I Constitution of the Full Bench

Hon’ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.—This Full Bench has been constituted in pursuance of an order dated 27 July 2015 of the Hon’ble Supreme Court in State of Uttar Pradesh v. Shiv Kumar Pathak, Civil Appeal Nos. 4347-4375 of 2014 and IA Nos. 2 and 3 in Writ Petition (Civil) No. 167 of 2015, and connected cases. The Supreme Court directed that all matters before the High Court of Judicature at Allahabad, both at Allahabad and Lucknow, relating to Shiksha Mitras shall be heard by a Full Bench at Allahabad. In pursuance of the order passed by the Supreme Court, the writ petitions relating to Shiksha Mitras which were pending before the Lucknow Bench have been transferred to Allahabad in pursuance of the provisions of Clause 14 of the United Provinces High Courts (Amalgamation) Order, 1948.

II Scope of the challenge

2. In the leading writ petition, Writ-A No. 34833 of 2014, the relief which has been sought, is for setting aside two notifications which were issued on 30 May 2014 by the Government of Uttar Pradesh for notifying the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules, 2014 (RTE Rules of 2014) and the Uttar Pradesh Basic Education (Teachers) Services (Nineteenth Amendment) Rules, 2014 (Service Rules of 2014). By and as a result of the amendment, Rule 16-A was introduced into the Rules framed by the State Government under the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act, 2009), called the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 (UP RTE Rules of 2011) to reserve to the State Government the power to relax the minimum qualifications prescribed for the appointment of Assistant Teachers in junior basic schools in the case of Shiksha Mitras for the purpose of their appointment in regular service. The second amendment which has been made by the State Government has the effect of amending the Uttar Pradesh Basic Education (Teachers) Services Rules, 1981 (Service Rules of 1981). By the amendment, the State Government has enabled the appointment of Shiksha Mitras who were working on the date of commencement of the amended Rules into regular service as Assistant Teachers of junior basic schools. The reliefs which have been sought also include a challenge to a Government Order dated 7 February 2013 issued by the Principal Secretary, contemplating the absorption into service, of Shiksha Mitras working in junior basic schools in phases covering a total of 1,24,000 graduate Shiksha Mitras and 46,000 Shiksha Mitras who have completed the intermediate qualification. There is also a challenge to a further Government Order dated 19 June 2014 implementing the decision of the State Government to absorb Shiksha Mitras into regular service.

3. III For convenience of exposition, the judgment has been divided into the following parts:

(i) PART A : The legislative, regulatory and administrative framework

(ii) PART B : Submissions

(iii) PART C : Analysis

(iv) PART D : Operative orders

PART A : The legislative, regulatory and administrative framework

4. The resolution of the controversy before the Court turns upon the relevant legislation, both Central and State, holding the field and the rules and notifications. It is upon the interpretation of the regulatory framework that the dispute would turn.

A1 Uttar Pradesh Basic Education Act, 1972

5. The Uttar Pradesh Basic Education Act, 1972 (Act of 1972) was enacted by the state legislature for the purpose of re-organising, reforming and expanding elementary education and, with that purpose in view, to enable the State Government to rest control over elementary education from Zila Parishads in rural areas and Municipal Boards and Mahapalikas in urban areas while vesting it in the Board of Basic Education. The expression ‘basic education’ is d