# Raghvendra Pratap Singh & Ors v. State of U.P. & Ors

- **Citation:** J. Special Appeal No. 156 of 2019 and 157 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-06
- **Case number:** J. Special Appeal No. 156 of 2019 and 157 of 2019
- **Bench:** Pankaj Kumar Jaiswal, Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghvendra-pratap-singh-ors-v-state-of-u-p-ors-46257
- **Pages:** 40

## Headnote

C.S.C., Abhisar Dev, Agnihotri Kumar
Tripathi, Ajay Kumar, Ajit Shukla, Amit Kr.
Singh
Bhadauriya,
Anand
Nandan,
Ashutosh, Atul Yadav, HN Singh, Haridhwar
Singh
Kushwaha,
Himanshu
Raghave,
Krishna Vishwakarma, Lal Bahadur Singh,
Neeraj Kandpal, Neha Singh, Om Prakash
Nag, Palash Yadav, Pankaj Verma, Pawan
Kumar Maurya, Raghunath Prasad, Rahul
Kumar Singh, Rahul Pandey, Rajesh Kumar
Verma, Ram Kumar Singh, Rishabh Kapoor,
Santosh Kr. Yadav "Warsi", Seemant Singh,
Varun Kumar Mishra, Vineet Mishra, Vishal
Kumar Yadav

(A) Eligibility Test - Assistant Teacher
Recruitment Examination (ATRE) are only
for qualification for recruitment not for
advertisement for recruitment - eligibility
tests are not meant for selection to any
post but is conducted to determine the
eligibility of the candidate for the post -

Once
Sikhsha
Mitras
attain
minimum
qualification they shall form a class of persons
and the benefit of judgment of Anand Kumar
Yadav can be extended.

(B) Minimum qualifying marks - Rule 2(x)
of U.P. Basic Education (Teachers) Service
Rules, 1981 - Government competent to
prescribe cut off marks for passing ATRE -
it is not necessary that the minimum
qualifying marks are to be provided before
examination starts - the principle that the
Rules of the game cannot be changed
once the game has started are not
894 INDIAN LAW REPORTS ALLAHABAD SERIES
applicable
in
this
case
-
competent
authority
was
given
power
under
aforesaid Rule to fix minimum qualifying
marks and the same ought not to be
interfered - ATRE -2018 and ATRE-2019 is
valid only for a particular year

Qualifying
marks
are
prescribed
after
the
examination is conducted as the Recruitment
Authority is in a position to assess how the
candidates
performed
and
determine
the
benchmarked keeping in mind the number of
vacancies. The State Government rightly in the
advertisement dated 1.12.2018 did not declare the
cut off marks for qualifying the ATRE-2019.
Arguments of the writ petitioner that the increase
in the cut-off marks by the Government order
dated 07.01.2019 nullifying the beneficial direction
of the Hon'ble Supreme Court in Anand Kumar
Yadav case has no legs to stand and is pre mature
as the benefit is available only at the time of
recruitment, once they hold the prescribed
minimum qualification and their names published
in the merit list prepared under Rule 14(2) of the
1981.(paras 72 and 73) B.Ed. candidates were
made eligible to be considered for appointment to
the post of Assistant Teacher, subject to them
acquiring the minimum qualification, the State
Government was bound to permit them to
participate in the ATRE-2019 pasing which is the
minimum qualification to be considered for
appointment to the post of Assistant Teacher.
Accordingly, the State Government carried out the
necessary amendments to the Rules 1981 to align
them with the National Council for Teacher
Education
(NCTE)

notification,
prior
to
commencement of the recruitment process. (para
92)

(C)
Aggrieved
person
-
does
not
includes a person who suffers from a
psychological or an imaginary injury
only - the person whose right or
interest has been adversely affected or
jeopardized

Special Appeal Allowed. (E-10)

List of cases cited:

## Text

_Characters 0–39,921 of 137,602. This is a partial read: ask again with offset=39921 for what follows._

3-5 All. Raghvendra Pratap Singh & Ors. Vs. State of U.P. & Ors.
893
suspension order having been passed as a
consequence of the deeming provision
under the Regulations, the validity of the
same cannot be assailed by raising a plea of
retrospectivity. The contention raised by the
learned counsel for the appellant-writ
petitioner in this regard therefore has
rightly been rejected.

13. After considering the submissions
made by the learned advocates for the
parties and upon perusing the impugned
judgment and order, we notice that the
same has been rendered by the learned
Single Judge with cogent and justifiable
reasons.

14. In an Intra-Court Special Appeal,
no interference is usually warranted unless
palpable infirmities or perversities are
noticed on a plain reading of the impugned
judgment and order. In the facts and
circumstances of the instant case, on a plain
reading of the impugned judgment and
order, we do not notice any such palpable
infirmity or perversity. As such, we are not
inclined to interfere with the impugned
judgment and order dated 20th December,
2018.

15. For reasons stated above, the
Special Appeal is liable to be dismissed and
stands, accordingly, dismissed.
----------
(2020)03-05ILR A893
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.05.2020

BEFORE
THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE KARUNESH SINGH PAWAR,
J.

Special Appeal No. 156 of 2019 and 157 of 2019
connected with
Special Appeal Defective No. 176 of 2019 and
other cases

Raghvendra Pratap Singh & Ors.
 ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Amrendra Nath Tripathi, Durga Prasad
Shukla

Counsel for the Respondents:
C.S.C., Abhisar Dev, Agnihotri Kumar
Tripathi, Ajay Kumar, Ajit Shukla, Amit Kr.
Singh
Bhadauriya,
Anand
Nandan,
Ashutosh, Atul Yadav, HN Singh, Haridhwar
Singh
Kushwaha,
Himanshu
Raghave,
Krishna Vishwakarma, Lal Bahadur Singh,
Neeraj Kandpal, Neha Singh, Om Prakash
Nag, Palash Yadav, Pankaj Verma, Pawan
Kumar Maurya, Raghunath Prasad, Rahul
Kumar Singh, Rahul Pandey, Rajesh Kumar
Verma, Ram Kumar Singh, Rishabh Kapoor,
Santosh Kr. Yadav "Warsi", Seemant Singh,
Varun Kumar Mishra, Vineet Mishra, Vishal
Kumar Yadav

(A) Eligibility Test - Assistant Teacher
Recruitment Examination (ATRE) are only
for qualification for recruitment not for
advertisement for recruitment - eligibility
tests are not meant for selection to any
post but is conducted to determine the
eligibility of the candidate for the post -

Once
Sikhsha
Mitras
attain
minimum
qualification they shall form a class of persons
and the benefit of judgment of Anand Kumar
Yadav can be extended.

(B) Minimum qualifying marks - Rule 2(x)
of U.P. Basic Education (Teachers) Service
Rules, 1981 - Government competent to
prescribe cut off marks for passing ATRE -
it is not necessary that the minimum
qualifying marks are to be provided before
examination starts - the principle that the
Rules of the game cannot be changed
once the game has started are not
894 INDIAN LAW REPORTS ALLAHABAD SERIES
applicable
in
this
case
-
competent
authority
was
given
power
under
aforesaid Rule to fix minimum qualifying
marks and the same ought not to be
interfered - ATRE -2018 and ATRE-2019 is
valid only for a particular year

Qualifying
marks
are
prescribed
after
the
examination is conducted as the Recruitment
Authority is in a position to assess how the
candidates
performed
and
determine
the
benchmarked keeping in mind the number of
vacancies. The State Government rightly in the
advertisement dated 1.12.2018 did not declare the
cut off marks for qualifying the ATRE-2019.
Arguments of the writ petitioner that the increase
in the cut-off marks by the Government order
dated 07.01.2019 nullifying the beneficial direction
of the Hon'ble Supreme Court in Anand Kumar
Yadav case has no legs to stand and is pre mature
as the benefit is available only at the time of
recruitment, once they hold the prescribed
minimum qualification and their names published
in the merit list prepared under Rule 14(2) of the
1981.(paras 72 and 73) B.Ed. candidates were
made eligible to be considered for appointment to
the post of Assistant Teacher, subject to them
acquiring the minimum qualification, the State
Government was bound to permit them to
participate in the ATRE-2019 pasing which is the
minimum qualification to be considered for
appointment to the post of Assistant Teacher.
Accordingly, the State Government carried out the
necessary amendments to the Rules 1981 to align
them with the National Council for Teacher
Education
(NCTE)

notification,
prior
to
commencement of the recruitment process. (para
92)

(C)
Aggrieved
person
-
does
not
includes a person who suffers from a
psychological or an imaginary injury
only - the person whose right or
interest has been adversely affected or
jeopardized

Special Appeal Allowed. (E-10)

List of cases cited:

1. Anand Kumar Yadav & ors. Vs. U.O.I. & ors. &
connected writ petitions (2015) 8 ADJ 338

2. St. of U.P. & anr. Vs. Anand Kumar
Yadav & ors. (2018) 13 SCC 560

3. Kul Bhushan Mishra & ors. Vs. St. of U.P.
& ors. (2019) 2 ADJ 442

4. Jharkhand Public Service Commission Vs
Manoj Kumar Gupta & ors. Civil Appeal No.
9441 of 2019 (followed)

5. Municipal Corporation of Delhi Vs.
Surendra Singh & ors. (2019) 8 SCC
67(followed)

6. Bhoola Prasad Shukla & ors. Vs. U.O.I. &
ors. Petition(s) for Special Leave to Appeal
(C) No(s). 14621/2019

7. Pradeep Kumar & ors. Vs. St. of Hary. &
ors. 2017 (1) SCT 799 (P&H)

8. State of U.P. & ors. Vs. Bhupendra Nath
Tripathi & ors. 2010(5) ESC 630

9. St. of U.P. Vs. Shiv Kumar Pathak (2018)
12 SCC 595 (followed)

10. Harsh Kumar & ors. Vs. St. of U.P. &
ors. (2014) 2 ADJ 703

11. St. of Raj. Vs. Sanyam Lodha (2011) 13
SCC 262

12. Harsh Kumar Vs. St. of U.P. & ors.
(followed)

13. Ayaaubkhan Noorkhan Pathan Vs. St. of
Maharashtra (2013) 4 SCC 465

14. K. Manjusree Vs. St. of A.P. & anr. 2008
(3) SCC 512 (distinguished)

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

(1) Heard Sri Raghvendra Singh,
Advocate General assisted by Sri Abhinav
N. Trivedi, learned Additional Chief
Standing Counsel for the appellants, Sri
Upendra Nath Mishra, learned Senior
Counsel assisted by Sri Amit Kumar Singh
3-5 All. Raghvendra Pratap Singh & Ors. Vs. State of U.P. & Ors.
895
Bhadauriya, learned Counsel for private
respondents (original writ petitioners) and
Sri H. N. Singh, learned Senior Advocate
assisted by Sri Agnihotri Kumar Tripathi
for the respondents in Special Appeal
No.207 (D) of 2019, Sri S. K. Kalia,
learned Senior Counsel assisted by Sri
Durga Prasad Shukla, learned Counsel for
the appellants and Sri H. G. S. Parihar,
learned Senior Counsel assisted by Sri
Prashant Kumar Singh & Ms. Minakshi
Singh Parihar, for the respondents in
Special Appeal No.157 of 2019, Sri
Prashant Chandra, learned Senior Counsel
assisted by Ms. Meha Rashmi for the
appellants in Special Appeal No. 165 (D)
of 2019, Sri Anil Tewari, learned Senior
Counsel assisted by Sri Durga Prasad
Shukla, Sri Amrendra Nath Tripathi and Sri
Pawan Awasthi, learned Counsel for the
appellants, Dr. L. P. Mishra & Sri Avadesh
Shukla for the respondents and Sri
Humanshi Raghav, learned Counsel for the
intervenors on behalf of Shhika Mitra in
Special Appeal No.156 (D) of 2019 and
Sri Jaideep Narain Mathur, learned Senior
Counsel assisted by Sri Gaurav Mehrotra &
Ms. Ishita Yadu, learned Counsel for the
appellants in Special Appeal No.158 of
2019.

(2) This Special Appeal alongwith the
connected matters has, with the consent of
parties, been taken up for disposal together
since the issues raised are identical.

(3) These Special Appeals arise out of
judgment and order dated 29.3.2019 passed in
Writ Petition No.1188 (SS) of 2019 and other
connected matters filed by Shiksha Mitras
challenging the Government Order dated
7.1.2019, by which the State Government has
fixed the qualifying marks of Assistant Teacher
Recruitment Examination - 2019 at 60% - 65%
(for general and reserved category respectively).
The facts are being narrated from Mohd.
Rizwan and others v. State of U.P. and others
(Writ Petition No. 1188 (SS) of 2019).

(4) The reliefs sought in the aforesaid writ
petitions were:

(a) A writ of Certiorari quashing the
Government Order dated 7.1.2019; and

(b) A writ of mandamus directing the
Secretary, Examination Regulatory Authority to
declare the result of the ATRE - 2019 for 69,000
vacancies in terms of the Government Order
dated 1.12.2018.

(5) The main grounds of challenge of the
writ petitions to the policy decision were:

(a) Upon qualifying the TET
examination prescribed by the NCTE, the
Shiksha Mitras constituted a 'homogeneous
class' and increasing the qualifying marks from
40-45% (as notified for ATRE - 2018) to 6065% for ATRE - 2019 amounted to
discrimination and nullification of the benefit
granted to them by the Apex Court in Anand
Kumar and others v. Union of India and
others v. Union of India and others and
connected writ petitions [(2018) 13 SCC 560].
The fixation of cut-off marks at 60%-65% was
arbitrary and with a view to eradicate/
disqualify the petitioners (Shiksha Mitras) from
being appointed on the post of Assistant
Teacher; and

(b) There was a change in the
rules of the game after the game had been
played as the impugned Government Order
notifying the qualifying marks was issued
on 7.1.2019, i.e., a day after holding the
ATRE - 2019 examination on 6.1.2019.

(6) The learned Writ Court allowed
the
writ
petitions
and
quashed
the
Government Order dated 7.1.2019 fixing
the
minimum
qualifying
marks
for
896 INDIAN LAW REPORTS ALLAHABAD SERIES
Assistant
Teacher
Recruitment
Examination, 2019 as 65% for General
Category and 60% for reserved category
and directed to declare the result of
Assistant
Teacher
Recruitment
Examination, 2019 in terms of Government
Order
dated
1.12.2018
and
also
notification/advertisement dated 5.12.2018,
ignoring the Government Order dated
7.1.2019, in the same manner as the earlier
result of Assistant Teacher Recruitment
Examination-2018 was declared so far as
the
minimum
qualifying
marks
are
concerned, within a period of three months
and the entire exercise shall be completed
at the earliest, strictly in accordance with
law. Relevant part of the impugned
judgment contained in paras 181 and 182
reads as under:-

"181. Considering the entire facts
and circumstances of the issue and case
law so cited by the learned counsel for the
respective parties I am of the considered
view that the Government Order dated
7.1.2019 is not sustainable in the eyes of
law being arbitrary and violative of Article
14 of the Constitution of India as it makes
an unreasonable classification by giving
different treatment to two groups of
identically situated persons appearing in
two consecutive examinations and there is
no valid reason and justification for
drastically increasing minimum qualifying
marks without having any nexus with the
object sought to be achieved. It further
appears that the Government Order dated
7.1.2019
is
nullifying
the
beneficial
direction of the Hon'ble Apex Court in re:
Anand Kumar Yadav (supra), pursuant to
which 25 marks of weightage has been
prescribed under Rule 14(3)(a) of the Rules
1981 (22nd Amendment, 2018) purposely
for practical experience which is an
integral part of merit.

182. Accordingly, a writ in the
nature of certiorari is issued quashing the
Government Order dated 07.01.2019 issued
by the Special Secretary, Basic Education
Anubhag-4, Government of U.P., Lucknow."

(7) In the State of Uttar Pradesh, out
of 1,78,000 'Shiksha Mitras', who were
given fortuitous appointments as Primary
Teachers on contractual basis, a total of
approximately 1,37,500 'Shiksha Mitra'
were absorbed as Assistant Teachers in
Junior Basic Schools. Their absorption into
the regular service of State as Assistant
Teachers by amendment made by the State
Government by its notification dated
30.5.2014 introducing the provision of Rule
16-A in the U.P. Right of Children to Free
and Compulsory Education Rules, 2011 by
the U.P. Right of Children to Free and
Compulsory Education (First Amendment)
Rules, 2014 and consequential executive
orders of the State Government were
challenged in Writ-A No.34833 of 2014,
Anand Kumar Yadav and others v. Union
of India and others and connected writ
petitions [(2015) 8 ADJ 338]. Ultimately,
the Full Bench found that the engagement
of Shiksha Mitras was not in the regular
service of the State since they had not been
appointed in accordance with the U.P.
Basic Education (Teachers) Service Rules,
1981 [In short, it has been referred to as
'1981
Rules'].
It
found
that
their
engagement was purely on contractual
basis for a stipulated term of eleven months
renewable
subject
to
satisfactory
performance and on payment of an
honorarium. It also found that their
appointments were not against sanctioned
posts as determined by the Board of Basic
Education under the 1981 Rules. It was
also observed that the Shiksha Mitras did
not fulfil the qualifications for a regular
teacher under the 1981 Rules. The Full
3-5 All. Raghvendra Pratap Singh & Ors. Vs. State of U.P. & Ors.
897
Bench thereafter proceeded to evaluate the
rights of the Shiksha Mitras to continue in
service in the light of the provisions of the
Right of Children to Free and Compulsory
Education, 2009 [In short, it is referred to
as 'RTE Act'] as well as the qualifications
prescribed by the National Council For
Teacher Education for Teachers [in short, it
is referred to as 'NCTE'] imparting
instructions in basic schools. On a detailed
scrutiny of the aforesaid provisions, it held
that the Shiksha Mitras did not possess the
requisite qualification and therefore could
not be appointed. The Full Bench also
proceeded to strike down the Government
Order dated 30.5.2014 which purported to
the effect of their absorption even though
they did not hold the qualification as were
prescribed
under
the
RTE Act
and
notifications issued by the NCTE.

(8) The decision of the Full Bench
was subject to challenge by the State of
U.P. before the Apex Court which upheld
the judgment and the view taken by the
Full Bench. While doing so, the Apex
Court in State of U.P. and another v.
Anand Kumar Yadav and others [(2018)
13 SCC 560] in paras 28 to 30 observed as
under:-

"28. We are in agreement with the
above findings. In view of clear mandate of
law
statutorily
requiring
minimum
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 23 rd August, 2010
Notification whose appointment could be
regularized.

29. Further difficulty which stares
one in the face is 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.

30. 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 said Act.
The State is not competent to relax the
qualifications.

(9) The Apex Court thereafter
proceeded to consider the fate of 1,78,000
Shiksha Mitras who were continued in
service pursuant to the decision of the State
Government and it held thus:-

32. 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 or some age
898 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

33. Question now is whether in
absence of any right in favour of Shiksha
Mitras, they are entitled to any other relief
or preference. In the peculiar fact situation,
they ought to be given opportunity to be
considered for recruitment if they have
acquired or they now acquire the requisite
qualification in terms of advertisements
for recruitment for next two consecutive
recruitments. They may also be given
suitable
age
relaxation
and
some
weightage for their experience as may be
decided by the concerned authority. Till
they avail of this opportunity, the State is at
liberty to continue them as Shiksha Mitras
on same terms on which they were working
prior to their absorption, if the State so
decides."

(10) The Apex Court confirmed the
position found by the Full Bench that
Shiksha Mitras did not possess requisite
qualifications required for an Assistant
Teacher and thus, they could not be
regularized. However, the Apex Court also
sought to balance the rights of 1,78,000
persons engaged by the State in Basic
Schools in their capacity as Shiksha Mitras
by observing that in the peculiar fact
situation, they ought to be given an
opportunity
to
be
considered
for
recruitment if they have acquired or they
now acquire the requisite qualifications in
terms of advertisement for recruitment in
the next two consecutive recruitment
exercises to be conducted by the Board. It
was held that they may be given suitable
age relaxation "some weightage for their
experience". Weightage, consciously, was
to be given in respect of "experience" and
not in connection with any examination.

(11) The appointment of Assistant
Teachers in Junior Basic Schools is
regulated by U.P. Basic Education Act,
1972 [in short, it has been referred to as
'1972 Act'] which was enacted by the State
Legislature to control basic education
(education upto eighth class) in the State of
U.P. Section 19 of the 1972 Act authorizes
the State Government to make rules to
carry out the purpose of the Act. 1981
Rules lay down sources of recruitment and
qualification for appointment of teachers.
Part III of the 1981 Rules relate to
recruitment. Qualifications for teachers of
basic schools are defined in Part IV.

(12) The National Council for
Teachers' Education Act, 1993 [in brief, it
is referred to as 'NCTE Act'] was enacted
by Parliament for planned and co-ordinated
development for the teacher education
system and the regulation and proper
maintenance of norms and standards.

(13) The RTE Act was enacted by the
Parliament
for
free
and
compulsory
education to all children of the age of 6 to
14 years. The RTE Act lays down the
qualifications for appointment and terms
and conditions of service of Teachers.
Section 23 provides for qualification for
appointment of teachers. The NCTE was
designated as the authority under Section
23 (1) to lay down the qualifications for
appointment of teachers. The Central
Government in exercise of its powers
conferred under Section 23 of the RTE Act
issued a notification dated 31.3.2010
authorizing the NCTE as the 'Academic
Authority'
to
lay
down
minimum
qualification for a person to be eligible for
3-5 All. Raghvendra Pratap Singh & Ors. Vs. State of U.P. & Ors.
899
appointment as a Teacher. On 1.4.2010, by
86th amendment to the Constitution of
India, Article 21-A was inserted for
providing free and compulsory education to
the children of 6-14 years.

(14) The NCTE issued notification
dated 23.8. 2010 laying down qualifications
for appointment of teachers for elementary
education.
With
regard
to
teachers
appointed prior to the said notification, it
was stated that they were required to have
qualifications in terms of the National
Council
for
Teacher
Education
(Determination of Minimum Qualifications
for Recruitment of Teachers in Schools)
Regulations, 2001 [in brief, it is referred to
as 'the 2001 Regulations'].

(15)

One
of
the
minimum
qualifications for a person to be appointed
as Teachers in Classes I to VIII, as
contained in notification dated 23.8.2010 is
that he/she should pass the Teacher
Eligibility Test (TET) which will be
conducted by the appropriate Government.
Being the Academic Authority, NCTE
prescribed guidelines for conducting TET
examinations
by
the
appropriate
Government vide its notification dated
11.2.2011 under Section 12-D read with
Section 12-A of the NCTE Act and Section
23 of the RTE Act.

(16) The State Government in
exercise of its powers conferred under
Entry 25 of List III of Schedule VII and
1972 Act has prescribed an additional
minimum qualification, i.e., passing the
Assistant
Teacher
Recruitment
Examination for being considered for
appointment to the post of Assistant
Teacher which the Shiksha Mitra must
qualify by obtaining the prescribed passing
marks, and no special rights, relaxation or
benefit can be claimed by the Shiksha
Mitras.
Necessary
amendments
were
carried out in the 1981 Rules, incorporating
qualifying the ATRE in the manner
prescribed as a minimum qualification for
being considered eligible for appointment
as Teacher.

(17) After decision of the Apex Court,
the State of U.P. proceeded to amend 1981
Rules. The Twentieth amendment to the
1981 Rules came to be notified on
9.11.2017. This Amendment, in Rule 2(v)
defined a Shiksha Mitra to mean a person
working in Junior Basic Schools run by the
Basic Shiksha Parishad under Government
Orders issued prior to the commencement
of the U.P. Right of Children to Free and
Compulsory Education Rules 2011 [in
short 'UPRTE Rules, 2011']. It also
included Shiksha Mitras appointed as
Assistant Teachers in Junior Basic Schools
and reverted as Shiksha Mitras pursuant to
the judgment of the Supreme Court in
Anand Kumar Yadav (supra). It also
introduced a definition for the "Assistant
Teacher Recruitment Examination" to
mean a written examination conducted by
the Government for recruitment of persons
in junior basic schools run by the Basic
Shiksha Parishad. The "Qualifying Marks
of
Assistant
Teacher
Recruitment
Examination" was defined to mean such
minimum marks as would be determined
by the Government from time to time. The
relevant Clauses (w) (x) and (y) inserted
vide Twentieth amendment in Rule 2 (1) of
the
1981
Service
Rules
are
being
reproduced hereunder:-

Rule 2(1)(w) "Assistant Teacher
Recruitment Examination" means a written
examination conducted by Government
for recruitment of a person in junior basic
schools run by Basic Shiksha Parishad;
900 INDIAN LAW REPORTS ALLAHABAD SERIES

Rule 2(1)(x) "Qualifying marks
of
Assistant
Teacher
Recruitment
Examination" means such minimum marks
as may be determined from time to time by
the Government;

Rule
2(1)(y)
"Guideline
of
Assistant
Teacher
Recruitment
Examination" means such guidelines as
may be determined from time to time by
the Government."

(18)
By
the
said
Twentieth
Amendment, the requirement to qualify the
Assistant
Teacher
Recruitment
Examination was included both in Rule 8
and Rule 14 as follows:-

"Rule 8 (1)(ii)(a) and (c)" and
passed
Assistant
Teacher
Recruitment
Examination
conducted
by
the
Government";

Rule 14 (1)(a)" and passed
Assistant Teacher Recruitment Examination
conducted by the Government";

(19) Rule 5 which prescribed the
essential qualifications to be possessed by a
person desirous of being appointed as an
Assistant Master or Mistress in a junior
basic school read as follows:

"(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 the Rehabilitation Council of
India or four year Degree in Elementary
Education (B.EI.Ed.), two year Diploma in
Elementary Education (by whatever name
known) in accordance with the National
Council
for
Teacher
Education
(Recognition,
Norms
and
Procedure),
Regulations,
2002
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 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 recognised by NCTE.

(c) a shikshamitra who possessed
bachelors
degree
from
a
University
established by law in India or a degree
recognised by the Government equivalent
thereto and has completed successfully two
years distant learning B.T.C. course or
Basic Teacher's Certificate (B.T.C.), Basic
Teachers Certificate (B.T.C.) (Urdu) or
Vishisht B.T.C. conducted by the State
Council of Educational Research and
Training (SCERT) and passed the Teacher
Eligibility
Test
conducted
by
the
Government or by the Government of India
and passed Assistant Teacher Recruitment
Examination
conducted
by
the
Government."

(20) The selection of Assistant
Teacher as per the 1981 Rules is made in
accordance with the "quality points" that
may be obtained by an applicant computed
in accordance with Appendix-I to the 1981
Rules. The Twentieth Amendment amended
the Appendix-I to read as follows:

 "[APPENDIX-I]

Quality points, and weightage for
selection of candidates
3-5 All. Raghvendra Pratap Singh & Ors. Vs. State of U.P. & Ors.
901

Name of
Examinati
on/
Degree

Quality Points
1.
High
School

Percentage of marks in the
examination x10
 100
2.
Intermedia
te

Percentage of marks in the
examination x10
 100
3.
Graduatio
n Degree

Percentage of marks in the
examination x10
 100
4.
B.T.C.
Training

Percentage of marks in the
examination x10
 100
5.
Assistant
Teacher
Recruitm
ent
Examinati
on

Percentage of marks in the
examination x10
 100
6.
Weightag
e
Teaching
Experienc
e
as
shiksha
mitra or an
teacher
working as
such
in
junior
basic
schools
run
by
Basic
Shiksha
Praishad

2.5 marks per completed
teaching year, upto
maximum 25 marks,
whichever is less.

Note:

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."

(21) The 1981 Rules were thereafter
amended yet again on 15 March 2018 when
the Twenty-Second Amendment came to be
promulgated.

(22) For a Shiksha Mitra, the TwentySecond
Amendment
prescribed
the
essential academic qualifications as under:

"Rule 5(a)(ii)(c) a shikshamitra
who possessed bachelors degree from a
University established by law in India or a
degree recognised by the Government
equivalent thereto and has completed
successfully two years distant learning
B.T.C.
course
or
Basic
Teacher'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
(SCERT) and passed the Teacher Eligibility
Test conducted by the Government or by the
Government of India."

(23) For the purpose of determination
of vacancies, Rule 14(1)(a) after the
Twenty-Second
Amendment
reads
as
follows:

"14(1)(a)
Determination
of
vacancies

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 passed teacher
eligibility
test,
conducted
by
the
902 INDIAN LAW REPORTS ALLAHABAD SERIES
Government or by the Government of India
and passed Assistant Teacher Recruitment
Examination
conducted
by
the
Government."

(24) It would be also to be pertinent to
compare sub-rules (2) and (3) of Rule 14 as
amended by the Twentieth and TwentySecond Amendments. This would be
evident from the chart which is extracted
herein below:-

(2)
The
appointing
authority shall scrutinize
the applications received
in pursuance of the
advertisement
under
clause (a) or (b) of subrule (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
weight-age 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:

(2) Preparation of Merit List-
The appointing authority shall
scrutinize
the
applications
received in pursuance of the
advertisement under clause (a) or
clause (c) of sub-rule (1) and
prepare a merit list of such
persons as appear to possess
the
prescribed
academic
qualifications
and
passed
Assistant Teacher Recruitment
Examination be eligible for
appointment.

(3)(a). The names of candidates
in the list prepared under subrule (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:

Provided
that
a
person
working as Shiksha Mitra in
Junior Basic Schools run by
Basic Shiksha Parishad shall
be given weightage in the
recruitment of the post of
Assistant Teacher, only in two
consecutive Assistant Teacher
Recruitment
Examination
conducted by the Government
after July 25, 2017.

3(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.
(b) The names of candidates in
the list prepared under sub-rule
(2) in accordance with clause (c)
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.

(25) Sub-Rule (2) clearly mandates
the preparation of a merit list to include
only such persons who possess the
prescribed academic qualifications and
have passed the ATRE. Sub-rule (3) (a)
reinforces the above position by prescribing
that the names of candidates prepared
under sub-rule (2) of Rule 14 is to be
arranged in accordance with the quality
points and weightage as specified in
Appendix - I. It is in unequivocal terms
provides for a weightage only in respect of
every teaching year completed by Shiksha
Mitra. As per clause 6 of the Appendix - I,
Shiksha Mitras are entitled to a weightage
of 2.5 marks subject to a maximum of 25
marks in respect of every completed year of
teaching alone. Clause 5 of the Appendix -
I does not make any provision for the grant
of weightage at the stage of declaration of
results.

(26) Significantly Rule 8 after its
Twenty-Second
Amendment
while
prescribing essential qualifications, has
done away with the requirement of passing
of the Assistant Teacher Recruitment
3-5 All. Raghvendra Pratap Singh & Ors. Vs. State of U.P. & Ors.
903
Examination
conducted
by
the
Government. Similarly the said Rule while
prescribing the academic qualifications for
a
Shiksha
Mitra
has
deleted
the
requirement of a Shiksha Mitra having
passed the Assistant Teachers Recruitment
Examination. This requirement however, is
continued in Rule 14(1)(a) as well as in
sub-rules (2) and (3) thereof.

(27) After dictum of the Hon'ble
Supreme Court in the case of Anand
Kumar Yadav (supra), the ATRE was
introduced. Statutory Guidelines under
Rule 2(y) of 1981 Rules for conducting
first ATRE - 2018 examination were
issued on 9.1.2018 and selection process
was undertaken to fill-up approximately
68,500 vacancies in the primary schools in
the State and the State Government started
conducting written examination called
Assistant
Teacher
Recruitment
Examination
2018
and
issued
an
advertisement for filling up of 68,500 posts
of Assistant Teachers in Junior High
School. Clauses 1 (kha) and 7 (3) of the
Guidelines dated 9.1.2018 for ATRE - 2018
read as under:-

Clause 1 (kha) lgk;d v/;kid
HkrhZ ijh{kk m0iz0 csfld f'k{kk ifj"kn }kjk
lapkfyr izkFkfed fo|kyksa esa lgk;d v/;kid ds
inksa ij HkrhZ gsrq dqy 68500 inksa ds lkis{k
vk;ksftr dh tk;sxh A fo'ks"k ifjfLFkfr;ksa esa inksa
dh la[;k ?kV@c< ldrh gS A ;g ijh{kk ek=
blh HkrhZ ds fy;s gh ekU; gksxh A

Clause 7 (3) : lgk;d v/;kid HkrhZ
ijh{kk djuk fdlh O;fDr dks HkrhZ@ jkstxkj ds
fy, vf/kdkj ugha gksxk D;wafd ;g fu;qfDr ds
fy, dsoy ik=rk ekun.Mks esa ls ,d gSA

(28) From clause 1 (Kha) it has been
clearly mentioned that the said examination
is valid for the recruitment of the particular
year. In the said examination, the minimum
qualifying marks for TET was 60% and
55%, as the case may be and for Assistant
Teacher Recruitment Examination 2018, it
was 45% for general category and 40% for
reserve category as per clause 7 (1) and 7
(2) of the guidelines which read as under:-

"7(1) lgk;d v/;kid HkrhZ ijh{kk esa
'kkfey gkus okys vH;fFkZ;ka dk ijh{kk ifj.kke
osclkbV ij tkjh fd;k tk;sxkA lkekU; ,oa vU;
fiNMk oxZ ds vH;fFkZ;ksa dks iw.kkZad 150 esa ks 67
vad vFkkZr 45 izfr'kr vkSj vf/kd vad izkIr
djus okys vH;fFkZ;ksa dks lgk;d v/;kid HkrhZ
ijh{kk mRrh.kZ gksus dk izek.k i= tkjh fd;k
tk;sxk A

7(2) vuqlwfpr tkfr@vuqlwfpr
tutkfr Js.kh ds vH;kfFkZ;ksa ds fy, U;wure
vgZd vad 40 izfr'kr vFkkZr iw.kkZad 150 esa ls 60
vad gksxk A"

(29) Recruitments of first ATRE -
2018 were carried out under the Twentysecond Amendment. At that time, a
challenge was laid by the Shiksha Mitras
that after the Twenty-second Amendment
qualifying the ATRE is no longer a
minimum requirement, in the case of Kul
Bhushan Mishra and others v. State of
U.P. and others [(2019) 2 ADJ 442],
wherein the writ petitioners have prayed for
a direction that while preparing the merit
list of the ATRE - 2018, which was
conducted by the State of U.P. on
27.5.2018, weightage of 2.5% marks for
every year of the working as Shiksha Mitra
should be given and result be declared after
adding the same.

(30) The Division Bench of this Court
dealt with the aforesaid issues exhaustively
in Kul Bhushan Misra's case (supra), and
found that the Shiksha Mitras cannot claim
the benefits under the Anand Kumar
Yadav's case (supra) before they hold the
prescribed minimum qualifications and
904 INDIAN LAW REPORTS ALLAHABAD SERIES
qualify the ATRE and come within the zone
of eligibility for being considered for
appointment as Assistant Teacher. This
Court held that not only is qualifying the
ATRE
a
mandatory
and
minimum
qualification
to
be
considered
for
appointment to the post of Assistant
Teacher, but also that any benefit under the
Anand Kumar Yadav's case (supra) shall
be available to the Shiksha Mitras only
during the 'process of recruitment' which
will start once they qualify the ATRE by
scoring the prescribed qualifying marks,
and until they do so they cannot stake a
claim to such weightage. Relevant portion
of the judgment of Kul Bhushan Misra
(supra) reads as under:-

"In our considered opinion the
submission advanced on behalf of the
appellants/petitioners must necessarily be
evaluated bearing in mind the decision of
the Supreme Court in Anand Kumar Yadav
as well as the statutory amendments
introduced in the 1981 Rules by virtue of
the
Twentieth
and
Twenty-Second
Amendments.

Anand Kumar Yadav, expressly
upheld and affirmed the decision rendered
by the Full Bench of this Court. The
Supreme Court confirmed the position
found by the Full Bench that Shiksha
Mitras did not possess the requisite
qualifications required of an Assistant
Teacher and, thus, they could not be
regularised. However, the Supreme Court
also sought to balance the rights of
1,78,000 persons engaged by the State
Government in Basic Schools in their
capacity as Shiksha Mitras by observing
that in the peculiar fact situation, they
ought to be given an opportunity to be
considered for recruitment if they have
acquired or they now acquire the requisite
qualifications in terms of advertisements
for recruitment in the next two consecutive
recruitment exercises to be conducted by
the Board. It is in that light that the second
proviso to Rule 14 (3) must be read. The
second proviso must also necessarily be
interpreted in conjunction and against the
backdrop of the significant observation of
the Supreme Court in Anand Kumar Yadav
where it was held that they may be given
suitable
age
relaxation
and
"some
weightage
for
their
experience...".
Weightage, crucially was to be given in
respect
of
"experience"
and
not
in
connection with any examination.

The
appointment
of
Shiksha
Mitras
as
Assistant
Teachers
was
unequivocally made subject to they having
either acquired or now acquiring the
requisite qualifications as prescribed under
the 1981 Rules. Viewed in this light, it is
manifest that Shiksha Mitras were not
exempted from the rigours of possessing
either
the essential qualifications or
otherwise meeting the requirements of the
1981 Rules and more particularly Rule 14
thereof. Rule 14(1)(a) in unambiguous
terms confines the zone of eligibility to
those who (a) possess the prescribed
training qualification, (b) have passed the
Teacher Eligibility Test and (c) the
Assistant
Teacher
Recruitment
Examination.
The
procedure
for
preparation of the merit list is then
prescribed in sub-rule (2) which mandates
the inclusion of only such persons, who
possess
the
prescribed
academic
qualifications and have additionally passed
the
Assistant
Teacher
Recruitment
Examination.