1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION  CIVIL APPEAL NO.9546 OF 2017

(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)NO. 19091 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. …. CC 13922 OF 2016)

Ram Kumar Patel & Ors. etc. …Appellants Versus

State of U.P. & Ors. etc. …Respondents WITH

CIVIL APPEAL NO.9547 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. 1121 OF

2017)

CIVIL APPEAL NO.9548 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. 2921 OF

2017)

CIVIL APPEAL NO.9549 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. 1725 OF

2017)

CIVIL APPEAL NO.9551 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. 2932 OF

2017)

CIVIL APPEAL NO.9550 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. 1980 OF

2017)

CIVIL APPEAL NO.9706 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No.19116 OF

2017) (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. ….....CC No. 2417

OF 2017)

2

CIVIL APPEAL NO.9710 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. 19117  OF

2017) (ARISING OUT OF SLP (CIVIL)No. ……………….. CC No. 3861 OF

2017)

CIVIL APPEAL NO.9554 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. 5846 OF

2017)

CIVIL APPEAL NO.9715 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. 19118 OF

2017) (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. ………………..

CCNo. 4204 OF 2017)

CIVIL APPEAL NO.9716 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. 19121 OF

2017) (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. ………………..

CCNo. 3978 OF 2017)

CIVIL APPEAL NO.9718 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. 6607 OF

2017)

CIVIL APPEAL NO.9719 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No.19127 OF

2017) (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. ………………..

CCNo. 3975 OF 2017)

WRIT PETITION (CIVIL)NO. 900 OF 2016

WRIT PETITION (CIVIL)NO. 107 OF 2016

WRIT PETITION (CIVIL)NO. 167 OF 2015

CIVIL APPEAL NO.9720 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)No. 3050 OF

2017)

3

J U D G M E N T

Adarsh Kumar Goel, J.

1. Leave granted.  This  batch of  appeals  has arisen from the

judgment  dated  1st December,  2016  of  the  High  Court  of

Judicature at  Allahabad in Special  Appeal  No.657 of  20151 and

batch  of  the  High  Court  of  Judicature  at  Allahabad.   The High

Court  has  quashed the U.P.  Basic  Education  (Teachers)  Service

(16th Amendment)  Rules,  2012  on  the  ground  that  the  said

amendment  was   in  conflict  with  the  Notification  dated  11th

February,  2011  issued  by  the  National  Council  of  Teachers

Education (NCTE).   

2. It  is not necessary to discuss the issue in detail  as in the

impugned   judgment   the  High  Court  has  followed  its  earlier

judgment in  Shiv Kumar Pathak  v.  State of U.P.2  wherein

the issue of  validity  of  15th Amendment  to  the same rule  was

considered on the same ground.  The said issue has been gone

into by this  Court  in  a separate judgment in  Civil  Appeal  Nos.

1  2017(1)ADJ 141, 2017(1)ALJ 445 2  2013(1)ADJ 21

4

4347-4375 of 2014 entitled State of U.P. and ors.  versus  Shiv

Kumar  Pathak  and  Ors.  The  High  Court  in  the  impugned

judgment observed:

“…  …  …  During  the  course  of  submissions advanced by the rival parties before us, we noted that the issues which were being canvassed were in fact identical and similar to those framed by the  Supreme  Court  especially  issues  such  as whether the guidelines framed by the NCTE were valid, could they form the sole criteria for filling vacancies  and  if  held  to  be  intra  vires  what interpretation is liable to be rendered to the word “weightage” in paragraph 9(b) of the Guidelines dated  11th February,  2011.   Upon  this  being pointed out, the majority of the learned counsels for the parties urged us to proceed to dispose of this  batch  of  matters  so  as  to  enable  them to take their matters also to the Supreme Court and raise  all  contentions  so  that  a  quietus  to  the entire  controversy  is  ultimately  rendered.   We accordingly  proceeded  to  hear  the  parties  on merits  and  consequently  note  the  submissions advanced hereinafter. … … …

We find no ground which may warrant taking a different view.  Following the dictum laid down in Shiv  Kumar  Sharma  by  the  Full  Bench  as reiterated in Shiv Kumar Pathak, we uphold the guidelines and hold that they are not liable to be struck down on the grounds urged before us. … … …

As discussed in the earlier part of this judgment, the 16th Amendment Rules which came into force with  effect  from  4th December,  2012  did  not remedy the situation.  Rule 14(3) (a) which came

5

to  be  introduced  provided  that  the  names  of candidates would be arranged in accordance with quality  points  specified  in  Appendix-1. Appendix-1,  as  noted  above,  did  not  have  any independent existence.  It was introduced only by 15th Amendment Rules.  Once the Division Bench had struck down Rule 14(3) as introduced by the 15th Amendment Rules in Shiv Kumar Pathak, it cannot be said that the Appendix which came to be introduced by the said provisions continued to exist  or  remained  on  the  statute  book.   The Appendix to the original 1981 Rules as has been noted by us earlier had only a limited application. The 16th Amendment Rules therefore were clearly otiose and unworkable.

We  are  constrained  to  hold  so  in  light  of  the settled principle that when a statutory provision is  struck  down,  the  effect  of  such  a  judicial declaration  is  that  it  will  be  deemed  to  have never existed.  The declaration in  Shiv Kumar Pathak had the effect of erasing Rule 14(3) as introduced by the 15th Amendment Rules along with the Appendix introduced therein which also stood  completely  erased  and  effaced.   We  are constrained to record this  conclusion in light of the undisputed factual position that the insertion of Rule 14(3) by the 15th Amendment Rules led to a situation where original Rule 14 was completely substituted  and  consequently  ceased  to  exist. The subsequent  striking  down of  the amending rules will not revive the provisions as they stood earlier either at the time of promulgation of the 12th or  the  15th Amendment  Rules.   Presently therefore  as  the  enactment  exists  there  is  no revival  of  the  Appendix  or  Rule  14  as  it  stood prior to the promulgation of the 12th Amendment Rules.   We  are  therefore  of  the  considered opinion  that  the  16th Amendment  Rules  must necessarily fall.”

6

3. Accordingly, we may deal with the matter very briefly.  The

Uttar  Pradesh  Basic  Education  (Teachers)  Service  Rules,  1981

(1981 Rules) have been framed under Section 19 of U.P.  Basic

Education Act, 1972 (1972 Act).   Basic education in the State of

Uttar Pradesh is regulated by the 1972 Act.  Section 19 of the

1972  Act,  provides  for  rules  to  determine  the  qualification  for

appointment as teachers and conditions of service of teachers of

basic schools.   

4. Rule  8  of  the  1981  Rules  prescribes  the  academic

qualification  for  appointment  of  a  teacher.  The  qualification

prescribed  is  the  bachelor’s  degree  together  with  the  training

qualification  i.e.  Basic  Teacher’s  Certificate  (BTC),  Hindustani

Teacher’s  Certificate,  Junior  Teachers’  Certificate,  Certificate  of

Teaching  or  any  other  training  course  recognized  by  the

Government  as  equivalent  thereto.   Rule  14  lays  down  the

manner of appointment.  

5. The  1981  Rules  were  amended  in  2011  by  the  12th

Amendment.  Prior to the amendment, there was a provision for

quality points under Rule 14(4) as follows:

7

“(4) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner  that  the  candidates  who  have  passed the  required training  course  earlier  in  point  of time shall be placed higher than those who have passed  the  said  training  course  later  and  the candidates who have passed the training course in  a  particular  years  shall  be  arranged  in accordance with the quality  points  specified in the appendix.”

6. The Right of Children to Free and Compulsory Education Act,

2009 (RTE Act), enacted in the wake of Eighty Sixth Amendment

to  the  Constitution  in  the  year  2002,  regulates  elementary

education and also deals with the qualification for appointment of

teachers  under  Section  23  of  the  RTE  Act.   NCTE  constituted

under  the  National  Council  for  Teachers’  Education  Act,  1993

(NCTE Act) has been prescribed as an ‘academic authority’ by the

Central  Government  to  lay  down  the  minimum  qualification

prescribed for appointment of a teacher.  Accordingly, Notification

dated 23rd August, 2010 has been issued by the NCTE laying down

such qualification.  Teacher Eligibility Test (TET) is the essential

qualification prescribed under the said Notification.  However, the

guidelines/ Notification dated 11th February, 2011 provided that in

the  process  of  appointment  of  teachers,  weightage  has  to  be

given to the marks obtained in TET examination.  

8

7. As already noted, the State of Uttar Pradesh amended 1981

Rules by 12th Amendment.   This  was done to  comply  with  the

Notification dated 11th February,  2011.   However,  subsequently

there was further amendment.  Some of which were challenged

before the High Court on the ground of being repugnant to the

Central Rule/Notification dated 11th   February, 2011.  Conflicting

views were taken in the judgments of the Allahabad High Court.

In  Prabhakar  Singh  versus State of  U.P.3  it  was  held  that

weightage to the TET marks laid down in Notification dated 11th

February,  2011  was  not  mandatory.   The  said  judgment  was

doubted and the matter was referred to a Full Bench.  The Full

Bench  in  Shiv  Kumar  Sharma  versus State  of  U.P.4 held  a

different view.  It was held that by virtue of power of the Central

Government  on  a  subject  in  Concurrent  List,  in  case  of

repugnancy,  the  State  rule  was  required  to  comply  with  the

disposition in a central legislation.  Same view was taken in Shiv

Kumar Pathak  (supra).   Therein, Fifteenth Amendment to the

Rules was held to be in conflict with the NCTE Notification dated

3  (2013) 1 ADJ 651 4  (2013) 6 ADJ 310

9

11th February,  2011.    On  the  same reasoning,  the  impugned

judgment has struck down the Sixteenth Amendment.   

8. We have heard learned counsel for the parties.   9. Learned counsel for the State of U.P. submitted that there

was no conflict in the notifications issued by the NCTE and the

amendment  in  the  State  Rules.   It  was  submitted  that  the

jurisdiction of the NCTE under Section 23(1) was limited to laying

down  of  qualification  as  a  condition  for  appointment  and  the

power  conferred  under  the  said  section  did  not  stipulate

regulation of the selection process.   

10. The NCTE has taken a stand that its notification suggesting

weightage to TET marks was not mandatory.   The original  writ

petitioners  however  support  the  impugned  judgment  by

submitting that since the issue is covered by Entry 25 List III of

the Seventh Schedule to the Constitution, any standard laid down

by the Central Government will bind the State and any conflicting

decision of the State will be unconstitutional.

11. We find that there is no conflict in the notification issued by

the Central Government and the amendment to the State Rules

10

since the Notification dated 11th February, 2011 to the extent of

suggesting weightage to TET marks can be held to be merely a

guideline.   

12. We have already dealt with the matter in Civil Appeal Nos.

4347-4375 of 2014 entitled State of U.P. and ors.  versus  Shiv

Kumar Pathak and Ors.  and held that  weightage to the TET

marks  was  not  mandatory  and  the  State  rules,   not  being  in

conflict with the norms laid down by the NCTE, may not be held to

be void on the ground of repugnancy.   

13. Accordingly,  we  allow  these  appeals  and  set  aside  the

impugned judgment.  The State is at liberty to proceed with the

matter in accordance with law.   

…………………………………….J. (Adarsh Kumar Goel)

…………………………………….J. (Uday Umesh Lalit)

New Delhi; 25th July, 2017.