rules, 2010 were framed by the Central Government. At the same time, the State of U. P. also purported to frame rules called the U. P. F RTE Rules, 2011. 6. Reference may now be made to the scheme under which the Shiksha Mitras were recruited. On 26-5-1999, a Government Order was issued by the State of U. P. for engagement of Shiksha Mitras (Parateacher). The purported object of the Order was to G provide universal primary education and for maintenance of teacher student ratio in primary schools by hiring persons who were not duly qualified at lesser cost as against the prescribed salary of a qualified teacher. The Government Order (G. O.

) stated that up to the limit of 10,000, Shiksha Mitras could be contracted for academic session 1999-2000 at honorarium of Rs 1450 per H RAM SHARAN MAURYA v. STATE OF U. P. 479 [UDAY UMESH LALIT, J. ] month. The salient aspects of the scheme as summed up in the A ? impugned judgment of the High Court from the said G. O.

were: 3 (Anand Kumar case , SCC OnLine All para 17) “(i) The appointment of Shiksha Mitras was to be against the payment of an honorarium; B (ii) The appointment was to be for a period of eleven months renewable for satisfactory performance; (iii) The educational qualifications would be of the intermediate level; (iv) The unit of selection would be the village where the school C is situated and in the event that a qualified candidate was not available in the village, the unit could be extended to the jurisdiction of the Nyaya Panchayat; (v) The services of a Shiksha Mitra could be terminated for want of satisfactory performance; D (vi) Selection was to be made at the village level by the Village Education Committee; and (vii) The scheme envisaged the constitution, at the district level, of a Committee presided over by the District Magistrate and consisting, inter alia, of the Panchayat Raj Officer and the E District Basic Education Officer among other members to oversee implementation.

” 7. Further G. Os. were issued by the State of U. P. including G. O. dated 1-7-2001 expanding the scheme and clarifying that the scheme was not for employment in a regular service but to provide F opportunity to the rural youth to render community service. 8. Even though vide Notification dated 23-8-2010, minimum statutory qualification was laid down by NCTE, the issue for relaxation under Section 23(2) of the RTE Act was taken up by the Union Government for relaxation for the limited interim statutory G period and if a particular State did not have adequate institutions for teachers training or did not have the adequate number of candidates during the period. The State Government, in response 3 2015 SCC OnLine All 3997 : ILR 2015 All 1108 [Anand Kumar Yadav vs. Union of India] H 480 SUPREME COURT REPORTS [2020] 12 S. C. R.

A to the letter of the Central Government, responded by stating that it had appointed Shiksha Mitras on contractual basis who were required to be given teachers training. The Central Government issued an Order for relaxation under Section 23(2) subject to certain conditions for the period up to 31-3-2014. B 9. The State Government submitted a revised proposal dated 3-1- 2011 envisaging giving of training to the Shiksha Mitras which was accepted by the Central Government in terms of the Letter dated 14-1-2011 for two years’ diploma in elementary education through open and distance learning mode with a clear understanding that no untrained teachers will be appointed. C 10. Finally, the State of U. P. took the following steps which were subject-matter of challenge before the High Court: 10. 1. The Notification dated 30-5-2014 amending the U. P.

RTE Rules introducing Rule 16-A authorising the State Government to relax minimum educational qualifications for appointment of D Assistant Teachers in Junior Basic Schools. 10. 2. The Notification dated 30-5-2014, amending the 1981 Rules: Rule 8 laid down revised qualifications for appointment of Assistant Master and Assistant Mistress of Junior Basic Schools which qualifications are different from the statutory qualifications under E Section 23 of the RTE Act. Rule 5 was amended to add Shiksha Mitras as source for recruitment of teachers in addition to the existing source of direct recruitment in accordance with the existing rules. Rule 14 was also amended to enable Shiksha Mitras to be appointed as teachers against substantive posts without having F the qualifications prescribed under Section 23 of the RTE Act. 10. 3. G. O.

dated 19-6-2013 was issued giving permission for appointment of Shiksha Mitras on the post of Assistant Teachers in primary schools without having the eligibility and qualifications in terms of the RTE Act, 2009. A time table was laid down for G absorption of Shiksha Mitras as Assistant Teachers. 10. 4. The consequential executive orders were issued for absorption of 1,24,000 graduate Shiksha Mitras and 46,000 intermediate Shiksha Mitras. ” … … … H RAM SHARAN MAURYA v. STATE OF U. P. 481 [UDAY UMESH LALIT, J. ] 13. Batch of writ petitions was filed before the High Court by A persons who claimed to be eligible for appointment and whose chances were affected by filling up of vacancies of teachers by regularising the Shiksha Mitras against the said vacancies………. 14. Case set out in the petition was that in view of Notification issued by NCTE on 23-8-2010 laying down minimum qualification B for appointment of Assistant Teacher for Classes I to VIII, the decision of the U. P.

Government dated 19-6-2014 and amendments made by the U. P. Government on 30-5-2014 were in conflict with the Notification issued by NCTE on 23-8-2010 and could not, thus, be justified. TET being a mandatory qualification, the State C Government could not make any appointment to the post of teacher without the said qualification. The appointments did not fall under the relaxation clause being post 23-8-2010 Notification and being not covered by the conditions for relaxation. The 1981 Rules of the State could not incorporate a provision for absorption of Shiksha Mitras in violation of law laid down by this Court in State of D 4 Karnataka v. Umadevi (3) as their appointment was dehors the 1981 Rules, having not been made after following the rules for appointment of teachers. It was also submitted that the nature of appointment of Shiksha Mitras was contractual to enable them to render community service and not in terms of prescribed E qualifications for appointment of teachers.

Training by open and distance learning mode was relevant only for teachers validly appointed and not for contractual employees appointed dehors the rules. Moreover, 46,000 Shiksha Mitras were not even graduates which was a condition for approval by NCTE in its letter dated 14-1-2011………” F 3. 1 The decision rendered by the Full Bench of the High Court of Judicature at Allahabad was dealt with as under:- “17. The findings of the High Court in brief are that having regard to the nature of appointment of Shiksha Mitras, they could not be G treated as teachers in terms of the 1981 Rules. They also did not have the qualifications prescribed under the said Rules inasmuch as on the date of appointment, they did not have graduate degree nor they had basic teachers’ certificate as prescribed under the 1981 Rules. Reservation policy had also not been followed. No 4 (2006) 4 SCC 1 : 2006 SCC (L&S) 753 H 482 SUPREME COURT REPORTS [2020] 12 S. C. R.

A doubt they may have served the need of the hour, their regular appointment in violation of the requisite statutory qualification was illegal. Reference was made to earlier Full Bench judgment in 5 Sandhya Singh v. State of U. P. with regard to the nature of such appointments. B 18. It was further held that Section 23(2) permitted relaxation of minimum qualification for appointment of teachers only for a limited period not exceeding five years and qualification for TET could not be relaxed as held by the Full Bench judgment of the High 6 Court in Shiv Kumar Sharma v. State of U. P. for post-23-8- 2010 appointments. Nor pre-23-8-2010 appointments could be C saved unless initial appointments were to the post of teachers in terms of applicable rules as stated in the Notification dated 23-8- 2010.

The amendments to the State RTE Rules, 2011 and the Service Rules of 1981 were in conflict with the mandate of Section 23(2) under which power to relax the minimum qualifications was D vested only with the Central Government for a limited period. Moreover, the regularisation of Shiksha Mitras as teachers was 4 not permissible in view of the law laid down in Umadevi (3) . The appointment of Shiksha Mitras was not as teachers nor could it be held to be merely irregular in the absence of their minimum qualifications for the post of teachers which was a distinguishing E feature rendering the judgments State of Karnataka v. M. L. 7 8 Kesari and Amarendra Kumar Mohapatra v. State of Orissa inapplicable. 3. 2. Affirming the view taken by the Full Bench, this Court concluded:- F “28. We are in agreement with the above findings.

In view of clear mandate of law statutorily requiring minimum qualification for appointment of teachers to be appointed after the date of the Notification dated 23-8-2010, there is no doubt that no appointment was permissible without such qualifications. Appointments in the G present case are clearly after the said date. Relaxation provision could be invoked for a limited period or in respect of persons 5 (2013) 7 ADJ 1 (FB) 6 2013 SCC OnLine All 4097 : (2013) 6 ALJ 366 : 6 ADJ 310 (FB) 7 (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826 8 (2014) 4 SCC 583 : (2014) 2 SCC (L&S) 54 H RAM SHARAN MAURYA v. STATE OF U. P. 483 [UDAY UMESH LALIT, J. ] already appointed in terms of applicable rules relating to A qualifications. The Shiksha Mitras in the present case do not fall in the category of pre 23-8-2010 Notification whose appointment could be regularised. 29.

Further difficulty which stares one in the face is the law laid down by this Court on regularisation of contractually appointed B persons in public employment. Appointment of Shiksha Mitras was not only contractual, it was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers. Thus, they could not be regularised as teachers. Regularisation could only be of mere irregularity. The exceptions C carved out by this Court do not apply to the case of the present nature. 30. In view of our conclusion that the Shiksha Mitras were never appointed as teachers as per applicable qualifications and are not covered by relaxation order under Section 23(2) of the RTE Act, D they could not be appointed as teachers in breach of Section 23(1) of the said Act. The State is not competent to relax the qualifications. … … … 32. On the one hand, we have the claim of 1.

78 lakh persons to E be regularised in violation of law, on the other hand is the duty to uphold the rule of law and also to have regard to the right of children in the age of 6 to 14 years to receive quality education from duly qualified teachers. Thus, even if for a stop-gap arrangement teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed. It may be permissible to F give some weightage to the experience of Shiksha Mitras or some age relaxation may be possible, mandatory qualifications cannot be dispensed with. Regularisation of Shiksha Mitras as teachers was not permissible. In view of this legal position, our answers 3 are obvious. We do not find any error in the view taken by the G High Court. ” 3. 3 However, in the peculiar fact situation, following observations were made by this Court:- “33. Question now is whether in the absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference.

H 484 SUPREME COURT REPORTS [2020] 12 S. C. R. A In the peculiar fact situation, they ought to be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in terms of advertisements for recruitment for next two consecutive recruitments. They may also be given suitable age relaxation and some weightage for their experience as may be decided by the authority concerned. Till B 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. ” 2 4. Paragraph 33 of the decision in Anand Kumar Yadav thus directed that Shiksha Mitras be given:- C a) opportunity to be considered for recruitment if they had acquired or would acquire requisite qualifications in terms of advertisement for recruitment.

b) for next two consecutive recruitments; and D c) in such recruitments, they would be entitled to:-i) suitable age relaxation; and ii) some weightage for their experience, as may be decided by the authority concerned. 2 E 5. After the decision in Anand Kumar Yadav , a Press Note was released by the State Government on 21. 08. 2017, which referred to the directions in aforesaid paragraph 33 and stated: “1. In sequence of compliance of above, Government to such teachers who were absorbed/ adjusted at the post of teacher, F they will be deemed reverted on the post of Shiksha Mitra w. e. f. 1. 8. 2017. They will have option to join duty in their present school or at the school of their original posting. 2. State Government shall organize exam of TET in the month of October 2017 and all such Shiksha Mitras shall be provided an G opportunity to acquire the required qualification. 3.

After TET examination is held, for the purposes of selection of Assistant Teachers in the Primary Schools under the Board, advertisement of vacancy in appropriate number shall be got published in the month of December 2017 and all the eligible applicants shall be provided with opportunity to make application. H RAM SHARAN MAURYA v. STATE OF U. P. 485 [UDAY UMESH LALIT, J. ] 4. In sequence of the order passed by the Hon’ble Supreme Court, A amendment was brought in “Uttar Pradesh Basic Shiksha (Teachers) Service Rule, 1981” and for the purposes of recruitment on vacant posts of Assistant Teachers, advertisement shall be made. Above said amendment shall be brought in educational qualification and in determining the factor which shall be as under:- B a.

Existing and proposed amendment in UP Basic Education (Teacher) Service Rule, 1981 for the purposes of selection on the basis of Educational Factor:- Appendix C On the basis of Educational factor D E F G H 486 SUPREME COURT REPORTS [2020] 12 S. C. R. A 5. All Shiksha Mitras shall be given honorarium of Rs. 10,000/-per month w. e. f. 1. 8. 2017. ” 6. On 09. 11. 2017, the State Government notified UP Basic th 9 (Teachers) Service (20 Amendment) Rules, 2017 amending 1981 Rules . Following expressions were defined in Rule 2 as under:- B “(s) “Teacher Eligibility Test” means the Teacher Eligibility Test conducted by the Government or by the Government of India; (t) “Qualifying marks in Teacher Eligibility Test” Qualifying marks in Teacher Eligibility Test will be such as may be prescribed from time to time by the National Council for Teacher Education, New C Delhi; (u) “Trainee teacher” means a candidate who has passed B. Ed. / B. Ed. (Special Education)/D. Ed.

(Special Education) and has also passed the teacher eligibility test and has been selected for eventual appointment as assistant teacher in Junior Basic School after D successful completion of six months special training programme in elementary education recognised by National Council for Teacher Education (NCTE); (v) “Shiksha Mitra” means a person working as such in junior basic schools run by Basic Shiksha Parishad under the Government E Orders prior to the commencement of Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011; Or a person who has been a Shiksha Mitra and appointed as an Assistant Teacher in Junior Basic Schools run by Basic Shiksha Parishad and reverted to work as Shiksha Mitra in pursuance of F the judgment of the Apex Court in SLP No. 32599/2015 State of U. P. and others v. Anand Kumar Yadav and others.

(w) “Assistant Teacher Recruitment Examination” means a written examination conducted by the Government for recruitment of a person in junior basic schools run by Basic Shiksha Parishad; G (x) “Qualifying Marks of Assistant Teacher Recruitment Examination” means such minimum marks as may be determined from time to time by the Government. 9 UP Basic Education (Teachers) Service Rules, 1981 H RAM SHARAN MAURYA v. STATE OF U. P. 487 [UDAY UMESH LALIT, J. ] (y) “Guidelines of Assistant Teacher Recruitment A Examination” means such guidelines as may be determined from time to time by the Government. ” 6. 1. The sources of recruitment of teachers now set out in Rule 5 were:- B “5. Sources of recruitment.

- The mode of recruitment to the various categories of posts mentioned below shall be as follows : C D E F G Provided that if suitable candidate s are not available for promotion to the posts mentioned at (v) and (vi) above, appointment may be made by direct recruitment in the manner laid down in Rule 15. ” H 488 SUPREME COURT REPORTS [2020] 12 S. C. R. A 6. 2. The Essential Qualifications for appointment to the posts referred to in Clause (a) of Rule 5 were stipulated in Rule 8(1) as under:- “8. Academic Qualifications-(1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be as shown below against each: B C D E F G H RAM SHARAN MAURYA v. STATE OF U. P. 489 [UDAY UMESH LALIT, J.

] A B C D E F G Thus, Shiksha Mitras became eligible for appointment to the posts of “Assistant Masters and Assistant Mistresses of Junior Basic Schools” and the required academic qualifications as stated in Rule 8 were:-a) Bachelor’s degree from a University. H 490 SUPREME COURT REPORTS [2020] 12 S. C. R. A b) Successful completion of two years distant learning of B. T. C. course or its equivalent course. c) Passing of the Teachers’ Eligibility test (‘TET’, for short). d) Passing of Assistant Teacher Recruitment Examination (“ATRE”, for short) conducted by the State Government. B 6. 3. Rule 14 dealt with determination of vacancies and preparation of list as under:- “14.

Determination of vacancies and preparation of list- (1)(a) In respect of appointment, by direct recruitment to the post C of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of Rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, and other categories under Rule 9 and at least two leading D daily newspapers having adequate circulation in the State as well as in concerned district inviting applications from candidates possessing prescribed training qualification and teacher eligibility test passed, conducted by the Government or by the Government of India and passed Assistant Teacher Recruitment Examination E conducted by the Government. (b) The Government may from time to time decide to appoint candidates, who are graduates along with B. Ed. /B. Ed. (Special Education)/D. Ed.

(Special Education) and who have also passed teacher eligibility test conducted by the Government or by the F Government of India, as trainee teachers. These candidates after appointment will have to undergo six months special training programme in elementary education recognised by National Council of Teacher Education (NCTE). The appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled G Castes, Scheduled Tribes, Backward Classes, and other categories under Rule 9 and advertisement would be issued in at least two leading daily newspapers having adequate circulation in the State as well as in concerned district inviting applications from candidates who are graduates along with B. Ed. /B. Ed. (Special Education)/ H D. Ed. (Special Education) and who have also passed teacher RAM SHARAN MAURYA v. STATE OF U. P. 491 [UDAY UMESH LALIT, J.

] eligibility test conducted by the Government or by the Government A of India. (c) The trainee teachers, after obtaining the certificate of successful completion of six months special training in elementary education shall be appointed as assistant teachers in junior basic school against substantive post in regular pay-scale. The appointing B authority will be duty bound to appoint the trainee teachers as assistant teachers within one month of issue of certificate of successful completion of said training. (2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement under clause (a) or C (b) of sub-rule (1) of Rule 14 and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment.

(3) (a) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (a) of sub-rule D (1) of Rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points and weightage as specified in the Appendix-I : Provided that if two or more candidates obtain equal E marks, the candidate senior in age shall be placed higher. (b) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (b) of sub-rule (1) of Rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with F the quality points specified in the appendix-II : Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher.

(c) The names of candidates in the list prepared in accordance with clause (c) sub-rule (1) of Rule 14 for G appointment as assistant teacher shall be same as the list prepared under clause (b) sub-rule (3) of Rule 14 unless the candidate under the said list is unable to successfully complete the six months special training course in elementary education in his first attempt. If H the candidate successfully completes the six months 492 SUPREME COURT REPORTS [2020] 12 S. C. R. A special training in his second and final attempt, the candidate’s name shall be placed under the names of all those candidates who have completed the said six months special training in their first attempt. (4) No person shall be eligible for appointment unless his or her B name is included in the list prepared under sub-rule (2).

(5) The list prepared under sub-rule (2) and arranged in accordance with clause (a) and (b) of sub-rule (3) of Rule 14 shall be forwarded by the appointing authority to the selection committee. ” 6. 4. Appendix I referable to Rule 14(3)(a) and Appendix II referable C th to Rule 14(3)(b) as amended by the 20 Amendment were as under:- 10 “APPENDIX-I [See Rule 14 (3)a] Quality points and weightage for selection of candidates D E F G 10 th Appendix-I Subs. by Noti. No. 2282/LXXIX-5-2017-282-98 dated 9 Nov. , 2017 (Twentieth Amendment) Rules, 2017. Published in U. P. Gazette. Extra. , Part 4, Section th (Ka), dated 9 November, 2017 (w. e. f. 9. 11. 2017). H RAM SHARAN MAURYA v. STATE OF U. P. 493 [UDAY UMESH LALIT, J. ] Notes I – If two or more candidates have equal quality points, the A name of the candidate who is senior in age shall be placed higher in the list. 2.

If two or more candidates have equal quality points and age, the name of the candidate shall be placed in the list in English alphabetical order. ” B 11 “APPENDIX-II [See Rule 14 (3)(b)] Quality Points for Selection of candidates C D E Note – If two or more candidates have equal quality points the name of the candidate who is senior in age shall be placed higher in the list. If two or more candidates have equal quality point; and age, the name of the candidate shall be placed in the list in English F alphabetical order. ” 7. On 09. 01. 2018, a G. O. was issued framing Guidelines for ATRE to be conducted in 2018 (“ATRE-2018”, for short) for filling up 68,500 posts of Assistant Teachers for junior basic schools. Paragraph 7 of the Enclosure to the G. O. prescribed the minimum qualifying marks for ATRE G 2018 as minimum of 67 marks out of 150 i. e. 45% for General and OBC candidates and 60 out of 150 i. e. 40% for SC/ST candidates. Paragraphs 4. 1, 5 and 7 of the Enclosure to G. O.

were:- 11 Appendix Ins. by (Sixteenth Amendment) Notification No. 3338/LXXIX-5-2012- 14(10)-2010, dated 4 December, 2012 (w. e. f. 4-12-2012) H 494 SUPREME COURT REPORTS [2020] 12 S. C. R. A “4. The minimum qualification for the application:- (1) In Rule 8 of the Uttar Pradesh Basic Education (Teachers) th Service (20 Amendment) Rules, 2017 the described educational, training passed, Government of India or by the State Government the organized Teachers Eligibility Examination (Primary Level) B passed candidates will be eligible for filing the application in the Assistant Teachers Recruitment Examination, 2018. 5. The Subject Matter and the Structure of the Recruitment Examination of the Assistant Teachers:- By the office of the Secretary, Uttar Pradesh Basic Education C Council, Allahabad and in accordance with the advertisement which has been published vide Advertisement bearing No. Basic Education Council/15876/2017-18 dated 28. 10. 2017:- Time of the examination 3.

00 hours Total Marks 150 Type of questions very small question No. of question 150 D The level of the Subject Matter:- (1) Hindi Language, Sanskrit and English, Science, Maths, environment and Social Studies (upto Class 12 level). (2) Teaching Efficiency, Child Psychology, Information Technology, E Life Efficiency Management and Attitutde – (Upto D. L. Ed. syllabus). F G H RAM SHARAN MAURYA v. STATE OF U. P. 495 [UDAY UMESH LALIT, J. ] A B C D E F G H 496 SUPREME COURT REPORTS [2020] 12 S. C. R. A B C D E F G H RAM SHARAN MAURYA v. STATE OF U. P. 497 [UDAY UMESH LALIT, J. ] A B C D E … … … 7. Qualifying Marks: 1. In the Assistant Teachers Recruitment Examination, the candidates who are participating for them the examination result will be issued / given on the website. For the General and OBC F Class candidates who receive 67 marks out of total 150 marks viz.

45% marks or more and then only those General and OBC Class candidates will be issued passed certificate in the Assistant Teachers Recruitment Examination. 2. For the Scheduled Caste / Scheduled Tribes candidates the G minimum qualifying marks will be 40% viz. 60 marks out of total 150 marks. 3. Only by passing the Assistant Teachers Recruitment Examination will not give any right of employment to those candidates because for this appointment only this is one of the H eligible measurement. ” 498 SUPREME COURT REPORTS [2020] 12 S. C. R. nd A 8. On 15. 03. 2018, by 22 Amendment, 1981 Rules were amended removing the requirement of passing of ATRE from the essential qualifications contained in Rule 8. However, the requirement was retained in Rule 14 dealing with the procedure for selection of Assistant Teachers. The relevant part of Rule 8(1) dealing with Academic Qualifications for “Assistant Master and Assistant Mistresses of Junior B Basic Schools” read as follows:- “ii.

(a) Bachelors degree from a University established by law in India or a degree recognised by the Government equivalent thereto together with any other training course recognized by the Government as equivalent thereto together with the training C qualification consisting of a Basic Teacher’s Certificate (BTC), two year BTC (Urdu) Vishisht BTC. Two year Diploma in Education (Special Education) approved by the Rehabilitation Council of India or four year degree in Elementary Education (B. El. Ed. ), two year Diploma in Elementary Education (by D whatever name known) in accordance with the National Council of Teacher Education (Recognition, Norms and Procedure) Regulations, 2002 or any training qualifications to be added by National Council for Teacher Education for the recruitment of teachers in primary education. and E teacher eligibility test passed conducted by the Government or by the Government of India.

” Rule 14 dealing with Procedure of selection stood substituted as under:- F “14(1)(a) – Determination of vacancies In respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of rule 5, the appointing authority shall determine the number of vacancies as G also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, and other categories under rule 9 and published in at least two leading daily newspapers having adequate circulation in the State as well as in concerned district inviting applications from H RAM SHARAN MAURYA v. STATE OF U. P. 499 [UDAY UMESH LALIT, J. ] candidates possessing prescribed training qualification and passed A teacher eligibility test, conducted by the Government or by the Government of India and passed Assistant Techer Recruitment Examination conducted by the Government.

(b) Recruitment Examination- For every notified vacancy under clause (a) for recruitment of Assistant Master or Assistant Mistress B of Junior Basic School, a separate Assistant Techer Recruitment Examination shall be conducted by the Government. (c) The Government may from time to time decide to appoint candidates, who are graduates along with B. Ed/B. Ed. (Special Education)/D. Ed. (Special Education) and who have also passed C teacher eligibility test conducted by the Government or by the Government of India, as trainee teachers. These candidates after appointment will have to undergo six months training programme in elementary education recognized by National Council of Teacher Education (NCTE).

The appointing authority shall determine the D number of vacancies as also the number to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, and other categories under rule 9 and advertisement would be issued in at least two leading daily news papers having adequate circulation in the State as well as in concerned district inviting applications from candidates who are E graduates along with B. Ed. /B. Ed. (Special Education)/D. Ed. (Special Education) and who have also passed teacher eligibility test conducted by the Government or by the Government of India and passed Assistant Teacher Recruitment Examination conducted by the Government. F (d) The trainee teachers, after obtaining the certificate of successful completion of six months special training in elementary education, shall be appointed as assistant teachers in junior basic schools against substantive post in regular pay-scale.

The appointing authority will be duty bound to appoint the trainee G teachers as assistant teachers within one month of issue of certificate of successful completion of said training. (2) Preparation of Merit List – The appointing authority shall scrutinize the applications received in pursuance of the advertisement under clause (a) or clause (c) of sub-rule (1) and H 500 SUPREME COURT REPORTS [2020] 12 S. C. R. A prepare a merit list of such persons as appear to possess the prescribed academic qualifications and passed Assistant Teacher Recruitment Examination be eligible for appointment. (3)(a) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (a) of sub-rule (1) of rule 14 B shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points and weightage as specified in the appendix-I. Provided that if two or more candidates obtain equal marks, the candidates senior in age shall be placed higher.

C Provided that a person working as Shiksha Mitra in Junior Basic Schools run by Basic Shiksha Parishad shall be given weightage in the recruitment of the post of Assistant Teacher, only in two consecutive Assistant Teacher Recruitment Examination conducted by the Government after July 25, 2017. D (b) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (c) of sub-rule (1) of rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix-II: E Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher.

(c) The names of candidates in the list prepared in accordance with clause (d) of sub-rule (1) of rule 14 for appointment as assistant teacher shall be same as the list prepared under clause F (c) sub-rule (3) of rule 14 unless the candidate under the said list is unable to successfully complete the six months special training course in elementary education in his first attempt. If the candidate successfully completes the six months special training in his second and final attempt, the candidate’s name shall be placed under the names of all those candidates who have completed the said six G months special training in their first attempt. (4) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2). (5) The list prepared under sub-rule (2) and arranged in accordance with clause (a) and (b) of sub-rule (3) of rule 14 shall be forwarded H by the appointing authority to the selection committee. ” RAM SHARAN MAURYA v.

STATE OF U. P. 501 [UDAY UMESH LALIT, J. ] 9. In March, 2018, TET examination was held, in which A approximately 3,86,000 candidates including about 40,000 Shiksha Mitras qualified. 10. On 21. 05. 2018, a G. O. was issued relaxing the qualifying marks of 45-40% to 33-30% for General and Reserved categories respectively. This relaxation was challenged by filing W. P. No. 20404 of 2018 by some B candidates and the operation of said G. O. was stayed by the High Court vide Order dated 23. 07. 2018. 11. On 27. 05. 2018 ATRE-2018 was conducted. In the results, 41,556 candidates were declared to have qualified with qualifying marks of 45-40% out of which, 40296 candidates applied for counselling and C were selected for appointment on 13. 08. 2018. About 4500 candidates were added to this number after re-valuation process. 12. On 28. 06. 2018, the National Council for Teachers Education (“NCTE”, for short) amended its OM dated 23. 08. 2018. The notification dated 28. 06.

2018 was to the following effect:- D “F. No. NCTE-Regl 012/16/2018. - In exercise of the powers conferred by sub-section (1) of Section 23 of Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009) and in st pursuance of notification number S. O. 750(E), dated the 31 March, 2010 issued by the Department of School Education and E Literacy, Ministry of Human Resource Development, Government of India, the National Council for Teacher Education (NCTE) hereby makes the following further amendments to the notification rd number F. N.

61-03/20/2010/NCTE(N&S), dated the 23 August, 2010, published in the Gazette of India, Extraordinary, Part III, th Section 4, dated the 25 August, 2010, hereinafter referred to as F the said notification namely:- (1) In the said notification, in para 1 in sub-para (i), in clause (a) after the words and brackets “Graduation and two year Diploma in Elementary Education (by whatever name known), the following shall be inserted, namely:- G OR “Graduation with at least 50% marks and Bachelor of Education (B. Ed. )” H 502 SUPREME COURT REPORTS [2020] 12 S. C. R.

A (2) In the said notification in para 3, for sub-para(a), the following sub-para shall be substituted namely:- “(a) who has acquired the qualification of Bachelor of Education from any NCTE recognised institution shall be considered for appointment as a teacher in classes I to V provided the person B so appointed as a teacher shall mandatorily undergo a six month Bridge Course in Elementary Education recognised by the NCTE, within two years of such appointment as primary teacher” 13. On 26. 09. 2018, while dealing with the issue as to the stage at C which the weightage is to be given to Shiksha Mitras for their experience 2 in terms of the directions of this Court in Anand Kumar Yadav and 1981 Rules, Division Bench of the High Court of Judicature at Allahabad in Kulbhushan Mishra and another vs. State of U. P. and others (Special Appeal No. 812 of 2018 etc.

) observed:- “…we are of the considered view that weightage was not D contemplated to be added to the marks obtained by a person in the Assistant Teacher Recruitment Examination. ” nd 14. On 01. 12. 2018, a G. O. was issued notifying 2 ATRE (“ATRE- 2019”, for short) for filling up 69,000 vacancies of Assistant Teachers. Paragraphs 1, 4. 1, 4. 2 and 5 of the Annexure to the G. O. were:- E “In the schools managed by the Basic Education Department the teachers imparting education have major role in the development of girls and boys studying in the schools. It has been therefore decided that in order to fill the vacant seats of the teachers in the primary schools a state level Assistant Teachers Recruitment F Examination will be conducted. Only those candidates who are graduate, trained and those who have passed the Teachers Eligibility Test will be eligible to appear in the said examination. G … … … 4.

The minimum qualification, age and residence for the application:- (1) In Rule 8 of the Uttar Pradesh Basic Education (Teachers) nd Service (22 Amendment) Rules, 2018 the described educational, H training passed, Government of India or by the State Government RAM SHARAN MAURYA v. STATE OF U. P. 503 [UDAY UMESH LALIT, J. ] the organized Teachers Eligibility Examination (Primary Level) A passed candidates will be eligible for filing the application in the Assistant Teachers Recruitment Examination, 2019. (2) By the National Teachers Education Council, New Delhi the Minimum Qualification with regard to the Class-1 to Class-5 the issued Notification dated 23. 08. 2010, 29. 07. 2011, 12. 11. 2014 and B 28. 11. 2014 (has been described in Appendix-2 in preamble 1. 2) and on 28. 06. 2018 fixed eligible candidates are entitled to file application in the Assistant Teachers Recruitment Examination, 2019. ” 5.

The Subject Matter and the Structure of the Recruitment C Examination of the Assistant Teachers:- Time of the examination 2. 30 hours (from 11. 00 a. m. to 13. 30 p. m. ) Total Marks 150 Type of questions very small optional question, No. of questions D 150 The level of the Subject Matter:- (1) Hindi Language, Sanskrit and English, Science, Maths, Environment and Social Studies (upto Class 12 level). (2) Teaching Efficiency, Child Psychology, Information Technology, E Life Efficiency Management and Attitude – (Upto D. L. Ed. syllabus). ” The tabular chart appended thereafter was identical to one in G. O. dated 09. 01. 2018 for ATRE-2018. The chart dealt with same subjects with identical syllabus and marks against each subject. F 15. An advertisement was thereafter issued on 29. 12. 2018 notifying that ATRE-2019 would be conducted on 06. 01. 2019. 16. On 03. 01. 2019, an order was passed by the High Court of Judicature at Allahabad in Writ A No.

27461 of 2018 to the following G effect:- “The grievance raised by means of the present writ petition is that without notifying the minimum qualifying marks the respondents are going to conduct written examination of Assistant Teacher Recruitment Examinatin-2019 on 06. 01. 2019. H 504 SUPREME COURT REPORTS [2020] 12 S. C. R. A According to the petitioners, earlier when the examinations were conducted, minimum qualifying marks were duly declared by the respondents. In this regard the circular issued by the State st Government dated 01 December, 2018 (Annexure-1 to the writ petition) has been placed before this Court. B Standing Counsel has put in appearance on behalf of respondent nos. 1 and 3. Sri A. K. Yadav has put in appearance on behalf of respondent no. 2. All the respondents are granted three days’ time to seek instruction in the matter. C Put up this matter as fresh on 08. 01. 2019. ” 17. ATRE-2019 was conducted on 06. 01.

2019 without there being any specification of minimum qualifying marks. 18. However, on the next day i. e. on 07. 01. 2019, following order was passed by the Special Secretary to the State Government:- D “To 1. Director, State Education Research and Training Council, Uttar Pradesh, Lucknow. E 2. Secretary, Exam Controller Authority, U. P. Prayagraj. Basic Siksha Anubhag – 4 Lucknow Date 07 January 2019. Subject:- Regarding prescribing the minimum qualifying marks in respect of ‘Assistant Teacher Recruitment Exam 2019’ for F Primary Schools run by Uttar Pradesh, Basic Siksha Council. Sir, Refer to the letter no. B. S. C. 16426-27/2018-19 dated 05 January, 2019 of the Secretary, Basic Siksha Council regarding aforesaid subject, whereby it has been requested to prescribe the minimum G qualifying marks for the ‘Assistant Teacher Recruitment Exam 2019’. 2. In this regard I have been directed to state that after proper deliberation by the Government, in pursuant to the G. O. No.

2056/ 68-4-2018 dated 01. 12. 2018 issued for conducting the ‘Assistant H RAM SHARAN MAURYA v. STATE OF U. P. 505 [UDAY UMESH LALIT, J. ] Teacher Recruitment Exam 2019’, for the purpose of result A minimum qualifying marks are being prescribed. This Minimum Qualifying Marks will be only for ‘Assistant Teacher Recruitment Exam 2019’:- (a) For the candidates of General Category, candidates getting 97 marks of the total 150 meaning 65% and more will be B considered passed for ‘Assistant Teacher Recruitment Exam 2019’. (b) For the candidates of all other Reserved Categories, candidates getting 90 marks of the total 150 meaning 60 percent and more will be considered passed for ‘Assistant Teacher C Recruitment Exam 2019’.

(c) Candidates qualified on the basis of aforesaid ‘a’ and ‘b’ will be eligible to apply against the 69000 vacancies advertised and on qualifying merely on the basis of aforesaid minimum marks will not have any claim for recruitment because this D exam is only one of the eligible standard for recruitment. (d) In case of more candidates qualifying than the prescribed number of posts (69000), of the total qualified candidates, eligible candidates will be selected on the basis of final merit list against the advertised posts in accordance with Appendix- E I of twentieth Amendment of Uttar Pradesh Basic Siksha (teachers) Rules, 1981. Remaining candidates will automatically be out from the selection process and they will not have any claim on the basis of the ‘Assistant Teacher Recruitment Exam 2019’. F (e) No communication will be entertained in respect of the Minimum Qualifying Marks. ” 19. On or about 16. 01. 2019, the first petition namely W. P. No.

118(SS) of 2019 was filed by some Shiksha Mitras challenging the aforementioned Order dated 07. 01. 2019 and assailing the fixation of G minimum qualifying marks. About 99 Writ Petitions in all were filed by Shiksha Mitras questioning the Order dated 07. 01. 2019. rd 20. On 24. 01. 2019, 23 Amendment to 1981 Rules was published. By this Amendment, the essential qualifications in Rule 8(ii) were substituted as under:- H 506 SUPREME COURT REPORTS [2020] 12 S. C. R. A “(ii)(a) Bachelors degree from a University established by law in India or a degree recognized by the Government equivalent thereto together with any other training course recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher’s Certificate (BTC), two year BTC (Urdu) Vishisht BTC. Two year Diploma in B Education (Special Education) approved by Rehabilitation council of India or four year Degree in Elementary Education (B. El. Ed.

), two year Diploma in Elementary Education (by whatever name known) in accordance with the National Council of Teacher Education (Recognition, Norms and Procedure), Regulations 2002, C Graduation with at least fifty percent marks and Bachelor of Education (B. Ed. ), provided that the person so appointed as a teacher shall mandatorily undergo a six month Bridge Course in Elementary Education recognised by the NCTE, within two years of such appointment as primary teacher or any training qualifications to be added by National Council of Teacher D Education for the recruitment of teachers in primary education. and teacher eligibility test passed conducted by the Government or by the Government of India. ” E Consequently, Graduates having 50 per cent or more marks and holding degree of Bachelor of Education (B. Ed. ) became eligible for posts of Assistant Master and Assistant Mistresses in Junior Basic Schools in the manner laid down in the Amendment.

The concerned provisions in 1981 Rules dealing with eligibility of such candidate were given retrospective effect from 01. 01. 2018. F th 21. On 07. 03. 2019, 24 Amendment to 1981 Rules was published further amending Rule 8(ii) by adding sub-clause (aa) after sub-clause (a) to the following effect:- “(aa) Graduation with at least fifty percent marks and Bachelor G of Education (B. Ed. ), provided that the person so appointed as a teacher shall mandatorily undergo a six month Bridge Course in Elementary Education recognised by the NCTE, within two years of such appointment as primary teacher or any training qualifications to be added by National Council of Teacher Education for the recruitment of teacher in primary education, H RAM SHARAN MAURYA v. STATE OF U. P. 507 [UDAY UMESH LALIT, J. ] and teacher eligibility test passed conducted by the Government A or by the Government of India. ” This Amendment gave retrospective effect to sub clause (aa) of Rule 8(ii) from 28. 06. 2018. 22.

A Single Judge of the High Court allowed W. P. No. 1188(SS) B of 2019 (Mohd. Rizwan and others vs. State of U. P. ) and other 98 Writ Petitions by common judgement and order dated 29. 03. 2019. Some of the relevant passages from the judgement are:- “1. The order under challenge is Government Order bearing No. 46/68-4-2019-2056/2019 dated 7. 1. 2019 issued by the Special C Secretary, Basic Education Anubhag-4, Government of U. P. , Lucknow fixing the minimum qualifying marks for Assistant Teacher Recruitment Examination, 2019 as 65% for general category and 60% for reserved category. Undisputedly, no minimum qualifying marks have been fixed vide Government Order dated 01. 12. 2018 and notification/advertisement dated 05. 12. 2018, D pursuant to which, the examination in question has been conducted on 6. 1. 2019. Undisputedly, the exercise for fixing minimum qualifying marks have been started pursuant to the letter bearing no. B. Sh. P. -16426-27/2018-19 dated 5. 1.

2019 preferred by the Secretary, Board of Basic Education to the Government making E request for fixation of minimum qualifying marks for the examination in question, meaning thereby, the State Government must be intending something other way to declare the result of Assistant Teacher Examination, 2019. … … … F 157. Under the given circumstances it has been noted that the Assistant Teacher Recruitment Examination may not be treated as shortlisting examination by prescribing such a high minimum qualifying marks as the same may affect the rights of the petitioners (Shiksha Mitras) who may likely to be deprived from getting nd weightage of 25 marks which is statutory prescription in the 22 G Amendment. Further, since the Assistant Teacher Recruitment Examination is not the minimum qualification prescribed by the Academic authority and the same has been added in the Rules of th nd 1981 by way of 20 and 22 Amendment, therefore, the qualifying marks should be minimum qualifying marks.

Further, the said H 508 SUPREME COURT REPORTS [2020] 12 S. C. R. A qualifying marks should be seen like minimum. Further, the Shiksha Mitras should be subjected for the same treatment as has been given to them in earlier examination of Assistant Teacher Recruitment Examination-2018 in terms of judgment of Hon’ble Apex Court in re: Anand Kumar Yadav (supra). Since this examination would be the second and last examination for the B Shiksha Mitras in terms of the aforesaid judgement of Hon’ble Apex Court, therefore, this examination i. e. Assistant Teacher Recruitment Examination-2019 should be conducted in a similar manner as the Assistant Teacher Recruitment Examination-2018 has been conducted. C … … … 159.

To be more precise, since to provide weightage to the candidates, who have qualified Assistant Teacher Recruitment Examination, is a legal prescription under Rule 14(3)(a) of the Rules and the same weightage has been provided in the earlier D examination to those candidates, who have qualified Assistant Teacher Recruitment Examination with the minimum 45% and 40% qualifying marks, therefore, enhancing the qualifying marks up to 65% and 60%, permitting the candidates, who are having B. Ed. qualification and quality point marks of those candidates may not be determined as per Appendix-I is nothing but appears E to be an attempt to oust those persons, who are eligible for the weightage. … … … 163. It would be apt to consider here the relevant provision of F law, which provides about qualifying marks in Teacher Eligibility Test and qualifying marks in Assistant Teacher Recruitment Examination.

As per Rule 2(t) of the Rules 1981 (as amended by Twenty Second Amendment, 2018), qualifying marks in Teacher Eligibility Test will be such as may be prescribed from time to time by the NCTE, whereas as per Rule 2(x), qualifying marks of G Assistant Teacher Recruitment Examination means such minimum marks as may be determined from time to time by the Government. Conjoint reading of aforesaid provisions reveals that for Teacher Eligibility Test, qualifying marks shall be prescribed by the NCTE and there is no rider as to what qualifying marks should be fixed, H RAM SHARAN MAURYA v. STATE OF U. P. 509 [UDAY UMESH LALIT, J. ] therefore, for Teacher Eligibility Test, the qualifying marks is 60% A and 55% for both the category and there is no quarrel on it. 164. However, in Assistant Teacher Recruitment Examination, it has categorically been indicated in Rule 2(x) that the qualifying marks means such minimum marks determined by the State Government from time to time.

On account of aforesaid B prescription, the State Government has firstly determined the minimum qualifying marks as 45% and 40% for both the categories and thereafter, for the same selection of Assistant Teacher Recruitment Examination, it has been fixed as 33% and 30% as the State Government could have determined any minimum marks C from time to time, therefore, it is the domain of the State Government to fix the qualifying marks for the Assistant Teacher Recruitment Examination, but such qualifying marks should be ‘minimum’ and ‘minimum’ should be seen like ‘minimum’. ‘Minimum’ may not be seen as ‘maximum’. D 165. Further, since the person, who qualifies the Assistant Teacher Recruitment Examination with minimum qualifying marks shall not be appointed on the post of Assistant Teacher, rather, he/she shall only be eligible to reach in the next stage, thereby he/she shall be awarded weightage and the his/her total quality points shall be calculated.

On the basis of total quality points, the candidate E shall come in the zone of eligible candidate, who shall be appointed according to his/her merit. Meaning thereby, qualifying the examination of Assistant Teacher Recruitment Examination does not make the person eligible to be selected on the post of Assistant Teacher, but it only makes him/her eligible to get weightage, F therefore, the submission of learned counsel for the State-respondents that so as to short list the eligible candidates, merit of Assistant Teacher Recruitment Examination has been enhanced up to 65% is misfit argument. … … … G 172. Admittedly, the examinees were not aware about the decision of the State Government regarding minimum qualifying marks before the examination in question so besides the fact that rules of game may not be fixed after start of the game, one more aspect is relevant here that in view of the dictum of Hon’ble Apex Court in re: P. V.

Indirsan (2) (supra) and Rahul Dutta (supra) the H 510 SUPREME COURT REPORTS [2020] 12 S. C. R. A minimum eligibility marks should be declared before the examination and if the marks have not been fixed prior to the examination in question, may not be fixed later on, therefore the impugned order dated 07. 01. 2019 would be said to have been issued in derogation of aforesaid laws of the Hon’ble Apex Court. B 173. Therefore, in view of the aforesaid findings I am of the considered view that by not declaring the minimum qualifying marks of Assistant Teacher Recruitment Examination before holding examination is causing prejudice to the petitioners, including all aspirants, as they have been denied an opportunity to adequately prepare for the result.

Further, since the State Government had C to conduct two examinations to appoint Assistant Teacher pursuant to the direction of Hon’ble Apex Court in re: Anand Kumar Yadav (supra), therefore, the manner of these two examinations should be similar inasmuch as for Shiksha Mitras, Assistant Teacher Recruitment Examination-2019 was the second and last D examination to get benefit of weightage as per judgement of Anand Kumar Yadav (supra). ” 22. 1 While considering the issue of eligibility of B. Ed. candidates, it was observed:- “154. It is true that there is no challenge in any of the writ E petitions that the inclusion of B. Ed. candidates is unwarranted and uncalled for and they may not be selected getting quality point marks as per Appendix-I, but circumstances under which the aforesaid anomaly has been committed by the State Government has nowhere been explained in the counter affidavit or by way of argument. F … … … 168. I also find favour in the submission of Sri U. N.

Misra that it cannot be comprehended as to what is the object of enhancing minimum qualif

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