V.K.Shukla, J. - (1.) IN this bunch of writ petitions, the petitioners have rushed to this Court complaining therein that each one of the petitioners had been appointed as untrained assistant teacher on compassionate basis in basic schools run and managed by the U.P. Basic Shiksha Parishad. Each one of the petitioners had been appointed as assistant teacher on compassionate basis under the orders passed by the respective District Basic Educations Officers, with clear cut stipulation that the said engagement was being made for a fixed pay of Rs.7300/- per month, and after the appointment in question was made in consonance with the terms and conditions of the Government Order dated 4th September, 2000, each one of the petitioners was required to acquire B.T.C. training qualification, and regular appointment was be treated only after the incumbent successfully completed the B.T.C. Course. Appointment as untrained teacher had been offered, and had been accepted. Some of the petitioners have been sent for B.T.C. training course also. The services of each one of the petitioners have been disengaged pursuant to circular letter dated 12.06.2012 issued by the Secretary, Basic Education Board, U.P. Allahabad on the premises that untrained teacher cannot be appointed, after enforcement of the U.P. Right of Children to Free and Compulsory Education Rules, 2011.
(2.) SINCE pure common question of law is involved in all these writ petitions, they are being decided by a common judgment and writ petition No.33828 of 2012 is being treated as leading petition. In this writ petition also, the petitioners have been accorded appointment as untrained assistant teacher with indication that they would acquire B.T.C. certificate in consonance with the Government Order dated 04.09.2000 and they would be offered regular appointment only after completing successfully B.T.C. course. However, if they fail in the aforementioned examination, then except for offering appointment on class IV post, there would be no other option. Petitioners of the aforesaid writ petition were sent for training at the District Institute of Education and Training, Budaun. Petitioners have come up with specific case that Secretary, Basic Education Board; U.P. Allahabad has issued circular on 12.06.2012 directing cancellation of compassionate appointment by mentioning that with effect from 27th July, 2011, the Rules known as the U.P. Right of Children to Free and Compulsory Education Rules, 2011 has come into force, and as per the same, without passing Teacher Eligibility Test (T.E.T.) no one can be offered appointment and accordingly, all those incumbents, who have been offered appointment in breach of the aforesaid Rules, their appointments have been directed to be cancelled. Pursuant to the aforementioned circular issued by the Secretary, Basic Education Board, respective District Basic Education Officers have proceeded to pass orders canceling the appointment of the petitioners. At this juncture, petitioners have approached this Court. On the matter being taken up, Sri Niraj Updhyaya, learned standing counsel as well as Sri A.K. Yadav, Advocate representing the Basic Education Board, contended that since in this bunch of writ petitions pure legal question is involved, pure legal submissions would be advanced and the requisite pleadings are there in writ petition, as such they do not propose to file any counter affidavit. Similar stand has been taken by other respective counsel appearing for the respondents. Sri Ashok Khare and Sri M.D. Singh Shekhar, Senior Advocates, submitted with vehemence that grant of compassionate appointment to the petitioners was an exception to normal rule of appointment and in the present case, each one of the petitioners had been validly appointed as untrained assistant teacher in consonance with the Government Order, which held the field providing for compassionate appointment. In view of this, the appointment so made in no way was to be affected on the strength of Board's circular dated 12.06.2012, and further as field of offering compassionate appointment remains intact, the same is beyond the scope of the Right of Children to Free and Compulsory Education Act, 2009 (called "the Act, 2009", for short), as such passing of order of cancellation of petitioners' appointment, that too without providing opportunity of hearing, is unjustifiable and uncalled for. Argument to the similar effect has been advanced by other counsel representing the petitioners.
(3.) COUNTERING the said submissions, Sri Niraj Updhyaya, learned standing counsel as well as Sri A.K. Yadav, Advocate representing the Basic Education Board, on the other hand, contended that once 2009 Act, which is Central Act, has been enforced, then in view of Section 23 (2) thereof, which opens with non-obstante clause, any incumbent without having passed the T.E.T. cannot be appointed as assistant teacher, and as far as relaxation in eligibility criteria is concerned, same is the prerogative of the Central Government, and till date no such relaxation has been granted. The scheme of the things provided for would go to show that only those selections have been left out, qua which selection process had already started and such appointment may be made in accordance with N.C.T.E. (Determination of Minimum Qualifications For Recruitment of Teachers in School) Regulations, 2001 as amended from time to time as per circular dated 29.07.2011 and sub-para (b) of para 5 provides that qualification prescribed shall apply to all teachers except for the teacher of Physical Education and further regarding Art Education, Craft Education, Home Science, Work Education etc., the same eligibility norms shall continue till such time N.C.T.E. Lays down minimum qualification, and in reference to any fresh appointment, the incumbent has to have T.E.T. to his/her credit, and as far as petitioners are concerned, as their engagement as untrained assistant teacher had been done in breach of the aforesaid Act/Rules, as such all the writ petitions deserve to be dismissed. In order to appreciate the respective arguments so advanced relevant statutes are being looked into. There are three statutes relevant in this matter. One is "Uttar Pradesh Basic Education Act, 1972" (hereinafter referred to as "Act 1972") and the Rules framed thereunder, Second is "National Council For Teacher Education Act, 1993" (hereinafter referred to "Act 1993") and third is "Right of Children to Free and Compulsory Education Act, 2009" (hereinafter referred to as "Act 2009").;