Allahabad High Court
Mohd. Rizwan & Others vs State Of U.P. Thru. Prin. Secy. Basic ... on 29 March, 2019
Equivalent citations: AIRONLINE 2019 ALL 592
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
RESERVED ON 22.02.2019
DELIVERED ON 29.03.2019
1. Case :- SERVICE SINGLE No. - 1188 of 2019
Petitioner :- Mohd. Rizwan & Others
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education, Lko & Ors.
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya,Upendra Nath Misra
Counsel for Respondent :- C.S.C.,Ajay Kumar,Amrendra Nath Tripathi,Anand Mani Tripathi,Durga Prasad Shukla,Manoj Kumar Awasthi,Pradeep Shukla,Prashant Chandra Sr Adv,Ran Vijai Singh,Ravi Kishore Joshi
CONNECTED WITH
2. Case :- SERVICE SINGLE No. - 1389 of 2019
Petitioner :- Ram Sharan Maurya And 276 Ors.
Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha Lucknow & Ors
Counsel for Petitioner :- Laltaprasad Misra,Avdhesh Shukla
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kr. Awasthi
WITH
3. Case :- SERVICE SINGLE No. - 1343 of 2019
Petitioner :- Rajendra Prasad Misra & Ors.
Respondent :- State Of U.P. Special Secy. Basic Shiksha Anubhag Iv & Ors.
Counsel for Petitioner :- Meenakshi Singh Parihar,Anshuman Singh Rathore
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
4. Case :- SERVICE SINGLE No. - 2720 of 2019
Petitioner :- Vandana Singh & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.
Counsel for Petitioner :- Agnihotri Kumar Tripathi,Sushil Prakash Pandey
Counsel for Respondent :- C.S.C.,Ajay Kumay,Manoj KumarAwasthi
5. Case :- SERVICE SINGLE No. - 1383 of 2019
Petitioner :- Santosh Kumar Singh And Ors.
Respondent :- State Of U.P.Thru Spl.Secy.Basic Education And Ors.
Counsel for Petitioner :- Anand Pal Singh,Anshuman Singh Rathore
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K.Awasthi
WITH
6. Case :- SERVICE SINGLE No. - 1386 of 2019
Petitioner :- Sushil Kumar Awasthi & Ors.
Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha & Ors.
Counsel for Petitioner :- Rajeev Kumar Srivastava,Anshuman Singh Rathore
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
7. Case :- SERVICE SINGLE No. - 1367 of 2019
Petitioner :- Km. Renu Singh & Ors.
Respondent :- State Of U.P. Addl. Chief Secy. Basic Education & Ors.
Counsel for Petitioner :- Nand Kishore Patel,Sanjay Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
8. Case :- SERVICE SINGLE No. - 1366 of 2019
Petitioner :- Paras Nath Verma And 338 Ors.
Respondent :- State Of U.P.Thru Addl.Secy.Basic Education And Ors.
Counsel for Petitioner :- Onkar Singh Kushwaha,Himanshu Ragahave
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
9. Case :- SERVICE SINGLE No. - 1390 of 2019
Petitioner :- Shweta Singh & Anr.
Respondent :- State Of U.P. Special Secy. Basic Shiksha Anubhag Iv & Ors.
Counsel for Petitioner :- Meenakshi Singh Parihar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
10. Case :- SERVICE SINGLE No. - 1408 of 2019
Petitioner :- Narendra Singh & Ors.
Respondent :- State Of U.P. Thru Prin Secy Basic Education & Ors.
Counsel for Petitioner :- Shailesh Tripathi,Omkar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
11. Case :- SERVICE SINGLE No. - 1458 of 2019
Petitioner :- Harikesh Kumar Singh & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.
Counsel for Petitioner :- Lakshmana Singh
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
12. Case :- SERVICE SINGLE No. - 1508 of 2019
Petitioner :- Anurag Kumar Yadav & Ors.
Respondent :- State Of U.P. Thru Prin. Secy Basic Education Deptt. & Ors.
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
13. Case :- SERVICE SINGLE No. - 1564 of 2019
Petitioner :- Shobha Yadav & Others
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education Lko & Others
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
14. Case :- SERVICE SINGLE No. - 1569 of 2019
Petitioner :- Kapil Dev Yadav & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education Deptt. & Ors.
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
15. Case :- SERVICE SINGLE No. - 1580 of 2019
Petitioner :- Uttam Kumar & Others
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education Lko & Others
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
16. Case :- SERVICE SINGLE No. - 1588 of 2019
Petitioner :- Virendra Kumar & Others
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education Lko & Others
Counsel for Petitioner :- Avdhesh Shukla,Pramod Kumar Verma
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
17. Case :- SERVICE SINGLE No. - 1595 of 2019
Petitioner :- Kanhiya Bux Singh & Others
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education Lko & Others
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
18. Case :- SERVICE SINGLE No. - 1599 of 2019
Petitioner :- Deepika Mishra & Ors.
Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha Anubhag 2 & Ors.
Counsel for Petitioner :- Badrish Kumar Tripathi
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
19. Case :- SERVICE SINGLE No. - 1601 of 2019
Petitioner :- Pradeep Kumar Yadav & Others
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education Lko & Others
Counsel for Petitioner :- Sukh Deo Singh,Paritosh Shukla
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
20. Case :- SERVICE SINGLE No. - 1604 of 2019
Petitioner :- Kamlesh Kumar & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
21. Case :- SERVICE SINGLE No. - 1619 of 2019
Petitioner :- Lalita Tiwari & Others
Respondent :- State Of U.P. Thru. Secretary Basic Education & Others
Counsel for Petitioner :- Vinod Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
22. Case :- SERVICE SINGLE No. - 1621 of 2019
Petitioner :- Shiv Narayan Verma & Others
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education, Lko & Ors.
Counsel for Petitioner :- Ajai Vikram,Sunil Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
23. Case :- SERVICE SINGLE No. - 1622 of 2019
Petitioner :- Neeraj Yadav & Others
Respondent :- State Of U.P. Thru. Prin.Secy.Basic Education & Others
Counsel for Petitioner :- Manendra Nath Rai,Uzma Afsar
Counsel for Respondent :- C.S.C.,M.K. Awasthi
WITH
24. Case :- SERVICE SINGLE No. - 1623 of 2019
Petitioner :- Awadhesh Kumar Tiwari And Ors.
Respondent :- State Of U.P.Throu.Prin.Secy.Basic Shiksha Lko.And Ors.
Counsel for Petitioner :- Kalika Prasad Pandey,Pawan Kumar Pandey,Pravesh Yadav
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
25. Case :- SERVICE SINGLE No. - 1610 of 2019
Petitioner :- Geeta Jaiswal And Ors.
Respondent :- State Of U.P.Throu.Spl.Secy. Basic Shiksha Lko.And Ors.
Counsel for Petitioner :- Sharad Pathak,Preeti Mala
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kr. Awasthi
WITH
26. Case :- SERVICE SINGLE No. - 1624 of 2019
Petitioner :- Rajendra Prasad & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education Deptt. & Ors.
Counsel for Petitioner :- Sanjay Kumar Singh,Bipin Kumar Rai,Kuldeep Singh Kalhans
Counsel for Respondent :- C.S.C.,Manoj Kumar Awasthi
WITH
27. Case :- SERVICE SINGLE No. - 1625 of 2019
Petitioner :- Suman Devi
Respondent :- State Of U.P. Thru Prin.Secy. Basic Edu. Lucknow And Ors.
Counsel for Petitioner :- Ashok Kumar Yadava
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
28. Case :- SERVICE SINGLE No. - 1647 of 2019
Petitioner :- Raj Kumar
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education, Lko & Ors.
Counsel for Petitioner :- Anil Kumar Pandey
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
29. Case :- SERVICE SINGLE No. - 1648 of 2019
Petitioner :- Nagendra Singh And 40 Ors.
Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha Lko. & Ors.
Counsel for Petitioner :- Harjot Singh,Ajai Kumar,Saurabh Goswami, Vivek Kumar Rai
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
30. Case :- SERVICE SINGLE No. - 1656 of 2019
Petitioner :- Mukta Singh & Ors.
Respondent :- State Of U.P. Special Secy. Basic Shiksha Anubhag-2 & Ors.
Counsel for Petitioner :- Piyush Mishra,Manushresth Misra
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
31. Case :- SERVICE SINGLE No. - 1662 of 2019
Petitioner :- Ravindra Kumar & Ors.
Respondent :- State Of U.P. Thru Addl. Chief Secy. Basic Education & Ors.
Counsel for Petitioner :- Pramod Kumar Pandey,Sanjay Kumar Verma, VimalYadav
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
32. Case :- SERVICE SINGLE No. - 1769 of 2019
Petitioner :- Bechha Lal Yadav & Ors.
Respondent :- State Of U.P. Thru Secy. Shiksha Anubhag-2 & Ors.
Counsel for Petitioner :- Pt. S. Chandra,Vinod Kumar Gupta
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi, Om Prakash Mani Tripathi
WITH
33. Case :- SERVICE SINGLE No. - 1784 of 2019
Petitioner :- Geeta Devi & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.
Counsel for Petitioner :- Jay Prakash Singh
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
34. Case :- SERVICE SINGLE No. - 1876 of 2019
Petitioner :- Suchit Kumar & Ors.
Respondent :- State Of U.P. Thru. Spl.Secy. Basic Education & Ors.
Counsel for Petitioner :- Rajesh Kumar Pathak
Counsel for Respondent :- M.K.Awasthi,Ajay Kumar
WITH
35. Case :- SERVICE SINGLE No. - 1664 of 2019
Petitioner :- Guddu Singh & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Primary Education & Ors.
Counsel for Petitioner :- Dinesh Kumar,Avadhesh Kumar Pathak,Ramesh Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
36. Case :- SERVICE SINGLE No. - 1778 of 2019
Petitioner :- Anoop Kumar Singh & Others
Respondent :- State Of U.P. Thru. Secy. Basic Shiksha Anubhag-2 & Others
Counsel for Petitioner :- Raj Kr Singh Suryvanshi
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
37. Case :- SERVICE SINGLE No. - 1832 of 2019
Petitioner :- Saroj Verma & Anr.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.
Counsel for Petitioner :- Rajesh Kumar Verma,Aditya Vikram Singh
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
38. Case :- SERVICE SINGLE No. - 1865 of 2019
Petitioner :- Pawan Kumar & Ors.
Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha & Ors.
Counsel for Petitioner :- Dinesh Kumar Tripathi,Piyush Mishra
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
39. Case :- SERVICE SINGLE No. - 1869 of 2019
Petitioner :- Ashutosh Pratap Singh & Ors.
Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha & Ors.
Counsel for Petitioner :- Ram Kumar Singh
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
40. Case :- SERVICE SINGLE No. - 1872 of 2019
Petitioner :- Dinesh Kumar & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Primary Education & Ors.
Counsel for Petitioner :- Dinesh Kumar,Ramesh Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
41. Case :- SERVICE SINGLE No. - 1875 of 2019
Petitioner :- Sudha Yadav & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.
Counsel for Petitioner :- Rajesh Kumar Verma,Aditya Vikram Singh
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
42. Case :- SERVICE SINGLE No. - 1666 of 2019
Petitioner :- Ravi Kumar Singh & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Primary Education & Ors.
Counsel for Petitioner :- Dinesh Kumar,Vijay Kumar Asthana
Counsel for Respondent :- C.S.C.,Ajay Kumay,Manoj Kumar Awasthi
WITH
43. Case :- SERVICE SINGLE No. - 1997 of 2019
Petitioner :- Naveen Kumar & Ors.
Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha & Ors.
Counsel for Petitioner :- Mohit Dwivedi,Himanshu Raghave
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
44. Case :- SERVICE SINGLE No. - 2163 of 2019
Petitioner :- Manoj Kumar Pandey & Ors.
Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha Anubhag Ii &Ors.
Counsel for Petitioner :- Himanshu Raghave,Mohit Dwivedi
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
45. Case :- SERVICE SINGLE No. - 2039 of 2019
Petitioner :- Satya Narayan & Ors.
Respondent :- State Of U.P. Thru Spl. Secy. Basic Education & Ors.
Counsel for Petitioner :- Rajeev Kumar Srivastava,Anshuman Singh Rathore
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
46. Case :- SERVICE SINGLE No. - 2132 of 2019
Petitioner :- Ajay Kumar & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Primary Education & Ors.
Counsel for Petitioner :- Dharmendra Kumar Gupta,Dinesh Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
47. Case :- SERVICE SINGLE No. - 2243 of 2019
Petitioner :- Shiv Murat Yadav & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Shiksha & Ors.
Counsel for Petitioner :- Himanshu Hemant Gupta,Akhand Pratap Singh, Naveen Kumar Kashyap
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
48. Case :- SERVICE SINGLE No. - 2261 of 2019
Petitioner :- Vikas Dubey & Ors.
Respondent :- State Of U.P. Thru. Secy. Basic Shiksha Anubhag 2 & Ors.
Counsel for Petitioner :- Gyanendra Kumar Pandey,Apoorv Pandey
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
49. Case :- SERVICE SINGLE No. - 2301 of 2019
Petitioner :- Rubi Srivastava & Ors.
Respondent :- State Of U.P. Thru. Spl. Secy. Basic Shiksha Anubhag 2 & Or
Counsel for Petitioner :- Deo Prakash Srivastava,Puttan Singh
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
50. Case :- SERVICE SINGLE No. - 2312 of 2019
Petitioner :- Shweta Singh & Ors.
Respondent :- State Of U.P. Thru Spl. Secy. Shiksha Anubhag 2 & Ors.
Counsel for Petitioner :- Rakesh Kumar Singh,Pankaj Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
51. Case :- SERVICE SINGLE No. - 2486 of 2019
Petitioner :- Nirmala Verma & Ors.
Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha & Ors.
Counsel for Petitioner :- Piyush Mishra,Vinay Prakash Tiwari
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
52. Case :- SERVICE SINGLE No. - 2572 of 2019
Petitioner :- Sunil Chaturvedi & Ors.
Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha Anubhag 2 & Ors.
Counsel for Petitioner :- Sudhir Kumar Pandey,Rama Niwas Pathak
Counsel for Respondent :- C.S.C.,Manoj Kumar Awasthi
WITH
53. Case :- SERVICE SINGLE No. - 2600 of 2019
Petitioner :- Prakash Chandra & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
54. Case :- SERVICE SINGLE No. - 2601 of 2019
Petitioner :- Arunesh Kumar & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
55. Case :- SERVICE SINGLE No. - 3428 of 2019
Petitioner :- Daya Ram Pal & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.
Counsel for Petitioner :- Aditya Vikram Singh,Rajesh Kumar Verma
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
56. Case :- SERVICE SINGLE No. - 2928 of 2019
Petitioner :- Ved Krishna Tripathi & Ors.
Respondent :- State Of U.P. Thru Secy. Basic Education & Ors.
Counsel for Petitioner :- Praveen Kumar Tripathi
Counsel for Respondent :- C.S.C.,Manoj Kumar Awasthi
WITH
57. Case :- SERVICE SINGLE No. - 2603 of 2019
Petitioner :- Mansha Ram Maurya & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
58. Case :- SERVICE SINGLE No. - 2906 of 2019
Petitioner :- Kasi Chandra & Ors.
Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha, Anubhag 2 & Ors
Counsel for Petitioner :- Sri Niwas Jaiswal
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
59. Case :- SERVICE SINGLE No. - 2697 of 2019
Petitioner :- Rakesh Kumar & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.
Counsel for Petitioner :- Rajesh Kumar Verma,Pawan Kumar Misra
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
60. Case :- SERVICE SINGLE No. - 2731 of 2019
Petitioner :- Mamta Singh & Ors.
Respondent :- State Of U.P.Thru. Special Secy.Basic Shiksha & Ors.
Counsel for Petitioner :- Pramod Kumar Singh
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
61. Case :- SERVICE SINGLE No. - 2848 of 2019
Petitioner :- Rifa Sayeed
Respondent :- State Of U.P. Thru. Spl. Secy. Basic Shiksha Anubhag-2 & Ors
Counsel for Petitioner :- Mohd. Shameem Khan
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
62. Case :- SERVICE SINGLE No. - 2858 of 2019
Petitioner :- Rishi Kumar Agnihotri And Ors.
Respondent :- State Of U.P. Thru Addl.Chief Secy. Basic Education And Ors.
Counsel for Petitioner :- Onkar Singh Kushwaha
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K.Awasthi
WITH
63. Case :- SERVICE SINGLE No. - 2943 of 2019
Petitioner :- Virendra Kumar & Ors.
Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.
Counsel for Petitioner :- Satyendra Kumar Tiwari
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
64. Case :- SERVICE SINGLE No. - 3027 of 2019
Petitioner :- Rudresh Kumar & Ors.
Respondent :- State Of U.P. Thru Addl. Chief Secy. Basic Education & Ors.
Counsel for Petitioner :- Nand Kishore Patel,Sanjay Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
65. Case :- SERVICE SINGLE No. - 3069 of 2019
Petitioner :- Preeti Singh
Respondent :- State Of U.P. Thru. Spl. Secy. Basic Shiksha Anubhag-5 & Ors
Counsel for Petitioner :- Suresh Chandra Srivastava,Savita Tiwari
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
66. Case :- SERVICE SINGLE No. - 3107 of 2019
Petitioner :- Neelu Gupta & Ors.
Respondent :- State Of U.P. Prin. Secy. Primary Education & Ors.
Counsel for Petitioner :- Dinesh Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
67. Case :- SERVICE SINGLE No. - 3577 of 2019
Petitioner :- Deep Shikha Mishra
Respondent :- State Of U.P. Thru Prin.Secy. Edu. Lucknow And Ors.
Counsel for Petitioner :- Ajay Kumar Tripathi
Counsel for Respondent :- C.S.C.,M.K. Awasthi
WITH
68. Case :- SERVICE SINGLE No. - 3586 of 2019
Petitioner :- Rakesh Mohan Tewari And 20 Ors.
Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha Lko. & Ors.
Counsel for Petitioner :- Anurag Misra
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
69. Case :- SERVICE SINGLE No. - 3545 of 2019
Petitioner :- Ashok Kumar Verma And 17 Ors.
Respondent :- State Of U.P. Thru Special Basic Shiksha Lucknow And Ors.
Counsel for Petitioner :- Piyush Mishra,Dinesh Kumar Tripathi
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
70. Case :- SERVICE SINGLE No. - 3621 of 2019
Petitioner :- Shiv Ram Yadav And 8 Ors.
Respondent :- State Of U.P. Thru Special Secy.Basic Shiksha Lucknow & Ors.
Counsel for Petitioner :- Rajeev Kumar Srivastava,Anshuman Singh Rathore
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
71. Case :- SERVICE SINGLE No. - 3622 of 2019
Petitioner :- Jagat Pal Yadav And 23 Ors.
Respondent :- State Of U.P. Thru Prin.Secy.Shiksha Anubhag-2,And Ors.
Counsel for Petitioner :- Satyendra Kumar Mishra,K.P.Pandey
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
72. Case :- SERVICE SINGLE No. - 3673 of 2019
Petitioner :- Deshraj And 63 Ors.
Respondent :- State Of U.P. Thru Prin Secy. Basic Edu. Lko. & Ors.
Counsel for Petitioner :- Ajai Vikram
Counsel for Respondent :- C.S.C.,M.K. Awasthi
WITH
73. Case :- SERVICE SINGLE No. - 3687 of 2019
Petitioner :- Mohammad Kaish Ansari And 29 Ors.
Respondent :- State Of U.P. Thru Prin.Secy.Primary Edu. Lko. & Ors.
Counsel for Petitioner :- Dinesh Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
74. Case :- SERVICE SINGLE No. - 3740 of 2019
Petitioner :- Km Saroj And 50 Ors.
Respondent :- State Of U.P. Thru Addl.Chief Secy.Basic Edu. Lucknow & Ors.
Counsel for Petitioner :- Nand Kishore Patel,Sanjay Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar Yadav,Manoj Kumar Awasthi
WITH
75. Case :- SERVICE SINGLE No. - 3735 of 2019
Petitioner :- Sandeep Mishra And 9 Ors.
Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha Lko. & Ors.
Counsel for Petitioner :- Lalit Kishore Tiwari,Amit Tewari
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
76. Case :- SERVICE SINGLE No. - 3904 of 2019
Petitioner :- Smt. Sarita Tiwari And Another
Respondent :- State Of U.P.Throu.Prin.Secy.Primary Education Lko.And Ors.
Counsel for Petitioner :- Avadhesh Mishra,Nasreen Bano
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K.Awasthi
WITH
77. Case :- SERVICE SINGLE No. - 3908 of 2019
Petitioner :- Sunita Gangwar And Ors.
Respondent :- State Of U.P.Throu.Addl.Chief Secy.Basic Education Lko.& Ors
Counsel for Petitioner :- Onkar Singh Kushwaha
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K.Awasthi
WITH
78. Case :- SERVICE SINGLE No. - 3943 of 2019
Petitioner :- Pramod Kumar & Another
Respondent :- State Of U.P. Thru. Special Secy.Basic Shiksha Lucknow & Ors
Counsel for Petitioner :- Dinesh Kumar Tripathi,Manish Nigam
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
79. Case :- SERVICE SINGLE No. - 4114 of 2019
Petitioner :- Ram Kishor & Others
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. & Others
Counsel for Petitioner :- Prabhat Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
80. Case :- SERVICE SINGLE No. - 4245 of 2019
Petitioner :- Piyush Verma & 9 Others
Respondent :- State Of U.P. Thru. Prin.Secy.,Basic Education & 4 Others
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
81. Case :- SERVICE SINGLE No. - 4505 of 2019
Petitioner :- Vipin Kumar And 16 Ors.
Respondent :- State Of U.P. Thru Special Secy.Basic Edu. Lucknow And Ors.
Counsel for Petitioner :- Rajesh Kumar Pathak
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
82. Case :- SERVICE SINGLE No. - 4640 of 2019
Petitioner :- Reeta Singh And 3 Ors.
Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha Lko. & Ors.
Counsel for Petitioner :- Bhup Chandra Singh,Shiwa Sagar Singh
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
83. Case :- SERVICE SINGLE No. - 4173 of 2019
Petitioner :- Amandeep Kaur And 310 Ors.
Respondent :- State Of U.P. Thru Prin.Secy. Basic Edu. Lucknow And Ors.
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,Manoj Kumar Awasthi
WITH
84. Case :- SERVICE SINGLE No. - 4183 of 2019
Petitioner :- Sunita Yadav And 3 Ors.
Respondent :- State Of U.P. Thru Special Secy. Basic Edu. Lucknow & Ors.
Counsel for Petitioner :- Ajay "Madhavan"
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
85. Case :- SERVICE SINGLE No. - 4785 of 2019
Petitioner :- Deva Nand Pandey And 3 Ors.
Respondent :- State Of U.P. Thru Special Secy. Basic Edu. Lucknow And Ors.
Counsel for Petitioner :- Onkar Singh Kushwaha
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
86. Case :- SERVICE SINGLE No. - 4335 of 2019
Petitioner :- Punam & Ors.
Respondent :- State Of U.P. Thru. Special Secy. Basic Education & Ors.
Counsel for Petitioner :- Onkar Singh Kushwaha
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
87. Case :- SERVICE SINGLE No. - 4002 of 2019
Petitioner :- Pooja And Another
Respondent :- State Of U.P. Thru Addl.Chief Secy. Basic Edu. Lucknow & Ors
Counsel for Petitioner :- Alok Kr. Misra
sel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
88. Case :- SERVICE SINGLE No. - 4117 of 2019
Petitioner :- Seema Devi
Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. & Others
Counsel for Petitioner :- Anupam Dwivedi,Abhishek Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
89. Case :- SERVICE SINGLE No. - 4177 of 2019
Petitioner :- Sunil Kumar And 344 Ors.
Respondent :- State Of U.P. Thru Prin.Secy. Basic Edu. Lucknow And Ors.
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,Manoj Kumar Awasthi
WITH
90. Case :- SERVICE SINGLE No. - 4186 of 2019
Petitioner :- Jugendra Singh And 8 Ors.
Respondent :- State Of U.P. Thru Special Secy. Basic Edu. Lucknow & Ors.
Counsel for Petitioner :- Onkar Singh Kushwaha
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
91. Case :- SERVICE SINGLE No. - 4219 of 2019
Petitioner :- Sadhana Devi And 4 Ors.
Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha Lucknow & Ors
Counsel for Petitioner :- Anshuman Singh Rathore,Rajeev Kumar Srivastava
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
92. Case :- SERVICE SINGLE No. - 4635 of 2019
Petitioner :- Meera Devi And 4 Ors.
Respondent :- State Of U.P. Thru Special Secy. Basic Edu. Lucknow & Ors.
Counsel for Petitioner :- Nand Kishore Patel
Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi
WITH
93. Case :- SERVICE SINGLE No. - 4180 of 2019
Petitioner :- Dharmendra Kumar And 9 Ors.
Respondent :- State Of U.P. Thru Prin.Secy. Primary Edu. Lucknow And Ors.
Counsel for Petitioner :- Dinesh Kumar
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
94. Case :- SERVICE SINGLE No. - 4187 of 2019
Petitioner :- Savita Singh And 326 Ors.
Respondent :- State Of U.P. Thru Prin Secy. Basic Edu. Lucknow & Ors.
Counsel for Petitioner :- Amit Kr. Singh Bhadauriya
Counsel for Respondent :- C.S.C.,M.K. Awasthi
WITH
95. Case :- SERVICE SINGLE No. - 4491 of 2019
Petitioner :- Nisha Pandey And 2 Ors.
Respondent :- State Of U.P.Thru Special Secy. Basic Shiksha Lucknow & Ors.
Counsel for Petitioner :- Neelesh Kumar,Manish Nigam,Prabhat Mishra
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
96. Case :- SERVICE SINGLE No. - 4519 of 2019
Petitioner :- Neetu Singh
Respondent :- State Of U.P. Thru Prin.Secy. Basic Edu. Lucknow And Ors.
Counsel for Petitioner :- Sudhir Kumar Singh,Dhyan Pal Singh
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
97. Case :- SERVICE SINGLE No. - 4671 of 2019
Petitioner :- Smt. Namarata Singh
Respondent :- State Of U.P. Thru Special Secy.Basic Shiksha Lucknow & Ors.
Counsel for Petitioner :- Anurag Misra
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
98. Case :- SERVICE SINGLE No. - 4672 of 2019
Petitioner :- Alok Kumar Rastogi
Respondent :- State Of U.P. Thru Secy.Basic Edu. Lucknow And Ors.
Counsel for Petitioner :- Piyush Mishra
Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi
WITH
99. Case :- SERVICE SINGLE No. - 5292 of 2019
Petitioner :- Girjesh Kumar Mishra (Roll No. 63630704636) And Ors.
Respondent :- State Of U.P. Thru Secy. Basic Edu. Lucknow And Ors.
Counsel for Petitioner :- Sooraj Lal
Counsel for Respondent :- C.S.C.,M.K. Awasthi
******
Hon'ble Rajesh Singh Chauhan,J.
1. The order under challenge is Government Order bearing No.46/68-4-2019-2056/2019 dated 7.1.2019 issued by the Special Secretary, Basic Education Anubhag-4, Government of U.P., Lucknow fixing the minimum qualifying marks for Assistant Teacher Recruitment Examination, 2019 as 65 % for general category and 60% for reserved category. Undisputedly, no minimum qualifying marks have been fixed vide Government Order dated 01.12.2018 and notification/ advertisement dated 05.12.2018, pursuant to which, the examination in question has been conducted on 6.1.2019. Undisputedly, the exercise for fixing minimum qualifying marks have been started pursuant to the letter bearing no. B.Sh.P.-16426-27/2018-19 dated 5.1.2019 preferred by the Secretary, Board of Basic Education to the Government making request for fixation of minimum qualifying marks for the examination in question, meaning thereby, the State Government must be intending something other way to declare the result of Assistant Teacher Examination, 2019.
2. Since the issue involved in these batch of writ petitions is common, therefore, all these writ petitions are being decided by the common judgment. Learned counsel for the respective parties are also agreeable that all these writ petitions be decided by the common judgment.
3. The prayers of all the writ petitions are almost common, which are as under:-
I. A writ in the nature of certiorari be issued quashing the Government Order dated 7.1.2019.
II. A writ in the nature of mandamus be issued directing the Secretary, Examination Regulatory Authority to declare the result of Assistant Teacher Recruitment Examination, 2019 for 69,000/- vacancies in terms of Government Order dated 1.12.2018.
4. In Writ Petition No.2720 (S/S) of 2019 since the process of taking decision to fix the minimum qualifying marks vide Government Order dated 7.1.2019 has been impeached, besides above relief, therefore it has been requested that before quashing the Government Order dated 7.1.2019, relevant records be also summoned.
5. To deal with the issue there are some Act, Rules, Regulations, Amended Rules which have been applied herein, therefore, those have been reproduced herein below:
"A. The Uttar Pradesh Basic Education Act, 1972:
2(i)(b) "basic education" means education up to the eighth class imparted in schools other than high schools or intermediate college, and the expression "basic schools" shall be construed accordingly;
2(i)(c) "Board" means the Uttar Pradesh Board of Basic Education constituted under Section 3;
2(i)(e) "Local body" means the [Zila Panchayat or Municipality] as the case may be;
[2(i)(f) "Municipality" means a Nagar Panchayat, Municipal Council or Municipal Corporation, as the case may be.
3. Constitution of Board.-
(3) The Board shall consist of the following members, namely -
(a) the Director, ex officio, who shall be the chairman;
(b) two persons to be nominated by the State Government from amongst the Adhyakshas, if any, of [Zila Panchayats established under Section 17 of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961];
(c) one person to be nominated by the State Government from amongst the Nagar Pramukhs, if any, of the [Corporations constituted under Section 9 of the Uttar Pradesh Municipal Corporation Act, 1959];
(d) one person to be nominated by the State Government from amongst the Presidents, if any, of the [Municipal Council and Nagar Panchayats established under the Uttar Pradesh Municipalities Act, 1916];
(e) the Secretary to the State Government in the Finance Department, ex officio;
(f) the Principal, State Institute of Education, ex officio;
[(f1) the Secretary, Board of High School and Intermediate Education, Allahabad, ex officio;
(f2) the President of the Uttar Pradesh Prathamik Shikshak Sangh, ex officio;]
(g) two educationists to be nominated by the State Government;
(h) an officer not below the rank of Deputy Director of Education, to be nominated by the State Government, who shall be the Member Secretary.
4. Function of the Board. - (1) Subject to the provisions of this Act it shall be the function of the Board to organise, co-ordinate and control the imparting of basic education and teachers' training therefor in the State, to raise its standards and to correlate it with the system of education as a whole in the State.
(2) Without prejudice to the generality of the provisions of sub- section (1), the Board shall, in particular, have power -
(a) to prescribe the courses of instruction and books for basic education and teachers' training therefor;
(b) to conduct the junior high school and basic training certificate examinations and such other examination as the State Government may from time to time by general or special order assign to it and to grant diplomas or certificates to candidates successful at such examinations [(c) to lay down, by general or special orders in that behalf, norms relating to the establishment of institutions by [the Gaon Shiksha Samitis or Municipalities and to superintend Gaon Shiksha Samitis, Gram Panchayats and Municipalities] in respect of the administration of institutions, for imparting instruction and preparing candidates for admission to examinations conducted by the Board];
[(cc) [* * *]
(d) to exercise supervision and control over basic schools, [District Institute of Education and Training], basic training certificate units and the State Institute of Education;
[(e) to accord approval (with or without modification) to the schemes prepared by the [Gaon Shiksha Samitis, Zila Panchayats or Municipalities] for the development, expansion and improvement of and research in basic education in any district or in the State or in any part thereof];
(f) to acquire, hold and dispose of any property, whether movable, or immovable [* * *];
(g) to receive grants, subventions and loans from the State Government;
[(g1) subject to the general control of the State Government to issue directions not inconsistent with this Act, to Gaon Shiksha Samitis, Gram Panchayats, Zila Panchayats or Municipalities in the performance of their functions under this Act];"
(g2) [* * *]
(h) to take all such steps as may be necessary or convenient for, or may be incidental to the exercise of any power, or the discharge of any function or duty conferred or imposed on it by this Act :
[Provided that the courses of instruction and books prescribed and institutions recognised before the commencement of this Act shall be deemed to be prescribed or recognised by the Board under this Act.] [(3) [* * *]
13. Control by the State Government. -(1) The Board shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act.
(2) If in, or in connection with, the exercise of any of its powers and discharge of any of the functions by the Board under this Act, any dispute arises between the Board and the State Government, or between the Board and any local body, the decision of the State Government on such dispute shall be final and binding on the Board or the local body, as the case may be.
(3) The Board or any local body shall furnish to the State Government such reports, returns and other information, as the State Government may from time to time require for the purposes of this Act.
[13A. Overriding effect. - Notwithstanding anything contained in the United Provinces Panchayat Raj Act, 1947, the Uttar Pradesh Municipalities Act, 1916 and the Uttar Pradesh Municipal Corporation Act, 1959, the provisions of this Act shall have effect.]"
B. U.P. Basic Education (Teachers) Service Rules, 1981:
"4. Strength of the Service.- (1) There shall be separate cadres of service under these rules for each local area.
(2) The strength of the cadre of the teaching staff pertaining to a local area and the number of the posts in the cadre shall be such as may be determined by the Board from time to time with the previous approval of the State Government :
Provided that the appointing authority may leave unfilled or the Board may hold in abeyance any post or class of posts without thereby entitling any person to compensation:
Provided further that the Board may, with the previous approval of the State Government, create from time to time such number of temporary posts as it may deem fit.
5. Sources of recruitment.- The mode of recruitment to the various categories of posts mentioned below shall be as follows :
(a)
(i) Mistresses of Nursery Schools By direct recruitment as provided in Rules 14 and 15;
(ii) Assistant Masters and Assistant Mistresses of Junior Basic Schools
(b)
(i) Headmistresses of Nursery Schools By promotion as provided in Rule 18;
(ii) Head Masters and Head Mistresses of Junior Basic Schools By promotion as provided in Rule 18;
(iii) Assistant Masters of Senior Basic Schools By promotion as provided in Rule 18;
(iv) Assistant Mistresses of Senior Basic Schools By promotion as provided in Rule 18;
(v) Head Masters of Senior Basic Schools By promotion as provided in Rule 18;
(vi) Head Mistresses of Senior Basic Schools By promotion as provided in Rule 18;
Provided that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv) above, appointment may be made by direct recruitment in the manner laid down in Rule 15.
8. Academic Qualifications. - (1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be as shown below against each-:
Post Academic Qualification
(i) Mistress of Nursery Schools Certificate of teaching (Nursery) from a recognised training institution of Uttar Pradesh and any other training course recognised by the Government as equivalent thereto.
(ii) Assistant Master and Assistant Mistress of Junior Basic School A Bachelors' 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, Vishisht Basic Teacher's 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 course recognized by the Government as equivalent thereto.
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.
(2) The essential qualification of candidates for appointment to a post referred to in sub-clause (iii) and (iv) of clause (h) of Rule 5 for teaching Science, Mathematics, Craft or any language other than Hindi, and Urdu shall be as follows -
(i) A Bachelor's Degree from a University established by law in India or a Degree recognised by the Government as equivalent thereto with Science, Mathematics, Craft or particular language, as the case may be, as one of the subjects, and
(ii) Training qualification consisting of Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other Training Course recognised by the Government as equivalent thereto.
(3) The minimum experience of candidates for promotion to a post referred to in clause (b) of Rule 5 shall by as shown below against each -
Post Experience
(i) Head mistress of Nursery School At least five years' teaching experience as permanent Mistress of Nursery School.
(ii) Head master or Headmistress of Junior Basic Schools and Assistant Master or Assistant Mistress of Senior Basic School At least five years' teaching experience as permanent Assistant Mistress or Assistant Master of Junior Basic School, Assistant Master or Assistant Mistress of Junior Basic School and Assistant Master or Assistant Mistress of Senior Basic School.
(iii) Head master or Headmistress for Senior Basic School At least three years' experience as permanent Headmaster or Headmistress of Junior Basic School or Permanent Assistant Master or Assistant Mistress of Senior Basic School, as the case may be:
Provided that if sufficient number of suitable or eligible candidates are not available for promotion to the posts mentioned at serial numbers (ii) and (iii), the field of eligibility may be extended by the Board by giving relaxation in the period of experience.
(4) The essential qualification of candidates for appointment to the posts referred to in clause (a) and sub-clauses (iii) and (iv) of clause (b) of Rule 5 for teaching Urdu Language shall be as follows:-
(i) A Bachelor's Degree from a University established by a law in India or a Degree recognised by the Government as equivalent thereto with Urdu as one of the subjects.
Note- A candidate who does not possess the aforesaid qualification in Urdu, shall be eligible for appointment, if he possesses a Master's Degree in Urdu.
(ii) Basic Teacher's Certificate from any of the training centres in Lucknow, Agra, Mawana in district Meerut and Sakaldiha in district Chandauli established by the Government for imparting training for teacher Urdu or any other training qualification recognised by the Government as equivalent thereto.
(5) The essential qualifications of candidates having proficiency in Urdu for appointment to the posts referred to in sub-clause (ii) of clause (a) of Rule 5 for teaching in Urdu medium shall be as follows:-
(i) A Bachelors Degree from a University established by law in India or a Degree recognised by the Government as equivalent thereto. The qualifications for proficiency in Urdu will be such as may be prescribed from time to time by the Government.
(ii) Training qualification of two years B.T.C. Urdu Special Training course.
14. Determination of vacancies and preparation of list.- (1) 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, Dependants of freedom-fighters and other categories under Rule 9 and notify the vacancies to the Employment Exchange and in at least two newspapers having adequate circulation in the State as well as in the concerned district inviting applications from candidates possessing prescribed training qualification from the district concerned.
(2) The appointing authority shall scrutinise the applications received in pursuance of the advertisement and the names of candidates received from the Employment Exchange and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment.
(3) The Regional Assistant Director of Education (Basic) may, on the application of a candidate, and for reasons to be recorded, direct that his name be included at the bottom of the list prepared under sub-rule(2).
(4) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have passed the said training course later and the candidates who have passed the training course in a particular year shall be arranged in accordance with the quality points specified in the appendix.
(5) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2).
(6) The list prepared under sub-rule (2) and arranged in accordance with sub rule (4) shall be forwarded by the appointing authority to the selection committee."
(C) U.P. Basic Education Rules, 1981 (20th Amendment) Notified on 09.11.2017.
Some definitions and relevant provisions of the aforesaid Twentieth Amendment Rules i.e. Rule 2 (1) (o) (s) (t) (4) (v) (w) (x) (y) 8, 14 and Appendix-I & Appendix-II are necessary to be indicated herein below, which are as under:-
"(s). "Teacher Eligibility Test" means the Teacher Eligibility Test conducted by the Government or by the Government of India.
(t). "Qualifying marks in Teacher Eligibility Test" Qualifying marks in Teacher Eligibility Test will be such as may be prescribed from time to time by the National Council for Teacher Education, New Delhi.
(v) "Shiksha Mitra" means a person working as such in junior basic schools run by Basic Shiksha Parishad under the Government Orders prior to the commencement of Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011.
Or a person who has been a Shiksha Mitra and appointed as an Assistant Teacher in Junior Basic Schools run by Basic Shiksha Parishad and reverted to work as Shiksha Mitra in pursuance of the judgment of the Apex Court in SLP No.32599/2015 State of U.P. and Others Vs. Anand Kumar Yadav and Others.
(w) "Assistant Teacher Recruitment Examination" means a written examination conducted by the Government for recruitment of a person in junior basic schools run by Basic Shiksha Parishad.
(x) "Qualifying Marks of Assistant Teacher Recruitment Examination" means such minimum marks as may be determined from time to time by the Government.
(y) "Guidelines of Assistant Teacher Recruitment Examination" means such guidelines as may be determined from time to time by the Academic Authority with the approval of the Government."
Rule 8 of the aforesaid Twentieth Amendment Rules provides about the academic qualifications. Rules 8 (ii) provides academic qualifications for Assistant Master and Assistant Mistresses of Junior Basic Schools, which are as under:-
"ii. (a) Bachelors degree for a University established by law in India or a degree recognized by the Government equivalent thereto together with any other training course recognized by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate (BTC), two years BTC (Urdu) Vishist BTC 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.
(ii) (b) a Trainee Teacher who has completed successfully six months special training programme in elementary education recognized by NCTE."
Rule 14 of the Twentieth Amendment Rules defines Determination of vacancies and preparation of list.
"14 (1) (a) Determination of vacancies and preparation of list, 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 at least two leading daily news papers having adequate circulation in the State as well as in concerned district inviting applications from candidates possession prescribed training qualification from the district concerned 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.
Certificate of successful completion of six months special training in elementary education, shall be appointed as assistant teachers in Junior basic schools against substantive post in regular pay-scale. The appointing authority will be duty bound to appoint the trainee teachers as assistant teachers within one month of issue of certificate of successful completion of said training.
14 (2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement under clause (a) or (b) of sub-rule (I) of rule 14 and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment."
In the aforesaid Twentieth Amendment Rules, one Appendix-I is appended which defines quality points and weightage for selection of the candidates as under:-
"[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 x 10 100
2. Intermediate Percentage of marks in the examination x 10 100
3. Graduation Degree Percentage of marks in the examination x 10 100
4. B.T.C. Training Percentage of marks in the examination x 10 100
5. Assistant Teacher recruitment Examination Percentage of marks in the examination x 60 100
6. Weightage Teaching experiences as Shiksha Mitra or as teacher working as such in junior basic schools run by Basic Shiksha Parishad 2.5 marks per completed teaching year, upto maximum 25 marks, which ever is less Appendix -II [See Rule 14(3)(b)] Quality Points for Selection of Candidates Name of Examination / Degree Quality Points High School Percentage of Marks 10 Intermediate Percentage of Marks x 2 10 Graduation Degree Percentage of Marks x 4 10 Bachelor of Education (B.Ed.) /B.Ed. (Special Education) / B.Ed. (Special Education) Percentage of Marks x 3 10 Note:- 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. If two or more candidates have equal quality point; and age, the name of the candidate shall be placed in the list in English alphabetical order."
(D) U.P. Basic Education (Teachers) Service Rules, 1981 by introducing 22nd Amendment notifying on 15.03.2018:
The validity of aforesaid 20th Amendment was challenged before this Court on the ground that Sate is trying to add some new qualification of written examination, over and above those provided by the National Council for Teachers Education ( NCTE). It appears that the State Government realized its mistake and vide notification dated 15.3.2018 has again amended the Rules, 1981, the qualifying examination was taken out from the list of mandatory qualification prescribed under Rule 8 and the same was inserted under Rule 14 which provides for Procedure for Preparation of Merit List. For this purpose the relevant amendment has been introduced by deleting Clause (a) and (c) of Rule 8 of Rules, 1981 inserting some new condition in Rule 14(1)(a) and 14(3)(a) of the Rules, 1981 which reads as follows:
"B- Rule 8(1)(ii)(a) & (c):- " and passed Assistant Teachers Recruitment Examination conducted by the Government" (Deleted).
Rule 14(1)(a): " and passed Assistant Teacher recruitment Examination conducted by the Government" (Inserted) Rule 14(1)(b) - Recruitment Examination :- for other notified vacancy under clause (a) for recruitment of Assistant Master or Assistant Mistress of Junior Basic School, a separate Assistant Teacher Recruitment Examination shall be conducted by the Government. (Inserted).
Rule 14(3)(a)- The name of candidates in the list prepared under sub-section (2) in accordance with clause (a) of Sub-Rule 14 shall then be arranged in accordance with the equity points and weightage as specified in the Appendix-I. Provided that if two or more candidates obtained equal marks, the candidate senior in the age shall be placed higher.
Provided that a person working as Shiksha Mitra in Junior School run by Basic Shiksha Parishad shall be given weightage in the recruitment of the post of Assistant Teacher, only in two consecutive Assistant Teacher Examination conducted by the Government: After July 25, 2015."
It would be apt to consider some other legal position and prescribed under the 22nd Amendment.
"Rule 2(1)(u)- Trainee Teacher means a candidate who has passed B.Ed. / B.Ed. (Special Education), D.Ed (Special Education) and has also passed the Teacher Eligibility Test and has been selected for eventual appointment as Assistant Teacher in the Junior Basic School after successful completion of six months special training program in elementary education recognized by the National Council of Teachers Education (NCTE).
Rule 2(1)(w)- "Assistant Teacher Recruitment Examination" means a written examination conducted by the 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 by the Government.
Rule 8(iii)-Trainee Teacher :- Bachelor degree from a B & I University established by law in India or a degree recognized by the Government equivalent thereto ( page 144) together with B.Ed. / B.Ed. (Special Education)/ D.Ed. (Special Education) qualification and passed the T.E.T. conducted by the Government Order passed by the Government of India.
However, in case of B.Ed. (Special Education) / D.Ed. (Special Education) a course recognized by Rehabilitation Council of India (RCB) only shall be considered.
Rule 14 and Procedure of Selection:
Rule 14(1)(a)- Determination of vacancies and Preparation of list. In respect of appointment, by direct recruitment to the post of mistress of nursery school and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of Rule 5, appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to scheduled caste / scheduled tribes and other backward classes and other categories under Rule 9 and published in at least two leading newspapers having adequate circulation in the State as well as in the concerned district inviting applications from candidates possessing the prescribed training and qualifications and pass Teachers Eligibility Test, conducted by the Government of India and passed Assistant Teacher Recruitment Examination conducted by the Government.
(b) Recruitment Examination- For other notified vacancies under clause (a) for recruitment of Assistant Master or Assistant Mistress of Junior Basic School, a separate Assistant Teacher Recruitment Examination shall be conducted by the Government.
(c) The Government may from time to time decide to appoint candidates who are Graduates along with B.Ed./B.Ed. (Special Education)/D.Ed. (Special Education) and who have also passed Teacher Eligibility Test conducted by the Government or by the Government of India, as Trainee Teachers. These candidates after appointment will have to undergo six months special training program in elementary education recognized by the National Council of Teachers Education ( N.C.T.E.)...
(d) The Trainee Teachers, after obtaining certificate of successful completion of six months special training in elementary education, shall be appointed as assistant teachers in junior basic schools against substantive post in regular pay-scale. The appointing authority will be duty bound to appoint the trainee teachers as assistant teachers within one month of issue of certificate of successful completion of said training.
14(2) Preparation of Merit List- The appointing authority shall scrutinize the applications received in purswuance 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.
14(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-1:
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 School run by Basic Shiksha Parishad shall be given weightage for the recruitment of the post of Assistant Teacher, only in two consecutive Assistant Teacher Recruitment Examination conducted by the Government after July 25,2017."
6. The perusal of the aforesaid provision of law reveals that the candidates having B.Ed. qualification etc. can be appointed as trainee teachers and they can also be appointed on the post of Assistant Teacher after those candidates successfully completes six months special training program in the elementary education. However, in the present selection the candidates possessing B.Ed. qualification etc. have been permitted to appear but how much seats have been reserved for those candidates has not been disclosed as only this much has been disclosed that there are total 69000 vacancies for Assistant Teachers.
7. Since some abbreviations have been used in this order, therefore, it would be apposite to explain those abbreviations here-in-below:-
ABBREVIATIONS
1.
A.T.R.E .
Assistant Teacher Recruitment Examination.
2. Act, 1972 Uttar Pradesh Basic Education Act, 1972.
3. Rules, 1981 Uttar Pradesh Basic Education (Teachers) Service Rules, 1981.
4. 20thAmendment Rules, 2017 The Uttar Pradesh Basic Education (Teachers) Service (Twentieth Amendment) Rules, 2017 [Notification 9.11.2017].
5. 22nd Amendment, 2018 The Uttar Pradesh Basic Education (Teachers) Service (Twenty Second Amendment) Rules, 2018 [Notified on 15.3.2018].
6. N.C.T.E. National Council for Teachers Education.
7. N.C.T.E. Act,1993 National Council for Teachers Education Act, 1993.
8. N.C.T.E. Regulation, 2001 National Council for Teachers Education (Determination of Minimum Qualification for Recruitment of Teachers in the School) Regulations, 2001.
9. T.E.T. Teachers Eligibility Test
10. R.T.E. Act, 2009 Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009)
11. R.T.E. Rules, 2010 Right of Children to Free and Compulsory Education Rules, 2010.
12. N.C.T.E. Regulations, 2009 National Council for Teachers Education (Determination of Minimum Qualification for Recruitment of Teachers in the School) Regulations, 2009.
13. U.P.R.T.E. Rules, 2011 Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011.
14. Rules of Business, 1975 Uttar Pradesh Distribution of Works Rules, 1975 [U.P. Karya (Batwara) Niyamawali, 1975]
8. Heard learned counsel for the petitioners Sri Upendra Nath Mishra assisted by Sri Amit Kumar Singh Bhadauriya, Dr. L.P. Mishra, learned counsel assisted by Sri Awadhesh Shukla, Sri H.G.S. Parihar, learned Senior Advocate assisted by Ms. Meenakshi Parihar Singh, Sri H.N. Singh, learned Senior Advocate, Sri Radha Kant Ojha, learned Senior Advocate and S/Sri Anshuman Singh Rathore, M.N. Rai, R.K. Singh, Nand Kishore Patel, Omkar Singh, Sanjay Kumar, Rahul Kumar Singh, Bipin Kumar Rai, Agnihotri Kumar Tripathi, Sushil Prakash Pandey, Anand Pal Singh, Rajeev Kumar Srivastava, Sanjay Kumar, Himanshu Ragahave, Shailesh Tripathi, Lakshmana Singh, Pramod Kumar Verma, Badrish Kumar Tripathi, Vinod Kumar, Ajai Vikram, Sunil Kumar, Kalika Prasad Pandey, Pawan Kumar Pandey, Pravesh Yadav, Sharad Pathak, Sanjay Kumar Singh, Bipin Kumar Rai, Kuldeep Singh Kalhans, Ashok Kumar Yadav, Harjot Singh, Ajai Kumar, Saurabh Goswami, Vivek Kumar Rai, Pt. S. Chandra, Vinod Kumar Gupta, Jay Prakash Singh, Rajesh Kumar Pathak, Dinesh Kumar, Raj Kumar Singh Suryavanshi, Rajesh Kumar Verma, Aditya Vikram Singh, Dinesh Kumar Tripathi, Piyush Mishra, Ram Kumar Singh, Mohit Dwivedi, Dharmendra Kumar Gupta, Himanshu Hemant Gupta, Akhand Pratap Singh, Naveen Kumar Kashyap, Gyanendra Kumar Pandey, Apoorv Pandey, Deo Prakash Srivastava, Puttan Singh, Rakesh Kumar Singh, Pankaj Kumar, Piyush Mishra, Vinay Prakash Tiwari, Sudhir Kumar Pandey, Rama Niwas Pathak, Rajesh Kumar Verma, Praveen Kumar Tripathi, Sri Niwas Jaiswal, Mohd. Shameem Khan, Onkar Singh Kushwaha, Satyendra Kumar Tiwari, Suresh Chandra Srivastava, Savita Tiwari, Dinesh Kumar, Ajay Kumar Tripathi, Anurag Misra, Ajai Vikram, Lalit Kishore Tiwari, Amit Tewari, Bhup Chandra Singh, Shiwa Sagar Singh, Ajay "Madhavan", Alok Kr. Misra, Anupam Dwivedi, Abhishek Kumar, Neelesh Kumar, Manish Nigam, Prabhat Mishra, Sudhir Kumar Singh,Dhyan Pal Singh, Sooraj Lal, learned counsel appearing for the petitioners in the aforesaid writ petitions as well as Sri Prashant Chandra, learned Senior Advocate assisted by Sri Shree Prakash Singh, learned Chief Standing Counsel and Sri Ran Vijay Singh, learned Addl. Chief Standing Counsel for the State-respondents as well as S/Sri A.M. Tripathi, Ajay Kumar, Durga Prasad Shukla, Manoj Kumar Awasthi, Pradeep Shukla, Ravi Kishore Joshi, Om Prakash Mani Tripathi, learned counsel for other opposite parties and Sri Anil Tiwari, learned Senior Advocate, assisted by Sri Amrendra Nath Tripathi has advanced his arguments as intervener.
9. Sri Upendra Nath Mishra, learned counsel for the petitioners, has proposed five issues for consideration of this Court 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?
10. All the learned counsel for the parties have argued on the aforesaid legal proposition, but Sri H.N. Singh, learned Senior Advocate, Dr. L.P. Misra and Sri Radha Kant Ojha, learned Senior Advocate have proposed some more questions for consideration of this Court, which would be dealt separately while dealing those arguments.
Brief facts of the case
11. The petitioners of these batch of writ petition are Shiksha Mitras. On 26.5.1999 a Government Order was issued by the State Government for engagement of Shiksha Mitras and thereafter time to time Government Orders were issued expanding the scheme of Shiksha Mitras.
12. The present petitioners have passed special training course of two years as Teachers Basic Training Certificate through distant education. They are graduate having training qualification of Teachers Basic Training Certifiecate and also passed Teachers Eligibility Test conducted by the Government.
13. As per learned counsel for the petitioners the petitioners possess all the minimum qualifications required for the appointment of Assistant Teacher prescribed under the amended service rules of Rules, 1981. On 23.8.2010 the NCTE has framed guidelines under sub-section (1) of section 23 of Right of Children to Free and Compulsory Act, 2009, according to which the minimum qualification for a person to be eligible for the appointment as teacher in clause I to VIII is that he / she should pass Teachers Eligibility Test which will be conducted by the appropriate government.
14. It has been noted that a very long drawn litigation took place in respect of absorption of Shiksha Mitras as Assistant Teachers and ultimately the same was decided by the Full Bench of this Court vide its judgment and order dated 12.9.2015 rendered in W.P. No. 34833 of 2014 i.e. Anand Kumar Yadav vs. State of U.P. & others. Thereafter the aforesaid matter went in appeal before the Hon'ble Apex Court bearing Civil Appeal No. 9529 of 2017 : Anand Kumar Yadav vs. State of U.P. and the Hon'ble Apex Court vide judgment and order dated 25.7.2017 affirmed the judgment and order dated 12.9.2015 passed by the Full Bench of this Court holding that the Shiksha Mitras were never appointed as teachers as per applicable qualifications and are also not covered by regularisation order under section 23(2) of R.T.E. Act, they could not be appointed as teachers in the breach of section 23(1) of the said Act. The State is not competent to relax the qualification.
15. Now, I am going to consider the contentions and submissions of learned counsel for the respective parties.
16. So as to develop his proposed issues No.1 and 2, as aforesaid, Mr. Upendra Nath Misra, has referred paras-37 and 38 of the writ petition. In para-37, Sri Misra has mainly submitted that the first selection notified by the advertisement dated 06.05.2018 held for filling up the vacancies of 68,500 was completed with 45% and 40% minimum qualifying marks for general and reserved category candidates respectively and consequently about 41556 candidates including Shiksha Mitras have been selected. Later on, when so many vacancies were left over, the State Government vide Government Order dated 25.01.2018 reduced the minimum qualifying marks as 33% and 30% of general category and the reserved category respectively. However, such Government Order dated 21.05.2018 has been stayed by this Court on the principles that the rule of game may not be changed after the game starts. But in any case, as the State Government earlier has fixed 45% and 40% and later on 33% and 30% for general category and reserved category candidates respectively, minimum qualifying marks, therefore, vide Government Order dated 07.01.2019 the 'minimum' qualifying marks may not be extremely high as 65% and 60% for both the aforesaid categories. Mr. Misra has further submitted that T.E.T. qualified Shiksha Mitras who have appeared in first selection and could not be finally selected and are appearing in the present examination, therefore, they may not be treated differently being a similar group, therefore, this amounts to give different treatment to the similarly situated persons, and therefore, is hit by the voice of regional classifications and hostile discrimination, hence, the Government Order dated 07.01.2019 being discriminatory, arbitrary and violative of Articles 14 and 16 of the Constitution of India. Sri Misra has drawn attention of this Court towards paras-28 and 29 of the counter affidavit submitting that reply to the contents of paras-37 and 38 of the writ petition has not properly been given. Therefore, the contents of the writ petition may be deemed to have been acceptable to the answering opposite parties. In para-22 of the rejoinder affidavit, Sri U.N. Misra has reiterated his contents. Replying the contention of the State-respondents that the legitimate expectation expressed in para-37 of the writ petition has unnecessarily to yield to public interest and compromising on merits is subservient to public interest, Sri U.N. Misra has submitted that it is not open for the State Authorities to raise it dig on rejuvenating public interest in raising 'minimum' qualifying marks to 65% and 60% and if the previous selection of 2018 was held ignoring merits and if the public interest was compromised by the State at the time of holding first of the two consecutive recruitment offered to the Shiksha Mitras under the orders of Hon'ble Apex Court. He has further submitted that fixing two different yardstick / bench marks/ minimum qualifying marks for two consecutive written examinations offered to the Shiksha Mitras under the order of the Court, without having any valid and cogent reasons or justification amounts to giving different treatment to the similarly situated persons.
17. In support of his contention that giving different treatment to two group of identically situated person amongst to unreasonable classifications and hostile discrimination, Mr. Misra has placed reliance of the dictium of Hon'ble Apex Court in re:(i) Food Corporation of India and others vs. Ashis Kumar Ganguly and others reported in (2009) 7 SCC 734 and (ii) Subramanian Swamy vs. Director, Central Bureau of Investigation (C.B.I.) and another reported in (2014) 8 SCC 682.
18. Hon'ble Apex Court in re: Food Corporation of India and others vs. Ashis Kumar Ganguly and others reported in (2009) 7 SCC 734. The relevant paras-29 and 37 of the said judgment are being reproduced here-in-below:-
"29. A statutory authority or an administrative authority must exercise its jurisdiction one way or the other so as to enable the employees to take recourse to such remedies as are available to them in law, if they are aggrieved thereby. The question which, however, arises for consideration is as to whether having exercised its jurisdiction in favour of a class of employees, a statutory authority can deny a similar relief to another class of employees. In a case of this nature, in our opinion, the writ court was entitled to declare such a stand taken by the statutory authority as discriminatory on arriving at a finding that both the classes are entitled to the benefit of a statutory rule.
37. In a case of this nature, legal right of the respondents emanated from violation of the equality clause contained in Article 14. If they were otherwise similarly situated, there was absolutely no reason why having regard to the provisions contained in Article 39-A of the Constitution of India, the respondents should be treated differently. It is, therefore, not a case where persons differently situated are being treated differently as was submitted by Mr. Saran."
19. Hon'ble Apex Court in re: Subramanian Swamy vs. Director, Central Bureau of Investigation (C.B.I.) and another reported in (2014) 8 SCC 682. The relevant paras-44, 45, 47, 48 & 68 of the judgment are being reproduced here-in-below:-
"44. In Vithal Rao30, the five-Judge Constitution Bench had an occasion to consider the test of reasonableness under Article14 of the Constitution. It noted that "26.......the State can make a reasonable classification for the purpose of legislation and that the classification in order to be reasonable must satisfy two tests: (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question.'"
The Court emphasized that in this regard object itself should be lawful and it cannot be discriminatory. If the object is to discriminate against one section of the minority, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved.
45. The constitutionality of Special Courts Bill, 1978 came up for consideration in re. Special Courts Bill, 197812 as the President of India made a reference to this Court under Article 143 (1) of the Constitution for consideration of the question whether the "Special Courts Bill" or any of its provisions, if enacted would be constitutionally invalid. The seven Judge Constitution Bench dealt with the scope of Article 14 of the Constitution. Noticing the earlier decisions of this Court in Budhan Choudhry69, Ram Krishna Dalmia41, C.I. Emden[70], Kangsari Haldar[71], Jyoti Pershad49 and Ambica Mills Ltd.[72], in the majority judgment the then Chief Justice Y.V. Chandrachud, inter alia, exposited the following propositions relating to Article 14:
"(1) xxx xxx xxx (2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.
(3) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.
(5) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well- defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.
(6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.
(7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.
(8) The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense above mentioned.
(9) If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject- matter of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the Legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied.
(10) Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.
(11) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality.
(12) Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined in each case as it arises, for, no general rule applicable to all cases can safely be laid down. A practical assessment of the operation of the law in the particular circumstances is necessary.
(13) A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination."
47. In D.S. Nakara20, the Constitution Bench of this Court had an occasion to consider the scope, content and meaning of Article 14. The Court referred to earlier decisions of this Court and in para 15, the Court observed:
"Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question."
48. In E.P. Royappa38, it has been held by this Court that the basic principle which informs both Articles 14 and 16 are equality and inhibition against discrimination. This Court observed in para 85 (page 38 of the report) as under:
"85....From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
68. Can it be said that the classification is based on intelligible differentia when one set of bureaucrats of Joint Secretary level and above who are working with the Central Government are offered protection under Section 6-A while the same level of officers who are working in the States do not get protection though both classes of these officers are accused of an offence under PC Act, 1988 and inquiry / investigation into such allegations is to be carried out. Our answer is in the negative. The provision in Section 6-A, thus, impedes tracking down the corrupt senior bureaucrats as without previous approval of the Central Government, the CBI cannot even hold preliminary inquiry much less an investigation into the allegations. The protection in Section 6-A has propensity of shielding the corrupt. The object of Section 6-A, that senior public servants of the level of Joint Secretary and above who take policy decision must not be put to any harassment, side-tracks the fundamental objective of the PC Act, 1988 to deal with corruption and act against senior public servants. The CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6-A itself is discriminatory. That being the position, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved."
20. So as to substantiate his submission that if the order impugned has no intelligible differentia and no nexus with the object sought to be achieved, then being arbitrary, it is violative of Article 14 of the Constitution of India, Mr. Misra has cited two judgments of the Hon'ble Apex Court in re: (i) Director General ,CRPF vs. Janardan Singh reported in 2018 SCC OnLine SC 647 and (ii) Union of India & others vs. Atul Shukla and others reported in (2014) 10 SCC 432.
21. Hon'ble Apex Court in the case of Director General ,CRPF vs. Janardan Singh reported in 2018 SCC OnLine SC 647, in paras-18, 20 & 21 has held as under:-
"18. Article 14 does not prohibit reasonable classification but for passing test of permissible classification there are two conditions which have been time and again laid down and reiterated. It is useful to refer to the Constitution Bench judgment of this Court in AIR 1955 SC 191, Budhan Choudhary versus State of Bihar. In paragraph 5, following has been laid down:"
"5....It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, 14 however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure..."
20. When we apply the ratio as laid down above we find that there is no intelligible differentia between two classes of employees posted and serving in North East Region as noted above. The policy of law as is clear from the original Government Order dated 14.12.1983, it is clear that Government came with the scheme of Special (Duty) Allowance with the object and purpose of encouraging, attracting and retaining the services of the officers in the North Eastern Region. To differentiate the employees in two categories i.e. (i) whose Headquarters are within North Eastern Region and (ii) whose Headquarters are outside the North Eastern Region, clearly indicate that classification is not founded on any intelligible differentia.
21. Further the differentia has no rational relation to the object sought to be achieved. When the purpose is to encourage and retain the personnel in North Eastern Region to deny the benefit of Special (Duty) Allowance to those who although posted and serving in North Eastern Region have their Headquarter outside the North East Region does not have any rational nexus with object sought to be achieved."
22. Hon'ble Apex Court in re: Union of India & others vs. Atul Shukla and others reported in (2014) 10 SCC 432 wherein the same analogy, as considered above, has been given by the Hon'ble Apex Court.
23. On the basis of the aforesaid submissions, Mr. U.N. Misra has submitted that since the petitioners hereto are the Shiksha Mitras, who have already qualified the T.E.T., and pursuant to the judgment of Hon'ble Apex Court in re: Anil Kumar Yadav appeared in the first recruitment but not being finally selected, appeared in the present selection being second consecutive chance, therefore, they may not be discriminated by fixing two different yardstick, as aforesaid, and therefore, the Government Order dated 07.01.2019 is not only illegal, arbitrary but the same is violative of Articles 14 and 16 of the Constitution of India.
24. It would be apt to indicate here that at the time of admission of this case Sri Prashant Chandra, learned Senior Advocate assisted by Sri Ran Vijay Singh, learned Additional Chief Standing Counsel has appeared on behalf of the State-respondents and categorically submitted that these writ petitions are misconceived inasmuch as the petitioners are not able to substantiate as to what detriment has been caused to them out of the Government Order dated 07.01.2019 and what right of the petitioners are being prejudiced. Sri Prashant Chandra has also cited the judgment of Hon'ble Apex Court in re: State of Haryana vs. Subhash Chandra Marwaha and others reported in 1974 (3) SCC 220 submitting that fixing qualifying marks is a sole prerogative of the State Government and it cannot be assailed before the Court of law.
25. Since learned counsel for the petitioners argued with vehemence that if the examination in question has already taken place, no subsequent notification can be issued fixing minimum qualifying marks. Further, if any minimum qualifying marks have been fixed, then these minimum cut off should be seen minimum, not maximum. It has further been submitted that understanding of the State in fixing minimum marks should be seen in the light of earliler instances inasmuch as in the preceding examination the minimum qualifying marks were 45% and 40%, for both the categories, later on it has been reduced as 33% and 30%, which appears to be 'minimum' but fixing 65% and 60% for both the categories, does not appear to be 'minimum'. Since the matter required consideration, therefore, the direction for status-quo was granted.
26. Mr. U.N. Misra, learned counsel for the petitioners has submitted that since the petitioners have been granted the benefit by Hon'ble Supreme Court to appear in two consecutive examinations and as per 22nd amendment in the Rules, 1981 the petitioners are entitled to get the weightage of 2.5 marks, maximum 25 marks, therefore, their right would be infringed if they are not provided the weightage after they are declared qualified in the examination of Assistant Teacher. He has further submitted that raising bench mark of minimum qualifying marks to the extent of 65% and 60% is an attempt of State Government to exclude the Shiksha Mitras to be qualified for the Assistant Teacher Examination inasmuch as when earlier bench mark was 45% and 40% the final result of Assistant Teacher Examination, 2018 remained very low, raising bench marks upto the level of 65% and 60% would be detrimental to all including the petitioners hereto who are Shiksha Mitras.
27. Mr. U.N. Misra has further submitted that if the State-respondent was at all interested to raise the bench mark upto 65% and 60% for both the categories, it must have been notified on 01.12.2018 or 05.12.2018 so that the petitioners could have prepared themselves by making more hard labour to achieve the score more than 65% but since it was not notified earlier and the petitioners were well known that the State Government had reduced the bench mark upto 33% and 30% for both the categories, therefore, they had prepared the examination upto that level. The aforesaid submission of Mr. Misra is substantiating the basic objection of Sri Prashant Chandra that vide Government Order dated 07.01.2019 no detriment is being caused to the petitioners nor the same has been alleged and no right of the petitioners is being prejudiced.
28. Mr. U.N. Misra has referred to many instances vide his supplementary affidavit dated 06.02.2019. In para-4 of the said affidavit, Sri U.N. Misra has cited that for filling up 5364 vacancies of Assistant Teacher in Junior High Schools through Assistant Teacher Examination, 2018 conducted by the U.P. Public Service Commission, the minimum qualifying marks were 40% and 30% for both the categories. For filling up 465 vacancies of Assistant Review Officer (A.R.O.) and Review Officer (R.O.) in U.P. Civil Secretariat, U.P. Public Service Commission and the Board of Revenue, issued advertisement fixing minimum qualifying marks as 40% and 30% for both the categories. For filling up 17 vacancies of Assistant Prosecution Officer in Subordinate Courts, an advertisement was issued on 28.12.2018 fixing minimum qualifying marks as 40% and 30% in both the categories. For filling up total 610 vacancies in P.C.S. (J)/ Civil Judge (Junior Division), an advertisement was published on 11.09.2018 fixing minimum qualifying marks as 40% and 30% for both the categories. He has lastly cited the instances of U.P. Higher Judicial Services for filling up 37 vacancies, for which, an advertisement was published in the year 2018 fixing minimum qualifying marks as 45% and 40% respectively for both the categories.
29. In the light of the aforesaid instances, Mr. U.N. Misra has submitted that in all the aforesaid superior examinations the minimum qualifying marks was either 40% and 30% or 45% and 40% (for H.J.S.), therefore, fixing 65% and 60% for both the categories in the examination in question is not only illegal, arbitrary but it has got no nexus with the object achieved and the same is violative of Article 14 and 16 of the Constitution of India. He has further submitted that it appears that by fixing such a high qualifying marks has got some ulterior motives and the same must be detrimental for the present petitioners. As per Ms. U.N. Misra, the present examination of A.T.R.E. 2019 is only qualifying exam whereas the examinations cited above are meant for final selection, so high cut off marks may not be fixed for qualifying examination, when the examination for final selection are having less cut off marks.
30. So far as the proposition No.3 is concerned, it has been submitted by Mr. U. N. Misra that the State-respondents, in their counter affidavit, have wrongly given an impression as if the petitioners have prayed for any relaxation in merit through the instant writ petition, which is absolutely incorrect. Similarly, the State-respondents have also presumptively referred Shiksha Mitras to be less meritorious and incompetent, which is irrational and absolutely unjustified. By using such phrases for T.E.T. qualified Shiksha Mitras/ petitioners, like they cannot be awarded for their incompetence, persons who lack basic qualification giving preference to those who are not qualified, the State-respondents have expressed their biasness towards Shiksha Mitras, then they have arbitrarily presumed that all the Shiksha Mitras are less meritorious or incompetent. While doing so, they have completely ignored the fact that the petitioners belong to that homogeneous class of T.E.T. qualified Shiksha Mitras, who have successfully acquired the T.E.T. qualification by passing the written examination having 60% and 55% as minimum qualifying marks for unreserved and reserved category candidates respectively. Therefore, there was no justification for the State-respondents (State Government) to refer Shiksha Mitras as less meritorious in their counter affidavit. He has further submitted that the State-respondents have unnecessarily emphasized that by keeping such high minimum qualifying marks of 65% and 60% for unreserved and reserved category candidates, they are promoting merit in this selection, as if the previous selection of 2018 was not held on the basis of merit or that the selection of candidates with 45% and 40% minimum qualifying marks for respective categories, was a bogus selection-sans merit.
31. As per Mr. U.N. Misra, repeated emphasis by the State Government is on merit in their counter affidavit, to justify 65% and 60% as minimum qualifying marks in A.T.R.E. examination was made without disclosing to this Hon'ble Court that in almost all the written examinations/ selections for appointment made by State Government on various Class-III, Class-II and Class-I posts in the State Government, the minimum qualifying marks fixed by the Government are either 40% and 30% or 45% and 35% for unreserved and reserved category candidates. In this factual background, it is established that the over emphasis on merit and fixing such high minimum qualifying marks in this exam only is not based on public interest but it is effectuated by ulterior motive and extraneous consideration of allowing selection of some ineligible candidates, like B.Ed. passed candidates in the ongoing examination, who do not possess the minimum requisite qualification of professional training of primary students as per Rule 11 (1) (c) and they can be appointed only as trainee teacher and not as Regular Assistant Teacher. Thus, the impugned order dated 07.01.2019 was passed without any reasonable justification and for colourable, arbitrary and malafide exercise of powers.
32. Mr. U.N. Misra supporting his aforesaid submissions, referred paras-8, 9,, 25 & 27 of the counter affidavit and those paras have been replied in paras-8, 9, & 10 of the rejoinder affidavit including the chart at page No.33 of the rejoinder affidavit. The aforesaid chart has been prepared by the learned counsel for the petitioners, however, on hypothetical basis just to demonstrate that the petitioners/ Shiksha Mitras are more meritorious than the other candidates/ non Shiksha Mitras, having a vast teaching experience, for which, weightage of 25 marks have been prescribed under the service rules itself only for Shiksha Mitras, which is also a component of their merits and which cannot be ignored. The aforesaid chart is being indicated here-in-below.
Chart showing comparative merit of Shiksha Mitra's & Non Shiksha Mitra's (both of 45% and 65%).
Shiksha Mitra's Non Shiksha Mitra's At 45% At 45% At 65% Sl.No. Ingredients Obtained % of Marks Merit as per Appendix-1 Ingredients Obtained % of Marks Merit as per Appendix-1 Obtained % of Marks Merit as per Appendix
1. High School 60% 6 High School 60% 6 60% 6
2. Intermediate 60% 6 Intermediate 60% 6 60% 6
3. Graduation 60% 6 Graduation 60% 6 60% 6
4. B.T.C. 60% 6 B.T.C/ B.Ed.
60% 6 60% 6
5. A.T.R.E. 45% 27 A.T.R.E 45% 27 65% 39
6. Weightage of Teaching Experience 25 Weightage fo Teaching Experience NIL NIL Total 76 51 63
33. Not only the above, learned counsel for the petitioners has vehemently opposed the suggestion, so given by the State-respondents in para-7 of the counter affidavit giving the chart relating to the quality point marks of Shiksha Mitras and non Shiksha Mitras. The said chart prepared by the State-respondents in para-7 of the counter affidavit is as under:-
High School (10% of percentage) Intermediate (10% of percentage) Graduation (10% of percentage) BTC/ B.Ed.
(10% of percentage) Weightate (25 marks) Total Recruitment Examination (60% of percentage) Total Merit Shiksha Mitras (with 35% academic marks) 3.5 3.5 3.5 acquiring just 50% 5 25 40.5 (at 45%) 27 67.5 Other than Shiksha Mitras (with 67% academic marks) 6.7 6.7 6.7 acquiring just 67% 6.7 0 26.8 (acquiring just 67%) 40.20 67
34. The submission of learned counsel for the petitioners is that the aforesaid chart being prepared by the State-respondents is absolutely discriminatory inasmuch as the authority concerned has himself presumed that Shiksha Mitras would be getting 35% marks and non Shiksha Mitras would be getting 65% marks in High School, Intermediate and Graduation. Further, the Shiksha Mitras would be getting only 50% marks in B.T.C. / B.Ed. whereas non Shiksha Mitras would be getting 67% marks, thereby the total marks of Shiksha Mitras would be 40.5 including 25 marks of weightage whereas of non Shiksha Mitras 26.8. Thereafter, if Shiksha Mitras obtain only 45% marks in A.T.R.E., which comes as 27 marks and if non Shiksha Mitras acquire 67% marks in A.T.R.E., it comes 40.20 marks, at the rate of 60%, the total marks of Shiksha Mitras would be 67.5 and non Shiksha Mitras would be 67.00. Learned counsel for the petitioners has therefore submitted that by means of the aforesaid chart, the State-respondents is treating the Shiksha Mitras a very poor candidates in comparison to non Shiksha Mitras. As per learned counsel for the petitioners, this may not be said to be a correct method to prepare a chart even in the light of the judgment of Hon'ble Apex Court in re:- Anand Yadav (supra). As per Anand Yadad's case the Shiksha Mitras and non Shiksha Mitras should be treated at par and the only difference is that the Shiksha Mitras would be getting 25 marks as weightage, therefore, learned counsel for the petitioners by means of supplementary affidavit filed on 06.02.2019 enclosed three charts, however, on hypothetical basis as Annexure No.SA-6, treating the Shiksha Mitras at par with non Shiksha Mitras making a little with difference in respect of marks of A.T.R.E. presuming that the Shiksha Mitras obtained 64% marks and they declared unqualified as per the impugned Government Order dated 07.01.2019, whereas non Shiksha Mitras obtained 65% marks and were declared qualified. However, if total marks of both the persons are counted providing 25 marks of weightage to the Shiksha Mitras, the Shiksha Mitras would be getting more marks than non Shiksha Mitras. The aforesaid three charts have been prepared by the learned counsel for the petitioners, however on hypothetical basis, presuming 60%, 70% and 80% marks have been obtained by the Shiksha Mitras and non Shiksha Mitras, thereafter, showing the difference.
35. Since all the three charts are common, only the percentage of marks are different, therefore, one chart which is indicating 60% marks is being indicated here-in-below:-
Chart showing comparative merit of Shiksha Mitra's & Non Shiksha Mitra's (both at 60%) Sl.No. Ingredients Obtained % of Marks Merit as per Appendix-I Ingredients Obtained % of Marks Merit as per Appendix-I
1.
High School 60% 6 High School 60% 6
2. Intermediate 60% 6 Intermediate 60% 6
3. Graduation 60% 6 Graduation 60% 6
4. B.T.C./ B.Ed.
60% 6 B.T.C./ B.Ed.
60% 6
5. A.T.R.E. 64% 38 A.T.R.E. 65% 39
6. Total Without Weightage 62 63
6. Weightage 25 Total 87 63
36. In support of the aforesaid arguments that order passed under colourable, arbitrary and malafide exercise of power and on the basis of whims, fancies and caprices without any reasonable justification is liable to set aside, Sri U.N. Misra learned counsel for the petitioners has referred the dictum of Hon'ble Apex Court in re: Scheduled Castes and Scheduled Tribes Officers' Welfare Council vs. State of U.P. & another reported in (1997) 1 SCC 701.
37. So far as the 4th proposition is concerned, Mr. U.N. Misra has submitted that Shiksha Mitras were initially appointed from 1999 onwards through a selection held in local areas. They continued to work in rural areas and filled up the gap of acute shortage of Assistant Teachers in Basic Schools in the last fifteen years. After the N.C.T.E. fixed the prescribed the minimum qualification of T.E.T. as the minimum basic qualification vide Notification dated 23.08.2010 and after the Central Government agreed in January 2011 on the State's request to give two year Diploma in Basic Education by distant mode i.e. D.B.T.C., the Shiksha Mitras had undergone that training of D.B.T.C. Thereafter, the service rules were amended in May 2014 and the Shiksha Mitras were regularized. He has further submitted that the aforesaid regularization of Shiksha Mitra was however disapproved by a Full Bench decision of this Hon'ble Court vide judgment dated 12.09.2015 in the case of Anand Kumar vs. State of U.P. on the ground that they do not possess T.E.T. qualification and this decision was finally approved by the Hon'ble Apex Court vide judgment dated 25.07.2017. However, the Hon'ble Apex Court after considering the peculiar circumstances of the case and persistent hardship of Shiksha Mitra, granted two opportunities to the Shiksha Mitras to acquire T.E.T. qualification and thereafter, these T.E.T. qualified Shiksha Mitras were permitted to appear in two consecutive recruitments for Assistant Teacher with weightage for their teaching experience. This was done apparently because the Hon'ble Apex Court recognized that the teaching experience of Shiksha Mitra cannot be allowed to go in vain, as it is an integral part of their merit. This option of giving weightage to Shiksha Mitras was converted into a legal right when the State Government through 22nd Amendment of the Service Rules dated 15.03.2018 incorporated it as second Proviso to Rule 14 (2) (a), read with Appendix-1. Thereafter, these Shiksha Mitras' appeared and successfully acquired T.E.T. qualification though the written examination having 60% and 55% as minimum qualifying marks for unreserved and reserved category candidates.
38. Mr. U.N. Misra has vehemently submitted that despite the fact that the Shiksha Mitras, like the petitioners have cleared the aforesaid obstacle, the State Government introduced a written examination (A.T.R.E.) when these two consecutive opportunities for selection and appointment were to be offered to them, as directed by the Hon'ble Apex Court. Since 1982 till 2018 there has never been any selection of Assistant Teacher which was based on a written test. Though written examination was neither prescribed by N.C.T.E. nor suggested by the Hon'ble Court in its judgment and order dated 25.07.2017, but even then, the written examination was introduced by the State Government in A.T.R.E. 2018 and A.T.R.E. 2019 in order to increase the level of difficulty for Shiksha Mitras. Despite that, these T.E.T. qualified candidates, appeared in the first written test and about 8000 of them have successfully passed the same with 45% and 40% marks as minimum qualifying marks for unreserved and reserved category candidates and they got the weightage of 25 marks and also for appointment.
39. Mr. U.N. Misra has further submitted that in this factual background, the State Government further increased the level of difficulty and raised the bar of absolute by suddenly hiking / increasing the minimum qualifying marks from 45% and 40% to 65% and 60% for respective categories, that too without having any valid and cogent reason. This was done only to avoid giving weightage for 25 marks to the Shiksha Mitras (like the petitioners) who possess the vast teaching experience of 15 years and hence, entitled to get the benefit of weightage for their teaching experience which is statutorily prescribed in the Rules.
40. As per Mr. U.N. Misra the State Government in paras-6 and 9 of the counter affidavit has claimed that if weightage is given to persons lacking merit, it would defeat the claim of meritorious persons. Thus, the State Government has completely ignored that teaching experience of the Shiksha Mitras is also an integral part of their merit and weightate for their teaching experience is not being given as a gratitude and charity but it is a recognition of their merit only. Thus, the attempt of the State Government to keep increasing the level of difficulty, every time a T.E.T. qualified Shiksha Mitras approach them for regular appointment is evidently irrational, arbitrary and illegal because the Shiksha Mitras have a valid right to get their teaching experience duly recognized in the instant selection, as weightage for teaching experience is the sixth ingredient of Appendix-1 of the amended service rules and is an integral part of quality point marks perscribed in Rule 14 (2) (a) of the Serviced Rules.
41. In support of his aforesaid submissions Mr. U.N. Misra has referred the dictum of Hon'ble Apex Court in re: Bhagwati Prasad vs. Delhi State Mineral Development Corporation reported in (1990) 1 SCC 361. The relevant para-6 of the aforesaid judgment is being reproduced here-in-below:-
"6. The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. ..."
42. Sri Upendra Nath Misra has further submitted that nullifying the beneficial aspect of certain direction of the Hon'ble Apex Court in re: Anand Kumar Yadav by the State-respondent by issuing mere Government Order is not permissible in law. Further, the Hon'ble Apex Court in re: Anand Kumar Yadav has issued direction to the State Government regarding grant of two opportunities to the Shiksha Mitras to acquire the requisite qualification of T.E.T. and right of participation in the 'next two consecutive recruitments' along with grant of weightage for their service experience and when the State Government, through amendment in the service rules, has statutorily prescribed the aforesaid weightage for teaching experience as 2.5 marks per year, subject to maximum of 25 marks, then the aforesaid beneficial effect of the judgment of Hon'ble Apex Court for protecting the interest of Shiksha Mitras and also the statutory provision relating to the same, cannot be nullified by the State Government by merely issuing ta Government Order.
43. He has further submitted that he is unable to comprehend 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. Further, 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 inclusin 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.
44. Learned counsel for the petitioner has cited the dictum of Hon'ble Apex Court in re: Medical Council of India vs. State of Kerala reported in 2018 SCC Online SC 1467 and referred para 21 thereof which is as under:
"21. What has been done by the impugned Ordinance by the State Government is clearly entrenching upon the field of judicial review and it was obviously misadventure resorted to. In our considered opinion, it was not at all permissible to the State Government to promulgate the Ordinance/ legislate in the matter. Not only the judgment of the court is nullified and the arbitrariness committed in admissions was glaring, and the decision of the High Court of Kerala which was affirmed by this Court with respect to applications to be entertained if they were online applications has been undone. It was clearly an act of nullifying judgment and is violative of judicial powers which vested in the judiciary. It was not open for the State Government to nullify the judgment /orders passed by the Kerala High Court or by this Court. It was not a case of removal of defect in existing law. Various Constitution Bench decisions of this Court have settled the principles of law governing the field. It passes comprehension how the State Government has promulgated the Ordinance in question."
45. Sri Upendra Nath Misra has submitted with vehemence that where a statute contains both general provision as well as specific provision, the later must prevail. As per Sri Misra Rule 14(3)(a) of Service Rules prescribes preparation of merit list as per quality point marks and weightage specified in Appendix -1. Further when a special statutory provision for grant of weightage has been specifically provided in second Proviso to Rule 14(3)(a) read with Appendix-1 which is available to all the T.E.T. qualified Shiksha Mitras like the petitioners, for two consecutive attempts, under the judgment of the Hon'ble Apex Court dated 25.7.2017 and when this recruitment of 2019 is the second and last such recruitment with weightage, that is available to Shiksha Mitra, then, the special provision for grant of weightage to Shiksha Mitra in two consecutive selections, cannot be nullified by the respondents, by emphasizing the general provision of selection as it is violative of the settled principle of law that when within the same statute / rule, a special provision of law has been incorporated to cater to special situation, the general provisions of law cannot be emphasized over and above the special provision of law. Thus, the special provision of law about weightage to T.E.T. qualified Shiksha Mitra in two consecutive selections (the present one being the last one) cannot be nullified by the respondent authorities by arbitrarily raising the minimum qualifying marks for extraneous reason.
46. In support of his aforesaid contention, Sri U.N. Misra has cited the dictum of Hon'ble Apex Court in re: Commercial Tax Officer, Rajasthan vs. Binani Cement Ltd. and another reported in (2014) 8 SCC 319, wherein the Apex Court has held that where a statute contains both general and special provisions, the later must prevail. Paras 34 & 49 read as under:
"34. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on same subject.....
49. It leaves no doubt that what is specific has to be seen in contradistinction with the other items/entries. The provision more specific than the other on the same subject would prevail. Here it is subject specific item and therefore as against items 1, 4, 6 and 7, which deal with units of all industries and not only cement, item 1E restricted to only cement units would be a specific and special entry and thus would override the general provision."
47. Mr. U.N. Misra has further submitted that the minimum qualifying marks / cut of marks must be predetermined to enable adequate preparation by the candidates and, therefore, the material prejudice has been caused to the petitioner since no such determination has been prefixed. He has also submitted that after 20th Amendment in the Rules 1981, notified on 9.11.2017, passing of Assistant Teacher Recruitment Examination conducted by the government was prescribed as minimum requisite qualification and was included in Rule 8(2)(a) but this requirement was done away with in 22nd Amendment of the Rules notified on 15.3.2018 whereby passing of Assistant Teacher Recruitment Examination was removed from the prescription of minimum requisite qualification mentioned in Rule 8(2)(a). After 22nd Amendment the passing of written examination is included only as an ingredient of procedure of selection prescribed under Rule 14(1)(a) (b). Therefore, fixation of very high minimum qualifying marks for written examination is absolutely arbitrary and since it has been introduced after holding the examination without giving any prior information to the candidates before the examination, it has caused material prejudice to the petitioner and, therefore, it is impermissible in the eyes of law.
48. In support of aforesaid submission the learned counsel for the petitioner has referred the dictum of Hon'ble Apex Court in re: P.V. Indiresan (2) vs. Union of India and others reported in 2011 (8) SCC 411.
"25. The term "cut-off marks" in academic and judicial vocabulary has several meanings. When rejecting a person's request for selection on the ground that his marks are less than the marks secured by the last candidate who was selected, by describing the marks secured by the last candidate as "cut-off marks". The words "cut-off marks" are also used while notifying a body of applicants who form part of a merit list or the general public, the marks secured by the last selected candidate so that they can know that persons with lesser merit/marks had not been selected or have no chance of being selected. "Cut-off marks" are also used to refer to the minimum marks (either eligibility marks or qualifying marks) required for admission to a course.
44. The minimum eligibility marks for admission to a course of study is always declared before the admission programme for an academic year is commenced. An institution may say that for admissions to its course, say Bachelor's degree course in science, the candidate should have successfully completed a particular course of study, say 10+2, with certain special subjects. Or it can say that the candidate should have secured certain prescribed minimum marks in the said qualifying examination, which may be more than the percentage required for passing such examination. For example if a candidate may pass a 10+2 examination by securing 35% marks, an institution can say at its discretion that to be eligible for being admitted to its course of study, the candidate should have passed with at least a minimum of 40% or 50% or 60%. Whatever be the marks so prescribed, it should be uniform to all applicants and a prospective applicant should know, before he makes an application, whether he is eligible for admission or not. But the "cut-off" procedure followed by JNU during those days had the effect of rewriting the eligibility criteria, after the applications were received from eligible candidates. If the minimum eligibility prescribed for an admission in an institution was 50% and a candidate had secured 50%, he could not be denied admission, if a seat was available, based on a criterion ascertained after the last date for submission of applications.
45. No candidate who fulfills the prescribed eligibility criteria and whose rank in the merit list is within the number of seats available for admission, can be turned down, by saying that he should have secured some higher marks based on the marks secured by some other category of students. A factor which is neither known nor ascertained at the time of declaring the admission programme cannot be used to disentitle a candidate to admission, who is otherwise entitled for admission. If the total number of seats in a course is 154 and the number of seats reserved for OBCs is 42, all the seats should be filled by OBC students in the order of merit from the merit list of OBC candidates possessing the minimum eligibility marks prescribed for admission. (subject to any requirement for entrance examination.) When an eligible OBC candidate is available, converting an OBC reservation seat to general category is not permissible."
49. Sri U.N. Misra has further submitted that provision of an Act or statutory rule cannot be altered , supplemented / modified / amended by means of mere Government Order. As per Mr. Misra Rule 14(1)(a) requires a candidate "only to pass" the Assistant Teacher Recruitment Examination conducted by the Government. The Statute, therefore, requires 'merely passing' of written examination and it does not require "passing with first division marks and above". However, the State Government by issuing a Government Order dated 7.1.2019 had tried to substitute / amend the aforesaid statutory prescription of "mere passing" to "passing with first division marks" under the garb of fixation of minimum qualifying marks under Rule 2(1)(a). After the 22nd Amendment, since the intention of Legislature was no longer to keep passing of Recruitment Examination as one of minimum requisite qualification, therefore, legislature has consciously not mentioned the words "passing with first division" in Rule 14(1)(a) and therefore the statutory prescription cannot be allowed to be changed by the State Government by merely issuing an executive fiat.
Moreover, the Legislature has consciously used the word "minimum" in Rule 2(x) of the Service Rules relating to fixation of qualifying marks for passing the written exam and this word "minimum" has been sought to be supplanted by the words "excessive" by the respondents which is impermissible under law.
50. In support to his aforesaid submission Mr. Misra has referred dictum of Hon'ble Apex Court in re: Public Service Commission, Uttaranchal vs. Jagdish Chandra Singh Bora and another reported in 2014 (8) SCC 644.
"28. However, we find substance in the submission made by Mr. C.U. Singh that 2004 clarification would not have the effect of amending 2003 Rules. Undoubtedly, 2004 clarification is only an executive order. It is settled proposition of law that the executive orders cannot supplant the rules framed under the proviso to Article 309 of the Constitution of India. Such executive orders/instructions can only supplement the rules framed under the proviso to Article 309 of the Constitution of India. Inspite of accepting the submission of Mr. C.U. Singh that clarification dated 29.4.2004 would not have the effect of superceding, amending or altering the 2003 Rules, it would not be possible to give any relief to the respondents. The criteria under the 2003 Rules governs all future recruitments. We have earlier already concluded that no vested right had accrued to the respondents, the trained apprentices, under the 2001 Rules. We do not accept the submission of Mr. C.U. Singh that the claim of the respondents (trained apprentices) would be covered under the 2001 Rules by virtue of the so called amendment made by 2003 Rules. We are of the opinion that the High Court committed an error, firstly, in holding that the 2003 rules are applicable, and secondly, not taking into consideration that all the posts had been filled up by the time the decision had been rendered.
51. Sri Upendra Nath Mishra has submitted that the rules of game cannot be allowed to change or alter after the game starts. As per Sri Upendra Nath Mishra, when notice for second recruitment was issued on 1.12.2018 and written examination was proposed to be held on the basis of multiple answer-questions paper, no minimum qualifying marks were prescribed in Clause-7 of that Government Order. It was only after holding the examination on 6.1.2019 that the minimum qualifying marks were prescribed on 7.1.2019. Since candidates were not informed well before the examination that the minimum qualifying marks are going to be kept so high i.e. 65% and 60% and since there was no minimum qualifying marks prescribed in Clause-7, therefore, every participant had legitimate expectation that in absence of any clause prescribed of minimum qualifying marks in the ongoing selection, the State Government would maintain parity of treatment with respect to minimum qualifying marks, at least in two consecutive recruitments offered to Shiksha Mitras in compliance of the judgment of the Hon'ble Apex Court in re; Anand Kumar Yadav (supra).
52. Sri H. N. Singh, learned Senior Advocate has assailed the Government Order dated 7.1.2019 on the ground that as per 22nd amendment of Service Rules, the qualification so fixed for filling up the post of Assistant Teacher through Assistant Teacher Recruitment Examination is not the eligibility as per Rule 8 of the Rules 1981.
53. Sri Singh has further submitted that as per notification dated 23.8.2010 and 29.7.2011 issued by the NCTE which is an academic body authorises the Central Government in pursuance of section 23(1) of R.T.E. Act, 2009, the eligibility of appointment of Assistant Teacher in Junior Basic School is only the Graduation, training qualification with passed T.E.T. conducted by the Central Government / State Government. The State Government is bound to follow the eligibility criteria notified by the N.C.T.E. vide its notification dated 23.8.2010 as held by this Court as well as by the Hon'ble Apex Court in catena of cases.
54. As per Sri Singh in exercise of the power under section 23 of the Act, 2009, the Central Government has appointed N.C.T.E. as an academic authority and once the academic authority has prescribed qualifications and also issued guidelines for conducting T.E.T. examination, all the State Governments are bound to conduct T.E.T. examination as per the guidelines framed by the N.C.T.E. and even otherwise the State Government is conducting T.E.T. examination since 2011 regularly and the examinations were conducted in the year 2013-14, 2014-15, 2015-16, 2016-17, 2017-18 as per guidelines framed by the N.C.T.E. and candidates were declared passed in T.E.T. after obtaining 60% and 55%, as the case may be, marks in the test. As per Sri Singh the State Government has neither specified any qualifying marks in the Government Order dated 1.12.2018 nor in the Advertisement dated 5.12.2018 to the effect that minimum qualifying marks can be added after the examination. Therefore, if no such recital has been made in the Government Order dated 1.12.2018 and Advertisement dated 5.12.2018, no qualifying marks could have been fixed on 7.1.2019 for the examination of Assistant Teacher Recruitment Examination-2019 which was over on 6.1.2019. As per Sri Singh the aforesaid exercise of the State Government would be change of Rules after the game starts, which is not permissible.
55. As per Sri Singh in the year 1993 the Parliament enacted the National Council for Teacher Education Act, 1993. The object of NCTE Act is to establish a National Council for Teacher Education with a view to achieve planned and coordinated development for the teacher education system throughout the country. Section 31(1) of NCTE Act confers the rule making power upon the Central Government and section 32 empowers the NCTE Act to frame regulations to carry out the object of NCTE Act. He has further submitted that after enactment of NCTE Act, the NCTE, exercising its power under section 32, framed the National Council for Teacher Education (Determination of Minimum Qualifications for the Recruitment of Teachers in theSchools) Regulation, 2001. NCTE Regulation, 2001 lays down the essential qualification for appointment to the post of teacher in the basic schools, including elementary schools imparting education at basic schools and senior basic schools. First schedule in the said Regulations provides the essential qualification for appointment of teachers in basic schools.
56. As per Sri Singh by the 86th Constitutional Amendment, Article 21-A was inserted in the Constitution casting obligations on the State to provide free and compulsory education to all children to the age of 6 to 14 years. In furtherance of the object of Article 21- A of the Constitution, the Parliament enacted the Right of Children Free and Compulsory Education Act, 2009. Further, the State Government issued the Right of Children to Free and Compulsory Education Rules, 2010 under R.T.E. Act. The said Rules also deal with the acquisition of minimum qualification. It empowers the Central Government to notify the Academic Authority for laying down the academic qualifications for the appointment as a teacher in basic schools.
57. As per Sri Singh section 23 of the R.T.E. Act provides that the Central Government shall authorise an academic authority to prescribe the qualification for appointment and the terms and conditions of service of the teachers. In exercise of said power, the Central Government authorised the NCTE to perform such functions. Further, after authorisation by the Central Government, NCTE, under RTE Act, issued another Regulation, known as National Council for Teacher Education (Recognition, Norms and Procedure) Regulation, 2009. The NCTE, exercising powers conferred upon it pursuant to the Central Government's authorisation under section 23(1) of RTE Act, 2009 issued Notification dated 23.8.2010, which was amended vide Notification dated 29.7.2011, laying down the essential qualification for the person to be eligible for appointment as teacher for Class-I to VIII. The relevant section 23 of R.T.E. Act, 2009 is as under :
"(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorized by the Central Government, by notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:
PROVIDED that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years.
(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.
58. As per Sri Singh in exercise of the aforesaid section 23(1) of RTE Act, the NCTE, vide notification dated 23.8.2010 laid down the minimum qualification for a person to be eligible for appointment as teacher in Class-I to VIII in schools referred in section 2(n) of the RTE Act.
59. In Rule 5 of the Rules, 1981 source of recruitment has been given wherein sub-rule (2) of Clause (ka) of section 5 source of recruitment of Assistant Teacher and Assistant Mistresses of Junior Basic Schools have been given i.e. direct recruitment and in section 8 of the Rules, 1981 the eligibility of appointment of Assistant Teacher has been given.
60. The State of U.P. also framed the U.P. Right to Children to Free and Compulsory Education Rules, 2011 under the RTE Act, as the one of the essential qualifications prescribed therein is passing Teachers Eligibility Test (TET) to be conducted in accordance of RTE Act, Central RTE Rules, State RTE Rules and NCTE Regulations, 2009 by the appropriate government in accordance with the guidelines framed and issued by the NCTE for the purpose.
61. It would be apt to indicate here that in the issue of Shiksha Mitras whether they are having proper qualification as mandated under the Rules for the appointment and regularisation, the Full Bench of this Court vide judgment and order dated 12.9.2015 in re: Anand Kumar Yadav vs. Union of India as well as the Hon'ble Apex Court vide judgment and order dated 25.7.2017 in re: State of U.P. vs. Anand Kumar Yadav and others has held that Shiksha Mitras do not have any legal right for regularisation as neither they fulfill minimum qualification nor even B.T.C. qualification under 2001 Regulations nor they have been appointed against the sanctioned posts, therefore, there regular appointments may not be made unless they acquire requisite qualification. After the aforesaid judgment of Hon'ble Apex Court necessary exercise initiated in respect of Shiksha Mitras and also for others to be appointed on the post of Assistant Teacher.
62. The State Government amended the Rules, 1981 on 9.11.2017 (20th Amendment). Vide section 2(w) the State Government has introduced a new examination namely, Assistant Teacher Recruitment Examination for the appointment as Assistant Teacher and by section 2(x) the Government has prescribed minimum qualification marks for Assistant Teacher Recruitment Examination. It is to be noted here that by way of 20th Amendment the selection criteria was changed and additional requirement of passing Assistant Teacher Recruitment Examination which was to be conducted by the Government was inserted in Rule 8(a)(ii) and Rule 14 of the Rules, 1981. The perusal of the aforesaid sections makes it crystal clear that for appointment to the post of Assistant Teacher, a candidate must pass the Assistant Teacher Recruitment Examination with minimum marks as prescribed in the guidelines.
63. Thereafter the State Government issued Government Order on 9.1.2018 for filling up 68500 posts of Assistant Teachers in Junior Basic Schools as per the guidelines of 20th Amendment in the Rules, 2017. In the said examination minimum qualifying marks for TET was 60% & 55%, as the case may be, and for Assistant Teacher Recruitment Examination-2018 was 45% and 40% for both the categories.
64. The State Government again amended Rules, 1981 on 15.3.2018 vide 22nd Amendment made in the Rules, 1981. By way of 22nd Amendment the requirement of passing the Assistant Teacher Recruitment Examination was removed from Rule 8 of Rules, 1981 which provides the academic qualification required for appointment to the post of Primary Teacher. However, the said requirement continued to be a part of Rule 14 of the said Rules.
65. Sri Singh has submitted that power of State Government of fixing qualifying marks is not unfettered and arbitrary power. No doubt, the State Government is authorized to fix the minimum qualifying marks, but the minimum marks so fixed must be seen as minimum not maximum. Sri Singh elaborated the understanding of the State Government of minimum marks submitting that vide its own decision dated 9.1.2018, the State Government treated 45% and 40% marks respectively for general category and reserved category as minimum in the earlier selection. Later on, vide decision dated 21.5.2018 33% and 30% marks respectively for general category and reserved category have been treated as minimum. It appears that as per the State Government, instead of 45% and 40%, 33% and 30% should be minimum marks for general category and reserved category, therefore, 65% and 60% marks for both the categories may not be treated as minimum in any manner whatsoever.
66. Sri Singh has referred couple of dictionaries to explain the word ''minimum'. As per Webster Dictionary ''minimum' means "smallest", as per Oxford Dictionary, ''minimum' means "the least or smallest amount or quantity possible", as per Advance Law Lexicon Dictionary ''minimum' means "smallest amount or degree" and as per Cambridge Dictionary. 'minimum' means "the smallest amount or number allowed or possible". It further says ''minimum' must mean in each as much as minimum in aggregate'
67. It would not out of place to indicate here that a Government Order dated 7.5.2018 was issued stating therein that Assistant Teacher Recruitment Examination-2018 would be held on 22.5.2018. Further, before taking the aforesaid examination the earlier Government Order dated 9.1.2018 was amended vide Government Order dated 21.5.2018 reducing the minimum qualifying marks from 45% and 40% (for both categories) to 33% and 30%. The said Government Order dated 21.5.2018 was assailed by some of the petitioners by filing W.P. Service Single No. 20404 of 2018 before this Court and this Court stayed the operation of the Government Order dated 21.5.2018 vide order dated 24.7.2018. It would be pertinent to indicate here that the State Government vide G.O. dated 20.2.2019 has withdrawn the Government Order dated 21.5.2018, therefore, the Service Single No. 20404/2018 and batch of writ petitions have been dismissed being infructuous.
68. Since this Court vide interim order dated 24.7.2018 (supra) stayed the operation of the Government Order dated 21.5.2018, therefore, competent authority has issued order dated 8.8.2018 directing the concerned authorities to prepare the result as per minimum marks provided in the Government Order dated 9.1.2018. Pursuant to the aforesaid order dated 8.8.2018 result of Assistant Teacher Recruitment Examination-2018 was declared on 13.8.2018 in which 41556 candidates were declared passed. It is to be noted here that pursuant to the result of revaluation being declared 4500 and odd candidates were also declared passed.
69. Sri Singh has submitted vide Government Order dated 1.12.2018 the applications were invited for conducting Assistant Teacher Recruitment Examination-2019 for filling up 69000 vacancies of Assistant Teachers and its advertisement issued on 5.12.2018 wherein the date of examination was fixed as 6.1.2019. Admittedly, in the said examination only those candidates could have appeared who have qualified T.E.T. with minimum qualifying marks of 60% & 55%, as the case may be. 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. Further, vide Government Order dated 7.1.2019 minimum qualifying marks have been fixed which is impugned herein.
70. As per Sri Singh the Hon'ble Apex Court in re: Anand Kumar Yadav (supra) has held that if Shiksha Mitras possess the requisite qualification in terms of the qualifications of advertisement they would be eligible for two consecutive recruitments and in the first Assistant Teacher Recruitment Examination-2018 those Shiksha Mitras who could not qualify Assistant Teacher Recruitment Examination, were eligible to appear in the second Assistant Teacher Recruitment Examination-2019 in terms of the aforesaid judgment of Hon'ble Apex Court.
71. Sri Singh has also submitted that the petitioners (Shiksha Mitras) have all the requisite qualification for becoming eligible to be appointed to the post of Assistant Teacher in accordance with the requirement laid down by the NCTE. However, in the light of 20th and 22nd Amendment in the Rules, 1981 the mandatory requirement for the petitioners is to appear in Assistant Teacher Recruitment Examination though the same is against the eligibility qualification being prescribed by the academic authority but the same has been adopted by the State Government by way of 20th and 22nd Amendment in the Service Rules, 1981.
72. Sri Singh has further submitted that the impugned Government Order has not been issued in exercise of any provision under RTE Act, 2009 and the Uttar Pradesh Right to Free and Compulsory Education Rules, 2011, therefore, it appears that this Government Order might have been issued in exercise of executive powers of the State Government under Article 162 read with Article 166 of the Constitution of India. Further, Article 154 provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through the officer subordinate to him in accordance with Constitution. Article 163 provides for council of ministers who shall advise the Governor and as such any decision of the Government in the name of Governor may be taken only. The decision of council of ministers may be issued by officer authorised by the Governor authenticating the same in the manner prescribed. Therefore, is has submitted that the Government Order dated 7.1.2019 which was issued by the Special Secretary of the Department who is not a competent authority as aforesaid, that too on the request of Secretary, Board of Basic Education dated 5.11.2019 as this issue was never placed for decision of council of ministers and as such the so-called Government Order dated 7.1.2019 is not a Government Order but is merely a letter issued by the Special Secretary which may not be treated as a decision of the Government for fixing the minimum qualifying marks. He has also submitted that from perusal of the Government Order it is apparent that same had been issued in the name of Governor of the State of U.P. and have not been authenticated in such a manner as specified by Uttar Pradesh Distribution of Work Rule, 1975 [ Uttar Pradesh Karya (Batwara) Niyamawali, 1975.]
73. Under the Rules, 1975 referred above all powers relating to Basic Education has been conferred to Shiksha Anubhag-5 and as such any Government Order in the name of Governor of State of U.P. may be issued only by the Shiksha Anubhag-5 and not by Shiksha Anubhag-4 issued by Special Secretary of the Government of U.P. Therefore, in view of the above Sri Singh has assailed the Government Order dated 7.1.2019 being arbitrary and illegal and unconstitutional, the same may not be given effect to. He has further submitted that at the best if this Court wants to protect the examination in hand i.e. Assistant Teacher Recruitment Examination-2019, at least it may be directed that the result of the examination in question may be declared ignoring the Government Order dated 7.1.2019 and in the same manner as the earlier examination of Assistant Teacher Recruitment Examination-2018 was conducted and the result was declared.
74. Dr. L.P. Misra has submitted that since the earlier Examination of Assistant Teacher, 2018 has been conducted in violation of judgment and order dated 6.3.2018 passed by this Court in Writ Petition No.28222 (S/S) of 2017, which is presently holding the field, so Examination of Assistant Teacher, 2019 conducted on 6.1.2019 could have not been conducted. Dr. L.P. Misra has pointed out that vide judgment and order dated 6.3.2018 certain directions were issued by the Single Judge in respect of Teacher Eligibility Test of the preceding examination and said judgment was assailed before the Division Bench. The Division Bench vide judgment and order dated 17.4.2018 partially modified the judgment and order dated 6.3.2018. The judgment of Division Bench dated 17.4.2018 has been assailed before the Hon'ble Apex Court and the Hon'ble Apex Court vide Civil Appeal No.18876 of 2018 set aside the judgment of the Division Bench permitting the State Government to implead private respondents, who were party before the Single Judge and thereafter the matter shall be decided by the Division Bench. As per Dr. L.P. Misra, the State-respondents did not file any impleadment application before the Division Bench in compliance of the direction of the Hon'ble Apex Court by 1.12.2018 and issued Government Order and notification/ advertisement dated 05.12.2018 for conducting Assistant Teacher Recruitment Examination, 2019. Sri Misra has further submitted that since the examination which was conducted on 6.1.2019 was conducted in violation of judgment and order dated 6.3.2018, therefore, the subsequent Government Order dated 7.1.2019 is also void ab initio. As per Dr. Mishra, if the Division Bench decides the issue regarding earlier examination confirming the judgment of Hon'ble Single Judge dated 06.03.2018, entire examination of A.T.R.E.-2018 would be affected and it would cast impact on this examination of A.T.R.E.-2019.
75. Dr. L.P. Misra has further submitted that the Government Order dated 7.1.2019 may not be said to be Government Order in its literal term inasmuch as the same is violative of Article 162 of the Constitution of India.
76. Dr. Misra has further submitted that the Government Order dated 7.1.2019 is not only dehors to but virtually is aghost to and is under the teeth of the spirit of judgment and order dated 25.7.2017 passed by the Hon'ble Apex Court in re; State of Uttar Pradesh and another v. Anand Kumar Yadav and others, (2018) 13 SCC 560. Dr. Misra has submitted with vehemence that in view of the judgment dated 25.7.2017 passed by the Hon'ble Apex Court in re; Anand Kumar Yadav (supra), no further compulsive eligibility for being an applicant could be prescribed for at least two consecutive recruitments to be held after the Hon'ble Supreme Court judgment dated 25.7.2017and even if it is prescribed under the Rule, the fixation of qualifying marks cannot at all be such so as to eat out the very spirit of judgment dated 25.7.2017 passed by the Hon'ble Apex Court in re; Anand Kumar Yadav (supra) thereby to oust the Siksha Mitras (writ petitioners) at a stage prior to allocation of weightage marks as mentioned in Appendix-I attached to 1981 Rules as amended up to 22nd Amendment.
77. Dr. L.P. Mishra in support of his submissions that placing equals as unequals is not permissible, has placed reliance on certain following judgments of Hon'ble Apex Court.
78. The Constitution Bench of the Hon'ble Apex Court in re; D.S. Nakara and others v. Union of India, (1983) 1 SCC 305, has held in paragraphs 42 & 43 as under:-
"42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who, retired earlier cannot be worst off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension? One retiring a day earlier will have to be subject to ceiling of Rs 8100 p.a. and average emolument to be worked out on 36 months' salary while the other will have a ceiling of Rs 12,000 p.a. and average emolument will be computed on the basis of last 10 months' average. The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter-productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours' difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does not stand the test of Article 14.
43. Further the classification is wholly arbitrary because we do not find a single acceptable or persuasive reason for this division. This arbitrary action violated the guarantee of Article 14. The next question is what is the way out?"
79. The Hon'ble Apex Court in re; Prem Chand Somchand Shah and another v. Union of India and another, (1991) 2 SCC 48, has held in para-8 as under:-
"8. As regards the right to equality guaranteed under Article 14 the position is well settled that the said right ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment. It means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Conversely discrimination may result if persons dissimilarly situate are treated equally. Even amongst persons similarly situate differential treatment would be permissible between one class and the other. In that event it is necessary that the differential treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the statute in question."
80. The Hon'ble Apex Court in re; Amita v. Union of India and another, (2005) 13 SCC 721, has held in paras-11 & 12 as under:-
"11. ................ Article 14 of the Constitution guarantees to every citizen of India the right to equality before the law or the equal protection of law. The first expression "equality before the law" which is taken from the English common law, is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. It also means that amongst the equals the law should be equal and should be equally administered and that likes should be treated alike. Thus, what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. It does not forbid different treatment of unequals. Article 14 of the Constitution is both a negative and positive right. Negative in the sense that no one can be discriminated against: anybody and everyone should be treated as equals. The latter is the core and essence of the right to equality and the State has the obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled to as a human being. Therefore, Article 14 contemplates reasonableness in State action, the absence of which would entail the violation of Article 14 of the Constitution.
12. .................. Under Article 16 of the Constitution the general rule laid down is that there should be equal opportunity for citizens in matters relating to "employment" or "appointment to any office" under the State. The expression "matter relating to employment or appointment" includes all matters in relation to employment both prior and subsequent to the employments which are incidental to the employment and form part of the terms and conditions of such employment. Therefore, under Article 16 of the Constitution what is guaranteed is equal opportunity to all persons. This clause accordingly does not prevent the State from laying down the requisite qualifications for recruitment to government service, and it is open to the authority to lay down such other conditions of appointment as would be conducive to the maintenance of proper discipline among government servants. Like other employers, the Government is also entitled to pick and choose from amongst a large number of candidates offering themselves for employment. But this can only be done on one condition, that all applicants must be given an equal opportunity along with others who qualify for the same post. The selection test must not be arbitrary and technical qualifications and standards should be prescribed where necessary. In this case, in our view, there is violation of the right of the writ petitioner under Article 16(1) which provides for the general rule, that there should be equal opportunity for citizens in matters relating to "employment" or "appointment to any office" under the State, matters incidental to employment both prior and subsequent to the employments which form part of the terms and conditions of such employment. In this case, the writ petitioner was in the first instance denied equal opportunity as given to other applicants from appearing in the entrance examination on the ground of disability which was not mentioned as a condition in the advertisement. That apart, the writ petitioner, although a visually impaired lady had not asked for any special favour for selection to the post of Probationary Officer............"
81. The Hon'ble Apex Court in re; State of Uttar Pradesh v. Dayanand Chakrawarty and others, (2013) 7 SCC 595, has held in paras-30 to 34 as under:-
"30. This Court in Harwindra Kumar [Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300 : 2006 SCC (L&S) 1063] held that so long as Regulation 31 is not amended, 60 years which is the age of superannuation of the government servants shall be applicable to the employees of the Nigam. However, in contravention of finding of this Court without amending Regulation 31, new Regulations 3 and 4 of the 2005 Regulations have been framed by the Nigam prescribing two separate ages of superannuation for similarly situated employees.
31. In Prem Chand Somchand Shah v. Union of India [(1991) 2 SCC 48] this Court held: (SCC p. 56, para 8) "8. As regards the right to equality guaranteed under Article 14 the position is well settled that the said right ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment. It means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Conversely discrimination may result if persons dissimilarly situate are treated equally. Even amongst persons similarly situate differential treatment would be permissible between one class and the other. In that event it is necessary that the differential treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the statute in question."
32. Since creation of the Nigam, irrespective of source of recruitment, the employees of the Nigam were treated alike for the purpose of superannuation and were allowed to superannuate at the age of 58 years as is evident from Regulation 31.
33. As per the decision of this Court in Prem Chand Somchand Shah [(1991) 2 SCC 48] even amongst persons similarly situated differential treatment would be permissible between one class and the other. In that event it is necessary that the differential treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the statute. The appellants, the Nigam as well as the State of Uttar Pradesh failed to place on record the reasons for differential treatment which distinguishes employees of erstwhile Lsged and those who were appointed directly in the Nigam.
34. Further, as employees appointed from different sources, after their appointment were treated alike for the purpose of superannuation under Regulation 31, subsequently solely on the basis of source of recruitment no discrimination can be made and differential treatment would not be permissible in the matter of condition of service, including the age of superannuation, in absence of an intelligible differentia distinguishing them from each other. We therefore hold that the High Court by the impugned judgment [Dayanand Chakrawarty v. State of U.P., (2010) 6 All LJ 1] rightly declared the 2005 Regulations unconstitutional and ultra vires Article 14 of the Constitution of India."
82. The Hon'ble Apex Court in re; Maharashtra Forest Guards and Foresters Union v. State of Maharashtra and others, (2018) 1 SCC 149, has held in para-17 as under:-
"17. The challenge is on the further rigour put on the eligibility to appear in LDCE. The whole purpose of LDCE is to encourage and facilitate the Forest Guards to get accelerated promotion on the basis of merit. Since seniority is the criterion for promotion to three-fourth of the posts, one-fourth is given a chance to compete in a competitive examination. It is also to be noted that there is no quota prescribed on the basis of higher educational qualification. The situation would have been different if, in the first place, there had been a classification wherein 75% of the posts have to be filled based on seniority and 25% reserved for graduates and again subject to inter se merit in the competitive examination. That is not the situation in the present case. The LDCE is meant for selection for promotion from the entire lot of Forest Guards irrespective of seniority but subject to minimum five years of service. In that situation, introducing an additional restriction of graduation for participation in LDCE without there being any quota reserved for graduates will be discriminatory and violative of Articles 14 and 16 of the Constitution of India since it creates a class within a class. The merit of the 25% cannot be prejudged by a sub-classification. It violates the equality and equal opportunity guarantees. The Forest Guards, irrespective of educational qualifications, having formed one class for the purpose of participation in LDCE, a further classification between graduates and non-graduates for participating in LDCE is unreasonable. It is a case of equals being treated unequally."
83. Sri Radha Kant Ojha, learned Senior Advocate, has submitted that however, he is adopting the arguments advanced by Sri H.N. Singh, learned Senior Advocate, by Dr. L.P. Misra, and by Sri Upendra Nath Mishra, but he wants to submit one more aspect, which has not been addressed by the other counsels that the competent authorities for making selection on the post of Assistant Teacher pursuant to the judgment of the Hon'ble Apex Court in re; Anand Kumar Yadav (supra) have not followed the relevant provisions of the Uttar Pradesh Basic Education Act, 1972 (for short "the Act, 1972"). He has further submitted that however, there is one Board constituted under the Act in the name of Board of Basic Education, but the same has not been constituted strictly in terms of Section 3 (3) of the Act, 1972. He has further submitted that the Board has not discharged its duties as per Section 4 of the Act inasmuch as for conducting the examination in question, the Board is to carry out necessary exercise for fixing the terms and conditions of the examination in question and after thorough scrutiny on the aforesaid aspect, proposal should be sent to the State Government so that the State Government could notify the Government Order and issue advertisement to that effect.
84. As per Sri Ojha, in the instant case, irresponsible, callous and careless approach of the Board may be seen out of glaring instance that the examination for Assistant Teacher Recruitment Examination was to be conducted on 6.1.2019 and the Secretary, Board of Basic Education preferred a letter dated 5.1.2019 to the Special Secretary of the Government for fixing minimum qualifying marks. Had the requisite exercise been conducted by the board prior to issuance of Government Order dated 1.12.2018 and advertisement dated 5.12.2018, such condition must have been inserted in the aforesaid Government Order. On account of callous approach of the authorities of the Board, the State Authorities are facing embarrassment and have been defending such embarrassment.
85. Sri Ojha has also submitted that the State Government might have very well been disagreed with the letter dated 5.1.2019 so preferred by the Secretary, Board of Basic Education invoking power given under Section 13 of the Act, 1972 and may declare the result of Assistant Teacher Recruitment Examination, 2019 in terms of its Government Order dated 1.12.2018 and advertisement dated 5.12.2018. As per Section 13 of the Act, 1972, overall control on the Board of Basic Education would be of the State Government.
86. As per Sri Ojha, had the State Government not acted upon the letter dated 5.1.2019 of the Secretary of the Board, the examination in question i.e. Assistant Teacher Recruitment Examination, 2019 would have been concluded in the same manner as the earlier examination i.e. Assistant Teacher Recruitment Examination, 2018 was conducted and no writ petitions of any kind whatsoever would have been filed.
87. Sri H.G.S. Parihar, learned Senior Advocate, has submitted at the outset that he is adopting the arguments of Sri H.N. Singh, learned Senior Advocate, Dr. L.P. Misra and Sri Radha Kant Ojha, learned Senior Advocate. Sri Parihar has cited the judgment of the Division Bench of this Court in re; State of U.P. and others v. Vindhyavasini Tiwari and others, [2014 (5) ADJ 74 (DB)], submitting that the Division Bench of this Court while considering so many judgements of the Hon'ble Apex Court has held that any amendment in Rules midway changing the rules of game is not permissible. The amendments in eligibility and selection process have to be applied for selection to be held in future.
88. Sri Parihar has also cited the dictum of Hon'ble Apex Court in re; Salam Samarjeet Singh v. High Court of Manipur at Imphal and another, (2016) 10 SCC 484, submitting that however, the issue as to whether the game of rule may be changed after the game starts has been referred to the Larger Bench in some cases having difference of opinion on the issue, but in most of the cases, the dictum of K. Manjusree (supra) and Hemani Malhotra (supra) is still being followed. Both the aforesaid judgements i.e. K. Manjusree (supra) and Hemani Malhotra (supra) are holding the field. Paragraphs-49 & 50 of the judgment in re; Salam Samarjeet Singh (supra) are being reproduced herein below:-
"49. In the result, in my view the petitioner is entitled to the relief sought for in the writ petition which is allowed in the light of discussions made above. The viva voce result of the petitioner dated 16-2-2015 showing him as "unsuccessful" shall stand quashed. The respondents shall declare the result of the petitioner for appointment to MJS Grade I as per discussion made in this judgment forthwith and in any case within four weeks. In the peculiar facts of the case, in my view, a decision for the appointment of the petitioner to MJS Grade I with retrospective effect after a reasonable period from date of the viva voce result which was 16-2-2015 or say w.e.f. 1-4-2015 should be communicated to the petitioner within the aforesaid period of four weeks. In case the petitioner is offered the appointment and joins the service, he would get wages by way of salary, etc. only from the date he starts working on the post. For the past period he would be entitled only for notional benefits of increment and length of service for pensionary benefits, as and when occasion arises in future. The writ petition of the petitioner succeeds accordingly. The petitioner is held entitled to a cost of Rs 50,000.
50. Since there is a difference of opinion between us in view of the dissenting judgments pronounced by us, the matter may be placed before appropriate Bench for final adjudication after obtaining permission of the Hon'ble the Chief Justice of India."
89. Accordingly, Sri Parihar has submitted that since the impugned Government Order dated 7.1.2019 is causing serious prejudice to the petitioners, therefore, the same may be set aside and direction may be issued that the result of Assistant Teacher Recruitment Examination, 2019 be issued in the same manner as the result of Assistant Teacher Recruitment Examination, 2018 has been declared ignoring the Government Order dated 7.1.2019.
90. Per contra, Sri Prashant Chandra, learned Senior Advocate has submitted on behalf of State-respondent with vehemence that bare perusal of the contents of writ petitions it does not disclose as to what detriment has been caused to the petitioners as their rights, be it fundamental or legal, have not been violated by the impugned Government Order dated 7.1.2019. He has further submitted that the petitioners may not claim any relief on the basis of grounds which has however, been argued but the same are not taken in the pleadings. Sri Chandra has submitted that in an adversarial system of justice pleadings form foundation of the litigation and the truth is supposed to emerge from the respective version of the facts presented by the respective parties. As per Sri Chandra the contentions of the writ petitioners that; (i) Assistant Teacher Recruitment Examination is not a 'Basic Qualification' by virtue of the judgment of Anand Kumar Yadav and 22nd Amendment, (ii) Assistant Teacher Recruitment Examination -2019 could not have been conducted at all on account of the order dated 6.3.2018 passed by the learned Single Judge of this Court and (iii) Rules ought to be read down as the fixation of qualifying marks in the manner prescribed under the Rules renders otiose the weightage granted to the petitioner, are not sustainable for those who have not been pleaded in the writ petition.
91. In support of his argument that parties cannot travel beyond the pleadings, Sri Chandra has cited the judgment of Hon'ble Apex Court, which are as under:
(i) Arikala Narasa Reddy vs. Venkata Ram Reddy vs. Venkata Ram Reddy Reddygari and Ors. reported in (2014) 5 SCC 312.
(ii Kalyan Singh Chouhan vs. C.P. Joshi, reported in (2011) 11 SCC 786.
92. Sri Chandra has further submitted that fixing of different cut off marks in the examination of Assistant Teacher Recruitment Examination-2018 and Assistant Teacher Recruitment Examination-2019 flows from the right of State Government conferred under the amended Rules. There is no vested rights of Shiksha Mitras for claiming reduction in the cut off marks and in view of several differences which had arisen in conducting the two examinations, the cut off marks were necessary to be altered in keeping with the law laid down by the Hon'ble Apex Court in several decisions rendered in the education matters itself. Hence, there is no violation of Article 14 and 16 of the Constitution of India.
93. In support of his contention that the decision taken by the State Government to fix the minimum qualifying marks is a policy decision and is based on recommendation made by the experts, therefore, it is not amenable to judicial review, Sri Chandra has cited the judgment of Hon'ble Apex Court i.e. the Federation of Haj Ptos vs. Union of India, W.P. (Civil) No. 4 of 2019 order dated 4.02.2019 wherein the Hon'ble Apex Court has been pleased to observe as under:
"Public authorities must have liberty and freedom in framing the policies. It is well accepted principle that in complex social, economic and commercial matters, decisions have to be taken by governmental authorities keeping in view several factors and it is not possible for the courts to consider competing claims and to conclude which way the balance tilts. Courts are illequipped to substitute their decisions.
It is not within the realm of the courts to go into the issue as to whether there could have been a better policy and on that parameters direct the Executive to formulate, change, vary and / or modify the policy which appears better to the court. Such an exercise is impermissible in policy matters.
The scope of judicial review is very limited in such matters. It is only when a particular policy decision is found to be against a statute or it offends any of the provisions of the Constitution or it is manifestly arbitrary, capricious or mala fide, the court would interfere with such policy decisions. No such case is made out. On the contrary, views of the petitioners have not only been considered but accommodated to the extent possible and permissible."
94. Sri Chandra has further submitted that the Hon'ble Apex Court in re: Anand Kumar Yadav (supra) clearly mandates that weightage is to be given only for two consecutive recruitments, that too only in terms of advertisement in respect thereof. There was no description that qualification must be as exists on the date of passing of the judgment. Sri Chandra has submitted that the Division Bench of this Court in re: Kulbhushan Mishra and others vs. State of U.P. & others: Special Appeal Nos. 812, 852 of 2018, vide order dated 26.9.2018 has held that Assistant Teacher Recruitment Examination is a basic qualification notwithstanding the 22nd Amendment to the 1981 Rules.
95. Sri Chandra has further submitted that the judgment and order dated 6.3.2018 passed by the learned Single Judge would not be applicable in respect of Assistant Teacher Recruitment Examination, 2019 as the aforesaid order was passed in respect of Assistant Teacher Recruitment Examination-2018.
96. As per Sri Chandra there is no right under the Rules that weightage must be accorded at 45% cut off marks. Further, Rule 14 clearly provides for grant of weightage after qualifying the Assistant Teacher Recruitment Examination with the qualifying marks as determined. Argument of the petitioners that the Rule should be 'Read Down' and that the 'minimum qualifying marks' should be 45%, as in case cut off marks are fixed at 65% & 60%, Appendix-1 would be rendered redundant and the effect of the weightage will be nullified, is misplaced. There is no challenge to the vires of the Rules and question of 'reading down' arises only when a provision is found to be unconstitutional by the Court, to prevent it from being struck down. The petitioners have neither pleaded nor made out a case for invoking the doctrine of 'reading out'.
97. Sri Chandra has further submitted that all Shiksha Mitras do not constitute a homogeneous class for the reason that 'homogeneity' requires members to be the same species, having the identical characteristics but the petitioners are not the same species and only falls in the same 'qualification'. Further, neither the manner of examination of Assistant Teacher Recruitment Examination -2018 is similar to the Assistant Teacher Recruitment Examination-20-19 nor the candidates who had appeared in Assistant Teacher Recruitment Examination-2018 are the similar to those appeared in Assistant Teacher Recruitment Examination-2019.
98. In Support of his contention that the Shiksha Mitras who appeared in Assistant Teachers Recruitment Examination- 2018 and Assistant Teachers Recruitment Examination-2019 are not the homogeneous class. Sri Chandra has cited following judgment :
Union of India vs. Chandris reported in 1956(1) AIIER 358.
99. Sri Chandra has submitted that there is no illegality or infirmity in the Government Order dated 7.1.2019 as the same is neither arbitrary nor illegal and it is only a policy decision, the same is beyond the scope of judicial review and may not be interfered with. Further, the decision to increase the cut off mark has been taken after due deliberations by the experts and in furtherence with object of improving the merit and standard of education.
100. In support of his contention that in the present case there is no change in 'Rule of Game', Sri Prashant Chandra has cited the following judgments :
(i) V. Lavanya and others vs. State of Tamil Nadu represented by its Principal Secretary and others reported in (2017) 1 SCC 322.
(ii) Yogesh Yadav vs. Union of India and others reported in (2013) 14 SCC 623.
(iii) Arunachal Pradesh Public Service Commission and another vs. Tage Habung and others reported in (2013) 7 SCC 737.
(iv) Tej Prakash Pathak and others vs. Rajasthan High Court and others reported in (2013) 4 SCC540, and
(v) K. Manjushree vs. State of Andhra Pradesh and another reported in (2008) 3 SCC 512.
101. In the light of the ratio being propounded by the Hon'ble Apex Court, Sri Chandra has also submitted that since the decision to increase cut off marks has been taken after due deliberations by the experts and so as to achieve the object of improving the merit standard of the education, therefore, no interference in the Government Order dated 7.1.2019 can be done. Sri Chandra has submitted that it has been view of the Hon'ble Apex Court that every decision taken by the government with expedition cannot be deemed arbitrary as there may be circumstances which may impel the Government to take an expeditious decision. In support of aforesaid submission Sri Chandra has also cited the judgment of The State of Haryana vs. Subhash Chander Marwaha and others reported in (1974) 3 SCC 220 referring para 12 thereof which reads as under :
"...In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for more (sic-mere eligibility)."
102. Sri Chandra has submitted that however, the Hon'ble Apex Court in re: K. Manjushree vs. State of Andhra Pradesh reported (supra) has held that if any benchmark has been prescribed for the selection in question, it may not be changed later on as it would amount to "changing the Rules of game after the game is played". In the case of Tej Prakash Pathak and others vs. Rajasthan High Court and others (supra) the Hon'ble Apex Court has referred the judgment of K. Manjushree (supra) for the larger Bench being disagreed with the ratio of K. Manjushree (supra), therefore, Sri Chandra has submitted that since the dictum of K. Manjushree (supra) is pending for final adjudication before the larger Bench of Hon'ble the Apex Court, no inference may be drawn of the basis of the judgment of K. Manjushree (supra).
103. In support of his contention that unless the particular Rule is not challenged the prayer of reading down cannot be made, Sri Chandra has cited following judgments:
(i) SanjayKumar vs. Narinder Verma reported in (2006) 6 SCC 467.
(ii) State of Rajasthan vs. Sanyam Lodha reported in (2011) 13SCC 262.
(iii) Subramanian Swamy vs. Election Commission of India reported in (2003) 14 SCC 318.
104. Sri Prashant Chandra, learned Senior Advocate has submitted that under the amended Rule 2(x) an absolute discretion has been conferred upon the State Government to fix the percentage of marks required to clear the examinations which are referred to as the minimum marks prescribed. Rule 2 (x) reads as follows:
"(x) Qualifying marks of "Assistant Teacher Recruitment Examination" means such minimum marks as may be determined from time to time by the Government."
105. In a like manner, a similar power has been conferred upon the NCTE to fix a minimum qualifying mark to pass an examination. The NCTE in exercise of the said right had fixed 60% & 55% marks as the minimum qualifying mark for TET examination. The fixation of 60% & 55% marks by the NCTE cannot be deemed as arbitrary as the ultimate ideology is to select teachers who possess the requisite knowledge or expertise to be able to impart education. Passing the TET examination with 60% & 55% is not along sufficient for being appointed as Assistant Teacher. The Supreme Court in the case of Anand Kumar Yadav has categorically ruled that the minimum educational qualifications are not the determining factor for considering a person for appointment on the post of Assistant Teacher but in addition to possessing the minimum prescribed qualifications.
106. Sri Chandra has further submitted that it would thus be seen that the candidate has necessarily to pass Assistant Teachers Recruitment Examination, the holding of which is mandatory as per Rules. The percentage pass mark in such an examination is to be fixed by the State Government in accordance with the power conferred under the Rules. It is this exercise that the State Government has performed while issuing the Government Order dated 07.01.2019 and in the wisdom of the experts it was thought necessary and proper to fix 65% (for general) and 60% (for reserved) which cannot be faulted.
107. Sri Chandra has submitted with vehemence that by giving examples of other government services and vocations and the fixation of pass marks in different examinations at 33%, the petitioners cannot compel the Government to compromise on merit. In respect of selection of teachers, every service has been given a distinct and important place and there is no manner or mode to equate two services of different nature. Education has been given a different and important place and the endeavour of the State Government to achieve excellence in the field of education has to be lauded not contemned. By asking the State to lower the merit from 65% to 45% is a demand to forgo the merit completely by totally ousting the meritorious candidates who fair well in the Assistant Teacher Recruitment Examination. While fixing the cut-off mark several factors are taken into consideration including the pattern of examination and nature of questions. There is no malice in fixing the minimum cut-off at 65%. The petitioner may gainfully rely upon the judgment of Taniya Malik vs. Registrar General of the High Court of Delhi. (2018) 14 SCC 129 :
"It was urged that out of 64 candidates, only one has failed in the interview. That, in fact, does not show the prejudice but is rather indicative of the fact that the performance of the petitioner was such that in spite of the Committee being most liberal, it did not find it appropriate to award even the minimum passing marks to the said candidate. In our opinion, the awarding of marks by the Committee could not be said to be inappropriate. No malice has been attributed; as such we find no scope for interference on the aforesaid ground. Reliance has been placed on Ajith Kumar (supra) in which the Commission has relaxed the criteria to call various reserved category candidates who secured marks out of the cut off marks. This Court has observed that challenge to the decision of the Service Commission to relax cut off marks with respect to reserved category candidates could not succeed in the earlier round of litigation.
There was relaxation of cut off marks for reserved category candidates in the preliminary examination not governed by rules. In the instant case in the rules, the minimum cut off is prescribed. That could not have been relaxed and moreover, relaxation is a matter of policy and considering the overall circumstances, importance of interview, the decision not to relax cannot be said to be unreasonable. The decision has not application."
108. In view of above submissions, Sri Prashant Chandra has submitted that the present writ petition is liable to be dismissed.
109. Sri Anil Kumar Tiwari, learned Senior Advocate assisted by Sri Amrendra Nath Tripathi, Advocate for the Intervenors has submitted with vehemence that fixation of bench mark when there is no stipulation in the advertisement was permissible since it intended to recruit the best candidates. Further, if minimum qualifying marks were not mentioned in the advertisement and the rules mentioned above having minimum qualifying marks the action of the government fixing cut off shall be legal. As per Sri Tiwari, it is not the job of the Court to substitute what it thinks to be appropriate, for that job the Selection Authority has decided as desirable. As per Sri Tiwari, the Court cannot re-write the rules of selection. In case where the appointments are made by selection from number of eligible candidates, it is open for the government to fix the score which may be much higher than one required for eligibility. In the absence of contrary rules, Competent Authority can fix minimum qualifying marks for selection.
110. As per Sri Anil Kumar Tiwari, the Court cannot substitute their views in the decision of the State Government with regard to policy matter. It is exclusively within the domain of the Legislature to determine how the provisions of statute may be best implemented.
111. So far as the arguments of learned counsel for the petitioners in respect of invoking the principles of writing down is concerned, Sri Tiwari has submitted that in the absence of any challenge to the rules, the Court cannot write down the said rules. As per him, if the law is clear, no notion of equity can substitute the same. Replying the submission of learned counsel for the petitioners regarding distinction amongst homogeneous class, Sri Tiwari has submitted that each examination is separate and distinct and case of discrimination cannot be made out solely on the ground that in earlier examination the 'cut off' was less. Minimum qualification refers to qualification which is to be put a cut of level for a particular job in accordance with minimum competency required for the performance of that job.
112. In support of his submission that the government can fix minimum qualifying marks if the same is prescription of the rules, he relied upon the judgment of Hon'ble Apex Court in re: Barot Vijay Kumar Balakrishna and others vs. Modh Vinay Kumar Dasrathlal and others reported in (2011) 7 SCC 308. As per Sri Tiwari, the Hon'ble Apex Court has held that if separate minimum qualifying marks were not fixed for viva-voce and those marks have been fixed few days before viva-voce, the same could have been fixed for the reason that it was required under the rules to have separate qualifying marks for viva-voce and at the time of notification no 'cut off marks' were fixed. Therefore, before the few days of viva-voce if "cut off marks" have been fixed, it may not be held as illegal as it did not cause any prejudice to any candidate.
113. It is to be noted that this case is slightly different from the present case inasmuch as in the said case i.e. Barot Vijay Kumar Balakrishna (supra) the minimum qualifying marks for viva-voce had been fixed before the test of viva-voce conducted, but here the "cut off marks" for qualifying the A.T.R.E. has been fixed after the said examination had already taken place.
114. In support of his arguments that the Court cannot substitute what it makes to be appropriate and cannot re-write the rules of selection, Sri Tiwari has relied upon the judgment of Hon'ble Apex Court in re: Rajya Sabha Secretariat and others vs. Subhash Badola and others reported in (2013) 5 SCC 169. In the aforesaid case, the Hon'ble Apex Court has appreciated the controversy in issue vide paras-19, 20 and 21 and the ratio is in para-26, which are as under:-
"19. The Learned Single Judge in his impugned Judgment has referred to the cases of K. Manjushree Vs. State of Andhra Pradesh reported in 2008(3) SCC 512 and Himani Malhotra Vs. High Court of Dehi reported in 2008 (7)SCC 11. The factual situation in these two cases is however, quite different from the one in the present case. In Manjushree (supra), the minimum cut-off marks were prescribed after the interviews were over, and after the first merit list was prepared. In Himani Malhotra (supra) there was no indication in the advertisement about the minimum qualifying marks for the interview and the same were introduced by the selecting committee after the written test was over and after the date for oral interview was postponed.
20. The question before us is whether the interview board can be faulted for making the certificate marks a component of the 25 interview marks, and whether thereby the candidates were in any way taken by surprise. In this connection we must note that the appellants had advertised that the NCC/Sports and Computer certificates were 'desirable'. The call-letter, in paragraph 5 thereof, specifically called upon the candidates to bring their certificates at the time of the Personal Interview. It further stated that credit for the same shall be given only if the certificate was accompanied by a declaration by the concerned institute that the course done by the candidate was recognized by AICTE or DOEACC. Thus, it was clear that credit was to be given to those certificates as a part of the interview. The respondents, therefore, cannot make any grievance that they were taken by surprise by giving of 7 (out of 25) marks for such certificates to the successful candidates. Nor can the respondents say that any prejudice is caused to them, since all candidates having such certificates were uniformly given 5 and/or 2 marks for the certificates, and those who were not having them were not given such marks. The process cannot, therefore, be called arbitrary.
21. The decisions rendered by the High Court were erroneous for one more reason. In the present case, the interview was to be of 25 marks. The view which has appealed to the Learned Judges of the High Court would mean that the cut-off marks (say 50%) will have to be obtained out of 18 marks, whereas the advertisement clearly stated that the cut-off marks had to be obtained in the Written Test and the Personal Interview. This meant obtaining cut-off marks out of 25 marks set out for interview as well. The consequence of the view which is accepted by the High Court will be that it may as well happen that candidates who did not have the NCC/Sports certificates or any computer course certificates will obtain higher marks out of 18 marks, and will top the list. On the other hand the candidates who have these certificates may not get the cut-off marks out of 18, or even if they get those marks, they may land at the lower level in the inter-se seniority in the merit order for selection. This was certainly not meant to be achieved by the selection process, when these certificates were declared in advance as 'desirable'.
26. Having noted this factual and legal scenario, in our view there was nothing wrong in the method applied by the appellants in the Selection of the Security Assistants Grade-II. There was no discrimination whatsoever among the candidates called for the interview, nor any departure from the advertised requirements. One can always say that some other method would have been a better method, but it is not the job of the Court to substitute what it thinks to be appropriate for that which the selecting authority has decided as desirable. While taking care of the rights of the candidates, the Court cannot lose sight of the requirements specified by the selecting authority. What the High Court has proposed in the impugned orders amounts to re-writing the rules for selection, which was clearly impermissible while exercising the power of judicial review."
115. The Hon'ble Apex Court in re: Rajya Sabha Secretariat and others vs. Subhash Baloda & others (supra) has clearly indicated the reason as to why the judgment of K. Manjushree (supra) and Himani Malhotra (supra) will not be applicable in that issue. As per Hon'ble Apex Court in re: Rajya Sabha Secretariat (supra), there was no indication in the advertisement about the minimum qualifying marks for interview and the same was introduced by the Selection Committee after written test was over and after the date of oral interview was postponed. But since the facts of Himani Malhotra (supra) were different, therefore, the Hon'ble Apex Court in the case of Rajya Sabha Secretariat (supra) has held that the ratio of Himani Malhotra (supra) would not be applicable in the said case. It is to be noted here that the facts of Himani Malhotra (supra) are however more or less similar to the present case wherein the written examination of A.T.R.E. was conducted on 06.01.2019 and the decision for fixing minimum qualifying marks has been taken on 07.01.2019. Admittedly, the aspirants of the said examination were not known about the said "cut off marks" being fixed before appearing in the examination.
116. In support of his contention that the Court cannot write down the rules unless those rules have been specifically assailed, Sri Anil Kumar Tiwari has relied upon the judgment of Hon'ble Apex Court in re: State of Rajasthan and others vs. Sanyam Lodha reported in (2011) 13 SCC 262.
117. In support of his arguments that if the law is clear no notion of equity can substitute the same, Sri Anil Tiwari has cited the judgments of Hon'ble Apex Court in re: Narinder S. Chadha and others vs. Municipal Corporation of Greater Mumbai and others reported in (2014) 15 SCC 689 and Rohitash Kumar and others vs. Om Prakash Sharma and others reported in (2013) 11 SCC 451.
118. There is no quarrel on the point that equity follows the law and if the law is clear no notion of equity can substitute the same but in the instant case since the prescription of rules categorically provides that there should be a minimum qualifying marks fixed by the government, time to time means it should have been fixed before the examination is commenced. Further, the prescription of rules provides that the examination in question i.e. A.T.R.E.-2019 should be finalized on the basis of quality point marks as per Appendix-I of 20th amendment of Rules, 1981 wherein there are six items, on the basis of which, the quality point marks would be calculated/ determined and it appears that atleast 60% aspirants of the examination in question (B.Ed. candidates etc.) may not get quality point marks for item No.4 and 6. However, those candidates may get quality point marks on the basis of Appendix-II, which is admittedly not applicable in the instant case. Further, there is prescription in the rules that Shiksha Mitras candidates shall get weightage maximum of 25 marks which is included in the Appendix-I but fixing such a high minimum qualifying marks appears to be unreasonable as B.Ed. candidates may likely to qualify and Shiksha Mitras may likely to disqualify. The submission of learned counsel for the opposite parties including the submission of learned counsel for the State-respondents does not clarify as to what is the object to fix such a high 'cut off marks' for A.T.R.E.-2019, after the examination is over, when in the earlier examination against which there is no case of State Government that it was not properly conducted. Lastly, when the State was duty bound to conduct two consecutive examinations providing some benefits to the Shiksha Mitras in terms of judgment of Anil Kumar Yadav (supra), there was no logical purpose to deviate the procedure of examination of second examination i.e. A.T.R.E.-2019 from the first examination i.e. A.T.R.E.-2018. In these circumstances, if this Court issues any direction against the authorities it may not be said that this direction is only equitable direction but it would be the direction in conformity with the rules.
119. Sri Anil Tiwari has referred the judgment of Hon'ble Apex Court in re: P.V. Indiresan (2) vs. Union of India & others reported in (2011) 8 SCC 441 explaining the term of "cut off marks" referring paras-21 to 25 has submitted that the term "cut off marks" in academic and judicial vocabulary has several meanings, and as per him, "cut off marks" are also used to refer to the minimum marks (either eligibility marks or qualifying marks), required for admission to a Course. Therefore, as per Sri Tiwari, the minimum marks and "cut off marks" is one and the same thing and what should be the minimum marks may not be determined by the Court.
120. It is true that minimum marks for any selection may not be determined by the Court but if at all that minimum marks have been fixed for any selection, as seen in the case of Subhash Chandra Marwah (supra), but in the present case, admittedly if any person qualifies the A.T.R.E., shall not be eligible to be appointed/ selected on the post of Assistant Teacher but he / she shall inter in the next stage. However, marks obtained by the candidates in A.T.R.E. shall be added in other marks obtained by the candidate so as to calculate the quality point marks as per Appendix-I. Therefore, in view of the above, fixing so high minimum qualifying marks for the examination in question, which is only a qualifying examination for which as per the State Government itself 45% and 40%, later on 33% and 30% for both the categories have been treated as minimum qualifying marks. This Court may not loose at site a relevant fact that only those candidates may appear in A.T.R.E. who have qualified T.E.T. examination having minimum qualifying marks as 60% and 55%, as the case may be. Therefore there appears no logic, much less reasonable logic to fix the minimum qualifying marks for A.T.R.E. as 65% and 60%.
121. Sri Anil Tiwari has further argued that N.C.T.E. while exercising its powers under Section 23 (1) of Right to Education Act, 2009 had issued notification dated 23.08.2010, 29.,07.2011, 12.11.2014 and 28.11.2014 whereby had prescribed minimum qualification for appointment of teachers in Class-I to V. The N.C.T.E. recently on 28.06.2018 had issued amendment to notification dated 23.08.2010 whereby had added B.Ed. along with two years B.T.C. training as minimum educational qualification for appointment as teacher in Class-I to V. Therefore, prior to notification dated 28.06.2018, the B.Ed. degree holders were not eligible for being appointed as teacher in Class-I to V. As per him, now after the notification of N.C.T.E. dated 28.06.2018, B.Ed. also became requisite minimum qualification along with the B.T.C. training and the present selection is not of the trainee teachers under Rule 14 (1) (c), but of Assistant Teachers under Rule 14 (1) (a), for which B.Ed. degree holders are also eligible along with B.T.C. training holders.
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.
123. Sri A.M. Tripathi, learned counsel for the intervenors has adopted the arguments of Sri Anil Tiwari, learned Senior Advocate. Since Sri A.M. Tripathi has appeared on behalf of the candidates, who are having B.Ed. qualification and the arguments on behalf of the candidates having B.Ed. qualification have already been advanced by Sri Anil Tiwari, learned Senior Advocate, therefore, separate arguments of Sri A.M. Tripathi are not being dealt with.
124. Not only the above, Sri Amrendra Nath Tripathi has already adopted the arguments of Sri Anil Tiwari, learned Senior Advocate and even he has assisted him, therefore, separate arguments of Sri Amrendra Nath Tripathi are also not being dealt with.
125. In a rejoinder reply, Sri Upendra Nath Mishra has submitted with vehemence that the case laws relied upon by the learned counsel for the State-respondents on the aforesaid proposition do not apply in the case in hand because in the instant case, change in the rules of the game has been introduced after completion of the examination, which was akin to the case of K. Manjusree Vs. State of Andhra Pradesh and another, (2008) 3 SCC 512, which is still holding the field. The cases of Arunachal Pradesh Public Service Commission and another Vs. Tage Habung and others, (2013) 7 SCC 737 and Yogesh Yadav Vs. Union of India and others, (2013) 14 SCC 623 referred by the learned Senior Counsel for State-respondents were considered in the subsequent case of Bishnu Biswas and others Vs. Union of India and others, (2014) 5 SCC 774 in which K. Manjusree (supra) was applied. Similarly, after the case of V. Lavanya v. State of Tamil Nadu, (2017) 1 SCC 322, Hon'ble Supreme Court again applied K. Manjusree (supra) in case of Sivanandan C.T. and others v. High Court of Kerala and others, (2018) 1 SCC 239. Therefore, as per Sri Mishra, the law laid down in K. Manjusree (supra) is still applicable, however, the same has been referred to the Larger Bench by the Hon'ble Apex Court in re; Tej Prakash Pathak and others v. Rajasthan High Court and others, (2013) 4 SCC 540. In support of the aforesaid submission, Sri Mishra has referred the dictum of the Hon'ble Apex Court in re; K. Manjusree Vs. State of Andhra Pradesh and another, (2008) 3 SCC 512. Para-27 of the said judgment is being reproduced herein below:-
"27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum m arks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier resolutions dated 24.7.2001 and 21.2.2002 and held that what was adopted on 30.11.2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the 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. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them -- P. K. Ramachandra Iyer v. Union of India 1984 (2) SCC 141, Umesh Chandra Shukla Vs. Union of India 1985 (3) SCC 721, and Durgacharan Misra v. State of Orissa 1987 (4) SCC 646.
126. He has further referred the dictum of the Hon'ble Apex Court in re; Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11. Paragraphs no.15 & 16 of the aforesaid judgment are as under:-
"15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal.
16. The contention raised by the learned Counsel for the respondent that the decision rendered in K.Manjusree (supra) did not notice the decisions in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 as well as K.H.Siraj v. High Court of Kerala and Others (2006) 6 SCC 395 and therefore, should be regarded either as decision per incuriam or should be referred to a Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or nor, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K.Manjusree (supra) the Court noticed the decisions in (1) P.K.Ramachandra Iyer v. Union of India (1984) 2 SCC 141; (2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721; and (3) Durgacharan Misra v. State of Orissa (1987) 4 SCC 646, and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K.Manjusree (supra) can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision."
127. In support of his aforesaid contention that rule of game can't be allowed to change after the game starts, Sri Mishra has further cited some more dictums of the Hon'ble Apex Court in re: (i) Tej Prakash Pathak and others v. Rajasthan High Court and others, (2013) 4 SCC 540, (ii) Bishnu Biswas and others v. Union of India and others, (2014) 5 SCC 774, (iii) Salam Samarjeet Singh v. High Court of Manipur at Imphal and another, (2016) 10 SCC 484 and (iv) Vikas Sankhala and others v. Vikas Kumar Agarwal and others, (2017) 1 SCC 350.
128. In the case of Vikas Sankhala (surpa), the Hon'ble Apex court has considered the dictum of K. Manjusree (supra).
129. Sri Mishra has further cited the dictum of the Hon'ble Apex Court in re; Sivanandan C.T. and others v. High Court of Kerala and others, (2018) 1 SCC 239. Paragraphs no.4, 5, 6 & 7 of the aforesaid judgment are as under:-
"4. The main contention is that the rules of the game could not have been changed after the game is played and the result of the game is known to the selectors.
5. Though several other contentions are raised by both sides, we find that the decision in K. Manjusree v. State of Andhra Pradesh, (2008) 3 SCC 512, squarely applies to the facts of this case. In Manjusree (supra), 75 marks were allotted for the written examination and 25 marks for the interview. The aggregate governed the merit. However, the written examination was conducted for 100 marks. When the Full Court noticed this, a sub-committee was appointed to make the arithmetical correction to scale down the marks in the written examination to 75 instead of 100. The sub-committee did two things - (1) it made the arithmetical correction, (2) it introduced the same cut-off percentage for the interview as in the written examination and thus revised the merit list, which was approved by the Full Court. In the process, a few candidates were removed from the original merit list including Manjusree. A Bench of three Judges of this Court held that: (SCC p.524 para 27)"
"27. ... introduction of the requirement of the 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".
The Bench specifically noted that the Resolution of the Full Court to not specifically stipulate minimum marks for viva-voce was still in force. Yet, when the sub-committee introduced the change, the same was approved by the Full Court.
6. Tej Prakash Pathak and others v. Rajesthan High Court and others, (2013) 4 SCC 540 has, however, specifically doubted the correctness of Manjusree (supra) on the point whether "....changing the rules of the game after the game was played ... is clearly impermissible" and has made a Reference to a larger Bench for an authoritative pronouncement.
7. It is also relevant in this context to note that Salam Samarjeet Singh v. High Court of Manipur, (2016) 10 SCC 484, which dealt with almost a similar issue was heard by a three Judge Bench in view of the difference of opinion and it has also since been posted along with Tej Prakash (supra) by order dated 10.08.2017. Hence, it is only appropriate to refer this matter also to the larger Bench to be heard along with Tej Prakash (supra). Ordered accordingly."
130. Therefore, in view of the above, Sri Mishra has submitted that though the judgment of Hon'ble Apex Court in re; K. Manjusree (supra) was first referred to the Larger Bench in the case of Tej Prakash Pathak (supra) and again referred to the Larger Bench in case of Salam Samarjeet Singh (supra) and again referred on the third occasion to the Larger Bench in Sivanandan C.T. (supra), but the judgment of Larger Bench has not yet come on the subject. He has further submitted that it is settled position of law that mere reference of the judgment to the Larger Bench does not dilute the applicability of the judgment unless it is overruled or diluted by the Larger Bench. Therefore, the law laid down by the Hon'ble Apex Court in re; K. Manjusree (supra) is still holding the field.
131. In support of the aforesaid submission, Sri Mishra has cited the dictum of the Hon'ble Apex Court in re; P. Sudhakar Rao and others v. U. Govinda Rao and others, (2013) 8 SCC 693. Paragraphs no.54 & 55 of the aforesaid judgment are reproduced herein below:-
"54. We may mention that in Asis Kumar Samanta v. State of West Bengal, (2007) 5 SCC 800, the question whether retrospective promotion or seniority can be granted or not has been referred by a Bench of two learned Judges to a larger Bench. It has been noted therein that the grant of retrospective promotions and seniority was accepted by this Court in four decisions while grant of retrospective seniority was held to be ultra vires in five decisions. When these appeals came up for hearing on 02.5.2013, learned counsel for Asis Kumar Samanta sought an adjournment to make alternative arrangements since he could not appear against the State of West Bengal. Accordingly, that matter was adjourned beyond the ensuing summer vacations.
55. Be that as it may, the pendency of a similar matter before a larger Bench has not prevented this Court from dealing with the issue on merits. Even on earlier occasions, the pendency of the matter before the larger Bench did not prevent this Court from dealing with the issue on merits. Indeed, a few cases including Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267, were decided even after the issue raised in Asis Kumar Samanta (supra) was referred to a larger Bench. We, therefore, do not feel constrained or precluded from taking a view in the matter."
132. Sri Mishra has further cited the dictum of the Hon'ble Apex Court in re; Manager, National Insurance Company Limited v. Saju P. Paul and another, (2013) 2 SCC 41. Para 26 of the aforesaid judgment is as follows:-
"26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1, and National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years' old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01.08.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No.1) may be allowed to withdraw the amount deposited by the insurance company before this Court along-with accrued interest. The insurance company (appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517."
133. Therefore, in view of the above, Sri Upendra Nath Mishra has submitted that so far as the case laws referred by the learned counsel for the State-respondents in the instant case is concerned, those judgements are not applicable in the case in hand. Sri Mishra has argued that so far as the argument of learned Senior Counsel for the State-respondents regarding change in rules of game is concerned, the case laws have already been referred by him. So far as the case laws referred on the point that "it is the prerogative of the examining body to fix the cut off marks" is concerned, he has submitted that there can be no dispute on the aforesaid legal proposition, but this exercise of power of fixing cut off marks cannot be made arbitrarily and indiscriminately. The petitioners are not challenging the power of the State Authorities contained in Rule 2 (x) of the Service Rules, but they are aggrieved by its arbitrary exercise by the State Authorities.
134. Sri Mishra has further submitted that the case laws referred on the issue of "Weightage not to be given at the time of computation of result" are also not applicable as the petitioners are not demanding weightage of 25 marks at the time of declaration of result of Assistant Teacher Recruitment Examination. They are only aggrieved by the discriminatory treatment in fixation of minimum qualifying marks by the State in such a manner which would result in complete denial of the weightage of 25 marks towards their service experience of the petitioners/ T.E.T. qualified Shiksha Mitras.
135. Sri Mishra has further submitted that the case laws on the issue of "no vested rights and no prejudice caused" given by the State-respondents are equally not applicable in the instant case inasmuch as by not declaring the minimum qualifying marks of Assistant Teacher Recruitment Examination before holding examination, the State Authorities had denied the petitioners an opportunity to adequately prepare for the said result, as held by the Hon'ble Apex Court in re; P. V. Indiresan (supra) and therefore, material prejudice has been caused.
136. He has further submitted that so far as the case laws referred on the issue of "challenge to examination cannot lie after participation" is concerned, the said proposition/ legal issue is not applicable in the instant case inasmuch as the cause of action for filing the writ petition had originated/ occurred on 7.1.2019 i.e. only after the petitioners participated in the examination on 6.1.2019 and hence the case laws to that effect referred by the State-respondents are not applicable in the instant case.
137. In view of the aforesaid submissions and dictum of the Hon'ble Apex Court, Sri Upendra Nath Mishra has submitted that it is well established that the State Government by issuing the impugned Government Order dated 7.1.2019 has resorted to hostile discrimination and unreasonable classification amongst identically situated T.E.T. passed Shiksha Mitras like the petitioners and minimum qualifying marks have been arbitrarily increased without having any valid and cogent reason. Therefore, as per Sri Upendra Nath Mishra, the notification dated 7.1.2019 being violative of Articles 14 & 16 of the Constitution of India is not tenable in the eyes of law, therefore, it deserves to be set aside with the direction to the State Authorities not to create any discrimination amongst the homogeneous class of T.E.T. qualified Shiksha Mitras under the garb of fixing minimum qualifying marks for the current A.T.R.E. i.e. Assistant Teacher Recruitment Examination, 2019.
138. Heard the rival submissions of the respective parties and perused the material on record.
139. It would be apposite to deal first the judgment of the Hon'ble Apex Court in re; State of Uttar Pradesh and another v. Anand Kumar Yadav and others, (2018) 13 SCC 560.
140. To deal with the judgment of Hon'ble the Apex Court in re; Anand Kumar Yadav (supra), it would be pertinent to indicate here that a very long drawn litigation took place with respect of absorption of Shiksha Mitras as Assistant Teachers and ultimately, the same was decided by the Full Bench of this Court vide its judgment and order dated 12.9.2015 rendered in Writ Petition No.34833 of 2014; Anand Kumar Vs. State of U.P. and others, along with other connected matters, which was reported in 2015 (8) ADJ 338 (FB) by which it was held that Shiksha Mitras are not entitled to be absorbed as Assistant Teachers and Rule 16-A introduced by way of an amendment in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 was not lawful and the Uttar Pradesh Basic Education (Teachers) Service (Nineteenth Amendment), Rules, 2014 introducing the provisions of Rule 5 (2), Rule 8 (2) (c) and Rule 14 (6) were also declared to be arbitrary and ultra vires and the same were set aside as being unconstitutional.
141. The aforesaid judgment and order dated 12.9.2015 of the Full Bench of this Court came to be affirmed by the Hon'ble Apex Court in leading Civil Appeal No.9529 of 2017 titled as State of U.P. and others Vs. Anand Kumar Yadav and others and other connected matters by its judgment and order dated 25.7.2017 reported in (2018) 13 SCC 560. The Hon'ble Apex Court while disposing of the said leading civil appeal along with other connected matters has observed in para 33 as under:-
"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."
142. For possessing requisite qualifications to be absorbed as Assistant Teacher after getting the benefit of age relaxation and weightage as directed by the Hon'ble Apex Court, the State Government has amended the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, by Twentieth Amendment and the said amendment was notified on 9.11.2017. The Assistant Teacher Recruitment Examination, 2018 got conducted as per Twentieth Amendment, however, Assistant Teacher Recruitment Examination, 2019 is being conducted changing some conditions.
143. In the present issue, the authorities concerned are themselves not sure as to who would be appointed on the post of Assistant Teacher. If the purported exercise is for the appointment on the post of Assistant Teachers who are having requisite qualification and their appointment shall be made on the basis of quality points as indicated in Appendix-I, then the B.Ed. candidates, who have been permitted to appear in this examination may not be getting quality point marks as per Appendix-I as those (B.Ed. candidates) would not be provided any marks of their B.Ed. qualification and weightage marks. Whosoever shall apply for the post of Assistant Teacher, he/ she shall be awarded 10% of the quality points out of his or her percentage of marks each in High School, Intermediate and B.T.C. training. Further, 60% of total percentage of marks of Assistant Teacher Recruitment Examination shall be added and whosoever shall qualify the Assistant Teacher Recruitment Examination shall be given weightage of 2.5 marks (per completed training year) maximum up to 25 marks; meaning thereby, the intent of the authorities is to select finally the Assistant Teachers, who are at least High School, Intermediate, Graduate and B.T.C. holder and if he or she qualifies Assistant Teacher Recruitment Examination, shall get weightage of maximum 25 marks being a experienced Shiksha Mitra. The quality point marks shall be calculated counting the total marks in the aforesaid six conditions.
144. Therefore, it is ample clear that the B.Ed. degree holders would neither be getting any marks in B.T.C. training nor be getting any marks in respect of weightage and for them Item No.4 i.e. B.T.C. training and Item No. 6 i.e. weightage for Shiksha Mistra are unavailable and their quality point marks shall be counted only on the basis of four items i.e. (i), High School; (ii) Intermediate; (iii) Graduation Degree and (iv) Assistant Teacher Recruitment Examination. The aforesaid state of thing is beyond any comprehension. After making analysis of the aforesaid facts, it appears that the examination in question is meant for the Shiksha Mitras, who are having B.T.C. training certificate and have qualified the Teacher Eligibility Test.
145. It has also been noted that the definition of 'Teacher' has not been given in the Rules, however, 'Teacher' is defined under Section 2 (o) of the Rules, 1981, which is being reproduced herein below:-
"2, (o) 'Teacher' means a person employed or imparting instructions in Nursery Schools, Basic Schools, Junior Basic Schools, or Senior Basic Schools."
146. It is pertinent to note here that 'Trainee Teacher' is defined under Section 2 (u) of the Uttar Pradesh Basic Education (Teachers) Service (Twenty Second Amendment) Rules, 2018, which is as under:-
"2. (u) "Trainee teacher" means a candidate who has passed B.Ed/B.Ed. (Special Education)/ D.Ed. (Special Education) and has also passed the teacher eligibility test and has been selected for eventual appointment as assistant teacher in Junior Basic School after successful completion of six months special training programme in elementary education recognized by National Council for Teacher Education (NCTE)."
147. The conjoint reading of the definition of 'Teacher' and 'Trainee Teacher' clarifies that a B.Ed. degree holder may be selected for eventual appointment as Assistant Teacher in the Junior Basic School after successfully completion of six months special training programme as per NCTE.
148. It has been noticed that Rule-5 of the Rules, 1981 provides the mode of recruitment to the various categories of the posts as under:-
"5. Sources of recruitment.-- The mode of recruitment to the various categories of posts mentioned below shall be as follows:
(a)
(i) Mistresses of Nursery Schools By direct recruitment as provided in Rules 14 and 15;
(ii) Assistant Masters and Assistant Mistresses of Junior Basic Schools
(b)
(i) Headmistress of Nursery Schools By promotion as provided in Rule 18;
(ii) Headmaster and Headmis-tresses of Junior Basic Schools.
By promotion as provided in Rule 18;
(iii) Assistant Masters of Senior Basic Schools By promotion as provided in Rule 18;
(iv) Assistant Mistresses of Senior Basic Schools By promotion as provided in Rule 18;
(v) Headmasters of Senior Basic Schools.
By promotion as provided in Rule 18;
(vi) Headmistresses of Senior Basic Schools.
By promotion as provided in Rule 18;
Provided that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv) above, appointment may be made by direct recruitment in the manner laid down in Rule 15."
149. Perusal of the aforesaid Rule clarifies that there is no mention of the post of 'Trainee Teacher', meaning thereby the 'Trainee Teacher' would be different from 'Teacher'.
150. Further, vide Amended Rule 8 (ii) (a) of the Rules, 1981 (vide Twenty Second Amendment, 2018), the academic qualification for Assistant Teacher of Junior School has been prescribed as Bachelors Degree from University and Basic Teacher Certificate and passed Teacher Eligibility Test whereas Rule 8 (iii) is with respect to 'Trainee Teacher', which provides the qualification for 'Trainee Teacher' as Bachelors Degree from University together with B.Ed (Special Education)/ D.Ed. (Special Education) and passed Teacher Eligibility Test conducted by the Government of India. The conjoint reading of the aforesaid provision makes it crystal clear that qualification for the appointment on the post of 'Assistant Teacher' and 'Trainee Teacher' is different.
151. Further, the Amended Rule 14 of Rules, 1981 (Twenty Second Amendment, 2018) provides procedure for selection. Rule 14 (1) (a) provides that the posts of Assistant Teacher shall be filed up through direct recruitment under Clause (a) of Rule 5, after determination of the vacancies and publication in at least two leading newspapers and those persons shall be appointed on such post, who are possessing required qualification and passed Assistant Teacher Recruitment Examination conducted by the Government. As per Sub-rule (b) of Rule 14 (1), there shall be recruitment examination for every notified vacancy under Clause (a) for recruitment of Assistant Teacher, meaning thereby the recruitment examination may be held as per prescription given in Rule 14 (1) (a), but in the selection in question, the candidates whose category falls under Rule 14 (1) (c) and (d) have also been permitted. However, Rule 14 (1) (c) is dehorse Rule 14 (1) (d) as later provides that when the trainee teacher shall undergo requisite training of six months, he/ she shall be appointed as regular Assistant Teacher whereas former says that B.Ed. candidates may be appointed as Teacher and shall undergo training after appointment.
152. There is prescription in the Rule under Sub-clause (2) of Rule 14 regarding preparation of merit list. Further, Sub-Rule (3) (a) of Rule 14 provides that 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 be arranged in such manner according to the quality points and weightage as specified in Appendix-I and the person working as Shiksha Mitra in Junior Basic School run by Basic Shiksha Parishad shall be given weightage. Rule 14 (3) (b) however provides that the candidates whose merit list has been prepared under Sub-rule (2) in accordance with Clause (c) of Sub-rule (1) of Rule 14 shall be arranged in accordance with the quality points specified in Appendix-II.
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.
155. Submission of learned counsel for the petitioners is that it is incumbent upon the authorities to conduct two consecutive examinations of Assistant Teacher Recruitment Examination for the Shiksha Mitras, who have qualified TET, providing weightage to them in compliance of the judgment of the Hon'ble Apex Court in re; Anand Kumar Yadav (supra), therefore, both the examinations should be conducted in the same manner so that the identically placed persons could avail the similar opportunity. To be more precise, in the earlier examination only those persons were permitted, who were qualified as per Rules, 1981 (by Amended Rules), having qualified Teacher Eligibility Test, thereafter Assistant Teacher Recruitment Examination and after qualifying the aforesaid examination got weightage of being Shiksha Mitras and then they have been selected as per quality point marks under Appendix-I. In the said examination, B.Ed. candidates were not permitted. Further, the qualifying marks was fixed up in the earlier examination as 45% and 40% for general category and reserved category respectively. In the present examination, not only the qualifying marks have been fixed after the examination being over up to 65% and 60% for both the categories, but also permitted the B.Ed. degree holders whose quality point marks may not properly be determined as per Appendix-I, but they may be determined as per Appendix-II.
156. Learned Senior Advocate for the State-respondents has submitted with vehemence that in the earlier examination there were only about 1.40 lakhs candidates appeared in the Assistant Teacher Recruitment Examination whereas in the present examination of Assistant Teacher Recruitment Examination more than four lakhs candidates have appeared, therefore, so as to make short listing of the eligible candidates, the cut off marks have been enhanced up to 65% and 60%. It has been informed at the Bar that about 4.1 lakhs candidates have appeared in the present examination wherein about three lakhs candidate are B.Ed. degree holders, therefore, the number of aspirants so enhanced in the present examination is on account of the reason that the B.Ed. candidates have been permitted. Dr. L.P. Misra has filed supplementary affidavit on 4.2.2019 and recital to that effect has been given in para-7 thereof, but no denial of that fact has been made by the State-respondents.
157. Under the given circumstances it has been noted that the Assistant Teacher Recruitment Examination may not be treated as shortlisting examination by prescribing such a high minimum qualifying marks as the same may affect the rights of the petitioners (Shiksha Mitras) who may likely to be deprived from getting weightage of 25 marks which is statutory prescription in the 22nd Amendment. Further, since the Assistant Teacher Recruitment Examination is not the minimum qualification prescribed by the Academic authority and the same has been added in the Rules of 1981 by way of 20th and 22nd Amendment, therefore, the qualifying marks should be minimum qualifying marks. Further, the said qualifying marks should be seen like minimum. Further, the Shiksha Mitras should be subjected for the same treatment as has been given to them in earlier examination of Assistant Teacher Recruitment Examination-2018 in terms of judgment of Hon'ble Apex Court in re: Anand Kumar Yadav (supra). Since this examination would be the second and last examination for the Shiksha Mitras in terms of the aforesaid judgment of Hon'ble Apex Court, therefore, this examination i.e. Assistant Teacher Recruitment Examination-2019 should be conducted in a similar manner as the Assistant Teacher Recruitment Examination-2018 has been conducted.
158. Submission of Sri Prashant Chandra, learned Senior Advocate, for the State-respondents is true that unless and until vires of any rule is not assail, the said provision of law may not be declared ultra vires or may not be read down, but in view of the facts and circumstances of the given case, it appears that the authorities concerned have themselves created serious doubts, factual and legal, and the same might have been declared ultra vires, if assailed. Further, at least the same may be read down to make it constitutional.
159. To be more precise, since to provide weightage to the candidates, who have qualified Assistant Teacher Recruitment Examination, is a legal prescription under Rule 14 (3) (a) of the Rules and the same weightage has been provided in the earlier examination to those candidates, who have qualified Assistant Teacher Recruitment Examination with the minimum 45% and 40% qualifying marks, therefore, enhancing the qualifying marks up to 65% and 60%, permitting the candidates, who are having B.Ed. qualification and quality point marks of those candidates may not be determined as per Appendix-I is nothing but appears to be an attempt to oust those persons, who are eligible for the weightage.
160. This Court under Article 226 of the Constitution of India may take notice of this legal fact that the manner under which the authorities are trying to conduct the examination would not be permissible in the eyes of law. The legal grounds may be raised during the course of the argument. Further, if those legal grounds appear to be appropriate in fitness of the case, this Court may declare said provision of law as unconstitutional, at least the said provision of law may be read down so that the selection in question could be saved. Further, this Court finds no justification as to why the cut off marks have been enhanced from 45% and 40% to 65% and 60%.
161. The Hon'ble Apex Court in re; Indra Das v. State of Assam, (2011) 3 SCC 380, has held in para-24 as under:-
"24. The Constitution is the highest law of the land and no statute can violate it. If there is a statute which appears to violate it we can either declare it unconstitutional or we can read it down to make it constitutional. The first attempt of the court should be to try to sustain the validity of the statute by reading it down. This aspect has been discussed in great detail by this Court in Govt. of A.P. v. P. Laxmi Devi [(2008) 4 SCC 720] ."
162. The Hon'ble Apex Court in re; Union of India and others v. Ind-Swift Laboratories Limited, (2011) 4 SCC 635, has held in para-19 as under:-
"19. This Court has repeatedly laid down that in the garb of reading down a provision it is not open to read words and expressions not found in the provision/statute and thus venture into a kind of judicial legislation. It is also held by this Court that the rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute.............."
163. It would be apt to consider here the relevant provision of law, which provides about qualifying marks in Teacher Eligibility Test and qualifying marks in Assistant Teacher Recruitment Examination. As per Rule 2 (t) of the Rules 1981 (as amended by Twenty Second Amendment, 2018), qualifying marks in Teacher Eligibility Test will be such as may be prescribed from time to time by the NCTE, whereas as per Rule 2 (x), qualifying marks of Assistant Teacher Recruitment Examination means such minimum marks as may be determined from time to time by the Government. Conjoint reading of aforesaid provisions reveals that for Teacher Eligibility Test, qualifying marks shall be prescribed by the NCTE and there is no rider as to what qualifying marks should be fixed, therefore, for Teacher Eligibility Test, the qualifying marks is 60% and 55% for both the category and there is no quarrel on it.
164. However, in Assistant Teacher Recruitment Examination, it has categorically been indicated in Rule 2 (x) that the qualifying marks means such minimum marks determined by the State Government from time to time. On account of aforesaid prescription, the State Government has firstly determined the minimum qualifying marks as 45% and 40% for both the categories and thereafter, for the same selection of Assistant Teacher Recruitment Examination, it has been fixed as 33% and 30% as the State Government could have determined any minimum marks from time to time, therefore, it is the domain of the State Government to fix the qualifying marks for the Assistant Teacher Recruitment Examination, but such qualifying marks should be 'minimum' and 'minimum' should be seen like 'minimum'. 'Minimum' may not be seen as 'maximum'.
165. Further, since the person, who qualifies the Assistant Teacher Recruitment Examination with minimum qualifying marks shall not be appointed on the post of Assistant Teacher, rather, he/she shall only be eligible to reach in the next stage, thereby he/she shall be awarded weightage and then his/her total quality points shall be calculated. On the basis of total quality points, the candidate shall come in the zone of eligible candidate, who shall be appointed according to his/her merit. Meaning thereby, qualifying the examination of Assistant Teacher Recruitment Examination does not make the person eligible to be selected on the post of Assistant Teacher, but it only makes him/ her eligible to get weightage, therefore, the submission of learned counsel for the State-respondents that so as to short list the eligible candidates, merit of Assistant Teacher Recruitment Examination has been enhanced up to 65% is misfit argument.
166. The Hon'ble Apex Court in a latest judgment dated 14.2.2019 in re; Rahul Dutta and others v. The State of Bihar and others, Writ Petition (Civil) No.71/2019, has held in para-8 as under:-
"8. Apart from that there is yet another glaring error in the Rule that no minimum passing marks have been prescribed in preliminary examination. The ratio of 1:10 is only applicable when these number of successful candidates are available and obtaining of the minimum passing marks in preliminary examination should be necessary, out of the successful candidates available out of them in the ratio of 1:10 are required to be called for final written examination. The candidates with minimum passing marks only can be permitted to stake their claim in the final examination. It is assured by the all concerned stakeholders i.e. State of Bihar, High Court of Patna as well as the Bihar Public Service Commission that they would ensure the minimum passing marks are fixed under the Rules for preliminary examination separately for general as well as for reserved category in a reasonable manner. Let that be done for future examination. However, for the examination in question, it would not be appropriate to fix the marks now after examination is over."
167. I also find substance in the argument of Sri U.N. Misra that though the judgement of Hon'ble Apex Court in re; K. Manjusree (supra) has been firstly referred to the larger Bench in re; Tej Prakash Pathak (supra) and again referred to the larger Bench in re; Salam Samarjeet Singh (supra) and Sivanandan C.T. (supra) but no judgement of larger Bench has yet come so as per dictum of Apex Court in re; P. Sudhakar Rao (supra), the dictum of K. Manjusree (supra) shall hold the field as the same has yet not been overruled and mere reference of the judgement may not dilute the applicability of the judgement, so referred. Further, if the dictum of Apex Court in re; Hemani Malhotra (supra) wherein K. Manjusree (supra) has been considered is applied in this case, the Government Order dated 7.1.2019 would become inapplicable herein and the same may be set aside being in derogation of aforesaid judgements.
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.
169. Another submission of Mr. U.N. Misra appears to be appropriate that Rule 14(3)(a) of Service Rules prescribes preparation of merit list as per quality point marks and weightage specified in Appendix -1. Further when a special statutory provision for grant of weightage has been specifically provided in second Proviso to Rule 14(3)(a) read with Appendix-1 which is available to all the T.E.T. qualified Shiksha Mitras like the petitioners, for two consecutive attempts, under the judgment of the Hon'ble Apex Court dated 25.7.2017 and when this recruitment of 2019 is the second and last such recruitment with weightage, that is available to Shiksha Mitra, then, the special provision for grant of weightage to Shiksha Mitra in two consecutive selections, cannot be nullified by the respondents, by emphasizing the general provision of selection as it is violative of the settled principle of law that when within the same statute / rule, a special provision of law has been incorporated to cater to special situation, the general provisions of law cannot be emphasized over and above the special provision of law. Thus, the special provision of law about weightage to T.E.T. qualified Shiksha Mitra in two consecutive selections (the present one being the last one) cannot be nullified by the respondent authorities by arbitrarily raising the minimum qualifying marks for extraneous reason.
170. The manner in which the impugned G.O. dated 7.1.2019 has been issued does not appear to be in conformity of the law in as much as it may not be comprehended that within 24 hours all legal formalities to issue the government order would have been completed. Admittedly, vide letter dated 5.1.2019 the Secretary, Board of Basic Education has requested the State Government to fix any minimum qualifying marks for the examination in question and on 7.1.2019 the Government Order has been issued. I find force in the submission of Sri H.N. Singh, learned Senior Advocate on this point whereby he has submitted with vehemence that the Government Order dated 7.1.2019 has not been issued under Section 13 of the Uttar Pradesh Basic Education Act, 1972 or under any provision of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 or in exercise of any provision under the Right of Children to Free and Compulsory Education Act, 2009 or the Right of Children to Free and Compulsory Education Rules, 2010, therefore, it appears that it might have been issued in exercise of executive power of the State Government under Article 162 read with Article 166 of the Constitution of India. In that case, this has not been authenticated in such manner as specified by Uttar Pradesh Distribution of Works Rules, 1975 [Uttar Pradesh Karya (Batwara) Niyamawali, 1975]. Under the above Rules of 1975, all powers relating to the Basic Education has been conferred to Shiksha Anubhag-5, not by the Additional Secretary of Government of U.P. or Special Secretary, Government of U.P. as happened in this case. The Government Order dated 7.1.2019 has been issued by the Special Secretary of Shiksha Anubhyag-4, who is not competent that too on the request of Secretary Board of Basic Education dated 5.1.2019 and this was never placed for decision by council of Ministers in conformity of Article 163 of the Constitution of India, as such, the Government Order dated 7.1.2019 is not a Government Order, but merely a letter issued by the Special Secretary, which may not be said to be decision of the Government for fixing the minimum qualifying marks.
171. On being confronted on the aforesaid point the learned Senior Advocate on behalf of State-respondent has categorically submitted that it is true that the decision to fix cut off marks for Assistant Teacher Recruitment Examination- 2019 has been taken hurriedly but procedure has been followed. This Court had occasion to peruse the original record which goes to show that in one single day all the decisions have been taken. However, it does not clear as to whether the G.O. has been issued under section 13 of the Act, 1972 or under any other Rules and if it has been issued in exercise of executive powers of the State Government under Article 162 and 166 of the Constitution, in that case also has not been authenticated in a manner specified under the Rules of Business, 1975. Thus, in view of the above, I am unable to comprehend the reason of haste issuing the Government Order dated 7.1.2019.
172. Admittedly, the examinees were not aware about the decision of the State Government regarding minimum qualifying marks before the examination in question so besides the fact that rules of game may not be fixed after start of the game, one more aspect is relevant here that in view of the dictum of Hon'ble Apex Court in re: P.V. Indirsan (2) (supra) and Rahul Dutta (supra) the minimum eligibility marks should be declared before the examination and if the marks have not been fixed prior to the examination in question, may not be fixed later on, therefore the impugned order dated 7.1.2019 would be said to have been issued in derogation of aforesaid laws of the Hon'ble Apex Court.
173. Therefore, in view of the aforesaid findings I am of the considered view that by not declaring the minimum qualifying marks of Assistant Teacher Recruitment Examination before holding examination is causing prejudice to the petitioners, including all aspirants, as they have been denied an opportunity to adequately prepare for the result. Further, since the State Government had to conduct two examinations to appoint Assistant Teacher pursuant to the direction of Hon'ble Apex Court in re: Anand Kumar Yadav (supra), therefore, the manner of these two examinations should be similar inasmuch as for Shiksha Mitras, Assistant Teacher Recruitment Examination-2019 was the second and last examination to get benefit of weightage as per judgment of Anand Kumar Yadav (supra).
174. The qualification of completing Assistant Teacher Recruitment Examination was not mandatory as per NCTE Act but such qualification has been prescribed by the State Government for Assistant Teacher Recruitment Examination-2018 and the said examination had been conducted and final appointment has been made so no new condition should be added particularly for the second examination, i.e. Assistant Teacher Recruitment Examination-2019.
175. The B.Ed. candidates have been added, however, the same has not been assailed, resultant thereof number of aspirants for the examination has been enhanced drastically and the reasons for enhancing the minimum qualifying marks has been explained saying that since number of aspirants have been increased at least three times from last examination, i.e. Assistant Teacher Recruitment Examination-2018, therefore, the cut off limit has been increased, does not appear to be worth acceptable for the reason that in earlier examination no B.Ed. candidates were permitted. So the aspirants, including petitioners may not be treated differently without having being informed to them for the change before the examination in question.
176. Therefore, to that extent the Government Order dated 7.1.2019 is unwarranted and uncalled for. As per my view the safest exercise of the State Government should be to issue Government Order saying that since no minimum qualifying marks have been declared before the examination of Assistant Teacher Recruitment Examination-2019, therefore, the result thereof would be declared on the basis of earlier cut off marks i.e. 45% and 40% for both the categories and in that case no candidate would find him prejudiced nor the final result would have been delayed.
177. Therefore, the main reason of delay the result of Assistant Teacher Recruitment Examination-2019 is Government Order dated 7.1.2019 itself. Had this Government Order dated 7.1.2019 been not issued, the result of Assistant Teacher Recruitment Examination-2019 would have been issued way back, as per scheme, and entire exercise of selection of Assistant Teacher would have been completed and Assistant Teachers would have been finally appointed by now. I find no fruitful purpose in issuing the Government Order dated 7.1.2019 after the examination of Assistant Teacher Recruitment Examination-2019 having been conducted on 6.1.2019.
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.
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.
183. A writ in the nature of mandamus is issued directing the Secretary, Examination Regulatory Authority (E.R.A.) 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.
184. The concerning authorities shall make compliance of this order with expedition, preferably within a period of three months. It is also directed that the entire exercise of selection in question shall be completed at the earliest, strictly in accordance with law.
185. In the result, the batch of these writ petitions are Allowed.
186. Before parting with I put a note of appreciation for all the Advocates, who have argued in this case. I also appreciate their hard work, dedication and proper assistance being extended to the Court in this matter.
187. No order as to costs.
Date :- March 29, 2019.
Suresh/OPM/RBS [Rajesh Singh Chauhan,J.]