[Cites 7, Cited by 0]
Uttarakhand High Court
State Of Uttarakhand Through Secretary ... vs Dilshad Ali And Others on 16 December, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
2025:UHC:11466-DB
Reserved on 10.12.2025
Delivered on 16.12.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 594 of 2019
State Of Uttarakhand Through Secretary Education,
And Others
............Appellants
Versus
Dilshad Ali and Others ............Respondents
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Presence:-
Mr. K.N. Joshi, learned Deputy A.G. for the State/appellants.
Mr. Mohd Alauddin, learned counsel for respondents.
----------------------------------------------------------------------
Coram: Hon'ble Ravindra Maithani, J.
Hon'ble Alok Mahra, J.
Hon'ble Alok Mahra, J. (Per.)
This intra-court appeal has been preferred against
the judgment and order dated 17.11.2017 passed by the
learned Single Judge in Writ Petition (S/S) No. 2260 of 2015,
Dilashad Ali and Others vs. State of Uttarakhand and Others.
By the impugned judgment, the learned Single Judge
disposed of the writ petition by applying the ratio of the
judgment dated 23.02.2011 rendered in Special Appeal No.
131 of 2010, wherein, relying upon the Government decision
dated 19.11.2010, a graduate Shiksha Acharya was directed
to be treated as a Shiksha Mitra. The State Government,
through its earlier decision dated 01.03.2009, had also
resolved that untrained Shiksha Mitras would be properly
trained. Considering these policy decisions, the learned Single
Judge held that the petitioners therein (the respondents
herein) were entitled to similar benefits.
2. There is a delay of 532 days in filing the present
appeal. A delay-condonation application supported with an
affidavit has been filed, explaining that the delay occurred
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due to departmental formalities. The cause shown is found
sufficient. Accordingly, the delay is condoned and the delay-
condonation application is allowed.
3. Learned counsel for the appellants/State submits
that the petitioners were appointed as Instructors in different
Madarsas of District Haridwar; that these non-recognized
Makhtab Madarsas were only granted financial assistance
similar to Alternative and Innovative Education (A.I.E.)
Centres; that, to achieve universalisation of education in
areas where Elementary Schools were unavailable within one
kilometer and Upper Primary Schools within three kilometers,
the State opened Education Guarantee Scheme (E.G.S.)
Centres and A.I.E. Centres. These were of two kinds--E.G.S.
Centres (functioning as branches of the nearest Primary
Schools, later closed or upgraded) and A.I.E. Centres (opened
on recommendations of Village Education Committees).
Instructors in such centres were selected by the Village
Education Committee in accordance with Government Order
No. 472 dated 27.01.2001.
4. It is further contended that appointment of such
Instructors required approval from the Block Education
Officer or other competent authority; that these Centres
functioned according to the convenience and timing of the
children; that Makhtab Madarsas, however, were not
operated as per Education Department norms, were run by
their own managing authorities, imparted religious
education in Arabic and Urdu, and though financial aid
was given to them for universal education, they were not
approved like E.G.S. or A.I.E. Centres.
5. Learned counsel would further submit that while
E.G.S. and A.I.E. Centres were opened through Village
Education Committees and approved by District-level
officers, the Instructors in Makhtab Madarsas were
appointed solely by their respective Management
Committees without approval from any Government
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authority. The financial aid was only to orient students
towards modern subjects since regular subjects were
otherwise not taught. After the Government closed the
E.G.S. and A.I.E. Centres w.e.f. 31.03.2011, the Instructors
in those Centres were absorbed as Shiksha Mitras.
Conversely, the Makhtab Madarsas continued as religious
institutions, were neither opened nor closed under
departmental control, and their Instructors were frequently
replaced by new incumbents.
6. It is further submitted that respondents working
in Makhtab Madarsas were only provided teaching material
and honorarium under the "Makhtab Madarsas
Strengthening Scheme/Project"; that these Madarsas were
not created under any State scheme; that, after
23.08.2010, the NCTE prescribed D.El.Ed. and TET-I as the
minimum qualifications for appointment as Assistant
Teachers in Elementary Schools; and that the State has
never issued any Government Order for absorption of
Instructors working in Makhtab Madarsas as Shiksha
Mitras.
7. Learned counsel further refers to the
Government of India notification dated 10.08.2017, which
provided that every teacher appointed or in position as on
31.03.2015 who did not possess the minimum
qualifications must acquire them within four years from
commencement of the 2017 Amendment to the RTE Act. It
is emphasized that the respondents raised their claim
several years after the decision dated 23.02.2011 in Special
Appeal No. 131 of 2010.
8. It is urged that the order dated 23.02.2011 in
Special Appeal No. 131 of 2010 applied only to Shiksha
Anudeshaks working in E.G.S. Centres that had been
upgraded as Primary Schools. In such cases, Government
Orders stipulated that Shiksha Anudeshaks would be
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deemed Shiksha Mitras. In contrast, respondents herein
were Instructors in Makhtab Madarsas, were never
appointed by Village Education Committees, their
appointments were never approved by Education
Department officers, and no Government Order exists for
their absorption or for conversion of Madarsas into schools.
Therefore, the judgment dated 17.11.2017 warrants
interference.
9. Per contra, learned counsel for the respondents
submits that the State implemented the 'Sarva Shiksha
Abhiyan' ('the SSA') to ensure education in remote and
deprived areas, consistent with Article 21-A and the Right
to Education Act. Under the SSA framework, clause 5.8
emphasized education for children of minority Muslim
communities. Clause 5.8.1(c) sought to extend scheme
benefits to Madarsas and Makhtabs to ensure that children
studying in such religious institutions could also receive
the regular curriculum. For this purpose, facilities under
E.G.S./A.I.E. were extended to Madarsas affiliated to the
State Madarsa Board that met specified conditions.
10. Learned counsel submits that clause 5.8.3
extended SSA benefits through E.G.S./A.I.E. even to non-
affiliated Madarsas via local bodies/community-based
organizations. Pursuant thereto, the State Project Director
instructed the District Project Officer (SSA) to operate
Madarsas and Makhtabs as A.I.E. Centres and extend to
them facilities available to other institutions. He contends
that respondents were appointed as Instructors under the
SSA scheme on consolidated honorarium, had been
discharging their duties without complaint, and that the
State had earlier absorbed similarly-situated Instructors as
Shiksha Mitras based on seniority and reservation criteria.
Therefore, respondents working in non-recognized
Madarsas should also receive the same treatment. It is
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further submitted that some respondents possess the
D.El.Ed. qualification. Differentiating between Instructors
in other SSA Centres and those in Madarsas, despite
identical duties and responsibilities, violates equality.
11. Learned counsel for the State, however,
reiterates that the respondents were appointed without
advertisement, without approval of the State Government,
that the Madarsas were not under E.G.S., were only
granted temporary aid, and were never under State control.
Thus, the judgment relating to Shiksha Mitras in E.G.S.
Centres cannot apply, especially after the coming into force
of the Right to Education Act, 2008.
12. We have carefully considered the rival
submissions, examined the pleadings on record, and
assessed the scope of interference in the judgment under
appeal. The controversy essentially turns on whether the
respondents-who were working as instructors in non-
recognized Makhtab Madarsas can claim absorption as
Shiksha Mitras by invoking parity with the instructors
working in E.G.S./A.I.E. Centres, whose services were
absorbed pursuant to the Government Orders and policy
decisions.
13. It stands admitted that E.G.S. and A.I.E. Centres
were Government-created structures, established under the
Sarva Shiksha Abhiyan, and functioned under the control,
supervision, and approval of the Education Department.
The instructors in those Centres were appointed through
the Village Education Committee, pursuant to Government
Order dated 27.01.2001, and their appointment was
subject to approval by the Block/District Education
Authorities. In contrast, Makhtab Madarsas were never
established under any Government scheme, nor were they
recognized institutions under the Education Department.
They were being run privately by the respective Managing
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Committees, imparting religious education, and were only
given certain financial assistance and teaching material
under the Makhtab Madarsas Strengthening Programme.
Their instructors were appointed solely by the private
management, without any advertisement, selection process,
or approval by the Education Department. Further no
Government Order has been placed before us to
demonstrate that instructors of Makhtab Madarsas were
ever declared equivalent to instructors of E.G.S./A.I.E.
Centres or made eligible for absorption as Shiksha Mitras.
14. The law is now well settled by the Constitution
Bench in the case of Secretary, State of Karnataka and
Others Vs.. Umadevi (3), (2006) 4 SCC 1, that no employee
engaged without following a regular recruitment process
can claim absorption or regularization unless there exists a
specific statutory provision or scheme framed by the
Government. Any regularization or absorption contrary to
established procedure violates Article 14 and cannot be
directed by the Courts.
15. In the present case, the respondents do not
possess any statutory right, Rule, or Government Order
entitling them to absorption. Their engagement in Makhtab
Madarsas was purely private and non-governmental, with
the State having no role in their selection, appointment,
approval, tenure, or disciplinary control. The Supreme
Court in Secretary, State of Karnataka v. Umadevi, and
again in State of Rajasthan and Others Vs. Daya Lal and
Others, (2011) 2 SCC 429, held that employees of private
institutions or non-government bodies cannot seek
absorption in Government service merely because the
Government had granted aid or financial assistance to the
institution. The respondents placed heavy reliance on the
judgment in Special Appeal No. 131 of 2010, where certain
instructors of E.G.S. Centres were granted the status of
2025:UHC:11466-DB
Shiksha Mitra. However, that judgment was rendered in
the context of E.G.S. Centres, which were run by State
Government, subsequently upgraded to Primary Schools,
and whose instructors were governed by express
Government policy decisions of 01.03.2009 and
19.11.2010. The principle that equality cannot be claimed
with persons who were illegally or differently appointed has
been reiterated in Union of India and Another Vs. Kartick
Chandra Mondal and Another, (2010) 2 SCC 422,
Basawaraj and Another Vs. Special Land Acquisition
Officer, (2013) 14 SCC 81, and many other judgments. The
Court cannot grant negative equality. Since the
respondents do not stand on the same factual or legal
footing as E.G.S. instructors, they cannot legitimately
invoke the doctrine of parity
16. The doctrine of legitimate expectation cannot
apply in absence of an express representation or consistent
past practice of the Government in absorbing instructors
similarly situated as the respondents. The Supreme Court
in Punjab Communications Ltd. Vs. Union of India and
Another, (1999) 4 SCC 727 clarified that legitimate
expectation cannot override statutory provisions or
government policy. There is no material has been placed to
show any representation by the State for absorption of
instructors of Makhtab Madarsas nor any uniform past
practice supporting such a claim.
17. The NCTE Notification dated 23.08.2010
prescribes D.El.Ed + TET as minimum eligibility for
Elementary Teachers. The subsequent amendment to the
Right to Education Act requires untrained teachers to
obtain qualifications within a specified period. Evidently,
the respondents neither possessed requisite qualifications
at the relevant time, nor were they appointed through a
valid selection process. Their belated claim for absorption
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raised several years after the 2011 judgment is wholly
untenable. The learned Single Judge erroneously applied
the ratio of Special Appeal No.131 of 2010 to a completely
dissimilar factual matrix. The respondents herein were
never appointed under the E.G.S./A.I.E. scheme, were
never approved by any competent authority, and their
Madarsas were never declared equivalent to E.G.S. Centres.
18. For the reasons recorded hereinabove, we find
that the respondents have failed to establish any legal or
equitable right to claim absorption as Shiksha Mitras. Their
appointment in privately-run Makhtab Madarsas without
State approval, without following any selection process, and
outside any Governmental scheme does not entitle them to
seek parity with instructors of E.G.S./A.I.E. Centres.
19. Accordingly, the Special Appeal is allowed. The
judgment and order dated 17.11.2017 passed by the
learned Single Judge in Writ Petition (S/S) No. 2260 of 2015
is hereby set aside.
(Alok Mahra, J.) (Ravindra Maithani, J.)
Mamta
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Date: 2025.12.22 16:01:20
+05'30'
