State Of Uttarakhand Through Secretary Education, And Others ……… v. Dilshad Ali and Others

Learned counsel would further submit that while E.G.S. and A.I.E. Centres were opened through Village Education Committees and approved by District-level officers, the Instructors in Makhtab Madarsas were appointed solely by respective Management Committees without approval from any Government 2 authority. The financial aid was only to orient students towards modern subjects since regular subjects were otherwise not taught. After the Government closed the E.G.S. and A.I.E. Centres w.e.f. 31.03.2011, the Instructors in those Centres were absorbed as Shiksha Mitras. Conversely, the Makhtab Madarsas continued as religious institutions, were neither opened nor closed under departmental control, and their Instructors were frequently replaced by new incumbents.

6. It is further submitted that respondents working in Makhtab Madarsas were only provided teaching material and honorarium under "Makhtab Madarsas Strengthening Scheme/Project"; that these Madarsas were not created under any State scheme; that, after

23.08.2010, the NCTE prescribed D.El.Ed. and TET-I as the minimum qualifications for appointment as Assistant Teachers in Elementary Schools; and that the State has never issued any Government Order for absorption of Instructors working in Makhtab Madarsas as Shiksha Mitras.

7. Learned counsel further refers Government of India notification dated 10.08.2017, which provided that every teacher appointed or in position as on

31.03.2015 who did not possess the minimum qualifications must acquire them within four years from commencement of the 2017 Amendment to the RTE Act. It is emphasized that the respondents raised their claim several years after the decision dated 23.02.2011 in Special Appeal No. 131 of 2010.

8. It is urged that the order dated 23.02.2011 in Special Appeal No. 131 of 2010 applied only to Shiksha Anudeshaks working in E.G.S. Centres that had been upgraded as Primary Schools. In such cases, Government Orders stipulated that Shiksha Anudeshaks would be 3 deemed Shiksha Mitras. In contrast, respondents herein Instructors in Makhtab Madarsas, were never appointed by Village Education Committees, appointments were never approved by Education Department officers, and no Government Order exists for their absorption or for conversion of Madarsas into schools. Therefore, judgment dated 17.11.2017 warrants interference.

9. Per contra, learned counsel for the respondents submits that the State implemented the ‘Sarva Shiksha Abhiyan’ (‘the SSA’) to ensure education in remote and deprived areas, consistent with Article 21-A and the Right to Education Act. Under the SSA framework, clause 5.8 emphasized education for children of minority Muslim communities. Clause 5.8.1(c) sought to extend scheme benefits to Madarsas and Makhtabs to ensure that children studying in such religious institutions could also receive the regular curriculum. For this purpose, facilities under E.G.S./A.I.E. were extended to Madarsas affiliated to the State Madarsa Board that met specified conditions.

10. Learned counsel submits that clause 5.8.3 extended SSA benefits through E.G.S./A.I.E. even to non- affiliated Madarsas via local bodies/community-based organizations. Pursuant thereto, the State Project Director instructed the District Project Officer (SSA) to operate Madarsas and Makhtabs as A.I.E. Centres and extend to them facilities available to other institutions. He contends that respondents were appointed as Instructors under the SSA scheme on consolidated honorarium, had been discharging their duties without complaint, and that the State had earlier absorbed similarly-situated Instructors as Shiksha Mitras based on seniority and reservation criteria. Therefore, respondents working in non-recognized Madarsas should also receive the same treatment. It is 4 further submitted that some respondents possess the D.El.Ed. qualification. Differentiating between Instructors in other SSA Centres and those in Madarsas, despite identical duties and responsibilities, violates equality.

11. Learned counsel the State, however, reiterates that the respondents were appointed without advertisement, without approval of the State Government, that the Madarsas were not under E.G.S., were only granted temporary aid, and were never under State control. Thus, the judgment relating to Shiksha Mitras in E.G.S. Centres cannot apply, especially after the coming into force of the Right to Education Act, 2008.

12. We have carefully considered submissions, examined the pleadings on record, and assessed the scope of interference in the judgment under appeal. The controversy essentially turns on whether the respondents–who were working as instructors in non- recognized Makhtab Madarsas can claim absorption as Shiksha Mitras by invoking parity with the instructors working in E.G.S./A.I.E. Centres, whose services were absorbed pursuant to the Government Orders and policy decisions.

13. It stands admitted that E.G.S. and A.I.E. Centres were Government-created structures, established under the Sarva Shiksha Abhiyan, and functioned under the control, supervision, and approval of the Education Department. The instructors in those Centres were appointed through the Village Education Committee, pursuant to Government Order dated 27.01.2001, and their appointment was subject to approval by the Block/District Education Authorities. In contrast, Makhtab Madarsas were never established under any Government scheme, nor were they recognized institutions under the Education Department. They were being run privately by the respective Managing 5 Committees, imparting religious education, and were only given certain financial assistance and teaching material under the Makhtab Madarsas Strengthening Programme. Their instructors were appointed solely by the private management, without any advertisement, selection process, or approval by the Education Department. Further no Government Order has been placed before us demonstrate that instructors of Makhtab Madarsas were ever declared equivalent to instructors of E.G.S./A.I.E. Centres or made eligible for absorption as Shiksha Mitras.

14. The law is now well settled by the Constitution Bench in the case of Secretary, State of Karnataka and Others Vs.. Umadevi (3), (2006) 4 SCC 1, that no employee engaged without following a regular recruitment process can claim absorption or regularization unless there exists a specific statutory provision or scheme framed by the Government. Any regularization or absorption contrary to established procedure violates Article 14 and cannot be directed by the Courts.

15. In the present case, the respondents do not possess any statutory right, Rule, or Government Order entitling them to absorption. Their engagement in Makhtab Madarsas was purely private and non-governmental, with the State having no role in their selection, appointment, approval, tenure, or disciplinary control. The Supreme Court in Secretary, State of Karnataka v. Umadevi, and again in State of Rajasthan and Others Vs. Daya Lal and Others, (2011) 2 SCC 429, held that employees of private institutions or non-government bodies cannot seek absorption in Government service merely because the Government had granted aid or financial assistance to the institution. The respondents placed heavy reliance on the judgment in Special Appeal No. 131 of 2010, where certain instructors of E.G.S. Centres were granted the status of 6 Shiksha Mitra. However, that judgment was rendered in the context of E.G.S. Centres, which were run by State Government, subsequently upgraded to Primary Schools, and whose instructors were governed by express Government policy decisions of 01.03.2009

19.11.2010. The principle that equality cannot be claimed with persons who were illegally or differently appointed has been reiterated in Union of India and Another Vs. Kartick Chandra Mondal and Another, (2010) 2 SCC 422, Basawaraj and Another Vs. Special Land Acquisition Officer, (2013) 14 SCC 81, and many other judgments. The Court cannot grant negative equality. Since respondents do not stand on the same factual or legal footing as E.G.S. instructors, they cannot legitimately invoke the doctrine of parity

16. The doctrine of legitimate expectation cannot apply in absence of an express representation or consistent past practice of the Government in absorbing instructors similarly situated as the respondents. The Supreme Court in Punjab Communications Ltd. Vs. Union of India and Another, (1999) 4 SCC 727 clarified that legitimate expectation cannot override statutory provisions or government policy. There is no material has been placed to show any representation by the State for absorption of instructors of Makhtab Madarsas nor any uniform past practice supporting such a claim.

17. The NCTE Notification dated 23.08.2010 prescribes D.El.Ed + TET as minimum eligibility for Elementary Teachers. The subsequent amendment to the Right to Education Act requires untrained teachers to obtain qualifications within a specified period. Evidently, the respondents neither possessed requisite qualifications at the relevant time, nor were they appointed through a valid selection process. Their belated claim for absorption 7 raised several years after the 2011 judgment is wholly untenable. The learned Single Judge erroneously applied the ratio of Special Appeal No.131 of 2010 to a completely dissimilar factual matrix. The respondents herein were never appointed under the E.G.S./A.I.E. scheme, were never approved by any competent authority, and their Madarsas were never declared equivalent to E.G.S. Centres.

18. For the reasons recorded hereinabove, we find that the respondents have failed to establish any legal or equitable right to claim absorption as Shiksha Mitras. Their appointment in privately-run Makhtab Madarsas without State approval, without following any selection process, and outside any Governmental scheme does not entitle them to seek parity with instructors of E.G.S./A.I.E. Centres.

19. Accordingly, the Special Appeal is allowed. The judgment and order dated 17.11.2017 passed by the learned Single Judge in Writ Petition (S/S) No. 2260 of 2015 is hereby set aside. ( A l o k M a h r a , J.) ( Ra v i n d r a M a i t h a n i , J.) Mam t a MA MTA RANI RANI DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=6a812005bebfcf46f24 4f3e584af1449e430ef900bf09 a6d67ebbd642671329b, postalCode=263001, st=Uttarakhand, serialNumber=5de1751a4f1d9 cabfd54852c9e68911ca8b66d d26690a191648ab5d8dd004ef 0, cn=MAMTA RANI +05'30' 8