ALLAHABAD HIGHCOURT : 72825 सहायक अध्यापकों की भर्ती प्रक्रिया समाप्त, शिक्षामित्रों के समायोजन की याचिका हाईकोर्ट से खारिज

72825 सहायक अध्यापकों की भर्ती प्रक्रिया पूरी होने पर कोर्ट ने मांग की नामंजूर

इलाहाबाद हाईकोर्ट ने बेसिक शिक्षा परिषद के प्राथमिक विद्यालयों में 72825 सहायक अध्यापकों की भर्ती में रिक्त सीटों पर उन शिक्षा मित्रों को समायोजित करने की मांग को नामंजूर कर दिया है, जिन्होंने सहायक अध्यापक पद की न्यूनतम अर्हता पूरी कर ली है। यह आदेश न्यायमूर्ति अश्विनी कुमार मिश्र ने विकल प्रताप सिंह व अन्य की याचिका पर दिया है।

याचिका में कहा गया कि याचीगण जिन विद्यालयों में पढ़ा रहे हैं उसी में उनकी सेवाएं सहायक अध्यापक के तौर पर निरंतर रखी जाए। याचिका में कहा गया कि याचीगण सहायक अध्यापक पद की अर्हता पूरी करते हैं। न्यायालय ने कहा कि 72825 सहायक अध्यापकों की भर्ती प्रक्रिया समाप्त हो चुकी है। इस आधार पर याचिका को खारिज कर दिया है।

HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 58 

Case :- WRIT - A No. - 9252 of 2018 

Petitioner :- Vikal Pratap Singh And 11 Ors. 

Respondent :- State Of U.P. And 4 Ors. 

Counsel for Petitioner :- Alok Kumar Yadav,Jigyasa Singh,Sr. Advocate Sri Shashi Nandan 

Counsel for Respondent :- C.S.C.,Bharat Pratap Singh,Yatindra 

Hon'ble Ashwani Kumar Mishra,J. 

Petitioners, who are 12 in numbers have approached this Court by filing the present writ petition, for a direction in the nature of mandamus commanding the respondents to continue their services on the post of Assistant Teacher, in their respective schools, and pay their salary month to month as such when it falls due. 

It transpires from the record that petitioners were initially appointed as Shiksha Mitra pursuant to scheme of the State in different years from 2004-06. They were subsequently absorbed on the post of Assistant Teacher after an amendment was made in 2014 in the U.P. Basic (Teacher) Service Rules, 1981, permitting Shiksha Mitra also to be considered for the purposes of absorption/appointment to the post of Assistant Teacher. 

The issue relating to legality of appointment of Shiksha Mitra and their subsequent absorption came up for consideration before a Full Bench of this Court in Anand Kumar Yadav and others Vs. Union of India and others. By a detailed judgment dated 12th September, 2015, Full Bench of this Court held the initial engagement of Shiksha Mitra and their subsequent absorption on the post of Assistant Teacher to be hit by the constitutional principles laid in Articles 14 and 16 of the Constitution of India. 

The Full Bench Judgment of this Court was assailed before the Apex Court in a bunch of civil appeals with leading Civil Appeal No.9529 of 2017 (State of U.P. and other Vs. Anand Kumar Yadav and others.). The Judgment of this Court has been affirmed and the Civil appeals have been disposed of by making the following observations in para 25 to 27 of the judgment, which reads as under:- 

25. On the one hand, we have the claim of 1.78 lakhs persons to be regularized in violation of law, on the other hand is the duty to uphold the rule 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 if for a stop gap arrangement teaching may be by unqualified teacher, 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. 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. 

26. 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 weightage for their experience as may be decided by the concerned authority. Till they avail of this opportunity, 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. 

27. Accordingly, we uphold the view of the High Court subject to above observations. All the matters will stand disposed of accordingly. 

Learned counsel for the petitioners submits that the basic reason assigned for non-suiting the Shiksha Mitra was the fact that they did not posses TET qualification in terms of NCTE Regulation dated 23.08.2010. It is contended that since the petitioners had obtained TET qualification prior to their absorption in 2014, as such their absorption on the post of Assistant Teacher was not bad for want of requisite qualification. It is contended that this aspect of the matter has not been considered, and therefore, the petitioners are entitled to continue. It is also submitted that by virtue of subsequent notification issued by NCTE, the time to obtain TET qualification has otherwise been extended till the year 2019. 

The petition is opposed by Sri Vivek Rai, learned Additional Chief Standing Counsel, Sri Bharat Pratap Singh and Sri Yatindra, learned counsel for the respondents, contending that the very scheme of engagement of Shiksha Mitra was analysed extensively by the Full Bench and it was found that such engagement itself was contractual, and was not in keeping with the mandate of Articles 14 and 16 of the Constitution of India. It is pointed out that on account of such engagement as Shiksha Mitra, petitioners were permitted to undertake teachers' training qualification on preferential basis, which led to their passing the TET qualification. It is stated that once the initial engagement is found illegal the foundation itself stands shaken, and all subsequent qualifications obtained on the strength of petitioners engagement as Shiksha Mitra would not be of any avail for the purpose of their absorption on the post of Assistant Teacher. 

Learned counsel for the petitioners has heavily relied upon the observations of the Hon'ble Supreme Court contained in para-21 of the judgment which is reproduced hereinafter: 

21. "We are in agreement with the above findings. In view of clear mandate of law statutorily requiring minimum qualification for appointment of teachers to be appointed after the date of Notification dated 23rd 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 23rd August, 2010 Notification whose appointment could be regularized." 

If the observation made in para-21 is examined in isolation, the argument advanced by the learned counsel for the petitioners may appear attractive, but would not merit any consideration once the judgment is examined in its entirety. It is not just due to lack of qualification that Shiksha Mitra have been non-suited. Their absorption on the post of Assistant Teacher is otherwise found to be in teeth of Article 14 of the Constitution of India, rendering their continuance impermissible in law. 

The Full Bench of this Court after examining the scheme and the statutory Regulations operating, observed as under in para-101 and 103 of the Judgment:- 

"101. The Central Government has exercised powers under sub-section (2) of Section 23 on 10 September 2012. The Union Ministry of Human Resource Development, in its notification, has granted a relaxation until 31 March 2014 only in respect of persons referred to in sub-clause (a) of Clause (1) of Para 3 of the notification dated 23 August 2010 as amended. This category covers persons with BA/BSc degrees with at least fifty percent marks and holding a BEd qualification. While issuing a notification on 10 September 2012 for the purpose of relaxing the qualifications Shiksha Mitras to whom the benefit of regularization has 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 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 an island of exclusion for the benefit of Shiksha 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 fulfill the TET requirement by unlawfully conferring power on itself 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 unlawfully amending the service rules. These amendments have been held to be ultra vires and an impermissible encroachment on the exclusive 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 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 from 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 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 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. 

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103. In 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 were not against sanctioned posts. They did not fulfill the minimum qualifications required for appointment as Assistant Teachers." 

The aforesaid observations of the Full Bench finds specific approval of the Apex Court in para-22 and 23, which are reproduced:- 

"22.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 of mere irregularity. The exceptions carved out by this Court do not apply to the case of the present nature. 

23. In view of our conclusion that the Shiksha Mitra 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." 

Once the petitioners' initial engagement as Shiksha Mitra was found to be contractual, and not as per the qualification prescribed for a teacher, nor was it against any sanctioned post, all subsequent benefits secured would not place them at par with a regularly recruited Assistant Teacher. It be noticed at this stage that qualification during 2004-06 for the post of Assistant Teacher was graduate with training qualification. This qualification admittedly was not possessed by the petitioners at the time of their appointment as Shiksha Mitra. Petitioners subsequent grant of training and their TET certificate were also based upon their initial engagement as Shiksha Mitra, inasmuch as they had not secured admission to teachers training qualification and cleared TET in open category. They have not competed on the basis of their qualifications, bereft of privileges extended as Shiksha Mitra, in open competition. 

In view of the authoritative pronouncement on the subject by the Hon'ble Apex Court, the petitioners cannot be permitted to continue as Assistant Teachers. The petitioners are also not right in contending that certain aspects of the matter, as have been urged before this Court, have escaped from consideration by the Full Bench or by the Apex Court. All Shiksha Mitra who have acquired qualification, or acquire such qualification for the appointment of Assistant Teachers, have been given an opportunity to appear in terms of advertisement in recruitment for the next two consecutive year, so as to make their induction consistent with Article 14 of the Constitution of India. 

Before concluding with the judgment, I may also refer to the judgment of Apex Court in� Forward Construction & Ors. Etc. Vs. Prabhat Mandal (Regd.) Andheri & Ors. Etc., reported in AIR 1986 SC 395, which lays down that a plea available in the earlier round of litigation, if not canvassed, cannot be set up in a fresh round of litigation. This principle is based upon� Section 11(4) of the Code of Civil Procedure, principles whereof have been made applicable to writ proceedings also. 

For all the reasons stated hereinabove, writ petition fails, and, is� dismissed.� No order as to costs. 

Order Date :- 4.4.2018/Ashutosh