# Mahendra Pal & Ors v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 1293
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-13
- **Case number:** Writ A No. 13156 of 2020
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-pal-ors-v-state-of-u-p-ors-49934
- **Pages:** 63

## Headnote

A. Service/Education Law - Recruitment -
Reservation - The U.P. Basic Education Act,
1972: Section 19(1), 19(2)(a) and (c); U.P.
Basic Education (Teachers) Service Rules, 1981:
Rule 9; U.P. Basic Education (Teachers) Service
(20th Amendment) Rules, 2017: Rule 2(w), 14,
14(3),
14(3)(b);
Appendix-I
of
Twentieth
Amendment of Uttar Pradesh Basic Shiksha
(Teachers) Rules, 1981; Right of Children to
Free and Compulsory Education Act, 2009:
Section 23(1); National Council for Teachers
Education Act, 1993; The Uttar Pradesh Public
Services (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes)
Act, 1994: Section 3(6) - If a candidate is
entitled to be admitted on the basis of his
own merit then such admission should not
be counted against the quota reserved for
Scheduled Caste or Scheduled Tribe or any
other reserved category since that will be
against
the
Constitutional
mandate
enshrined in Article 16(4). (Para 111)

The mere fact that some relaxation was given in
the pass marks in the TET did not give any
advantage to the reserve category candidate as
it only enabled them to compete with others by
allowing them to participate in the selection
process. (Para 126)

Concession granted at the level of TET, so
as to make a candidate eligible to
participate in the open competition, like
the
ATRE-2019
would
not
debar
a
reserved
category
candidate
to
be
excluded from the consideration zone in
the open competition, in case he is able to
match and score more marks than the last
general category candidate in the open
category as the competition has not yet
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
started at that point of time. However, in
case a candidate seeks relaxation of
marks in passing in the ATRE-2019,
obviously he would not be considered to
belonging
to
a
meritorious
reserved
category as not only the competition has
started but this relaxation would mean
reservation. (Para 151)

Any reserved category candidate, who has
obtained 65% marks or more can be considered
to be a meritorious reserved category candidate
and accordingly allowed to compete with the
general category candidate and progress to the
open category, whereas a reserved category
candidate, who has scored less than 65% and
more than 60% in the ATRE-2019 would be
considered in their own respective category and
would not be allowed
to progress into
consideration
zone
with
general
category
candidates on the basis of scoring more in the
quality point as per Appendix-1 of the rules. The
above
proposition
simply
put
may
be
understood as under:

(i) Any candidate belonging to a reserved
category, who has availed relaxation of marks in
ATRE-2019, which has been held to be an open
competition, shall not be entitled to migrate
from their respective category to the unreserved
category while preparing the select list as per
the quality points in terms of Appendix -1 of the
rules.
(ii) Further, those candidate's, whether reserved
o

## Text

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3 All. Mahendra Pal & Ors. Vs. State of U.P. & Ors.
1293

50. Thus, we hold that the appellant
Lalji guilty under Section 304 Part-II IPC
in the place of Section 302 IPC. The
appellant is aged about 75 years, the
occurrence took place in the year 1991 and
he is in jail since 04.03.2021, therefore, to
meet the ends of justice, we would like to
the reduce sentence of the appellant, to
three years rigorous imprisonment in the
place of life imprisonment.

51. The appellants Shyamji and
Pyare are acquitted of the charges
levelled against them while extending
them
the
benefit
of
doubt.
Their
conviction and sentence is hereby set
aside. They are in jail, so they be released
from jail forthwith, if not wanted in any
other case.

52. To the extent as aforesaid the
judgment and order dated 26.02.1997 as
passed by the learned Sessions Judge is
hereby modified.

53. Accordingly, this appeal is partly
allowed.

54. Copy of this judgment alongwith
the original record of Court below be
transmitted to the Court concerned for
necessary compliance. A compliance report
be sent to this Court within one month.
Office is directed to keep the compliance
report on record.
----------
(2023) 3 ILRA 1293
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.03.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 13156 of 2020
Mahendra Pal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Neel Kamal Mishra, Deepak Singh, Niteesh
Kumar, Pramod Kumar Yadav, Rajeev
Narayan Pandey

Counsel for the Respondents:
C.S.C., Ajay Kumar

A. Service/Education Law - Recruitment -
Reservation - The U.P. Basic Education Act,
1972: Section 19(1), 19(2)(a) and (c); U.P.
Basic Education (Teachers) Service Rules, 1981:
Rule 9; U.P. Basic Education (Teachers) Service
(20th Amendment) Rules, 2017: Rule 2(w), 14,
14(3),
14(3)(b);
Appendix-I
of
Twentieth
Amendment of Uttar Pradesh Basic Shiksha
(Teachers) Rules, 1981; Right of Children to
Free and Compulsory Education Act, 2009:
Section 23(1); National Council for Teachers
Education Act, 1993; The Uttar Pradesh Public
Services (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes)
Act, 1994: Section 3(6) - If a candidate is
entitled to be admitted on the basis of his
own merit then such admission should not
be counted against the quota reserved for
Scheduled Caste or Scheduled Tribe or any
other reserved category since that will be
against
the
Constitutional
mandate
enshrined in Article 16(4). (Para 111)

The mere fact that some relaxation was given in
the pass marks in the TET did not give any
advantage to the reserve category candidate as
it only enabled them to compete with others by
allowing them to participate in the selection
process. (Para 126)

Concession granted at the level of TET, so
as to make a candidate eligible to
participate in the open competition, like
the
ATRE-2019
would
not
debar
a
reserved
category
candidate
to
be
excluded from the consideration zone in
the open competition, in case he is able to
match and score more marks than the last
general category candidate in the open
category as the competition has not yet
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
started at that point of time. However, in
case a candidate seeks relaxation of
marks in passing in the ATRE-2019,
obviously he would not be considered to
belonging
to
a
meritorious
reserved
category as not only the competition has
started but this relaxation would mean
reservation. (Para 151)

Any reserved category candidate, who has
obtained 65% marks or more can be considered
to be a meritorious reserved category candidate
and accordingly allowed to compete with the
general category candidate and progress to the
open category, whereas a reserved category
candidate, who has scored less than 65% and
more than 60% in the ATRE-2019 would be
considered in their own respective category and
would not be allowed
to progress into
consideration
zone
with
general
category
candidates on the basis of scoring more in the
quality point as per Appendix-1 of the rules. The
above
proposition
simply
put
may
be
understood as under:

(i) Any candidate belonging to a reserved
category, who has availed relaxation of marks in
ATRE-2019, which has been held to be an open
competition, shall not be entitled to migrate
from their respective category to the unreserved
category while preparing the select list as per
the quality points in terms of Appendix -1 of the
rules.
(ii) Further, those candidate's, whether reserved
or unreserved, scoring more than 65% marks in
ATRE-2019 shall be encompassed within the
consideration zone of the open category and a
select list shall be accordingly prepared of these
candidates separately on the quality points and
accordingly 50% of the total seats shall be filled
by these candidates, irrespective of whether
they belong to reserved or unreserved category.
(iii) The balance 50% shall be filled by
candidates from their respective reserved
category as envisaged under section 3(1) of the
Reservation Act.
(iv) Thereafter, the horizontal reservation as
provided in the Government order should be
applied accordingly, if any. (Para 152)

B. Allocating the districts of preference to
MRC candidates - MRC candidates have to be
only treated "notionally" as reserve category
candidates for the said purpose for allotment of
districts and they can opt for a seat earmarked
for the reserved category, so as to not
disadvantage him against less meritorious
reserved category candidates. Such MRC shall
be treated as part of the general category only.
Further, due to the MRC's choice, one reserved
category seat being occupied, and one seat
among the choices available to general category
candidates remains unoccupied. Consequently,
one lesser-ranked reserved category candidate
who had choices among the reserved category
is affected as he does not get any choice
anymore and as such to remedy the situation
i.e. to provide the affected candidate a remedy,
the seat which would have been allotted to
MRC, had he not opted for a seat meant for the
reserved category to which he belongs, shall
now be filled up by that candidate in the
reserved category list who stands to lose out by
the choice of the MRC, which would leave the
percentage of reservation at 50% undisturbed.
(Para 153)

C. Words and Phrases - 'competition' -
'open competition' - The term 'competition'
muchless 'open competition' has not been
defined
under
the
Reservation
Act.
The
Cambridge Dictionary, defines "competition" to
mean "an organized event in which people try to
win a prize by being the best, fastest, etc.
Similarly, Encyclopaedia Britannica has defined
"Competition" to be an act or process of trying
to get or win something (such as a prize or a
higher level of success) that someone else is
also trying to get or win. Thus, in common
parlance,
the
meaning
of
competition
would be an event or a process, wherein
each person is trying to win by being the
best. Therefore, an open competition as
could be understood, relevant to the
context, would be a competition which is
open
to
one
and
all,
wherein
the
participants are trying to win by being the
best and in that process the participants
have not availed any concession or
privilege. Thus, in the said open competition,
the best is chosen from the rest. The
parameters applicable to all of them are one
and equal and they are adjudged on the same
scale of merit and most importantly, "level
playing field" is afforded in the said open
competition. (Para 102)
3 All. Mahendra Pal & Ors. Vs. State of U.P. & Ors.
1295
In the peculiar facts of the present case and
purely to balance to equity, this court in
exercise of its Jurisdiction u/Article 226 of the
Constitution of India directs that till the time the
respondents prepare the revised list, the
candidates already appointed and presently
working as Assistant Teachers in various district
shall continue to work in their post till such
period and shall be not disturbed, keeping in
mind the examination period and the end of
education session. The appointment of those
teachers, who do not find any place in the
revised list as has been directed herein
above and who had been appointed as per
the select list of 01.06.2020 was purely
fortuitous and does not entail any right in
them. The said direction is in conformity to the
interim order dated 7th of December, 2020,
wherein this court while issuing notice to the
affected persons directed that, in the meantime,
appointments made on the post of Assistant
Teacher shall be subject to the final decision of
these petitions. (Para 155)

Since, it has been directed that the select list
dated 01.06.2020 to be revised in view of the
observation made in this Judgment, the select
list of 6800 dated 05.01.2022 stands quashed.
Reservation should not be in any circumstances
more than 50% of the total seats. (Para 158,
159)

Writ petitions disposed of. (E-4)

Precedent followed:

1. Indra Sawhney Vs U.O.I., 1992 Supp (3) SCC
217; AIR 1993 SC 477 (Para 6, 111)

2. R.K. Sabharwal Vs St. of Pun., (1995) 2 SCC
745 (Para 112)

3. Tej Pal Yadav Vs U.O.I., 174 (2010) DLT 510
(DB) (Para 116)

4. Anil Kumar Gupta, (1995) 5 SCC 173 (Para
119)

5. Jitendra Kumar Singh Vs St. of U. P. & ors.,
(2010) 3 SCC 119 (Para 122)

6. Vikas Sankhala Vs Vikas Kumar Agarwal,
(2017) 1 SCC 350 (Para 125)
7. Gaurav Pradhan Vs St. of Raj., (2018) 11 SCC
352 (Para 128)

8. Deepa E.V. Vs U.O.I. (2017) 12 SCC 680
(Para 130)

9. Saurav Kumar Vs St. of U. P., (2021) 4 SCC
542 (Para 135)

10. Niravkumar Dilipbhai Makwana Vs Gujrat
Public Service Commission, (2019) 7 SCC 383
(Para 137)

11. U.O.I. Vs Ramesh Ram & ors., (2010) 7 SCC
234 (Para 139)

12. Tripurari Sharan Vs Ranjit Kumar Yadav,
(2018) 7 SCC 656 (Para 142)

13. U.O.I. Vs Ishwar Singh Khatri (1992) Supp 3
SCC 84 (Para 146)

14. Gujrat St. Deputy Executive Engineers
Association Vs St. of Guj., (1994) Suppl. 2 SCC
591 (Para 146)

15. St. of Bihar Vs The Secretariat Assistant S.E.
Union, AIR 1994 SC 736 (Para 146)

16. Prem Singh Vs Har. St. Electricity Board,
(1996) 4 SCC 319 (Para 146)

17. Ashok Kumar Vs Chairman, Banking
Service Recruitment Board, AIR 1996 SC 976
(Para 146)

18. Surinder Singh & ors. Vs St. of Pun. & ors.,
AIR 1998 SC 18 (Para 148)

19. Hoshiyar Singh Vs St. of U.P., (1993) Supp
(4) SCC 377 (Para 149)

20. Arup Das & ors. St. of Assam, (2012) 5 SCC
559 (Para 149)

21. Ram Sharan Maurya & ors. Vs St. of U.P. &
ors., (2020) SCC Online 939 (Para 27)

22. St. of U.P. & anr. Vs Anand Kumar Yadav &
ors., (2018) 13 SCC 560 (Para 27)

23. Subedar Singh & ors. Vs St. of U.P., SLP No.
6687/2020 (Para 70)
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
24. St. of Uttar Pradesh & anr. Vs Anand Kumar
Yadav & ors., (2018) 13 SCC 560 (Para 91)

25. Ritesh R. Shah Vs Dr. Y.L. Yamul & ors.,
(1996) 3 SCC 253 (Para 111)

Precedent distinguished:

St. (NCT of Delhi) Vs Pradeep Kumar, (2019) 10
SCC 120 (Para 134)

(Delivered by Hon'ble Om Prakash Shukla, J.)

INDEX
Topics

Page No.
A. Introduction

 31
B. Recruitment law, Rules & Amendment

 34
C. Reservation law, Rules & Amendment

 47
D.
Assistant
Teachers
Recruitment
Examination -2019

 49
E. Categories of the Writ Petitions
 56
F. Interim Order

 62
G. Contention of the Parties

 69
H. Discussion & Finding

 89
I. Issue of Allocation of preferential
Districts

130
J. Select list of 6800 dated 05.01.2022

133
K. Conclusion

140

A. Introduction

1. Reservation is a form of affirmative
action
that
provides
predetermined
representation in education, employment,
government schemes, scholarships and
political representation to a disadvantaged
group. The system of reservation existed in
India even before independence. Postindependence the system of reservation
came to be imbibed in our Constitution.
Initially, it was introduced for a time span
of 10 years as per Article 334 of the
constitution of India. Post 10-year period,
the parliament found the necessity to
continue the system of reservation to
overcome many years of societal and
cultural discrimination of certain sections
of society and as such it continues to hold
the ground even after 75 years of
Independence.

2. Under our Constitution, reservations
do not refer to the sharing of state power by
all social groups, but rather it refers to
inclusion of subordinated and marginalised
groups, who were socially and culturally
backwards due to various reasons to be
included in the main-stream. Thus, the
reservation
in
that
sense,
in
our
constitution, means an inclusive remedy for
upliftment of these downtrodden and
essentially is participatory in nature, so that
the backward classes are not only brought
at par to the main-stream, but they also play
an
active
role
in
the
development,
administration, progressive equality and
achievement of our country.

3. While Article 15 of our constitution
relates
to
reservation
in
Education
Institutions,
Article
16
relates
to
reservation
in
public
employment.
Interestingly, the word "backward" used in
both the Articles are of utmost significance
and that is the word, which has found itself
in the epicentre of controversy, ever since
the Article existed. Although, it was the
Drafting
Committee
under
the
Chairmanship of Dr. B.R. Ambedkar that
inserted the word "backward" in between
the words "in favour of any" and "class of
citizens" as mentioned in Article 16(4) of
our constitution and eventually it was left
to the respective states to determine as to
who could be called backward. However,
the meaning of the word "Backward" as
should be understood in today's progressive
India could be found from the explanation
3 All. Mahendra Pal & Ors. Vs. State of U.P. & Ors.
1297
of Shri K.M. Munshi, who was a member
of
the
drafting
committee
of
our
constitution. In a debate in the constituent
assembly relating to Article 16 of our
constitution
(which
was
originally
introduced as Article 10), after the
discussion
proceeded
for
some
time
relating to the insertion of the word
"backward" and it was contended by the
members of the constituent assembly that
the said word was vague, Sri K.M. Munshi,
rose to the occasion to explain the content
of the word 'backward' in the following
words:

"What we want to secure by this
clause are two things. In the fundamental
right in the first clause we want to achieve
the highest efficiency in the services of the
State-highest
efficiency
which
would
enable the services to function effectively
and promptly. At the same time, in view of
the conditions in our country prevailing in
several provinces, we want to see that
backward class, classes who are really
backward, should be given scope in the
State services; for it is realised that State
services give a status and an opportunity to
serve the country, and this opportunity
should be extended to every community,
even among the backward people. That
being so, we have to find out some generic
term and the word "backward class" was
the best possible term."

Sri Munshi proceeded to state:

I may point out that in the
province of Bombay for several years now,
there has been a definition of backward
classes, which includes not only Scheduled
Castes and Scheduled Tribes but also other
backward classes who are economically,
educationally, and socially backward. We
need not, therefore, define or restrict the
scope of the word "backward" to a
particular
community.
Whoever
is
backward will be covered by it and I think
the apprehensions of the Honourable
Members are not justified.

4. The reservation extended on the
basis of ''economic criterion' is one such
step, wherein poverty is visualized as a
form of subordination that reflects ''social
backwardness'. Be that as it may, the larger
debate would always remain as to whether
this reservation should be the end of the
story or the government is required to take
other remedial action beyond welfare
policies. However, to the mind of this
court, reservation should not be envisaged
as an end to the problem but merely a
means to secure the social, economic and
political justice as enshrined in our
Preamble.

5. As has been recently held by the
Hon'ble Apex Court, while upholding the
constitutionality of providing 10% EWS
Quota to economically weaker section,
which is as under:

"Reservation is not an end but a
means -- a means to secure social and
economic justice. Reservation should not
be allowed to become a vested interest.
Real solution, however, lies in eliminating
the causes that have led to the social,
educational and economic backwardness of
the weaker sections of the community".

Hon'ble Justice P.B. Pardiwala,
who formed the majority view which
upheld the 10% EWS quota recently in
"Janhit Abhiyan V/s Union of India"
decided on 7th December, 2022 by Hon'ble
Supreme Court of India.

6.
The
observation
in
the
constitutional Bench judgment of Indra
Shawney case, AIR 1993 SC 477, makes it
amply clear that the objective behind
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
reservation was the sharing of State power.
The said Judgment observes that the State
power which was almost exclusively
monopolised by the upper castes i.e., a few
communities, was now sought to be made
broad-based,
wherein
the
backward
communities who were till then kept out of
apparatus of power, were sought to be
inducted there into and since that was not
practicable in the normal course, a special
provision was made to effectuate the said
objective. In short, the objective behind
Article 16(4) was empowerment of the
deprived backward communities- to give
them
a
share
in
the
administrative
apparatus and in the governance of the
community.

7. The present bunch of matters stems
out of a dispute relating to the nuances of
implementation of reservation policy to the
recruitment of Assistant Teachers in the
primary
school
run
by
the
state
Government, wherein the primary issue is
relating
to
migration
of
Meritorious
reserved category (MRC) candidates to the
open category and its consequences both
the reserved category as well as the
unreserved category. Before this court
delves into the facts & issue in the present
cases, it would be profitable to trace the
law holding the ground relating to the
recruitment
process
of
the
Assistant
Teachers in the primary school with
emphasis on the reservation policy of the
state of Uttar Pradesh.

B. Recruitment Law, Rules &
Amendment

8. The U.P. Basic Education Act, 1972
(hereinafter referred as the "Act") is the
primary law dealing with the basic
education in the State of Uttar Pradesh.
Section 19(1) of the Act empowers the state
to make rules for carrying out the purposes
of the Act and Section 19(2)(a) & (c) of the
Act empowers the state to make rules
relating to the recruitment and condition of
service of the persons appointed to the post
of Teachers. Thus, the state framed the
rules for selection to the recruitment of
Assistant Teachers in the primary school
run by the state Government vide the U.P.
Basic Education (Teachers) Service Rules,
1981 (hereinafter referred as the "Rules"),
wherein Rule 8 of the said rules prescribed
the minimum requisite qualification for
appointment of Assistant Teachers of the
parishad.

9. Shorn of the various details of the
Act and rules framed therein, this court
keeping in mind the issue raised by the writ
petitioners in this bunch of matter, finds
that the State Government notified UP
Basic
(Teachers)
Service
(20th
Amendment) Rules, 2017 amending 1981
Rules on 09.11.2017 and the following
expressions were defined in Rule 2 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;

(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
3 All. Mahendra Pal & Ors. Vs. State of U.P. & Ors.
1299
programme
in
elementary
education
recognised by National Council for Teacher
Education (NCTE);

(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

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 v.
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 Government."

10. Thus, the concept of ATRE
(Assistant
Teacher
Recruitment
Examination) came into existence by the
promulgation of 20th Amendment and the
sources of recruitment of Assistant teachers
as set out in Rule 5(a)(ii), inter-alia stated
that the same shall be by direct recruitment
as provided in Rule 14. Further, rule 8(1)
dealing with the requirement of Academic
qualifications of Assistant Teachers, stated
as herein under:

"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 Qualifications
(i)
Mistresses
of
Nursery School
Bachelors degree from a University
established by law in India or a
degree
recognised
by
the
Government
equivalent
thereto
together with Certificate of teaching
(Nursery) from recognised training
institution of Uttar Pradesh and any
other training course recognised by
the Government as equivalent thereto
and teacher eligibility test passed
conducted by the Government or by
the Government of India
(ii) Assistant Master
and
Assistant
Mistresses of Junior
Basic Schools
ii.(a) Bachelors degree from a
University established by law in
India or a degree recognised by the
Government
equivalent
thereto
together with any other training
course
recognised
by
the
Government as equivalent thereto
together
with
the
training
qualification consisting of a Basic
Teacher's Certificate (BTC), two
years BTC (Urdu) Vishisht BTC,
two-year
Diploma
in
Education
(Special Education) approved by
Rehabilitation council of India or
four year Degree in Elementary
Education (B.El.Ed.), two years
Diploma in Elementary Education
(by whatever name known) in
accordance
with
the
National
Council of Teacher of Education
(Recognition, Norms and Procedure),
Regulation
or
any
training
qualifications
to
be
added
by
National
Council
for
Teacher
Education for the recruitment of
teachers in primary education
and
Teacher
eligibility
test
passed
conducted by the Government of
India and passed Assistant Teacher
recruitment Examination conducted
by the Government.
(b) A trainee Teacher who has
completed successfully six months
special
training
programme
in
elementary education recognized by
National
Council
for
Teacher
Education.
(c) a shikshamitra who possessed
bachelors degree from a University
established by law in India or a
degree
recognised
by
the
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
Government equivalent thereto and
has completed successfully two year
distant learning B.T.C. course or
basic Techer's Certificate (B.T.C.),
Basic Teacher's Certificate (B.T.C.)
(Urdu) or Vishisht B.T.C. conducted
by the State Council of Educational
Research and Training and passed
the
Teacher
Eligibility
Test
conducted by the Government of
India and passed Assistant Teacher
recruitment Examination conducted
by the Government.
(iii) Trainee Teacher iii.
Bachelors
degree
from
a
University established by law in
India or a degree recognized by the
Government
equivalent
thereto
together with B.Ed./B.Ed.(Special
Education)/D.E.d.(Special
Education) qualification and passed
the teacher eligibility test conducted
by the Government or by the
Government of India. However, in
case
of
B.Ed.
(Special
Education)/D.Ed.(Special Education)
a course recognised by Rehabilitation
Council of India (RCI) only shall be
considered

11. Similarly, UP Basic (Teachers)
Service (20th Amendment) Rules, 2017 as
far as Rule 14 is concerned, dealt with
determination of vacancies and preparation
of list. The said rule inter-alia stated:

"14. Determination of vacancies and
preparation of list-

(1) (a) In respect of appointment,
by direct recruitment to the post of Mistress
of Nursery Schools and Assistant Master or
Assistant Mistress of Junior Basic Schools
under clause (a) of Rule 5, the appointing
authority shall determine the number of
vacancies as also the number of vacancies
to be reserved for candidates belonging to
Scheduled
Castes,
Scheduled
Tribes,
Backward Classes, and other categories
under Rule 9 and published in at least two
leading daily newspapers having adequate
circulation in the State as well as in
concerned district inviting applications
from candidates possessing prescribed
training qualification and teacher eligibility
test passed, conducted by the Government
or by the Government of India and passed
Assistant
Teacher
Recruitment
Examination
conducted
by
the
Government.

(b) 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 programme in
elementary
education
recognised
by
National Council of Teacher Education
(NCTE). 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
advertisement would be issued in at least
two leading daily newspapers having
adequate circulation in the State as well as
in concerned district inviting applications
from 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.

(c) The trainee teachers, after
obtaining the certificate of successful
completion of six months special training
in elementary education shall be appointed
as assistant teachers in junior basic school
against substantive post in regular payscale. 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.
3 All. Mahendra Pal & Ors. Vs. State of U.P. & Ors.
1301

(2) The appointing authority shall
scrutinize the applications received in
pursuance of the advertisement under
clause (a) or (b) of sub-rule (1) of Rule 14
and prepare a list of such persons as appear
to
possess
the
prescribed
academic
qualifications
and
be
eligible
for
appointment.

(3) (a) The names of candidates
in the list prepared under sub-rule (2) in
accordance with clause (a) of sub-rule (1)
of Rule 14 shall then be arranged in such
manner that the candidate shall be arranged
in accordance with the quality points and
weightage as specified in the Appendix-I :

Provided that if two or more
candidates
obtain
equal
marks,
the
candidate senior in age shall be placed
higher.

(b) The names of candidates in
the list prepared under sub-rule (2) in
accordance with clause (b) of sub-rule (1)
of Rule 14 shall then be arranged in such
manner that the candidate shall be arranged
in accordance with the quality points
specified in the Appendix-II:

Provided that if two or more
candidates
obtain
equal
marks,
the
candidate senior in age shall be placed
higher.

(c) The names of candidates in
the list prepared in accordance with clause
(c) sub-rule (1) of Rule 14 for appointment
as assistant teacher shall be same as the list
prepared under clause (b) subrule (3) of
Rule 14 unless the candidate under the said
list is unable to successfully complete the
six months special training course in
elementary education in his first attempt. If
the candidate successfully completes the
six months special training in his second
and final attempt, the candidate's name
shall be placed under the names of all those
candidates who have completed the said six
months special training in their first
attempt.

(4) No person shall be eligible for
appointment unless his or her name is
included in the list prepared under sub-rule
(2).

(5) The list prepared under subrule (2) and arranged in accordance with
clause (a) and (b) of sub-rule (3) of Rule 14
shall be forwarded by the appointing
authority to the selection committee."

12. Appendix I referable to Rule
14(3)(a) and Appendix II referable to Rule
14(3)(b)
as
amended
by
the
20th
Amendment were as under: -

"APPENDIX-I
[See Rule 14 (3)(a)]
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
B.T.C Training
5.
Assistant
Teacher
Recruitment
Examination
Assistant Teacher
Recruitment Examination
6.
Weightage
Teaching
experiences
as
shikshamitra
or/as
teacher
working
as
such in junior basic
schools run by Basic
Shiksha Parishad.
2.5 marks per completed
teaching year, up to
maximum 25 marks,
whichever is less

Notes 1 - If two or more candidates
have equal quality points, the name of the
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
candidate who is senior in age shall be
placed higher in the list.

2. If two or more candidates have
equal quality points and age, the name of
the candidate shall be placed in the list in
English alphabetical order."

"APPENDIX-II
[See Rule 14 (3)(b)]
Quality points for selection of candidates

Name of Examination/ Degree
Quality points
1.
High School
Percentage of
Marks
10
2.
Intermediate
Percentage of
Marks x 2
10
3.
Graduation Degree
Percentage of
Marks x 4
10
4.
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."

13. Thus, as per Rule 2(w), introduced
by the 20th amendment in the rules, the
ATRE was introduced, which this court
finds was the basis of conducting the
ATRE-2018. Further, as per the amended
rules, it was envisaged to be qualifying in
nature and also its marks was to be
included in the final merit list prepared for
the purposes of selection. Thus, a two-tier
system for selection was introduced,
wherein firstly the candidates were to
undergo and pass ATRE and only those
who passed the said ATRE exam, were
made eligible to participate in the selection
process and the number scored in the said
ATRE was given due weightage for
preparing the final merit list (60% of ATRE
score) from which eventually the final
selection was made by the state.

14. It is significant to note that
although the Rules mandated that it was an
essential qualification for appointment on
the post of Assistant Teacher in basic
schools, (i) to have passed Teachers
Eligibility Test (hereinafter referred as the
"TET") and (ii) also to pass ATRE
examination held for the selection in
question by the Basic Education Board,
U.P., Allahabad, however, the passing of
Teachers Eligibility Test was merely
qualifying in nature as the marks obtained
in the said Test was not included at the time
of preparation of the final list, whereas
ATRE was not only qualifying but the
marks obtained in the said examination was
also included in the preparation of the final
merit list.

15.
On
15.03.2018,
by
22nd
Amendment, 1981 Rules were amended
removing the requirement of passing of
ATRE from the essential qualifications
contained in Rule 8. However, the
requirement was retained in Rule 14
dealing with the procedure for selection of
Assistant Teachers. The relevant part of
Rule
8(1)
dealing
with
Academic
Qualifications for "Assistant Master and
Assistant Mistresses of
Junior Basic
Schools", after the 22nd amendment read as
follows: -

"ii. (a) Bachelor's degree from a
university established by law in India or a
degree recognised by the Government
equivalent thereto together with any other
3 All. Mahendra Pal & Ors. Vs. State of U.P. & Ors.
1303
training
course
recognized
by
the
Government as equivalent thereto together
with the training qualification consisting of
a Basic Teacher's Certificate (BTC), two
year BTC (Urdu) Vishisht BTC. Two-year
Diploma in Education (Special Education)
approved by the Rehabilitation Council of
India or four year degree in Elementary
Education (B.El.Ed.), two year Diploma in
Elementary Education (by whatever name
known) in accordance with the National
Council
of
Teacher
Education
(Recognition,
Norms
and
Procedure)
Regulations,
2002
or
any
training
qualifications to be added by National
Council for Teacher Education for the
recruitment
of
teachers
in
primary
education.

And

Teacher eligibility test passed
conducted by the Government or by the
Government of India."

Thus,
as
far
as
ATRE
is
concerned, the same being an essential
qualification was done away with the 22nd
Amendment, although it continued to be a
part of rule 14 dealing with the selection
process.

16. On 24.01.2019, 23rd Amendment
to 1981 Rules was published. By this
Amendment, the essential qualifications in
Rule 8(ii) were substituted as under: -

"(ii)(a) Bachelors degree from a
University established by law in India or a
degree recognized by the Government
equivalent thereto together with any other
training
course
recognised
by
the
Government as equivalent thereto together
with the training qualification consisting of
a Basic Teacher's Certificate (BTC), two
year BTC (Urdu) Vishisht BTC. Two year
Diploma in Education (Special Education)
approved by Rehabilitation council of India
or four year Degree in Elementary
Education (B.El.Ed.), two year Diploma in
Elementary Education (by whatever name
known) in accordance with the National
Council
of
Teacher
Education
(Recognition,
Norms
and
Procedure),
Regulations 2002, Graduation with at least
fifty percent marks and Bachelor of
Education (B.Ed.), provided that the person
so appointed as a teacher shall mandatorily
undergo a six month Bridge Course in
Elementary Education recognised by the
NCTE,
within
two
years
of
such
appointment as primary teacher or any
training qualifications to be added by
National Council of Teacher Education for
the recruitment of teachers in primary
education.

And

Teacher eligibility test passed
conducted by the Government or by the
Government of India."

Thus, consequently, Graduates
having 50 per cent or more marks and
holding a degree of Bachelor of Education
(B.Ed.) became eligible for posts of
Assistant Master and Assistant Mistresses
in Junior Basic Schools in the manner laid
down in the Amendment. The concerned
provisions in 1981 Rules dealing with
eligibility of such candidates were given
retrospective effect from 01.01.2018.

17. On 07.03.2019, 24th Amendment
to 1981 Rules was published further
amending Rule 8(ii) by adding sub-clause
(aa) after sub-clause (a) to the following
effect:-

"(aa) Graduation with at least
fifty percent marks and Bachelor of
Education (B.Ed.), provided that the person
so appointed as a teacher shall mandatorily
undergo a six month Bridge Course in
Elementary Education recognised by the
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
NCTE,
within
two
years
of
such
appointment as primary teacher or any
training qualifications to be added by
National Council of Teacher Education for
the recruitment of teacher in primary
education, and teacher eligibility test
passed conducted by the Government or by
the Government of India."

This
Amendment
gave
retrospective effect to sub clause (aa) of
Rule 8(ii) from 28.06.2018.

18. On 14.06.2019, 25th Amendment
to 1981 Rules was published. By this
Amendment, Appendix I which was
referable to Rule 14(3)(a) was amended as
under:
"APPENDIX-I
Quality points and weightage for selection
of candidates

1.
Name
of
Examination/
Degree
Quality points
2.
High School
Percentage
of
Marks
in
the
examination x 10
100
3.
Intermediate

Percentage
of
Marks
in
the
examination x 10
100
4.
Graduation
Degree

Percentage
of
Marks
in
the
examination x 10
100
5.
Training
Qualification
of
Rule

Percentage
of
Marks
in
the
examination x 10
100
6.
Assistant
Teacher
Recruitment
Examination

Percentage
of
Marks
in
the
examination x 60
100
7.
Weightage
Teaching
experiences as shikshamitra
or/as teacher working as such
in junior basic schools run by
Basic Shiksha Parishad.
2.5
marks
per
completed teaching
year,
up
to
maximum
25
marks, whichever is
less

Notes 1 - If two or more
candidates have equal quality points, the
name of the candidate who is senior in age
shall be placed higher in the list.

2. If two or more candidates have
equal quality points and age, the name of
the candidate shall be placed in the list in
English alphabetical order."

19. Appendix II, referable to Rule
14(3)(b)
was
omitted
by
the
same
Amendment. Resultantly, Appendix I as it
now stands after said Amendment, is the
only and common Appendix for both the
sources referred to in Rule 14.

C.
Reservation
Law,
Rules
&
Amendment

20.
The
Uttar Pradesh Public
Services (Reservation for Scheduled
Castes, Scheduled Tribes and Other
Backward Classes) Act, 1994 is the
primary act as far as reservation to
scheduled
castes,
tribes
and
Other
Backward classes is concerned in the state
of
Uttar
Pradesh.
There
had
been
amendment in the said Act in 2002 and
2007 and section 3(1) & 3(6) of the Act as
on date is as follows:

Reservation
in
favour
of
Scheduled Castes, Scheduled Tribes,
and Other Backward Classes. -(1) In
public services and posts, there shall be
reserved
at
the
stage
of
direct
recruitment, the following percentage of
vacancies to which recruitment's are to be
made in accordance with the roster
referred to in sub-section (5) in favour of
the persons belonging to Scheduled
Castes, Scheduled Tribes and Other
Backward Classes of citizens, -
3 All. Mahendra Pal & Ors. Vs. State of U.P. & Ors.
1305

(a)
in
the
case
of
Scheduled Castes
Twenty-one per cent;
(b) in
the
case
of
Scheduled Tribes
Two per cent;
(c)
in
case
of
Other
Backward Classes of
citizens
Twenty-seven per cent:

Provided that the reservation
under clause (c) shall not apply to the
category of Other Backward Classes of
citizens specified in Schedule II: