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4. By the said judgment as settled by the Hon'ble Supreme Court, it has been held that in view of the provisions contained under the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the 'Act') read with the National Council for Teacher Education Act, 1993 (hereinafter referred to as the NCTE), the candidate applying for appointment are necessarily required to have qualified of Teacher Eligibility Test (TET). Since the Shiksha Mitras and Shiksha Acharyas have not completed their TET examination, it was held that no relaxation in recruitment to Shiksha Mitras and Shiksha Acharyas could be granted so far as the compulsory qualifying TET examination is concerned. In the writ petition filed by the petitioners before this Court, the petitioners have sought the following reliefs :

6. When during the pendency of the writ petition, which was decided on 06.09.2013, the selection process was being resorted to by the respondents without disclosing as to whether it included in it the backlog vacancies or not because the Principal Secretary, School Education on 30.04.2014 issued a Government Order for appointment of the Assistant Teachers inviting applications from the candidates, who possess B.Ed. degree and have qualified TET-1 examination. This selection process was resorted to only for the purposes of B.Ed. qualified candidates, but the vacancies thus notified in pursuance of the G.O. dated 11.01.2014 did not mention anywhere that the advertised vacancies include the backlog vacancies of reserved candidates, more particularly of the Scheduled Castes category. It has also been the case of the petitioners in the writ petition that the vacancies as notified in the advertisement of 2014 was not filled up in the light of the judgment rendered by the Division Bench of this Court in a special appeal (Trivenichand Pandey vs. State of Uttarakhand) as the vacancies have been permitted to be included in the vacancies advertised on 01.04.2014.

9. Meaning thereby, despite the fact that the Shiksha Mitras and Shiksha Acharyas, who held out to be not an appointee against a regular post and not eligible to hold the post, Hon'ble Apex Court has granted them a liberty to participate in two consecutive recruitments subject to the condition that they avail the qualification of TET for the proposed selection. Their participation in the process of selection was subject to the condition of acquiring the TET qualification. The Hon'ble Apex Court has also observed that they may be granted suitable age relaxation and some weightage for their experience may be decided by the concerned authority. On an overall scrutiny having qualification of TET has now become inevitable for being appointed as Primary school teacher.

3. Section 2(d) would tend to indicate that the State was required to determine the number of available vacancies in every year of recruitment. Once the vacancies are determined, necessary requisition would have to be sent to the Public Service Commission for initiating the process of selection."

13. For the purposes of determining the backlog vacancies, the backlog vacancies are those vacancies as against the Scheduled Castes, Scheduled Tribes and Other Backward Classes (OBC) or other reserved category, which after the culmination of selection process of particular selection process of a selection year, remains unfilled due to non-availability of suitable candidates and it is this vacancy is carried forward to the forthcoming selection. The argument that the backlog vacancies will include the vacancies as a whole is not acceptable in terms of the ratio propounded in Sangam Nath Pandey's case (supra). The learned Single Judge, after considering the interplay of the Right of Children to Free and Compulsory Education Act, 2009 and the National Council for Teacher Education Act, 1993, has rightly held that the Teachers Eligibility Test (TET) is mandatory to make a candidate eligible to participate in the selection process and to become an elementary school teacher. The learned Single Judge in para 15 of the judgment has held as under: