Point of Law: Employment and Service matter - Assistant Teachers - Compassionate appointments - Order of cancellation of appointment - compassionate appointment cannot be given dehors statutory provisions only in reference to Government Order - Administrative order cannot stand in conflict with statutory provisions.

JUDGMENT :

Munishwar Nath Bhandari, J.

1. Heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddharth Khare, learned counsel for the petitioner-appellants and Sri Gopal Chandra Saxena, learned Standing Counsel for the State-respondents.

2. By this batch of appeals, the challenge is made to the judgment dated 25th July, 2012 whereby the writ petitions preferred by the petitioner-appellants were dismissed. The writ petitions were preferred to challenge the order dated 12th June, 2012 whereby Secretary, Basic Education Board, U.P. Allahabad directed for disengagement of Assistant Teachers appointed on compassionate ground. The appointments to the petitioner-appellants were on the terms and conditions contained in the Government Order dated 4th September, 2000. The petitioner-appellants were to acquire the BTC training qualification to get regular appointments. Some of the petitioner-appellants were sent for BTC training but pursuant to the order dated 12th June, 2012 of the Uttar Pradesh Basic Education Board, all the petitioner-appellants were disengaged on the ground that untrained teachers could not have been appointed after enforcement of the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 (for short “Rules of 2011”).

3. The controversy raised in these appeals mainly rests on the Rules of 2011 and the Right of Children to Free and Compulsory Education Act, 2009 (for short “Act of 2009”). After the enactment of Act of 2009, and Notification dated 23rd August, 2010 under Section 23 of the Act of 2009, the appointment on the post of teachers could not have been given unless one has passed the Teachers Eligibility Test (for short “TET”). It is an admitted fact that none of the petitioner-appellants were possessing TET certificate prior to their appointment or giving effect to the Rules of 2011.

4. The learned Single Judge had considered the issue in detail and after referring to the provisions of Act of 2009 so as the Rules of 2011 apart from consideration of U.P. Basic Education Ordinance, 1972 and U.P. Basic Education (Teachers) Service Rules, 1981, dismissed the writ petitions.

5. Learned counsel for the appellants submits that the learned Single Judge has referred to the Rules of 2011 given effect from 27th July, 2011 and the Act of 2009 but failed to take note of Section 12-A of the National Council for Teacher Education Act, 1993 (for short “Act of 1993”). It is submitted that Amendment in the Act of 1993 by the Act No. 18 of 2011 was given effect since 1st June, 2012. The appointments of those teachers engaged in pre-primary, primary, upper primary, secondary and senior secondary etc. were saved even if they were not qualified prior to Amending Act of 2011 but has been ignored by the learned Single Judge. He submits that the petitioner-appellants were given appointment on compassionate basis knowing it well that they have not passed out TET, therefore, subsequently they could not have been disengaged either in reference to the Rules of 2011 or the Act of 2009. Their appointments were otherwise saved by Section 12-A of the Act of 1993.

6. Coming to the facts of this case, it is submitted that on earlier occasion special appeals were dismissed by the Division Bench but on a review petition, the judgment was recalled and matters were transmitted for fresh hearing. The judgment of the learned Single Judge is in ignorance of Section 12-A of the Act of 1993, brought by Amendment of 2011 with effect from 1st June, 2012. Accordingly, the case of the petitioner-appellants should have been governed by the said provision. The proviso to Section 12-A has given protection to all appointments made prior thereto despite such appointments not being in conformity with the qualifications specified in that regard.

7. It is submitted that in exercise of the powers given under Section 23(1) of the Act of 2009, the Central Government designated National Council for Teacher Education as academic authority for l