RAM KUMAR PATEL & ORS. ETC.versusSTATE OF U.P. & ORS. ETC.

                            [2017] 6 S.C.R. 430


A                   RAM KUMAR PATEL & ORS. ETC.
                                   v.
                     STATE OF U.P. & ORS. ETC.
                      (Civil Appeal No. 9546 of2017)
B
                              JULY25,2017
    [ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.)
    Uttar Pradesh Basic Education (Teachers) Service Rules, 1981:
C         Amendment of l 981 Rules - By Uttar Pradesh Basic
  Education (Teachers) Service (161h Amendment) Rules, 2012 -
  Propriety of - High Court quashed the 20 l 2 amendment on the
  ground that the amendment by the State was in conflict with the
  Notification dated l l'h February, 201 l issued by the Central
  Government - On appeal, held: There is no conflict in the
D Notification issued by the Central Government and the amendment
  to the Sta_te Rules since weightage to the Teachers Eligibility Test
  marks in the process of appointment of teachers, was not mandatory
  and was merely a guideline - Therefore, State Rule cannot be held
  to be void on the ground of repugnancy - Appeals allowed -
E Constitution of India - Schedule VII, List III, Entry 25.
          Shiv Kumar Pathak v. State of U.P. 2017 (7) JT 352 :
          2017 (8) SCALE 202 - relied on.
          Prabhakar Singh v. State of U.P. (2013) 1 ADJ 651 -
          approved.
F
          Shiv Kumar Sharma v. State of U.P. (2013) 6 ADJ 310
          - referred to.
                          Case Law Reference

G         2017 (7) JT 352          relied on             Para2
          (2013) 1 ADJ 651         approved              Para7
          (2013) 6 ADJ 310         referred to           Para 7


H

                                 430
   RAM KUMAR PATEL & ORS.               v. STATE OF U.P. & ORS.               431


          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9546                 A
of2017.
       From the Judgment and Order dated 04.07.2016 of the High
Court of Judicature at Allahabad in Writ-A No. 26952of2016
                                 WITH
                                                                              B
        Civil Appeal Nos. 9547, 9548, 9549, 9551, 9550, 9706, 9710,
9554, 9715, 9716, 9718; 9719 and 9720 of2017
       · Writ Petition (Civil) Nos. 900 and 107 of2016
          Writ Petition (Civil) No. 167 of2015.
          Ajay Kumar Mishra, Sr.Adv.(AAG,UP), R. S. Suri, K.T.S. Tulsi,       c
Salman Khurshid, Dinesh Dwivedi, Colin Gonsalves, V. Shekhar, Nidesh
Gupta, Mahabir Singh, Ms. Meenakshi Arora, Pallav Sisodia,
R. Venkataramani, Ranji Thomas, Nagendra Rai, Rakesh Khanna,
Sr. Advs., R. K. Singh, Kumar Gaurav, B.N. Dubey, Ms. Neeraj Singh,
Tom Joseph, Ms. PriyankaAggarwal, Rameshwar Prasad Goyal, Nishant             D
Singh, Krishnan Mishra, Yasharth Kant, V. K. Mishra, Ms. Radhika
Dwivedi, Ms. Lubna Naaz, Ms. Kunika, Ms. Tehsina Wasim,
Ms. Sanchita, Kundan Kumar Lal, Ms. Robin Khokhar, P. Dayal,
Sajith P., Swarupama Chaturvedi, Pradeep Kumar Dwivedi, Ms. Madhu
Bala, Pradeep Kr. Tiwari, Pyush Pandey, Dr. Vi nod Kumar Tewari, Dr.
B.K. Jauhari, Ms. Purnima Jauhari, Deepak Anand, Ms. Parul Shukla,            E
Udayaditya Banerjee, Ms. Anannya Ghosh, E.C. Agrawala, Dheeraj
Dubey, Mrs. Shally Bhasin, Manoj K. Mishra, Umesh Dubey, Ms. Nazish
Fatima, Nachiketa Joshi, Sandeep Kumar Dwivedi, Vivek Tewari, Pankaj
Singh, Anupam Dwivedi, Satyam Pandey, Amit Pawan, Dhananjay Garg,
Pratham Kant, Nirmal Singh B. Sanjay Singh, Raj Kishor Chaudhary,
                                                                              F
Anuvrat Sharma, Ms. Alka Singh, M. R. Shamshad, Ms. Asha Gopalan
Nair, Ms. Nivedita Nair, Pitamber Dutt Nautiyal, Sanoth Rebello, Rakesh
Mishra, Yashraj Singh Bundela, Rakesh Mishra, Prashant Shukla,
T.D. Bhaskar, Satyajeet Kumar, Dinesh Kr. Tiwari, Mrs. Rajmala Dohare,
Ra1111esh Thakur, Swami Nath, Bishnu Prasad Tiwari, Sal'ttosh Kr. Tripathi,         •
Amit Pawan, Abhishek Asmritanshu, Anand Nandan, Akshat Srivastav,             G
Gaurav Singh, Hassan Zubhair Waris, Akshay Sinha, Suryodaya Prakash
Tiwari, Rahul Kumar Tripathi, Harish Pandey, Rakesh Mishra,
Ankit Mishra, Sujeet Kumar, P. Gautam, Ms. Reena Patel, Mehul M.
Gupta, R. P.Gupta, Anupam Mishra, Shashank Mishra, Ms. Dwarka
Sawale, Ms. Manju Jetley, Advs. for the appearing parties.
                                                                              H
432            SUPREME COURT REPORTS                          [2017] 6 S.C.R.


A            The Judgment of the Court was delivered by
               ADARSH KUMAR GOEL, J. I. Leave granted. This batch
      of appeals has arisen from the judgment dated I" December, 2016 of
      the High Court of Judicature at Allahabad in Special Appeal No.657 of
      2015 1 and batch of the High Court ofJudicature at Allahabad. The High
.B    Court has quashed the U.P. Basic Education (Teachers) Service (I 61h
      Amendment) Rules, 2012 on the ground that the said amendment was
      in conflict with the Notification dated 11 •h February, 2011 issued by the
      National Council of Teachers Education (NCTE).
               2. It is not necessary to discuss the issue in detail as in the
 c    impugned judgment the High Court has followed its earlier judgment in
      Shiv Kumar Pathak v. State of U.P. 2 wherein the issue of validity of
       I 51h Amendment to the same rule was considered on the same ground.
      The said issue has been gone into by this Court in a separate judgment in
      Civil Appeal Nos. 4347-4375 of 2014 entitled State of U.P. and ors.
      versus Shiv Kumar Pathak and Ors. The High Court in the impugned
 D    judgment observed:
                       " ......... During the course ofsubmissions advanced
                by the rival parties before us, we noted that the issues
                which were being canvassed were in fact identical and
                similar to those framed by the Supreme Court especially
.E              issues such as whether the guidelines framed by the NCTE
                were valid, could they form the sole criteria for filling
                vacancies and if held to be intra vires what interpretation
                is liable to be rendered to the word "weightage." in
                paragraph 9(b) of the Guidelines dated JJ1h February,
 F              20ll. Upon this being pointed out, the majority of the
                learned counsels for the parties urged us to proceed to
                dispose of this batch of matters so as to enable them to
                take their matters also to the Supreme Court and raise all
                contentions so that a quietus to the entire controversy is
                ultimately rendered. We accordingly proceeded to hear
 G              theparties on merits and consequently note the submissions
                advanced hereinafter. ... ... ...
                       We find no ground which may warrant taking a
                different view. Following the dictum laid down in Shiv
      ------
      12017(1)ADJ 141, 2017(1)ALJ 445
.H    '2013(1) ADJ 21
RAM KUMAR PATEL & ORS. v. STATE OF U.P. & ORS.                 433
         [ADARSH KUMAR GOEL, J.]

    Kumar Sharma by the Full Bench as reiterated in Shiv A
    Kumar Pathak, we uphold the guidelines and hold that
    they are not liable to be struck down on the grounds urged
    before us . ........ .
           As discussed in the earlier part of this judgment, the
     l61h Amendment Rules which came into force with effect B
    from 41h December, 2012 did not remedy the situation. Rule
     14(3) (a) which came to be introduced provided that the
    names of candidates would be arranged in accordance
    with quality points specified in Appendix-I. Appendix-I,
    as noted above, did not have any independent existence.
    It was introduced only by 151h Amendment Rules. Once the c
    Division Bench had struck down Rule 14(3) as introduced
    by the J51h Amendment Rules in Shiv Kumar Pathak, it
    cannot be said that the Appendix which came to be
     introduced by the said provisions continued to exist or
     remained on the statute book. The Appendix to the original D
     1981 Rules as has been noted by us earlier had only a
     limited application. The J61h Amendment Rules therefore
     were clearly otiose and unworkable.
           We are constrained to hold so in light of the settled
    principle that when a statutory provision is struck down, E
    the effect of such a judicial declaration is that it will be
    deemed to have never existed. The declaration in Shiv
    Kumar Pathak had the effect of erasing Rule 14(3) as
    introduced by the J 51h Amendment Rules along with the
    Appendix introduced therein which also stood completely
    erased and effaced. We are constrained to record this F
    conclusion in light of the undisputed factual position that
    the insertion of Rule 14(3) by the J51h Amendment Rules
    led to a situation where original Rule 14 was completely
    substituted and consequently ceased to exist. The
    subsequent striking down of the amending rules will not G
    revive the provisions as they stood earlier either at the
    time of promulgation of the 12'h or the 15'h Amendment
    Rules. Presently therefore as the enactment exists there is
    no revival of the Appendix or Rule 14 as it stood prior to
    the promulgation of the 12'h Amendment Rules. We are
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434             SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A               therefore of the considered opinion that the l 61h Amendment
                Rules must necessarily fall. "
              3. Accordingly, we may deal with the matter very briefly. The
      Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (1981
      Rules) have been framed under Section 19 ofU.P. Basic Education Act,
B     1972 (1972 Act). Basic education in the State of Uttar Pradesh is
      regulated by the 1972 Act. Section 19 of the 1972 Act, provides for
      rules to determine the qualification for appointment as teachers and
      conditions of service of teachers of basic schools.
               4. Rule 8 of the 1981 Rules prescribes the academic qualification
 c    for appointment of a teacher. The qualification prescribed is the bachelor's
      degree together with the training qualification i.e. Basic Teacher's
      Certificate (BTC), Hindustani Teacher's Certificate, Junior Teachers'
      Certificate, Certificate ofTeaching or any other training course recognized
      by the Government as equivalent thereto. Rule 14 lays down the manner
      of appointment.
D
               5.The 1981 Rules were amended in 2011 by the
      12'h Amendment. Prior to the amendment, there was a provision for
      quality points under Rule 14(4) as follows:
                 "(4) The names of candidates in the list prepared under
 E               sub-rule (2) shall then be arranged in such manner that
                 the candidates who have passed the required training
                 course earlier in point of time shall be placed higher than
                 those who have passed the said training course later and
                 the candidates who .h(lve passed the training course in a -
                 particular years shall be arranged in accordance with
 F               the quality points specified in the appendix. "
               6. The Right of Children to Free and Compulsory Education
      Act, 2009 (RTE Act), enacted in the wake of Eighty Sixth Amendment
      to the Constitution in the year 2002, regulates elementary education and
      also deals with the qualification for appointment of teachers under Section
 G    23 of the RTE Act. NCTE constituted under the National Council for
      Teachers' Education Act, 1993 (NCTE Act) has been prescribed as an
      'academic authority' by the Central Government to lay down the minimum
      qualification prescribed for appointment of a teacher. Accordingly,
      Notification dated 23n1 August, 2010 has been issued by the NCTE laying
 H    down such qualification. Teacher Eligibility Test (TET) is the essential
   RAM KUMAR PATEL & ORS. v. STATE OF U.P. & ORS.                           435
            [ADARSH KUMAR GOEL, J.]

qualification prescribed under the said Notification. However, the          A
guidelines/ Notification dated 11 'h February, 2011 provided that in the
process of appointment of teachers, weightage has to be given to the
marks obtained in TET examination.
         7. As already noted, the State ofUttar Pradesh amended 1981
Rules by 12"' Amendment. This was done to comply with the Notification B
dated 11 'h February, 2011. However, subsequently there was further
amendment. Some of which were challenged before the High Court on
the ground of being repugnant to the Central Rule/Notification dated
11 'h February, 2011. Conflicting views were taken in the judgments of
the Allahabad High Court. In Prabhakar Singh versus State of U.P. 3 C
it was held that weightage to the TET marks laid down in Notification
dated l l'h February, 2011 was not mandatory. The said judgment was
doubted and the matter was referred to a Full Bench. The Full Bench in
Shiv Kumar Sharma versus State of U.P. 4 held a different view. It
was held that by virtue of power of the Central Government on a subject
in Concurrent List, in case ofrepugnancy, the State rule was required to D
comply with the disposition in a central legislation. Same view was
taken in Shiv Kumar Pathak (supra). Therein, Fifteenth Amendment
to the Rules was held to be in conflict with the NCTE Notification dated
11"' February, 2011. On the same reasoning, the impugned judgment
has struck down the Sixteenth Amendment.
                                                                         E
         8. We have heard learned counsel for the parties.

         9. Learned counsel for the State ofU.P. submitted that there
was no conflict in the notifications issued by the NCTE and the amendment
in the State Rules. It was submitted that the jurisdiction of the NCTE
under Section 23(1) was limited to laying down of qualification as a        F
condition for appointment and the power conferred under the said section
did not stipulate regulation of the selection process.

         10. The NCTE has taken a stand that its notification suggesting
weightage to TET marks was not mandatory. The original writ petitioners     G
however support the impugned judgment by submitting that since the
issue is covered by Entry 25 List III of the Seventh Schedule to the
Constitution, any standard laid down by the Central Government will
bind the State and any conflicting decision of the State will be
unconstitutional.
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436             SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A              11. We find that there is no conflict in the notification issued by
      the Central Government and the amendment to the State Rules since
      the Notification dated 11 'h February, 2011 to the extent of suggesting
      weightage to TET marks can be held to be merely a guideline.
             12. We have already dealt with the matter in Civil Appeal Nos.
B     4347-4375 of2014 entitled State of U.P. and ors. versus Shiv Kumar
      Pathak and Ors. and held that weightage to the TET marks was not
      mandatory and the State rules, not being in conflict with the norms laid
      down by the NCTE, may not be held to be void on the ground of
      repugnancy.
 c           13. Accordingly, we allow these appeals and set aside the
      impugned judgment. The State is at liberty to proceed with the matter in
      accordance with law.


      Kalpana K. Tripathy                                          Appeals allowed