- (1.) This batch emanates from a challenge laid to the U.P. Basic Education (Teachers) Service (16th Amendment) Rules, 2012. 1. The aforesaid 16th Amendment Rules are liable to be read in the context of the U.P. Basic Education (Teachers) Service (15th Amendment) Rules, 2012. 2. 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, 1981. 4. 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 Education 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.
(2.) 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, 1972 7. 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."
(3.) 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 2011, 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." ;