State Of Uttarakhand And Others vs Manoj Kumar & Others

Ramesh Ranganathan, CJ

The respondent - writ petitioners, in this batch of Special Appeals, were all working as Shiksha Acharyas earlier. They invoked the jurisdiction of

this Court seeking absorption as Shiksha Mitras and to be sent for training to the District Institute of Education and Training (DIET), after being

appointed in these posts.

Facts, to the limited extent necessary, are that the qualifications, hitherto prescribed for appointment to the posts of Assistant Teachers

(Elementary) was a Basic Training Course (called the BTC). The Sarva Shiksha Abhiyan was a programme introduced to provide education to

children below 14 years, and two schemes were introduced thereunder. The first was called the Educational Guarantee Scheme (for short the EGS),

and the second the Alternative and Innovative Education Scheme called the AIE. The EGS and AIE centers were hitherto operated in remote and

hilly areas of the State where primary schools did not exist. Separate EGS and AIE centers were established in such areas of the State with Shiksha

Mitras and Shiksha Acharyas as teachers, even though they did not possess the educational qualifications required to be appointed as teachers in

regular primary schools. The State Government, by its order dated 14.02.2008, decided to close all EGS and AIE centers from 31.12.2008.

Government Order dated 01.03.2009 was issued thereafter directing that those Shiksha Mitras, who had either completed their graduation or their

post-graduation be sent to undergo two years training in different District Institutes of Education and Training.

The Government Order dated 01.03.2009 was followed by another Government Order dated 19.11.2010 whereby it was decided that the Shiksha

Mitras, working in the EGS and AIE centres, would be absorbed as Assistant Teachers (Primary) provided they were graduates/post-graduates.

Several Shiksha Mitras invoked the jurisdiction of this Court seeking absorption as per the Government Order dated 19.11.2010, and to be sent for

training for two years as per the Government Order dated 01.03.2009. All these writ petitions were disposed of, by order in Special Appeal No. 131 of

2010 and batch dated 23.02.2011, directing that such of those appellants, who were graduates as on 19.11.2010, shall be treated as Shiksha Mitras,

and shall be sent for training in terms of the Government Order dated 01.03.2009, and their services shall be utilized thereafter for imparting education

in schools recognized by the Board constituted under the Uttarakhand School Education Act, 2006.

While matters stood thus, the National Council for Technical Education (for short the “NCTEâ€) issued notification dated 23.08.2010 prescribing

the minimum qualifications to be eligible for appointment as a teacher in classes 1 to 8 in a school referred to in Section 2 (n) of the Right of Children

to Free and Compulsory Education Act, 2009 (for short the “2009 Actâ€). For teachers of classes 1 to 5, the prescribed minimum educational

qualifications was a Senior Secondary Certificate or its equivalent with at least 50% marks plus a two years diploma in elementary education. For

classes 6 to 8, it was a graduation with two years diploma in Elementary Education.

Though the NCTE notification dated 23.08.2010 prescribed a Senior Secondary Certificate as the minimum education qualification, to qualify for

appointment as teachers for Classes 1 to 6, the Government Elementary Education (Teachers) Service Rules, 2012 (for short the “2012 Rulesâ€)

prescribed graduation as the minimum qualification for appointment as Assistant Teachers (Primary). Consequently, it is only those persons, who were

graduates and possessed a two years diploma in Elementary Education, who were eligible to be appointed as Shiksha Mitras. Several of those Shiksha

Mitras, who were not absorbed as Assistant Teachers (Primary), invoked the jurisdiction of the Allahabad High Court and, against the order passed in

Anand Kumar Yadav and others Vs. Union of India 2015 SCC Online Allahabad 3997, the matter was carried in appeal, by the State of Uttar

Pradesh, to the Supreme Court.

In its order in State of U.P. Vs. Anand Kumar Yadav, (2018) 13 SCC 560, the Supreme Court observed that, in view of the clear mandate of

the law (NCTE notification dated 23.08.2010), the statutorily required minimum qualifications should be fulfilled for appointment as teachers; no

appointment was permissible without such qualifications; appointment of Shiksha Mitras was on a contractual basis, and was not as per the

qualifications prescribed for teachers, nor for the designation of teachers, nor in the pay scale of teachers; they could not be regularized as teachers;

regularization could only be of an irregularity; the exceptions carved out by the Supreme Court, in State of Karnataka Vs. Uma Devi, (2006) 4

SCC 1, did not apply to the case of these persons; these Shiksha Mitras were never appointed as teachers as per the applicable qualifications, and

were not covered by the relaxation order under Section 23 (2) of the 2009 Act; they could not be appointed as teachers, in breach of Section 23 of the

said Act; and the State was not competent to relax the qualifications.

Thereafter the Supreme Court observed that, on the one hand, there was a claim of about 1.78 lakh persons seeking regularization in violation of the

law; and, on the other, was the duty to uphold the rule of law and also to have regard to the right of children, aged between 6 to 14 years, to receive

quality education from duly qualified teachers; even if, as a stop-gap arrangement, teaching may have been entrusted to unqualified teachers, qualified

teachers should be ultimately appointed; it may be permissible to give some weightage to the experience of Shiksha Mitras or some age relaxation may

be possible; however mandatory qualifications could not be dispensed with; and regularization of Shiksha Mitras as teachers was not permissible.

The Supreme Court, thereafter, examined whether, in the absence of any right in favour of the Shiksha Mitras, they were entitled to any other relief

or preference. It held that, in the peculiar fact situation, the Shiksha Mitras ought to be given an opportunity to be considered for recruitment, if they

had acquired, or now acquire, the requisite qualification in terms of the advertisements for recruitment for the next two consecutive recruitments; they

may also be given suitable age relaxation, and some weightage for their experience, as may be decided by the authorities concerned; and, till they avail

this opportunity, the State was at liberty to continue them as Shiksha Mitras on the same terms on which they were working prior to their absorption, if

the State so decided.

The respondent - writ petitioners, in this batch of appeals, are not even Shiksha Mitras. They are all Shiksha Acharyas. The State Government

issued order dated 19.11.2010 deciding that all graduate Shiksha Acharyas and Instructors should be absorbed as Shiksha Mitras. The said

Government Order specifically referred to the absorption of 1107 Shiksha Acharyas who were graduates, and required preference to be given,

amongst them, to those who were working in the EGS and AIE centers which were closed earlier by the end of 2008. By proceedings dated

18.07.2011, 426 of these Shiksha Acharyas were absorbed as Shiksha Mitras; by proceedings dated 15.12.2011 another 343 Shiksha Acharyas were

absorbed; and by the subsequent proceedings, a few others were absorbed as Shiksha Mitras. In all, around 900 Shiksha Acharyas were absorbed as

Shiksha Mitras, leaving around 207 Shiksha Acharyas unabsorbed.

The respondent-writ petitioners, in this batch of special appeals, are such of those Shiksha Acharyas whose services were not absorbed as

Shiksha Mitras in terms of the Government Order dated 19.11.2010 which appears to have been issued in ignorance of the NCET Notification dated

23.08.2010. What the respondents-writ petitioners, in this batch of special appeals, seek is that they be absorbed as Shiksha Mitras, and then sent for

two years training to the District Institute of Education and Training.

Learned counsel appearing on behalf of the respondent-writ petitioners would contend that, unlike in State of U.P. vs. Anand Kumar Yadav, the

case of the respondent-writ petitioners stands on a different footings; the issue, before the Supreme Court, was whether the services of Shiksha

Mitras should be regularized and they should be absorbed as Assistant Teachers (Primary); and, in the present case, the respondent- writ petitioners

are seeking appointment only as Shiksha Mitras, and not for absorption as Assistant Teachers (Primary).

It is not in dispute that, in light of the Government Order dated 14.02.2008, the services of all the respondent-writ petitioners, as Shiksha Acharyas,

was also dispensed with after 31.12.2008 consequent upon the closure of the AIE and EGS centres; and in some cases, on these EGS/AIE centers

being upgraded as primary and upper primary schools. In this context, it is useful to refer to certain provisions of the 2009 Act. Section 2(n) of the said

Act defines “Schoolâ€​ to mean any recognized school imparting elementary education and includes-

(i) a school established, owned or controlled by the appropriate Government or a local authority;

(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;

(iii) a school belonging to specified category; and

(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;

Section 3(1) of the said act conferred a right on every child, of the age of six to fourteen years, including a child referred to in clause (d) or clause

(e) of Section 2, to have the right to free and compulsory education in a neighbourhood school, till the completion of his or her elementary education.

Section 23 of the 2009 Act relates to the qualifications for appointment, and the terms and conditions of service, of teachers. Under sub-section (1)

thereof, any person possessing such qualification, as laid down by the academic authority authorized by the Central Government, by notification, shall

be eligible for appointment as a teacher. Section 23(2) stipulates that where a State does not have adequate institutions offering courses or training in

teacher education, or teachers possessing minimum qualification as laid down under sub-section (1) are not available in sufficient numbers, the Central

Government may, if its deems necessary, by notification, relax the minimum education qualifications required for appointment as a teacher, for such

period, not exceeding five years, as may be specified in that notification.

Under the proviso, to Section 23 (2), a teacher who, at the commencement of the 2009 Act, does not possess the minimum qualification as laid

down under Section 23(1) shall acquire such minimum qualifications within a period of five years. The five year period stipulated under Section 23(2)

and its proviso expired around four years ago. In view of the notification dated 05.04.2010, whereby the Central Government authorized the NCTE as

the academic authority to lay down minimum qualifications for a person to be eligible for appointment as a teacher, the NCTE is the academic

authority as specified in Section 23(1) of the 2009 Act and, in exercise of the powers conferred by Section 23(1) of the 2009 Act, the NCTE laid

down the minimum qualifications, for a person to be eligible for appointment as teachers from Class I to VIII, by its notification dated 23.08.2010.

Consequently, for being considered for appointment as a teacher for Classes I to VIII, a candidate must fulfil the minimum qualifications prescribed in

the notification dated 23.08.2010. It is not in dispute that none of the Siksha Acharyas, (ie the respondent-writ petitioners), who seek absorption as

Sikhsha Mitras, possess the prescribed minimum qualifications of a two year diploma in elementary education; and the claim of Shiksha Mitras, for

their absorption as Assistant Teachers (Primary), was not acceded to by the Supreme Court in State of U.P. vs. Anand Kumar Yadav.

The respondent-writ petitioners herein are not even Siksha Mitras. They are Siksha Acharyas claiming absorption as Siksha Mitras, and thereafter

to be sent for training and to be engaged as Siksha Mitras. Though they did not specifically seek such a relief in the Writ Petitions filed by them, it is

evident that, after their absorption as Siksha Mitras, they also seek absorption as Assistant Teachers in Primary Schools since the EGS and AIE

centers, where Siksha Mitras and the Siksha Acharyas were hitherto engaged, have been closed ever since 31.12.2008. Since the relief of absorption

as Assistant Teachers has been denied even to the Siksha Mitras, the respondent-writ petitioners, who are Siksha Acharyas and seek absorption as

Siksha Mitras, cannot stand on a better footing than the Siksha Mitras themselves. While the Government may have directed their absorption by its

order dated 19.11.2010, they cannot be absorbed as Siksha Mitras, and posted to teach in regular primary and upper primary schools as their

entitlement to be appointed as teachers, for Classes I to VIII, in any school is only on their fulfilling the minimum educational qualifications prescribed

in the NCTE notification dated 23.08.2010. Since none of the respondents-writ petitioners possess the minimum qualification of a two year diploma in

elementary education, the orders under Appeal are all set aside.

Needless to state that, in terms of order of the Supreme Court in State of U.P and Another Vs. Anand Kumar Yadav and others, such of the

respondent-writ petitioners, who have subsequently acquired the prescribed minimum qualifications prescribed under the NCTE notification dated

23.08.2010, shall also be eligible to be considered for appointment as Assistant Teachers (Primary) as and when the Government initiates the process

of recruitment. The order now passed by us shall not disable the State Government, if it so chooses, from giving weightage or age relaxation to these

candidates in the recruitment of Assistant Teachers (Primary).

Yet another contention which we must deal with, before parting with the case, is the submission that, against another similar order of the learned

Single Judge, the State Government had preferred Special Appeal No. 422 of 2013 which was dismissed by order dated 09.08.2017; the review

petition filed by the State Government seeking review of the said order was also dismissed by order dated 31.08.2018; and the State has preferred

SLP (Civil) Diary No. 204 of 2019, which is still pending before the Supreme Court, and has been listed for hearing on 03.01.2020.

The submission is that, since this issue is sub-judice before the Supreme Court, its decision should be awaited. The declaration of law by the

Supreme Court, in State of U.P and Another Vs. Anand Kumar Yadav and others: 2018 (13) SCC 560, binds us. Unless and until a different

view is taken by the Supreme Court later, the High Court is bound to follow the law declared therein. As even Siksha Mitras were held not entitled for

absorption as Assistant Teachers (Primary), if they did not possess the qualification of a two years Diploma in Elementary Education with graduation,

the respondent-writ petitioners, who were hitherto only Shiksha Acharyas and seek absorption as Shiksha Mitras, cannot claim a better right than the

Shiksha Mitras themselves.

The mere fact that SLP (Civil) Diary No. 204 of 2019 is pending before the Supreme Court does not justify the High Court taking a view different

from the judgment of the Supreme Court in State of U.P. vs. Anand Kumar Yadav. The orders under appeal are all set aside, and all the Special

Appeals are disposed of accordingly. No costs.