- (1.) I Constitution of the Full Bench This Full Bench has been constituted in pursuance of an order dated 27 July 2015 of the Hon'ble Supreme Court in State of Uttar Pradesh Vs Shiv Kumar Pathak (Civil Appeal Nos 4347-4375 of 2014 and IA Nos 2 and 3 in Writ Petition (Civil) No 167 of 2015) and connected cases. The Supreme Court directed that all matters before the High Court of Judicature at Allahabad, both at Allahabad and Lucknow, relating to Shiksha Mitras shall be heard by a Full Bench at Allahabad. In pursuance of the order passed by the Supreme Court, the writ petitions relating to Shiksha Mitras which were pending before the Lucknow Bench have been transferred to Allahabad in pursuance of the provisions of Clause 14 of the United Provinces High Courts (Amalgamation) Order, 1948. II Scope of the challenge
(2.) In the leading writ petition(Writ - A No 34833 of 2014), the relief which has been sought, is for setting aside two notifications which were issued on 30 May 2014 by the Government of Uttar Pradesh for notifying the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules, 2014(RTE Rules of 2014) and the Uttar Pradesh Basic Education (Teachers) Services (Nineteenth Amendment) Rules, 2014(Services Rules of 2014). By and as a result of the amendment , Rule 16-A was introduced into the Rules framed by the State Government under the Right of Children to Free and Compulsory Education Act, 2009(RTE Act of 2009), called the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011(UP RTE Rules of 2011) to reserve to the State Government the power to relax the minimum qualifications prescribed for the appointment of Assistant Teachers in junior basic schools in the case of Shiksha Mitras for the purpose of their appointment in regular service. The second amendment which has been made by the State Government has the effect of amending the Uttar Pradesh Basic Education (Teachers) Services Rules, 1981(Service Rules of 1981). By the amendment, the State Government has enabled the appointment of Shiksha Mitras who were working on the date of commencement of the amended Rules into regular service as Assistant Teachers of junior basic schools. The reliefs which have been sought also include a challenge to a Government Order dated 7 February 2013 issued by the Principal Secretary, contemplating the absorption into service, of Shiksha Mitras working in junior basic schools in phases covering a total of 1,24,000 graduate Shiksha Mitras and 46,000 Shiksha Mitras who have completed the intermediate qualification. There is also a challenge to a further Government Order dated 19 June 2014 implementing the decision of the State Government to absorb Shiksha Mitras into regular service. III For convenience of exposition, the judgment has been divided into the following parts: (i) PART A : The legislative, regulatory and administrative framework (ii) PART B : Submissions (iii) PART C : Analysis (iv) PART D : Operative orders PART A : The legislative, regulatory and administrative framework The resolution of the controversy before the Court turns upon the relevant legislation, both Central and State, holding the field and the rules and notifications. It is upon the interpretation of the regulatory framework that the dispute would turn. A1 Uttar Pradesh Basic Education Act, 1972 The Uttar Pradesh Basic Education Act, 1972(Act of 1972) was enacted by the state legislature for the purpose of re-organising, reforming and expanding elementary education and, with that purpose in view, to enable the State Government to rest control over elementary education from Zila Parishads in rural areas and Municipal Boards and Mahapalikas in urban areas while vesting it in the Board of Basic Education. The expression 'basic education' is defined in Section 2(b) to mean education upto the eighth class, imparted in schools other than high schools or intermediate colleges. By Section 4(1), the Board is vested with the function of organising, coordinating and controlling the imparting of basic education and teachers' training for the purpose of basic education in the State. Among the powers which are conferred by sub-section (2) upon the Board, is the power in clause (a) to prescribe courses of instruction and teachers' training in basic education and in clause (b) to conduct basic training certificate examinations. The Act was amended by U P Act No 18 of 2000 to introduce the provisions of Sections 9-A and 10-A and for the substitution of Section 10. As a result of the introduction of Section 9-A, control over teachers and properties of basic schools at the administrative level is entrusted to the gram panchayats or, as the case may be, municipalities within whose territorial limits each basic school is situated. Substituted Section 10, which defines the functions of Zila Panchayats and Section 10-A, as inserted, confers upon the Municipalities, certain statutory duties and functions in regard to basic education in the district or, as the case may be, the municipal area. Under Section 11, for each village or group of villages for which a gram panchayat is established under the U P Panchayat Raj Act, 1947, a Village Education Committee is contemplated to be established consisting of the Pradhan of the Gram Panchayat as its Chairperson. The Village Education Committee is conferred with the statutory function under sub-section (2)(a) to establish, administer, control and manage basic schools in the panchayat area and under clause (g) such other functions pertaining to basic education as may be entrusted by the Government. Section 19 vests a rule-making power in the State Government which comprehends, among other things, in clause (c) of sub-section (2) the power to frame rules in respect of the recruitment and conditions of service of persons appointed to posts of teachers and other employees of basic schools recognised by the Board. A2 Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 In exercise of the powers conferred by Section 19 (1) of the Act of 1972, the Service Rules of 1981 were published on 3 January 1981. Under Rule 2(1)(b), the appointing authority in relation to teachers referred to in Rule 3 is defined to mean the District Basic Education Officer. A junior basic school under Rule 2(1)(h) is defined to mean 'a basic school where instructions from classes I to V are imparted'. A senior basic school under Rule 2(1)(m) is a basic school where instructions from classes VI to VIII are imparted. Basic school comprehends a school imparting instructions from classes I to VIII. The expression 'teacher' has been defined in Rule 2(1)(o) to mean ' a person employed for imparting instructions in nursery schools, basic schools, junior basic schools or senior basic schools. The Rules incorporate a definition of 'training institution' under Rule 2(1)(p) 'as an institution imparting training for recognized certificate courses of teaching. Part II of the Rules of 1981 makes provisions for cadre strength. Rule 4(1) contemplates that there shall be separate cadres of service under the Rules for each local area which is defined under clause (i) of sub-section (1) of Section 2 to mean 'the area over which a local body exercises jurisdiction. Under sub-rule (2) of Rule 4, the strength of the cadre of the teaching staff pertaining to a local area and the number of posts in the cadre are to be such, as may be determined by the Board from time to time with the previous approval of the State Government. The Board of Basic Education is empowered, with the previous approval of the State Government, to create temporary posts. Part III of the Rules of 1981 relates to recruitment. Rule 5 provides for the sources of recruitment and mode of recruitment to various categories of posts. Insofar as the present controversy is concerned, Rule 5(a)(ii) provides for recruitment of Assistant Masters and Assistant Mistresses of junior basic schools by direct recruitment as provided in Rules 14 and 15. Qualifications for teachers of basic schools are defined in Part IV which, in Rule 6, provides for age. Provisions exist for the extent of relaxation in the case of candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, dependents of freedom fighters and ex-servicemen. Rule 8 deals with academic qualifications and is in the following terms: "8. Academic qualifications.-(1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be as shown below against each: JUDGEMENT_95_LAWS(ALL)9_2015.html
(3.) The batch of writ petitions shall stand disposed of in the aforesaid terms. However, there shall be no order as to costs.;