UTET : Uttaranchal High Court
Dayanand Tamta & Ors. vs State Of Uttarakhand & Ors. on 17 May, 2012
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No.1995 of 2011 (S/S) Nirmal Kumar & Ors.
...Petitioners
Versus
State of Uttarakhand & Ors.
...Respondents
with
Writ Petition No.1674 of 2011 (S/S) Smt. Sharda Devi
...Petitioner
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Uttarakhand Vidhyalayi Shiksha Parishad & Anr. ...Respondents
with
Writ Petition No.1540 of 2011 (S/S) Manveer Singh & Ors.
...Petitioners
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State of Uttarakhand & Ors.
...Respondents
with
Writ Petition No.1677 of 2011 (S/S) Gopal Singh & Ors.
...Petitioners
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State of Uttarakhand & Ors.
...Respondents
2
with
Writ Petition No.1685 of 2011 (S/S) Bhagwati Prasad Joshi
...Petitioner
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Secretary Board of School Education & Anr. ...Respondents
with
Writ Petition No.1707 of 2011 (S/S) Brij Mohan
...Petitioner
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Uttarakhand Vidyalayi Shiksha Parishad & Anr. ...Respondents
with
Writ Petition No.1708 of 2011 (S/S) Girijesh Chandra
...Petitioner
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Uttarakhand Vidyalayi Shiksha Parishad & Anr. ...Respondents
with
Writ Petition No.1724 of 2011 (S/S) Vinod Giri & Ors.
...Petitioners
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State of Uttarakhand & Ors.
...Respondents
3
with
Writ Petition No.1725 of 2011 (S/S) Uttam Singh Rawat & Anr.
...Petitioners
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State of Uttarakhand & Ors.
...Respondents
with
Writ Petition No.1726 of 2011 (S/S) Biplab Kumar Acharya & Ors.
...Petitioners
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State of Uttarakhand & Ors.
...Respondents
with
Writ Petition No.1729 of 2011 (S/S) Umesh Kumar
...Petitioner
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State of Uttarakhand & Anr.
...Respondents
with
Writ Petition No.1731 of 2011 (S/S) Pradeep Singh Negi
...Petitioner
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State of Uttarakhand & Ors.
...Respondents
4
with
Writ Petition No.1751 of 2011 (S/S) Usha Pant
...Petitioner
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State of Uttarakhand & Anr.
...Respondents
with
Writ Petition No.1804 of 2011 (S/S) Pawan Kumar Upadhyay
...Petitioner
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Uttarakhand Vidyalayi Shiksha Parishad & Anr. ...Respondents
with
Writ Petition No.1818 of 2011 (S/S) Dayanand Tamta & Ors.
...Petitioner
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State of Uttarakhand & Ors.
...Respondents
with
Writ Petition No.1831 of 2011 (S/S) Km. Neha Saxena
...Petitioner
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State of Uttarakhand & Ors.
...Respondents
5
with
Writ Petition No.1836 of 2011 (S/S) Rakesh Kumar
...Petitioner
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Uttarakhand Vidyalayi Shiksha Parishad & Anr. ...Respondents
with
Writ Petition No.1866 of 2011 (S/S) Madan Singh Bhaisora
...Petitioner
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Uttarakhand Vidyalayi Shiksha Parishad & Anr. ...Respondents
with
Writ Petition No.1905 of 2011 (S/S) Smt. Jaya Chaudhary
...Petitioner
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State of Uttarakhand & Anr.
...Respondents
with
Writ Petition No.1931 of 2011 (S/S) Lalit Mohan Upreti
...Petitioner
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Uttarakhand Vidyalayi Shiksha Parishad & Anr. ...Respondents
6
with
Writ Petition No.1933 of 2011 (S/S) Jagdish Chandra Pant
...Petitioner
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Uttarakhand Vidyalayi Shiksha Parishad & Anr. ...Respondents
with
Writ Petition No.1934 of 2011 (S/S) Smt. Kalpana Joshi
...Petitioner
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Uttarakhand Vidyalayi Shiksha Parishad & Anr. ...Respondents
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Writ Petition No.1935 of 2011 (S/S) Rajni Raturi
...Petitioner
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Uttarakhand Vidyalayi Shiksha Parishad & Anr. ...Respondents
with
Writ Petition No.1939 of 2011 (S/S) Yogesh Chandra
...Petitioner
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Uttarakhand Vidyalayi Shiksha Parishad & Anr. ...Respondents
7
with
Writ Petition No.1941 of 2011 (S/S) Ravindra Pratap Singh
...Petitioner
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State of Uttarakhand & Anr.
...Respondents
with
Writ Petition No.1942 of 2011 (S/S) Smt. Suchita Bisht
...Petitioner
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Uttarakhand Vidyalayi Shiksha Parishad & Anr. ...Respondents
with
Writ Petition No.1947 of 2011 (S/S) Vineeta & Anr.
...Petitioners
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State of Uttarakhand & Ors.
...Respondents
with
Writ Petition No.1950 of 2011 (S/S) Renu Tamta & Anr.
...Petitioners
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Director School Education & Ors. ...Respondents
8
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Writ Petition No.1952 of 2011 (S/S) Lalit Mohan Joshi & Anr.
...Petitioners
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State of Uttarakhand & Anr.
...Respondents
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Writ Petition No.1978 of 2011 (S/S) Manoj Joshi
...Petitioner
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State of Uttarakhand & Anr.
...Respondents
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Writ Petition No.1982 of 2011 (S/S) Sumangal Mandal & Ors.
...Petitioner
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State of Uttarakhand & Anr.
...Respondents
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Writ Petition No.1984 of 2011 (S/S) Brij Mohan Singh Negi
...Petitioner
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Director School Education Uttarakhand & Ors. ...Respondents
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Writ Petition No.1994 of 2011 (S/S) Smt. Sarita Rani & Anr.
...Petitioners
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Uttarakhand Vidhyalayi Shiksha Parishad & Anr. ...Respondents
with
Writ Petition No.2004 of 2011 (S/S) Narendra Singh
...Petitioner
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Director School Education Uttarakhand & Ors. ...Respondents
with
Writ Petition No.140 of 2012 (S/S) Radha Ballabh & Anr.
...Petitioner
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State of Uttarakhand & Ors.
...Respondents
with
Writ Petition No.394 of 2012 (S/S) Km. Sonam Devi
...Petitioner
Versus
State of Uttarakhand & Anr.
...Respondents
Mr. Manoj Tiwari, Sr. Advocate assisted by Mr. Pankaj Tangwan, Mr. H.M. Bhatia, Mr. C.S. Rawat, Mr. G.S. Negi, Mr. Deepak Bisht, Mr. J.S. Bisht, Mr. G.D. Joshi, Mr. S.C. Bhatt, Mr. Davesh Bishnoi, Mr. P.S. Bisht, Mr. Vijay 10
Khanduri, Mr. Niranjan Bhatt, Mr. D.S. Bisht, Mr. H.C. Joshi, Mr. B.D. Pande, Mr. H.C. Pathak, Mr. R.C. Tamta, Advocates for the petitioners. Mr. H.M. Raturi, Standing Counsel for the State. Mr. N.S. Negi, Advocate along with Ms. Geeta Parihar, Ms. Seema Sah and Mr. Asif Ali, Advocates for the Uttarakhand Vidhyalayi Shiksha Parishad
Hon'ble Tarun Agarwala, J.
In this group of petitions, the petitioners are aggrieved by their failure in not qualifying the U.T.E.T. Examination, 2011 conducted by Uttarakhand Vidhyalayi Shiksha Parishad, Ramnagar, District Nainital (respondent no.2) and have consequently filed these writ petitions praying that the respondents be directed to reduce the cut- off marks from 60% to 50% and reconsider the evidence given by the petitioners in support of the disputed questions with regard to the key answers given by the respondents.
The basic grievance of the petitioners is, that there are 15 disputed questions, which in one form or the other, are incorrect and consequently the respondents are required to reconsider their answers. According to the petitioners, model key answers provided by the respondents are incorrect in some of these disputed questions and that the answers given by the petitioners are correct. In some of the questions, there is a good chance that there are two correct answers in the choice given and therefore in such cases the candidate should be awarded one mark in the event he answers any of the two choices. In some of the questions, all the four choices are correct and therefore one mark 11should be awarded to all the candidates. The petitioners consequently contended that the key answers given by the respondents should be reconsidered and revised accordingly. The petitioners are further aggrieved by the qualifying marks disclosed in the advertisement for qualifying the U.T.E.T. Examination. According to the petitioners, 60% is too high and there is no rationale behind fixing such percentage. The third grievance of the petitioners is, that the question paper that was set by the respondents, was not in accordance with the guidelines dated 11th Februrary, 2011 i.e. to say that the question on method of teaching in Pedagogy, Mathematics, Environmental Studies and Language was not given whereas the guidelines contemplated that questions on these areas would be asked. The petitioners contended that since the questions were not set in the manner disclosed in the guidelines, which has a statutory flavour, the entire process stood vitiated and a fresh examination should be conducted.
In the light of the grievance stipulated aforesaid, the Court has heard Sri Manoj Tiwari, the learned senior counsel assisted by Sri Pankaj Tangwan, the learned counsel for the petitioner in the leading case. The arguments of the learned senior counsel was adopted by all the other counsels, namely, Mr. H.M. Bhatia, Mr. C.S. Rawat, Mr. G.S. Negi, Mr. Deepak Bisht, Mr. J.S. Bisht, 12
Mr. G.D. Joshi, Mr. S.C. Bhatt, Mr. Davesh Bishnoi, Mr. P.S. Bisht, Mr. Vijay Khanduri, Mr. Niranjan Bhatt, Mr. D.S. Bisht, Mr. H.C. Joshi, Mr. B.D. Pande, Mr. H.C. Pathak and Mr. R.C. Tamta. On behalf of respondent no.2 i.e. Uttarakhand Vidhyalayi Shiksha Parishad, the Court has heard Sri N.S. Negi along with Ms. Geeta Parihar, Ms. Seema Sah and Mr. Asif Ali.
For facility, the facts of Writ Petition No.1995 of 2011 (S/S) is being taken into consideration and the said case has also been made the leading case.
Brief facts, leading to the filing of the writ petitions, is that on 29th April, 2011 an advertisement was issued inviting candidates to appear for the Uttarakhand Teachers Eligibility Test, 2011 (UTET) for consideration for appointment of teachers for Class I to V in Government Primary Schools. The advertisement indicated that the questions that would be asked in the examination would be such as that disclosed in the guidelines of 11th February, 2011. Based on that, the petitioners applied and appeared in the examination, which was held on 27th August, 2011. The respondents uploaded the key answers of these questions on its website on 3rd September, 2011. Respondent no.2 also issued an advertisement on 10th September, 2011 intimating the candidates that if they dispute the key answers, it would be open to them to make a representation, and that 13
such representation would be considered by an Expert Committee and only thereafter the results would be declared. The counter affidavit reveals that pursuant to the advertisement, many candidates including the petitioners made representations against the key answers displayed by the respondents in their websites contending that some of the key answers for certain questions were incorrect or two or more answers of one question could be correct and therefore prayed that the marks should accordingly be allotted. The counter affidavit reveals that the representations were duly considered by an Expert Committee constituted by respondent no.2 and that the Committee recommended amendment of 5 answers in their model key answers displayed earlier by them. The respondent no.2 referred the matter to the State Government and State Government issued a Government Order dated 29th October, 2011, permitting the respondent no.2 to change the answers of these 5 questions. Based on the green signal given by the State Government, the answer keys were revised and finalized and again displayed in the website and thereafter the results were declared on 14th November, 2011. The aforesaid contention of the respondents has remained unrebutted in the leading case but in some of the cases rejoinder affidavits have been filed.
According to the respondents, the petitioners have no locus standi to challenge the examination 14
after having participated in it. Further, the matter was considered by an Expert Body and the opinion of the Expert Body cannot be discarded nor it can be taken lightly. The learned counsel submitted that in the absence of any malafide, alleged against any of the members of the Expert Body, the opinion/report given by the Expert Committee cannot be discarded on the ipse dixit of the petitioners. It was also contended that in the absence of any statutory rules, the Court cannot pass an order for re-examination of the answers on the basis of the evidence given by the petitioners in the writ petitions.
Before dwelling into the rival contentions of the parties, it must be borne in mind that there is a shortage of teachers in the primary institutions and that it became difficult for the State to fulfill its obligations as mandated under Article 45 of the Constitution. By the 86th Amendment, Article 45 was amended, which provided that the State shall endeavour to provide free and compulsory education for all children until they complete the age of fourteen years. By the 86th Amendment, Article 21A was also inserted as a fundamental right in the Constitution of India. Article 21A states that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law determine. With the insertion of Article 21A in the Constitution, it became imperative for the 15
Parliament to enact a law to implement the provision of Article 21A, and consequently, The Right of Children to Free and Compulsory Education Act, 2009 was enacted.
Section 23 of the said Act provides qualifications for appointment and terms and conditions of service of teachers. For facility, the said provision is extracted hereunder:-
"23. Qualifications for appointment and terms and conditions of service of teachers.-(1) Any person possessing such 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 courses or training in teacher education, or teachers 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 the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years.
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(3) The salary and allowances payable to, and the terms and conditions of service of, teacher shall be such as may prescribed."
Rule 23 of The Right of Children to Free and Compulsory Education Rules, 2010 provides that the Central Government shall notify an academic authority for the purpose of providing a curriculum and evaluation procedure for elementary education. For facility, Rule 23 is extracted hereunder:- "23. Academic authority.- (1) The Central Government shall notify an academic authority for the purposes of section 29 within one month of the appointed date.
(2) While laying down the curriculum and evaluation procedure, the academic authority notified under sub-rule (1) shall,- (a) formulate the relevant and age appropriate syllabus and text books and other learning material;
(b) develop in-service teacher training design; and
(c) prepare guidelines for putting into practice continuous and comprehensive evaluation.
(3) The academic authority referred to in sub- rule (1) shall design and implement a process of holistic school quality assessment on a regular basis."
17
Based on the said provision, the Central Government issued a notification dated 31st March, 2010, authorizing National Council for Teachers Education (NCTE) to be the academic authority to lay down the minimum qualifications for a person to be eligible to the appointment of teachers.
Based on the aforesaid Notification dated 31st March, 2010, NCTE framed the minimum qualifications for a person to be eligible to the appointment of teachers by means of a Notification dated 23rd August, 2010.
The minimum qualification for a person to be eligible for appointment as a teacher for class I to V as provided in the Notification dated 23rd August, 2010 is extracted hereunder:-
" 1 Minimum Qualifications.-
(i) Classes I-V
(a) Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Elementary Education (by whatever name known)
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
18
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor of Elementary Education (B.El.Ed.)
OR
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 Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose."
The aforesaid indicates that a person should have a Senior Secondary Decree or equivalent with at least 50% marks with 2 year Diploma in Elementary Education or Bachelor in Elementary Education. In addition to the aforesaid, a person should also have passed the Teachers Eligibility Test. According to this Notification dated 23rd August, 2010, this Teachers Eligibility Test is required to be conducted by the appropriate Government in accordance with the guidelines framed by NCTE for the purpose.
Based on the aforesaid, the NCTE framed the guidelines dated 11th February, 2011. Some of the 19
guidelines are required to be extracted for the purpose of the case. Clause 5 of the guidelines provides that a person who has the necessary qualifications as specified in the Notification dated 23rd August, 2010 can only apply and that the eligibility condition for appearing in TET may be relaxed in respect of a State or Union Territory under sub-section (2) of section 23 of the RTE Act and that such relaxation has to be specified in a Notification issued by the Central Government. Clause 6 provides for the structure and content of TET and nature and standard of questions that are required in the examination paper. For facility, clause 5, 6 and 7 of the guidelines are extracted hereunder:-
"Eligibility
5 The following persons shall be eligible for appearing in the TET:
i. A person who has acquired the academic and professional qualifications specified in the NCTE Notification dated 23rd August 2010. ii. A person who is pursuing any of the teacher education courses (recognized by the NCTE or the RCI, as the case may be) specified in the NCTE Notification dated 23rd August 2010.
iii. The eligibility condition for appearing in TET may be relaxed in respect of a State/UT which has been granted relaxation under sub-section (2) of section 23 of the RTE Act. The relaxation will be specified in the Notification issued by the Central Government under that sub- section.
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Structure and Content of TET
6 The structure and content of the TET is given in the following paragraphs. All questions will be Multiple Choice Questions (MCQs), each carrying one mark, with four alternatives out of which one answer will be correct. There will be no negative marking. The examining body should strictly adhere to the structure and content of the TET specified below.
7 There will be two papers of the TET. Paper I will be for a person who intends to be a teacher for classes I to V. Paper II will be for a person who intends to be a teacher for classes VI to VIII. A person who intends to be a teacher either for classes I to V or for classes VI to VIII will have to appear in both papers (Paper I and Paper II).
Paper I (for classes I to V); No. of MCQs - 150; Duration of examination: one-and-a-half hours Structure and Content (All Compulsory) (i) Child Development and Pedagogy 30 MCQs 30 Marks (ii) Language I 30 " 30 " (iii) Language II 30 " 30 " (iv) Mathematics 30 " 30 " (v) Environmental Studies 30 " 30 "
Nature and standard of questions While designing and preparing the questions for Paper I, the examining body shall take the following factors into consideration:
• The test items on Child Development and Pedagogy will focus on educational psychology of teaching and learning relevant to the age group of 6-11 years. They will focus on understanding the characteristics and needs of diverse 21
learners, interaction with learners and the attributes and qualities of a good facilitator of learning. • The Test items for Language I will focus on the proficiencies related to the medium of instruction, (as chosen from list of prescribed language options in the application form). • The Language II will be from among the prescribed options other than Language I. A candidate may choose any one language from the available language options and will be required to specify the same in the application form. The test items in Language II will also focus on the elements of language, communication and comprehension abilities. • The test items in Mathematics and Environmental Studies will focus on the concepts, problem solving abilities and pedagogical understanding of the subjects. In all these subject areas, the test items shall be evenly distributed over different divisions of the syllabus of that subject prescribed for classes I-V by the appropriate Government. • The questions in the tests for Paper I will be based on the topics of the prescribed syllabus of the State for classes I-V, but their difficulty standard, as well as linkages, could be upto the secondary stage."
The aforesaid clause 7 of the guidelines indicates that the examining body will take into consideration the various factors disclosed therein while designing and preparing the questions for the paper and one such consideration is, that the test items in Mathematics and Environmental Studies will focus on the concepts, problem solving abilities and pedagogical understanding of the subjects. According to the petitioners, this aspect of the matter was not considered and no question on this area was given in the question paper. 22
Clause 9 of the guidelines provides that a person who scores 60% or more in the TET Examination will be considered as TET pass. The said provision is extracted hereunder:-
"Qualifying marks
9 A person who scores 60% or more in the TET exam will be considered as TET pass. School managements (Government, local bodies, government aided and unaided) (a) may consider giving concessions to persons belonging to SC/ST, OBC, differently abled persons, etc., in accordance with their extant reservation policy; (b) should give weightage to the TET scores in the recruitment process; however, qualifying the TET would not confer a right on any person for recruitment/employment as it is only one of the eligibility criteria for appointment."
Based on the aforesaid guidelines, the advertisement was issued on 29th April, 2011 inviting applications, on the basis of which, the examination was held and thereafter the results were declared.
After hearing the learned senior counsel at some length, the Court finds that the petitioners' representations on the discrepancies in the model key answers disclosed by respondent no.2 was addressed and considered by the respondents. The representations were forwarded to an Expert Committee constituted by the respondents. The matter was examined de novo and the Expert Committee opined in its report that 5 key answers 23
requires amendment. Some of the grievance of the petitioners was consequently accepted by the respondents. Based on the directions given by the State Government, the model key answers were amended and a final key answers was prepared which was again displayed in the website and thereafter the results have been declared. There is nothing in the writ petition to indicate that the grievance of the petitioners was not considered. The contention that only some of the grievance was considered, which was rectified, but a majority of the questions still remain disputed and which are required to be re-examined by the Court is not tenable. In this regard, a suggestion was also placed to the Court that in the event the Court is unable or does not examine these questions and the correctness of the answers given by the respondents, in that eventuality, the Court may constitute another Expert Committee to look into the matter and direct it to submit a report.
The Court finds that examining the answer sheets is in the domain of the examining body. The Court cannot take the role of the examining body nor can it take upon itself the task of considering the correctness of the answers given by respondent no.2 against the questions framed by them. The petitioners cannot insist that the Court should look into these matters or refer it to another committee. This is not permissible. In Himachal Pradesh Public Service Commission vs. Mukesh Thakur 24
& Anr., 2010 (6) Supreme Court Cases 759, the Supreme Court held that it was not permissible for the High Court to examine the question paper and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. The Supreme Court in Paragraph 20 held:
"20. In view of the above, it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates. If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court."
Further, from the averments made in the counter affidavit, the Court finds that the representations of the petitioners with regard to their grievances was duly considered by an Expert Committee constituted by respondent no.2. The constitution of the Expert Committee as to whether the Committee constitutes of expert or not has not 25
been questioned nor the report submitted by the Committee has been challenged before this Court. It is settled law that the opinion given by an expert in academic matters should not be interfered by a Court of law in judicial review unless it is shown that the expert opinion was palpably wrong and erroneous. In the absence of challenging the report of the Expert Committee or the constitution of the expert body, it is not open to the petitioners to contend that the key answers given by the respondents should be re-examined by another Committee constituted by this Court.
The Court further finds that no malafides has been attributed against any members of the Expert Body. The Supreme Court in B.C. Mylarappa alias Dr. Chikkamylarappa vs. Dr. R. Venkatasubbaiah & Ors., 2008 (14) Supreme Court Cases 306, has held that in the absence of any malafides against the members of the expert body, the opinion expressed by the expert body cannot be said to be illegal, invalid and without jurisdiction. The Supreme Court, in paragraph 26, held:
"26. Admittedly, there is nothing on record to show any mala fides attributed against the members of the expert body of the University. The University Authorities had also before the High Court in their objections to the writ petition taken a stand that the appellant had fully satisfied the requirement for appointment. In this view of the matter and in the 26
absence of any mala fides either of the expert body of the University or of the University Authorities and in view of the discussions made hereinabove, it would be difficult to sustain the orders of the High Court as the opinion expressed by the Board and its recommendations cannot be said to be illegal, invalid and without jurisdiction."
In the light of the aforesaid, the Court is of the opinion that it is not appropriate to constitute a committee or direct the respondent no.2 to re- examine their key answers and thereafter re- examine the answer sheets of the petitioners. In the absence of any statutory rules or regulations, the examination paper of the petitioners cannot be re- examined or re-evaluated as held in the case of Himachal Pradesh Public Service Commission vs. Mukesh Thakur & Anr. (Supra).
The contention that the qualifying marks of 60% is very high and consequently arbitrary, and that, it has no rationale cannot be accepted. A policy decision taken by the Government should not be interfered by the Court unless it is demonstrated that such policy decision is arbitrary or illogical. If the policy decision is discernible and has a rationale behind it, the Court should not interfere in such policy decision. In this light, the petitioners contend that the qualifying marks disclosed in the advertisement was too high. The Court finds that the percentage 27
of 60% as qualifying marks disclosed in the advertisement was based on the guidelines framed by NCTE dated 11th February, 2011. Clause 9 of this guideline provides that the qualifying marks for TET would be 60%. These guidelines have been framed pursuant to the Notification dated 23rd August, 2010 issued u/s 23(1) of the RTE Act. A reading of the Notification dated 23rd August, 2010 indicates that the guidelines framed by NCTE would have a statutory flavour. Clause 9 of the guidelines has not been questioned by the petitioners. No prayer has been made for the quashing of this clause. In the absence of not challenging this provision, the Court does not find any error in the advertisement, so issued, indicating that the qualifying marks would be 60%. In any case, it is a policy decision taken by the State which is discernible. High standards have been fixed. The NCTE in its wisdom has given high standards to ensure that better education is provided to the children in order to fulfill the mandate of Article 21A read with 45 of the Constitution, which the Court does not find it to be arbitrary. In any case, the Court is of the opinion that the Court should not take upon itself the task of the statutory authorities and reduce the percentage so long as the policy decision is not arbitrary or illogical. The Court is loath to interfere. It is upon the State authorities to consider this fact in the light of various factors. Consequently, the 28
submission of the learned counsel for the petitioners cannot be accepted.
Similarly, the contention that the question papers were not set in accordance with the guidelines framed by NCTE cannot be accepted. This is the task of the examining body, which has framed the questions in accordance with the guidelines. These guidelines may have a statutory flavour but at the same time it remains only a guideline and the guideline gives a broad picture of the kind of questions that can be asked in the examination paper. It does not mean that every aspect of the guidelines is to be reflected in a question in the examination paper.
Quite apart from the aforesaid, the Court finds that the petitioners having participated in the examination process cannot turn around and question the percentage of the qualifying marks nor it can question the process of preparation of the examination paper not it can contend that the question paper was not in accordance with the guidelines framed by NCTE. This question is no longer res integra and has been settled in a catena of cases by the Supreme Court, namely, Madan Lal v. State of J&K [(1995) 3 SCC 486], Marripati Nagaraja v. Government of Andhra Pradesh[(2007) 11 SCC 522], Dhananjay Malik v. State of Uttaranchal [(2008) 4 SCC 171], Amlan Jyoti Borooah v. State of Assam [(2009) 3 SCC 227] 29
and K.A. Nagamani v. Indian Airlines [(2009) 5 SCC 515].
In Manish Kumar Shahi vs. State of Bihar & Ors. [(2010) 12 Supreme Court Cases 576], the Supreme Court reiterated the aforesaid decisions and held that having taken part in the process of selection knowing fully well that certain marks have been earmarked for viva voce test, the petitioner was not entitled to challenge the criteria or process of selection. The Supreme Court held that the conduct of the petitioners clearly disentitled them from questioning the selection. The Supreme Court in para-16 held:
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." 30
In the light of the aforesaid, the Court does not find any merit in the writ petitions and the same are dismissed without any order on cost.
(Tarun Agarwala, J.)
17th May, 2012
Rajni
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