Ram Sharan Maurya and Others vs State of U.P. and Others

Recruitment – To the post of Assistant Teacher of Junior Basic School – By judgment in *Anand Kumar Yadav case ‘Shiksha Mitras’ were given opportunity to be considered for next two recruitments to the post of Assistant Teacher – State amended U.P. Basic Education (Teachers) Service Rules, 1981 making ‘Shiksha Mitras’ eligible for appointment to the post of Assistant Teachers of Junior Basic Schools – Qualification for the same included passing of Teachers Eligibility 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% – Candidates were selected for appointment – National Council for Teachers Education by Notification dated 28.6.2018 laid down that candidates holding B.Ed. degree could be entitled to be appointed as teacher for classes I to V provided they undergo six months bridge course – Rules 1981 were subsequently amended in terms of the NCTE Notification dated 28.6.2018 with retrospective effect – Thereafter ATRE-2019 was notified for filling up 69000 vacancies for Assistant Teachers – The same was conducted without notifying minimum qualifying marks – After conducting the exam, State prescribed minimum qualifying marks i.e. 65% for General category and 60% for all other reserved categories – Writ petitions filed by ‘Shiksha Mitras’ assailing fixation of minimum qualifying marks – Single Judge of High Court allowed the wirt petition filed by ‘Shiksha Mitras’ – In appeal, Division Bench of High Court reversed the order of Single Judge – Appeal to Supreme Court – Held: NCTE is entitled to lay down the norms for appointment of teachers for classes I to V – Such prescription is binding on the State – Amendment of 1981 Rules has to be read in confirmity with the NCTE Notification dated 28.6.2018 – The eligibility norms having already been conferred by Notification dated 28.6.2018, amendments to 1981 Rules with retrospective effect cannot be said to have conferred eligibility norms for the first time – Therefore, B.Ed. candidates were rightly allowed to participate in the selection process – Cut-off marks for ATRE-2019 at 65-60% cannot be termed as exclusionary or illegal as the same was designed to garner the best talent which is in consistence with the objectives of RTE Act – Government is empowered to lay down minimum marks from time to time – Such power can be exercised even after the examination is over, provided such exercise is not actuated by any malice or ill-will – National Council for Teachers Education Act, 1993 – Right to Education Act, 2005 – Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 – Rules 2(1)(x), 8 and 14.

Dismissing the appeals preferred by Shiksha Mitras, exservicemen and persons with disability and disposing of those filed by B.Ed./B.T.C. candidates, the Court

HELD : 1.1 In Teachers’ Eligibility Test (TET) examination held in March, 2018, out of 3,86,000 qualified candidates, Shiksha Mitras were 40,000 only; meaning thereby that a large number of candidates other than Shiksha Mitras had been declared qualified. Paragraph 4(2) of G.O. dated 01.12.2018, referred to certain 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 ensuing selection process, considerable number of B.Ed. candidates would participate. In this background, the absence of any challenge to the entitlement of B.Ed. candidates to participate in the process and to appear at Assistant Teacher Recruitment Examination2019 (ATRE-2019) is crucial. [Para 37][530-B-D]

1.2 Going by the Parliamentary intent in empowering NCTE under the provisions of the National Council for Teachers Education Act, 1993 (NCTE Act) and specific authorization in favour of NCTE under the Notification dated 31.03.2010, the authority of NCTE is beyond any doubt. Though there is no specific regulation as contemplated under Section 32 read with Sections 12 and 12A of the NCTE Act, for the present purposes by virtue of the specific authorization under the Notification dated 31.03.2010, NCTE was entitled to lay down that those holding the qualification of ‘Bachelor of Education’ as detailed in said Notification are entitled to be appointed as teachers for classes I to V. Such prescription on part of the NCTE would be binding. It is for this reason that G.O. dated 01.12.2018 notifying ATRE2019 clearly stated that the candidates possessing minimum qualifications specified in Notifications issued by the NCTE including one dated 28.06.2018 were entitled to participate in ATRE-2019. [Para 41][534-E-H]

1.3 The Notification dated 28.06.2018 being binding on the State Government, the statutory regime put in place by the State has to be read in conformity with said Notification. The eligibility or entitlement being already conferred by Notification dated 28.06.2018, the amendments to Uttar Pradesh basic Education (Teachers) Service Rules, 1981 (1981 Rules) were effected only to make the statutory regime consistent with the directives issued by the NCTE. The right or eligibility was not conferred by amendments effected to 1981 Rules for the first time and therefore the element of retrospectivity present in the concerned amendments has to be read in that perspective. The intent behind those amendments was not to create a right for the first time with retrospective effect but was only to effectuate the statutory regime in tune or accord with NCTE directives. Theoretically, even if such statutory regime was not made so consistent, the concerned candidates holding B.Ed. degrees could still be eligible and could not have been denied candidature for ATRE-2019. [Para 43][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 classes I to V, provided they undergo a six months’ Bridge Course, the stipulation in 1981 Rules (before 23rd Amendment) that they must first be appointed as trainee teachers must give way to that under the Notification dated 28.06.2018. Said stipulation in 1981 Rules cannot be considered as an additional norm. It ran completely counter to that under the Notification dated 28.06.2018 which is why the Amendment in that behalf was given retrospective effect to bring in consistency. The B.Ed. candidates were rightly allowed to participate in the instant selection process. [Paras 45 and 46][536-E-H]

P. Mahendran and others etc. v. State of Karnataka and others (1990) 1 SCC 411 : [1989] 2 Suppl. SCR

385 ; Madan Mohan Sharma and another v. State of Rajasthan and others (2008) 3 SCC 724 : [2008] 3 SCR 232 – held inapplicable.

State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra 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] 2 SCR 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-2018 was 38.83%. The percentage of qualifying candidates in ATRE2019 was 37.62%, which was almost equal to that in ATRE-2018. However, the number of qualified candidates in ATRE-2018 was less than the number of vacancies; while even with the cut off at 65-60% the number of qualified candidates in the present selection i.e. ATRE-2019 was far in excess of the number of posts. These figures give indications about the nature and the difficulty level of the examinations and show that even with cut off at 6560%, 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 marks were identical in both i.e. ATRE-18 and ATRE-19, the nature of ATRE-2019 was entirely different. The nature and the difficulty level of both the examinations were different. Therefore it must be accepted that there could be different parameters regarding minimum qualifying marks for ATRE-2019. [Para 50][538-D-F]

2.3 All the candidates including Shiksha Mitras who appeared in ATRE 2018 formed one class while those who appeared in ATRE 2019 formed another class. There cannot be inter se connection or homogeneity between candidates appearing in one examination or selection with those appearing in another examination or selection. The candidates would undoubtedly compete with each other in the same examination on a para meter which applies to all of them equally. But to say that Shiksha Mitras who appeared in ATRE-2019 must be allowed equality with candidates of ATRE-2018, who were part of a different selection process would be incorrect and illogical. The basic norms of ATRE-2019 must be tested on their own and cannot depend upon para meters or norms on the basis of which ATRE-2018 was held. Otherwise the integrity of the examination process will get defeated and nullified. [Para 51][538-F-H; 539-A-B]

2.4 The object of giving opportunities to Shiksha Mitras was to ensure that they were given fair chance to compete with others so that the best of the lot would be available to take care of primary education in the State. Therefore, it is not correct to say that there should not be a different yardstick for Shiksha Mitras, who had been rendering service as teachers, as against what 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 best available talent. Even with this qualifying norm, the percentage of qualified candidates 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 excess of the vacancies required to be filled up. Thus, cut off at 65-60% level in the present case, by itself cannot be termed as incorrect or illegal exercise of power. [Para 53][541-B-C]

2.6 Though as a result of the 22nd Amendment, passing of ATRE ceased to be part of Rule 8, the requirement was specifically retained in Rule 14 of 1981 Rules. Further, 60% of the marks scored by a candidate in ATRE, in terms of Appendix I read with Rule 14(2) would go in determining quality points to prepare the merit list. The major portion of quality points being directly relatable to the performance in ATRE, mere fixation at 65-60% level which applied to all the candidates across the board cannot be said to be exclusionary, nor was it intended to deprive the Shiksha Mitras of the advantage of weightage for experience. ATRE featured as the common platform on the basis of which individual merit of various candidates could be tested, which is why a major portion of allocable quality points was assigned to the performance in ATRE. In the circumstances, the performance in ATRE-2019 was given adequate and due weightage by fixation of 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 ATRE2019 was perfectly valid and justified. Considering the large number of candidates who appeared at 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 endeavour on part of the State in attempting to secure the best of the teachers was therefore fully justified. The right to education guaranteed in terms of Article 21A of the Constitution would envisage quality education being imparted to the children which in turn, would signify that the teachers must be meritorious and the best of the lot. Any process which applied equally to all the candidates and was designed to garner the best talent, cannot be called arbitrary or 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 marks of ATRE are such minimum marks as may be determined ‘from time to time’ by the Government. Clause (C) of Rule 14 of 1981 Rules lays down that a candidate must have ‘passed Assistant Teacher Recruitment Examination conducted by the Government’. Thus, one of the basic requirements for being considered to be appointed as an Assistant Teacher under 1981 Rules is passing of ATRE with such minimum marks as may be determined by the Government. Unlike para 7 of the Guidelines for ATRE-2018 which had spelt out that a candidate must secure minimum of 45% or 40% marks (for ‘general’ and ‘reserved’ categories respectively) for passing ATRE-2018, no such stipulation was available in G.O. dated 01.12.2018 notifying ATRE-2019. Though, the minimum qualifying marks were set out in the Guidelines for ATRE-2018, it is not the requirement of 1981 Rules that such stipulation must be part of the instrument notifying ATRE. By very nature of entrustment, the Government is empowered to lay down minimum marks ‘from time to time’. If this power is taken to be conditioned with the requirement that the stipulation must be part of the instrument notifying the examination, then there was no such stipulation for ATRE-2019. Such reading of the rules will lead to somewhat illogical consequences. On one hand, the relevant Rule requires passing of ATRE while, on the other hand, there would be no minimum qualifying marks prescribed. A reasonable construction on the relevant rules would therefore imply that the Government must be said to be having power to lay down such minimum qualifying marks not exactly alongside instrument notifying the examination but at such other reasonable time as well. [Para 60][552-E-H; 553-A-B]

3.2 In the present case, the requirement in terms of Rule 2(1)(x) read with Rule 14 is that the minimum qualifying marks as stipulated by the Government must be obtained by a candidate to be considered eligible for selection as Assistant Teacher. It was thus always contemplated that there would be some minimum qualifying marks. What was done by the Government by virtue of its orders dated 07.01.2019 was to fix the quantum or number of such minimum qualifying marks. The candidate had to pass ATRE-2019 and he must be taken to have known that there would be fixation of some minimum qualifying marks for clearing ATRE2019. [Para 61][553-E-H; 554-A]

3.3 If the Government has the power to fix minimum qualifying marks ‘from time to time’, there is nothing in the Rules which can detract from the exercise of such power even after the examination is over, provided the exercise of such power is not actuated by any malice or ill will and is in furtherance of the object of finding the best available talent. [Para 63][554-E-F] Municipal Corporation of Delhi vs. Surender Singh and others (2019) 8 SCC 67; Jharkhand Public Service Commission vs. Manoj Kumar Gupta (2020) 1 SCALE

504 – relied on.

3.4 If the ultimate object is to select the best available talent and there is a power to fix the minimum qualifying marks, in keeping with the law laid down by this Court, there is no illegality or impropriety in fixation of cut off at 65-60% vide order dated 07.01.2019. The facts on record indicate that even with this cut off, the number of qualified candidates is more than twice the number of vacancies available. [Para 64][555-A-C]

State of Haryana vs. Subash Chander Marwaha and others (1974) 3 SCC 220 : [1974] 1 SCR 165; State of U.P. etc. v. Rafiquddin and others etc. 1987 (Supp) SCC

401 : [1988] SCR 794 – relied on.

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

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

State of Haryana vs. Subash Chander Marwaha and others (1974) 3 SCC 220: [1974] 1 SCR 165; State of U.P. etc. v. Rafiquddin and others etc. 1987 (Supp) SCC 401: [1988] 1 SCR 794 – relied on.

K. Manjusree vs. State of Andhra Pradesh and another (2008) 3 SCC 512: [2008] 2 SCR 1025; Hemani

Malhotra etc. vs. High Court of Delhi (2008) 7 SCC 11: [2008] 5 SCR 1066 – distinguished.

P.K. Ramachandra Iyer and others v. Union of India and others (1984) 2 SCC 141: [1984] 2 SCR 200; Umesh Chandra Shukla v. Union of India and others (1985) 3 SCC 721: [1985] 2 Suppl. SCR 367;

Durgacharan Misra v. State of Orissa (1987) 4 SCC 646: [1987] 3 SCR 1097; Maharashtra State Road Transport Corporation and others v. Rajendra Bhimrao Mandve and others (2001) 10 SCC 51; Tej Prakash Pathak and others vs. Rajasthan High Court and others (2013) 4 SCC 540; Yogesh Yadav vs. Union of India and others (2013) 14 SCC 623: [2013] 8 SCR 194; Salam Samarjeet Singh v. High Court of Manipur at Imphal and another (2016) 10 SCC 484: [2016] 9 SCR 771; Sivanandam C.T. and others v. High Court of Kerala and others (2018) 1 SCC 239: [2017] 13 SCR 226; Municipal Corporation of Delhi v. Surender Singh and others (2019) 8 SCC 67; Jharkhand Public Service Commission v. Manoj Kumar Gupta (2020) 1 SCALE

504 – referred to.

4. Consequently, the challenge at the instance of Shiksha Mitras in all these matters, is negated and the appeals preferred by Shiksha Mitras are dismissed. The appeal preferred by the Association of Shiksha Mitras also prayed for absorption of Shiksha Mitras. Such a prayer cannot be granted in view of the pronouncement of the decision of this Court in *Anand Kumar Yadav. Said appeal is, therefore, dismissed. However, one more opportunity shall be afforded to Shiksha Mitras to compete in the next selection. It is left to the discretion of the State Government to consider the manner and the modalities in which such opportunity can be availed of. [Paras 66 and 67][555-E-H]

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

6. Similarly, Writ Petition and appeals arising out of petitions preferred by B.Ed./B.T.C. candidates as well as Contempt Petition and all Intervention Applications also stand disposed of in same terms. [Para 68][556-C]

7. The State Government shall now be entitled to fill up all the concerned posts in terms of the result declared on 12.05.2020 and in accordance with law. [Para 69][556-C-D] *State of U.P. and another vs. Anand Kumar Yadav and others (2018) 13 SCC 560 : [2017] 10 SCR 428 – referred to.