STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & ORS. ETC.

Shiksha Mitras to whom the benefit of regularization has A been granted neither fulfilled the prescribed minimum qualifications nor were they appointed against sanctioned posts. The fact that Shiksha Mitras did not fulfill the qualifications prescribed by NCTE which has the unquestioned jurisdiction under the NCTE Act of 1993 and B RTE Act of 2009 is evident from the fact that the State Government, by inserting Rule 16-A into the Rules of 2011 has assumed to itself a power to relax the minimum qualifications required to be observed, in the case of Shiksha Mitras. In other words, by Rule 16-A, the State Government has created gn island of exclusion for the benefit of Shiksha C Mitras who, in the exercise of the rule-making power of the State under Rule 16-A, would not have to fulfill the minimum qualifications prescribed by NCTE. The State Government has sought to get over the inseparable obstacle that the Shiksha Mitras do not fidjlll the TET requirement by D unlm1jully conferring power on itse~f to relax the requirement. Having committed that illegality, the State has proceeded to do away with the TET qualification in its application to Shiksha Mitras, by unlawfidly amending the service rules. These amendments have been held to be ultra vires and an impermissible encroachment on the exclusive E domain of NCTE. Having done this the State Government has compounded its illegality by regularizing/absorbing the Shiksha Mitras as Assistant Teachers. As a consequence, qualified candidates fulfilling the NCTE norms are denied the equality of opportunity to seek appointment as Assistant F Teachers. We have earlier held Rule 16-A to be ultra vires the rule-making authority of the State Government since the power to grant a relaxation ji'Om the minimum qualifications is vested exclusively in the Central Government. In assuming to itself a power to relax the minimum qualification and thereafter by diluting the minimum qualifications in the case G of Shiksha Mitras, the State Government has patently acted in a manner which is arbitrary, ultra vires the governing central legislation and in breach of the restraint on the limits of its own statutory powers. By this exercise, the State Government has sought to grant regularization to persons H

476 SUPREME COURT REPORTS [2017] 10 S.C.R.

A who failed to fulfill the minimum qualifications and who were never appointed against sanctioned posts. In these circumstances, the grant of largesse by the State Government to Shiksha Mitras cannot be upheld and the amendment to the Rules is ultra vires and unconstitutional. B

103. Jn the present case, it is evident that the Shiksha Mitras do not fulfill any of the norms laid down by the Supreme Court for regular absorption into the service of the State. They were at all material times appointed as and continued to be engaged as contractual appointees. Their appointments c were not against sanctioned posts. They did not fulfill the minimum qualifications required for appointment as Assistant Teachers."

21Copy pinpoint21. We are in agreement with the above findings. In view of clear mandate oflaw statutmily requiring minimum qualification for appointment of teachers to be appointed after the date of Notification dated 23'd August, 2010, there is no doubt that no appointment was permissible without such qualifications. Appointments in the present case are clearly after the said date. Relaxation provision could be invoked for a limited period or in respect of persons already appointed in terms of applicable rules relating to qualifications. The Shiksha Mitras in the present case do not fall in the category of pre 23'd August, 2010 Notification whose appointment could be regularized.

22Copy pinpoint22. Further difficulty which stares one in the face is the law laid down by this Court on regularization of contractually appointed persons in public employment. Appointment of Shiksha Mitras was not only contractual, it was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers. Thus_, they could not be regularized as teachers. Regularization could only be of mere irregularity. The exceptions carved out by this Court do not apply to the case of the present nature. G

23Copy pinpoint23. In view of our conclusion that the Shiksha Mitras were never appointed as teachers as per applicable qualifications and are not covered 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 the qualifications. H

STATE OF U.P. & ANR. ETC. v. ANAND KUMAR YADAV & 477 ORS. ETC. [ADARSH KUMAR GOEL, J.]

24Copy pinpoint24. Since, we have given full hearing to all Shiksha Mitras through · A their respective counsel, it is not necessary to consider the argument of breach of procedure under Order [ Rule 8 CPC.

25Copy pinpoint25. On the one hand, we have the claim of l.78 Lakhs persons to be regularized in violation oflaw, on the other hand is the duty to uphold the rnle of law and also to have regard to the right of children in the age of 6 to 14 years to receive quality education from duly qualified teachers. Thus, even iffor a stop gap arrangement teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed. It may be permissible to give some weightage to the experience of Shiksha Mitras or some age relaxation may be possible, mandatory qualifications cannot be dispensed with. Regularization of Shiksha Mitras as teachers was not permissible. In view of this legal position, our answers are obvious. We do not find any error in the view taken by the High Court.

26Copy pinpoint26. Question now is whether in absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference. In the peculiar fact situation, they ought to be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in terms of advertisements for recruitment for next two consecutive recruitments. They may also be given suitable. age relaxation and some wcightage for their experience as may be decided by the concerned authority. Till they avail of this oppo11unity, the State is at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides.

27Copy pinpoint27. Accordingly, we uphold the view of the High Court subject to above observations. All the matters will stand disposed ofaccordingly. F Kalpana K. Tripathy Appeals and Writ Petitions dispo-scd of.