HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved On 24.11.2016
Delivered On 01.12.2016
Chief Justice's Court
Case :- SPECIAL APPEAL No. - 657 of 2015
Appellant :- Deepak Sharma
Respondent :- State Of U.P. & 15 Others
Counsel for Appellant :- Shailendra
Counsel for Respondent :- C.S.C.,Amit Saxena,Bhanu Pratap Singh
With
Case :- WRIT - C No. - 49667 of 2016
Petitioner :- Sanjay Kumar Ray And 6 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Vikas Goswami,Sanjay Kumar Ray
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
With
Case :- WRIT - C No. - 41678 of 2016
Petitioner :- Anuj Kumar Srivastava And 41 Ors.
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 678 of 2015
Appellant :- Mohd. Shafiq And 4 Others
Respondent :- State Of U.P. And 6 Others
Counsel for Appellant :- Anoop Trivedi
Counsel for Respondent :- C.S.C.,K.C. Shukla
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 680 of 2015
Appellant :- Ajay Prakash Singh And 3 Others
Respondent :- State Of U.P. And 15 Others
Counsel for Appellant :- D.P. Rajbhar,Y.K.Saxena
Counsel for Respondent :- C.S.C.,A.K. Yadav,Siddharth Khare
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 414 of 2016
Appellant :- State Of U.P. And 3 Ors.
Respondent :- Shiv Kumar Pathak And 11 Ors.
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
Counsel for Respondent :- Siddharth Khare
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 415 of 2016
Appellant :- State Of U.P. And 3 Ors.
Respondent :- Satya Prakash Singh And 4 Ors.
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 416 of 2016
Appellant :- State Of U.P. And 3 Ors.
Respondent :- Sankarshan Pandey
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
Counsel for Respondent :- Abhishek Srivastava
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 417 of 2016
Appellant :- State Of U.P. And 4 Ors.
Respondent :- Bhagwati Prasad
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 418 of 2016
Appellant :- State Of U.P. And 3 Ors.
Respondent :- Umesh Kumar Singh And 4 Ors.
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
Counsel for Respondent :- Prabhakar Awasthi
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 419 of 2016
Appellant :- State Of U.P. And 3 Ors.
Respondent :- Sarabjeet Verma And 3 Ors.
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 420 of 2016
Appellant :- State Of U.P. And 3 Ors.
Respondent :- Jayant Kumar Singh And Another
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 421 of 2016
Appellant :- State Of U.P. And 8 Ors.
Respondent :- Abhishek Kumar Mishra
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
Counsel for Respondent :- Siddharth Khare
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 422 of 2016
Appellant :- State Of U.P. And 3 Ors.
Respondent :- Amit Kumar
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
With
Case :- SPECIAL APPEAL No. - 722 of 2015
Appellant :- Anjali
Respondent :- State Of U.P. And 15 Others
Counsel for Appellant :- Pramod Kumar Singh,Chandra Jeet Yadav
Counsel for Respondent :- C.S.C.
With
Case :- WRIT - A No. - 23938 of 2016
Petitioner :- Pramod Kumar And 4 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Tarun Agrawal,Ravi Kant
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,Rijwan Ali Akhtar
With
Case :- WRIT - C No. - 54416 of 2015
Petitioner :- Sitaram & 6 Others
Respondent :- State Of U.P. 2 Others
Counsel for Petitioner :- Vibhu Rai,Anoop Trivedi
Counsel for Respondent :- C.S.C.,A.K. Yadav,Rajiv Joshi
With
Case :- WRIT - C No. - 59431 of 2015
Petitioner :- Shri Kant Dubey And 3 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Siddharth Khare
Counsel for Respondent :- C.S.C.,A.K. Yadav,Bhanu Pratap Singh
With
Case :- WRIT - C No. - 63258 of 2015
Petitioner :- Sanjeev Kumar And 3 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Shailesh Kumar Shukla
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
With
Case :- WRIT - C No. - 3784 of 2016
Petitioner :- Sachin Malik And 51 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh
Counsel for Respondent :- C.S.C.
With
Case :- WRIT - C No. - 7810 of 2016
Petitioner :- Ajay Kumar Tiwari And 95 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Neeraj Tiwari,Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
With
Case :- WRIT - C No. - 14027 of 2016
Petitioner :- Ankur Kumar And 347 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
With
Case :- WRIT - C No. - 16322 of 2016
Petitioner :- Himanshu Rana And 41 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Anil Kumar Singh,Agnihotri Kumar Tripathi
Counsel for Respondent :- C.S.C.
With
Case :- WRIT - C No. - 16977 of 2016
Petitioner :- Arun Kumar Tripathi And 118 Ors.
Respondent :- State Of U.P. And 2 Ors.
Counsel for Petitioner :- Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
With
Case :- WRIT - C No. - 39410 of 2016
Petitioner :- Om Narayan And 5 Others
Respondent :- State Of U.P. And Another
Counsel for Petitioner :- Anoop Trivedi,Vibhu Rai
Counsel for Respondent :- C.S.C.,Rijwan Ali Akhtar
With
Case :- WRIT - C No. - 36156 of 2016
Petitioner :- Rudresh Kumar Mishra And 82 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
With
Case :- WRIT - C No. - 3063 of 2016
Petitioner :- Jogendra And 77 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Navin Kumar Sharma,Neeraj Tiwari
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
With
Case :- WRIT - C No. - 53366 of 2016
Petitioner :- Sandeep Kumar Shukla And 62 Ors.
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
With
Case :- WRIT - C No. - 55774 of 2016
Petitioner :- Rishikesh Mishra And 3 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Akhilesh Tripathi,Santosh Kumar Gupta
Counsel for Respondent :- C.S.C.
Hon'ble Dilip B. Bhosale,Chief Justice
Hon'ble Yashwant Varma,J.
This batch emanates from a challenge laid to the U.P. Basic Education (Teachers) Service (16th Amendment) Rules, 20121. The aforesaid 16th Amendment Rules are liable to be read in the context of the U.P. Basic Education (Teachers) Service (15th Amendment) Rules, 20122 which came to be struck down by a Division Bench of this Court in Shiv Kumar Pathak Vs. State of U.P.3 Initially a challenge to the 16th Amendment Rules came to be raised before a learned Single Judge of the Court, who on 18 August 2015 proceeded to hold that since Rule 14(3) of the 15th Amendment Rules had already been struck down, the 16th Amendment Rules were rendered inoperative and could not be acted upon. Accordingly, the learned Single Judge allowed the challenge to the validity of the 16th Amendment Rules and directed the State respondents to prepare a fresh list of candidates in accordance with the provisions of Rule 14 of the U.P. Basic Education (Teachers) Service Rules, 19814 The special appeals emanate from this judgment of the learned Single Judge. One of the objections which was taken to the judgment of the learned Single Judge aforementioned is that he had no jurisdiction, in light of the orders then prevailing of Hon'ble the Chief Justice, to either entertain, consider or rule upon a challenge relating to the validity of a statutory enactment or Rules framed thereunder. It was therefore, contended that the judgment had been rendered without jurisdiction and was liable to fall on this short ground alone. Faced with the aforesaid objection, various independent writ petitions came to be preferred which were connected with the special appeals. These writ petitions laid an independent and renewed challenge to the 16th Amendment Rules. We further note that the State has also filed appeals against the judgment rendered by the learned Single Judge on 18 August, 2015. Apart from the said challenge, there are two petitions which stand tagged with this group namely Writ Petition No. 23938 of 2016 and Writ Petition No. 54416 of 2015 both of which challenge the validity of the Guidelines dated 11 February 2011 framed by the National Councill for Teacher Education5 in purported exercise of powers conferred by Section 23 of the Right of Children to Free and Compulsory Education Act, 20096. Before noticing the rival submissions which fall for consideration, it would be pertinent to briefly notice the background facts since the litigation itself has a history.
Primary schools in the State are administered and managed by the Board of Basic Education which stands constituted under the provisions of the U.P. Basic Education Act, 19727. A "basic school" under the 1972 Act is defined to mean a school where instructions are imparted from Class I to VIII. A "junior basic school" is defined to mean a school where instructions from Class I to V are imparted. For the purposes of appointment of teachers, the State Government in exercise of powers conferred by Section 19 of the 1972 Act has framed the 1981 Rules. Since we are concerned with the issue of appointment of Assistant Teachers, we may only note the relevant part of Rule 8 which prescribed the academic qualifications liable to be possessed by a person to be considered for appointment as an Assistant Teacher. The relevant part of Rule 8 as it originally stood is extracted herein below:
(ii) Assistant Master and Assistant Mistress of Junior Basic School
A Bachelor's Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto:
Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course."
Rule 14 set forth the procedure for determination of vacancies, preparation of a select list and the manner in which Assistant Teachers are liable to be selected and appointed. The said Rule as it stood prior to the amendments in question as well as the U.P. Basic Education (Teachers) Service (12th Amendment) Rules 20118, read as follows:
"14. Determination of vacancies and preparation of list-(1) In respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, dependants of freedom-fighters and other categories under Rule 9 and notify the vacancies to the Employment Exchange and in at least two news papers having adequate circulation in the State as well as in the concerned district inviting applications from candidates possessing prescribed training qualification from the district concerned.
(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement and the names of candidates received from the Employment Exchange and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment.
(3) The Regional Assistant Director of Education (Basic) may, on the application of a candidate, and for reasons to be recorded, direct that his name be included at the bottom of the list prepared under sub-rule (2).
(4) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have passed the said training course later and the candidates who have passed the training course in a particular years shall be arranged in accordance with the quality points specified in the appendix.
(5) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2).
(6) The list prepared under sub-rule (2) and arranged in accordance with sub-rule (4) shall be forwarded by the appointing authority to the Selection Committee." (emphasis supplied)
By the Constitution (Eighty Sixth Amendment) Act, 2002, Article 21A came to be inserted by providing for free and compulsory education to all children falling in the age group of six to fourteen years as a fundamental right in such manner as the States may by law determine. In order to give effect to this constitutional amendment, the Union Government enacted the 2009 Act. The Act was enforced w.e.f. 1 April 2010. The "appropriate Government" under the 2009 Act has been defined to mean the Union Government in relation to a school established, owned or controlled by it and in relation to all other schools, the State Governments or the Union territories within whose territorial area the school may be situate. "Elementary education" is defined therein to mean education from class I to VIII. Section 3 of the 2009 Act mirrors the constitutional guarantee enshrined in Article 21A by providing that every child of the age of six to fourteen years shall have the right to free and compulsory education in a neighbourhood school till the completion of his or her elementary education. The controversy which stands raised before us turns and primarily revolves around and upon the provisions of Section 23 of the 2009 Act which reads as follows:
"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.
(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.
(3) The salary and allowances payable to, and the terms and conditions of service of, teacher shall be such as may be prescribed."
As is evident from a reading of Section 23, the minimum qualifications which must be possessed by a person in order to be eligible for appointment as a teacher are to be those which may be prescribed by an academic authority authorised by the Union Government. NCTE had initially come to be constituted in terms of the provisions of the National Council for Teacher Education Act, 19939. By a notification dated 31 March 2010, the Union Government designated NCTE to be the academic authority for the purposes of implementation of the 2009 Act. Upon being so designated, NCTE on 23 August 2010 issued a notification laying down the minimum qualifications required to be possessed by a person in order to be eligible for appointment as an Assistant Teacher in class I to VIII in a school covered by the provisions of the 2009 Act. The extract of this notification insofar as it is relevant for our purposes reads as follows:
"(ii) Classes VI-VIII
(a) B.A/B.Sc and 2 year Diploma in Elementary Education (by whatever name known)
OR
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." (emphasis supplied)
A perusal of the notification so prescribed evidences that apart from holding a graduate degree or other educational qualification as prescribed, NCTE also requires a prospective teacher to have passed a Teachers Eligibility Test (TET). This notification further provides that TET would be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for the said purpose. These guidelines were framed by the NCTE and circulated under cover of its letter dated 11 February 2011. It was at this stage that the State Government for the first time proceeded to amend the 1981 Rules by promulgating the 12th Amendment Rules on 9 November 2011. Rule 8 which prescribed the qualifications liable to be possessed by an Assistant Teacher was also consequently amended and the rule mandated a teacher to have passed the TET examination conducted by the State of U.P. Rule 14 was also amended and sub-rule (3) laid down that the name of candidates shall be prepared and placed in descending order on the basis of marks obtained in the TET examination conducted by the Government of U.P. This amendment in the 1981 Rules as is evident was primarily brought about to bring the provisions of the 1981 Rules in consonance with the notification dated 23 August 2010 issued by the NCTE. The validity of the 12th Amendment Rules, we are informed was upheld in Seeta Ram Vs. State of U.P.10 and Govind Kumar Dixit and others V State of U.P. and others11.
The authority of the NCTE to issue the notification dated 23 August 2010 and the requirement of passing a TET examination as amended thereunder was raised before this Court. In Prabhakar Singh and others Vs. State of U.P.12, referring to paragraph 3 (a) of the notification dated 23 August 2010 it was held that the compliance with the requirement of passing the TET examination was not mandatory for the category of persons falling in the paragraph aforementioned. Doubting the correctness of this judgment, a learned Single Judge referred the issues arising from the judgment in Prabhakar Singh for consideration by a larger Bench. Consequently, a Full Bench of the Court came to be constituted. The Full Bench answered the issues raised for its consideration by its judgment dated 31 May 2013 in Shiv Kumar Sharma and others Vs. State of U.P. And others13. During the course of its deliberations, the Full Bench framed the following issues as is evident from paragraph 11 of the report:-
"To address the issue involved, we had heard the matter and framed 3 questions as follows:-
"(a) What does the phrase "minimum qualifications" occurring in Section 23 (1) of the right of Children to Free and Compulsory Education Act, 2009 (the Act) mean - whether passing the 'Teacher's Eligibility Test', is a qualification for the purposes of Section 23 (1), and it insistence by the NCTE in the Notification dated 23.8.2010 is in consonance with the powers delegated to the NCTE under Section 23 (1) of the Act?
(b) Whether clause 3 (a) of the Notifications dated 23.8.2010 and 29.7.2011 issued by the NCTE under Section 23 (1) of the Act, permits persons coming under the ambit of that clause to not undergo the 'Teacher's Eligibility Test', before they are eligible for appointment as Assistant Teachers? What is the significance of the words "shall also be eligible for appointment for Class-I to V upto 1st January, 2012, provided he undergoes, after appointment an NCTE recognized six months special programme in elementary education"?
(c) Whether the opinion expressed by the Division Bench in Prabhakar Singh and others Vs. State of U.P. and others, 2013 (1) ADJ 651 (DB), is correct in law?"
Dealing with issue No. 1, the Full Bench traced the history and the constitutional background which led to the insertion of Article 21A and the promulgation of the 2009 Act. It proceeded to observe as follows:
"87. The legislative competence and the intent therefore lead to the conclusion that the Central Government has authorised the National Council for Teacher Education to make provisions and which have been carefully en-grafted in the Notification dated 23.8.2010. The State Government has followed suit. However, the State Government delayed the incorporation as the Rules were framed by it later on in 2011 and the 1981 Rules were amended much later. The 12th, 13th, 14th, 15th and 16th amendment in the 1981 Rules were brought at a later period. In our opinion, however, merely because the State incorporated these provisions in its rules later on would not take away the impact of the norms prescribed by the National Council for Teacher Education that stood enforced w.e.f. 23.8.2010. The delegated legislation of the State Government was subject to the primary legislation of the Central Government. The framing of rules as a subordinate legislation is subservient to the provisions framed by the Central Government. The notification dated 23.8.2010 therefore has an overriding effect and it could not have been ignored. If the State Government has proceeded to make appointments after 23.8.2010 without complying with the provisions of teacher eligibility test then such appointments would be deficient in such qualification.
88. It may be emphasised that there is no challenge raised to such appointments against rules, but the law is certain that appointment de-hors the rules cannot be said to be valid. After the enforcement of the notification dated 23.8.2010 every candidate aspiring to become a teacher of elementary education in any of the institutions defined under the 2009 Act has to be possessed of the qualifications prescribed therein. The intention therefore of the legislature is clear that no teacher without such a qualification can be allowed to continue as a teacher in the institution. We wish to clarify that the binding effect of the notifications and the guidelines is such that the weightage which is contemplated under the guidelines dated 11th February, 2011 cannot be ignored. The minimum score that is required of a candidate is 60% to pass the teacher eligibility test. A concession of 5% has been made in favour of the reserved category candidates including the physically challenged and disabled persons. This norm therefore cannot be diluted. Apart from this, the State Government has to take notice of the fact that weightage has to be given in the recruitment process as well. It is for the State Government to suitably adopt the said guidelines and we do not wish to add anything further at this stage as we are only concerned with the essentiality of the qualification of the teacher eligibility test to be possessed by any candidate aspiring to be appointed as a teacher." (emphasis supplied)
It ultimately answered the questions framed by it in the following terms:
"The questions that have been therefore framed by us are answered as follows:-
1. The teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5 as per the notification dated 23.8.2010 which notification is within the powers of the NCTE under Section 23 (1) of the 2009 Act.
2. Clause 3(a) of the notification dated 23.8.2010 is an integral part of the notification and cannot be read in isolation so as to exempt such candidates who are described in the said clause to be possessed of qualifications from the teacher eligibility test.
3. We approve of the judgment of the division bench in Prabhakar Singh's case to the extent of laying down the interpretation of the commencement of recruitment process under Clause 5 of the notification dated 23.8.2010 but we disapprove and overrule the ratio of the said decision in relation to grant of exemption and relaxation from teacher eligibility test to the candidates referred to in Clause 3 (a) of the notification dated 23.8.2010, and consequently, hold that the teacher eligibility test is compulsory for all candidates referred to in Clause 1 and Clause 3 (a)."
It becomes relevant to note that although the Full Bench delivered judgment on 31 May 2013, in the meanwhile on 31 August 2012, the State promulgated the 15th Amendment Rules. These Rules amended sub-rule (3) of Rule 14 to provide that the names of selected candidates shall be arranged in accordance with the quality points specified in Appendix-1. Appendix-1 earmarked the award of quality points in respect of the marks obtained by a candidate in the High School, Intermediate and graduation examinations. This amendment assumes significance inasmuch as the position which was brought about by the 12th Amendment Rules and which mandated selection only on the basis of marks obtained in the TET examination came to be fundamentally altered. To clarify it becomes relevant to state that while Rule 8 continued to require an aspiring teacher to possess a TET certificate, the system by which his selection was made dependent solely upon the marks obtained by him in the said examination was completely done away with. Consequently while TET remained part of the minimum qualifications required of an Assistant Teacher, the consideration of marks obtained by a person in the TET examination was done away with.
The 15th Amendment Rules were again challenged before this Court in a batch of writ petitions. Two learned Judges of the Court in Shiv Kumar Patkak Vs. State of U.P.14 considered the challenge and ultimately held that the change in the criteria of selection to the position as it prevailed prior to the 12th Amendment Rules was not in conformity with law. It accordingly struck down Rule 14(3) as introduced by the 15th Amendment Rules. The Division Bench while considering the challenge to the 15th Amendment Rules duly took note of the notification dated 23 August 2010 issued by the NCTE as well as the Guidelines issued by it on 11 February 2011. It proceeded to frame the following issues for resolution:-
"From the submissions of learned counsel for the parties and the pleadings on record, following are the issues which arise for consideration in this bunch of appeals.
1.Whether 1981 Rules are applicable for selection of B.Ed. Candidates for imparting six months training for appointment as Assistant Teachers in junior basic schools?
2.Whether the advertisement dated 30.11.2011 for selection and appointment as trainee teacher against 72,825 posts in different junior basic schools was invalid on the ground that there was no cadre of trainee teachers in 1981 Rules ?
3.Whether the guidelines dated 11.2.2011 issued by the National Council For Teacher Education requiring that State should give weightage to the marks of Teachers Eligibility Test while appointing the teachers were not binding on the State and could have been ignored while making selection and appointment on the post Assistant Teachers in junior basic schools?
4.Whether the State Government's order dated 26.7.2012 to make Teachers Eligibility Test only as a minimum qualification and restoration of the mechanism of giving weightage only on the basis of educational qualification for appointment of teachers as was in force prior to 12th Amendment Rules was in accordance with law?
5. Whether there were valid reasons for the State Government to declare the advertisement dated 30.11.2011 as ineffective and to cancel the advertisement?
6.Whether the U.P. Basic Education (Teachers) Service (15th Amendment) Rules dated 31.8.2012 and the Government Order dated 31.8.2012 were in accordance with law?
7. To what reliefs, the appellants are entitled in these appeals, if any?"
It accordingly proceeded to consider the question as to whether the Guidelines framed by the NCTE would be binding on the State. While considering the said issue, the Division Bench also noted what the Full Bench had come to hold in respect of the powers of the NCTE and the binding character of the standards laid down by it in exercise of powers conferred by Section 23 of the 2009 Act. The Division Bench then proceeded to hold as follows:
"66. While deciding the Issue No.3 we have already held that the guidelines dated 11.2.2011, issued by the National Council for Teacher Education require the State to give weightage of the marks obtained in the 'Teacher Eligibility Test' Examination -2011 in appointment on the post of Teachers. The guidelines dated 11.2.2011 issued by the National Council for Teacher Education have been held to be binding. A Full Bench of this Court in Shiv Kumar Sharma (Supra) in paragraph 88 (as quoted above) has already laid down that the State Government has to give weightage to the marks of the Teacher Eligibility Test in the recruitment process. In view of the binding nature of the guidelines dated 11.2.2011, issued by the National Council for Teacher Education and the decision of the Full Bench of this Court in Shiv Kumar Sharma's case (Supra) the State Government could not have taken any decision to ignore the weightage of the marks of the Teacher Eligibility Test Examination-2011. It is relevant to note that immediately after the advertisement dated 30.11.2011, as well as the 12th amendment Rules dated 09.11.2011, by which the selection was contemplated as per the marks of the Teacher Eligibility Test, a challenge to advertisement dated 30.11.2011 and 12th Amendment Rules was raised in this Court by means of Writ Petition No.71558/2011, Seeta Ram Vs. State of U.P. & Ors and Writ Petition No.72433/2011, Govind Kumar Dixit & Ors Vs. State of U.P. & Ors. Writ Petition No.71558/2011, Seeta Ram Vs. State of U.P. & Ors was dismissed on 12.12.2011 by the learned Single Judge of this Court who repelled the challenge to the advertisement dated 30.11.2011, as well as the 12th amendment Rules dated 09.11.2011. While dismissing the writ petition following was laid down in paragraph 9.
"9. So far as making of qualifying examination basis of selection is concerned, it is always permissible to the rules framing authority to determine the criteria for selection which may base on the merits of the candidate possessed in various academic qualifications or qualifying test or any other criteria which may otherwise be valid and once it is so determined, unless it can be said that the same amendment in the rule is contrary to any statutory provision or otherwise ultra vires or vitiated in law, the same cannot be interfered.
70. The 15th amendment rules has been challenged on the ground of it being arbitrary and unreasonable being violative of Article 14 of the Constitution. The notification dated 23.8.2010 issued under Section 23 (1) of the Act, 2009 being under a Parliamentary enactment has to prevail over any rules made by the State under a State Act. The Rules, 1981 right from 1993 contains an Appendix which provides a formula for selecting a teacher. Appendix indicates that selection was based only on the educational qualification of an candidate including the training qualification. After the notification dated 23.8.2010 and guidelines dated 11.2.2011 issued by the National Council for Teacher Education, the State amended its Rules, 1981 by 12th amendment rules to bring it in conformity with the above notification and guidelines. The 12th amendment rules was perfectly in accordance with law and the challenge to the aforesaid rules have also been repelled by this Court in two judgments of Seeta Ram and Govind Kumar Dixit's case (supra). The decision of the State Government not to give any weightage to the marks obtained in the Teacher Eligibility Test Examination-2011 cannot be said to be in conformity with the guidelines of the National Council for Teacher Education referred to above and was clearly arbitrary. The Full Bench of this Court in Shiv Kumar Sharma's case (supra) has already held that the State Government cannot disregard the guidelines of National Council For Teacher Education dated 11.2.2011. The 15th Amendment Rules is thus also contrary to law declared by this Court. The Teacher Eligibility Test (Examination-2011) which has been recognised as an essential qualification for the teachers selection, hence without giving any weightage to the said examination the State cannot proceed with the selection. As noted above, the allegations made against few candidates of committing irregularities in the Teacher Eligibility Test or involvement in criminal offence cannot be a ground to deny benefit of Teacher Eligibility Test to lacs and lacs of the candidates against whom there is neither any allegation nor any charge. The State having not cancelled the Teacher Eligibility Test-2011 and having allowed the Teacher Eligibility Test to be utilised for qualification of candidates ought to have given full effect to the result of the Teacher Eligibility Test examination. The allegations of irregularities and involvement in criminal offence by some candidates was fully neutralised by the State's decision to debar any such candidates from the selection against whom there are allegations of irregularities or involvement in criminal offence. The High Powered Committee has further stated in its report that an undertaking be taken on an affidavit from all the candidates that in event anything adverse is found against them, their selection shall be cancelled. The State having given effect to the notification dated 23.8.2011 as well as the guidelines dated 11.2.2011 issued by the National Council for Teacher Education by amending its rules by 12th amendment rules, which was in consonance with the scheme under the Act, 2009, a Parliamentary enactment cannot be allowed to go back and resort to its old criteria for selection which was prevalent prior to the Act, 2009 and prior to the notification dated 23.8.2010 and guidelines dated 11.2.2011. We are, thus of the view that Rule 14(3) of the 15th amendment rules by which the criteria for selection was changed has to be held to be arbitrary and unreasonable and deserves to be struck down. The Government Order dated 31.8.2012 was issued by the State in consequence to the 15th amendment rules. The Government Order dated 31.8.2012 states that in view of the 15th amendment rules the earlier advertisement (dated 30.11.2011) has become ineffective and thus be cancelled. For cancelling the advertisement no other reason have been given except the changed criteria of selection by 15th amendment rules. The Government Order dated 31.8.2012 having not given any other reason for cancelling the advertisement except that it had become ineffective after the 15th amendment rules, thus the Government Order dated 31.8.2012, also deserves to be set-aside including the consequential communication dated 31.8.2012 issued by the Board of Basic Education." (emphasis supplied)
On 4 December 2012, the State Government yet again proceeded to amend the 1981 Rules and promulgated the 16th Amendment Rules. Significant for our purpose is the amendment brought about to Rule 14 (3). This rule provided that the name of candidates in the list prepared in sub-rule (2) was liable to be arranged in accordance with the quality points obtained by a candidate and as specified in Appendix-1. It becomes pertinent to note here that no separate Appendix-1 was introduced by the 16th Amendment Rules. The reference to Appendix-1 was obviously to the amendment which had been introduced by the 15th Amendment Rules which had drawn up and specified the particulars which must be taken into consideration and had enumerated the same in Appendix-1 as introduced thereby. This aspect assumes significance in view of the fact that Appendix-1 to the 1981 Rules had come to be introduced by the newly amended Rule 14(3) as introduced by the 15th Amendment Rules. Rule 14(3) as introduced thereby had come to be declared as unconstitutional and ultra vires by the Division Bench in Shiv Kumar Pathak. It was in this backdrop that the challenge to the 16th Amendment Rules came to be preferred before the learned Single Judge. The learned Single Judge as noted above, proceeded to hold that since the 15th Amendment Rules had already been struck down, the 16th Amendment was rendered wholly unworkable. This observation came to be made in light of what has been noted by us above namely Appendix-1 having been totally effaced from the statute book by virtue of the judicial declaration entered by the Division Bench in Shiv Kumar Pathak. It was in this backdrop of the facts that the learned Single Judge came to hold that Rule 14(3) as introduced by the 16th Amendment Rules was wholly otiose.
It is important to note that the judgment of the Division Bench in Shiv Kumar Pathak has been taken in appeal to the Supreme Court. In the pending Civil appeals, we note that on 2 November 2015, the Supreme Court has proceeded to formulate the following issues for consideration:
"At this juncture, we must formulate the issues that the learned counsel should address while arguing the matter on the next date, for we are not inclined any more to deal with the matter as interim measures. The issues are as under :
a) Whether the NCTE Guidelines fixing the minimum qualification are arbitrary and unreasonable?
b) Whether the marks obtained in the TET Examination is the sole criterion for filling up the vacancies?
c) Whether the High Court is justified in declaring the 15th Amendment brought in on 31.08.2012 to the U.P. Basic Education (Teachers) Service Rules, 1981?
d) Assuming, the guidelines framed by the NCTE are treated as intra vires, the question will be what interpretation would be placed by the Court on the concept of weightage as mentioned in the guidelines of the NCTE? "
We have been informed by the learned counsel for the parties that the judgment of the Division Bench in Shiv Kumar Pathak has not been stayed by the Supreme Court till date. During the course of submissions advanced by the rival parties before us, we noted that the issues which were being canvassed were in fact identical and similar to those framed by the Supreme Court especially issues such as whether the guidelines framed by the NCTE were valid, could they form the sole criteria for filling vacancies and if held to be intra vires what interpretation is liable to be rendered to the word "weightage" in paragraph 9(b) of the Guidelines dated 11 February 2011. Upon this being pointed out, the majority of the learned counsels for the parties urged us to proceed to dispose of this batch of matters so as to enable them to take their matters also to the Supreme Court and raise all contentions so that a quietus to the entire controversy is ultimately rendered. We accordingly proceeded to hear the parties on merits and consequently note the submissions advanced hereinafter.
Leading the challenge to the validity of the 16th Amendment Rules as raised in the writ petitions before us, Sri Khare, learned Senior Counsel has urged the following contentions:
He submits that the learned Single Judge was justified in proceeding to strike down the 16th Amendment Rules in light of the binding verdict rendered by the Full Bench of the Court as well as the Division Bench which had struck down the 15th Amendment Rules. Sri Khare submitted that the 16th Amendment Rules and more particularly Rule 14(3) thereof was clearly unworkable in the absence of an Appendix - I remaining on the statute book. He contended that the declaration of the Division Bench in Shiv Kumar Sharma in respect of Rule 14 as introduced by the 15th Amendment Rules would have the effect of the same being wholly erased and removed. He drew our specific attention to the fact that Appendix-I had in fact come to be introduced only by the 15th Amendment Rules. He then referred to the principles enunciated by the Full Bench in respect of the jurisdiction and authority of NCTE and submitted that since it had been anointed as the academic authority by the Union Government, the notifications and guidelines issued by it must have primacy. Sri Khare submitted that insofar as the subject of primary education is concerned, the legislative power of the State as flowing from Entry 45 of List-III of the Seventh Schedule to the Constitution is no longer untrammelled. It is his submission that the legislative power of the State must yield and be subject to such overriding directives as may be issued by a competent authority under a central legislation which governs the field. He submits that both the notification dated 23 August 2010 as well as the Guidelines framed by the NCTE on 11 February 2011 are clearly of binding character and cannot be ignored by the State. He submits that the use of the word "weightage" in Para 9(b) of the Guidelines clearly incorporates and represents the conscious decision taken by NCTE to ensure that the marks obtained by a candidate in the TET Examination, must be accorded some consideration. His submission is that the possession of a TET Certificate being given the status of only a minimum requirement would not be in consonance with the decision of the primary academic authority that weightage be accorded to the marks obtained by a candidate in the said examination. Sri Khare has clarified that it is not the contention of the petitioner that TET marks alone form the basis for selecting a particular candidate. He submits that the use of the word "weightage" in Para 9(b) clearly mandates some credence and weight being attached and accorded to marks obtained in the TET Examination. Referring to the Appendix to the 1981 Rules as it existed prior to the 12th Amendment, Sri Khare submits that the said Appendix came into play only in a case where there were candidates who had passed the training course in the same year. The Appendix, Sri Khare submits, was restricted in its application only to such a contingency. Insofar as the Appendix which came to be introduced by the 15th Amendment Rules is concerned, Sri Khare points out that the same no longer exists consequent to Rule 14(3) being struck down and declared invalid by the Division Bench in Shiv Kumar Pathak. The Rules therefore in the submission of Sri Khare have been rendered wholly unworkable. Sri Khare has contended that assuming that the learned Single Judge lacked the authority to consider a challenge connected to the validity of legislation, this Court may independently consider the legal challenge to the 16th Amendment Rules in the writ petitions preferred thereafter and placed before us as part of this batch.
Sri Shailendra, learned counsel who has advanced submissions on the appeals taken against the judgment of the learned Single Judge, has submitted that the learned Single Judge had clearly erred in proceeding to entertain and rule upon a challenge to legislation, even though as per the roster no such jurisdiction stood conferred upon him. He further submitted that the appellants represented by him were afforded no opportunity of hearing and that even their impleadment applications had not been disposed of. He further referred to the fact that although he was heard on 25 May 2015 and asked to file written submissions by the next date, though such submissions were filed on 26 May 2015 the same were neither noticed nor considered by the learned Single Judge. He further laid stress upon the fact that in the writ petition itself no prayer had been made for declaring the 16th Amendment Rules to be invalid. He submitted that the only relief of significance which was sought was for the issuance of a writ of certiorari quashing the Notifications dated 30 August 2012 and 5 December 2012 (being the notifications by which the 15th and 16th Amendment Rules respectively, were promulgated). These submissions have to some extent been reiterated by the State which is also in appeal against the judgement rendered by the learned Single Judge.
Leading the arguments on behalf of the candidates who have come to be selected during the pendency of the litigation, Sri H.N. Singh, learned Senior Counsel has raised various contentions for our consideration. Sri Singh, learned Senior Counsel has primarily contended that the guidelines issued by the NCTE are merely advisory in character and cannot eclipse or override the legislative authority of the State to frame rules for the appointment of teachers in primary educational institutions. Sri Singh has submitted that by virtue of Article 45 of the Constitution, the subject of recruitment and prescribing the terms and conditions of service of teachers in primary institutions is the exclusive province of the State. He submits that NCTE had exercised the powers under Section 23 by promulgating the Notification dated 23 August 2010. The Guidelines issued on 11 February 2011, in the submission of Sri Singh, are not referable to the said provision at all. He seeks to draw sustenance for the submission from the fact that the guidelines as promulgated by NCTE have not been claimed or declared by it to have been issued in exercise of powers conferred by Section 23. Sri Singh has then contended that a reading of Clause 9(b) of the guidelines itself indicates that even NCTE does not envisage TET to be the sole criteria for selection. Referring to the provisions of sub-section (3) of Section 23, Sri Singh submits that the power to lay down "terms and conditions of service" is vested exclusively with the appropriate State Government. It is his contention that the phrase "terms and conditions of service" as employed in section 23 (3), would include the jurisdiction and authority of the State to frame rules relating to the qualifications which must be possessed by a candidate who aspires to be appointed as an Assistant Teacher. Insofar as the judgment rendered by the Full Bench is concerned, Sri Singh submits that from the issues as framed, it is more than apparent that what the Full Bench was considering was the binding effect and character of the Notification dated 23 August 2010. He submits that the Full Bench was neither called upon nor could it be said to have considered or ruled upon the validity of the guidelines. He submits that the issue of whether Para 9(b) of the guidelines, would have overriding effect and operation over the rules framed by the State, neither arose nor fell for consideration of the Full Bench. In this light, Sri Singh submits that the Division Bench which decided Shiv Kumar Pathak, clearly erred in proceeding as if this issue had been authoritatively decided and ruled upon by the Full Bench.
Sri Ravi Kant, learned Senior Counsel and Sri Anoop Trivedi, learned counsel, have advanced submissions on behalf of the petitioners who have challenged the validity of the guidelines directly. According to them, the only obligation which stands placed on the State under the 2009 Act is that the teachers who came to be appointed must possess the minimum qualifications prescribed by NCTE. It is their submission that the method and manner of selection is within the exclusive domain of the State Government. They submit that the guidelines framed by the NCTE were merely advisory in nature and in case the State chose not to give any weightage to TET marks, it has committed no error. They submit that the administrative guidelines cannot supplant the substantive rule making power conferred upon the State Government by Section 19 of the 1981 Act.
It is these rival submissions which now fall for our determination.
In order to appreciate the rival submissions, it would be apposite to briefly notice the legislative history which surrounds the subject of education. Education as a subject at the time when the Constitution was originally framed was contained in Entry - 11 of List-II of the Seventh Schedule to the Constitution. At this time, primary educational institutions in the State of U.P. were being managed and administered by municipal authorities and formed the subject matter of as many as three separate enactments. The need was therefore felt to bring about a comprehensive legislation to deal with the subject of primary education and for the State to take over the control of elementary educational institutions. It was with this avowed object that the 1972 Act came to be promulgated. It was the 1972 Act which contemplated and gave birth to the Board of Basic Education. Article 45 of the Constitution which stood placed in the Chapter relating to Directive Principles, was found not to have brought about any significant change. It had also not led to the fulfilment of the constitutional objective and goal of providing free and compulsory education to children till the completion
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ख़बरें अब तक - 72825 प्रशिक्षु शिक्षकों की भर्ती - Today's Headlines
A.F.R.
Reserved On 24.11.2016
Delivered On 01.12.2016
Chief Justice's Court
Case :- SPECIAL APPEAL No. - 657 of 2015
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Respondent :- State Of U.P. & 15 Others
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Appellant :- State Of U.P. And 3 Ors.
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Appellant :- State Of U.P. And 8 Ors.
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Respondent :- State Of U.P. And 2 Others
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Hon'ble Dilip B. Bhosale,Chief Justice
Hon'ble Yashwant Varma,J.
This batch emanates from a challenge laid to the U.P. Basic Education (Teachers) Service (16th Amendment) Rules, 20121. The aforesaid 16th Amendment Rules are liable to be read in the context of the U.P. Basic Education (Teachers) Service (15th Amendment) Rules, 20122 which came to be struck down by a Division Bench of this Court in Shiv Kumar Pathak Vs. State of U.P.3 Initially a challenge to the 16th Amendment Rules came to be raised before a learned Single Judge of the Court, who on 18 August 2015 proceeded to hold that since Rule 14(3) of the 15th Amendment Rules had already been struck down, the 16th Amendment Rules were rendered inoperative and could not be acted upon. Accordingly, the learned Single Judge allowed the challenge to the validity of the 16th Amendment Rules and directed the State respondents to prepare a fresh list of candidates in accordance with the provisions of Rule 14 of the U.P. Basic Education (Teachers) Service Rules, 19814 The special appeals emanate from this judgment of the learned Single Judge. One of the objections which was taken to the judgment of the learned Single Judge aforementioned is that he had no jurisdiction, in light of the orders then prevailing of Hon'ble the Chief Justice, to either entertain, consider or rule upon a challenge relating to the validity of a statutory enactment or Rules framed thereunder. It was therefore, contended that the judgment had been rendered without jurisdiction and was liable to fall on this short ground alone. Faced with the aforesaid objection, various independent writ petitions came to be preferred which were connected with the special appeals. These writ petitions laid an independent and renewed challenge to the 16th Amendment Rules. We further note that the State has also filed appeals against the judgment rendered by the learned Single Judge on 18 August, 2015. Apart from the said challenge, there are two petitions which stand tagged with this group namely Writ Petition No. 23938 of 2016 and Writ Petition No. 54416 of 2015 both of which challenge the validity of the Guidelines dated 11 February 2011 framed by the National Councill for Teacher Education5 in purported exercise of powers conferred by Section 23 of the Right of Children to Free and Compulsory Education Act, 20096. Before noticing the rival submissions which fall for consideration, it would be pertinent to briefly notice the background facts since the litigation itself has a history.
Primary schools in the State are administered and managed by the Board of Basic Education which stands constituted under the provisions of the U.P. Basic Education Act, 19727. A "basic school" under the 1972 Act is defined to mean a school where instructions are imparted from Class I to VIII. A "junior basic school" is defined to mean a school where instructions from Class I to V are imparted. For the purposes of appointment of teachers, the State Government in exercise of powers conferred by Section 19 of the 1972 Act has framed the 1981 Rules. Since we are concerned with the issue of appointment of Assistant Teachers, we may only note the relevant part of Rule 8 which prescribed the academic qualifications liable to be possessed by a person to be considered for appointment as an Assistant Teacher. The relevant part of Rule 8 as it originally stood is extracted herein below:
(ii) Assistant Master and Assistant Mistress of Junior Basic School
A Bachelor's Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto:
Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course."
Rule 14 set forth the procedure for determination of vacancies, preparation of a select list and the manner in which Assistant Teachers are liable to be selected and appointed. The said Rule as it stood prior to the amendments in question as well as the U.P. Basic Education (Teachers) Service (12th Amendment) Rules 20118, read as follows:
"14. Determination of vacancies and preparation of list-(1) In respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, dependants of freedom-fighters and other categories under Rule 9 and notify the vacancies to the Employment Exchange and in at least two news papers having adequate circulation in the State as well as in the concerned district inviting applications from candidates possessing prescribed training qualification from the district concerned.
(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement and the names of candidates received from the Employment Exchange and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment.
(3) The Regional Assistant Director of Education (Basic) may, on the application of a candidate, and for reasons to be recorded, direct that his name be included at the bottom of the list prepared under sub-rule (2).
(4) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have passed the said training course later and the candidates who have passed the training course in a particular years shall be arranged in accordance with the quality points specified in the appendix.
(5) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2).
(6) The list prepared under sub-rule (2) and arranged in accordance with sub-rule (4) shall be forwarded by the appointing authority to the Selection Committee." (emphasis supplied)
By the Constitution (Eighty Sixth Amendment) Act, 2002, Article 21A came to be inserted by providing for free and compulsory education to all children falling in the age group of six to fourteen years as a fundamental right in such manner as the States may by law determine. In order to give effect to this constitutional amendment, the Union Government enacted the 2009 Act. The Act was enforced w.e.f. 1 April 2010. The "appropriate Government" under the 2009 Act has been defined to mean the Union Government in relation to a school established, owned or controlled by it and in relation to all other schools, the State Governments or the Union territories within whose territorial area the school may be situate. "Elementary education" is defined therein to mean education from class I to VIII. Section 3 of the 2009 Act mirrors the constitutional guarantee enshrined in Article 21A by providing that every child of the age of six to fourteen years shall have the right to free and compulsory education in a neighbourhood school till the completion of his or her elementary education. The controversy which stands raised before us turns and primarily revolves around and upon the provisions of Section 23 of the 2009 Act which reads as follows:
"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.
(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.
(3) The salary and allowances payable to, and the terms and conditions of service of, teacher shall be such as may be prescribed."
As is evident from a reading of Section 23, the minimum qualifications which must be possessed by a person in order to be eligible for appointment as a teacher are to be those which may be prescribed by an academic authority authorised by the Union Government. NCTE had initially come to be constituted in terms of the provisions of the National Council for Teacher Education Act, 19939. By a notification dated 31 March 2010, the Union Government designated NCTE to be the academic authority for the purposes of implementation of the 2009 Act. Upon being so designated, NCTE on 23 August 2010 issued a notification laying down the minimum qualifications required to be possessed by a person in order to be eligible for appointment as an Assistant Teacher in class I to VIII in a school covered by the provisions of the 2009 Act. The extract of this notification insofar as it is relevant for our purposes reads as follows:
"(ii) Classes VI-VIII
(a) B.A/B.Sc and 2 year Diploma in Elementary Education (by whatever name known)
OR
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." (emphasis supplied)
A perusal of the notification so prescribed evidences that apart from holding a graduate degree or other educational qualification as prescribed, NCTE also requires a prospective teacher to have passed a Teachers Eligibility Test (TET). This notification further provides that TET would be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for the said purpose. These guidelines were framed by the NCTE and circulated under cover of its letter dated 11 February 2011. It was at this stage that the State Government for the first time proceeded to amend the 1981 Rules by promulgating the 12th Amendment Rules on 9 November 2011. Rule 8 which prescribed the qualifications liable to be possessed by an Assistant Teacher was also consequently amended and the rule mandated a teacher to have passed the TET examination conducted by the State of U.P. Rule 14 was also amended and sub-rule (3) laid down that the name of candidates shall be prepared and placed in descending order on the basis of marks obtained in the TET examination conducted by the Government of U.P. This amendment in the 1981 Rules as is evident was primarily brought about to bring the provisions of the 1981 Rules in consonance with the notification dated 23 August 2010 issued by the NCTE. The validity of the 12th Amendment Rules, we are informed was upheld in Seeta Ram Vs. State of U.P.10 and Govind Kumar Dixit and others V State of U.P. and others11.
The authority of the NCTE to issue the notification dated 23 August 2010 and the requirement of passing a TET examination as amended thereunder was raised before this Court. In Prabhakar Singh and others Vs. State of U.P.12, referring to paragraph 3 (a) of the notification dated 23 August 2010 it was held that the compliance with the requirement of passing the TET examination was not mandatory for the category of persons falling in the paragraph aforementioned. Doubting the correctness of this judgment, a learned Single Judge referred the issues arising from the judgment in Prabhakar Singh for consideration by a larger Bench. Consequently, a Full Bench of the Court came to be constituted. The Full Bench answered the issues raised for its consideration by its judgment dated 31 May 2013 in Shiv Kumar Sharma and others Vs. State of U.P. And others13. During the course of its deliberations, the Full Bench framed the following issues as is evident from paragraph 11 of the report:-
"To address the issue involved, we had heard the matter and framed 3 questions as follows:-
"(a) What does the phrase "minimum qualifications" occurring in Section 23 (1) of the right of Children to Free and Compulsory Education Act, 2009 (the Act) mean - whether passing the 'Teacher's Eligibility Test', is a qualification for the purposes of Section 23 (1), and it insistence by the NCTE in the Notification dated 23.8.2010 is in consonance with the powers delegated to the NCTE under Section 23 (1) of the Act?
(b) Whether clause 3 (a) of the Notifications dated 23.8.2010 and 29.7.2011 issued by the NCTE under Section 23 (1) of the Act, permits persons coming under the ambit of that clause to not undergo the 'Teacher's Eligibility Test', before they are eligible for appointment as Assistant Teachers? What is the significance of the words "shall also be eligible for appointment for Class-I to V upto 1st January, 2012, provided he undergoes, after appointment an NCTE recognized six months special programme in elementary education"?
(c) Whether the opinion expressed by the Division Bench in Prabhakar Singh and others Vs. State of U.P. and others, 2013 (1) ADJ 651 (DB), is correct in law?"
Dealing with issue No. 1, the Full Bench traced the history and the constitutional background which led to the insertion of Article 21A and the promulgation of the 2009 Act. It proceeded to observe as follows:
"87. The legislative competence and the intent therefore lead to the conclusion that the Central Government has authorised the National Council for Teacher Education to make provisions and which have been carefully en-grafted in the Notification dated 23.8.2010. The State Government has followed suit. However, the State Government delayed the incorporation as the Rules were framed by it later on in 2011 and the 1981 Rules were amended much later. The 12th, 13th, 14th, 15th and 16th amendment in the 1981 Rules were brought at a later period. In our opinion, however, merely because the State incorporated these provisions in its rules later on would not take away the impact of the norms prescribed by the National Council for Teacher Education that stood enforced w.e.f. 23.8.2010. The delegated legislation of the State Government was subject to the primary legislation of the Central Government. The framing of rules as a subordinate legislation is subservient to the provisions framed by the Central Government. The notification dated 23.8.2010 therefore has an overriding effect and it could not have been ignored. If the State Government has proceeded to make appointments after 23.8.2010 without complying with the provisions of teacher eligibility test then such appointments would be deficient in such qualification.
88. It may be emphasised that there is no challenge raised to such appointments against rules, but the law is certain that appointment de-hors the rules cannot be said to be valid. After the enforcement of the notification dated 23.8.2010 every candidate aspiring to become a teacher of elementary education in any of the institutions defined under the 2009 Act has to be possessed of the qualifications prescribed therein. The intention therefore of the legislature is clear that no teacher without such a qualification can be allowed to continue as a teacher in the institution. We wish to clarify that the binding effect of the notifications and the guidelines is such that the weightage which is contemplated under the guidelines dated 11th February, 2011 cannot be ignored. The minimum score that is required of a candidate is 60% to pass the teacher eligibility test. A concession of 5% has been made in favour of the reserved category candidates including the physically challenged and disabled persons. This norm therefore cannot be diluted. Apart from this, the State Government has to take notice of the fact that weightage has to be given in the recruitment process as well. It is for the State Government to suitably adopt the said guidelines and we do not wish to add anything further at this stage as we are only concerned with the essentiality of the qualification of the teacher eligibility test to be possessed by any candidate aspiring to be appointed as a teacher." (emphasis supplied)
It ultimately answered the questions framed by it in the following terms:
"The questions that have been therefore framed by us are answered as follows:-
1. The teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5 as per the notification dated 23.8.2010 which notification is within the powers of the NCTE under Section 23 (1) of the 2009 Act.
2. Clause 3(a) of the notification dated 23.8.2010 is an integral part of the notification and cannot be read in isolation so as to exempt such candidates who are described in the said clause to be possessed of qualifications from the teacher eligibility test.
3. We approve of the judgment of the division bench in Prabhakar Singh's case to the extent of laying down the interpretation of the commencement of recruitment process under Clause 5 of the notification dated 23.8.2010 but we disapprove and overrule the ratio of the said decision in relation to grant of exemption and relaxation from teacher eligibility test to the candidates referred to in Clause 3 (a) of the notification dated 23.8.2010, and consequently, hold that the teacher eligibility test is compulsory for all candidates referred to in Clause 1 and Clause 3 (a)."
It becomes relevant to note that although the Full Bench delivered judgment on 31 May 2013, in the meanwhile on 31 August 2012, the State promulgated the 15th Amendment Rules. These Rules amended sub-rule (3) of Rule 14 to provide that the names of selected candidates shall be arranged in accordance with the quality points specified in Appendix-1. Appendix-1 earmarked the award of quality points in respect of the marks obtained by a candidate in the High School, Intermediate and graduation examinations. This amendment assumes significance inasmuch as the position which was brought about by the 12th Amendment Rules and which mandated selection only on the basis of marks obtained in the TET examination came to be fundamentally altered. To clarify it becomes relevant to state that while Rule 8 continued to require an aspiring teacher to possess a TET certificate, the system by which his selection was made dependent solely upon the marks obtained by him in the said examination was completely done away with. Consequently while TET remained part of the minimum qualifications required of an Assistant Teacher, the consideration of marks obtained by a person in the TET examination was done away with.
The 15th Amendment Rules were again challenged before this Court in a batch of writ petitions. Two learned Judges of the Court in Shiv Kumar Patkak Vs. State of U.P.14 considered the challenge and ultimately held that the change in the criteria of selection to the position as it prevailed prior to the 12th Amendment Rules was not in conformity with law. It accordingly struck down Rule 14(3) as introduced by the 15th Amendment Rules. The Division Bench while considering the challenge to the 15th Amendment Rules duly took note of the notification dated 23 August 2010 issued by the NCTE as well as the Guidelines issued by it on 11 February 2011. It proceeded to frame the following issues for resolution:-
"From the submissions of learned counsel for the parties and the pleadings on record, following are the issues which arise for consideration in this bunch of appeals.
1.Whether 1981 Rules are applicable for selection of B.Ed. Candidates for imparting six months training for appointment as Assistant Teachers in junior basic schools?
2.Whether the advertisement dated 30.11.2011 for selection and appointment as trainee teacher against 72,825 posts in different junior basic schools was invalid on the ground that there was no cadre of trainee teachers in 1981 Rules ?
3.Whether the guidelines dated 11.2.2011 issued by the National Council For Teacher Education requiring that State should give weightage to the marks of Teachers Eligibility Test while appointing the teachers were not binding on the State and could have been ignored while making selection and appointment on the post Assistant Teachers in junior basic schools?
4.Whether the State Government's order dated 26.7.2012 to make Teachers Eligibility Test only as a minimum qualification and restoration of the mechanism of giving weightage only on the basis of educational qualification for appointment of teachers as was in force prior to 12th Amendment Rules was in accordance with law?
5. Whether there were valid reasons for the State Government to declare the advertisement dated 30.11.2011 as ineffective and to cancel the advertisement?
6.Whether the U.P. Basic Education (Teachers) Service (15th Amendment) Rules dated 31.8.2012 and the Government Order dated 31.8.2012 were in accordance with law?
7. To what reliefs, the appellants are entitled in these appeals, if any?"
It accordingly proceeded to consider the question as to whether the Guidelines framed by the NCTE would be binding on the State. While considering the said issue, the Division Bench also noted what the Full Bench had come to hold in respect of the powers of the NCTE and the binding character of the standards laid down by it in exercise of powers conferred by Section 23 of the 2009 Act. The Division Bench then proceeded to hold as follows:
"66. While deciding the Issue No.3 we have already held that the guidelines dated 11.2.2011, issued by the National Council for Teacher Education require the State to give weightage of the marks obtained in the 'Teacher Eligibility Test' Examination -2011 in appointment on the post of Teachers. The guidelines dated 11.2.2011 issued by the National Council for Teacher Education have been held to be binding. A Full Bench of this Court in Shiv Kumar Sharma (Supra) in paragraph 88 (as quoted above) has already laid down that the State Government has to give weightage to the marks of the Teacher Eligibility Test in the recruitment process. In view of the binding nature of the guidelines dated 11.2.2011, issued by the National Council for Teacher Education and the decision of the Full Bench of this Court in Shiv Kumar Sharma's case (Supra) the State Government could not have taken any decision to ignore the weightage of the marks of the Teacher Eligibility Test Examination-2011. It is relevant to note that immediately after the advertisement dated 30.11.2011, as well as the 12th amendment Rules dated 09.11.2011, by which the selection was contemplated as per the marks of the Teacher Eligibility Test, a challenge to advertisement dated 30.11.2011 and 12th Amendment Rules was raised in this Court by means of Writ Petition No.71558/2011, Seeta Ram Vs. State of U.P. & Ors and Writ Petition No.72433/2011, Govind Kumar Dixit & Ors Vs. State of U.P. & Ors. Writ Petition No.71558/2011, Seeta Ram Vs. State of U.P. & Ors was dismissed on 12.12.2011 by the learned Single Judge of this Court who repelled the challenge to the advertisement dated 30.11.2011, as well as the 12th amendment Rules dated 09.11.2011. While dismissing the writ petition following was laid down in paragraph 9.
"9. So far as making of qualifying examination basis of selection is concerned, it is always permissible to the rules framing authority to determine the criteria for selection which may base on the merits of the candidate possessed in various academic qualifications or qualifying test or any other criteria which may otherwise be valid and once it is so determined, unless it can be said that the same amendment in the rule is contrary to any statutory provision or otherwise ultra vires or vitiated in law, the same cannot be interfered.
70. The 15th amendment rules has been challenged on the ground of it being arbitrary and unreasonable being violative of Article 14 of the Constitution. The notification dated 23.8.2010 issued under Section 23 (1) of the Act, 2009 being under a Parliamentary enactment has to prevail over any rules made by the State under a State Act. The Rules, 1981 right from 1993 contains an Appendix which provides a formula for selecting a teacher. Appendix indicates that selection was based only on the educational qualification of an candidate including the training qualification. After the notification dated 23.8.2010 and guidelines dated 11.2.2011 issued by the National Council for Teacher Education, the State amended its Rules, 1981 by 12th amendment rules to bring it in conformity with the above notification and guidelines. The 12th amendment rules was perfectly in accordance with law and the challenge to the aforesaid rules have also been repelled by this Court in two judgments of Seeta Ram and Govind Kumar Dixit's case (supra). The decision of the State Government not to give any weightage to the marks obtained in the Teacher Eligibility Test Examination-2011 cannot be said to be in conformity with the guidelines of the National Council for Teacher Education referred to above and was clearly arbitrary. The Full Bench of this Court in Shiv Kumar Sharma's case (supra) has already held that the State Government cannot disregard the guidelines of National Council For Teacher Education dated 11.2.2011. The 15th Amendment Rules is thus also contrary to law declared by this Court. The Teacher Eligibility Test (Examination-2011) which has been recognised as an essential qualification for the teachers selection, hence without giving any weightage to the said examination the State cannot proceed with the selection. As noted above, the allegations made against few candidates of committing irregularities in the Teacher Eligibility Test or involvement in criminal offence cannot be a ground to deny benefit of Teacher Eligibility Test to lacs and lacs of the candidates against whom there is neither any allegation nor any charge. The State having not cancelled the Teacher Eligibility Test-2011 and having allowed the Teacher Eligibility Test to be utilised for qualification of candidates ought to have given full effect to the result of the Teacher Eligibility Test examination. The allegations of irregularities and involvement in criminal offence by some candidates was fully neutralised by the State's decision to debar any such candidates from the selection against whom there are allegations of irregularities or involvement in criminal offence. The High Powered Committee has further stated in its report that an undertaking be taken on an affidavit from all the candidates that in event anything adverse is found against them, their selection shall be cancelled. The State having given effect to the notification dated 23.8.2011 as well as the guidelines dated 11.2.2011 issued by the National Council for Teacher Education by amending its rules by 12th amendment rules, which was in consonance with the scheme under the Act, 2009, a Parliamentary enactment cannot be allowed to go back and resort to its old criteria for selection which was prevalent prior to the Act, 2009 and prior to the notification dated 23.8.2010 and guidelines dated 11.2.2011. We are, thus of the view that Rule 14(3) of the 15th amendment rules by which the criteria for selection was changed has to be held to be arbitrary and unreasonable and deserves to be struck down. The Government Order dated 31.8.2012 was issued by the State in consequence to the 15th amendment rules. The Government Order dated 31.8.2012 states that in view of the 15th amendment rules the earlier advertisement (dated 30.11.2011) has become ineffective and thus be cancelled. For cancelling the advertisement no other reason have been given except the changed criteria of selection by 15th amendment rules. The Government Order dated 31.8.2012 having not given any other reason for cancelling the advertisement except that it had become ineffective after the 15th amendment rules, thus the Government Order dated 31.8.2012, also deserves to be set-aside including the consequential communication dated 31.8.2012 issued by the Board of Basic Education." (emphasis supplied)
On 4 December 2012, the State Government yet again proceeded to amend the 1981 Rules and promulgated the 16th Amendment Rules. Significant for our purpose is the amendment brought about to Rule 14 (3). This rule provided that the name of candidates in the list prepared in sub-rule (2) was liable to be arranged in accordance with the quality points obtained by a candidate and as specified in Appendix-1. It becomes pertinent to note here that no separate Appendix-1 was introduced by the 16th Amendment Rules. The reference to Appendix-1 was obviously to the amendment which had been introduced by the 15th Amendment Rules which had drawn up and specified the particulars which must be taken into consideration and had enumerated the same in Appendix-1 as introduced thereby. This aspect assumes significance in view of the fact that Appendix-1 to the 1981 Rules had come to be introduced by the newly amended Rule 14(3) as introduced by the 15th Amendment Rules. Rule 14(3) as introduced thereby had come to be declared as unconstitutional and ultra vires by the Division Bench in Shiv Kumar Pathak. It was in this backdrop that the challenge to the 16th Amendment Rules came to be preferred before the learned Single Judge. The learned Single Judge as noted above, proceeded to hold that since the 15th Amendment Rules had already been struck down, the 16th Amendment was rendered wholly unworkable. This observation came to be made in light of what has been noted by us above namely Appendix-1 having been totally effaced from the statute book by virtue of the judicial declaration entered by the Division Bench in Shiv Kumar Pathak. It was in this backdrop of the facts that the learned Single Judge came to hold that Rule 14(3) as introduced by the 16th Amendment Rules was wholly otiose.
It is important to note that the judgment of the Division Bench in Shiv Kumar Pathak has been taken in appeal to the Supreme Court. In the pending Civil appeals, we note that on 2 November 2015, the Supreme Court has proceeded to formulate the following issues for consideration:
"At this juncture, we must formulate the issues that the learned counsel should address while arguing the matter on the next date, for we are not inclined any more to deal with the matter as interim measures. The issues are as under :
a) Whether the NCTE Guidelines fixing the minimum qualification are arbitrary and unreasonable?
b) Whether the marks obtained in the TET Examination is the sole criterion for filling up the vacancies?
c) Whether the High Court is justified in declaring the 15th Amendment brought in on 31.08.2012 to the U.P. Basic Education (Teachers) Service Rules, 1981?
d) Assuming, the guidelines framed by the NCTE are treated as intra vires, the question will be what interpretation would be placed by the Court on the concept of weightage as mentioned in the guidelines of the NCTE? "
We have been informed by the learned counsel for the parties that the judgment of the Division Bench in Shiv Kumar Pathak has not been stayed by the Supreme Court till date. During the course of submissions advanced by the rival parties before us, we noted that the issues which were being canvassed were in fact identical and similar to those framed by the Supreme Court especially issues such as whether the guidelines framed by the NCTE were valid, could they form the sole criteria for filling vacancies and if held to be intra vires what interpretation is liable to be rendered to the word "weightage" in paragraph 9(b) of the Guidelines dated 11 February 2011. Upon this being pointed out, the majority of the learned counsels for the parties urged us to proceed to dispose of this batch of matters so as to enable them to take their matters also to the Supreme Court and raise all contentions so that a quietus to the entire controversy is ultimately rendered. We accordingly proceeded to hear the parties on merits and consequently note the submissions advanced hereinafter.
Leading the challenge to the validity of the 16th Amendment Rules as raised in the writ petitions before us, Sri Khare, learned Senior Counsel has urged the following contentions:
He submits that the learned Single Judge was justified in proceeding to strike down the 16th Amendment Rules in light of the binding verdict rendered by the Full Bench of the Court as well as the Division Bench which had struck down the 15th Amendment Rules. Sri Khare submitted that the 16th Amendment Rules and more particularly Rule 14(3) thereof was clearly unworkable in the absence of an Appendix - I remaining on the statute book. He contended that the declaration of the Division Bench in Shiv Kumar Sharma in respect of Rule 14 as introduced by the 15th Amendment Rules would have the effect of the same being wholly erased and removed. He drew our specific attention to the fact that Appendix-I had in fact come to be introduced only by the 15th Amendment Rules. He then referred to the principles enunciated by the Full Bench in respect of the jurisdiction and authority of NCTE and submitted that since it had been anointed as the academic authority by the Union Government, the notifications and guidelines issued by it must have primacy. Sri Khare submitted that insofar as the subject of primary education is concerned, the legislative power of the State as flowing from Entry 45 of List-III of the Seventh Schedule to the Constitution is no longer untrammelled. It is his submission that the legislative power of the State must yield and be subject to such overriding directives as may be issued by a competent authority under a central legislation which governs the field. He submits that both the notification dated 23 August 2010 as well as the Guidelines framed by the NCTE on 11 February 2011 are clearly of binding character and cannot be ignored by the State. He submits that the use of the word "weightage" in Para 9(b) of the Guidelines clearly incorporates and represents the conscious decision taken by NCTE to ensure that the marks obtained by a candidate in the TET Examination, must be accorded some consideration. His submission is that the possession of a TET Certificate being given the status of only a minimum requirement would not be in consonance with the decision of the primary academic authority that weightage be accorded to the marks obtained by a candidate in the said examination. Sri Khare has clarified that it is not the contention of the petitioner that TET marks alone form the basis for selecting a particular candidate. He submits that the use of the word "weightage" in Para 9(b) clearly mandates some credence and weight being attached and accorded to marks obtained in the TET Examination. Referring to the Appendix to the 1981 Rules as it existed prior to the 12th Amendment, Sri Khare submits that the said Appendix came into play only in a case where there were candidates who had passed the training course in the same year. The Appendix, Sri Khare submits, was restricted in its application only to such a contingency. Insofar as the Appendix which came to be introduced by the 15th Amendment Rules is concerned, Sri Khare points out that the same no longer exists consequent to Rule 14(3) being struck down and declared invalid by the Division Bench in Shiv Kumar Pathak. The Rules therefore in the submission of Sri Khare have been rendered wholly unworkable. Sri Khare has contended that assuming that the learned Single Judge lacked the authority to consider a challenge connected to the validity of legislation, this Court may independently consider the legal challenge to the 16th Amendment Rules in the writ petitions preferred thereafter and placed before us as part of this batch.
Sri Shailendra, learned counsel who has advanced submissions on the appeals taken against the judgment of the learned Single Judge, has submitted that the learned Single Judge had clearly erred in proceeding to entertain and rule upon a challenge to legislation, even though as per the roster no such jurisdiction stood conferred upon him. He further submitted that the appellants represented by him were afforded no opportunity of hearing and that even their impleadment applications had not been disposed of. He further referred to the fact that although he was heard on 25 May 2015 and asked to file written submissions by the next date, though such submissions were filed on 26 May 2015 the same were neither noticed nor considered by the learned Single Judge. He further laid stress upon the fact that in the writ petition itself no prayer had been made for declaring the 16th Amendment Rules to be invalid. He submitted that the only relief of significance which was sought was for the issuance of a writ of certiorari quashing the Notifications dated 30 August 2012 and 5 December 2012 (being the notifications by which the 15th and 16th Amendment Rules respectively, were promulgated). These submissions have to some extent been reiterated by the State which is also in appeal against the judgement rendered by the learned Single Judge.
Leading the arguments on behalf of the candidates who have come to be selected during the pendency of the litigation, Sri H.N. Singh, learned Senior Counsel has raised various contentions for our consideration. Sri Singh, learned Senior Counsel has primarily contended that the guidelines issued by the NCTE are merely advisory in character and cannot eclipse or override the legislative authority of the State to frame rules for the appointment of teachers in primary educational institutions. Sri Singh has submitted that by virtue of Article 45 of the Constitution, the subject of recruitment and prescribing the terms and conditions of service of teachers in primary institutions is the exclusive province of the State. He submits that NCTE had exercised the powers under Section 23 by promulgating the Notification dated 23 August 2010. The Guidelines issued on 11 February 2011, in the submission of Sri Singh, are not referable to the said provision at all. He seeks to draw sustenance for the submission from the fact that the guidelines as promulgated by NCTE have not been claimed or declared by it to have been issued in exercise of powers conferred by Section 23. Sri Singh has then contended that a reading of Clause 9(b) of the guidelines itself indicates that even NCTE does not envisage TET to be the sole criteria for selection. Referring to the provisions of sub-section (3) of Section 23, Sri Singh submits that the power to lay down "terms and conditions of service" is vested exclusively with the appropriate State Government. It is his contention that the phrase "terms and conditions of service" as employed in section 23 (3), would include the jurisdiction and authority of the State to frame rules relating to the qualifications which must be possessed by a candidate who aspires to be appointed as an Assistant Teacher. Insofar as the judgment rendered by the Full Bench is concerned, Sri Singh submits that from the issues as framed, it is more than apparent that what the Full Bench was considering was the binding effect and character of the Notification dated 23 August 2010. He submits that the Full Bench was neither called upon nor could it be said to have considered or ruled upon the validity of the guidelines. He submits that the issue of whether Para 9(b) of the guidelines, would have overriding effect and operation over the rules framed by the State, neither arose nor fell for consideration of the Full Bench. In this light, Sri Singh submits that the Division Bench which decided Shiv Kumar Pathak, clearly erred in proceeding as if this issue had been authoritatively decided and ruled upon by the Full Bench.
Sri Ravi Kant, learned Senior Counsel and Sri Anoop Trivedi, learned counsel, have advanced submissions on behalf of the petitioners who have challenged the validity of the guidelines directly. According to them, the only obligation which stands placed on the State under the 2009 Act is that the teachers who came to be appointed must possess the minimum qualifications prescribed by NCTE. It is their submission that the method and manner of selection is within the exclusive domain of the State Government. They submit that the guidelines framed by the NCTE were merely advisory in nature and in case the State chose not to give any weightage to TET marks, it has committed no error. They submit that the administrative guidelines cannot supplant the substantive rule making power conferred upon the State Government by Section 19 of the 1981 Act.
It is these rival submissions which now fall for our determination.
In order to appreciate the rival submissions, it would be apposite to briefly notice the legislative history which surrounds the subject of education. Education as a subject at the time when the Constitution was originally framed was contained in Entry - 11 of List-II of the Seventh Schedule to the Constitution. At this time, primary educational institutions in the State of U.P. were being managed and administered by municipal authorities and formed the subject matter of as many as three separate enactments. The need was therefore felt to bring about a comprehensive legislation to deal with the subject of primary education and for the State to take over the control of elementary educational institutions. It was with this avowed object that the 1972 Act came to be promulgated. It was the 1972 Act which contemplated and gave birth to the Board of Basic Education. Article 45 of the Constitution which stood placed in the Chapter relating to Directive Principles, was found not to have brought about any significant change. It had also not led to the fulfilment of the constitutional objective and goal of providing free and compulsory education to children till the completion
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