Amit Kumar Dwivedi vs State Of U.P. And 5 Ors.
2018 Latest Caselaw 437 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Chief Justice's Court
 
Case :- SPECIAL APPEAL No. - 641 of 2014
 
Appellant :- Amit Kumar Dwivedi
 
Respondent :- State Of U.P. And 5 Ors.
 
Counsel for Appellant :- Siddharth Khare, Ashok Khare, Mohd. Yaseen
 
Counsel for Respondent :- C.S.C., Nand Kishore Singh, Neeraj Tripathi AAG, Vivek Rai ACSC
 
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Hon'ble Dilip B. Bhosale, Chief Justice
 
Hon'ble Pradeep Kumar Singh Baghel, J.

Hon'ble Suneet Kumar, J.

A Division Bench of this Court finding conflicting view expressed by two Division Benches of this Court in Smt. Usha Kumari v. State of U.P. and others1, Shalini v. State of U.P. and others2 and Smt. Priyanka Mall v. State of U.P. and others3, vide its order dated 28th September, 2015 referred the following questions for determination by a larger Bench:

"Thus, in view of the conflicting views expressed by the Division Benches in Smt. Usha Kumari and Shalini on the one hand and Priyanka Mall on the other, it would be appropriate to refer the following questions for determination by a Larger Bench:

(i) Whether a candidate can be denied engagement as a Shiksha Mitra if the process for selection by issuance of an advertisement had commenced prior to the ban imposed by the Government Order dated 2 June 2010 ?

(ii) Whether the view expressed by the two Division Benches in Smt. Usha Kumari and Shalini is correct or the view expressed by the Division Bench in Priyanka Mall is correct?"

Pursuant to the said reference the matter is placed before us.

Before adverting to the issue raised in the reference order and the submissions of learned counsel for the parties, we at the outset point out that the issue referred to this larger Bench stands answered by another Full Bench of this Court, in which one of us (Hon. Mr. Justice Dilip B. Bhosale, Chief Justice) was a Member, after the present reference order, on 16th December, 2016 in Dinesh Chandra Shukla v. State of U.P. and others4.

In Dinesh Chandra Shukla (supra) the following questions of law were referred by a Division Bench of this Court:

"(a) Whether inclusion of the name of a person in the select panel with reference to an advertisement published prior to the enforcement of the Government Order dated 02.06.2010 i.e. 01.04.2010 would confer any right of appointment even after 01.04.2010.

(b) Whether in view of the Government Order dated 02.06.2010 no fresh appointment on the post of Shiksha Mitra can be made even if the selection had taken place earlier.

(c) Whether the law laid down by the Division Bench of this Court in the case of Smt. Usha Kumari (supra) and Sheela Yadav (supra) is the correct law."

The Full Bench precisely dealt with this aspect and accordingly answered the reference in the following terms:

"6. It is clear from the judgment of the larger Bench in Sandhya Singh, that mere selection or mere inclusion of name in the select list does not confer any right upon the selected candidate and, hence, the selected candidate, to whom the appointment is not offered, cannot claim, as a right, for appointment in view of the Right to Education Act, 2009 and the Government Order dated 02.06.2010. None of the counsel for the parties made any attempt to persuade us to take a differing view than the view taken by the Full Bench in Sandhya Singh (supra).

In the circumstances, we answer the first question in the negative; the second question in the affirmative and, insofar as the third question is concerned, we hold that the law laid down by the Division Bench of this Court in Usha Kumari and Sheela Yadav is not the correct enunciation of the law."

Thus, the larger Bench in Dinesh Chandra Shukla (supra) has already held that Smt. Usha Kumari's case and Smt. Sheela Yadav's case have not been correctly decided.

Insofar as the case of Smt. Priyanka Mall (supra) is concerned it appears that it was not considered by the Full Bench in Dinesh Chandra Shukla's case as the Full Bench has followed earlier Full Bench judgment in Km. Sandhya Singh & Ors. v. State of U.P. & Ors.5 hence it was not necessary to consider Smt. Priyanka Mall's case because in the said case also it has been held that after the Government Order dated 2.6.2010 no engagement of Shiksha Mitra is permissible under the law.

The next question that arises for consideration is as to whether law laid down by the Full Bench in Santosh Kumar Singh v. State of U.P. and others6 is applicable in the case of Shiksha Mitra.

From the referring order it is evident that in the past there were several conflicting views by the various Benches in respect of scheme of Shiksha Mitra. Therefore, it is apt to give a brief background of the scheme of Shiksha Mitra.

For the first time the scheme of Shiksha Mitra was introduced vide a Government Order dated 26th May, 1999. The State Government in view of a large number of vacancies in Junior Basic Schools and Senior Basic Schools took a policy decision to maintain teacher-taught ratio of 1:40 in the village schools and initiated the scheme of Shiksha Mitra. The said Government order was followed by another Government Order dated 01st July, 2001, wherein it was provided to engage Shiksha Mitra identified by the Village Level Committee. In the Government order it was made clear that it is a community service and not the employment. The educated youths were invited to impart education in the schools run in rural areas on honorarium basis. The details of terms and conditions of their engagement, honorariums, etc. were provided in the aforesaid Government orders. The salient feature of the scheme was that it was a community service. Engagement was only for one academic session on honorarium basis. Later, it was provided that engagement was limited for the academic session ending on 31st May. Subsequently, such appointments were made renewable on the basis of satisfactory work. The aforesaid Government orders do not create posts in the institution(s) for engagement of Shiksha Mitra. Initially it was implemented in the rural areas but later it was extended in the urban areas also. Under the said scheme in the last decade several thousands of Shiksha Mitras were engaged from time to time.

The Parliament enacted the Right of Children to Free and Compulsory Education Act, 20097 and it came into force since 01st April, 2010. The above Act was enacted with laudable object to provide free and compulsory education to the children of the age group of 6 to 14 years. The Central Government vide a notification issued under Section 23 of the RTE Act, 2009 notified the National Council for Teacher Education8 as the competent authority, which was empowered to prescribe the minimum requisite qualification for appointment of teachers in primary schools and junior high schools.

In exercise of the powers under Section 23 of the RTE Act, 2009, the Right of Children to Free and Compulsory Education Rules, 20109 was framed by the Central Government and the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 201110 was framed by the State Government of Uttar Pradesh laying down qualifications for teachers in Junior Basic Schools (Primary Schools) and Senior Basic Schools (Classes VI to VIII). In the notification dated 23rd August, 2010 it was laid down that the teachers appointed prior to 23rd August, 2010 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, 200111.

The notification dated 23rd August, 2010 issued by the NCTE regarding minimum qualification for the teachers in primary and senior basic schools fell for consideration before another Full Bench of this Court in Shiv Kumar Sharma and others v. State of U.P. and others12. The Full Bench held that after the enforcement of RTE Act, 2009 only those candidates can be appointed as teachers who have essentially possessed the qualification of TET in terms of the notification of 2010 issued by the NCTE.

The State Government pursuant to enforcement of the RTE Act, 2009 issued a Government Order dated 02nd June, 2010 thereby banning fresh appointments of Shiksha Mitras. The said Government order has been extensively considered in Sandhya Singh's case.

In the meantime the State Government vide notification dated 30th May, 2014 amended the Uttar Pradesh Basic Education (Teachers) Service Rules, 198113 by the Uttar Pradesh Basic Education (Teachers) (Nineteenth Amendment) Rules, 2014 providing a source of recruitment under Rule 5(2) thereof by appointment of Shiksha Mitras against the sanctioned post; academic qualification for the recruitment of Shiksha Mitras was laid down by amending Rule 8(2)(c) and for the absorption of Shiksha Mitras as Assistant Teacher in Junior Basic Schools under Rule 14(6). The State Government also amended the UPRTE Rules, 2011 by notification dated 30th May, 2014 introducing the provision of Rule 16-A therein by the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules, 2014.

The aforesaid amendments made by the State Government came to be challenged in a large number of writ petitions before this Court.

Against the judgment of Shiv Kumar Sharma (supra) a large number of special leave petitions were filed in the Supreme Court. The Supreme Court vide its judgment and order dated 27th July, 2015 directed this Court to constitute a Full Bench and consider the aforesaid amendment. In compliance therewith, a three-Judge Bench was constituted which considered the matter in the case of Anand Kumar Yadav and others v. Union of India and others14 and other connected matters. The Full Bench found Rule 16-A of the UPRTE Rules, 2011; Rule 8(ii)(c) for absorption of Shiksha Mitra in the Uttar Pradesh Basic Education (Teachers) Service (Nineteenth Amendment) Rules, 2014 and all consequential executive orders of the State Government providing for absorption of the Shiksha Mitras into regular service of the State as Assistant Teacher as arbitrary and ultra vires and accordingly the same were quashed and set aside.

The matter was carried to the Supreme Court in Civil Appeal No. 9529 of 2017 (State of U.P. and another etc. v. Anand Kumar Yadav and others etc.)15. The Supreme Court in a batch of civil appeals affirmed the judgment of the Full Bench of this Court in Anand Kumar Yadav's case and dismissed all the appeals. The Supreme Court has quoted with approval paragraphs of the Full Bench in Anand Kumar Yadav (supra) in its judgment. Following discussion and conclusion are apt and relevant for our purpose:

"103. In 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."

While affirming the said judgment the Supreme Court has ruled thus:

"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 Notification dated 23rd 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 rules relating to qualifications. The Shiksha Mitras in the present case do not fall in the category of pre 23rd August, 2010 Notification whose appointment could be regularized.

29. Further difficulty which stares one in the face is the law laid down by this Court on regularization of contractually appointed persons in public employment. Appointment of Shiksha Mitras was not only contractual, it was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers. Thus, they could not be 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.

30. In view of our conclusion that the Shiksha Mitras were never appointed as teachers as per applicable qualifications and are not covered by relaxation order under Section 23(2) of the RTE Act, they could not be appointed as teachers in breach of Section 23(1) of the said Act. The State is not competent to relax the qualifications."

In view of the judgment of the Supreme Court in State of U.P. v. Anand Kumar Yadav (supra), we are of the view that all the issues relating to engagement and continuance of Shiksha Mitras has been set at rest hence this Court cannot reopen those issues again.

For the reasons stated above, we find that no further consideration is required to be made regarding continuance of Shiksha Mitras, who have been appointed prior to 02nd June, 2010 in view of authoritative pronouncement of the Supreme Court in State of U.P. v. Anand Kumar Yadav's case.

Insofar as the reference of decision of the Full Bench in Santosh Kumar Singh (supra) in the referring order is concerned, the Full Bench in the said case was called upon to consider the effect of the rescission of Removal of Difficulties Orders under Section 33-E of the Uttar Pradesh Secondary Education Services Selection Board Act, 198216 (U.P. Act No. 5 of 1982) with effect from 25th January, 1999. Relevant questions of reference made to the Full Bench in Santosh Kumar Singh (supra) read as under:

"(a) Whether even after the rescission of Removal of Difficulties Orders under Section 33-E of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (Act) (U.P. Act No. 5 of 1982), with effect from 25 January 1999, the Committee of Management retains the power to make ad hoc appointment against short term vacancies only because it had published an advertisement for the purpose prior to 25 January 1999;

(b) Whether on enforcement of Section 33-E of the Act rescinding the Removal of Difficulties Orders issued earlier, the Committee of Management has lost all powers to make ad hoc appointment against short term vacancies;

(c) Whether under Section 16-E of the Intermediate Education Act 1921 (Act of 1921), there is a power with the Committee of Management to make ad hoc appointment against short term vacancies and if so then for what period; and

(d) Whether the Division Bench in the case of Subhash Chandra Tripathi Vs. State of U.P., Writ-A No. 70721 of 2010, decided on 14 July, 2014, has laid down the correct law."

The questions for determination before the Full Bench was that after the rescission of the Removal of Difficulties Orders, whether the Committee of Management has the power to appoint adhoc/ temporary teacher in the institution. The Full Bench answered the reference in affirmative with reference to Section 16-E (11) of the U.P. Intermediate Education Act, wherein the Committee of Management is empowered to make temporary appointments till the end of the academic session. The Full Bench held that since there is no inconsistency between the Intermediate Education Act and the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 in absence of any power under the Act, 1982, as the object of Section 16-E(11) is to ensure that whether a temporary vacancy arises as a result of fortuitous circumstances such as leave, death, termination or otherwise, the educational needs of the students should not be disturbed.

In our view, the said law is not applicable in the case of the Shiksha Mitras, which is a contractual appointment and is not governed under the provisions of any statutory rules. Hence, in our view, the law laid down in Santosh Kumar Singh's case has no application in the matter of engagement of Shiksha Mitra.

In addition to above, the issue with regard to engagement and continuance of Shiksha Mitra is no more res integra in view of the judgment of the Supreme Court in State of U.P. and others v. Anand Kumar Yadav and others (supra). Accordingly, we answer the reference in the following terms:

(i) Our answer to the first question is that no engagement of Shiksha Mitra can be made in view of the judgment of the Full Bench in Anand Kumar Yadav (supra), which has been affirmed by the Supreme Court in the case of State of U.P. and others v. Anand Kumar Yadav (supra).

(ii) Our answer to the second question is that Usha Kumari's case has already been held to be bad by the Full Bench in Dinesh Chandra Shukla's case. For the same reason the law laid down in Shalini (supra) is also overruled. As regards the view taken by the Division Bench in Priyanka Mall's case, wherein it is held that after the Government Order dated 02nd June, 2010 the Shiksha Mitra has no right to continue, it is accordingly affirmed.

The reference to the Full Bench is answered in the aforesaid terms.

The special appeal shall now be placed before the appropriate Bench for disposal in the light of this judgment.

Order Date :-9.5.2018

SKT/Digamber

(Dilip B. Bhosale, C.J.)

(P.K.S. Baghel, J.)

(Suneet Kumar, J.)