# Anand Kumar Yadav & Ors v. Union of India & Ors

- **Citation:** (2015) 3 ILRA 1108
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-12
- **Case number:** C.M.W.P. No. 34833 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta, Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-kumar-yadav-ors-v-union-of-india-ors-43367
- **Pages:** 47

## Headnote

Sri C.B. Yadav, Addl. Advocate General, Sri
Shashank Shekhar Singh, Addl. C.S.C., Sri
H.R. Mishra, Sri R.K. Ojha, Sri Agnihotri
Kumar Tripathi, Sri K.S. Kushwaha, Sri
Abhishek Srivastava, Sri Ashok Pandey, Sri
Neel Kamal, Sri R.A. Akhtar, Sri M. Asthana,
Sri Arvind Kr. Goswami
U.P. Rights of Children to Free & Compulsory
Education (first amendments Rules 2014-by
state government degenerating into poor
quality education-providing absorption of
Shiksha Mitra-who completed BTC distance
course-without TET could be appointedsuch attempt-arbitrary, violation of Art. 14ultra virus-quashed.
Held: Para-120
In assuming to itself a power to relax the
minimum qualification and thereafter by
diluting the minimum qualifications in the
case
of
Shiksha
Mitras,
the
State
Government has patently acted in a manner
which is arbitrary, ultra vires the governing
central legislation and in breach of the
restraint on the limits of its own statutory
powers.
By
this
exercise,
the
State
Government
has
sought
to
grant
regularization to persons who failed to fulfil
the minimum qualifications and who were
never appointed against sanctioned posts. In
these circumstances, the grant of largesse by
the State Government to Shiksha Mitras
cannot be upheld and the amendment to the
Rules is ultra vires and unconstitutional.
(B)Constitution of India, Art.-226-Service
law-regularization-Shiksha Mitra working
on contractual basis-without any sanction
post-in absence of essential qualificationcan not be regularized.
Held: Para-122
In the present case, it is evident that the
Shiksha Mitras do not fulfil any of the
norms laid down by the Supreme Court
for regular absorption into the service of the
State. They were at all material times
appointed as and continued to be engaged
as
contractual
appointees.
Their
appointments were not against sanctioned
posts. They did not fulfil the minimum
qualifications required for appointment as
Assistant Teachers.
Case Law discussed:
(2006) 4 SCC 1; Writ-A No. 26189 of 2012
decided on 8th August 2013; Special Appeal No.
305 decided on 3rd March 2008; (2008) 3 SCC
432; 2010 (1) ESC 42 (SC); (2006) 1 SCC 667;
(2004) 7 SCC 112; (2005) 1 SCC 639; (1998) 6
SCC 165; [2013 (6) ADJ 310 (FB)]; (2010) 9 SCC
247; (2014) 4 SCC 583; (2003) 3 SCC 548; AIR
2008 SC 1817; (2015) 6 SCC 247

## Text

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1108
 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances are concerned, taking note of
various factors including the age of the young
appellant-accused being a rustic poor villager of
about 22-23 years at the time of the incident (his
age being 36 years at time of his statement u/s
313 CrPC in year 2008) which cannot be treated
as very mature, he is the only bread winner of his
house, it is his first guilt. Apart from it he hails
from such poor family that he cannot afford
expensesof a lawyer, so he was provided help of
Amicus Curie at the expenses of State, the award
of 10 years R.I. is excessive. These points were
not considered at the time of awarding the
punishment; and the said sentence was awarded,
which should be mitigated. This contention of
learned Amicus Curie for the appellant cannot
be ignored that during trial and then after
conviction appellant had suffered sufficient time
in incarceration (more than six years) which
would have taught him appropriate lesson to
refrain from such overt acts.
22. While we see no reason to differ
with the findings recorded by the trial court
regarding charged offence of section 436 IPC,
we do see substance in the argument raised on
behalf of the appellants that keeping in view
the
prosecution
evidence,
the
above
mentioned
aggravating
and
mitigating
attendant circumstances, the age of the
accused and the fact that they have already
been in jail for a considerable period, the
Court should take lenient view as far as the
quantum of sentence is concerned. Keeping in
view the attending circumstances, we are of
the considered view that ends of justice would
be met if the punishment awarded to the
appellant is reduced. So, it appears appropriate
that in present case the sentence should not
exceed more than seven years' imprisonment.
23. In view of above facts and
discussion, the order of conviction u/s
3(2)(iv) Schedule Tribes (Prevention of
Atrocities) Act, 1989 is set aside; but the
conviction u/s 436 IPC imposed on the
appellant is hereby confirmed. For the
charge u/s 436 IPC the punishment of
sentence of imprisonment of 10 years is
modified to rigorous imprisonment of 7
years. With this modification of sentence,
the appeal stands disposed off.
24. Let the copy of this judgment be
sent to Sessions Judge, Basti of ensuring
compliance.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE YASHWANT VARMA, J.
C.M.W.P. No. 34833 of 2014
with
Writ-C No. 32572 of 2014, W.P. No. 46000
of 2014, W.P. No. 46363 of 2015, W.P. No.
50574 of 2014, W.P. No. 53568 of 2014,
W.P. No. 21180 of 2015, W.P. No. 23902 of
2015, W.P. No. 29674 of 2015, W.P. No.
44625 of 2015, W.P. No. 49108 of 2015,
W.P. No. 49118 of 2015, W.P. No. 49123 of
2015, W.P. No. 49132 of 2015, W.P. No.
49136 of 2015, W.P. No. 49140 of 2015,
W.P. No. 49143 of 2015, W.P. No. 49147 of
2015, W.P. No. 49151 of 2015, W.P. No.
34931 of 2014, W.P. No. 35050 of 2014,
W.P. No. 35407 of 2014, W.P. No. 35824 of
2014 and W.P. No. 36537 of 2014
Anand Kumar Yadav & Ors. ...Petitioners
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioners:
Sri Ashok Khare, Sri Siddharth Khare, Ms.
Saumya Mandhyan, Sri Arvind Srivastava, Sri
Rahul Agarwal, Sri Ashok Kumar Dubey, Sri
Himanshu Raghave, Sri Indrasen Singh
3 All]
 Anand Kumar Yadav & Ors. Vs. Union of India & Ors.
1109
Tomar, Sri Tarun Agarwal, Sri Ananad
Nandan, Sri Man Bahadur Singh, Sri Navin
Kumar Sharma, Sri Neeraj Tiwari
Counsel for the Respondents:
Sri C.B. Yadav, Addl. Advocate General, Sri
Shashank Shekhar Singh, Addl. C.S.C., Sri
H.R. Mishra, Sri R.K. Ojha, Sri Agnihotri
Kumar Tripathi, Sri K.S. Kushwaha, Sri
Abhishek Srivastava, Sri Ashok Pandey, Sri
Neel Kamal, Sri R.A. Akhtar, Sri M. Asthana,
Sri Arvind Kr. Goswami
U.P. Rights of Children to Free & Compulsory
Education (first amendments Rules 2014-by
state government degenerating into poor
quality education-providing absorption of
Shiksha Mitra-who completed BTC distance
course-without TET could be appointedsuch attempt-arbitrary, violation of Art. 14ultra virus-quashed.
Held: Para-120
In assuming to itself a power to relax the
minimum qualification and thereafter by
diluting the minimum qualifications in the
case
of
Shiksha
Mitras,
the
State
Government has patently acted in a manner
which is arbitrary, ultra vires the governing
central legislation and in breach of the
restraint on the limits of its own statutory
powers.
By
this
exercise,
the
State
Government
has
sought
to
grant
regularization to persons who failed to fulfil
the minimum qualifications and who were
never appointed against sanctioned posts. In
these circumstances, the grant of largesse by
the State Government to Shiksha Mitras
cannot be upheld and the amendment to the
Rules is ultra vires and unconstitutional.
(B)Constitution of India, Art.-226-Service
law-regularization-Shiksha Mitra working
on contractual basis-without any sanction
post-in absence of essential qualificationcan not be regularized.
Held: Para-122
In the present case, it is evident that the
Shiksha Mitras do not fulfil any of the
norms laid down by the Supreme Court
for regular absorption into the service of the
State. They were at all material times
appointed as and continued to be engaged
as
contractual
appointees.
Their
appointments were not against sanctioned
posts. They did not fulfil the minimum
qualifications required for appointment as
Assistant Teachers.
Case Law discussed:
(2006) 4 SCC 1; Writ-A No. 26189 of 2012
decided on 8th August 2013; Special Appeal No.
305 decided on 3rd March 2008; (2008) 3 SCC
432; 2010 (1) ESC 42 (SC); (2006) 1 SCC 667;
(2004) 7 SCC 112; (2005) 1 SCC 639; (1998) 6
SCC 165; [2013 (6) ADJ 310 (FB)]; (2010) 9 SCC
247; (2014) 4 SCC 583; (2003) 3 SCC 548; AIR
2008 SC 1817; (2015) 6 SCC 247
(Delivered by Hon'ble Dr. D.Y.
Chandrachud, C.J.)
I Constitution of the Full Bench
1. This Full Bench has been constituted
in pursuance of an order dated 27 July 2015
of the Hon'ble Supreme Court in State of
Uttar Pradesh Vs Shiv Kumar Pathak1 and
connected cases. The Supreme Court
directed that all matters before the High
Court of Judicature at Allahabad, both at
Allahabad and Lucknow, relating to Shiksha
Mitras shall be heard by a Full Bench at
Allahabad. In pursuance of the order passed
by the Supreme Court, the writ petitions
relating to Shiksha Mitras which were
pending before the Lucknow Bench have
been transferred to Allahabad in pursuance
of the provisions of Clause 14 of the United
Provinces High Courts (Amalgamation)
Order, 1948.
II Scope of the challenge
2. In the leading writ petition2, the
relief which has been sought, is for setting
aside two notifications which were issued
on 30 May 2014 by the Government of
1110
 INDIAN LAW REPORTS ALLAHABAD SERIES
Uttar Pradesh for notifying the Uttar
Pradesh Right of Children to Free and
Compulsory
Education
(First
Amendment) Rules, 20143 and the Uttar
Pradesh
Basic
Education
(Teachers)
Services (Nineteenth Amendment) Rules,
20144. By and as a result of the
amendment , Rule 16-A was introduced
into the Rules framed by the State
Government under the Right of Children
to Free and Compulsory Education Act,
20095, called the Uttar Pradesh Right of
Children
to
Free
and
Compulsory
Education Rules, 20116 to reserve to the
State Government the power to relax the
minimum qualifications prescribed for the
appointment of Assistant Teachers in
junior basic schools in the case of Shiksha
Mitras
for
the
purpose
of
their
appointment in regular service. The
second amendment which has been made
by the State Government has the effect of
amending
the
Uttar
Pradesh
Basic
Education (Teachers) Services Rules,
19817. By the amendment, the State
Government has enabled the appointment
of Shiksha Mitras who were working on
the date of commencement of the
amended Rules into regular service as
Assistant
Teachers
of
junior
basic
schools. The reliefs which have been
sought also include a challenge to a
Government Order dated 7 February 2013
issued
by
the
Principal
Secretary,
contemplating the absorption into service,
of Shiksha Mitras working in junior basic
schools in phases covering a total of
1,24,000 graduate Shiksha Mitras and
46,000
Shiksha
Mitras
who
have
completed the intermediate qualification.
There is also a challenge to a further
Government Order dated 19 June 2014
implementing the decision of the State
Government to absorb Shiksha Mitras
into regular service.
III For convenience of exposition,
the judgment has been divided into the
following parts:
(i) PART A : The legislative,
regulatory and administrative framework
(ii) PART B : Submissions
(iii) PART C : Analysis
(iv) PART D : Operative orders
PART
A
:
The
legislative,
regulatory
and
administrative
framework
3. The resolution of the controversy
before the Court turns upon the relevant
legislation, both Central and State,
holding the field and the rules and
notifications. It is upon the interpretation
of the regulatory framework that the
dispute would turn.
A1 Uttar Pradesh Basic Education
Act, 1972
4.

The
Uttar
Pradesh
Basic
Education Act, 19728 was enacted by the
state legislature for the purpose of reorganising, reforming and expanding
elementary education and, with that
purpose in view, to enable the State
Government
to
rest
control
over
elementary education from Zila Parishads
in rural areas and Municipal Boards and
Mahapalikas in urban areas while vesting
it in the Board of Basic Education. The
expression 'basic education' is defined in
Section 2(b) to mean education upto the
eighth class, imparted in schools other
than
high
schools
or
intermediate
colleges. By Section 4(1), the Board is
vested with the function of organising,
coordinating and controlling the imparting
of basic education and teachers' training
for the purpose of basic education in the
3 All]
 Anand Kumar Yadav & Ors. Vs. Union of India & Ors.
1111
State. Among the powers which are
conferred by sub-section (2) upon the
Board, is the power in clause (a) to
prescribe courses of instruction and
teachers' training in basic education and in
clause (b) to conduct basic training
certificate examinations.
5. The Act was amended by U P Act No
18 of 2000 to introduce the provisions of
Sections 9-A and 10-A and for the substitution
of Section 10. As a result of the introduction of
Section 9-A, control over teachers and
properties of basic schools at the administrative
level is entrusted to the gram panchayats or, as
the case may be, municipalities within whose
territorial limits each basic school is situated.
Substituted Section 10, which defines the
functions of Zila Panchayats and Section 10-A,
as inserted, confers upon the Municipalities,
certain statutory duties and functions in regard
to basic education in the district or, as the case
may be, the municipal area. Under Section 11,
for each village or group of villages for which a
gram panchayat is established under the U P
Panchayat Raj Act, 1947, a Village Education
Committee is contemplated to be established
consisting of the Pradhan of the Gram
Panchayat as its Chairperson. The Village
Education Committee is conferred with the
statutory function under sub-section (2)(a) to
establish, administer, control and manage basic
schools in the panchayat area and under clause
(g) such other functions pertaining to basic
education as may be entrusted by the
Government. Section 19 vests a rule-making
power in the State Government which
comprehends, among other things, in clause (c)
of sub-section (2) the power to frame rules in
respect of the recruitment and conditions of
service of persons appointed to posts of
teachers and other employees of basic schools
recognised by the Board.
A2 Uttar Pradesh Basic Education
(Teachers) Service Rules, 1981
6. In exercise of the powers conferred
by Section 19 (1) of the Act of 1972, the
Service Rules of 1981 were published on 3
January 1981. Under Rule 2(1)(b), the
appointing authority in relation to teachers
referred to in Rule 3 is defined to mean the
District Basic Education Officer. A junior
basic school under Rule 2(1)(h) is defined to
mean 'a basic school where instructions from
classes I to V are imparted'. A senior basic
school under Rule 2(1)(m) is a basic school
where instructions from classes VI to VIII
are imparted. Basic school comprehends a
school imparting instructions from classes I
to VIII. The expression 'teacher' has been
defined in Rule 2(1)(o) to mean ' a person
employed for imparting instructions in
nursery schools, basic schools, junior basic
schools or senior basic schools. The Rules
incorporate
a
definition
of
'training
institution' under Rule 2(1)(p) 'as an
institution imparting training for recognized
certificate courses of teaching.
7. Part II of the Rules of 1981 makes
provisions for cadre strength. Rule 4(1)
contemplates that there shall be separate
cadres of service under the Rules for each
local area which is defined under clause (i) of
sub-section (1) of Section 2 to mean 'the area
over which a local body exercises jurisdiction.
Under sub-rule (2) of Rule 4, the strength of
the cadre of the teaching staff pertaining to a
local area and the number of posts in the cadre
are to be such, as may be determined by the
Board from time to time with the previous
approval of the State Government. The Board
of Basic Education is empowered, with the
previous approval of the State Government, to
create temporary posts.
8. Part III of the Rules of 1981
relates to recruitment. Rule 5 provides for
the sources of recruitment and mode of
recruitment to various categories of posts.
1112
 INDIAN LAW REPORTS ALLAHABAD SERIES
Insofar as the present controversy is
concerned, Rule 5(a)(ii) provides for
recruitment of Assistant Masters and
Assistant Mistresses of junior basic
schools by direct recruitment as provided
in Rules 14 and 15.
9. Qualifications for teachers of basic
schools are defined in Part IV which, in
Rule 6, provides for age. Provisions exist
for the extent of relaxation in the case of
candidates belonging to Scheduled Castes,
Scheduled
Tribes,
Backward
Classes,
dependents of freedom fighters and exservicemen. Rule 8 deals with academic
qualifications and is in the following terms:
"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
"...
(ii) Assistant Master and Assistant
Mistress of Junior Basic Schools
Academic qualifications
A Bachelor's Degree from a University
established by law in India or a Degree
recognised by the State Government as
equivalent thereto together with the training
qualification consisting of a 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:
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."
10. Rule 8(1), as it was originally
framed, provided that for appointment of
an Assistant Teacher in a junior basic
school, the required academic qualification
was the intermediate of the Board of High
School and Intermediate Education or a
qualification recognised by the Government
as equivalent and a training qualification
consisting of a basic teacher's certificate or
any other training course recognised by the
government
as
equivalent
(including
Hindustani Teacher's Certificate, Junior
Teacher's Certificate and Certificate of
Training). The provisions of Rule 8(1) were
modified by the State Government by an
amendment to the Rules which came into
force with effect from 9 July 1998. As
modified, the intermediate qualification was
substituted by a Bachelor's degree.
11.
Rule 9 provides for reservations
for candidates belonging to Scheduled
Castes,
Scheduled
Tribes,
Backward
Classes, dependents of freedom fighters, exservicemen
and
other
categories
in
accordance with legislation in Uttar Pradesh
and orders issued by the State Government
issued from time to time. Under Rule 10, a
provision for relaxation in the maximum
age limit, educational qualifications and
procedural requirements of recruitment are
contemplated in the following terms:
"10. Relaxation for ex-servicemen and
certain other categories.- Relaxation, if any,
from the maximum age-limit, educational
qualifications
or/and
any
procedural
requirements of recruitment in favour of the
ex-servicemen, disabled military personnel,
dependents of military personnel dying in
action, dependents of Board's servants dying
in harness and sportsmen shall be in
accordance with the general rules or order of
the Government in this behalf in force at the
time of recruitment."
12. The Rules of 1981 make
elaborate provisions in regard to the
3 All]
 Anand Kumar Yadav & Ors. Vs. Union of India & Ors.
1113
procedure for recruitment. Rule 14 requires
the appointing authority, while making
appointments by direct recruitment to posts
of Assistant Teachers in junior basic
schools, to determine the number of
vacancies, vacancies set apart for reserved
categories under Rule 9 and to notify the
vacancies to the employment exchange,
besides
publication
in
at
least
two
newspapers with an adequate circulation in
the State and in the district concerned
inviting
applications
from
candidates
possessing
the
prescribed
training
qualification from the district. Under subrule (2), the appointing authority is required
to prepare a list of such persons who appear
to
possess
the
prescribed
academic
qualification
and
are
eligible
for
appointment, from the applications received
in pursuance of the advertisement or from
the Employment Exchange. Under sub-rule
(3), names of candidates are required to be
arranged in such manner that a candidate
who has passed the required training course
earlier in point of time shall be placed
higher, candidates having passed the
training course in a particular year being
required to be arranged in accordance with
the quality points. Under Rule 16, a
Selection
Committee
is
constituted
consisting of the Principal of the District
Institute of Education and Training9 as
Chairperson and other members including
the District Basic Education Officer. A
separate procedure for recruitment to a
teaching post in respect of a language is
provided in Rule 17(1) where a written
examination is contemplated. Under Rule
19, the appointing authority is required to
make appointment to any post referred to in
Rule 5 by taking the names of candidates in
the order in which they stand in the list
prepared under Rule 17. Hence, no
appointment can be made except on the
recommendation
of
the
Selection
Committee and in the case of direct
recruitment only upon the production of a
residence certificate. Rule 22 envisages the
seniority of a teacher in a cadre as
determined by the date of appointment in a
substantive capacity. Rule 23 contemplates
the appointment of all persons in a
substantive vacancy on probation for a
period of one year and a confirmation in
service under Rule 24 subject to fitness and
certification of integrity. Rule 25 provides
for scales of pay in respect of persons
appointed in a substantive or officiating
capacity or as a temporary measure as may
be determined by the government from time
to time. The manner in which quality points
are to be computed is laid down in the
Appendix to the Rules. Hence, in the Rules
of 1981, comprehensive provisions were
made by the rule-making authority while
framing the subordinate legislation for
prescribing the appointing authority, the
unit
of
appointment,
qualifications,
determination of vacancies, extent of
reservation, the procedure for recruitment
and scales of pay, among other things.
A3 National Council for Teacher
Education, 1993
13. On 29 December 1993, the
National Council for Teacher Education
Act, 199310 enacted by Parliament,
received the assent of the President and
was published in the Gazette of India on
the following day. For the purpose of
these proceedings, it would be necessary
to understand the ambit of the NCTE Act
of 1993 and RTE Act of 2009 which was
enacted sixteen years later by Parliament.
The scope of the NCTE Act, as its
preamble indicates, is to establish a
National
Council
for
Teacher
Education11 with a view to achieving
planned and coordinated development for
1114
 INDIAN LAW REPORTS ALLAHABAD SERIES
the teacher education system throughout
the country and the regulation and proper
maintenance of norms and standards. The
ambit of teacher education covers preprimary, primary, secondary and senior
secondary stages in schools and has been
comprehensively defined to include nonformal education, part-time education,
adult
education
and
correspondence
education in Section 2(l).
14. Chapter II provides for the
establishment of a Council (NCTE), while
Chapter III provides for its functions.
Among the functions of the Council in
clause (e) of Section 12 is to lay down
norms for any specified category of
courses or training in teacher education
including the minimum eligibility criteria
for admission, the method of selection of
candidates, duration, contents and mode
of curriculum. Under clause (g), the
Council is empowered to lay down
standards in respect of examinations
leading
to
teacher
education
qualifications, criteria for admission to
such examinations and schemes of
courses or training.
15.
Chapter IV provides for the
recognition of teacher education institutions.
A rule-making power is conferred upon the
Central Government by Section 31(1).
Section 32 empowers the Council to frame
regulations to carry out the provisions of the
Act. Under clause (d) of sub-section (2) of
Section 32, the Council is empowered to
frame regulations, inter alia, on:
"(d) the norms, guidelines and
standards in respect of -
(i) the minimum qualifications for a
person to be employed as a teacher under
clause (d) of Section 12;
(ii) the specified category of courses
or training in teacher education under
clause (e) of Section 12."
A4
Contractual
engagement
of
Shiksha Mitras
16. On 26 May 1999, a Government
Order
was
issued
by
the
State
Government
of
Uttar
Pradesh
for
engagement of Shiksha Mitras. The
Government Order stated that the Shiksha
Mitra scheme was being implemented so
as to provide for universal primary
education and for the maintenance of the
teacher-student ratio in primary schools.
The salient aspects of the Shiksha Mitra
scheme were as follows:
(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 months renewable for
satisfactory performance;
(iii) The educational 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
3 All]
 Anand Kumar Yadav & Ors. Vs. Union of India & Ors.
1115
Basic Education Officer among other
members to oversee implementation;
17.

Subsequently,
Government
Orders
were
issued
by
the
State
Government to amplify the nature and
ambit of the Shiksha Mitra Scheme.
Among them was a Government Order
dated 1 July 2001 by which it was
clarified that the scheme was not a
scheme for employment in regular service
since its object was to provide to educated
rural youth an opportunity to render
community service at the level of primary
education. The Government Order also
contemplated that persons would be
selected on the basis of marks obtained in
the high school, intermediate, Bed/LT.
A5 Sarva Shiksha Abhiyan
18. On 31 July 2001, the Union
Government formulated the policy called
the
Sarva
Shiksha
Abhiyan12
to
universalize
elementary
education
through the provision of community
owned quality education in a mission
mode. SSA was intended to provide
useful and relevant elementary education
for all children in the age group of 6 to 14
by
2010.
Among
the
interventions
contemplated by SSA, was the provision
of one teacher for every forty children in
primary and upper primary schools. Para
6.2 acknowledged that States possessed
their own norms for recruitment of
teachers. States were left free to follow
their own norms as long as they were
consistent with the norms established by
NCTE.
A6 NCTE Regulations, 2001
19. On 4 September 2001, NCTE,
while exercising its power to frame
Regulations, notified and issued the
National Council for Teacher Education
(Determination
of
Minimum
Qualifications
for
Recruitment
of
Teachers in Schools) Regulations, 2001.
The
Regulations
provided
for
qualifications for teachers from the preschool to the senior secondary stages
including
for teachers of elementary
schools imparting instruction at the
primary and upper primary/middle school
stages. The qualifications for recruitment
under Rule 3 read with the First Schedule
in respect of teachers of elementary
schools were defined in the following
terms:
"III. Elementary
(a) Primary
(b) Upper Primary (Middle school
section)
(i)
Senior
Secondary
School
certificate
of
Intermediate
or
its
equivalent; and
(ii) Diploma or certificate in basic
teachers training of a duration of not less
than two years. OR
Bachelor of Elementary Education
(B EI Ed)
(i)
Senior
Secondary
School
certificate
or
Intermediate
or
its
equivalent; and
(ii)
Diploma
or
certificate
in
elementary teachers training of a duration
of not less than two years.
OR
Bachelor of Elementary Education
(B EI Ed) OR Graduate with Bachelor of
Education (B Ed) or its equivalent."
20. The Note appended to the First
Schedule stipulated that for appointment
1116
 INDIAN LAW REPORTS ALLAHABAD SERIES
of teachers for primary classes, a basic
teachers' training programme of two years
duration was required and that the BEd
was not a substitute.
A7 Articles 21-A and 45 : The
Eighty-sixty Amendment
21. The Eighty-sixth Constitutional
Amendment substituted Article 45, which
forms a part of the Directive Principles of
State Policy. Article 45 lays down that the
State shall endeavour to provide for early
childhood care and education to children
below the age of six years. Article 21-A
of the Constitution was also inserted by
the Eighty-sixth Amendment into the
Chapter on fundamental rights to stipulate
that the State shall provide free and
compulsory education to all children of
the age of six to fourteen years in such
manner as it may, by law, determine.
A8 Right of Children to Free and
Compulsory Education Act, 2009
22. Parliament enacted the Right of
Children
to
Free
and
Compulsory
Education Act, 2009. The Act received
the assent of the President on 26 August
2009 and came into force on 1 April
2010. The long title to the Act provides
that it is an Act 'for free and compulsory
education to all children of the age of six
to fourteen years.' Consistent with this
ambit, 'child' in Section 2(c) is defined to
mean 'a male or female child of the age of
six to fourteen years'. Chapter II of the
Act makes a provision for the right to free
and compulsory education; Chapter III for
the duties of the appropriate government,
local authority and parents; Chapter IV
for the responsibilities of schools and
teachers; Chapter V for the curriculum
and completion of elementary education;
Chapter VI for the protection of rights of
children;
and
Chapter
VII
for
miscellaneous provisions. Section 23,
which is a part of Chapter IV, provides as
follows:-
"23. Qualification for appointment
and terms and conditions of service of
teachers.-(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."
A9 NCTE Regulations, 2009 :
Open and Distance Learning
23. On 31 August 2009, NCTE
issued the National Council for Teacher
Education
(Recognition
norms
and
Procedure)
Regulations,
200913.
Regulation
3
provides
that
the
Regulations shall be applicable to all
3 All]
 Anand Kumar Yadav & Ors. Vs. Union of India & Ors.
1117
matters relating to teacher education
programmes
covering
norms
and
standards and procedures for recognition
of institutions, commencement of new
programmes and addition to sanctioned
intake in existing programmes and other
matters
incidental
thereto.
Rule
5
provided for the manner in which an
institution
eligible
and
desirous
of
conducting
a
teacher
education
programme could apply to the Regional
Committee of NCTE for recognition.
Provisions have been made in the
Regulations for the manner in which
applications would
be processed, in
regard to the conditions for the grant of
recognition and allied matters. Among the
Appendices
to
the
Regulations,
Appendix-9 provides for the norms and
standards for a diploma programme in
elementary education through open and
distance learning, leading to a Diploma in
Elementary Education (D El Ed). Para 1
of Appendix-9 provides the Preamble and
the rationale underlying the adoption of
open and distance learning, thus:
"Preamble.-(i)
The
elementary
teacher education programme through
Open and Distance Learning System is
intended primarily for upgrading the
professional
competence
of
working
teachers
in
the
elementary
schools
(primary and upper primary/middle). It
also envisages bringing into its fold those
teachers who have entered the profession
without formal teacher training.
(ii) The NCTE accepts open and
distance learning (ODL) system as a
useful and viable mode for the training of
teachers
presently
serving
in
the
elementary schools. This mode is useful
for providing additional education support
to
the
teachers
and
several
other
educational functionaries working in the
school system."
24. Clause 2 of Para 5 provides for
eligibility of teachers entitled to be sent
for training in the following terms:
"(2) Eligibility
(i) Senior Secondary (Class XII) or
equivalent examination passed with fifty
percent marks.
(ii) Two years teaching experience in
a Government or Government recognized
primary/elementary school."
A10 NCTE Notification dated 23
August 2010
25. On 31 March 2010, NCTE was
designated as the authority under Section
23(1) of the Act for laying down the
minimum qualifications for appointment
as a teacher. On 6 July 2010, a
Government Order was issued by the
State Government taking note of a
judgment rendered by a Division Bench
of this Court in Devi Prasad Vs State of U
P14 to the effect that Shiksha Mitras
could not be accorded leave for the
purpose
of
acquiring
higher
qualifications. The Government Order
provided that the Shiksha Mitras, if they
so
desire,
may
obtain
a
higher
qualification by pursuing correspondence
courses.
26. On 23 August 2010, NCTE
issued a notification in exercise of powers
conferred upon it, pursuant to the
authorisation of the Central Government
under Section 23(1), laying down the
minimum educational qualifications for a
person to be eligible for appointment as a
teacher for Classes I to VIII. The
minimum qualifications are as follows:
1118
 INDIAN LAW REPORTS ALLAHABAD SERIES
"1. Minimum Qualification.-
(i) Classes I-V
(a)
Senior
Secondary
(or
its
equivalent) with at least 50 % marks and
2-year Diploma in Elementary Education
(by whatever name known)
OR
Senior Secondary (or its equivalent)
with at least 45% marks and 2-year
Diploma in Elementary Education (by
whatever name known), in accordance
with the NCTE (Recognition Norms and
Procedure), Regulations 2002
OR
Senior Secondary (or its equivalent)
with at least 50% marks and 4-year
Bachelor
of
Elementary
Education
(B.El.Ed.)
OR
Senior Secondary (or its equivalent)
with at least 50% marks and 2-year
Diploma in Education (Special Education)
AND
(b) Pass in the Teacher Eligibility
Test (TET), to be conducted by the
appropriate Government in accordance
with the Guidelines framed by the NCTE
for the purpose.
(ii) Classes VI-VIII
(a) BA/BSc and 2-year Diploma in
Elementary Education (by whatever name
known)
OR
BA/BSc with at least 50% marks and
1-year Bachelor in Education (BEd)
OR
BA/BSc with at least 45% marks and
1-year Bachelor in Education (BEd), in
accordance with the NCTE (Recognition
Norms and Procedure) Regulations issued
from time to time in this regard
OR
Senior Secondary (or its equivalent)
with at least 50% marks and 4-year
Bachelor in Elementary Education (B El
Ed)
OR
Senior Secondary (or its equivalent)
with at least 50% marks and 4-year
BA/BSc, Ed or BA, Ed/BSc, Ed
OR
BA/BSc with at least 50% marks and
1-year BEd (Special Education)
AND
(b) Pass in the Teacher Eligibility
Test (TET), to be conducted by the
appropriate Government in accordance
with the Guidelines framed by the NCTE
for the purpose." (emphasis supplied)
27. Clause 4 of the notification dealt
with the teachers who had been appointed
prior to the date of the notification and
provided as follows:
"4. Teacher appointed before the date
of this Notification.- The following
categories of teachers appointed for
classes I to VIII prior to date of this
Notification
need
not
acquire
the
minimum qualifications specified in Para
(1) above:
(a) A teacher appointed on or after
the 3rd September, 2001 i.e. the date on
which the NCTE (Determination of
Minimum Qualifications for Recruitment
of Teachers in Schools) Regulations, 2001
(as amended from time to time) came into
force, in accordance with that Regulation.
Provided that a teacher of class I to V
possessing BEd qualification, or a teacher
possessing BEd (Special Education) or
DEd (Special Education) qualification
shall undergo an NCTE recognized 6month special programme on elementary
education.
(b) A teacher of class I to V with
BEd qualification who has completed a 6-
3 All]
 Anand Kumar Yadav & Ors. Vs. Union of India & Ors.
1119
month Special Basic Teacher Course
(Special BTC) approved by the NCTE;
(c) A teacher appointed before the
3rd September, 2001, in accordance with
the prevalent Recruitment Rules."
28. Clause 5 stipulates that where an
appropriate government, local authority or
school had issued an advertisement for
initiating the process of appointment prior
to
the
date
of
the
notification,
appointments
could
be
made
in
accordance with the Regulations of 2001.
29. The notification dated 23 August
2010 basically stipulated two sets of
minimum qualifications. The first is an
educational qualification and the second a
training qualification. Apart from these,
the notification has made the passing of
the Teacher Eligibility Test15 mandatory;
the test being required to be conducted by
the appropriate government in accordance
with the guidelines framed by NCTE. For
classes I to V, the minimum educational
qualification
prescribed
is
senior
secondary (with a stipulated percentage of
marks). The training qualification is a
diploma in elementary education. For
classes
VI
to
VIII,
the
minimum
educational qualification is a bachelor's
degree in arts or, as the case may be,
science (with a stipulated percentage)
coupled with a diploma in elementary
education or a bachelor's degree in
education. For classes VI to VIII, a senior
secondary is also treated as one of the
permissible qualifications, provided a
candidate has a four year's bachelor's
degree in elementary education. Both for
teaching students of classes I to V and for
imparting instruction to students of
classes VI to VIII, the passing of the TET
is made mandatory. The notification dated
23
August
2010
was
subsequently
amended by a notification dated 29 July
2011. The minimum qualifications for a
person to be eligible for appointment as
an Assistant Teacher contained in subparas (i) and (ii) of Para (I) of the
principal notification were substituted.
30. Clause 4 of the notification
provides for the categories of teachers
appointed prior to the date of the
notification who were not required to
acquire
the
minimum
qualifications
specified in Clause 1. Clause 4 basically
deals with three categories. The first
category consists of teachers appointed
after 3 September 2001 which is the date
on which the Regulations of 2001 came
into force. Teachers who were appointed
prior to 23 August 2010 but "in
accordance
with
that
Regulation"
(meaning thereby the Regulations of
2001) were exempted from the acquisition
of the minimum qualifications prescribed
by Clause 1. The
second category
comprises of teachers of classes I to V
with a BEd qualification who had
completed a six months Special BTC
course approved by NCTE. The third
category comprises of teachers appointed
prior to 3 September 2001; such of them
who were appointed in accordance with
the prevalent recruitment rules, that is to
say, the rules in existence on the date of
the appointment of the teacher, were
exempted
from
the
requirement
of
complying
with
the
minimum
qualifications
prescribed
in
the
notification. After the date of the
notification, the minimum qualifications
became mandatory, save and except for
the exceptions which were carved out.
Clause 5 is to the effect that where an
advertisement had been issued prior to the
date of the notification, the appointment
process could be completed on the basis
1120
 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Regulations of 2001 which had
held the field until then.
A11
Relaxation
of
minimum
qualifications
31. On 8 November 2010, the Union
Government called upon the States to
submit proposals, if any, for relaxation of
the norms fixed by NCTE. The power of
relaxation, it must be noted, was vested in
the Central Government alone by virtue of
the provisions of sub-section (2) of
Section 23. The Union Government, by its
communication to the State Governments,
clarified that the requirement of holding
the TET would not be relaxed.