reserved case :- special appeal no. - 156 of 2019€¦ · singh,rishabh kapoor,santosh kr. yadav...

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Reserved

Case :- SPECIAL APPEAL No. - 156 of 2019

Appellant :- Raghvendra Pratap Singh And Ors.Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.And Ors.Counsel for Appellant :- Amrendra Nath Tripathi,Durga Prasad ShuklaCounsel for Respondent :- C.S.C.,Abhisar Dev,Agnihotri Kumar Tripathi,Ajay Kumar,Ajit Shukla,Amit Kr. Singh Bhadauriya,Anand Nandan,Ashutosh,Atul Yadav,H N Singh,Haridhwar Singh Kushwaha,Himanshu Raghave,Krishna Vishwakarma,Lal Bahadur Singh,Neeraj Kandpal,Neha Singh,Om Prakash Nag,Palash Yadav,Pankaj Verma,Pawan Kumar Maurya,Raghunath Prasad,Rahul Kumar Singh,Rahul Pandey,Rajesh Kumar Verma,Ram Kumar Singh,Rishabh Kapoor,Santosh Kr. Yadav "Warsi",Seemant Singh,Varun Kumar Mishra,Vineet Mishra,Vishal Kumar Yadav

connected with

(1) Case :- SPECIAL APPEAL No. - 157 of 2019

Appellant :- Sarvesh Singh And Ors.Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.And Ors.Counsel for Appellant :- Durga Prasad ShuklaCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Meenakshi Singh Parihar,Pankaj Verma,Rahul Kumar Singh

(2) Case :- SPECIAL APPEAL DEFECTIVE No. - 176 of 2019

Appellant :- Pankaj Kumar And Ors.Respondent :- Mohd. Rizwan And Ors.Counsel for Appellant :- Gantavya,Meha RashmiCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Jai Singh Yadav And Ors.Respondent :- Mohd. Rizwan And Ors.Counsel for Appellant :- Gantavya,Meha RashmiCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Vinay Kumar Verma And Ors.Respondent :- Mohd. Rizwan And Ors.Counsel for Appellant :- Gantavya,Meha Rashmi

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Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Amit Kumar And Ors.(4)Respondent :- Mohd. Rizwan And Ors.Counsel for Appellant :- Gantavya,Meha RashmiCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Vijay Pratap Yadav And Ors.(4)Respondent :- Mohd. Rizwan And Ors.Counsel for Appellant :- Gantavya,Meha Rashmi(4)Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Ku(4)mar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Indra Pratap Yadav And Ors.(4)Respondent :- The State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.& OrsCounsel for Appellant :- Rajeev Narayan Pandey,Vaibhav SrivastavaCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Vinay Kumar Singh And Ors.Respondent :- Mohd.Rizwan And Ors.Counsel for Appellant :- Gaurav Mehrotra,Ishita YaduCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Avdhesh Shukla,Himanshu Raghave,Lal Bahadur Singh,Laltaprasad Misra,Onkar Singh,Rahul Kumar Singh


Appellant :- Akhilesh Kumar Shukla And Ors.Respondent :- Mohd. Rizwan And Ors.Counsel for Appellant :- Gantavya,Meha RashmiCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Ganesh Kumar And Ors.Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Educatin)Lko.And Ors.Counsel for Appellant :- Vidya Bhushan Pandey,Alok Kumar Vishwakarma,Girish Chandra VermaCounsel for Respondent :- C.S.C.,Ajay Kumar,Vinay Misra

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Appellant :- Manish Kumar And Ors.Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Educatin)Lko.And Ors.Counsel for Appellant :- Anjani Kumar Srivastava,Anand Awasthi,Sarvesh Kumar Saxena(4)Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr.Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Gyan Singh Yadav And Ors.Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Educatin)Lko.And Ors.Counsel for Appellant :- Sameer Kalia,Srideep ChatterjeeCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr.Singh Bhadauriya,Ashutosh,Avadhesh Shukla,Avdhesh Shukla,Lal Bahadur Singh,Pankaj Verma,Pramod Kumar Verma,Rahul Kumar Singh,Vishal Kumar Yadav


Appellant :- Vikas Shukla And Ors.Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.&Ors.Counsel for Appellant :- Vikas Singh,Mahendra Pratap SinghCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Ashish Kumar Singh And Ors.Respondent :- Mohd.Rizwan And Ors.Counsel for Appellant :- Rajendra Singh Chauhan,Deepak SinghCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Virendra Pratap And Ors.Respondent :- Mohd. Rizwan And Ors.Counsel for Appellant :- Gantavya,Meha RashmiCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- State Of U.P. Thru. Addl. Chief Secy. Basic Education &Ors.Respondent :- Mohd. Rizwan & Ors.Counsel for Appellant :- C.S.C.,Lal Bahadur SinghCounsel for Respondent :- Amit Kr. Singh Bhadauriya,Abhisar

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Dev,Aditya Vikram Singh,Ashutosh,Dinesh Kumar,Himanshu Raghave,Ishwar Lal Chaudhary,Nagendra Kumar Mishra,Nand Kishore Patel,Onkar Singh Kushttps://10.1.0.10:10443/elegalix/Login.dohwaha,Pankaj Verma,Rahul Kumar Singh,Rajeiu Kumar Tripathi,Rajesh Kumar Verma,Rajeshwar,Sanjay Kumar,Shailesh Tripathi


Appellant :- Atul Kumar Bajpai & Ors.Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Ors.Counsel for Appellant :- Amrendra Nath Tripathi,Durga Prasad ShuklaCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Rama Pati & Ors.Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Ors.Counsel for Appellant :- O.P. TiwariCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Sagar & Ors.Respondent :- Mohd. Rizwan & Ors.Counsel for Appellant :- Prakarsh Pandey,Ankut Dixit,Pradeep Kumar RaiCounsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh


Appellant :- Amit Kumar Dubey & Ors.Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Ors.Counsel for Appellant :- Arunendra Nath MishraCounsel for Respondent :- C.S.C.,Ajay Kumar


Appellant :- Ashok Kumar And Ors.Respondent :- State Of U.P.Throu.Addl.Secy.Basic Education Lko.And Ors.Counsel for Appellant :- Onkar Singh Kushwaha,Pratima Singh,Surya Bhan Singh,Sushil Kumar SinghCounsel for Respondent :- C.S.C.,Ajay Kumar


Appellant :- Akhilesh Yadav And Ors.Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.&

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Ors.Counsel for Appellant :- Arunendra Nath MishraCounsel for Respondent :- C.S.C.,Ajay Kumar


Appellant :- Gaurav PandeyRespondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. Lko. & Ors.Counsel for Appellant :- Srideep Chatterjee,Sameer KaliaCounsel for Respondent :- C.S.C.,Ajay Kumar,Amit Kr. Singh Bhadauria


Appellant :- Shri Prakash MishraRespondent :- State Of U.P. Through Prin. Secy. Basic Education & OthersCounsel for Appellant :- Ram Bali Tiwari,Rakesh Kumar ModanwalCounsel for Respondent :- C.S.C.,Ajay Kumar,Amit Kr. Singh Bhadoriya

Hon'ble Pankaj Kumar Jaiswal,J.Hon'ble Karunesh Singh Pawar,J.

(Delivered by Hon'ble Karunesh Singh Pawar, J.)

(1) Heard Sri Raghvendra Singh, Advocate General assisted by Sri

Abhinav N. Trivedi, learned Additional Chief Standing Counsel

for the appellants, Sri Upendra Nath Mishra, learned Senior

Counsel assisted by Sri Amit Kumar Singh Bhadauriya, learned

Counsel for private respondents (original writ petitioners) and

Sri H. N. Singh, learned Senior Advocate assisted by Sri

Agnihotri Kumar Tripathi for the respondents in Special

Appeal No.207 (D) of 2019, Sri S. K. Kalia, learned Senior

Counsel assisted by Sri Durga Prasad Shukla, learned Counsel

for the appellants and Sri H. G. S. Parihar, learned Senior

Counsel assisted by Sri Prashant Kumar Singh & Ms. Minakshi

Singh Parihar, for the respondents in Special Appeal No.157 of

2019, Sri Prashant Chandra, learned Senior Counsel assisted by

Ms. Meha Rashmi for the appellants in Special Appeal No. 165

(D) of 2019, Sri Anil Tewari, learned Senior Counsel assisted

by Sri Durga Prasad Shukla, Sri Amrendra Nath Tripathi and

Sri Pawan Awasthi, learned Counsel for the appellants, Dr. L. P.

Mishra & Sri Avadesh Shukla for the respondents and Sri

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Humanshi Raghav, learned Counsel for the intervenors on

behalf of Shhika Mitra in Special Appeal No.156 (D) of 2019

and Sri Jaideep Narain Mathur, learned Senior Counsel assisted

by Sri Gaurav Mehrotra & Ms. Ishita Yadu, learned Counsel for

the appellants in Special Appeal No.158 of 2019.

(2) This Special Appeal alongwith the connected matters has, with

the consent of parties, been taken up for disposal together since

the issues raised are identical.

(3) These Special Appeals arise out of judgment and order dated

29.3.2019 passed in Writ Petition No.1188 (SS) of 2019 and

other connected matters filed by Shiksha Mitras challenging the

Government Order dated 7.1.2019, by which the State

Government has fixed the qualifying marks of Assistant

Teacher Recruitment Examination - 2019 at 60% - 65% (for

general and reserved category respectively). The facts are being

narrated from Mohd. Rizwan and others v. State of U.P. and

others (Writ Petition No. 1188 (SS) of 2019).

(4) The reliefs sought in the aforesaid writ petitions were:

(a) A writ of Certiorari quashing the Government Order dated 7.1.2019; and

(b) A writ of mandamus directing the Secretary, ExaminationRegulatory Authority to declare the result of the ATRE - 2019 for 69,000 vacancies in terms of the Government Order dated 1.12.2018.

(5) The main grounds of challenge of the writ petitions to the

policy decision were:

(a) Upon qualifying the TET examination prescribed by the NCTE, the Shiksha Mitras constituted a 'homogeneous class' and increasing the qualifying marks from 40-45% (as notified for ATRE - 2018) to 60-65% for ATRE - 2019 amounted to discrimination and nullification of the benefit granted to them by the Apex Court in Anand Kumar and others v. Union of India and others v. Union of India and others and connected writ petitions [(2018) 13 SCC 560]. The fixation of cut-off marks at 60%-65% was arbitrary and with a view to eradicate/

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disqualify the petitioners (Shiksha Mitras) from being appointed on the post of Assistant Teacher; and

(b) There was a change in the rules of the game after the game had been played as the impugned Government Order notifying the qualifying marks was issued on 7.1.2019, i.e., a day after holding the ATRE - 2019 examination on 6.1.2019.

(6) The learned Writ Court allowed the writ petitions and quashed

the Government Order dated 7.1.2019 fixing the minimum

qualifying marks for Assistant Teacher Recruitment

Examination, 2019 as 65% for General Category and 60% for

reserved category and directed to declare the result of Assistant

Teacher Recruitment Examination, 2019 in terms of

Government Order dated 1.12.2018 and also

notification/advertisement dated 5.12.2018, ignoring the

Government Order dated 7.1.2019, in the same manner as the

earlier result of Assistant Teacher Recruitment Examination-

2018 was declared so far as the minimum qualifying marks are

concerned, within a period of three months and the entire

exercise shall be completed at the earliest, strictly in accordance

with law. Relevant part of the impugned judgment contained in

paras 181 and 182 reads as under:-

"181. Considering the entire facts and circumstances ofthe issue and case law so cited by the learnedcounsel for the respective parties I am of theconsidered view that the Government Order dated7.1.2019 is not sustainable in the eyes of law beingarbitrary and violative of Article 14 of theConstitution of India as it makes an unreasonableclassification by giving different treatment to twogroups of identically situated persons appearing intwo consecutive examinations and there is no validreason and justification for drastically increasingminimum qualifying marks without having anynexus with the object sought to be achieved. Itfurther appears that the Government Order dated7.1.2019 is nullifying the beneficial direction of theHon'ble Apex Court in re: Anand Kumar Yadav(supra), pursuant to which 25 marks of weightagehas been prescribed under Rule 14(3)(a) of theRules 1981 (22nd Amendment, 2018) purposely for

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practical experience which is an integral part ofmerit.

182. Accordingly, a writ in the nature of certiorari isissued quashing the Government Order dated07.01.2019 issued by the Special Secretary, BasicEducation Anubhag-4, Government of U.P.,Lucknow."

(7) In the State of Uttar Pradesh, out of 1,78,000 'Shiksha Mitras',

who were given fortuitous appointments as Primary Teachers

on contractual basis, a total of approximately 1,37,500 'Shiksha

Mitra' were absorbed as Assistant Teachers in Junior Basic

Schools. Their absorption into the regular service of State as

Assistant Teachers by amendment made by the State

Government by its notification dated 30.5.2014 introducing the

provision of Rule 16-A in the U.P. Right of Children to Free

and Compulsory Education Rules, 2011 by the U.P. Right of

Children to Free and Compulsory Education (First Amendment)

Rules, 2014 and consequential executive orders of the State

Government were challenged in Writ-A No.34833 of 2014,

Anand Kumar Yadav and others v. Union of India and others

and connected writ petitions [(2015) 8 ADJ 338]. Ultimately,

the Full Bench found that the engagement of Shiksha Mitras

was not in the regular service of the State since they had not

been appointed in accordance with the U.P. Basic Education

(Teachers) Service Rules, 1981 [In short, it has been referred to

as '1981 Rules']. It found that their engagement was purely on

contractual basis for a stipulated term of eleven months

renewable subject to satisfactory performance and on payment

of an honorarium. It also found that their appointments were not

against sanctioned posts as determined by the Board of Basic

Education under the 1981 Rules. It was also observed that the

Shiksha Mitras did not fulfil the qualifications for a regular

teacher under the 1981 Rules. The Full Bench thereafter

proceeded to evaluate the rights of the Shiksha Mitras to

continue in service in the light of the provisions of the Right of

Children to Free and Compulsory Education, 2009 [In short, it

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is referred to as 'RTE Act'] as well as the qualifications

prescribed by the National Council For Teacher Education for

Teachers [in short, it is referred to as 'NCTE'] imparting

instructions in basic schools. On a detailed scrutiny of the

aforesaid provisions, it held that the Shiksha Mitras did not

possess the requisite qualification and therefore could not be

appointed. The Full Bench also proceeded to strike down the

Government Order dated 30.5.2014 which purported to the

effect of their absorption even though they did not hold the

qualification as were prescribed under the RTE Act and

notifications issued by the NCTE.

(8) The decision of the Full Bench was subject to challenge by the

State of U.P. before the Apex Court which upheld the judgment

and the view taken by the Full Bench. While doing so, the Apex

Court in State of U.P. and another v. Anand Kumar Yadav and

others [(2018) 13 SCC 560] in paras 28 to 30 observed as

under:-

"28. We are in agreement with the above findings.In view of clear mandate of law statutorilyrequiring minimum qualification for appointmentof teachers to be appointed after the date ofNotification dated 23rd August, 2010, there is nodoubt that no appointment was permissible withoutsuch qualifications. Appointments in the presentcase are clearly after the said date. Relaxationprovision could be invoked for a limited period orin respect of persons already appointed in terms ofapplicable rules relating to qualifications. TheShiksha Mitras in the present case do not fall in thecategory of pre 23 rd August, 2010 Notificationwhose appointment could be regularized.

29. Further difficulty which stares one in the faceis the law laid down by this Court onregularization of contractually appointed personsin public employment. Appointment of ShikshaMitras was not only contractual, it was not as perqualification prescribed for a teacher nor ondesignation of teacher nor in pay scale ofteachers. Thus, they could not be regularized asteachers. Regularization could only be of mere

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irregularity. The exceptions carved out by thisCourt do not apply to the case of the presentnature.

30. In view of our conclusion that the ShikshaMitras were never appointed as teachers as perapplicable qualifications and are not covered byrelaxation order under Section 23(2) of the RTEAct, they could not be appointed as teachers inbreach of Section 23 (1) of the said Act. The Stateis not competent to relax the qualifications.

(9) The Apex Court thereafter proceeded to consider the fate of

1,78,000 Shiksha Mitras who were continued in service

pursuant to the decision of the State Government and it held

thus:-

32. On the one hand, we have the claim of 1.78Lakhs persons to be regularized in violation oflaw, on the other hand is the duty to uphold therule of law and also to have regard to the right ofchildren in the age of 6 to 14 years to receivequality education from duly qualified teachers.Thus, even if for a stop gap arrangement teachingmay be by unqualified teachers, qualified teachershave to be ultimately appointed. It may bepermissible to give some weightage to theexperience of Shiksha Mitras or some agerelaxation may be possible, mandatoryqualifications cannot be dispensed with.Regularization of Shiksha Mitras as teachers wasnot permissible. In view of this legal position, ouranswers are obvious. We do not find any error inthe view taken by the High Court.

33. Question now is whether in absence of anyright in favour of Shiksha Mitras, they are entitledto any other relief or preference. In the peculiarfact situation, they ought to be given opportunityto be considered for recruitment if they haveacquired or they now acquire the requisitequalification in terms of advertisements forrecruitment for next two consecutiverecruitments. They may also be given suitableage relaxation and some weightage for theirexperience as may be decided by the concernedauthority. Till they avail of this opportunity, theState is at liberty to continue them as ShikshaMitras on same terms on which they were workingprior to their absorption, if the State so decides."

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(10) The Apex Court confirmed the position found by the Full

Bench that Shiksha Mitras did not possess requisite

qualifications required for an Assistant Teacher and thus, they

could not be regularized. However, the Apex Court also sought

to balance the rights of 1,78,000 persons engaged by the State

in Basic Schools in their capacity as Shiksha Mitras by

observing that in the peculiar fact situation, they ought to be

given an opportunity to be considered for recruitment if they

have acquired or they now acquire the requisite qualifications in

terms of advertisement for recruitment in the next two

consecutive recruitment exercises to be conducted by the

Board. It was held that they may be given suitable age

relaxation "some weightage for their experience". Weightage,

consciously, was to be given in respect of "experience" and

not in connection with any examination.

(11) The appointment of Assistant Teachers in Junior Basic Schools

is regulated by U.P. Basic Education Act, 1972 [in short, it has

been referred to as '1972 Act'] which was enacted by the State

Legislature to control basic education (education upto eighth

class) in the State of U.P. Section 19 of the 1972 Act authorizes

the State Government to make rules to carry out the purpose of

the Act. 1981 Rules lay down sources of recruitment and

qualification for appointment of teachers. Part III of the 1981

Rules relate to recruitment. Qualifications for teachers of basic

schools are defined in Part IV.

(12) The National Council for Teachers’ Education Act, 1993 [in

brief, it is referred to as 'NCTE Act'] was enacted by Parliament

for planned and co-ordinated development for the teacher

education system and the regulation and proper maintenance of

norms and standards.

(13) The RTE Act was enacted by the Parliament for free and

compulsory education to all children of the age of 6 to 14 years.

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The RTE Act lays down the qualifications for appointment and

terms and conditions of service of Teachers. Section 23

provides for qualification for appointment of teachers. The

NCTE was designated as the authority under Section 23 (1) to

lay down the qualifications for appointment of teachers. The

Central Government in exercise of its powers conferred under

Section 23 of the RTE Act issued a notification dated 31.3.2010

authorizing the NCTE as the 'Academic Authority' to lay down

minimum qualification for a person to be eligible for

appointment as a Teacher. On 1.4.2010, by 86th amendment to

the Constitution of India, Article 21-A was inserted for

providing free and compulsory education to the children of 6-14

years.

(14) The NCTE issued notification dated 23.8. 2010 laying down

qualifications for appointment of teachers for elementary

education. With regard to teachers appointed prior to the said

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 [in

brief, it is referred to as 'the 2001 Regulations'].

(15) One of the minimum qualifications for a person to be appointed

as Teachers in Classes I to VIII, as contained in notification

dated 23.8.2010 is that he/she should pass the Teacher

Eligibility Test (TET) which will be conducted by the

appropriate Government. Being the Academic Authority, NCTE

prescribed guidelines for conducting TET examinations by the

appropriate Government vide its notification dated 11.2.2011

under Section 12-D read with Section 12-A of the NCTE Act

and Section 23 of the RTE Act.

(16) The State Government in exercise of its powers conferred under

Entry 25 of List III of Schedule VII and 1972 Act has

prescribed an additional minimum qualification, i.e., passing

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the Assistant Teacher Recruitment Examination for being

considered for appointment to the post of Assistant Teacher

which the Shiksha Mitra must qualify by obtaining the

prescribed passing marks, and no special rights, relaxation or

benefit can be claimed by the Shiksha Mitras. Necessary

amendments were carried out in the 1981 Rules, incorporating

qualifying the ATRE in the manner prescribed as a minimum

qualification for being considered eligible for appointment as

Teacher.

(17) After decision of the Apex Court, the State of U.P. proceeded to

amend 1981 Rules. The Twentieth amendment to the 1981

Rules came to be notified on 9.11.2017. This Amendment, in

Rule 2(v) defined a Shiksha Mitra to mean a person working in

Junior Basic Schools run by the Basic Shiksha Parishad under

Government Orders issued prior to the commencement of the

U.P. Right of Children to Free and Compulsory Education

Rules 2011 [in short 'UPRTE Rules, 2011']. It also included

Shiksha Mitras appointed as Assistant Teachers in Junior Basic

Schools and reverted as Shiksha Mitras pursuant to the

judgment of the Supreme Court in Anand Kumar Yadav

(supra). It also introduced a definition for the "Assistant

Teacher Recruitment Examination" to mean a written

examination conducted by the Government for recruitment of

persons in junior basic schools run by the Basic Shiksha

Parishad. The "Qualifying Marks of Assistant Teacher

Recruitment Examination" was defined to mean such

minimum marks as would be determined by the Government

from time to time. The relevant Clauses (w) (x) and (y) inserted

vide Twentieth amendment in Rule 2 (1) of the 1981 Service

Rules are being reproduced hereunder:-

Rule 2(1)(w) "Assistant Teacher RecruitmentExamination" means a written examinationconducted by Government for recruitment of aperson in junior basic schools run by Basic

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Shiksha Parishad;

Rule 2(1)(x) "Qualifying marks of AssistantTeacher Recruitment Examination" means suchminimum marks as may be determined from timeto time by the Government;

Rule 2(1)(y) "Guideline of Assistant TeacherRecruitment Examination" means such guidelinesas may be determined from time to time by theGovernment."

(18) By the said Twentieth Amendment, the requirement to qualify

the Assistant Teacher Recruitment Examination was included

both in Rule 8 and Rule 14 as follows:-

"Rule 8 (1)(ii)(a) and (c)" and passed AssistantTeacher Recruitment Examination conducted bythe Government";

Rule 14 (1)(a)" and passed Assistant TeacherRecruitment Examination conducted by theGovernment";

(19) Rule 5 which prescribed the essential qualifications to be

possessed by a person desirous of being appointed as an

Assistant Master or Mistress in a junior basic school read as

follows:

"(a) Bachelors degree from a Universityestablished by law in India or a degree recognisedby the Government equivalent thereto togetherwith any other training course recognised by theGovernment as equivalent thereto together with thetraining qualification consisting of a BasicTeacher's Certificate (BTC), two years BTC(Urdu) Vishisht BTC. Two year Diploma inEducation (Special Education) approved by theRehabilitation Council of India or four yearDegree in Elementary Education (B.EI.Ed.), twoyear Diploma in Elementary Education (bywhatever name known) in accordance with theNational Council for Teacher Education(Recognition, Norms and Procedure), Regulations,2002 or any training qualifications to be added byNational Council of Teacher Education for therecruitment of teachers in primary education.

and teacher eligibility test passed conducted by the

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Government or by the Government of India andpassed Assistant Teacher recruitment Examinationconducted by the Government.

(b) a Trainee Teacher who has completedsuccessfully six months special trainingprogramme in elementary education recognised byNCTE.

(c) a shikshamitra who possessed bachelors degreefrom a University established by law in India or adegree recognised by the Government equivalentthereto and has completed successfully two yearsdistant learning B.T.C. course or Basic Teacher'sCertificate (B.T.C.), Basic Teachers Certificate(B.T.C.) (Urdu) or Vishisht B.T.C. conducted bythe State Council of Educational Research andTraining (SCERT) and passed the TeacherEligibility Test conducted by the Government orby the Government of India and passed AssistantTeacher Recruitment Examination conducted bythe Government."

(20) The selection of Assistant Teacher as per the 1981 Rules is

made in accordance with the "quality points" that may be

obtained by an applicant computed in accordance with

Appendix-I to the 1981 Rules. The Twentieth Amendment

amended the Appendix-I to read as follows:

"[APPENDIX-I]

Quality points, and weightage for selection of candidates

Name ofExamination/

Degree

Quality Points

1. High School Percentage of marks in the examination x10100

2. Intermediate Percentage of marks in the examination x10100

3. Graduation Degree Percentage of marks in the examination x10100

4. B.T.C. Training Percentage of marks in the examination x10100

5. Assistant Teacher Recruitment Examination

Percentage of marks in the examination x60100

6. WeightageTeaching experience as shiksha mitra or an teacher working as such in junior basic shools run by Basic Shiksha Parishad

2.5 marks per completed teaching year, uptomaximum 25 marks, whichever is less.

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Note:

1. If two or more candidates have equal qualitypoints, the name of the candidate who is senior inage shall be placed higher in the list.

2. If two or more candidates have equal qualitypoints and age, the name of the candidate shall beplaced in the list in English alphabetical order."

(21) The 1981 Rules were thereafter amended yet again on 15

March 2018 when the Twenty-Second Amendment came to be

promulgated.

(22) For a Shiksha Mitra, the Twenty-Second Amendment

prescribed the essential academic qualifications as under:

"Rule 5(a)(ii)(c) a shikshamitra who possessedbachelors degree from a University established bylaw in India or a degree recognised by theGovernment equivalent thereto and has completedsuccessfully two years distant learning B.T.C.course or Basic Teacher's Certificate (B.T.C.),Basic Teacher's Certificate (B.T.C.) (Urdu) orVishisht B.T.C. conducted by the State Council ofEducational Research and Training (SCERT) andpassed the Teacher Eligibility Test conducted bythe Government or by the Government of India."

(23) For the purpose of determination of vacancies, Rule 14(1)(a)

after the Twenty-Second Amendment reads as follows:

"14(1)(a) Determination of vacancies

In respect of appointment, by direct recruitment tothe post of Mistress of Nursery Schools andAssistant Master or Assistant Mistress of JuniorBasic Schools under clause (a) of Rule 5, theappointing authority shall determine the numberof vacancies as also the number of vacancies to bereserved for candidates belonging to ScheduledCastes, Scheduled Tribes, Backward Classes, andother categories under Rule 9 and published in atleast two leading daily newspapers havingadequate circulation in the State as well as inconcerned district inviting applications fromcandidates possessing prescribed trainingqualification and passed teacher eligibility test,

17

conducted by the Government or by theGovernment of India and passed AssistantTeacher Recruitment Examination conducted bythe Government."

(24) It would be also to be pertinent to compare sub-rules (2) and (3)

of Rule 14 as amended by the Twentieth and Twenty-Second

Amendments. This would be evident from the chart which is

extracted herein below:-

(2) The appointing authorityshall scrutinize theapplications received inpursuance of theadvertisement under clause (a)or (b) of sub-rule (1) of rule14 and prepare a list of suchpersons as appear to possessthe prescribed academicqualifications and be eligiblefor appointment.

(3)(a). The names ofcandidates in the list preparedunder sub-rule (2) inaccordance with clause (a) ofsub-rule (1) of rule 14 shallthen be arranged in suchmanner that the candidateshall be arranged inaccordance with the qualitypoints and weight-age asspecified in the appendix-I:

Provided that if two or morecandidates obtain equalmarks, the candidate senior inage shall be placed higher:

(2) Preparation of Merit List-The appointing authority shallscrutinize the applicationsreceived in pursuance of theadvertisement under clause(a) or clause (c) of sub-rule(1) and prepare a merit listof such persons as appear topossess the prescribedacademic qualifications andpassed Assistant TeacherRecruitment Examinationbe eligible for appointment.

(3)(a). The names ofcandidates in the list preparedunder sub-rule (2) inaccordance with clause (a) ofsub-rule (1) of rule 14 shallthen be arranged in suchmanner that the candidateshall be arranged inaccordance with the qualitypoints and weightage asspecified in the appendix-I:

Provided that if two or morecandidates obtain equalmarks, the candidate senior inage shall be placed higher:

Provided that a personworking as Shiksha Mitra inJunior Basic Schools run byBasic Shiksha Parishadshall be given weightage inthe recruitment of the postof Assistant Teacher, only intwo consecutive AssistantTeacher Recruitment

18

3(b). The names of candidatesin the list prepared under sub-rule (2) in accordance withclause (b) of sub-rule (1) ofrule 14 shall then be arrangedin such manner that thecandidate shall be arranged inaccordance with the qualitypoints specified in theappendix-II Provided that if two or morecandidates obtain equalmarks, the candidate senior inage shall be placed higher.

Examination conducted bythe Government after July25, 2017. (b) The names of candidatesin the list prepared under sub-rule (2) in accordance withclause (c) of sub-rule (1) ofrule 14 shall then be arrangedin such manner that thecandidate shall be arranged inaccordance with the qualitypoints specified in theappendix-II:

Provided that if two or morecandidates obtain equalmarks, the candidate senior inage shall be placed higher.

(25) Sub-Rule (2) clearly mandates the preparation of a merit list to

include only such persons who possess the prescribed academic

qualifications and have passed the ATRE. Sub-rule (3) (a)

reinforces the above position by prescribing that the names of

candidates prepared under sub-rule (2) of Rule 14 is to be

arranged in accordance with the quality points and weightage as

specified in Appendix - I. It is in unequivocal terms provides

for a weightage only in respect of every teaching year

completed by Shiksha Mitra. As per clause 6 of the Appendix -

I, Shiksha Mitras are entitled to a weightage of 2.5 marks

subject to a maximum of 25 marks in respect of every

completed year of teaching alone. Clause 5 of the Appendix - I

does not make any provision for the grant of weightage at the

stage of declaration of results.

(26) Significantly Rule 8 after its Twenty-Second Amendment while

prescribing essential qualifications, has done away with the

19

requirement of passing of the Assistant Teacher Recruitment

Examination conducted by the Government. Similarly the said

Rule while prescribing the academic qualifications for a

Shiksha Mitra has deleted the requirement of a Shiksha Mitra

having passed the Assistant Teachers Recruitment Examination.

This requirement however, is continued in Rule 14(1)(a) as well

as in sub-rules (2) and (3) thereof.

(27) After dictum of the Hon'ble Supreme Court in the case of

Anand Kumar Yadav (supra), the ATRE was introduced.

Statutory Guidelines under Rule 2(y) of 1981 Rules for

conducting first ATRE - 2018 examination were issued on

9.1.2018 and selection process was undertaken to fill-up

approximately 68,500 vacancies in the primary schools in the

State and the State Government started conducting written

examination called Assistant Teacher Recruitment

Examination 2018 and issued an advertisement for filling up of

68,500 posts of Assistant Teachers in Junior High School.

Clauses 1 (kha) and 7 (3) of the Guidelines dated 9.1.2018 for

ATRE - 2018 read as under:-

Clause 1 (kha) lgk;d v/;kid HkrhZ ijh{kk m0iz0

csfld f'k{kk ifj"kn }kjk lapkfyr izkFkfed fo|kyksa esa

lgk;d v/;kid ds inksa ij HkrhZ gsrq dqy 68500 inksa ds

lkis{k vk;ksftr dh tk;sxh A fo'ks"k ifjfLFkfr;ksa esaa inksa dh

la[;k ?kV@c< ldrh gS A ;g ijh{kk ek= blh HkrhZ ds

fy;s gh ekU; gk sxh A

Clause 7 (3) : lgk;d v/;kid HkrhZ ijh{kk djuk

fdlh O;fDr dks HkrhZ@ jkstxkj ds fy, vf/kdkj ugha gksxk

D;wafd ;g fu;qfDr ds fy, dsoy ik=rk ekun.Mks esa ls ,d

gSA

(28) From clause 1 (Kha) it has been clearly mentioned that the said

examination is valid for the recruitment of the particular year.

In the said examination, the minimum qualifying marks for

TET was 60% and 55%, as the case may be and for Assistant

Teacher Recruitment Examination 2018, it was 45% for general

20

category and 40% for reserve category as per clause 7 (1) and 7

(2) of the guidelines which read as under:-

"7(1) lgk;d v/;kid HkrhZ ijh{kk esa 'kkfey gkus okys

vH;fFkZ;ka dk ijh{kk ifj.kke osclkbV ij tkjh fd;k tk;sxkA

lkekU; ,oa vU; fiNMk oxZ ds vH;fFkZ;ksa dks iw.kkZad 150 esa ks

67 vad vFkkZr 45 izfr'kr vkSj vf/kd vad izkIr djus okys

vH;fFkZ;ksa dks lgk;d v/;kid HkrhZ ijh{kk mRrh.kZ gksus dk

izek.k i= tkjh fd;k tk;sxk A

7(2) vuqlwfpr tkfr@vuqlwfpr tutkfr Js.kh ds vH;kfFkZ;ksa

ds fy, U;wure vgZd vad 40 izfr'kr vFkkZr iw.kkZad 150 esa ls

60 vad gksxk A"

(29) Recruitments of first ATRE - 2018 were carried out under the

Twenty-second Amendment. At that time, a challenge was laid

by the Shiksha Mitras that after the Twenty-second

Amendment qualifying the ATRE is no longer a minimum

requirement, in the case of Kul Bhushan Mishra and others v.

State of U.P. and others [(2019) 2 ADJ 442], wherein the writ

petitioners have prayed for a direction that while preparing the

merit list of the ATRE - 2018, which was conducted by the

State of U.P. on 27.5.2018, weightage of 2.5% marks for every

year of the working as Shiksha Mitra should be given and result

be declared after adding the same.

(30) The Division Bench of this Court dealt with the aforesaid issues

exhaustively in Kul Bhushan Misra's case (supra), and found

that the Shiksha Mitras cannot claim the benefits under the

Anand Kumar Yadav's case (supra) before they hold the

prescribed minimum qualifications and qualify the ATRE and

come within the zone of eligibility for being considered for

appointment as Assistant Teacher. This Court held that not only

is qualifying the ATRE a mandatory and minimum qualification

to be considered for appointment to the post of Assistant

Teacher, but also that any benefit under the Anand Kumar

Yadav's case (supra) shall be available to the Shiksha Mitras

21

only during the 'process of recruitment' which will start once

they qualify the ATRE by scoring the prescribed qualifying

marks, and until they do so they cannot stake a claim to such

weightage. Relevant portion of the judgment of Kul Bhushan

Misra (supra) reads as under:-

"In our considered opinion the submissionadvanced on behalf of the appellants/petitionersmust necessarily be evaluated bearing in mind thedecision of the Supreme Court in Anand KumarYadav as well as the statutory amendmentsintroduced in the 1981 Rules by virtue of theTwentieth and Twenty-Second Amendments.

Anand Kumar Yadav, expressly upheld andaffirmed the decision rendered by the Full Benchof this Court. The Supreme Court confirmed theposition found by the Full Bench that ShikshaMitras did not possess the requisite qualificationsrequired of an Assistant Teacher and, thus, theycould not be regularised. However, the SupremeCourt also sought to balance the rights of 1,78,000persons engaged by the State Government in BasicSchools in their capacity as Shiksha Mitras byobserving that in the peculiar fact situation, theyought to be given an opportunity to be consideredfor recruitment if they have acquired or they nowacquire the requisite qualifications in terms ofadvertisements for recruitment in the next twoconsecutive recruitment exercises to be conductedby the Board. It is in that light that the secondproviso to Rule 14 (3) must be read. The secondproviso must also necessarily be interpreted inconjunction and against the backdrop of thesignificant observation of the Supreme Court inAnand Kumar Yadav where it was held that theymay be given suitable age relaxation and "someweightage for their experience...". Weightage,crucially was to be given in respect of"experience" and not in connection with anyexamination.

The appointment of Shiksha Mitras as AssistantTeachers was unequivocally made subject to theyhaving either acquired or now acquiring therequisite qualifications as prescribed under the1981 Rules. Viewed in this light, it is manifest thatShiksha Mitras were not exempted from therigours of possessing either the essential

22

qualifications or otherwise meeting therequirements of the 1981 Rules and moreparticularly Rule 14 thereof. Rule 14(1)(a) inunambiguous terms confines the zone of eligibilityto those who (a) possess the prescribed trainingqualification, (b) have passed the TeacherEligibility Test and (c) the Assistant TeacherRecruitment Examination. The procedure forpreparation of the merit list is then prescribed insub-rule (2) which mandates the inclusion of onlysuch persons, who possess the prescribedacademic qualifications and have additionallypassed the Assistant Teacher RecruitmentExamination. Sub-rule (3) then proceeds toprescribe that the name of candidates shall bearranged in accordance with the quality pointsand weightage as specified in Appendix-I. Clause5 of the Appendix-I provides for the manner inwhich quality point marks are to be computed withrespect to marks obtained in the Assistant TeacherRecruitment Examination. There is thus anunambiguous command enshrined in sub rules (1)and (2) read with the Appendix-I of a candidatepassing the Assistant Teacher RecruitmentExamination. These provisions, significantly, donot prescribe or envisage the conferral ofweightage to the marks obtained in the saidexamination.

The Appendix-I and more particularly Clause 5thereof, provides for the computation of qualitypoints based upon the marks obtained by anapplicant in the Assistant Teacher RecruitmentExamination. As is evident from Clause 6 of theAppendix-I the weightage of 2.5 marks subject to amaximum of 25 marks is confined to everycompleted year of teaching. Weightage is notprovisioned for in Clause 5 which deals with thecomputation of quality points with regard to theAssistant Teacher Recruitment Examination. TheAppendix-I in unambiguous terms provides for aweightage of 2.5 marks subject to a maximum of25 only in respect of every completed year ofteaching. Significantly although the secondproviso to sub rule (3) was introduced by way ofthe Twenty-Second Amendment on 15 March 2018,the Appendix-I as amended by the TwentiethAmendment was not touched. This clearly seems tosuggest that the rule making authority had nointention of amending or modifying the mannerin which quality point marks were to becomputed. Neither Clause 5 nor Clause 6 of the

23

Appendix-I were varied. They continue to link thegrant of weightage solely to every completed yearof teaching. Similarly, Clause 5 continues tomaintain the formula for computation of qualitypoint marks as it is without providing for anyaddition or weightage being provided at thisstage."

.... ..... ....

"Both sub-rules (1) and (2) of Rule 14unequivocally mandate that a candidate desirousof appointment as an Assistant Teacher must havepassed the Assistant Teacher RecruitmentExamination. Rule 14 (3)(a) then proceeds toprescribe that the names of candidates preparedunder Rule 14 (2) is to be arranged in accordancewith quality points and weightage as specified inAppendix-I. Appendix-I as noticed above restrictsthe application of weightage to every completedteaching year. Neither sub rules (2) and (3) nor theAppendix-I contemplate weightage being accordedat the time of computing quality points withrespect to the Assistant Teacher RecruitmentExamination or at the time of declaration ofresults of the said exam. This subject is dealt withexclusively by clause 5 of Appendix-I. Thisparticular clause, as noticed above, has remainedunaltered and untouched by the Twenty-SecondAmendment. Even this clause does not prescribe aweightage being accorded to the marks obtainedin the examination in question. The subject ofweightage is considered principally by Clause 6. Itis also signifiant to note that Clause 6 restricts theapplication of weightage to every completedteaching year alone. This particular Clause wasalso neither visited nor touched by the Twenty-Second Amendment.

Viewed in the above backdrop, we are of theconsidered view that weightage was notcontemplated to be added to the marks obtainedby a person in the Assistant Teacher RecruitmentExamination. Following the principle ofidentifying the hierarchy of provisions asenunciated by the Supreme Court, we find thatsub-rules (2) and (3) of Rule 14 are the principalprovisions. The prescription and requirementsplaced by these two provisions must be recognisedto be the fundamental pedestal which must beachieved by any candidate seeking appointment asan Assistant Teacher. The second proviso to Rule

24

14 (3) must, therefore, be interpreted so as to fallin line and in tune with sub-rules (2) and (3). Thiswould also flow from the language of the secondproviso itself, which principally deals with thesubject of grant of weightage in respect ofrecruitment to the post of Assistant Teacher. Sub-rule (4) of Rule 14 is also of no less significance.This provision in unambiguous terms prescribesthat no person shall be eligible for appointmentunless his or her name is included in the listprepared under sub-rule (2). Sub-rule (4)expressed in negative terms clearly operates as astatutory injunction against the appointment ofany person unless he or she finds place in the listprepared in accordance with Rule 14 (2). Sub-rule(2) of Rule 14, as we have held above, clearlyrequires all persons to pass the Assistant TeacherRecruitment Examination. This sub rule does notcontemplate the grant of weightage at the stage ofpreparation of the result of the Assistant TeacherRecruitment Examination. We have alsorecognised sub-rules (1), (2) and (3) of Rule 14 aswell as Appendix-I to be the principal provisions.On a conjoint reading of these provisions, it ismanifest that weightage is not liable to beaccorded at the stage of computation of marksobtained by a candidate in the Assistant TeacherRecruitment Examination. At the cost of repetition,we may only reiterate that the observation of theSupreme Court in Anand Kumar Yadav withrespect to the grant of weightage also stoodconfined to the experience gained by a ShikshaMitra. This observation stands embedded in thestatute with Appendix-I prescribing weightagebeing accorded for every completed year ofteaching."

(31) After conducting first ATRE - 2018 on 27.5.2018, the State

Government by a Government Order dated 8.8.2018 has issued

an order directing the concerned authorities to prepare the list

as per minimum marks provided in clause 7 (1) and 7 (2) of the

Government Order dated 9.1.2018. Result of first Assistant

Teacher Recruitment Examination 2018 was declared on

13.8.2018 in which 41,556 candidates were declared 'pass'.

Pursuant to the result of revaluation being declared 4500 and

odd candidates were also declared 'pass'.

25

(32) The State Government vide Government Order dated 1.12.2018

issued statutory guidelines and applications were invited for

conducting second Assistant Teacher Recruitment

Examination 2019 (In short, it is referred to as 'ATRE - 2019')

for filling up of 69,000 posts of Assistant Teachers and its

advertisement was issued on 5.12.2018 wherein the date of

examination was fixed as 6.1.2019. Clauses 1 (kha), 4 (2), 7 (2)

and 17 (10) are relevant which read as under:-

1 (Kha) lgk;d v/;kid HkrhZ ijh{kk m0iz0 csfld f'k{kk

ifj"kn }kjk lapkfyr izkFkfed fo|kyksa esa lgk;d v/;kid ds

inksa ij HkrhZ gsrq dqy 69000 inksa ds lkis{k vk;ksftr dh

tk;sxh A fo'ks"k ifjfLFkfr;ksa esaa inksa dh la[;k ?kV@c< ldrh

gS A ;g ijh{kk ek= blh HkrhZ ds fy;s gh ekU; gk sxh A

4 (2) jk"Vz̀h; v/;kid fjk{kk ifj"kn] ubZ fnYyh }kjk U;wure

vgZrk d{kk 1 ls 5 ds lEcU/k esa fuxZr vf/klwpuk fnukad 23-

08-2010] 29-07-2011] 12-11-2014] 28-11-2014 (,isafMDl &2 dh

izLrkouk 1-2 esaa mfYyf[kr) rFkk fnukad 28-06-2018 easa fu/kkZfjr

vgZrk/kkjh lgk;d v/;kid HkRrhZ ijh{kk 2019 esa vkosnu djus

ds fy, ik= gksaxsa A

7 (2) lgk;d v/;kid HkrhZ ijh{kk mRrh.kZ djuk fdlh

O;fDr dks HkrhZ@jkstxkkj ds fy, vf/kdkj ugh gksxk

D;ksafd ;g fu;qfDr ds fy, dsoy ekun.Mksa esa ls ,d gS A

17 (10) ;fn fdlh vH;FkhZ dks lgk;d v/;kid HkrhZ

ijh{kk esa cSBus dh vuqefr ns nh xbZ gS rks bldk ;g vFkZ ugha

fy;k tk;sxk fd vH;FkhZ dh ik=rk izekf.kr gks xbZ gS] blls

vH;FkhZ dks fu;qfDr ds fy, dksbZ vf/kdkj ugh feyrk gS A

ik=rk lacksf/kr HkrhZ@fu;ksDrk izkf/kdkjh }kjk vafre :i ls

izekf.kr dh tk,xh A vH;FkhZ dks vkosnu djus ls igys

viuh ;ksx;rk ls iw.kZr% larqf"V gkusk pkfg, vkSj ;fn ;g fn,

x, ;ksX;rk ekin.M ds vuqlkj vkosnu ds fy, ;ksx; ugh gS

rks os vkosnu u djasa vkSj fQj Hkh vkosnu djrsgS rks blds fy,

vH;FkhZ Lo;a ftEesnkj gksxk A

(33) The second ARTE 2019 was conducted on 6.1.2019. In the said

26

examination no minimum cut-off marks was fixed for Assistant

Teacher Recruitment Examination and the examination was

conducted on 6.1.2019 without any such fixation of minimum

qualifying marks. After the guideline dated 1.12.2018 was

published in which the cut-off marks were not published, Writ

Petition No.27461 of 2018 was filed before this Court calling

for fixation of cut off marks of ATRE 2019 and the State

Government had proceeded with expedition to secure

punctilious compliance with orders issued by this Court therein

fixing the cut off marks after taking relevant factors into

consideration vide Government Order dated 7.1.2019 in

exercise of powers conferred under the 1972 Act and Rule 2(1)

(x) of the 1981 Rules in accordance with the procedure

prescribed upon, which the said writ petition was dismissed as

having become infructuous, fixing minimum 65% for general

category and 60% for reserve category. The said Government

Order dated 7.1.2019 has been assailed by the Shiksha Mitras

by filing writ petitions on various grounds.

(34) Learned counsel for the writ petitioners proposed five issues for

consideration before the learned Writ Court which read as

under:-

"I. Whether the impugned Government Ordermakes an unreasonable classification by givingdifferent treatment to two groups of identicallysituated persons appearing in two consecutiveexaminations?

II. Whether there are valid reason andjustification for drastically increasing minimumqualifying marks and whether it has any nexuswith the object sought to be achieved.

III. Whether the issuance of impugnedGovernment Order nullifying the beneficialdirection of the Hon'ble Apex Court's judgment ispermissible in law?

IV. Whether practical working experience is anintegral part of merit and whether specialprovision regarding weightage added in thestatute can be nullified by general provisions of

27

Rules?

V. Whether by providing the eligibility marks afterholding the written examination the respondentsare changing the Rule of game after the gamestarts?"

(35) The arguments of the learned Senior Counsel for the appellants

(respondents in the writ petition) that the examination is a part

of recruitment process is entirely misplaced as it is not the case

that every candidate who qualifies the second ARTE has to

necessarily be appointed as Assistant Teacher and he/she must

meet the further criteria laid down under the 1981 Rules and the

relevant recruitment advertisement. The learned Writ Court by

impugned judgment has observed that no logic is fixed fixing

the minimum qualifying marks for ATRE 2019 examination as

65% and 60% respectively. The qualifying marks have been

fixed for examination after completion of examination and

there is no justification as to why the cut-off marks have been

enhanced from 45% and 40% to 65% and 60% respectively.

Relying on Rule 2 (x) of 1981 Rules, it has been observed that

the qualifying marks should be 'minimum' and 'minimum'

should be seen like 'minimum'. 'Minimum' may not be seen as

'maximum' and allowed the writ petitions vide impugned

judgment and order dated 29.3.2019.

(36) Aggrieved by the said order, these Special Appeals have been

filed on the ground that the learned Writ Court allowed the writ

petitions while mixing the issue of qualifying examinations

with the final recruitment, which is yet to commence, as even

notification has not yet been issued for the purpose of

recruitment by the State Government.

(37) In Special Appeal No. 207 (D) of 2019, Sri Raghvendra Singh,

learned Advocate General has submitted that for filling up of

69,000 vacancies of Assistant Teachers in Primary Schools run

by the U.P. Basic Education Board, the guidelines/schedule was

issued by the State Government on 1.12.2018 for holding the

28

ATRE - 2019. The selection was to be held in terms of 1981

Rules as amended from time to time including Twentieth and

Twenty-second amendment. On 6.1.2019, the written

examination was held. Thereafter, on 7.1.2019, the State

Government determined the minimum qualifying marks of

Assistant Teacher Recruitment Examination as 65% for

unreserved category and 60% for reserved category. This order

was issued by the Anubhag - 4 of the Basic Education

Department determining the minimum qualifying marks as per

Rule 2(x) of the Twentieth and Twenty-second amendments

made in the 1981 Rules. He submitted that the determination of

minimum marks was within the statutory competence of State

Government. The increase in the minimum qualifying marks is

justified on the ground of change in the pattern of the

examination and increase in the number of applicants from

approximately 1.07 lakhs in the year 2018 (first ATRE - 2018)

to 4.1 lakhs in the year 2019, (second ATRE - 2019) learned

Advocate General submits that minimum qualifying marks

were increased keeping in view the change in procedure and

criteria of examination inasmuch as in the previous selection,

the examination was subjective whereas in the current

examination, the paper was objective (multiple choice

questions) and there is no whisper in rejoinder affidavit that

allegedly there is no difference in subjective and objective type

of questions. The determination of the quantum of minimum

marks on 7.1.2019 is prior to declaration of result which could

not have been construed as change in the rules of game. The

qualifying marks were increased in order to increase in standard

and merit in education. The learned Writ Court has erred in

allowing the writ petitions on the premise that fixing the

minimum qualifying marks are disadvantageous to Shiksha

Mitras and allegedly trying to negate the case of Anand Kumar

Yadav (supra).

(38) He further submitted that the order dated 7.1.2019 issued by the

29

Anubhag - 4 was within the statutory competence of the State

Government. There is no violation of U.P. Distribution of Work

Rules, 1975 (Uttar Pradesh Karya (Batwara) Niyamawali,

1975) and even otherwise, no prejudice can be said to have

been caused to the Shiksha Mitras. According to the learned

Advocate General, upholding the judgment of the learned Writ

Court would entail appointments of such candidates who would

be scoring less marks in written examination and shall

consequentially negate the endeavour of the Government to

ensure availability of meritorious candidates to be appointed as

Teachers in the Primary Schools and the direction of the

Hon'ble Supreme Court in para - 33 of Anand Kumar Yadav

(supra) is very clear that the Shiksha Mitras have been given

certain benefits but that does not mean that they would not

secure minimum qualifying marks as fixed on 7.1.2019. He

lastly submitted that reasons have been given in the counter

affidavit regarding issuance of Government Order dated

7.1.2019 and these aspects were not considered by the learned

Writ Court while allowing the writ petitions.

(39) Learned Senior Advocate, Sri Prashant Chandra, appearing for

the appellants in Special Appeal No. 165 (D) of 2019 has

submitted that the learned Writ Court has erred in treating the

process of attaining of eligibility and qualifying the ATRE as

recruitment of Teachers. The exercise of holding the ATRE is

just for attaining of eligibility (a stage which has not yet been

initiated). According to Shri Chandra, the learned Writ Court

has misconstrued the eligibility as recruitment. He relying on

the decision of the Apex Court in the case of Jharkhand Public

Service Commission v. Manoj Kumar Gupta and other, Civil

Appeal No.9441 of 2019, vide judgment and order dated

18.12.2019, wherein the Apex Court has held that eligibility

tests are not meant for selection to any post but is conducted to

determine the eligibility of the candidates for appointment as

Lecturers in Universities and Colleges of the State of

30

Jharkhand, has submitted that the learned Writ Court has mixed

up the issue of eligibility and recruitment. The recruitment

process under the 1981 Rules commences with the issuance of

recruitment notification, a stage which has not yet come. Only

guidelines for ATRE 2019 were issued on 1.12.2018 and they

can by no stretch of imagination be said to be an advertisement

for recruitment. They don't have any particulars of the actual

recruitment process, such as district wise vacancies, manner of

eligibility and recruitment etc. He further submitted that in the

case of Jharkhand Public Service Commission v. Manoj

Kumar Gupta (supra), the Apex Court has held that the State is

free to determine the cut-off marks even after the examination

has been held and the same does not amount to change in the

rules of the game.

(40) He has drawn our attention to the recent decision of the Apex

Court in the case of Municipal Corporation of Delhi v.

Surendra Singh and others [(2019) 8 SCC 67], wherein the

Apex Court while dealing with an identical situation of

recruitment of Teachers, where cut-off marks was not

prescribed in the advertisement, but later prescribed, after

examination has been conducted, held that if the employer fixes

the cut-off position, the same is not to be tinkered with unless it

is totally irrational or tainted with mala fides.

(41) He further submitted that reducing the qualifying mark shall not

only compromise on the merit, but also extend an unfair

advantage to the Shiksha Mitras, somehow grabbing which is

the sole intent behind the present lis. Therefore, any reduction

in cut-off shall be detrimental to public interest as it will lead to

the eventual appointment of Shiksha Mitras who, admittedly,

are not sufficiently meritorious to qualify the ATRE at the

qualifying marks determined by the Government. The children

of India have a fundamental right to be taught by a duly

qualified Teacher and the nation as a whole shall suffer if the

31

minimum qualification is done away with.

(42) He next submitted that once the Shiksha Mitras attain the

minimum qualification, they shall form a class of persons and

indisputably, the benefit under the Anand Kumar Yadav case

(supra) shall be extended to them at that stage. Until they do,

there is no scope for any relaxation in a condition which has

been uniformly applied to all candidates by the State

Government in exercise of its powers under law.

(43) He also pointed out that the learned Writ Court has erred in

holding that as the 1981 Rules did not envisage the recruitment

of B.Ed. candidates to the post of Assistant Teacher (and

provided for their appointment only to the post of Trainee

Teacher), and as the Appendix - I did not provide a mechanism

to lay down the procedure for calculating the quality point

marks of B.Ed. candidates, hence the participation of the B.Ed.

candidates in the ATRE - 2019 was bad.

(44) Lastly, he submitted that 1981 Rules have been amended well-

in-time, prior to commencement of recruitment process to

provide for recruitment of B.Ed. candidates directly to the post

of Assistant Teacher, subject to them undergoing a post-

appointment training, strictly in accordance with law and as

prescribed by the NCTE. These changes have been brought

about by the Twenty-Third amendment dated 29.1.2019,

Twenty-fourth amendment dated 7.3.2019 and Twenty-fifth

amendment dated 14.6.2019. By these amendments, the concept

of 'trainee teacher' has entirely been done away with in

accordance with the amendment issued by the NCTE and

Appendix - I has also been amended to set-out the manner of

calculating the quality point marks of B.Ed. candidates. With

these arguments, he submitted that the reasoning assigned by

the learned Writ Court while quashing the Government Order

dated 7.1.2019 is contrary to the law laid down by the Apex

Court in the cases of Municipal Corporation of Delhi v.

32

Surender Singh and others [(2019) 8 SCC 67], Jharkhand

Public Service Commission v. Manoj Kumar Gupta, Civil

Appeal No.9441 of 2019 and Kul Bhushan Mishra and

others v. State of U.P. and others [(2019) 2 ADJ 442] and

prayed that Special Appeal No.165 (D) of 2019 be allowed by

setting aside the impugned order.

(45) Sri S. K. Kalia, learned Senior Advocate appearing for the

appellants in Special Appeal No.157 of 2019 has submitted that

the learned Writ Court was of the view that Shiksha Mitras who

appeared in the ATRE of 2018 and 2019 constitute one class

and as such, fixation of different qualifying marks in the two

examinations (ATRE - 2018 and ATRE - 2019) violates the

principle of equality as intelligible differentia for classification

between the two categories who appeared in the years 2018 and

2019 and prescription of qualifying marks in the two

examinations violates the principle of equality as there is no

reasonable nexus between the intelligible differentia and object

sought to be achieved for classification. He submitted that the

submission on behalf of the writ petitioners is absolutely

untenable in the eyes of law because the candidates who

appeared in 2018 (first ATRE - 2018) examination in pursuance

of the Government Order dated 9.1.2018 and those who

appeared in 2019 (second ATRE - 2019) examination in

pursuance of the Government Order dated 1.12.2018 do not

constitute one class. In both the Government Orders, in clause 1

(kha), it has been clearly mentioned that the said examination is

valid only for the recruitment of that particular year.

(46) His submission is that as per the judgment of Apex Court in the

case of Anand Kumar Yadav (supra), 'Shiksha Mitras' were

given an opportunity to appear in two consecutive examinations

for recruitment in accordance with the advertisements dated

9.1.2018 (ATRE - 2018) and 1.12.2018 (ATRE - 2019), and as

such, conditions of advertisements of both examinations have

33

become relevant and candidates who appeared in pursuance of

the said advertisement had to abide by the conditions of the

advertisement.

(47) He next submitted that in furtherance and compliance of the

judgment of the Apex Court, the State Government amended

(Twentieth) the 1981 Rules vide notification dated 9.11.2017

and both the Government Orders provide age relaxation to the

Shiksha Mitras upto the age of 60 years to appear in the

examination and as such, there is no different treatment to the

Shiksha Mitras in the examination. The appellants of Special

Appeal No.157 of 2019 are possessing all requisite

qualifications provided in the Government Order dated

1.12.2018 and for appointment on the post of Assistant Teacher,

they are Graduates having B.T.C. Training Certificate and have

also passed the T.E.T. and they were fully eligible in accordance

with the Rules and as per Government Order and the

advertisement and as such, they appeared in the examination.

(48) Similarly, candidates having B.Ed. degree which was

introduced in the eligibility conditions in the Government Order

dated 1.12.2018 [clause 4 (2)], in pursuance of the notification

of NCTE dated 28.6.2018, also appeared in the said

examination and about 4,10,000 candidates appeared in the said

examination which was held on 6.1.2019. He has drawn our

attention towards paras 8 and 9 of the counter affidavit of the

State Government and submitted that the State Government had

justified its decision to prescribe higher cut-off marks in 2019

ATRE examination because the pattern of examinations of

ATRE 2018 and ATRE 2019 was different. In 2018

examination, the candidates had to give short answers to the

questions and in 2019 examination, it was objective based on

OMR sheets and as such, the same was high scoring and if the

findings of the learned Writ Court that both the examinations

should be conducted in the same manner is to be upheld, then it

34

vitiates the examination of 2019 itself and the reasoning is

absolutely untenable.

(49) He also pointed out that the State Government also mentioned

in its counter affidavit while justifying the higher cut-off marks

that in 2018 ATRE examination only 1,07,000 candidates

appeared against 68,500 vacancies whereas in 2019 ATRE

examination, 4,10,000 candidates appeared against 69,000

vacancies and as such, it was absolutely justified on the part of

the State Government to take these factors into account for

determining the qualifying marks.

(50) Lastly, he has submitted that inclusion of B.Ed. candidates in

the field of eligibility in 2019 examination was not challenged

and was not in issue before the learned Writ Court and as such,

the observations made in the impugned judgment are just obiter

dicta and cannot be held to hold that examination was being

conducted only for Shiksha Mitras because B.Ed. candidates

could not be considered. The appellants who were not the

Shiksha Mitras and who were possessing the relevant

qualification as provided in the 1981 Rules and in the

Government Order were eligible to appear and they appeared

without any challenge. Similarly, the B.Ed. candidates have

appeared without any challenge and such finding based on the

said fact of classification and discrimination is absolutely

unfounded. Fixation of qualifying marks for passing the

examination is within the domain of the State Government

under the 1981 Rules and the learned Writ Court could not have

fixed the qualifying marks for declaration of result as has been

done by the learned Writ Court and therefore, the judgment is

not sustainable in the eyes of law and prayed that the same be

set aside with a direction that the result of examination be

declared as per Government Order dated 7.1.2019.

(51) Sri J. N. Mathur, learned Senior Advocate appearing for the

appellants in Special Appeal No.158 of 2019 has submitted that

35

the Apex Court in the case of Anand Kumar Yadav (supra) had

left open for the State Government to take a decision with

respect to granting of some kind of weightage in marks to the

Shiksha Mitras for their experience and further provided that

they shall be eligible to appear in two consecutive selection

processes for the post of Assistant Teacher wherein the State

Government shall take a decision regarding age relaxation to

the Shiksha Mitras.

(52) He has also pointed out that the ATRE - 2019 was based on a

different pattern as it only had multiple choice questions where

the candidates had to select the correct answer out of four

options. In contrast, the ATRE - 2018 had short answer type

questions where the candidates had to write a couple of

sentences on the topics given, therefore, while the ATRE - 2019

was objective in pattern and style to be completed in 2 1/2

hours, ATRE - 2018 was subjective in pattern to be completed

in 3 hours. The State Government, taking into consideration the

aforesaid contrast in the pattern of examination and the

substantial increase in the number of candidates participating in

the ATRE - 2019, took a conscious decision to fix the minimum

qualifying marks at 65% for unreserved category and 60% for

reserved category candidates vide Government Order dated

7.1.2019. He has drawn our attention to the rejoinder affidavit

wherein the respondents had admitted before the learned Writ

Court that the pattern of examination had changed in the ATRE

- 2019, but the said change in the pattern of examination was

never assailed by any candidate and all writ petitioners had

appeared in the ATRE - 2019 examination held on 6.1.2019

without any protest or demur. He submitted that no prejudice

was caused to the original writ petitioners by issuance of

Government Order dated 7.1.2019 which was applicable to all

candidates who had participated in the ATRE - 2019

examination.

36

(53) Per contra, Sri H. N. Singh, learned Senior Advocate assisted

by Sri Agnihotri Kumar Tripathi, Sri Upendra Nath Mishra,

learned Senior Counsel assisted by Sri Amit Kumar Singh

Bhadauriya, and Dr. L. P. Mishra with Sri Avadesh Shukla,

learned Counsels in support of the impugned judgment and

order passed by the learned Writ Court, have submitted that

since the Government Order dated 7.1.2019 was found to be hit

by the vice of unreasonable classification and no reason has

been given for introducing such sharp increase in the minimum

qualification mark, the learned Writ Court has rightly quashed

the same holding that the same is violative of Article 14 of the

Constitution as it makes an unreasonable classification by

giving different treatment to two groups of identically situated

Shiksha Mitras appearing in two consecutive ATRE

examinations and there is no valid reason and justification for

increasing the minimum qualifying marks, the State

Government issued Government Order dated 7.1.2019 just to

nullify the benefit of weightage given by the Apex Court in the

case of Anand Kumar Yadav (supra). They further submitted

that no explanation has been given as to how 'participation of

B.Ed. trained candidates' in ATRE - 2019 for appointment on

the post of Assistant Teacher has been made directly, instead of

Trainee Teacher, though minimum qualification for

participation of B.Ed. candidates directly for Assistant Teachers

was suitably amended only by Twenty-Third and Twenty-

Fourth amendments of the Rules on 24.1.2019 and 7.3.2019

respectively.

(54) In respect of unreasonable classification, they submitted that

vide Twenty-Second amendment in the 1981 Rules on

15.3.2018, second proviso to Rule 14(3)(a) read with Appendix

- I for creating a statutory legal right in favour of Shiksha Mitra,

for getting weightage of 2.5 marks per year subject to a

maximum of 25 marks towards their service experience and the

same was applicable only on those Shiksha Mitra, who had

37

successfully acquired T.E.T. qualification and they were

approximately 50,000 in number out of 1,37,500 Shiksha

Mitras and they constitute a homogeneous class in itself as they

were entitled to be given 'two consecutive opportunities of

recruitment' as Assistant Teacher. All these T.E.T. qualified

Shiksha Mitras were entitled to get the same treatment and

benefits without any difference. The State Government issued

an advertisement vide Government Order dated 9.1.2018 in

respect of 68,500 vacancies. In the said examination, as per

clause 7 (1) and (2) minimum qualifying marks for ATRE -

2018 was 45% for general category and 40% for reserve

category. Result of ATRE - 2018 was declared on 13.8.2018 in

which 41556 candidates were declared passed and pursuant to

the result of re-evaluation being declared 4500 and odd

candidates were also declared passed. In ATRE - 2018

examination, only half of Shiksha Mitras would have been

selected and appointed as Assistant Teachers and the remaining

half would have again been compelled to appear in the second

ATRE - 2019 and an advertisement was published on

1.12.2018, the examination of which was held on 6.1.2019 and

immediately on the next day, the impugned Government Order

dated 7.1.2019 was issued by which the minimum qualifying

marks were arbitrarily increased to 65% for unreserved

category candidates and 60% for reserved category candidates

just to deprive the Shiksha Mitras to get the benefit of

weightage of 25 marks for their experience at the time of their

selection. Vide Government Order dated 7.1.2019, the

Government treated the Shiksha Mitras who had appeared in

the ATRE - 2019 examination as different class, whereas in

terms of the order passed by the Apex Court, all the T.E.T.

qualified Shiksha Mitras were entitled to apply for two

consecutive recruitments after getting the benefit of weightage

and thus, the State Government has resorted to hostile

discrimination and unreasonable classification amongst

similarly situated Shiksha Mitras which was rightly struck

38

down by the learned Writ Court.

(55) It is further submitted that apart from changing minimum

qualification for the post of 'Assistant Teacher', the procedure

for appointment of 'trainee teacher', contained in Rule 14(1)(c)

and 14(1)(d), was deleted, though the provisions of 'trainee

teacher' contained in Rule 2(u) and 8(2)(b) in the 1981 Rules

were still maintained. Therefore, the B.Ed. qualification, despite

Twenty-Third amendment, could not have been included in the

process of evaluation for the post of 'Assistant Teacher' under

Appendix - I. The rules of selection cannot be altered or

amended, after the commencement of selection process and the

rules regarding qualification for appointment, if altered or

amended, during the continuation of the process of selection,

would not affect the same.

(56) They further submitted that retrospective amendment in the

1981 Rules has been made by the State Government in

violation of Section 19 of the Act only to justify illegal

participation of B.Ed. in ATRE - 2019. Twenty-Third

amendment of the 1981 Rules was introduced on 24.1.2019 for

minimum qualification of the candidates participating in the

ATRE - 2019 with inclusion of B.Ed. candidates with six

months' training, that too, after holding the examination under

Rule 8(2)(a) with retrospective effect from 1.1.2018. Twenty-

Fourth amendment of the 1981 Rules was introduced on

7.3.2019 with effect from 28.6.2018, i.e., the date of NCTE

notification and not with effect from 1.1.2018. Both Twenty-

Third and Twenty-Fourth amendments of the 1981 Rules were

brought with retrospective effect by the State Government to

protect the participation of B.Ed. candidates in ATRE - 2019

examination. Twenty-Fifth amendment was introduced on

14.6.2019 whereby Appendix - I was amended (so as to include

B.Ed. candidates and accordingly, Appendix - II modified).

(57) They have further submitted that all the three amendments

39

cannot apply on ATRE - 2019 examination in view of the

specific provisions contained in para - 4(1) of the statutory

guidelines dated 1.12.2018 prepared under Rule 2(y) of the

1981 Rules which says that the ATRE - 2019 examination shall

be held only as per Twenty-Second amendment of the 1981

Rules as these three amendments with retrospective effect are

evidently beyond the Rule making powers of the State,

contained in Section 19 of the 1972 Act as it does not confer

any power of retrospective amendment in the 1981 Rules.

(58) Lastly, they submitted that fixation of minimum qualifying

marks for ATRE - 2019 was merely a mechanical and arbitrary

exercise of power, without any application of mind. Therefore,

the learned Writ Court considered all these aspects of the matter

and quashed the Government Order dated 7.1.2019 as the State

Government has no explanation for conscious and deliberate

use of the word 'minimum' by wrongly interpreting in Rule 2(x)

of the 1981 Rules. With these submissions, they pray for

dismissal of Special Appeals.

(59) Having heard the learned Senior Counsels for the parties and

with their assistance perused the materials available on record

of the case, we find merit in this batch of appeals and in our

opinion, all these appeals deserve to be allowed.

(60) From perusal of the dictum of Anand Kumar Yadav (supra), it

is apparent that the Apex Court was clear in its directive that

'mandatory qualifications' for appointment as Assistant Teacher

prescribed under law cannot be dispensed with in any case and

for anyone and the Shiksha Mitras must obtain the prescribed

minimum qualification on their own merit, in the same manner

as any other candidate and no special rights, relaxation or

benefit can be claimed by them until they possess the

prescribed minimum qualification. Only once a Shiksha Mitra

acquires the 'requisite qualification in terms of the

40

advertisement for recruitment', he/she may be extend certain

benefits like 'weightage', 'age relaxation' and recruitment for

next two consecutive recruitments in view of their experience.

In Kul Bhushan Misra's case (supra), the Division Bench

found that the Shiksha Mitras cannot claim the benefits under

the Anand Kumar Yadav's case (supra) before they hold the

prescribed minimum qualification and qualify the ATRE and

come within the zone of eligibility for being considered for

appointment as Assistant Teacher. The Division Bench was of

the view that weightage was not contemplated to be added to

the marks obtained by a person in the ATRE.

(61) The law laid down by the Apex Court in the case of Anand

Kumar Yadav (supra), as discussed in the preceding

paragraphs, it is crystal clear that the benefit would be available

only at the time of recruitment, once they hold the prescribed

minimum qualifications and their names are published in the

merit list prepared under Rule 14 (2) of the 1981 Rules. There

is no doubt that once Shiksha Mitras acquire requisite

qualifications in terms of the advertisement for recruitment they

may be extended benefit of weightage of marks for next two

consecutive recruitments in view of their experience. The Apex

Court nowhere provided that the Shiksha Mitras shall constitute

a homogeneous class apart from the other fully qualified

candidates participating in the selection process.

(62) During the pendency of these appeals, the Apex Court vide its

order dated 16.1.2020 in the case of Bhola Prasad Shukla and

others v. Union of India and others, Petition(s) for Special

Leave to Appeal (C) No (s). 14621/2019, considered the matter

of Anand Kumar Yadav (supra) and further clarified that no

special benefit is available to the Shiksha Mitras until they

obtain minimum qualifications prescribed under law and only

those who are otherwise qualified shall be considered for such

selection after extending to them the benefit as contemplated in

41

para 33 of the decision in Anand Kumar Yadav (supra). In

Bhola Prasad Shukla (supra) the Apex Court repelled the

entitlement of Shiksha Mitras to be paid equivalent to the

regularly appointed Teachers and was pleased to direct the State

of U.P. to complete all requirements to be made in furtherance

of the decision of Anand Kumar Yadav (supra) within six

months from 16.1.2020. Relevant part of the order passed by

the Apex Court on 16.1.2020 reads as under:-

"Thus, on two counts, benefit was extended tothe present incumbents who are working asShiksha Mitras. In the recruitment processundertaken by the Sate, such incumbents wouldbe entitled to age relaxation as well as someweightage for experience as Sikash Mitras.What weightage ought to be given wascompletely left to the authorities. However,considering the exigencies of the situation andparticularly the fact that primary education inthe State ought not to suffer, the State was givenliberty to take services of present incumbentson same terms on which the persons wereworking prior to their absorption.

In keeping with the directions issued by thisCourt, a circular was issued by the StateGovernment on 20.09.2017. Para 4 of theCircular adverted to the decision taken at thegovernment level and said para 4 was asunder:-

"4. In this regard, I havebeen directed to say that incompliance of order dated25.07.2017 passed by theHon'ble Supreme Court inSLP (C) No.32599/2015,State of U.P. & Ors. vs.Anand Kr. Yadav & Ors, thefollowing decision have beentaken after consideration onthe present facts on thegovernment level:-

(1)By order dated25.07.2017 passed by theHon'ble Supreme Court inSLP (C) No.32599/2015,

42

State of U.P. & Ors. vs.Anand Kr. Yadav & Ors., theretrenched Shiksha Mitras bepaid the pay of AssistantTeacher till the 31.07.2017by appointing them from thedate 01.08.2017 in theCouncils Primary Schoolsfor the education purpose.

(2) In compliance of orderdated 25.07.2017 of theHon'ble Supreme Court,issued government orderNo.225379-5-14-282/98,dated 19.06.2014/79-5-15-3031/15 TC dated22.12.2015 for absorption ofprevious Shiksha Mitras tothe Council Primary Schoolson the post of AssistantTeachers and in this regard,issued other governmentorders are set aside.

(3) In compliance of orderdated 25.07.2017 of theHon'ble Supreme Court inSLP (C) No.32599/2015,employed and working total1,65,157 Shiksha Mitras inthe Council Primary Schoolsbe paid the fixed pay ofRs.10,000/- per months till41 months, from01.08.2017."

Thus a decision was taken to continue 1,65,157Shiksha Mitras who were working in PrimarySchools, for 41 months at fixed pay ofRs.10,000/- per month.

It was submitted by Mr. V. Shekhar and Dr.Manish Singhvi, learned Senior Advocates aswell as by other learned counsel thatrecommendation was made by Project ApprovalBoard on 15.03.2017 recommending, inter alia,salary and emoluments in the sum ofRs.38,870/- for Primary Teachers appointed onContractual Basis. The submission was thatShiksha Mitras who are being continued underthe present dispensation ought to be paid thesalary and emoluments in the sum as

43

recommended by the Project Approval Board.

The basic question which engaged the attentionof this Court was whether persons who do nothave the requisite qualifications, could beappointed as Teachers. The premise, therefore,was clear that the persons who were appointedfor Shiksha Mitras did not have the requisitequalifications. The only sequitor therefore,could be that such persons would not beentitled to retain their posts. However,considering the fact that large number ofpersons were appointed as Shiksha Mitras andthe State would take some reasonable time toswitch over and make regular appointments,the liberty was given to the State to continuethe services of the present incumbents on thesame terms.

Since the Shiksha Mitras were not regularlyappointed and qualified Teachers, it would notbe proper to extend to them the same pay scalesas is now being canvassed or projected.However, considering the entirety of the matter,in our view, the ends of justice would be met,directions as stated hereinafter are called for:

We have been given to understand that sincethe decision of this Court in State of U.P. Vs.Anand Kr. Yadav, selection process wasundertaken to fill up approximately 69,000vacancies in the Primary Schools in the State,in which selection process about 41,500teachers were selected.

The record is not clear whether any ShikshaMitras availing the benefit extended by thisCourt, were selected or not. But consideringthe large number of Shiksha Mitras, the Statemust undertake further selection process(s) asearly as possible so that all the qualifiedShiksha Mitras who are otherwise aspiring tobe regularly selected teachers may have anopportunity available to complete in theprocess subject to the benefits already extendedto them.

We, therefore, direct the State Government toinitiate the process for selection, afterassessing the actual number of vacancies, asearly as possible and preferably six weeks fromtoday and conclude the selection process withinsix months thereafter.

44

All Shiksha Mitras who are otherwise qualifiedshall be considered for such selection afterextending to them the benefit as contemplatedin Para 33 of the decision in (2018) 13 SCC560.

It shall open to the State Government toconsider and devise a weightage formula. Wemay, by way of example, suggest that for everyfour years of experience, the State mayconsider extending the benefit of one per cent.This is only by way of a suggestion. The matteris completely left to the discretion of the Stateand its authorities.

With the aforesaid directions, these SLPs aredisposed of.

All applications for intervention/impleadmentare also disposed of in same terms."

(63) To extend the benefit to all the Shiksha Mitras as per para 33 of

the decision in Anand Kumar Yadav (supra), the State

Government issued a Circular on 20.9.2017. Para - 4 of the

Circular has been quoted in the judgment of Apex Court in the

case of Bhola Prasad Shukla & others Vs Union of India &

Ors. (supra) which we have reproduced in the preceding

paragraphs. The State Government thereafter took a decision

and introduced the relevant provision regarding benefit of grant

of weightage to the Shiksha Mitras in the 1981 Rules vide

Twentieth Amendment, which provides that Shiksha Mitras

shall get extra marks for their past experience at the rate of 2.5

marks per completed teaching year upto maximum 25 marks

whichever is lesser.

(64) By Twentieth amendment, 1981 Rules were amended. The

weightage of maximum 25 marks on the basis of teaching

experience of 10 years is not liable to be accorded at the stage

of computation of marks obtained by a candidate in the

Assistant Teacher Recruitment Examination as held by a

Division Bench of this Court in the case of Kul Bhuahan

Mishra (supra).

45

(65) From perusal of 1981 Rules, as amended, makes it crystal clear

that ATRE is only a qualifying examination and not a part of the

recruitment process. The benefit of Anand Kumar Yadav

(supra) shall be available to the Shiksha Mitras only during the

process of recruitment which will start once they qualify ATRE

by scoring the prescribed qualifying marks and until they do so,

they cannot stake a claim to such weightage. The statutory

guidelines for conducting second ATRE - 2019 issued on

1.12.2018 makes it clear that the ATRE is only a minimum

qualification and by qualifying ATRE, no candidate shall stake

a claim for appointment on the post of Assistant Teacher.

(66) The exercise of holding the ATRE - 2019 is just for attaining of

eligibility in order to be able to apply and to be considered for

recruitment, a stage which has not yet been initiate because

after declaration of the result ATRE - 2019, on the basis of

minimum marks, as mentioned in the Government Order dated

7.1.2019, the result would be declared.

(67) The Apex Court in the case of Jharkhand Public Service

Commission Vs. Manoj Kumar Gupta (supra) has held that

eligibility tests are not meant for selection to any post but is

conducted to determine the eligibility of the candidates for

appointment as Lecturers. Relying on the aforesaid principles,

we are of the view that the guidelines for conducting ATRE -

2019 issued under Rule 2 (y) of 1981 Rules on 1.12.2018 are

not for advertisement of recruitment, i.e., only for qualification

for recruitment. Once the Shiksha Mitras attain the minimum

qualification, they shall form a class of persons and the benefit

of judgment of Anand Kumar Yadav (supra) shall be extended

to them, at that stage. At this stage, there is no scope for

relaxing any condition which has been uniformly applied to all

candidates.

(68) In exercise of powers under law, guidelines were issued on

46

1.12.2018 for qualifying the ATRE - 2019 examination in which

no cut-off marks were notified. Accordingly, Writ Petition

No.27461 of 2018 was filed for fixation of cut-off marks and

the State Government has proceeded to fix cut-off marks, vide

Government Order dated 7.1.2019, taking relevant factors into

consideration and in exercise of powers conferred under the Act

and Rule 2 (i)(x) of the 1981 Rules. As there was substantial

increase in the number of candidates who appeared in ATRE -

2019 examination on account of NCTE notification dated

28.6.2018 and the State Government, in exercise of powers

conferred under 1981 Rules, modified the pattern of

examination from subjective to objective, took a conscious

decision that only students who qualify for the ATRE - 2019

examination vide Government Order dated 7.1.2019 shall have

sufficiently meritorious to be appointed on the post of Assistant

Teacher in the State.

(69) The finding of the learned Writ Court that minimum qualifying

marks were neither prescribed in the Government Order nor in

the advertisement and as such, it cannot be provided

subsequently is absolutely untenable in the teeth of Rule 2 (x)

of 1981 Rules which empowers the State Government to

determine the minimum marks from time to time. The aforesaid

Rule does not provide that minimum qualifying marks are to be

provided before the examination starts. On the other hand,

without fixation of qualifying marks result cannot be declared

and one cannot be said to have been passed the examination

without scoring the qualifying marks. Further, Rule 2 (x) is not

under challenge and as such, the Government was fully

competent to prescribe the cut-off marks for passing 'ARTE'.

(70) In the previous examination (first ATRE - 2018), the State

Government had prescribed the qualifying marks as is evident

from Clause 7 (1) and (2) of instructions dated 1.12.2018 and

the order was issued by the 'Shiksha Anubhag 11' of

47

Government which business is now performed by the 'Shiksha

Anubhag 4' and this aspect has not been considered by the

learned Writ Court while assigning the reasoning in the

impugned judgment, wherein the learned Writ Court observed

that the order dated 7.1.2019 prescribing qualifying marks for

the 'ARTE' has not been issued under any provision of RTE Act

and is also not issued by the competent section of the Education

Department of the Government, i.e., 'Shiksha Anubhag - 5', the

same having been issued by 'Shiksha Anubhag - 4', and as such,

the same cannot be treated the order of Government is nothing

but a misconceived notion because in the first ATRE

examination of 2018, guidelines were issued by 'Shiksha

Anubhag - 11' which business has now been allocated to

'Shiksha Anubhag - 4' vide Government Order dated 6.6.2018.

Even otherwise, the order of Government is referable to Article

166 of the Constitution and direct compliance of the same is not

mandatory and it is only directory and any short-coming in that

does not make the order nullity. The order dated 7.1.2019 has

been issued by the Competent Section (Basic Education Section

– 4 ) as such, there is no infirmity in any manner and thus we

reject the submission of writ petitioners.

(71) In Anand Kumar Yadav (supra), the Hon'ble Supreme Court

merely provided that the Shiksha Mitras shall be given an

opportunity to participate in the selection process at hand in two

consecutive selections, irrespective of age while being given

benefit of age relaxation as determined by the State

Government, in an open and transparent selection process along

with other duly qualified candidates and it nowhere provided

that the Shiksha Mitras shall constitute a homogeneous class

apart from other duly qualified candidates participating in the

selection process. The Hon'ble Supreme Court while keeping in

mind the interest of the school children held that the

regularization of unqualified Shiksha Mitras on the post of

Assistant Teacher was illegal as the school children whose

48

interests, though were not duly represented, had a right to

obtain quality education from duly qualified teachers under the

provisions of Right to Education Act and gave due importance

to the merit of the candidates who are ultimately going to be

appointed on the post of Assistant Teacher as the ultimate losers

would be the small primary school children if the merit is

compromised in the selection process.

(72) As a common parlance, qualifying marks are prescribed after

the examination is conducted as the Recruiting Authority is in a

position to assess how the candidates have performed and

determine the benchmark keeping in mind the number of

vacancies. The State Government rightly in the advertisement

dated 1.12.2018 did not declare the cut-off marks for qualifying

the ATRE - 2019.

(73) Thus, the arguments of the writ petitioners and finding recorded

by the learned Writ Court that the increase in cut-off marks

from 45% and 40% to 65% and 60% by the Government Order

dated 7.1.2019 is nullifying the beneficial direction of the

Hon'ble Supreme Court in Anand Kumar Yadav (supra) has no

legs to stand, and is pre-mature as the benefit is available only

at the time of recruitment, once they hold the prescribed

minimum qualifications and their names are published in the

merit list prepared under Rule 14 (2) of the 1981 Rules.

(74) In respect of eligibility of B.Ed., candidates, there was no

pleading but it was extensively argued by the respondents

(original writ petitioners) that B.Ed. candidates are ineligible

and their participation in the ATRE - 2019 was illegal and

learned Writ Court in the impugned judgment has very

categorically observed that there is no challenge in any of the

writ petitions for inclusion of B.Ed. candidates but considered

the issue and has held that there was no quality point marks

provided for the candidates who are having B.Ed. qualification,

therefore, their inclusion in the examination was unwarranted.

49

In order to appreciate the aforesaid, we are reproducing the

relevant paragraphs of the impugned judgement here-in-below:-

122. It is true that pursuant to notification dated28.06.2018 of National Council of TeachersEducation (N.C.T.E.), the B.Ed. candidates mayvery well appear in the examination of A.T.R.E.but those persons will have to complete six monthsbridge course in elementary education within twoyears of such appointment as Primary Teacher.Meaning thereby, the Assistant Teachers who arehaving B.Ed. degree and does not undergo sixmonths bridge course in elementary educationrecognized by N.C.T.E. within two years of theappointment shall no longer remain AssistantTeacher, however, who are possessing B.T.C.qualification need not to undergo such exercise.The aforesaid fact make the difference between thestatus of the teachers having B.T.C. qualificationand having B.Ed. qualification. Earlier, the personshaving B.Ed. qualification could have beenappointed on the post of 'Trainee Teachers' butpursuant to the notification dated 28.06.2018issued by the N.C.T.C. those teachers may beappointed as Primary Teachers. Such type ofpersons were not permitted in earlier examinationi.e. A.T.R.E.-2018 but have been permitted in thepresent examination i.e. A.T.R.E-2019 on the basisof decision of the State Government. Since there isno challenge for inclusion of 'B.Ed. candidatesetc., therefore, this Court, however, is notindulging in the said issue, but one query of theCourt has not been satisfied by any of the counselfor the opposite parties as to how the quality pointmarks of the candidates having B.Ed. qualificationmay be calculated on the basis of Appendix-Iinasmuch as those candidates may not be gettingany marks for item No.4 i.e. marks for B.T.C.qualification and item No.6 i.e. marks forweightage which can only be provided to theShiksha Mitras. The complete scenario of theexamination in question creates unexplainedconfusion, therefore, the same may be looked intoin the fitness of things of the present issue.

153. Perusal of the aforesaid legal provisionmakes it clear that since there is a statutoryprescription in the Rule for providing weightage,therefore, said statutory prescription may not beignored and that weightage may only be given toShiksha Mitras. Rule 14 (3) (b) provides

50

prescription in respect of B.Ed. candidates etc. andwhose merit list shall be arranged in accordancewith quality points as per Appendix-II andadmittedly, in the present selection the qualitypoints shall be determined as per Appendix-I,therefore, it appears that in the present selectioninclusion of B.Ed. candidates is unwarranted,however no one has assailed the inclusion of B.Ed.candidates by means of batch of these writpetitions.

154. It is true that there is no challenge in any ofthe writ petitions that the inclusion of B.Ed.candidates is unwarranted and uncalled for andthey may not be selected getting quality pointmarks as per Appendix-I, but circumstances underwhich the aforesaid anomaly has been committedby the State Government has nowhere beenexplained in the counter affidavit or by way ofargument.

168. I also find favour in the submission of SriU.N. Misra that it cannot be comprehended as towhat is the object of enhancing minimumqualifying marks from 45% to 65% for AssistantTeacher Recruitment Examination when it is only aqualifying examination. Mr. U.N. Misra has rightlysubmitted that if the averment of the counteraffidavit is believed to be correct, the saidenhancement has been made to select the bestavailable candidates, then who are the bestcandidates, as per State-respondent. Since theinclusion of B.Ed. candidates have been made inthe present examination, therefore, it appears thatthe enhancement has been made to oust theShiksha Mitras from the selection in question andto select the B.Ed. candidates. If it is the intentionof the State-respondent to enhance the minimumqualifying marks, then it would be violative to therules itself which categorically provides that theShiksha Mitras would be getting 25 marks asweightage.

178. Besides, the counsel for the State-respondentcould not convince as to how the quality pointsmarks of B.Ed. candidates would be determined /calculated as per Appendix -I when these B.Ed.candidates would not be getting any marks for itemno. 4 [marks of B.T.C.] and item no. 6 [weightageof 25 marks]. If these B.Ed. candidates are givenquality point marks as per Appendix -II, they caneasily get marks for all the items but quality points

51

marks for this examination would be calculated asper Appendix-I.

179. This Court is unable to comprehend therationale behind it but since this particular pointhas not been directly assailed, therefore, no orderon this point needs to be issued.

180. However, it clearly reveals that neither theBoard of Basic Education nor the StateGovernment has carried out proper exercise beforeconducting selection in question permitting B.Ed.candidates in the present selection in questionwhich increased the number of aspirants drasticallywithout deciding the method for calculating theirquality points marks, without determining thevacancies for them as B.Ed. candidates aredifferent from B.T.C. candidates, enhancing theminimum qualifying marks for the AssistantTeacher Recruitment Examination-2019 by way ofG.O. dated 7.1.2019 and conducting AssistantTeacher Recruitment Examination-2019 differentlyfrom Assistant Teacher Recruitment Examination-2018 whereas the State Government was toconduct two examinations in a same manner as perdictum of Hon'ble Apex Court. This unexplainedanomaly may convince this Court to quash theentire selection process but keeping in view thefact that large number of candidates have alreadyappeared in selection process, therefore, this Courtis only examining/ testing the fitness ofGovernment Order dated 7.1.2019."

(75) The minimum qualification for appointment to the post of

Assistant Teacher was prescribed by the NCTE in exercise of its

powers under the RTE Act vide notification dated 23.8.2010

which provides that a person with B.Ed. qualification shall also

be eligible for appointment for Class I to V provided he/she

undergoes, after appointment an NCTE recognized six months

special programme in elementary education. This benefit was

extended upto 1.1.2012 by the NCTE. Relevant paragraph of

the notification reads as under:-.

"3 Training to be undergone - A person --

(a)With B.A/B.Sc. with at least 50% marks and B.Ed.qualification shall also be eligible for appointment for

52

class I to V upto 1st January, 2012, provided heundergoes, after appointment, an NCTE recognized 6-months special programme in ElementaryEducation."

(76) Thereafter, the State of Uttar Pradesh vide its letter dated

26.7.2012 submitted a proposal to the Central Government for

relaxation of the conditions referred to in clause 3(i)(a) and

accordingly vide its notification dated 10.9.2012 the Central

Government granted relaxation upto 31.3.2014 subject to inter

alia the conditions that (i) the State Government shall conduct

the TET as specified in the notification dated 23.8.2010, as

amended from time to time and those persons who passed the

TET shall be considered for appointment as a teacher and (ii)

the State Government shall amend the Recruitment Rules so as

to provide for minimum qualifications required for appointment

of teaches laid down under the said notification as amended

from time to time.

(77) After relaxation granted by the Central Government vide

notification dated 10.9.2012, the NCTE issued a notification

dated 28.6.2018 amending the master notification dated

23.8.2010 formally including B.Ed. qualified candidates as

being eligible for appointment as a Teacher in Classes I to V,

subject to them undergoing six months bridge course in

elementary education recognized by the NCTE, post-

appointment and within two years thereof. Relevant portion of

the notification dated 28.6.2018 reads as under:-

"(1) In the said notification, in para 1 in sub-para(i), in clause (a) after the words the brackets"Graduation and two year Diploma in ElementaryEducation (by whatever name known), thefollowing shall be inserted,

OR"Graduation with at least 50% marks andBachelor of Education (B.Ed.)"

2. In the said notification in para 3, sub-para(a), the following sub-para shall be substitutednamely:-

53

"(a) who has acquired the qualification ofBachelor of Education from any NCTErecognized institution shall be considered forappointment as a teacher in classes I to Vprovided the person so appointed as a teachershall mandatorily undergo a six month BridgeCourse in Elementary Education recognized bythe NCTE, within two years of such appointmentas primary teacher."

(78) The Hon’ble Apex Court has laid down in a catena of

judgments that the State Government can prescribe any

qualification for teaching posts over and above the minimum

qualification prescribed by NCTE. In Pardeep Kumar and Ors.

Vs. State of Haryana and Ors. [2017 (1) SCT 799 (P&H)], the

Hon’ble Court held:-

“15. It is self-evident from the NCTE notificationdated 29.07.2011 that the qualifications laid downby it for appointment of a Teacher or that of aPrincipal are “minimum qualifications”. NCTEhas recommended Senior Secondary i.e. 10+2 withtwo years’ Diploma in Elementary Education asthe minimum qualification for the post of Teacherfor Classes I to V. As an alternative qualification,it has also recommended “Graduation with twoyear Diploma in Elementary Education” as theminimum qualification. The State Government,however, with a view to improve the qualityeducation, has enhanced the minimumqualification from 10+2 to Bachelor of FineArts/B.A. instead of 10+2 along with two–years’Diploma in Elementary Education. Such higherqualification neither is in conflict with nor does itoffend the recommendations made by NCTE for aminimum qualification. The expression“minimum” leaves no room to doubt that theNCTE did not want any State Government toprescribe qualification for teaching posts lowerthan those recommended by it. None of thenotifications issued by NCTE says or can beconstrued as an embargo on the powers of theState Government to prescribe a qualificationhigher than the one recommended by it. There isno judicial pronouncement as claimed by thepetitioners’ counsel that states that the States areincompetent to prescribe qualification higher thanthe “minimum” prescribed by NCTE. The first and

54

second questions are thus answered against thepetitioners.”

(79) In State of U.P. and others v. Bhupendra Nath Tripathi and

others [2010 (5) ESC 630], the Hon’ble Apex Court held:

“The State in its discretion is entitled to prescribesuch qualifications as it may consider appropriatefor candidates seeking admission into BTC courseso long as the qualifications so prescribed are notlower than those prescribed by or under the NCTEAct. The State can always prescribe higherqualification.”

(80) The Hon’ble Apex Court has approved the holding of an

eligibility examination by the State of U.P. in the case of State

of Uttar Pradesh vs. Shiv Kumar Pathak [(2018) 12 SCC 595]

settling the position that TET qualified candidates who wish to

apply for appointment of teacher must necessarily qualify the

State Teacher Eligibility Test as well, in the following words:

“Appropriate Government may in its own wisdomdecide as to the eligible candidates on the basis ofhaving qualified the Central Teachers EligibilityTest. However, education being the subject matterof concurrent list of the power to frame appropriatelegislation/regulations/rules works with theappropriate legislature of the State Governmentand as such State Government is well within asrights to prescribe the qualification of eligibility inthe form that the candidates wanting to apply forthe said post must necessarily qualify the TeachersEligibility Test of said State. There would be noillegality (sic) in the same and merely because astate government had failed to conduct the StateTeachers Eligibility Test (STET) in a given yearwould not amount to taking a decision not to holdthe exams and to hold the candidates havingqualified Central Teacher Eligibility Test aseligible.”

(81) By virtue of the amendment in the NCTE notification dated

23.8.2010 on 28.6.2018, the appellants of Special Appeal

No.165 (D) of 2019 participated in the TET examination on

18.11.2018 and qualified the same and therefore becoming

eligible for appearing in the ATRE 2019, the writ petitioners

55

knowing well about the amendment in the notification dated

23.8.2010 by NCTE notification dated 28.6.2018, they never

challenged the validity of the said notification and thus, the

notification issued by the NCTE being under a Central

Enactment which is referable to Entry 66 of list I of the Seventh

Schedule is binding upon the State Government and even a

legislative exercise done by the State in the matter of laying

down of standards in education would have to yield to the

notifications of the NCTE inasmuch as the exercise of power by

the State Government is referable to Entry 25 of List III of the

Seventh Schedule, which besides being in the concurrent list is,

subject to Entry 63, 64, 65 and 66 of List - I. The State

Government rightly followed the mandate issued by the NCTE

and permitted the B.Ed. candidates to appear in the second

ATRE - 2019.

(82) In the guidelines dated 1.12.2018 issued for ATRE - 2019, it

was specifically provided that candidates who are eligible under

the NCTE notifications as amended from time to time,

including vide notification dated 28.6.2018, shall be permitted

to appear in the ATRE - 2019. The learned Senior Counsel for

private respondents (original writ petitioners) has drawn our

attention only to clause 4 (1) whereas as per clause 4 (2) they

are eligible to appear in ATRE - 2019 examination. Clause 4 (2)

is relevant which reads as under:-

4. vkosnu ds fy, U; wure vgZrk] vk;q ,oa fuokl --- ----

¼2½ jk"Vz~h; v/;kid ijh{kk ifj"kn~] ubZ fnYyh }kjk U;wurevgZrk d{kk 1 ls 5 ds lEcU/k esa furfxr vf/klwpuk fnukad23-08-2010] 29-07-2011] 12-11-2014] 28-11-2014 ¼visafMLd& 2 dh izLrkouk 1-2 esa mfYyf[kr½ rFkk fnuk ad 28-06-2018 esa fu/kkZfjr vgZrk/kkjh "lgk;d v/;kid HkrhZ ijh{kk2019" essa vkosnu djus ds fy, ik=k gksaxs A

(83) Law on the subject is well settled. The Apex Court in the case

of State of Uttar Pradesh v. Shiv Kumar Pathak (supra) has

held that the NCTE is the Academic Authority and the State

Government is under an obligation to act as per the

56

notifications issued by the NCTE and not give effect to any

contrary Rule, as follows:-

"There is no manner of doubt that the NCTE, actingas an ‘academic authority’ under Section 23 of theRTE Act, under the Notification dated 31st March,2010 issued by the Central Government as well asunder Sections 12 and 12A of the NCTE Act, wascompetent to issue Notifications dated 23 rdAugust, 2010 and 11th February, 2011. The StateGovernment was under obligation to act as per thesaid notifications and not to give effect to anycontrary rule."

(84) A Division Bench of this Court in the case of Harsh Kumar

and others v. State of U.P. and others [(2014) 2 ADJ 703], held

that the action of the State in not permitting the B.Ed.

candidates to participate in the TET examination to be

considered for appointment as Assistant Teacher in basic

education despite NCTE having notified B.Ed. candidates as

eligible was illegal, arbitrary and unconstitutional. Relevant

paragraphs 10, 11, 12 and 13 of the aforesaid judgment read as

under:-

10.Thus, the point to be noted is that after theenforcement of the Act of 2009 and the issuanceof the notification of 23 August 2010, thequalifications which have been prescribed forappointment of primary teachers mustnecessarily be those that are stipulated in thenotification dated 23 August 2010, as amendedby the notification dated 27 August 2011.

11. Undoubtedly, the Rules of 1981 doprescribe the essential qualification forappointment of Assistant Teachers in JuniorBasic Schools where education is impartedfrom Classes I to V. The relevant qualificationswhich are prescribed in Rule 8 are as follows:

"(ii) Assistant Master andAssistant Mistress of Junior BasicSchool A Bachelor's Degree froma University established by law inIndia or a Degree recognised bythe Government as equivalent

57

thereto together with the trainingqualification consisting of a BasicTeacher's Certificate, VishistBasic Teachers Certificate(B.T.C.) two years BTC UrduSpecial Training Course,Hindustani Teacher's Certificate,Junior Teacher's Certificate,Certificate of Teaching or anyother training training courserecognised by the Government asequivalent there:

Provided that the essential qualification for acandidate who has passed the required trainingcourse shall be the same which was prescribedfor admission to the said training course."

12. The qualifications, which have beenprescribed by the NCTE in the notificationdated 29 July 2011 include Senior Secondarywith at least 50% marks together with a 2-yearDiploma in Education (Special Education).Once, these qualifications have been prescribedby the NCTE, this would necessarily be bindingand it is not open to the State Government toexclude (from the zone of eligibility) thepersons who are otherwise qualified in terms ofthe notification dated 23 August 2010 asamended on 29 July 2011.

13. In this view of the matter, we are of theopinion that the learned Single Judge was inerror in coming to the conclusion that since therecruitment was in pursuance of a specialdrive, the Government was justified inconfining the eligibility qualifications only tothose who held the BTC qualifications for thereason that such candidates could not beadjusted earlier for want of TET qualification.The passing of the TET was introduced as amandatory requirement by the notificationdated 23 August 2010 issued by the NCTE.Persons who did not fulfill the eligibilityconditions prescribed in the notification dated23 August 2010, as amended on 29 July 2011,were not qualified for consideration forappointment as primary school teachers.Hence, there was no occasion for the State tocontend or for that matter the learned SingleJudge to accept the submission that in order toadjust such BTC qualified candidates, the

58

present advertisement had been issued. Thelearned Single Judge held that the appellantscould not claim equivalence with thosecandidates who possess BTC qualification.This, in our view, begs the question becauseonce the Diploma in Education (SpecialEducation) is held to be a qualification whichis recognised for appointment of AssistantTeachers for teaching Classes I to V, it wouldbe impermissible for the State Government toexclude them from being considered forappointment. In a special drive or otherwise, itis not open to the State Government to excludeone class of teachers who fulfill thequalifications for eligibility prescribed by theNCTE. Any such action would be impermissiblefor the simple reason that the exclusive powerto prescribe eligibility qualifications for suchteachers is vested in the NCTE. Once the NCTEhas spoken on the subject, as it has through itsnotification, those qualifications must governthe eligibility requirement. Jurisdiction andpower of the NCTE to do so is now settledbeyond any doubt, as noted by the SupremeCourt.

(85) The 1981 Rules have been amended well in time, and prior to

commencement of the recruitment process to provide for

recruitment of B.Ed. candidates directly to the post of Assistant

Teacher, subject to them undergoing a post appointment

training, strictly in accordance with and as prescribed by the

NCTE. These changes have been brought about by the Twenty-

Third amendment dated 29.01.2019; Twenty-Fourth

amendment dated 07.03.2019 and the Twenty-Fifth

amendment dated 14.06.2019. Vide these amendments, the

concept of 'trainee teacher' has entirely been done away with in

accordance with the amendment issued by the NCTE, and the

Appendix - I has also been amended to set-out the manner of

calculating the quality point marks of B.Ed. candidates.

(86) The Twenty-Third amendment of the 1981 Rules was carried

out in the wake of NCTE notification dated 28.6.2018 on

24.1.2019 whereby minimum qualification of the candidates

participating in ATRE - 2019 was amended with inclusion of

59

B.Ed. candidates with six months training (that too after

holding the ATRE examination) in Rule 8(ii) (a) with

retrospective effect from 1.1.2018. Secondly, provisions of Rule

14 ((i) (c) and 14 (i) (d) regarding trainee teacher were deleted.

On 7.3.2019 Twenty-Fourth amendment of the 1981 Rules was

introduced, whereby retrospective effect to the charge of

minimum qualification regarding B.Ed. was implemented with

effect from 28.6.2018 i.e., date of NCTE notification and not

with effect from 1.1.2018. Both Twenty-Third and Twenty-

Fourth amendment of the 1981 Rules, though brought with

retrospective effect by the State to permit the participants of

B.Ed. candidates in ATRE - 2019 and due to these reasons the

Shiksha Mitras never challenged the participation of B.Ed.

candidates in ATRE - 2019 examination which was held on

6.1.2019. From perusal of Rule 14 as amended by Twenty-

Third amendment makes it clear that the ATRE is only a

qualifying examination and not a part of the recruitment

process. Once abovementioned qualifications have been

prescribed by the NCTE in its notification dated 28.06.2018 and

the same is binding on the State Government and therefore

B.Ed./BTC candidates were permitted to appear in ATRE –

2019 by clause 7 (1) and 7 (2) of the guidelines dated 1.12.2018

and they have been rightly included within the zone of

eligibility to participate in the qualifying examination held on

6.1.2019. By subsequent amendment of 1981 Rules with effect

from 1.1.2018 and with effect from 28.6.2018 were made by the

State Government to give effect to the NCTE notification

issued on 28.6.2018 as the State Government was under

obligation to act as per the said notification and to fully

implement the same and not to give effect to any contrary rule

as held by the Hon’ble Supreme Court and Division Bench of

this Court.

(87) The educational qualifications fixed by the NCTE for

appointment as Assistant Teachers are binding on the

60

recruitment made by the State Governments. The participation

of B.Ed. candidates was never challenged before the learned

Writ Court and the observations made in the impugned order

dated 29.3.2020 pertaining to participation of B.Ed. candidates

in the selection process are merely the obiter dicta having no

bearing on the issue raised before the learned Writ Court

regarding the legality and validity of the Government Order

dated 7.1.2019 whereby the minimum qualifying marks had

been fixed for ATRE - 2019 examination.

(88) In view of law laid down by the Apex Court in the case of State

of Rajasthan v. Sanyam Lodha [(2011) 13 SCC 262], inclusion

of B.Ed. candidates was never challenged by the writ

petitioners and as such, since particular Rule had not been

challenged, the prayer of reading down the said provision could

not be made. The Apex Court in the case of Shiv Kumar

Pathak (supra) wherein it has been held that the eligibility

conditions for appointment of Assistant Teachers as laid down

by the NCTE are binding on the State Government as the

NCTE is the competent authority for fixing such educational

qualifications for appointment of Assistant Teachers under

Section 23 of the RTE Act as well as under Sections 12 and 12-

A of the NCTE Act, 1993.

(89) The Apex Court in the case of State of U.P. vs. Shiv Kumar

Pathak (supra), has held that the eligibility conditions for

appointment of Assistant Teachers as laid down by the NCTE

are binding on the State Government as the NCTE is the

competent authority for fixing such educational qualifications

and therefore, the B.Ed. candidates had been included by the

State Government in clause 4 (2) of statutory guidelines dated

1.12.2018. In the aforesaid clause, it is very categorically stated

that the notification dated 28.6.2018 issued by the NCTE

whereby B.Ed. candidates were made eligible for appointment

as Teacher in Primary Schools for teaching classes I to V

61

provided the person so appointed as an Assistant Teacher shall

mandatorily undergo six months’ Bridge Course in Elementary

Education recognized by the NCTE within two years after such

appointment as Assistant Teachers.

(90) The Division Bench of this Court in Harsh Kumar v. State of

U.P. and others (supra), has reiterated the same principles as

laid down by the Apex Court in State of U.P. v. Shiv Kumar

Pathak (supra).

(91) Para 4 of the Government Order dated 1.12.2018 provides for

minimum qualification for appearing in the said examination in

ATRE – 2019 and it provides that candidates possessing

qualifications as provided in Rule 8 of 1981 Rules and having

passed Teachers Eligibility Test, would be eligible to appear in

the said examination and Clause 2 of Para – 4 of the

Government Order provides the minimum qualification as

provided in the notifications of the NCTE would be eligible to

apply in the said examination. Thus the candidates possessing

Bachelor Degree together with the B.T.C. Training and had

passed TET examination or had B.Ed. degree to their credit

were eligible for applying in the ATRE – 2019. The learned

Writ Court erred in referring to the 1981 Rules, as the rules

come into operation only at the stage of recruitment, which has

not commencement as yet. The learned Single Judge erred in

holding that as the Rules 1981 did not envisage the recruitment

of B.Ed. candidates to the post of Assistant Teacher (and

provided for their appointment only to the post of Trainee

Teacher), and as the Appendix - I did not provide a mechanism

to lay down the procedure for calculating the quality point

marks of B.Ed. candidates, hence the participation of the B.Ed.

candidates in the ATRE - 2019 was bad.

(92) Thus, we are of the view that once the B.Ed. candidates were

made eligible to be considered for appointment to the post of

Assistant Teacher, subject to them acquiring the minimum

62

qualification, the State Government was bound to permit them

to participate in the ARTE - 2019 passing which is the

minimum qualification to be considered for appointment to the

post of Assistant Teacher. Accordingly, the State Government

carried out the necessary amendments to the 1981 Rules to

align them with the NCTE notification, prior to commencement

of the recruitment process.

(93) Sri J. N. Mathur, learned Senior Counsel, heavily relied on the

decision of the Apex Court in Ayaaubkhan Noorkhan Pathan

v. State of Maharashtra, [(2013) 4 SCC 465] wherein it has

been held that a 'Person Aggrieved' does not include a person

who suffers from a psychological or an imaginary injury; a

'person aggrieved' must therefore be one whose right or interest

has been adversely effected or jeopardized and rightly

submitted that the writ petitioners before the Writ Court were

not persons falling in the category of a 'person aggrieved' and

any micro-classification within the class of examinees is not

sustainable in the eyes of law as in an open competition all

examinees are to be treated as equals and argued that the

issuance of Government Order dated 7.1.2019 does not amount

to changing the rules of game.

(94) The principle that the Rules of the game cannot be changed

once the game has started was not at all attracted in this matter

since there was no change in the minimum qualifying marks

fixed for the first time at 65% and 60% vide Government Order

dated 7.1.2019 for ATRE - 2019 whereas the minimum

qualifying marks fixed in the Government Order dated 9.1.2018

were meant exclusively for the ATRE - 2018 only.

(95) The Apex Court in the case of Municipal Corporation of Delhi

vs. Surendra Singh and others (supra), while adjudicating a

similar controversy pertaining to the fixation of minimum

qualifying marks for selection of the most meritorious

candidates, has held as legal and valid the action of the

63

competent authority of fixation of minimum qualifying marks

which were fixed after the examination was held but prior to the

declaration of result. In the case in hand, the competent

authority was given power under Rule 2 (x) of the 1981 Rules

to fix minimum qualifying marks and the same ought not to

have been interfered with as the fixation of benchmark for

selection of most meritorious candidates is the prerogative of

the employer and in no way amounts to changing the rules of

game.

(96) Much reliance has been placed by the learned Senior Counsel

for the private respondents-Shiksha Mitras in the case of K.

Manjusree v. State of A.P. and another [2008 (3) SCC 512],

wherein the question was whether correct criterion was adopted

in making recruitment for posts of District & Sessions Judge

which was granted by the A. P. State Higher Judicial Service

Rules, 1958. The Rules prescribed quota for direct recruitment,

educational qualifications,, etc. but did not prescribe any

criterion for selection. There were however Resolutions dated

24.7.2001 and 21.2.2002 which prescribed criteria for selection

of candidates. According to prescribed criterion, there were 75

marks for written examination and 25 for interview. It was

decided vide Resolutions dated 30.11.2004 that existing

criterion would be followed but while holding written

examination, 100 marks were prescribed instead of 75. The

High Court made two changes on administrative side after

written examination and interviews were over. First, marks for

written examination were proportionately scaled down so as to

maintain ratio between written examination and interview as

3:1 (75:25) instead of 4:1 (100:25). This was done because

original criterion prescribed 75:25 ratio. Secondly, it introduced

minimum qualifying marks for interview also. This resulted in

reshuffling of selection list. The Apex Court considered the

effect of these recruitments and concluded that the Resolutions

dated 24.7.2001 and 21.2.2002 provided qualifying marks for

64

written examinations only but not for interview. Considering

the aforesaid facts and circumstances, the Apex Court has held

that the introduction of requirement of minimum marks for

interview, after the entire selection process (consisting of

written examination and interview) was completed, would

amount to changing the rules of the game after the game was

played, which is clearly impermissible.

(97) In respect of question, as to whether the Government Order

dated 7.1.2019, whereby the minimum qualifying marks were

fixed for all the candidates, who were participated in the

examination of ATRE – 2019 on 6.1.2019 amounts to changing

the rules of the game, the principle that the Rules of the game

cannot be changed once the game has started was not at all

attracted in the present facts and circumstances of the case

because the minimum qualifying marks which had been fixed

for the first time by the Government on 7.1.2019 will apply to

all candidates who had participated in the ATRE qualifying

examination – 2019 on 6.1.2019. In Rule 14 (1) (b) of the 1981

Rules, it has been provided that a separate Assistant Teacher

Recruitment Examination shall be conducted by the

Government for every time vacancies are notified for

recruitment on the post of Assistant Master or Assistant

Mistress of Junior Basic School concerned. Rule 2 (x) of the

1981 Rules empowers the State Government to fix the

qualifying marks of the ATRE from time to time. It has

nowhere been provided that once the minimum qualifying

marks have been fixed for the first ATRE, they shall be carried

forward or be applicable for eternity on all future selection

processes. The said argument of the Shiksha Mitras is contrary

to the terms and conditions of statutory guidelines dated

1.12.2018.

(98) The Apex Court in the case of Jharkhand Public Service

Commission v. Manoj Kumar Gupta (supra) has held that the

65

State Government is free to determine the cut-off marks even

after the examination has been held and the same does not

amount to any change in the rules of the game. It is also held

that eligibility tests are not meant for selection to any post but is

conducted to determine the eligibility of the candidates for

appointment as Lecturers. The relevant paragraphs of the

judgment read as under:-

"The Jharkhand Public Service Commission(JPSC) issued an advertisement on 19.07.2006inviting applications from candidates desirousof competing in the Jharkhand Eligibility Test(JET). This test is not meant for selection toany post but is Signature Not Verified Digitallysigned by SARITA PUROHIT Date: 2019.12.19conducted to determine the eligibility of thecandidates for 12:36:18 IST Reason:appointment as lecturers in universities andcolleges of the State of Jharkhand. This testcalled the State Level Eligibility Test (SLET) isconducted as per the guidelines laid down bythe University Grants Commission (UGC).

2. The test consists of three papers – the firsttwo papers are multiple choice questions to beanswered on an Optical Mark Reader (OMR).One test is of a general subject and one test isof the subject for which the candidate applies.The third paper is a descriptive type questionpaper dealing only with the subject selected bythe candidate. Relevant portion of theadvertisement reads as follows:

“A candidate who does notappear in Paper I will not bepermitted to appear in Paper IIand Paper III. Paper III will beevaluated only for thosecandidates who are able tosecure the minimum qualifyingmarks in Paper I and Paper IIas per the table given in thefollowing: CATEGORYMINIMUM QUALIFYINGMARKS PAPERI PAPERIIPAPERI + PAPERIIGENERAL/OBC 40 40 100(50%) PH/VH 35 35 90 (45%)

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SC/ST 35 35 80 (40%)

3. The writ petitioner obtained 50% marks inPapers I and II but he did not do as well inPaper III. The JPSC fixed a cut off percentageof 60 for Paper III which the writ petitioner didnot attain and as such he was declared notsuccessful and, therefore, ineligible to beconsidered for appointment as lecturer.

4. Aggrieved by the said action, the writpetitioner filed a writ petition before the HighCourt which allowed the same. The appeal filedby the JPSC before the writ court was alsoallowed mainly on the ground that the PublicService Commission could not have fixedqualifying marks of 60% and this amounted tochanging the rules of the game after theadvertisement had been issued and process ofselection had started. It held that once thecandidate had obtained 50% marks, thecandidate could not be disqualified and theJPSC was not bound by the instructions of theUGC in this regard. The High Court alsodirected that the case of the writ petitionerwould be considered on the basis ofperformance. The High Court held that no cutoff marks had been provided for Paper III.

7. As far as the finding of the High Court thatthe rules of the game were changed after theselection process had started, we are of theconsidered view that this is not the case as faras the present case is concerned. There wereno minimum marks provided for Paper III inthe advertisement. This could be done by themoderation committee even at a later stage.This is not a change brought about but anadditional aspect brought in whiledetermining the merit of the candidates whoare found fit to be eligible for considerationfor appointment of Lecturers.

8. In view of the above, we are of theconsidered opinion that the High Court erred inholding that the JPSC could not fix theminimum marks for Paper III. Hence, we setaside the judgment of the High Court dated09.11.2016.

(99) In the case in hand, Rule 2 (1) (x) of 1981 Rules empowers the

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State Government to fix minimum qualifying marks of ATRE

from time to time and admittedly, no minimum marks were

provided in the instructions dated 1.12.2018 and therefore, the

State Government in exercise of the aforesaid power issued

Government Order on 7.1.2019 prescribing minimum

qualifying marks for ATRE – 2019 examination as 65% for

general category candidates and 60% for reserved category

candidates which is just and proper and this in nowhere

amounts to changing the rules of the game. The judgment of K.

Manjusree (supra) is distinguishable on facts.

(100) The Hon’ble Supreme Court in the case of Anand Kumar

Yadav (supra), merely provided that the Shiksha Mitras shall be

given an opportunity to participate in the selection process at

hand in two consecutive selections, in an open and transparent

selection process alongwith other duly qualified candidates and

it nowhere provided that the Shiksha Mitras shall constitute a

homogeneous clause apart from other duly qualified candidates

participating in the selection process. The first ATRE – 2018

had been concluded somewhere in August, 2018 and selections

made on 68,500 vacancies notified vide Government

Order/statutory guidelines issued under Rule 2 (y) of 1981

Rules. Thereafter, the State Government notified fresh

vacancies for appointment vide notification dated 1.12.2018,

known as second ATRE – 2019. The ATRE – 2018 and ATRE –

2019 were two separate selection processes and were conducted

under different Rules as the Twentieth amendment was

applicable as per Government Order dated 9.1.2018 on the

ATRE – 2018 examination and the Twenty-Second amendment

was applicable as per Government Order dated 1.12.2018 on

the ATRE – 2019 examination. It is also not in dispute that in

ATRE – 2018 examination, only 1,07,000 candidates appeared

against 68,500 vacancies whereas in ATRE – 2019 examination,

4,10,000 candidates appeared against 69,000 vacancies. As per

clauses of the aforesaid ATRE, which we have quoted, it is very

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clear that examination of ATRE – 2018 and ATRE – 2019 is

valid only for a particular year. The ATRE – 2019 examination

was based on a different pattern as it only had multiple choice

questions and there was no condition like clause 7 (1) and 7 (2)

of ATRE – 2018 regarding minimum marks and thereafter, after

examination of ATRE – 2019 was held on 6.1.2019, the State

Government under Rule 2 (x) of 1981 Rules took a conscious

decision and issued Government Order dated 7.1.2019 to fix

65% minimum qualifying marks for General Category and 60%

for reserved category candidates.

(101) The minimum qualifying marks which had been fixed vide

Government Order dated 7.1.2019 were made uniformly

applicable on all duly qualified candidates participating in the

selection at hand, irrespective of whether such candidates

possessed a BTC degree, B.Ed. degree or were Shiksha Mitras.

The minimum qualifying marks were made uniformly

applicable to all the examinees sitting for ATRE – 2019 and

thus, we are of the view that Hon’ble Supreme Court in the case

of Anand Kumar Yadav (supra) had never directed that

Shiksha Mitras shall constitute one homogeneous clause for the

purpose of recruitment nor it had caused any prejudice to the

Shiksha Mitras because the same was applicable to all

candidates who had participated in the ATRE – 2019

examination.

(102) The Apex Court in the case of Municipal Corporation of India

vs. Surender Singh and others (supra), while adjudicating a

similar controversy pertaining to the fixation of minimum

qualifying marks for selection of the most meritorious has been

pleased to uphold as legal and valid the action of the competent

authority for fixing the minimum qualifying marks which were

fixed after examination was held, but prior to the declaration of

the result, since the advertisement did not specify any

qualifying marks for the examination in question, and the

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candidates had participated in the examination knowing fully

well that no qualifying marks have been fixed in the

advertisement and the same will be fixed prior to declaration of

the result.

(103) The power of the Government to prescribe the qualifying marks

of passing the examination even after the advertisement and the

examination in exercise of power conferred under Rule 2 (x) of

1981 Rules is supported by the judgment of the Apex Court in

Municipal Corporation of Delhi vs. Surendra Singh and

others (supra) and Jharkhand Pubic Service Commission vs.

Manoj Kumar Gupta and others (supra). From the aforesaid,

we are of the view that the decision of the Government for

fixing of the minimum qualifying marks cannot be faulted.

(104) The examination conducted in 2019 for second ATRE – 2019

does not discriminate between the Shiksha Mitras who

appeared in 2018 and The Shiksha Mitras who appeared in

2018 and 2019 do not constitute one class for the purposes of

passing the examinations of 2018 and 2019 as the standards of

both the examinations was different and they have to pass the

examination as per the advertisement and the Rules regulating

both the examinations.

(105) For the reasons aforementioned, it cannot be said that the

Government Order dated 7.1.2019 is violative of Article 14 of

the Constitution of India nor it makes an unreasonable

classification or is nullifying the judgment of the Apex Court in

the case of Anand Kumar Yadav (supra). Accordingly, we set

aside the impugned order 29.3.2019 passed in Writ Petition

No.1188 (SS) of 2019 and other connected matters filed by

Shiksha Mitras and dismiss the said writ petitions by allowing

all the Special Appeals and direct the State of U.P. to declare

the result of examination which was held on 6.1.2019 in terms

of the Government Order dated 7.1.2019 at the earliest as

directed by the Apex Court in the case of Bhola Prasad Shukla

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v. Union of India and others (supra). All applications for

intervention/ impleadment/civil miscellaneous applications are

also disposed of in same terms.

(106) No costs.

[Karunesh Singh Pawar, J.] [Pankaj Kumar Jaiswal, J.]

Order Date :- 6.5.2020lakshman

reserved case :- special appeal no. - 156 of 2019€¦ · singh,rishabh kapoor,santosh kr. yadav...

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