Supreme Court of India
STATE OF U.P. & ANR. ETC.versusANAND KUMAR YADAV & ORS. ETC.
- Citation
- 2017 INSC 668
- Decided
- 25 July 2017
- Disposal
- Disposed off
- Bench
- ADARSH KUMAR GOEL
Holding
Appointments of Shiksha Mitras as Assistant Teachers without the statutory qualifications prescribed under Section 23 of the RTE Act are ultra vires and cannot be regularised, as the right to education entails the right to quality education by duly qualified teachers.
Summary
The Supreme Court examined the Uttar Pradesh government's scheme of appointing 1.78 lakh "Shiksha Mitras" on a contractual basis and later attempting to regularise them as Assistant Teachers without meeting the statutory qualifications prescribed under the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) and the National Council for Teacher Education (NCTE) regulations. The Court held that the fundamental right to education includes the right to quality education, which requires duly qualified teachers, and that the State cannot relax the minimum qualifications mandated by Section 23(1) of the RTE Act. It found that the Shiksha Mitras were never appointed as teachers under the applicable qualifications and therefore could not be regularised as teachers, rendering the State's amendments and executive orders ultra vires. While the Court rejected the regularisation, it allowed the Shiksha Mitras to be considered for future recruitment if they acquire the requisite qualifications, with possible age and experience relaxations. Consequently, the appeals were dismissed and the writ petitions were disposed.
Issues considered
- Whether the appointment and subsequent absorption of Shiksha Mitras as Assistant Teachers without meeting the statutory qualifications under Section 23 of the RTE Act is constitutionally valid.
- Whether the State of Uttar Pradesh has the power to relax the minimum educational qualifications for teachers under the RTE Act.
- Whether the Shiksha Mitras, appointed on a contractual basis, can be regularised as teachers in violation of the statutory qualification requirements.
- Whether the fundamental right to free and compulsory education includes a right to quality education delivered by qualified teachers.
Legislation cited
Subjects
Right to EducationQuality EducationTeacher QualificationSection 23 RTE ActShiksha MitraUltra ViresPublic Employment EqualityArticle 14Article 16Article 142NCTEUttar Pradesh Education Rules
Judgment
[2017] 10 S.C.R. 428
A STATE OF U.P. & ANR. ETC.
v.
ANAND KUMAR YADAV & ORS. ETC.
(Civil Appeal No. 9529 of 2017 etc.)
B 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.
Disposing of the appeals and Writ Petitions, the Court
G
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]
B
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.
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-F-
G] .
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]
State of Karnataka v. Uma Devi (2006) 4 SCC 1 :
c [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.
D 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
E 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 :
F [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
G 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
H
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 _
B
(1991] 1 Suppl. SCR 251 referred to Para 12
[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
D
(2010) 9 SCR 543 referred to Para 12
(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, A
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
B
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 c
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,
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, E
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,
F
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, G
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,
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, Sanjay 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, Sanjay 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 12 1h
September, 2015 in Writ Appeal No. 34833 of 2015 and connected1
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 E
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 F
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. "
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"1August, 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 IO'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.
G
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.
H
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(Para-
Teacher). 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;
D
(iii) The educational qualifications. wo.u/d be of the
intermediate level;
(iv) The unit ofselection would be the village where the school
is situated and in the event that a qualified candidate was
not available in the village, the unit could be extended to 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.
438 SUPREME COURT REPORTS [2017] 10 S.C.R.
A 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
23(2) subject to certain conditions for the period upto 31" March, 2014.
c 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
D 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
E educational qualifications for appointment ofAssistant 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
F 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.
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
H
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: B
(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.
(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 F
5. Significant provisions/ notifications to which reference is
necessary are as follows :
(i) Section 23 of the RTE Act
· ''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.
H
440 SUPREME COURT REPORTS [2017] 10 S.C.R.
A (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 sub-
section (1) are not available in sufficient numbers, the
Central Government may, if it deems necessary, by
not(fication, relax the minimum qualifications required for
B
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 sub-
section (1), shall acquire such minimum qualifications within
c 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
D 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
E
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,
F 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
G
of this notiflcation:-
1. Minimum Qualifications:-
(i) CLASSES 1-V
(a) Senior Secondwy (or its equivalent) with at least 50%
H
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
D
(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!
(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.) F
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
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 H
442 SUPREME COURT REPORTS [2017] IO S.C.R.
A 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)
B
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.
c 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
D
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,
E
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,
F
an NCTE recognized 6 month special programme in
Elementary Education."
(iii) Extract from NCTE Regulations, 2001 laying down
qualifications for recruitment of teachers:-"
G
III. Elementary (i) Senior Secondary School certificate
(a) Primary of Intermediate or its equivalent; and
(ii) Diploma or certificate in basic
teachers training of a duration of not
H 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 (i) Senior Secondary School
(Middle school certificate or Intermediate or its
section) 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
"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
(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
relaxalion1:-'under-sub-section (2) of section
,, )
23 to a State, it'is
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 H
444 SUPREME COURT REPORTS [2017] 10 S.C.R.
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.
(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;
c (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
D
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
E
under section 23(2).
4. The condition ofpassing TETwill be relaxed by the Central
Government.
5. The Central Government will examine the request of the
F 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/
G 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 By direct recruitment as provided
Nursery School in rules 14 and 15;
(ii} Assistant Masters By direct recruitment as provided B
and Assistant in rules 14 and 15;
Mistresses of Junior or
Basic Schools By appointmeni of such Shiksha
Mitras as are engaged as Shiksha
Mitra and working as such on the
date of commencement of thi- c
Uttar Pradesh Basic Education
(Teachers) (Nineteenth
Amendment) Rules, 2014. *
(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 (ii)(a) Bachelors degree from a
Assistant Mistresses of University established by law in
Junior Basic Schools India or a degree recognized by
the Government equivalent E
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 F
(BTC}, two years BTC (Urdu),
Vishisht BTC and teacher
eligibility test passed,
conducted by the Government
or by the Government ofIndia;
G
' a Trainee Teacher who has
(b)
completed successfully six
months special training
programme in elementary
education recognized by NCTE; H
446 SUPREME COURT REPORTS [2017) 10 S.C.R.
A
(c) A Shiksha Mitra who
possessed Bachelors degree
from a University established
by law in India or a degree
recognized by the Government
B equivalent thereto and has
completed successfully two
years distant learning BTC
course or Basic · Teacher's
Certificate (BTC), Basic
Teacher's Certificate (BTC)
c (Urdu) or Vashist BTC
conducted by the State Council
of Educational Research and
training (SCERT).
(emphasis supplied)
D
(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
E
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
F 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."
G (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
H
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 19 111 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 Process-
A. 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.
H
448 SUPREME COURT REPORTS [2017] 10 S.C.R.
A 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
B 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
c alphabetical order (English)
D. Shiksha Mitra will not be considered to he eligible for
substantive appointment on the post of Assistant teacher
in junior basic school unless his name is included in the
abovementioned list.
D E. A list prepared by the appointing authority under C/.(C)
above shall be forwarded to a selection committee
constituted under Rule 16 of the UP. basic education
(teachers) Service Rules, 1981 which shall be as follows:-
E (A) Principal, District Institute of Chairman
education and traininf!
(B) District basic education officer Member/
Secretary
(CJ Principal of Govt. Girls Inter Member
F College situated at district
headauarter
(D) An expert in Hindi, Urdu or other Member
languages appointed by the
District Ma[!;istrate
G
Note:- If the selection committee constituted in the manner as stated
above does not include a person belonging to Schedule caste,
Schedule Tribe, OBC then the district magistrate shall appoint any
officer of the district belonging to above caste as a member of the
selection committee.
H
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 449
ORS. ETC. [ADARSH KUMAR GOEL, J.]
F The. selection committee shall after going through the A
list prepared under clause (C) and after verifying the
educational and training certificates of the Shiksha Mitras
shall after its due approval forward the same to the
appointing authority.
G The appointing authority shall issue the appointment B ,
order in accordance with Rule 20 of the U.P Basic
Education (teachers) Service Rules, 1981 meaning all
appointments made under these rules shall be given posting
through written orders in accordance with U.P Basic
Education (teacher) posting rules, 2008 (as amended).
c
(5) Time table for absorption of trained and eligible Shikshamitras
on the post of assistance teacher in first phase.
1- To make available the list of Till 30June, 2014
candidates to District Basic
Education Officer who have qualified D
two years ETC training through
distance mode from District Institute
ofEducation and Traininf!
2- Publication of the advertisement by Within one week of
the District Basic Education officer the receipt of the
for the counseling of Shiksha Mitras list. E
including the name, date of
counsellinf! and place of counsellinf!.
3- Participation of the Shiksha Mitras From JO July, 2014
in the counselling with their to 22 July, 2014
educational/ training certificates and
F
residence/ caste certificates.
4- Process of Approval of the Till 25'" July, 2014
selection list by Selection Committee
5- Process of issuance of appointment Till 31.07.2014
letter
G
3. Therefore it is requested to ens'Ure the appoilitinents ·of the
Shiksha Mitras in primary schools run by U.P. Basic
Education Board in accordance with the determined
conditions and the time table."
H
450 SUPREME COURT REPORTS [2017] IOS.C.R.
A Proceedings before the High Court
6. Batch of Writ Petitions were filed before the High Court by
persons who claimed to be eligible for appointment and whose chances
were affected by filling up of vacancies of teachers by regularizing the
Shiksha Mitras against the said vacancies, praying as under:
B "(a) A writ, order or direction in the nature of certiorari
quashing the notifications dated 30.5.14 issued by the State
Government notifying the UP. Right of Children to Free and
Compulsory Education (First Amendment) Rules 2014 and
UP. Baisic Shiksha Adhyapak Seva (19 1" Sansodhan)
c Niyamawali 2014 (Annexure Nos.22A & 22B);
(b) A writ, order of direction in the nature of certiorari
quashing the Government Orders dated 7.2.13 and 16.6.14
(Annexure Nos.21 & 23)
(c) A writ, order or direction of a suitable nature restraining
D the respondents from taking any action on the basis of the
impugned notifications/ Government Orders;
(d) Any other writ, order or direction as this Hon 'ble Court
may deem flt and proper in the circumstances of the case;
and
(e) Award cost of the petition to he paid to the petitioners."
E
7. Case set out in the petition was that in view of Notification
issued by the NCTE 23rd August, 20 I 0 laying down minimum qualification
for appointment of Assistant Teacher for classes I to VIII, the decision
of the U.P. Govenunent dated 19'h June, 2014 and amendments made
by the U.P Government on 301h May, 2014 were in conflict with the
F Notification issued by the NCTE on 23'd August, 2010 and could not,
thus, be justified. The TET being a mandatory qualification, the State
Government could not make any appointment to the post of teacher
without the said qualification. The appointments did not fall under the
relaxation clause being post 23rd August, 2010 notification and being not
o covered by the conditions for relaxation. The 1981 Rules of the State
could not incorporate a provision for absorption of Shiksha Mitras in
violation of law laid down by this Court in State of Karnataka versus
Uma De11i 2 as their appointment was de hors the 1981 Rules, having
not been made after following the rules for appointment of teachers. It
H 'c2006J 4 sec 1
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 451
ORS. ETC. [ADARSH KUMAR GOEL, J.]
was also submitted that the nature of appointment of Shiksha Mitras A
was contractual to enable them to render community service and not in
terms of prescribed qualifications for appointment of teachers. Training
by open and distance learning mode was relevant only for teachers validly
appointed and not for contractual employees appointed de hors the rules.
Moreover, 46,000 Shiksha Mitras were not even graduates which was B
a condition for approval by the NCTE in its letter dated 14'11 January,
2011. There could be no permanent exemption from TET and relaxation
could only be for a limited period. Relaxation could be only for teachers
already appointed and not for Shiksha Mitras. On the date of regular
appointment in terms of the G.O., the Shiksha Mitras did not have the
requisite statutory qualifications under Section 23 of the RTE Act. C
8. The Writ Petitions were opposed by the State Government and
the Shiksha Mitras by stating that the Scheme of the Shiksha Mitras
was to meet a situation where sufficient trained teachers were not
available while the constitutional mandate of imparting elementary
education was to be fulfilled. The Shiksha Mitras were also teachers D
and their appointments were made on recommendation of Village
Education Committee which had a statutory status. They had undergone
training as per Appendix-9 to the 2009 Regulation of the NCTE and
having regard to the fact they worked for nearly 16 years, the State
Government was justified in regularizing their services.
E
9. The Full Bench of the High Court considered the matter after
framing following issues:
"(1) Whether the appointment of Shiksha Mitras in
pursuance of the Government Order dated 26 May 1999
was of a statutory character; F
(2) Whether the State Government did have the power, by
Firtue of Section 13(1) of the Basic Education Act 1972 and
having due regard to the provisions of Entry 2 5 of the
Concurrent List to the Seventh Schedule, to issue the
Government Order dated 26 May 1999; G
(3) Whether the Gowrnment Order dated 26 May 1999 can
be regarded as a valid exercise of power under Article 162
of the Constitution, where the Service Rules of 1981 were
silent in regard to the appointment o.f untrained teachers;
H
452 SUPREME COURT REPORTS [2017] IO S.C.R.
A (4) Whether the Village Education Committees had a statutory
character by virtue of Section 11 of the UP. Basic Education
Act, 1972:
(5) Whether the appointment of Shiksha Mitras can be
regarded as being made against substantive posts, since the
B number was determined in the ratio of students to teachers
in the proportion of 1:40;
(6) Whether the permission granted by NCTE on 14 January
2011 is a valid permission under Section l 6(3)(d) of the
NCTE Act.:
c (7) Whether the petitioners could be regarded as being
persons aggrieved to challenge the permission granted by
NCTE;
(8) Whether the effort on the part of the State to grant
training to untrained teachers can be regarded as a
D reasonable effort and not ma/a fide;·
(9) Whether the appointment of Shiksha Mitras has been
duly protected by the proviso to Section 12-A and could be
validly brought into the regular cadre of Assistant Teachers
by amendment of the Service Rules of 1981;
E
(10) Whether the power o/NCTE to lay down minimum
qualifications could only be exercised by framing Regulations
under Section 32 of the NCTE Act; and
(11) Would the effect of the insertion of Section 12-A suspend
the effect and operation of the notification dated 23 August
F
2010."
IO. The findings of the High Court in briefare that having regard
to the nature ofappointment of Shiksha Mitras, they could not be treated
as teachers in terms of 1981 Rules. They also did not have the
qualifications prescribed under the said Rules in as much as on the date
G of appointment, they did not have graduate degree nor they had basic
teachers' certificate as prescribed under the 1981 Rules. Reservation
policy had also not been followed. No doubt they may have served the
need of the hour, their regular appointment in violation of the requisite
statutory qualification was illegal. Reference was made to earlier Full
H
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 453
ORS. ETC. [ADARSH KUMAR GOEL, J.]
Bench judgment in Km Sandhya Singh versus State of Uttar Pradesh 3 A
with regard to the nature of such appointments.
11. It was further held that Section 23(2) permitted relaxation of
minimum qualification for appointment of teachers only for a limited
period not exceeding five years and qualification for TET could not be
relaxed as held by the Full Bench judgment of the High Court in Shiv .B
Kumar Sharma versus State of Uttar Pradesh 4 for post 23rd August,
2010 appointments. Nor pre 23rd August, 2010 appointments could be
saved unless initial appointments were to the post of teachers in terms
of applicable rules as stated in the Notification dated 23rd August, 20 I 0.
The amendments to the State RTE Rules, 2011 and the Service Rules of C
1981 were in conflict with the mandate of Section 23(2) under which
power to relax the minimum qualifications was vested only with the
Central Government for a limited period. Moreoyer, the regularization
of Shiksha Mitras as teachers was not permissible in view of the law
laid down in Uma Devi (supra). The appointment of Shik~ha Mitras
was not as teachers nor it could be held to be merely irregular in absence D
of their minimum qualifications for the post of teachers which was a
distinguishing feature rendering the judginents State ofKarnataka versus
M.L. Kesari5 and Amarendra Kumar Mohapatra ver.rns State of
Orissa 6 inapplicable.
Rival Contentions : E
12. We may now deal with the contentions raised before this Court
in assailing the judgment of the High Court. Following are the broad
contentions of the appellants, the State ofU .P. and the Shi~ha Mitras;
(i) Free and compulsory education to children of the age of 6 to 14 is a
fundamental right under Article 2 lA which was earlier a directive principle F
under Atticle 45 of the Constitution. For elementary education ofchildren
of this age, extremely learned teachers were not required nor are
affordable. This is the reason that as against the requirement of 3 lakhs,
the State ofU.P. had about l lakh teachers. The Shiksha Mitras scheme
was to achieve the object of education for all at less cost. The Shiksha 0
Mitras were duly 'selected and had undergone training at district training
3
2013 (7) ADJ 1 (FB)
4
2013 (6) ADJ 310 (FB)
'c2010) 9 sec 247
,, (2014) 4 sec 583
H
454 SUPREME COURT REPORTS [2017] IO S.C.R.
A institutes. Most of them were graduates and all of them were at least
intermediate. It was submitted that NCTE vide letter dated 261hOctober,
2015 clarified to the State Government that TET was applicable to
teachers appointed after 25'h August, 20 I 0. Those appointed earlier and
are in continuous service did not require the TET. It was also submitted
that vide Notification dated I3 1h April, 2017, the Central Government
B
had extended the time for acquiring minimum qualification up to 31"
March, 2019 exercising its power under Section 23(2) of the Act in
respect of the State of Assam. Reference was also made to the Right
of Children to Free and Compulsory Education (Amendment) Bill, 2017
(Bill No. 75 of 2017) whereby a proviso was to be added to Section
c 23(2) permitting four years further time from the date of amendment for
acquiring minimum qualification required under Section 23( I) of the Act.
(ii) Article 243G of the Constitution provides for punchayat :v
functions as institution for self governance with respect to schemes of
social justice in relation to matters listed in XI Schedule which includes
D under Entry 17 Education, including primary and secondary schools.
Thus, the scheme of Shiksha Mitras was consistent with the said
provision and enabled decentralization of powers.
(iii) If qualified persons are not available, government is free to
frame policy in absence of legislation as held in Sant Ram Sharma
E versus State of Rajasthan 7•
(iv) The Notification dated 23r<l August, 2010 was repugnant to
the regulations framed by the NCTE and the said regulations have to
prevail in case ofrepugnancy.
(v) In any case power under Article 142 should be exercised by
F this Court in the interest of justice in the light of observations in Union
Carbide Corporation versus Union of India 8•
(vi) The regularization cannot be held to be invalid in view oflong
length of service of the Shiksha Mitras in view of the law laid down by
this Court in M.L. Kesari 9 andAmarendra Kumar Mahapatra (supra).
G Referring to abridged report of the "Development and Professional
Competence of Para-Teachers" by the EdCII (India) Limited (A
Government of India Enterprise), it was submitted that large scale
7
(1968) l SCR 11 I at I 19
, (1991) 4 sec 584
H '(2010) 9 sec 247
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 455
ORS. ETC. [ADARSH KUMAR GOEL, J.]
appointment of para teachers has led to lower pupil teacher ratio. Thus, A
it was submitted that the impact of appointment of Shiksha Mitras has
advanced the constitutional cause of elementary education for all.
(vii) It was next submitted that even th._ough regularization may
not be permitted, the State can specify a source for fresh recruitment
with relaxed educational qualification as held in Official Liquidator • B
versus Daya11and 10•
(viii) Order I Rule 8 C.P.C. having not been followed and all
Shiksha Mitras having not been impleaded as parties before the High
Court, the High.Court judgment should be held to be a nullity in view of
law laid down in Amrit Lal Berry versus Collector of Central Excise, c
New Delhi11, Ramchamler Sunda i•ersus Union of lndia 11 and
Common Cause, A Registered Society versus Union of India 13 •
13. The above submissions have been opposed by the original writ
petitioners. They support the impugned judgment. Their contentions are
summarized as follows: D
i. While free and compulsory education for children of age of 6 to 14
years was a constitutional mandate and ad hoc arrangements may have
been necessary in absence of qualified teachers being available, having
trained and qualified teachers was equally important for maintaining
quality of education. If the Parliament incorporates a minimum mandatory E
statutory qualification and views lack of such qualification as being
detrimental to the development and growth of young children and the
quality of education, the same cannot be ignored. Moreover, the State
had no legislative or other competence to dilute the educational standards
laid down by the Parliament on a subject falling under Entry 25 of the
Concurrent List. F
ii. The High Court has clearly and rightly found that the impugned rules/
decisions of the State ofU.P.\vere in conflict with the mandate under
Section 23(1) of the RTE Act. Even the training imparted to Shiksha
Mitras did not render them eligible in terms of Section 23(1 ). Neither
the relaxation provision under Section 23(2) (which was meant only for G
duly appointed teachers) was applicable for appointing Shiksha Mitras
10
(2008) 1osec 1
II (l 975) 4 sec 714 para 28
12
(1999)9SCC 105
" (1994 l 5 sec 557 para 2 H
456 SUPREME COURT REPORTS [2017] 10 S.C.R.
A as teachers nor the relaxation power was applicable to post 23"1August,
2010 appointees (except for a limited period). Proposed amendment
giving further time for acquiring minimum qualifications was applicable
to otherwise validly appointed teachers only.
iii. Article 2430 or the concept of de-centralization of powers to the
B Panchayats did in any manner permit violation ofa valid legislation on
the subject.
iv. There was no basis whatsoever for holding the 23'd August, 2010
Notification to be rn any manner ultra vires.
v. Power under A11icle 142 of the Constitution should be exercised to
c advance justice and not to defeat the Parliamentary mandate for
advancement of proper education.
vi. Alleged non-compliance of provisions of Order l Rule 8 CPC was
inconsequential in the present case as the State and the Shiksha Mitras
were duly represented. The whole issue has been considered by the
D Full Bench of the High Court. Moreover, due publication of proceedings
in this Court has been made and the view point of all the Shiksha Mitras
has been placed before this Court. All the Shiksha Mitras had given
undertaking in terms of their condition of appointment that they will not
claim any right to employment. Reliance was placed on Surayya Begum
E (MST) versus Mohd. Usman 14 and Olga Tellis versus Bombay
Municipal Corporation 15•
vii. Regularization of Shiksha Mitras as teachers is contrary to the law
laid down by this Court in Uma Devi (supra), Union ofIndia versus
Arulmozhi Iniarasu 16 and Grah Rakshak, Home Guards Welfare
F Association versus State ofHimachal Pradesh 17• Judgments in M.L.
Ke.rnri 18 and Amarendra Kumar Mahapatra (supra) arc not
applicable. The Shiksha Mitras were not being regularized against the
,posts of Shiksha Mitras (which was only an ad hoc arrangement) but
against post of teachers for which mandatory statutory qualification was
required. Even if a different source for recruitment was permissible,
G the same could not be against the mandate of law with regard to the
"(1991) 3 sec 114
"(1985) 3 sec 545
16
(2011) 7 sec 397 para 23
"(2015) 6 sec 247 para 33
H "(2010) 9 sec 247
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 457
ORS. ETC. (ADARSH KUMAR GOEL, J.]
minimum statutory qualifications. Reliance was placed on Yogesh A
Kumar versus Govt. of NCT, Delhi19 and K. Narayanan versus State
of Karnataka 10•
Questions before the Court :
14. Thus, questions which need to be gone into are:
B
i) Whether under the scheme of appointment of Shiksha Mitras, they
could be treated as teachers appointed as per applicable qualifications?
ii) If Shiksha Mitras were not duly appointed teachers, could they be
regularized as teachers?
iii) Whether qualification laid down under Section 23( 1) of the RTE Act C
was applicable or stood relaxed in the case ofShiksha Mitras?
iv) Whether statutory qualifications in a Central Statute on a concurrent
list subject could be relaxed by a State legislative/ administrative action?
Our consideration and reasons:
D
15. We have given serious thought to the rival submissions on the
above questions and have also perused the findings of the High Court
thereon. We have also perused the relevant statutory provisions,
notifications, orders of Central Government and other authorities and
the decisions cited at the Bar. We have seriously considered the fact
E
that the matter involves 1.78 lakhs persons and the question whether
benefit once given to them (even unlawfully) ought to be now withdrawn
ifthe view taken by the High Court is found to be correct.
16. At the outset, we may note that fundamental right to free and
compulsory education is one of the most important rights as without
education one may never know his other rights. It goes without saying F
that right. to educatio.n is right to quality education. Concern for
upsatisfactory quality of education has been expressed by this Court on
several occasions. This Court in Ashoka Kumar Thakur v. Union of
I11dia 11 observed as under:
"422. In Unni Krishnan [1993} I SCC 645, Reddy, J. G
observed that the quality of education in government schools
was extremely poor and that the schools were woejz1/ly
"(2003) 3 SCC 548 Para 5
'° (1994) Suppl.( I) Page 44 Para 6
11
(2008) 6 SCC I -Ashok Kumar Thakur v. Union oflndia H
458 SUPREME COURT REPORTS [2017] 10 S.C.R.
A inadequate to the needs of the children. He noted that many
countries spend 6% to 8% of gross domestic product on
education. Our expenditure on education is just 4% of GDP
423. Though an improvement over past performance, the
overall education picture leaves much to be desired. The bad
B news is really bad. Even where we have seen improvement,
there is still failure. A survey by Pratham, an NGO, fleshes
out the acute problems found in rural schools. (See ASER
2007-Rural Annual Status of Education Report for 2007,
published on 16-1-2008.) The survey covered 16,000
villages. As Pratham indicates, there are an estimated 140
c million children in the age group of 6 to 14 years in primary
schools. Of these 30 million cannot read, 40 million can
recognise a few alphabets, 40 million can read some word~,
and 30 million can read paragraphs. Over 55 million of these
children will not complete four years of school, eventually
D adding to the illiterate population of India. The national
literacy rate is 65%.
424. 24 districts with more than 50,000 out ofschool children
means we have failed 24 times over. 71 districts in which
there are 60 students per teacher is just as bad, if not worse.
E According to Pratham (and in-line with the Minisf!J' of HRD s
six-month review), the number of out of school children has
hovered around 7,50,000. (p. 6) Moreover, it goes without
saying that children need proper facilities. Today, just 59%
of schools can boast of a usable toilet. (p. 49)
F 425. The quality of education is equally troubling. For
Standards I and II, only 78.3% of students surveyed could
recognise letters and read words or more in their own
language. (p. 47) In 2006, it was even worse-only 73.1%
could do so. It is disheartening to peruse the statistics for
Standards Ill to V, where only 66.4% could read Standard I
G text or more in their own language in 2007. (p. 47) As
Pratham stated at p. 7:
"What should be more worrying though, is the fact that in
Class 2, only 9 per cent children can read the text
appropriate to them, and 60 per cent cannot even recognise
H numbers between I 0 and 99. "
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 459
ORS. ETC. [ADARSH KUMAR GOEL, J.]
17. To make the right to education meaningful, a qualified teacher A
undoubtedly has significant role. In this regard we may quote with approval
the following observations dealing with the importance of a trained teacher
in the Full Bench judgment of the High Court in Shiv Kumar
Sharma( supra):
"55. ••.•.... .The training of a child, that is an integral part B
of child development, is essential for his grooming, as a
human mind, without proper training is like a horse without
a bridle difficult to ride. Children in their cradle of life with
the help of teachers can mould their lives for higher
ambitions in their manhood. To assess and mould children
with these ideals is the job of a skilled teacher and the art of C
such skill is pedagogy. Teachers have to serve the larger
interest of the society as they are building the future. Henry
Brook~ Adams said, "A teacher affects eterni~v; he can never
tell where his influence stops" and more appropriately
Christa Mcauliffe said " I touch the fitture. I teach". This D
requires the possession of virtues like sacrifice and honour
which in turn brings respect to the status of a teacher and
infuses confidence in the pupil.
56. Many children are victims of apathy and wrongly motived
parental treatment. Their emotional and skilful assessment, E
and proper treatment, has to be handled within the clinic of
an elementary school where the sole physician is none else
than a trained teacher. A candidate possessing a mere
educational or a training qualification without any genuine
attribute may not necessari(v be a good teacher.
F
57. It is in this background that one may remember those
who have contributed to this skilful art of pedagogy. In the
modern world the great philosopher and Educationist
Rousseau, followed by the Swiss Predecessor of his German
Pupils, Pestalozzi, are worth remembering. They were
followed by the famous Germans Herbart and Froebe!. The G
English with Lancaster and Bell followed suit and in the
modern world it would be improper to forget the great
contributions of Maria Montessori.
58. We do not wish to pile up names but this is 011/y to
emphasize that a great scientific contribution has been made H
460 SUPREME COURT REPORTS· [2017] IO S.C.R.
A to this skilfi1l art ofpedagogy. If one goes through the work~
of these great people, one can understand that child
evelopment and teaching children is no easy task and cannot
be confined with the acquisition of a couple of degrees as a
supplement to the complete attribute required of a teacher.
The narrow meaning of qualification therefore that was being·
B
pressed into service by Sri Rahul Agrawal cannot be
countenanced in view of the vast ocean of understanding
that is required of a skilful teacher.
59. In the instant case the skill of the teacher should be
lined with such ingredients that it kindles the spark of a
c child and balances a group of mentally uneven children.
The duty of a good teacher is to bring the student into contact
with the learning offruitful elements that ensue an enduring
significance in life, affirmative information of all modes of
intellectual, systematical and practical activity that play a
D major part in the building of human mind and spirit. Their
interplay is the exercise that has to he undertaken by a
teacher. This exercise, particularly, in a class room of infants
should be underlined with methods that are elastic enough
to fit the varying needs of different types of children. The
cultivation of mental training and discipline is the prime
E object of good teaching. We celebrate 5th of September each
year as Teachers' Day to commemorate the birth of our late
. President Dr. S. Radhakrishnan. He defined the good
qualities of a teacher as follows:
A good teacher must know how to arouse the interest of
F the pupil in the field of study for which he is responsible,
he must himself be a master in the field and be in touch
with the latest developments in his subject,
he must himself be a fellow traveler in the exciting pursuit of
G knowledge ..... .
61. Describing the role model of teachers, our Former
President of India D1: A.P.J. Abdul Ka/am, narrated his
experience in his teachers' day speech on 5th September,
2003 and said that a school must have the best of teachers
H
/
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 461
ORS. ETC. [ADARSH KUMAR GOEL, J.]
who have the abili~y to teach, love teaching and build moral A
qualities.
62. These are the ·challenges of teaching which have been
referred to in the guidelines dated 11th February, 2011. It
is in order to ensure that the candidate is possessed of such
attributes. The guidelines further provide that a candidate B
will be presumed to have succeeded in the test ((he scores
60% or more. Some confessions have been given for
reduction in the said-percentage in the c.ase of scheduled
caste, scheduled tribes, and other bac/..""ward classes as well
as different~v abled persons.
c
63. The reason for this is that the art of teaching is designed
to educate a child. Education is not mere acquisition of
qualifications but is an overall development of a child to
ensure growth and development. It is the awakening of the
inner self and faculty of the child to the ways of the world.
The teacher therefore should be possessed such qualities D
that he satisfies the curiosity of a child that enables him not
only to read but to distinguish what is worth reading. The
job of a teacher is not to fill the time-table with dull
unintelligible tasks. This violates common sense and creativity
brutally. Teaching and training cannot be effected in the E
absence of knowledge about the mind which is to receive
them.
64. It is the systematic and purposeful construction of a
personality, so that it leaves an everlasting effect on the
mind. The job of a teacher is to get across the confidence in p
a pupil, that there were good reasons for everything the
teacher did. He has to be transparent and he cannot leave a
pupil to guess that there are any hidden answers. A good
teacher would like the pupil to lead the way. The teacher
would follow and let the pupil know that his efforts would
be recognised. This confidence would help the child to G
develop a strength in himself to cope up with his own world
by observing and solving problems. The art of teaching
should not be confined only to oral transmissions because
what one hears one can forget. However, what one sees,
H
462 SUPREME COURT REPORTS [2017] JO S.C.R.
A one remembers but what one. does he understands. This is
what should teaching be comprised of The teacher should
therefore be in a position to infuse into a child such attributes
that he or she acquires the ability to assume responsibility
for himse!fiherself. A psychological independence th~t
enables him/her to decide at the same time and differentiate
B
right from wrong. This capacity of a child which lies
concealed in him has to be discovered in a way that the child
finds this world an interesting place to live in. For this good
teaching may be I/4th preparation and 3/4th performance.
65. A teacher is like a professional as said by Danny Hillis,
c "A layman knows he has to kick it; and an amateur knows
where to kick it; a professional knows how hard." This
quality should be possessed professionally by a teacher as
the object of teaching a child is to enable him to get alone
without a teacher.
D 66. The skill of such a performance has to be assessed
because teaching is a great art to educate youth to enable
him to find out and discover his own peculiar aptitudes or
create where none exists. A teacher has to create inclinations
in the child which may serve as substitutes. The level of
E inspiration that has to be infused in a child should be such
that he is able to make a mark in life as a complete human
being. One should remember that "millions see the apple
fall, but Newton was the one to ask why?" The job of a
teacher at the primary level is to generate this element of
curiosity in a child.
F
67. For this teachers have to be attributed with qualities
that they are able to handle the weak and the nervous, the
. mediocre and intelligent with measured skill. This expertise
is a onerous task and is a substantial part of pedagogy. To
teach a child to become self sufficient is the art which has lo
G be developed with caution so as not to destroy the fragile
confidence by using harsh methods. The teacher eligibility
test appears to be designed for this purpose.
68. It is to be remembered that teachers are to impart
education to those souls who are between the period of
H
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 463
ORS. ETC. [ADARSH KUMAR GOEL, J.]
innocence of childhood and the folly of youth. It is this A
aspect a/pedagogy to educate a child to lead life that attains
importance.
69. The art of dealing with children also involves knowing
what not to say, and,on the other hand patiently answering
the unpredictable questions of an inq1;isitive child. A teacher B
should not give answers to children to remember only, but.
he should be able to give them problems to solve. It is then
that the potentiality of the human race is better put to use
"because a child is not a vase to be jilted but a fire to be
lit." (Francois Rabelais) . A Chinese Proverb goes a long
way to say "give a man a fish and you feed him for a day. C
Teach a man to fish and you feed him for a lifetime:"
Teaching is infusing of ideas instead of stuffing the brain
with facts. William Arthur Ward a famous educationist said
that The mediocre teacher tells, a Good teacher explains, a
Superior teacher demonstrates but the great teacher D
·inspires.
70. Children come from different backgrounds often being
victimised by unwise and wrongly motived parental treatment.
The teacher has to be more careful for he js enjoined with
the duty of child development. This therefore is the E
background~in which the teachers role attains· immense
significance. It is for such reasons that the Union and the
State appear to have come up with the necessity of a teacher
eligibilitcv test. ·
71. The importance of teaching and a teacher '.s selection F
should be to find out whether a candidate fulfils and is
possessed of such attributes, that is capable of bringing out
the best to ensure child development. "The art of teaching is
the art of assisting discovery (Mark Van Doran)". This
compulsory attribute is therefore to be assessed by the State
while judging the capability of a teacher and which therefore G
is an essential qualification and not only a minimum
qualification. The essential nature of this test therefore leaves
no room for doubt that mere possession of educational
qualification and a teachers training course· is not su.f!icient
to assess the capacity of a teacher. H
464 SUPREME COURT REPORTS [2017] JO S.C.R.
A 72. Sir Winston Churchill while assessing the role of a teacher
observed that the Head Masters of elementary schools have
powers at their disposal with which even Prime Ministers
have never been vested with. The reason is that the school
master has to reckon not only with his pupils human tendency
to run, but also with the unwisdom of parents in their earZv
B
dealings with early tendenGy; elimination of wrong doing,
not by plainly repressive methods is also one of the arts that
has to be possessed by a skiljiil teacher.
73. All this goes to fi1/fil the objectives with which Article 45
of the Constitution of India was incorpqrated under the
c United'Nations declaration which says that mankind owes
to the child the best it has to give. An infant who does not
know how to express himself, enters in an elemenfary school
where he has to be taught his initial alphas and betas. The
pronunciation, sentence-forming, elementary grammar and
D understanding of his first alphabets have to be installed in
his mind with expertise. It is for this reason that the curriculum
of the TET includes proficiency in the language oft he medium
of instruction, an optional language for a better
understanding with the student, mathematics to assess the
investigative strength of the mind and finally environmental
E studies to gauge the overall awareness of human life and
nature. This has to be coupled with moral education and
discipline and this entire combination in one pe1j'ormance is
the skill of a teacher. He has to handle the weak and the
nervous, the mediocre and intelligent, with an adequate
F measured skill for which a basic attribute with intelligence
is required to be possessed by a teacher. A teacher cannot
employ methods like knocking of a child because such
methods do not always turn a timid hoy into a courageous
one nor does it turn a spoilt brat into an angel. Nonetheless
it is usejiil to remember Bishop Fulton J Sheen who said
G "Every child should have an occasional pat on the back, as
long as it is applied low enough and hard enough". For
teachers and guardians the proverb "Give a child enough
rope, and you will trip" is also a cautionary note. The
acquisition of such expertise is what is desired to be assessed
H and that is what the teacher eligibility test is designed for. It
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 465
ORS. ETC. [ADARSH KUMAR GOEL, J.]
is only to assess these qualities that would qualify a teacher A
for being appointed as such and therefore the teacher
eligibility test is not a mere eligibility criteria but a
qualification as prescribed in addition to the academic and
iraining qualifications.
74. It would be apt to quote Charles Dickens in his famous B
book" "Hard Times" where the quality of a teacher has been
expressed from another angle as follows:
"What l want is facts. Teach these boys and girls nothing
but facts. Facts alone are wanted in life. Plant nothing
else, and root out eve1ything else. " C
75. The role ofteaching is therefore ofa mediator of learning,
a parent substitute, a controller of students' behaviour, an ·
agent of social change and final~y a judge of achievement.
The teacher who enters a sch9ol imparting elementary
education has to act like a group leader who can remove D
the hindrances of doubts in the mind of an infant and
generate ci·eative development. Above all he has to in still in
the mind of a youngster all virtues of courage and honesty
as this part of education is a vital portion of child
development. It is in the early years that the importance of
education has to be preached so as 10 achieve what a former E
U.S. President G(l/.field said "Next in importance to freedom
and justice is education without which the other two cannot
be entertained."
18. In the iinpugnedjudgment the Full Bench of the High Court
highlighted the importance of the prescribed TET qualification as follows: F
"93. The object and purpose of introducing the TET is to
ensure that a teacher who embarks upon instmcting students
o_f'primary and upper prim(l/y classes is duly equipped to
fulfill the needs of the students, understands the relevance
of education for a child at that stage and can contribute to G
the well rounded development of the child. Teaching a child
is not merely a matter of providing iitformation. Deeply
embedded in the process of imparting education is sensitivity
towards the psyche of the child, the ability to understand
the concerns of a young student of that age, the motivations H
466 SUPREME COURT REPORTS [2017) 10 S.C.R.
A which encourage learning and the pitfalls which have to be
avoided. The emphasis on clearing the TET is to ensure the
maintenance of quality in imparting primary education. These
requirements which have been laid down by NCTE f11lfill an
important public purpose by ensuring a complement of
trained teachers who contribute to the learning process of
B
children and enhance their growth and development. These
requirements should not be viewed merely as norms governing
the relationship of a teacher with the contract of employment.
These norms are intended to fulfill and protect the needs of
those who are taught, namely, young children. India can
c ignore the concerns of its children only at the cost of a grave
peril to the future of our society. The effort of the State
Government to by-pass well considered norms which are laid
down by NCTE mui1t be disapproved by the Court. We have
done so 011 the ground that the State Government lach the
legislative power and competence to do so. Equally,
D
jimdamental is the concern that a relaxation of the norms
prescribed by an expert body will result in grave detriment
to the developmen( and growth of our young children and
the provision of quality education to them. Providing quality
education is crucial for students belonging to every strata
E of society. Education which is provided in schools conducted
by the Basic Education Board should not be allowed to
degenerate into education of poor quality which it will, if
the norms which are prescribed by an expert body under
legislation enacted by Parliament in the national interest are
allowed to be ignored by the State Government on the basis
F
ofparochial or populist perceptions. Such an attempt is ultra
vires the statutory powers of the State and is arbitrary and
violative of Article 14 of the Constitution. "
19. We are in agreement with the above observations. We are
unable to agree that even unqualified teachers ought to be allowed to
G continue ignoring the legislative mandate or that we should exercise our
jurisdiction under Article 142 to undo the said mandate. Consideration
for career of 1.78 lac Shiksha Mitras, 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 oflegislative mandate.
H
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 467
ORS. ETC. [ADARSH KUMAR GOEL, J.]
20. We may now further examine the question whether the Shiksha A
Mitras have, under the Jaw, right to be appointed or absorbed as teachers
de hors the prescribed qualifications. In this regard, the finding in the
impugned judgment is as follows:
"58. The essential characteristics of the Shiksha Mitra
Scheme envisaged, fif:5t/y, that each appointment was made B
on a contractual basis for a stipulated term of eleven months,
renewable subject to satisfactory pe1formance and on an
honorarium. Second(v, the Scheme, as notified, contemplated
that the engagement of Shiksha Mitras was not in the regular
service of the State, as indeed it could not have been, having
due regard to the provisions of the Service Rules of 1981 C
which held the field in regard to the constitution of a cadre
of teachers imparting basic education and regularly
engaged for that purpose. Thirdly, each of the persons
appointed as Shiksha Mitras was placed on notice of the
fact that this was a Scheme envisaging serviG'e by the D
unemployed youth for the benefit of the community against
the payment of an honorarium. Shiksha Mitras were not
entitled to the payment of a salary in the regular pay scale
but would only receive a Mandeya (honorarium). The
application form which eve1y prospective candidate was
required to Jill up in terms of the Government Order dated 1 E
July 2001, envisaged a statement of acceptance that the
candidate would be bound by the terms and conditions
governing the Scheme. The consent form required to be filled
in by every candidate envisaged that he/she would not be
treated as a regular employee of the State Government and F
would only be entitled to the payment of honorarium;
Moreover, Clause 3 of Form-II appended to the Government
Order stipulated that the training which was imparted to a
candidate was only to enable him or her to render community
service in the capacity of a Shiksha Mitra. Fourthly,
appointments as Shiksha Mitras were not against sanciioned G
posts as determined by the Board of Basic Education with
the previous approval of the State Government under Rule 4
of the Service Rules of 1981. Fifthly, the manner of making
appointments and the procedure for recruitment was not in
H
468 SUPREME COURT REPORTS [2017] 10 S.C.R.
A conformity with the provisions contained in Rules 14, 15, 16
and 17 of the Service Rules of 1981. instead, what the
Shiksha Mitra Scheme envisaged, was that appointments
should be made by Village Education Committees at the
-\ village level. At the district level, there was a Committee
chaired by the District Collector and consisting, inter alia,
B
of the District Panchayat Raj Officer and the Basic
Education Officer. The District Level Committee was
constituted to oversee the implementation of the Scheme in
the district. Sixthly, the qualification which was prescribed
for appointment as a Shiksha Mitra under the Government
c Order dated 26 May 1999 was the possessing of an
intermediate qualification. Prior thereto, an amendment was
made in the Service Rules on 9 July 1998 by which Rule 8
was amended to prescribe the holding of a graduate degree
for appointment as a regular teacher. Under the Service Rules
of 1981, a regular teacher was required to also possess a
D
basic teacher's certificate. This was not a requirement for
Shik~ha Mitras under the Govemment Order. Shiksha Mitras
did not fulfill the qualifications for a regular teacher under
the Service Rules of 1981. Seventhly, the manner in which
reservations were to be worked out under the Rules of 1981
E was evidently not the manner in which reservations in the
recniitment of Shiksha Mitras would operate. At the highest,
what has been urged before the Court by the Additional
Advocate General and supporting counsel is that the
selection of Shiksha Mitras at the village level envisaged
that a Shiksha Mitra to be appointed should belong to the
F
same categ01:v as the Gram Pradhan, thereby resulting in a
rough and ready adoption of the norm of reservation. This
is certain~v not the manner in which the policy of reservation
as envisaged by the State is implemented in the case of
regularly selected candidates, including by the application
G of the roster and implementing horizontal and vertical
reservations. Rule 9, it must be noted, envisages reservation
not only for the Scheduled Castes, Scheduled Tribes and
Other Backward Classes, but other categories also including
the dependents of freedom fighters and ex-servicemen.
Moreover, the orders of the State Government also
H
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 469
ORS. ETC. [ADARSH KUMAR GOEL, J.]
contemplate horizontal reservation across various classes. A
These aspects leave no manner of doubt that the engagement
of Shiksha Mitras was envisaged under an administrative
scheme by the State Government on a contractual basis with
a specified purpose and object and de hors the governing
provisions of the applicable Service Rules of 1981 . ........ .
B
62. The submission which has been urged on behalf of the
State and by some of the supporting counsel, is that Section
11 of the UP Basic Education Act, 1972 contemplates the
constitution of Village Education Committees. This does not
render the Shiksha Mitra Scheme a statuto1y scheme. The
function of Village Education Committees as defined in sub- C
section (2) of Section 11 is to establish, administe1; control
and manage basic schools in the Panchayat area and to
discharge such other fanctions pertaining to basic education
as may be entrusted by the State Government. This, in our
opinion, does not render the Scheme of appointing Shiksha D
Mitras of a statutory nature or character. If such a Scheme
. was to be intended to have a statutory flavour, there could
have been no escape from the requirement of complying with
the norms which govern the regular teachers of basic schools
as prescribed in the Service Rules of 1981. On the contr(ll:V,
compliance with the Service Rules of 1981 was sought to be E
obviated by engaging barefoot volunteers across the State
on a contractual basis for which an administrative scheme
was envisaged under the Government Order dated 26 May
1999. Similarly, the power of the State Government to issue
directions to the Board of Basic Education in Section 13 F
was not the power which the State Government wielded while
issuing diverse Government Orders that govern the Shiksha
Mitra Scheme. The power to issue directions under Section
13 could not have been exercised contrary to the provisions
of the Service Rules of 1981 which were made by the State
Government in exercise of the subordinate law-making G
power. Even if it is held that Village Education Committees
were entrusted with the duty of selecting Shiksha Mitras in
pursuance of the provisions of Section 11 (2)(g), the fact
remains that appointments of Shiksha Mitras were
independent of and not su~ject to the discipline of the H
470 SUPREME COURT REPORTS [2017] 10 S.C.R.
A provisions of the Service Rules of 1981. Neither was the
engagement against sanctioned posts nor were the provisions
for recruitment envisaged in the Service Rules of 1981
.followed. They were not qualified candidates. Understanding
the true nature and purpose of Shiksha Mitras lies at the
heart of the dispute in the present case. .. .
B
70. Evident~y, Shiksha Mitras could not either seek the benefit
of clause (a) or clause (c) of Para 4 of the notification dated
23 August 2010. They were not teachers appointed in
accordance with the Regulations of 3 September 2001 since,
admittedly they did not possess the ETC qualification.
c Moreover. Shiksha Mitras did not have the benefit of clause
(c) of Para 3 since any appointment made prior to 3
September 2001 had to he in accordance with the prevalent
recruitment rules. The engagements of Shiksha Mitras were
de hors the recruitment rules and were not in accordance
D with the Service Rules of 1981 which apply to appointments
of basic teachers in the State of Uttar Pradesh. The proviso
to subsection (2) of Section 23 governs persons who are
teachers and who, at the commencement of the RTE Act of
2009, did not possess the minimum qualifications prescribed
under sub-section (1). They were given a period offive years
E to acquire the minimum qualifications. The proviso would
govern persons who were recruited as teachers in the State
of Uttar Pradesh under the Act and the Service Rules of
1981 and can have no application to Shiksha Mitras . ......
75. The State Government moved the Central Government
F for the grant of permission on 24 December 2010 in which
it disclosed the functioning of 1.78 lac Shiksha Mitras of
whom 1,24,000 were stated to be graduates. The State
Government indicated in its letter that these persons were
engaged on a contract basis and 'with a stipulation of a
G minimum qualification of intermediate though, under the
service rules, the prescribed qualification was a graduate
degree. Subsequently, on 3 January 2011, a revised proposal
was submitted which envisaged training being imparted to
1,24,000 graduate Shiksha Mitras out of a total complement
of 1,70,000. The permission which was granted by NCTE 011
H
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 471
ORS. ETC. [ADARSH KUMAR GOEL, J.]
14 January 2011 was specifically in the context of the A
request made on 3 January 2011 for granting permission
for the training of 1,24,000 untrained graduate Shiksha
Mitras. Eventually, what seems to have transpired was that
the State Government issued a Government Order on 14
August 2012 so as to provide for training to those Shiksha B
Mitras who had acquired graduate degrees by 25 July 2012.
However, it is not in dispute before this Court that training.
was imparted not only to graduate Shik.sha Mitras who were
within the terms of the permission granted by NCTE by its
letter dated 14 Jpnuary 2011, but also to 46,000 Shiksha
Mitras holding the intermediate qualification which was not C
within the purview of the permission which was granted by
NCTE on 14 January 2011. NCTE had not permitted the State
of U.P to train the non-graduate Shiksha Mitras through
the open and distance learning methodology. NCTE, we must
note, has stated in its counter-affidavit }/led in these D
proceedings, that it was not specifically apprised of the
nature of the engagement of Shiksha Mitras by the State.
The counter-affidavit which has been flied by NCTE, insofar
as is material, reads as follows: "That the rationale for
r
including the T.E. as minimum qualification for a person
to be eligible for appointment as a teacher is that it would E
bring national standards and benchmark to quality teaching ·
before the recruitment process is completed for appointing
a candidate as a trained teacher. That it is pertinent to
mention here that since the State Authorities have not clearly
sent the report that initial engagement of Shiksha Mitras F
was for a period of 11 months, as such the nomenclature of
these Shiksha Mitras as untrained teacher was not in
consonance with the provisions so issued after the Right of
Children to Free and Compulsory Education Act, 2009 came
into effect. " The State has disputed this.
80. What has happened in the State of Uttar Pradesh is that G
the State Government, in a clear violation of the mandate of
Section 23(2) which vests the power to relax the minimum
qualifications in the Central Government, has arrogated to
itself a power which it lacks, to grant exemption from the
mandatory qualifications which are laid down by NCTE in H
472 SUPREME COURT REPORTS [2017] IOS.C.R.
A their application to Shikvha Mitras in the State. The State
Government has, in our view, acted in clear violation of its
statutory powers. Parliament has legislated to provide, in
no uncertain terms, that any relaxation of the minimum
educational qualifications can onZv be made by the Central
Government. However, Rule I 6-A which has been introduced
B
by the State Government by a notification dated 30 May 2014
purports to provide a non-obstante provision which will
operate notwithstanding anything contained in Rules I 5 and
16 of the State Rules. Rules I 5 and I 6 of the State Rules
were originalZv formulated in a manner consistent with the
c provisions of Section 23(2) and the provisions contained in
Rules I 7 and 18 of the Central Rules of 20 JO. However, as
a result ofthe introduction of Rule 16-A, the State Government
has assumed to itself the power to make provisions for
relaxing the mii1imum educational qualifications for
appointment of Shiksha Mitras as Assistant Teachers in
D
junior basic schools "as are considered othenvise eligible
and in order to implement the provisions of the Act". There
can be no manner of doubt that far from implementing the
provisions of the Act, the State Government by its amendment
of the subordinate legislation has purported to negate the
E very object and purpose of the RTE Act of 2009. .. . ... ...
86. The contention that the experience gained by Shiksha
Mitras over the course of their engagement should obviate
the need of obtaining the essential qualification cannot be
accepted for more than one reason. Firstly, the essential
F qualification must .be held by the person on the date of entry
into the service. If the entry be preceded by a selection
process it is liable to be tested with reference to the date of
advertisement. Viewed from any angle, the Shiksha Mitras
did not possess the requisite qualification on either of the
relevant cut off dates. Secondly, the experience that may
G have been gained by a person has never been construed as
a subsfitute for an essential qualification that is statutorily
prescribed. Acceptance of this contention would have grave
ramifications, fall foul of settled precedent on the su~ject
and be against the basic tenets of Article I 6 and principles
H governing public employment. ................. .
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 473
ORS. ETC. [ADARSH KUMAR GOEL, J.]
94. The issue before the Court Ls in regard to the legality of A
the absorption. Articles 14 and 16 of the Constitution provide
for equality" in matters of public employment. The limit on
the power of the State to grant regularization was considered
by a Constitution Bench of the Supreme Court in a judgment
in Secretary of State of Karnataka v. Umadevi (2006) 4· SCC B
I. Emphasizing the principle of the Yule of equality' in public
employment, the Constitution Bench Court held as follows:
" ... Thus, it is clear that adherence to the rule of equality
in public employment is a basic feature of our Constitution
and since the rule of law is the core of our Constitution, a
Court would certainly be disabled from passing an order C
upholding a violation of Article 14 or in ordering the
overlooking of the need to comply ~iith the requirements
of Article 14 read with Article 16 of the Constitution.
Therefore, consistent with the scheme for public
employment, this Court while laying down the law, has D
necessarily to hold that unless the appointment is in terms
of the relevant rules and ajier a proper competition among
qualified persons, the same would not confer any right on
the appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the contract, if
it were an engagement or appointment on daily wages or E
casual basis, the same would come to an end when it is
discontinued. "
95. The Supreme Court held that there may be cases where
certain appointments were not illegal but were irregular.
These are situations where an appointment has been made F
(i) of duly qualified persons; and (ii) in duly sanctioned
vacant posts and the employees would have continued to
work for more than ten .vears without the intervention of the
orders of the Court or tribunal. In those cases, the judgment
of the Supreme Court in Umadevi left it open to the State G
. Governments, the Union Government and their
instrumentalities to take steps to regularize, as a ·one time
measure, the services of such irregularly appointed persons.
The relevant observation in that regard is as follows:
"One aspect needs to be clarified. There may be cases H
474 SUPREME COURT REPORTS [2017] 10 S.C.R.
A where irregular ppointments (not illegal appointments) as
explained in S.V. NARAYANAPPA (AIR 1967 SC 1071), R.N.
NANJUNDAPPA (1972)1SCC409, and B.N. NAGARAJAN
(1979) 4 507, and referred to in paragraph 15 above, of
duly qualified persons in duly sanctioned vacant posts
might have been made and the employees have continued
B
to work for ten years or more but without the intervention
of orders of Courts or of tribunals. The question of
regularization of the services of such employees may have
to be considered on merits in the light of the principles
settled by this Court in the cases above referred to and in
c the light of this judgment. In that context, the Union of
India, the State Governments and their instrumentalities
should take steps to regularize as a one time measure. the
services of such irregularly appointed, who have worked
for ten years or more in duly sanctioned posts but not under
cover of orders of Courts or of tribunals and should further
D
ensure that regular recruitments are undertaken to fill those
vacant sanctioned posts that require to be filled up, in cases
where temporary employees or daily wagers are being now
employed. The process must be set in motion within six
months from this date. We also clarify that regularization,
E if any already made, but not sub judice, need not be
reopened based on this judgment, but there should be no
fi1rther by-passing of the constitutional requirement and
regularizing or making permanent, those not duly
appointed as per the constitutional scheme."
F
101. The Central Government has exercised powers under
sub-section (2) of Section 23 on 10 September 2012. The
Union Ministry of Human Resource Development, in its
notification, has granted a relaxation until 31 March 2014
G only in respect of persons referred to in sub-clause (a) of
Clause (1) of Para 3 of the notification dated 23 August
2010 as amended. This category covers persons -ivith BAI
BSc degrees with at least fifty percent marks and holding a
BEd qualification. While issuing a notification on 10
September 2012 for the pwpose of relaxing the qualifications
H
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 475
ORS. ETC. [ADARSH KUMAR GOEL, J.]
Shiksha Mitras to whom the benefit of regularization has A
been granted neither fulfilled the prescribed minimum
qualifications nor were they appointed against sanctioned
posts. The fact that Shiksha Mitras did not fulfill the
qualifications prescribed by NCTE which has the
unquestioned jurisdiction under the NCTE Act of 1993 and B
RTE Act of 2009 is evident from the fact that the State
Government, by inserting Rule 16-A into the Rules of 2011
has assumed to itself a power to relax the minimum
qualifications required to be observed, in the case of Shiksha
Mitras. In other words, by Rule 16-A, the State Government
has created gn island of exclusion for the benefit of Shiksha C
Mitras who, in the exercise of the rule-making power of the
State under Rule 16-A, would not have to fulfill the minimum
qualifications prescribed by NCTE. The State Government
has sought to get over the inseparable obstacle that the
Shiksha Mitras do not fidjlll the TET requirement by D
unlm1jully conferring power on itse~f to relax the
requirement. Having committed that illegality, the State has
proceeded to do away with the TET qualification in its
application to Shiksha Mitras, by unlawfidly amending the
service rules. These amendments have been held to be ultra
vires and an impermissible encroachment on the exclusive E
domain of NCTE. Having done this the State Government
has compounded its illegality by regularizing/absorbing the
Shiksha Mitras as Assistant Teachers. As a consequence,
qualified candidates fulfilling the NCTE norms are denied
the equality of opportunity to seek appointment as Assistant
F
Teachers. We have earlier held Rule 16-A to be ultra vires
the rule-making authority of the State Government since the
power to grant a relaxation ji'Om the minimum qualifications
is vested exclusively in the Central Government. In assuming
to itself a power to relax the minimum qualification and
thereafter by diluting the minimum qualifications in the case G
of Shiksha Mitras, the State Government has patently acted
in a manner which is arbitrary, ultra vires the governing
central legislation and in breach of the restraint on the limits
of its own statutory powers. By this exercise, the State
Government has sought to grant regularization to persons
H
476 SUPREME COURT REPORTS [2017] 10 S.C.R.
A who failed to fulfill the minimum qualifications and who were
never appointed against sanctioned posts. In these
circumstances, the grant of largesse by the State Government
to Shiksha Mitras cannot be upheld and the amendment to
the Rules is ultra vires and unconstitutional.
B
103. Jn the present case, it is evident that the Shiksha Mitras
do not fulfill any of the norms laid down by the Supreme
Court for regular absorption into the service of the State.
They were at all material times appointed as and continued
to be engaged as contractual appointees. Their appointments
c were not against sanctioned posts. They did not fulfill the
minimum qualifications required for appointment as Assistant
Teachers."
21. We are in agreement with the above findings. In view of clear
mandate oflaw statutmily requiring minimum qualification for appointment
D 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 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
E rules relating to qualifications. The Shiksha Mitras in the present case
do not fall in the category of pre 23'd August, 2010 Notification whose
appointment could be regularized.
22. Further difficulty which stares one in the face is the law laid
down by this Court on regularization of contractually appointed persons
F in public employment. Appointment of Shiksha Mitras was not only
contractual, it was not as per qualification prescribed for a teacher nor
on designation of teacher nor in pay scale of teachers. Thus_, they could
not be regularized as teachers. Regularization could only be of mere
irregularity. The exceptions carved out by this Court do not apply to the
case of the present nature.
G
23. 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.
H
STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 477
ORS. ETC. [ADARSH KUMAR GOEL, J.]
24. Since, we have given full hearing to all Shiksha Mitras through · A
their respective counsel, it is not necessary to consider the argument of
breach of procedure under Order [ Rule 8 CPC.
25. On the one hand, we have the claim of l.78 Lakhs persons to
be regularized in violation oflaw, on the other hand is the duty to uphold
the rnle of law and also to have regard to the right of children in the age B
of 6 to 14 years to receive quality education from duly qualified teachers.
Thus, even iffor 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 C
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.
26. 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 D
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 wcightage for their experience as may be decided
by the concerned authority. Till they avail of this oppo11unity, the State is E
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.
27. Accordingly, we uphold the view of the High Court subject to
above observations. All the matters will stand disposed ofaccordingly.
F
Kalpana K. Tripathy Appeals and Writ Petitions dispo-scd of.
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