Allahabad High Court
Raghvendra Pratap Singh And Ors. vs State Of U.P.Throu.Prin.Secy.(Basic ... on 6 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 1091, AIRONLINE 2020 ALL 920
Bench: Pankaj Kumar Jaiswal, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 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 Shukla Counsel 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 Shukla Counsel 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 Rashmi Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (3) Case :- SPECIAL APPEAL DEFECTIVE No. - 180 of 2019 Appellant :- Jai Singh Yadav And Ors. Respondent :- Mohd. Rizwan And Ors. Counsel for Appellant :- Gantavya,Meha Rashmi Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (4) Case :- SPECIAL APPEAL DEFECTIVE No. - 181 of 2019 Appellant :- Vinay Kumar Verma And Ors. Respondent :- Mohd. Rizwan And Ors. Counsel for Appellant :- Gantavya,Meha Rashmi Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (5) Case :- SPECIAL APPEAL DEFECTIVE No. - 185 of 2019 Appellant :- Amit Kumar And Ors.(4) Respondent :- Mohd. Rizwan And Ors. Counsel for Appellant :- Gantavya,Meha Rashmi Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (6) Case :- SPECIAL APPEAL DEFECTIVE No. - 186 of 2019 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 (7) Case :- SPECIAL APPEAL No. - 187 of 2019 Appellant :- Indra Pratap Yadav And Ors.(4) Respondent :- The State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.& Ors Counsel for Appellant :- Rajeev Narayan Pandey,Vaibhav Srivastava Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (8) Case :- SPECIAL APPEAL No. - 158 of 2019 Appellant :- Vinay Kumar Singh And Ors. Respondent :- Mohd.Rizwan And Ors. Counsel for Appellant :- Gaurav Mehrotra,Ishita Yadu Counsel 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 (9) Case :- SPECIAL APPEAL DEFECTIVE No. - 165 of 2019 Appellant :- Akhilesh Kumar Shukla And Ors. Respondent :- Mohd. Rizwan And Ors. Counsel for Appellant :- Gantavya,Meha Rashmi Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (10) Case :- SPECIAL APPEAL No. - 174 of 2019 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 Verma Counsel for Respondent :- C.S.C.,Ajay Kumar,Vinay Misra (11) Case :- SPECIAL APPEAL DEFECTIVE No. - 175 of 2019 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 (12) Case :- SPECIAL APPEAL DEFECTIVE No. - 173 of 2019 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 Chatterjee Counsel 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 (13) Case :- SPECIAL APPEAL DEFECTIVE No. - 189 of 2019 Appellant :- Vikas Shukla And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.& Ors. Counsel for Appellant :- Vikas Singh,Mahendra Pratap Singh Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (14) Case :- SPECIAL APPEAL DEFECTIVE No. - 190 of 2019 Appellant :- Ashish Kumar Singh And Ors. Respondent :- Mohd.Rizwan And Ors. Counsel for Appellant :- Rajendra Singh Chauhan,Deepak Singh Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (15) Case :- SPECIAL APPEAL DEFECTIVE No. - 201 of 2019 Appellant :- Virendra Pratap And Ors. Respondent :- Mohd. Rizwan And Ors. Counsel for Appellant :- Gantavya,Meha Rashmi Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (16) Case :- SPECIAL APPEAL DEFECTIVE No. - 207 of 2019 Appellant :- State Of U.P. Thru. Addl. Chief Secy. Basic Education & Ors. Respondent :- Mohd. Rizwan & Ors. Counsel for Appellant :- C.S.C.,Lal Bahadur Singh Counsel for Respondent :- Amit Kr. Singh Bhadauriya,Abhisar 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 (17) Case :- SPECIAL APPEAL DEFECTIVE No. - 220 of 2019 Appellant :- Atul Kumar Bajpai & Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Ors. Counsel for Appellant :- Amrendra Nath Tripathi,Durga Prasad Shukla Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (18) Case :- SPECIAL APPEAL No. - 257 of 2019 Appellant :- Rama Pati & Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Ors. Counsel for Appellant :- O.P. Tiwari Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (19) Case :- SPECIAL APPEAL DEFECTIVE No. - 249 of 2019 Appellant :- Sagar & Ors. Respondent :- Mohd. Rizwan & Ors. Counsel for Appellant :- Prakarsh Pandey,Ankut Dixit,Pradeep Kumar Rai Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (20) Case :- SPECIAL APPEAL DEFECTIVE No. - 322 of 2019 Appellant :- Amit Kumar Dubey & Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Ors. Counsel for Appellant :- Arunendra Nath Mishra Counsel for Respondent :- C.S.C.,Ajay Kumar (21) Case :- SPECIAL APPEAL DEFECTIVE No. - 347 of 2019 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 Singh Counsel for Respondent :- C.S.C.,Ajay Kumar (22) Case :- SPECIAL APPEAL DEFECTIVE No. - 349 of 2019 Appellant :- Akhilesh Yadav And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.& Ors. Counsel for Appellant :- Arunendra Nath Mishra Counsel for Respondent :- C.S.C.,Ajay Kumar (23) Case :- SPECIAL APPEAL DEFECTIVE No. - 391 of 2019 Appellant :- Gaurav Pandey Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. Lko. & Ors. Counsel for Appellant :- Srideep Chatterjee,Sameer Kalia Counsel for Respondent :- C.S.C.,Ajay Kumar,Amit Kr. Singh Bhadauria (24) Case :- SPECIAL APPEAL DEFECTIVE No. - 93 of 2020 Appellant :- Shri Prakash Mishra Respondent :- State Of U.P. Through Prin. Secy. Basic Education & Others Counsel for Appellant :- Ram Bali Tiwari,Rakesh Kumar Modanwal Counsel 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 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, Examination Regulatory 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/ 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 of the issue and case law so cited by the learned counsel for the respective parties I am of the considered view that the Government Order dated 7.1.2019 is not sustainable in the eyes of law being arbitrary and violative of Article 14 of the Constitution of India as it makes an unreasonable classification by giving different treatment to two groups of identically situated persons appearing in two consecutive examinations and there is no valid reason and justification for drastically increasing minimum qualifying marks without having any nexus with the object sought to be achieved. It further appears that the Government Order dated 7.1.2019 is nullifying the beneficial direction of the Hon'ble Apex Court in re: Anand Kumar Yadav (supra), pursuant to which 25 marks of weightage has been prescribed under Rule 14(3)(a) of the Rules 1981 (22nd Amendment, 2018) purposely for practical experience which is an integral part of merit.
182. Accordingly, a writ in the nature of certiorari is issued quashing the Government Order dated 07.01.2019 issued by the Special Secretary, Basic Education 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 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 statutorily requiring minimum qualification for appointment of teachers to be appointed after the date of Notification dated 23rd August, 2010, there is no doubt that no appointment was permissible without such qualifications. Appointments in the present case are clearly after the said date. Relaxation provision could be invoked for a limited period or in respect of persons already appointed in terms of applicable rules relating to qualifications. The Shiksha Mitras in the present case do not fall in the category of pre 23 rd August, 2010 Notification whose appointment could be regularized.
29. Further difficulty which stares one in the face is the law laid down by this Court on regularization of contractually appointed persons in public employment. Appointment of Shiksha Mitras was not only contractual, it was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers. Thus, they could not be regularized as teachers. Regularization could only be of mere irregularity. The exceptions carved out by this Court do not apply to the case of the present nature.
30. In view of our conclusion that the Shiksha Mitras were never appointed as teachers as per applicable qualifications and are not covered by relaxation order under Section 23(2) of the RTE Act, they could not be appointed as teachers in breach of Section 23 (1) of the said Act. The State is not competent to relax the qualifications.
(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 1.78 Lakhs persons to be regularized in violation of law, on the other hand is the duty to uphold the rule of law and also to have regard to the right of children in the age of 6 to 14 years to receive quality education from duly qualified teachers. Thus, even if for a stop gap arrangement teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed. It may be permissible to give some weightage to the experience of Shiksha Mitras or some age relaxation may be possible, mandatory qualifications cannot be dispensed with. Regularization of Shiksha Mitras as teachers was not permissible. In view of this legal position, our answers are obvious. We do not find any error in the view taken by the High Court.
33. Question now is whether in absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference. In the peculiar fact situation, they ought to be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in terms of advertisements for recruitment for next two consecutive recruitments. They may also be given suitable age relaxation and some weightage for their experience as may be decided by the concerned authority. Till they avail of this opportunity, the State is at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides."
(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. 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 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 Recruitment Examination" means a written examination conducted by Government for recruitment of a person in junior basic schools run by Basic Shiksha Parishad;
Rule 2(1)(x) "Qualifying marks of Assistant Teacher Recruitment Examination" means such minimum marks as may be determined from time to time by the Government;
Rule 2(1)(y) "Guideline of Assistant Teacher Recruitment Examination" means such guidelines as may be determined from time to time by the Government."
(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 Assistant Teacher Recruitment Examination conducted by the Government";
Rule 14 (1)(a)" and passed Assistant Teacher Recruitment Examination conducted by the Government";
(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 University established by law in India or a degree recognised by the Government equivalent thereto together with any other training course recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate (BTC), two years BTC (Urdu) Vishisht BTC. Two year Diploma in Education (Special Education) approved by the Rehabilitation Council of India or four year Degree in Elementary Education (B.EI.Ed.), two year Diploma in Elementary Education (by whatever name known) in accordance with the National Council for Teacher Education (Recognition, Norms and Procedure), Regulations, 2002 or any training qualifications to be added by National Council of Teacher Education for the recruitment of teachers in primary education.
and teacher eligibility test passed conducted by the Government or by the Government of India and passed Assistant Teacher recruitment Examination conducted by the Government.
(b) a Trainee Teacher who has completed successfully six months special training programme in elementary education recognised by NCTE.
(c) a shikshamitra who possessed bachelors degree from a University established by law in India or a degree recognised by the Government equivalent thereto and has completed successfully two years distant learning B.T.C. course or Basic Teacher's Certificate (B.T.C.), Basic Teachers Certificate (B.T.C.) (Urdu) or Vishisht B.T.C. conducted by the State Council of Educational Research and Training (SCERT) and passed the Teacher Eligibility Test conducted by the Government or by the Government of India and passed Assistant Teacher Recruitment Examination conducted by the 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 of Examination/ Degree Quality Points
1. High School Percentage of marks in the examination x10 100
2. Intermediate Percentage of marks in the examination x10 100
3. Graduation Degree Percentage of marks in the examination x10 100
4. B.T.C. Training Percentage of marks in the examination x10 100
5. Assistant Teacher Recruitment Examination Percentage of marks in the examination x60 100
6. Weightage Teaching 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, upto maximum 25 marks, whichever is less.
Note:
1. If two or more candidates have equal quality points, the name of the candidate who is senior in age shall be placed higher in the list.
2. If two or more candidates have equal quality points and age, the name of the candidate shall be placed in the list in English alphabetical order."
(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 possessed bachelors degree from a University established by law in India or a degree recognised by the Government equivalent thereto and has completed successfully two years distant learning B.T.C. course or Basic Teacher's Certificate (B.T.C.), Basic Teacher's Certificate (B.T.C.) (Urdu) or Vishisht B.T.C. conducted by the State Council of Educational Research and Training (SCERT) and passed the Teacher Eligibility Test conducted by the 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 to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of Rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, and other categories under Rule 9 and published in at least two leading daily newspapers having adequate circulation in the State as well as in concerned district inviting applications from candidates possessing prescribed training qualification and passed teacher eligibility test, conducted by the Government or by the Government of India and passed Assistant Teacher Recruitment Examination conducted by the 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 authority shall scrutinize the applications received in pursuance of the advertisement under clause (a) or (b) of sub-rule (1) of rule 14 and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment.
(3)(a). The names of candidates in the list prepared under sub-rule (2) in accordance with clause (a) of sub-rule (1) of rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points and weight-age as specified in the appendix-I:
Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher:
3(b). The names of candidates in the list prepared under sub-rule (2) in accordance with clause (b) of sub-rule (1) of rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix-II Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher.
(2) Preparation of Merit List- The appointing authority shall scrutinize the applications received in pursuance of the advertisement under clause (a) or clause (c) of sub-rule (1) and prepare a merit list of such persons as appear to possess the prescribed academic qualifications and passed Assistant Teacher Recruitment Examination be eligible for appointment.
(3)(a). The names of candidates in the list prepared under sub-rule (2) in accordance with clause (a) of sub-rule (1) of rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points and weightage as specified in the appendix-I:
Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher:
Provided that a person working as Shiksha Mitra in Junior Basic Schools run by Basic Shiksha Parishad shall be given weightage in the recruitment of the post of Assistant Teacher, only in two consecutive Assistant Teacher Recruitment Examination conducted by the Government after July 25, 2017.
(b) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (c) of sub-rule (1) of rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix-II:
Provided that if two or more candidates obtain equal marks, the candidate senior in age 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 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; gksxh 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 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 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 submission advanced on behalf of the appellants/petitioners must necessarily be evaluated bearing in mind the decision of the Supreme Court in Anand Kumar Yadav as well as the statutory amendments introduced in the 1981 Rules by virtue of the Twentieth and Twenty-Second Amendments.
Anand Kumar Yadav, expressly upheld and affirmed the decision rendered by the Full Bench of this Court. The Supreme Court confirmed the position found by the Full Bench that Shiksha Mitras did not possess the requisite qualifications required of an Assistant Teacher and, thus, they could not be regularised. However, the Supreme Court also sought to balance the rights of 1,78,000 persons engaged by the State Government 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 advertisements for recruitment in the next two consecutive recruitment exercises to be conducted by the Board. It is in that light that the second proviso to Rule 14 (3) must be read. The second proviso must also necessarily be interpreted in conjunction and against the backdrop of the significant observation of the Supreme Court in Anand Kumar Yadav where it was held that they may be given suitable age relaxation and "some weightage for their experience...". Weightage, crucially was to be given in respect of "experience" and not in connection with any examination.
The appointment of Shiksha Mitras as Assistant Teachers was unequivocally made subject to they having either acquired or now acquiring the requisite qualifications as prescribed under the 1981 Rules. Viewed in this light, it is manifest that Shiksha Mitras were not exempted from the rigours of possessing either the essential qualifications or otherwise meeting the requirements of the 1981 Rules and more particularly Rule 14 thereof. Rule 14(1)(a) in unambiguous terms confines the zone of eligibility to those who (a) possess the prescribed training qualification, (b) have passed the Teacher Eligibility Test and (c) the Assistant Teacher Recruitment Examination. The procedure for preparation of the merit list is then prescribed in sub-rule (2) which mandates the inclusion of only such persons, who possess the prescribed academic qualifications and have additionally passed the Assistant Teacher Recruitment Examination. Sub-rule (3) then proceeds to prescribe that the name of candidates shall be arranged in accordance with the quality points and weightage as specified in Appendix-I. Clause 5 of the Appendix-I provides for the manner in which quality point marks are to be computed with respect to marks obtained in the Assistant Teacher Recruitment Examination. There is thus an unambiguous command enshrined in sub rules (1) and (2) read with the Appendix-I of a candidate passing the Assistant Teacher Recruitment Examination. These provisions, significantly, do not prescribe or envisage the conferral of weightage to the marks obtained in the said examination.
The Appendix-I and more particularly Clause 5 thereof, provides for the computation of quality points based upon the marks obtained by an applicant in the Assistant Teacher Recruitment Examination. As is evident from Clause 6 of the Appendix-I the weightage of 2.5 marks subject to a maximum of 25 marks is confined to every completed year of teaching. Weightage is not provisioned for in Clause 5 which deals with the computation of quality points with regard to the Assistant Teacher Recruitment Examination. The Appendix-I in unambiguous terms provides for a weightage of 2.5 marks subject to a maximum of 25 only in respect of every completed year of teaching. Significantly although the second proviso to sub rule (3) was introduced by way of the Twenty-Second Amendment on 15 March 2018, the Appendix-I as amended by the Twentieth Amendment was not touched. This clearly seems to suggest that the rule making authority had no intention of amending or modifying the manner in which quality point marks were to be computed. Neither Clause 5 nor Clause 6 of the Appendix-I were varied. They continue to link the grant of weightage solely to every completed year of teaching. Similarly, Clause 5 continues to maintain the formula for computation of quality point marks as it is without providing for any addition or weightage being provided at this stage."
.... ..... ....
"Both sub-rules (1) and (2) of Rule 14 unequivocally mandate that a candidate desirous of appointment as an Assistant Teacher must have passed the Assistant Teacher Recruitment Examination. Rule 14 (3)(a) then proceeds to prescribe that the names of candidates prepared under Rule 14 (2) is to be arranged in accordance with quality points and weightage as specified in Appendix-I. Appendix-I as noticed above restricts the application of weightage to every completed teaching year. Neither sub rules (2) and (3) nor the Appendix-I contemplate weightage being accorded at the time of computing quality points with respect to the Assistant Teacher Recruitment Examination or at the time of declaration of results of the said exam. This subject is dealt with exclusively by clause 5 of Appendix-I. This particular clause, as noticed above, has remained unaltered and untouched by the Twenty-Second Amendment. Even this clause does not prescribe a weightage being accorded to the marks obtained in the examination in question. The subject of weightage is considered principally by Clause 6. It is also signifiant to note that Clause 6 restricts the application of weightage to every completed teaching year alone. This particular Clause was also neither visited nor touched by the Twenty-Second Amendment.
Viewed in the above backdrop, we are of the considered view that weightage was not contemplated to be added to the marks obtained by a person in the Assistant Teacher Recruitment Examination. Following the principle of identifying the hierarchy of provisions as enunciated by the Supreme Court, we find that sub-rules (2) and (3) of Rule 14 are the principal provisions. The prescription and requirements placed by these two provisions must be recognised to be the fundamental pedestal which must be achieved by any candidate seeking appointment as an Assistant Teacher. The second proviso to Rule 14 (3) must, therefore, be interpreted so as to fall in line and in tune with sub-rules (2) and (3). This would also flow from the language of the second proviso itself, which principally deals with the subject of grant of weightage in respect of recruitment to the post of Assistant Teacher. Sub-rule (4) of Rule 14 is also of no less significance. This provision in unambiguous terms prescribes that no person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2). Sub-rule (4) expressed in negative terms clearly operates as a statutory injunction against the appointment of any person unless he or she finds place in the list prepared in accordance with Rule 14 (2). Sub-rule (2) of Rule 14, as we have held above, clearly requires all persons to pass the Assistant Teacher Recruitment Examination. This sub rule does not contemplate the grant of weightage at the stage of preparation of the result of the Assistant Teacher Recruitment Examination. We have also recognised sub-rules (1), (2) and (3) of Rule 14 as well as Appendix-I to be the principal provisions. On a conjoint reading of these provisions, it is manifest that weightage is not liable to be accorded at the stage of computation of marks obtained by a candidate in the Assistant Teacher Recruitment Examination. At the cost of repetition, we may only reiterate that the observation of the Supreme Court in Anand Kumar Yadav with respect to the grant of weightage also stood confined to the experience gained by a Shiksha Mitra. This observation stands embedded in the statute with Appendix-I prescribing weightage being accorded for every completed year of teaching."
(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'.
(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; gksxh A 4 (2) jk"Vz`h; 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 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 Order makes an unreasonable classification by giving different treatment to two groups of identically situated persons appearing in two consecutive examinations?
II. Whether there are valid reason and justification for drastically increasing minimum qualifying marks and whether it has any nexus with the object sought to be achieved.
III. Whether the issuance of impugned Government Order nullifying the beneficial direction of the Hon'ble Apex Court's judgment is permissible in law?
IV. Whether practical working experience is an integral part of merit and whether special provision regarding weightage added in the statute can be nullified by general provisions of Rules?
V. Whether by providing the eligibility marks after holding the written examination the respondents are changing the Rule of game after the game starts?"
(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 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 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 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 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. 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 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 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 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.
(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 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 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 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 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 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 to the present incumbents who are working as Shiksha Mitras. In the recruitment process undertaken by the Sate, such incumbents would be entitled to age relaxation as well as some weightage for experience as Sikash Mitras. What weightage ought to be given was completely left to the authorities. However, considering the exigencies of the situation and particularly the fact that primary education in the State ought not to suffer, the State was given liberty to take services of present incumbents on same terms on which the persons were working prior to their absorption.
In keeping with the directions issued by this Court, a circular was issued by the State Government on 20.09.2017. Para 4 of the Circular adverted to the decision taken at the government level and said para 4 was as under:-
"4. In this regard, I have been directed to say that in compliance of order dated 25.07.2017 passed by the Hon'ble Supreme Court in SLP (C) No.32599/2015, State of U.P. & Ors. vs. Anand Kr. Yadav & Ors, the following decision have been taken after consideration on the present facts on the government level:-
(1) By order dated 25.07.2017 passed by the Hon'ble Supreme Court in SLP (C) No.32599/2015, State of U.P. & Ors. vs. Anand Kr. Yadav & Ors., the retrenched Shiksha Mitras be paid the pay of Assistant Teacher till the 31.07.2017 by appointing them from the date 01.08.2017 in the Councils Primary Schools for the education purpose.
(2) In compliance of order dated 25.07.2017 of the Hon'ble Supreme Court, issued government order No.225379-5-14-282/98, dated 19.06.2014/79-5-15-3031/15 TC dated 22.12.2015 for absorption of previous Shiksha Mitras to the Council Primary Schools on the post of Assistant Teachers and in this regard, issued other government orders are set aside.
(3) In compliance of order dated 25.07.2017 of the Hon'ble Supreme Court in SLP (C) No.32599/2015, employed and working total 1,65,157 Shiksha Mitras in the Council Primary Schools be paid the fixed pay of Rs.10,000/- per months till 41 months, from 01.08.2017."
Thus a decision was taken to continue 1,65,157 Shiksha Mitras who were working in Primary Schools, for 41 months at fixed pay of Rs.10,000/- per month.
It was submitted by Mr. V. Shekhar and Dr. Manish Singhvi, learned Senior Advocates as well as by other learned counsel that recommendation was made by Project Approval Board on 15.03.2017 recommending, inter alia, salary and emoluments in the sum of Rs.38,870/- for Primary Teachers appointed on Contractual Basis. The submission was that Shiksha Mitras who are being continued under the present dispensation ought to be paid the salary and emoluments in the sum as recommended by the Project Approval Board.
The basic question which engaged the attention of this Court was whether persons who do not have the requisite qualifications, could be appointed as Teachers. The premise, therefore, was clear that the persons who were appointed for Shiksha Mitras did not have the requisite qualifications. The only sequitor therefore, could be that such persons would not be entitled to retain their posts. However, considering the fact that large number of persons were appointed as Shiksha Mitras and the State would take some reasonable time to switch over and make regular appointments, the liberty was given to the State to continue the services of the present incumbents on the same terms.
Since the Shiksha Mitras were not regularly appointed and qualified Teachers, it would not be proper to extend to them the same pay scales as 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 since the decision of this Court in State of U.P. Vs. Anand Kr. Yadav, selection process was undertaken to fill up approximately 69,000 vacancies in the Primary Schools in the State, in which selection process about 41,500 teachers were selected.
The record is not clear whether any Shiksha Mitras availing the benefit extended by this Court, were selected or not. But considering the large number of Shiksha Mitras, the State must undertake further selection process(s) as early as possible so that all the qualified Shiksha Mitras who are otherwise aspiring to be regularly selected teachers may have an opportunity available to complete in the process subject to the benefits already extended to them.
We, therefore, direct the State Government to initiate the process for selection, after assessing the actual number of vacancies, as early as possible and preferably six weeks from today and conclude the selection process within six months thereafter.
All Shiksha Mitras who are otherwise qualified shall be considered for such selection after extending to them the benefit as contemplated in Para 33 of the decision in (2018) 13 SCC 560.
It shall open to the State Government to consider and devise a weightage formula. We may, by way of example, suggest that for every four years of experience, the State may consider extending the benefit of one per cent. This is only by way of a suggestion. The matter is completely left to the discretion of the State and its authorities.
With the aforesaid directions, these SLPs are disposed of.
All applications for intervention/impleadment are 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).
(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 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 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 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. 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 dated 28.06.2018 of National Council of Teachers Education (N.C.T.E.), the B.Ed. candidates may very well appear in the examination of A.T.R.E. but those persons will have to complete six months bridge course in elementary education within two years of such appointment as Primary Teacher. Meaning thereby, the Assistant Teachers who are having B.Ed. degree and does not undergo six months bridge course in elementary education recognized by N.C.T.E. within two years of the appointment shall no longer remain Assistant Teacher, however, who are possessing B.T.C. qualification need not to undergo such exercise. The aforesaid fact make the difference between the status of the teachers having B.T.C. qualification and having B.Ed. qualification. Earlier, the persons having B.Ed. qualification could have been appointed on the post of 'Trainee Teachers' but pursuant to the notification dated 28.06.2018 issued by the N.C.T.C. those teachers may be appointed as Primary Teachers. Such type of persons were not permitted in earlier examination i.e. A.T.R.E.-2018 but have been permitted in the present examination i.e. A.T.R.E-2019 on the basis of decision of the State Government. Since there is no challenge for inclusion of 'B.Ed. candidates etc., therefore, this Court, however, is not indulging in the said issue, but one query of the Court has not been satisfied by any of the counsel for the opposite parties as to how the quality point marks of the candidates having B.Ed. qualification may be calculated on the basis of Appendix-I inasmuch as those candidates may not be getting any marks for item No.4 i.e. marks for B.T.C. qualification and item No.6 i.e. marks for weightage which can only be provided to the Shiksha Mitras. The complete scenario of the examination in question creates unexplained confusion, therefore, the same may be looked into in the fitness of things of the present issue.
153. Perusal of the aforesaid legal provision makes it clear that since there is a statutory prescription in the Rule for providing weightage, therefore, said statutory prescription may not be ignored and that weightage may only be given to Shiksha Mitras. Rule 14 (3) (b) provides prescription in respect of B.Ed. candidates etc. and whose merit list shall be arranged in accordance with quality points as per Appendix-II and admittedly, in the present selection the quality points shall be determined as per Appendix-I, therefore, it appears that in the present selection inclusion of B.Ed. candidates is unwarranted, however no one has assailed the inclusion of B.Ed. candidates by means of batch of these writ petitions.
154. It is true that there is no challenge in any of the writ petitions that the inclusion of B.Ed. candidates is unwarranted and uncalled for and they may not be selected getting quality point marks as per Appendix-I, but circumstances under which the aforesaid anomaly has been committed by the State Government has nowhere been explained in the counter affidavit or by way of argument.
168. I also find favour in the submission of Sri U.N. Misra that it cannot be comprehended as to what is the object of enhancing minimum qualifying marks from 45% to 65% for Assistant Teacher Recruitment Examination when it is only a qualifying examination. Mr. U.N. Misra has rightly submitted that if the averment of the counter affidavit is believed to be correct, the said enhancement has been made to select the best available candidates, then who are the best candidates, as per State-respondent. Since the inclusion of B.Ed. candidates have been made in the present examination, therefore, it appears that the enhancement has been made to oust the Shiksha Mitras from the selection in question and to select the B.Ed. candidates. If it is the intention of the State-respondent to enhance the minimum qualifying marks, then it would be violative to the rules itself which categorically provides that the Shiksha Mitras would be getting 25 marks as weightage.
178. Besides, the counsel for the State-respondent could not convince as to how the quality points marks of B.Ed. candidates would be determined / calculated as per Appendix -I when these B.Ed. candidates would not be getting any marks for item no. 4 [marks of B.T.C.] and item no. 6 [weightage of 25 marks]. If these B.Ed. candidates are given quality point marks as per Appendix -II, they can easily get marks for all the items but quality points marks for this examination would be calculated as per Appendix-I.
179. This Court is unable to comprehend the rationale behind it but since this particular point has not been directly assailed, therefore, no order on this point needs to be issued.
180. However, it clearly reveals that neither the Board of Basic Education nor the State Government has carried out proper exercise before conducting selection in question permitting B.Ed. candidates in the present selection in question which increased the number of aspirants drastically without deciding the method for calculating their quality points marks, without determining the vacancies for them as B.Ed. candidates are different from B.T.C. candidates, enhancing the minimum qualifying marks for the Assistant Teacher Recruitment Examination-2019 by way of G.O. dated 7.1.2019 and conducting Assistant Teacher Recruitment Examination-2019 differently from Assistant Teacher Recruitment Examination-2018 whereas the State Government was to conduct two examinations in a same manner as per dictum of Hon'ble Apex Court. This unexplained anomaly may convince this Court to quash the entire selection process but keeping in view the fact that large number of candidates have already appeared in selection process, therefore, this Court is only examining/ testing the fitness of Government 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 class I to V upto 1st January, 2012, provided he undergoes, after appointment, an NCTE recognized 6-months special programme in Elementary Education."
(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 Elementary Education (by whatever name known), the following shall be inserted, OR "Graduation with at least 50% marks and Bachelor of Education (B.Ed.)"
2. In the said notification in para 3, sub-para (a), the following sub-para shall be substituted namely:-
"(a) who has acquired the qualification of Bachelor of Education from any NCTE recognized institution shall be considered for appointment as a teacher in classes I to V provided the person so appointed as a teacher shall mandatorily undergo a six month Bridge Course in Elementary Education recognized by the NCTE, within two years of such appointment as 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 notification dated 29.07.2011 that the qualifications laid down by it for appointment of a Teacher or that of a Principal are "minimum qualifications". NCTE has recommended Senior Secondary i.e. 10+2 with two years' Diploma in Elementary Education as the minimum qualification for the post of Teacher for Classes I to V. As an alternative qualification, it has also recommended "Graduation with two year Diploma in Elementary Education" as the minimum qualification. The State Government, however, with a view to improve the quality education, has enhanced the minimum qualification from 10+2 to Bachelor of Fine Arts/B.A. instead of 10+2 along with two-years' Diploma in Elementary Education. Such higher qualification neither is in conflict with nor does it offend the recommendations made by NCTE for a minimum qualification. The expression "minimum" leaves no room to doubt that the NCTE did not want any State Government to prescribe qualification for teaching posts lower than those recommended by it. None of the notifications issued by NCTE says or can be construed as an embargo on the powers of the State Government to prescribe a qualification higher than the one recommended by it. There is no judicial pronouncement as claimed by the petitioners' counsel that states that the States are incompetent to prescribe qualification higher than the "minimum" prescribed by NCTE. The first and second questions are thus answered against the petitioners."
(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 prescribe such qualifications as it may consider appropriate for candidates seeking admission into BTC course so long as the qualifications so prescribed are not lower than those prescribed by or under the NCTE Act. The State can always prescribe higher qualification."
(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 wisdom decide as to the eligible candidates on the basis of having qualified the Central Teachers Eligibility Test. However, education being the subject matter of concurrent list of the power to frame appropriate legislation/regulations/rules works with the appropriate legislature of the State Government and as such State Government is well within as rights to prescribe the qualification of eligibility in the form that the candidates wanting to apply for the said post must necessarily qualify the Teachers Eligibility Test of said State. There would be no illegality (sic) in the same and merely because a state government had failed to conduct the State Teachers Eligibility Test (STET) in a given year would not amount to taking a decision not to hold the exams and to hold the candidates having qualified Central Teacher Eligibility Test as eligible."
(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 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
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¼2½ jk"Vz~h; v/;kid ijh{kk ifj"kn~] ubZ fnYyh }kjk U;wure vgZrk d{kk 1 ls 5 ds lEcU/k esa furfxr vf/klwpuk fnukad 23-08-2010] 29-07-2011] 12-11-2014] 28-11-2014 ¼visafMLd & 2 dh izLrkouk 1-2 esa mfYyf[kr½ rFkk fnukad 28-06-2018 esa fu/kkZfjr vgZrk/kkjh "lgk;d v/;kid HkrhZ ijh{kk 2019" 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 notifications issued by the NCTE and not give effect to any contrary Rule, as follows:-
"There is no manner of doubt that the NCTE, acting as an ''academic authority' under Section 23 of the RTE Act, under the Notification dated 31st March, 2010 issued by the Central Government as well as under Sections 12 and 12A of the NCTE Act, was competent to issue Notifications dated 23 rd August, 2010 and 11th February, 2011. The State Government was under obligation to act as per the said notifications and not to give effect to any contrary 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 the enforcement of the Act of 2009 and the issuance of the notification of 23 August 2010, the qualifications which have been prescribed for appointment of primary teachers must necessarily be those that are stipulated in the notification dated 23 August 2010, as amended by the notification dated 27 August 2011.
11. Undoubtedly, the Rules of 1981 do prescribe the essential qualification for appointment of Assistant Teachers in Junior Basic Schools where education is imparted from Classes I to V. The relevant qualifications which are prescribed in Rule 8 are as follows:
"(ii) Assistant Master and Assistant Mistress of Junior Basic School A Bachelor's Degree from a University established by law in India or a Degree recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Vishist Basic Teachers Certificate (B.T.C.) two years BTC Urdu Special Training Course, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training training course recognised by the Government as equivalent there:
Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course."
12. The qualifications, which have been prescribed by the NCTE in the notification dated 29 July 2011 include Senior Secondary with at least 50% marks together with a 2-year Diploma in Education (Special Education). Once, these qualifications have been prescribed by the NCTE, this would necessarily be binding and it is not open to the State Government to exclude (from the zone of eligibility) the persons who are otherwise qualified in terms of the notification dated 23 August 2010 as amended on 29 July 2011.
13. In this view of the matter, we are of the opinion that the learned Single Judge was in error in coming to the conclusion that since the recruitment was in pursuance of a special drive, the Government was justified in confining the eligibility qualifications only to those who held the BTC qualifications for the reason that such candidates could not be adjusted earlier for want of TET qualification. The passing of the TET was introduced as a mandatory requirement by the notification dated 23 August 2010 issued by the NCTE. Persons who did not fulfill the eligibility conditions prescribed in the notification dated 23 August 2010, as amended on 29 July 2011, were not qualified for consideration for appointment as primary school teachers. Hence, there was no occasion for the State to contend or for that matter the learned Single Judge to accept the submission that in order to adjust such BTC qualified candidates, the present advertisement had been issued. The learned Single Judge held that the appellants could not claim equivalence with those candidates who possess BTC qualification. This, in our view, begs the question because once the Diploma in Education (Special Education) is held to be a qualification which is recognised for appointment of Assistant Teachers for teaching Classes I to V, it would be impermissible for the State Government to exclude them from being considered for appointment. In a special drive or otherwise, it is not open to the State Government to exclude one class of teachers who fulfill the qualifications for eligibility prescribed by the NCTE. Any such action would be impermissible for the simple reason that the exclusive power to prescribe eligibility qualifications for such teachers is vested in the NCTE. Once the NCTE has spoken on the subject, as it has through its notification, those qualifications must govern the eligibility requirement. Jurisdiction and power of the NCTE to do so is now settled beyond any doubt, as noted by the Supreme Court.
(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 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 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 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 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 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 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 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 19.07.2006 inviting applications from candidates desirous of competing in the Jharkhand Eligibility Test (JET). This test is not meant for selection to any post but is Signature Not Verified Digitally signed by SARITA PUROHIT Date: 2019.12.19 conducted to determine the eligibility of the candidates for 12:36:18 IST Reason: appointment as lecturers in universities and colleges of the State of Jharkhand. This test called the State Level Eligibility Test (SLET) is conducted as per the guidelines laid down by the University Grants Commission (UGC).
2. The test consists of three papers - the first two papers are multiple choice questions to be answered on an Optical Mark Reader (OMR). One test is of a general subject and one test is of the subject for which the candidate applies. The third paper is a descriptive type question paper dealing only with the subject selected by the candidate. Relevant portion of the advertisement reads as follows:
"A candidate who does not appear in Paper I will not be permitted to appear in Paper II and Paper III. Paper III will be evaluated only for those candidates who are able to secure the minimum qualifying marks in Paper I and Paper II as per the table given in the following: CATEGORY MINIMUM QUALIFYING MARKS PAPERI PAPERII PAPERI + PAPERII GENERAL/OBC 40 40 100 (50%) PH/VH 35 35 90 (45%) SC/ST 35 35 80 (40%)
3. The writ petitioner obtained 50% marks in Papers I and II but he did not do as well in Paper III. The JPSC fixed a cut off percentage of 60 for Paper III which the writ petitioner did not attain and as such he was declared not successful and, therefore, ineligible to be considered for appointment as lecturer.
4. Aggrieved by the said action, the writ petitioner filed a writ petition before the High Court which allowed the same. The appeal filed by the JPSC before the writ court was also allowed mainly on the ground that the Public Service Commission could not have fixed qualifying marks of 60% and this amounted to changing the rules of the game after the advertisement had been issued and process of selection had started. It held that once the candidate had obtained 50% marks, the candidate could not be disqualified and the JPSC was not bound by the instructions of the UGC in this regard. The High Court also directed that the case of the writ petitioner would be considered on the basis of performance. The High Court held that no cut off marks had been provided for Paper III.
7. As far as the finding of the High Court that the rules of the game were changed after the selection process had started, we are of the considered view that this is not the case as far as the present case is concerned. There were no minimum marks provided for Paper III in the advertisement. This could be done by the moderation committee even at a later stage. This is not a change brought about but an additional aspect brought in while determining the merit of the candidates who are found fit to be eligible for consideration for appointment of Lecturers.
8. In view of the above, we are of the considered opinion that the High Court erred in holding that the JPSC could not fix the minimum marks for Paper III. Hence, we set aside the judgment of the High Court dated 09.11.2016.
(99) In the case in hand, Rule 2 (1) (x) of 1981 Rules empowers the 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 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 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 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 :- 6.5.2020 lakshman