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प्रतिलिपि

1 1 Reserved Case :- SPECIAL APPEAL No of 2019 Appellant :- Raghvendra Pratap Singh And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.And Ors. Counsel for Appellant :- Amrendra Nath Tripathi,Durga Prasad Shukla Counsel for Respondent :- C.S.C.,Abhisar Dev,Agnihotri Kumar Tripathi,Ajay Kumar,Ajit Shukla,Amit Kr. Singh Bhadauriya,Anand Nandan,Ashutosh,Atul Yadav,H N 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 connected with (1) Case :- SPECIAL APPEAL No of 2019 Appellant :- Sarvesh Singh And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.And Ors. Counsel for Appellant :- Durga Prasad Shukla Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Meenakshi Singh Parihar,Pankaj Verma,Rahul Kumar Singh (2) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Pankaj Kumar And Ors. Respondent :- Mohd. Rizwan And Ors. Counsel for Appellant :- Gantavya,Meha Rashmi Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (3) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Jai Singh Yadav And Ors. Respondent :- Mohd. Rizwan And Ors. Counsel for Appellant :- Gantavya,Meha Rashmi Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (4) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Vinay Kumar Verma And Ors. Respondent :- Mohd. Rizwan And Ors. Counsel for Appellant :- Gantavya,Meha Rashmi

2 Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (5) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Amit Kumar And Ors.(4) Respondent :- Mohd. Rizwan And Ors. Counsel for Appellant :- Gantavya,Meha Rashmi Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (6) Case :- SPECIAL APPEAL DEFECTIVE No of Appellant :- Vijay Pratap Yadav And Ors.(4) Respondent :- Mohd. Rizwan And Ors. Counsel for Appellant :- Gantavya,Meha Rashmi(4) Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Ku(4)mar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (7) Case :- SPECIAL APPEAL No of 2019 Appellant :- Indra Pratap Yadav And Ors.(4) Respondent :- The State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.& Ors Counsel for Appellant :- Rajeev Narayan Pandey,Vaibhav Srivastava Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (8) Case :- SPECIAL APPEAL No of 2019 Appellant :- Vinay Kumar Singh And Ors. Respondent :- Mohd.Rizwan And Ors. Counsel for Appellant :- Gaurav Mehrotra,Ishita Yadu Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Avdhesh Shukla,Himanshu Raghave,Lal Bahadur Singh,Laltaprasad Misra,Onkar Singh,Rahul Kumar Singh (9) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Akhilesh Kumar Shukla And Ors. Respondent :- Mohd. Rizwan And Ors. Counsel for Appellant :- Gantavya,Meha Rashmi Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (10) Case :- SPECIAL APPEAL No of 2019 Appellant :- Ganesh Kumar And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Educatin)Lko.And Ors. Counsel for Appellant :- Vidya Bhushan Pandey,Alok Kumar Vishwakarma,Girish Chandra Verma Counsel for Respondent :- C.S.C.,Ajay Kumar,Vinay Misra

3 (11) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Manish Kumar And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Educatin)Lko.And Ors. Counsel for Appellant :- Anjani Kumar Srivastava,Anand Awasthi,Sarvesh Kumar Saxena(4) Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr.Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (12) Case :- SPECIAL APPEAL DEFECTIVE No of Appellant :- Gyan Singh Yadav And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Educatin)Lko.And Ors. Counsel for Appellant :- Sameer Kalia,Srideep Chatterjee Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr.Singh Bhadauriya,Ashutosh,Avadhesh Shukla,Avdhesh Shukla,Lal Bahadur Singh,Pankaj Verma,Pramod Kumar Verma,Rahul Kumar Singh,Vishal Kumar Yadav (13) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Vikas Shukla And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.& Ors. Counsel for Appellant :- Vikas Singh,Mahendra Pratap Singh Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (14) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Ashish Kumar Singh And Ors. Respondent :- Mohd.Rizwan And Ors. Counsel for Appellant :- Rajendra Singh Chauhan,Deepak Singh Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (15) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Virendra Pratap And Ors. Respondent :- Mohd. Rizwan And Ors. Counsel for Appellant :- Gantavya,Meha Rashmi Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (16) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- State Of U.P. Thru. Addl. Chief Secy. Basic Education & Ors. Respondent :- Mohd. Rizwan & Ors. Counsel for Appellant :- C.S.C.,Lal Bahadur Singh Counsel for Respondent :- Amit Kr. Singh Bhadauriya,Abhisar

4 Dev,Aditya Vikram Singh,Ashutosh,Dinesh Kumar,Himanshu Raghave,Ishwar Lal Chaudhary,Nagendra Kumar Mishra,Nand Kishore Patel,Onkar Singh Kushttps:// :10443/elegalix/Login.dohwaha,Pankaj Verma,Rahul Kumar Singh,Rajeiu Kumar Tripathi,Rajesh Kumar Verma,Rajeshwar,Sanjay Kumar,Shailesh Tripathi (17) Case :- SPECIAL APPEAL DEFECTIVE No of Appellant :- Atul Kumar Bajpai & Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Ors. Counsel for Appellant :- Amrendra Nath Tripathi,Durga Prasad Shukla Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (18) Case :- SPECIAL APPEAL No of 2019 Appellant :- Rama Pati & Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Ors. Counsel for Appellant :- O.P. Tiwari Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (19) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Sagar & Ors. Respondent :- Mohd. Rizwan & Ors. Counsel for Appellant :- Prakarsh Pandey,Ankut Dixit,Pradeep Kumar Rai Counsel for Respondent :- C.S.C.,Abhisar Dev,Ajay Kumar,Amit Kr. Singh Bhadauriya,Lal Bahadur Singh,Rahul Kumar Singh (20) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Amit Kumar Dubey & Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Ors. Counsel for Appellant :- Arunendra Nath Mishra Counsel for Respondent :- C.S.C.,Ajay Kumar (21) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Ashok Kumar And Ors. Respondent :- State Of U.P.Throu.Addl.Secy.Basic Education Lko.And Ors. Counsel for Appellant :- Onkar Singh Kushwaha,Pratima Singh,Surya Bhan Singh,Sushil Kumar Singh Counsel for Respondent :- C.S.C.,Ajay Kumar (22) Case :- SPECIAL APPEAL DEFECTIVE No of 2019 Appellant :- Akhilesh Yadav And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.(Basic Education) Lko.&

5 Ors. Counsel for Appellant :- Arunendra Nath Mishra Counsel for Respondent :- C.S.C.,Ajay Kumar (23) Case :- SPECIAL APPEAL DEFECTIVE No of Appellant :- Gaurav Pandey Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. Lko. & Ors. Counsel for Appellant :- Srideep Chatterjee,Sameer Kalia Counsel for Respondent :- C.S.C.,Ajay Kumar,Amit Kr. Singh Bhadauria (24) Case :- SPECIAL APPEAL DEFECTIVE No of 2020 Appellant :- Shri Prakash Mishra Respondent :- State Of U.P. Through Prin. Secy. Basic Education & Others Counsel for Appellant :- Ram Bali Tiwari,Rakesh Kumar Modanwal Counsel for Respondent :- C.S.C.,Ajay Kumar,Amit Kr. Singh Bhadoriya Hon'ble Pankaj Kumar Jaiswal,J. Hon'ble Karunesh Singh Pawar,J. (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 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

6 6 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 (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 passed in Writ Petition No.1188 (SS) of 2019 and other connected matters filed by Shiksha Mitras challenging the Government Order dated , by which the State Government has fixed the qualifying marks of Assistant Teacher Recruitment Examination 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 (SS) of 2019). (4) The reliefs sought in the aforesaid writ petitions were: (a) A writ of Certiorari quashing the Government Order dated ; and (b) A writ of mandamus directing the Secretary, Examination Regulatory Authority to declare the result of the ATRE for 69,000 vacancies in terms of the Government Order dated (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 ) to 60-65% for ATRE 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/

7 7 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 , i.e., a day after holding the ATRE examination on (6) The learned Writ Court allowed the writ petitions and quashed the Government Order dated fixing the minimum qualifying marks for 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 and also notification/advertisement dated , ignoring the Government Order dated , in the same manner as the earlier result of Assistant Teacher Recruitment Examination 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 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 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

8 8 practical experience which is an integral part of merit Accordingly, a writ in the nature of certiorari is issued quashing the Government Order dated 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 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 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 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

9 9 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 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

10 10 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 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."

11 11 (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 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.

12 12 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 authorizing the NCTE as the 'Academic Authority' to lay down minimum qualification for a person to be eligible for appointment as a Teacher. On , by 86 th 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 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 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 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

13 13 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 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

14 14 Shiksha Parishad; 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

15 15 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 Name of Examination/ Degree Quality Points 1. High School Percentage of marks in the examination x Intermediate Percentage of marks in the examination x Graduation Degree Percentage of marks in the examination x B.T.C. Training Percentage of marks in the examination x Assistant Teacher Recruitment Examination 6. Weightage Teaching experience as shiksha mitra or an teacher working as such in junior basic shools run by Basic Shiksha Parishad Percentage of marks in the examination x marks per completed teaching year, upto maximum 25 marks, whichever is less.

16 16 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 Twenty-Second 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,

17 17 conducted by the 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 Twenty-Second 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 sub-rule (1) of rule 14 and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment. (3)(a). The names of candidates in the list prepared under sub-rule (2) in accordance with clause (a) of sub-rule (1) of rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points and 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 sub-rule (2) in accordance with clause (a) of sub-rule (1) of rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points and weightage as specified in the appendix-i: Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher: 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

18 18 Examination conducted by the Government after July 25, (b). The names of candidates in the list prepared under subrule (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 (b) The names of candidates in the list prepared under subrule (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. 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

19 19 requirement of passing of the Assistant Teacher Recruitment 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 examination were issued on 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 for ATRE 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 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

20 20 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 were carried out under the Twenty-second 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 , which was conducted by the State of U.P. on , 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 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

21 21 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

22 22 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. Sub-rule (3) then proceeds to prescribe that the name of candidates shall be arranged in accordance with the quality points and weightage as specified in Appendix-I. Clause 5 of the Appendix-I provides for the manner in which quality point marks are to be computed with respect to marks obtained in the Assistant Teacher Recruitment Examination. There is thus an unambiguous command enshrined in sub rules (1) and (2) read with the Appendix-I of a candidate passing the Assistant Teacher Recruitment Examination. These provisions, significantly, do not prescribe or envisage the conferral of weightage to the marks obtained in the said examination. The Appendix-I and more particularly Clause 5 thereof, provides for the computation of quality points based upon the marks obtained by an applicant in the Assistant Teacher Recruitment Examination. As is evident from Clause 6 of the Appendix-I the weightage of 2.5 marks subject to a maximum of 25 marks is confined to every completed year of teaching. Weightage is not provisioned for in Clause 5 which deals with the computation of quality points with regard to the Assistant Teacher Recruitment Examination. The Appendix-I in unambiguous terms provides for a weightage of 2.5 marks subject to a maximum of 25 only in respect of every completed year of teaching. Significantly although the second proviso to sub rule (3) was introduced by way of the Twenty-Second Amendment on 15 March 2018, the Appendix-I as amended by the Twentieth Amendment was not touched. This clearly seems to suggest that the rule making authority had no intention of amending or modifying the manner in which quality point marks were to be computed. Neither Clause 5 nor Clause 6 of the

23 23 Appendix-I were varied. They continue to link the grant of weightage solely to every completed year of teaching. Similarly, Clause 5 continues to maintain the formula for computation of quality point marks as it is without providing for any addition or weightage being provided at this stage." "Both sub-rules (1) and (2) of Rule 14 unequivocally mandate that a candidate desirous of appointment as an Assistant Teacher must have passed the Assistant Teacher Recruitment Examination. Rule 14 (3)(a) then proceeds to prescribe that the names of candidates prepared under Rule 14 (2) is to be arranged in accordance with quality points and weightage as specified in Appendix-I. Appendix-I as noticed above restricts the application of weightage to every completed teaching year. Neither sub rules (2) and (3) nor the Appendix-I contemplate weightage being accorded at the time of computing quality points with respect to the Assistant Teacher Recruitment Examination or at the time of declaration of results of the said exam. This subject is dealt with exclusively by clause 5 of Appendix-I. This particular clause, as noticed above, has remained unaltered and untouched by the Twenty-Second Amendment. Even this clause does not prescribe a weightage being accorded to the marks obtained in the examination in question. The subject of weightage is considered principally by Clause 6. It is also signifiant to note that Clause 6 restricts the application of weightage to every completed teaching year alone. This particular Clause was also neither visited nor touched by the Twenty- Second Amendment. Viewed in the above backdrop, we are of the considered view that weightage was not contemplated to be added to the marks obtained by a person in the Assistant Teacher Recruitment Examination. Following the principle of identifying the hierarchy of provisions as enunciated by the Supreme Court, we find that sub-rules (2) and (3) of Rule 14 are the principal provisions. The prescription and requirements placed by these two provisions must be recognised to be the fundamental pedestal which must be achieved by any candidate seeking appointment as an Assistant Teacher. The second proviso to Rule

24 24 14 (3) must, therefore, be interpreted so as to fall in line and in tune with sub-rules (2) and (3). This would also flow from the language of the second proviso itself, which principally deals with the subject of grant of weightage in respect of recruitment to the post of Assistant Teacher. Subrule (4) of Rule 14 is also of no less significance. This provision in unambiguous terms prescribes that no person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2). Sub-rule (4) expressed in negative terms clearly operates as a statutory injunction against the appointment of any person unless he or she finds place in the list prepared in accordance with Rule 14 (2). Sub-rule (2) of Rule 14, as we have held above, clearly requires all persons to pass the Assistant Teacher Recruitment Examination. This sub rule does not contemplate the grant of weightage at the stage of preparation of the result of the Assistant Teacher Recruitment Examination. We have also recognised sub-rules (1), (2) and (3) of Rule 14 as well as Appendix-I to be the principal provisions. On a conjoint reading of these provisions, it is manifest that weightage is not liable to be accorded at the stage of computation of marks obtained by a candidate in the Assistant Teacher Recruitment Examination. At the cost of repetition, we may only reiterate that the observation of the Supreme Court in Anand Kumar Yadav with respect to the grant of weightage also stood confined to the experience gained by a Shiksha Mitra. This observation stands embedded in the statute with Appendix-I prescribing weightage being accorded for every completed year of teaching." (31) After conducting first ATRE on , the State Government by a Government Order dated has issued an order directing the concerned authorities to prepare the list as per minimum marks provided in clause 7 (1) and 7 (2) of the Government Order dated Result of first Assistant Teacher Recruitment Examination 2018 was declared on in which 41,556 candidates were declared 'pass'. Pursuant to the result of revaluation being declared 4500 and odd candidates were also declared 'pass'.

25 25 (32) The State Government vide Government Order dated issued statutory guidelines and applications were invited for conducting second Assistant Teacher Recruitment Examination 2019 (In short, it is referred to as 'ATRE ') for filling up of 69,000 posts of Assistant Teachers and its advertisement was issued on wherein the date of examination was fixed as Clauses 1 (kha), 4 (2), 7 (2) and 17 (10) are relevant which read as under:- 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 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 4 (2) jk"vz`h; v/;kid fjk{kk ifj"kn] ubz fnyyh }kjk U;wure vgzrk d{kk 1 ls 5 ds lecu/k esa fuxzr vf/klwpuk fnukad ] ] ] (,isafmdl &2 dh izlrkouk 1-2 esa mfyyf[kr) rfkk fnukad easa fu/kkzfjr vgzrk/kkjh lgk;d v/;kid HkRrhZ ijh{kk 2019 esa vkosnu djus ds fy, ik= gksaxsa A 7 (2) lgk;d v/;kid HkrhZ ijh{kk mrrh.kz djuk fdlh O;fDr dks HkrhZ@jkstxkkj ds fy, vf/kdkj ugh gksxk D;ksafd ;g fu;qfdr ds fy, dsoy ekun.mksa esa ls,d gs A 17 (10) ;fn fdlh vh;fkhz dks lgk;d v/;kid HkrhZ ijh{kk esa csbus dh vuqefr ns nh xbz gs rks bldk ;g vfkz ugha fy;k tk;sxk fd vh;fkhz dh ik=rk izekf.kr gks xbz gs] blls vh;fkhz dks fu;qfdr ds fy, dksbz vf/kdkj ugh feyrk gs A ik=rk lacksf/kr HkrhZ@fu;ksDrk izkf/kdkjh }kjk vafre :i ls izekf.kr dh tk,xh A vh;fkhz dks vkosnu djus ls igys viuh ;ksx;rk ls iw.kzr% larqf"v gkusk pkfg, vksj ;fn ;g fn, x, ;ksx;rk ekin.m ds vuqlkj vkosnu ds fy, ;ksx; ugh gs rks os vkosnu u djasa vksj fqj Hkh vkosnu djrsgs rks blds fy, vh;fkhz Lo;a fteesnkj gksxk A (33) The second ARTE 2019 was conducted on In the said

26 26 examination no minimum cut-off marks was fixed for Assistant Teacher Recruitment Examination and the examination was conducted on without any such fixation of minimum qualifying marks. After the guideline dated was published in which the cut-off marks were not published, Writ Petition No of 2018 was filed before this Court calling for fixation of cut off marks of ATRE 2019 and the State Government had proceeded with expedition to secure punctilious compliance with orders issued by this Court therein fixing the cut off marks after taking relevant factors into consideration vide Government Order dated in exercise of powers conferred under the 1972 Act and Rule 2(1) (x) of the 1981 Rules in accordance with the procedure prescribed upon, which the said writ petition was dismissed as having become infructuous, fixing minimum 65% for general category and 60% for reserve category. The said Government Order dated has been assailed by the Shiksha Mitras by filing writ petitions on various grounds. (34) Learned counsel for the writ petitioners proposed five issues for consideration before the learned Writ Court which read as under:- "I. Whether the impugned Government Order makes an unreasonable classification by giving different treatment to two groups of identically situated persons appearing in two consecutive examinations? II. Whether there are valid reason and justification for drastically increasing minimum qualifying marks and whether it has any nexus with the object sought to be achieved. III. Whether the issuance of impugned Government Order nullifying the beneficial direction of the Hon'ble Apex Court's judgment is permissible in law? IV. Whether practical working experience is an integral part of merit and whether special provision regarding weightage added in the statute can be nullified by general provisions of