1

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION  CIVIL APPEAL NO.9529 OF 2017

(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 32599 OF 2015)

State of U.P. & Anr.  etc.         …Appellants Versus

Anand Kumar Yadav & Ors. etc. …Respondents WITH

CIVIL APPEAL NOS.9531-9542 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 33328-33339 OF

2015)

CIVIL APPEAL NO.9544 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36019 OF 2015)

CIVIL APPEAL NO.9545 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19097 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) ……CCNo.1621 OF

2016)

CIVIL APPEAL NO.9557 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 34093 OF 2015)

CIVIL APPEAL NO.9576 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36016 OF 2015)

CIVIL APPEAL NO.9571 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36033 OF 2015)

CIVIL APPEAL NO.9574 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36009 OF 2015)

CIVIL APPEAL NO.9575 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36031 OF 2015)

2

CIVIL APPEAL NO.9573 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36032 OF 2015)

CIVIL APPEAL NO.9572 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36007 OF 2015)

CIVIL APPEAL NO.9584 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36014 OF 2015)

CIVIL APPEAL NO.9581 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 33235 OF 2015)

CIVIL APPEAL NO.9570 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36015 OF 2015)

CIVIL APPEAL NO.9569 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36006 OF 2015)

CIVIL APPEAL NO.9577 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36003 OF 2015)

CIVIL APPEAL NO.9583 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36012 OF 2015)

CIVIL APPEAL NO.9585 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36021 OF 2015)

CIVIL APPEAL NO.9580 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36025 OF 2015)

CIVIL APPEAL NO.9582 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36020 OF 2015)

CIVIL APPEAL NOS.9586-9587 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 36262-36263 OF

2015)

CIVIL APPEAL NO.9578 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36028 OF 2015)

3

CIVIL APPEAL NO.9605 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 36024 OF 2015)

CIVIL APPEAL NO.9579 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 35999 OF 2015)

CIVIL APPEAL NO.9588 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 16169 OF 2016)

CIVIL APPEAL NO.9636 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19101 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) ……CCNo.21726 OF

2015)

CIVIL APPEAL NO.9589 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 4515 OF 2016)

CIVIL APPEAL NO.9696 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19103 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) ……CCNo.21689 OF

2015)

CIVIL APPEAL NO.9744 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 7131 OF 2016)

CIVIL APPEAL NOS.9697-9698 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos…19110-19111

OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) ……CCNos.2397-2398 OF

2016)

WRIT PETITION (CIVIL)No. 75 OF 2016

WRIT PETITION (CIVIL)No. 112 OF 2016

CIVIL APPEAL NO.9699 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19113 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) ……CCNo.2678 OF

2016)

CIVIL APPEAL NO.9606 OF 2017

4

(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No. 6858 OF 2016)

WRIT PETITION (CIVIL)No. 109 OF 2016

CIVIL APPEAL NOS.9712-9714 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 5137-5139 OF 2016)

WRIT PETITION (CIVIL)No. 99 OF 2016

CIVIL APPEAL NO.9717 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19122 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 3431 OF

2016)

CIVIL APPEAL NO.9721 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19125 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 3304 OF

2016)

CIVIL APPEAL NO.9722 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19130 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 3498 OF

2016)

WRIT PETITION (CIVIL)No. 104 OF 2016

WRIT PETITION (CIVIL)NO. 121 OF 2016

CIVIL APPEAL NO.9723 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19135 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 3574 OF

2016)

WRIT PETITION (CIVIL)No. 102 OF 2016

CIVIL APPEAL NOS.9724-9727 OF 2017

5

(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 10228-10231 OF 2016)

CIVIL APPEAL NOS.9728-9731 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 8511-8514 OF

2016)

CIVIL APPEAL NOS.9733-9736 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19138-19141 OF

2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC Nos. 5273-5276 OF

2016)

CIVIL APPEAL NOS.9756-9759 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 20444-20447 OF

2016)

CIVIL APPEAL NOS.9737-9739 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos.19143-19145 OF

2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC Nos. 5270-5272 OF

2016)

CIVIL APPEAL NOS.9740-9743 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 10224-10227 OF

2016)

CIVIL APPEAL NO.9745 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19147 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 19839 OF

2016)

WRIT PETITION (CIVIL)NO. 120 OF 2016

WRIT PETITION (CIVIL)NO. 124 OF 2016

WRIT PETITION (CIVIL)NO. 149 OF 2016

CIVIL APPEAL NOS.9746-9747 OF 2017

6

(ARISING OUT OF SPECIAL LEAVE PETITION (Civil) Nos. 19837-19838 OF 2016)

WRIT PETITION (CIVIL)NO. 188 OF 2016

WRIT PETITION (CIVIL)NO. 158 OF 2016

WRIT PETITION (CIVIL)NO. 176 OF 2016

WRIT PETITION (CIVIL)NO. 215 OF 2016

WRIT PETITION (CIVIL)NO. 206 OF 2016

CIVIL APPEAL NO.9748 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19148 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 9624 OF

2016)

WRIT PETITION (CIVIL)NO. 244 OF 2016

CIVIL APPEAL NO.9749 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19155 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 10257 OF

2016)

WRIT PETITION (CIVIL)NO. 276 OF 2016

WRIT PETITION (CIVIL)NO. 287 OF 2016

CIVIL APPEAL NO.9751 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19156 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 14277 OF

2016)

CONTEMPT PETITION (CIVIL)NO. 453 OF 2016 IN CIVIL APPEAL NOS. 4347-4375 OF 2014

7

WRIT PETITION (CIVIL)NO. 605 OF 2016

CIVIL APPEAL NO.9752 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19158 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 14057 OF

2016)

CIVIL APPEAL NO.9753 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19159 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 14058 OF

2016)

CIVIL APPEAL NO.9754 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19160 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 15298 OF

2016)

CIVIL APPEAL NO.9755 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) No.19161 OF 2017) (ARISING OUT OF SPECIAL LEAVE PETITION (Civil) …..CC No. 15910 OF

2016)

WRIT PETITION (CIVIL)NO. 826 OF 2016

CONTEMPT PETTION (CIVIL)NO. 781 OF 2016 IN CIVIL APPEAL NOS. 4347-4375 OF 2014

WRIT PETITION (CIVIL)NO. 915 OF 2016

CONTEMPT PETITION (CIVIL)NO. 928 OF 2017 IN WRIT PETITION (CIVIL)NO. 167 OF 2015.  

J U D G M E N T Adarsh Kumar Goel, J.

8

1. Leave granted.   This batch of cases arises out of judgment

of the Allahabad High Court dated 12th September, 2015 in Writ

Appeal  No.  34833  of  20151 and  connected  matters.  The  High

Court allowed the batch of writ petitions and directed as follows:  

“(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  Amendment) Rules 2014 is held to be arbitrary and ultra vires and is quashed and set aside;

(ii)  The  Uttar  Pradesh  Basic  Education  (Teachers)  Service (Nineteenth Amendment) Rules 2014, insofar as they prescribe as a source of recruitment in Rule 5(2) the appointment of Shiksha Mitras; the academic qualifications for the recruitment of Shiksha Mitras in Rule 8(2)(c) and for the absorption of Shiksha Mitras as Assistant Teachers in junior basic schools under Rule 14(6) are set aside as being unconstitutional and ultra vires; and (iii) All consequential executive orders of the State Government providing  for  the absorption  of  Shiksha  Mitras  into  the  regular service of the State as Assistant Teachers shall stand quashed and set aside.”

1  (2015) ILR All 1108 : (2015) 8 ADJ 338  Anand Kumar  Yadav vs. UOI

9

2. Main question for consideration is whether it is permissible

to  appoint  teachers  for  basic  education  who  do  not  have  the

requisite statutory qualifications?

FACTS : 3.1 Brief factual matrix may be noted. U.P. Basic Education Act,

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

purpose of the Act.  U.P. Basic Education (Teachers) Service Rules,

1981  (1981  Rules)  lay  down  sources  of  recruitment  and

qualification for appointment of teachers.  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 for

appointment of teachers.  The NCTE was designated as authority

under  Section  23(1)  to  lay  down  the  qualifications  for

appointment of teachers.  

10

3.2 The NCTE issued notification dated 23rd August, 2010 laying

down such qualifications.  With regard to teachers appointed prior

to the said notification, it was stated that they were required to

have qualifications  in terms of the National Council for Teacher

Education  (Determination  of  Minimum  Qualifications  for

Recruitment of Teachers in Schools) Regulations, 2001 (the 2001

Regulations),  if  the  teachers  were  appointed  on  or  after  3rd

September, 2001 subject to their undergoing NCTE recognized six

months  special  programme  in  certain  situations.  Teachers

appointed  before  3rd September,  2001  were  required  to  have

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

8th November, 2010, the Central Government sought proposals for

relaxation under Section 23 (2) of the RTE Act which was followed

by the relaxation Order dated 10th September, 2012 for certain

categories of persons which was to operate till 31st March, 2014.

Vide  letter  of  the  NCTE  dated  14th January,  2011,  the  NCTE

accepted the proposal of the State of Uttar Pradesh  for training of

untrained graduate Shiksha Mitras by open and distance learning

11

but it was made clear that no appointment of untrained teachers

was permitted.  

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 of U.P. also purported to frame rules called

U.P. RTE Rules, 2011.  

3.4 Reference may now be made to the scheme under which the

Shiksha Mitras were recruited.  On 26th May, 1999, a Government

Order was issued by the State of U.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 cost as against the prescribed

salary of a qualified teacher.  The Government Order (G.O.) stated

that upto the limit of 10,000, Shiksha Mitras could be contracted

for academic session 1999-2000 at honourarium of Rs.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:-

12

“(i)  The appointment of Shiksha Mitras was  to  be  against  the  payment  of  an honorarium; (ii)  The  appointment  was  to  be  for  a period of eleven months renewable for satisfactory performance; (iii) The educational qualifications would be of the intermediate level; (iv) The unit of selection would be the village where the school is situated and in the event that a qualified candidate was not available in the village, the unit could be extended to 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 (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  Panchayat  Raj  Officer  and  the District  Basic  Education  Officer  among other  members  to  oversee implementation.”

3.5. Further G.O.s were issued by the State of U.P. including G.O.

dated 1st 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.  

13

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 particular State did not have adequate

institutions  for  teachers  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 31st March, 2014.

3.7 The State Government submitted a revised proposal dated

3rd January,  2011  envisaging  giving  of  training  to  the  shiksha

Mitras which was accepted by the Central Government in terms of

the  letter  dated  14th January,  2011  for  two  years  diploma  in

elementary education through open and distance learning mode

with  a  clear  understanding  that  no  untrained  teachers  will  be

appointed.

14

3.8 Finally,  the  State  of  U.P.  took  following  steps  which  were

subject matter of challenge before the High Court:  

A. Notification dated 30th May, 2014 amending U.P. RTE Rules

introducing Rule 16-A authorizing the State Government to relax

minimum educational qualifications for appointment of Assistant

Teachers in Junior Basic Schools.   

B. Notification  dated  30th May,  2014,  amending  the  1981

Rules:-  Rule 8 laid down revised qualifications for appointment of

Assistant  Master  and Assistant  Mistress  of  Junior  Basic  Schools

which qualifications are different from the statutory qualifications

under Section 23 of the RTE Act.  Rule 5 was amended to add

Shiksha Mitras as source for recruitment of teachers in addition to

the existing source of direct recruitment in accordance with the

existing  rules.   Rule  14  was  also  amended  to  enable  Shiksha

Mitras  to  be  appointed  as  teachers  against  substantive  posts

without having the qualifications prescribed under Section 23 of

the RTE Act.  

C. G.O. dated 19th June, 2013 was issued giving permission for

appointment of Shiksha Mitras on the post of Assistant Teachers in

15

primary schools without having the eligibility and qualifications in

terms of RTE Act, 2009.  A time table was laid down for absorption

of Shiksha Mitras as Assistant Teachers.  

D. The  consequential  executive  orders  were  issued  for

absorption  of  1,24,000  graduate  Shiksha  Mitras  and  46,000

intermediate Shiksha Mitras.  

4. From the above resume of facts, following points are clear :

(i)  Shiksha  Mitras were  appointed  on  contractual  basis  to

enable  the  rural  youth  to  render  community  service  on

honorarium which was less than the pay scale of teachers.  

(ii)  They  were  not  required  to  have  the  statutory

qualifications for appointment of teachers.   

(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  of

Notification dated 23rd August, 2010.

16

(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 mandate of Section 23 of the RTE Act.

(vi)  Regularization was not on posts on which the  Shiksha

Mitras  were  appointed  and  were  working  but  on  the  post  of

teachers on which neither they were initially appointed nor they

were qualified.     

The Statutory provisions and relevant documents  

5. Significant  provisions/  notifications  to  which  reference  is

necessary are as follows :  

(i) Section 23 of the RTE Act “23.  Qualifications  for  appointment  and  terms  and conditions  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.

17

(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 notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification: Provided that a teacher who,  at  the  commencement  of  this  Act,  does  not possess  minimum qualifications  as  laid  down under sub-section  (1),  shall  acquire  such  minimum qualifications within a period of five years. … …    

… … …”

(ii)  Notification dated 23rd August, 2010 under  Section 23(1) of the RTE Act :

“Notification dated 23  rd   August, 2010

NATIONAL COUNCIL FOR TEACHER EDUCATION NOTIFICATION

New Delhi, the 23rd August, 2010

F. No. 61-03/20/2010/NCTE/(N & S).-In exercise of the  powers  conferred  by  Sub-section  (1)  of Section 23 of the Right of Children to Free and Compulsory  Education  Act,  2009 (35 of  2009), and in pursuance of Notification No. S.O. 750(E) : MANU/HRDT/0013/2010 dated 31st March, 2010 issued by the  Department of School Education and  Literacy,  Ministry  of  Human  Resource Development, Government of India, the National Council  for  Teacher  Education  (NCTE)  hereby lays down the following minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII in a school referred to in clause (n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009, with effect from the date of this notification:-

18

1. Minimum Qualifications:-

(i) CLASSES I-V

(a) Senior Secondary (or its equivalent) with at least  50%  marks  and  2  year  Diploma  in Elementary  Education  (by  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  Norms and Procedure), Regulations 2002.

OR

Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary  Education (B.El.Ed.)  

OR

Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Education  (Special Education)  

AND

(b) Pass in the Teacher Eligibility Text (TET), to be conducted by the appropriate Government in accordance  with  the  Guidelines  framed by the NCTE for the purpose.

(ii) Classes VI-VIII

(a) B.A/B.Sc. and 2 year Diploma in Elementary Education (by whatever name known)

OR

19

B.A/B.Sc. with at least 50% marks and 1 year  Bachelor in Education (B.Ed.)

OR

B.A/B.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.  

OR

Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor in Elementary Education (B.El.Ed.)  

OR

Senior Secondary (or its equivalent) with at least 50% marks and 4 year BA/B.Sc. Ed or  B.A.Ed./B.Sc. Ed.

OR

B.A./B.Sc. with at least 50% marks and 1 year  B.Ed. (Special Education)

AND

(b) Pass in the Teacher Eligibility Text (TET), to be conducted by the appropriate Government in accordance  with  the  Guidelines  framed by the NCTE for the purpose.

2.  Diploma/Degree  Course  in  Teacher Education:- For the purposes of this Notification, a  diploma/degree  course  in  teacher  education recognized by the National  Council  for Teacher Education  (NCTE)  only  shall  be  considered. However,  in  case  of  Diploma  in  Education

20

(Special Education) and B.Ed (Special Education), a  course  recognized  by  the  Rehabilitation Council of India (RCI) only shall be considered.

3.  Training to be undergone:- A person-(a) with B.A/B.Sc.  with  at  least  50%  marks  and  B.Ed. qualification  shall  also  be  eligible  for appointment  for  class  I  to  V  upto  1st  January, 2012,  provided  he  undergoes,  after appointment,  an  NCTE   recognized  6  month special programme in Elementary Education.  

(b)  with  D.Ed.  (Special  Education)  or  B.Ed. (Special  Education)  qualification  shall  undergo, after appointment, an NCTE recognized 6 month special programme in Elementary Education.”

(iii)  Extract  from  NCTE  Regulations,  2001  laying  down

qualifications for recruitment of teachers:-

“III. Elementary  

(a) Primary  

(i) Senior Secondary School certificate of Intermediate or  its equivalent; and  

(ii) Diploma or certificate in basic teachers training of a  duration of not less than two years. OR

Bachelor of Elementary Education (B EI Ed)

(b) Upper Primary (Middle school section)

(i) Senior Secondary School certificate or Intermediate or  its equivalent; and  

(ii) Diploma or certificate in elementary teachers training  of a duration of not less than two years.  

OR

Bachelor of Elementary Education (B EI Ed) OR Graduate  with Bachelor of Education (B Ed) or its equivalent.”

21

(iv)  Appendix-9  laying  down  norms  and  standards  for

diploma  in  elementary  education  through  open  and

distance learning:-   

"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  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 useful  and viable mode for the training of teachers presently serving in the elementary  schools.  This  mode  is  useful  for providing  additional  education  support  to  the teachers  and  several  other  educational functionaries working in the school system."

(v) Letter of the Central Government 8th November, 2010 for relaxation of norms fixed by NCTE :  

“3. In order to enable the Central Government to  provide  relaxation  under  sub-section  (2)  of section 23 to a State, it is considered necessary to  obtain  relevant  information  from  the  State Government relating to demand of teachers and availability/ supply of qualified persons who are eligible  for  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:

22

(a)  Quantitative  information  as  per  the format  prescribed  in  the  Annexure  to  the Guideline.

(b)  Nature of  relaxation sought,  separately for classes I to V and VI to VIII,  along with justification;

(c)  The time period for  which relaxation is sought;

(d) The manner in which and the time period within  which  the  State  Government  would enable  teachers,  appointed  with  relaxed qualification,  to  acquire  the  prescribed qualification;

(e) The manner in which and the time period within  which  the  State  Government  would enable existing teachers, not possessing the prescribed  qualification,  to  acquire  the prescribed  qualification.   Reference  in  this regard  is  invited  to  para  4  of  the aforementioned Notification of the NCTE;

(f)  Any  other  information  the  State Government may like to furnish in support of its  request  for  seeking  relaxation  under section 23(2).

4. The condition of passing TET will be relaxed by the Central Government.  

5.  The Central Government will  examine the request of the State Government based on the proposal  submitted  by  the  State  Government and  additional  information  which  the  Central Government may request the State Government to furnish, take a decision to issue Notification under section 23(2) of the Act.  Only after the Notification  is  issued  would  the  State Government  or  a  local  authority  or  any aided/ unaided  school  in  the  State  appoint  teachers with the relaxed qualification in accordance with

23

terms  and  condition  mentioned  in  the  said Notification.”   

(vi) Rule 5 of the 1981 Rules as amended on 30th May, 2014 :

"5.  Sources  of  recruitment--The  mode  of recruitment  to  the  various  categories  of  posts mentioned below shall be as follows:

(a)  (i)  Mistresses  of Nursery School  

By  direct  recruitment  as provided in rules 14 and 15;

(ii) Assistant Masters and Assistant  Mistresses  of Junior Basic Schools

By  direct  recruitment  as provided in rules 14 and 15;

or By  appointment  of  such Shiksha Mitras as are engaged as Shiksha Mitra and working as  such  on  the  date  of commencement  of  the  Uttar Pradesh  Basic  Education (Teachers)  (Nineteenth Amendment) Rules, 2014.*

(vii) Amendment to Rule 8 of the 1981 Rules in terms of the Notification dated 30th May, 2014 defining qualification for eligibility for appointment of a teacher:

(ii) Assistant Master and Assistant  Mistresses  of Junior Basic Schools

(ii)(a)  Bachelors  degree  from  a University  established  by  law  in India or a degree recognized by the Government  equivalent  thereto together  with  any  other  training course  recognized  by  the Government  as  equivalent  thereto together  with  the  training

24

qualification  consisting  of  a  Basic Teacher’s  Certificate  (BTC),  two years BTC (Urdu), Vishisht BTC and teacher  eligibility  test  passed, conducted by the Government or by the Government of India;  

(b)  a  Trainee  Teacher  who  has completed  successfully  six  months special  training  programme  in elementary education recognized by NCTE;  

(c)  A Shiksha Mitra  who possessed Bachelors degree from a University established  by  law  in  India  or  a degree  recognized  by  the Government equivalent thereto and has  completed  successfully  two years distant learning BTC course or Basic  Teacher’s  Certificate  (BTC), Basic  Teacher’s  Certificate  (BTC) (Urdu) or Vashist BTC conducted by the  State  Council  of  Educational Research and training (SCERT).

                               (emphasis  supplied)  

(viii) Rule 14 (6)(a)  of the 1981 Rules as amended on  30th May, 2014 :

"14(6)(a) The Shiksha Mitra after obtaining the certificate of successful completion of two years distant BTC course or Basic Teacher's Certificate (BTC), Basic Teacher's 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

25

in junior basic schools, the appointing authority shall  determine  the  number  of  vacancies including  the  number  of  vacancies  to  be reserved  for  candidates  belonging  to  the Scheduled Castes,  the  Scheduled Tribes,  Other Backward  Classes  and  other  categories  under Rule 9."

(ix) Rule 16-A introduced into the U.P. RTE Rules, 2011 on

30th 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  of  minimum  educational  qualification  for appointment of such Shiksha Mitras as Assistant Teachers in  Junior  Basic  Schools  as  are  considered  otherwise eligible."

(x) Government Order dated 19th June, 2014 :  “2. In reference to the above subject I have been directed to say that the permission for appointment of Shiksha Mitra’s on the  post  of  assistant  teacher  in  primary  schools  by  the  U.P. Basic Education Board is being given as follows:

1. 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 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.  

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.T.C. two years course through ODL System under State Council for  Education,  Research  and  Training,  B.T.C.  (Urdu), Special B.T.C.

26

4. Selection Process-

A. Shiksha Mitras who have passed B.T.C. two years course through ODL System under State Council  for  Education, Research  and Training,  B.T.C.  (Urdu),  Special  B.T.C.  and 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 authority will 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.

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  shool shallbe arrange din the ascending order of the Date of Birth meaning a candidate who is  elder in age will  be placed higher.   

If the date of birth of two Shiksha Mitras is common then their  name  shall  be  arranged  in  accordance  with alphabetical order (English)

D. Shiksha Mitra will not be considered to be eligible for substantive appointment on the post of Assistant teacher in junior basic school unless his name is included in the abovementioned list.   

E. A list prepared by the appointing authority under Cl. (C) above shall be forwarded to a selection committee constituted  under  Rule  16  of  the  U.P.  basic  education (teachers) Service Rules, 1981 which shall be as follows:-

27

(A) Principal,  District  Institute  of education and training

Chairman

(B) District basic education officer Member/ Secretary

(C) Principal  of  Govt.  Girls  Inter College  situated  at  district headquarter

Member

(D) An expert in Hindi, Urdu or other languages  appointed  by  the District Magistrate

Member  

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.   

F. The selection committee shall after going through the 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 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).  

(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 candidates to  District  Basic  Education  Officer  who have  qualified  two  years  BTC  training through  distance  mode  from  District Institute of Education and Training

Till  30  June, 2014

2- Publication of the advertisement by the Within  one

28

District  Basic  Education  officer  for  the counseling of Shiksha Mitras including the name,  date  of  counselling  and  place  of counselling.   

week  of  the receipt of the list.  

3-  Participation  of  the Shiksha Mitras  in the  counselling  with  their  educational/ training certificates and residence/ caste certificates.  

From 10  July, 2014  to  22 July, 2014

4- Process of Approval of the selection list by Selection Committee

Till  25th July, 2014

5-  Process  of  issuance  of  appointment letter

Till 31.07.2014

3. Therefore it is requested to ensure the appointments of the Shiksha Mitras in primary schools run by U.P. Basic Education Board in accordance with the determined conditions and the time table.”  

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:  

“(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 U.P. Right of Children to Free and Compulsory Education (First Amendment) Rules 2014  and  U.P.  Baisic  Shiksha  Adhyapak  Seva (19th Sansodhan)  Niyamawali  2014  (Annexure Nos.22A & 22B);

29

(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  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 fit and proper in the circumstances of the case; and  

(e) Award cost of the petition to be paid to the petitioners.”   

7. Case set out in the petition was that in view of Notification

issued  by  the  NCTE  23rd August,  2010  laying  down  minimum

qualification for appointment of Assistant Teacher for classes I to

VIII,  the decision of the U.P.  Government dated 19th June, 2014

and amendments made by the U.P Government on 30th May, 2014

were in conflict with the Notification issued by the NCTE on 23rd

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

covered by the conditions for relaxation.  The 1981 Rules of the

30

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 Devi 2 as  their  appointment  was  de

hors the 1981 Rules, having not been made after following the

rules for appointment of teachers.  It was also submitted that the

nature  of  appointment  of  Shiksha  Mitras 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 a condition for approval by the NCTE in its

letter dated 14th 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.   

2  (2006) 4 SCC 1

31

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  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.  

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;

(2) Whether the State Government did have the power,  by  virtue  of  Section  13(1)  of  the  Basic Education Act 1972 and having due regard to the provisions of Entry 25 of the Concurrent List to the Seventh Schedule, to issue the Government Order dated 26 May 1999;

(3)  Whether  the  Government  Order  dated  26 May 1999 can be regarded as a valid exercise of

32

power  under  Article  162  of  the  Constitution, where the Service Rules of 1981 were silent in regard to the appointment of untrained teachers;

(4)  Whether  the  Village  Education  Committees had a statutory character by virtue of Section 11 of the U.P. Basic Education Act, 1972;

(5) Whether the appointment of Shiksha Mitras can  be  regarded  as  being  made  against substantive  posts,  since  the  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 16(3)(d) of the NCTE Act;

(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  reasonable  effort  and  not  mala 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;

(10)  Whether  the  power  of  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 2010.”  

33

10. The findings of the High Court in brief are that having regard

to the nature of appointment 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 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 Bench judgment in

Km  Sandhya  Singh  versus  State  of  Uttar  Pradesh3 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  Kumar  Sharma  versus  State  of  Uttar

Pradesh4 for post 23rd August, 2010 appointments.  Nor pre 23rd

August,  2010  appointments  could  be  saved  unless  initial 3  2013 (7) ADJ 1 (FB) 4  2013 (6) ADJ 310 (FB)

34

appointments were to the post of teachers in terms of applicable

rules as stated in the Notification dated 23rd August, 2010.   The

amendments to the State RTE Rules, 2011 and the Service Rules

of 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.  Moreover, the

regularization of  Shiksha Mitras  as teachers was not permissible

in  view  of  the  law  laid  down  in  Uma  Devi  (supra).   The

appointment of Shiksha Mitras was not as teachers nor it could be

held  to  be  merely  irregular  in  absence  of  their  minimum

qualifications  for the post of teachers which was a distinguishing

feature  rendering  the  judgments  State of  Karnataka versus

M.L.  Kesari5 and Amarendra  Kumar  Mohapatra  versus

State of Orissa6 inapplicable.   

Rival Contentions :

12. We may now deal  with  the contentions  raised before  this

Court in assailing the judgment of the High Court. Following are

5  (2010) 9 SCC 247 6  (2014) 4 SCC 583

35

the broad contentions of the appellants, the State of U.P. and the

Shiksha Mitras;  

(i) Free and compulsory education to children of the age of 6 to 14

is  a  fundamental  right  under  Article  21A  which  was  earlier  a

directive  principle  under  Article  45  of  the  Constitution.  For

elementary education of children 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 of U.P. had

about 1 lakh teachers.  The Shiksha Mitras scheme was to achieve

the object of education for all at less cost.  The  Shiksha Mitras

were duly selected and had undergone training at district training

institutes. Most of them were graduates and all of them were at

least intermediate.  It was submitted that NCTE vide letter dated

26th October, 2015 clarified to the State Government that TET was

applicable to teachers appointed after 25th August, 2010. Those

appointed earlier and are in continuous service did not require the

TET.  It was also submitted that vide Notification dated 13th April,

2017,  the  Central  Government  had  extended  the  time  for

acquiring minimum qualification upto 31st March, 2019 exercising

its power under Section 23(2) of the Act in respect of the State of

36

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 23(2)

permitting four years further time from the date of amendment

for acquiring minimum qualification required under Section 23(1)

of the Act.  

(ii)    Article 243G of  the Constitution provides for  punchayat’s

functions  as  institution  for  self  governance  with  respect  to

schemes  of  social  justice  in  relation  to  matters  listed  in  XI

Schedule which  includes  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 versus State of Rajasthan7 .

7  (1968) 1 SCR 111 at 119

37

(iv) The Notification dated 23rd August, 2010 was repugnant to the

regulations framed by the NCTE and the said regulations have to

prevail in case of repugnancy.   

(v) In any case power under Article 142 should be exercised by

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 of long

length of  service of  the  Shiksha Mitras in  view of  the law laid

down  by  this  Court  in  M.L.  Kesari9 and Amarendra  Kumar

Mohapatra  (supra).  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 appointment of para teachers has

led to lower pupil teacher ratio.  Thus, 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 though regularization may

not  be  permitted,  the  State  can  specify  a  source  for  fresh

8  (1991) 4 SCC 584 9  (2010) 9 SCC 247

38

recruitment  with  relaxed  educational  qualification  as  held  in

Official Liquidator versus Dayanand10.  

(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,  New  Delhi11,  Ramchander  Sunda  versus

Union of India12 and Common Cause, A Registered Society

versus Union of India13.  

13. The above submissions have been opposed by the original

writ  petitioners.   They support  the  impugned judgment.   Their

contentions are summarized as follows:  

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

10  (2008) 10 SCC 1 11  (1975) 4 SCC 714 para 28 12   (1999) 9 SCC 105 13  (1994) 5 SCC 557 para 2

39

Parliament  incorporates  a  minimum  mandatory  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.   

ii. The  High  Court  has  clearly  and  rightly  found  that  the

impugned rules/ decisions of the State of U.P. were 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 duly appointed teachers)

was applicable for appointing Shiksha Mitras as teachers nor the

relaxation  power  was  applicable  to  post  23rd August,  2010

appointees (except for a limited period).  Proposed amendment

giving  further  time  for  acquiring  minimum  qualifications  was

applicable to otherwise validly appointed teachers only.  

40

iii. Article 243G or the concept of de-centralization of powers to

the  Panchayats did  in  any  manner  permit  violation  of  a  valid

legislation on the subject.  

iv. There was no basis whatsoever for holding the 23rd August,

2010 Notification to be in any manner ultra vires.  

v. Power  under  Article  142  of  the  Constitution  should  be

exercised to advance justice and not to defeat the Parliamentary

mandate for advancement of proper education.   

vi. Alleged non-compliance of provisions of Order 1 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 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 (MST)

41

versus  Mohd.  Usman 14 and  Olga  Tellis  versus  Bombay

Municipal Corporation15.  

vii. Regularization of  Shiksha Mitras  as teachers is contrary to

the law laid down by this Court in Uma Devi (supra), Union of

India versus Arulmozhi Iniarasu16 and Grah Rakshak, Home

Guards  Welfare  Association  versus  State  of  Himachal

Pradesh17.   Judgments  in  M.L.  Kesari18 and Amarendra

Kumar  Mohapatra  (supra)  are  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, the same could not be against the mandate of law

with regard to the minimum statutory qualifications.  Reliance was

placed on Yogesh Kumar versus Govt. of NCT, Delhi19and K.

Narayanan versus State of Karnataka20.   

14  (1991) 3 SCC 114 15  (1985) 3 SCC 545 16  (2011) 7 SCC 397 para 23 17  (2015) 6 SCC 247 para 33 18  (2010) 9 SCC 247 19  (2003) 3 SCC 548 Para 5 20  (1994) Suppl.(1) Page 44 Para 6

42

Questions before the Court :

14. Thus, questions which need to be gone into are:   

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 was applicable or stood relaxed in the case of Shiksha

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:

43

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 that the matter involves 1.78 lakhs persons

and  the  question  whether  benefit  once  given  to  them  (even

unlawfully) ought to be now withdrawn if the 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 that right to education is right to quality education.

Concern  for  unsatisfactory  quality  of  education  has  been

expressed  by  this  Court  on  several  occasions.   This  Court  in

Ashoka Kumar Thakur  v.  Union of India21 observed as under:

“422. In  Unni  Krishnan  [1993]  1  SCC  645,  Reddy,  J. observed  that  the  quality  of  education  in  government schools  was  extremely  poor  and  that  the  schools  were woefully inadequate to the needs of the children. He noted that  many countries  spend 6% to 8% of  gross domestic

21  (2008) 6 SCC 1 – Ashok Kumar Thakur  v.  Union of India

44

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  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 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  words,  and  30  million  can  read  paragraphs. Over  55 million of  these children will  not  complete  four years  of  school,  eventually  adding  to  the  illiterate population of India. The national literacy rate is 65%.

424. 24  districts  with  more  than  50,000  out  of  school 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.  According  to  Pratham  (and  in-line  with  the Ministry 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)

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 III to V, where only 66.4% could read Standard I 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

45

cent  cannot  even  recognise  numbers  between 10 and 99.”

      ”

17. To  make  the  right  to  education  meaningful,  a  qualified

teacher 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 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 such skill is pedagogy. Teachers have to serve the larger interest of the society as they are building the future. Henry Brooks  Adams  said,  "A  teacher  affects  eternity;  he  can never  tell  where  his  influence  stops"  and  more appropriately Christa Mcauliffe said " I touch the future. I teach". This 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,  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  necessarily  be  a good teacher.

46

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 Froebel. The 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 only to emphasize  that  a  great  scientific  contribution  has  been made to this skilful art of pedagogy. If one goes through the works 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  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 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 of fruitful elements that ensue an enduring significance in life, affirmative information of all modes  of  intellectual,  systematical  and  practical  activity that play a major part in the building of human mind and spirit.  Their  interplay  is  the  exercise  that  has  to  be 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  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:

47

A good teacher  must  know how to arouse the interest  of  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 knowledge  … … … … … … … …

…

61.  Describing  the  role  model  of  teachers,  our  Former President  of  India  Dr.  A.P.J.  Abdul  Kalam,  narrated  his experience in his teachers' day speech on 5th  September, 2003 and said that a school must have the best of teachers who have the ability to teach, love teaching and build moral 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 will be presumed to have succeeded in the test if he scores 60%  or  more.  Some  confessions  have  been  given  for reduction in the said percentage in the case of scheduled caste, scheduled tribes, and other backward classes as well as differently abled persons.  

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 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 absence of knowledge about the mind which is to receive them.

48

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 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 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,  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  himself/herself.  A  psychological independence that enables him/her to decide at the same time and differentiate 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 1/4th preparation and 3/4th performance.  

65. A teacher is like a professional as said by Danny Hillis, "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.

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 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

49

a teacher at the primary level is to generate this element of curiosity in a child.

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 to 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 innocence  of  childhood  and  the  folly  of  youth.  It  is  this aspect  of  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  inquisitive  child.  A teacher 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 filled 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. 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 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 is enjoined with the duty of child development. This therefore is  the  background-in  which  the  teachers  role  attains immense significance. It is for such reasons that the Union

50

and the State appear to have come up with the necessity of a teacher eligibility test.

71.  The importance of teaching and a teacher's selection 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  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 sufficient to assess the capacity of a teacher.

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  early  dealings  with  early  tendency; elimination  of  wrong  doing,  not  by  plainly  repressive methods is also one of the arts that has to be possessed by a skilful teacher.

73. All this goes to fulfil the objectives with which Article 45 of  the  Constitution  of   India  was  incorporated  under  the 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  elementary school  where  he  has  to  be  taught  his  initial  alphas  and betas.  The  pronunciation,  sentence-forming,  elementary grammar and 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  of  the  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 studies to gauge the overall awareness of human life and nature. This has to be coupled

51

with  moral  education  and  discipline  and  this  entire combination in one performance is the skill of a teacher. He has to handle the weak and the nervous, the mediocre and intelligent,  with  an  adequate  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 boy into a courageous one nor does it turn a spoilt  brat  into  an  angel.  Nonetheless  it  is  useful  to remember  Bishop  Fulton  J  Sheen  who  said  "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 and that is what the teacher eligibility test is designed for. It is only to assess these  qualities  that  would  qualify  a  teacher  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  training qualifications.

74. It would be apt to quote Charles Dickens in his famous book "Hard Times" where the quality of a teacher has been expressed from another angle as follows:

“What I want is facts. Teach these boys and girls nothing but facts. Facts alone are wanted in  life.  Plant  nothing  else,  and  root  out everything else.”

75.  The  role  of  teaching  is  therefore  of  a  mediator  of learning,  a  parent  substitute,  a  controller  of  students' behaviour, an agent of social change and finally a judge of achievement.  The teacher who enters  a school  imparting elementary education has to act like a group leader who can remove the  hindrances  of  doubts  in  the  mind  of  an infant and generate creative 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

52

child  development.  It  is  in  the  early  years  that  the importance  of  education  has  to  be  preached  so  as  to achieve what a former U.S. President Garfield said "Next in importance  to  freedom  and  justice  is  education  without which the other two cannot be entertained.”

18. In the impugned judgment the Full Bench of the High Court

highlighted the importance of the prescribed TET qualification as

follows:

“93.  The object and purpose of introducing the TET is to ensure  that  a  teacher  who  embarks  upon  instructing students  of  primary  and  upper  primary  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  the well  rounded development  of  the child. Teaching  a  child  is  not  merely  a  matter  of  providing information. 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 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 fulfill  an important public purpose by ensuring a complement of trained teachers who contribute to  the  learning  process  of  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  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 must be disapproved by the Court. We have done so  on the  ground that  the State  Government lacks  the  legislative  power  and  competence  to  do  so. Equally, fundamental is the concern that a relaxation of the

53

norms  prescribed  by  an  expert  body  will  result  in  grave detriment  to  the  development  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 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  of  parochial  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 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 of legislative mandate.  

20. We  may  now  further  examine  the  question  whether  the

Shiksha  Mitras  have,  under  the  law,  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:

54

“58.  The  essential  characteristics  of  the  Shiksha  Mitra Scheme  envisaged,  firstly,  that  each  appointment  was made on a contractual basis for a stipulated term of eleven months, renewable subject to satisfactory performance and on  an  honorarium.  Secondly,  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 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 service  by  the  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 every prospective candidate  was  required  to  fill  up  in  terms  of  the Government  Order  dated  1  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  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  sanctioned  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 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, of the District Panchayat Raj Officer and  the Basic Education

55

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 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 basic teacher's  certificate.  This was not a requirement  for  Shiksha  Mitras  under  the  Government 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 was evidently not the manner in which  reservations  in  the  recruitment  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 same category as the Gram Pradhan, thereby resulting in a rough and ready adoption of the norm of reservation. This is certainly 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 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 contemplate horizontal reservation across various classes. 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. … … … …   

… … … … …

56

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 U.P. Basic Education Act, 1972 contemplates the constitution of Village Education Committees. This does not render the Shiksha Mitra Scheme a statutory scheme. The function  of  Village  Education  Committees  as  defined  in sub-section  (2)  of  Section  11  is  to  establish,  administer, control  and manage basic schools  in  the Panchayat area and to discharge such other functions pertaining to basic education as may be entrusted by the State Government. This,  in  our  opinion,  does  not  render  the  Scheme  of appointing Shiksha 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 contrary, compliance with the Service  Rules  of  1981  was  sought  to  be  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 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 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  subject  to  the  discipline  of  the 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.  

… … … … … … … … …

57

70.  Evidently,  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 BTC qualification. 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 be in accordance with the prevalent recruitment rules.  The engagements of  Shiksha Mitras were de hors the recruitment rules and were not in accordance 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  of  five  years  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 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 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 on 14 January 2011 was specifically in the context of the 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

58

Shiksha 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  Shiksha Mitras who were within the terms of the permission granted by NCTE by its letter dated 14 January 2011, but also to 46,000 Shiksha Mitras holding the intermediate qualification which was not 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 filed in these 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 filed by NCTE, insofar as is material, reads as follows: "That  the  rationale  for  including  the  T.E.T.  as  minimum qualification for a person to be eligible for appointment as a teacher  is  that  it  would  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 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 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 their application to Shiksha 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 only be made by the Central Government.  However,  Rule  16-A  which  has  been introduced by the State Government by a notification dated

59

30 May 2014 purports to provide a non-obstante provision which  will  operate  notwithstanding anything contained in Rules 15 and 16 of the State Rules. Rules 15 and 16 of the State  Rules  were  originally  formulated  in  a  manner consistent  with  the  provisions  of  Section  23(2)  and  the provisions contained in Rules 17 and 18 of the Central Rules of 2010. However,  as a result  of  the introduction of  Rule 16-A,  the  State  Government  has  assumed  to  itself  the power  to  make  provisions  for  relaxing  the  minimum educational qualifications for appointment of Shiksha Mitras as  Assistant  Teachers  in  junior  basic  schools  "as  are considered otherwise 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  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 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 have been gained by a person has never  been  construed  as  a  substitute  for  an  essential qualification  that  is  statutorily  prescribed.  Acceptance  of this contention would have grave ramifications, fall foul of settled precedent on the subject and be against the basic tenets  of  Article  16  and  principles  governing  public employment. … … … … … …  

94. The issue before the Court is in regard to the legality of 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

60

a judgment in Secretary of State of Karnataka v. Umadevi (2006) 4 SCC 1. 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 upholding a violation of Article 14 or in ordering the overlooking of the need to comply with 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 necessarily to hold that unless  the  appointment  is  in  terms  of  the relevant  rules  and  after  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 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 (i)  of  duly  qualified  persons;  and  (ii)  in  duly  sanctioned vacant posts and the employees would have continued to work for more than ten years 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 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  where  irregular  ppointments  (not  illegal

61

appointments) as explained in S.V. NARAYANAPPA (AIR 1967 SC 1071), R.N. NANJUNDAPPA (1972)1 SCC 409, 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  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  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 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, if any already made, but not sub judice, need not be reopened based on this judgment, but there should  be  no  further  by-passing  of  the constitutional  requirement  and  regularizing  or making permanent, those not duly appointed as per the constitutional scheme." … … … … … … … … …

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 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  with

62

BA/BSc  degrees  with  at  least  fifty  percent  marks  and holding a BEd qualification. While issuing a notification on 10  September  2012  for  the  purpose  of  relaxing  the qualifications  Shiksha  Mitras  to  whom  the  benefit  of regularization  has  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 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  an  island  of  exclusion  for  the benefit  of  Shiksha  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 fulfill the  TET  requirement  by  unlawfully  conferring  power  on itself  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 unlawfully amending the service rules. These amendments have  been  held  to  be  ultra  vires  and  an  impermissible encroachment  on  the  exclusive  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 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  from  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  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

63

State  Government  has  sought  to  grant  regularization  to persons 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. … … … … … … … …

103.  In  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 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 of law statutorily requiring minimum qualification

for  appointment  of  teachers  to  be appointed after  the date of

Notification dated 23rd August,  2010, there is no doubt that no

appointment  was  permissible  without  such  qualifications.

Appointments in the present case are clearly after the said date.

Relaxation provision could be invoked for a limited period or in

respect of persons already appointed in terms of applicable rules

relating to qualifications.  The Shiksha Mitras in the present case

64

do not fall in the category of pre 23rd 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 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.

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.

65

24. Since,  we  have  given  full  hearing  to  all  Shiksha  Mitras

through their respective counsel, it is not necessary to consider

the argument of breach of procedure under Order I Rule 8 CPC.

25. On the one hand, we have the claim of 1.78 Lakhs persons to

be regularized in violation of law, on the other hand is the duty to

uphold the rule of law and also to have regard to the right of

children in the age of 6 to 14 years to receive quality education

from  duly  qualified  teachers.   Thus,  even  if  for  a  stop  gap

arrangement teaching may be by unqualified teachers, qualified

teachers have to be ultimately appointed.  It may be permissible

to give some weightage to the experience of  Shiksha Mitras or

some age relaxation may be possible,  mandatory qualifications

cannot be dispensed with.   Regularization of  Shiksha Mitras  as

teachers was not permissible.  In view of this legal position, our

answers are obvious.  We do not find any error in the view taken

by the High Court.

66

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 considered for  recruitment if  they have acquired or they

now acquire the requisite qualification in terms of advertisements

for recruitment for next two consecutive recruitments.  They may

also  be  given  suitable  age relaxation  and some weightage for

their experience as may be decided by the concerned authority.

Till they avail of this opportunity, the State is at liberty to continue

them  as  Shiksha  Mitras  on  same  terms  on  which  they  were

working prior to their absorption, if the State so decides.   

27. Accordingly, we uphold the view of the High Court subject to

above  observations.   All  the  matters  will  stand  disposed  of

accordingly.  

…………………………………….J. (Adarsh Kumar Goel)

…………………………………….J. (Uday Umesh Lalit)

New Delhi; 25th July, 2017.