A.F.R. RESERVED ON 22.02.2019 DELIVERED ON 29.03 · Singh Bhadauriya,Upendra Nath Misra Counsel for...

A.F.R.

RESERVED ON 22.02.2019

DELIVERED ON 29.03.2019

1. Case :- SERVICE SINGLE No. - 1188 of 2019Petitioner :- Mohd. Rizwan & OthersRespondent :- State Of U.P. Thru. Prin. Secy. Basic Education, Lko &Ors.Counsel for Petitioner :- Amit Kr. Singh Bhadauriya,Upendra Nath MisraCounsel for Respondent :- C.S.C.,Ajay Kumar,Amrendra Nath Tripathi,Anand Mani Tripathi,Durga Prasad Shukla,Manoj Kumar Awasthi,Pradeep Shukla,Prashant Chandra Sr Adv,Ran Vijai Singh,Ravi Kishore Joshi

CONNECTED WITH

2. Case :- SERVICE SINGLE No. - 1389 of 2019Petitioner :- Ram Sharan Maurya And 276 Ors.Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha Lucknow & OrsCounsel for Petitioner :- Laltaprasad Misra,Avdhesh ShuklaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kr. Awasthi

WITH

3. Case :- SERVICE SINGLE No. - 1343 of 2019Petitioner :- Rajendra Prasad Misra & Ors.Respondent :- State Of U.P. Special Secy. Basic Shiksha Anubhag Iv & Ors.Counsel for Petitioner :- Meenakshi Singh Parihar,Anshuman Singh RathoreCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

4. Case :- SERVICE SINGLE No. - 2720 of 2019Petitioner :- Vandana Singh & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.Counsel for Petitioner :- Agnihotri Kumar Tripathi,Sushil Prakash PandeyCounsel for Respondent :- C.S.C.,Ajay Kumay,Manoj KumarAwasthi

5. Case :- SERVICE SINGLE No. - 1383 of 2019Petitioner :- Santosh Kumar Singh And Ors.Respondent :- State Of U.P.Thru Spl.Secy.Basic Education And Ors.Counsel for Petitioner :- Anand Pal Singh,Anshuman Singh Rathore

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Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K.Awasthi

WITH

6. Case :- SERVICE SINGLE No. - 1386 of 2019Petitioner :- Sushil Kumar Awasthi & Ors.Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha & Ors.Counsel for Petitioner :- Rajeev Kumar Srivastava,Anshuman Singh RathoreCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

7. Case :- SERVICE SINGLE No. - 1367 of 2019Petitioner :- Km. Renu Singh & Ors.Respondent :- State Of U.P. Addl. Chief Secy. Basic Education & Ors.Counsel for Petitioner :- Nand Kishore Patel,Sanjay KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

8. Case :- SERVICE SINGLE No. - 1366 of 2019Petitioner :- Paras Nath Verma And 338 Ors.Respondent :- State Of U.P.Thru Addl.Secy.Basic Education And Ors.Counsel for Petitioner :- Onkar Singh Kushwaha,Himanshu RagahaveCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

9. Case :- SERVICE SINGLE No. - 1390 of 2019Petitioner :- Shweta Singh & Anr.Respondent :- State Of U.P. Special Secy. Basic Shiksha Anubhag Iv &Ors.Counsel for Petitioner :- Meenakshi Singh PariharCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

10. Case :- SERVICE SINGLE No. - 1408 of 2019Petitioner :- Narendra Singh & Ors.Respondent :- State Of U.P. Thru Prin Secy Basic Education & Ors.Counsel for Petitioner :- Shailesh Tripathi,OmkarCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

11. Case :- SERVICE SINGLE No. - 1458 of 2019Petitioner :- Harikesh Kumar Singh & Ors.

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Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.Counsel for Petitioner :- Lakshmana SinghCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

12. Case :- SERVICE SINGLE No. - 1508 of 2019Petitioner :- Anurag Kumar Yadav & Ors.Respondent :- State Of U.P. Thru Prin. Secy Basic Education Deptt. & Ors.Counsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

13. Case :- SERVICE SINGLE No. - 1564 of 2019Petitioner :- Shobha Yadav & OthersRespondent :- State Of U.P. Thru. Prin. Secy. Basic Education Lko & OthersCounsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

14. Case :- SERVICE SINGLE No. - 1569 of 2019Petitioner :- Kapil Dev Yadav & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Basic Education Deptt. &Ors.Counsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

15. Case :- SERVICE SINGLE No. - 1580 of 2019Petitioner :- Uttam Kumar & OthersRespondent :- State Of U.P. Thru. Prin. Secy. Basic Education Lko & OthersCounsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

16. Case :- SERVICE SINGLE No. - 1588 of 2019Petitioner :- Virendra Kumar & OthersRespondent :- State Of U.P. Thru. Prin. Secy. Basic Education Lko & OthersCounsel for Petitioner :- Avdhesh Shukla,Pramod Kumar Verma

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Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

17. Case :- SERVICE SINGLE No. - 1595 of 2019Petitioner :- Kanhiya Bux Singh & OthersRespondent :- State Of U.P. Thru. Prin. Secy. Basic Education Lko & OthersCounsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

18. Case :- SERVICE SINGLE No. - 1599 of 2019Petitioner :- Deepika Mishra & Ors.Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha Anubhag 2 & Ors.Counsel for Petitioner :- Badrish Kumar TripathiCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

19. Case :- SERVICE SINGLE No. - 1601 of 2019Petitioner :- Pradeep Kumar Yadav & OthersRespondent :- State Of U.P. Thru. Prin. Secy. Basic Education Lko & OthersCounsel for Petitioner :- Sukh Deo Singh,Paritosh ShuklaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

20. Case :- SERVICE SINGLE No. - 1604 of 2019Petitioner :- Kamlesh Kumar & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.Counsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

21. Case :- SERVICE SINGLE No. - 1619 of 2019Petitioner :- Lalita Tiwari & OthersRespondent :- State Of U.P. Thru. Secretary Basic Education & OthersCounsel for Petitioner :- Vinod KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

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22. Case :- SERVICE SINGLE No. - 1621 of 2019Petitioner :- Shiv Narayan Verma & OthersRespondent :- State Of U.P. Thru. Prin. Secy. Basic Education, Lko & Ors.Counsel for Petitioner :- Ajai Vikram,Sunil KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

23. Case :- SERVICE SINGLE No. - 1622 of 2019Petitioner :- Neeraj Yadav & OthersRespondent :- State Of U.P. Thru. Prin.Secy.Basic Education & OthersCounsel for Petitioner :- Manendra Nath Rai,Uzma AfsarCounsel for Respondent :- C.S.C.,M.K. Awasthi

WITH

24. Case :- SERVICE SINGLE No. - 1623 of 2019Petitioner :- Awadhesh Kumar Tiwari And Ors.Respondent :- State Of U.P.Throu.Prin.Secy.Basic Shiksha Lko.And Ors.Counsel for Petitioner :- Kalika Prasad Pandey,Pawan Kumar Pandey,Pravesh YadavCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

25. Case :- SERVICE SINGLE No. - 1610 of 2019Petitioner :- Geeta Jaiswal And Ors.Respondent :- State Of U.P.Throu.Spl.Secy. Basic Shiksha Lko.And Ors.Counsel for Petitioner :- Sharad Pathak,Preeti MalaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kr. Awasthi

WITH

26. Case :- SERVICE SINGLE No. - 1624 of 2019Petitioner :- Rajendra Prasad & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Basic Education Deptt. &Ors.Counsel for Petitioner :- Sanjay Kumar Singh,Bipin Kumar Rai,Kuldeep Singh KalhansCounsel for Respondent :- C.S.C.,Manoj Kumar Awasthi

WITH

27. Case :- SERVICE SINGLE No. - 1625 of 2019Petitioner :- Suman DeviRespondent :- State Of U.P. Thru Prin.Secy. Basic Edu. Lucknow And

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Ors.Counsel for Petitioner :- Ashok Kumar YadavaCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

28. Case :- SERVICE SINGLE No. - 1647 of 2019Petitioner :- Raj KumarRespondent :- State Of U.P. Thru. Prin. Secy. Basic Education, Lko & Ors.Counsel for Petitioner :- Anil Kumar PandeyCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

29. Case :- SERVICE SINGLE No. - 1648 of 2019Petitioner :- Nagendra Singh And 40 Ors.Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha Lko. & Ors.Counsel for Petitioner :- Harjot Singh,Ajai Kumar,Saurabh Goswami, Vivek Kumar RaiCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

30. Case :- SERVICE SINGLE No. - 1656 of 2019Petitioner :- Mukta Singh & Ors.Respondent :- State Of U.P. Special Secy. Basic Shiksha Anubhag-2 & Ors.Counsel for Petitioner :- Piyush Mishra,Manushresth MisraCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

31. Case :- SERVICE SINGLE No. - 1662 of 2019Petitioner :- Ravindra Kumar & Ors.Respondent :- State Of U.P. Thru Addl. Chief Secy. Basic Education &Ors.Counsel for Petitioner :- Pramod Kumar Pandey,Sanjay Kumar Verma, VimalYadavCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

32. Case :- SERVICE SINGLE No. - 1769 of 2019Petitioner :- Bechha Lal Yadav & Ors.Respondent :- State Of U.P. Thru Secy. Shiksha Anubhag-2 & Ors.Counsel for Petitioner :- Pt. S. Chandra,Vinod Kumar Gupta

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Counsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi,Om Prakash Mani Tripathi

WITH

33. Case :- SERVICE SINGLE No. - 1784 of 2019Petitioner :- Geeta Devi & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.Counsel for Petitioner :- Jay Prakash SinghCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

34. Case :- SERVICE SINGLE No. - 1876 of 2019Petitioner :- Suchit Kumar & Ors.Respondent :- State Of U.P. Thru. Spl.Secy. Basic Education & Ors.Counsel for Petitioner :- Rajesh Kumar PathakCounsel for Respondent :- M.K.Awasthi,Ajay Kumar

WITH

35. Case :- SERVICE SINGLE No. - 1664 of 2019Petitioner :- Guddu Singh & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Primary Education & Ors.Counsel for Petitioner :- Dinesh Kumar,Avadhesh Kumar Pathak,Ramesh KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

36. Case :- SERVICE SINGLE No. - 1778 of 2019Petitioner :- Anoop Kumar Singh & OthersRespondent :- State Of U.P. Thru. Secy. Basic Shiksha Anubhag-2 & OthersCounsel for Petitioner :- Raj Kr Singh SuryvanshiCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

37. Case :- SERVICE SINGLE No. - 1832 of 2019Petitioner :- Saroj Verma & Anr.Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.Counsel for Petitioner :- Rajesh Kumar Verma,Aditya Vikram SinghCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

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38. Case :- SERVICE SINGLE No. - 1865 of 2019Petitioner :- Pawan Kumar & Ors.Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha & Ors.Counsel for Petitioner :- Dinesh Kumar Tripathi,Piyush MishraCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

39. Case :- SERVICE SINGLE No. - 1869 of 2019Petitioner :- Ashutosh Pratap Singh & Ors.Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha & Ors.Counsel for Petitioner :- Ram Kumar SinghCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

40. Case :- SERVICE SINGLE No. - 1872 of 2019Petitioner :- Dinesh Kumar & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Primary Education & Ors.Counsel for Petitioner :- Dinesh Kumar,Ramesh KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

41. Case :- SERVICE SINGLE No. - 1875 of 2019Petitioner :- Sudha Yadav & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.Counsel for Petitioner :- Rajesh Kumar Verma,Aditya Vikram SinghCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

42. Case :- SERVICE SINGLE No. - 1666 of 2019Petitioner :- Ravi Kumar Singh & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Primary Education & Ors.Counsel for Petitioner :- Dinesh Kumar,Vijay Kumar AsthanaCounsel for Respondent :- C.S.C.,Ajay Kumay,Manoj Kumar Awasthi

WITH

43. Case :- SERVICE SINGLE No. - 1997 of 2019Petitioner :- Naveen Kumar & Ors.Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha & Ors.Counsel for Petitioner :- Mohit Dwivedi,Himanshu RaghaveCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

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44. Case :- SERVICE SINGLE No. - 2163 of 2019Petitioner :- Manoj Kumar Pandey & Ors.Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha Anubhag Ii &Ors.Counsel for Petitioner :- Himanshu Raghave,Mohit DwivediCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

45. Case :- SERVICE SINGLE No. - 2039 of 2019Petitioner :- Satya Narayan & Ors.Respondent :- State Of U.P. Thru Spl. Secy. Basic Education & Ors.Counsel for Petitioner :- Rajeev Kumar Srivastava,Anshuman Singh RathoreCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

46. Case :- SERVICE SINGLE No. - 2132 of 2019Petitioner :- Ajay Kumar & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Primary Education & Ors.Counsel for Petitioner :- Dharmendra Kumar Gupta,Dinesh KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

47. Case :- SERVICE SINGLE No. - 2243 of 2019Petitioner :- Shiv Murat Yadav & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Basic Shiksha & Ors.Counsel for Petitioner :- Himanshu Hemant Gupta,Akhand Pratap Singh, Naveen Kumar KashyapCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

48. Case :- SERVICE SINGLE No. - 2261 of 2019Petitioner :- Vikas Dubey & Ors.Respondent :- State Of U.P. Thru. Secy. Basic Shiksha Anubhag 2 & Ors.Counsel for Petitioner :- Gyanendra Kumar Pandey,Apoorv PandeyCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

49. Case :- SERVICE SINGLE No. - 2301 of 2019Petitioner :- Rubi Srivastava & Ors.Respondent :- State Of U.P. Thru. Spl. Secy. Basic Shiksha Anubhag 2

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& OrCounsel for Petitioner :- Deo Prakash Srivastava,Puttan SinghCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

50. Case :- SERVICE SINGLE No. - 2312 of 2019Petitioner :- Shweta Singh & Ors.Respondent :- State Of U.P. Thru Spl. Secy. Shiksha Anubhag 2 & Ors.Counsel for Petitioner :- Rakesh Kumar Singh,Pankaj KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

51. Case :- SERVICE SINGLE No. - 2486 of 2019Petitioner :- Nirmala Verma & Ors.Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha & Ors.Counsel for Petitioner :- Piyush Mishra,Vinay Prakash TiwariCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

52. Case :- SERVICE SINGLE No. - 2572 of 2019Petitioner :- Sunil Chaturvedi & Ors.Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha Anubhag 2 & Ors.Counsel for Petitioner :- Sudhir Kumar Pandey,Rama Niwas PathakCounsel for Respondent :- C.S.C.,Manoj Kumar Awasthi

WITH

53. Case :- SERVICE SINGLE No. - 2600 of 2019Petitioner :- Prakash Chandra & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.Counsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

54. Case :- SERVICE SINGLE No. - 2601 of 2019Petitioner :- Arunesh Kumar & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.Counsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

55. Case :- SERVICE SINGLE No. - 3428 of 2019Petitioner :- Daya Ram Pal & Ors.

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Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.Counsel for Petitioner :- Aditya Vikram Singh,Rajesh Kumar VermaCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

56. Case :- SERVICE SINGLE No. - 2928 of 2019Petitioner :- Ved Krishna Tripathi & Ors.Respondent :- State Of U.P. Thru Secy. Basic Education & Ors.Counsel for Petitioner :- Praveen Kumar TripathiCounsel for Respondent :- C.S.C.,Manoj Kumar Awasthi

WITH

57. Case :- SERVICE SINGLE No. - 2603 of 2019Petitioner :- Mansha Ram Maurya & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.Counsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

58. Case :- SERVICE SINGLE No. - 2906 of 2019Petitioner :- Kasi Chandra & Ors.Respondent :- State Of U.P. Thru Spl. Secy. Basic Shiksha, Anubhag 2 & OrsCounsel for Petitioner :- Sri Niwas JaiswalCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

59. Case :- SERVICE SINGLE No. - 2697 of 2019Petitioner :- Rakesh Kumar & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.Counsel for Petitioner :- Rajesh Kumar Verma,Pawan Kumar MisraCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

60. Case :- SERVICE SINGLE No. - 2731 of 2019Petitioner :- Mamta Singh & Ors.Respondent :- State Of U.P.Thru. Special Secy.Basic Shiksha & Ors.Counsel for Petitioner :- Pramod Kumar SinghCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

61. Case :- SERVICE SINGLE No. - 2848 of 2019Petitioner :- Rifa Sayeed

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Respondent :- State Of U.P. Thru. Spl. Secy. Basic Shiksha Anubhag-2& OrsCounsel for Petitioner :- Mohd. Shameem KhanCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

62. Case :- SERVICE SINGLE No. - 2858 of 2019Petitioner :- Rishi Kumar Agnihotri And Ors.Respondent :- State Of U.P. Thru Addl.Chief Secy. Basic Education And Ors.Counsel for Petitioner :- Onkar Singh KushwahaCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K.Awasthi

WITH

63. Case :- SERVICE SINGLE No. - 2943 of 2019Petitioner :- Virendra Kumar & Ors.Respondent :- State Of U.P. Thru Prin. Secy. Basic Education & Ors.Counsel for Petitioner :- Satyendra Kumar TiwariCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

64. Case :- SERVICE SINGLE No. - 3027 of 2019Petitioner :- Rudresh Kumar & Ors.Respondent :- State Of U.P. Thru Addl. Chief Secy. Basic Education &Ors.Counsel for Petitioner :- Nand Kishore Patel,Sanjay KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

65. Case :- SERVICE SINGLE No. - 3069 of 2019Petitioner :- Preeti SinghRespondent :- State Of U.P. Thru. Spl. Secy. Basic Shiksha Anubhag-5& OrsCounsel for Petitioner :- Suresh Chandra Srivastava,Savita TiwariCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

66. Case :- SERVICE SINGLE No. - 3107 of 2019Petitioner :- Neelu Gupta & Ors.Respondent :- State Of U.P. Prin. Secy. Primary Education & Ors.Counsel for Petitioner :- Dinesh KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

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67. Case :- SERVICE SINGLE No. - 3577 of 2019Petitioner :- Deep Shikha MishraRespondent :- State Of U.P. Thru Prin.Secy. Edu. Lucknow And Ors.Counsel for Petitioner :- Ajay Kumar TripathiCounsel for Respondent :- C.S.C.,M.K. Awasthi

WITH

68. Case :- SERVICE SINGLE No. - 3586 of 2019Petitioner :- Rakesh Mohan Tewari And 20 Ors.Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha Lko. & Ors.Counsel for Petitioner :- Anurag MisraCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

69. Case :- SERVICE SINGLE No. - 3545 of 2019Petitioner :- Ashok Kumar Verma And 17 Ors.Respondent :- State Of U.P. Thru Special Basic Shiksha Lucknow And Ors.Counsel for Petitioner :- Piyush Mishra,Dinesh Kumar TripathiCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

70. Case :- SERVICE SINGLE No. - 3621 of 2019Petitioner :- Shiv Ram Yadav And 8 Ors.Respondent :- State Of U.P. Thru Special Secy.Basic Shiksha Lucknow& Ors.Counsel for Petitioner :- Rajeev Kumar Srivastava,Anshuman Singh RathoreCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

71. Case :- SERVICE SINGLE No. - 3622 of 2019Petitioner :- Jagat Pal Yadav And 23 Ors.Respondent :- State Of U.P. Thru Prin.Secy.Shiksha Anubhag-2,And Ors.Counsel for Petitioner :- Satyendra Kumar Mishra,K.P.PandeyCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

72. Case :- SERVICE SINGLE No. - 3673 of 2019Petitioner :- Deshraj And 63 Ors.Respondent :- State Of U.P. Thru Prin Secy. Basic Edu. Lko. & Ors.

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Counsel for Petitioner :- Ajai VikramCounsel for Respondent :- C.S.C.,M.K. Awasthi

WITH

73. Case :- SERVICE SINGLE No. - 3687 of 2019Petitioner :- Mohammad Kaish Ansari And 29 Ors.Respondent :- State Of U.P. Thru Prin.Secy.Primary Edu. Lko. & Ors.Counsel for Petitioner :- Dinesh KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

74. Case :- SERVICE SINGLE No. - 3740 of 2019Petitioner :- Km Saroj And 50 Ors.Respondent :- State Of U.P. Thru Addl.Chief Secy.Basic Edu. Lucknow & Ors.Counsel for Petitioner :- Nand Kishore Patel,Sanjay KumarCounsel for Respondent :- C.S.C.,Ajay Kumar Yadav,Manoj Kumar Awasthi

WITH

75. Case :- SERVICE SINGLE No. - 3735 of 2019Petitioner :- Sandeep Mishra And 9 Ors.Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha Lko. & Ors.Counsel for Petitioner :- Lalit Kishore Tiwari,Amit TewariCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

76. Case :- SERVICE SINGLE No. - 3904 of 2019Petitioner :- Smt. Sarita Tiwari And AnotherRespondent :- State Of U.P.Throu.Prin.Secy.Primary Education Lko.And Ors.Counsel for Petitioner :- Avadhesh Mishra,Nasreen BanoCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K.Awasthi

WITH

77. Case :- SERVICE SINGLE No. - 3908 of 2019Petitioner :- Sunita Gangwar And Ors.Respondent :- State Of U.P.Throu.Addl.Chief Secy.Basic Education Lko.& OrsCounsel for Petitioner :- Onkar Singh KushwahaCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K.Awasthi

WITH

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78. Case :- SERVICE SINGLE No. - 3943 of 2019Petitioner :- Pramod Kumar & AnotherRespondent :- State Of U.P. Thru. Special Secy.Basic Shiksha Lucknow & OrsCounsel for Petitioner :- Dinesh Kumar Tripathi,Manish NigamCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

79. Case :- SERVICE SINGLE No. - 4114 of 2019Petitioner :- Ram Kishor & OthersRespondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. & OthersCounsel for Petitioner :- Prabhat KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

80. Case :- SERVICE SINGLE No. - 4245 of 2019Petitioner :- Piyush Verma & 9 OthersRespondent :- State Of U.P. Thru. Prin.Secy.,Basic Education & 4 OthersCounsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

81. Case :- SERVICE SINGLE No. - 4505 of 2019Petitioner :- Vipin Kumar And 16 Ors.Respondent :- State Of U.P. Thru Special Secy.Basic Edu. Lucknow And Ors.Counsel for Petitioner :- Rajesh Kumar PathakCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

82. Case :- SERVICE SINGLE No. - 4640 of 2019Petitioner :- Reeta Singh And 3 Ors.Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha Lko. & Ors.Counsel for Petitioner :- Bhup Chandra Singh,Shiwa Sagar SinghCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

83. Case :- SERVICE SINGLE No. - 4173 of 2019Petitioner :- Amandeep Kaur And 310 Ors.Respondent :- State Of U.P. Thru Prin.Secy. Basic Edu. Lucknow And Ors.

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Counsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,Manoj Kumar Awasthi

WITH

84. Case :- SERVICE SINGLE No. - 4183 of 2019Petitioner :- Sunita Yadav And 3 Ors.Respondent :- State Of U.P. Thru Special Secy. Basic Edu. Lucknow &Ors.Counsel for Petitioner :- Ajay "Madhavan"Counsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

85. Case :- SERVICE SINGLE No. - 4785 of 2019Petitioner :- Deva Nand Pandey And 3 Ors.Respondent :- State Of U.P. Thru Special Secy. Basic Edu. Lucknow And Ors.Counsel for Petitioner :- Onkar Singh KushwahaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

86. Case :- SERVICE SINGLE No. - 4335 of 2019Petitioner :- Punam & Ors.Respondent :- State Of U.P. Thru. Special Secy. Basic Education & Ors.Counsel for Petitioner :- Onkar Singh KushwahaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

87. Case :- SERVICE SINGLE No. - 4002 of 2019Petitioner :- Pooja And AnotherRespondent :- State Of U.P. Thru Addl.Chief Secy. Basic Edu. Lucknow & OrsCounsel for Petitioner :- Alok Kr. Misrasel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

88. Case :- SERVICE SINGLE No. - 4117 of 2019Petitioner :- Seema DeviRespondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. & OthersCounsel for Petitioner :- Anupam Dwivedi,Abhishek KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

17

89. Case :- SERVICE SINGLE No. - 4177 of 2019Petitioner :- Sunil Kumar And 344 Ors.Respondent :- State Of U.P. Thru Prin.Secy. Basic Edu. Lucknow And Ors.Counsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,Manoj Kumar Awasthi

WITH

90. Case :- SERVICE SINGLE No. - 4186 of 2019Petitioner :- Jugendra Singh And 8 Ors.Respondent :- State Of U.P. Thru Special Secy. Basic Edu. Lucknow &Ors.Counsel for Petitioner :- Onkar Singh KushwahaCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

91. Case :- SERVICE SINGLE No. - 4219 of 2019Petitioner :- Sadhana Devi And 4 Ors.Respondent :- State Of U.P. Thru Special Secy. Basic Shiksha Lucknow & OrsCounsel for Petitioner :- Anshuman Singh Rathore,Rajeev Kumar SrivastavaCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

92. Case :- SERVICE SINGLE No. - 4635 of 2019Petitioner :- Meera Devi And 4 Ors.Respondent :- State Of U.P. Thru Special Secy. Basic Edu. Lucknow &Ors.Counsel for Petitioner :- Nand Kishore PatelCounsel for Respondent :- C.S.C.,Ajay Kumar,Manoj Kumar Awasthi

WITH

93. Case :- SERVICE SINGLE No. - 4180 of 2019Petitioner :- Dharmendra Kumar And 9 Ors.Respondent :- State Of U.P. Thru Prin.Secy. Primary Edu. Lucknow And Ors.Counsel for Petitioner :- Dinesh KumarCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

94. Case :- SERVICE SINGLE No. - 4187 of 2019Petitioner :- Savita Singh And 326 Ors.Respondent :- State Of U.P. Thru Prin Secy. Basic Edu. Lucknow &

18

Ors.Counsel for Petitioner :- Amit Kr. Singh BhadauriyaCounsel for Respondent :- C.S.C.,M.K. Awasthi

WITH

95. Case :- SERVICE SINGLE No. - 4491 of 2019Petitioner :- Nisha Pandey And 2 Ors.Respondent :- State Of U.P.Thru Special Secy. Basic Shiksha Lucknow& Ors.Counsel for Petitioner :- Neelesh Kumar,Manish Nigam,Prabhat MishraCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

96. Case :- SERVICE SINGLE No. - 4519 of 2019Petitioner :- Neetu SinghRespondent :- State Of U.P. Thru Prin.Secy. Basic Edu. Lucknow And Ors.Counsel for Petitioner :- Sudhir Kumar Singh,Dhyan Pal SinghCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

97. Case :- SERVICE SINGLE No. - 4671 of 2019Petitioner :- Smt. Namarata SinghRespondent :- State Of U.P. Thru Special Secy.Basic Shiksha Lucknow& Ors.Counsel for Petitioner :- Anurag MisraCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

98. Case :- SERVICE SINGLE No. - 4672 of 2019Petitioner :- Alok Kumar RastogiRespondent :- State Of U.P. Thru Secy.Basic Edu. Lucknow And Ors.Counsel for Petitioner :- Piyush MishraCounsel for Respondent :- C.S.C.,Ajay Kumar,M.K. Awasthi

WITH

99. Case :- SERVICE SINGLE No. - 5292 of 2019Petitioner :- Girjesh Kumar Mishra (Roll No. 63630704636) And Ors.Respondent :- State Of U.P. Thru Secy. Basic Edu. Lucknow And Ors.Counsel for Petitioner :- Sooraj LalCounsel for Respondent :- C.S.C.,M.K. Awasthi

19

******

Hon'ble Rajesh Singh Chauhan,J.

1. The order under challenge is Government Order bearing

No.46/68-4-2019-2056/2019 dated 7.1.2019 issued by the Special

Secretary, Basic Education Anubhag-4, Government of U.P., Lucknow

fixing the minimum qualifying marks for Assistant Teacher

Recruitment Examination, 2019 as 65 % for general category and 60%

for reserved category. Undisputedly, no minimum qualifying marks

have been fixed vide Government Order dated 01.12.2018 and

notification/ advertisement dated 05.12.2018, pursuant to which, the

examination in question has been conducted on 6.1.2019.

Undisputedly, the exercise for fixing minimum qualifying marks have

been started pursuant to the letter bearing no. B.Sh.P.-16426-27/2018-

19 dated 5.1.2019 preferred by the Secretary, Board of Basic Education

to the Government making request for fixation of minimum qualifying

marks for the examination in question, meaning thereby, the State

Government must be intending something other way to declare the

result of Assistant Teacher Examination, 2019.

2. Since the issue involved in these batch of writ petitions is

common, therefore, all these writ petitions are being decided by the

common judgment. Learned counsel for the respective parties are also

agreeable that all these writ petitions be decided by the common

judgment.

3. The prayers of all the writ petitions are almost common, which

are as under:-

I. A writ in the nature of certiorari be issued quashing the

Government Order dated 7.1.2019.

II. A writ in the nature of mandamus be issued directing the

Secretary, Examination Regulatory Authority to declare the

result of Assistant Teacher Recruitment Examination, 2019

20

for 69,000/- vacancies in terms of Government Order dated

1.12.2018.

4. In Writ Petition No.2720 (S/S) of 2019 since the process of

taking decision to fix the minimum qualifying marks vide Government

Order dated 7.1.2019 has been impeached, besides above relief,

therefore it has been requested that before quashing the Government

Order dated 7.1.2019, relevant records be also summoned.

5. To deal with the issue there are some Act, Rules, Regulations,

Amended Rules which have been applied herein, therefore, those have

been reproduced herein below:

"A. The Uttar Pradesh Basic Education Act, 1972:

2(i)(b) "basic education" means education up to the eighth class imparted in schools other than high schools or intermediate college, and the expression "basic schools" shall be construed accordingly;

2(i)(c) "Board" means the Uttar Pradesh Board of Basic Education constituted under Section 3;

2(i)(e) "Local body" means the [Zila Panchayat or Municipality]as the case may be;

[2(i)(f) "Municipality" means a Nagar Panchayat, Municipal Council or Municipal Corporation, as the case may be.

3. Constitution of Board.-

(3) The Board shall consist of the following members, namely -

(a) the Director, ex officio, who shall be the chairman;

(b) two persons to be nominated by the State Government fromamongst the Adhyakshas, if any, of [Zila Panchayats establishedunder Section 17 of the Uttar Pradesh Kshettra Panchayats andZila Panchayats Adhiniyam, 1961];

(c) one person to be nominated by the State Government fromamongst the Nagar Pramukhs, if any, of the [Corporationsconstituted under Section 9 of the Uttar Pradesh MunicipalCorporation Act, 1959];

21

(d) one person to be nominated by the State Government fromamongst the Presidents, if any, of the [Municipal Council andNagar Panchayats established under the Uttar PradeshMunicipalities Act, 1916];

(e) the Secretary to the State Government in the FinanceDepartment, ex officio;

(f) the Principal, State Institute of Education, ex officio;

[(f1) the Secretary, Board of High School and IntermediateEducation, Allahabad, ex officio;

(f2) the President of the Uttar Pradesh Prathamik ShikshakSangh, ex officio;]

(g) two educationists to be nominated by the State Government;

(h) an officer not below the rank of Deputy Director of Education,to be nominated by the State Government, who shall be theMember Secretary.

4. Function of the Board. - (1) Subject to the provisions of this Act it shall be the function of the Board to organise, co-ordinate and control the imparting of basic education and teachers' training therefor in the State, to raise its standards and to correlate it with the system of education as a whole in the State.

(2) Without prejudice to the generality of the provisions of sub-section (1), the Board shall, in particular, have power -

(a) to prescribe the courses of instruction and books for basic education and teachers' training therefor;

(b) to conduct the junior high school and basic trainingcertificate examinations and such other examination as the StateGovernment may from time to time by general or special orderassign to it and to grant diplomas or certificates to candidatessuccessful at such examinations

[(c) to lay down, by general or special orders in that behalf, norms relating to the establishment of institutions by [the Gaon Shiksha Samitis or Municipalities and to superintend Gaon Shiksha Samitis, Gram Panchayats and Municipalities] in respect of the administration of institutions, for imparting instruction and preparing candidates for admission to examinations conducted by the Board];

[(cc) [* * *]

(d) to exercise supervision and control over basic schools,[District Institute of Education and Training], basic trainingcertificate units and the State Institute of Education;

[(e) to accord approval (with or without modification) to theschemes prepared by the [Gaon Shiksha Samitis, Zila Panchayatsor Municipalities] for the development, expansion and

22

improvement of and research in basic education in any district orin the State or in any part thereof];

(f) to acquire, hold and dispose of any property, whether movable,or immovable [* * *];

(g) to receive grants, subventions and loans from the StateGovernment;

[(g1) subject to the general control of the State Government toissue directions not inconsistent with this Act, to Gaon ShikshaSamitis, Gram Panchayats, Zila Panchayats or Municipalities inthe performance of their functions under this Act];"

(g2) [* * *]

(h) to take all such steps as may be necessary or convenient for,or may be incidental to the exercise of any power, or thedischarge of any function or duty conferred or imposed on it bythis Act :

[Provided that the courses of instruction and books prescribed and institutions recognised before the commencement of this Act shall be deemed to be prescribed or recognised by the Board under this Act.]

[(3) [* * *]

13. Control by the State Government. -(1) The Board shall carryout such directions as may be issued to it from time to time by theState Government for the efficient administration of this Act.(2) If in, or in connection with, the exercise of any of its powersand discharge of any of the functions by the Board under thisAct, any dispute arises between the Board and the StateGovernment, or between the Board and any local body, thedecision of the State Government on such dispute shall be finaland binding on the Board or the local body, as the case may be.

(3) The Board or any local body shall furnish to the StateGovernment such reports, returns and other information, as theState Government may from time to time require for the purposesof this Act.

[13A. Overriding effect. - Notwithstanding anything contained inthe United Provinces Panchayat Raj Act, 1947, the UttarPradesh Municipalities Act, 1916 and the Uttar PradeshMunicipal Corporation Act, 1959, the provisions of this Act shallhave effect.]"

23

B. U.P. Basic Education (Teachers) Service Rules, 1981:

"4. Strength of the Service.- (1) There shall be separate

cadres of service under these rules for each local area.

(2) The strength of the cadre of the teaching staff pertaining to alocal area and the number of the posts in the cadre shall be suchas may be determined by the Board from time to time with theprevious approval of the State Government :

Provided that the appointing authority may leave unfilled or theBoard may hold in abeyance any post or class of posts withoutthereby entitling any person to compensation:

Provided further that the Board may, with the previous approvalof the State Government, create from time to time such number oftemporary posts as it may deem fit.

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

(a) (i) Mistresses of Nursery Schools By direct recruitment as provided in Rules 14 and 15;

(ii) Assistant Masters and Assistant Mistresses of Junior Basic Schools

(b) (i) Headmistresses of Nursery Schools

By promotion as provided in Rule 18;

(ii) Head Masters and Head Mistresses of Junior Basic Schools


(iii) Assistant Masters of Senior Basic Schools


(iv) Assistant Mistresses of Senior Basic Schools


(v) Head Masters of Senior Basic Schools


(vi) Head Mistresses of Senior BasicSchools


Provided that if suitable candidates are not available forpromotion to the posts mentioned at (iii) and (iv) above,appointment may be made by direct recruitment in the mannerlaid down in Rule 15.

24

8. Academic Qualifications. - (1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be as shown below against each-:

Post Academic Qualification

(i) Mistress of Nursery Schools

Certificate of teaching (Nursery) from arecognised training institution of UttarPradesh and any other training courserecognised by the Government asequivalent thereto.

(ii) Assistant Masterand AssistantMistress of Junior Basic School

A Bachelors' degree from a Universityestablished by law in India or a degreerecognised by the Government asequivalent thereto together with thetraining qualification consisting of aBasic Teacher’s Certificate, VishishtBasic Teacher's Certificate (B.T.C.), twoyears BTC Urdu Special Training Course.Hindustani Teacher's Certificate, JuniorTeacher's Certificate, Certificate ofTeaching or any other training courserecognized by the Government asequivalent thereto. Provided that the essential qualificationfor a candidate who has passed therequired training course shall be thesame which was prescribed for admissionto the said training course.

(2) The essential qualification of candidates for appointment to a post referred to in sub-clause (iii) and (iv) of clause (h) of Rule 5 for teaching Science, Mathematics, Craft or any language other than Hindi, and Urdu shall be as follows -

(i) A Bachelor's Degree from a University established by lawin India or a Degree recognised by the Government asequivalent thereto with Science, Mathematics, Craft orparticular language, as the case may be, as one of thesubjects, and

(ii) Training qualification consisting of Basic Teacher’sCertificate, Hindustani Teacher's Certificate, Junior Teacher'sCertificate, Certificate of Teaching or any other TrainingCourse recognised by the Government as equivalent thereto.

25

(3) The minimum experience of candidates for promotion to a post referred to in clause (b) of Rule 5 shall by as shown below against each -

Post Experience

(i) Head mistress of Nursery School

At least five years’ teaching experience aspermanent Mistress of Nursery School.

(ii) Head master orHeadmistress ofJunior BasicSchools andAssistant Master orAssistant Mistressof Senior BasicSchool

At least five years’ teaching experience aspermanent Assistant Mistress or AssistantMaster of Junior Basic School, AssistantMaster or Assistant Mistress of JuniorBasic School and Assistant Master orAssistant Mistress of Senior Basic School.

(iii) Head master orHeadmistress for Senior Basic School

At least three years’ experience aspermanent Headmaster or Headmistressof Junior Basic School or PermanentAssistant Master or Assistant Mistress ofSenior Basic School, as the case may be: Provided that if sufficient number ofsuitable or eligible candidates are notavailable for promotion to the postsmentioned at serial numbers (ii) and (iii),the field of eligibility may be extended bythe Board by giving relaxation in theperiod of experience.

(4) The essential qualification of candidates for appointment tothe posts referred to in clause (a) and sub-clauses (iii) and (iv) ofclause (b) of Rule 5 for teaching Urdu Language shall be asfollows:-

(i) A Bachelor's Degree from a University established by a law inIndia or a Degree recognised by the Government as equivalentthereto with Urdu as one of the subjects.

Note- A candidate who does not possess the aforesaidqualification in Urdu, shall be eligible for appointment, if hepossesses a Master's Degree in Urdu.

(ii) Basic Teacher's Certificate from any of the training centres inLucknow, Agra, Mawana in district Meerut and Sakaldiha indistrict Chandauli established by the Government for impartingtraining for teacher Urdu or any other training qualificationrecognised by the Government as equivalent thereto.

26

(5) The essential qualifications of candidates having proficiencyin Urdu for appointment to the posts referred to in sub-clause (ii)of clause (a) of Rule 5 for teaching in Urdu medium shall be asfollows:-

(i) A Bachelors Degree from a University established by law inIndia or a Degree recognised by the Government as equivalentthereto. The qualifications for proficiency in Urdu will be such asmay be prescribed from time to time by the Government.

(ii) Training qualification of two years B.T.C. Urdu SpecialTraining course.

14. Determination of vacancies and preparation of list.- (1) Inrespect 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, Dependants of freedom-fighters and other categoriesunder Rule 9 and notify the vacancies to the EmploymentExchange and in at least two newspapers having adequatecirculation in the State as well as in the concerned districtinviting applications from candidates possessing prescribedtraining qualification from the district concerned.

(2) The appointing authority shall scrutinise the applicationsreceived in pursuance of the advertisement and the names ofcandidates received from the Employment Exchange and preparea list of such persons as appear to possess the prescribedacademic qualifications and be eligible for appointment.

(3) The Regional Assistant Director of Education (Basic) may,on the application of a candidate, and for reasons to be recorded,direct that his name be included at the bottom of the list preparedunder sub-rule(2).

(4) The names of candidates in the list prepared under sub-rule(2) shall then be arranged in such manner that the candidateswho have passed the required training course earlier in point oftime shall be placed higher than those who have passed the saidtraining course later and the candidates who have passed thetraining course in a particular year shall be arranged inaccordance with the quality points specified in the appendix.

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

27

(6) The list prepared under sub-rule (2) and arranged inaccordance with sub rule (4) shall be forwarded by theappointing authority to the selection committee."

(C) U.P. Basic Education Rules, 1981 (20th Amendment) Notifiedon 09.11.2017.

Some definitions and relevant provisions of the aforesaid

Twentieth Amendment Rules i.e. Rule 2 (1) (o) (s) (t) (4) (v) (w) (x) (y)

8, 14 and Appendix-I & Appendix-II are necessary to be indicated

herein below, which are as under:-

"(s). "Teacher Eligibility Test" means the TeacherEligibility Test conducted by the Government or by theGovernment of India.

(t). "Qualifying marks in Teacher Eligibility Test"Qualifying marks in Teacher Eligibility Test will be suchas may be prescribed from time to time by the NationalCouncil for Teacher Education, New Delhi.

(v) "Shiksha Mitra" means a person working assuch in junior basic schools run by Basic ShikshaParishad under the Government Orders prior to thecommencement of Uttar Pradesh Right of Children toFree and Compulsory Education Rules, 2011.

Or a person who has been a Shiksha Mitra andappointed as an Assistant Teacher in Junior BasicSchools run by Basic Shiksha Parishad and reverted towork as Shiksha Mitra in pursuance of the judgment ofthe Apex Court in SLP No.32599/2015 State of U.P. andOthers Vs. Anand Kumar Yadav and Others.

(w) "Assistant Teacher Recruitment Examination"means a written examination conducted by theGovernment for recruitment of a person in junior basicschools run by Basic Shiksha Parishad.

(x) "Qualifying Marks of Assistant TeacherRecruitment Examination" means such minimum marksas may be determined from time to time by theGovernment.

(y) "Guidelines of Assistant Teacher RecruitmentExamination" means such guidelines as may bedetermined from time to time by the Academic Authoritywith the approval of the Government."

Rule 8 of the aforesaid Twentieth Amendment Rules provides

about the academic qualifications. Rules 8 (ii) provides academic

28

qualifications for Assistant Master and Assistant Mistresses of Junior

Basic Schools, which are as under:-

"ii. (a) Bachelors degree for a University established bylaw in India or a degree recognized by the Governmentequivalent thereto together with any other trainingcourse recognized by the Government as equivalentthereto together with the training qualificationconsisting of a Basic Teacher's Certificate (BTC), twoyears BTC (Urdu) Vishist BTC and teacher eligibilitytest passed conducted by the Government or by theGovernment of India and passed Assistant Teacherrecruitment Examination conducted by the Government.

(ii) (b) a Trainee Teacher who has completedsuccessfully six months special training programme inelementary education recognized by NCTE."

Rule 14 of the Twentieth Amendment Rules defines

Determination of vacancies and preparation of list.

"14 (1) (a) Determination of vacancies andpreparation of list,

In respect of appointment, by direct recruitment tothe post of Mistress of Nursery Schools and AssistantMaster or Assistant Mistress of Junior Basic Schoolsunder clause (a) of rule 5, the appointing authority shalldetermine the number of vacancies as also the number ofvacancies to be reserved for candidates belonging toScheduled Castes, Scheduled Tribes, Backward Classes,and other categories under rule 9 and at least twoleading daily news papers having adequate circulation inthe State as well as in concerned district invitingapplications from candidates possession prescribedtraining qualification from the district concerned andteacher eligibility test passed conducted by theGovernment or by the Government of India and passedAssistant Teacher recruitment Examination conducted bythe Government.

Certificate of successful completion of six months specialtraining in elementary education, shall be appointed asassistant teachers in Junior basic schools against

29

substantive post in regular pay-scale. The appointingauthority will be duty bound to appoint the traineeteachers as assistant teachers within one month of issueof certificate of successful completion of said training.

14 (2) The appointing authority shall scrutinize theapplications received in pursuance of the advertisementunder clause (a) or (b) of sub-rule (I) of rule 14 andprepare a list of such persons as appear to possess theprescribed academic qualifications and be eligible forappointment."

In the aforesaid Twentieth Amendment Rules, one Appendix-I is

appended which defines quality points and weightage for selection of

the candidates as under:-

"[APPENDIX-I]

Quality points, and weightage for selection of candidates

Name of Examination/ Degree

Quality Points

1. High School Percentage of marks in the examination x 10100

2. Intermediate Percentage of marks in the examination x 10100

3. Graduation Degree Percentage of marks in the examination x 10100

4. B.T.C. Training Percentage of marks in the examination x 10100

5. Assistant TeacherrecruitmentExamination

Percentage of marks in the examination x 60100

6. WeightageTeachingexperiences asShiksha Mitra or asteacher working assuch in junior basicschools run by BasicShiksha Parishad

2.5 marks per completed teaching year, uptomaximum 25 marks, which ever is less

Appendix -II

[See Rule 14(3)(b)]

Quality Points for Selection of Candidates

30

Name of Examination / Degree QualityPoints

High School Percentage ofMarks 10Intermediate Percentage ofMarks x 2 10Graduation Degree Percentage ofMarks x 4 10Bachelor of Education (B.Ed.) /B.Ed. (SpecialEducation) / B.Ed. (Special Education) Percentage ofMarks x 3 10

Note:- If two or more candidates have equal quality points the name of thecandidate who is senior in age shall be placed higher in the list. If two ormore candidates have equal quality point; and age, the name of thecandidate shall be placed in the list in English alphabetical order."

(D) U.P. Basic Education (Teachers) Service Rules, 1981 byintroducing 22nd Amendment notifying on 15.03.2018:

The validity of aforesaid 20th Amendment was challenged before

this Court on the ground that Sate is trying to add some new

qualification of written examination, over and above those provided by

the National Council for Teachers Education ( NCTE). It appears that

the State Government realized its mistake and vide notification dated

15.3.2018 has again amended the Rules, 1981, the qualifying

examination was taken out from the list of mandatory qualification

prescribed under Rule 8 and the same was inserted under Rule 14 which

provides for Procedure for Preparation of Merit List. For this

purpose the relevant amendment has been introduced by deleting

Clause (a) and (c) of Rule 8 of Rules, 1981 inserting some new

condition in Rule 14(1)(a) and 14(3)(a) of the Rules, 1981 which reads

as follows:

"B- Rule 8(1)(ii)(a) & (c):- " and passed Assistant TeachersRecruitment Examination conducted by the Government"(Deleted).

Rule 14(1)(a): " and passed Assistant Teacher recruitmentExamination conducted by the Government" (Inserted)

31

Rule 14(1)(b) - Recruitment Examination :- for othernotified vacancy under clause (a) for recruitment of AssistantMaster or Assistant Mistress of Junior Basic School, aseparate Assistant Teacher Recruitment Examination shall beconducted by the Government. (Inserted).

Rule 14(3)(a)- The name of candidates in the list preparedunder sub-section (2) in accordance with clause (a) of Sub-Rule 14 shall then be arranged in accordance with the equitypoints and weightage as specified in the Appendix-I.

Provided that if two or more candidates obtained equalmarks, the candidate senior in the age shall be placed higher.Provided that a person working as Shiksha Mitra in JuniorSchool run by Basic Shiksha Parishad shall be givenweightage in the recruitment of the post of Assistant Teacher,only in two consecutive Assistant Teacher Examinationconducted by the Government: After July 25, 2015."

It would be apt to consider some other legal position and

prescribed under the 22nd Amendment.

"Rule 2(1)(u)- Trainee Teacher means a candidate who haspassed B.Ed. / B.Ed. (Special Education), D.Ed (SpecialEducation) and has also passed the Teacher Eligibility Testand has been selected for eventual appointment as AssistantTeacher in the Junior Basic School after successfulcompletion of six months special training program inelementary education recognized by the National Councilof Teachers Education (NCTE).

Rule 2(1)(w)- "Assistant Teacher Recruitment Examination"means a written examination conducted by the Governmentfor recruitment of a person in Junior Basic Schools run byBasic Shiksha Parishad.

Rule 2(1)(x)- "Qualifying Marks of Assistant TeacherRecruitment Examination" means such minimum marks asmay be determined by the Government.

Rule 8(iii)-Trainee Teacher :- Bachelor degree from a B &I University established by law in India or a degreerecognized by the Government equivalent thereto ( page 144)

32

together with B.Ed. / B.Ed. (Special Education)/ D.Ed.(Special Education) qualification and passed the T.E.T.conducted by the Government Order passed by theGovernment of India.

However, in case of B.Ed. (Special Education) / D.Ed.(Special Education) a course recognized by RehabilitationCouncil of India (RCB) only shall be considered.

Rule 14 and Procedure of Selection:

Rule 14(1)(a)- Determination of vacancies andPreparation of list. In respect of appointment, by directrecruitment to the post of mistress of nursery school andAssistant Master or Assistant Mistress of Junior BasicSchools under clause (a) of Rule 5, appointing authorityshall determine the number of vacancies as also the numberof vacancies to be reserved for candidates belonging toscheduled caste / scheduled tribes and other backwardclasses and other categories under Rule 9 and published inat least two leading newspapers having adequatecirculation in the State as well as in the concerned districtinviting applications from candidates possessing theprescribed training and qualifications and pass TeachersEligibility Test, conducted by the Government of India andpassed Assistant Teacher Recruitment Examinationconducted by the Government.

(b) Recruitment Examination- For other notifiedvacancies under clause (a) for recruitment of AssistantMaster or Assistant Mistress of Junior Basic School, aseparate Assistant Teacher Recruitment Examination shallbe conducted by the Government.

(c) The Government may from time to time decide toappoint candidates who are Graduates along withB.Ed./B.Ed. (Special Education)/D.Ed. (Special Education)and who have also passed Teacher Eligibility Testconducted by the Government or by the Government ofIndia, as Trainee Teachers. These candidates afterappointment will have to undergo six months specialtraining program in elementary education recognized by theNational Council of Teachers Education ( N.C.T.E.)...

(d) The Trainee Teachers, after obtaining certificateof successful completion of six months special training in

33

elementary education, shall be appointed as assistantteachers in junior basic schools against substantive post inregular pay-scale. The appointing authority will be dutybound to appoint the trainee teachers as assistant teacherswithin one month of issue of certificate of successfulcompletion of said training.

14(2) Preparation of Merit List- The appointingauthority shall scrutinize the applications received inpurswuance of the advertisement under clause (a) or clause(c) of sub-rule (1) and prepare a merit list of such personsas appear to possess the prescribed academic qualificationsand passed Assistant Teacher Recruitment Examination beeligible for appointment.

14(3)(a). The names of candidates in the list preparedunder sub-rule (2) in accordance with clause (a) of sub-rule(1) of rule 14 shall then be arranged in such manner thatthe candidate shall be arranged in accordance with thequality points and weightage as specified in the appendix-1:

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

Provided that a person working as Shiksha Mitra inJunior Basic School run by Basic Shiksha Parishad shall begiven weightage for the recruitment of the post of AssistantTeacher, only in two consecutive Assistant TeacherRecruitment Examination conducted by the Governmentafter July 25,2017."

6. The perusal of the aforesaid provision of law reveals that the

candidates having B.Ed. qualification etc. can be appointed as trainee

teachers and they can also be appointed on the post of Assistant Teacher

after those candidates successfully completes six months special

training program in the elementary education. However, in the present

selection the candidates possessing B.Ed. qualification etc. have been

permitted to appear but how much seats have been reserved for those

34

candidates has not been disclosed as only this much has been disclosed

that there are total 69000 vacancies for Assistant Teachers.

7. Since some abbreviations have been used in this order, therefore,

it would be apposite to explain those abbreviations here-in-below:-

ABBREVIATIONS

1. A.T.R.E . Assistant Teacher Recruitment Examination.

2. Act, 1972 Uttar Pradesh Basic Education Act, 1972.

3. Rules, 1981 Uttar Pradesh Basic Education (Teachers) Service Rules,1981.

4. 20thAmendmentRules, 2017

The Uttar Pradesh Basic Education (Teachers) Service(Twentieth Amendment) Rules, 2017 [Notification9.11.2017].

5. 22nd Amendment,2018

The Uttar Pradesh Basic Education (Teachers) Service(Twenty Second Amendment) Rules, 2018 [Notified on15.3.2018].

6. N.C.T.E. National Council for Teachers Education.

7. N.C.T.E. Act,1993 National Council for Teachers Education Act, 1993.

8. N.C.T.E.Regulation, 2001

National Council for Teachers Education (Determinationof Minimum Qualification for Recruitment of Teachers inthe School) Regulations, 2001.

9. T.E.T. Teachers Eligibility Test

10. R.T.E. Act, 2009 Right of Children to Free and Compulsory Education Act,2009 (35 of 2009)

11. R.T.E. Rules,2010

Right of Children to Free and Compulsory EducationRules, 2010.

12. N.C.T.E.Regulations, 2009

National Council for Teachers Education (Determinationof Minimum Qualification for Recruitment of Teachers inthe School) Regulations, 2009.

13. U.P.R.T.E. Rules,2011

Uttar Pradesh Right of Children to Free and CompulsoryEducation Rules, 2011.

14. Rules of Business,1975

Uttar Pradesh Distribution of Works Rules, 1975 [U.P.Karya (Batwara) Niyamawali, 1975]

35

8. Heard learned counsel for the petitioners Sri Upendra Nath

Mishra assisted by Sri Amit Kumar Singh Bhadauriya, Dr. L.P. Mishra,

learned counsel assisted by Sri Awadhesh Shukla, Sri H.G.S. Parihar,

learned Senior Advocate assisted by Ms. Meenakshi Parihar Singh, Sri

H.N. Singh, learned Senior Advocate, Sri Radha Kant Ojha, learned

Senior Advocate and S/Sri Anshuman Singh Rathore, M.N. Rai, R.K.

Singh, Nand Kishore Patel, Omkar Singh, Sanjay Kumar, Rahul

Kumar Singh, Bipin Kumar Rai, Agnihotri Kumar Tripathi, Sushil

Prakash Pandey, Anand Pal Singh, Rajeev Kumar Srivastava, Sanjay

Kumar, Himanshu Ragahave, Shailesh Tripathi, Lakshmana Singh,

Pramod Kumar Verma, Badrish Kumar Tripathi, Vinod Kumar, Ajai

Vikram, Sunil Kumar, Kalika Prasad Pandey, Pawan Kumar Pandey,

Pravesh Yadav, Sharad Pathak, Sanjay Kumar Singh, Bipin Kumar

Rai, Kuldeep Singh Kalhans, Ashok Kumar Yadav, Harjot Singh, Ajai

Kumar, Saurabh Goswami, Vivek Kumar Rai, Pt. S. Chandra, Vinod

Kumar Gupta, Jay Prakash Singh, Rajesh Kumar Pathak, Dinesh

Kumar, Raj Kumar Singh Suryavanshi, Rajesh Kumar Verma, Aditya

Vikram Singh, Dinesh Kumar Tripathi, Piyush Mishra, Ram Kumar

Singh, Mohit Dwivedi, Dharmendra Kumar Gupta, Himanshu

Hemant Gupta, Akhand Pratap Singh, Naveen Kumar Kashyap,

Gyanendra Kumar Pandey, Apoorv Pandey, Deo Prakash Srivastava,

Puttan Singh, Rakesh Kumar Singh, Pankaj Kumar, Piyush Mishra,

Vinay Prakash Tiwari, Sudhir Kumar Pandey, Rama Niwas Pathak,

Rajesh Kumar Verma, Praveen Kumar Tripathi, Sri Niwas Jaiswal,

Mohd. Shameem Khan, Onkar Singh Kushwaha, Satyendra Kumar

36

Tiwari, Suresh Chandra Srivastava, Savita Tiwari, Dinesh Kumar,

Ajay Kumar Tripathi, Anurag Misra, Ajai Vikram, Lalit Kishore

Tiwari, Amit Tewari, Bhup Chandra Singh, Shiwa Sagar Singh, Ajay

"Madhavan", Alok Kr. Misra, Anupam Dwivedi, Abhishek Kumar,

Neelesh Kumar, Manish Nigam, Prabhat Mishra, Sudhir Kumar

Singh,Dhyan Pal Singh, Sooraj Lal, learned counsel appearing for the

petitioners in the aforesaid writ petitions as well as Sri Prashant

Chandra, learned Senior Advocate assisted by Sri Shree Prakash Singh,

learned Chief Standing Counsel and Sri Ran Vijay Singh, learned Addl.

Chief Standing Counsel for the State-respondents as well as S/Sri A.M.

Tripathi, Ajay Kumar, Durga Prasad Shukla, Manoj Kumar Awasthi,

Pradeep Shukla, Ravi Kishore Joshi, Om Prakash Mani Tripathi,

learned counsel for other opposite parties and Sri Anil Tiwari, learned

Senior Advocate, assisted by Sri Amrendra Nath Tripathi has advanced

his arguments as intervener.

9. Sri Upendra Nath Mishra, learned counsel for the petitioners, has

proposed five issues for consideration of this Court as under:-

I. Whether the impugned Government Order makes anunreasonable classification by giving different treatment totwo groups of identically situated persons appearing in twoconsecutive examinations?

II. Whether there are valid reason and justification fordrastically increasing minimum qualifying marks andwhether it has any nexus with the object sought to beachieved.

37

III. Whether the issuance of impugned Government Ordernullifying the beneficial direction of the Hon’ble ApexCourt’s judgment is permissible in law?

IV. Whether practical working experience is an integralpart of merit and whether special provision regardingweightage added in the statute can be nullified by generalprovisions of Rules?

V. Whether by providing the eligibility marks after holdingthe written examination the respondents are changing theRule of game after the game starts?

10. All the learned counsel for the parties have argued on the

aforesaid legal proposition, but Sri H.N. Singh, learned Senior

Advocate, Dr. L.P. Misra and Sri Radha Kant Ojha, learned Senior

Advocate have proposed some more questions for consideration of this

Court, which would be dealt separately while dealing those arguments.

Brief facts of the case

11. The petitioners of these batch of writ petition are Shiksha Mitras.

On 26.5.1999 a Government Order was issued by the State Government

for engagement of Shiksha Mitras and thereafter time to time

Government Orders were issued expanding the scheme of Shiksha

Mitras.

12. The present petitioners have passed special training course of two

years as Teachers Basic Training Certificate through distant education.

They are graduate having training qualification of Teachers Basic

Training Certifiecate and also passed Teachers Eligibility Test

conducted by the Government.

38

13. As per learned counsel for the petitioners the petitioners possess

all the minimum qualifications required for the appointment of

Assistant Teacher prescribed under the amended service rules of Rules,

1981. On 23.8.2010 the NCTE has framed guidelines under sub-section

(1) of section 23 of Right of Children to Free and Compulsory Act,

2009, according to which the minimum qualification for a person to be

eligible for the appointment as teacher in clause I to VIII is that he / she

should pass Teachers Eligibility Test which will be conducted by the

appropriate government.

14. It has been noted that a very long drawn litigation took place in

respect of absorption of Shiksha Mitras as Assistant Teachers and

ultimately the same was decided by the Full Bench of this Court vide its

judgment and order dated 12.9.2015 rendered in W.P. No. 34833 of

2014 i.e. Anand Kumar Yadav vs. State of U.P. & others. Thereafter

the aforesaid matter went in appeal before the Hon'ble Apex Court

bearing Civil Appeal No. 9529 of 2017 : Anand Kumar Yadav vs. State

of U.P. and the Hon'ble Apex Court vide judgment and order dated

25.7.2017 affirmed the judgment and order dated 12.9.2015 passed by

the Full Bench of this Court holding that the Shiksha Mitras were never

appointed as teachers as per applicable qualifications and are also not

covered by regularisation order under section 23(2) of R.T.E. Act, they

could not be appointed as teachers in the breach of section 23(1) of the

said Act. The State is not competent to relax the qualification.

39

15. Now, I am going to consider the contentions and submissions of

learned counsel for the respective parties.

16. So as to develop his proposed issues No.1 and 2, as aforesaid,

Mr. Upendra Nath Misra, has referred paras-37 and 38 of the writ

petition. In para-37, Sri Misra has mainly submitted that the first

selection notified by the advertisement dated 06.05.2018 held for filling

up the vacancies of 68,500 was completed with 45% and 40%

minimum qualifying marks for general and reserved category

candidates respectively and consequently about 41556 candidates

including Shiksha Mitras have been selected. Later on, when so many

vacancies were left over, the State Government vide Government

Order dated 25.01.2018 reduced the minimum qualifying marks as 33%

and 30% of general category and the reserved category respectively.

However, such Government Order dated 21.05.2018 has been stayed by

this Court on the principles that the rule of game may not be changed

after the game starts. But in any case, as the State Government earlier

has fixed 45% and 40% and later on 33% and 30% for general category

and reserved category candidates respectively, minimum qualifying

marks, therefore, vide Government Order dated 07.01.2019 the

'minimum' qualifying marks may not be extremely high as 65% and

60% for both the aforesaid categories. Mr. Misra has further submitted

that T.E.T. qualified Shiksha Mitras who have appeared in first

selection and could not be finally selected and are appearing in the

present examination, therefore, they may not be treated differently

40

being a similar group, therefore, this amounts to give different

treatment to the similarly situated persons, and therefore, is hit by the

voice of regional classifications and hostile discrimination, hence, the

Government Order dated 07.01.2019 being discriminatory, arbitrary and

violative of Articles 14 and 16 of the Constitution of India. Sri Misra

has drawn attention of this Court towards paras-28 and 29 of the

counter affidavit submitting that reply to the contents of paras-37 and

38 of the writ petition has not properly been given. Therefore, the

contents of the writ petition may be deemed to have been acceptable to

the answering opposite parties. In para-22 of the rejoinder affidavit, Sri

U.N. Misra has reiterated his contents. Replying the contention of the

State-respondents that the legitimate expectation expressed in para-37

of the writ petition has unnecessarily to yield to public interest and

compromising on merits is subservient to public interest, Sri U.N.

Misra has submitted that it is not open for the State Authorities to raise

it dig on rejuvenating public interest in raising 'minimum' qualifying

marks to 65% and 60% and if the previous selection of 2018 was held

ignoring merits and if the public interest was compromised by the State

at the time of holding first of the two consecutive recruitment offered to

the Shiksha Mitras under the orders of Hon'ble Apex Court. He has

further submitted that fixing two different yardstick / bench marks/

minimum qualifying marks for two consecutive written examinations

offered to the Shiksha Mitras under the order of the Court, without

having any valid and cogent reasons or justification amounts to giving

different treatment to the similarly situated persons.

41

17. In support of his contention that giving different treatment to two

group of identically situated person amongst to unreasonable

classifications and hostile discrimination, Mr. Misra has placed reliance

of the dictium of Hon'ble Apex Court in re:(i) Food Corporation of

India and others vs. Ashis Kumar Ganguly and others reported in

(2009) 7 SCC 734 and (ii) Subramanian Swamy vs. Director, Central

Bureau of Investigation (C.B.I.) and another reported in (2014) 8

SCC 682.

18. Hon'ble Apex Court in re: Food Corporation of India and

others vs. Ashis Kumar Ganguly and others reported in (2009) 7 SCC

734. The relevant paras-29 and 37 of the said judgment are being

reproduced here-in-below:-

"29. A statutory authority or an administrative authoritymust exercise its jurisdiction one way or the other so as toenable the employees to take recourse to such remedies asare available to them in law, if they are aggrieved thereby.The question which, however, arises for consideration is asto whether having exercised its jurisdiction in favour of aclass of employees, a statutory authority can deny a similarrelief to another class of employees. In a case of thisnature, in our opinion, the writ court was entitled todeclare such a stand taken by the statutory authority asdiscriminatory on arriving at a finding that both the classesare entitled to the benefit of a statutory rule.

37. In a case of this nature, legal right of the respondentsemanated from violation of the equality clause contained inArticle 14. If they were otherwise similarly situated, therewas absolutely no reason why having regard to theprovisions contained in Article 39-A of the Constitution ofIndia, the respondents should be treated differently. It is,

42

therefore, not a case where persons differently situated arebeing treated differently as was submitted by Mr. Saran."

19. Hon'ble Apex Court in re: Subramanian Swamy vs. Director,

Central Bureau of Investigation (C.B.I.) and another reported in

(2014) 8 SCC 682. The relevant paras-44, 45, 47, 48 & 68 of the

judgment are being reproduced here-in-below:-

"44. In Vithal Rao30, the five-Judge Constitution Bench hadan occasion to consider the test of reasonableness underArticle14 of the Constitution. It noted that

"26.......the State can make a reasonableclassification for the purpose of legislation and that theclassification in order to be reasonable must satisfy twotests: (i) the classification must be founded on intelligibledifferentia and (ii) the differentia must have a rationalrelation with the object sought to be achieved by thelegislation in question.'"

The Court emphasized that in this regard object itselfshould be lawful and it cannot be discriminatory. If theobject is to discriminate against one section of the minority,the discrimination cannot be justified on the ground thatthere is a reasonable classification because it has rationalrelation to the object sought to be achieved.

45. The constitutionality of Special Courts Bill, 1978came up for consideration in re. Special Courts Bill,197812 as the President of India made a reference to thisCourt under Article 143 (1) of the Constitution forconsideration of the question whether the “Special CourtsBill” or any of its provisions, if enacted would beconstitutionally invalid. The seven Judge ConstitutionBench dealt with the scope of Article 14 of the Constitution.Noticing the earlier decisions of this Court in BudhanChoudhry69, Ram Krishna Dalmia41, C.I. Emden[70],Kangsari Haldar[71], Jyoti Pershad49 and Ambica MillsLtd.[72], in the majority judgment the then Chief Justice

43

Y.V. Chandrachud, inter alia, exposited the followingpropositions relating to Article 14:

“(1) xxx xxx xxx

(2) The State, in the exercise of its governmentalpower, has of necessity to make laws operating differentlyon different groups or classes of persons within its territoryto attain particular ends in giving effect to its policies, andit must possess for that purpose large powers ofdistinguishing and classifying persons or things to besubjected to such laws.

(3) The constitutional command to the State to affordequal protection of its laws sets a goal not attainable by theinvention and application of a precise formula. Therefore,classification need not be constituted by an exact orscientific exclusion or inclusion of persons or things. Thecourts should not insist on delusive exactness or applydoctrinaire tests for determining the validity ofclassification in any given case. Classification is justified ifit is not palpably arbitrary.

(4) The principle underlying the guarantee of Article14 is not that the same rules of law should be applicable toall persons within the Indian territory or that the sameremedies should be made available to them irrespective ofdifferences of circumstances. It only means that all personssimilarly circumstanced shall be treated alike both inprivileges conferred and liabilities imposed. Equal lawswould have to be applied to all in the same situation, andthere should be no discrimination between one person andanother if as regards the subject-matter of the legislationtheir position is substantially the same.

(5) By the process of classification, the State has thepower of determining who should be regarded as a classfor purposes of legislation and in relation to a law enactedon a particular subject. This power, no doubt, in somedegree is likely to produce some inequality; but if a lawdeals with the liberties of a number of well- defined classes,it is not open to the charge of denial of equal protection onthe ground that it has no application to other persons.Classification thus means segregation in classes whichhave a systematic relation, usually found in commonproperties and characteristics. It postulates a rational basis

44

and does not mean herding together of certain persons andclasses arbitrarily.

(6) The law can make and set apart the classesaccording to the needs and exigencies of the society and assuggested by experience. It can recognise even degree ofevil, but the classification should never be arbitrary,artificial or evasive.

(7) The classification must not be arbitrary but mustbe rational, that is to say, it must not only be based on somequalities or characteristics which are to be found in all thepersons grouped together and not in others who are left outbut those qualities or characteristics must have areasonable relation to the object of the legislation. In orderto pass the test, two conditions must be fulfilled, namely, (1)that the classification must be founded on an intelligibledifferentia which distinguishes those that are groupedtogether from others and (2) that that differentia must havea rational relation to the object sought to be achieved bythe Act.

(8) The differentia which is the basis of theclassification and the object of the Act are distinct thingsand what is necessary is that there must be a nexus betweenthem. In short, while Article 14 forbids class discriminationby conferring privileges or imposing liabilities uponpersons arbitrarily selected out of a large number of otherpersons similarly situated in relation to the privilegessought to be conferred or the liabilities proposed to beimposed, it does not forbid classification for the purpose oflegislation, provided such classification is not arbitrary inthe sense above mentioned.

(9) If the legislative policy is clear and definite andas an effective method of carrying out that policy adiscretion is vested by the statute upon a body ofadministrators or officers to make selective application ofthe law to certain classes or groups of persons, the statuteitself cannot be condemned as a piece of discriminatorylegislation. In such cases, the power given to the executivebody would import a duty on it to classify the subject-matter of legislation in accordance with the objectiveindicated in the statute. If the administrative body proceedsto classify persons or things on a basis which has no

45

rational relation to the objective of the Legislature, itsaction can be annulled as offending against the equalprotection clause. On the other hand, if the statute itselfdoes not disclose a definite policy or objective and itconfers authority on another to make selection at itspleasure, the statute would be held on the face of it to bediscriminatory, irrespective of the way in which it isapplied.

(10) Whether a law conferring discretionary powerson an administrative authority is constitutionally valid ornot should not be determined on the assumption that suchauthority will act in an arbitrary manner in exercising thediscretion committed to it. Abuse of power given by lawdoes occur; but the validity of the law cannot be contestedbecause of such an apprehension. Discretionary power isnot necessarily a discriminatory power.

(11) Classification necessarily implies the making ofa distinction or discrimination between persons classifiedand those who are not members of that class. It is theessence of a classification that upon the class are castduties and burdens different from those resting upon thegeneral public. Indeed, the very idea of classification isthat of inequality, so that it goes without saying that themere fact of inequality in no manner determines the matterof constitutionality.

(12) Whether an enactment providing for specialprocedure for the trial of certain offences is or is notdiscriminatory and violative of Article 14 must bedetermined in each case as it arises, for, no general ruleapplicable to all cases can safely be laid down. A practicalassessment of the operation of the law in the particularcircumstances is necessary.

(13) A rule of procedure laid down by law comes asmuch within the purview of Article 14 as any rule ofsubstantive law and it is necessary that all litigants, whoare similarly situated, are able to avail themselves of thesame procedural rights for relief and for defence with likeprotection and without discrimination.”

47. In D.S. Nakara20, the Constitution Bench of this Courthad an occasion to consider the scope, content and meaning

46

of Article 14. The Court referred to earlier decisions of thisCourt and in para 15, the Court observed:

“Thus the fundamental principle is that Article 14forbids class legislation but permits reasonableclassification for the purpose of legislation whichclassification must satisfy the twin tests of classificationbeing founded on an intelligible differentia whichdistinguishes persons or things that are grouped togetherfrom those that are left out of the group and that differentiamust have a rational nexus to the object sought to beachieved by the statute in question.”

48. In E.P. Royappa38, it has been held by this Court thatthe basic principle which informs both Articles 14 and 16are equality and inhibition against discrimination. ThisCourt observed in para 85 (page 38 of the report) as under:

“85….From a positivistic point of view, equality isantithetic to arbitrariness. In fact equality and arbitrarinessare sworn enemies; one belongs to the rule of law in arepublic while the other, to the whim and caprice of anabsolute monarch. Where an act is arbitrary, it is implicit init that it is unequal both according to political logic andconstitutional law and is therefore violative of Article 14,and if it affects any matter relating to public employment, itis also violative of Article 16. Articles 14 and 16 strike atarbitrariness in State action and ensure fairness andequality of treatment.”

68. Can it be said that the classification is based onintelligible differentia when one set of bureaucrats of JointSecretary level and above who are working with the CentralGovernment are offered protection under Section 6-A whilethe same level of officers who are working in the States donot get protection though both classes of these officers areaccused of an offence under PC Act, 1988 and inquiry /investigation into such allegations is to be carried out. Ouranswer is in the negative. The provision in Section 6-A, thus,impedes tracking down the corrupt senior bureaucrats aswithout previous approval of the Central Government, theCBI cannot even hold preliminary inquiry much less aninvestigation into the allegations. The protection in Section6-A has propensity of shielding the corrupt. The object ofSection 6-A, that senior public servants of the level of Joint

47

Secretary and above who take policy decision must not beput to any harassment, side-tracks the fundamentalobjective of the PC Act, 1988 to deal with corruption andact against senior public servants. The CBI is not able toproceed even to collect the material to unearth prima faciesubstance into the merits of allegations. Thus, the object ofSection 6-A itself is discriminatory. That being the position,the discrimination cannot be justified on the ground thatthere is a reasonable classification because it has rationalrelation to the object sought to be achieved."

20. So as to substantiate his submission that if the order impugned

has no intelligible differentia and no nexus with the object sought to be

achieved, then being arbitrary, it is violative of Article 14 of the

Constitution of India, Mr. Misra has cited two judgments of the Hon'ble

Apex Court in re: (i) Director General ,CRPF vs. Janardan Singh

reported in 2018 SCC OnLine SC 647 and (ii) Union of India &

others vs. Atul Shukla and others reported in (2014) 10 SCC 432.

21. Hon'ble Apex Court in the case of Director General ,CRPF vs.

Janardan Singh reported in 2018 SCC OnLine SC 647, in paras-18,

20 & 21 has held as under:-

"18. Article 14 does not prohibit reasonable classificationbut for passing test of permissible classification there aretwo conditions which have been time and again laid downand reiterated. It is useful to refer to the Constitution Benchjudgment of this Court in AIR 1955 SC 191, BudhanChoudhary versus State of Bihar. In paragraph 5, followinghas been laid down:"

"5....It is now well established that while Article 14forbids class legislation, it does not forbid reasonableclassification for the purposes of legislation. In order, 14however, to pass the test of permissible classification twoconditions must be fulfilled, namely, (i) that the

48

classification must be founded on an intelligible differentiawhich distinguishes persons or things that are groupedtogether from others left out of the group and (ii) thatdifferentia must have a rational relation to the object soughtto be achieved by the statute in question. The classificationmay be founded on different bases; namely, geographical, oraccording to objects or occupations or the like. What isnecessary is that there must be a nexus between the basis ofclassification and the object of the Act under consideration.It is also well established by the decisions of this Court thatArticle 14 condemns discrimination not only by asubstantive law but also by a law of procedure..."

20. When we apply the ratio as laid down above we find thatthere is no intelligible differentia between two classes ofemployees posted and serving in North East Region as notedabove. The policy of law as is clear from the originalGovernment Order dated 14.12.1983, it is clear thatGovernment came with the scheme of Special (Duty)Allowance with the object and purpose of encouraging,attracting and retaining the services of the officers in theNorth Eastern Region. To differentiate the employees in twocategories i.e. (i) whose Headquarters are within NorthEastern Region and (ii) whose Headquarters are outside theNorth Eastern Region, clearly indicate that classification isnot founded on any intelligible differentia.

21. Further the differentia has no rational relation to theobject sought to be achieved. When the purpose is toencourage and retain the personnel in North Eastern Regionto deny the benefit of Special (Duty) Allowance to those whoalthough posted and serving in North Eastern Region havetheir Headquarter outside the North East Region does nothave any rational nexus with object sought to be achieved."

22. Hon'ble Apex Court in re: Union of India & others vs. Atul

Shukla and others reported in (2014) 10 SCC 432 wherein the same

analogy, as considered above, has been given by the Hon'ble Apex

Court.

49

23. On the basis of the aforesaid submissions, Mr. U.N. Misra has

submitted that since the petitioners hereto are the Shiksha Mitras, who

have already qualified the T.E.T., and pursuant to the judgment of

Hon'ble Apex Court in re: Anil Kumar Yadav appeared in the first

recruitment but not being finally selected, appeared in the present

selection being second consecutive chance, therefore, they may not be

discriminated by fixing two different yardstick, as aforesaid, and

therefore, the Government Order dated 07.01.2019 is not only illegal,

arbitrary but the same is violative of Articles 14 and 16 of the

Constitution of India.

24. It would be apt to indicate here that at the time of admission of

this case Sri Prashant Chandra, learned Senior Advocate assisted by Sri

Ran Vijay Singh, learned Additional Chief Standing Counsel has

appeared on behalf of the State-respondents and categorically submitted

that these writ petitions are misconceived inasmuch as the petitioners

are not able to substantiate as to what detriment has been caused to

them out of the Government Order dated 07.01.2019 and what right of

the petitioners are being prejudiced. Sri Prashant Chandra has also

cited the judgment of Hon'ble Apex Court in re: State of Haryana vs.

Subhash Chandra Marwaha and others reported in 1974 (3) SCC 220

submitting that fixing qualifying marks is a sole prerogative of the

State Government and it cannot be assailed before the Court of law.

50

25. Since learned counsel for the petitioners argued with vehemence

that if the examination in question has already taken place, no

subsequent notification can be issued fixing minimum qualifying

marks. Further, if any minimum qualifying marks have been fixed, then

these minimum cut off should be seen minimum, not maximum. It

has further been submitted that understanding of the State in fixing

minimum marks should be seen in the light of earliler instances

inasmuch as in the preceding examination the minimum qualifying

marks were 45% and 40%, for both the categories, later on it has been

reduced as 33% and 30%, which appears to be 'minimum' but fixing

65% and 60% for both the categories, does not appear to be 'minimum'.

Since the matter required consideration, therefore, the direction for

status-quo was granted.

26. Mr. U.N. Misra, learned counsel for the petitioners has submitted

that since the petitioners have been granted the benefit by Hon'ble

Supreme Court to appear in two consecutive examinations and as per

22nd amendment in the Rules, 1981 the petitioners are entitled to get

the weightage of 2.5 marks, maximum 25 marks, therefore, their right

would be infringed if they are not provided the weightage after they are

declared qualified in the examination of Assistant Teacher. He has

further submitted that raising bench mark of minimum qualifying

marks to the extent of 65% and 60% is an attempt of State Government

to exclude the Shiksha Mitras to be qualified for the Assistant Teacher

51

Examination inasmuch as when earlier bench mark was 45% and 40%

the final result of Assistant Teacher Examination, 2018 remained very

low, raising bench marks upto the level of 65% and 60% would be

detrimental to all including the petitioners hereto who are Shiksha

Mitras.

27. Mr. U.N. Misra has further submitted that if the State-respondent

was at all interested to raise the bench mark upto 65% and 60% for both

the categories, it must have been notified on 01.12.2018 or 05.12.2018

so that the petitioners could have prepared themselves by making more

hard labour to achieve the score more than 65% but since it was not

notified earlier and the petitioners were well known that the State

Government had reduced the bench mark upto 33% and 30% for both

the categories, therefore, they had prepared the examination upto that

level. The aforesaid submission of Mr. Misra is substantiating the basic

objection of Sri Prashant Chandra that vide Government Order dated

07.01.2019 no detriment is being caused to the petitioners nor the same

has been alleged and no right of the petitioners is being prejudiced.

28. Mr. U.N. Misra has referred to many instances vide his

supplementary affidavit dated 06.02.2019. In para-4 of the said

affidavit, Sri U.N. Misra has cited that for filling up 5364 vacancies of

Assistant Teacher in Junior High Schools through Assistant Teacher

Examination, 2018 conducted by the U.P. Public Service Commission,

the minimum qualifying marks were 40% and 30% for both the

52

categories. For filling up 465 vacancies of Assistant Review Officer

(A.R.O.) and Review Officer (R.O.) in U.P. Civil Secretariat, U.P.

Public Service Commission and the Board of Revenue, issued

advertisement fixing minimum qualifying marks as 40% and 30% for

both the categories. For filling up 17 vacancies of Assistant

Prosecution Officer in Subordinate Courts, an advertisement was issued

on 28.12.2018 fixing minimum qualifying marks as 40% and 30% in

both the categories. For filling up total 610 vacancies in P.C.S. (J)/

Civil Judge (Junior Division), an advertisement was published on

11.09.2018 fixing minimum qualifying marks as 40% and 30% for both

the categories. He has lastly cited the instances of U.P. Higher Judicial

Services for filling up 37 vacancies, for which, an advertisement was

published in the year 2018 fixing minimum qualifying marks as 45%

and 40% respectively for both the categories.

29. In the light of the aforesaid instances, Mr. U.N. Misra has

submitted that in all the aforesaid superior examinations the minimum

qualifying marks was either 40% and 30% or 45% and 40% (for

H.J.S.), therefore, fixing 65% and 60% for both the categories in the

examination in question is not only illegal, arbitrary but it has got no

nexus with the object achieved and the same is violative of Article 14

and 16 of the Constitution of India. He has further submitted that it

appears that by fixing such a high qualifying marks has got some

ulterior motives and the same must be detrimental for the present

petitioners. As per Ms. U.N. Misra, the present examination of

53

A.T.R.E. 2019 is only qualifying exam whereas the examinations cited

above are meant for final selection, so high cut off marks may not be

fixed for qualifying examination, when the examination for final

selection are having less cut off marks.

30. So far as the proposition No.3 is concerned, it has been submitted

by Mr. U. N. Misra that the State-respondents, in their counter affidavit,

have wrongly given an impression as if the petitioners have prayed for

any relaxation in merit through the instant writ petition, which is

absolutely incorrect. Similarly, the State-respondents have also

presumptively referred Shiksha Mitras to be less meritorious and

incompetent, which is irrational and absolutely unjustified. By using

such phrases for T.E.T. qualified Shiksha Mitras/ petitioners, like they

cannot be awarded for their incompetence, persons who lack basic

qualification giving preference to those who are not qualified, the State-

respondents have expressed their biasness towards Shiksha Mitras, then

they have arbitrarily presumed that all the Shiksha Mitras are less

meritorious or incompetent. While doing so, they have completely

ignored the fact that the petitioners belong to that homogeneous class of

T.E.T. qualified Shiksha Mitras, who have successfully acquired the

T.E.T. qualification by passing the written examination having 60% and

55% as minimum qualifying marks for unreserved and reserved

category candidates respectively. Therefore, there was no justification

for the State-respondents (State Government) to refer Shiksha Mitras as

less meritorious in their counter affidavit. He has further submitted

54

that the State-respondents have unnecessarily emphasized that by

keeping such high minimum qualifying marks of 65% and 60% for

unreserved and reserved category candidates, they are promoting merit

in this selection, as if the previous selection of 2018 was not held on the

basis of merit or that the selection of candidates with 45% and 40%

minimum qualifying marks for respective categories, was a bogus

selection-sans merit.

31. As per Mr. U.N. Misra, repeated emphasis by the State

Government is on merit in their counter affidavit, to justify 65% and

60% as minimum qualifying marks in A.T.R.E. examination was made

without disclosing to this Hon'ble Court that in almost all the written

examinations/ selections for appointment made by State Government on

various Class-III, Class-II and Class-I posts in the State Government,

the minimum qualifying marks fixed by the Government are either 40%

and 30% or 45% and 35% for unreserved and reserved category

candidates. In this factual background, it is established that the over

emphasis on merit and fixing such high minimum qualifying marks in

this exam only is not based on public interest but it is effectuated by

ulterior motive and extraneous consideration of allowing selection of

some ineligible candidates, like B.Ed. passed candidates in the ongoing

examination, who do not possess the minimum requisite qualification of

professional training of primary students as per Rule 11 (1) (c) and they

can be appointed only as trainee teacher and not as Regular Assistant

Teacher. Thus, the impugned order dated 07.01.2019 was passed

55

without any reasonable justification and for colourable, arbitrary and

malafide exercise of powers.

32. Mr. U.N. Misra supporting his aforesaid submissions, referred

paras-8, 9,, 25 & 27 of the counter affidavit and those paras have been

replied in paras-8, 9, & 10 of the rejoinder affidavit including the chart

at page No.33 of the rejoinder affidavit. The aforesaid chart has been

prepared by the learned counsel for the petitioners, however, on

hypothetical basis just to demonstrate that the petitioners/ Shiksha

Mitras are more meritorious than the other candidates/ non Shiksha

Mitras, having a vast teaching experience, for which, weightage of 25

marks have been prescribed under the service rules itself only for

Shiksha Mitras, which is also a component of their merits and which

cannot be ignored. The aforesaid chart is being indicated here-in-

below.

Chart showing comparative merit of Shiksha Mitra's & NonShiksha Mitra's (both of 45% and 65%).

Shiksha Mitra's Non Shiksha Mitra's

At 45% At 45% At 65%

Sl.No.

Ingredients Obtained %ofMarks

Merit asperAppendix-1

Ingredients Obtained % ofMarks

Meritas perAppendix-1

Obtained %ofMarks

Meritas perAppendix

1. High School 60% 6 HighSchool

60% 6 60% 6

2. Intermediate 60% 6 Intermediate

60% 6 60% 6

3. Graduation 60% 6 Graduation 60% 6 60% 6

4. B.T.C. 60% 6 B.T.C/ 60% 6 60% 6

56

B.Ed.

5. A.T.R.E. 45% 27 A.T.R.E 45% 27 65% 39

6. Weightageof TeachingExperience

25 Weightagefo TeachingExperience

NIL NIL

Total 76 51 63

33. Not only the above, learned counsel for the petitioners has

vehemently opposed the suggestion, so given by the State-respondents

in para-7 of the counter affidavit giving the chart relating to the quality

point marks of Shiksha Mitras and non Shiksha Mitras. The said chart

prepared by the State-respondents in para-7 of the counter affidavit is as

under:-

HighSchool (10% ofpercentage)

Intermediate(10% ofpercentage)

Graduation(10% ofpercentage)

BTC/B.Ed. (10% ofpercentage)

Weightate

(25marks)

Total RecruitmentExamination (60% ofpercentage)

TotalMerit

ShikshaMitras (with35%academicmarks)

3.5 3.5 3.5acquiringjust 50%

5

25 40.5 (at 45%)

27

67.5

Other thanShikshaMitras(with 67%academicmarks)

6.7 6.7 6.7 acquiringjust 67%

6.7

0 26.8 (acquiringjust 67%)

40.20

67

34. The submission of learned counsel for the petitioners is that the

aforesaid chart being prepared by the State-respondents is absolutely

discriminatory inasmuch as the authority concerned has himself

presumed that Shiksha Mitras would be getting 35% marks and non

Shiksha Mitras would be getting 65% marks in High School,

Intermediate and Graduation. Further, the Shiksha Mitras would be

57

getting only 50% marks in B.T.C. / B.Ed. whereas non Shiksha Mitras

would be getting 67% marks, thereby the total marks of Shiksha Mitras

would be 40.5 including 25 marks of weightage whereas of non Shiksha

Mitras 26.8. Thereafter, if Shiksha Mitras obtain only 45% marks in

A.T.R.E., which comes as 27 marks and if non Shiksha Mitras acquire

67% marks in A.T.R.E., it comes 40.20 marks, at the rate of 60%, the

total marks of Shiksha Mitras would be 67.5 and non Shiksha Mitras

would be 67.00. Learned counsel for the petitioners has therefore

submitted that by means of the aforesaid chart, the State-respondents is

treating the Shiksha Mitras a very poor candidates in comparison to non

Shiksha Mitras. As per learned counsel for the petitioners, this may

not be said to be a correct method to prepare a chart even in the light of

the judgment of Hon'ble Apex Court in re:- Anand Yadav (supra). As

per Anand Yadad's case the Shiksha Mitras and non Shiksha Mitras

should be treated at par and the only difference is that the Shiksha

Mitras would be getting 25 marks as weightage, therefore, learned

counsel for the petitioners by means of supplementary affidavit filed on

06.02.2019 enclosed three charts, however, on hypothetical basis as

Annexure No.SA-6, treating the Shiksha Mitras at par with non Shiksha

Mitras making a little with difference in respect of marks of A.T.R.E.

presuming that the Shiksha Mitras obtained 64% marks and they

declared unqualified as per the impugned Government Order dated

07.01.2019, whereas non Shiksha Mitras obtained 65% marks and were

declared qualified. However, if total marks of both the persons are

counted providing 25 marks of weightage to the Shiksha Mitras, the

58

Shiksha Mitras would be getting more marks than non Shiksha Mitras.

The aforesaid three charts have been prepared by the learned counsel

for the petitioners, however on hypothetical basis, presuming 60%, 70%

and 80% marks have been obtained by the Shiksha Mitras and non

Shiksha Mitras, thereafter, showing the difference.

35. Since all the three charts are common, only the percentage of

marks are different, therefore, one chart which is indicating 60% marks

is being indicated here-in-below:-

Chart showing comparative merit of Shiksha Mitra's & NonShiksha Mitra's (both at 60%)

Sl.No. Ingredients Obtained% ofMarks

Merit asperAppendix-I

Ingredients Obtained %of Marks

Merit asperAppendix-I

1. High School 60% 6 High School 60% 6

2. Intermediate 60% 6 Intermediate 60% 6

3. Graduation 60% 6 Graduation 60% 6

4. B.T.C./B.Ed.

60% 6 B.T.C./ B.Ed. 60% 6

5. A.T.R.E. 64% 38 A.T.R.E. 65% 39

6. TotalWithout

Weightage

62 63

6. Weightage 25

Total 87 63

36. In support of the aforesaid arguments that order passed under

colourable, arbitrary and malafide exercise of power and on the basis of

whims, fancies and caprices without any reasonable justification is

liable to set aside, Sri U.N. Misra learned counsel for the petitioners

has referred the dictum of Hon'ble Apex Court in re: Scheduled Castes

59

and Scheduled Tribes Officers' Welfare Council vs. State of U.P. &

another reported in (1997) 1 SCC 701.

37. So far as the 4th proposition is concerned, Mr. U.N. Misra has

submitted that Shiksha Mitras were initially appointed from 1999

onwards through a selection held in local areas. They continued to

work in rural areas and filled up the gap of acute shortage of Assistant

Teachers in Basic Schools in the last fifteen years. After the N.C.T.E.

fixed the prescribed the minimum qualification of T.E.T. as the

minimum basic qualification vide Notification dated 23.08.2010 and

after the Central Government agreed in January 2011 on the State's

request to give two year Diploma in Basic Education by distant mode

i.e. D.B.T.C., the Shiksha Mitras had undergone that training of

D.B.T.C. Thereafter, the service rules were amended in May 2014 and

the Shiksha Mitras were regularized. He has further submitted that the

aforesaid regularization of Shiksha Mitra was however disapproved by

a Full Bench decision of this Hon'ble Court vide judgment dated

12.09.2015 in the case of Anand Kumar vs. State of U.P. on the ground

that they do not possess T.E.T. qualification and this decision was

finally approved by the Hon'ble Apex Court vide judgment dated

25.07.2017. However, the Hon'ble Apex Court after considering the

peculiar circumstances of the case and persistent hardship of Shiksha

Mitra, granted two opportunities to the Shiksha Mitras to acquire T.E.T.

qualification and thereafter, these T.E.T. qualified Shiksha Mitras were

permitted to appear in two consecutive recruitments for Assistant

60

Teacher with weightage for their teaching experience. This was done

apparently because the Hon'ble Apex Court recognized that the teaching

experience of Shiksha Mitra cannot be allowed to go in vain, as it is an

integral part of their merit. This option of giving weightage to Shiksha

Mitras was converted into a legal right when the State Government

through 22nd Amendment of the Service Rules dated 15.03.2018

incorporated it as second Proviso to Rule 14 (2) (a), read with

Appendix-1. Thereafter, these Shiksha Mitras' appeared and

successfully acquired T.E.T. qualification though the written

examination having 60% and 55% as minimum qualifying marks for

unreserved and reserved category candidates.

38. Mr. U.N. Misra has vehemently submitted that despite the fact

that the Shiksha Mitras, like the petitioners have cleared the aforesaid

obstacle, the State Government introduced a written examination

(A.T.R.E.) when these two consecutive opportunities for selection and

appointment were to be offered to them, as directed by the Hon'ble

Apex Court. Since 1982 till 2018 there has never been any selection of

Assistant Teacher which was based on a written test. Though written

examination was neither prescribed by N.C.T.E. nor suggested by the

Hon'ble Court in its judgment and order dated 25.07.2017, but even

then, the written examination was introduced by the State Government

in A.T.R.E. 2018 and A.T.R.E. 2019 in order to increase the level of

difficulty for Shiksha Mitras. Despite that, these T.E.T. qualified

candidates, appeared in the first written test and about 8000 of them

61

have successfully passed the same with 45% and 40% marks as

minimum qualifying marks for unreserved and reserved category

candidates and they got the weightage of 25 marks and also for

appointment.

39. Mr. U.N. Misra has further submitted that in this factual

background, the State Government further increased the level of

difficulty and raised the bar of absolute by suddenly hiking / increasing

the minimum qualifying marks from 45% and 40% to 65% and 60% for

respective categories, that too without having any valid and cogent

reason. This was done only to avoid giving weightage for 25 marks to

the Shiksha Mitras (like the petitioners) who possess the vast teaching

experience of 15 years and hence, entitled to get the benefit of

weightage for their teaching experience which is statutorily prescribed

in the Rules.

40. As per Mr. U.N. Misra the State Government in paras-6 and 9 of

the counter affidavit has claimed that if weightage is given to persons

lacking merit, it would defeat the claim of meritorious persons. Thus,

the State Government has completely ignored that teaching experience

of the Shiksha Mitras is also an integral part of their merit and

weightate for their teaching experience is not being given as a gratitude

and charity but it is a recognition of their merit only. Thus, the attempt

of the State Government to keep increasing the level of difficulty, every

time a T.E.T. qualified Shiksha Mitras approach them for regular

62

appointment is evidently irrational, arbitrary and illegal because the

Shiksha Mitras have a valid right to get their teaching experience duly

recognized in the instant selection, as weightage for teaching

experience is the sixth ingredient of Appendix-1 of the amended service

rules and is an integral part of quality point marks perscribed in Rule 14

(2) (a) of the Serviced Rules.

41. In support of his aforesaid submissions Mr. U.N. Misra has

referred the dictum of Hon'ble Apex Court in re: Bhagwati Prasad vs.

Delhi State Mineral Development Corporation reported in (1990) 1

SCC 361. The relevant para-6 of the aforesaid judgment is being

reproduced here-in-below:-

"6. The main controversy centres round the questionwhether some petitioners are possessed of the requisitequalifications to hold the posts so as to entitle them tobe confirmed in the respective posts held by them. Theindisputable facts are that the petitioners wereappointed between the period 1983 and 1986 eversince, they have been working and have gainedsufficient experience in the actual discharge of dutiesattached to the posts held by them. Practicalexperience would always aid the person to effectivelydischarge the duties and is a sure guide to assess thesuitability. ..."

42. Sri Upendra Nath Misra has further submitted that nullifying the

beneficial aspect of certain direction of the Hon'ble Apex Court in re:

Anand Kumar Yadav by the State-respondent by issuing mere

Government Order is not permissible in law. Further, the Hon'ble Apex

Court in re: Anand Kumar Yadav has issued direction to the State

63

Government regarding grant of two opportunities to the Shiksha Mitras

to acquire the requisite qualification of T.E.T. and right of participation

in the 'next two consecutive recruitments' along with grant of weightage

for their service experience and when the State Government, through

amendment in the service rules, has statutorily prescribed the aforesaid

weightage for teaching experience as 2.5 marks per year, subject to

maximum of 25 marks, then the aforesaid beneficial effect of the

judgment of Hon'ble Apex Court for protecting the interest of Shiksha

Mitras and also the statutory provision relating to the same, cannot be

nullified by the State Government by merely issuing ta Government

Order.

43. He has further submitted that he is unable to comprehend as to

what is the object of enhancing minimum qualifying marks from 45%

to 65% for Assistant Teacher Recruitment Examination when it is only

a qualifying examination. Further, if the averment of the counter

affidavit is believed to be correct, the said enhancement has been made

to select the best available candidates, then who are the best candidates,

as per State-respondent. Since the inclusin of B.Ed. candidates have

been made in the present examination, therefore, it appears that the

enhancement has been made to oust the Shiksha Mitras from the

selection in question and to select the B.Ed. candidates. If it is the

intention of the State-respondent to enhance the minimum qualifying

marks, then it would be violative to the rules itself which categorically

64

provides that the Shiksha Mitras would be getting 25 marks as

weightage.

44. Learned counsel for the petitioner has cited the dictum of Hon'ble

Apex Court in re: Medical Council of India vs. State of Kerala

reported in 2018 SCC Online SC 1467 and referred para 21 thereof

which is as under:

"21. What has been done by the impugned Ordinance bythe State Government is clearly entrenching upon the fieldof judicial review and it was obviously misadventureresorted to. In our considered opinion, it was not at allpermissible to the State Government to promulgate theOrdinance/ legislate in the matter. Not only the judgmentof the court is nullified and the arbitrariness committed inadmissions was glaring, and the decision of the HighCourt of Kerala which was affirmed by this Court withrespect to applications to be entertained if they wereonline applications has been undone. It was clearly an actof nullifying judgment and is violative of judicial powerswhich vested in the judiciary. It was not open for the StateGovernment to nullify the judgment /orders passed by theKerala High Court or by this Court. It was not a case ofremoval of defect in existing law. Various ConstitutionBench decisions of this Court have settled the principles oflaw governing the field. It passes comprehension how theState Government has promulgated the Ordinance inquestion."

45. Sri Upendra Nath Misra has submitted with vehemence that

where a statute contains both general provision as well as specific

provision, the later must prevail. As per Sri Misra Rule 14(3)(a) of

Service Rules prescribes preparation of merit list as per quality point

marks and weightage specified in Appendix -1. Further when a special

65

statutory provision for grant of weightage has been specifically

provided in second Proviso to Rule 14(3)(a) read with Appendix-1

which is available to all the T.E.T. qualified Shiksha Mitras like the

petitioners, for two consecutive attempts, under the judgment of the

Hon'ble Apex Court dated 25.7.2017 and when this recruitment of 2019

is the second and last such recruitment with weightage, that is available

to Shiksha Mitra, then, the special provision for grant of weightage to

Shiksha Mitra in two consecutive selections, cannot be nullified by the

respondents, by emphasizing the general provision of selection as it is

violative of the settled principle of law that when within the same

statute / rule, a special provision of law has been incorporated to cater

to special situation, the general provisions of law cannot be emphasized

over and above the special provision of law. Thus, the special provision

of law about weightage to T.E.T. qualified Shiksha Mitra in two

consecutive selections (the present one being the last one) cannot be

nullified by the respondent authorities by arbitrarily raising the

minimum qualifying marks for extraneous reason.

46. In support of his aforesaid contention, Sri U.N. Misra has cited

the dictum of Hon'ble Apex Court in re: Commercial Tax Officer,

Rajasthan vs. Binani Cement Ltd. and another reported in (2014) 8

SCC 319, wherein the Apex Court has held that where a statute contains

both general and special provisions, the later must prevail. Paras 34 &

49 read as under:

"34. It is well established that when a general law and aspecial law dealing with some aspect dealt with by the

66

general law are in question, the rule adopted and applied isone of harmonious construction whereby the general law, tothe extent dealt with by the special law, is impliedlyrepealed. This principle finds its origins in the latin maximof generalia specialibus non derogant, i.e., general lawyields to special law should they operate in the same fieldon same subject.....

49. It leaves no doubt that what is specific has to be seen incontradistinction with the other items/entries. The provisionmore specific than the other on the same subject wouldprevail. Here it is subject specific item and therefore asagainst items 1, 4, 6 and 7, which deal with units of allindustries and not only cement, item 1E restricted to onlycement units would be a specific and special entry and thuswould override the general provision."

47. Mr. U.N. Misra has further submitted that the minimum

qualifying marks / cut of marks must be predetermined to enable

adequate preparation by the candidates and, therefore, the material

prejudice has been caused to the petitioner since no such determination

has been prefixed. He has also submitted that after 20th Amendment in

the Rules 1981, notified on 9.11.2017, passing of Assistant Teacher

Recruitment Examination conducted by the government was prescribed

as minimum requisite qualification and was included in Rule 8(2)(a) but

this requirement was done away with in 22nd Amendment of the Rules

notified on 15.3.2018 whereby passing of Assistant Teacher

Recruitment Examination was removed from the prescription of

minimum requisite qualification mentioned in Rule 8(2)(a). After 22nd

Amendment the passing of written examination is included only as an

ingredient of procedure of selection prescribed under Rule 14(1)(a) (b).

Therefore, fixation of very high minimum qualifying marks for written

67

examination is absolutely arbitrary and since it has been introduced

after holding the examination without giving any prior information to

the candidates before the examination, it has caused material prejudice

to the petitioner and, therefore, it is impermissible in the eyes of law.

48. In support of aforesaid submission the learned counsel for the

petitioner has referred the dictum of Hon'ble Apex Court in re: P.V.

Indiresan (2) vs. Union of India and others reported in 2011 (8) SCC

411.

"25. The term "cut-off marks" in academic and judicialvocabulary has several meanings. When rejecting a person'srequest for selection on the ground that his marks are lessthan the marks secured by the last candidate who wasselected, by describing the marks secured by the lastcandidate as "cut-off marks". The words "cut-off marks" arealso used while notifying a body of applicants who formpart of a merit list or the general public, the marks securedby the last selected candidate so that they can know thatpersons with lesser merit/marks had not been selected orhave no chance of being selected. "Cut-off marks" are alsoused to refer to the minimum marks (either eligibility marksor qualifying marks) required for admission to a course.

44. The minimum eligibility marks for admission to a courseof study is always declared before the admission programmefor an academic year is commenced. An institution may saythat for admissions to its course, say Bachelor's degreecourse in science, the candidate should have successfullycompleted a particular course of study, say 10+2, withcertain special subjects. Or it can say that the candidateshould have secured certain prescribed minimum marks inthe said qualifying examination, which may be more thanthe percentage required for passing such examination. Forexample if a candidate may pass a 10+2 examination bysecuring 35% marks, an institution can say at its discretionthat to be eligible for being admitted to its course of study,the candidate should have passed with at least a minimum

68

of 40% or 50% or 60%. Whatever be the marks soprescribed, it should be uniform to all applicants and aprospective applicant should know, before he makes anapplication, whether he is eligible for admission or not. Butthe "cut-off" procedure followed by JNU during those dayshad the effect of rewriting the eligibility criteria, after theapplications were received from eligible candidates. If theminimum eligibility prescribed for an admission in aninstitution was 50% and a candidate had secured 50%, hecould not be denied admission, if a seat was available,based on a criterion ascertained after the last date forsubmission of applications.

45. No candidate who fulfills the prescribed eligibilitycriteria and whose rank in the merit list is within thenumber of seats available for admission, can be turneddown, by saying that he should have secured some highermarks based on the marks secured by some other categoryof students. A factor which is neither known nor ascertainedat the time of declaring the admission programme cannot beused to disentitle a candidate to admission, who is otherwiseentitled for admission. If the total number of seats in acourse is 154 and the number of seats reserved for OBCs is42, all the seats should be filled by OBC students in theorder of merit from the merit list of OBC candidatespossessing the minimum eligibility marks prescribed foradmission. (subject to any requirement for entranceexamination.) When an eligible OBC candidate is available,converting an OBC reservation seat to general category isnot permissible."

49. Sri U.N. Misra has further submitted that provision of an Act or

statutory rule cannot be altered , supplemented / modified / amended by

means of mere Government Order. As per Mr. Misra Rule 14(1)(a)

requires a candidate "only to pass" the Assistant Teacher Recruitment

Examination conducted by the Government. The Statute, therefore,

requires 'merely passing' of written examination and it does not require

"passing with first division marks and above". However, the State

69

Government by issuing a Government Order dated 7.1.2019 had tried to

substitute / amend the aforesaid statutory prescription of "mere

passing" to "passing with first division marks" under the garb of

fixation of minimum qualifying marks under Rule 2(1)(a). After the

22nd Amendment, since the intention of Legislature was no longer to

keep passing of Recruitment Examination as one of minimum requisite

qualification, therefore, legislature has consciously not mentioned the

words "passing with first division" in Rule 14(1)(a) and therefore the

statutory prescription cannot be allowed to be changed by the State

Government by merely issuing an executive fiat.

Moreover, the Legislature has consciously used the word

"minimum" in Rule 2(x) of the Service Rules relating to fixation of

qualifying marks for passing the written exam and this word

"minimum" has been sought to be supplanted by the words "excessive"

by the respondents which is impermissible under law.

50. In support to his aforesaid submission Mr. Misra has referred

dictum of Hon'ble Apex Court in re: Public Service Commission,

Uttaranchal vs. Jagdish Chandra Singh Bora and another reported in

2014 (8) SCC 644.

"28. However, we find substance in the submission made byMr. C.U. Singh that 2004 clarification would not have theeffect of amending 2003 Rules. Undoubtedly, 2004clarification is only an executive order. It is settledproposition of law that the executive orders cannot supplantthe rules framed under the proviso to Article 309 of theConstitution of India. Such executive orders/instructions canonly supplement the rules framed under the proviso toArticle 309 of the Constitution of India. Inspite of accepting

70

the submission of Mr. C.U. Singh that clarification dated29.4.2004 would not have the effect of superceding,amending or altering the 2003 Rules, it would not bepossible to give any relief to the respondents. The criteriaunder the 2003 Rules governs all future recruitments. Wehave earlier already concluded that no vested right hadaccrued to the respondents, the trained apprentices, underthe 2001 Rules. We do not accept the submission of Mr. C.U.Singh that the claim of the respondents (trained apprentices)would be covered under the 2001 Rules by virtue of the socalled amendment made by 2003 Rules. We are of theopinion that the High Court committed an error, firstly, inholding that the 2003 rules are applicable, and secondly,not taking into consideration that all the posts had beenfilled up by the time the decision had been rendered.

51. Sri Upendra Nath Mishra has submitted that the rules of game

cannot be allowed to change or alter after the game starts. As per Sri

Upendra Nath Mishra, when notice for second recruitment was issued

on 1.12.2018 and written examination was proposed to be held on the

basis of multiple answer-questions paper, no minimum qualifying

marks were prescribed in Clause-7 of that Government Order. It was

only after holding the examination on 6.1.2019 that the minimum

qualifying marks were prescribed on 7.1.2019. Since candidates were

not informed well before the examination that the minimum qualifying

marks are going to be kept so high i.e. 65% and 60% and since there

was no minimum qualifying marks prescribed in Clause-7, therefore,

every participant had legitimate expectation that in absence of any

clause prescribed of minimum qualifying marks in the ongoing

selection, the State Government would maintain parity of treatment

with respect to minimum qualifying marks, at least in two consecutive

71

recruitments offered to Shiksha Mitras in compliance of the judgment

of the Hon'ble Apex Court in re; Anand Kumar Yadav (supra).

52. Sri H. N. Singh, learned Senior Advocate has assailed the

Government Order dated 7.1.2019 on the ground that as per 22nd

amendment of Service Rules, the qualification so fixed for filling up

the post of Assistant Teacher through Assistant Teacher Recruitment

Examination is not the eligibility as per Rule 8 of the Rules 1981.

53. Sri Singh has further submitted that as per notification dated

23.8.2010 and 29.7.2011 issued by the NCTE which is an academic

body authorises the Central Government in pursuance of section 23(1)

of R.T.E. Act, 2009, the eligibility of appointment of Assistant Teacher

in Junior Basic School is only the Graduation, training qualification

with passed T.E.T. conducted by the Central Government / State

Government. The State Government is bound to follow the eligibility

criteria notified by the N.C.T.E. vide its notification dated 23.8.2010 as

held by this Court as well as by the Hon'ble Apex Court in catena of

cases.

54. As per Sri Singh in exercise of the power under section 23 of the

Act, 2009, the Central Government has appointed N.C.T.E. as an

academic authority and once the academic authority has prescribed

qualifications and also issued guidelines for conducting T.E.T.

examination, all the State Governments are bound to conduct T.E.T.

72

examination as per the guidelines framed by the N.C.T.E. and even

otherwise the State Government is conducting T.E.T. examination since

2011 regularly and the examinations were conducted in the year 2013-

14, 2014-15, 2015-16, 2016-17, 2017-18 as per guidelines framed by

the N.C.T.E. and candidates were declared passed in T.E.T. after

obtaining 60% and 55%, as the case may be, marks in the test. As per

Sri Singh the State Government has neither specified any qualifying

marks in the Government Order dated 1.12.2018 nor in the

Advertisement dated 5.12.2018 to the effect that minimum qualifying

marks can be added after the examination. Therefore, if no such recital

has been made in the Government Order dated 1.12.2018 and

Advertisement dated 5.12.2018, no qualifying marks could have been

fixed on 7.1.2019 for the examination of Assistant Teacher Recruitment

Examination-2019 which was over on 6.1.2019. As per Sri Singh the

aforesaid exercise of the State Government would be change of Rules

after the game starts, which is not permissible.

55. As per Sri Singh in the year 1993 the Parliament enacted the

National Council for Teacher Education Act, 1993. The object of NCTE

Act is to establish a National Council for Teacher Education with a

view to achieve planned and coordinated development for the teacher

education system throughout the country. Section 31(1) of NCTE Act

confers the rule making power upon the Central Government and

section 32 empowers the NCTE Act to frame regulations to carry out

the object of NCTE Act. He has further submitted that after enactment

73

of NCTE Act, the NCTE, exercising its power under section 32, framed

the National Council for Teacher Education (Determination of

Minimum Qualifications for the Recruitment of Teachers in theSchools)

Regulation, 2001. NCTE Regulation, 2001 lays down the essential

qualification for appointment to the post of teacher in the basic schools,

including elementary schools imparting education at basic schools and

senior basic schools. First schedule in the said Regulations provides the

essential qualification for appointment of teachers in basic schools.

56. As per Sri Singh by the 86th Constitutional Amendment, Article

21-A was inserted in the Constitution casting obligations on the State

to provide free and compulsory education to all children to the age of 6

to 14 years. In furtherance of the object of Article 21-

A of the Constitution, the Parliament enacted the Right of Children Free

and Compulsory Education Act, 2009. Further, the State Government

issued the Right of Children to Free and Compulsory Education Rules,

2010 under R.T.E. Act. The said Rules also deal with the acquisition of

minimum qualification. It empowers the Central Government to notify

the Academic Authority for laying down the academic qualifications for

the appointment as a teacher in basic schools.

57. As per Sri Singh section 23 of the R.T.E. Act provides that the

Central Government shall authorise an academic authority to prescribe

the qualification for appointment and the terms and conditions of

service of the teachers. In exercise of said power, the Central

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Government authorised the NCTE to perform such functions. Further,

after authorisation by the Central Government, NCTE, under RTE Act,

issued another Regulation, known as National Council for Teacher

Education (Recognition, Norms and Procedure) Regulation, 2009. The

NCTE, exercising powers conferred upon it pursuant to the Central

Government's authorisation under section 23(1) of RTE Act, 2009

issued Notification dated 23.8.2010, which was amended vide

Notification dated 29.7.2011, laying down the essential qualification for

the person to be eligible for appointment as teacher for Class-I to VIII.

The relevant section 23 of R.T.E. Act, 2009 is as under :

"(1) Any person possessing such minimum qualifications, as laiddown by an academic authority, authorized by the CentralGovernment, by notification, shall be eligible for appointment asa teacher.

(2) Where a State does not have adequate institutions offeringcourses or training in teacher education, or teachers possessingminimum qualifications as laid down under sub-section (1) arenot available in sufficient numbers, the Central Government may,if it deems necessary, by notification, relax the minimumqualifications required for appointment as a teacher, for suchperiod, not exceeding five years, as may be specified in thatnotification:

PROVIDED that a teacher who, at the commencement of thisAct, does not possess minimum qualifications as laid down undersub-section (1), shall acquire such minimum qualifications withina period of five years.

(3) The salary and allowances payable to, and the terms andconditions of service of, teachers shall be such as may beprescribed.

58. As per Sri Singh in exercise of the aforesaid section 23(1) of RTE

Act, the NCTE, vide notification dated 23.8.2010 laid down the

minimum qualification for a person to be eligible for appointment as

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teacher in Class-I to VIII in schools referred in section 2(n) of the RTE

Act.

59. In Rule 5 of the Rules, 1981 source of recruitment has been given

wherein sub-rule (2) of Clause (ka) of section 5 source of recruitment of

Assistant Teacher and Assistant Mistresses of Junior Basic Schools

have been given i.e. direct recruitment and in section 8 of the Rules,

1981 the eligibility of appointment of Assistant Teacher has been given.

60. The State of U.P. also framed the U.P. Right to Children to Free

and Compulsory Education Rules, 2011 under the RTE Act, as the one

of the essential qualifications prescribed therein is passing Teachers

Eligibility Test (TET) to be conducted in accordance of RTE Act,

Central RTE Rules, State RTE Rules and NCTE Regulations, 2009 by

the appropriate government in accordance with the guidelines framed

and issued by the NCTE for the purpose.

61. It would be apt to indicate here that in the issue of Shiksha Mitras

whether they are having proper qualification as mandated under the

Rules for the appointment and regularisation, the Full Bench of this

Court vide judgment and order dated 12.9.2015 in re: Anand Kumar

Yadav vs. Union of India as well as the Hon'ble Apex Court vide

judgment and order dated 25.7.2017 in re: State of U.P. vs. Anand

Kumar Yadav and others has held that Shiksha Mitras do not have any

legal right for regularisation as neither they fulfill minimum

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qualification nor even B.T.C. qualification under 2001 Regulations nor

they have been appointed against the sanctioned posts, therefore, there

regular appointments may not be made unless they acquire requisite

qualification. After the aforesaid judgment of Hon'ble Apex Court

necessary exercise initiated in respect of Shiksha Mitras and also for

others to be appointed on the post of Assistant Teacher.

62. The State Government amended the Rules, 1981 on 9.11.2017

(20th Amendment). Vide section 2(w) the State Government has

introduced a new examination namely, Assistant Teacher Recruitment

Examination for the appointment as Assistant Teacher and by section

2(x) the Government has prescribed minimum qualification marks for

Assistant Teacher Recruitment Examination. It is to be noted here that

by way of 20th Amendment the selection criteria was changed and

additional requirement of passing Assistant Teacher Recruitment

Examination which was to be conducted by the Government was

inserted in Rule 8(a)(ii) and Rule 14 of the Rules, 1981. The perusal of

the aforesaid sections makes it crystal clear that for appointment to the

post of Assistant Teacher, a candidate must pass the Assistant Teacher

Recruitment Examination with minimum marks as prescribed in the

guidelines.

63. Thereafter the State Government issued Government Order on

9.1.2018 for filling up 68500 posts of Assistant Teachers in Junior Basic

Schools as per the guidelines of 20th Amendment in the Rules, 2017. In

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the said examination minimum qualifying marks for TET was 60% &

55%, as the case may be, and for Assistant Teacher Recruitment

Examination-2018 was 45% and 40% for both the categories.

64. The State Government again amended Rules, 1981 on 15.3.2018

vide 22nd Amendment made in the Rules, 1981. By way of 22nd

Amendment the requirement of passing the Assistant Teacher

Recruitment Examination was removed from Rule 8 of Rules, 1981

which provides the academic qualification required for appointment to

the post of Primary Teacher. However, the said requirement continued

to be a part of Rule 14 of the said Rules.

65. Sri Singh has submitted that power of State Government of fixing

qualifying marks is not unfettered and arbitrary power. No doubt, the

State Government is authorized to fix the minimum qualifying marks,

but the minimum marks so fixed must be seen as minimum not

maximum. Sri Singh elaborated the understanding of the State

Government of minimum marks submitting that vide its own decision

dated 9.1.2018, the State Government treated 45% and 40% marks

respectively for general category and reserved category as minimum in

the earlier selection. Later on, vide decision dated 21.5.2018 33% and

30% marks respectively for general category and reserved category

have been treated as minimum. It appears that as per the State

Government, instead of 45% and 40%, 33% and 30% should be

minimum marks for general category and reserved category, therefore,

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65% and 60% marks for both the categories may not be treated as

minimum in any manner whatsoever.

66. Sri Singh has referred couple of dictionaries to explain the word

‘minimum’. As per Webster Dictionary ‘minimum’ means "smallest",

as per Oxford Dictionary, ‘minimum’ means "the least or smallest

amount or quantity possible", as per Advance Law Lexicon

Dictionary ‘minimum’ means "smallest amount or degree" and as per

Cambridge Dictionary. 'minimum' means "the smallest amount or

number allowed or possible". It further says ‘minimum’ must mean in

each as much as minimum in aggregate’

67. It would not out of place to indicate here that a Government

Order dated 7.5.2018 was issued stating therein that Assistant Teacher

Recruitment Examination-2018 would be held on 22.5.2018. Further,

before taking the aforesaid examination the earlier Government Order

dated 9.1.2018 was amended vide Government Order dated 21.5.2018

reducing the minimum qualifying marks from 45% and 40% (for both

categories) to 33% and 30%. The said Government Order dated

21.5.2018 was assailed by some of the petitioners by filing W.P.

Service Single No. 20404 of 2018 before this Court and this Court

stayed the operation of the Government Order dated 21.5.2018 vide

order dated 24.7.2018. It would be pertinent to indicate here that the

State Government vide G.O. dated 20.2.2019 has withdrawn the

Government Order dated 21.5.2018, therefore, the Service Single No.

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20404/2018 and batch of writ petitions have been dismissed being

infructuous.

68. Since this Court vide interim order dated 24.7.2018 (supra)

stayed the operation of the Government Order dated 21.5.2018,

therefore, competent authority has issued order dated 8.8.2018 directing

the concerned authorities to prepare the result as per minimum marks

provided in the Government Order dated 9.1.2018. Pursuant to the

aforesaid order dated 8.8.2018 result of Assistant Teacher Recruitment

Examination-2018 was declared on 13.8.2018 in which 41556

candidates were declared passed. It is to be noted here that pursuant to

the result of revaluation being declared 4500 and odd candidates were

also declared passed.

69. Sri Singh has submitted vide Government Order dated 1.12.2018

the applications were invited for conducting Assistant Teacher

Recruitment Examination-2019 for filling up 69000 vacancies of

Assistant Teachers and its advertisement issued on 5.12.2018 wherein

the date of examination was fixed as 6.1.2019. Admittedly, in the said

examination only those candidates could have appeared who have

qualified T.E.T. with minimum qualifying marks of 60% & 55%, as the

case may be. In the said examination no minimum cut off marks was

fixed for Assistant Teacher Recruitment Examination and the

examination was conducted on 6.1.2019 without any such fixation of

minimum qualifying marks. Further, vide Government Order dated

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7.1.2019 minimum qualifying marks have been fixed which is

impugned herein.

70. As per Sri Singh the Hon'ble Apex Court in re: Anand Kumar

Yadav (supra) has held that if Shiksha Mitras possess the requisite

qualification in terms of the qualifications of advertisement they would

be eligible for two consecutive recruitments and in the first Assistant

Teacher Recruitment Examination-2018 those Shiksha Mitras who

could not qualify Assistant Teacher Recruitment Examination, were

eligible to appear in the second Assistant Teacher Recruitment

Examination-2019 in terms of the aforesaid judgment of Hon'ble Apex

Court.

71. Sri Singh has also submitted that the petitioners (Shiksha Mitras)

have all the requisite qualification for becoming eligible to be appointed

to the post of Assistant Teacher in accordance with the requirement laid

down by the NCTE. However, in the light of 20th and 22nd

Amendment in the Rules, 1981 the mandatory requirement for the

petitioners is to appear in Assistant Teacher Recruitment Examination

though the same is against the eligibility qualification being prescribed

by the academic authority but the same has been adopted by the State

Government by way of 20th and 22nd Amendment in the Service Rules,

1981.

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72. Sri Singh has further submitted that the impugned Government

Order has not been issued in exercise of any provision under RTE Act,

2009 and the Uttar Pradesh Right to Free and Compulsory Education

Rules, 2011, therefore, it appears that this Government Order might

have been issued in exercise of executive powers of the State

Government under Article 162 read with Article 166 of the Constitution

of India. Further, Article 154 provides that the executive power of the

State shall be vested in the Governor and shall be exercised by him

either directly or through the officer subordinate to him in accordance

with Constitution. Article 163 provides for council of ministers who

shall advise the Governor and as such any decision of the Government

in the name of Governor may be taken only. The decision of council of

ministers may be issued by officer authorised by the Governor

authenticating the same in the manner prescribed. Therefore, is has

submitted that the Government Order dated 7.1.2019 which was issued

by the Special Secretary of the Department who is not a competent

authority as aforesaid, that too on the request of Secretary, Board of

Basic Education dated 5.11.2019 as this issue was never placed for

decision of council of ministers and as such the so-called Government

Order dated 7.1.2019 is not a Government Order but is merely a letter

issued by the Special Secretary which may not be treated as a decision

of the Government for fixing the minimum qualifying marks. He has

also submitted that from perusal of the Government Order it is apparent

that same had been issued in the name of Governor of the State of U.P.

and have not been authenticated in such a manner as specified by Uttar

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Pradesh Distribution of Work Rule, 1975 [ Uttar Pradesh Karya

(Batwara) Niyamawali, 1975.]

73. Under the Rules, 1975 referred above all powers relating to Basic

Education has been conferred to Shiksha Anubhag-5 and as such any

Government Order in the name of Governor of State of U.P. may be

issued only by the Shiksha Anubhag-5 and not by Shiksha Anubhag-4

issued by Special Secretary of the Government of U.P. Therefore, in

view of the above Sri Singh has assailed the Government Order dated

7.1.2019 being arbitrary and illegal and unconstitutional, the same may

not be given effect to. He has further submitted that at the best if this

Court wants to protect the examination in hand i.e. Assistant Teacher

Recruitment Examination-2019, at least it may be directed that the

result of the examination in question may be declared ignoring the

Government Order dated 7.1.2019 and in the same manner as the earlier

examination of Assistant Teacher Recruitment Examination-2018 was

conducted and the result was declared.

74. Dr. L.P. Misra has submitted that since the earlier Examination of

Assistant Teacher, 2018 has been conducted in violation of judgment

and order dated 6.3.2018 passed by this Court in Writ Petition

No.28222 (S/S) of 2017, which is presently holding the field, so

Examination of Assistant Teacher, 2019 conducted on 6.1.2019 could

have not been conducted. Dr. L.P. Misra has pointed out that vide

judgment and order dated 6.3.2018 certain directions were issued by the

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Single Judge in respect of Teacher Eligibility Test of the preceding

examination and said judgment was assailed before the Division Bench.

The Division Bench vide judgment and order dated 17.4.2018 partially

modified the judgment and order dated 6.3.2018. The judgment of

Division Bench dated 17.4.2018 has been assailed before the Hon’ble

Apex Court and the Hon’ble Apex Court vide Civil Appeal No.18876 of

2018 set aside the judgment of the Division Bench permitting the State

Government to implead private respondents, who were party before the

Single Judge and thereafter the matter shall be decided by the Division

Bench. As per Dr. L.P. Misra, the State-respondents did not file any

impleadment application before the Division Bench in compliance of

the direction of the Hon’ble Apex Court by 1.12.2018 and issued

Government Order and notification/ advertisement dated 05.12.2018

for conducting Assistant Teacher Recruitment Examination, 2019. Sri

Misra has further submitted that since the examination which was

conducted on 6.1.2019 was conducted in violation of judgment and

order dated 6.3.2018, therefore, the subsequent Government Order

dated 7.1.2019 is also void ab initio. As per Dr. Mishra, if the Division

Bench decides the issue regarding earlier examination confirming the

judgment of Hon'ble Single Judge dated 06.03.2018, entire examination

of A.T.R.E.-2018 would be affected and it would cast impact on this

examination of A.T.R.E.-2019.

75. Dr. L.P. Misra has further submitted that the Government Order

dated 7.1.2019 may not be said to be Government Order in its literal

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term inasmuch as the same is violative of Article 162 of the

Constitution of India.

76. Dr. Misra has further submitted that the Government Order dated

7.1.2019 is not only dehors to but virtually is aghost to and is under the

teeth of the spirit of judgment and order dated 25.7.2017 passed by the

Hon’ble Apex Court in re; State of Uttar Pradesh and another v.

Anand Kumar Yadav and others, (2018) 13 SCC 560. Dr. Misra has

submitted with vehemence that in view of the judgment dated

25.7.2017 passed by the Hon’ble Apex Court in re; Anand Kumar

Yadav (supra), no further compulsive eligibility for being an applicant

could be prescribed for at least two consecutive recruitments to be held

after the Hon’ble Supreme Court judgment dated 25.7.2017and even if

it is prescribed under the Rule, the fixation of qualifying marks cannot

at all be such so as to eat out the very spirit of judgment dated

25.7.2017 passed by the Hon’ble Apex Court in re; Anand Kumar

Yadav (supra) thereby to oust the Siksha Mitras (writ petitioners) at a

stage prior to allocation of weightage marks as mentioned in Appendix-

I attached to 1981 Rules as amended up to 22nd Amendment.

77. Dr. L.P. Mishra in support of his submissions that placing equals

as unequals is not permissible, has placed reliance on certain following

judgments of Hon'ble Apex Court.

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78. The Constitution Bench of the Hon'ble Apex Court in re; D.S.

Nakara and others v. Union of India, (1983) 1 SCC 305, has held in

paragraphs 42 & 43 as under:-

"42. If it appears to be undisputable, as it does to usthat the pensioners for the purpose of pension benefitsform a class, would its upward revision permit ahomogeneous class to be divided by arbitrarily fixing aneligibility criteria unrelated to purpose of revision, andwould such classification be founded on some rationalprinciple? The classification has to be based, as is wellsettled, on some rational principle and the rationalprinciple must have nexus to the objects sought to beachieved. We have set out the objects underlying thepayment of pension. If the State considered it necessaryto liberalise the pension scheme, we find no rationalprinciple behind it for granting these benefits only tothose who retired subsequent to that date simultaneouslydenying the same to those who retired prior to that date.If the liberalisation was considered necessary foraugmenting social security in old age to governmentservants then those who, retired earlier cannot be worstoff than those who retire later. Therefore, this divisionwhich classified pensioners into two classes is not basedon any rational principle and if the rational principle isthe one of dividing pensioners with a view to givingsomething more to persons otherwise equally placed, itwould be discriminatory. To illustrate, take two persons,one retired just a day prior and another a day justsucceeding the specified date. Both were in the samepay bracket, the average emolument was the same andboth had put in equal number of years of service. Howdoes a fortuitous circumstance of retiring a day earlieror a day later will permit totally unequal treatment inthe matter of pension? One retiring a day earlier willhave to be subject to ceiling of Rs 8100 p.a. and averageemolument to be worked out on 36 months' salary whilethe other will have a ceiling of Rs 12,000 p.a. andaverage emolument will be computed on the basis of last10 months' average. The artificial division stares intoface and is unrelated to any principle and whateverprinciple, if there be any, has absolutely no nexus to theobjects sought to be achieved by liberalising the pensionscheme. In fact this arbitrary division has not only nonexus to the liberalised pension scheme but it iscounter-productive and runs counter to the whole gamutof pension scheme. The equal treatment guaranteed in

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Article 14 is wholly violated inasmuch as the pensionrules being statutory in character, since the specifieddate, the rules accord differential and discriminatorytreatment to equals in the matter of commutation ofpension. A 48 hours' difference in matter of retirementwould have a traumatic effect. Division is thus botharbitrary and unprincipled. Therefore, the classificationdoes not stand the test of Article 14.

43. Further the classification is wholly arbitrarybecause we do not find a single acceptable orpersuasive reason for this division. This arbitrary actionviolated the guarantee of Article 14. The next question iswhat is the way out?"

79. The Hon'ble Apex Court in re; Prem Chand Somchand Shah

and another v. Union of India and another, (1991) 2 SCC 48 , has

held in para-8 as under:-

"8. As regards the right to equality guaranteedunder Article 14 the position is well settled that the saidright ensures equality amongst equals and its aim is toprotect persons similarly placed against discriminatorytreatment. It means that all persons similarlycircumstanced shall be treated alike both in privilegesconferred and liabilities imposed. Converselydiscrimination may result if persons dissimilarly situateare treated equally. Even amongst persons similarlysituate differential treatment would be permissiblebetween one class and the other. In that event it isnecessary that the differential treatment should befounded on an intelligible differentia whichdistinguishes persons or things that are groupedtogether from others left out of the group and thatdifferentia must have a rational relation to the objectsought to be achieved by the statute in question."

80. The Hon'ble Apex Court in re; Amita v. Union of India and

another, (2005) 13 SCC 721, has held in paras-11 & 12 as under:-

"11. ................ Article 14 of the Constitutionguarantees to every citizen of India the right to equalitybefore the law or the equal protection of law. The first

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expression “equality before the law” which is takenfrom the English common law, is a declaration ofequality of all persons within the territory of India,implying thereby the absence of any special privilege infavour of any individual. It also means that amongst theequals the law should be equal and should be equallyadministered and that likes should be treated alike.Thus, what it forbids is discrimination between personswho are substantially in similar circumstances orconditions. It does not forbid different treatment ofunequals. Article 14 of the Constitution is both anegative and positive right. Negative in the sense thatno one can be discriminated against: anybody andeveryone should be treated as equals. The latter is thecore and essence of the right to equality and the Statehas the obligation to take necessary steps so that everyindividual is given equal respect and concern which heis entitled to as a human being. Therefore, Article 14contemplates reasonableness in State action, theabsence of which would entail the violation of Article 14of the Constitution.

12. .................. Under Article 16 of the Constitutionthe general rule laid down is that there should be equalopportunity for citizens in matters relating to“employment” or “appointment to any office” underthe State. The expression “matter relating toemployment or appointment” includes all matters inrelation to employment both prior and subsequent tothe employments which are incidental to theemployment and form part of the terms and conditionsof such employment. Therefore, under Article 16 of theConstitution what is guaranteed is equal opportunity toall persons. This clause accordingly does not preventthe State from laying down the requisite qualificationsfor recruitment to government service, and it is open tothe authority to lay down such other conditions ofappointment as would be conducive to the maintenanceof proper discipline among government servants. Likeother employers, the Government is also entitled topick and choose from amongst a large number ofcandidates offering themselves for employment. Butthis can only be done on one condition, that allapplicants must be given an equal opportunity along

88

with others who qualify for the same post. The selectiontest must not be arbitrary and technical qualificationsand standards should be prescribed where necessary.In this case, in our view, there is violation of the rightof the writ petitioner under Article 16(1) whichprovides for the general rule, that there should be equalopportunity for citizens in matters relating to“employment” or “appointment to any office” underthe State, matters incidental to employment both priorand subsequent to the employments which form part ofthe terms and conditions of such employment. In thiscase, the writ petitioner was in the first instance deniedequal opportunity as given to other applicants fromappearing in the entrance examination on the groundof disability which was not mentioned as a condition inthe advertisement. That apart, the writ petitioner,although a visually impaired lady had not asked for anyspecial favour for selection to the post of ProbationaryOfficer............"

81. The Hon'ble Apex Court in re; State of Uttar Pradesh v.

Dayanand Chakrawarty and others, (2013) 7 SCC 595, has held in

paras-30 to 34 as under:-

"30. This Court in Harwindra Kumar [HarwindraKumar v. Chief Engineer, Karmik, (2005) 13 SCC 300 :2006 SCC (L&S) 1063] held that so long as Regulation31 is not amended, 60 years which is the age ofsuperannuation of the government servants shall beapplicable to the employees of the Nigam. However, incontravention of finding of this Court without amendingRegulation 31, new Regulations 3 and 4 of the 2005Regulations have been framed by the Nigam prescribingtwo separate ages of superannuation for similarlysituated employees.

31. In Prem Chand Somchand Shah v. Union ofIndia [(1991) 2 SCC 48] this Court held: (SCC p. 56,para 8)

“8. As regards the right to equality guaranteedunder Article 14 the position is well settled that thesaid right ensures equality amongst equals and its

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aim is to protect persons similarly placed againstdiscriminatory treatment. It means that all personssimilarly circumstanced shall be treated alike bothin privileges conferred and liabilities imposed.Conversely discrimination may result if personsdissimilarly situate are treated equally. Evenamongst persons similarly situate differentialtreatment would be permissible between one classand the other. In that event it is necessary that thedifferential treatment should be founded on anintelligible differentia which distinguishes personsor things that are grouped together from others leftout of the group and that differentia must have arational relation to the object sought to be achievedby the statute in question.”

32. Since creation of the Nigam, irrespective ofsource of recruitment, the employees of the Nigam weretreated alike for the purpose of superannuation and wereallowed to superannuate at the age of 58 years as isevident from Regulation 31.

33. As per the decision of this Court in Prem ChandSomchand Shah [(1991) 2 SCC 48] even amongstpersons similarly situated differential treatment would bepermissible between one class and the other. In thatevent it is necessary that the differential treatment shouldbe founded on an intelligible differentia whichdistinguishes persons or things that are grouped togetherfrom others left out of the group and that differentia musthave a rational relation to the object sought to beachieved by the statute. The appellants, the Nigam aswell as the State of Uttar Pradesh failed to place onrecord the reasons for differential treatment whichdistinguishes employees of erstwhile LSGED and thosewho were appointed directly in the Nigam.

34. Further, as employees appointed from differentsources, after their appointment were treated alike forthe purpose of superannuation under Regulation 31,subsequently solely on the basis of source of recruitmentno discrimination can be made and differential treatmentwould not be permissible in the matter of condition ofservice, including the age of superannuation, in absenceof an intelligible differentia distinguishing them from

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each other. We therefore hold that the High Court by theimpugned judgment [Dayanand Chakrawarty v. State ofU.P., (2010) 6 All LJ 1] rightly declared the 2005Regulations unconstitutional and ultra vires Article 14 ofthe Constitution of India."

82. The Hon'ble Apex Court in re; Maharashtra Forest Guards

and Foresters Union v. State of Maharashtra and others, (2018) 1

SCC 149, has held in para-17 as under:-

"17. The challenge is on the further rigour put on theeligibility to appear in LDCE. The whole purpose of LDCEis to encourage and facilitate the Forest Guards to getaccelerated promotion on the basis of merit. Since seniorityis the criterion for promotion to three-fourth of the posts,one-fourth is given a chance to compete in a competitiveexamination. It is also to be noted that there is no quotaprescribed on the basis of higher educational qualification.The situation would have been different if, in the first place,there had been a classification wherein 75% of the postshave to be filled based on seniority and 25% reserved forgraduates and again subject to inter se merit in thecompetitive examination. That is not the situation in thepresent case. The LDCE is meant for selection for promotionfrom the entire lot of Forest Guards irrespective of senioritybut subject to minimum five years of service. In thatsituation, introducing an additional restriction of graduationfor participation in LDCE without there being any quotareserved for graduates will be discriminatory and violativeof Articles 14 and 16 of the Constitution of India since itcreates a class within a class. The merit of the 25% cannotbe prejudged by a sub-classification. It violates the equalityand equal opportunity guarantees. The Forest Guards,irrespective of educational qualifications, having formed oneclass for the purpose of participation in LDCE, a furtherclassification between graduates and non-graduates forparticipating in LDCE is unreasonable. It is a case of equalsbeing treated unequally."

83. Sri Radha Kant Ojha, learned Senior Advocate, has submitted

that however, he is adopting the arguments advanced by Sri H.N. Singh,

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learned Senior Advocate, by Dr. L.P. Misra, and by Sri Upendra Nath

Mishra, but he wants to submit one more aspect, which has not been

addressed by the other counsels that the competent authorities for

making selection on the post of Assistant Teacher pursuant to the

judgment of the Hon'ble Apex Court in re; Anand Kumar Yadav

(supra) have not followed the relevant provisions of the Uttar Pradesh

Basic Education Act, 1972 (for short "the Act, 1972"). He has further

submitted that however, there is one Board constituted under the Act in

the name of Board of Basic Education, but the same has not been

constituted strictly in terms of Section 3 (3) of the Act, 1972. He has

further submitted that the Board has not discharged its duties as per

Section 4 of the Act inasmuch as for conducting the examination in

question, the Board is to carry out necessary exercise for fixing the

terms and conditions of the examination in question and after thorough

scrutiny on the aforesaid aspect, proposal should be sent to the State

Government so that the State Government could notify the Government

Order and issue advertisement to that effect.

84. As per Sri Ojha, in the instant case, irresponsible, callous and

careless approach of the Board may be seen out of glaring instance that

the examination for Assistant Teacher Recruitment Examination was to

be conducted on 6.1.2019 and the Secretary, Board of Basic Education

preferred a letter dated 5.1.2019 to the Special Secretary of the

Government for fixing minimum qualifying marks. Had the requisite

exercise been conducted by the board prior to issuance of Government

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Order dated 1.12.2018 and advertisement dated 5.12.2018, such

condition must have been inserted in the aforesaid Government Order.

On account of callous approach of the authorities of the Board, the

State Authorities are facing embarrassment and have been defending

such embarrassment.

85. Sri Ojha has also submitted that the State Government might

have very well been disagreed with the letter dated 5.1.2019 so

preferred by the Secretary, Board of Basic Education invoking power

given under Section 13 of the Act, 1972 and may declare the result of

Assistant Teacher Recruitment Examination, 2019 in terms of its

Government Order dated 1.12.2018 and advertisement dated 5.12.2018.

As per Section 13 of the Act, 1972, overall control on the Board of

Basic Education would be of the State Government.

86. As per Sri Ojha, had the State Government not acted upon the

letter dated 5.1.2019 of the Secretary of the Board, the examination in

question i.e. Assistant Teacher Recruitment Examination, 2019 would

have been concluded in the same manner as the earlier examination i.e.

Assistant Teacher Recruitment Examination, 2018 was conducted and

no writ petitions of any kind whatsoever would have been filed.

87. Sri H.G.S. Parihar, learned Senior Advocate, has submitted at the

outset that he is adopting the arguments of Sri H.N. Singh, learned

Senior Advocate, Dr. L.P. Misra and Sri Radha Kant Ojha, learned

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Senior Advocate. Sri Parihar has cited the judgment of the Division

Bench of this Court in re; State of U.P. and others v. Vindhyavasini

Tiwari and others, [2014 (5) ADJ 74 (DB)], submitting that the

Division Bench of this Court while considering so many judgements of

the Hon'ble Apex Court has held that any amendment in Rules midway

changing the rules of game is not permissible. The amendments in

eligibility and selection process have to be applied for selection to be

held in future.

88. Sri Parihar has also cited the dictum of Hon'ble Apex Court in re;

Salam Samarjeet Singh v. High Court of Manipur at Imphal and

another, (2016) 10 SCC 484, submitting that however, the issue as to

whether the game of rule may be changed after the game starts has been

referred to the Larger Bench in some cases having difference of opinion

on the issue, but in most of the cases, the dictum of K. Manjusree

(supra) and Hemani Malhotra (supra) is still being followed. Both the

aforesaid judgements i.e. K. Manjusree (supra) and Hemani Malhotra

(supra) are holding the field. Paragraphs-49 & 50 of the judgment in re;

Salam Samarjeet Singh (supra) are being reproduced herein below:-

"49. In the result, in my view the petitioner isentitled to the relief sought for in the writ petition whichis allowed in the light of discussions made above. Theviva voce result of the petitioner dated 16-2-2015showing him as “unsuccessful” shall stand quashed.The respondents shall declare the result of the petitionerfor appointment to MJS Grade I as per discussion madein this judgment forthwith and in any case within fourweeks. In the peculiar facts of the case, in my view, adecision for the appointment of the petitioner to MJSGrade I with retrospective effect after a reasonable

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period from date of the viva voce result which was 16-2-2015 or say w.e.f. 1-4-2015 should be communicated tothe petitioner within the aforesaid period of four weeks.In case the petitioner is offered the appointment andjoins the service, he would get wages by way of salary,etc. only from the date he starts working on the post.For the past period he would be entitled only fornotional benefits of increment and length of service forpensionary benefits, as and when occasion arises infuture. The writ petition of the petitioner succeedsaccordingly. The petitioner is held entitled to a cost ofRs 50,000.

50. Since there is a difference of opinion between usin view of the dissenting judgments pronounced by us,the matter may be placed before appropriate Bench forfinal adjudication after obtaining permission of theHon'ble the Chief Justice of India."

89. Accordingly, Sri Parihar has submitted that since the impugned

Government Order dated 7.1.2019 is causing serious prejudice to the

petitioners, therefore, the same may be set aside and direction may be issued

that the result of Assistant Teacher Recruitment Examination, 2019 be issued

in the same manner as the result of Assistant Teacher Recruitment

Examination, 2018 has been declared ignoring the Government Order dated

7.1.2019.

90. Per contra, Sri Prashant Chandra, learned Senior Advocate has

submitted on behalf of State-respondent with vehemence that bare

perusal of the contents of writ petitions it does not disclose as to what

detriment has been caused to the petitioners as their rights, be it

fundamental or legal, have not been violated by the impugned

Government Order dated 7.1.2019. He has further submitted that the

petitioners may not claim any relief on the basis of grounds which has

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however, been argued but the same are not taken in the pleadings. Sri

Chandra has submitted that in an adversarial system of justice pleadings

form foundation of the litigation and the truth is supposed to emerge

from the respective version of the facts presented by the respective

parties. As per Sri Chandra the contentions of the writ petitioners that;

(i) Assistant Teacher Recruitment Examination is not a 'Basic

Qualification' by virtue of the judgment of Anand Kumar Yadav and

22nd Amendment, (ii) Assistant Teacher Recruitment Examination

-2019 could not have been conducted at all on account of the order

dated 6.3.2018 passed by the learned Single Judge of this Court and (iii)

Rules ought to be read down as the fixation of qualifying marks in the

manner prescribed under the Rules renders otiose the weightage granted

to the petitioner, are not sustainable for those who have not been

pleaded in the writ petition.

91. In support of his argument that parties cannot travel beyond the

pleadings, Sri Chandra has cited the judgment of Hon'ble Apex Court,

which are as under:

(i) Arikala Narasa Reddy vs. Venkata Ram Reddy vs.

Venkata Ram Reddy Reddygari and Ors. reported in (2014) 5

SCC 312.

(ii Kalyan Singh Chouhan vs. C.P. Joshi, reported in (2011)

11 SCC 786.

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92. Sri Chandra has further submitted that fixing of different cut off

marks in the examination of Assistant Teacher Recruitment

Examination-2018 and Assistant Teacher Recruitment Examination-

2019 flows from the right of State Government conferred under the

amended Rules. There is no vested rights of Shiksha Mitras for

claiming reduction in the cut off marks and in view of several

differences which had arisen in conducting the two examinations, the

cut off marks were necessary to be altered in keeping with the law laid

down by the Hon'ble Apex Court in several decisions rendered in the

education matters itself. Hence, there is no violation of Article 14 and

16 of the Constitution of India.

93. In support of his contention that the decision taken by the State

Government to fix the minimum qualifying marks is a policy decision

and is based on recommendation made by the experts, therefore, it is

not amenable to judicial review, Sri Chandra has cited the judgment of

Hon'ble Apex Court i.e. the Federation of Haj Ptos vs. Union of India,

W.P. (Civil) No. 4 of 2019 order dated 4.02.2019 wherein the Hon'ble

Apex Court has been pleased to observe as under:

"Public authorities must have liberty and freedom in

framing the policies. It is well accepted principle that in

complex social, economic and commercial matters,

decisions have to be taken by governmental authorities

keeping in view several factors and it is not possible for

the courts to consider competing claims and to conclude

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which way the balance tilts. Courts are illequipped to

substitute their decisions.

It is not within the realm of the courts to go into the issue

as to whether there could have been a better policy and on

that parameters direct the Executive to formulate, change,

vary and / or modify the policy which appears better to the

court. Such an exercise is impermissible in policy matters.

The scope of judicial review is very limited in such

matters. It is only when a particular policy decision is

found to be against a statute or it offends any of the

provisions of the Constitution or it is manifestly arbitrary,

capricious or mala fide, the court would interfere with

such policy decisions. No such case is made out. On the

contrary, views of the petitioners have not only been

considered but accommodated to the extent possible and

permissible.”

94. Sri Chandra has further submitted that the Hon'ble Apex Court in

re: Anand Kumar Yadav (supra) clearly mandates that weightage is to

be given only for two consecutive recruitments, that too only in terms

of advertisement in respect thereof. There was no description that

qualification must be as exists on the date of passing of the judgment.

Sri Chandra has submitted that the Division Bench of this Court in re:

Kulbhushan Mishra and others vs. State of U.P. & others: Special

Appeal Nos. 812, 852 of 2018, vide order dated 26.9.2018 has held that

Assistant Teacher Recruitment Examination is a basic qualification

notwithstanding the 22nd Amendment to the 1981 Rules.

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95. Sri Chandra has further submitted that the judgment and order

dated 6.3.2018 passed by the learned Single Judge would not be

applicable in respect of Assistant Teacher Recruitment Examination,

2019 as the aforesaid order was passed in respect of Assistant Teacher

Recruitment Examination-2018.

96. As per Sri Chandra there is no right under the Rules that

weightage must be accorded at 45% cut off marks. Further, Rule 14

clearly provides for grant of weightage after qualifying the Assistant

Teacher Recruitment Examination with the qualifying marks as

determined. Argument of the petitioners that the Rule should be 'Read

Down' and that the 'minimum qualifying marks' should be 45%, as in

case cut off marks are fixed at 65% & 60%, Appendix-1 would be

rendered redundant and the effect of the weightage will be nullified, is

misplaced. There is no challenge to the vires of the Rules and question

of 'reading down' arises only when a provision is found to be

unconstitutional by the Court, to prevent it from being struck down. The

petitioners have neither pleaded nor made out a case for invoking the

doctrine of 'reading out'.

97. Sri Chandra has further submitted that all Shiksha Mitras do not

constitute a homogeneous class for the reason that 'homogeneity'

requires members to be the same species, having the identical

characteristics but the petitioners are not the same species and only falls

in the same 'qualification'. Further, neither the manner of examination

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of Assistant Teacher Recruitment Examination -2018 is similar to the

Assistant Teacher Recruitment Examination-20-19 nor the candidates

who had appeared in Assistant Teacher Recruitment Examination-2018

are the similar to those appeared in Assistant Teacher Recruitment

Examination-2019.

98. In Support of his contention that the Shiksha Mitras who

appeared in Assistant Teachers Recruitment Examination- 2018 and

Assistant Teachers Recruitment Examination-2019 are not the

homogeneous class. Sri Chandra has cited following judgment :

Union of India vs. Chandris reported in 1956(1) AIIER 358.

99. Sri Chandra has submitted that there is no illegality or infirmity

in the Government Order dated 7.1.2019 as the same is neither arbitrary

nor illegal and it is only a policy decision, the same is beyond the scope

of judicial review and may not be interfered with. Further, the decision

to increase the cut off mark has been taken after due deliberations by

the experts and in furtherence with object of improving the merit and

standard of education.

100. In support of his contention that in the present case there is no

change in 'Rule of Game', Sri Prashant Chandra has cited the following

judgments :

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(i) V. Lavanya and others vs. State of Tamil Nadu

represented by its Principal Secretary and others reported in

(2017) 1 SCC 322.

(ii) Yogesh Yadav vs. Union of India and others reported

in (2013) 14 SCC 623.

(iii) Arunachal Pradesh Public Service Commission and

another vs. Tage Habung and others reported in (2013) 7

SCC 737.

(iv) Tej Prakash Pathak and others vs. Rajasthan High

Court and others reported in (2013) 4 SCC540, and

(v) K. Manjushree vs. State of Andhra Pradesh and

another reported in (2008) 3 SCC 512.

101. In the light of the ratio being propounded by the Hon'ble Apex

Court, Sri Chandra has also submitted that since the decision to increase

cut off marks has been taken after due deliberations by the experts and

so as to achieve the object of improving the merit standard of the

education, therefore, no interference in the Government Order dated

7.1.2019 can be done. Sri Chandra has submitted that it has been view

of the Hon'ble Apex Court that every decision taken by the government

with expedition cannot be deemed arbitrary as there may be

circumstances which may impel the Government to take an expeditious

decision. In support of aforesaid submission Sri Chandra has also cited

the judgment of The State of Haryana vs. Subhash Chander Marwaha

and others reported in (1974) 3 SCC 220 referring para 12 thereof

which reads as under :

"...In a case where appointments are made by selection from a

number of eligible candidates it is open to the Government with

a view to maintain high-standards of competence to fix a score

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which is much higher than the one required for more (sic-mere

eligibility)."

102. Sri Chandra has submitted that however, the Hon'ble Apex Court

in re: K. Manjushree vs. State of Andhra Pradesh reported (supra) has

held that if any benchmark has been prescribed for the selection in

question, it may not be changed later on as it would amount to

"changing the Rules of game after the game is played". In the case of

Tej Prakash Pathak and others vs. Rajasthan High Court and others

(supra) the Hon'ble Apex Court has referred the judgment of K.

Manjushree (supra) for the larger Bench being disagreed with the ratio

of K. Manjushree (supra), therefore, Sri Chandra has submitted that

since the dictum of K. Manjushree (supra) is pending for final

adjudication before the larger Bench of Hon'ble the Apex Court, no

inference may be drawn of the basis of the judgment of K. Manjushree

(supra).

103. In support of his contention that unless the particular Rule is not

challenged the prayer of reading down cannot be made, Sri Chandra has

cited following judgments:

(i) SanjayKumar vs. Narinder Verma reported in (2006) 6

SCC 467.

(ii) State of Rajasthan vs. Sanyam Lodha reported in (2011)

13SCC 262.

(iii) Subramanian Swamy vs. Election Commission of India

reported in (2003) 14 SCC 318.

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104. Sri Prashant Chandra, learned Senior Advocate has submitted

that under the amended Rule 2(x) an absolute discretion has been

conferred upon the State Government to fix the percentage of marks

required to clear the examinations which are referred to as the

minimum marks prescribed. Rule 2 (x) reads as follows:

"(x) Qualifying marks of "Assistant Teacher RecruitmentExamination" means such minimum marks as may bedetermined from time to time by the Government."

105. In a like manner, a similar power has been conferred upon the

NCTE to fix a minimum qualifying mark to pass an examination. The

NCTE in exercise of the said right had fixed 60% & 55% marks as the

minimum qualifying mark for TET examination. The fixation of 60% &

55% marks by the NCTE cannot be deemed as arbitrary as the ultimate

ideology is to select teachers who possess the requisite knowledge or

expertise to be able to impart education. Passing the TET examination

with 60% & 55% is not along sufficient for being appointed as

Assistant Teacher. The Supreme Court in the case of Anand Kumar

Yadav has categorically ruled that the minimum educational

qualifications are not the determining factor for considering a person

for appointment on the post of Assistant Teacher but in addition to

possessing the minimum prescribed qualifications.

106. Sri Chandra has further submitted that it would thus be seen

that the candidate has necessarily to pass Assistant Teachers

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Recruitment Examination, the holding of which is mandatory as per

Rules. The percentage pass mark in such an examination is to be

fixed by the State Government in accordance with the power

conferred under the Rules. It is this exercise that the State

Government has performed while issuing the Government Order

dated 07.01.2019 and in the wisdom of the experts it was thought

necessary and proper to fix 65% (for general) and 60% (for reserved)

which cannot be faulted.

107. Sri Chandra has submitted with vehemence that by giving

examples of other government services and vocations and the

fixation of pass marks in different examinations at 33%, the

petitioners cannot compel the Government to compromise on merit.

In respect of selection of teachers, every service has been given a

distinct and important place and there is no manner or mode to equate

two services of different nature. Education has been given a different

and important place and the endeavour of the State Government to

achieve excellence in the field of education has to be lauded not

contemned. By asking the State to lower the merit from 65% to 45%

is a demand to forgo the merit completely by totally ousting the

meritorious candidates who fair well in the Assistant Teacher

Recruitment Examination. While fixing the cut-off mark several

factors are taken into consideration including the pattern of

examination and nature of questions. There is no malice in fixing the

minimum cut-off at 65%. The petitioner may gainfully rely upon the

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judgment of Taniya Malik vs. Registrar General of the High Court

of Delhi. (2018) 14 SCC 129 :

"It was urged that out of 64 candidates, only one has failed in

the interview. That, in fact, does not show the prejudice but is

rather indicative of the fact that the performance of the

petitioner was such that in spite of the Committee being most

liberal, it did not find it appropriate to award even the

minimum passing marks to the said candidate. In our opinion,

the awarding of marks by the Committee could not be said to

be inappropriate. No malice has been attributed; as such we

find no scope for interference on the aforesaid ground.

Reliance has been placed on Ajith Kumar (supra) in which the

Commission has relaxed the criteria to call various reserved

category candidates who secured marks out of the cut off

marks. This Court has observed that challenge to the decision

of the Service Commission to relax cut off marks with respect

to reserved category candidates could not succeed in the

earlier round of litigation.

There was relaxation of cut off marks for reserved category

candidates in the preliminary examination not governed by

rules. In the instant case in the rules, the minimum cut off is

prescribed. That could not have been relaxed and moreover,

relaxation is a matter of policy and considering the overall

circumstances, importance of interview, the decision not to

relax cannot be said to be unreasonable. The decision has not

application."

108. In view of above submissions, Sri Prashant Chandra has

submitted that the present writ petition is liable to be dismissed.

105

109. Sri Anil Kumar Tiwari, learned Senior Advocate assisted by Sri

Amrendra Nath Tripathi, Advocate for the Intervenors has submitted

with vehemence that fixation of bench mark when there is no

stipulation in the advertisement was permissible since it intended to

recruit the best candidates. Further, if minimum qualifying marks were

not mentioned in the advertisement and the rules mentioned above

having minimum qualifying marks the action of the government fixing

cut off shall be legal. As per Sri Tiwari, it is not the job of the Court to

substitute what it thinks to be appropriate, for that job the Selection

Authority has decided as desirable. As per Sri Tiwari, the Court cannot

re-write the rules of selection. In case where the appointments are

made by selection from number of eligible candidates, it is open for the

government to fix the score which may be much higher than one

required for eligibility. In the absence of contrary rules, Competent

Authority can fix minimum qualifying marks for selection.

110. As per Sri Anil Kumar Tiwari, the Court cannot substitute their

views in the decision of the State Government with regard to policy

matter. It is exclusively within the domain of the Legislature to

determine how the provisions of statute may be best implemented.

111. So far as the arguments of learned counsel for the petitioners in

respect of invoking the principles of writing down is concerned, Sri

Tiwari has submitted that in the absence of any challenge to the rules,

the Court cannot write down the said rules. As per him, if the law is

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clear, no notion of equity can substitute the same. Replying the

submission of learned counsel for the petitioners regarding distinction

amongst homogeneous class, Sri Tiwari has submitted that each

examination is separate and distinct and case of discrimination cannot

be made out solely on the ground that in earlier examination the 'cut off'

was less. Minimum qualification refers to qualification which is to be

put a cut of level for a particular job in accordance with minimum

competency required for the performance of that job.

112. In support of his submission that the government can fix

minimum qualifying marks if the same is prescription of the rules, he

relied upon the judgment of Hon'ble Apex Court in re: Barot Vijay

Kumar Balakrishna and others vs. Modh Vinay Kumar Dasrathlal

and others reported in (2011) 7 SCC 308. As per Sri Tiwari, the

Hon'ble Apex Court has held that if separate minimum qualifying marks

were not fixed for viva-voce and those marks have been fixed few days

before viva-voce, the same could have been fixed for the reason that it

was required under the rules to have separate qualifying marks for viva-

voce and at the time of notification no 'cut off marks' were fixed.

Therefore, before the few days of viva-voce if "cut off marks" have

been fixed, it may not be held as illegal as it did not cause any prejudice

to any candidate.

113. It is to be noted that this case is slightly different from the present

case inasmuch as in the said case i.e. Barot Vijay Kumar Balakrishna

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(supra) the minimum qualifying marks for viva-voce had been fixed

before the test of viva-voce conducted, but here the "cut off marks" for

qualifying the A.T.R.E. has been fixed after the said examination had

already taken place.

114. In support of his arguments that the Court cannot substitute what

it makes to be appropriate and cannot re-write the rules of selection, Sri

Tiwari has relied upon the judgment of Hon'ble Apex Court in re: Rajya

Sabha Secretariat and others vs. Subhash Badola and others reported

in (2013) 5 SCC 169. In the aforesaid case, the Hon'ble Apex Court has

appreciated the controversy in issue vide paras-19, 20 and 21 and the

ratio is in para-26, which are as under:-

"19. The Learned Single Judge in his impugned Judgmenthas referred to the cases of K. Manjushree Vs. State ofAndhra Pradesh reported in 2008(3) SCC 512 andHimani Malhotra Vs. High Court of Dehi reported in2008 (7)SCC 11. The factual situation in these two casesis however, quite different from the one in the presentcase. In Manjushree (supra), the minimum cut-off markswere prescribed after the interviews were over, and afterthe first merit list was prepared. In Himani Malhotra(supra) there was no indication in the advertisementabout the minimum qualifying marks for the interview andthe same were introduced by the selecting committee afterthe written test was over and after the date for oralinterview was postponed.

20. The question before us is whether the interview boardcan be faulted for making the certificate marks acomponent of the 25 interview marks, and whether therebythe candidates were in any way taken by surprise. In thisconnection we must note that the appellants hadadvertised that the NCC/Sports and Computer certificateswere 'desirable'. The call-letter, in paragraph 5 thereof,

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specifically called upon the candidates to bring theircertificates at the time of the Personal Interview. It furtherstated that credit for the same shall be given only if thecertificate was accompanied by a declaration by theconcerned institute that the course done by the candidatewas recognized by AICTE or DOEACC. Thus, it was clearthat credit was to be given to those certificates as a part ofthe interview. The respondents, therefore, cannot make anygrievance that they were taken by surprise by giving of 7(out of 25) marks for such certificates to the successfulcandidates. Nor can the respondents say that anyprejudice is caused to them, since all candidates havingsuch certificates were uniformly given 5 and/or 2 marksfor the certificates, and those who were not having themwere not given such marks. The process cannot, therefore,be called arbitrary.

21. The decisions rendered by the High Court wereerroneous for one more reason. In the present case, theinterview was to be of 25 marks. The view which hasappealed to the Learned Judges of the High Court wouldmean that the cut-off marks (say 50%) will have to beobtained out of 18 marks, whereas the advertisementclearly stated that the cut-off marks had to be obtained inthe Written Test and the Personal Interview. This meantobtaining cut-off marks out of 25 marks set out forinterview as well. The consequence of the view which isaccepted by the High Court will be that it may as wellhappen that candidates who did not have the NCC/Sportscertificates or any computer course certificates will obtainhigher marks out of 18 marks, and will top the list. On theother hand the candidates who have these certificates maynot get the cut-off marks out of 18, or even if they get thosemarks, they may land at the lower level in the inter-seseniority in the merit order for selection. This wascertainly not meant to be achieved by the selectionprocess, when these certificates were declared in advanceas 'desirable'.

26. Having noted this factual and legal scenario, in ourview there was nothing wrong in the method applied by theappellants in the Selection of the Security AssistantsGrade-II. There was no discrimination whatsoever amongthe candidates called for the interview, nor any departure

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from the advertised requirements. One can always say thatsome other method would have been a better method, butit is not the job of the Court to substitute what it thinks tobe appropriate for that which the selecting authority hasdecided as desirable. While taking care of the rights of thecandidates, the Court cannot lose sight of the requirementsspecified by the selecting authority. What the High Courthas proposed in the impugned orders amounts to re-writing the rules for selection, which was clearlyimpermissible while exercising the power of judicialreview."

115. The Hon'ble Apex Court in re: Rajya Sabha Secretariat and

others vs. Subhash Baloda & others (supra) has clearly indicated the

reason as to why the judgment of K. Manjushree (supra) and Himani

Malhotra (supra) will not be applicable in that issue. As per Hon'ble

Apex Court in re: Rajya Sabha Secretariat (supra), there was no

indication in the advertisement about the minimum qualifying marks

for interview and the same was introduced by the Selection Committee

after written test was over and after the date of oral interview was

postponed. But since the facts of Himani Malhotra (supra) were

different, therefore, the Hon'ble Apex Court in the case of Rajya Sabha

Secretariat (supra) has held that the ratio of Himani Malhotra (supra)

would not be applicable in the said case. It is to be noted here that the

facts of Himani Malhotra (supra) are however more or less similar to

the present case wherein the written examination of A.T.R.E. was

conducted on 06.01.2019 and the decision for fixing minimum

qualifying marks has been taken on 07.01.2019. Admittedly, the

aspirants of the said examination were not known about the said "cut

off marks" being fixed before appearing in the examination.

110

116. In support of his contention that the Court cannot write down the

rules unless those rules have been specifically assailed, Sri Anil Kumar

Tiwari has relied upon the judgment of Hon'ble Apex Court in re: State

of Rajasthan and others vs. Sanyam Lodha reported in (2011) 13 SCC

262.

117. In support of his arguments that if the law is clear no notion of

equity can substitute the same, Sri Anil Tiwari has cited the judgments

of Hon'ble Apex Court in re: Narinder S. Chadha and others vs.

Municipal Corporation of Greater Mumbai and others reported in

(2014) 15 SCC 689 and Rohitash Kumar and others vs. Om Prakash

Sharma and others reported in (2013) 11 SCC 451.

118. There is no quarrel on the point that equity follows the law and if

the law is clear no notion of equity can substitute the same but in the

instant case since the prescription of rules categorically provides that

there should be a minimum qualifying marks fixed by the government,

time to time means it should have been fixed before the examination is

commenced. Further, the prescription of rules provides that the

examination in question i.e. A.T.R.E.-2019 should be finalized on the

basis of quality point marks as per Appendix-I of 20th amendment of

Rules, 1981 wherein there are six items, on the basis of which, the

quality point marks would be calculated/ determined and it appears that

atleast 60% aspirants of the examination in question (B.Ed. candidates

etc.) may not get quality point marks for item No.4 and 6. However,

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those candidates may get quality point marks on the basis of Appendix-

II, which is admittedly not applicable in the instant case. Further, there

is prescription in the rules that Shiksha Mitras candidates shall get

weightage maximum of 25 marks which is included in the Appendix-I

but fixing such a high minimum qualifying marks appears to be

unreasonable as B.Ed. candidates may likely to qualify and Shiksha

Mitras may likely to disqualify. The submission of learned counsel for

the opposite parties including the submission of learned counsel for the

State-respondents does not clarify as to what is the object to fix such a

high 'cut off marks' for A.T.R.E.-2019, after the examination is over,

when in the earlier examination against which there is no case of State

Government that it was not properly conducted. Lastly, when the State

was duty bound to conduct two consecutive examinations providing

some benefits to the Shiksha Mitras in terms of judgment of Anil

Kumar Yadav (supra), there was no logical purpose to deviate the

procedure of examination of second examination i.e. A.T.R.E.-2019

from the first examination i.e. A.T.R.E.-2018. In these circumstances,

if this Court issues any direction against the authorities it may not be

said that this direction is only equitable direction but it would be the

direction in conformity with the rules.

119. Sri Anil Tiwari has referred the judgment of Hon'ble Apex Court

in re: P.V. Indiresan (2) vs. Union of India & others reported in (2011)

8 SCC 441 explaining the term of "cut off marks" referring paras-21 to

25 has submitted that the term "cut off marks" in academic and judicial

112

vocabulary has several meanings, and as per him, "cut off marks" are

also used to refer to the minimum marks (either eligibility marks or

qualifying marks), required for admission to a Course. Therefore, as per

Sri Tiwari, the minimum marks and "cut off marks" is one and the same

thing and what should be the minimum marks may not be determined

by the Court.

120. It is true that minimum marks for any selection may not be

determined by the Court but if at all that minimum marks have been

fixed for any selection, as seen in the case of Subhash Chandra

Marwah (supra), but in the present case, admittedly if any person

qualifies the A.T.R.E., shall not be eligible to be appointed/ selected on

the post of Assistant Teacher but he / she shall inter in the next stage.

However, marks obtained by the candidates in A.T.R.E. shall be added

in other marks obtained by the candidate so as to calculate the quality

point marks as per Appendix-I. Therefore, in view of the above, fixing

so high minimum qualifying marks for the examination in question,

which is only a qualifying examination for which as per the State

Government itself 45% and 40%, later on 33% and 30% for both the

categories have been treated as minimum qualifying marks. This Court

may not loose at site a relevant fact that only those candidates may

appear in A.T.R.E. who have qualified T.E.T. examination having

minimum qualifying marks as 60% and 55%, as the case may be.

Therefore there appears no logic, much less reasonable logic to fix the

minimum qualifying marks for A.T.R.E. as 65% and 60%.

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121. Sri Anil Tiwari has further argued that N.C.T.E. while exercising

its powers under Section 23 (1) of Right to Education Act, 2009 had

issued notification dated 23.08.2010, 29.,07.2011, 12.11.2014 and

28.11.2014 whereby had prescribed minimum qualification for

appointment of teachers in Class-I to V. The N.C.T.E. recently on

28.06.2018 had issued amendment to notification dated 23.08.2010

whereby had added B.Ed. along with two years B.T.C. training as

minimum educational qualification for appointment as teacher in Class-

I to V. Therefore, prior to notification dated 28.06.2018, the B.Ed.

degree holders were not eligible for being appointed as teacher in

Class-I to V. As per him, now after the notification of N.C.T.E. dated

28.06.2018, B.Ed. also became requisite minimum qualification along

with the B.T.C. training and the present selection is not of the trainee

teachers under Rule 14 (1) (c), but of Assistant Teachers under Rule 14

(1) (a), for which B.Ed. degree holders are also eligible along with

B.T.C. training holders.

122. It is true that pursuant to notification dated 28.06.2018 of

National Council of Teachers Education (N.C.T.E.), the B.Ed.

candidates may very well appear in the examination of A.T.R.E. but

those persons will have to complete six months bridge course in

elementary education within two years of such appointment as Primary

Teacher. Meaning thereby, the Assistant Teachers who are having B.Ed.

degree and does not undergo six months bridge course in elementary

education recognized by N.C.T.E. within two years of the appointment

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shall no longer remain Assistant Teacher, however, who are possessing

B.T.C. qualification need not to undergo such exercise. The aforesaid

fact make the difference between the status of the teachers having

B.T.C. qualification and having B.Ed. qualification. Earlier, the persons

having B.Ed. qualification could have been appointed on the post of

'Trainee Teachers' but pursuant to the notification dated 28.06.2018

issued by the N.C.T.C. those teachers may be appointed as Primary

Teachers. Such type of persons were not permitted in earlier

examination i.e. A.T.R.E.-2018 but have been permitted in the present

examination i.e. A.T.R.E-2019 on the basis of decision of the State

Government. Since there is no challenge for inclusion of 'B.Ed.

candidates etc., therefore, this Court, however, is not indulging in the

said issue, but one query of the Court has not been satisfied by any of

the counsel for the opposite parties as to how the quality point marks of

the candidates having B.Ed. qualification may be calculated on the

basis of Appendix-I inasmuch as those candidates may not be getting

any marks for item No.4 i.e. marks for B.T.C. qualification and item

No.6 i.e. marks for weightage which can only be provided to the

Shiksha Mitras. The complete scenario of the examination in question

creates unexplained confusion, therefore, the same may be looked into

in the fitness of things of the present issue.

123. Sri A.M. Tripathi, learned counsel for the intervenors has adopted

the arguments of Sri Anil Tiwari, learned Senior Advocate. Since Sri

A.M. Tripathi has appeared on behalf of the candidates, who are

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having B.Ed. qualification and the arguments on behalf of the

candidates having B.Ed. qualification have already been advanced by

Sri Anil Tiwari, learned Senior Advocate, therefore, separate arguments

of Sri A.M. Tripathi are not being dealt with.

124. Not only the above, Sri Amrendra Nath Tripathi has already

adopted the arguments of Sri Anil Tiwari, learned Senior Advocate and

even he has assisted him, therefore, separate arguments of Sri Amrendra

Nath Tripathi are also not being dealt with.

125. In a rejoinder reply, Sri Upendra Nath Mishra has submitted with

vehemence that the case laws relied upon by the learned counsel for the

State-respondents on the aforesaid proposition do not apply in the case

in hand because in the instant case, change in the rules of the game has

been introduced after completion of the examination, which was akin to

the case of K. Manjusree Vs. State of Andhra Pradesh and another,

(2008) 3 SCC 512, which is still holding the field. The cases of

Arunachal Pradesh Public Service Commission and another Vs.

Tage Habung and others, (2013) 7 SCC 737 and Yogesh Yadav Vs.

Union of India and others, (2013) 14 SCC 623 referred by the learned

Senior Counsel for State-respondents were considered in the subsequent

case of Bishnu Biswas and others Vs. Union of India and others,

(2014) 5 SCC 774 in which K. Manjusree (supra) was applied.

Similarly, after the case of V. Lavanya v. State of Tamil Nadu, (2017)

1 SCC 322, Hon'ble Supreme Court again applied K. Manjusree

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(supra) in case of Sivanandan C.T. and others v. High Court of

Kerala and others, (2018) 1 SCC 239. Therefore, as per Sri Mishra,

the law laid down in K. Manjusree (supra) is still applicable, however,

the same has been referred to the Larger Bench by the Hon'ble Apex

Court in re; Tej Prakash Pathak and others v. Rajasthan High Court

and others, (2013) 4 SCC 540. In support of the aforesaid submission,

Sri Mishra has referred the dictum of the Hon'ble Apex Court in re; K.

Manjusree Vs. State of Andhra Pradesh and another, (2008) 3 SCC

512. Para-27 of the said judgment is being reproduced herein below:-

"27. But what could not have been done was the secondchange, by introduction of the criterion of minimummarks for the interview. The minimum marks forinterview had never been adopted by the AndhraPradesh High Court earlier for selection of District &Sessions Judges, (Grade II). In regard to the presentselection, the Administrative Committee merely adoptedthe previous procedure in vogue. The previous procedureas stated above was to apply minimum m arks only forwritten examination and not for the oral examination. Wehave referred to the proper interpretation of the earlierresolutions dated 24.7.2001 and 21.2.2002 and held thatwhat was adopted on 30.11.2004 was only minimummarks for written examination and not for the interviews.Therefore, introduction of the requirement of minimummarks for interview, after the entire selection process(consisting of written examination and interview) wascompleted, would amount to changing the rules of thegame after the game was played which is clearlyimpermissible. We are fortified in this view by severaldecisions of this Court. It is sufficient to refer to three ofthem -- P. K. Ramachandra Iyer v. Union of India 1984(2) SCC 141, Umesh Chandra Shukla Vs. Union of India1985 (3) SCC 721, and Durgacharan Misra v. State ofOrissa 1987 (4) SCC 646.

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126. He has further referred the dictum of the Hon'ble Apex Court in

re; Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11.

Paragraphs no.15 & 16 of the aforesaid judgment are as under:-

"15. There is no manner of doubt that the authoritymaking rules regulating the selection can prescribe byrules the minimum marks both for written examinationand vive-voce, but if minimum marks are not prescribedfor vive-voce before the commencement of selectionprocess, the authority concerned, cannot either duringthe selection process or after the selection process addan additional requirement/qualification that thecandidate should also secure minimum marks in theinterview. Therefore, this Court is of the opinion thatprescription of minimum marks by the respondent atvive-voce, test was illegal.

16. The contention raised by the learned Counsel for therespondent that the decision rendered in K.Manjusree(supra) did not notice the decisions in Ashok KumarYadav v. State of Haryana (1985) 4 SCC 417 as well asK.H.Siraj v. High Court of Kerala and Others (2006) 6SCC 395 and therefore, should be regarded either asdecision per incuriam or should be referred to a LargerBench for reconsideration, cannot be accepted. What islaid down in the decisions relied upon by the learnedCounsel for the respondent is that it is always open tothe authority making the rules regulating the selectionto prescribe the minimum marks both for writtenexamination and interview. The question whetherintroduction of the requirement of minimum marks forinterview after the entire selection process wascompleted was valid or nor, never fell for considerationof this Court in the decisions referred to by the learnedCounsel for the respondent. While deciding the case ofK.Manjusree (supra) the Court noticed the decisions in(1) P.K.Ramachandra Iyer v. Union of India (1984) 2SCC 141; (2) Umesh Chandra Shukla v. Union of India(1985) 3 SCC 721; and (3) Durgacharan Misra v. Stateof Orissa (1987) 4 SCC 646, and has thereafter laiddown the proposition of law which is quoted above. Onthe facts and in the circumstances of the case this Court

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is of the opinion that the decision rendered by this Courtin K.Manjusree (supra) can neither be regarded asJudgment per incuriam nor good case is made out bythe respondent for referring the matter to the LargerBench for reconsidering the said decision."

127. In support of his aforesaid contention that rule of game can't be

allowed to change after the game starts, Sri Mishra has further cited

some more dictums of the Hon'ble Apex Court in re: (i) Tej Prakash

Pathak and others v. Rajasthan High Court and others, (2013) 4

SCC 540, (ii) Bishnu Biswas and others v. Union of India and

others, (2014) 5 SCC 774, (iii) Salam Samarjeet Singh v. High

Court of Manipur at Imphal and another, (2016) 10 SCC 484 and

(iv) Vikas Sankhala and others v. Vikas Kumar Agarwal and

others, (2017) 1 SCC 350.

128. In the case of Vikas Sankhala (surpa), the Hon'ble Apex court

has considered the dictum of K. Manjusree (supra).

129. Sri Mishra has further cited the dictum of the Hon'ble Apex Court

in re; Sivanandan C.T. and others v. High Court of Kerala and

others, (2018) 1 SCC 239. Paragraphs no.4, 5, 6 & 7 of the aforesaid

judgment are as under:-

"4. The main contention is that the rules of the gamecould not have been changed after the game is playedand the result of the game is known to the selectors.

5. Though several other contentions are raised byboth sides, we find that the decision in K. Manjusree v.State of Andhra Pradesh, (2008) 3 SCC 512, squarely



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applies to the facts of this case. In Manjusree (supra),75 marks were allotted for the written examination and25 marks for the interview. The aggregate governed themerit. However, the written examination was conductedfor 100 marks. When the Full Court noticed this, a sub-committee was appointed to make the arithmeticalcorrection to scale down the marks in the writtenexamination to 75 instead of 100. The sub-committeedid two things – (1) it made the arithmetical correction,(2) it introduced the same cut-off percentage for theinterview as in the written examination and thusrevised the merit list, which was approved by the FullCourt. In the process, a few candidates were removedfrom the original merit list including Manjusree. ABench of three Judges of this Court held that: (SCCp.524 para 27)"

“27. ... introduction of the requirement of theminimum marks for interview, after the entire selectionprocess (consisting of written examination andinterview) was completed, would amount to changingthe rules of the game after the game was played whichis clearly impermissible”.

The Bench specifically noted that the Resolution ofthe Full Court to not specifically stipulate minimummarks for viva-voce was still in force. Yet, when thesub-committee introduced the change, the same wasapproved by the Full Court.

6. Tej Prakash Pathak and others v. Rajesthan HighCourt and others, (2013) 4 SCC 540 has, however,specifically doubted the correctness of Manjusree(supra) on the point whether “….changing the rules ofthe game after the game was played … is clearlyimpermissible” and has made a Reference to a largerBench for an authoritative pronouncement.

7. It is also relevant in this context to note thatSalam Samarjeet Singh v. High Court of Manipur,(2016) 10 SCC 484, which dealt with almost a similarissue was heard by a three Judge Bench in view of thedifference of opinion and it has also since been postedalong with Tej Prakash (supra) by order dated



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10.08.2017. Hence, it is only appropriate to refer thismatter also to the larger Bench to be heard along withTej Prakash (supra). Ordered accordingly."

130. Therefore, in view of the above, Sri Mishra has submitted that

though the judgment of Hon'ble Apex Court in re; K. Manjusree

(supra) was first referred to the Larger Bench in the case of Tej

Prakash Pathak (supra) and again referred to the Larger Bench in case

of Salam Samarjeet Singh (supra) and again referred on the third

occasion to the Larger Bench in Sivanandan C.T. (supra), but the

judgment of Larger Bench has not yet come on the subject. He has

further submitted that it is settled position of law that mere reference of

the judgment to the Larger Bench does not dilute the applicability of the

judgment unless it is overruled or diluted by the Larger Bench.

Therefore, the law laid down by the Hon'ble Apex Court in re; K.

Manjusree (supra) is still holding the field.

131. In support of the aforesaid submission, Sri Mishra has cited the

dictum of the Hon'ble Apex Court in re; P. Sudhakar Rao and others

v. U. Govinda Rao and others, (2013) 8 SCC 693. Paragraphs no.54

& 55 of the aforesaid judgment are reproduced herein below:-

"54. We may mention that in Asis Kumar Samanta v.State of West Bengal, (2007) 5 SCC 800, the questionwhether retrospective promotion or seniority can begranted or not has been referred by a Bench of twolearned Judges to a larger Bench. It has been notedtherein that the grant of retrospective promotions andseniority was accepted by this Court in four decisionswhile grant of retrospective seniority was held to beultra vires in five decisions. When these appeals came



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up for hearing on 02.5.2013, learned counsel for AsisKumar Samanta sought an adjournment to makealternative arrangements since he could not appearagainst the State of West Bengal. Accordingly, thatmatter was adjourned beyond the ensuing summervacations.

55. Be that as it may, the pendency of a similarmatter before a larger Bench has not prevented thisCourt from dealing with the issue on merits. Even onearlier occasions, the pendency of the matter before thelarger Bench did not prevent this Court from dealingwith the issue on merits. Indeed, a few cases includingPawan Pratap Singh v. Reevan Singh, (2011) 3 SCC267, were decided even after the issue raised in AsisKumar Samanta (supra) was referred to a larger Bench.We, therefore, do not feel constrained or precluded fromtaking a view in the matter."

132. Sri Mishra has further cited the dictum of the Hon'ble Apex Court

in re; Manager, National Insurance Company Limited v. Saju P.

Paul and another, (2013) 2 SCC 41. Para 26 of the aforesaid judgment

is as follows:-

"26. The pendency of consideration of the abovequestions by a larger Bench does not mean that thecourse that was followed in National Insurance Co.Ltd. v. Baljit Kaur, (2004) 2 SCC 1, and NationalInsurance Co. Ltd. v. Challa Upendra Rao, (2004) 8SCC 517 should not be followed, more so in a peculiarfact situation of this case. In the present case, theaccident occurred in 1993. At that time, claimant was28 years’ old. He is now about 48 years. The claimantwas a driver on heavy vehicle and due to the accidenthe has been rendered permanently disabled. He has notbeen able to get compensation so far due to stay orderpassed by this Court. He cannot be compelled tostruggle further for recovery of the amount. Theinsurance company has already deposited the entireawarded amount pursuant to the order of this Courtpassed on 01.08.2011 and the said amount has been

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invested in a fixed deposit account. Having regard tothese peculiar facts of the case in hand, we are satisfiedthat the claimant (Respondent No.1) may be allowed towithdraw the amount deposited by the insurancecompany before this Court along-with accrued interest.The insurance company (appellant) thereafter mayrecover the amount so paid from the owner(Respondent No. 2 herein). The recovery of the amountby the insurance company from the owner shall bemade by following the procedure as laid down by thisCourt in the case of National Insurance Co. Ltd. v.Challa Upendra Rao, (2004) 8 SCC 517."

133. Therefore, in view of the above, Sri Upendra Nath Mishra has

submitted that so far as the case laws referred by the learned counsel for

the State-respondents in the instant case is concerned, those judgements

are not applicable in the case in hand. Sri Mishra has argued that so far

as the argument of learned Senior Counsel for the State-respondents

regarding change in rules of game is concerned, the case laws have

already been referred by him. So far as the case laws referred on the

point that "it is the prerogative of the examining body to fix the cut off

marks" is concerned, he has submitted that there can be no dispute on

the aforesaid legal proposition, but this exercise of power of fixing cut

off marks cannot be made arbitrarily and indiscriminately. The

petitioners are not challenging the power of the State Authorities

contained in Rule 2 (x) of the Service Rules, but they are aggrieved by

its arbitrary exercise by the State Authorities.

134. Sri Mishra has further submitted that the case laws referred on

the issue of "Weightage not to be given at the time of computation of

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result" are also not applicable as the petitioners are not demanding

weightage of 25 marks at the time of declaration of result of Assistant

Teacher Recruitment Examination. They are only aggrieved by the

discriminatory treatment in fixation of minimum qualifying marks by

the State in such a manner which would result in complete denial of the

weightage of 25 marks towards their service experience of the

petitioners/ T.E.T. qualified Shiksha Mitras.

135. Sri Mishra has further submitted that the case laws on the issue of

"no vested rights and no prejudice caused" given by the State-

respondents are equally not applicable in the instant case inasmuch as

by not declaring the minimum qualifying marks of Assistant Teacher

Recruitment Examination before holding examination, the State

Authorities had denied the petitioners an opportunity to adequately

prepare for the said result, as held by the Hon'ble Apex Court in re; P.

V. Indiresan (supra) and therefore, material prejudice has been caused.

136. He has further submitted that so far as the case laws referred on

the issue of "challenge to examination cannot lie after participation" is

concerned, the said proposition/ legal issue is not applicable in the

instant case inasmuch as the cause of action for filing the writ petition

had originated/ occurred on 7.1.2019 i.e. only after the petitioners

participated in the examination on 6.1.2019 and hence the case laws to

that effect referred by the State-respondents are not applicable in the

instant case.

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137. In view of the aforesaid submissions and dictum of the Hon'ble

Apex Court, Sri Upendra Nath Mishra has submitted that it is well

established that the State Government by issuing the impugned

Government Order dated 7.1.2019 has resorted to hostile discrimination

and unreasonable classification amongst identically situated T.E.T.

passed Shiksha Mitras like the petitioners and minimum qualifying

marks have been arbitrarily increased without having any valid and

cogent reason. Therefore, as per Sri Upendra Nath Mishra, the

notification dated 7.1.2019 being violative of Articles 14 & 16 of the

Constitution of India is not tenable in the eyes of law, therefore, it

deserves to be set aside with the direction to the State Authorities not to

create any discrimination amongst the homogeneous class of T.E.T.

qualified Shiksha Mitras under the garb of fixing minimum qualifying

marks for the current A.T.R.E. i.e. Assistant Teacher Recruitment

Examination, 2019.

138. Heard the rival submissions of the respective parties and perused

the material on record.

139. It would be apposite to deal first the judgment of the Hon’ble

Apex Court in re; State of Uttar Pradesh and another v. Anand

Kumar Yadav and others, (2018) 13 SCC 560.

140. To deal with the judgment of Hon’ble the Apex Court in re;

Anand Kumar Yadav (supra), it would be pertinent to indicate here

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that a very long drawn litigation took place with respect of absorption

of Shiksha Mitras as Assistant Teachers and ultimately, the same was

decided by the Full Bench of this Court vide its judgment and order

dated 12.9.2015 rendered in Writ Petition No.34833 of 2014; Anand

Kumar Vs. State of U.P. and others, along with other connected matters,

which was reported in 2015 (8) ADJ 338 (FB) by which it was held

that Shiksha Mitras are not entitled to be absorbed as Assistant Teachers

and Rule 16-A introduced by way of an amendment in the Uttar

Pradesh Right of Children to Free and Compulsory Education Rules,

2011 was not lawful and the Uttar Pradesh Basic Education (Teachers)

Service (Nineteenth Amendment), Rules, 2014 introducing the

provisions of Rule 5 (2), Rule 8 (2) (c) and Rule 14 (6) were also

declared to be arbitrary and ultra vires and the same were set aside as

being unconstitutional.

141. The aforesaid judgment and order dated 12.9.2015 of the Full

Bench of this Court came to be affirmed by the Hon'ble Apex Court in

leading Civil Appeal No.9529 of 2017 titled as State of U.P. and others

Vs. Anand Kumar Yadav and others and other connected matters by its

judgment and order dated 25.7.2017 reported in (2018) 13 SCC 560.

The Hon'ble Apex Court while disposing of the said leading civil appeal

along with other connected matters has observed in para 33 as under:-

"33. Question now is whether in absence of any right infavour of Shiksha Mitras, they are entitled to any otherrelief or preference. In the peculiar fact situation, theyought to be given opportunity to be considered for

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recruitment if they have acquired or they now acquirethe requisite qualification in terms of advertisements forrecruitment for next two consecutive recruitments. Theymay also be given suitable age relaxation and someweightage for their experience as may be decided by theconcerned authority. Till they avail of this opportunity,the State is at liberty to continue them as Shiksha Mitrason same terms on which they were working prior totheir absorption, if the State so decides."

142. For possessing requisite qualifications to be absorbed as

Assistant Teacher after getting the benefit of age relaxation and

weightage as directed by the Hon'ble Apex Court, the State Government

has amended the Uttar Pradesh Basic Education (Teachers) Service

Rules, 1981, by Twentieth Amendment and the said amendment was

notified on 9.11.2017. The Assistant Teacher Recruitment Examination,

2018 got conducted as per Twentieth Amendment, however, Assistant

Teacher Recruitment Examination, 2019 is being conducted changing

some conditions.

143. In the present issue, the authorities concerned are themselves not

sure as to who would be appointed on the post of Assistant Teacher. If

the purported exercise is for the appointment on the post of Assistant

Teachers who are having requisite qualification and their appointment

shall be made on the basis of quality points as indicated in Appendix-I,

then the B.Ed. candidates, who have been permitted to appear in this

examination may not be getting quality point marks as per Appendix-I

as those (B.Ed. candidates) would not be provided any marks of their

B.Ed. qualification and weightage marks. Whosoever shall apply for the

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post of Assistant Teacher, he/ she shall be awarded 10% of the quality

points out of his or her percentage of marks each in High School,

Intermediate and B.T.C. training. Further, 60% of total percentage of

marks of Assistant Teacher Recruitment Examination shall be added

and whosoever shall qualify the Assistant Teacher Recruitment

Examination shall be given weightage of 2.5 marks (per completed

training year) maximum up to 25 marks; meaning thereby, the intent of

the authorities is to select finally the Assistant Teachers, who are at least

High School, Intermediate, Graduate and B.T.C. holder and if he or she

qualifies Assistant Teacher Recruitment Examination, shall get

weightage of maximum 25 marks being a experienced Shiksha Mitra.

The quality point marks shall be calculated counting the total marks in

the aforesaid six conditions.

144. Therefore, it is ample clear that the B.Ed. degree holders would

neither be getting any marks in B.T.C. training nor be getting any marks

in respect of weightage and for them Item No.4 i.e. B.T.C. training and

Item No. 6 i.e. weightage for Shiksha Mistra are unavailable and their

quality point marks shall be counted only on the basis of four items i.e.

(i), High School; (ii) Intermediate; (iii) Graduation Degree and (iv)

Assistant Teacher Recruitment Examination. The aforesaid state of

thing is beyond any comprehension. After making analysis of the

aforesaid facts, it appears that the examination in question is meant for

the Shiksha Mitras, who are having B.T.C. training certificate and have

qualified the Teacher Eligibility Test.

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145. It has also been noted that the definition of 'Teacher' has not been

given in the Rules, however, 'Teacher' is defined under Section 2 (o) of

the Rules, 1981, which is being reproduced herein below:-

"2, (o) 'Teacher' means a person employed or impartinginstructions in Nursery Schools, Basic Schools, JuniorBasic Schools, or Senior Basic Schools."

146. It is pertinent to note here that 'Trainee Teacher' is defined under

Section 2 (u) of the Uttar Pradesh Basic Education (Teachers) Service

(Twenty Second Amendment) Rules, 2018, which is as under:-

"2. (u) "Trainee teacher" means a candidate who haspassed B.Ed/B.Ed. (Special Education)/ D.Ed. (SpecialEducation) and has also passed the teacher eligibilitytest and has been selected for eventual appointment asassistant teacher in Junior Basic School after successfulcompletion of six months special training programme inelementary education recognized by National Council forTeacher Education (NCTE)."

147. The conjoint reading of the definition of 'Teacher' and 'Trainee

Teacher' clarifies that a B.Ed. degree holder may be selected for

eventual appointment as Assistant Teacher in the Junior Basic School

after successfully completion of six months special training programme

as per NCTE.

148. It has been noticed that Rule-5 of the Rules, 1981 provides the

mode of recruitment to the various categories of the posts as under:-

"5. Sources of recruitment.-- The mode of recruitment to the variouscategories of posts mentioned below shall be as follows:

(a) (i) Mistresses of Nursery Schools By direct recruitment asprovided in Rules 14 and15;

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(ii) Assistant Masters and AssistantMistresses of Junior Basic Schools

(b) (i) Headmistress of Nursery Schools By promotion asprovided in Rule 18;

(ii) Headmaster and Headmis-tresses ofJunior Basic Schools.

By promotion asprovided in Rule 18;

(iii) Assistant Masters of Senior BasicSchools


(iv) Assistant Mistresses of Senior BasicSchools


(v) Headmasters of Senior BasicSchools.


(vi) Headmistresses of Senior BasicSchools.


Provided that if suitable candidates are not available for promotion tothe posts mentioned at (iii) and (iv) above, appointment may be made bydirect recruitment in the manner laid down in Rule 15."

149. Perusal of the aforesaid Rule clarifies that there is no mention of

the post of 'Trainee Teacher', meaning thereby the 'Trainee Teacher'

would be different from 'Teacher'.

150. Further, vide Amended Rule 8 (ii) (a) of the Rules, 1981 (vide

Twenty Second Amendment, 2018), the academic qualification for

Assistant Teacher of Junior School has been prescribed as Bachelors

Degree from University and Basic Teacher Certificate and passed

Teacher Eligibility Test whereas Rule 8 (iii) is with respect to 'Trainee

Teacher', which provides the qualification for 'Trainee Teacher' as

Bachelors Degree from University together with B.Ed (Special

Education)/ D.Ed. (Special Education) and passed Teacher Eligibility

Test conducted by the Government of India. The conjoint reading of

the aforesaid provision makes it crystal clear that qualification for the

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appointment on the post of 'Assistant Teacher' and 'Trainee Teacher' is

different.

151. Further, the Amended Rule 14 of Rules, 1981 (Twenty Second

Amendment, 2018) provides procedure for selection. Rule 14 (1) (a)

provides that the posts of Assistant Teacher shall be filed up through

direct recruitment under Clause (a) of Rule 5, after determination of the

vacancies and publication in at least two leading newspapers and those

persons shall be appointed on such post, who are possessing required

qualification and passed Assistant Teacher Recruitment Examination

conducted by the Government. As per Sub-rule (b) of Rule 14 (1), there

shall be recruitment examination for every notified vacancy under

Clause (a) for recruitment of Assistant Teacher, meaning thereby the

recruitment examination may be held as per prescription given in Rule

14 (1) (a), but in the selection in question, the candidates whose

category falls under Rule 14 (1) (c) and (d) have also been permitted.

However, Rule 14 (1) (c) is dehorse Rule 14 (1) (d) as later provides

that when the trainee teacher shall undergo requisite training of six

months, he/ she shall be appointed as regular Assistant Teacher whereas

former says that B.Ed. candidates may be appointed as Teacher and

shall undergo training after appointment.

152. There is prescription in the Rule under Sub-clause (2) of Rule 14

regarding preparation of merit list. Further, Sub-Rule (3) (a) of Rule 14

provides that the names of candidates in the list prepared under Sub-

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rule (2) in accordance with Clause (a) of Sub-rule (1) of Rule 14 shall

be arranged in such manner according to the quality points and

weightage as specified in Appendix-I and the person working as

Shiksha Mitra in Junior Basic School run by Basic Shiksha Parishad

shall be given weightage. Rule 14 (3) (b) however provides that the

candidates whose merit list has been prepared under Sub-rule (2) in

accordance with Clause (c) of Sub-rule (1) of Rule 14 shall be arranged

in accordance with the quality points specified in Appendix-II.

153. Perusal of the aforesaid legal provision makes it clear that since

there is a statutory prescription in the Rule for providing weightage,

therefore, said statutory prescription may not be ignored and that

weightage may only be given to Shiksha Mitras. Rule 14 (3) (b)

provides prescription in respect of B.Ed. candidates etc. and whose

merit list shall be arranged in accordance with quality points as per

Appendix-II and admittedly, in the present selection the quality points

shall be determined as per Appendix-I, therefore, it appears that in the

present selection inclusion of B.Ed. candidates is unwarranted, however

no one has assailed the inclusion of B.Ed. candidates by means of batch

of these writ petitions.

154. It is true that there is no challenge in any of the writ petitions that

the inclusion of B.Ed. candidates is unwarranted and uncalled for and

they may not be selected getting quality point marks as per Appendix-I,

but circumstances under which the aforesaid anomaly has been

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committed by the State Government has nowhere been explained in the

counter affidavit or by way of argument.

155. Submission of learned counsel for the petitioners is that it is

incumbent upon the authorities to conduct two consecutive

examinations of Assistant Teacher Recruitment Examination for the

Shiksha Mitras, who have qualified TET, providing weightage to them

in compliance of the judgment of the Hon'ble Apex Court in re; Anand

Kumar Yadav (supra), therefore, both the examinations should be

conducted in the same manner so that the identically placed persons

could avail the similar opportunity. To be more precise, in the earlier

examination only those persons were permitted, who were qualified as

per Rules, 1981 (by Amended Rules), having qualified Teacher

Eligibility Test, thereafter Assistant Teacher Recruitment Examination

and after qualifying the aforesaid examination got weightage of being

Shiksha Mitras and then they have been selected as per quality point

marks under Appendix-I. In the said examination, B.Ed. candidates

were not permitted. Further, the qualifying marks was fixed up in the

earlier examination as 45% and 40% for general category and reserved

category respectively. In the present examination, not only the

qualifying marks have been fixed after the examination being over up

to 65% and 60% for both the categories, but also permitted the B.Ed.

degree holders whose quality point marks may not properly be

determined as per Appendix-I, but they may be determined as per

Appendix-II.

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156. Learned Senior Advocate for the State-respondents has

submitted with vehemence that in the earlier examination there were

only about 1.40 lakhs candidates appeared in the Assistant Teacher

Recruitment Examination whereas in the present examination of

Assistant Teacher Recruitment Examination more than four lakhs

candidates have appeared, therefore, so as to make short listing of the

eligible candidates, the cut off marks have been enhanced up to 65%

and 60%. It has been informed at the Bar that about 4.1 lakhs

candidates have appeared in the present examination wherein about

three lakhs candidate are B.Ed. degree holders, therefore, the number of

aspirants so enhanced in the present examination is on account of the

reason that the B.Ed. candidates have been permitted. Dr. L.P. Misra

has filed supplementary affidavit on 4.2.2019 and recital to that effect

has been given in para-7 thereof, but no denial of that fact has been

made by the State-respondents.

157. Under the given circumstances it has been noted that the

Assistant Teacher Recruitment Examination may not be treated as

shortlisting examination by prescribing such a high minimum

qualifying marks as the same may affect the rights of the petitioners

(Shiksha Mitras) who may likely to be deprived from getting weightage

of 25 marks which is statutory prescription in the 22nd Amendment.

Further, since the Assistant Teacher Recruitment Examination is not the

minimum qualification prescribed by the Academic authority and the

same has been added in the Rules of 1981 by way of 20th and 22nd

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Amendment, therefore, the qualifying marks should be minimum

qualifying marks. Further, the said qualifying marks should be seen like

minimum. Further, the Shiksha Mitras should be subjected for the same

treatment as has been given to them in earlier examination of Assistant

Teacher Recruitment Examination-2018 in terms of judgment of

Hon'ble Apex Court in re: Anand Kumar Yadav (supra). Since this

examination would be the second and last examination for the Shiksha

Mitras in terms of the aforesaid judgment of Hon'ble Apex Court,

therefore, this examination i.e. Assistant Teacher Recruitment

Examination-2019 should be conducted in a similar manner as the

Assistant Teacher Recruitment Examination-2018 has been conducted.

158. Submission of Sri Prashant Chandra, learned Senior Advocate,

for the State-respondents is true that unless and until vires of any rule

is not assail, the said provision of law may not be declared ultra vires or

may not be read down, but in view of the facts and circumstances of the

given case, it appears that the authorities concerned have themselves

created serious doubts, factual and legal, and the same might have been

declared ultra vires, if assailed. Further, at least the same may be read

down to make it constitutional.

159. To be more precise, since to provide weightage to the candidates,

who have qualified Assistant Teacher Recruitment Examination, is a

legal prescription under Rule 14 (3) (a) of the Rules and the same

weightage has been provided in the earlier examination to those

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candidates, who have qualified Assistant Teacher Recruitment

Examination with the minimum 45% and 40% qualifying marks,

therefore, enhancing the qualifying marks up to 65% and 60%,

permitting the candidates, who are having B.Ed. qualification and

quality point marks of those candidates may not be determined as per

Appendix-I is nothing but appears to be an attempt to oust those

persons, who are eligible for the weightage.

160. This Court under Article 226 of the Constitution of India may

take notice of this legal fact that the manner under which the authorities

are trying to conduct the examination would not be permissible in the

eyes of law. The legal grounds may be raised during the course of the

argument. Further, if those legal grounds appear to be appropriate in

fitness of the case, this Court may declare said provision of law as

unconstitutional, at least the said provision of law may be read down so

that the selection in question could be saved. Further, this Court finds

no justification as to why the cut off marks have been enhanced from

45% and 40% to 65% and 60%.

161. The Hon'ble Apex Court in re; Indra Das v. State of Assam,

(2011) 3 SCC 380, has held in para-24 as under:-

"24. The Constitution is the highest law of the landand no statute can violate it. If there is a statute whichappears to violate it we can either declare itunconstitutional or we can read it down to make itconstitutional. The first attempt of the court should be totry to sustain the validity of the statute by reading itdown. This aspect has been discussed in great detail by

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this Court in Govt. of A.P. v. P. Laxmi Devi [(2008) 4SCC 720] ."

162. The Hon'ble Apex Court in re; Union of India and others v.

Ind-Swift Laboratories Limited, (2011) 4 SCC 635, has held in para-

19 as under:-

"19. This Court has repeatedly laid down that in thegarb of reading down a provision it is not open to readwords and expressions not found in the provision/statuteand thus venture into a kind of judicial legislation. It isalso held by this Court that the rule of reading down is tobe used for the limited purpose of making a particularprovision workable and to bring it in harmony with otherprovisions of the statute.............."

163. It would be apt to consider here the relevant provision of law,

which provides about qualifying marks in Teacher Eligibility Test and

qualifying marks in Assistant Teacher Recruitment Examination. As

per Rule 2 (t) of the Rules 1981 (as amended by Twenty Second

Amendment, 2018), qualifying marks in Teacher Eligibility Test will be

such as may be prescribed from time to time by the NCTE, whereas as

per Rule 2 (x), qualifying marks of Assistant Teacher Recruitment

Examination means such minimum marks as may be determined from

time to time by the Government. Conjoint reading of aforesaid

provisions reveals that for Teacher Eligibility Test, qualifying marks

shall be prescribed by the NCTE and 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.

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164. However, in Assistant Teacher Recruitment Examination, it has

categorically been indicated in Rule 2 (x) that the qualifying marks

means such minimum marks determined by the State Government from

time to time. On account of aforesaid prescription, the State

Government has firstly determined the minimum qualifying marks as

45% and 40% for both the categories and thereafter, for the same

selection of Assistant Teacher Recruitment Examination, it has been

fixed as 33% and 30% as the State Government could have determined

any minimum marks from time to time, therefore, it is the domain of

the State Government to fix the qualifying marks for the Assistant

Teacher Recruitment 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 Teacher

Recruitment Examination with minimum qualifying marks shall not be

appointed on the post of Assistant Teacher, rather, he/she shall only be

eligible to reach in the next stage, thereby he/she shall be awarded

weightage and then his/her total quality points shall be calculated. On

the basis of total quality points, the candidate shall come in the zone of

eligible candidate, who shall be appointed according to his/her merit.

Meaning thereby, qualifying the examination of Assistant Teacher

Recruitment Examination does not make the person eligible to be

selected on the post of Assistant Teacher, but it only makes him/ her

eligible to get weightage, therefore, the submission of learned counsel

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for the State-respondents that so as to short list the eligible candidates,

merit of Assistant Teacher Recruitment Examination has been enhanced

up to 65% is misfit argument.

166. The Hon'ble Apex Court in a latest judgment dated 14.2.2019 in

re; Rahul Dutta and others v. The State of Bihar and others, Writ

Petition (Civil) No.71/2019, has held in para-8 as under:-

"8. Apart from that there is yet another glaring errorin the Rule that no minimum passing marks have beenprescribed in preliminary examination. The ratio of 1:10is only applicable when these number of successfulcandidates are available and obtaining of the minimumpassing marks in preliminary examination should benecessary, out of the successful candidates available outof them in the ratio of 1:10 are required to be called forfinal written examination. The candidates with minimumpassing marks only can be permitted to stake their claimin the final examination. It is assured by the allconcerned stakeholders i.e. State of Bihar, High Court ofPatna as well as the Bihar Public Service Commissionthat they would ensure the minimum passing marks arefixed under the Rules for preliminary examinationseparately for general as well as for reserved category ina reasonable manner. Let that be done for futureexamination. However, for the examination in question, itwould not be appropriate to fix the marks now afterexamination is over."

167. I also find substance in the argument of Sri U.N. Misra that

though the judgement of Hon'ble Apex Court in re; K. Manjusree

(supra) has been firstly referred to the larger Bench in re; Tej Prakash

Pathak (supra) and again referred to the larger Bench in re; Salam

Samarjeet Singh (supra) and Sivanandan C.T. (supra) but no

judgement of larger Bench has yet come so as per dictum of Apex Court

in re; P. Sudhakar Rao (supra), the dictum of K. Manjusree (supra)

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shall hold the field as the same has yet not been overruled and mere

reference of the judgement may not dilute the applicability of the

judgement, so referred. Further, if the dictum of Apex Court in re;

Hemani Malhotra (supra) wherein K. Manjusree (supra) has been

considered is applied in this case, the Government Order dated 7.1.2019

would become inapplicable herein and the same may be set aside being

in derogation of aforesaid judgements.

168. I also find favour in the submission of Sri U.N. Misra that it

cannot be comprehended as to what is the object of enhancing

minimum qualifying marks from 45% to 65% for Assistant Teacher

Recruitment Examination when it is only a qualifying examination. Mr.

U.N. Misra has rightly submitted that if the averment of the counter

affidavit is believed to be correct, the said enhancement has been made

to select the best available candidates, then who are the best candidates,

as per State-respondent. Since the inclusion of B.Ed. candidates have

been made in the present examination, therefore, it appears that the

enhancement has been made to oust the Shiksha Mitras from the

selection in question and to select the B.Ed. candidates. If it is the

intention of the State-respondent to enhance the minimum qualifying

marks, then it would be violative to the rules itself which categorically

provides that the Shiksha Mitras would be getting 25 marks as

weightage.

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169. Another submission of Mr. U.N. Misra appears to be appropriate

that Rule 14(3)(a) of Service Rules prescribes preparation of merit list

as per quality point marks and weightage specified in Appendix -1.

Further when a special statutory provision for grant of weightage has

been specifically provided in second Proviso to Rule 14(3)(a) read with

Appendix-1 which is available to all the T.E.T. qualified Shiksha Mitras

like the petitioners, for two consecutive attempts, under the judgment of

the Hon'ble Apex Court dated 25.7.2017 and when this recruitment of

2019 is the second and last such recruitment with weightage, that is

available to Shiksha Mitra, then, the special provision for grant of

weightage to Shiksha Mitra in two consecutive selections, cannot be

nullified by the respondents, by emphasizing the general provision of

selection as it is violative of the settled principle of law that when

within the same statute / rule, a special provision of law has been

incorporated to cater to special situation, the general provisions of law

cannot be emphasized over and above the special provision of law.

Thus, the special provision of law about weightage to T.E.T. qualified

Shiksha Mitra in two consecutive selections (the present one being the

last one) cannot be nullified by the respondent authorities by arbitrarily

raising the minimum qualifying marks for extraneous reason.

170. The manner in which the impugned G.O. dated 7.1.2019 has been

issued does not appear to be in conformity of the law in as much as it

may not be comprehended that within 24 hours all legal formalities to

issue the government order would have been completed. Admittedly,

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vide letter dated 5.1.2019 the Secretary, Board of Basic Education has

requested the State Government to fix any minimum qualifying marks

for the examination in question and on 7.1.2019 the Government Order

has been issued. I find force in the submission of Sri H.N. Singh,

learned Senior Advocate on this point whereby he has submitted with

vehemence that the Government Order dated 7.1.2019 has not been

issued under Section 13 of the Uttar Pradesh Basic Education Act, 1972

or under any provision of the Uttar Pradesh Basic Education (Teachers)

Service Rules, 1981 or in exercise of any provision under the Right of

Children to Free and Compulsory Education Act, 2009 or the Right of

Children to Free and Compulsory Education Rules, 2010, therefore, it

appears that it might have been issued in exercise of executive power of

the State Government under Article 162 read with Article 166 of the

Constitution of India. In that case, this has not been authenticated in

such manner as specified by Uttar Pradesh Distribution of Works Rules,

1975 [Uttar Pradesh Karya (Batwara) Niyamawali, 1975]. Under the

above Rules of 1975, all powers relating to the Basic Education has

been conferred to Shiksha Anubhag-5, not by the Additional Secretary

of Government of U.P. or Special Secretary, Government of U.P. as

happened in this case. The Government Order dated 7.1.2019 has been

issued by the Special Secretary of Shiksha Anubhyag-4, who is not

competent that too on the request of Secretary Board of Basic

Education dated 5.1.2019 and this was never placed for decision by

council of Ministers in conformity of Article 163 of the Constitution of

India, as such, the Government Order dated 7.1.2019 is not a

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Government Order, but merely a letter issued by the Special Secretary,

which may not be said to be decision of the Government for fixing the

minimum qualifying marks.

171. On being confronted on the aforesaid point the learned Senior

Advocate on behalf of State-respondent has categorically submitted that

it is true that the decision to fix cut off marks for Assistant Teacher

Recruitment Examination- 2019 has been taken hurriedly but procedure

has been followed. This Court had occasion to peruse the original

record which goes to show that in one single day all the decisions have

been taken. However, it does not clear as to whether the G.O. has been

issued under section 13 of the Act, 1972 or under any other Rules and if

it has been issued in exercise of executive powers of the State

Government under Article 162 and 166 of the Constitution, in that case

also has not been authenticated in a manner specified under the Rules of

Business, 1975. Thus, in view of the above, I am unable to comprehend

the reason of haste issuing the Government Order dated 7.1.2019.

172. Admittedly, the examinees were not aware about the decision of

the State Government regarding minimum qualifying marks before the

examination in question so besides the fact that rules of game may not

be fixed after start of the game, one more aspect is relevant here that in

view of the dictum of Hon'ble Apex Court in re: P.V. Indirsan (2)

(supra) and Rahul Dutta (supra) the minimum eligibility marks

should be declared before the examination and if the marks have not

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been fixed prior to the examination in question, may not be fixed later

on, therefore the impugned order dated 7.1.2019 would be said to have

been issued in derogation of aforesaid laws of the Hon'ble Apex Court.

173. Therefore, in view of the aforesaid findings I am of the

considered view that by not declaring the minimum qualifying marks of

Assistant Teacher Recruitment Examination before holding

examination is causing prejudice to the petitioners, including all

aspirants, as they have been denied an opportunity to adequately

prepare for the result. Further, since the State Government had to

conduct two examinations to appoint Assistant Teacher pursuant to the

direction of Hon'ble Apex Court in re: Anand Kumar Yadav (supra),

therefore, the manner of these two examinations should be similar

inasmuch as for Shiksha Mitras, Assistant Teacher Recruitment

Examination-2019 was the second and last examination to get benefit of

weightage as per judgment of Anand Kumar Yadav (supra).

174. The qualification of completing Assistant Teacher Recruitment

Examination was not mandatory as per NCTE Act but such

qualification has been prescribed by the State Government for Assistant

Teacher Recruitment Examination-2018 and the said examination had

been conducted and final appointment has been made so no new

condition should be added particularly for the second examination, i.e.

Assistant Teacher Recruitment Examination-2019.

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175. The B.Ed. candidates have been added, however, the same has

not been assailed, resultant thereof number of aspirants for the

examination has been enhanced drastically and the reasons for

enhancing the minimum qualifying marks has been explained saying

that since number of aspirants have been increased at least three times

from last examination, i.e. Assistant Teacher Recruitment Examination-

2018, therefore, the cut off limit has been increased, does not appear to

be worth acceptable for the reason that in earlier examination no B.Ed.

candidates were permitted. So the aspirants, including petitioners may

not be treated differently without having being informed to them for the

change before the examination in question.

176. Therefore, to that extent the Government Order dated 7.1.2019 is

unwarranted and uncalled for. As per my view the safest exercise of the

State Government should be to issue Government Order saying that

since no minimum qualifying marks have been declared before the

examination of Assistant Teacher Recruitment Examination-2019,

therefore, the result thereof would be declared on the basis of earlier cut

off marks i.e. 45% and 40% for both the categories and in that case no

candidate would find him prejudiced nor the final result would have

been delayed.

177. Therefore, the main reason of delay the result of Assistant

Teacher Recruitment Examination-2019 is Government Order dated

7.1.2019 itself. Had this Government Order dated 7.1.2019 been not

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issued, the result of Assistant Teacher Recruitment Examination-2019

would have been issued way back, as per scheme, and entire exercise of

selection of Assistant Teacher would have been completed and Assistant

Teachers would have been finally appointed by now. I find no fruitful

purpose in issuing the Government Order dated 7.1.2019 after the

examination of Assistant Teacher Recruitment Examination-2019

having been conducted on 6.1.2019.

178. Besides, the counsel for the State-respondent could not convince

as to how the quality points marks of B.Ed. candidates would be

determined / calculated as per Appendix -I when these B.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]. If these B.Ed. candidates are given

quality point marks as per Appendix -II, they can easily get marks for

all the items but quality points marks for this examination would be

calculated as per Appendix-I.

179. This Court is unable to comprehend the rationale behind it but

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 Basic

Education nor the State Government has carried out proper exercise

before conducting selection in question permitting B.Ed. candidates in

the present selection in question which increased the number of

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aspirants drastically without deciding the method for calculating their

quality points marks, without determining the vacancies for them as

B.Ed. candidates are different from B.T.C. candidates, enhancing the

minimum qualifying marks for the Assistant Teacher Recruitment

Examination-2019 by way of G.O. dated 7.1.2019 and conducting

Assistant Teacher Recruitment Examination-2019 differently from

Assistant Teacher Recruitment Examination-2018 whereas the State

Government was to conduct two examinations in a same manner as per

dictum of Hon'ble Apex Court. This unexplained anomaly may

convince this Court to quash the entire selection process but keeping in

view the fact that large number of candidates have already appeared in

selection process, therefore, this Court is only examining / testing the

fitness of Government Order dated 7.1.2019.

181. Considering the entire facts and circumstances of the issue and

case law so cited by the learned counsel for the respective parties I am

of the considered view that the Government Order dated 7.1.2019 is not

sustainable in the eyes of law being arbitrary and violative of Article 14

of the Constitution of India as it makes an unreasonable classification

by giving different treatment to two groups of identically situated

persons appearing in two consecutive examinations and there is no

valid reason and justification for drastically increasing minimum

qualifying marks without having any nexus with the object sought to be

achieved. It further appears that the Government Order dated 7.1.2019

is nullifying the beneficial direction of the Hon'ble Apex Court in re:

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Anand Kumar Yadav (supra), pursuant to which 25 marks of

weightage has been prescribed under Rule 14(3)(a) of the Rules 1981

(22nd Amendment, 2018) purposely for practical experience which is

an integral part of merit.

182. Accordingly, a writ in the nature of certiorari is issued quashing

the Government Order dated 07.01.2019 issued by the Special

Secretary, Basic Education Anubhag-4, Government of U.P., Lucknow.

183. A writ in the nature of mandamus is issued directing the

Secretary, Examination Regulatory Authority (E.R.A.) to declare the

result of Assistant Teacher Recruitment Examination-2019 in terms of

Government Order dated 1.12.2018 and also notification /

Advertisement dated 5.12.2018, ignoring the Government Order dated

7.1.2019, in the same manner as the earlier result of Assistant Teacher

Recruitment Examination-2018 was declared so far as the minimum

qualifying marks are concerned.

184. The concerning authorities shall make compliance of this order

with expedition, preferably within a period of three months. It is also

directed that the entire exercise of selection in question shall be

completed at the earliest, strictly in accordance with law.

185. In the result, the batch of these writ petitions are Allowed.

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186. Before parting with I put a note of appreciation for all the

Advocates, who have argued in this case. I also appreciate their hard

work, dedication and proper assistance being extended to the Court in

this matter.

187. No order as to costs.

Date :- March 29, 2019.Suresh/OPM/RBS

[Rajesh Singh Chauhan,J.]

A.F.R. RESERVED ON 22.02.2019 DELIVERED ON 29.03 · Singh Bhadauriya,Upendra Nath Misra Counsel for...

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