RAM SHARAN MAURYA AND OTHERS versus STATE OF U.P. AND OTHERS on 18 November 2020

SUPREME COURT REPORTS

[2020] 12 S.C.R.

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RAM SHARAN MAURYA AND OTHERS

v.

STATE OF U.P. AND OTHERS

(Civil Appeal No. 3707 of 2020 etc.)

BNOVEMBER 18, 2020

[UDAY UMESH LALIT ANDMOHAN M. SHANTANAGOUDAR, JJ.]

Service Law:

CRecruitment – To the post of Assistant Teacher of Junior BasicSchool – By judgment in *Anand Kumar Yadav case ‘Shiksha Mitras’were given opportunity to be considered for next two recruitmentsto the post of Assistant Teacher – State amended U.P. Basic Education(Teachers) Service Rules, 1981 making ‘Shiksha Mitras’ eligiblefor appointment to the post of Assistant Teachers of Junior BasicDSchools – Qualification for the same included passing of TeachersEligibility Test (TET) and Assistant Teacher Recruitment Examination(ATRE) – For ATRE-2018, minimum qualifying marks for General& OBC candidates was 45% and for SC/ST was 40% – Candidateswere selected for appointment – National Council for TeachersEEducation by Notification dated 28.6.2018 laid down thatcandidates holding B.Ed. degree could be entitled to be appointedas teacher for classes I to V provided they undergo six months bridgecourse – Rules 1981 were subsequently amended in terms of theNCTE Notification dated 28.6.2018 with retrospective effect –Thereafter ATRE-2019 was notified for filling up 69000 vacanciesFfor Assistant Teachers – The same was conducted without notifyingminimum qualifying marks – After conducting the exam, Stateprescribed minimum qualifying marks i.e. 65% for General categoryand 60% for all other reserved categories – Writ petitions filed by‘Shiksha Mitras’ assailing fixation of minimum qualifying marks –GSingle Judge of High Court allowed the wirt petition filed by ‘ShikshaMitras’ – In appeal, Division Bench of High Court reversed theorder of Single Judge – Appeal to Supreme Court – Held: NCTE isentitled to lay down the norms for appointment of teachers for classesI to V – Such prescription is binding on the State – Amendment of H

1981 Rules has to be read in confirmity with the NCTE Notificationdated 28.6.2018 – The eligibility norms having already beenconferred by Notification dated 28.6.2018, amendments to 1981Rules with retrospective effect cannot be said to have conferredeligibility norms for the first time – Therefore, B.Ed. candidates wererightly allowed to participate in the selection process – Cut-off marksfor ATRE-2019 at 65-60% cannot be termed as exclusionary orillegal as the same was designed to garner the best talent which isin consistence with the objectives of RTE Act – Government isempowered to lay down minimum marks from time to time – Suchpower can be exercised even after the examination is over, providedsuch exercise is not actuated by any malice or ill-will – NationalCouncil for Teachers Education Act, 1993 – Right to EducationAct, 2005 – Uttar Pradesh Basic Education (Teachers) ServiceRules, 1981 – Rules 2(1)(x), 8 and 14.

Dismissing the appeals preferred by Shiksha Mitras, ex-servicemen and persons with disability and disposing of thosefiled by B.Ed./B.T.C. candidates, the Court HELD : 1.1 In Teachers’ Eligibility Test (TET) examinationheld in March, 2018, out of 3,86,000 qualified candidates, ShikshaMitras were 40,000 only; meaning thereby that a large numberof candidates other than Shiksha Mitras had been declaredqualified. Paragraph 4(2) of G.O. dated 01.12.2018, referred tocertain directives of National Council for Teachers Education(NCTE) which in turn, had dealt with eligibility of B.Ed.candidates. It was, therefore, quite apparent that in the ensuingselection process, considerable number of B.Ed. candidates wouldparticipate. In this background, the absence of any challenge tothe entitlement of B.Ed. candidates to participate in the processand to appear at Assistant Teacher Recruitment Examination-2019 (ATRE-2019) is crucial. [Para 37][530-B-D]

1.2 Going by the Parliamentary intent in empowering NCTEunder the provisions of the National Council for TeachersEducation Act, 1993 (NCTE Act) and specific authorization infavour of NCTE under the Notification dated 31.03.2010, theauthority of NCTE is beyond any doubt. Though there is no AB

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Aspecific regulation as contemplated under Section 32 read withSections 12 and 12A of the NCTE Act, for the present purposesby virtue of the specific authorization under the Notification dated31.03.2010, NCTE was entitled to lay down that those holdingthe qualification of ‘Bachelor of Education’ as detailed in saidNotification are entitled to be appointed as teachers for classes IBto V. Such prescription on part of the NCTE would be binding. Itis for this reason that G.O. dated 01.12.2018 notifying ATRE-2019 clearly stated that the candidates possessing minimumqualifications specified in Notifications issued by the NCTEincluding one dated 28.06.2018 were entitled to participate inCATRE-2019. [Para 41][534-E-H]

1.3 The Notification dated 28.06.2018 being binding on theState Government, the statutory regime put in place by the Statehas to be read in conformity with said Notification. The eligibilityor entitlement being already conferred by Notification datedD28.06.2018, the amendments to Uttar Pradesh basic Education(Teachers) Service Rules, 1981 (1981 Rules) were effected onlyto make the statutory regime consistent with the directives issuedby the NCTE. The right or eligibility was not conferred byamendments effected to 1981 Rules for the first time andtherefore the element of retrospectivity present in the concernedEamendments has to be read in that perspective. The intent behindthose amendments was not to create a right for the first timewith retrospective effect but was only to effectuate the statutoryregime in tune or accord with NCTE directives. Theoretically,even if such statutory regime was not made so consistent, theFconcerned candidates holding B.Ed. degrees could still be eligibleand could not have been denied candidature for ATRE-2019. [Para43][535-E-H]

1.4 Once, the NCTE laid down that candidates holding B.Ed.degrees would be entitled to be appointed as teachers for classesGI to V, provided they undergo a six months’ Bridge Course, thestipulation in 1981 Rules (before 23[rd] Amendment) that they mustfirst be appointed as trainee teachers must give way to that underthe Notification dated 28.06.2018. Said stipulation in 1981 Rulescannot be considered as an additional norm. It ran completely H

counter to that under the Notification dated 28.06.2018 which iswhy the Amendment in that behalf was given retrospective effectto bring in consistency. The B.Ed. candidates were rightly allowedto participate in the instant selection process. [Paras 45 and46][536-E-H]

P. Mahendran and others etc. v. State of Karnatakaand others (1990) 1 SCC 411 : [1989] 2 Suppl. SCR385 ; Madan Mohan Sharma and another v. State ofRajasthan and others (2008) 3 SCC 724 : [2008] 3SCR 232 – held inapplicable.

State of Maharashtra vs. Sant Dnyaneshwar ShikshanShastra Mahavidyalaya and others (2006) 9 SCC 1 :[2006] 3 SCR 638 ; Basic Education Board, U.P. vs.Upendra Rai and others (2008) 3 SCC 432: [2008] 2SCR 707 ; Dr. Preeti Srivastava and another etc. vs.State of M.P. and others etc. (1999) 7 SCC 120 : [1999]1 Suppl. SCR 249 – referred to.

2.1 The percentage of qualifying candidates in ATRE-2018was 38.83%. The percentage of qualifying candidates in ATRE-2019 was 37.62%, which was almost equal to that in ATRE-2018.However, the number of qualified candidates in ATRE-2018 wasless than the number of vacancies; while even with the cut off at65-60% the number of qualified candidates in the presentselection i.e. ATRE-2019 was far in excess of the number of posts.These figures give indications about the nature and the difficultylevel of the examinations and show that even with cut off at 65-60%, the percentage of qualifying candidates was almost the same.[Para 48][537-F-H; 538-A]

2.2 Though the syllabus and subject wise allocation of markswere identical in both i.e. ATRE-18 and ATRE-19, the nature ofATRE-2019 was entirely different. The nature and the difficultylevel of both the examinations were different. Therefore it mustbe accepted that there could be different parameters regardingminimum qualifying marks for ATRE-2019. [Para 50][538-D-F]

2.3 All the candidates including Shiksha Mitras whoappeared in ATRE 2018 formed one class while those whoappeared in ATRE 2019 formed another class. There cannot be A

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Ainter se connection or homogeneity between candidates appearingin one examination or selection with those appearing in anotherexamination or selection. The candidates would undoubtedlycompete with each other in the same examination on a para meterwhich applies to all of them equally. But to say that Shiksha Mitraswho appeared in ATRE-2019 must be allowed equality withBcandidates of ATRE-2018, who were part of a different selectionprocess would be incorrect and illogical. The basic norms ofATRE-2019 must be tested on their own and cannot depend uponpara meters or norms on the basis of which ATRE-2018 was held.Otherwise the integrity of the examination process will getCdefeated and nullified. [Para 51][538-F-H; 539-A-B]

2.4 The object of giving opportunities to Shiksha Mitraswas to ensure that they were given fair chance to compete withothers so that the best of the lot would be available to take careof primary education in the State. Therefore, it is not correct toDsay that there should not be a different yardstick for ShikshaMitras, who had been rendering service as teachers, as againstwhat could be applied for fresh graduates. [Paras 52 and 47(c)][540-D-E; 537-C-D]

2.5 The fixation at 65-60% level was to garner the bestEavailable talent. Even with this qualifying norm, the percentageof qualified candidates in ATRE-2019 was 37.62% which was quiteclose to 38.83% in ATRE-2018 and the number of qualifiedcandidates was far in excess of the vacancies required to be filledup. Thus, cut off at 65-60% level in the present case, by itselfcannot be termed as incorrect or illegal exercise of power. [ParaF53][541-B-C]

2.6 Though as a result of the 22[nd] Amendment, passing ofATRE ceased to be part of Rule 8, the requirement wasspecifically retained in Rule 14 of 1981 Rules. Further, 60% ofthe marks scored by a candidate in ATRE, in terms of AppendixGI read with Rule 14(2) would go in determining quality points toprepare the merit list. The major portion of quality points beingdirectly relatable to the performance in ATRE, mere fixation at65-60% level which applied to all the candidates across the boardcannot be said to be exclusionary, nor was it intended to deprive H

the Shiksha Mitras of the advantage of weightage for experience.ATRE featured as the common platform on the basis of whichindividual merit of various candidates could be tested, which iswhy a major portion of allocable quality points was assigned tothe performance in ATRE. In the circumstances, the performancein ATRE-2019 was given adequate and due weightage by fixationof cut off at 65-60% level. [Paras 55 and 56][541-E-G]

2.7 Therefore, the fixation of cut off at 65-60% in ATRE-2019 was perfectly valid and justified. Considering the largenumber of candidates who appeared at ATRE-2019 as well as thenature and difficulty level of the examination, the cut off wasdesigned to draw the best available talent. The endeavour onpart of the State in attempting to secure the best of the teacherswas therefore fully justified. The right to education guaranteedin terms of Article 21A of the Constitution would envisage qualityeducation being imparted to the children which in turn, wouldsignify that the teachers must be meritorious and the best of thelot. Any process which applied equally to all the candidates andwas designed to garner the best talent, cannot be called arbitraryor irrational. [Para 57][542-D-F]

State of M.P. and others vs. Gopal D. Tirthani and others(2003) 7 SCC 83 : [2003] 1 Suppl. SCR 797 –distinguished.

3.1 In terms of Rule 2(1)(x) of 1981 Rules, qualifying marksof ATRE are such minimum marks as may be determined ‘fromtime to time’ by the Government. Clause (C) of Rule 14 of 1981Rules lays down that a candidate must have ‘passed AssistantTeacher Recruitment Examination conducted by the Government’.Thus, one of the basic requirements for being considered to beappointed as an Assistant Teacher under 1981 Rules is passingof ATRE with such minimum marks as may be determined by theGovernment. Unlike para 7 of the Guidelines for ATRE-2018which had spelt out that a candidate must secure minimum of45% or 40% marks (for ‘general’ and ‘reserved’ categoriesrespectively) for passing ATRE-2018, no such stipulation wasavailable in G.O. dated 01.12.2018 notifying ATRE-2019. Though, AB

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Athe minimum qualifying marks were set out in the Guidelines forATRE-2018, it is not the requirement of 1981 Rules that suchstipulation must be part of the instrument notifying ATRE. Byvery nature of entrustment, the Government is empowered tolay down minimum marks ‘from time to time’. If this power istaken to be conditioned with the requirement that the stipulationBmust be part of the instrument notifying the examination, thenthere was no such stipulation for ATRE-2019. Such reading ofthe rules will lead to somewhat illogical consequences. On onehand, the relevant Rule requires passing of ATRE while, on theother hand, there would be no minimum qualifying marksCprescribed. A reasonable construction on the relevant rules wouldtherefore imply that the Government must be said to be havingpower to lay down such minimum qualifying marks not exactlyalongside instrument notifying the examination but at such otherreasonable time as well. [Para 60][552-E-H; 553-A-B]

D3.2 In the present case, the requirement in terms of Rule2(1)(x) read with Rule 14 is that the minimum qualifying marksas stipulated by the Government must be obtained by a candidateto be considered eligible for selection as Assistant Teacher. Itwas thus always contemplated that there would be some minimumqualifying marks. What was done by the Government by virtueEof its orders dated 07.01.2019 was to fix the quantum or numberof such minimum qualifying marks. The candidate had to passATRE-2019 and he must be taken to have known that there wouldbe fixation of some minimum qualifying marks for clearing ATRE-2019. [Para 61][553-E-H; 554-A]F

3.3 If the Government has the power to fix minimumqualifying marks ‘from time to time’, there is nothing in the Ruleswhich can detract from the exercise of such power even after theexamination is over, provided the exercise of such power is notactuated by any malice or ill will and is in furtherance of the objectGof finding the best available talent. [Para 63][554-E-F]

Municipal Corporation of Delhi vs. Surender Singh andothers (2019) 8 SCC 67; Jharkhand Public ServiceCommission vs. Manoj Kumar Gupta (2020) 1 SCALE504 – relied on.

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3.4 If the ultimate object is to select the best available talentand there is a power to fix the minimum qualifying marks, inkeeping with the law laid down by this Court, there is no illegalityor impropriety in fixation of cut off at 65-60% vide order dated07.01.2019. The facts on record indicate that even with this cutoff, the number of qualified candidates is more than twice thenumber of vacancies available. [Para 64][555-A-C]

State of Haryana vs. Subash Chander Marwaha andothers (1974) 3 SCC 220 : [1974] 1 SCR 165; State ofU.P. etc. v. Rafiquddin and others etc. 1987 (Supp) SCC401 : [1988] SCR 794 – relied on.

3.5 It must be accepted that after considering the natureand difficulty level of examination, the number of candidates whoappeared, the concerned authorities have the requisite power toselect a criteria which may enable getting the best availableteachers. Such endeavour will certainly be consistent with theobjectives under the Right to Education Act, 2005 (RTE Act).[Para 64][555-C-D]

3.6 In the circumstances, the view taken by the DivisionBench of the High Court is confirmed and it is concluded that inthe present case, the fixation of cut off at 65-60%, even after theexamination was over, cannot be said to be impermissible. TheGovernment was well within its rights to fix such cut off. [Para65][555-D-E]

State of Haryana vs. Subash Chander Marwaha andothers (1974) 3 SCC 220: [1974] 1 SCR 165; State ofU.P. etc. v. Rafiquddin and others etc. 1987 (Supp) SCC401: [1988] 1 SCR 794 – relied on.

K. Manjusree vs. State of Andhra Pradesh and another(2008) 3 SCC 512: [2008] 2 SCR 1025; HemaniMalhotra etc. vs. High Court of Delhi (2008) 7 SCC11: [2008] 5 SCR 1066 – distinguished.

P.K. Ramachandra Iyer and others v. Union of Indiaand others (1984) 2 SCC 141: [1984] 2 SCR 200;Umesh Chandra Shukla v. Union of India and others A

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A(1985) 3 SCC 721: [1985] 2 Suppl. SCR 367;Durgacharan Misra v. State of Orissa (1987) 4 SCC646: [1987] 3 SCR 1097; Maharashtra State RoadTransport Corporation and others v. Rajendra BhimraoMandve and others (2001) 10 SCC 51; Tej PrakashPathak and others vs. Rajasthan High Court and othersB(2013) 4 SCC 540; Yogesh Yadav vs. Union of Indiaand others (2013) 14 SCC 623: [2013] 8 SCR 194;Salam Samarjeet Singh v. High Court of Manipur atImphal and another (2016) 10 SCC 484: [2016] 9 SCR771; Sivanandam C.T. and others v. High Court ofCKerala and others (2018) 1 SCC 239: [2017] 13 SCR226; Municipal Corporation of Delhi v. Surender Singhand others (2019) 8 SCC 67; Jharkhand Public ServiceCommission v. Manoj Kumar Gupta (2020) 1 SCALE504 – referred to.

D4. Consequently, the challenge at the instance of ShikshaMitras in all these matters, is negated and the appeals preferredby Shiksha Mitras are dismissed. The appeal preferred by theAssociation of Shiksha Mitras also prayed for absorption ofShiksha Mitras. Such a prayer cannot be granted in view of thepronouncement of the decision of this Court in *Anand Kumar E

Yadav. Said appeal is, therefore, dismissed. However, one moreopportunity shall be afforded to Shiksha Mitras to compete inthe next selection. It is left to the discretion of the StateGovernment to consider the manner and the modalities in whichsuch opportunity can be availed of. [Paras 66 and 67][555-E-H]

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5. The cut off at 65-60% having been held valid andjustified, the appeals preferred by ex-servicemen or persons withdisability are also dismissed. If there are less number of candidatesagainst the vacancies for these categories, such vacancies shallbe subject to the Rules in that behalf. If the vacancies cannot beGcarried forward, the same shall and must enure to the advantageof the candidates in the present selection. [Para 68][556-A-C]

6. Similarly, Writ Petition and appeals arising out of petitionspreferred by B.Ed./B.T.C. candidates as well as Contempt A

Petition and all Intervention Applications also stand disposed ofin same terms. [Para 68][556-C]

7. The State Government shall now be entitled to fill up allthe concerned posts in terms of the result declared on 12.05.2020and in accordance with law. [Para 69][556-C-D]

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*State of U.P. and another vs. Anand Kumar Yadav andothers (2018) 13 SCC 560 : [2017] 10 SCR 428 –referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3707of 2020.

CFrom the Judgment and Order dated 06.05.2020 of the High Courtof Judicature at Allahabad, Lucknow Bench, Lucknow in Special AppealNo. 207 of 2019.

With

Civil Appeal Nos. 3708, 3709, 3710, 3711, 3720, 3721, 3722, 3728,D3729, 3725, 3732, 3731, 3724, 3723, 3730, 3726, 3712, 3713, 3714, 3717,3715, 3716, 3718, 3719, 3727, 3733, 3734 of 2020, Contempt Petition (C)No. 418 of 2020 in Special Leave Petition (Civil) No. 6841 of 2020,Special Leave Petition (Civil) D. No. 13142 of 2020, Writ Petition (Civil)No. 703 of 2020.

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Ms. Aishwarya Bhati, ASG, K.V. Viswanathan,R. Balasubramanian, Sr. Advs., Harish Pandey, Anup Kumar, SachinSharma, Talha Abdul Rahman, Kushagra Pandey, Mohd. Shaz Khan,Udit Konkanthankar, Mukesh Verma, Raj Singh Rana, Anand Nandan,Satya Mitra, Pankaj Kumar Singh, Kamal Kumar Pandey, Yash PalFDhingra, Akshay Verma, Atul Khenja, D.K. Pandey, Ms. Tanya Agarwal,Ms. Rani Chhabra, Ms. Saroj Tripathi, Naveen Kumar Tripathi, AbhishekKumar Singh, Dr. Sumant Bharadwaj, Vedant Bharadwaj, Ms. MridulaRay Bharadwaj, Kausar Raza Faridi, D.P. Shukla, Prashant Shukla,Dr. Brij Bhushan K. Jauhar, Gaurav Yadav, Harsh Mahan, Lalit Chahar,Ms. Purnima Jauhari, R.K. Singh, Ms. Neeraj Singh, Kumar Gaurav,GMs. Ritu Reniwal, Ms. Anzu. K. Varkey, Aman Rastogi, Sanjay Rastogi,Ms. Ritu, Abhishek Kishor, Parminder Singh Bhullar, Tom Joseph,Pushkar Sharma, Satish Pandey, Ms. Geeta Verma, Abdul Qadir, NishitAgrawal, Harsh Mishra, Dr. Vinod Kumar Tewari, Ms. Priyanka Dubey, H

Vivek Tiwari, Amit Pawan, Sahil Bhalaik, Tarun Gupta, Rakesh Mishra,Krishnanand Pandeya, Priyank Upadhyay, Piyush Dwivedi,Rameshwar Prasad Goyal, Ms. Tanima Kishore, Satyajeet Kumar,Rakesh Dahiya, Santosh Kumar Tripathi, Advs. for the appearing parties.

The Judgment of the Court was delivered by 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 concernedmatters; and (ii) Special Leave to Appeal is granted in all matters.

2. These appeals arise out of the final judgment and order dated06.05.2020 passed by the Division Bench of the High Court[1] in SpecialAppeal No.207 of 2019 and all connected matters whereby the DivisionBench of the High Court set aside the Order dated 29.03.2019 passedby the Single Judge of the High Court in Writ Petition No.1188(SS) of2019 and other connected matters. These appeals, inter alia, deal withthe extent of rights of Shiksha Mitras and benefits conferred upon themby the decision of this Court in State of U.P. and another vs. AnandKumar Yadav and others[2].

3. The facts leading to the decision of this Court in Anand KumarYadav[2 ]were set out in said decision as under:- “3. Brief factual matrix may be noted. The U.P. Basic EducationAct, 1972 (the 1972 Act) was enacted to regulate and controlbasic education in the State of U.P. Section 19 of the 1972 Actauthorises the State Government to make rules to carry out thepurpose of the Act. The U.P. Basic Education (Teachers) ServiceRules, 1981 (the 1981 Rules) lay down sources of recruitmentand qualification for appointment of teachers. The National Councilfor Teachers’ Education Act, 1993 (NCTE Act) was enacted byParliament for planned and coordinated development for teachereducation system. The Right of Children to Free and CompulsoryEducation Act, 2009 (the RTE Act, 2009) was enacted byParliament for free and compulsory education to all children ofthe age of 6 to 14 years. Section 23 provides for qualification for

1 The High Court of Judicature at Allahabad, Lucknow Bench 2 (2018) 13 SCC 560

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appointment of teachers. NCTE was designated as authority underSection 23(1) to lay down the qualifications for appointment ofteachers.

4. NCTE issued Notification dated 23-8-2010 laying down suchqualifications. With regard to teachers appointed prior to the saidnotification, it was stated that they were required to havequalifications in terms of the National Council for TeacherEducation (Determination of Minimum Qualifications forRecruitment of Teachers in Schools) Regulations, 2001 (the 2001Regulations), if the teachers were appointed on or after 3-9-2001subject to their undergoing NCTE recognised six months’ specialprogramme in certain situations. Teachers appointed before 3-9-2001 were required to have qualifications as per the prevalentrecruitment rules. One of the requirements under the saidnotification is the requirement of passing Teachers Eligibility Test(TET). However, by Letter dated 8-11-2010, the CentralGovernment sought proposals for relaxation under Section 23(2)of the RTE Act which was followed by the relaxation Order dated10-9-2012 for certain categories of persons which was to operatetill 31-3-2014. Vide Letter of NCTE dated 14-1-2011, NCTEaccepted the proposal of the State of Uttar Pradesh for trainingof untrained graduate Shiksha Mitras by open and distance learningbut it was made clear that no appointment of untrained teacherswas 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 theShiksha Mitras were recruited. On 26-5-1999, a GovernmentOrder was issued by the State of U.P. for engagement of ShikshaMitras (Parateacher). The purported object of the Order was toprovide universal primary education and for maintenance ofteacher student ratio in primary schools by hiring persons whowere not duly qualified at lesser cost as against the prescribedsalary of a qualified teacher. The Government Order (G.O.) statedthat up to the limit of 10,000, Shiksha Mitras could be contractedfor academic session 1999-2000 at honorarium of Rs 1450 per month. The salient aspects of the scheme as summed up in theimpugned judgment[?] of the High Court from the said G.O. were:(Anand Kumar case[3], SCC OnLine All para 17)

“(i) The appointment of Shiksha Mitras was to be against thepayment of an honorarium;

(ii) The appointment was to be for a period of eleven monthsrenewable for satisfactory performance;

(iii) The educational qualifications would be of the intermediatelevel;

(iv) The unit of selection would be the village where the schoolis situated and in the event that a qualified candidate was notavailable in the village, the unit could be extended to thejurisdiction of the Nyaya Panchayat;

(v) The services of a Shiksha Mitra could be terminated forwant of satisfactory performance;

(vi) Selection was to be made at the village level by the VillageEducation Committee; and

(vii) The scheme envisaged the constitution, at the district level,of a Committee presided over by the District Magistrate andconsisting, inter alia, of the Panchayat Raj Officer and theDistrict Basic Education Officer among other members tooversee implementation.”

7. Further G.Os. were issued by the State of U.P. including G.O.dated 1-7-2001 expanding the scheme and clarifying that thescheme was not for employment in a regular service but to provideopportunity to the rural youth to render community service.

8. Even though vide Notification dated 23-8-2010, minimumstatutory qualification was laid down by NCTE, the issue forrelaxation under Section 23(2) of the RTE Act was taken up bythe Union Government for relaxation for the limited interim statutoryperiod and if a particular State did not have adequate institutionsfor teachers training or did not have the adequate number ofcandidates during the period. The State Government, in response 3 2015 SCC OnLine All 3997 : ILR 2015 All 1108 [Anand Kumar Yadav vs. Union ofIndia]

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to the letter of the Central Government, responded by stating thatit had appointed Shiksha Mitras on contractual basis who wererequired to be given teachers training. The Central Governmentissued an Order for relaxation under Section 23(2) subject to certainconditions 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 whichwas accepted by the Central Government in terms of the Letterdated 14-1-2011 for two years’ diploma in elementary educationthrough open and distance learning mode with a clearunderstanding that no untrained teachers will be appointed.

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10. Finally, the State of U.P. took the following steps which weresubject-matter of challenge before the High Court:

10.1. The Notification dated 30-5-2014 amending the U.P. RTERules introducing Rule 16-A authorising the State Government torelax minimum educational qualifications for appointment ofAssistant Teachers in Junior Basic Schools.

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10.2. The Notification dated 30-5-2014, amending the 1981 Rules:Rule 8 laid down revised qualifications for appointment of AssistantMaster and Assistant Mistress of Junior Basic Schools whichEqualifications are different from the statutory qualifications underSection 23 of the RTE Act. Rule 5 was amended to add ShikshaMitras as source for recruitment of teachers in addition to theexisting source of direct recruitment in accordance with the existingrules. Rule 14 was also amended to enable Shiksha Mitras to beappointed as teachers against substantive posts without havingFthe qualifications prescribed under Section 23 of the RTE Act.

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10.3. G.O. dated 19-6-2013 was issued giving permission forappointment of Shiksha Mitras on the post of Assistant Teachersin primary schools without having the eligibility and qualificationsin terms of the RTE Act, 2009. A time table was laid down forabsorption of Shiksha Mitras as Assistant Teachers.

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10.4. The consequential executive orders were issued forabsorption of 1,24,000 graduate Shiksha Mitras and 46,000intermediate Shiksha Mitras.”

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13. Batch of writ petitions was filed before the High Court bypersons who claimed to be eligible for appointment and whosechances were affected by filling up of vacancies of teachers byregularising the Shiksha Mitras against the said vacancies……….

14. Case set out in the petition was that in view of Notificationissued by NCTE on 23-8-2010 laying down minimum qualificationfor appointment of Assistant Teacher for Classes I to VIII, thedecision of the U.P. Government dated 19-6-2014 and amendmentsmade by the U.P. Government on 30-5-2014 were in conflict withthe Notification issued by NCTE on 23-8-2010 and could not,thus, be justified. TET being a mandatory qualification, the StateGovernment could not make any appointment to the post of teacherwithout the said qualification. The appointments did not fall underthe relaxation clause being post 23-8-2010 Notification and beingnot covered by the conditions for relaxation. The 1981 Rules ofthe State could not incorporate a provision for absorption of ShikshaMitras in violation of law laid down by this Court in State ofKarnataka v. Umadevi (3)[4]as their appointment was dehors the1981 Rules, having not been made after following the rules forappointment of teachers. It was also submitted that the nature ofappointment of Shiksha Mitras was contractual to enable them torender community service and not in terms of prescribedqualifications for appointment of teachers. Training by open anddistance learning mode was relevant only for teachers validlyappointed and not for contractual employees appointed dehorsthe rules. Moreover, 46,000 Shiksha Mitras were not evengraduates which was a condition for approval by NCTE in itsletter dated 14-1-2011………”

3.1 The decision rendered by the Full Bench of the High Court ofJudicature at Allahabad was dealt with as under:- “17. The findings of the High Court in brief are that having regardto the nature of appointment of Shiksha Mitras, they could not betreated as teachers in terms of the 1981 Rules. They also did nothave the qualifications prescribed under the said Rules inasmuchas on the date of appointment, they did not have graduate degreenor they had basic teachers’ certificate as prescribed under the1981 Rules. Reservation policy had also not been followed. No 4 (2006) 4 SCC 1 : 2006 SCC (L&S) 753

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doubt they may have served the need of the hour, their regularappointment in violation of the requisite statutory qualification wasillegal. Reference was made to earlier Full Bench judgment inSandhya Singh v. State of U.P.[5]with regard to the nature ofsuch appointments.

B18. It was further held that Section 23(2) permitted relaxation ofminimum qualification for appointment of teachers only for a limitedperiod not exceeding five years and qualification for TET couldnot be relaxed as held by the Full Bench judgment of the HighCourt in Shiv Kumar Sharma v. State of U.P.[6] for post-23-8-2010 appointments. Nor pre-23-8-2010 appointments could beCsaved unless initial appointments were to the post of teachers interms of applicable rules as stated in the Notification dated 23-8-2010. The amendments to the State RTE Rules, 2011 and theService Rules of 1981 were in conflict with the mandate of Section23(2) under which power to relax the minimum qualifications wasDvested only with the Central Government for a limited period.Moreover, the regularisation of Shiksha Mitras as teachers wasnot permissible in view of the law laid down in Umadevi (3)[4]. Theappointment of Shiksha Mitras was not as teachers nor could itbe held to be merely irregular in the absence of their minimumqualifications for the post of teachers which was a distinguishingEfeature rendering the judgments State of Karnataka v. M.L.Kesari[7] and Amarendra Kumar Mohapatra v. State of Orissa[8]inapplicable.

3.2. Affirming the view taken by the Full Bench, this Courtconcluded:-F

3.2. Affirming the view taken by the Full Bench, this Courtconcluded:-F

“28. We are in agreement with the above findings. In view ofclear mandate of law statutorily requiring minimum qualificationfor appointment of teachers to be appointed after the date of theNotification dated 23-8-2010, there is no doubt that no appointmentwas permissible without such qualifications. Appointments in theGpresent case are clearly after the said date. Relaxation provision could be invoked for a limited period or in respect of persons 5 (2013) 7 ADJ 1 (FB)6 2013 SCC OnLine All 4097 : (2013) 6 ALJ 366 : 6 ADJ 310 (FB)7 (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826H8 (2014) 4 SCC 583 : (2014) 2 SCC (L&S) 54

already appointed in terms of applicable rules relating toqualifications. The Shiksha Mitras in the present case do not fallin the category of pre 23-8-2010 Notification whose appointmentcould be regularised.

29. Further difficulty which stares one in the face is the law laiddown by this Court on regularisation of contractually appointedpersons in public employment. Appointment of Shiksha Mitraswas not only contractual, it was not as per qualification prescribedfor a teacher nor on designation of teacher nor in pay scale ofteachers. Thus, they could not be regularised as teachers.Regularisation could only be of mere irregularity. The exceptionscarved out by this Court do not apply to the case of the presentnature.

30. In view of our conclusion that the Shiksha Mitras were neverappointed as teachers as per applicable qualifications and are notcovered 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 thequalifications.

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32. On the one hand, we have the claim of 1.78 lakh persons tobe regularised in violation of law, on the other hand is the duty touphold the rule of law and also to have regard to the right ofchildren in the age of 6 to 14 years to receive quality educationfrom duly qualified teachers. Thus, even if for a stop-gaparrangement teaching may be by unqualified teachers, qualifiedteachers have to be ultimately appointed. It may be permissible togive some weightage to the experience of Shiksha Mitras or someage relaxation may be possible, mandatory qualifications cannotbe dispensed with. Regularisation of Shiksha Mitras as teacherswas not permissible. In view of this legal position, our answersare obvious. We do not find any error in the view[3 ]taken by theHigh Court.”

3.3 However, in the peculiar fact situation, following observationswere made by this Court:- “33. Question now is whether in the absence of any right in favourof Shiksha Mitras, they are entitled to any other relief or preference.

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AIn the peculiar fact situation, they ought to be given opportunity tobe considered for recruitment if they have acquired or they nowacquire the requisite qualification in terms of advertisements forrecruitment for next two consecutive recruitments. They may alsobe given suitable age relaxation and some weightage for theirexperience as may be decided by the authority concerned. TillBthey avail of this opportunity, the State is at liberty to continuethem as Shiksha Mitras on same terms on which they wereworking prior to their absorption, if the State so decides.”

4. Paragraph 33 of the decision in Anand Kumar Yadav[2] thusdirected that Shiksha Mitras be given:-C

a)opportunity to be considered for recruitment if they hadacquired or would acquire requisite qualifications in terms ofadvertisement for recruitment.

b)for next two consecutive recruitments; andDc)in such recruitments, they would be entitled to:-

i)suitable age relaxation; and

ii)some weightage for their experience, as may be decidedby the authority concerned.

E5. After the decision in Anand Kumar Yadav[2], a Press Notewas released by the State Government on 21.08.2017, which referred tothe directions in aforesaid paragraph 33 and stated:

“1. In sequence of compliance of above, Government to suchteachers who were absorbed/ adjusted at the post of teacher,Fthey will be deemed reverted on the post of Shiksha Mitra w.e.f.1.8.2017. They will have option to join duty in their present schoolor at the school of their original posting.

2. State Government shall organize exam of TET in the month ofOctober 2017 and all such Shiksha Mitras shall be provided anGopportunity to acquire the required qualification.

3. After TET examination is held, for the purposes of selection ofAssistant Teachers in the Primary Schools under the Board,advertisement of vacancy in appropriate number shall be gotpublished in the month of December 2017 and all the eligibleHapplicants shall be provided with opportunity to make application.

4. In sequence of the order passed by the Hon’ble Supreme Court,amendment was brought in “Uttar Pradesh Basic Shiksha(Teachers) Service Rule, 1981” and for the purposes of recruitmenton vacant posts of Assistant Teachers, advertisement shall bemade. Above said amendment shall be brought in educationalqualification and in determining the factor which shall be as under:- a.Existing and proposed amendment in UP Basic Education(Teacher) Service Rule, 1981 for the purposes of selectionon the basis of Educational Factor:- Appendix On the basis of Educational factor A

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A5. All Shiksha Mitras shall be given honorarium of Rs.10,000/-per month w.e.f. 1.8.2017.”

6. On 09.11.2017, the State Government notified UP Basic(Teachers) Service (20[th] Amendment) Rules, 2017 amending 1981 Rules[9].Following expressions were defined in Rule 2 as under:-B

“(s) “Teacher Eligibility Test” means the Teacher Eligibility Testconducted by the Government or by the Government of India; (t) “Qualifying marks in Teacher Eligibility Test” Qualifying marksin Teacher Eligibility Test will be such as may be prescribed fromtime to time by the National Council for Teacher Education, NewCDelhi; (u) “Trainee teacher” means a candidate who has passed B.Ed./B.Ed. (Special Education)/D.Ed. (Special Education) and has alsopassed the teacher eligibility test and has been selected for eventualappointment as assistant teacher in Junior Basic School afterDsuccessful completion of six months special training programmein elementary education recognised by National Council forTeacher Education (NCTE);

(v) “Shiksha Mitra” means a person working as such in juniorbasic schools run by Basic Shiksha Parishad under the GovernmentEOrders prior to the commencement of Uttar Pradesh Right ofChildren to Free and Compulsory Education Rules, 2011; Or a person who has been a Shiksha Mitra and appointed as anAssistant Teacher in Junior Basic Schools run by Basic ShikshaParishad and reverted to work as Shiksha Mitra in pursuance ofFthe judgment of the Apex Court in SLP No. 32599/2015 State ofU.P. and others v. Anand Kumar Yadav and others.

(w) “Assistant Teacher Recruitment Examination” means awritten examination conducted by the Government for recruitmentof a person in junior basic schools run by Basic Shiksha Parishad; G

(x) “Qualifying Marks of Assistant Teacher RecruitmentExamination” means such minimum marks as may be determinedfrom time to time by the Government.

H9 UP Basic Education (Teachers) Service Rules, 1981

(y) “Guidelines of Assistant Teacher RecruitmentExamination” means such guidelines as may be determined fromtime to time by the Government.”

6.1. The sources of recruitment of teachers now set out in Rule 5were:-

“5. Sources of recruitment. - The mode of recruitment to thevarious categories of posts mentioned below shall be as follows :

Provided that if suitable candidate s are not available for promotionto the posts mentioned at (v) and (vi) above, appointment may bemade by direct recruitment in the manner laid down in Rule 15.”

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A6.2. The Essential Qualifications for appointment to the postsreferred to in Clause (a) of Rule 5 were stipulated in Rule 8(1) as under:- “8. Academic Qualifications-(1) The essential qualifications ofcandidates for appointment to a post referred to in clause (a) ofRule 5 shall be as shown below against each:

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Thus, Shiksha Mitras became eligible for appointment to the postsof “Assistant Masters and Assistant Mistresses of Junior Basic Schools”and the required academic qualifications as stated in Rule 8 were:-

a) Bachelor’s degree from a University.

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Ab) Successful completion of two years distant learning of B.T.C.course or its equivalent course.

c) Passing of the Teachers’ Eligibility test (‘TET’, for short).

d) Passing of Assistant Teacher Recruitment Examination (“ATRE”, for short) conducted by the State Government.

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6.3. Rule 14 dealt with determination of vacancies and preparationof list as under:- “14. Determination of vacancies and preparation of list-(1)(a) In respect of appointment, by direct recruitment to the postof Mistress of Nursery Schools and Assistant Master or AssistantMistress of Junior Basic Schools under clause (a) of Rule 5, theappointing authority shall determine the number of vacancies asalso the number of vacancies to be reserved for candidatesbelonging to Scheduled Castes, Scheduled Tribes, BackwardClasses, and other categories under Rule 9 and at least two leadingdaily newspapers having adequate circulation in the State as wellas in concerned district inviting applications from candidatespossessing prescribed training qualification and teacher eligibilitytest passed, conducted by the Government or by the Governmentof India and passed Assistant Teacher Recruitment Examinationconducted by the Government.

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(b) The Government may from time to time decide to appointcandidates, who are graduates along with B.Ed./B.Ed. (SpecialEducation)/D.Ed. (Special Education) and who have also passedteacher eligibility test conducted by the Government or by theFGovernment of India, as trainee teachers. These candidates afterappointment will have to undergo six months special trainingprogramme in elementary education recognised by NationalCouncil of Teacher Education (NCTE). The appointing authorityshall determine the number of vacancies as also the number ofvacancies to be reserved for candidates belonging to ScheduledGCastes, Scheduled Tribes, Backward Classes, and other categoriesunder Rule 9 and advertisement would be issued in at least twoleading daily newspapers having adequate circulation in the Stateas well as in concerned district inviting applications from candidateswho are graduates along with B.Ed./B.Ed. (Special Education)/HD.Ed. (Special Education) and who have also passed teacher G

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eligibility test conducted by the Government or by the Governmentof India.

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eligibility test conducted by the Government or by the Governmentof India.

(c) The trainee teachers, after obtaining the certificate ofsuccessful completion of six months special training in elementaryeducation shall be appointed as assistant teachers in junior basicschool against substantive post in regular pay-scale. The appointingauthority will be duty bound to appoint the trainee teachers asassistant teachers within one month of issue of certificate ofsuccessful completion of said training.

(2) The appointing authority shall scrutinize the applicationsreceived in pursuance of the advertisement under clause (a) or(b) of sub-rule (1) of Rule 14 and prepare a list of such persons asappear to possess the prescribed academic qualifications and beeligible for appointment.

(3) (a) The names of candidates in the list prepared undersub-rule (2) in accordance with clause (a) of sub-rule(1) of Rule 14 shall then be arranged in such mannerthat the candidate shall be arranged in accordance withthe quality points and weightage as specified in theAppendix-I :

Provided that if two or more candidates obtain equalmarks, the candidate senior in age shall be placed higher.

(b) The names of candidates in the list prepared undersub-rule (2) in accordance with clause (b) of sub-rule(1) of Rule 14 shall then be arranged in such mannerthat the candidate shall be arranged in accordance withthe quality points specified in the appendix-II :

Provided that if two or more candidates obtain equalmarks, the candidate senior in age shall be placed higher.

(c) The names of candidates in the list prepared inaccordance with clause (c) sub-rule (1) of Rule 14 forappointment as assistant teacher shall be same as thelist prepared under clause (b) sub-rule (3) of Rule 14unless the candidate under the said list is unable tosuccessfully complete the six months special trainingcourse in elementary education in his first attempt. Ifthe candidate successfully completes the six months AB

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special training in his second and final attempt, thecandidate’s name shall be placed under the names of allthose candidates who have completed the said six monthsspecial training in their first attempt.

(4) No person shall be eligible for appointment unless his or herBname is included in the list prepared under sub-rule (2).

(5) The list prepared under sub-rule (2) and arranged in accordancewith clause (a) and (b) of sub-rule (3) of Rule 14 shall be forwardedby the appointing authority to the selection committee.”

6.4. Appendix I referable to Rule 14(3)(a) and Appendix II referableCto Rule 14(3)(b) as amended by the 20[th] Amendment were as under:- “APPENDIX-I[10][See Rule 14 (3)a]

Quality points and weightage for selection of candidates D

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10 Appendix-I Subs. by Noti. No.2282/LXXIX-5-2017-282-98 dated 9th Nov., 2017(Twentieth Amendment) Rules, 2017. Published in U.P. Gazette. Extra., Part 4, SectionH(Ka), dated 9[th] November, 2017 (w.e.f. 9.11.2017).

Notes I – If two or more candidates have equal quality points, thename of the candidate who is senior in age shall be placed higherin the list.

2. If two or more candidates have equal quality points and age,the name of the candidate shall be placed in the list in Englishalphabetical order.”

“APPENDIX-II[11]

[See Rule 14 (3)(b)]Quality Points for Selection of candidates Note – If two or more candidates have equal quality points thename of the candidate who is senior in age shall be placed higherin the list. If two or more candidates have equal quality point; andage, the name of the candidate shall be placed in the list in Englishalphabetical order.”

7. On 09.01.2018, a G.O. was issued framing Guidelines for ATREto be conductedin 2018 (“ATRE-2018”, for short) for filling up 68,500posts of Assistant Teachers for junior basic schools. Paragraph 7 of theEnclosure to the G.O. prescribed the minimum qualifying marks for ATRE2018 as minimum of 67 marks out of 150 i.e. 45% for General and OBCcandidates and 60 out of 150 i.e. 40% for SC/ST candidates. Paragraphs4.1, 5 and 7 of the Enclosure to G.O. were:- 11Appendix Ins. by (Sixteenth Amendment) Notification No.3338/LXXIX-5-2012-14(10)-2010, dated 4 December, 2012 (w.e.f. 4-12-2012)

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A“4. The minimum qualification for the application:-

(1) In Rule 8 of the Uttar Pradesh Basic Education (Teachers)Service (20[th] Amendment) Rules, 2017 the described educational,training passed, Government of India or by the State Governmentthe organized Teachers Eligibility Examination (Primary Level)Bpassed candidates will be eligible for filing the application in theAssistant Teachers Recruitment Examination, 2018.

5. The Subject Matter and the Structure of the RecruitmentExamination of the Assistant Teachers:- By the office of the Secretary, Uttar Pradesh Basic EducationCCouncil, Allahabad and in accordance with the advertisement whichhas been published vide Advertisement bearing No.Basic EducationCouncil/15876/2017-18 dated 28.10.2017:- Time of the examination 3.00 hours Total Marks 150

DType of questions very small question No. of question 150

The level of the Subject Matter:-

(1) Hindi Language, Sanskrit and English, Science, Maths,environment and Social Studies (upto Class 12 level).

(2) Teaching Efficiency, Child Psychology, Information Technology,ELife Efficiency Management and Attitutde – (Upto D.L.Ed.syllabus).

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[2020] 12 S.C.R.

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7. Qualifying Marks:

1. In the Assistant Teachers Recruitment Examination, thecandidates who are participating for them the examination resultwill be issued / given on the website. For the General and OBCClass candidates who receive 67 marks out of total 150 marksviz. 45% marks or more and then only those General and OBCClass candidates will be issued passed certificate in the AssistantTeachers Recruitment Examination.

2. For the Scheduled Caste / Scheduled Tribes candidates theminimum qualifying marks will be 40% viz. 60 marks out of total150 marks.

3. Only by passing the Assistant Teachers RecruitmentExamination will not give any right of employment to thosecandidates because for this appointment only this is one of theeligible measurement.”

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A8. On 15.03.2018, by 22[nd] Amendment, 1981 Rules were amendedremoving the requirement of passing of ATRE from the essentialqualifications contained in Rule 8. However, the requirement wasretained in Rule 14 dealing with the procedure for selection of AssistantTeachers. The relevant part of Rule 8(1) dealing with AcademicQualifications for “Assistant Master and Assistant Mistresses of JuniorBBasic Schools” read as follows:- A

“ii. (a) Bachelors degree from a University established by law inIndia or a degree recognised by the Government equivalent theretotogether with any other training course recognized by theGovernment as equivalent thereto together with the trainingqualification consisting of a Basic Teacher’s Certificate (BTC),two year BTC (Urdu) Vishisht BTC. Two year Diploma inEducation (Special Education) approved by the RehabilitationCouncil of India or four year degree in Elementary Education(B.El.Ed.), two year Diploma in Elementary Education (bywhatever name known) in accordance with the National Councilof Teacher Education (Recognition, Norms and Procedure)Regulations, 2002 or any training qualifications to be added byNational Council for Teacher Education for the recruitment ofteachers in primary education.

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and

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teacher eligibility test passed conducted by the Government or bythe Government of India.”

Rule 14 dealing with Procedure of selection stood substituted asunder:-F

“14(1)(a) – Determination of vacancies

In respect of appointment, by direct recruitment to the post ofMistress of Nursery Schools and Assistant Master or AssistantMistress of Junior Basic Schools under clause (a) of rule 5, theappointing authority shall determine the number of vacancies asalso the number of vacancies to be reserved for candidatesbelonging to Scheduled Castes, Scheduled Tribes, BackwardClasses, and other categories under rule 9 and published in atleast two leading daily newspapers having adequate circulation inthe State as well as in concerned district inviting applications from G

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candidates possessing prescribed training qualification and passedteacher eligibility test, conducted by the Government or by theGovernment of India and passed Assistant Techer RecruitmentExamination conducted by the Government.

(b) Recruitment Examination- For every notified vacancy underclause (a) for recruitment of Assistant Master or Assistant Mistressof Junior Basic School, a separate Assistant Techer RecruitmentExamination shall be conducted by the Government.

(c) The Government may from time to time decide to appointcandidates, who are graduates along with B.Ed/B.Ed. (SpecialEducation)/D.Ed. (Special Education) and who have also passedteacher eligibility test conducted by the Government or by theGovernment of India, as trainee teachers. These candidates afterappointment will have to undergo six months training programmein elementary education recognized by National Council of TeacherEducation (NCTE). The appointing authority shall determine thenumber of vacancies as also the number to be reserved forcandidates belonging to Scheduled Castes, Scheduled Tribes,Backward Classes, and other categories under rule 9 andadvertisement would be issued in at least two leading daily newspapers having adequate circulation in the State as well as inconcerned district inviting applications from candidates who aregraduates along with B.Ed./B.Ed. (Special Education)/D.Ed.(Special Education) and who have also passed teacher eligibilitytest conducted by the Government or by the Government of Indiaand passed Assistant Teacher Recruitment Examination conductedby the Government.

(d) The trainee teachers, after obtaining the certificate ofsuccessful completion of six months special training in elementaryeducation, shall be appointed as assistant teachers in junior basicschools against substantive post in regular pay-scale. Theappointing authority will be duty bound to appoint the traineeteachers as assistant teachers within one month of issue ofcertificate of successful completion of said training.

(2) Preparation of Merit List – The appointing authority shallscrutinize the applications received in pursuance of theadvertisement under clause (a) or clause (c) of sub-rule (1) and A

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prepare a merit list of such persons as appear to possess theprescribed academic qualifications and passed Assistant TeacherRecruitment Examination be eligible for appointment.

(3) (a) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (a) of sub-rule (1) of rule 14Bshall then be arranged in such manner that the candidate shall bearranged in accordance with the quality points and weightage asspecified in the appendix-I.

Provided that if two or more candidates obtain equal marks, thecandidates senior in age shall be placed higher.

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Provided that a person working as Shiksha Mitra in Junior BasicSchools run by Basic Shiksha Parishad shall be given weightagein the recruitment of the post of Assistant Teacher, only in twoconsecutive Assistant Teacher Recruitment Examinationconducted by the Government after July 25, 2017.

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(b) The names of candidates in the list prepared under sub-rule(2) in accordance with clause (c) of sub-rule (1) of rule 14 shallthen be arranged in such manner that the candidate shall bearranged in accordance with the quality points specified in theappendix-II:

EProvided that if two or more candidates obtain equal marks, thecandidate senior in age shall be placed higher.

(c) The names of candidates in the list prepared in accordancewith clause (d) of sub-rule (1) of rule 14 for appointment asassistant teacher shall be same as the list prepared under clauseF(c) sub-rule (3) of rule 14 unless the candidate under the said listis unable to successfully complete the six months special trainingcourse in elementary education in his first attempt. If the candidatesuccessfully completes the six months special training in his secondand final attempt, the candidate’s name shall be placed under thenames of all those candidates who have completed the said sixGmonths special training in their first attempt.

(4) No person shall be eligible for appointment unless his or hername is included in the list prepared under sub-rule (2).

(5) The list prepared under sub-rule (2) and arranged in accordanceHwith clause (a) and (b) of sub-rule (3) of rule 14 shall be forwardedby the appointing authority to the selection committee.”

9. In March, 2018, TET examination was held, in whichapproximately 3,86,000 candidates including about 40,000 Shiksha Mitrasqualified.

10. On 21.05.2018, a G.O. was issued relaxing the qualifying marksof 45-40% to 33-30% for General and Reserved categories respectively.This relaxation was challenged by filing W.P. No.20404 of 2018 by somecandidates and the operation of said G.O. was stayed by the High Courtvide Order dated 23.07.2018.

11. On 27.05.2018 ATRE-2018 was conducted. In the results,41,556 candidates were declared to have qualified with qualifying marksof 45-40% out of which, 40296 candidates applied for counselling andwere selected for appointment on 13.08.2018. About 4500 candidateswere added to this number after re-valuation process.

12. On 28.06.2018, the National Council for Teachers Education(“NCTE”, for short) amended its OM dated 23.08.2018. The notificationdated 28.06.2018 was to the following effect:-

“F.No.NCTE-Regl 012/16/2018.- In exercise of the powersconferred by sub-section (1) of Section 23 of Right of Children toFree and Compulsory Education Act, 2009 (35 of 2009) and inpursuance of notification number S.O. 750(E), dated the 31[st]March, 2010 issued by the Department of School Education andLiteracy, Ministry of Human Resource Development, Governmentof India, the National Council for Teacher Education (NCTE)hereby makes the following further amendments to the notificationnumber F.N. 61-03/20/2010/NCTE(N&S), dated the 23[rd] August,2010, published in the Gazette of India, Extraordinary, Part III,Section 4, dated the 25[th] August, 2010, hereinafter referred to asthe said notification namely:-

(1) In the said notification, in para 1 in sub-para (i), in clause (a)after the words and brackets “Graduation and two year Diplomain Elementary Education (by whatever name known), the followingshall be inserted, namely:- OR

“Graduation with at least 50% marks and Bachelor ofEducation (B.Ed.)”

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A(2) In the said notification in para 3, for sub-para(a), the followingsub-para shall be substituted namely:- “(a) who has acquired the qualification of Bachelor of Educationfrom any NCTE recognised institution shall be considered forappointment as a teacher in classes I to V provided the personBso appointed as a teacher shall mandatorily undergo a six monthBridge Course in Elementary Education recognised by theNCTE, within two years of such appointment as primaryteacher”

13. On 26.09.2018, while dealing with the issue as to the stage atCwhich the weightage is to be given to Shiksha Mitras for their experiencein terms of the directions of this Court in Anand Kumar Yadav[2] and1981 Rules, Division Bench of the High Court of Judicature at Allahabadin Kulbhushan Mishra and another vs. State of U.P. and others(Special Appeal No. 812 of 2018 etc.) observed:- D“…we are of the considered view that weightage was notcontemplated to be added to the marks obtained by a person inthe Assistant Teacher Recruitment Examination.”

14. On 01.12.2018, a G.O. was issued notifying 2[nd] ATRE (“ATRE-2019”, for short) for filling up 69,000 vacancies of Assistant Teachers.EParagraphs 1, 4.1, 4.2 and 5 of the Annexure to the G.O. were:- “In the schools managed by the Basic Education Department theteachers imparting education have major role in the developmentof girls and boys studying in the schools. It has been thereforedecided that in order to fill the vacant seats of the teachers in theFprimary schools a state level Assistant Teachers RecruitmentExamination will be conducted.

Only those candidates who are graduate, trained and those whohave passed the Teachers Eligibility Test will be eligible to appearin the said examination.

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4. The minimum qualification, age and residence for theapplication:-

(1) In Rule 8 of the Uttar Pradesh Basic Education (Teachers)Service (22[nd] Amendment) Rules, 2018 the described educational,Htraining passed, Government of India or by the State Government the organized Teachers Eligibility Examination (Primary Level)passed candidates will be eligible for filing the application in theAssistant Teachers Recruitment Examination, 2019.

(2) By the National Teachers Education Council, New Delhi theMinimum Qualification with regard to the Class-1 to Class-5 theissued Notification dated 23.08.2010, 29.07.2011, 12.11.2014 and28.11.2014 (has been described in Appendix-2 in preamble 1.2)and on 28.06.2018 fixed eligible candidates are entitled to fileapplication in the Assistant Teachers Recruitment Examination,2019.”

5. The Subject Matter and the Structure of the RecruitmentExamination of the Assistant Teachers:- Time of the examination 2.30 hours (from 11.00 a.m. to 13.30p.m.) Total Marks 150

Type of questions very small optional question, No. of questions150

The level of the Subject Matter:-

(1) Hindi Language, Sanskrit and English, Science, Maths,Environment and Social Studies (upto Class 12 level).

(2) Teaching Efficiency, Child Psychology, Information Technology,Life Efficiency Management and Attitude – (Upto D.L.Ed.syllabus).”

The tabular chart appended thereafter was identical to one inG.O. dated 09.01.2018 for ATRE-2018. The chart dealt with samesubjects with identical syllabus and marks against each subject.

15. An advertisement was thereafter issued on 29.12.2018 notifyingthat ATRE-2019 would be conducted on 06.01.2019.

16. On 03.01.2019, an order was passed by the High Court ofJudicature at Allahabad in Writ A No.27461 of 2018 to the followingeffect:- “The grievance raised by means of the present writ petition isthat without notifying the minimum qualifying marks therespondents are going to conduct written examination of AssistantTeacher Recruitment Examinatin-2019 on 06.01.2019.

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AAccording to the petitioners, earlier when the examinations wereconducted, minimum qualifying marks were duly declared by therespondents. In this regard the circular issued by the StateGovernment dated 01[st] December, 2018 (Annexure-1 to the writpetition) has been placed before this Court.

BStanding Counsel has put in appearance on behalf of respondentnos. 1 and 3. Sri A.K. Yadav has put in appearance on behalf ofrespondent no.2.

All the respondents are granted three days’ time to seek instructionin the matter.

CPut up this matter as fresh on 08.01.2019.”

17. ATRE-2019 was conducted on 06.01.2019 without there beingany specification of minimum qualifying marks.

18. However, on the next day i.e. on 07.01.2019, following orderDwas passed by the Special Secretary to the State Government:- “To

1. Director,

State Education Research and Training Council, Uttar Pradesh,Lucknow.

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2. Secretary, Exam Controller Authority, U.P. Prayagraj.

Basic Siksha Anubhag – 4 Lucknow Date 07 January 2019.

Subject:- Regarding prescribing the minimum qualifying marks inrespect of ‘Assistant Teacher Recruitment Exam 2019’ forFPrimary Schools run by Uttar Pradesh, Basic Siksha Council.

Sir,

Refer to the letter no. B.S.C. 16426-27/2018-19 dated 05 January,2019 of the Secretary, Basic Siksha Council regarding aforesaidsubject, whereby it has been requested to prescribe the minimumGqualifying marks for the ‘Assistant Teacher Recruitment Exam2019’.

2. In this regard I have been directed to state that after properdeliberation by the Government, in pursuant to the G.O. No.2056/68-4-2018 dated 01.12.2018 issued for conducting the ‘AssistantH

Teacher Recruitment Exam 2019’, for the purpose of resultminimum qualifying marks are being prescribed. This MinimumQualifying Marks will be only for ‘Assistant Teacher RecruitmentExam 2019’:-

(a) For the candidates of General Category, candidates getting97 marks of the total 150 meaning 65% and more will beconsidered passed for ‘Assistant Teacher Recruitment Exam2019’.

(b) For the candidates of all other Reserved Categories,candidates getting 90 marks of the total 150 meaning 60 percentand more will be considered passed for ‘Assistant TeacherRecruitment Exam 2019’.

(c) Candidates qualified on the basis of aforesaid ‘a’ and ‘b’will be eligible to apply against the 69000 vacancies advertisedand on qualifying merely on the basis of aforesaid minimummarks will not have any claim for recruitment because thisexam is only one of the eligible standard for recruitment.

(d) In case of more candidates qualifying than the prescribednumber of posts (69000), of the total qualified candidates,eligible candidates will be selected on the basis of final meritlist against the advertised posts in accordance with Appendix-I of twentieth Amendment of Uttar Pradesh Basic Siksha(teachers) Rules, 1981. Remaining candidates willautomatically be out from the selection process and they willnot have any claim on the basis of the ‘Assistant TeacherRecruitment Exam 2019’.

(e) No communication will be entertained in respect of theMinimum Qualifying Marks.”

19. On or about 16.01.2019, the first petition namely W.P.No.118(SS) of 2019 was filed by some Shiksha Mitras challenging theaforementioned Order dated 07.01.2019 and assailing the fixation ofminimum qualifying marks. About 99 Writ Petitions in all were filed byShiksha Mitras questioning the Order dated 07.01.2019.

20. On 24.01.2019, 23[rd] Amendment to 1981 Rules was published.By this Amendment, the essential qualifications in Rule 8(ii) weresubstituted as under:- A

BC

D

E

F

G

H

A“(ii)(a) Bachelors degree from a University established by law inIndia or a degree recognized by the Government equivalent theretotogether with any other training course recognised by theGovernment as equivalent thereto together with the trainingqualification consisting of a Basic Teacher’s Certificate (BTC),two year BTC (Urdu) Vishisht BTC. Two year Diploma inBEducation (Special Education) approved by Rehabilitation councilof India or four year Degree in Elementary Education (B.El.Ed.),two year Diploma in Elementary Education (by whatever nameknown) in accordance with the National Council of TeacherEducation (Recognition, Norms and Procedure), Regulations 2002,CGraduation with at least fifty percent marks and Bachelor ofEducation (B.Ed.), provided that the person so appointed as ateacher shall mandatorily undergo a six month Bridge Course inElementary Education recognised by the NCTE, within two yearsof such appointment as primary teacher or any trainingqualifications to be added by National Council of TeacherDEducation for the recruitment of teachers in primary education.

and

teacher eligibility test passed conducted by the Government or bythe Government of India.”E

Consequently, Graduates having 50 per cent or more marks andholding degree of Bachelor of Education (B.Ed.) became eligible forposts of Assistant Master and Assistant Mistresses in Junior Basic Schoolsin the manner laid down in the Amendment. The concerned provisionsin 1981 Rules dealing with eligibility of such candidate were givenFretrospective effect from 01.01.2018.

21. On 07.03.2019, 24[th] Amendment to 1981 Rules was publishedfurther amending Rule 8(ii) by adding sub-clause (aa) after sub-clause(a) to the following effect:-

“(aa) Graduation with at least fifty percent marks and BachelorGof Education (B.Ed.), provided that the person so appointed as ateacher shall mandatorily undergo a six month Bridge Course inElementary Education recognised by the NCTE, within two yearsof such appointment as primary teacher or any trainingqualifications to be added by National Council of TeacherEducation for the recruitment of teacher in primary education,H

and teacher eligibility test passed conducted by the Governmentor by the Government of India.”

This Amendment gave retrospective effect to sub clause (aa)of Rule 8(ii) from 28.06.2018.

22. A Single Judge of the High Court allowed W.P. No.1188(SS)of 2019 (Mohd. Rizwan and others vs. State of U.P.) and other 98 WritPetitions by common judgement and order dated 29.03.2019. Some ofthe relevant passages from the judgement are:- “1. The order under challenge is Government Order bearingNo.46/68-4-2019-2056/2019 dated 7.1.2019 issued by the SpecialSecretary, Basic Education Anubhag-4, Government of U.P.,Lucknow fixing the minimum qualifying marks for AssistantTeacher Recruitment Examination, 2019 as 65% for generalcategory and 60% for reserved category. Undisputedly, nominimum qualifying marks have been fixed vide Government Orderdated 01.12.2018 and notification/advertisement dated 05.12.2018,pursuant to which, the examination in question has been conductedon 6.1.2019. Undisputedly, the exercise for fixing minimumqualifying marks have been started pursuant to the letter bearingno. B.Sh.P.-16426-27/2018-19 dated 5.1.2019 preferred by theSecretary, Board of Basic Education to the Government makingrequest for fixation of minimum qualifying marks for theexamination in question, meaning thereby, the State Governmentmust be intending something other way to declare the result ofAssistant Teacher Examination, 2019.

…

…

…

157. Under the given circumstances it has been noted that theAssistant Teacher Recruitment Examination may not be treatedas shortlisting examination by prescribing such a high minimumqualifying marks as the same may affect the rights of the petitioners(Shiksha Mitras) who may likely to be deprived from gettingweightage of 25 marks which is statutory prescription in the 22[nd]Amendment. Further, since the Assistant Teacher RecruitmentExamination is not the minimum qualification prescribed by theAcademic authority and the same has been added in the Rules of1981 by way of 20[th] and 22[nd] Amendment, therefore, the qualifyingmarks should be minimum qualifying marks. Further, the said A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

qualifying marks should be seen like minimum. Further, the ShikshaMitras should be subjected for the same treatment as has beengiven to them in earlier examination of Assistant TeacherRecruitment Examination-2018 in terms of judgment of Hon’bleApex Court in re: Anand Kumar Yadav (supra). Since thisexamination would be the second and last examination for theShiksha Mitras in terms of the aforesaid judgement of Hon’bleApex Court, therefore, this examination i.e. Assistant TeacherRecruitment Examination-2019 should be conducted in a similarmanner as the Assistant Teacher Recruitment Examination-2018has been conducted.

… … …

… … …

159. To be more precise, since to provide weightage to thecandidates, who have qualified Assistant Teacher RecruitmentExamination, is a legal prescription under Rule 14(3)(a) of theRules and the same weightage has been provided in the earlierexamination to those candidates, who have qualified AssistantTeacher Recruitment Examination with the minimum 45% and40% qualifying marks, therefore, enhancing the qualifying marksup to 65% and 60%, permitting the candidates, who are havingB.Ed. qualification and quality point marks of those candidatesmay not be determined as per Appendix-I is nothing but appearsto be an attempt to oust those persons, who are eligible for theweightage.

… … …

163. It would be apt to consider here the relevant provision oflaw, which provides about qualifying marks in Teacher EligibilityTest and qualifying marks in Assistant Teacher RecruitmentExamination. As per Rule 2(t) of the Rules 1981 (as amended byTwenty Second Amendment, 2018), qualifying marks in TeacherEligibility Test will be such as may be prescribed from time totime by the NCTE, whereas as per Rule 2(x), qualifying marks ofAssistant Teacher Recruitment Examination means such minimummarks as may be determined from time to time by the Government.Conjoint reading of aforesaid provisions reveals that for TeacherEligibility Test, qualifying marks shall be prescribed by the NCTEand there is no rider as to what qualifying marks should be fixed, therefore, for Teacher Eligibility Test, the qualifying marks is 60%and 55% for both the category and there is no quarrel on it.

164. However, in Assistant Teacher Recruitment Examination, ithas categorically been indicated in Rule 2(x) that the qualifyingmarks means such minimum marks determined by the StateGovernment from time to time. On account of aforesaidprescription, the State Government has firstly determined theminimum qualifying marks as 45% and 40% for both the categoriesand thereafter, for the same selection of Assistant TeacherRecruitment Examination, it has been fixed as 33% and 30% asthe State Government could have determined any minimum marksfrom time to time, therefore, it is the domain of the StateGovernment to fix the qualifying marks for the Assistant TeacherRecruitment Examination, but such qualifying marks should be‘minimum’ and ‘minimum’ should be seen like ‘minimum’.‘Minimum’ may not be seen as ‘maximum’.

165. Further, since the person, who qualifies the Assistant TeacherRecruitment Examination with minimum qualifying marks shallnot be appointed on the post of Assistant Teacher, rather, he/sheshall only be eligible to reach in the next stage, thereby he/sheshall be awarded weightage and the his/her total quality pointsshall be calculated. On the basis of total quality points, the candidateshall come in the zone of eligible candidate, who shall be appointedaccording to his/her merit. Meaning thereby, qualifying theexamination of Assistant Teacher Recruitment Examination doesnot make the person eligible to be selected on the post of AssistantTeacher, but it only makes him/her eligible to get weightage,therefore, the submission of learned counsel for the State-respondents that so as to short list the eligible candidates, merit ofAssistant Teacher Recruitment Examination has been enhancedup to 65% is misfit argument.

… … …

172. Admittedly, the examinees were not aware about the decisionof the State Government regarding minimum qualifying marksbefore the examination in question so besides the fact that rulesof game may not be fixed after start of the game, one more aspectis relevant here that in view of the dictum of Hon’ble Apex Courtin re: P.V. Indirsan (2) (supra) and Rahul Dutta (supra) the AB

C

D

E

F

G

H

A

minimum eligibility marks should be declared before theexamination and if the marks have not been fixed prior to theexamination in question, may not be fixed later on, therefore theimpugned order dated 07.01.2019 would be said to have beenissued in derogation of aforesaid laws of the Hon’ble Apex Court.

B173. Therefore, in view of the aforesaid findings I am of theconsidered view that by not declaring the minimum qualifyingmarks of Assistant Teacher Recruitment Examination beforeholding examination is causing prejudice to the petitioners, includingall aspirants, as they have been denied an opportunity to adequatelyprepare for the result. Further, since the State Government hadCto conduct two examinations to appoint Assistant Teacher pursuantto the direction of Hon’ble Apex Court in re: Anand Kumar Yadav(supra), therefore, the manner of these two examinations shouldbe similar inasmuch as for Shiksha Mitras, Assistant TeacherRecruitment Examination-2019 was the second and lastDexamination to get benefit of weightage as per judgement of AnandKumar Yadav (supra).”

22.1 While considering the issue of eligibility of B.Ed. candidates,it was observed:- “154. It is true that there is no challenge in any of the writEpetitions that the inclusion of B.Ed. candidates is unwarrantedand uncalled for and they may not be selected getting quality pointmarks as per Appendix-I, but circumstances under which theaforesaid anomaly has been committed by the State Governmenthas nowhere been explained in the counter affidavit or by way ofFargument.

E

… … …

168. I also find favour in the submission of Sri U.N. Misra that itcannot be comprehended as to what is the object of enhancingminimum qualifying marks from 45% to 65% for Assistant TeacherGRecruitment Examination when it is only a qualifying examination.Mr. U.N. Misra has rightly submitted that if the averment of thecounter affidavit is believed to be correct, the said enhancementhas been made to select the best available candidates, then whoare the best candidates, as per State-respondent. Since theinclusion of B.E.d. candidates have been made in the present H

examination, therefore, it appears that the enhancement has beenmade to oust the Shiksha Mitras from the selection in questionand to select the B.Ed. candidates. If it is the intention of theState-respondent to enhance the minimum qualifying marks, thenit would be violative to the rules itself which categorically providesthat the Shiksha Mitras would be getting 25 marks as weightage.

… … …

178. Besides, the counsel for the State-respondent could notconvince as to how the quality points marks of B.Ed. candidateswould be determined / calculated as per Appendix – I when theseB.Ed. candidates would not be getting any marks for item no.4[marks of B.T.C] and item no.6 [weightage of 25 marks]. Ifthese B.Ed. candidates are given quality point marks as perAppendix-II, they can easily get marks for all the items but qualitypoints marks for this examination would be calculated as perAppendix-I.

179. This Court is unable to comprehend the rationale behind itbut since this particular point has not been directly assailed,therefore, no order on this point needs to be issued.

180. However, it clearly reveals that neither the Board of BasicEducation nor the State Government has carried out properexercise before conducting selection in question permitting B.Ed.candidates in the present selection in question which increasedthe number of aspirants drastically without deciding the methodfor calculating their quality points marks, without determining thevacancies for them as B.Ed. candidates are different from B.T.C.candidates, enhancing the minimum qualifying marks for theAssistant Teacher Recruitment Examinatoin-2019 by way of G.O.dated 07.01.2019 and conducting Assistant Teacher RecruitmentExamination-2019 differently from Assistant Teacher RecruitmentExamination-2018 whereas the State Government was to conducttwo examinations in a same manner as per dictum of Hon’bleApex Court. This unexplained anomaly may convince this Courtto quash the entire selection process but keeping in view the factthat large number of candidates have already appeared in selectionprocess, therefore, this Court is only examining/testing the fitnessof Government Order dated 07.01.2019.”

A

B

C

D

EF

G

H

A22.2 It was concluded:-

“181. Considering the entire facts and circumstances of the issueand case law so cited by the learned counsel for the respectiveparties I am of the considered view that the Government Orderdated 07.01.2019 is not sustainable in the eyes of law beingarbitrary and violative of Article 14 of the Constitution of India asit makes an unreasonable classification by giving differenttreatment to two groups of identically situated persons appearingin two consecutive examinations and there is no valid reason andjustification for drastically increasing minimum qualifying markswithout having any nexus with the object sought to be achieved.It further appears that the Government Order dated 07.01.2019 isnullifying the beneficial direction of the Hon’ble Apex Court in re:Anand Kumar Yadav (supra), pursuant to which 25 marks ofweightage has been prescribed under Rule 14(3)(a) of the Rules1981 (22[nd] Amendment, 2018) purposely for practical experiencewhich is an integral part of merit.”

B

C

D

23. On 14.06.2019, 25[th] Amendment to 1981 Rules was published.By this Amendment, Appendix I which was referable to Rule 14(3)(a)was amended as under:- “APPENDIX-I

Qualitypoints and weightafe for selection of candidates E

F

G

H

Note:

1. If two or more candidates have equal quality points, thename of the candidate who is senior in age shall be placedhigher in the list.

2. If two or more candidates have equal quality points and age,the name of the candidates shall be placed in the list in Englishalphabetical order.”

23.1 Appendix II, referable to Rule 14(3)(b) was omitted by thesame Amendment.

23.2 Resultantly, Appendix I as it now stands after saidAmendment, is the only and common Appendix for both the sourcesreferred to in Rule 14.

24. Special Appeals arising from the judgment and order dated29.03.2019 passed by the Single Judge, were allowed by the DivisionBench of the High Court by its common judgment and order dated06.05.2020. It must be stated that though 99 Writ Petitions were allowedby the Single Judge, appeals were preferred only in 24 matters. Therefore,many Shiksha Mitras who had succeeded before the Single Judge, werenot parties before the Division Bench.

25. Two principal issues were considered by the Division Benchof the High Court; one relating to the fixation of 65-60% as minimumqualifying marks for ATRE-2019 and particularly after the holding of theexamination; and the other concerning the eligibility of B.Ed. candidatesfor the posts of Assistant Teachers under 1981 Rules.

25.1 With regard to the first issue, the conclusions of the DivisionBench were:- A

B

C

D

E

F

G

H

A

“71. In Anand Kumar Yadav (supra), the Hon’ble SupremeCourt merely provided that the Shiksha Mitras shall be givenan opportunity to participate in the selection process at hand intwo consecutive selections, irrespective of age while being givenbenefit of age relaxation as determined by the StateGovernment, in an open and transparent selection process alongwith other duly qualified candidates and it nowhere providedthat the Shiksha Mitras shall constitute a homogeneous classapart from other duly qualified candidates participating in theselection process. The Hon’ble Supreme Court while keepingin mind the interest of the school children held that theregularization of unqualified Shiksha Mitras on the post ofAssistant Teacher was illegal as the school children whoseinterests, though were not duly represented, had a right to obtainquality education from duly qualified teachers under theprovisions of Right to Education Act and gave due importanceto the merit of the candidates who are ultimately going to beappointed on the post of Assistant Teacher as the ultimate loserswould be the small primary school children if the merit iscompromised in the selection process.

B

C

D

72. As a common parlance, qualifying marks are prescribedafter the examination is conducted as the Recruiting Authorityis in a position to assess how the candidates have performedand determine the benchmark keeping in mind the number ofvacancies. The State Government rightly in the advertisementdated 1.12.2018 did not declare the cutoff marks for qualifyingthe ATRE – 2019.

E

73. Thus, the arguments of the writ petitioners and findingrecorded by the learned Writ Court that the increase in cut-offmarks from 45% and 40% to 65% and 60% by the GovernmentOrder dated 07.01.2019 is nullifying the beneficial direction ofthe Hon’ble Supreme Court in Anand Kumar Yadav (supra)has no legs to stand, and is pre-mature as the benefit is availableonly at the time of recruitment, once they hold the prescribedminimum qualifications and their names are published in themerit list prepared under Rule 14(2) of the 1981 Rules.”

G

25.2 The issue regarding the eligibility of B.Ed. candidates wasdealt with as under:-H

“81. By virtue of the amendment in the NCTE notification dated23.8.2010 on 28.6.2018, the appellants of Special AppealNo.165(D) of 2019 participated in the TET examination on18.11.2018 and qualified the same and therefore becoming eligiblefor appearing in the ATRE 2019, the writ petitioners knowing wellabout the amendment in the notification dated 23.8.2010 by NCTEnotification dated 28.6.2018, they never challenged the validity ofthe said notification and thus, the notification issued by the NCTEbeing under a Central Enactment which is referable to Entry 66of list I of the Seventh Schedule is binding upon the StateGovernment and even a legislative exercise done by the State inthe matter of laying down of standards in education would haveto yield to the notifications of the NCTE inasmuch as the exerciseof power by the State Government is referable to Entry 25 of ListIII of the Seventh Schedule, which besides being in the concurrentlist is, subject to Entry 63, 64, 65 and 66 of List – I. The StateGovernment rightly followed the mandate issued by the NCTEand permitted the B.Ed. candidates to appear in the second ATRE- 2019.

… … …

… … …

87. The educational qualifications fixed by the NCTE forappointment as Assistant Teachers are binding on the recruitmentmade by the State Governments. The participation of B.Ed.candidates was never challenged before the learned Writ Courtand the observations made in the impugned order dated 29.3.2020pertaining to participation of B.Ed. candidates in the selectionprocess are merely the obiter dicta having no bearing on the issueraised before the learned Writ Court regarding the legality andvalidity of the Government Order dated 7.1.2019 whereby theminimum qualifying marks had been fixed for ATRE – 2019examination.

… … …

89. The Apex Court in the case of State of U.P. vs. Shiv KumarPathak (supra), has held that the eligibility conditions forappointment of Assistant Teachers as laid down by the NCTEare binding on the State Government as the NCTE is the competentauthority for fixing such educational qualifications and therefore,the B.Ed. candidates had been included by the State Government AB

C

D

E

F

GH

A

Ain clause 4 (2) of statutory guidelines dated 1.12.2018. In theaforesaid clause, it is very categorically stated that the notificationdated 28.6.2018 issued by the NCTE whereby B.Ed. candidateswere made eligible for appointment as Teacher in Primary Schoolsfor teaching classes I to V provided the person so appointed as anAssistant Teacher shall mandatorily undergo six months’ BridgeBCourse in Elementary Education recognised by the NCTE withintwo years after such appointment as Assistant Teachers.

… … …

92. Thus, we are of the view that once the B.Ed. candidatesCwere made eligible to be considered for appointment to the postof Assistant Teacher, subject to them acquiring the minimumqualification, the State Government was bound to permit them toparticipate in the ARTE – 2019 passing which is the minimumqualification to be considered for appointment to the post ofAssistant Teacher. Accordingly, the State Government carriedDout the necessary amendments to the 1981 Rules to align themwith the NCTE notification, prior to commencement of therecruitment process.”

25.3 The operative directions issued by the Division Bench of theHigh Court were :-E

“105. For the reasons aforementioned, it cannot be said that theGovernment Order dated 7.1.2019 is violative of Article 14 of theConstitution of India nor it makes an unreasonable classificationor is nullifying the judgement of the Apex Court in the case ofAnand Kumar Yadav (supra). Accordingly, we set aside theFimpugned order 29.3.2019 passed in Writ Petition No.1188 (SS)of 2019 and other connected matters filed by Shiksha Mitras anddismiss the said writ petitions by allowing all the Special Appealsand direct the State of U.P. to declare the result of examinationwhich was held on 6.1.2019 in terms of the Government OrderGdated 7.1.2019 at the earliest as directed by the Apex Court in thecase of Bhola Prasad Shukla v. Union of India and others (supra).All applications for intervention/impleadment/civil miscellaneousapplications are also disposed of in same terms.”

26. Accordingly, the result was declared by the Examining Bodyon 12.05.2020 and 1,46,060 candidates were declared successful.

H

Thereafter, U.P. Basic Education Board issued an advertisement on16.05.2020 inviting applications from those candidates who were declaredsuccessful in ATRE-2019.

27. Being aggrieved by the decision of the Division Bench of theHigh Court, the present appeals by special leave have been preferred byvarious appellants. A Writ Petition has also been preferred. Broadly,the matters can be classified into three categories. Those filed by i)Shiksha Mitras, ii) Persons having B.Ed./BTC qualifications; and iii) Ex-servicemen or persons with disability etc. These matters squarely dealwith the aforestated two issues considered by the Division Bench of theHigh Court in the judgement under appeal.

However, SLP (Diary) No.13142 of 2020 filed by persons whowere not parties at any stage of the proceedings in the High Court,seeks permission to file special leave petition and submits that they begiven the benefit of erroneous questions in the examination. Since theissue raised in said petition is unconnected with the rest of the matters,permission to file special leave petition is not granted. The concernedpetitioners are at liberty to agitate the issue, if required, in properlyinstituted proceedings.

Rest of the matters can be tabulated in following threecategories: - A] Filed by Shiksha Mitras A

B

C

D

E

F

G

H

518SUPREME COURT REPORTS[2020] 12 S.C.R.

A

B

B] Filed by B.Ed./BTC Candidates

C

D

C] Filed by Ex-Servicement or Persons with Disability E

F

28. While issuing notice in the matters, by Order dated 21.05.2020,the State Government was called upon by this Court to furnish detailsregarding:- “(i) How many Shiksha Mitras are presently working in the StateGand how many Shiksha Mitras appeared in the instant selectionprocess;

(ii) How many Shiksha Mitras secured more than 45% marks inGeneral Category or more than 40% marks in reserved category;”

H

29. In the counter affidavit-filed on behalf of the State, followingdetails were provided in paragraphs 6, 18 and 32:- “6. The brief facts of the case are that in the State of UttarPradesh, out of 1,78,000 ‘Siksha Mitras’, who were given fortuitousappointments as Primary Teachers on contractual basis, a total ofapproximately 1,37,500 ‘Siksha Mitras’ were absorbed as AssistantTeachers in Junior Basic Schools. Their absorption into the regularservice of State as Assistant Teachers by amendment made bythe State Government by its notification dated 30.05.2014introducing the provision of Rule 16-A in the U.P. Right of Childrento Free and Compulsory Education Rules, 2011 by the U.P. Rightof Children to Free and Compulsory Education (First Amendment)Rules, 2014 and consequential executive orders of the StateGovernment were challenged before Hon’ble High Court ofJudicature at Allahabad in Writ-A No.34833 of 2014, Anand KumarYadav and others v. Union of India.

… … …

18. It is submitted that the details of total number of candidatesand Shiksha Mitras who participated and qualified in ATRE-2019are as under; A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

32. In compliance of Order dated 21.05.2020 the details are givenherein below, 29.1. It was also submitted in the counter affidavit:- “11. It is submitted that guidelines for ATRE-2018 was issued forrecruitment of 68,500 Assistant Teachers. It is pertinent to mentionherein that the ATRE is merely a qualifying examination and whichis conducted for a particular year of vacancy. Thus ATRE-2018was conducted for filling up 68500 vacancies of AssistantTeachers. Clause 1 (Kha) of guidelines dated 09.01.2018 forATRE-2018 clearly stipulates that the examination is valid for thisvery recruitment only. Further Clause 7(3) states that passing ofATRE will not give any right of employment to those candidatesbecause this is only one of the qualifying criteria of selection.

12. The total number of candidates who participated in ATRE-2018 are 1,07,873 out of which 41556 qualified. Total number ofShiksha Mitras who participated in ATRE-2018 are 34,311 out ofwhich finally 8588 qualified.

13. Thus it is apparent that ATRE-2018 was conducted as qualifyingexamination for a particular year of appointment where qualifyingmarks were prescribed as 45% and 40% for General and ReservedCategory candidates. Therefore relief sought by Petitioners thatthe cut off marks of ATRE-2018 be fixed for ATRE-2019 is totallymisconceived.

…

…

…

26. Thus it is submitted that fixing of qualifying marks does notamount to bringing a change in the process of examination orchanging any criteria. In any view of the matter after theexamination are over, the candidate qualifying in merit from topalone are entitled for recruitment and while doing so, there is alikely hood that a percentage fixed by the State Government mayfurther rise in as much as against the 69000 vacancies, 4.10 lacscandidates have appeared. Thus, prescribing minimum qualifyingmarks is neither illegal nor arbitrary. The Hon’ble High Court inthe impugned Judgement has discussed in detail and held that thefixing cut off marks is neither arbitrary nor discriminatory. TheLd. Division bench in para 72 and 73 of the impugned judgementhas held that State government has rightly in the advertisementdated 01.12.2019 did not declare the cut off marks for applying inATRE-2019 as the recruiting authority is in a position to assess A

B

C

D

E

F

G

H

A

how the candidates have performed and determine the benchmarkkeeping in mind the number of vacancies. The Hon’ble HighCourt further held that the beneficial direction of this Hon’bleCourt in Anand Kumar Yadav case is available to Petitioners oncethey hold the prescribed minimum qualifying marks.

… … …

B

28. The contention of Petitioners that Shiksha Mitras who appearedin ATRE-2018 and ATRE-2019 form a homogeneous class is totallymisconceived. The Hon’ble Division Bench has rightly rejectedthe contention of the Petitioners that they do not constitute aChomogeneous class. It is submitted that this Hon’ble Court in thecase of Anand Kumar Yadav case never held that Shiksha Mitrasconstitute homogeneous class. It is submitted that both theexaminations were conducted under different guidelines fordifferent vacancies therefore it is wholly misconceived argumentsthat there should be same cut off marks for both ATRE.”D

30. It must be stated here that except for the posts held by ShikshaMitras presently working and who appeared in ATRE-2019, the StateGovernment was permitted by interim orders passed by this Court, to fillup the remaining posts of Assistant Teachers in Junior Basic Schools.

E31. The contest in the present case is principally between ShikshaMitras on one side, who are aggrieved by fixation of minimum qualifyingmarks at 65-60% levels and permitting B.Ed. candidates to participatein the selection process; while the opposition is from the State Governmentand B.Ed./BTC candidates who are Non Shiksha Mitras.

32. The submissions on behalf of Shiksha Mitras were advancedFby Mr. P.S. Patwalia, Mr. C.A. Sundaram, Mr. Rakesh Dwivedi, Dr.Rajiv Dhawan, Mr. Nidhesh Gupta, Mr. V. Shekhar, Mr. S. Guru KrishnaKumar, Ms. Meenakshi Arora, Mr. Dinesh Diwedi, Mr. K.T.S. Tulsi,Mr. Jayant Bhushan, learned Senior Advocates and Mr. Gaurav Agrawaland Ms. Tanya Agarwal, learned Advocates. Their submissions were :- G

a)1,37,500 Shiksha Mitras who were initiallyabsorbed in regular service and whoseabsorption was set aside as a result of theorders passed by the Full Bench of the HighCourt of Judicature at Allahabad and by this H

Court in Anand Kumar Yadav[2], constitutedAa homogeneous class.b)As against the minimum qualifying percentagewhich was at the level of 45-40% for ATRE-2018, the fixation of minimum qualifyingpercentage at the level of 65-60% for ATRE-B2019 created unnatural and arbitrary distinctionbetween two sets of Shiksha Mitras.c)Such fixation at 65-60% was done after theexamination and would amount to changing therules of the game post examination. RelianceCwas placed on the judgments of this Court inK. Manjusree vs. State of Andhra Pradeshand another[12] and other cases.d)Being in service for last more than 15 yearswhere they were required to obtain essentialDqualifications and prepare for ATRE-2019 whiledischarging their service obligations, ShikshaMitras could not be put at the same level asfresh graduates having B.Ed./BTCqualifications.Ee)The fixation of minimum qualifying percentagein ATRE-2019 at 65-60% incorporated anexclusionary element as against Shiksha Mitraswho, despite being entitled to weightage fortheir experience as Shiksha Mitras in terms ofspecific amendment in 1981 Rules, were nowFbeing denied said benefit.f)In terms of 1981 Rules, only 60% of the scoreobtained in ATRE would be considered alongwith other parameters in arriving at the qualitypoints. However, ATRE-2019 turned into aGprincipal selection criteria.g)With 5% reservation for ex-servicemen, seatsallocable to them come to 3450 against whichH

A

about 650-700 candidates applied. At 65-60%cut off level, very few of them would stand achance. Similar would be the situation inrespect of other reserved categories such asphysically handicapped and dependants offreedom fighters. All these categories wouldhave greater chances at 45-40% cut off.

B

With regard to the issue of eligibility of B.Ed. candidates, some ofthe learned counsel submitted:-

i)In terms of 1981 Rules, as they stood whenATRE-2019 was conducted, the personsholding B.Ed. degree could not be appointedas Assistant Teachers but would first beappointed as Trainee Teachers; and they couldbe considered for the posts of AssistantTeachers only after their successful completionof six months’ training as Trainee Teachers.

C

D

ii)As per Rule 14(b), it was upto the Governmentto consider and decide the number ofcandidates to be appointed as TraineeTeachers, which exercise was never done.

E

iii)23[rd], 24[th] and 25[th] Amendments to 1981 Ruleswere effected after ATRE-2019 was held. Theretrospective effect granted to theseamendments was beyond the rule makingpower of the State Government and thus couldnot save the obvious illegality.

F

33. Ms. Aishwarya Bhati, learned Additional Solicitor Generalappeared for the State while Mr. H.N. Salve, Mr. R. Venkataramani,Mr. Pallav Shishodiya, Mr. K.V. Vishwanathan and Ms. V. Mohana,learned Senior Advocates appeared for B.Ed./BTC candidates. TheirGsubmissions were:- A)The State was within its rights to fix cut offmarks at 65-60% level. As per Rule 2(1)(x)of 1981 Rules, qualifying marks in respect ofATRE would be “such minimum marks as H

[UDAY UMESH LALIT, J.]

may be determined from time to time by theGovernment”.

A

B)The order dated 07.01.2019 itself disclosed thatthe proposal for fixing the cut off was initiatedon 05.01.2019 i.e. before ATRE-2019 washeld on 06.01.2019. The proposal stated thatBapproximately 11 lakh candidates hadappeared in TET-2018 out of which 3,86,000were declared successful and “there being apossibility of competition”, it was proposedthat the cut off marks be fixed at 5% higherCthan TET Examination”.

C)The reasons for fixing the cut off marks at 65-60% level were:-

(i) to narrow down the scope ofselection because of theDincreased number ofapplications; and

(ii) to achieve improvement inacademic performancewhereby meritoriousEcandidates with higher markswould alone be permitted toenter the zone ofconsideration.

(iii) The pattern of ATRE-2019Fwas completely different. Asagainst short descriptiveanswers required in ATRE-2018, the emphasis in ATRE-2019 was on multiple choice-objective questions.G

D)There was no change in the rules of game asthe cut off marks were prescribed for the firsttime by order dated 07.01.2019. Reliancewas placed on the decision of this Court in H

526SUPREME COURT REPORTS

AYogesh Yadav vs. Union of India andothers[13] and Jharkhand Public ServiceCommission vs. Manoj Kumar Gupta[14].

E)The ATRE was valid only for recruitment ofthat particular year and the candidates had toBabide by the conditions of recruitment pertainingto the concerned ATRE examination. ShikshaMitras who participated in ATRE-2018 and inATRE-2019 did not form a homogeneous class.

F)Since 60% marks from ATRE would be takeninto account while preparing quality points,there was no occasion for any candidate notdoing his best at ATRE-2019. Thus, non-disclosure of cut off marks in theadvertisement/Guidelines was inconsequential.

C

G)The eligibility and entitlement of B.Ed.candidates to take part in ATRE-2019 wasnever in challenge before the Single Judge.

D

H)In the Guidelines dated 01.12.2018, under theheading ‘minimum qualifications’, it wasspecifically mentioned that the eligibility of thecandidates would be in terms of minimumqualifications fixed by NCTE through its variousnotifications including one dated 28.06.2018.

E

(I)1981 Rules were amended prior to thecommencement of recruitment process whichnow provided for recruitment of B.Ed.candidates directly to the post of AssistantTeacher subject to their undergoing post-appointment training which was in accordancewith law.

F

G34. It was also submitted by Ms. Bhati, learned Additional SolicitorGeneral that the State would provide one more opportunity to ShikshaMitras to compete in the next selection to dispel any impression of 13 (2013) 14 SCC 623H14 (2020) 1 SCALE 504

prejudice but the present selection be allowed to go ahead with cut off at65-60% level.

A

34.1 In the written submissions filed on behalf of the State, anexample was placed as under:- “3.A tabular chart showing that a candidate whoBhas throughout obtained 70% marks will beleft out by a Shiksha Mitra who has obtained50% marks throughout his career in case cutoff marks are reduced to 45% & 40% from65% & 60%.

C

D

E

F

G

Thus, it is clear that not only quality of teachers will becompromised but a meritorious candidate will be ignored incase cut off marks are reduced to 45% & 40% from 65% &60%.”

A34.2 In the written submissions filed on behalf of B.Ed./BTCcandidates, following charts were also presented:- “On important statistics of ATRE 2018 and 2019

B

C

D

E

F

G

H

“The following chart illustrates how a Shiksha Mitra having 35%marks through out his academic career (except 50% in BTC,which is passing marks) would be selected if the qualifying marksin ATRE-2019 is lowered to 45%, whereas a BTC candidateshaving secured 67% marks through out his academic career wouldbe left out:

35. As stated in the counter affidavit of the State, out of 1,78,000Shiksha Mitras who were given fortuitous appointments as PrimaryTeachers on contractual basis, 1,37,500 Shiksha Mitras were absorbedas Assistant Teachers in Junior Basic Schools. Their absorption wassubject matter of challenge and the orders passed by the State conferringthe advantage of absorption were set aside on the ground that no suchbenefit could be conferred upon persons who did not have the requisitequalifications to be appointed as Assistant Teachers in Junior BasicSchools. The number of 1,37,500 has some significance as ATRE-2018and ATRE-2019 were conducted to fill up 68,500 and 69,000 posts ofAssistant Teachers respectively; the aggregate being 1,37,500.

After suitable amendments to 1981 Rules, Shiksha Mitras becameeligible for appointment to the posts of “Assistant Masters and AssistantMistresses of Junior Basic Schools” provided they acquired the academicqualifications prescribed in 1981 Rules.

As per para 34 of the counter affidavit, 1,52, 330 Shiksha Mitrasare presently working in the State and 45, 357 Shiksha Mitras appearedin ATRE-2019. Thus, more than 1,02,000 Shiksha Mitras did not appearin ATRE-2019 either because they did not have the requisite qualificationsor they were not interested in competing for the posts of AssistantTeachers.

36. According to the record, out of 1,46,060 candidates whoqualified in ATRE-2019, 8018 are Shiksha Mitras while B.Ed. and BTCcandidates are 97,368 and 38,610 respectively and the candidates havingother qualifications are 2064. As against the total number of qualifiedcandidates, 8018 Shiksha Mitras thus constitute 17.67%. It must benoted here that B.Ed. candidates were not allowed to participate in theearlier selection process and could not appear at ATRE-2018. Theirentitlement, as a matter of fact, arose for the first time after ATRE- A

B

C

D

E

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A2018. Even when B.Ed. candidates were out of contest, the percentageof qualified Shiksha Mitras in ATRE-2018 (25.02%) was not substantiallyhigh as is evident from the chart extracted in paragraph 34.2 hereinabove.

37. We must now consider the issue of eligibility of B.Ed.candidates in the present selection. In TET examination held in March,B2018, out of 3,86,000 qualified candidates, Shiksha Mitras were 40,000only; meaning thereby that a large number of candidates other thanShiksha Mitras had been declared qualified. Paragraph 4(2) of G.O.dated 01.12.2018, referred to certain directives of NCTE which in turn,had dealt with eligibility of B.Ed. candidates. It was, therefore, quiteapparent that in the ensuing selection process considerable number ofCB.Ed. candidates would participate. In this background, the absence ofany challenge to the entitlement of B.Ed. candidates to participate in theprocess and to appear at ATRE-2019 is crucial.

But we do not propose to rely only on this aspect and proceed toconsider whether the candidates holding B.Ed. degrees are entitled inDlaw to be considered eligible in the present selection process.

38. The National Council for Teachers Education Act, 1993 (‘theNCTE Act’, for short) was enacted, inter alia, to provide for theregulation and proper maintenance of norms and standards in the teachereducation system. Chapter II of the NCTE Act deals with establishmentEof the Council while Chapter III deals with ‘Functions of the Council’.Some of the functions of the Council, as laid down in Section 12, are asunder:-

“12. Functions of the Council.- It shall be the duty of the Councilto take all such steps as it may think fit for ensuring planned andFcoordinated development of teacher education and for thedetermination and maintenance of standards for teacher educationand for the purposes of performing its functions under this Act,the Council may–

(a) -(b) …

…

…

G(c) co-ordinate and monitor teacher education and its developmentin the country; (d) lay down guidelines in respect of minimum qualifications for aperson to be employed as a teacher in schools or in recognisedinstitutions;H

(e) lay down norms for any specified category of courses ortrainings in teacher education, including the minimum eligibilitycriteria for admission thereof, and the method of selection ofcandidates, duration of the course, course contents and mode ofcurriculum; (f)-(m) …

…

…

(n) perform such other functions as may be entrusted to it by theCentral Government.”

38.1 The NCTE Act, as originally enacted, was primarily concernedwith regulating standards in “teacher education system”. The provisionsof the NCTE Act came up for consideration in State of Maharashtravs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya andothers[15]. This Court held:- “62. From the above decisions, in our judgment, the law appearsto be very well settled. So far as coordination and determinationof standards in institutions for higher education or research,scientific and technical institutions are concerned, the subject isexclusively covered by Entry 66 of List I of Schedule VII to theConstitution and the State has no power to encroach upon thelegislative power of Parliament. It is only when the subject iscovered by Entry 25 of List III of Schedule VII to the Constitutionthat there is a concurrent power of Parliament as well as theState Legislatures and appropriate Act can be made by the StateLegislature subject to limitations and restrictions under theConstitution.

63. In the instant case, admittedly, Parliament has enacted the1993 Act, which is in force. The preamble of the Act provides forestablishment of National Council for Teacher Education (NCTE)with a view to achieving planned and coordinated development ofthe teacher-education system throughout the country, the regulationand proper maintenance of norms and standards in the teacher-education system and for matters connected therewith. With aview to achieving that object, the National Council for TeacherEducation has been established at four places by the CentralGovernment. It is thus clear that the field is fully and completely A

B

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D

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F

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Aoccupied by an Act of Parliament and covered by Entry 66 of ListI of Schedule VII. It is, therefore, not open to the State Legislatureto encroach upon the said field. Parliament alone could haveexercised the power by making appropriate law. In thecircumstances, it is not open to the State Government to refusepermission relying on a State Act or on “policy consideration”.

B

38.2 In Basic Education Board, U.P. vs. Upendra Rai andothers[16], the issue was whether the provisions of the NCTE Act relatedto the ordinary educational institutions and whether they would overridethe provisions of U.P. Basic Education Act and Rules made thereunder.This Court held:-C

“22. It may be mentioned that the word “institution” is defined inSection 2(e) of the NCTE Act to mean an institution which offerscourses or training in teachers’ education. Thus, the NCTE Actdoes not deal with the ordinary educational institutions like primaryschools, high schools, intermediate college or university. The wordD“institution” as defined in Section 2(2) [sic 2(e)] only meansteachers’ training institutes and not the ordinary educationalinstitutions. Hence, it is only the teachers’ training institutions whichhave to seek grant of recognition or continuation of recognitionfrom the Regional Committee. The ordinary educational institutionsEdo not have to seek any such recognition or continuation underthe NCTE Act. In fact, the NCTE Act does not relate to theordinary educational institutions at all. We, therefore, fail tounderstand how it can be said that the NCTE Act overrides theU.P. Basic Education Act and the Rules made thereunder. In fact,the two Acts operate in altogether two different fields. The NCTEFAct deals with the teachers’ training institutions while the U.P.Basic Education Act deals with the ordinary primary schools inU.P. and not any teachers’ training institute. The argument oflearned counsel for the respondent is thus wholly misconceived.”

38.3 The NCTE Act was thereafter amended in 2011 by Act[*] 18Gof 2011 and after such amendment the long title to the Act now reads‘an Act to provide for the establishment of a National Council for TeacherEducation with a view to achieving planned and co-ordinated development 16 (2008) 3 SCC 432H* National Council for Teachers Education (Amendment) Act (18 of 2011)

of the teacher education system throughout the country, the regulationand proper maintenance of norms and standards in the teacher educationsystem including qualifications of school teachers and for matterconnected therewith’.

By the same amendment Section 12A was inserted in theNCTE Act, the relevant part of said Section being:- “12A. Power of Council to determine minimum standardsof education of school teachers.- For the purpose of maintainingstandards of education in schools, the Council may, by regulations,determine the qualifications of persons for being recruited asteachers in any pre-primary, primary, upper primary, secondary,senior secondary or intermediate school or college, by whatevername called, established, run aided or recognised by the CentralGovernment or a State Government or a local or other authority:

……

…”

Section 32 of the NCTE Act empowers the NCTE to makeregulations by issuing notification in the official gazette generally to carryout the provisions of the NCTE Act which regulations may now providefor ‘the qualifications of teachers under 12A[#].

38.4 It is thus clear that for maintaining standards of education inschools, the NCTE is now specifically empowered to determine thequalifications of persons for being recruited as teachers in schools orcolleges. In addition to regulating standards in “teacher educationsystem”, the NCTE Act now deals with regulation and propermaintenance of norms and standards in respect of qualifications of personsto be recruited as teachers.

39. Having noted the aforestated change in the scope and ambitof the NCTE Act, another development must also be noticed. The Rightof Children to Free and Compulsory Education Act, 2009 (‘the RTEAct’, for short) was enacted by the Parliament, inter alia, to provide tothe children in the age group of six to fourteen years “full time elementaryeducation of satisfactory and equitable quality in a formal school whichsatisfies certain essential norms and standards”. Section 23 of the RTEAct deals with qualifications for appointment of teachers and states:- Section 32(2)(dd) of the NCTE Act A

B

C

D

E

F

G

Section 32(2)(dd) of the NCTE Act

A

B

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A“23. Qualifications for appointment and terms and conditionsof service of teachers.-

(1) Any person possessing such minimum qualifications, as laiddown by an academic authority, authorised by the CentralGovernment, by notification, shall be eligible for appointmentBas a teacher.

(2) ……

(3) ……”

40. By Notification dated 31.03.2010, the Central Government, inCexercise of powers conferred under Section 23 of the RTE Act authorisedthe NCTE as an “Academic Authority” to lay down the minimumqualifications for a person to be eligible for appointment as a teacher.

The Notification dated 28.06.2018 issued by the NCTE was inexercise of power so conferred upon it by virtue of the Notificationdated 31.03.2010. In terms of the Notification dated 28.06.2018, theDqualification of ‘Bachelor of Education’ from any NCTE recognisedinstitution shall now be a valid qualification for appointment as a teacherin classes I to V provided the person so appointed as a teachermandatorily undergoes six months’ Bridge Course in elementary educationwithin two years of such appointment.

E

41. Going by the Parliamentary intent in empowering NCTE underthe provisions of the NCTE Act and specific authorization in favour ofNCTE under said Notification dated 31.03.2010, the authority of NCTEis beyond any doubt. Though there is no specific regulation ascontemplated under Section 32 read with Sections 12 and 12A of theFNCTE Act, for the present purposes by virtue of the specific authorizationunder the Notification dated 31.03.2010, NCTE was entitled to lay downthat those holding the qualification of ‘Bachelor of Education’ as detailedin said Notification are entitled to be appointed as teachers for classes Ito V. Such prescription on part of the NCTE would be binding. It is forthis reason that G.O. dated 01.12.2018 notifying ATRE-2019 clearly statedGthat the candidates possessing minimum qualifications specified inNotifications issued by the NCTE including one dated 28.06.2018 wereentitled to participate in ATRE-2019.

42. The eligibility and entitlement of B.Ed. candidates in law, thusbeing beyond any doubt, the next question to be considered is whetherH

without making appropriate consequential amendments to 1981 Rulesbefore ATRE-2019 was held, the candidates possessing B.Ed.qualification could be allowed to take part in ATRE-2019. Reliance wasplaced on the following observations from the decisions of this Court.

i) P. Mahendran and others etc. v. State of Karnataka andothers[17]

“4. … …In the absence of any express provision contained inthe amending Rules it must be held to be prospective in nature.The Rules which are prospective in nature cannot take awayor impair the right of candidates holding Diploma in MechanicalEngineering as on the date of making appointment as well ason the date of scrutiny by the Commission they were qualifiedfor selection and appointment. … …”

ii) Madan Mohan Sharma and another v. State of Rajasthanand others[18]

“…Once the advertisement had been issued on the basis ofthe circular obtaining at that particular time, the effect wouldbe that the selection process should continue on the basis ofthe criteria which were laid down and it cannot be on the basisof the criteria which has been made subsequently”

43. The Notification dated 28.06.2018 being binding on the StateGovernment, the statutory regime put in place by the State has to beread in conformity with said Notification. The eligibility or entitlementbeing already conferred by Notification dated 28.06.2018, theamendments to 1981 Rules were effected only to make the statutoryregime consistent with the directives issued by the NCTE. The right oreligibility was not conferred by amendments effected to 1981 Rules forthe first time and therefore the element of retrospectivity present in theconcerned amendments has to be read in that perspective. The intentbehind those amendments was not to create a right for the first timewith retrospective effect but was only to effectuate the statutory regimein tune or accord with NCTE directives. Theoretically, even if suchstatutory regime was not made so consistent, the concerned candidatesholding B.Ed. degrees could still be eligible and could not have beendenied candidature for ATRE-2019.

17 (1990) 1 SCC 411

18 (2008) 3 SCC 724

A

B

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D

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A44. Pertinently, the performance in ATRE is one of the indicia thatgoes into making of quality points which in turn have to be considered atthe stage of preparation of merit list for selection. By the time the actualprocess of selection was undertaken, the statutory regime in the form of1981 Rules was perfectly consistent and in order.

BThe decisions relied upon and quoted above therefore have noapplication to the instant case.

45. The decision of the Constitution Bench of this Court in Dr.Preeti Srivastava and another etc. vs. State of M.P. and others etc.[19]was also relied upon to submit that since the requirements in 1981 RulesC(as they stood before 23[rd] Amendment) in so far as entitlement of B.Ed.candidates was concerned, were in addition to the conditions emanatingfrom the Notification dated 28.06.2018, it must be independently satisfiedand as such there could be no retrospective amendment to 1981 Rules.In said decision, it was held by this Court.

D“39. ... In every case the minimum standards as laid down by theCentral statute or under it, have to be complied with by the Statewhile making admissions. It may, in addition, lay down otheradditional norms for admission or regulate admissions in theexercise of its powers under Entry 25 List III in a manner notinconsistent with or in a manner which does not dilute the criteriaEso laid down.”

As held by this Court, an additional norm laid down by the Statewould certainly be applicable and enforceable. But once, the NCTE laiddown that candidates holding B.Ed. degrees would be entitled to beappointed as teachers for classes I to V, provided they undergo a sixFmonths’ Bridge Course, the stipulation in 1981 Rules (before 23[rd]Amendment) that they must first be appointed as trainee teachers mustgive way to that under the Notification dated 28.06.2018. Said stipulationin 1981 Rules cannot be considered as an additional norm. It rancompletely counter to that under the Notification dated 28.06.2018 whichGis why the Amendment in that behalf was given retrospective effect tobring in consistency.

46. In the circumstances, we approve the conclusions drawn bythe High Court with regard to this issue and hold that the B.Ed. candidateswere rightly allowed to participate in the instant selection process.19 (1999) 7 SCC 120H

47. We now deal with the questions concerning fixation of 65-60% as minimum qualifying marks for ATRE 2019.

A

The first question deals with the submission that such fixationwas arbitrary and irrational and can be considered under following sub-heads:- B

(a) Whether there could be different parametersregarding minimum qualifying marks in ATRE-2019 as against those in ATRE-2018.

(b) Whether Shiksha Mitras who appeared inATRE-2018 and ATRE-2019 constituted oneCsingle homogenous class.

(c) Should there not be a different yardstick forShiksha Mitras, who had been rendering serviceas teachers, as against what could be appliedfor fresh graduates.

D

(d) Should not “minimum qualifying marks” appearto be minimum? Was not the cut off at 65-60%per se arbitrary; (e)Could ATRE-2019 be converted into anexclusionary test and thereby deny to theEShiksha Mitras the benefit of weightage forexperience.

The second question concerns about the correctness of the exerciseof power in such fixation after ATRE-2019 was held.

48. For selection of 68,500 posts, 1,07,000 candidates hadparticipated in ATRE-2018; and with qualifying marks at 45-40%, 41,556candidates had qualified. The percentage of qualifying candidates wasthus 38.83%. On the other hand, 4,09,530 candidates participated in thepresent selection process for 69,000 posts and with 65-60% cut off marks,1,46,078 candidates had qualified. The percentage of qualifying candidatesthis time was 37.62%, which was almost equal to that in ATRE-2018.However, the number of qualified candidates in ATRE-2018 was lessthan the number of vacancies; while even with the cut off at 65-60% thenumber of qualified candidates in the present selection was far in excessof the number of posts. These figures give indications about the nature F

G

H

Aand the difficulty level of the examinations and show that even with cutoff at 65-60%, the percentage of qualifying candidates was almost thesame.

49. It is true that the total number of posts of Assistant Teacherssought to be filled up by ATRE-2018 and 2019 was 1,37,500, the exactBnumber of Shiksha Mitras whose absorption as Assistant Teachers wasset aside; and that Shiksha Mitras were granted certain benefits in termsof the directions issued by this Court in Anand Kumar Yadav[2]. One ofthe submissions was that all Shiksha Mitras who were granted suchbenefit constituted a homogenous class and as such there could not beany inter se distinction between Shiksha Mitras who appeared in ATRE-C2018 on one hand and those who appeared in ATRE-2019 on the other.It was also contended that the syllabus for both the examinations withallocation of marks for different subjects being identical, any distinctionbetween two sets of Shiksha Mitras and subjecting those who appearedat ATRE-2019 to considerably high cut off would be arbitrary and illogical.D

50. It needs to be stated here that though the syllabus and subjectwise allocation of marks were identical, the nature of ATRE-2019 wasentirely different. The questions in ATRE-2018 were descriptive in natureand the duration of examination was three hours. However, those inATRE 2019 were multiple choice – objective questions and the durationEof examination was also different. Rather than writing descriptiveanswers to questions which was the modality in ATRE-2018, multiplechoices were given and the correct answer was to be tick marked inATRE 2019. Naturally, the nature and the difficulty level of both theexaminations were different. Sub question (a) must therefore beanswered in the affirmative and it must be accepted that there could beFdifferent parameters regarding minimum qualifying marks for ATRE-2019.

51. All the candidates including Shiksha Mitras who appeared inATRE 2018 formed one class while those who appeared in ATRE 2019formed another class. There cannot be inter se connection orGhomogeneity between candidates appearing in one examination orselection with those appearing in another examination or selection. Thecandidates would undoubtedly compete with each other in the sameexamination on a para meter which applies to all of them equally. But tosay that Shiksha Mitras who appeared in ATRE-2019 must be allowedHequality with candidates of ATRE-2018, who were part of a different selection process would be incorrect and illogical. The basic norms ofATRE-2019 must be tested on their own and cannot depend upon parameters or norms on the basis of which ATRE-2018 was held. Otherwisethe integrity of the examination process will get defeated and nullified.

Shiksha Mitras were given chances in two successive selectionsand some of the Shiksha Mitras who had failed in ATRE-2018 appearedin ATRE-2019 in exercise of such chance. Those who could not clearATRE-2018 with 45-40% cut off cannot now be heard to say that thesame cut off ought to be maintained when the nature of examination andthe difficulty level had completely changed.

We, therefore, reject the submission that Shiksha Mitras whoappeared in ATRE-2018 and ATRE-2019 formed a homogenous classand answer sub question (b) accordingly. The candidates who appearedin ATRE-2018 between themselves formed one class while those whoappeared in ATRE-2019 formed another class. The merit of one classhad to be tested on the basis of the examination which the candidatesforming that class had undergone and no para meters or norms of theearlier examination could be imported or implanted in the latterexamination.

52. Relying on the decision of this Court in State of M.P. andothers vs. Gopal D. Tirthani and others[20], it was submitted that ShikshaMitras who had been discharging their services as teachers could not beput at the same level with fresh graduates having B.Ed./BTCqualifications. In that case, this Court was called upon to consider settingapart of certain seats by the State Government for in service candidatesin Post Graduate courses. It was observed by this Court: - “21. … There is nothing wrong in the State Government settingapart a definite percentage of educational seats at postgraduationlevel consisting of degree and diploma courses exclusively for thein-service candidates. To the extent of the seats so set apart,there is a separate and exclusive source of entry or channel foradmission. It is not reservation. In-service candidates, and thecandidates not in the service of the State Government, are twoclasses based on an intelligible differentia. There is a laudablepurpose sought to be achieved. In-service candidates, on attaininghigher academic achievements, would be available to be posted A

B

CD

E

F

G

H

Ain rural areas by the State Government. It is not that an in-servicecandidate would leave the service merely on account of havingsecured a postgraduate degree or diploma though secured by virtueof being in the service of the State Government. If there is anymisapprehension, the same is allayed by the State Governmentobtaining a bond from such candidates as a condition precedentBto their taking admission that after completing PG degree/diplomacourse they would serve the State Government for another fiveyears. Additionally, a bank guarantee of rupees three lakhs isrequired to be submitted along with the bond. There is, thus, clearlya perceptible reasonable nexus between the classification and theCobject sought to be achieved.”

This Court was considering validity of certain percentage of seatsearmarked for in-service candidates and it found the classification to becorrect, having nexus with the object of ensuing availability of competentprofessionals in the rural parts of the State. On the other hand, theDobject of giving opportunities to Shiksha Mitras was to ensure that theywere given fair chance to compete with others so that the best of the lotwould be available to take care of primary education in the State. In ourview, the submission does not deserve acceptance. Sub question (c) isanswered accordingly.

E53. It was further submitted that the fixation of cut off at 65-60%was at a considerably high level and ceased to be “minimum qualifyingmarks” as contemplated by the relevant provisions of 1989 Rules. Thissubmission found favour with the Single Judge of the High Court whoobserved that the minimum qualifying marks must appear to be minimum.

FThe minimum marks required to pass the TET examination are ata level of 60% for open category. Those who desired to be teachershad already gone through a process rigorous enough to test their abilitywith minimum passing percentage at 60%%. Moreover, 60% of themarks scored by a candidate in ATRE-2019 would go to determine thequality points allocable to a candidate. Leaving aside the weightageGallowable for Shiksha Mitras, the overall academic performance of acandidate thus constituted about 40% of quality points whereas a largechunk thereof depended upon the performance in ATRE-2019. In termsof 1981 Rules, a candidate would be required to “pass” ATRE and thusATRE was not only an examination that had to be cleared to get into thezone of consideration but 60% of marks scored in that examination wouldH

be used for the purposes of preparation of merit list. From the perspectiveof selection, ATRE deserved adequate importance and emphasis. Thereason was obvious that all the candidates would be tested on a parameteror a norm which would be equal and identical to all the competingclaimants.

The fixation at 65-60% level was to garner the best availabletalent. Even with this qualifying norm, the percentage of qualifiedcandidates in ATRE-2019 was 37.62% which was quite close to 38.83%in ATRE-2018 and the number of qualified candidates was far in excessof the vacancies required to be filled up. Thus, cut off at 65-60% levelin the present case, by itself cannot be termed as incorrect or illegalexercise of power. Sub question (d) is answered accordingly.

54. It was then submitted that going by the provisions of 1981Rules, the performance in ATRE was supposed to be only one of theindicia. However, by fixing the cut off at 65-60% level, instead ofsubserving the requirement of furnishing one of the indicia, ATRE-2019became an exclusionary test. It was submitted that the performance inATRE overshadowed every other parameter and in the process the benefitof weightage that every Shiksha Mitra was entitled to, stood denied tohim.

55. Though as a result of the 22[nd] Amendment, passing of ATREceased to be part of Rule 8, the requirement was specifically retained inRule 14 of 1981 Rules. Further, 60% of the marks scored by a candidatein ATRE, in terms of Appendix I read with Rule 14(2) would go indetermining quality points to prepare the merit list. The major portion ofquality points being directly relatable to the performance in ATRE, merefixation at 65-60% level which applied to all the candidates across theboard cannot be said to be exclusionary. ATRE featured as the commonplatform on the basis of which individual merit of various candidatescould be tested, which is why a major portion of allocable quality pointswas assigned to the performance in ATRE. In the circumstances, theperformance in ATRE-2019 was given adequate and due weightage byfixation of cut off at 65-60% level.

56. The submission that as a result of such fixation large numberof Shiksha Mitras were denied advantage of weightage as determinedunder the provisions of 1981 Rules, also does not deserve acceptance.In Kulbhushan Mishra and another vs. State of U.P. and others, theDivision Bench of the High Court had concluded that weightage allocable A

BC

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Ato the experience of Shiksha Mitras was not contemplated to be addedto the marks obtained by a person in the ATRE. All the Shiksha Mitraswere thus aware that they had to qualify in the ATRE and they would beentitled to weightage for their experience only thereafter. More than8000 Shiksha Mitras did qualify in ATRE-2019, which number must haveincluded those who had earlier failed to make it in ATRE-2018. ThoseBShiksha Mitras who were meritorious and took the examination withseriousness that it deserved, certainly succeeded in securing marks morethan the cut off of 65-60%. The directions issued by this Court in AnandKumar Yadav[2]were to ensure that regardless of any otherconsiderations, Shiksha Mitras would have opportunity to match theirCskills against other candidates. Viewed thus, the fixation of cut off at65-60% which was intended to select the best of the candidates cannotbe termed as exclusionary nor was it intended to deprive the ShikshaMitras of the advantage of weightage for experience. Sub question (e)must therefore be answered against Shiksha Mitras.

D57. While answering the first question, we therefore concludethat the fixation of cut off at 65-60% in ATRE-2019 was perfectly validand justified. Considering the large number of candidates who appearedat ATRE-2019 as well as the nature and difficulty level of the examination,the cut off was designed to draw the best available talent. The endeavouron part of the State in attempting to secure the best of the teachers wasEtherefore fully justified. It needs no emphasis that the right to educationguaranteed in terms of Article 21A of the Constitution would envisagequality education being imparted to the children which in turn, wouldsignify that the teachers must be meritorious and the best of the lot. Anyprocess which applied equally to all the candidates and was designed toFgarner the best talent, cannot be called arbitrary or irrational.

58. With regard to the second question, it is clear from the recordthat the cut off at 65-60% for ATRE-2019 was declared a day after theexamination was held. As is reflected from the Order dated 07.01.2019,the process was initiated on 05.01.2019 but the actual declaration wasGon 07.01.2019. The correctness of such exercise was called in questionby Shiksha Mitras and certain decisions of this Court were relied upon.The basic submissions were that the candidates ought to have beenmade aware of the cut off well in advance and the fixation of cut offafter the examination was over, would be incorrect and invalid.

H

We may now consider some of the decisions relied upon by eitherside.

A] In State of Haryana vs. Subash Chander Marwaha andothers[21], a bench of two judges of this Court considered the questionwhether the action of the State in appointing first seven persons fromthe list of qualified candidates leaving out other qualified candidates whenthere were enough vacancies, was correct. It was observed:-

“10. One fails to see how the existence of vacancies give a legalright to a candidate to be selected for appointment. The examinationis for the purpose of showing that a particular candidate is eligiblefor consideration. The selection for appointment comes later. It isopen then to the Government to decide how many appointmentsshall be made. The mere fact that a candidate’s name appears inthe list will not entitle him to a mandamus that he be appointed.Indeed, if the State Government while making the selection forappointment had departed from the ranking given in the list, therewould have been a legitimate grievance on the ground that theState Government had departed from the rules in this respect.The true effect of Rule 10 in Part C is that if and when the StateGovernment propose to make appointments of Subordinate Judgesthe State Government (i) shall not make such appointments bytravelling outside the list, and (ii) shall make the selection forappointments strictly in the order the candidates have been placedin the list published in the Government Gazette. In the presentcase neither of these two requirements is infringed by theGovernment. They have appointed the first seven persons in thelist as Subordinate Judges. Apart from these constraints on thepower to make the appointments, Rule 10 does not impose anyother constraint. There is no constraint that the Government shallmake an appointment of a Subordinate Judge either because thereare vacancies or because a list of candidates has been preparedand is in existence.”

B] In State of U.P. etc. v. Rafiquddin and others etc.[22], thedistinction between a normal test and a competitive examination in thelight of the submission that the minimum marks were fixed without noticeto the candidates, was brought out by this Court as under:- 21 (1974) 3 SCC 220

22 1987 (Supp) SCC 401

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A“12. The Division Bench of the High Court observed that theCommission had no authority to fix any minimum marks for theviva voce test and even if it had such a power it could not prescribethe minimum marks without giving notice to the candidates. TheBench further observed that if the Commission had given noticeto the candidates before the steps for holding the competitiveBexamination were taken the candidates may or may not haveappeared at the examination. In our opinion the High Courtcommitted a serious error in applying the principles of naturaljustice to a competitive examination. There is a basic differencebetween an examination held by a college or university orCexamining body to award degree to candidates appearing at theexamination and a competitive examination. The examining bodyor the authority prescribes minimum pass marks. If a personobtains the minimum marks as prescribed by the authority he isdeclared successful and placed in the respective grade accordingto the number of marks obtained by him. In such a case it wouldDbe obligatory on the examining authority to prescribe marks forpassing the examination as well as for securing different gradeswell in advance. A competitive examination on the other hand isof different character. The purpose and object of the competitiveexamination is to select most suitable candidates for appointmentEto public services. A person may obtain sufficiently high marksand yet he may not be selected on account of the limited numberof posts and availability of persons of higher quality. Having regardto the nature and characteristics of a competitive examination it isnot possible nor necessary to give notice to the candidates aboutthe minimum marks which the Commission may determine forFpurposes of eliminating the unsuitable candidates. The rule of”natural justice does not apply to a competitive examination.

C] The procedure for selection of ten posts of District and SessionsGJudges (Grade-II) by direct recruitment was in issue in K. Manjusree[12].According to the resolution dated 30.11.2004, the method of selectioncomprised of a written examination for 75 marks and oral examinationfor 25 marks. There would be minimum percentage of marks requiredfor passing the written examination and the successful candidates would H

be called for interview; and the merit would be determined, according tothe aggregate of marks in written and oral examinations. There wasthus no requirement of any minimum qualifying marks in the oral interview.However, after the entire process was over, the Sub-Committeeintroduced a cut off percentage for oral examination, as a result of which,certain candidates stood disqualified. While dealing with the challengeby four such candidates, a bench of three judges of this Court observed:

“27. But what could not have been done was the second change,by introduction of the criterion of minimum marks for the interview.The minimum marks for interview had never been adopted by theAndhra Pradesh High Court earlier for selection of District &Sessions Judges, (Grade II). In regard to the present selection,the Administrative Committee merely adopted the previousprocedure in vogue. The previous procedure as stated above wasto apply minimum marks only for written examination and not forthe oral examination.We have referred to the proper interpretationof the earlier Resolutions dated 24-7-2001 and 21-2-2002 and heldthat what was adopted on 30-11-2004 was only minimum marksfor written examination and not for the interviews. Therefore,introduction of the requirement of minimum marks for interview,after the entire selection process (consisting of written examinationand interview) was completed, would amount to changing the rulesof the game after the game was played which is clearlyimpermissible. We are fortified in this view by several decisionsof this Court. It is sufficient to refer to three of them — P.K.Ramachandra Iyer v. Union of India[23], Umesh Chandra Shuklav. Union of India[24] and Durgacharan Misra v. State ofOrissa[25].”

After considering the earlier decisions in P.K. Ramachandra Iyerand others v. Union of India and others[23], Umesh Chandra Shuklav. Union of India and others[24], Durgacharan Misra v. State ofOrissa[25]and Maharashtra State Road Transport Corporation andothers v. Rajendra Bhimrao Mandve and others[26], this Court observed:

23 (1984) 2 SCC 14124 (1985) 3 SCC 72125 (1987) 4 SCC 64626 (2001) 10 SCC 51

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“33. The Resolution dated 30-11-2004 merely adopted theprocedure prescribed earlier. The previous procedure was not tohave any minimum marks for interview. Therefore, extending theminimum marks prescribed for written examination, to interviews,in the selection process is impermissible. We may clarify thatprescription of minimum marks for any interview is not illegal.We have no doubt that the authority making rules regulating theselection, can prescribe by rules, the minimum marks both forwritten examination and interviews, or prescribe minimum marksfor written examination but not for interview, or may not prescribeany minimum marks for either written examination or interview.Where the rules do not prescribe any procedure, the SelectionCommittee may also prescribe the minimum marks, as statedabove. But if the Selection Committee wants to prescribe minimummarks for interview, it should do so before the commencement ofselection process. If the Selection Committee prescribed minimummarks only for the written examination, before the commencementof selection process, it cannot either during the selection processor after the selection process, add an additional requirement thatthe candidates should also secure minimum marks in the interview.What we have found to be illegal, is changing the criteria aftercompletion of the selection process, when the entire selectionproceeded on the basis that there will be no minimum marks forthe interview.

36. The Full Court however, introduced a new requirement as tominimum marks in the interview by an interpretative process whichis not warranted and which is at variance with the interpretationadopted while implementing the current selection process and theearlier selections. As the Full Court approved the Resolution dated30-11-2004 of the Administrative Committee and also decided toretain the entire process of selection consisting of writtenexamination and interviews it could not have introduced a newrequirement of minimum marks in interviews, which had the effectof eliminating candidates, who would otherwise be eligible andsuitable for selection. Therefore, we hold that the action of theFull Court in revising the merit list by adopting a minimumpercentage of marks for interviews was impermissible.”

This Court, thus, allowed the challenge and directed the High Courtto prepare a fresh merit list in regard to 83 candidates who had qualifiedin the written examination with reference to their marks in written testand interview without applying any minimum marks for interviews.

D] Relying on the decision in K. Manjusree[12], a bench of twojudges of this Court in Hemani Malhotra etc. vs. High Court of Delhi[27],concluded:- “15. There is no manner of doubt that the authority making rulesregulating the selection can prescribe by rules the minimum marksboth for written examination and viva voce, but if minimum marksare not prescribed for viva voce before the commencement ofselection process, the authority concerned, cannot either duringthe selection process or after the selection process add an additionalrequirement/qualification that the candidate should also secureminimum marks in the interview.Therefore, this Court is of theopinion that prescription of minimum marks by the respondent atviva voce test was illegal.”

E] In Tej Prakash Pathak and others Vs. Rajasthan High Courtand others[28], a bench of three judges was called upon to consider asituation identical to that considered in State of Haryana vs. SubashChander Marwaha and Others[21], where only three candidates wereselected while others were ruled out despite there being vacancies. ThisCourt doubted the decision in K. Manjusree[12] and referred the matterto a larger bench. Some of the observations were as under: - “1. Leave granted.

“5. … the rules of the game … the criteria for selection cannotbe altered by the authorities concerned in the middle or afterthe process of selection has commenced.”

“27. … changing the rules of the game after the game wasplayed … is clearly impermissible.”

The above, and statements to the similar effect have petrifiedinto a rule of law in the context of employment under the State 27 (2008) 7 SCC 11

28 (2013) 4 SCC 540

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or its instrumentalities. Whether such principle of law isimmutable, what are those “rules of the game” which cannotbe changed after the game is either commenced or played, inour opinion requires an authoritative pronouncement by a largerBench of this Court.”

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6. Therefore, the appellants challenged the selection process onthe ground that the decision of the Chief Justice to select onlythose candidates who secured a minimum of 75% marks wouldamount to “changing the rules of the game after the game isplayed”—a cliché whose true purport is required to be examinednotwithstanding the declaration of this Court in Manjusree[12]casethat it is “clearly impermissible”.

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14. Unfortunately, the decision in Subash Chander Marwaha[21]does not appear to have been brought to the notice of TheirLordships in Manjusree[12]. This Court in Manjusree relied uponP.K. Ramachandra Iyer v. Union of India[23], Umesh ChandraShukla v. Union of India[24] and Durgacharan Misra v. Stateof Orissa[25]. In none of the cases, was the decision in SubashChander Marwaha[21] considered.

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15. No doubt it is a salutary principle not to permit the State or itsinstrumentalities to tinker with the “rules of the game” insofar asthe prescription of eligibility criteria is concerned as was done inC. Channabasavaih v. State of Mysore[29], etc. in order to avoidFmanipulation of the recruitment process and its results. Whethersuch a principle should be applied in the context of the “rules ofthe game” stipulating the procedure for selection more particularlywhen the change sought is to impose a more rigorous scrutiny forselection requires an authoritative pronouncement of a largerBench of this Court. We, therefore, order that the matter be placedGbefore the Hon’ble Chief Justice of India for appropriate ordersin this regard.”

F] In Yogesh Yadav[13], the attempt on part of the authorities inemploying a cut off to select the best candidates was questioned. Abench of two Judges of this Court observed:- “13. The instant case is not a case where no minimum marks areprescribed for viva voce and this is sought to be done after thewritten test. As noted above, the instructions to the examineesprovided that written test will carry 80% marks and 20% markswere assigned for the interview. It was also provided thatcandidates who secured minimum 50% marks in the generalcategory and minimum 40% marks in the reserved categories inthe written test would qualify for the interview. The entire selectionwas undertaken in accordance with the aforesaid criterion whichwas laid down at the time of recruitment process. After conductingthe interview, marks of the written test and viva voce were to beadded. However, since a benchmark was not stipulated for givingthe appointment. What is done in the instant case is that a decisionis taken to give appointments only to those persons who havesecured 70% marks or above marks in the unreserved categoryand 65% or above marks in the reserved category. In the absenceof any rule on this aspect in the first instance, this does not amountto changing the “rules of the game”. The High Court has rightlyheld that it is not a situation where securing of minimum markswas introduced which was not stipulated in the advertisement,standard was fixed for the purpose of selection. Therefore, it isnot a case of changing the rules of the game. On the contrary inthe instant case a decision is taken to give appointment to onlythose who fulfilled the benchmark prescribed. The fixation of sucha benchmark is permissible in law. This is an altogether differentsituation not covered by Hemani Malhotra case[27].”

G] In Salam Samarjeet Singh vs. High Court of Manipur atImphal and another[30], there was disagreement between two judges ofthis Court. Banumathi, J. did not accept the submission that the fixationof minimum marks for ‘interview’ amounted to changing the “rules ofthe game” and concluded that fixing of 40% marks for interview wasconsistent with the concerned Rules. Shiva Kirti Singh, J. took a differentview while relying upon the decision in K. Majushree[12] and HemaniMalhotra[27]. The matter, therefore stands referred to a larger Bench.

30 (2016) 10 SCC 484

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AH] In Sivanandam C.T. and others vs. High Court of Keralaand others[31], while dealing with the correctness of the decision in fixingminimum qualifying marks for interview after the process was over, abench of two judges of this Court relied upon the order in Tej PrakashPathak [28] and referred the matter to a larger Bench.

BI] The facts in Municipal Corporation of Delhi vs. SurenderSingh and others[32] show that the selection was for the posts of AssistantTeachers (Primary) in the schools of the appellant and clause 25 of theadvertisement provided discretion to the Selection Board to fix minimumqualifying marks for each category of vacancies. A bench of two judgesof this Court observed:-C

“18. From a perusal of the said clause it is noticed that thoughunder the very clause there are no cut-off marks specified, Clause25 would, however, provide the full discretion to DSSSB to fix theminimum qualifying marks for selection. In the instant case, keepingin view that the recruitment was for the post of Assistant TeacherD(Primary) and also taking note of the orders passed by the HighCourt in an earlier petition requiring the maintenance of minimumstandards, DSSSB while preparing the select list had stopped theselection at a point which was indicated as the cut-off percentage.In a circumstance where Clause 25 was depicted in AdvertisementENo. 1/2006, when the private respondents herein and the otherpetitioners before the High Court were responding to the saidadvertisement, if at all they had a grievance that the clause isarbitrary and might affect their right ultimately since no minimummarks that is to be obtained have been indicated therein, theywere required to assail the same at that stage.On the other hand,Fdespite being aware of the clause providing discretion to DSSSBto fix the minimum qualifying marks, they have participated in theselection process by appearing for the qualifying examinationwithout raising any protest. In that circumstance, the principle ofapprobate and reprobate would apply and the private respondentsGherein or any other candidate who participated in the processcannot be heard to complain in that regard.

19. It is no doubt true that the select list was concluded at theparticular cut-off point wherein the last selected candidate under 31 (2018) 1 SCC 239H32 (2019) 8 SCC 67

the unreserved category had obtained 89.25%. The said decisionhad been taken by DSSSB to ensure the minimum standard of theteachers that would be recruited and the appellant herein beingthe recruiting agency in any event, did not have objection. In anyevent, it is not the case of the petitioners that they had obtainedhigher marks than the candidate who was shown as the lastcandidate in the merit list. If that was the position and when it isnoticed that the appellant and the other writ petitioners had securedlesser percentage of marks than the last candidate included in themerit list, there could not have been any further considerationwhatsoever in the course of judicial review. To that extent, thelearned Single Judge, from the observations as noticed above haskept in view all aspects of the matter and in that light had arrivedat the conclusion that no error was committed either by DSSSBor the appellant herein.”

J] In Jharkhand Public Service Commission vs. Manoj KumarGupta and another[14], the cut off in respect of Paper III was fixed afterthe examination. Reversing the decision of the High Court, a bench oftwo Judges of this Court observed:-

“7. A perusal of Clause 4.1 of the scheme clearly indicates thatthe moderation committee has been constituted only forthe purpose of deciding the cut-off marks in each subjectfor declaring the result. The advertisement clearly indicates thatonly those candidates who obtained 50% marks in Paper I and IIwould be eligible to take the test in Paper III. The minimumqualifying marks in case of General/OBC candidates was 50%.At this stage, there was no need to fix the qualifying marks forPaper III. That need will arise only when the moderationcommittee meets and decides what should be the levelof competence expected from the people who are to be consideredfor appointment as Lecturers. It is for the moderation committeeto decide what should be the cut-off marks. There could be thesubject where all the people who qualified Paper I and II get verylow marks in Paper III and the moderation committee may bejustified in lowering the standards and prescribing lower qualifyingstandards. On the other hand, there may be a subject where thereare many candidates who do extremely well in Paper III

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Aand the moderation committee may decide to fix a higherminimum standard. The constitution of a moderation committee isnormally done only to do this sort of moderation.

8. As far as the finding of the High Court that the rules of thegame were changed after the selection process had started, weBare of the considered view that this is not the case as far as thepresent case is concerned. There were no minimum marksprovided for Paper III in the advertisement. This could be doneby the moderation committee even at a later stage. This is not achange brought about but an additional aspect brought in whiledetermining the merit of the candidates who are found fit to beCeligible for consideration for appointment of Lecturers.”

59. Having set out relevant portions from the decisions of thisCourt, the answer to the second question will depend upon whether thepresent case is fully covered by the principles laid down in K.Manjusree[12]. If the case is so covered, in keeping with the Orders ofDreference in Tej Prakash Pathak[28], Salam Samarjeet Singh[30 ]andSivanandam[31], the instant matter must either be referred to a largerBench to be heard along with those matters or must await the decisionin the reference to the larger Bench.

60. In terms of Rule 2(1)(x) of 1981 Rules, qualifying marks ofEATRE are such minimum marks as may be determined ‘from time totime’ by the Government. Clause (C) of Rule 14 of 1981 Rules laysdown that a candidate must have ‘passed Assistant TeacherRecruitment Examination conducted by the Government’. Thus, oneof the basic requirements for being considered to be appointed as anFAssistant Teacher under 1981 Rules is passing of ATRE with suchminimum marks as may be determined by the Government. Unlike para7 of the Guidelines for ATRE-2018 which had spelt out that a candidatemust secure minimum of 45% or 40% marks (for ‘general’ and ‘reserved’categories respectively) for passing ATRE-2018, no such stipulation wasavailable in G.O. dated 01.12.2018 notifying ATRE-2019. Though, theGminimum qualifying marks were set out in the Guidelines for ATRE-2018, it is not the requirement of 1981 Rules that such stipulation mustbe part of the instrument notifying ATRE. By very nature of entrustment,the Government is empowered to lay down minimum marks ‘from timeto time’. If this power is taken to be conditioned with the requirementHthat the stipulation must be part of the instrument notifying the examination,

then there was no such stipulation for ATRE-2019. Such reading of therules will lead to somewhat illogical consequences. On one hand, therelevant Rule requires passing of ATRE while, on the other hand, therewould be no minimum qualifying marks prescribed. A reasonableconstruction on the relevant rules would therefore imply that theGovernment must be said to be having power to lay down such minimumqualifying marks not exactly alongside instrument notifying the examinationbut at such other reasonable time as well. In that case, the furtherquestion would be at what stage can such minimum qualifying marks bedetermined and whether by necessity such minimum qualifying marksmust be declared well before the examination.

61. K. Manjusree[12] and Hemani Malhotra[27]were the caseswhich pertained to selections undertaken to fill up posts in judicial service.In these cases, no minimum qualifying marks in interview were requiredand the merit list was to be determined going by the aggregate of markssecured by a candidate in the written examination and the oralexamination. By virtue of stipulation of minimum qualifying marks forinterview, certain candidates, who otherwise, going by their aggregatewould have been in zone of selection, found themselves to be disqualified.The stipulation of minimum qualifying marks having come for the firsttime and after the selection process was underway or through, this Courtfound such exercise to be impermissible.

These were cases where, to begin with, there was no stipulationof any minimum qualifying marks for interview. On the other hand, inthe present case, the requirement in terms of Rule 2(1)(x) read withRule 14 is that the minimum qualifying marks as stipulated by theGovernment must be obtained by a candidate to be considered eligiblefor selection as Assistant Teacher. It was thus always contemplatedthat there would be some minimum qualifying marks. What was doneby the Government by virtue of its orders dated 07.01.2019 was to fixthe quantum or number of such minimum qualifying marks. Therefore,unlike the cases covered by the decision of this Court in K. Manjusree[12],where a candidate could reasonably assume that there was no stipulationregarding minimum qualifying marks for interview, and that the aggregateof marks in written and oral examination must constitute the basis onwhich merit would be determined, no such situation was present in theinstant case. The candidate had to pass ATRE-2019 and he must be AB

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Ataken to have known that there would be fixation of some minimumqualifying marks for clearing ATRE-2019.

Therefore, there is fundamental distinction between the principlelaid down in K. Manjusree[12 ]and followed in Hemani Malhotra[27]onone hand and the situation in the present case on the other.

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62. We are then left with the question whether prescription ofsuch minimum qualifying marks by order dated 07.01.2019 must be setaside merely because such prescription was done after the examinationwas conducted. At this juncture, it may be relevant to note that thebasic prayer made in the leading Writ Petition before the single JudgeCwas to set aside the order dated 07.01.2019. What could then entail as aconsequence is that there would be no minimum qualifying marks forATRE-2019, which would run counter to the mandate of Rule 2(1)(x)read with Clause (C) of Rule 14. It is precisely for this reason that whatwas submitted was that the same norm as was available for ATRE-2018must be adopted for ATRE-2019. In order to lend force to this submission,Dit was argued that Shiksha Mitras who appeared in ATRE-2018 andATRE-2019 formed a homogeneous clause and, therefore, the normthat was available in ATRE-2018 must be applied. This argument, on thebasis of homogeneity, has already been dealt with and rejected.

63. If the Government has the power to fix minimum qualifyingEmarks ‘from time to time’, there is nothing in the Rules which can detractfrom the exercise of such power even after the examination is over,provided the exercise of such power is not actuated by any malice or illwill and is in furtherance of the object of finding the best available talent.

In that respect, the instant matter is fully covered by the decisionsFof this Court in Municipal Corporation of Delhi vs. Surender Singh[32]and Jharkhand Public Service Commission vs. Manoj Kumar Guptaand another[14]. In the first case, the power entrusted under Clause 25of the advertisement also provided similar discretion to the SelectionBoard to fix minimum qualifying marks for each category of vacancies.GWhile construing the exercise of such power, it was found by this Courtthat it was done ‘to ensure the minimum standard of the teachers thatwould be recruited’. Similarly, in Jharkhand Public ServiceCommission[14], the exercise of power after the examination in paper IIIwas over, was found to be correct and justified.

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64. If the ultimate object is to select the best available talent andthere is a power to fix the minimum qualifying marks, in keeping with thelaw laid down by this Court in State of Haryana vs. Subash ChanderMarwaha and Others[21], State of U.P. vs. Rafiquddin and Others[22],Municipal Corporation of Delhi vs. Surender Singh[32]and JharkhandPublic Service Commission vs. Manoj Kumar Gupta and another[14],we do not find any illegality or impropriety in fixation of cut off at 65-60% vide order dated 07.01.2019. The facts on record indicate thateven with this cut off the number of qualified candidates is more thantwice the number of vacancies available.

It must be accepted that after considering the nature and difficultylevel of examination, the number of candidates who appeared, theconcerned authorities have the requisite power to select a criteria whichmay enable getting the best available teachers. Such endeavour willcertainly be consistent with the objectives under the RTE Act.

65. In the circumstances, we affirm the view taken by the DivisionBench of the High Court and conclude that in the present case, thefixation of cut off at 65-60%, even after the examination was over, cannotbe said to be impermissible. In our considered view, the Governmentwas well within its rights to fix such cut off.

66. Consequently, the challenge at the instance of Shiksha Mitrasin all these matters, specifically referred to in Para 27 hereinabove, isnegated and the appeals preferred by Shiksha Mitras are dismissed.

The appeal arising out of SLP(C) No.6846 of 2020 preferred bythe Association of Shiksha Mitras also prayed for absorption of ShikshaMitras. Such a prayer cannot be granted in view of the pronouncementof the decision of this Court in Anand Kumar Yadav[2]. Said appeal is,therefore, dismissed.

67. Though we have rejected the challenge on behalf of the ShikshaMitras and dismissed their appeals, we hope that in keeping with thesubmissions made on behalf of the State, as recorded in paragraph 34hereinabove, one more opportunity shall be afforded to Shiksha Mitrasto compete in the next selection. We leave it to the discretion of theState Government to consider the manner and the modalities in whichsuch opportunity can be availed of. Needless to say, the matter in thatbehalf is entirely left to the discretion of the State Government.

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A68. In the appeals preferred by ex-servicemen or persons withdisability, it was submitted that as against the vacancies earmarked forthese categories, very few candidates had applied and at 65-60% cutoff the number of qualified candidates was far lesser. The cut off at 65-60% having been held valid and justified, these appeals are also dismissed.If there are less number of candidates against the vacancies for theseBcategories, such vacancies shall be subject to the Rules in that behalf.If the vacancies cannot be carried forward, the same shall and mustenure to the advantage of the candidates in the present selection.

Similarly, Writ Petition (Civil)No.703 of 2020 and appeals arisingout of petitions preferred by B.Ed./B.T.C. candidates as well as ContemptCPetition (Civil) No. 418 of 2020 and all Intervention Applications also stand disposed of in same terms. No costs.

69. The State Government shall now be entitled to fill up all theconcerned posts in terms of the result declared on 12.05.2020 and inaccordance with law.

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Kalpana K. Tripathy

Matters disposed of.

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