Seema & Ors. vs Union Of India Thru. Secy. Human ...
2018 Latest Caselaw 814 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 23
 

 
Case :- SERVICE SINGLE No. - 3883 of 2018
 

 
Petitioner :- Seema & Ors.
 
Respondent :- Union Of India Thru. Secy. Human Resources & Ors.
 
Counsel for Petitioner :- Laltaprasad Misra,Vivek Kumar Rai
 
Counsel for Respondent :- C.S.C.,A.S.G.,Manish Mishra,Shudhanshu Chauhan
 
With
 
Case :- SERVICE SINGLE No. - 5064 of 2018
 

 
Petitioner :- Sudhir Kumar And 7 Ors.
 
Respondent :- State Of U.P Thru Secy. Basic Edu.Civil Sectt.Lko.&Ors.
 
Counsel for Petitioner :- Sm Singh Royekwar,Dr. Deepti Singh,Sachin Kumar Srivastava
 
Counsel for Respondent :- C.S.C,Ajay Kumar,Himanshu Raghav
 
With
 
Case :- SERVICE SINGLE No. - 5066 of 2018
 

 
Petitioner :- Sandeep Kumar Pal And 23 Ors.
 
Respondent :- State Of U.P Thru Secy. Basic Edu.Civil Sectt.Lko.&Ors.
 
Counsel for Petitioner :- Sm Singh Royekwar,Dr. Deepti Singh,Rajesh Kumar Pal
 
Counsel for Respondent :- C.S.C,P.K. Singh Bisen
 
With
 
Case :- SERVICE SINGLE No. - 2058 of 2018
 

 
Petitioner :- Ran Jit Kumar And 48 Ors.
 
Respondent :- State Of U.P. Thru Secy.Basic Edu.Civil Sectt.Lucknow & Ors.
 
Counsel for Petitioner :- Sm Singh Royekwar,Dr. Deepti Singh,Sachin Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Ajay Kumar,Rahul Shukla
 
With
 
Case :- SERVICE SINGLE No. - 2042 of 2018
 

 
Petitioner :- Dinesh Kumar And 20 Ors.
 
Respondent :- State Of U.P. Thru Secy.Basic Edu.Civil Ssectt.Lucknow &Ors.
 
Counsel for Petitioner :- Sm Singh Royekwar,Dr. Deepti Singh,Sachin Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manish Mishra
 
With
 
Case :- SERVICE SINGLE No. - 11951 of 2018
 

 
Petitioner :- Sushil Kumar And Ors.
 
Respondent :- State Of U.P. Thru. Secy. Basic Edu. And Ors.
 
Counsel for Petitioner :- Ram Kumar Singh
 
Counsel for Respondent :- C.S.C.,Ajay Kumar,Shobhit Mohan Shukla
 
With
 
Case :- SERVICE SINGLE No. - 11744 of 2018
 

 
Petitioner :- Lalita Yadav And Ors.
 
Respondent :- U.O.I. Thru. Secy. Ministry Of Human Resources And Ors.
 
Counsel for Petitioner :- O.P. Yadav
 
Counsel for Respondent :- C.S.C.,A.S.G.,Sudhansu Chauhan
 
With
 
Case :- SERVICE SINGLE No. - 10845 of 2018
 

 
Petitioner :- Parmanand And Others
 
Respondent :- State Of U.P. Thru. Prin. Secy. Dept.Basic Education & Ors.
 
Counsel for Petitioner :- Santosh Kumar Shukla,Aditya Vikram Singh
 
Counsel for Respondent :- C.S.C.,Ghaus Beg,Jyoti Sikka
 
With
 
Case :- SERVICE SINGLE No. - 9274 of 2018
 

 
Petitioner :- Ramesh Kumar Maurya And 25 Ors.
 
Respondent :- State Of U.P. Thru Prin.Secy.Basic Civil Sectt.Lucknow &Ors.
 
Counsel for Petitioner :- Akhilesh Kumar Chaturvedi,Aditya Vikram 
 

 
Singh
 

 
Counsel for Respondent :- C.S.C., Ghaus Beg
 

 
With
 
Case :- SERVICE SINGLE No. - 11913 of 2018
 

 
Petitioner :- Manish Kumar And Ors.
 

 
Respondent :- U.O.I. Thru. Secy.,Ministry Of Human Resources And Ors.
 
Counsel for Petitioner :- Dileep Kumar Mishra
 
Counsel for Respondent :- C.S.C.,A.S.G.,S. Chauhan,Shobhit Mohan Shukla
 
With
 
Case :- SERVICE SINGLE No. - 12657 of 2018
 

 
Petitioner :- Shailendra Singh And Ors.
 

 
Respondent :- U.O.I. Thru. Secy. Ministry Of Human Resources & Ors.
 
Counsel for Petitioner :- Ajai Kumar Singh,Bahar Ali
 
Counsel for Respondent :- C.S.C.,A.S.G.,S. Chauhan,Shivam Sharma
 

 
With
 

 
Case :- SERVICE SINGLE No. - 12933 of 2018
 

 
Petitioner :- Rashmi Kushwaha And Ors.
 

 
Respondent :- U.O.I. Thru. Secy. Ministry Of Human Resources & Ors.
 
Counsel for Petitioner :- Umesh Chandra,A.K.Srivastava,Ram Sewak
 
Counsel for Respondent :- A.S.G.,S. Chauhan
 

 
With
 
Case :- SERVICE SINGLE No. - 8643 of 2018
 

 
Petitioner :- Shushil Kumar Gupta And 24 Ors.
 
Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu.Civil Sectt.Lko.&Ors.
 
Counsel for Petitioner :- Anand Dubey
 
Counsel for Respondent :- C.S.C.,Manish Mishra,P.K. Singh Bisen
 

 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Dr. L.P. Misra, assisted by Vivek Kumar Rai, Sri S.M. Singh, Dr. Deepti Singh, Sri O.P. Yadav, Sri Santosh Kumar, Sri Ajai Kumar, Sri Bahar Ali, Sri Umesh Chandra, Sri Ram Kumar, learned counsels for the petitioners, Sri Ramesh Pandey, learned Chief Standing Counsel assisted by Sri Alok Pandey, learned Standing Counsel, Sri Shudhanshu Chauhan, learned counsel for opposite party no. 6, Sri Ajai Kumar, learned counsel for Board of Basic Education and Sri Himanshu Raghav, learned counsel on behalf of intervenors.

2. In the batch of these writ petitions the common question of law and fact is involved and more or less prayers of all the writ petitions are same, therefore, these writ petitions are being decided, with the consent of the counsel for the writ petitioners of all the writ petitons, by a common judgment. The prayers of leading writ petition No. 3883(S/S) of 2018 : Seema and others vs. Union of India and others are being reproduced herein below:

"(i) to issue a writ, order or direction in the nature of Certiorari quashing the impugned office order dated 30.11.2017 issued by the respondent cancelling the appointment of the petitioner as Assistant Teachers as contained in Annexure no. to this writ petition.

(ii) to issue a writ, order or direction in the nature of Certiorari quashing the notification issued by the respondents by way of website advertisement dated 7.12.2017 and subsequent guidelines dated 09.01.2018 and advertisement of recruitment of 68,500 Assistant Teachers dated 23.01.2018 calling upon new appointments against the vacancies created after cancelling the appointment of petitioners and

(iii) to issue a writ, order or direction in the nature of Mandamus directing the respondents for just, proper and effective enforcement of the fundamental rights of the petitioners under Article 21 and to issue a writ of mandamus to the respondents to allow the petitioners to work as Assistant Teachers in various Junior Basic Schools run, managed and controlled by Uttar Pradesh Basic Education Board, Lucknow and to pay their regular salary as such admissible to them.

(iv) to award the cost of the petition in favour of the petitioners.

(v) to issue any other writ, order or direction in the nature and manner which this Hon'ble Court deems fit and proper in the circumstances of the case."

3. The petitioners of these writ petitions are such who were appointed as Shiksha Mitras after promulgation of the Government order dated 26.5.1999 and working as Teacher on 31.05.2015.

4. In purported exercise of powers conferred by Section 38 of the Right of Children to Free and Compulsory Education Act, 2009 (Act of Parliament No. 35 of 2009), the State of U.P. framed " The U.P. Right of Children to Free and Compulsory Education (First Amendment) Rules, 2014 (hereinafter referred as 2014 Rules), notified in the Official Gazette dated 31st May, 2014 and thereby inserted Rule 16-A in the U.P. Basic Education (Teachers Service) Rules, 1981 (hereinafter referred as 1981 Rules), reads as under:-

"16-A. Notwithstanding anything contained in rules 15 and 16, the State Government may, in order to implement the provisions of the Act, by order make provisions for relaxation of minimum educational qualification for appointment of such Shiksha Mitras as Assistant Teachers in Junior Basic Schools as are considered otherwise eligible."

5. Vide this amendment; certain other amendments were also made in the definition clause and Rule 2(1)(k) defined Shiksha Mitra in the following term:-

"2(1)(k) "Shiksha Mitra" means a person working as such in junior basic school run by Basic Shiksha Parishad selected in accordance with Government orders prior to the commencement of these rules."

6. The State Government after framing of 2014 Rules amending 1981 Rules proceeded to regularize Shiksha Mitras by granting relaxation and these writ petitioners were regularly appointed as Assistant Teachers in Junior Basic Schools run and managed by U.P. Basic Shiksha Parishad before 31.03.2015 by granting relaxation as envisaged under inserted Rule 16-A and were stationed as Assistant Teachers in such Junior Basic Schools on 31.05.2018.

7. The regular appointment of Shiksha Mitras as Assistant Teachers in furtherance of Rule 16-A as inserted vide 2014 First Amendment Rules came to be challenged before this Court through a bunch of writ petitions basically on the premise that the Shiksha Mitras appointed after issuance of the Government Order dated 26.05.1999 did not possess the requisite qualification as prescribed under 1981 Rules for appointment as Assistant Teachers, that their appointment as Shiksha Mitras could not be treated as an appointment of a teacher because the recruitment rules as prescribed under 1981, Rules were not followed while making such appointments and that the State Government was not competent to grant any perpetual relaxation of qualification of TET as prescribed by the National Council for Teachers Education (hereinafter referred in short as NCTE) vide notification dated 23.08.2010.

8. The bunch of writ petitions was referred for adjudication before a full Bench of this Court and the Hon'ble Supreme Court after analyzing the legislative, regulatory and administrative frame work leading to the appointment of Shiksha Mitras, their continuance and their ultimate regularization / absorption resulting in their appointment as regular Assistant Teacher in Junior Basic Schools and after analysing the submissions made for and against held that Shiksha Mitras were appointed under a Government order and were not appointed as Teachers by following the relevant recruitment rules, they were not having the requisite qualifications prescribed under 1981 Rules, the rule making exercise on the part of the State Government resulting in framing of 2014 First Amendment Rules was beyond the competence of the State Government inasmuch as that NCTE Act and the Right of Children to Free and Compulsory Education Act, 2009 were the Acts of Parliament and there was power with the Central Government alone to grant relaxation from requisite qualification and, that too, for a limited period and not in perpetuity.

9. Dr. L.P. Misra, learned counsel for the petitioner has submitted with vehemence that a perusal of the Full court judgment dated 12.09.2015 makes it clear that the Full Bench judgment in Writ-A No. 34833 of 2018 dated 12.09.2015 [reported in 2015(33) LCD 3084] and other connected bunch of writ petitions while so doing proceeded on the following premises :-

First Premise :- The proviso attached to Section 23(2) of the Right of Children to Free and Compulsory Education Act, 2009 would govern the persons who were recruited as Teaches in the State of U.P. under the Act and the Service Rules of 1981 and can have no application to Shiksha Mitras.

Second Premise :- Section 12-A of NCTE Act does not deal with the nature of appointments of Shiksha Mitras nor does it place them on a higher or surer legal footing than as contractual appointees. Full Bench has clearly held that at best the appointment of Shiksha Mitras could not be on better footing than as contractually appointed teachers. This shows that the appointment of Shiksha Mitra has been termed by the Full Bench at least as contractually appointed teachers.

Third Premise:- Insertion of Rule 16-A through 2014 First Amendment Rules was beyond the competence of the State Government as the field of grant of any relaxation stood occupied by Section 23, proviso attached to Section 23(2) in particular and Section 12-A as inserted in NCTE Act vide 2011 Amendment.

Fourth Premise:- The prescription of qualification of Teachers Eligibility Test (TET) could not have altogether been done away within perpetuity. The Full Bench while proceeding on this premise held that as the TET was one of the essential qualification prescribed and, therefore, for the purpose of regularization of Shiksha Mitras this TET qualification could not have altogether been waived by exercise of rule making power by the State of U.P. While so holding that the State Government was not competent to legislate through subordinate legislation so as to provide a waiver from requisite qualification in perpetuity, more particularly, the essential qualification of TET.

10. Dr. L.P. Misra has submitted that the Full Bench has pronounced its judgment on 12.9.2015 and the full Bench judgment was taken to Hon'ble Supreme Court of India through the Special Leave Petitions and after granting of the leave to appeal by the Hon'ble Apex Court, those were converted into Civil Appeals marked as Civil Appeal No. 9529 of 2017 and other connected Civil Appeals decided by the Hon'ble Apex Court vide judgment dated 25.7.2017. He has also submitted that vide order dated 7.12.2015 the Hon'ble Apex Court had stayed the order of Full Bench.

11. The Hon'ble Apex Court after analyzing the various statutory prescriptions and submissions raised, framed the following questions in paragraph 14 of the judgment for its consideration:-

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

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

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

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

12. After making requisite consideration, the Hon'ble Apex Court upheld the observations / findings recorded by the Full Bench in Para 39 of the judgment dated 12.0.2015 and held that no relaxation could be granted from the minimum qualifications for appointment of teachers to the appointees appointed after 23rd August, 2010 having no requisite qualifications at the time of their such appointment. August, 2010 has been so taken by the Hon'ble Apex Court as it is the date when after NCTE, after being empowered as Academic Authority by the Central Government vide notification dated 31.3.2010 prescribed the minimum qualifications for appointment as Teachers for teaching in Junior Basic Schools in Class I to V. The Hon'ble Apex Court further held, as evident on perusal of Para 21 of the judgment, that the relaxation provision could be invoked for a limited period or in respect of persons already appointed in terms of applicable rules relating to qualification.

13. Dr. L.P. Misra has submitted that all the present writ petitioners are such who were appointed as Shiksha Mitras while holding a Graduate Degree at the time of their appointment as Shiksha Mitra and all the petitioners were appointed as Shiksha Mitras before 23rd August, 2010.

14. Dr. Misra has drawn the attention of this Court towards the Act No. 24 of 2017 which is the Right of Children to Free and Compulsory Education (Amendment) Act, 2017 submitting that fate of Shiksha Mitras could have been taken to have been sealed altogether had the Parliament not intervened by enacting "The Right of Children to Free and Compulsory Education (Amendment) Act, 2017" (Act of Parliament No. 24 of 2017) by giving the same with retrospective operation w.e.f. 01.04.2015. But it is the Amending Act No. 24 that emanates the issue in question based on indefeasible legal right to continue in the position in which they were continuing or positioned on 31.3.2015 i.e. as teacher, till a further period of four years from 01.04.2015 by which period the petitioners have to obtain all requisite prescribed qualification for appointment as a teacher.

15. At this stage, it is worthwhile to quote the Act of Parliament No. 24 of 2017 in verbatim and in its entirety:-

"MINISTRY OF LAW AND JUSTICE

(Legislative Department)

New Delhi, the 10th August, 2017/Shravana 19, 1939 (Saka) The following Act of Parliament received the assent of the President on the 9th August, 2017 and is hereby published for general information:--

THE RIGHT OF CHILDREN TO FREE AND COMPULSORY

EDUCATION (AMENDMENT) ACT, 2017

NO. 24 OF 2017

[9th August, 2017.]

An Act further to amend the Right of Children to Free and Compulsory Education Act, 2009.

BE it enacted by Parliament in the Sixty-eighth Year of the Republic of India as follows:-

1. (1) This Act may be called the Right of Children to Free and Compulsory Education (Amendment) Act, 2017.

(2) It shall be deemed to have come into force on the 1st day of April, 2015. 2. In the Right of Children to Free and Compulsory Education Act, 2009, in section 23, in sub-section (2), after the proviso, the following proviso shall be inserted, namely:--

"Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017."

16. The basic submission on behalf of the petitioners is that the words "Every teacher appointed or in position as on the 31st March, 2015 occurring before the phrase " who does not possess minimum qualification as laid down under sub-section (1) of Section 23" are meaningful and purposeful and have been provided by the Legislatures with a view to achieve an object that all those persons who were either appointed as Teachers having no requisite qualifications as prescribed by NCTE or such persons who were positioned as such, which necessarily mean that the persons who were not appointed or could not be appointed as teachers but were de-facts working as teachers i.e. imparting education to children and performing other jobs assignable to a regular teacher as on 31st March, 2015 shall be allowed to continue for a further period of four years from the date of the enforcement of the Act of Parliament No. 24 of 2017 i.e. 1st April, 2015 and during that period they shall have to acquire and fulfill the requisite essential qualifications prescribed by the Academic Authority as envisaged under Section 23(1) of the 2009 Act.

17. Therefore, on the basis of arguments advanced as above, Dr. Misra has submitted that cancelling the appointment of the petitioners as regular teachers vide order dated 30.11.2017 could have not legally been passed, inasmuch as, the petitioners were appointed as Shiksha Mitra at the time when they were Graduates and were appointed as such before 23.8.2010, they were imparted teacher's training while in service and they were regularly appointed as Assistant Teacher either before 31.3.2015 or they were in position as such de facto. They were continuing as regular Assistant Teachers before the judgment dated 12.9.2015 passed by the Full Bench and thereafter continuing as regular teachers on 31.3.2015 as a result of interim order dated 7.12.2015 passed by the Hon'ble Apex Court.

18. Per contra, Sri Ramesh Pandey, learned Chief Standing Counsel has submitted that this writ petition is a misconceived and has been filed after the judgment of Full Bench dated 12.9.2015 of this Court and also after the judgment of Hon'ble Apex Court dated 25.7.2017 whereby the judgment of Full Bench has been upheld. He has submitted that both the aforesaid Courts have categorically considered the fact that no selection was made for appointing Shiksha Mitra as Assistant Teacher strictly in accordance with law and all the Shiksha Mitras were not possessing the requisite qualification, therefore, they cannot claim any relief and this writ petition may be dismissed with heavy cost.

19. Sri Pandey has drawn attention of this Court towards para 2 of the judgment of Full Bench in re: Anand Kumar Yadav which is being reproduced herein below:-

"2. In the leading writ petition, the relief which has been sought, is for setting aside two notifications which were issued on 30 May, 2014 by the Government of Uttar Pradesh for notifying the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules, 2014 and the Uttar Pradesh Basic Education (Teachers) Services (Nineteenth Amendment) Rules, 2014. By and as a result of the amendment, Rule 16-A was introduced into the Rules framed by the State Government under the Right of Children to Free and Compulsory Education Act, 2009, called the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 to reserve to the State Government the power to relax the minimum qualifications prescribed for the appointment of Assistant Teachers in junior basic schools in the case of Shiksha Mitras for the purpose of their appointment in regular service. The second amendment which has been made by the State Government has the effect of amending the Uttar Pradesh Basic Education (Teachers) Services Rules, 1981. By the amendment, the State Government has enabled the appointment of Shiksha Mitras who were working on the date of commencement of the amended Rules into regular service as Assistant Teachers of junior basic schools. The reliefs which have been sought also include a challenge to a Government Order dated 7 February, 2013 issued by the Principal Secretary, contemplating the absorption into service, of Shiksha Mitras working in junior basic schools in phases covering a total of 1,24,000 graduate Shiksha Mitras and 46,000 Shiksha Mitras who have completed the intermediate qualification. There is also a challenge to a further Government Order dated 19 June, 2014 implementing the decision of the State Government to absorb Shiksha Mitras into regular service."

20. Sri Pandey has also cited some relevant paragraphs of the judgment of Full Bench demonstrating the fact that this writ petition is absolutely misconceived. Those paras are 112, 113, 114 and 115 which are being reproduced herein below :

"112. The concept of relaxation which was explained by the Supreme Court in Umadevi's case (AIR 2006 SC 1806) requires that a person at the time of engagement must possess the requisite qualifications under the service rules. It is , therefore, important that Shiksha Mitras at the time of initial engagement should have possessed the requisite qualifications contained in the service rules. This is also what was observed by the Supreme Court in Pramod Kumar v. U.P. Secondary Education Services Commission. The Supreme Court held that if the essential qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned and an appointment which is contrary to the Statutes/statutory rules would be void in law.

113. From the material which has emerged before the Court, it is clear that Shiksha Mitras to whom the benefit of regularization has been granted neither fulfilled the prescribed minimum qualifications nor were they appointed against sanctioned posts. The fact that Shiksha Mitras did not fulfill the qualifications prescribed by NCTE which has the unquestioned jurisdiction under the NCTE Act of 1993 and RTE Act of 2009 is evident from the fact that the State Government, by inserting Rule 16-A into the Rules of 2011 has assumed to itself a power to relax the minimum qualifications required to be observed, in the case of Shiksha Mitras. In other words, by Rule 16-A, the State Government has created an island of exclusion for the benefit of Shiksha Mitras who, in the exercise of the rule-making power of the State under Rule 16-A, would not have to fulfill the minimum qualifications prescribed by NCTE. The State Government has sought to get over the inseparable obstacle that the Shiksha Mitras do not fulfill the TET requirement by unlawfully conferring power on itself to relax the requirement. Having committed that illegality, the State has proceeded to do away with the TET qualification in its application to Shiksha Mitras, by unlawfully amending the service rules. These amendments have been held to be ultra vires and an impermissible encroachment on the exclusive domain of NCTE. Having done this the State Government has compounded its illegality by regularising / absorbing the Shiksha Mitras as Assistant Teachers. As a consequence, qualified candidates fulfilling the NCTE norms are denied the equality of opportunity to seek appointment as Assistant Teachers. We have earlier held Rule 16-A to be ultra vires the rule-making authority of the State Government since the power to grant a relaxation from the minimum qualifications is vested exclusively in the Central Government. In assuming to itself a power to relax the minimum qualification and thereafter by diluting the minimum qualifications in the case of Shiksha Mitras, the State Government has patently acted in a manner which is arbitrary, ultra vires the governing central legislation and in breach of the restraint on the limits of its own statutory powers. By this exercise, the State Government has sought to grant regularization to persons who failed to fulfill the minimum qualifications and who were never appointed against sanctioned posts. In these circumstances, the grant of largess by the State Government to Shiksha Mitras cannot be upheld and the amendment to the Rules is ultra vires and unconstitutional.

114. The Additional Advocate General submitted that Shiksha Mitras were appointed in pursuance of a scheme implemented by the State Government and hence their appointments cannot be regarded as a backdoor entry. This submission will not support the absorption of Shiksha Mitras as Assistant Teachers in the regular service of the State. In Grah Rakshak, Home Guards Welfare Association v. State of Himachal Pradesh, Home guards appointed by the States of Himachal Pradesh, Punjab and NCT of Delhi sought regularisation of their services but their writ petitions were dismissed by the High Court. The Supreme Court held that the enrollment of the Home guards may not have been a back door engagement, but that would not entitle them to regularisation of service or the grant of regular appointments. They were never paid a regular salary and were engaged only as volunteers. They were not regular appointees in the service of the State. They had agreed to the conditions of engagement, by making declarations.

115. 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."

21. Sri Pandey has also cited para 3.4 of the judgment of Hon'ble Apex Court dated 25.7.2017 in re: State of U.P. vs. Anand Kumar Yadav (supra) thereby the factual and legal matrix in respect of Shiksha Mitras considered by the Hon'ble Apex Court precisely. Para 3.4 is being reproduced as under :

3.4. 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 (Para-Teacher). The purported object of the Order was to provide universal primary education and for maintenance of teachers student ratio in primary schools by hiring persons who were not duly qualified at lesser cost as against the prescribed salary of a qualified teacher. The Government Order (G.O.) stated that upto the limit of 10,000, Shiksha Mitras could be contracted for academic session 1999-2000 at honorarium of Rs. 1450 per month. The salient aspects of the scheme as summed up on the impugned judgment of the High Court from the said G.O. were :

(i) The appointment of Shiksha Mitras was to be against the payment of an honorarium;

(ii) The appointment was to be for a period of eleven months renewable for satisfactory performance;

(iii) The educational qualifications would be of the intermediate level;

(iv) The unit of selection would be the village where the school is situated and in the event that a qualified candidate was not available in the village,the unit could be extended to the jurisdiction of the Nyay Panchayat;

(v) The services of a Shiksha Mitra could be terminated for want of satisfactory performance;

(vi) Selection was to be made at the village level by the Village Education Committee; and

(vii) The scheme envisaged the constitution, at the district level, of a Committee presided over by the District Magistrate and consisting, inter alia, of the Panchayat Raj Officer and the District Basic Education Officer among other members to oversee implementation."

22. Sri Pandey has also cited paragraphs no. 21,22,23,24 and 25 of the Hon'ble Apex Court in re: Anand Kumar Yadav (supra). The paragraphs aforesaid are being quoted as under :

"21. We are in agreement with the above findings. In view of the clear mandate of law statutorily requiring minimum qualification for appointment of teachers to be appointed after the date of Notification dated 23.8.2010, there is no doubt that no appointment was permissible without such qualifications. Appointments in the present case are clearly after the said date. Relaxation provision could be invoked for a limited period or in respect of persons already appointed in terms of applicable rules relating to qualifications. The Shiksha Mitras in the present case 64 do not fall in the category of pre 23.8.2010 Notification whose appointment could be regularized.

22. Further difficulty which stares one in the face is the law laid down by this Court on regularization of contractually appointed persons in public employment. Appointment of Shiksha Mitras was not only contractual, it was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers. Thus, they could not be regularized as teachers. Regularization could only be of mere irregularity. The exceptions carved out by this Court do not apply to the case of the present nature.

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

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

25. On the one hand, we have the claim of 1.78 Lakhs persons to be regularized in violation of law, on the other hand is the duty to uphold the rule of law and also to have regard to the right of children in the age of 6 to 14 years to receive quality education from duly qualified teachers. Thus, even if for a stop gap arrangement teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed. It may be permissible to give some weightage to the experience of Shiksha Mitras or some age relaxation may be possible, mandatory qualifications cannot be dispensed with. Regularization of Shiksha Mitras as teachers was not permissible. In view of this legal position, our answers are obvious. We do not find any error in the view taken by the High Court.

23. Sri Pandey has submitted that this Court has also dismissed the identical writ petition vide judgment and order dated 4.4.2018 in re: Vikal Pratap Singh vs. State of U.P. & others, Writ-A No. 9252 of 2018. While passing the judgment and order dated 4.4.2018 this Court was pleased to dismiss the said writ petition following the judgment of Full Bench and Hon'ble Apex Court. So as to demonstrate that the identical controversy has been decided by this Court vide judgment and order dated 4.4.2018 (supra), therefore, it would be apt to quote the entire judgment and order dated 4.4.2018.

"Petitioners, who are 12 in numbers have approached this Court by filing the present writ petition, for a direction in the nature of mandamus commanding the respondents to continue their services on the post of Assistant Teacher, in their respective schools, and pay their salary month to month as such when it falls due.

It transpires from the record that petitioners were initially appointed as Shiksha Mitra pursuant to scheme of the State in different years from 2004-06. They were subsequently absorbed on the post of Assistant Teacher after an amendment was made in 2014 in the U.P. Basic (Teacher) Service Rules, 1981, permitting Shiksha Mitra also to be considered for the purposes of absorption/appointment to the post of Assistant Teacher.

The issue relating to legality of appointment of Shiksha Mitra and their subsequent absorption came up for consideration before a Full Bench of this Court in Anand Kumar Yadav and others Vs. Union of India and others. By a detailed judgment dated 12th September, 2015, Full Bench of this Court held the initial engagement of Shiksha Mitra and their subsequent absorption on the post of Assistant Teacher to be hit by the constitutional principles laid in Articles 14 and 16 of the Constitution of India.

The Full Bench Judgment of this Court was assailed before the Apex Court in a bunch of civil appeals with leading Civil Appeal No.9529 of 2017 (State of U.P. and other Vs. Anand Kumar Yadav and others.). The Judgment of this Court has been affirmed and the Civil appeals have been disposed of by making the following observations in para 25 to 27 of the judgment, which reads as under:-

25. On the one hand, we have the claim of 1.78 lakhs persons to be regularized 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 teacher, qualified teachers have to be ultimately appointed. It may be permissible to give some weightage to the experience of Shiksha Mitras or some age relaxation may be possible. Regularization of Shiksha Mitras as teachers was not permissible. In view of this legal position, our answers are obvious. We do not find any error in the view taken by the High Court.

26. Question now is whether in absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference in the peculiar fact situation, they ought to be given opportunity to be 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 concerned authority. Till they avail of this opportunity, the State is at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides.

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

Learned counsel for the petitioners submits that the basic reason assigned for non-suiting the Shiksha Mitra was the fact that they did not posses TET qualification in terms of NCTE Regulation dated 23.08.2010. It is contended that since the petitioners had obtained TET qualification prior to their absorption in 2014, as such their absorption on the post of Assistant Teacher was not bad for want of requisite qualification. It is contended that this aspect of the matter has not been considered, and therefore, the petitioners are entitled to continue. It is also submitted that by virtue of subsequent notification issued by NCTE, the time to obtain TET qualification has otherwise been extended till the year 2019.

The petition is opposed by Sri Vivek Rai, learned Additional Chief Standing Counsel, Sri Bharat Pratap Singh and Sri Yatindra, learned counsel for the respondents, contending that the very scheme of engagement of Shiksha Mitra was analysed extensively by the Full Bench and it was found that such engagement itself was contractual, and was not in keeping with the mandate of Articles 14 and 16 of the Constitution of India. It is pointed out that on account of such engagement as Shiksha Mitra, petitioners were permitted to undertake teachers' training qualification on preferential basis, which led to their passing the TET qualification. It is stated that once the initial engagement is found illegal the foundation itself stands shaken, and all subsequent qualifications obtained on the strength of petitioners engagement as Shiksha Mitra would not be of any avail for the purpose of their absorption on the post of Assistant Teacher.

Learned counsel for the petitioners has heavily relied upon the observations of the Hon'ble Supreme Court contained in para-21 of the judgment which is reproduced hereinafter:

21. "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."

If the observation made in para-21 is examined in isolation, the argument advanced by the learned counsel for the petitioners may appear attractive, but would not merit any consideration once the judgment is examined in its entirety. It is not just due to lack of qualification that Shiksha Mitra have been non-suited. Their absorption on the post of Assistant Teacher is otherwise found to be in teeth of Article 14 of the Constitution of India, rendering their continuance impermissible in law.

The Full Bench of this Court after examining the scheme and the statutory Regulations operating, observed as under in para-101 and 103 of the Judgment:-

"101. The Central Government has exercised powers under sub-section (2) of Section 23 on 10 September 2012. The Union Ministry of Human Resource Development, in its notification, has granted a relaxation until 31 March 2014 only in respect of persons referred to in sub-clause (a) of Clause (1) of Para 3 of the notification dated 23 August 2010 as amended. This category covers persons with BA/BSc degrees with at least fifty percent marks and holding a BEd qualification. While issuing a notification on 10 September 2012 for the purpose of relaxing the qualifications Shiksha Mitras to whom the benefit of regularization has been granted neither fulfilled the prescribed minimum qualifications nor were they appointed against sanctioned posts. The fact that Shiksha Mitras did not fulfill the qualifications prescribed by NCTE which has the unquestioned jurisdiction under the NCTE Act of 1993 and RTE Act of 2009 is evident from the fact that the State Government, by inserting Rule 16-A into the Rules of 2011 has assumed to itself a power to relax the minimum qualifications required to be observed, in the case of Shiksha Mitras. In other words, by Rule 16-A, the State Government has created an island of exclusion for the benefit of Shiksha Mitras who, in the exercise of the rule-making power of the State under Rule 16-A, would not have to fulfill the minimum qualifications prescribed by NCTE. The State Government has sought to get over the inseparable obstacle that the Shiksha Mitras do not fulfill the TET requirement by unlawfully conferring power on itself to relax the requirement. Having committed that illegality, the State has proceeded to do away with the TET qualification in its application to Shiksha Mitras, by unlawfully amending the service rules. These amendments have been held to be ultra vires and an impermissible encroachment on the exclusive domain of NCTE. Having done this the State Government has compounded its illegality by regularizing/absorbing the Shiksha Mitras as Assistant Teachers. As a consequence, qualified candidates fulfilling the NCTE norms are denied the equality of opportunity to seek appointment as Assistant Teachers. We have earlier held Rule 16-A to be ultra vires the rule-making authority of the State Government since the power to grant a relaxation from the minimum qualifications is vested exclusively in the Central Government. In assuming to itself a power to relax the minimum qualification and thereafter by diluting the minimum qualifications in the case of Shiksha Mitras, the State Government has patently acted in a manner which is arbitrary, ultra vires the governing central legislation and in breach of the restraint on the limits of its own statutory powers. By this exercise, the State Government has sought to grant regularization to persons who failed to fulfill the minimum qualifications and who were never appointed against sanctioned posts. In these circumstances, the grant of largesse by the State Government to Shiksha Mitras cannot be upheld and the amendment to the Rules is ultra vires and unconstitutional.

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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."

The aforesaid observations of the Full Bench finds specific approval of the Apex Court in para-22 and 23, which are reproduced:-

"22.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 of mere irregularity. The exceptions carved out by this Court do not apply to the case of the present nature.

23. In view of our conclusion that the Shiksha Mitra 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."

Once the petitioners' initial engagement as Shiksha Mitra was found to be contractual, and not as per the qualification prescribed for a teacher, nor was it against any sanctioned post, all subsequent benefits secured would not place them at par with a regularly recruited Assistant Teacher. It be noticed at this stage that qualification during 2004-06 for the post of Assistant Teacher was graduate with training qualification. This qualification admittedly was not possessed by the petitioners at the time of their appointment as Shiksha Mitra. Petitioners subsequent grant of training and their TET certificate were also based upon their initial engagement as Shiksha Mitra, inasmuch as they had not secured admission to teachers training qualification and cleared TET in open category. They have not competed on the basis of their qualifications, bereft of privileges extended as Shiksha Mitra, in open competition.

In view of the authoritative pronouncement on the subject by the Hon'ble Apex Court, the petitioners cannot be permitted to continue as Assistant Teachers. The petitioners are also not right in contending that certain aspects of the matter, as have been urged before this Court, have escaped from consideration by the Full Bench or by the Apex Court. All Shiksha Mitra who have acquired qualification, or acquire such qualification for the appointment of Assistant Teachers, have been given an opportunity to appear in terms of advertisement in recruitment for the next two consecutive year, so as to make their induction consistent with Article 14 of the Constitution of India.

Before concluding with the judgment, I may also refer to the judgment of Apex Court in Forward Construction & Ors. Etc. Vs. Prabhat Mandal (Regd.) Andheri & Ors. Etc., reported in AIR 1986 SC 395, which lays down that a plea available in the earlier round of litigation, if not canvassed, cannot be set up in a fresh round of litigation. This principle is based upon Section 11(4) of the Code of Civil Procedure, principles whereof have been made applicable to writ proceedings also.

For all the reasons stated herein above, writ petition fails, and, is dismissed. No order as to costs."

24. Since the Hon'ble Apex Court and Full Bench of this Court has considered the entire controversy thoroughly, therefore, this Court is following the dictum of the aforesaid Courts. Further, this Court has dismissed couple of writ petitions following the dictum of Hon'ble Apex Court and Full Bench of this Court as stated herein above.

25. So far as the submission regarding Act no. 24 of 2017 is concerned, it has been noted that it provides that the teacher who is not having minimum qualification as prescribed under the scheme, shall acquire such minimum qualification within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017.

26. Sri Sudhanshu Chauhan, learned counsel for the National Council of Teachers Education has submitted that by means of the aforesaid amending Act only the period for acquiring required qualification has been extended, inasmuch as, earlier the relaxation granted under the notification dated 10.9.2012 issued by the Department of Social Education and Literacy, Ministry of Human Resources Development was valid for a period up to 31.3.2014.

27. It is noted that the Hon'ble Apex Court has also dealt this point vide judgment and order dated 25.7.2017 holding that the minimum requisite qualification can be acquired by the teachers in terms of advertisements for recruitment for two next consecutive recruitments. The Hon'ble Apex Court has further held that those teachers may also be given suitable age relaxation and weightage for their experience as may be decided by the concerned authority and till they avail this opportunity, the State would be at liberty to continue them as Shiksha Mitras on the same terms on which they were working prior to their absorption if the State so decides. Since the Hon'ble Apex Court has categorically dealt the aforesaid issue, therefore, no direction to that effect may be issued by this Court.

28. The perusal of the facts and circumstances of the batch of these writ petitions make it abundantly clear that the petitioners do not fulfill any of the norms laid down by the Hon'ble Apex Court for regular absorption into the service. They were engaged as contractual appointees and their appointment were not made against the sanctioned post. As a matter of fact they did not fulfill the minimum qualifications required for appointment as Assistant Teachers.

29. It is needless to say that fundamental right to Free and Compulsory Education is one of the important rights as without education one may never know his other rights. Right of Education includes right to quality and meaningful education. A qualified teacher undoubtedly has major role to make the right to education purposeful. Since the petitioners have admittedly not qualified the Teacher's Eligibility Test (TET) as per the scheme, therefore, even if they are teachers, they shall be termed as unqualified teachers.

30. Therefore, in view of the facts, circumstances, reasons and settled position of law as stated herein above, the batch of writ petitions fail and are accordingly dismissed.

31. No order as to costs.

Order Date :- 23. 5.2018

Om

[Rajesh Singh Chauhan, J.]