# STATE OF U.P. & ANR. ETC v. ANAND KUMAR YADAV & ORS. ETC

- **Citation:** [2017] 10 S.C.R. 428
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Civil Appeal No. 9529 of 2017
- **Bench:** Adarsh Kumar Goel, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-anr-etc-v-anand-kumar-yadav-ors-etc-31623
- **Pages:** 50

## Headnote

Uttar Pradesh Right of Children to Free and Comp11/sory
Ed11cation Rules, 2011:
c
r.16-A [inserted by Uttar Pradesh Right of Children to Free
and Compulsory Education (First Amendment) R11/es, 2014} -
Prescribing absorption of 'Shiksha Mitras' as Assistant Teachers in
junior basic schools -
By relaxing minimum educational
qualifications for the post provided u/s. 23 of the Right of Children
to Free and Compulsory Education Act, 2009 - Executive orders
D
issued for absorption of 1,24,000 'Shiksha Mitras' as Assistant
Teachers - Constitutional validity of - Held: The fundamental right
of right to education is right to quality education - To make the
right to education meaningful, a qualified teacher has significant
role - In view of clear mandate of law statutorily requiring minimum
E qualification/or appointment of teachers, no appointment was
permissible without such qualifications - Since 'Shiksha Mitras' were
never appointed as teachers as per applicable qualifications and
are not covered by relaxation order uls. 23(2) of 2009 Act, they
could not be appointed as teachers in breach of s. 23(2) of 2009
Act-State is not competent to relax the qualijlcatioi1s - In the peculiar
F facts of present case, 'Shiksha Mitras' are given opportunity to be
considered for recruitment, !f they have acquired or now acquire
requisite qualification - Right of Children to Free and Compulsory
Education Act, 2009 - s.23.
G
Disposing of the appeals and Writ Petitions, the Court
HELD: 1. Fundamental right to free and compulsory
education is one of the most important rights. Right to education
is right to quality education. To make the right to education
meaningful, a qualified teacher undoubtedly has significant role.
It is not correct that even unqualified teachers ought to be allowed
H to continue ignoring the legislative mandate or that this Court
428
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & -
429
ORS. ETC.
should exercise jurisdiction under Article 142 to undo the said A
mandate. Consideration for career of 1.78 lac -Shik.sha Mitra.s,
over and above their legal right, cannot be at the cost of
fundamental right of children to free quality education by duly
qualified teachers in terms of legislative mandate. [Paras 16,17
and 19] [457-F; 459-A; 466-G-H]
A.shoka Kumar Thakur v. Union of India (2008) 6 SCC
1 : (2008] 4 SCR 1 - relied on.
Shiv Kumar Sharma vs. State of Uttar Pradesh 2013
(6) ADJ 310 (FB) - approved.
B
2. In view of clear mandate of law statutorily requiring C
minimum qualification for appointment of teachers to be appointed
after the date of Notification dated 23'd August, 2010, there is no
doubt that no appointment was permissible without such
qualifications. Appointments in the present case arc clearly after
the said date. Relaxation provision could be invoked for a limited D
period or in respect of persons already appointed in terms of
applicable rules relating to qualifications. The Sltik.slta Mitra.s in
the present case do not fall in the category of pre 23'd August,
2010 Notification whose appointment could be regularized.
Therefore, the Shiksha Mitra.s have not, under the law, right to
be appointed or absorbed as teachers de /tors the prescribed E
qualifications. [Paras 20, 21] [467-A; 476-D-E)
3. Appointment of Slrikslta 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
F
· be of mere irregularity. The exceptions carved out by this Court
do not apply to the case of the present nature. [Para 22) [476-FG]
.
4. Thus, since the Shiksha Mitras were never appointed
as teachers as per applicable qualifications and arc not covered
G
by relaxation order under Section 23(2) of the Right of Children
_ to Free and Compulsory Education Act, 2009, they could not be
appointed as teachers in breach of Section 23(1) of the said Act.
The State is not competent to

## Text

_Characters 0–39,933 of 105,460. This is a partial read: ask again with offset=39933 for what follows._

A
B
[2017] 10 S.C.R. 428
STATE OF U.P. & ANR. ETC.
v.
ANAND KUMAR YADAV & ORS. ETC.
(Civil Appeal No. 9529 of 2017 etc.)
JULY25, 2017
[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.)
Uttar Pradesh Right of Children to Free and Comp11/sory
Ed11cation Rules, 2011:
c
r.16-A [inserted by Uttar Pradesh Right of Children to Free
and Compulsory Education (First Amendment) R11/es, 2014} -
Prescribing absorption of 'Shiksha Mitras' as Assistant Teachers in
junior basic schools -
By relaxing minimum educational
qualifications for the post provided u/s. 23 of the Right of Children
to Free and Compulsory Education Act, 2009 - Executive orders
D
issued for absorption of 1,24,000 'Shiksha Mitras' as Assistant
Teachers - Constitutional validity of - Held: The fundamental right
of right to education is right to quality education - To make the
right to education meaningful, a qualified teacher has significant
role - In view of clear mandate of law statutorily requiring minimum
E qualification/or appointment of teachers, no appointment was
permissible without such qualifications - Since 'Shiksha Mitras' were
never appointed as teachers as per applicable qualifications and
are not covered by relaxation order uls. 23(2) of 2009 Act, they
could not be appointed as teachers in breach of s. 23(2) of 2009
Act-State is not competent to relax the qualijlcatioi1s - In the peculiar
F facts of present case, 'Shiksha Mitras' are given opportunity to be
considered for recruitment, !f they have acquired or now acquire
requisite qualification - Right of Children to Free and Compulsory
Education Act, 2009 - s.23.
G
Disposing of the appeals and Writ Petitions, the Court
HELD: 1. Fundamental right to free and compulsory
education is one of the most important rights. Right to education
is right to quality education. To make the right to education
meaningful, a qualified teacher undoubtedly has significant role.
It is not correct that even unqualified teachers ought to be allowed
H to continue ignoring the legislative mandate or that this Court
428
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & -
429
ORS. ETC.
should exercise jurisdiction under Article 142 to undo the said A
mandate. Consideration for career of 1.78 lac -Shik.sha Mitra.s,
over and above their legal right, cannot be at the cost of
fundamental right of children to free quality education by duly
qualified teachers in terms of legislative mandate. [Paras 16,17
and 19] [457-F; 459-A; 466-G-H]
A.shoka Kumar Thakur v. Union of India (2008) 6 SCC
1 : (2008] 4 SCR 1 - relied on.
Shiv Kumar Sharma vs. State of Uttar Pradesh 2013
(6) ADJ 310 (FB) - approved.
B
2. In view of clear mandate of law statutorily requiring C
minimum qualification for appointment of teachers to be appointed
after the date of Notification dated 23'd August, 2010, there is no
doubt that no appointment was permissible without such
qualifications. Appointments in the present case arc clearly after
the said date. Relaxation provision could be invoked for a limited D
period or in respect of persons already appointed in terms of
applicable rules relating to qualifications. The Sltik.slta Mitra.s in
the present case do not fall in the category of pre 23'd August,
2010 Notification whose appointment could be regularized.
Therefore, the Shiksha Mitra.s have not, under the law, right to
be appointed or absorbed as teachers de /tors the prescribed E
qualifications. [Paras 20, 21] [467-A; 476-D-E)
3. Appointment of Slrikslta 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
F
· be of mere irregularity. The exceptions carved out by this Court
do not apply to the case of the present nature. [Para 22) [476-FG]
.
4. Thus, since the Shiksha Mitras were never appointed
as teachers as per applicable qualifications and arc not covered
G
by relaxation order under Section 23(2) of the Right of Children
_ to Free and Compulsory Education Act, 2009, 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. [Para 23]
(476-G-H]
H
430
SUPREME COURT REPORTS
[2017] IO S.C.R.
A
5. In the peculiar fact situation, Sllikslla Mitras 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
B 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. [Para 26] [477-D-E]
c
D
E
F
G
H
State of Karnataka v. Uma Devi (2006) 4 SCC 1 :
[2006] 3 SCR 953; Km Sandhya Singh v. State of Uttar
Pradesh 2013 (7) ADJ 1 (FB); State of Karnataka v.
M.L. Kesari (2010) 9 SCC 247: (2010] 9 SCR 543;
Amarendra Kumar Mahapatra v. State of Orissa (2014)
4 SCC 583 : [2014] 2 SCR 1031; Sant Ram Sharma v.
State of Rajasthan (1968] 1 SCR 111; Union Carbide
Corporation v. Union of India (1991) 4 SCC 584 :
[1991] 1 Suppl. SCR 251; Official Liquidator v.
Dayanand (2008) 10 SCC 1 : (2008] 15 SCR 331; Amrit
Lal Berry v. Collector of Central Excise, New Delhi
(1975) 4 SCC 714 : [1975] 2 SCR 960; Ramchander
Sunda v. Union of India (1999) 9 SCC 105; Common
Cause, A Registered Society v. Union of India (1994) 5
SCC 557; Surayya Begum (MST) v. Mohd. Usman
(1991) 3 SCC 114 : [1991] 2 SCR 517; Olga Tellis v.
Bombay Municipal Corporation (1985) 3 SCC 545 :
[1985] 2 Suppl. SCR 51; Union of India v. Arulmozhi
Iniarasu (2011) 7 SCC 397 : [2011] 9 SCR 1; Grah
Rakshak, Home Guards Welfare Association vs. State
ofHimachal Pradesh (2015) 6 SCC 247 : [2015] 2 SCR
800; M.L. Kesari (2010) 9 SCC 247 : [2010] 9 SCR
543; Yogesh Kumar vs. Govt. of NCT, Delhi (2003) 3
SCC 548 : [2003] 2 SCR 66.2; K. Narayanan vs. State
of Karnataka (1994) Suppl.(!) 44 : [1993] 2 Suppl.
SCR 105 - referred to.
Case Law Reference
[2006] 3 SCR 953
referred to
Para 7
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & .
431
ORS. ETC.
2013 (7) ADJ 1 (FB)
referred to
Para 10
A
2013 (6) ADJ 310 (FB)
approved
Para 11
(2010) 9 SCR 543
referred to
Para 11
(2014] 2 SCR 1031
referred to
Para 11
(1968(1 SCR 111
referred to
Para 12 _
(1991] 1 Suppl. SCR 251
referred to
Para 12
B
[2008] 15 SCR 331 _
referred to
Para 12
[1975] 2 SCR 960
referred to
Para 12
_ (1999). 9 sec 105
referred to
Para 12
(1994) 5 sec 557
referred to
Para 12
c
(1991] 2 SCR 517
referred to
Para 12
(1985] 2 Suppl. SCR 51
referred to
Para 12
(2011) 9 SCR:l
referred to
Para 12
[2015! 2 SCR 800
referred to ·
Para 12
(2010) 9 SCR 543
referred to
Para 12
D
(2003] 2 SCR 662
referred to
Para 12
-
'(1993) 2 Suppl. SCR 105
referred to
Para 12
(2008] 4 SCR 1
relied on
Para 16
CIVIL APPELLATE JtJRISDICTION : Civil Appeal No. 9529
E
of2017.
From the Judgment and Order dated i 2 .09.2015 of the High Court
of Judicature at Allahabad in Writ-A No. 34833 00014.
WITH
F
Civil Appeal Nos.9531-9542, 9544, 9545, 9557, 9576, 9571, 9574,
9575,9573,9572,9584,9581,9570,9569,9577,9583,9585,9580,9582,
9586-9587,9578;9605,9579,9588, 9636,9589,9696,9744,9697-9698,
9699, 9606, 9712-9714, 9717, 9721, 9722, 9723, 9724-9727, 9728-9731,
9733-9736,9756-9759,9737-9739,9740-9743,9745,9746-9747,9748,
9749,9751,9752,9753,9754,9755 of2017
G
Writ Petition (Civil) Nos. 75, 112, 109, 99, 104, 121, 102, 120, 124,
149, 188,158,176,215,206,244,276,287,605,826,915 of2016
Contempt Petition (Civil)Nos. 453, 781 of2016 in Civil Appeal
Nos. 4347-4375 of2014
'H
432
SUPREME COURT REPORTS
[2017] 10 S.C.R.
A
Contempt Petition (Civil) No. 928 of2017 in Writ Petition (Civil)
No. 167 of2015
ANS Nadkami,ASG, Ajay Kumar Mishra, Sr.Adv.(AAG ofU.P.),
Ms. V. Mohana, Pramod Swarup, Ram Jethmalani, Shekhar Naphade,
Jagdccp Dhankar, Shanti Bhushan, Manoj Prasad, R.S. Suri, Ms. Parag
B
P. Tripathi, P. Chidambaram, Amit Sibal, Abhishek Manu Singhavi,
K.T.S. Tulsi, Dushyant Dave, Salman Khurshid, Guru Charan, Guru
Kishan Kumar, V. Shekhar, Harish N. Salve, P.N. Mishra, Sudhir Chandra
Aggarwal, Mohan Parasaran, C. U. Singh, Ms. Mahalakshmi Pavani,
J. N. Dubey,Ajit Kr. Sinha, Dhruv Mehta, Susheel Kumar Jain, Pallav
Sisodia, Nidesh Gupta, Vikas Singh, Ranji Thoms, Haren P.Ravel,
C Rupendra Singh Suri, Harin Raval, Krishanan Venugopal, Jaideep Gupta,
Nagendra Rai, Vikash Pahawa, S. R. Singh, Sudhir Aggrawala,
P. N. Mishra, Ms. MeenakshiArora, R. Vcnkataramani, Nidesh Gupta,
V. K. Uniyal, Jayant Bhushan, S. N. Jha, Neeraj Kumar Jain,
Subramonium Prasad, Ms. Vibha Datta Makhija, A. K. Panda, Vikas
D Singh, S. P. Singh, Jayant Bhushan, Dhruv Mehta, P.N. Mishra, Colin
Gonsalves, Rakesh Khanna, Pradeep Kant, Sr. Advs., Ms. S. Janani,
Anuvrat Sharma, AbhiShek Srivastava, Ms. Alka Sinha, lnderjeet Singh,
Abhishek Gupta, M.R. Shamshad, Dhirendra Singh Parmar, Ajay Awasthi,
Chirag Madan, Rajesh Srivastava, Kartik Seth, Ms. Nalin Kohli, Gaurav
Yadav,Alexander Iqbal, Avinash C. Srivastava, Ajay Kumar Srivastava,
E Siddhartha Dave, Thomas P. Joseph, R. K. Singh, Ms. Neeraj Singh,
Kumar Gaurav, B. N. Dubey, Ms. Priyanka Agrawal, Ms. Maudak Jai
Singh, Robin Khokhar, Tom Joseph, P. Dayal, Amit Kumar, Prabhoo
Dayal Tiwari, Surya Kumar, Ajay Kumar Tiwari, Rameshwar Prasad
Goyal, K. L. Janjani, Ms. Varsha Rana, Shovan Mishra, Ms. Cordelia
F Slong, G. Balaji, Anurag Dubey, Ms. Meenaesh Dubey, Ms. Meenakshi
Praihar, Jayesh Gaurav, K. B. Upadhyay, S.N. Tripathi, E.P. Pandey,
Varun Chauhan, S. R. Setia, Dinesh Kr. Tiwari, Mrs. Rajmala Dohare,
Dheeraj, Narender Kumar Verma, Prakash Ranjan Nayak,
Ms. Aishwarya Bhati, Susheel Tomar, Srisatya Mohanty, Balraj Dewan,
Ms. Abha R. Sharma, Puneet V., Uviti GujvaL Divy Partap, Mrinmay
G B., D. Partap, Dileep Kr. Dubey, Sanjay Kumar Tyagi, Manoj Kumar
Mishra, Umcsh Dubey, Pradeep Kumar Dwivedi, S. K. Pathak,
Naehiketa Joshi, Prashant Shukla, T. D. Bhaskar, Shiv Baboo, A. Kalam,
Satyajeet Kumar, Girdhar Upadhyay, Hari Shankar Saran, Ms. Asha
Upadhyay, Braham Singh, R. D. Upadhyay, Mohd. Shahid Hussain,
H
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV &
433
ORS. ETC.
Mohan Lal Sharma, Mehul M.Gupta, R. P. Gupta, Ms. Charu Mathur,
Mr. Ravindera Sethi, Haribansh M., Avnish Singh, Ujjawal Pandey,
Ms. Shweta Yadav, Shivam Tripathi, Ankur Yadav, Yashpal Dhingra,
B.·K. Rai, J. K. Shukla, Prakash Kumar Singh, Prashant Shukla, Jayant
Mehta, Anand Nandan, Amit Pawan, Abhishek Amritanshu, Gaurav
Singh, Hassan Zubair Waris, Zubair Waris, Akshat Srivastava, Wills
Mathews, Mukesh Kr.Verma, Neeraj Kr. Shanna, Vivek Sharma,
Sudhanshu Tomar, Ginesh P., Rabin. Majumder, Shivpati B. Pandey,
V. N. Raghupathy, B. K. Jauhari, Ms. Purnima Jauhari, Animesh Khanna,
Deepak Anand, V. K. Mishra, Ms. Radhika Dwivedi,. Kundan Kumar
Lal, K. K. Srivastava, Vijay Pal, Ms. Mamta Chandel, Kundan Pal,
Avinash Kumar Jain, Amit Kumar, Swet Kumar, Arun Kumar, Avinash
Kumar Jain, Ram Swarup Sharma, Dinesh Kr. Tiwary, Mrs. Rajmala
Dohare, Rakesh Kumar, Sanjay Chakraborty, Sandeep Kr. Dwivedi,
Umesh Dubey, Vivek Tiwari, Ms. Madhu Bala, D. N. Dubey, Dheeraj
Kumar Dubey, Pradeep Kumar Tewari, S. Pal, Anupam Dwivedi,
A
B
c
Dr. Vinod Kumar Tewari, Vipin Kumar, K.K. Srivastava, Yashwant Yadav,
D
Vijay Pal, Anubhav, Shwet Kumar, Vijay Kumar, Dr. Kailash Chand,
Ms. Rashmi Nandakumar, Mrigank Prabhakar, Aman Mishra, Shovan
Mishra, Ms. Parul Shuk[a, Udayaditya Banerjee, E. C. Agrawala, Yashraj
Singh Bundela,Anuvrat Sharma; Robin Khokhar, Swarupama Chaturvcdi,
P. Dayal, Sajith. P, Dinesh K. Garg, Deepak Mishra, Abhishek Garg,
Dhananjay Garg, M. M.Singh, Rahul Gupta, All Mushtaq Nawazish,
Dinesh Kr.Tiwary, Chandan Kumar, Mrs .. Rajmala Dohare, Keshav
Chaudhary, Prakash Ranjan Nayak, Sanjay Singh, Umang Shankar,
Ajayinder Sangwan, Tarunesh Kumar, Sun ii Kr, Pandey, Rohan Sharma,
Irfan Firidaus, Ms. Sweety Chatopadhyay, Pradeep Kumar, Anirudh
Kr.Rai, Kundan Kumar Lal, Dr. Bheem Pratap Singh, Pramod K. Singh,
J.R.D. Singh, Manish Khandelawal, R. Gopalakrsihnan, Rajiv Ranjan
Dwivedi, Jitendra Tripathi, Anshuman Nayak, Vipul Agarwal, Vinay
Navarc, Ram Anu Grah Singh, Rakcsh Tiwari, Dr. Rajeev Sharma, .
Suryerdaya Prakash Tiwari, Rahul Kumar Tripathi, R.K. Chaudhary,
T.N. Saxena, H. C. Kharbanda, Vi pin Kumar Saxena, Anil Kumar, Bari
Om Yadhuvansh, Dr. Monika Gusain, Dinesh Kumar Tiwary,
Mrs. Rajmala Dohare, Ramesh Thakur, Raghwendra Ti wary, Mrs. Kirti
Renu Mishra, Ms. Apurna U., Ms. K.Sarda Devi, Mrs. Shally Bhasin,
Ms. Bina Gupta, Aftab Ali Khan, Md. Rashid Saeed, Ms. Ranjeeta
Rohatgi, Fuzail Ahmad Ayyubi, Anj ani Kumar Mishra, Ms. Pragya Baghel,
E
F
G
H
434
SUPREME COURT REPORTS
[2017] 10 S.C.R.
·A R. Gopalakrishnan, Praveen Swamp, Raj Kishor Choudhary, Hema!
Kiritkumar Sheth, Ajay Awasthi, Varun Chauhan, Ms. Asha Gopalan
Nair, Ms. Nivedita Nair, Pitamber Dutt Nautiyal, NishitAgrawal, Shrey
Kapoor, Sitesh N. Singh, Talha A. Rahman, Utkarsh Sharma, (for
Mis Aura & Co.), Ms. Disha Yaish, Ms. Anisha Mathur, Sanjai Kumar
B
Pathak, Wasim A. Qadri, D. Gobardhan, Sarad Kr. Singhania, Gurmeet
Singh Makker, A. Qadir, Abbula Kalam, Farrukh Rasheed, Mrigank
Prabhakar, Susheel Tomar, Srisatya Mohanty, Balraj Dewan,
R. D. Upadhaya, Shovan Mishra, Talha A. Rehman, Sunny Choudhary,
Sudhandhu Palo, Gunjan Singh, Ms. Jyoti Mendiratta,. Mr. Rakesh Mishra,
Mr. Ankit Mishra, Dwarka Sawale, Manohar Pratap, Ms. Priyanka Singh,
C Ms. Manju Jetley, Pradeep Kumar Yadav, Ms. Jaya Yadav, Ashutosh
Yadav, Alok Singh, Purvish Jitendra Malkan, Arnn Kumar Singh, Satya
Mitra, San jay Kumar Yadav, Abhishek Sarkar, Y. K. Pandey, Partha Sil,
Mukesh Verma, Pawan Kumar Shukla, Bikash Kumar Sinha,
D. N. Dubey, Avnish Singh, Yash Pal Dhirigra, Sujeet Kumar, Ms. Reena
D Patel, Akhilcsh Pimdey, Ms. Sheenu Chauhan, Ajay Kumar Singh,
Bijender Chaudhary, Hitesh Kumar Sharma, T.Vijay Pratap Singh,
Shreekant N. Terdal, Anilcndra Pandey, Karunakar Mahalik, Yogesh
Kumar .Sha1ma, Amit Kumar, Neeraj Sharma, Ali Mushtaq, Pranav
Kumar, Dushyant Parashar, D .P. Singh Yadav, Varinder Kumar Sharma,
Devesh Kumar Tripathi, Rohit Pandey, Dinesh Tiwari, Dinesh Kumar
E
T., Chandan Kumar, Ramesh Thakur, Rajmala Dohare, Swami Nath,
Vinay Pandey, Sanjay Chakrabarty, Anupam Mishra, Ms. Pooja Singh,
Ms. Renu Bhandari, Swyodaya Prakash Tiwari, Rahul Kumar Tripathi,
Devesh Kumar Shukla, Harish Pandey, Manoj K. Mishra, Umesh Dubey,
S.K.Pathak, Ashish Kumar Mishra, Yunus Malik, Anish Maheshwari,
Prashant Chaudhary, Praveen Kumar Rai, Hema] Kirti Kumar Sheth,
F
D.P.Shukla, Devyanshu S., Jetendra Singh, Ms. Kalpana Sabharwal,
Ms. Priyanka Singh, V. K. Kaushik, Ms. Manju Sharma Jetley, Mahendra
Pratap Singh, K. Parameshwar, Prashant Shukla, Yashpal Dhingra, Anup
Jain, Abhishek Baid, Anup Jain, Pulkit, Ms. Ranjeeta Rohatgi, Amit
Pawan, Ms. Asha Gopalan Nair, Gyan Prakash Srivastava,
G M. R. Shamshad, Santosh Kumar Tripathi, Ms. Kamakshi S. Mehlwal,
Swmy Choudhary, Ms. S. Ramamani, Deepak Anand, Pahlad Singh
Sharma, RiteshAgrawal, Dr. Vi nod Kumar Tewari, Ms. Cham Mathur,
Abhisth Kumar, Venkita Subramoniam T. R., Fuzail AhmadAyyubi, Ravi
Prakash Mehrotra, San jay Kumar Tyagi, K. L. J anjani, E. C. Agrawala,
H
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV &
435
ORS. ETC ..
Sibo Sankar Mishra, R. P. Wadhwani, Mohan Lal Shanna, Ms. Arti
A
Gupta, Kedar Nath Tripathy, Gaurav Sharma, Ms" K.Sarda Devi,
Ms. Archana Pathak Dave, R. P. Wadhwani, Ms. Mridula Ray
Bharadwaj, Gyan Prakash Srivastava, Arvind Minocha, Vikrant Singh
Bais, Advs. for the appearing parties.
The Judgment of the Cowi was delivered by
B
ADARSH KUMAR GOEL, J. l. Leave granted.
This batch
of cases arises out of judgment of the Allahabad High Court dated 121h
September, 2015 in Writ Appeal No. 34833 of 2015
1 and connected
matters. The High Court allowed the batch of writ petitions and directed
as follows:
c
''(i) The amendment made by the State Government by its
notification dated 30 May 2014 introducing the provision
of Rule 16-A in the Uttar Pradesh Right of Children to Free
and Compulsory Education Rules, 2011 by the Uttar Pradesh
Right of Children to Free and Compulsory Education (First D
Amendment) Rules 2014 is held to be arbitrary and ultra
vires and is quashed and set aside;
(ii) The Uttar Pradesh Basic Education (Teachers) Service
(Nineteenth Amendment) Rules 2014, insofar as they
prescribe as a source of recruitment in Rule 5(2) the
appointment of Shiksha Mitras; the academic qualifications
for the recruitment of Shiksha Mitras in Rule 8(2}(c) and
for the absorption of Shiksha Mitras as Assistant Teachers
in junior basic schools under Rule 14(6) are set aside as
being unconstitutional and ultra vires; and
(iii) All consequential executive orders of the State
Government providing for the absorption of Shik~ha Mitrcis
into the regular service of the State as Assistant Teachers
shall stand quashed and set aside. "
E
F
2. Main question for consideration is whether it is permissible to
appoint teachers for basic education who do not have the requisite
G
statutory qualifications?
FACTS:
3.1 Brief factual matrix may be noted. U.P. Basic Education Act,
1 (2015) !LR All II 08 : (2015) 8 ADJ 338 Anand Kumar Yadav vs. UOI
H
. 436
SUPREME COURT REPORTS
[2017] 10 S.C.R.
A
1972 (the 1972, Act) was enacted to regulate and control basic education
in the State of U.P. Section 19 of the 1972, Act authorizes the State
Government to make rules to carry out the puIJJose of the Act. U.P.
Basic Education (Teachers) Service Rules, 1981 (1981 Rules) lay down
sources of recruitment and qualification for appointment of teachers.
B 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 (RTE Act, 2009) was enacted by the
Parliament for free and compulsory education to all children of the age
of 6 to 14 years. Section 23 provides for qualification forappointment of
C teachers. The NCTE was designated as authority under Section 23(1)
to lay down the qualifications for appointment of teachers.
3.2 The NCTE issued notification dated 23"1 August, 2010 laying
down such qualifications. With regard to teachers appointed prior to the
said notification, it was stated that they were required to have
D qualifications in terms of the National Council for Teacher Education
(Determination of Minimum Qualifications for Recruitment ofTeachers
in Schools) Regulations, 2001 (the 2001 Regulations), if the teachers
were appointed on or after 3ro September, 2001 subject to their undergoing
NCTE recognized six months special programme in certain situations.
Teachers appointed before 3rct September, 2001 were required to have
E 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'hNovcmber,
20 I 0, the Central Government sought proposals for relaxation under
Section 23 (2) of the RTE Act which was followed by the relaxation
F
Order dated I O'h September, 2012 for certa.in categories of persons which
was to operate till 31" March, 2014. Vide letter of the NCTE dated 14'h
January, 2011, the NCTE accepted the proposal of the State ofUttar
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.
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3.3 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 ofU.P. also purported to frame rules called U.P. RTE
Rules, 2011.
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV &
437
ORS. ETC. [ADARSH KUMAR GOEL, J.]
3.4 Reference may now be made to the scheme under which the
A
Shiksha Mitras were recruited. On 26'h May, 1999, a Government Order
was issued by the State ofU.P. for engagement of Shiksha Mitras(ParaTeacher). The purported object of the Order was to provide universal.
primary education and for maintenance of teachers student ratio in
primary schools by hiring persons who were not duly qualified at lesser B
cost as against the prescribed salary of a qualified teacher. The
·Government Order (G.0.) stated that upto the limit of 10,000, Shiksha
Mitras could be contracted for academic session 1999-2000 at
honourarium ofRs.1450 per month. The salient aspects of the scheme
as summed up in the impugned judgment of the High Court from the said
G.O. were:-
C
"(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. wo.u/d 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
D
not available in the village, the unit could be extended to
E
the jurisdiction of the Nyay Panchayat; .
(v) The services of a Shiksha Mitra could be terminated for
want of satisfactory performance;
(vi) Selection was to be made at the village level by the Village
Education Committee; and
F.
(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 Panchajiat Raj Officer and
the District Basic Education Officer among other members
to oversee ·implementation. "
G
3.5. Further G.O.s_,were issued by the State ofU.P. including G.O.
dated l" July, 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.
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3.6 Even though vide Notification dated 23rd August, 2010,
minimum statutory qualification was laid down by the 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 pai1icular State did not have adequate institutions for teachers
B training or did not have the adequate number of candidates during the
period. The State Government, in response 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
c
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F
23(2) subject to certain conditions for the period upto 31" March, 2014.
3. 7 The State Government submitted a revised proposal dated 3rct
January, 2011 envisaging giving of training to the shiksha Mitras which
was accepted by the Central Government in terms of the letter dated
l 4m January, 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.
3.8 Finally, the State of U.P. took following steps which were
subject matter of challenge before the High Court:
A. Notification dated 30'h May, 2014 amending U.P. RTE Rules
introducing Rule 16-A authorizing the State Government to relax minimum
educational qualifications for appointment of Assistant Teachers in Junior
Basic Schools.
B. Notification dated 30'h May, 2014, amending the l 981 Rules:- Rule 8
laid down revised qualifications for appointment of Assistant Master
and Assistant Mistress ofJunior 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
G substantive posts without having the qualifications prescribed under
Section 23 of the RTE Act.
H
C. G.0. dated l 9'h June, 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
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV &
439
ORS. ETC. [ADARSH KUMAR GOEL, J.]
of RTE Act, 2009. A time table was laid down for absorption of Shiksha A
Mitras as Assistant Teachers.
D. The consequential executive orders were issued for absorption of
1,24,000 graduate Shiksha Mitras a11d 46,000 intermediate Shiksha
Mitras.
4. From the above resume of facts, following points are clear:
(i) Shiksha Mitras were appointed on contractual basis to enable
the rural youth to render community service on honorarium which was
less than the pay scale of teachers.
B
(ii) They were not required to have the statutory qualifications for
appointment of teachers.
C
(iii) The impugned notifications and the G.O. of the U.P.
Government to regularize and appoint Shiksha Mitras as teachers in
regular pay scale do not conform to the statutory requirement of
qualifications for appointment of teachers in terms ofNotification dated
23'd August, 2010.
D
(iv) Relaxation provisions under Section 23(2) could neither apply
forever nor could apply to Shiksha Mitras who were not appointed as
teachers in terms of statutory qualifications and on pay scale of teachers.
(v) Training undergone by them in terms of proposal of the State·
Government is not a substitute for the .statutory qualifications as per
E
mandate of Sec.!ion 23 of the RTE Act
(vi) Regularization was not on posts on which the Shiksha Mitras
were appointed and were working but on the post of teachers on which
neither they were initially appointed nor they were qualified.
The Statutory provisions and relevant documents
5. Significant provisions/ notifications to which reference is
necessary are as follows :
(i) Section 23 of the RTE Act
F
· ''23. Qualifications for appointment and terms and conditions
G
of service of teachers.-(1) Any person possessing such
minimum qualifications, as laid down by an academic
authority, authorised by the Central Government, .by
notification, shall be eligible for appointment as a teacher.
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(2) Where a State does not have adequate institutions offering
courses or training in teacher education, or teachers
possessing minimum qualifications as laid down under subsection (1) are not available in sufficient numbers, the
Central Government may, if it deems necessary, by
not(fication, relax the minimum qualifications required for
appointment as a teacher, for such period, not exceeding
five years, as may be specified in that notification: Provided
that a teacher who, at the commencement of this Act, does
not possess minimum qualifications as laid down under subsection (1), shall acquire such minimum qualifications within
a period of five years. . ..
(ii) Notification dated 23'd August, 2010 under Section 23(1)
of the RTE Act :
"Notification dated 2314 August. 2010
NATIONAL COUNCIL FOR TEACHER EDUCATION
NOTIFICATION
New Delhi, the 23rd August, 2010
F No. 61-03/2012010/NCTEl(N & S).-ln exercise of the
powers conferred by Sub-section (I) of Section 23 of the
Right of Children to Free and Compulsory Education Act,
2009 (35 of 2009), and in pursuance of Notification No.
S.O. 750(E) : MANUIHRDT/001312010 dated 31st March,
2010 issited by the Department of School Education and
Literacy, Ministry of Human Resource Development,
Government of India, the National Council for Teacher
Education (NCTE) hereby lays down the following minimum
qualifications for a person to be eligible for appointment as
a teacher in class I to VIII in a school referred to in clause
(n) of Section 2 of the Right of Children to Free and
Compulsory Education Act, 2009, with effect from the date
of this notiflcation:-
1. Minimum Qualifications:-
(i) CLASSES 1-V
(a) Senior Secondwy (or its equivalent) with at least 50%
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV &
441
ORS. ETC. [ADARSH KUMAR GOEL, J.]
marks and 2 year Diploma in Elementary Education (by
A
whatever name known)
OR
Senior Secondary (or its equivalent) with at least 45% marks
and 2 year Diploma in Elementary Education (by whatever
name known), in accordance with the NCTE (Recognition
B
Norms and Procedure), Regulations 2002.
OR
Senior Secondary (or its equivalent) with at least 50% marks
and 4 year Bachelor of Eleme1itary Education (B.El.Ed.)
C
OR
Senior Secondary (or its equivalent) with at least 50% marks
and 2 year Diploma in Education (Special Education)
AND
(b) Pass in the Teacher Eligibility Text (TET), to be conducted
by the appropriate Gover111nent i!I accordance with the
Guidelines framed by the NCTE for the purpose.
(ii) Classes VJ-Vil!
D
(a) B.AIB.Sc. and 2 year Diploma in Elementary Education
E
(by whatever name known)
OR
B.AIB.Sc. with at least 50% marks and 1 year Bachelor in
Education (B.Ed.)
OR
B.AIB.Sc. with at least 45% marks and 1 year Bachelor in
Education (B.Ed.), in accordance with the NCTE
(Recognition Norms and Procedure) Regulations issued from
F
time to time in this regard.
G
OR
Senior Secondary (or its equivalent) with at least 50% marks
and 4 year Bachelor in Elementary Education (B.El.Ed.)
OR
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Senior Secondary (or its equivalent) with at least 50% marks
and 4 year BAIR.Sc. Ed or B.A.Ed.IB.Sc. lid.
OR
B.A./B.Sc. with at least 50% marks and 1 year B.Ed. (Special
Education)
AND
(b) Pass in the Teacher Eligibility Text (TET), to be conducted
by the appropriate Government in accordance with the
Guidelinesframed by the NCTE for the purpose.
2. Diploma/Degree Course in Teacher Education:- For the
purposes of this Notification, a diploma/degree course in
teacher education recognized by the National Council for
Teacher Education (NCTE) only shall be considered.
However, in case of Diploma in Education (Special
Education) and B.Ed (Special Education), a course
recognized by the Rehabilitation Council of India (RC!) only
shall be considered.
3. Training to be undergone:- A person-(a) with B.AIB.Sc.
with at least 50% marks and B.Ed. qualification shall also
be eligible for appointment for class I to V upto I st January,
2012, provided he undergoes, after appointment, an NCTE
recognized 6 nz'onth special programme in Elementary
Education.
(b) with D.Ed. (Special Education) or B.Ed. (Special
Education) qualification shall undergo, after appointment,
an NCTE recognized 6 month special programme in
Elementary Education."
(iii) Extract from NCTE Regulations, 2001 laying down
qualifications for recruitment of teachers:-"
III. Elementary
(a) Primary
(i) Senior Secondary School certificate
of Intermediate or its equivalent; and
(ii) Diploma or certificate in basic
teachers training of a duration of not
less than two years. OR
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV &
443
ORS. ETC. [ADARSH KUMAR GOEL, J.]
Bachelor of Elementary Education
A
(B El Ed)
(b) Upper Primary
(Middle school
section)
(i) Senior Secondary School
certificate or Intermediate or its
equivalent; and
B
(ii) Diploma or certificate in elementary
teachers training of a duration of not
less than two yem:~.
OR
Bachelor of Elementary Education
(B El Ed) OR Graduate with Bachelor of
C
Education (B Ed) or its equivalent . . ,
(iv) AppeJ!dix-9 laying down norms and standards for
diploma in elementary education through open and distance
learning:-
-
D
v
"Preamble.-(i) The elementary teacher education
programme through Open and Distance Learning System is
intended primarily for upgrading the professional
competence of working teachers in the elementary schools
(primary and upper primary/middle). It also envisages E
bringing into its fold those teachers who have entered the
profession without formal teacher training.
(ii) The NCTE accepts open and distance learning (ODL)
system as a usefitl and viable mode for the training of
teachers presently serving in the elementary schools. This
F
mode is useful for providing additional education support
to the t~achers and several other .educational functionaries
working in the school system. "
(v) Letter of the Central Government 8'" November, 2010 for
relaxation of norms fixed by NCTE :
G
"3. In order to enable the Central Government to provide
relaxalion under-sub-section (2) of section 23 to a State, it'is
1:-'
,,
)
considered necessm:v to obtain relevant information from
the State Government relating to demand of teachers and
availability/ supply of qualified persons who are eligible for
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A
appointment as a teacher. Accordingly, a State Government,
which intends to seek relaxation under the said sub-section
would be required to make a request to the Central
Government by providing the following information:
(a) Quantitative information as per the format prescribed
B
in the Annexure to the Guideline.
c
D
E
F
G
(b) Nature of relaxation sought, separately for classes I to
V and VI to Vll!, along with just{fication;
(c) The time period for which relawtion is sought;
(d) The manner in which and the time period within which
the State Government would enable teachers, appointed
with relaxed qualification, to acquire the prescribed
qualification;
(e) The manner in which and the time period within which
the State Government would enable existing teachers, not
possessing the prescribed qualification, to acquire the
prescribed qualification. Reference in this regard is invited
to para 4 of the aforementioned Notification of the NCTE;
(f) Any other information the State Government may like
to furnish in support of its request for seeking relaxation
under section 23(2).
4. The condition of passing TETwill be relaxed by the Central
Government.
5. The Central Government will examine the request of the
State Government based on the proposal submitted by the
State Government and additional information which the
Central Government may request the State Government to
furnish, take a decision to issue ll[otification under section
23(2) of the Act.
On~v after the Notification is issued would
the State Government or a local authority or any aided/
unaided school in the State appoint teachers with the relaxed
qualification in accordance with terms and condition
mentioned in the said Notification."
(vi) Rule 5 of the 1981 Rules as amended on 30'h May, 2014 :
H
"5. Sources of recruitment-The mode of recruitment to the
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV &
445
ORS. ETC. [ADARSH KUMAR GOEL, J.]
various categories of posts mentioned below shall be as A
follows:
(a)
(i)
Mistresses of
Nursery School
(ii} Assistant Masters
and
Assistant
Mistresses of Junior
Basic Schools
By direct recruitment as provided
in rules 14 and 15;
By direct recruitment as provided
B
in rules 14 and 15;
or
By appointmeni of such Shiksha
Mitras as are engaged as Shiksha
Mitra and working as such on the
date of commencement of thiUttar Pradesh Basic Education
(Teachers)
(Nineteenth
Amendment) Rules, 2014. *
c
(vii) Amendment to Ruic 8 of the 1981 Rules in terms of the
Notification dated 30'h May, 2014 defining qualification for D
eligibility for appointment of a teacher:
(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 recognized by
the
Government
equivalent
thereto together with any other·
training course recognized by
the G_overnment as equivalent
thereto · together
with
the
training qualification consisting
of a Basic Teacher's Certificate
(BTC}, two years BTC (Urdu),
Vishisht
BTC and teacher
eligibility
test
passed,
conducted by the Government
or by the Government of India;
' (b) a Trainee Teacher who has
completed
successfully
six
months
special
training
programme
in
elementary
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education recognized by NCTE;
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(c)
A Shiksha Mitra
who
possessed Bachelors
degree
from a University established
by law in India or a degree
recognized by the Government
equivalent thereto
and has
completed
successfully
two
years distant learning BTC
course
or Basic · Teacher's
Certificate
(BTC),
Basic
Teacher's
Certificate
(BTC)
(Urdu)
or
Vashist
BTC
conducted by the State Council
of Educational Research and
training (SCERT).
(emphasis supplied)
(viii) Rule 14 (6)(a) of the 1981 Rules as amended on 30'h May,
2014 :
"14(6)(a) The Shiksha Mitra after obtaining the certificate
of successji.11 completion of two years distant BTC course or
Basic Teacher '.s Certificate (BTC), Basic Teachers
Certificate (BTC) (Urdu) or Vishisht BTC conducted by State
Council of Educational Research and Training (SCERT)
shall be appointed as assistant teachers in junior basic
schools against substantive post. To appoint the Shiksha
Mitras as assistant teachers in junior basic schools, the
appointing authority shall determine the number of vacancies
including the number of vacancies to be reserved for
candidates belonging to the Scheduled Castes, the Scheduled
Tribes, Other Backward Classes and other categories under
Rule 9."
(ix) Rule 16-A introduced into the U.P. RTE Rules, 2011 on
3011i May, 2014:
"16-A. Notwithstanding anything contained in rules 15 and
16, the State Government may, in order to implement the
provisions of the Act. by order make provisions for relaxation
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV &
447
ORS. ETC. [ADARSH KUMAR GOEL, J.]
of minimum educational qualification for appointment of A
such Shiksha Mitras as Assistant Teachers in Junior Basic
Schools as are considered otherwise eligible. "
(x)
Government Order dated 19111 June, 2014 :
"'2. In reference to the above subject I have been directed to
say that the permission for appointment of Shiksha Mitra '.5.
B
on the post of assistant teacher in primary schools by the
U.P. Basic Education Board is being given as follows:
I. Eligibility- those Shiksha Mitra who have been working
in Junior Basic Schools run by the U.P. Basic Education
Board prior to the framing of U.P. Right of Children to
C
Free and Compulsory Education Rules 2011.
2. Age- the minimum age limit will be sixty years for the
Shiksha Mitra s to be appointed on the post of Assitant
Teacher.
D
3. Educational Qualification- those Shiksha Mitras ·who
have graduation degree through a University established
under a law or its equivalent and also have passed B.TC.
two years course through ODL System under State Council
for Education, Research and Training, B. TC. (Urdu),
Special B.TC.
E
4. Selection ProcessA. Shiksha lvfitras who have passed B.TC. two years course
through ODL System under State Council for Education,
Research and Training, B.TC. (Urdu), Special B.TC. and
F
after obtaining its certificate they will be given substantive
appointment on the post of assistant teacher in junior basic
school run by the U.P. Basic Shiksha Parishad. In order
to give them the substantive appointment on the post of
assistant teacher in junior basic school run by the U.P.
Basic Shiksha Parishad, the appointing authorily will G
determine the number of vacancy and shall also consider
the grant of reservation to schedule caste, schedule tribe
and other backward classes as per rule 9 of the U.P. Basic
(Teacher) Service Rules, 1981.
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B. The appointing authority shall prepare a list under Rule
9(2)(c) of those shikshamitras who are eligible for
appointment:
C. The list which has been prepared for appointment on
the post of assistant teacher for junior basic shoot shat/he
arrange din the ascending order of the Date of Birth
meaning a candidate who is elder in age will he placed
higher.
If the date of birth of two Shiksha Mitras is common then
their name shall be arranged in accordance with
alphabetical order (English)
D.