# RAM SHARAN MAURYA AND OTHERS v. STATE OF U.P. AND OTHERS

- **Citation:** [2020] 12 S.C.R. 466
- **Court:** Supreme Court of India
- **Decided:** 2020-11-18
- **Case number:** Civil Appeal No. 3707 of 2020
- **Bench:** Uday Umesh Lalit, Mohan M. Shantanagoudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-sharan-maurya-and-others-v-state-of-u-p-and-others-34535
- **Pages:** 91

## Headnote

Service Law:
Recruitment - To the post of Assistant Teacher of Junior Basic
School - By judgment in *Anand Kumar Yadav case 'Shiksha Mitras'
were given opportunity to be considered for next two recruitments
to the post of Assistant Teacher - State amended U.P. Basic Education
(Teachers) Service Rules, 1981 making 'Shiksha Mitras' eligible
for appointment to the post of Assistant Teachers of Junior Basic
Schools - Qualification for the same included passing of Teachers
Eligibility Test (TET) and Assistant Teacher Recruitment Examination
(ATRE) - For ATRE-2018, minimum qualifying marks for General
& OBC candidates was 45% and for SC/ST was 40% - Candidates
were selected for appointment - National Council for Teachers
Education by Notification dated 28.6.2018 laid down that
candidates holding B.Ed. degree could be entitled to be appointed
as teacher for classes I to V provided they undergo six months bridge
course - Rules 1981 were subsequently amended in terms of the
NCTE Notification dated 28.6.2018 with retrospective effect -
Thereafter ATRE-2019 was notified for filling up 69000 vacancies
for Assistant Teachers - The same was conducted without notifying
minimum qualifying marks - After conducting the exam, State
prescribed minimum qualifying marks i.e. 65% for General category
and 60% for all other reserved categories - Writ petitions filed by
'Shiksha Mitras' assailing fixation of minimum qualifying marks -
Single Judge of High Court allowed the wirt petition filed by 'Shiksha
Mitras' - In appeal, Division Bench of High Court reversed the
order of Single Judge - Appeal to Supreme Court - Held: NCTE is
entitled to lay down the norms for appointment of teachers for classes
I to V - Such prescription is binding on the State - Amendment of
 [2020] 12 S.C.R. 466
466
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1981 Rules has to be read in confirmity with the NCTE Notification
dated 28.6.2018 - The eligibility norms having already been
conferred by Notification dated 28.6.2018, amendments to 1981
Rules with retrospective effect cannot be said to have conferred
eligibility norms for the first time - Therefore, B.Ed. candidates were
rightly allowed to participate in the selection process - Cut-off marks
for ATRE-2019 at 65-60% cannot be termed as exclusionary or
illegal as the same was designed to garner the best talent which is
in consistence with the objectives of RTE Act - Government is
empowered to lay down minimum marks from time to time - Such
power can be exercised even after the examination is over, provided
such exercise is not actuated by any malice or ill-will - National
Council for Teachers Education Act, 1993 - Right to Education
Act, 2005 - Uttar Pradesh Basic Education (Teachers) Service
Rules, 1981 - Rules 2(1)(x), 8 and 14.
Dismissing the appeals preferred by Shiksha Mitras, exservicemen and persons with disability and disposing of those
filed by B.Ed./B.T.C. candidates, the Court
HELD : 1.1 In Teachers' Eligibility Test (TET) examination
held in March, 2018, out of 3,86,000 qualified candidates, Shiksha
Mitras were 40,000 only; meaning thereby that a large number
of candidates other than Shiksha Mitras had been declared
qualified. Paragraph 4(2) of G.O. dated 01.12.2018, referred to
certain directives of National Council for Teachers Education
(NCTE) which in turn, had dealt with eligibility of B.Ed.
candidates. It was, therefore, quite apparent that in the ensuing
selection process, considerable number of B.Ed. candidates would
participate. In this background, the absence of any challenge to
the entitlement of B.Ed. candidates to participate in the process
and to appear at Assistant Teacher Recruitment Examination2019 (ATRE-2019) is crucial. [Para 37][530-B-D]
1.2 Going by the Parliamentary intent in empowering NCTE
under the provisions of the National Council for Teachers
Education Act, 1993 (NCTE Act) and specific authorization in
favour of NCTE under the Notification dated 31.03.2010, the
authority of NCTE is beyond any doubt.

## Text

_Characters 0–39,743 of 172,211. This is a partial read: ask again with offset=39743 for what follows._

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SUPREME COURT REPORTS
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RAM SHARAN MAURYA AND OTHERS
v.
STATE OF U.P. AND OTHERS
(Civil Appeal No. 3707 of 2020 etc.)
NOVEMBER 18, 2020
[UDAY UMESH LALIT AND
MOHAN M. SHANTANAGOUDAR, JJ.]
Service Law:
Recruitment - To the post of Assistant Teacher of Junior Basic
School - By judgment in *Anand Kumar Yadav case 'Shiksha Mitras'
were given opportunity to be considered for next two recruitments
to the post of Assistant Teacher - State amended U.P. Basic Education
(Teachers) Service Rules, 1981 making 'Shiksha Mitras' eligible
for appointment to the post of Assistant Teachers of Junior Basic
Schools - Qualification for the same included passing of Teachers
Eligibility Test (TET) and Assistant Teacher Recruitment Examination
(ATRE) - For ATRE-2018, minimum qualifying marks for General
& OBC candidates was 45% and for SC/ST was 40% - Candidates
were selected for appointment - National Council for Teachers
Education by Notification dated 28.6.2018 laid down that
candidates holding B.Ed. degree could be entitled to be appointed
as teacher for classes I to V provided they undergo six months bridge
course - Rules 1981 were subsequently amended in terms of the
NCTE Notification dated 28.6.2018 with retrospective effect -
Thereafter ATRE-2019 was notified for filling up 69000 vacancies
for Assistant Teachers - The same was conducted without notifying
minimum qualifying marks - After conducting the exam, State
prescribed minimum qualifying marks i.e. 65% for General category
and 60% for all other reserved categories - Writ petitions filed by
'Shiksha Mitras' assailing fixation of minimum qualifying marks -
Single Judge of High Court allowed the wirt petition filed by 'Shiksha
Mitras' - In appeal, Division Bench of High Court reversed the
order of Single Judge - Appeal to Supreme Court - Held: NCTE is
entitled to lay down the norms for appointment of teachers for classes
I to V - Such prescription is binding on the State - Amendment of
 [2020] 12 S.C.R. 466
466
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1981 Rules has to be read in confirmity with the NCTE Notification
dated 28.6.2018 - The eligibility norms having already been
conferred by Notification dated 28.6.2018, amendments to 1981
Rules with retrospective effect cannot be said to have conferred
eligibility norms for the first time - Therefore, B.Ed. candidates were
rightly allowed to participate in the selection process - Cut-off marks
for ATRE-2019 at 65-60% cannot be termed as exclusionary or
illegal as the same was designed to garner the best talent which is
in consistence with the objectives of RTE Act - Government is
empowered to lay down minimum marks from time to time - Such
power can be exercised even after the examination is over, provided
such exercise is not actuated by any malice or ill-will - National
Council for Teachers Education Act, 1993 - Right to Education
Act, 2005 - Uttar Pradesh Basic Education (Teachers) Service
Rules, 1981 - Rules 2(1)(x), 8 and 14.
Dismissing the appeals preferred by Shiksha Mitras, exservicemen and persons with disability and disposing of those
filed by B.Ed./B.T.C. candidates, the Court
HELD : 1.1 In Teachers' Eligibility Test (TET) examination
held in March, 2018, out of 3,86,000 qualified candidates, Shiksha
Mitras were 40,000 only; meaning thereby that a large number
of candidates other than Shiksha Mitras had been declared
qualified. Paragraph 4(2) of G.O. dated 01.12.2018, referred to
certain directives of National Council for Teachers Education
(NCTE) which in turn, had dealt with eligibility of B.Ed.
candidates. It was, therefore, quite apparent that in the ensuing
selection process, considerable number of B.Ed. candidates would
participate. In this background, the absence of any challenge to
the entitlement of B.Ed. candidates to participate in the process
and to appear at Assistant Teacher Recruitment Examination2019 (ATRE-2019) is crucial. [Para 37][530-B-D]
1.2 Going by the Parliamentary intent in empowering NCTE
under the provisions of the National Council for Teachers
Education Act, 1993 (NCTE Act) and specific authorization in
favour of NCTE under the Notification dated 31.03.2010, the
authority of NCTE is beyond any doubt. Though there is no
RAM SHARAN MAURYA v. STATE OF U.P.
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specific regulation as contemplated under Section 32 read with
Sections 12 and 12A of the NCTE Act, for the present purposes
by virtue of the specific authorization under the Notification dated
31.03.2010, NCTE was entitled to lay down that those holding
the qualification of 'Bachelor of Education' as detailed in said
Notification are entitled to be appointed as teachers for classes I
to V. Such prescription on part of the NCTE would be binding. It
is for this reason that G.O. dated 01.12.2018 notifying ATRE2019 clearly stated that the candidates possessing minimum
qualifications specified in Notifications issued by the NCTE
including one dated 28.06.2018 were entitled to participate in
ATRE-2019. [Para 41][534-E-H]
1.3 The Notification dated 28.06.2018 being binding on the
State Government, the statutory regime put in place by the State
has to be read in conformity with said Notification. The eligibility
or entitlement being already conferred by Notification dated
28.06.2018, the amendments to Uttar Pradesh basic Education
(Teachers) Service Rules, 1981 (1981 Rules) were effected only
to make the statutory regime consistent with the directives issued
by the NCTE. The right or eligibility was not conferred by
amendments effected to 1981 Rules for the first time and
therefore the element of retrospectivity present in the concerned
amendments has to be read in that perspective. The intent behind
those amendments was not to create a right for the first time
with retrospective effect but was only to effectuate the statutory
regime in tune or accord with NCTE directives. Theoretically,
even if such statutory regime was not made so consistent, the
concerned candidates holding B.Ed. degrees could still be eligible
and could not have been denied candidature for ATRE-2019. [Para
43][535-E-H]
1.4 Once, the NCTE laid down that candidates holding B.Ed.
degrees would be entitled to be appointed as teachers for classes
I to V, provided they undergo a six months' Bridge Course, the
stipulation in 1981 Rules (before 23rd Amendment) that they must
first be appointed as trainee teachers must give way to that under
the Notification dated 28.06.2018. Said stipulation in 1981 Rules
cannot be considered as an additional norm. It ran completely
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counter to that under the Notification dated 28.06.2018 which is
why the Amendment in that behalf was given retrospective effect
to bring in consistency. The B.Ed. candidates were rightly allowed
to participate in the instant selection process. [Paras 45 and
46][536-E-H]
P. Mahendran and others etc. v. State of Karnataka
and others (1990) 1 SCC 411 : [1989] 2 Suppl. SCR
385 ; Madan Mohan Sharma and another v. State of
Rajasthan and others (2008) 3 SCC 724 : [2008] 3
SCR 232 - held inapplicable.
State of Maharashtra vs. Sant Dnyaneshwar Shikshan
Shastra Mahavidyalaya and others (2006) 9 SCC 1 :
[2006] 3 SCR 638 ; Basic Education Board, U.P. vs.
Upendra Rai and others (2008) 3 SCC 432: [2008] 2
SCR 707 ; Dr. Preeti Srivastava and another etc. vs.
State of M.P. and others etc. (1999) 7 SCC 120 : [1999]
1 Suppl. SCR 249 - referred to.
2.1 The percentage of qualifying candidates in ATRE-2018
was 38.83%. The percentage of qualifying candidates in ATRE2019 was 37.62%, which was almost equal to that in ATRE-2018.
However, the number of qualified candidates in ATRE-2018 was
less than the number of vacancies; while even with the cut off at
65-60% the number of qualified candidates in the present
selection i.e. ATRE-2019 was far in excess of the number of posts.
These figures give indications about the nature and the difficulty
level of the examinations and show that even with cut off at 6560%, the percentage of qualifying candidates was almost the same.
[Para 48][537-F-H; 538-A]
2.2 Though the syllabus and subject wise allocation of marks
were identical in both i.e. ATRE-18 and ATRE-19, the nature of
ATRE-2019 was entirely different. The nature and the difficulty
level of both the examinations were different. Therefore it must
be accepted that there could be different parameters regarding
minimum qualifying marks for ATRE-2019. [Para 50][538-D-F]
2.3 All the candidates including Shiksha Mitras who
appeared in ATRE 2018 formed one class while those who
appeared in ATRE 2019 formed another class. There cannot be
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inter se connection or homogeneity between candidates appearing
in one examination or selection with those appearing in another
examination or selection. The candidates would undoubtedly
compete with each other in the same examination on a para meter
which applies to all of them equally. But to say that Shiksha Mitras
who appeared in ATRE-2019 must be allowed equality with
candidates of ATRE-2018, who were part of a different selection
process would be incorrect and illogical. The basic norms of
ATRE-2019 must be tested on their own and cannot depend upon
para meters or norms on the basis of which ATRE-2018 was held.
Otherwise the integrity of the examination process will get
defeated and nullified. [Para 51][538-F-H; 539-A-B]
2.4 The object of giving opportunities to Shiksha Mitras
was to ensure that they were given fair chance to compete with
others so that the best of the lot would be available to take care
of primary education in the State. Therefore, it is not correct to
say that there should not be a different yardstick for Shiksha
Mitras, who had been rendering service as teachers, as against
what could be applied for fresh graduates. [Paras 52 and 47
(c)][540-D-E; 537-C-D]
2.5 The fixation at 65-60% level was to garner the best
available talent. Even with this qualifying norm, the percentage
of qualified candidates in ATRE-2019 was 37.62% which was quite
close to 38.83% in ATRE-2018 and the number of qualified
candidates was far in excess of the vacancies required to be filled
up. Thus, cut off at 65-60% level in the present case, by itself
cannot be termed as incorrect or illegal exercise of power. [Para
53][541-B-C]
2.6 Though as a result of the 22nd Amendment, passing of
ATRE ceased to be part of Rule 8, the requirement was
specifically retained in Rule 14 of 1981 Rules. Further, 60% of
the marks scored by a candidate in ATRE, in terms of Appendix
I read with Rule 14(2) would go in determining quality points to
prepare the merit list. The major portion of quality points being
directly relatable to the performance in ATRE, mere fixation at
65-60% level which applied to all the candidates across the board
cannot be said to be exclusionary, nor was it intended to deprive
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the Shiksha Mitras of the advantage of weightage for experience.
ATRE featured as the common platform on the basis of which
individual merit of various candidates could be tested, which is
why a major portion of allocable quality points was assigned to
the performance in ATRE. In the circumstances, the performance
in ATRE-2019 was given adequate and due weightage by fixation
of cut off at 65-60% level. [Paras 55 and 56][541-E-G]
2.7 Therefore, the fixation of cut off at 65-60% in ATRE2019 was perfectly valid and justified. Considering the large
number of candidates who appeared at ATRE-2019 as well as the
nature and difficulty level of the examination, the cut off was
designed to draw the best available talent. The endeavour on
part of the State in attempting to secure the best of the teachers
was therefore fully justified. The right to education guaranteed
in terms of Article 21A of the Constitution would envisage quality
education being imparted to the children which in turn, would
signify that the teachers must be meritorious and the best of the
lot. Any process which applied equally to all the candidates and
was designed to garner the best talent, cannot be called arbitrary
or irrational. [Para 57][542-D-F]
State of M.P. and others vs. Gopal D. Tirthani and others
(2003) 7 SCC 83 : [2003] 1 Suppl. SCR 797 -
distinguished.
3.1 In terms of Rule 2(1)(x) of 1981 Rules, qualifying marks
of ATRE are such minimum marks as may be determined 'from
time to time' by the Government. Clause (C) of Rule 14 of 1981
Rules lays down that a candidate must have 'passed Assistant
Teacher Recruitment Examination conducted by the Government'.
Thus, one of the basic requirements for being considered to be
appointed as an Assistant Teacher under 1981 Rules is passing
of ATRE with such minimum marks as may be determined by the
Government. Unlike para 7 of the Guidelines for ATRE-2018
which had spelt out that a candidate must secure minimum of
45% or 40% marks (for 'general' and 'reserved' categories
respectively) for passing ATRE-2018, no such stipulation was
available in G.O. dated 01.12.2018 notifying ATRE-2019. Though,
RAM SHARAN MAURYA v. STATE OF U.P.
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the minimum qualifying marks were set out in the Guidelines for
ATRE-2018, it is not the requirement of 1981 Rules that such
stipulation must be part of the instrument notifying ATRE. By
very nature of entrustment, the Government is empowered to
lay down minimum marks 'from time to time'. If this power is
taken to be conditioned with the requirement that the stipulation
must be part of the instrument notifying the examination, then
there was no such stipulation for ATRE-2019. Such reading of
the rules will lead to somewhat illogical consequences. On one
hand, the relevant Rule requires passing of ATRE while, on the
other hand, there would be no minimum qualifying marks
prescribed. A reasonable construction on the relevant rules would
therefore imply that the Government must be said to be having
power to lay down such minimum qualifying marks not exactly
alongside instrument notifying the examination but at such other
reasonable time as well. [Para 60][552-E-H; 553-A-B]
3.2 In the present case, the requirement in terms of Rule
2(1)(x) read with Rule 14 is that the minimum qualifying marks
as stipulated by the Government must be obtained by a candidate
to be considered eligible for selection as Assistant Teacher. It
was thus always contemplated that there would be some minimum
qualifying marks. What was done by the Government by virtue
of its orders dated 07.01.2019 was to fix the quantum or number
of such minimum qualifying marks. The candidate had to pass
ATRE-2019 and he must be taken to have known that there would
be fixation of some minimum qualifying marks for clearing ATRE2019. [Para 61][553-E-H; 554-A]
3.3 If the Government has the power to fix minimum
qualifying marks 'from time to time', there is nothing in the Rules
which can detract from the exercise of such power even after the
examination is over, provided the exercise of such power is not
actuated by any malice or ill will and is in furtherance of the object
of finding the best available talent. [Para 63][554-E-F]
Municipal Corporation of Delhi vs. Surender Singh and
others (2019) 8 SCC 67; Jharkhand Public Service
Commission vs. Manoj Kumar Gupta (2020) 1 SCALE
504 - relied on.
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3.4 If the ultimate object is to select the best available talent
and there is a power to fix the minimum qualifying marks, in
keeping with the law laid down by this Court, there is no illegality
or impropriety in fixation of cut off at 65-60% vide order dated
07.01.2019. The facts on record indicate that even with this cut
off, the number of qualified candidates is more than twice the
number of vacancies available. [Para 64][555-A-C]
State of Haryana vs. Subash Chander Marwaha and
others (1974) 3 SCC 220 : [1974] 1 SCR 165; State of
U.P. etc. v. Rafiquddin and others etc. 1987 (Supp) SCC
401 : [1988] SCR 794 - relied on.
3.5 It must be accepted that after considering the nature
and difficulty level of examination, the number of candidates who
appeared, the concerned authorities have the requisite power to
select a criteria which may enable getting the best available
teachers. Such endeavour will certainly be consistent with the
objectives under the Right to Education Act, 2005 (RTE Act).
[Para 64][555-C-D]
3.6 In the circumstances, the view taken by the Division
Bench of the High Court is confirmed and it is concluded that in
the present case, the fixation of cut off at 65-60%, even after the
examination was over, cannot be said to be impermissible. The
Government was well within its rights to fix such cut off. [Para
65][555-D-E]
State of Haryana vs. Subash Chander Marwaha and
others (1974) 3 SCC 220: [1974] 1 SCR 165; State of
U.P. etc. v. Rafiquddin and others etc. 1987 (Supp) SCC
401: [1988] 1 SCR 794 - relied on.
K. Manjusree vs. State of Andhra Pradesh and another
(2008) 3 SCC 512: [2008] 2 SCR 1025; Hemani
Malhotra etc. vs. High Court of Delhi (2008) 7 SCC
11: [2008] 5 SCR 1066 - distinguished.
P.K. Ramachandra Iyer and others v. Union of India
and others (1984) 2 SCC 141: [1984] 2 SCR 200;
Umesh Chandra Shukla v. Union of India and others
RAM SHARAN MAURYA v. STATE OF U.P.
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(1985) 3 SCC 721: [1985] 2 Suppl. SCR 367;
Durgacharan Misra v. State of Orissa (1987) 4 SCC
646: [1987] 3 SCR 1097; Maharashtra State Road
Transport Corporation and others v. Rajendra Bhimrao
Mandve and others (2001) 10 SCC 51; Tej Prakash
Pathak and others vs. Rajasthan High Court and others
(2013) 4 SCC 540; Yogesh Yadav vs. Union of India
and others (2013) 14 SCC 623: [2013] 8 SCR 194;
Salam Samarjeet Singh v. High Court of Manipur at
Imphal and another (2016) 10 SCC 484: [2016] 9 SCR
771; Sivanandam C.T. and others v. High Court of
Kerala and others (2018) 1 SCC 239: [2017] 13 SCR
226; Municipal Corporation of Delhi v. Surender Singh
and others (2019) 8 SCC 67; Jharkhand Public Service
Commission v. Manoj Kumar Gupta (2020) 1 SCALE
504 - referred to.
4. Consequently, the challenge at the instance of Shiksha
Mitras in all these matters, is negated and the appeals preferred
by Shiksha Mitras are dismissed. The appeal preferred by the
Association of Shiksha Mitras also prayed for absorption of
Shiksha Mitras. Such a prayer cannot be granted in view of the
pronouncement of the decision of this Court in *Anand Kumar
Yadav. Said appeal is, therefore, dismissed. However, one more
opportunity shall be afforded to Shiksha Mitras to compete in
the next selection. It is left to the discretion of the State
Government to consider the manner and the modalities in which
such opportunity can be availed of. [Paras 66 and 67][555-E-H]
5. The cut off at 65-60% having been held valid and
justified, the appeals preferred by ex-servicemen or persons with
disability are also dismissed. If there are less number of candidates
against the vacancies for these categories, such vacancies shall
be subject to the Rules in that behalf. If the vacancies cannot be
carried forward, the same shall and must enure to the advantage
of the candidates in the present selection. [Para 68][556-A-C]
6. Similarly, Writ Petition and appeals arising out of petitions
preferred by B.Ed./B.T.C. candidates as well as Contempt
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Petition and all Intervention Applications also stand disposed of
in same terms. [Para 68][556-C]
7. The State Government shall now be entitled to fill up all
the concerned posts in terms of the result declared on 12.05.2020
and in accordance with law. [Para 69][556-C-D]
*State of U.P. and another vs. Anand Kumar Yadav and
others (2018) 13 SCC 560 : [2017] 10 SCR 428 -
referred to.
Case Law Reference
[2017] 10 SCR 428
referred to
Para 2
[2006] 3 SCR 638
referred to
Para 38.1
[2008] 2 SCR 707
referred to
Para 38.2
[1989] 2 Suppl. SCR 385
held inapplicable
Para 42
[2008] 3 SCR 232
held inapplicable
Para 42
[1999] 1 Suppl. SCR 249
referred to
Para 45
[2003] 1 Suppl. SCR 797
distinguished
Para 52
[1974] 1 SCR 165
referred to
Para 58
[1988] 1 SCR 794
referred to
Para 58
[1974] 1 SCR 165
referred to
Para 58
[1984] 2 SCR 200
referred to
Para 58
[1985] 2 Suppl. SCR 367
referred to
Para 58
[1987] 3 SCR 1097
referred to
Para 58
(2001) 10 SCC 51
referred to
Para 58
(2013) 4 SCC 540
referred to
Para 58
[2013] 8 SCR 194
referred to
Para 58
[2016] 9 SCR 771
referred to
Para 58
[2017] 13 SCR 226
referred to
Para 58
RAM SHARAN MAURYA v. STATE OF U.P.
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[2020] 12 S.C.R.
(2019) 8 SCC 67
referred to
Para 58
[2008] 2 SCR 1025
distinguished
Para 61
[2008] 5 SCR 1066
distinguished
Para 61
(2019) 8 SCC 67
relied on
Para 63
[1974] 1 SCR 165
relied on
Para 64
[1988] SCR 794
relied on
Para 64
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3707
of 2020.
From the Judgment and Order dated 06.05.2020 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Special Appeal
No. 207 of 2019.
With
Civil Appeal Nos. 3708, 3709, 3710, 3711, 3720, 3721, 3722, 3728,
3729, 3725, 3732, 3731, 3724, 3723, 3730, 3726, 3712, 3713, 3714, 3717,
3715, 3716, 3718, 3719, 3727, 3733, 3734 of 2020, Contempt Petition (C)
No. 418 of 2020 in Special Leave Petition (Civil) No. 6841 of 2020,
Special Leave Petition (Civil) D. No. 13142 of 2020, Writ Petition (Civil)
No. 703 of 2020.
Ms.
Aishwarya
Bhati,
ASG,
K.V.
Viswanathan,
R. Balasubramanian, Sr. Advs., Harish Pandey, Anup Kumar, Sachin
Sharma, Talha Abdul Rahman, Kushagra Pandey, Mohd. Shaz Khan,
Udit Konkanthankar, Mukesh Verma, Raj Singh Rana, Anand Nandan,
Satya Mitra, Pankaj Kumar Singh, Kamal Kumar Pandey, Yash Pal
Dhingra, Akshay Verma, Atul Khenja, D.K. Pandey, Ms. Tanya Agarwal,
Ms. Rani Chhabra, Ms. Saroj Tripathi, Naveen Kumar Tripathi, Abhishek
Kumar Singh, Dr. Sumant Bharadwaj, Vedant Bharadwaj, Ms. Mridula
Ray Bharadwaj, Kausar Raza Faridi, D.P. Shukla, Prashant Shukla,
Dr. Brij Bhushan K. Jauhar, Gaurav Yadav, Harsh Mahan, Lalit Chahar,
Ms. Purnima Jauhari, R.K. Singh, Ms. Neeraj Singh, Kumar Gaurav,
Ms. Ritu Reniwal, Ms. Anzu. K. Varkey, Aman Rastogi, Sanjay Rastogi,
Ms. Ritu, Abhishek Kishor, Parminder Singh Bhullar, Tom Joseph,
Pushkar Sharma, Satish Pandey, Ms. Geeta Verma, Abdul Qadir, Nishit
Agrawal, Harsh Mishra, Dr. Vinod Kumar Tewari, Ms. Priyanka Dubey,
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Vivek Tiwari, Amit Pawan, Sahil Bhalaik, Tarun Gupta, Rakesh Mishra,
Krishnanand Pandeya, Priyank Upadhyay, Piyush Dwivedi,
Rameshwar Prasad Goyal, Ms. Tanima Kishore, Satyajeet Kumar,
Rakesh Dahiya, Santosh Kumar Tripathi, Advs. for the appearing parties.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. Except Special Leave Petition (Civil) D.No.13142 of 2020: (i)
permission to file Special Leave Petition is granted in all the concerned
matters; and (ii) Special Leave to Appeal is granted in all matters.
2. These appeals arise out of the final judgment and order dated
06.05.2020 passed by the Division Bench of the High Court1 in Special
Appeal No.207 of 2019 and all connected matters whereby the Division
Bench of the High Court set aside the Order dated 29.03.2019 passed
by the Single Judge of the High Court in Writ Petition No.1188(SS) of
2019 and other connected matters. These appeals, inter alia, deal with
the extent of rights of Shiksha Mitras and benefits conferred upon them
by the decision of this Court in State of U.P. and another vs. Anand
Kumar Yadav and others2.
3. The facts leading to the decision of this Court in Anand Kumar
Yadav2 were set out in said decision as under:-
"3. Brief factual matrix may be noted. The U.P. Basic Education
Act, 1972 (the 1972 Act) was enacted to regulate and control
basic education in the State of U.P. Section 19 of the 1972 Act
authorises the State Government to make rules to carry out the
purpose of the Act. The U.P. Basic Education (Teachers) Service
Rules, 1981 (the 1981 Rules) lay down sources of recruitment
and qualification for appointment of teachers. The National Council
for Teachers' Education Act, 1993 (NCTE Act) was enacted by
Parliament for planned and coordinated development for teacher
education system. The Right of Children to Free and Compulsory
Education Act, 2009 (the RTE Act, 2009) was enacted by
Parliament for free and compulsory education to all children of
the age of 6 to 14 years. Section 23 provides for qualification for
1 The High Court of Judicature at Allahabad, Lucknow Bench
2 (2018) 13 SCC 560
RAM SHARAN MAURYA v. STATE OF U.P.
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appointment of teachers. NCTE was designated as authority under
Section 23(1) to lay down the qualifications for appointment of
teachers.
4. NCTE issued Notification dated 23-8-2010 laying down such
qualifications. 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 (the 2001
Regulations), if the teachers were appointed on or after 3-9-2001
subject to their undergoing NCTE recognised six months' special
programme in certain situations. Teachers appointed before 3-92001 were required to have qualifications as per the prevalent
recruitment rules. One of the requirements under the said
notification is the requirement of passing Teachers Eligibility Test
(TET). However, by Letter dated 8-11-2010, the Central
Government sought proposals for relaxation under Section 23(2)
of the RTE Act which was followed by the relaxation Order dated
10-9-2012 for certain categories of persons which was to operate
till 31-3-2014. Vide Letter of NCTE dated 14-1-2011, NCTE
accepted the proposal of the State of Uttar Pradesh for training
of untrained graduate Shiksha Mitras by open and distance learning
but it was made clear that no appointment of untrained teachers
was permitted.
5. In exercise of powers under the RTE Act, 2009, the RTE Rules,
2010 were framed by the Central Government. At the same time,
the State of U.P. also purported to frame rules called the U.P.
RTE Rules, 2011.
6. Reference may now be made to the scheme under which the
Shiksha Mitras were recruited. On 26-5-1999, a Government
Order was issued by the State of U.P. for engagement of Shiksha
Mitras (Parateacher). The purported object of the Order was to
provide universal primary education and for maintenance of
teacher student ratio in primary schools by hiring persons who
were not duly qualified at lesser cost as against the prescribed
salary of a qualified teacher. The Government Order (G.O.) stated
that up to the limit of 10,000, Shiksha Mitras could be contracted
for academic session 1999-2000 at honorarium of Rs 1450 per
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month. The salient aspects of the scheme as summed up in the
impugned judgment? of the High Court from the said G.O. were:
(Anand Kumar case3, SCC OnLine All para 17)
"(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 Nyaya Panchayat;
(v) The services of a Shiksha Mitra could be terminated for
want of satisfactory performance;
(vi) Selection was to be made at the village level by the Village
Education Committee; and
(vii) The scheme envisaged the constitution, at the district level,
of a Committee presided over by the District Magistrate and
consisting, inter alia, of the Panchayat Raj Officer and the
District Basic Education Officer among other members to
oversee implementation."
7. Further G.Os. were issued by the State of U.P. including G.O.
dated 1-7-2001 expanding the scheme and clarifying that the
scheme was not for employment in a regular service but to provide
opportunity to the rural youth to render community service.
8. Even though vide Notification dated 23-8-2010, minimum
statutory qualification was laid down by NCTE, the issue for
relaxation under Section 23(2) of the RTE Act was taken up by
the Union Government for relaxation for the limited interim statutory
period and if a particular State did not have adequate institutions
for teachers training or did not have the adequate number of
candidates during the period. The State Government, in response
3 2015 SCC OnLine All 3997 : ILR 2015 All 1108 [Anand Kumar Yadav vs. Union of
India]
RAM SHARAN MAURYA v. STATE OF U.P.
[UDAY UMESH LALIT, J.]
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to the letter of the Central Government, responded by stating that
it had appointed Shiksha Mitras on contractual basis who were
required to be given teachers training. The Central Government
issued an Order for relaxation under Section 23(2) subject to certain
conditions for the period up to 31-3-2014.
9. The State Government submitted a revised proposal dated 3-12011 envisaging giving of training to the Shiksha Mitras which
was accepted by the Central Government in terms of the Letter
dated 14-1-2011 for two years' diploma in elementary education
through open and distance learning mode with a clear
understanding that no untrained teachers will be appointed.
10. Finally, the State of U.P. took the following steps which were
subject-matter of challenge before the High Court:
10.1. The Notification dated 30-5-2014 amending the U.P. RTE
Rules introducing Rule 16-A authorising the State Government to
relax minimum educational qualifications for appointment of
Assistant Teachers in Junior Basic Schools.
10.2. The Notification dated 30-5-2014, amending the 1981 Rules:
Rule 8 laid down revised qualifications for appointment of Assistant
Master and Assistant Mistress of Junior Basic Schools which
qualifications are different from the statutory qualifications under
Section 23 of the RTE Act. Rule 5 was amended to add Shiksha
Mitras as source for recruitment of teachers in addition to the
existing source of direct recruitment in accordance with the existing
rules. Rule 14 was also amended to enable Shiksha Mitras to be
appointed as teachers against substantive posts without having
the qualifications prescribed under Section 23 of the RTE Act.
10.3. G.O. dated 19-6-2013 was issued giving permission for
appointment of Shiksha Mitras on the post of Assistant Teachers
in primary schools without having the eligibility and qualifications
in terms of the RTE Act, 2009. A time table was laid down for
absorption of Shiksha Mitras as Assistant Teachers.
10.4. The consequential executive orders were issued for
absorption of 1,24,000 graduate Shiksha Mitras and 46,000
intermediate Shiksha Mitras."
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13. Batch of writ petitions was filed before the High Court by
persons who claimed to be eligible for appointment and whose
chances were affected by filling up of vacancies of teachers by
regularising the Shiksha Mitras against the said vacancies..........
14. Case set out in the petition was that in view of Notification
issued by NCTE on 23-8-2010 laying down minimum qualification
for appointment of Assistant Teacher for Classes I to VIII, the
decision of the U.P. Government dated 19-6-2014 and amendments
made by the U.P. Government on 30-5-2014 were in conflict with
the Notification issued by NCTE on 23-8-2010 and could not,
thus, be justified. TET being a mandatory qualification, the State
Government could not make any appointment to the post of teacher
without the said qualification. The appointments did not fall under
the relaxation clause being post 23-8-2010 Notification and being
not covered by the conditions for relaxation. The 1981 Rules of
the State could not incorporate a provision for absorption of Shiksha
Mitras in violation of law laid down by this Court in State of
Karnataka v. Umadevi (3)4as their appointment was dehors the
1981 Rules, having not been made after following the rules for
appointment of teachers. It was also submitted that the nature of
appointment of Shiksha Mitras was contractual to enable them to
render community service and not in terms of prescribed
qualifications for appointment of teachers. Training by open and
distance learning mode was relevant only for teachers validly
appointed and not for contractual employees appointed dehors
the rules. Moreover, 46,000 Shiksha Mitras were not even
graduates which was a condition for approval by NCTE in its
letter dated 14-1-2011........."
3.1 The decision rendered by the Full Bench of the High Court of
Judicature at Allahabad was dealt with as under:-
"17. The findings of the High Court in brief are that having regard
to the nature of appointment of Shiksha Mitras, they could not be
treated as teachers in terms of the 1981 Rules. They also did not
have the qualifications prescribed under the said Rules inasmuch
as on the date of appointment, they did not have graduate degree
nor they had basic teachers' certificate as prescribed under the
1981 Rules. Reservation policy had also not been followed. No
4 (2006) 4 SCC 1 : 2006 SCC (L&S) 753
RAM SHARAN MAURYA v. STATE OF U.P.
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doubt they may have served the need of the hour, their regular
appointment in violation of the requisite statutory qualification was
illegal. Reference was made to earlier Full Bench judgment in
Sandhya Singh v. State of U.P.5with regard to the nature of
such appointments.
18. It was further held that Section 23(2) permitted relaxation of
minimum qualification for appointment of teachers only for a limited
period not exceeding five years and qualification for TET could
not be relaxed as held by the Full Bench judgment of the High
Court in Shiv Kumar Sharma v. State of U.P.6 for post-23-82010 appointments. Nor pre-23-8-2010 appointments could be
saved unless initial appointments were to the post of teachers in
terms of applicable rules as stated in the Notification dated 23-82010. The amendments to the State RTE Rules, 2011 and the
Service Rules of 1981 were in conflict with the mandate of Section
23(2) under which power to relax the minimum qualifications was
vested only with the Central Government for a limited period.
Moreover, the regularisation of Shiksha Mitras as teachers was
not permissible in view of the law laid down in Umadevi (3)4. The
appointment of Shiksha Mitras was not as teachers nor could it
be held to be merely irregular in the absence of their minimum
qualifications for the post of teachers which was a distinguishing
feature rendering the judgments State of Karnataka v. M.L.
Kesari7 and Amarendra Kumar Mohapatra v. State of Orissa8
inapplicable.
3.2. Affirming the view taken by the Full Bench, this Court
concluded:-
"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 the
Notification dated 23-8-2010, 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
5 (2013) 7 ADJ 1 (FB)
6 2013 SCC OnLine All 4097 : (2013) 6 ALJ 366 : 6 ADJ 310 (FB)
7 (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826
8 (2014) 4 SCC 583 : (2014) 2 SCC (L&S) 54
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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 23-8-2010 Notification whose appointment
could be regularised.
29. Further difficulty which stares one in the face is the law laid
down by this Court on regularisation 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 regularised as teachers.
Regularisation 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.
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32. On the one hand, we have the claim of 1.78 lakh persons to
be regularised 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 relaxation may be possible, mandatory qualifications cannot
be dispensed with. Regularisation 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 view3 taken by the
High Court."
3.3 However, in the peculiar fact situation, following observations
were made by this Court:-
"33. Question now is whether in the absence of any right in favour
of Shiksha Mitras, they are entitled to any other relief or preference.
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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 authority concerned. 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."
4. Paragraph 33 of the decision in Anand Kumar Yadav2 thus
directed that Shiksha Mitras be given:-
a)
opportunity to be considered for recruitment if they had
acquired or would acquire requisite qualifications in terms of
advertisement for recruitment.
b)
for next two consecutive recruitments; and
c)
in such recruitments, they would be entitled to:-
i)
suitable age relaxation; and
ii)
some weightage for their experience, as may be decided
by the authority concerned.
5. After the decision in Anand Kumar Yadav2, a Press Note
was released by the State Government on 21.08.2017, which referred to
the directions in aforesaid paragraph 33 and stated:
"1. In sequence of compliance of above, Government to such
teachers who were absorbed/ adjusted at the post of teacher,
they will be deemed reverted on the post of Shiksha Mitra w.e.f.
1.8.2017. They will have option to join duty in their present school
or at the school of their original posting.
2. State Government shall organize exam of TET in the month of
October 2017 and all such Shiksha Mitras shall be provided an
opportunity to acquire the required qualification.
3.