UDAY UMESH LALIT J. - (1.) Except Special Leave Petition (Civil) D.No.13142 of 2020: (i) permission to file Special Leave Petition is granted in all the concerned matters; and (ii) Special Leave to Appeal is granted in all matters.
(2.) These appeals arise out of the final judgment and order dated 06.05.2020 passed by the Division Bench of the High Court [The High Court of Judicature at Allahabad, Lucknow Bench] in Special Appeal No.207 of 2019 and all connected matters whereby the Division Bench of the High Court set aside the Order dated 29.03.2019 passed by the Single Judge of the High Court in Writ Petition No.1188(SS) of 2019 and other connected matters. These appeals, inter alia, deal with the extent of rights of Shiksha Mitras and benefits conferred upon them by the decision of this Court in State of U.P. and another vs. Anand Kumar Yadav and others, (2018) 13 SCC 560.
(3.) The facts leading to the decision of this Court in Anand Kumar Yadav(supra) were set out in said decision as under:- "3. Brief factual matrix may be noted. The U.P. Basic Education Act, 1972 (the 1972 Act) was enacted to regulate and control basic education in the State of UP. Section 19 of the 1972 Act authorises the State Government to make rules to carry out the purpose of the Act. The U.P. Basic Education (Teachers) Service Rules, 1981 (the 1981 Rules) lay down sources of recruitment and qualification for appointment of teachers. The National Council for Teachers' Education Act, 1993 (NCTE Act) was enacted by Parliament for planned and coordinated development for teacher education system. The Right of Children to Free and Compulsory Education Act, 2009 (the RTE Act, 2009) was enacted by Parliament for free and compulsory education to all children of the age of 6 to 14 years. Section 23 provides for qualification for appointment of teachers. NCTE was designated as authority under Section 23(1) to lay down the qualifications for appointment of teachers. 4. NCTE issued Notification dated 23-8-2010 laying down such qualifications. With regard to teachers appointed prior to the said notification, it was stated that they were required to have qualifications in terms of the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (the 2001 Regulations), if the teachers were appointed on or after 3-9-2001 subject to their undergoing NCTE recognised six months' special programme in certain situations. Teachers appointed before 3-9-2001 were required to have qualifications as per the prevalent recruitment rules. One of the requirements under the said notification is the requirement of passing Teachers Eligibility Test (TET). However, by Letter dated 8-11-2010, the Central Government sought proposals for relaxation under Section 23(2) of the RTE Act which was followed by the relaxation Order dated 10-9-2012 for certain categories of persons which was to operate till 31-3-2014. Vide Letter of NCTE dated 14-1-2011, NCTE accepted the proposal of the State of Uttar Pradesh for training of untrained graduate Shiksha Mitras by open and distance learning but it was made clear that no appointment of untrained teachers was permitted. 5. In exercise of powers under the RTE Act, 2009, the RTE Rules, 2010 were framed by the Central Government. At the same time, the State of U.P. also purported to frame rules called the U.P. RTE Rules, 2011. 6. Reference may now be made to the scheme under which the Shiksha Mitras were recruited. On 26-5-1999, a Government Order was issued by the State of U.P. for engagement of Shiksha Mitras (Parateacher). The purported object of the Order was to provide universal primary education and for maintenance of teacher student ratio in primary schools by hiring persons who were not duly qualified at lesser cost as against the prescribed salary of a qualified teacher. The Government Order (G.O.) stated that up to the limit of 10,000, Shiksha Mitras could be contracted for academic session 1999-2000 at honorarium of Rs 1450 per month. The salient aspects of the scheme as summed up in the impugned judgment[2] of the High Court from the said G.O. were: (Anand Kumar case,(supra) SCC Online All para 17) "(i) The appointment of Shiksha Mitras was to be against the payment of an honorarium; (ii) The appointment was to be for a period of eleven months renewable for satisfactory performance; (iii) The educational qualifications would be of the intermediate level; (iv) The unit of selection would be the village where the school is situated and in the event that a qualified candidate was not available in the village, the unit could be extended to the jurisdiction of the Nyaya Panchayat; (v) The services of a Shiksha Mitra could be terminated for want of satisfactory performance; (vi) Selection was to be made at the village level by the Village Education Committee; and (vii) The scheme envisaged the constitution, at the district level, of a Committee presided over by the District Magistrate and consisting, inter alia, of the Panchayat Raj Officer and the District Basic Education Officer among other members to oversee implementation." [2] 2015 SCC Online All 3997 : ILR 2015 All 1108 [Anand Kumar Yadav vs. Union of India] 7. Further G.Os. were issued by the State of UP. including G.O. dated 1-7-2001 expanding the scheme and clarifying that the scheme was not for employment in a regular service but to provide opportunity to the rural youth to render community service. 8. Even though vide Notification dated 23-8-2010, minimum statutory qualification was laid down by NCTE, the issue for relaxation under Section 23(2) of the RTE Act was taken up by the Union Government for relaxation for the limited interim statutory period and if a particular State did not have adequate institutions for teachers training or did not have the adequate number of candidates during the period. The State Government, in response to the letter of the Central Government, responded by stating that it had appointed Shiksha Mitras on contractual basis who were required to be given teachers training. The Central Government issued an Order for relaxation under Section 23(2) subject to certain conditions for the period up to 31-3-2014. 9. The State Government submitted a revised proposal dated 3-1-2011 envisaging giving of training to the Shiksha Mitras which was accepted by the Central Government in terms of the Letter dated 14-1-2011 for two years' diploma in elementary education through open and distance learning mode with a clear understanding that no untrained teachers will be appointed. 10. Finally, the State of UP. took the following steps which were subject-matter of challenge before the High Court: 10.1. The Notification dated 30-5-2014 amending the U.P. RTE Rules introducing Rule 16-A authorising the State Government to relax minimum educational qualifications for appointment of Assistant Teachers in Junior Basic Schools. 10.2. The Notification dated 30-5-2014, amending the 1981 Rules: Rule 8 laid down revised qualifications for appointment of Assistant Master and Assistant Mistress of Junior Basic Schools which qualifications are different from the statutory qualifications under Section 23 of the RTE Act. Rule 5 was amended to add Shiksha Mitras as source for recruitment of teachers in addition to the existing source of direct recruitment in accordance with the existing rules. Rule 14 was also amended to enable Shiksha Mitras to be appointed as teachers against substantive posts without having the qualifications prescribed under Section 23 of the RTE Act. 10.3. G.O. dated 19-6-2013 was issued giving permission for appointment of Shiksha Mitras on the post of Assistant Teachers in primary schools without having the eligibility and qualifications in terms of the RTE Act, 2009. A time table was laid down for absorption of Shiksha Mitras as Assistant Teachers. 10.4. The consequential executive orders were issued for absorption of 1,24,000 graduate Shiksha Mitras and 46,000 intermediate Shiksha Mitras." 13. Batch of writ petitions was filed before the High Court by persons who claimed to be eligible for appointment and whose chances were affected by filling up of vacancies of teachers by regularising the Shiksha Mitras against the said vacancies.......... 14. Case set out in the petition was that in view of Notification issued by NCTE on 23-8-2010 laying down minimum qualification for appointment of Assistant Teacher for Classes I to VIII, the decision of the U.P. Government dated 19-6-2014 and amendments made by the U.P. Government on 30-5-2014 were in conflict with the Notification issued by NCTE on 23-8-2010 and could not, thus, be justified. TET being a mandatory qualification, the State Government could not make any appointment to the post of teacher without the said qualification. The appointments did not fall under the relaxation clause being post 23-8-2010 Notification and being not covered by the conditions for relaxation. The 1981 Rules of the State could not incorporate a provision for absorption of Shiksha Mitras in violation of law laid down by this Court in State of Karnataka vs. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753 as their appointment was dehors the 1981 Rules, having not been made after following the rules for appointment of teachers. It was also submitted that the nature of appointment of Shiksha Mitras was contractual to enable them to render community service and not in terms of prescribed qualifications for appointment of teachers. Training by open and distance learning mode was relevant only for teachers validly appointed and not for contractual employees appointed dehors the rules. Moreover, 46,000 Shiksha Mitras were not even graduates which was a condition for approval by NCTE in its letter dated 14-1-2011........." 3.1 The decision rendered by the Full Bench of the High Court of Judicature at Allahabad was dealt with as under:- "17. The findings of the High Court in brief are that having regard to the nature of appointment of Shiksha Mitras, they could not be treated as teachers in terms of the 1981 Rules. They also did not have the qualifications prescribed under the said Rules inasmuch as on the date of appointment, they did not have graduate degree nor they had basic teachers' certificate as prescribed under the 1981 Rules. Reservation policy had also not been followed. No doubt they may have served the need of the hour, their regular appointment in violation of the requisite statutory qualification was illegal. Reference was made to earlier Full Bench judgment in Sandhya Singh vs. State of U.P., (2013) 7 ADJ 1 (FB) with regard to the nature of such appointments. 18. It was further held that Section 23(2) permitted relaxation of minimum qualification for appointment of teachers only for a limited period not exceeding five years and qualification for TET could not be relaxed as held by the Full Bench judgment of the High Court in Shiv Kumar Sharma vs. State of U.P., 2013 SCC Online All 4097 : (2013) 6 ALJ 366 : 6 ADJ 310 (FB) for post-23-8-2010 appointments. Nor pre-23-8-2010 appointments could be saved unless initial appointments were to the post of teachers in terms of applicable rules as stated in the Notification dated 23-8-2010. The amendments to the State RTE Rules, 2011 and the Service Rules of 1981 were in conflict with the mandate of Section 23(2) under which power to relax the minimum qualifications was vested only with the Central Government for a limited period. Moreover, the regularisation of Shiksha Mitras as teachers was not permissible in view of the law laid down in Umadevi (3)(supra). The appointment of Shiksha Mitras was not as teachers nor could it be held to be merely irregular in the absence of their minimum qualifications for the post of teachers which was a distinguishing feature rendering the judgments State of Karnataka vs. M.L. Kesari, (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826 and Amarendra Kumar Mohapatra vs. State of Orissa, (2014) 4 SCC 583 : (2014) 2 SCC (L&S) 54 inapplicable. 3.2. Affirming the view taken by the Full Bench, this Court concluded:- "28. We are in agreement with the above findings. In view of clear mandate of law statutorily requiring minimum qualification for appointment of teachers to be appointed after the date of the Notification dated 23-8-2010, there is no doubt that no appointment was permissible without such qualifications. Appointments in the present case are clearly after the said date. Relaxation provision could be invoked for a limited period or in respect of persons already appointed in terms of applicable rules relating to qualifications. The Shiksha Mitras in the present case do not fall in the category of pre 23-8-2010 Notification whose appointment could be regularised. 29. Further difficulty which stares one in the face is the law laid down by this Court on regularisation of contractually appointed persons in public employment. Appointment of Shiksha Mitras was not only contractual, it was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers. Thus, they could not be regularised as teachers. Regularisation could only be of mere irregularity. The exceptions carved out by this Court do not apply to the case of the present nature. 30. In view of our conclusion that the Shiksha Mitras were never appointed as teachers as per applicable qualifications and are not covered by relaxation order under Section 23(2) of the RTE Act, they could not be appointed as teachers in breach of Section 23(1) of the said Act. The State is not competent to relax the qualifications. 32. On the one hand, we have the claim of 1.78 lakh persons to be regularised in violation of law, on the other hand is the duty to uphold the rule of law and also to have regard to the right of children in the age of 6 to 14 years to receive quality education from duly qualified teachers. Thus, even if for a stop-gap arrangement teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed. It may be permissible to give some weightage to the experience of Shiksha Mitras or some age relaxation may be possible, mandatory qualifications cannot be dispensed with. Regularisation of Shiksha Mitras as teachers was not permissible. In view of this legal position, our answers are obvious. We do not find any error in the view taken by the High Court." 3.3 However, in the peculiar fact situation, following observations were made by this Court:- "33. Question now is whether in the absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference. In the peculiar fact situation, they ought to be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in terms of advertisements for recruitment for next two consecutive recruitments. They may also be given suitable age relaxation and some weightage for their experience as may be decided by the authority concerned. Till they avail of this opportunity, the State is at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides." ;