Uttarakhand High Court
State Of Uttarakhand And Ors vs Lalit Kumar And Others on 23 August, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
1
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Special Appeal No. 54 of 2017
Uttarakhand Samayojit TET
Uttern Pra. Shikshak Sanagathan and another .................Appellants
Vs.
Lalit Kumar and others .................Respondents
With
Special Appeal No. 351 of 2016
State of Uttarakhand & Ors. .................Appellants
Vs.
Lalit Kumar & others .................Respondents
With
Special Appeal No. 353 of 2016
Lalit Prasad Dwivedi & Ors. .................Appellants
Vs.
State of Uttarakhand & Ors. .................Respondents
With
Special Appeal No. 378 of 2016
Bhagat Singh Negi & Anr. ..............Appellants
Vs.
Lalit Kumar & Ors. .................Respondents
Present Mr. J.P. Joshi, Sr. Additional A.G. assisted by Mr. N.S. Kanyal,
Brief Holder for the State
Mr. Shobhit Saharia, Mr. Piyush Garg, Mr. M.C. Pant, Mr. Sandeep
Tiwari, Mr. C.S. Joshi, Mr. Niranjan Bhatt and Mr. Yogesh
Pacholia, Advocates for the private parties.
Mr. Anil Dabral, Advocate for the intervener
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Reserved on 09.08.2017 Delivered on 23.08.2017 Per: Hon'ble Sharad Kumar Sharma, J.
The instant appeal has been preferred by the appellant questioning the veracity of the judgment dated 2 19.11.2016 passed by the learned Single Judge in W.P. No.1576/2016 "Lalit Kumar & others V/s State of Uttarakhand & others", whereby the learned Single Judge had held that the amendment made in 2012 Rules by virtue of an amendment made in 2014 by incorporating Chapter 11 and Rule 32 were declared as ultra vires, as being unconstitutional and violative of Article 14, 16 and 21-A of the Constitution of India.
2. The appellants filed an application for leave to appeal (though not supported by an independent applicant) as well as the delay condonation application. Yet we considered application and looking to wider interest of justice, both are being allowed. The appeal was admitted by the order dated 19.7.2017, delay was condoned and thereafter the appeal became ripe for final hearing and are being heard finally.
3. The issue involved in the instant appeal is identical to the issue agitated by Special Appeal No.351/2016, Special Appeal No.353/2016 and Special Appeal No.378/2016. All these appeals since involving a common question of fact and law they are being decided together for the purposes of brevity, the present judgment would govern the other connected appeals referred above.
4. In divided State of U.P., an identical controversy arose which was adjudicated by virtue of a judgment rendered by Allahabad High Court on 12.9.2015 in Writ Appeal No.34833/2015, whereby the Allahabad High Court had allowed the writ petition and issue the following directions:-
"(i) The amendment made by the State Government by its notification dated 30 May 2014 introducing the provision of Rule 16-a in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 by the Uttar Pradesh Right of 3 Children to Free and Compulsory Education (First Amendment) Rules 2014 is held to be arbitrary and ultra vires and is quashed and set aside.
(ii) The Uttar Pradesh Basic Education (Teachers) Service (Nineteenth Amendment) Rules, 2014, insofar as they prescribe as a source of recruitment in Rule 5 (2) the appointment of Shiksha Mitras, the academic qualifications for the recruitment of Shiksha Mitras in Rule 8 (2) (c) and for the absorption of Shiksha Mitras as Assistant Teachers in junior basic schools under Rule 14 (6) are set aside as being unconstitutional and ultra vires, and
(iii) All consequential executive orders of the State Government providing for the absorption of Shiksha Mitras into the regular service of the State as Assitant Teachers shall stand quashed and set aside."
5. Before the Allahabad High Court the factual matrix which was agitated was that under the U.P. Basic Education Act, 1972, it was enacted with an intention to regulate the basic education. The said Act under Section 19 granted the Rule making powers authorizing the State Government frame rules so as to carry out the purpose of the Act. Thus the U.P. Basic Education Rule of 1981 were framed, it dealt with the source of appointment and qualification for appointment of teachers and other service conditions related thereto.
6. In the meantime the National Council For Teacher Education Act, 1993 was enacted by the Parliament with a purpose to be achieved of a planned and coordinated development of teachers in the education system of the country. Simultaneously another Legislation, which came into existence was Right of Children to Free & Compulsory Education Act, 2009 which made mandatory that the students form the age of 6 to 14 were entitled for free and compulsory education, which was duly casted on Courts under Article 41 of the Constitution.
7. Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 provided for qualification for 4 appointment of teachers. National Council For Teacher Education Act, 1993 was redesigned as an authority under Section 23 (1) to lay down the qualification for appointment of teachers.
8. National Council For Teacher Education Act, 1993 vide notification dated 23.8.2010 provided the uniform mandatory trained qualification for teachers who were appointed prior to the said notification which made it mandatory that teachers are required to have qualification in terms of the National Council For Teacher Education Act, 1993 (Determination of Minimum Qualification for Recruitment of Teacher in Schools) Regulations 2001. It provided that all the teachers who were appointed on or after 3.9.2001 were compulsory required to undergo the basic qualification as recognize by the National Council For Teacher Education Act, 1993 i.e. 06 months special training program in certain situations and they were required to have the qualification as per the relevant recruitment Rules. One of the qualifications was that the teachers thus appointed were required to have qualified the Teachers Eligibility Test.
9. However by the letter of Government of India dated 8.11.2010 the Central Government sought proposal for relaxation under Section 23 (2) of the RTE Act, which was followed by the relaxation order dated 10.9.2013 for certain category of teachers which was to operate till 31.3.2014. the National Council For Teacher Education Act, 1993 vide its proposal dated 11.1.2011 accepted the proposal of State of U.P. for training of untrained graduates Shiksha Mitra by open and distance learning, but it made it clear that no appointment of untrained teachers was permitted, who were 5 not qualified or trained to impart primary elementary education.
10. In State of U.P. by Government order dated 26.5.1999 a scheme was floated for engagement of "Shiksha Mitras" (Para teachers) the purpose and object was to provide universal primary education for maintenance of teachers students ratio on a prescribed salary of a qualified teacher was called as honorarium. Initially about 10000 Shiksha Mitras were appointed in academic sessions 1999-2000 on an honorarium of Rs.1450 per month in State of Uttar Pradesh.
11. The salient feature of the Government order is as under:-
"(i) The appointment of Shiksha Mitras was to be against the payment of an honorarium,
(ii) The appointment was to be for a period of eleven moths renewable for satisfactory performance,
(iii) The education qualifications would be of the intermediate level,
(iv) The unit of selection would be the village where the school is situated and in the event that a qualified candidate was not available in the village, the unit could be extended to the jurisdiction of the Nyay Panchayat,
(v) The services of a shiksha Mitra could be terminated for want of satisfactory performance.
(vi) Selection was to be made at the village level by the Village Education Committee, and
(vii) The scheme envisaged the constitution, at the district level, of a Committee presided over by the District Magistrate and consisting, inter-alia, of the Panchayat Raj Officer and the District Basic Education Officer among other members to oversee implementation."
12. The said scheme of 1999 was further extended by the State of U.P. by the Government order dated 1.7.2001 which clarified that the scheme was not for employment in a regular service, but to provide opportunity to rural youth to render community service, thus purpose of the scheme was for social benefit to attain rural qualification at primary level.
613. By the notification dated 23.8.2010 the minimum statutory qualification as laid down by National Council For Teacher Education Act, 1993 i.e. having the Teacher Eligibility Test qualification was mandatory, this would have ousted number of Shiksha Mitras who are not Teacher Eligibility Test as per the National Council For Teacher Education Act, 1993, thus the issue for relaxation under Section 23 (2) of the RTE Act wax taken up by the Union Government pertaining to the extension and relaxing the limits for the interim statutory period.
14. The State Government in response to the letter of Central Government held that the appointment of Shiksha Mitra on contractual basis or on an honorarium were required to be given training, to improve quality of primary education. The Central Government issued an order for relaxing the conditions under Section 23 (2) subject to certain conditions for a period upto 31.3.2014. The State Government submitted the proposal on 3.1.2011 envisaging to give training to the Shiksha Mitras, which was accepted by the Government of India by its letter dated 14.1.2011 for 2 year diploma in elementary education and after attaining the training course the untrained teachers would be appointed as primary school teachers.
15. The State of U.P. amended the U.P. RTE Rules introducing Rule 6-A by the amendment made on 30.5.2014 by the said amendment in its Rule 8, it provided a revised qualification for appointment of Assistant Teachers of junior basic school, which was the qualification different from statutory qualification under Section 23 of the RTE Act, Rule 7 5, was also amended to add Shiksha Mitras as to be the source for recruitment as teachers in addition to the existing source of direct recruitment as per the Rules of 1981, as applicable in State of U.P., simultaneously in State of U.P. an amendment was made in Rule 14 wherein it enable Shiksha Mitras to be appointed as teacher against a substantive post without having the qualification as prescribed under Section 23 of the RTE Act.
16. The Government order dated 19.6.2013 was giving permission for appointment of Shiksha Mitra as Assistant Teacher in primary school without having the eligibility and qualification terms of RTE Act and a criteria for their absorption was laid down. The exemption granted by the Government order dated 19.6.2013 was challenged before the Allahabad High Court and the condition of relaxation from not qualifying the Teacher Eligibility Test Examination was challenged.
17. The Allahabad High Court after considering the issues pertaining to the relaxation granted to the Shiksha Mitra, while considering the veracity of the notifications answered the following questions as to whether the teachers appointed as Shiksha Mitra could be treated as teachers appointed as per applicable qualification, if the Shiksha Mitra were not duly appointed teachers how could they be regularized as teachers and whether the qualification laid down under Section 23 (1) of RTE Act which was applicable and stood relaxed in the case of Shiksha Mitra was justified, as it would amount to compromising a quality of education, for benefit of few, who were otherwise not a regular painter.
818. The prime question which was for consideration before the Court was, whether a statutory qualification provided by a central Statute, which is enlisted in the concurrent list of Schedule VII of the Constitution could be relaxed by a State Legislature.
19. The Allahabad High Court allowed the writ petition and declared the amendments made in the Rules granting the relaxation as to be ultra vires and violative of Article 14, 16 and 21-A of the Constitution of India.
20. The matter ultimately reached to the Apex Court and the Hon'ble Apex Court in Civil appeal no.9529/2017 arising out of Special Leave Petition (Civil) No.32599/2015 "State of U.P. & others V/s Anand Kumar Yadav & others"
vide its judgment dated 25.7.2017 held as under.
21. "We are in the agreement with the above findings. In view of clear mandate of law statutorily requiring qualification for appointment of teachers to be appointed after the date of Notification dated 23rd August, 2010, there is no doubt that no appointment was permissible without such qualifications. Appointments in the present case are clearly after the said date relaxation provision could be invoked for a limited period or in respect of persons already appointed in terms of applicable rules relating to qualifications. The Shiksha Mitras in the present case do not fall in the category of pre 23rd August, 2010 Notification whose appointment could be regularized.
22. Further difficulty which states one in the face is that the law laid down by this Court on regularization of contractually appointed persons in public employment. Appointment of Shiksha Mitras was not only contractual. It was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers. Thus, they could not be regularized as teachers. Regularization could only be of mere irregularity. The exceptions carved out by this Court do not apply to the case of the present nature.
23. In view of our conclusion that the Shiksha Mitras were never appointed as teachers as per applicable qualifications and are not covered by relaxation order under Section 23 (2) of the RTE Act, they could not be appointed as teachers in breach of Section 23 (1) of the 9 said Act. The State is not competent to relax the qualifications.
24. Since, we have given full hearing to all Shiksha Mitras through their respective counsel. It is not necessary to consider the argument of breach of procedure under Order 1 Rule 8 CPC.
25. On the one hand, we have the claim of 1.78 Lakhs persons to be regularized in violation of law, on the other hand is the duty to uphold the rule of law and also to have regard to the right of children in the age of 6 to 14 years to receive quality education from duly qualified teachers. Thus, even if for a stop gap arrangement, teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed. It may be permissible to give some weightage to the experience of Shiksha Mitras of some age relaxation may be possible, mandatory qualifications cannot be dispensed with. Regularization of Shiksha Mitras as teachers was not permissible. In view of this legal position, our answers are obvious. We do not find any error in the view taken by the High Court.
26. Question now is whether in absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference. In the peculiar facts 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."
21. In State of Uttarakhand to which these appeals relate to an identical controversy cropped up wherein writ petitions came before this court for a direction in the nature of mandamus for declaring Rule 7, 9 & 32 of Uttarakhand Government Primary Education Teachers (Amendment) Service Rules 2012 as ultra vires to the Constitution of India.
22. These Rules were incorporated in the main Service Rules by amendment by the State of Uttarakhand in the year 2013 & 2014, respectively by virtue of the said amendment primarily the Shiksha Mitra who are same as para teachers were being absorbed as primary school teachers in 10 government schools by exempting mandatory qualification & Teacher Eligibility Test in their cases which the contention of the petitioners in a bunch of writ petitions decided by the Hon'ble Court was that this exemption to Shiksha Mitra by amendments of 2013 and 2014 was violative of constitutional mandate.
23. It was a case of the petitioners that such an exemption granted to Shiksha Mitra is illegal and ultra vires being violative to the provisions given under the Right to Education Act, 2009.
24. The case of the petitioners was that Shiksha Mitra who were imparting elementary education in State cannot be exempted from mandatory qualification of Teacher Eligibility Test as it has been laid down under a statute by National Council For Teacher Education Act, 1993 to be the basic and essential qualification under Section 23 (1) of the Right to Children For Free & Compulsory Education Act, 2009. The petitioners' contention was further that Shiksha Mitras cannot be considered as eligible for appointment as teachers which is covered under the Right to Education Act, unless they qualify the examination known as Teacher Eligibility Test and thus no exemption could have been granted to them as it would create a disparity and effects education system of state which is a prime concern.
25. The petitioners' further argument was that in view of Article 41 of the Constitution of India, is a directive principles of State policy which declare that State shall within its limit of its economical capacity and development secured the right of education which itself means that it has to be as 11 per the statutory mandates, which cannot be compromise, by a state amendment providing relaxation.
26. On consideration of the rival contentions the learned Single Judge considering the interplay of the National Council For Teacher Education Act, 1993 and Right to Children For Free & Compulsory Education Act, 2009 held as under:-
"52. What cannot be directly can also not be done indirectly, "Shiksha Mitras" were never "teachers" appointed in accordance with law. Neither do they have requisite qualifications for an elementary school teacher nor was due procedure followed in their appointment. Hence they can never be considered as teachers in primary schools prior to the enforcement of Right to Education Act and notification of National Council For Teacher Education Act, 1993 dated 23.08.2010.
53. As far as the exemption of two years diploma in elementary education is concerned, the powers have been clearly given by the Central Government under clause (1) Section 23, and in an appropriate case, if such a power has been exercised by the Central Government and granted as in the case of Shiksha Mitras where Shiksha Mitras were asked to undergo two years distance learning programme duly approved by IGNOU, that is completely different aspect, but exempting them from Teacher Eligibility Test is quite another. The exemption granted to them, by whichever route the State Government has chosen, is not permissible. Even though this exemption has been granted ostensibly by the approval of the National Council For Teacher Education Act, 1993 or the Central Government nor the National Council For Teacher Education Act, 1993 had powers to exempt Teacher Eligibility Test.
54. In Shivam Rajan's case, the Full Bench of Allahabad High Court has emphasized the important of Teacher Eligibility Test as under:-
"The object and purpose of introducing the Teacher Eligibility Test is to ensure that a teacher who embarks upon instructing students of primary and upper primary classes is duly equipped to fulfil the needs of the students, understands the relevance of education for a child at that stage and can contribute to the well rounded development of the child. Teaching a child is not a merely a matter of providing information. Deeply embedded in the process of imparting education is sensitivity towards the psyche of the child, the ability to understand the concerns of a young student of that age, the motivations which encourage learning and the pitfalls which have to be avoided. The emphasis on clearing the Teacher Eligibility Test is to ensure the maintenance of quality in imparting primary education. These requirements which have been laid down 12 by National Council For Teacher Education Act, 1993 fulfill an important public purpose by ensuring a complement of trained teachers who contribute to the learning process of children and enhance their growth and development. These requirements should not be viewed merely as norms governing the relationship of a teacher with the contract of employment. These norms are intended to fulfil and protect the needs of those who are taught, namely, young children. India can ignore the concerns of its children only at the cost of a grave peril to the future of our society. The effort of the State Government to be pass well considered norms which are laid down by National Council For Teacher Education Act, 1993 must be disapproved by the Court. We have done so on the ground that the State Government lacks the legislative power and competence to do so. Equality, fundamental is the concern that a relaxation of the norms prescribed by an expert body will result in grave detriment to the development and growth of our young children and the provision of quality education to them. Providing equality education is crucial for students belonging to every strata of society. Education which is provided in schools conducted by the Basic Education Board should not be allowed to degenerate into education of poor quality which it will, if the norms which are prescribed by an expert body under legislation enacted by Parliament in the national interest are allowed to be ignored by the State Government on the basis of parochial or populist perceptions. Such an attempt is ultra vires the statutory powers of the State and is arbitrary and violative of Article 14 of the Constitution."
55. The exemption of Teacher Eligibility Test to Shiksha Mitras granted by the State Government is ultra vires and illegal. Consequently writ petition is allowed and the amendment in the 2012 Rules in the year 2014 by way of incorporating Chapter eleven, and Rule 32 is hereby declared arbitrary and ultra vires, and is hereby quashed and set aside. A mandamus is issued to the State Government to take all appropriate and consequential action in accordance with law forthwith."
27. The appellants association has questioned the judgment on the ground that they desired to claim the benefit of exemption as being Shiksha Mitras and thus they claimed that they were entitled for the benefits granted by virtue of the amendment made in the Rules in 2013-14 by amending Rule 7, 9 & 32 of Uttarakhand Government Elementary Education Teachers Amendment Rules, 2012.
1328. Since the controversy emanating with regards to the exemption to Shiksha Mitras from the Teacher Eligibility Test qualification on an identical parameters have traveled to the Apex Court in which the judgment dealing with the issue has been decided by the Apex Court by the judgment dated 25.7.2017 this court feels that there is no anomaly apparent on the face of the judgment rendered by the learned Single Judge declaring Rule 7, 9 & 32 of Elementary Education 2012 as ultra vires being violative of Constitution of India as well as Right to Children For Free & Compulsory Education Act, 2009 and National Council For Teacher Education Act, 1993.
29. Since the Hon'ble Apex Court has found no error committed by the Allahabad High Court while declaring the exemption granted to Shiksha Mitras as to be ultra vires upheld the judgment of the Single Judge as well as of Division Bench of Allahabad High Court and since the issue has now been settled by the judgment of the Apex Court dated 25.7.2017 this special appeal too is disposed off in terms of the directions issued by the Apex Court. The Para 26 & 27 of the judgment passed by the Apex Court on 25.07.2017 is quoted hereunder:-
"26. Question now is whether in absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference. In the peculiar facts situation, they ought to be given opportunity to be considered for recruitment. If they have acquired or they now acquire the requisite qualification in terms of advertisements for recruitment for next two consecutive recruitments. They may also be given suitable age relaxation and some weightage for their experience as may be decided by the concerned authority. Till they avail of this opportunity, the State is at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides.
27. Accordingly, we uphold the view of the High Court subject to above observations. All the matters will stand disposed of accordingly.
1430. Thus the special appeal so far it relates to the challenge given to the judgment rendered by the learned Single Judge is dismissed. However the respondents are directed to deal with the respective cases of Shiksha Mitras in the light of the directions issued by the Hon'ble Apex Court particularly as contained in Para 26 of the judgment dated 25.7.2017. Thus special appeal is disposed of subject to the above observation.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 23.08.2017 Mahinder/