ADARSH KUMAR GOEL, J. - (1.) Leave granted. This batch of cases arises out of judgment of the Allahabad High Court dated 12th September, 2015 in Writ Appeal No. 34833 of 2015 [Anand Kumar Yadav v. UOI [2015 ILR All 1108 : 2015 (8) ADJ 338]] and connected matters. The High Court allowed the batch of writ petitions and directed as follows: "(i) The amendment made by the State Government by its notification dated 30 May 2014 introducing the provision of Rule 16-A in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 by the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules 2014 is held to be arbitrary and ultra vires and is quashed and set aside; (ii) The Uttar Pradesh Basic Education (Teachers) Service (Nineteenth Amendment) Rules 2014, insofar as they prescribe as a source of recruitment in Rule 5(2) the appointment of Shiksha Mitras; the academic qualifications for the recruitment of Shiksha Mitras in Rule 8(2)(c) and for the absorption of Shiksha Mitras as Assistant Teachers in junior basic schools under Rule 14(6) are set aside as being unconstitutional and ultra vires; and (iii) All consequential executive orders of the State Government providing for the absorption of Shiksha Mitras into the regular service of the State as Assistant Teachers shall stand quashed and set aside. "
(2.) Main question for consideration is whether it is permissible to appoint teachers for basic education who do not have the requisite statutory qualifications? FACTS :
(3.) Brief factual matrix may be noted. U.P. Basic Education Act, 1972 (the 1972, Act) was enacted to regulate and control basic education in the State of U.P. Section 19 of the 1972, Act authorizes the State Government to make rules to carry out the purpose of the Act. U.P. Basic Education (Teachers) Service Rules, 1981 (1981 Rules) lay down sources of recruitment and qualification for appointment of teachers. The National Council for Teachers ' Education Act, 1993 (NCTE Act) was enacted by Parliament for planned and coordinated development for teacher education system. The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act, 2009) was enacted by the Parliament for free and compulsory education to all children of the age of 6 to 14 years. Section 23 provides for qualification for appointment of teachers. The NCTE was designated as authority under Section 23(1) to lay down the qualifications for appointment of teachers. 3.1. The NCTE issued notification dated 23rd August, 2010 laying down such qualifications. With regard to teachers appointed prior to the said notification, it was stated that they were required to have qualifications in terms of the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (the 2001 Regulations), if the teachers were appointed on or after 3rd September, 2001 subject to their undergoing NCTE recognized six months special programme in certain situations. Teachers appointed before 3rd September, 2001 were required to have qualifications as per the prevalent recruitment rules. One of the requirements under the said notification is the requirement of passing Teachers Eligibility Test (TET). However, by letter dated 8th November, 2010, the Central Government sought proposals for relaxation under Section 23 (2) of the RTE Act which was followed by the relaxation Order dated 10th September, 2012 for certain categories of persons which was to operate till 31st March, 2014. Vide letter of the NCTE dated 14th January, 2011, the NCTE accepted the proposal of the State of Uttar Pradesh for training of untrained graduate Shiksha Mitras by open and distance learning but it was made clear that no appointment of untrained teachers was permitted. 3.2. In exercise of powers under the RTE Act, 2009, the RTE Rules, 2010 were framed by the Central Government. At the same time, the State of U.P. also purported to frame rules called U.P. RTE Rules, 2011. 3.3. Reference may now be made to the scheme under which the Shiksha Mitras were recruited. On 26th May, 1999, a Government Order was issued by the State of U.P. for engagement of Shiksha Mitras (Para-Teacher). The purported object of the Order was to provide universal primary education and for maintenance of teachers student ratio in primary schools by hiring persons who were not duly qualified at lesser cost as against the prescribed salary of a qualified teacher. The Government Order (G.O.) stated that upto the limit of 10,000, Shiksha Mitras could be contracted for academic session 1999-2000 at honourarium of Rs.1450 per month. The salient aspects of the scheme as summed up in the impugned judgment of the High Court from the said G.O. were: "(i) The appointment of Shiksha Mitras was to be against the payment of an honorarium; (ii) The appointment was to be for a period of eleven months renewable for satisfactory performance; (iii) The educational qualifications would be of the intermediate level; (iv) The unit of selection would be the village where the school is situated and in the event that a qualified candidate was not available in the village, the unit could be extended to the jurisdiction of the Nyay Panchayat; (v) The services of a Shiksha Mitra could be terminated for want of satisfactory performance; (vi) Selection was to be made at the village level by the Village Education Committee; and (vii) The scheme envisaged the constitution, at the district level, of a Committee presided over by the District Magistrate and consisting, inter alia, of the Panchayat Raj officer and the District Basic Education officer among other members to oversee implementation. " 3.4. Further G.O.s were issued by the State of U.P. including G.O. dated 1st July, 2001 expanding the scheme and clarifying that the Scheme was not for employment in a regular service but to provide opportunity to the rural youth to render community service. 3.5. Even though vide Notification dated 23rd August, 2010, minimum statutory qualification was laid down by the NCTE, the issue for relaxation under Section 23(2) of the RTE Act was taken up by the Union Government for relaxation for the limited interim statutory period and if a particular State did not have adequate institutions for teachers training or did not have the adequate number of candidates during the period. The State Government, in response to the letter of the Central Government, responded by stating that it had appointed Shiksha Mitras on contractual basis who were required to be given teachers training. The Central Government issued an Order for relaxation under Section 23(2) subject to certain conditions for the period upto 31st March, 2014. 3.6. The State Government submitted a revised proposal dated 3rd January, 2011 envisaging giving of training to the shiksha Mitras which was accepted by the Central Government in terms of the letter dated 14th January, 2011 for two years diploma in elementary education through open and distance learning mode with a clear understanding that no untrained teachers will be appointed. 3.7. Finally, the State of U.P. took following steps which were subject matter of challenge before the High Court: A. Notification dated 30th May, 2014 amending U.P. RTE Rules introducing Rule 16-A authorizing the State Government to relax minimum educational qualifications for appointment of Assistant Teachers in Junior Basic Schools. B. Notification dated 30th May, 2014, amending the 1981 Rules:- Rule 8 laid down revised qualifications for appointment of Assistant Master and Assistant Mistress of Junior Basic Schools which qualifications are different from the statutory qualifications under Section 23 of the RTE Act. Rule 5 was amended to add Shiksha Mitras as source for recruitment of teachers in addition to the existing source of direct recruitment in accordance with the existing rules. Rule 14 was also amended to enable Shiksha Mitras to be appointed as teachers against substantive posts without having the qualifications prescribed under Section 23 of the RTE Act. C. G.O. dated 19th June, 2013 was issued giving permission for appointment of Shiksha Mitras on the post of Assistant Teachers in primary schools without having the eligibility and qualifications in terms of RTE Act, 2009. A time table was laid down for absorption of Shiksha Mitras as Assistant Teachers. D. The consequential executive orders were issued for absorption of 1,24,000 graduate Shiksha Mitras and 46,000 intermediate Shiksha Mitras. ;