Holding

NCTE is competent to lay down binding minimum qualifications for teachers, but the weightage to TET marks is not mandatory; the State may fill remaining vacancies via a fresh advertisement while the already appointed teachers remain undisturbed.

Summary

The State of Uttar Pradesh amended its Basic Education Rules to incorporate the National Council for Teachers Education (NCTE) qualifications for elementary teachers, later revoking the weightage given to Teacher Eligibility Test (TET) marks. A writ petition challenged the revocation, and the Allahabad High Court set aside the amendment, directing selection as per the 2011 advertisement. On appeal, the Supreme Court held that NCTE, as the academic authority under Section 23 of the RTE Act and Sections 12 and 12A of the NCTE Act, may prescribe minimum qualifications, which are binding on the State, but the weightage to TET marks is not mandatory. Consequently, the Court upheld the qualifications, rejected the High Court’s quashing of the amendment, and allowed the State to fill the remaining vacancies through a fresh advertisement, without disturbing the 66,655 teachers already appointed. The matter was disposed with directions for the State to complete recruitment in accordance with law.

Issues considered

Whether the NCTE guidelines fixing minimum qualifications for teachers are arbitrary or unreasonable
Whether marks obtained in the TET examination constitute the sole criterion for teacher recruitment
Whether the High Court was justified in quashing the 15th amendment to the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981
Whether the weightage to TET marks prescribed by NCTE is a mandatory requirement
Whether the State can prescribe selection criteria inconsistent with NCTE guidelines under the concurrent list

Legislation cited

Constitution of Indias. Article 254
National Council for Teachers Education Act, 1993s. 12, s. 12A
Right of Children to Free and Compulsory Education Act, 2009s. 23

Subjects

teacher recruitmentNCTETETweightageminimum qualificationsconcurrent listRTE Actstate rule amendmentappointment criteria

Judgment

[2017] 7 S.C.R. 905 905

STATE OF U.P AND ORS. ETC. ETC. A
v.
SHN KUMAR PATHAK AND ORS. ETC. ETC.
(Civil Appeal Nos. 4347-4375 of 2014)
JULY25,2017 B

[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
Service Law:
Recruitment - National Council for Teachers Education
(NCTE) laid down qualification for appointment of teachers of C
elementary education by issuing Notification dated 2J•d August ,
2010 - By Notification dated 11'" February, 2011 NCTE issued
guidelines to conduct Teachers Eligibility Test (TET) and also
provided for weightage to the marks in the said test for recruitment
of teachers - State Government amended Uttar Pradesh Basic D
Education Rules, 1981 by its 12"' amendment to bring it in
consonance with the notifications issued by NCTE - Advertisement
dated 30'" November, 2011 (in accordance with 12"' amendment)
c011celled - Further, State by 15'" amendment to the 1981 Rules
provided that weightage to TET marks was not required - Thereafter,
fresh advertisement dated 7'" December, 2012 - 15'" amendment as E
well as cancellation of previous advertisement challenged on the
ground that it rendered the rules inconsistent with the NCTE
guidelines - Single Judge of High Court dismissed the writ petition
- Division Bench of High Court, set aside the fresh advertisement
and directed the State to conclude the selection as per advertisement
F
dated 30'" November, 2011 - On appeal, held: NCTE was competent
to issue the Notifications dated 23rd August, 2010 and llth
February, 2011 - Therefore, State Government was under obligation
· to act as per the said notifications - However, in view of the stand
of NCTE that weigh/age to marks in TET was not mandatory, 15'"
amendment to the 1981 Rules, need not be interfered with - Since G
by interim order of Supreme Court 66,655 posts against 72,825
posts have already been filled in, as per advertisement dated 30'"
November, 2011, the same cannot be disturbed - However, the Stale
is at liberty to fill up the remaining vacancies as per fresh
advertisement - Constitution of India - Art. 254; Schedule Vil, List
H
905
906 SUPREME COURT REPORTS (2017] 7 S.C.R.

A Ill, Entry 25 - Right of Children to Free and Compulsory Education
Act, 2009 - s. 23 - National Council for Teachers Education Act,
1993 - ss. 12(d) and 12A - Uttar Pradesh Basic Education Act,
1972 - Uttar Pradesh Basic Education Act, 1972 - Uttar Pradesh
Basic Education Rules, 1981.
B Disposing of the matters, the Court
HELD: 1. The National Council for Teachers Education
(NCTE) acting as an 'academic authority' under Section 23 of the
Right of Children to Free and Compulsory Education Act, 2009
under the Notification dated 31" March, 2010 issued by the
c Central Government as well as under Sections 12 and 12A of the
National Council for Teachers Education Act, 1993 was competent
to issue Notifications dated 23rd August, 2010 and 11 11' February,
2011. The State Government was under obligation to act as per
the said notifications and not to give effect to any contrary rule.
However, since NCTE itself has taken the stand that notification
D dated 11 •h February, 2011 with regard to the weightage to be given
to the marks obtained in TET is not mandatory, which is also a
possible interpretation, the view of the High Court in quashing
the 15'h Amendment to the 1981 Rules has to be interfered with.
Accordingly, while it is upheld that qualifications prescribed by
E the NCTE are binding, requirement of weightage to TET marks
is not a mandatory requirement. [Para 16) [922-D-F)
2. In normal course the State would have been at liberty to
proceed with the selection in terms of advertisement dated 7'h
December, 2012 in accordance with the amended rules by way of
15'h amendment, in view of developments which have taken place
F
during pendency of these appeals, the said advertisement cannot
proceed and while upholding the said advertisement,. relief has
to be moulded in the light of developments that have taken place
in the interregnum. 66,655 teachers have already been appointed
in pursuance of the interim orders of this Court. Having regard
G to the entirety of circumstances, the same cannot be disturbed.
However, the State is at liberty to fill up the remaining vacancies
in accordance with law after issuing a fresh advertisement. [Paras
17, 19) [922-G; 923-D-E]
Shiv Kumar Sharma and Ors. v. State of U.P. and Ors.
H 2013 (6) ADJ 310 - referred to.
STATE OF U.P v. SHIV KUMAR PATHAK 907

Case Law Reference A
2013 (6) ADJ 310 referred to Para6
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4347-
4375 of2014.
From the Judgment and Orderdated20. l l.2013 of the High Court B
of Judicature at Ailahabad in SAD No. 237 of 2013 etc. etc. etc.
WITH
Civil Appeal No. 4376 of2014,
Civil Appeal Nos. 9530, 9704, 9705, 9707, 9708 and 9709 of2017, C
Contempt Petition (C) Nos. 199 and 399 of 2015, 262, 265, 264,
263,266, 192, 191, 189, 190,287,286,285,290,452,454,538,537,752,
776 and 780 of2016, 607, 626, 627, 652 and 651 of2017 in Civil Appeal
Nos. 434 7-4375of2014,
W. P. (C) No. 100 of2016, D
W. P. (C) Nos. 135 and 89 of2015.
ANS Nadkarni, ASG, R. Venkataramani (AC), Dinesh Dwivedi,
Rakesh K. Khanna, Pramod Swarup, Shekhar Naphade, A. Sharan, Ms.
Kiran Suri, Pradeep Kant, Guru Krishna Kumar, Brijender Chaher, R.
Basant, Ranji Thomas, S. P. Singh, S.R. Singh, Ashok Parija, Jayant E
Bhushan, Dr. Abhishek Manu Singhvi, K.T.S. Tutsi, V. Shekhar, Thomas
P. Joseph, V. Giri, Ms. Mahalakshmi Pavani, H. Ahamadi, A. K. Panda,
Salman Khurshid, P.N. Misra, Harin P. Raval, Krishanan Venugopal,
Mahabir Singh, S. N. Jha, P. Dutta, Shanti Bhushan, Amit Sibal, P.S.
Datta, Keshav Dayal, Ms. V. Mohana, Colin Gonsalves, J.N. Dubey, F
Vikas Singh, R. Dhawan, Vijendra Chahar, Sr. Advs., Yashraj Singh
Bundela, Krishnan Mishra, Nishant Singh, Yashanth Kant Srivastava,
Ardhendumauli Kr. Prasad, Abhisth Kumar, Rakesh Mishra, Ms. Shefali
Jain, Ms. Mahima Rathi, Ms. Divya Choudhary, Ankit Mishra, Rajesh
Singh Chauhan, Ms. Binu Tamta, Keshav Thakur, M. K. Maroria, Anuvrat
Sharma, Ms. Alka Sinha, Ameet Singh, M. R."'Shamshad, Rajesh G
Srivastava, Vivek Singh, Mrs. Kirti Renu Mishra, Ms. Apurva Upmanyu,
Praveen Kumar Rai, Hema! Kirit Kumar Sheth, Ms. Preetika Dwivedi,
Ms. Archana Mishra, K. K. Srivastava, Vij ay Pal, Rakesh Kumar, Avinash
Kumar Jain, Ms. Marnia Chandel, Kunda! Lal, Uday Prakash Yadav,
H
908 SUPREME COURT REPORTS [2017] 7 S.C.R.

A Nasir Husian, Dr. Kailash Chand, J.P. Kama, Amit Pawan, Prashant
Shukla, T.D. Bhaskar, Satyajeet Kumar, Anand Nandan, Abhishek
Amritanshu, Hassan Zubair Wa~is, Akshat Shrivastava, Gaurav Singh,
Prashant Shukla, Ms. Radhika Dwivedi, Ms. Disha C. Saxena, K.
Parameshwar, Shiv B., Mangal Prasad, Avnish Singh, Avnish Singh, Ankur
Yadav, Ms. Shweta Yadav, Ms. Nivedita Nair, Pitamber Dutt Nautiyal,
B
Ms. Asha Gopalan Nair, Nishi! Agrawal, Utkarsh Sharma, Talha Abdul
Rahman, Vipin Kumar Jai, M. M. Singh, Rahul Gupta, Siddhartha Dave,
R.K. Singh, Kumar Gaurav, B. N. Dubey, Robin Khakhar, P. Dayal, Ms.
Swarupama Chaturvedi, Neeraj Singh, Anurag Tomar, Ms. Priyanka
Agarwal, Ms. Mandakini Agarwal, Navandeep Matta, T. N. Tripathi,
c Kausar Raja Faridi, Jugul Kishor Gupta, Jitendra Kr. Singh, Rameshwar
Prasad Goyal, Ms. Cordelia Slong, G Balaji, Mrs. K. Sarada Devi, Sanjay
Kumar Pathak, GS. Makkar, S. Wasim A.Qadri, Jubari Ahmad Khan,
ZaidAli, Tamim Qadri, Mudasir Nabi, Udita Singh, Ms. Meenakshi Lekhi,
Shovan Mishra, Ms. VarshaRana, K. L. Janjani,AftabAli Khan, Mehul
D M. Gupta, R. P. Gupta, Pradeep Kr. Dwivedi, Mrs. Madhu Bala, Jitendra
Kumar, Surya Nath Pandey, Anupam Dwivedi, Sandeep Kr. Dwivedi,
S.K. Pathak, Dinesh Kr. Tiwari, Mrs. Rajmala Dohare, Chandan Kumar,
Swami Nath, Anam Abdullah Khan, Dr. Vinod Kumar Tewari, Ali
Mushtaq, Prakash Ranjan Nayak,Avinash C. Srivastava, ParagP.Tripathi,
Alexander Iqbal, Ajay Kumar Srivastava, Alok Gupta, Sanjeev Kr.
E Srivastava, Shivam Tripathi, Arvind Minocha, Gunjan Singh, Ms. Jyoti
Mehndiratta, Anurag Dubey, Meenesh Dubey, S. R. Setia, Ms. Rachana
Srivastava, Sukrit R. Kapoor, Ms. Monika, Nitya Madhusoodanan, Ashok
Kumar Sharma, Anjani Kumar Mishra, Sajith. P, Garvesh Kabra, Arun
Kumar Singh, Satya Mitra Garg, Anupam Mishra, Ms. Renu Bhandari,
Ms. Pooja Singh, Ms. S. Janani, J.K. Shukla, B.K. Rai, Prakash Kumar
F
Singh, Fuzail Ahmad Ayyubi, V.N. Raghupathy, Sanjay Kumar Tyagi,
Ajay Vikram Singh, Ms. Priyanka Singh, Pritam Bishwas, Ujjwal Mishra,
Neelambar Jha, R. Gopalakrishnan, Wills Mathews, Mukesh K. Verma,
Ginesh P., Sudhanshu Tomar, Rabin Majumder, Mohan Lal Sharma,
Narender Kumar Verma, Ms. Pragya Baghel, Ms. Rangeeta Rohatgi,
G Ms. S. Doma, Md. Rashid Saeed, V.K. Mishra, Kundan Kumar Lal, Dr.
B.K. Jauhari, Ms. Purnmima Jauhari,Animesh Khanna, Suresh Chandra
Sharma, Ms. Pooja Sharma, Mahender Kumar, Prakash Kumar Singh,
Deepak Anand, Mrs. Sudha Gupta, Rakesh Uttamchandra Upadhyay,
Mansoor Ali, Vijay Pal, K. K. Srivastava, Kundan Lal, Rakesh Kumar,

H
STATE OF U.P v. SHIV KUMAR PATHAK 909

C. P. Singh, Ms. Mamta Chandel, Amit Kumar, Ram Swarup Sharma, A
Raj Kishor Choudhary, Praveen Swarup, Purvish J. Malkan, Surya
Kumar, Prabhoo Dayal Tiwari, Vishwesh Prakash Tiwari, Deo Kumar
Ojha, Jetendra Singh, Ms. Kalpana Sabharwal, Vijendra Kaushik, Ms.
Priyanaka Singh, Ms. Manisha Tiwari, Bhanu Pratap Singh, Dwarka
Sawale, Ms. Manju Jetley, Rahul Gupta, Ms. Charu Mathur, Ram B
Anugrah Singh, Ajay Jain, Jinendra Jain, Parnay Jain, Ms. Aastha Chopra,
Ms. Shalini Singhal, Shekhar Raj Sharma, Birjesh Yadav, Prashant Shukla,
Abdul Qadir, Ms. Kamakshi S. Mehlwal, Vipin Kumar, Anubhav, Deepak
Goel, Ashok Pandey, Mrigank Prabhakar, Ms. Rashmi Nandakumar,
Roopansh Purohit, Ramesh Kumar, Ms. Swarupama Chaturvedi, Susheel
Tomar, Ms. Ashwariya Bhati, Ms. Anjana Prakash, Srisatya Mohanty, c
Prashant Shukla, Ms. Abha R. Sharma, Mrs. Shally Bhasin, Ms. Parul
Shukla, Udayaditya Banerjee, E. C. Agrawala, Nachiketa Joshi, Dinesh
K. Garg, Abhishek Garg, Dhananjay Garg, Deepak Mishra, Pankaj Kumar
Singh, Maindra Dubey, Raj Singh Rana, S. Shantanu, Ms. A Shivani,
Neeraj Shekhar, Ms. Priya Hingorani, Sarvesh Chowdhry, Himanshu D
Yadav (for Hingorani & Associates), Manish Shankar Srivastava,
Yasharth Kant, Ms. Minakshi Viz, Sujeet Kumar, Ms. Reena Patel,
Akhilesh Pandey, Ms. Shibha Tyagi, Kuldip Yadav, Hirnanshu Tyagi, Ms.
Anita Bafna, Ms. Arunima Dwivedi, B. P. Singh Dhakray, Shakti Singh
Dhakray, Vipin Kumar, K.K.Shrivastava, Vijay Pal, Yashwant Yadav,
Nitin Kr. Thakur, Kundan Lal, Dr. Kailash Chand, Dr. Monika Gusain, E
Hariom Yaduvanshi, Anil Kumar, Prashant Shukla, Alok Gupta, Rajiv
Ranjan Dwivedi, Anshuman Nayak, Ms. Binu Gupta, Anil K. Chopra,
Anil Kumar Jha, Anjani Kumar Mishra, Ms. Sudha Gupta, Ankur S.
Kulkarni, Anoop Kr. Srivastav, Anuj Bhandari, Anupam Mishra, Anup
Jain, Abhishek Baid, Anurag Kishore, Anurag Pandey, Arjun Krishnan,
F
Balraj Dewan, Brajesh Kumar, DeepakAnand, Rohit Pandey, Shishpal
Laler, Ghanshyam Singh, Devesh Kumar Tripathi, Devvrat, Yogesh
Kumar Sharma, Dushyant Parashar, Farrukh Rasheed, Prashant Shukla,
J.P. Kama, Garvesh Kabra, Gopal Singh, Manoj Kumar Dwivedi, Gunnam
Venkateswara Rao, Sanjay R. Hegde, Suryodaya Prakash Tiwari, Rahul
KumarTriptahi, Gyan Prakash Srivastava, Raj iv Kr. Dubey, Kamlendra G
Mishra, Hara Sahu, Kedar Nath Tripathy, Yatish Mohan, Ms. Reena
Yadav, Ms. Vinita Mohan, K. S. Rana, Mukesh Verma, Vipin K. Saxena,
T.N. Saxena, H.C. Kharbanda, Bikash Kumar Sinha, Yashpal Dhingra,
S.K. Dubey, Rajmangal Kumar, K. V. Mohan, Manoj K. Mishra, Umesh

H
910 SUPREME COURT REPORTS [2017] 7 S.C.R.

A Dubey, S.K. Pathak, Mohan Lal Sharma, Navin Prakash, Meetu Singh,
Nitin Kumar Thakur, Birzesh Chaudhry, Hitesh Kumar Sharma, Dipankar
Das, P. N. Ramalingam, Prakash Kumar Singh, Yunus Malik, Anish
Maheshwari, Prashant Chaudhary, Ranbir Singh Yadav, R.D.
Upadhyaya, Roh it Singh, Roopansh Purohit, R. P. Gupta, Santosh Kumar
Tripathi, Farha Faiz, Megh Pal Singh, Satish Kumar, Satpal Singh, D.K.
B
Chaubey, Mithlesh Kr. Mishra, Dilip Raghuvanshi, Shekhar Kumar,
Kasushal Narayan Mishra, Amit Yadav, Ms. Jyoti Kumar M., Shishir
Deshpande, Shree Pal Singh, Mrs. Kirti Renu Mishra, Mrs. Mona K.
Rajvanshi, Anurag Kashyap, Mrs. Revathy Raghavan, Mrs. Sudha Gupta,
D.P. Singh Yadav, Varinder Kumar Sharma, Ms. Parul Sharma, Vikrant
c Singh Bais, Vishwa Pal Singh, Ms. Jyotika Kalra, Ms. Kamakshi S.
Mehlwal, Hari Om Sharma, Ms. Manju Sharma, Ms. Manju Jetley, Ms.
S. Ramamani, Ram Kishor Singh Yadav, Krishna Kant Dubey, Rakesh
Kumar Tewari, U.N. Mishra, Sanjay Kumar Dubey, Ms. Shuchi Singh,
Devender Kumar Shukla, C.K. Pandey, Abhikalp Pratap Singh, Vishal
D Prasad, MIS Aura & Co., Ashwani Garg, Sanjeev Malhotra, Gaurav
Sharma, Ritesh Agrawal, Ms. Asha Gopalan Nair, R. Gopalakrishnan,
Shreekant N. Terdal, Karunakar Mahalik, Ms. Charu Mathur, R.P.
Wadhwani, Ms. Archana Pathak, Ms. Mridula Ray Bharadwaj, Venkita
Subramoniam T.R., Harish Pandey, Fuzail AhmadAyyubi, Rakesh Mishra,
Ravi Prakash Mehrotra, Birjesh Partap Singh, Hitesh Kumar Sharma,
E Dipankar Das, Kaushal Yadav, Nandlal Kumar Mishra, Ms. Sunita Yadav,
Raj iv Kumar Sinha, Kundan Lal, Vipin Kumar, Varun Singh, Abhishek
Sarkar, Y.K. Pandey, Ms. Partha Sil, Sibo Sankar Mishra, Ms. Arti Gupta,
Sudhansu Palo, Sunny Choudhary, Dr. Sandeep Singh, Sanchit Garga,
Vinay Pal, Pahlad Singh Sharma, Heman! Kumar Yadav,Advs. for the
appearing parties.
F
Respondent-in-person.

The Judgment of the Court was delivered by

ADARSH KUMAR GOEL, J. 1. This batch of cases arises
G out ofjudgment of the Allahabad High Court dated 20'h November, 2013
in Sltiv Kumar Pathak and Ors. v. State of U.P. and ors.1 and involves
the question of validity of decision of the State of Uttar Pradesh in
prescribing qualifications for recruitment of teachers at variance with
the guidelines of the National Cow1cil for Teachers Education (NCTE)
I 2013 (IO) ADJ 121
H
STATE OF U.P v. SHIV KUMAR PATHAK 911
[ADARSH KUMAR GOEL, J.]

dated I l'h February, 2011 under Section 12(d) read with Section 12Aof A
the National Council for Teachers Education Act, 1993 (NCTE Act)
and Section 23 of the Right of Children to Free and Compulsory
Education Act, 2009 (RTE Act) on the ground of repugnancy of State
law with the Central law on a subject falling in concurrent list.
2. The following questions for consideration were framed by this B
Court vide its order dated 2"d November, 2015:
a) Whether the NCTE guidelines fixing the minimum qualification
are arbitrary and unreasonable?
b) Whether the marks obtained in the TET Examination is the
sole criterion for filling up the vacancies? C
c) Whether the High Court is justified in declaring [sic quashing]
the lS'h Amendment brought in on 31.08.2012 to the U.P. Basic
Education (Teachers) Service Rules, 1981?
d) Assuming, the guidelines framed by the NCTE are treated as D
intra vires, the question will be what interpretation would be
placed by the Court on the concept ofweightage as mentioned
in the guidelines of the NCTE?
3. It will be appropriate to mention the background facts briefly
for deciding the above questions. The Uttar Pradesh Basic Education
E
Act, 1972 was enacted by the State of Uttar Pradesh to regulate basic
education. The Act sets up a Board which is to organize, coordinate and
control the imparting of basic education and teachers' training. The
State of Uttar Pradesh framed 1981 Rules under the Act to deal with
the appointment of teachers.
F
4. In the wake of Eighty-Sixth Amendment to the Constitution of
India inserting Article 21A for providing free and compulsory education
to children of age of 6 to 14 years, the RTE Act was enacted. The RTE
Act inter alia lays down qualifications for appointment and terms and
conditions of service of teachers. The Central Government in exercise
of its powers under Section 23 of the Act, issued Notification dated 31" G
March, 2010 authorising the NCTE as the "academic authority" to lay
down the minimum qualifications for a person to be eligible for
appointment as a teacher. The NCTE thereafter issued Notification
dated 23'd August, 2010 laying down qualifications for appointment of
teachers for elementary education. The NCTE also issued guidelines H
9.12 SUPREME COURT REPORTS [2017] 7 S.C.R.

A dated 11th February, 2011 for conduct of Teachers Eligibility Test (TET)
and also providing for weightage to the marks in the said test for
recruitment of teachers. The 1981 Rules of the State were amended on
9th November, 2011 (the J2th Amendment) to bring the same in
consonance with the Notifications dated 23'd August, 2010 and 11th
February, 2011. Accordingly, theTETwasheld on 13'" November, 2011
B
and result thereof was declared on 25'" November, 2011. Thereafter on
30th November, 2011, an advertisement was issued for appointment of
'trainee teachers' in primary schools. The candidates submitted their
applications. However, the said advertisement was cancelled and a fresh
advertisement dated 7'" December, 2012 was issued which came to be
c challenged and has been set aside by the impugned judgment. The
justification given by the State ofUttar Pradesh for such cancellation is
that the result ofTET was influenced by the money consideration. On
31 ''December, 2011 the amount of several lacs was seized with lists of
candidates. FIR No. 675 of201 l was lodged. Residence of Director of
Secondary Education was also searched leading to recovery of certain
D
lists and cash. The State constituted a high powered committee headed
by the Chief Secretary on lOt"April, 2012 which gave its report dated l"
May, 2012. It was recommended that candidates found involved in any
irregularity/criminal activity in the TET examination be prohibited from
the selection. The State Government took a decision dated 26'" July,
E 2012 which was followed by 15'" Amendment to the 1981 rnles on 31"
August, 2012 to the effect that instead of giving weightage to the TET
marks as per 12th Amendment, the criteria of 'quality point marks' as
prevalent prior to 12'" Amendment was adopted. This amendment was
challenged on the ground that it rendered the rules inconsistent with the
NCTE guidelines referred to above.
F
5. Writ petitions were filed by the affected candidates against the
cancellation of advertisement dated 30'" November, 201 l and the new
advertisement dated 7th December, 2012 incorporating the criteria by
way of 15th Amendment to the Rules which was at variance with the
guidelines of the NCTE dated I 1th Febrnary, 2011, supra to the extent
G that weightage for marks in TET was not contemplated.
6. The Single Judge of the High Court dismissed the writ petitions
vide order dated 16th January, 2013 2• Appeal against the said judgment
has been allowed by the Division Bench by the impugned order. The
H 'WP No. 39674 of2012 Akhilesh Tripathi v. State ofU.P.
STATE OF U.P v. SHIV KUMAR PATHAK 913
[ADARSH KUMAR GOEL, J.]

Division Bench inter alia followed the judgment dated 31" May, 2013 A
by three Judges (Full Bench) in Shiv Kumar Sharma and Ors. v.
State of U.P. and ors. 3 The High Court held that the decision dated 26'h
July, 2012 of the State Government to change the criteria of selection by
way of l S1h Amendment in the Rules to make TET as a minimum
qualification (without giving weightage for the marks in the said
qualification as per NCTE guidelines) and cancelling the advertisement B
dated 30'h November, 2011 was not sustainable and that the NCTE
guidelines were binding. Accordingly, the State was directed to proceed
and conclude the selection as per advertisement dated 30'h November,
2011.
7. Before proceeding further, it will be appropriate to reproduce c
the statutory provisions and the notifications to the extent relevant which
are as follows:
"Sections 12 and 12A of the NCTE Act
12. Functions of the Council. - Lt shall be the duty of the D
Council to take all such steps as it may think fit for ensuring
planned and coordinated development of teacher education
and for the determination and maintenance of standards for
teacher education and for the purposes of performing its
functions under this Act, the Council may -
E
(a)
(b)
(c)
(d) lay down guidelines in respect of minimum
F
qualifications for a person to be employed as a teacher in
schools or in recognized institutions.

12A. For the purpose of maintaining standards of education G
in schools, the Council may, by regulations, determine the
qualifications of persons for being recruited as teachers in
any pre-primary, primary, upper primary, secondary, senior
3
2013(6) ADJ 310
H

I ~
914 SUPREME COURT REPORTS (2017] 7 S.C.R.

A secondary or intermediate school or college, by whatever
name called, established, run, aided or recognized by the
Central Government or a State Government or a local or other
authority:
Provided that nothing in this section shall adversely affect
B the continuance of any person recruited in any pre-primary,
primary, upper primary, secondary, senior secondary or
intermediate schools or colleges, under any rule, regulation
or order made by the Contra! Government, a State Government,
a local or other authority, immediately before the
commencement of the National Council for Teacher Education
c (Amendment) Act, 2011 solely on the ground of non-fulfilment
of such qualifications as may be specified by the Councii:
Provided further that the minimum qualifications of a teacher
referred to in the first proviso shall be acquired within the
period specified in this Act or under the Right of Children to
D Free and Compulsory Education Act, 2009."
Section 23 of the RTE Act
"23. Qualifications for appointment and terms and conditions
of service of teachers.-(1) Any person possessing such
E minimum qualifications, as laid down by an academic
authority, authorised by the Central Government, by
notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering
course's or training in teacher education, or teachers
F possessing minimum qualifications as laid down under sub-
section (1) are not available in sufficient numbers, the Central
Government may, if it deems necessary, by notification, relax
the minimum qualifications required for appointment as a
teacher, for such period, not exceeding five years, as may be
specified in that notification: Provided that a teacher who, at
G the commencement of this Act, does not possess minimum
qualifications as laid down under sub-section {I), shall
acquire such minimum qualifications within a period of five
years.

H
STATE OF U.P v. SHN KUMAR PATHAK 915
[ADARSH KUMAR GOEL, J.]

8. Notifications dated 31" March, 2010 and z3n1 August, 2010 A
issued by the NCTE are as under:
Notification dated 31 ''March. 2010
"NATIONAL COUNCIL FOR TEACHER EDUCATION
NOTIFICATION
New Delhi, the 31" March, 2010 B
S.O. 750(E).- In exercise of the powers conferred by sub-
section(I) of Section 23 of the Right of Children to Free and
Compulsory Education Act, 2009, the Central Government
hereby authorizes the National Council for Teacher Education
as the academic authority to lay down the minimum c
qualifications for a person to be eligible for appointment as
a teacher.
Notification dated 23'd August, 2010
NATIONAL COUNCIL FOR TEACHER EDUCATION
NOTIFICATION D
New Delhi, the 23rd August, 2010
F. No. 61-03120120 I OINCTEl(N & S).-ln exercise of the powers
conferred by Sub-section (1) of Section 23 of the Right of
Children to Free and Compulsory Education Act, 2009 (35 of
2009), and in pursuance of Notification No. S.O. 750(E) : E
MANUIHRDT/001312010 dated 31st March, 2010 issued by
the Department of School Education and Literacy, Ministry
of Human Resource Development, Government of India, the
National Council for Teacher Education (NCTE) hereby lays
down the following minimum qualifications for a person to
F
be eligible for appointment as a teacher in class I to VIII in a
school referred to in clause (n) of Section 2 of the Right of
Children to Free and Compulsory Education Act, 2009, with
effect from the date of this notification:-
I. Minimum Qualifications:-
G
(i) CLASSES 1-V
(a) Senior Secondary (or its equivalent) with at least 50%
marks and 2 year Diploma in Elementary Education (by
whatever name known)
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916 SUPREME COURT REPORTS [2017] 7 S.C.R.

A OR
Senior Secondary (or its equivalent) with at least 45% marks
and 2 year Diploma in Elementary Education (by whatever
name ·known), in accordance with the NCTE (Recognition
Norms and Procedure), Regulations 2002.
B OR
Senior Secondary (or its equivalent) with at least 50% marks
and 4 year Bachelor of Elementary Education (B.El.Ed.)
OR
C Senior Secondary (or its equivalent) with at least 50% marks
and 2 year Diploma in Education (Special Education)
AND
(b) Pass in the Teacher Eligibility Text (TET), to be conducted
by the appropriate Government in accordance with the
D
Guidelines framed by the NCTE for the purpose.
(ii) Classes VI-VIII
(a) B.AIB.Sc. and 2 year Diploma in Elementary Education
(by whatever name known)
E OR
B.A/B.Sc. with at least 50% marks and I year Bachelor in
Education (B.Ed.)
OR
F B.AIB.Sc. with at least 45% marks and 1 year Bachelor in
Education (B.Ed.), in accordance with the NCTE (Recognition
Norms and Procedure) Regulations issued from time to time
in this regard.
OR
G Senior Secondary (or its equivalent) with at least 50% marks
and 4 year Bachelor in Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks
STATE OF U.P v. SHN KUMAR PATHAK 917
[ADARSH KUMAR GOEL, J.]

and 4 year BAIB.Sc. Ed or B.A.Ed./B.Sc. Ed. A
OR
B.A./B.Sc. with at least 50% marks and 1 year B.Ed. (Special
Education)
AND B
(b} Pass in the Teacher Eligibility Text (TET), to be conducted
by the appropriate Government in accordance with the
Guidelines framed by the NCTE for the purpose.
2. Diploma/Degree Course in Teacher Education:- For the
purposes of this Notification, a diploma/degree course in c
teacher education recognized by the National Council for
Teacher Education (NCTE) only shall be considered. However,
in case of Diploma in Education (Special Education) and B.Ed
(Special Education), a course recognized by the Rehabilitation
Council of India (RC/) only shall be considered. D
3. Training lo be undergone:- A person-(a) with B.A/B.Sc.
with at least 50% marks and B.Ed. qualification shall a/so be
eligible for appointment for class I to V upto 1st January,
2012, provided he undergoes, after appointment, an NCTE
recognized 6 month special programme in·E/ementary E
Education.
(b} with D.Ed. (Special Education) or B.Ed. (Special
Education) qualification shall undergo, after appointment,
an NCTE recognized 6 month special programme in
Elementary Education."
F
9. Notifications issued by the NCTE on 11" February, 2011 and
· 29"' July, 2011 are as follows:
Notification dated 11th February. 2011
"The implementation of the Right of Children to Free and
Compulsory Education (RTE) Act, 2009 requires the G
recniitment of a large number of teachers across the country
in a time bound manner. Inspile of the enormity of the task, it
is desirable to ensure that quality requirement for recniitment
of teachers are not diluted at any cost. It is therefore necessary
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918 SUPREME COURT REPORTS (2017] 7 S.C.R.

A lo ensure that persons recruited as teachers possess the
essential aptitude and ability to meet the challenges of teaching
at the primary and upper primary level.
2. In accordance with the provisions of sub-section (I) of
section 23 of the Right of Children to Free and Compulsory
B Education (RTE) Act, 2009, Jhe National Council for Teacher
Education (NCTE) has laid down the minimum qualifications
for a person lo be eligible for appointment as a teacher in
class I lo VIIL vide its Notification dated August 23, 2010. A
copy of the Notification is a/lached at Annexure 1. One of the
essential qualifications for a person lo be eligible for
c appointment as a teacher in any of the schools referred lo in
clause (n) of section 2 of the RTE Act is that he/she should
pass the Teacher Eligibility Test (TET) which will be conducted
by the appropriate Government.
3. The ratio'nale for including the TET as a minimum
D qualification for a person to be eligible for appointment as a
teacher is as under:
i. It would bring national standards and benchmark of teacher
quality in the recniitment process;

E ii. It would induce teacher education institutions and students
I from these institutions to further improve their performance

r· standards;
iii. It would send a positive signal lo all stakeholders that the
Government lays special emphasis on teacher quali(v
F Qualifying marks
9. A person who scores 60% or more in the TET exan will be
considered as Teachers Eligibility Test pass. School
managements (Government, local bodies, government aided
and unaided)
G
(a} may consider giving concessions to persons belonging lo
SC/ST, OBC, differently ab/ed persons, etc., in accordance
with their extant reservation policy;
(b) should give weigh/age lo the TET scores in the recniilment
process; however, qualifying the TET would not confer a right
H
STATE OF U.P v. SHIV KUMAR PATHAK 919
[ADARSH KUMAR GOEL, J.]

on any person for recruitment/employment as it is only one of A
the eligibility criteria for appointment. "
Notification dated 29'h July, 2011
"(i) Training to be undergone,-A person-
(a) with Graduation with at least 50% marks and B.Ed. B
qualification or with at least 45% marks and I-year Bachelor
in Education (B.Ed.), in accordance with NCTE (Recognition
Norms and Procedure) Regulations issued from lime to time
in this regard, shall a/so be eligible for appointment to Class
I lo V up to I st January, 2012, provided he/she undergoes,
after appointment, an NCTE recognized 6-month Special C
Programme in Elementary Education;
(b) with D.Ed. (Special Education) or B.Ed. (Special
Education) qualification shall undergo, after appointment an
NCTE recognised 6-monlh Special Programme in Elementary
Education .... " D
10. Though the State Government made an amendment in the
1981 Rules on 9'h November, 2011 by providing that the names of the
candidates shall be placed in descending order on the basis of the marks
obtained in Teacher Eligibility Test conducted by the Government of
Uttar Pradesh, this scheme was given a go bye by withdrawing the E
amendment of Rule 14 and restoring the position as it stood prior to 12'h
Amendment [of selecting teachers on the basis of 'quality points' as per
appendix to Rule 14(3)] by Amendment dated 31 ''August, 2012 to the
following effect:
"(3) The names of candidates in the list prepared under sub- F
· rule (2) shall then be arranged in such manner that the
candidate shall be arranged in accordance with the quality
points specified in appendix. In the said rules the following
appendix shall be inserted at the end.
Provided that zf two or more candidates obtain equal marks, G
the candidate senior in age shall be placed higher. "
11. Rule 14(4) of the 1981 Rules of the State prior to the Notification
dated 23'd August, 2010 which was restored in 2012 was as follows:
"(4) The names of candidates in the /isl prepared under
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920 SUPREME COURT REPORTS [2017) 7 S.C.R.

A sub-rule (2) shall then be arranged in such manner that the
candidates who have passed the required training course
earlier in point of time shall be placed higher than those who
have passed the said training course later and the candidates
who have passed the training course in a particular year shall
be arranged in accordance with the quality points specified
B
in the Appendix.
APPENDIX
[See Rule 14(4)]

c Quality points for selection of candidates.
Name of Quality points
Examination/Degree
........................................................................................."' .... " . _......................... _., ...... _,._ .... _._.. __ .................... _---- .............. __ ..
D
1. High School Percentage of marks
10
2. Intermediate Percff.ntage of marks X2
E 3. Graduation degree Percentage of marks X 4
10

4. Training First Division Second Division Third Division
F
(a) Theory 12 6 3
(b) Practical 12 6 3.
12. We have heard learned counsel for the parties. Main contention
G raised on behalf of State ofUttar Pradesh is that while it was permissible
for the Central Government to lay down eligibility qualifications for
appointment of a teacher for elementary education by virtue of Section
23 of the RTE Act, the NCTE could not lay down any guideline so as to
affect the power of a State to prescribe norms for selection of a teacher
consistent with the qualifications under Section 23 of the RTE Act.
H
STATE OF U.P v. SHIV KUMAR PATHAK 921
[ADARSH KUMAR GOEL, J.]

13. On the other hand, the stand of the original writ petitioners is A
that the subject of education falls under Entry 25 of List III of7'h Schedule
of the Constitution after the 42"<l Amendment. Thus, by virtue ofArticle
254 of the Constitution, the law made by the Parliament prevails over
any law made by the State. It was submitted that The NCTE Act has
been enacted by the Parliament to achieve 'planned and coordinated B
development ofthe teacher education system'. The Council constituted
under the Act is empowered to issue guidelines under Sections 12 and
12A for ensuring planned and coordinated development of teacher
education and also to lay down guidelines in respect of minimum
qualifications for a person to be employed as a teacher. Further, vide
Notification dated 31" March, 20 I 0 under Section 23 of the RTE Act, C
the Central Government has authorized the NCTE as the 'academic
authority' to lay down minimum qualifications for a person to be eligible
for appointment as a teacher.
14. Learned counsel for the NCTE submitted that notification
dated 11th February, 2011 suggesting weightage to TET marks was mereIy D
a guideline and was not intended to be binding on the States. While TET
was a mandatory requirement, weightage to the marks in the TET was
merely a suggestion. This stand has also been taken by some of the
learned counsel in connected matters. Reliance was placed on the stand
of the NCTE in its affidavit dated l" May, 2014 in CWP 346 of2013
before the Punjab and Haryana High Court as follows: E

"That in view of the said recommendations of the Committee,
it is stated that the guidelines contained in Clause 10 and 11
of NCTE guidelines dated JJ'h February, 20Ji are directory
in nature. Appropriate Government may in its own wisdom
decide as to the eligible candidates on the basis of having F
qualified the Central Teachers Eligibility Test. However,
education being the subject matter of concurrent list of the
power to frame appropriate legislation/regulations/rules
works with the appropriate legislature of the State Government
and as such State Government is well within as rights to G
prescribe the qualification of eligibility in the form that the
candidates wanting to app(v for the said post must necessarily
qualify the Teachers Eligibility Test of said State. There would
be no legality in the same and merely because a state
government had failed to conduct the State Teachers Eligibili(v
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922 SUPREME COURT REPORTS [2017] 7 S.C.R.

A Test (STET) in a given year would not amount to taking a
decision not to hold the exams and to hold the candidates
having qualified Central Teacher Eligibility Test as eligible."
15. Reliance was also placed on clarification dated 2"d September,
2016 byNCTE in reply to a question under the Right to Information Act,
B 2005(at page no. 733 of the SLP paper book in SLP(Civil)No. 1121 of
2017) as follows:
"J. CTETITET is an examination to qualify to become eligible
for appointment as a teacher from classes I to VIII.
2. There is no binding to State/Central Government to select
c the candidate as a teacher basis on TET marks. TET is just
eligibility for the appointment of teachers."
16. There is no manner of doubt that the NCTE, acting as an
'academic authority' under Section 23 of the RTE Act, under the
Notification dated 31" March, 2010 issued by the Central Government
D as well as under Sections 12 and l 2A of the NCTE Act, was competent
to issue Notifications dated 23'd August, 2010 and l l'h February, 2011.
The State Government was under obligation to act as per the said
notifications and not to give effect to any contrary rule. However, since
NCTE itself has taken the stand that notification dated 11 •h February,
E 2011 with regard to the weightage to be given to the marks obtained in
TET is not mandatory which is also a possible interpretation, the view of
the High Court in quashing the 15'h Amendment to the 1981 Rules has to
be interfered with. Accordingly, while we uphold the view that
qualifications prescribed by the NCTE are binding, "requirement of
weightage to TET marks is not a mandatory requirement.
F
17. As a result of above, in normal course the State would have
been at liberty to proceed with the selection in terms of advertisement
dated 7'h December, 2012 in accordance with the amended rules by
way of lS'h amendment, in view of developments which have taken
place during pendency of these appeals, the said advertisement cannot
G proceed and while upholding the said advertisement, relief has to be
moulded in the light of developments that have taken place in the
interregnum.
18. Vide interim order dated 25'h March, 2014, this Court directed
the State ofUttar Pradesh to fill up the vacancies of Assistant Teachers
H
STATE OF U.P v. SHIV KUMAR PATHAK 923
[ADARSH KUMAR GOEL, J.]

in terms of the impugned judgment. Thereafter, on J71hDecember, 2014, A
the said order was modified and the State was directed to appoint
candidates whose names were not involved in malpractices in the TET
test and who had obtained 70% marks (65% for SC, ST, OBC and
physically handicapped or any other category covered by the Government
policy for reservation). 54,464 posts have already been filled up in B
compliance of the orders of this Court. The said appointments were
subject to result of these matters. It was also observed that if anyone
without TET qualification is appointed his services will be terminated.
Vide order dated 2°ct November, 2015 it was noted that against 72,825
posts which were advertised, 43,077 candidates had completed training
and were working while 15,058 candidates were undergoing training. c
Around 14,690 posts were vacant. It was further observed that
candidates who had the required percentage of marks in terms of order
dated 27'h July, 2015 were to file their applications and a Committee
constituted for the said purpose could verify such percentage and if
parity was found the same benefit could be extended.
D
19. We have been infonned that 66,655 teachers have already
been appointed in pursuance of the interim orders of this Court. Having
regard to the entirety of circumstances, we are not inclined to disturb
. the same. We make it clear that the State is at liberty to fill up the
remaining vacancies in accordance with law after issuing a fresh
advertisement. E

20. The matters will stand disposed of in above terms.

Kalpana K. Tripathy Matters disposed of.