“Teaching is not a lost art, but the regard for it is a lost tradition”, wrote Jacques Barzun, Jacques Barzun, ‘Teacher in America’, (1945) in mid 20th century USA, which finds its echo in the callous disregard for teaching and education in Uttarakhand today. The sheer apathy of the powers that be towards elementary education in the State, lie at the heart of the problem before this Court.

2. The petitioners before this Court have prayed for a writ, order or direction in the nature of mandamus for declaring Rule 7, Rule 9 & Rule 32 of the Uttarakhand Government Elementary Education (Teacher)(Amendment) Service Rules, 2012, as ultra vires to the Constitution of India. The above Rules were incorporated in the main Service Rules vide amendments made in the year 2013 and 2014, respectively. With the said amendments, primarily the “Shiksha Mitras” which are akin to para teachers, are being absorbed as Teachers in Government Primary Schools, inter alia, by exempting a mandatory qualification in their case, which the petitioners would argue is illegal and ultra vires being violative of the provisions given in the Right to Education Act, 2009. The petitioners claim that the Shiksha Mitras, who are imparting elementary education in the State, cannot be exempted from the mandatory qualification of ‘Teachers Eligibility Test’ (from hereinafter referred to ‘TET’), which is laid down by the academic body i.e. National Council for Teachers Education, under Section 23(1) of The Right to Children to Free and Compulsory Education Act, 2009 (from hereinafter referred to as ‘Right to Education Act’).

3. A candidate cannot be considered as “eligible” for appointment as a teacher in a primary school, which is covered under the Right to Education Act, until and unless he qualifies an examination known as TET. As we shall see, in certain contingencies, the Central Government can relax another mandatory qualification, which is a two years diploma in elementary education, but under no circumstances can either the Central Government or the designated academic body i.e. ‘National Council for Teachers Education’ (in short ‘NCTE’) and certainly not the State Government, can exempt this mandatory qualification called TET. All the same, the State Government by making amendment in its Rules, has done precisely this, which is that it has exempted a certain category of “teachers” known as ‘Shiksha Mitra’ in the State of Uttarakhand from the mandatory qualification of TET. An Act, which is presently under challenge in the writ petition.

4. Article 41 of the Constitution is a directive principles of State Policy which declares that the State shall within the limits of its economic capacity and development make effective provision for securing the right to education (amongst other rights). Yet positive efforts of the State, in form of legislations or executive orders, were slow in coming in the initial years of the new Republic.

5. The subject “education” was originally in the State list of the Seventh Schedule till the 42nd amendment. Vide 42nd amendment it was omitted from list II and inserted in Item No. 25 of List III i.e. Concurrent List. Thereafter since 1990s, the Central Government introduced various Schemes, such as ‘Sarva Shiksha Abhiyan’, aimed towards the spread of elementary education in the country.

6. In order to fully appreciate the legal issues raised in the present petition, it is absolutely necessary that we first understand the concept of “Shiksha Mitra”. In the erstwhile State of Uttar Pradesh, for the first time, the concept of “Shiksha Mitra” was introduced by Government vide an order dated 26.05.1999. The State of Uttarakhand was carved out of Uttar Pradesh by an Act of Parliament called U.P. Reorganisation Act, 2000 and was formed on 9th