TNTET, Madras high court,
Writ Petition Nos.5590 vs State Of Tamil Nadu on 29 April, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29..04..2014
CORAM:
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Writ Petition Nos.5590, 4182, 4183, 4184, 7146, 7371,
7681, 7754, 7755, 7756, 7757, 5985, 8354, 10850, 2780,
2781, 2782, 5842, 5843, 5591, 6361, 6648, 7315, 7316, 7317,
7213, 7626, 7859, 5680, 9008, 10849 and
10843 of 2014 and connected MPs
P.Jayabharathi
... Petitioner in W.P.No.5590 of 2014
-Versus-
1.State of Tamil Nadu,
Rep. By its Secretary to Government,
School Education (TRB) Department,
Secretariat, Chennai 600 009.
2.The Chairman,
Teachers Recruitment Board,
Chennai 600 006.
3.The Director of School Education,
Chennai 600 006.
4.The Director of Elementary Education,
Chennai 600 006.
... Respondents in W.P.No.5590 of 2014
Prayer
in W.P.No.5590 of 2014:- Petition filed under Article 226 of The
Constitution of India, praying for issuance of a Writ of Certiorarified
Mandamus, calling for the records pertaining to the order passed by the
1st respondent in G.O.Ms.No.252, School Education (Q) Department, dated
05.10.2012 as amended by G.O.Ms.No.29, School Education (TRB)
Department, dated 14.02.2014, insofar as the awarding of weightage mark
in the slab system for the Teacher Eligibility Test qualification for
the post of B.T. Assistant is concerned and to quash the same and direct
the respondents to award mark for the Teacher Eligibility Test
qualification on the basis of actual percentage of fraction of mark
obtained by the petitioner and award the mark to the Teacher Eligibility
Test accordingly and consider the petitioner for appointment to the
post of B.T. Assistant (English).
1.S.Karthick
2.B.Vishalini
... Petitioner in W.P.No.5842 of 2014
-Versus-
1.State of Tamil Nadu,
Rep. By its Secretary to Government,
School Education (TRB) Department,
Secretariat, Chennai 600 009.
2.The Chairman,
Teachers Recruitment Board,
Chennai 600 006.
3.The Director of School Education,
Chennai 600 006.
... Respondents in W.P.No.5842 of 2014
Prayer
in W.P.No.5842 of 2014:- Petition filed under Article 226 of The
Constitution of India, praying for issuance of a Writ of Certiorarified
Mandamus, calling for the records pertaining to the order passed by the
1st respondent in G.O.Ms.No.25, School Education (TRB) Department,
dated 06.02.2014 and to quash the same, insofar as it denies the
relaxation of 5% to the candidates who appeared in the Teacher
Eligibility Test conducted by the 2nd respondent in the year 2012 is
concerned, and direct the respondents to extend the benefit of 5%
relaxation to the petitioner and consequently, issue Teacher Eligibility
Test Certificate so as to enable them to get appointment to the post of
B.T. Assistant in any one of the Government Schools.
N.Kowsalya
... Petitioner in W.P.No.7681 of 2014
-Versus-
1.The Secretary to Government,
Education Department,
Fort St. Geoge,
Chennai 600 009.
2.The Chairman,
Teacher's Recruitment Board,
E.V.K. Building, College Road,
Chennai 600 006.
3.The Member Secretary,
Teacher's Recruitmetn Board,
E.V.K. Building, College Road,
Chennai 600 006.
... Respondents in W.P.No.7681 of 2014
Prayer
in W.P.No.7681 of 2014:- Petition filed under Article 226 of The
Constitution of India, praying for issuance of a Writ of Certiorarified
Mandamus, calling for the records relating to the order passed by the
1st respondent in G.O.Ms.No.29, School Education (TRB) Department, dated
14.02.2014 and to quash the same and consequently, direct the
respondents to appoint the petitioner on the basis of marks awarded at
Tamil Nadu Teacher's Eligibility Test conducted by the 3rd respondent.
V.Sridevi
... Petitioner in W.P.No.10849 of 2014
-Versus-
1.The State of Tamil Nadu,
Rep. By its Secretary to Government,
School Education Department,
Fort St. George,
Chennai 600 009.
2.The Teachers' Recruitment Board,
Rep. By its Chairman,
DPI Compound,
College Road, Chennai 600 006.
3.The Director of School Education,
DPI Compound, College Road, Chennai 600 006.
... Respondents in W.P.No.10849 of 2014
Prayer in W.P.No.10849 of 2014:-
Petition filed under Article 226 of The Constitution of India, praying
for issuance of a Writ of Certiorari calling for the records pertaining
to the order passed by the 1st respondent in G.O.Ms.No.25, School
Education (TRB) Department, dated 06.02.2014 and to quash the same.
For Petitioner(s)
:
Mr.C.Selvaraj, senior counsel for M/s.C.S. Associates for petitioner(s) in W.P.Nos.5590, 5842, 5843 and 5591 of 2014
Mr.L.Mouli for Petitioner in W.P.No.6361 of 2014
Mr.S.Namonarayanan for petitioner(s) in W.P.Nos.4182, 4184 and 6648 of 2014
Mr.S.Kadarkarai for petitioner(s) in W.P.No.7146 of 2014
Mr.M.R.Jothimanian for petitioner(s) in W.P.No.7371of 2014
Mr.R.Karunagaran for petitioner(s) in W.P.No.7681 of 2014
Mr.T.K.S.Gandhi for petitioner(s) in W.P.No.7754, 7757, 7315 to 7317, 7213 of 2014
Mr.R.Bharath Kumar for petitioner(s) in W.P.No.5985 of 2014
Mr.G.Sankaran for petitioner(s) in W.P.No.8354of 2014
Mrs.Dakshayani Reddy for petitioner(s) in W.P.Nos.10850 and 10849 of 2014
Mr.S.Vijayan for petitioner(s) in W.P.Nos.2780 to 2782 of 2014
M/s.Sai Bharath and Ilan for Petitioner(s) in W.P.No.7626 of 2014
Mr.S.Kasirajan for petitioner(s) in W.P.No.7859 of 2014
Mr.R.Kumaravel for petitioner(s) in W.P.No.5680 of 2014
Mr.D.Shivakumaran for petitioner(s) in W.P.No.9008 of 2014
Ms.D.Almas Banu for petitioner(s) in W.P.No.10843 of 2014
For Respondent(s)
:
Mr.AL.Somayaji , Advocate General Assisted by
Mr.D.Krishnakumar,
Special Government Pleader,
R.Rajeswaran, Special Government Pleader and
Mr.M.Dig Vijaya Pandian, Additional Government Pleader
COMMON ORDER
Since common issues are involved in all these writ petitions, they
were heard together and they are disposed of by means of this common
order.
2. The common facts involved in all these writ petitions are as follows:
With a laudable object of providing free and compulsory education to
all children of the age of six to fourteen years, the Parliament enacted
The Right of Children to Free and Compulsory Education Act, 2009 and
the same was brought into force w.e.f 27.08.2009. Section 23 of the
said Act stipulates the qualifications for appointment and terms and
conditions of service of teachers. Sub Section (1) of Section 23 states
that 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.
3. In pursuance of the said provision, the Central Government
authorised the National Council for Teacher Education (hereinafter
referred to as NCTE ) as the Academic Authority empowering it to lay
down the minimum qualifications for appointment as teacher. The NCTE,
in turn, issued a notification (vide F.No.61-03/20/2010/NCTE (N&S),
dated 23.08.2010) laying down the following minimum qualifications for a
person to be eligible for appointment as a teacher in Class 1 to VIII.
Minimum Qualification:
(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
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.
(ii) Classes VI-VIII
(a) B.A./B.Sc. and 2 year Diploma in Elementary Education (by whatever name known)
OR
B.A./B.Sc. with at least 50% marks and 1 year Bachelor in Education (B.Ed)
OR
B.A./B.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
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 and 4 year B.A./B.Sc. Ed or B.A. Ed./B.Sc. Ed.
OR
B.A/B.Sc. with at least 50% marks and 1 year B.Ed (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.
4. As seen above, a pass in
the Teacher Eligibility Test (hereinafter referred to as TET ) to be
conducted by the appropriate Government in accordance with the
guidelines framed by the NCTE for the said purpose is compulsory.
5. The NCTE thereafter issued guidelines by its proceedings in
No.76-4/2010/NCTE/Acad, dated 11.02.2011 for conducting TET. Para 9 of
the said notification reads as follows:
Para 9.Qualifying marks:
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 considered 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."
6. Thereafter, the Government of
Tamil Nadu issued G.O.Ms.No.181, School Education (C2) Department,
dated 15.11.2011 designating the Teachers Recruitment Board (TRB) as the
Nodel agency for conducting TET and recruitment of teachers.
7. Subsequently, the Government of Tamil Nadu in letter
No.2068/C2/2012-1, dated 04.02.2012, issued certain clarifications to
G.O.Ms.No.181, dated 15.11.2011, regarding the conduct of TET.
According to the said clarifications, there shall be two papers for the
TET. Paper-I will be for a person who intends to be a teacher for
Classes I to V which consists of 150 Multiple Choice Questions (MCQs).
Paper-II will be for a person who intends to be a teacher for Classes VI
to VIII which consists of 150 MCQs. This clarification is in tune with
the NCTE norms. The percentage of marks required for a pass is 60%.
8. The NCTE amended the earlier notification by another notification in
F.No.61-1/2011/NCTE (N&S), dated 29.07.2011. Para 1 of the said
notification substituted para 1 of the earlier notification. As per the
amended notification the minimum required qualification is as follows:
(I) For sub-para (i) of para 1 of the Principal Notification, the following shall be substituted, namely:--
Para 1. Minimum Qualification:
(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
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)
Graduation and two year Diploma in Elementary Education (by whatever name known)
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.
(II) For sub-para (ii) of para 1 of the Principal Notification, the following shall be substituted, namely:-
(ii) Classes VI-VIII
(a) Graduation and 2 year Diploma in Elementary Education (by whatever name known)
OR
Graduation with at least 50% marks and 1 year Bachelor in Education (B.Ed)
OR
Graduation
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
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 and 4 year B.A./B.Sc. Ed or B.A. Ed./B.Sc. Ed.
OR
Graduation with at least 50% marks and 1 year B.Ed (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.
III For para 3 of the Principal Notification the following shall be substituted, namely:-
(i) Training to be undergone. - A person -
(a) with Graduation with at least 50% marks and B.Ed. qualification or
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, shall also be eligible for
appointment to Class I to V upto 1st January, 2012, provided he/she
undergoes, after appointment an NCTE recognised 6 months Special
Programme in Elementary Education;
(b) with D.Ed. (Special
Education) or B.Ed. (Special Education) qualification shall undergo,
after appointment an NCTE recognised 6-month Special Programme in
Elementary Education.
(ii) Reservation Policy:
Relaxation
upto 5% in the qualifying marks shall be allowed to the candidates
belonging to reserved categories, such as SC/ST/OBC/PH."
9.
In
the above background, the TRB conducted, for the first time, TET for
both the Papers I & II on 12.07.2012. Several lakhs of candidates
participated. 60% marks was the minimum required mark for a pass in the
TET as per the NCTE norms. When the results were published, it turned
out that only 0.36% of the candidates had passed in both the Papers I
& II. Therefore, in order to afford
yet
another opportunity for the failed candidates, the Government directed
the TRB to conduct yet another TET before the end of October, 2012.
This time, the duration of the examination was ordered to be increased
from 1= hours to 3 Hours - vide G.O.Ms.No.222, School Education
Department, dated 24.08.2012. As per G.O.Ms.No.222, dated 24.08.2012,
it was directed that only those candidates who had earlier failed alone
would be permitted to participate in the TET, which was scheduled to be
held on 03.10.2012.
10.
At
this juncture, a number of writ petitions [W.P.No.24507 of 2012
Batch] were filed before this Court by the fresh candidates who had not
earlier appeared in the TET. Their grievance was
that they should also be permitted to participate in the TET. When the
said batch of writ petitions came up for hearing before me, the
Chairman, TRB submitted two affidavits stating that the examination
which was scheduled to be held on 03.10.2012 would be postponed to
14.10.2012 and fresh candidates would also be permitted.
11. In the meanwhile, for the purpose of fixing the criteria for
selection of candidates who have cleared the TET for appointment to the
post of Secondary Grade Teachers and B.T. Assistants and other related
issues, the Government constituted a Committee under the Chairmanship of
the Hon'ble Minister for School Education, Sports and Youth Welfare
with three other members namely, the Principal Secretary to Government,
School Education Department, The Chairman, Teachers Recruitment Board
and The Director of School Education (Vide G.O.(2D)No.36, School
Education (Q) Department, dated 14.09.2012).
12. In
the second affidavit filed in W.P.Nos.24507 of 2012 batch, the
Chairman, TRB had stated that after the recommendation of the above
constituted Committee, the Government would examine the matter in detail
and would arrive at a criteria for selection of candidates for
Secondary Grade Teachers and B.T. Assistants at the earliest.
13. In view of the said affidavit filed, this Court disposed of the
writ petitions issuing certain directions including the following:-
10 (vii). So far as the candidates who possess the Teacher Eligibility
Certificate are concerned, after receipt of the recommendations of the
Committee constituted (vide G.O.(2D) No.36, School Education Department,
dated 14.09.2012) selection and appointment shall be made as per the
criteria to be fixed by the Committee.
14. The
Committee unanimously recommended to the Government to adopt modalities
by giving weightage of marks for selection and appointment of Secondary
Grade Teachers and Graduate Assistants. Having examined the
recommendations of the Committee, the Government issued G.O.Ms.No.252,
School Education (Q) Department, dated 05.10.2012 and prescribed the
modalities of giving weightage of marks for selection and appointment of
Secondary Grade Teachers and Graduate Assistants.
15. So based on the above norms and the criteria prescribed, the
candidates who have cleared the TET in the second examination held on
14.10.2012 were all called for certificate verification, awarded
weightage of marks, selected and appointed. Until then, there was no
challenge made to G.O.Ms.No.252, dated 05.10.2012.
16. The TRB, for the third time, issued Notification/Advertisement for
TET for Paper-I and Paper-II to be held on 17.08.2013 and 18.08.2013.
This notification was issued on 22.05.2013. The petitioners in all
these writ petitions participated either in Paper-I or in Paper-II or in
both. In that examination held as per the Notification itself, the
minimum percentage of marks required for pass was only 60% as per the
norms prescribed by the NCTE and the Government of Tamil Nadu. The
results were subsequently published.
17.
Thereafter,
the Hon'ble Chief Minister of Tamil Nadu announced on the Floor of the
Assembly that 5% relaxation will be given from the present pass mark of
60% for passing TET for the candidates belonging to the Scheduled Caste,
Scheduled Tribes, Backward Classes, Backward Classes (Muslim), Most
Backward Classes, De-notified Communities and persons with Disability.
18. In tune with the said announcement made, the Government issued
G.O.Ms.No.25, School Education (TRB) Department, dated 06.02.2014
relaxing 5% marks from the present pass mark of 60% for the candidates
belonging to the above categories.
19. The
Government Order also further directed that the said relaxation will be
applicable for the TET-2013 held on 17.08.2013 and 18.08.2013 . For
better understanding let me extract paragraph 3 of the said G.O. which
reads as follows:
"3. In continuation of the announcement made by the Hon'ble Chief Minister, the Government orders as follows:
(a) relaxing 5% marks from the present pass mark of 60% and fix the
pass mark at 55% for candidates belonging to Scheduled Caste, Scheduled
Tribes, Backward Classes, Backward Classes (Muslim), Most Backward
Classes, De-notified Communities and persons with disability (PWD) as
given below. The Candidates are required to obtain the following
minimum marks in Paper I for Secondary Grade Teachers and Paper II for
Graduate Assistants:-
Category
Maximum Marks
Minimum Marks (%) to be obtained in TNTET
Paper - I
Paper - II
General
150
60% or 90 marks
60% or 90 marks
SC, ST, BC, BC(M), MBC, DNC and persons with Disability (PWD)
150
55% or 82.5 marks rounded off to 82 marks
55% or 82.5 marks rounded off to 82 marks
(b) Relaxing 5% marks from the 60% marks prescribed for clearing of the
Tamil Nadu Teacher Eligibility Test, 2013 held on 17.08.2013 and
18.08.2013 for Schedule Caste, Scheduled Tribes, Backward Classes,
Backward Classes (Muslims), Most Backward Classes, De-notified
Communities and persons with Disability (PWD) and fixed at 55% or 82
marks.
(c) For all future Teacher Eligibility Tests, to fix
the minimum marks for candidates belonging to General Categories at 90
marks (60% of 150) and for candidates belonging to Schedule Caste,
Scheduled Tribes, Backward Classes, Backward Classes (Muslims), Most
Backward Classes, De-notified Communities and persons with Disability
(PWD) at 82 marks (55% of 150)."
20. Thereafter,
the Government issued another Government Order in G.O.Ms.No.29, School
Education (TRB) Department, dated 14.02.2014, thereby partially
modifying the Government Order in G.O.Ms.No.252, dated 05.10.2012 (this
is in respect of weightage marks for selection). Paragraphs 3 and 4 of
the said G.O. reads as follows:
"3. Consequent to the orders
issued in G.O. third read above, in partial modification of the orders
issued in the G.O. first read above , the weightage of marks for the
Tamil Nadu Teacher Eligibility Test for Secondary Grade Teachers and
Graduate Assistants shall be as indicated below:-
Examination passed
Weightage of Marks
90% and above
80% and above but below 90%
70% and above but below 80%
60% and above but below 70%
55% and above but below 60%
TNTET.
60
60
54
48
42
36
4. The Chairman, Teachers Recruitment Board is directed to take note of
this Government Order for finalizing selection list of the Tamil Nadu
Teacher Eligibility Test 2013 held on 17.08.2013 and 18.08.2013 and for
all future Tamil Nadu Teacher Eligibility Tests with respect to
candidates belonging to Scheduled Castes, Schedules Tribes, Backward
Classes, Backward Classes (Muslims), Most Backward Classes, Denotified
Communities and Persons with Disability (PWD).
21.
In the above factual background, now these writ petitions have been
filed by the candidates who have appeared for either Paper-I or
Paper-II or in both the papers in the TET held on 17.08.2013 and
18.08.2013. (i) In some of the writ petitions, the Government Order in
G.O.Ms.No.25, dated 06.02.2014 giving relaxation of 5% of marks in the
TET to specific class of persons is under challenge. (ii) In some of the
other writ petitions, challenge is to the Government Order in
G.O.Ms.No.29, dated 14.02.2014, wherein the candidates have questioned
the award of weightage of marks in the slab system and they have sought
for a direction to the respondents to take into account the actual
percentage of marks secured by the candidates. (iii) In few other writ
petitions, the petitioners have challenged the retrospective application
of the Government Order in G.O.Ms.No.29, dated 14.02.2014 as well as
the Government Order in G.O.Ms.No.25, dated 06.02.2014 to the TET
examination held on 17.08.2013 and 18.08.2013. (iv) In few other writ
petitions, the candidates have prayed that G.O.Ms.No.25, dated
06.02.2014 and G.O.Ms.No.29, dated 14.02.2014 should be retrospectively
extended to the earlier examinations held in the year 2012 as well. (v)
In some other writ petitions both G.O.Ms.No.25 and G.O.Ms.No.29 are
challenged seeking a consequential direction for awarding of weightage
marks as per G.O.Ms.No.252.
22. Now, let me take up these challenges one after the other.
Challenge to G.O.Ms.No.25, dated 06.02.2014
23. The common grounds in the writ petitions concerned would be as follows:-
(i) The impugned Government Order in G.O.Ms.No.25, dated 06.02.2014
which was issued after the entire selection process was over for the
examination conducted in August, 2013, would amount to changing the
rules of the game after the game is over.
(ii) By reducing the
pass percentage to 55%, the respondents have diluted the pass
percentage and have made more candidates eligible along with the
petitioners which has adversely affected the rights of the petitioners.
(iii) The retrospective operation under the impugned G.O.Ms.No.25,
dated 06.02.2014 to TET examinations held in August, 2013 materially
affects the vested right of the petitioners for selection.
(iv) The impugned Government Order suffers from total non-application of
mind in as much as the relaxation is not on the ground that there are
no eligible candidates.
(v) The impugned Government Order is
bereft of any reasoning for the issuance of the same and thus the said
G.O. is highly unreasonable.
(vi) The impugned Government
Order is against the provisions of the Right to Education Act and NCTE
Notification which enables the Government to only reduce the pass marks,
only, if there is any hardship or that there are no enough number of
candidates.
24. In the common counter filed by the Government, it is, inter alia, stated as follows:
(i) There were several representations from different quarters seeking
concessions to the reserved categories. The Government after detailed
examination of the said requests decided to grant such concessions to
the said category of persons in the TET exams conducted in the year 2013
and to all the future TET exams and accordingly passed the Government
Order in G.O.Ms.No.25. The Government has gone one step further and
allowed 5 % relaxation from the existing 60 % for determining
eligibility in the TET for candidates belonging to Scheduled Caste,
Scheduled Tribes, Backward Classes, Backward Classes (Muslim), Most
Backward Classes, De-notified Communities (DNC) and Persons with
Disability (PWD).
(ii) Giving concession is the
policy of the Government and it is within its discretion and so, the
Courts cannot either interfere with such policy matters nor could it
direct the State Government not to give such concession.
(iii) In respect of the candidates who have already appeared in the TET
held in the year 2013 the process of selection is under way and it is
yet to be completed. Therefore, the said order has been made applicable
to the candidates who have appeared for TET held in the year 2013.
25. I have meticulously considered the above rival contentions. In none
of the writ petitions, the power of the State Government to give
relaxation for the benefit of reserved categories in the matter of
percentage of marks for a pass in the TET has been questioned. The
foremost ground is that the Government has issued the impugned
Government Order in total non-application of mind. As has been stated
in the common counter affidavit filed by the respondents, the Government
has considered the representations from various quarters seeking
relaxation of 5% of pass mark for specified and under privileged
communities and having regard to the same, the Government has taken a
policy decision to relax the same. Therefore, it cannot be stated that
the Government has passed the impugned order in total non-application of
mind.
26. Nextly, it is contended by the
petitioners that such concessions could be granted only if there is no
required number of candidates eligible for appointment.
In
my considered opinion, this contention is totally baseless as TET is
not a competitive examination but it is only a qualifying examination.
If the candidates have once passed the said examination, the pass
certificate will be valid for seven years and there is no need for them
to write the examination every time. At the same time, there is also no
restriction for the passed candidates to re-appear to enhance the
marks. Thus, it should be understood that TET is only a qualifying
examination to qualify persons for appointment as teachers. Therefore,
it is not tenable to state that if only there are no sufficient number
of candidates available in the market who have passed the TET for
appointment, such relaxation could be given. Therefore, this ground is
rejected.
27. Yet another ground raised, upon
which much focus is made, is that the rules of the game cannot be
changed once the game has started. In this case, according to the
petitioners the TET Examinations 2013 were held on 17th and 18th of
August, 2013 and as per the prospectus issued, the minimum required
marks for a pass was 60%. Based on the said prescription, the results
were published and the successful candidates were also called for
certificate verification and only after that, the impugned Government
Order in G.O.Ms.No.25, dated 06.02.2014 has been issued. The grievance
of the petitioners is that since the relaxation of 5% of marks has been
given to candidates who have appeared in the already concluded
examination, it will materially affect the chance of the candidates who
have already passed and secured more than 60% of marks, while they are
considered for appointment. This argument, in my considered opinion,
though attractive, does not persuade me at all. If it is a competitive
examination, I may find some justification in the said contention that
the rules of the game cannot be changed subsequently. But as I have
already pointed out, it is only a qualifying examination.
28.
The
basic difference between a competitive examination and a qualifying
examination is that in a competitive examination, success or failure of
one candidate will have an impact on the other candidates because it is
a competition between the them. But,
in
a qualifying examination, success or failure of one candidate will have
no bearing on the other. Both the candidates appear for examination
only to qualify themselves so as to make themselves eligible for
appointment as teachers in future. Thus, the
principles applicable to a competitive examination cannot be simply
imported to a qualifying examination in a mechanical fashion.
29. The learned counsel Mrs.Dakshayani Reddy appearing the petitioner
in W.P.No.10849 of 2014 would make reliance on the judgements of the
Hon'ble Supreme Court in K.Manjusree v. State of Andhra Pradesh, (2008) 3
SCC 512 and Tamil Nadu Computer Science, B.Ed., Graduate Teachers
Welfare Society v. Higher Secondary School Computer Technical Assistant
and others [Civil Appeal No.4187 of 2009 arising out of SLP (C) No.25097
of 2008 dated 09.07.2009].
30.
A close reading of the above judgements would go to show that the
Hon'ble Supreme Court, in those judgements, has reiterated the principle
that the rules of the game cannot be changed after the game is over. But
all those cases pertain to competitive examinations and the ultimate
selection for appointment. In a qualifying examination, if the change of
the rule has materially affected the chances of anybody in getting
qualified, then the said principle can be applied even to a qualifying
examination. But, if the rules are changed only for the benefit of the
candidates and not to the detriment of any single candidate, then the
said principle that the rules of the game cannot be changed after the
game is over cannot be made applicable. In this case, the relaxation
of 5% of marks given to certain reserved categories has not affected the
chance of any candidate in getting qualified. Therefore, the contention
of the petitioners in this regard is liable to be rejected and
accordingly rejected.
31. Nextly, it is contended
that because retrospective relaxation is given to the already concluded
examinations, more number of candidates will get qualified and such
qualified candidates who have secured less than 60% of marks will
compete with the petitioners in the matter of appointment and thus the
impugned Government Order materially affects the accrued rights of the
petitioners. I find no force in this argument for more than one
reason. First of all, as has been very clearly stated in the NCTE
regulations as well as in the TET Notification, a mere pass in the TET
does not confer any right for appointment as a teacher. As I have
repeatedly stated, it is only a qualification for appointment as a
teacher. In the additional common counter affidavit filed by the
Government (dated 23.04.2014) it is stated as follows:
Pursuant to the notification issued by the NCTE, the State Government
framed the guidelines for the Teacher Eligibility Test. The State
Government is yet to issue the notification for recruitment of Secondary
Grade Teachers and Graduate Assistants for the present academic year.
32. Of course, it is true that the candidates who have already secured
60% marks and above have already been called for certificate
verification. But such exercise shall not confer any right on them that
they shall be appointed as teachers. Therefore, I hold that the
publication of results of the TET conducted in August 2013 has not
conferred any right of employment as against existing vacancies on the
candidates who have secured 60% of marks and above. Thus there is no
vested right as claimed by the petitioners so as to say that they have
been affected by G.O.Ms.No.25, dated 06.02.2014. Further, when the
Government has taken a policy decision to reduce the percentage of marks
for the benefit of reserved categories, for a pass and when the power
of the Government to do so is not challenged, I find no substance in the
challenge. Therefore, this ground is also rejected.
33. For the foregoing discussions , I hold that G.O.Ms.No.25 dated
06.02.2014 is valid and the challenge made to the same has to
necessarily fail.
Request for retrospective application of G.O.Ms.No.25, dated 06.02.2014 to the TET held in the year 2012:-
34. In many of these writ petitions, the petitioners who have appeared
in the TET in the year 2012 and who could not secure 60% of marks are
before this Court challenging G.O.Ms.No.25, dated 06.02.2014 in so far
as it gives retrospective effect of relaxation of 5% of marks only to
the TET held in August, 2013. According to the petitioners, such
retrospective effect should have been given to the examinations held in
the year 2012 also. The primary contention of the petitioners is that
denial of giving retrospective effect to the examinations held in 2012,
when such retrospective effect has been given to the examinations held
in 2013, amounts to discrimination which violates Article 14 of the
Constitution of India.
35. In this regard, in the common counter filed by the respondents, it is stated in paragraph 18 and 19 as follows:
"It is submitted that the petitioner cannot seek to extend the
concession to candidates who appeared in the TET exams in the year 2012.
It will create chaos and confusion and will set at naught the settled
things. It will affect the persons who have already been selected and
have been declared as eligible to be appointed as Teacher in the TET
exam in the year 2012 and who were appointed following the extent
reservation policy of the Government and are working in various places.
It will collapse and undo the entire things already done. Petitioner
and persons who failed in the TET exams in the year 2012 had an
opportunity to appear in the TET exams conducted in the year 2013 and
many of them have appeared and secured pass marks. Therefore, the
petitioner is not a similarly placed person like the candidates to whom
the benefits have been extended. The candidates who appeared in the TET
exam conducted in the year 2013 are yet to be selected and appointed
whereas the candidates selected in the TET exams conducted in the year
2012 have already been appointed. It is submitted that the petitioner at
no stretch of imagination can claim to be a similarly placed person.
19. It is submitted that all the averments made in the affidavit by the
petitioner are denied as untenable. The crux of the contention of the
petitioner is that the Government before passing the impugned Order, has
not taken into account the plight of the candidates who appeared in the
TET exams in the year 2012 and that Government should have extended the
concessions to the candidates who have appeared in the year 2012 also.
Once the Government has decided to give the concession to persons who
wrote TET exams in the year 2013 also it should have been given to all
the persons who wrote the TET exams since its inception as they they are
similarly placed and therefore the action of the Government is
violating of Articles 14 and 16 of the Constitution of India. The
contention of the petitioner is baseless as with respect to the
candidates who appeared in the two Teacher Eligibility Tests conducted
in 2012 the entire process of selection and appointment have been
completed and the candidates have already serve more than a year in
Government Schools. However, with respect to the candidates who have
appeared in the Teacher Eligibility Test, 2013 the process of selection
is under way and it yet to be completed. Hence the order stated to be
impugned has been made application to the candidates who appeared in the
Teacher Eligibility Test, 2013. Hence the said claim of the petitioner
is misconceived and is not tenable and does not hold any water in the
eye of law."
36. As has been rightly contended by
the TRB, so far as the TET Examinations held in the year 2012 are
concerned, after publication of the results much water has flown. The
candidates who passed in that examinations have already been selected
and appointed as teachers. Further, they have almost put in more than
one year of service in the Government schools.
If retrospective effect is given to impugned G.O. relaxing 5% of pass
marks to the examination held in the year 2012, then the candidates who
get the benefit of such relaxation will have to be appointed. In such an
event, the appointments already made will have to be disturbed, because
such appointments are to be in tune with the policy of reservation as
well as the weightatge marks. This would only create chaos and
confusion. This can be illustrated in the following manner:
A Scheduled Caste candidate who had secured 60% of marks in the TET
Paper-II in 2012 had already been appointed based on the weightage of
marks obtained in the Higher Secondary Course, Degree Course, B.Ed
Degree Course and in the TET. There is a candidate who had secured 58%
of marks belonging to Scheduled Caste and failed. As contended by the
petitioners, if the retrospective operation has to be given to the
relaxation, then the said candidate had to be declared as passed. Now,
in the process of selection, if it is found that he had secured more
total weightage marks then the candidate who had already been appointed,
then the candidate who had already been appointed has to be disturbed
and this candidate has to be appointed based on the total weightage
marks.
37.
Thus, the above illustration amply demonstrates that giving
retrospective effect to relaxation for the TET held in the year 2012
will only result in complete chaos and the same will materially affect
the candidates who have already been appointed. It is
because of these reasons, as has been contended by the learned Advocate
General, the Government has not extended the benefit to the candidates
who had appeared in the TET held in the year 2012. Thus, I find that
there is no discrimination. Above all, the candidates who have been
already appointed are not parties to these writ petitions.
38. So far as the TET Examinations held in August, 2013 are concerned,
no candidate has been appointed based on the same so far. But the
candidates who have already been declared as passed based on 60% of
marks and above are waiting for the selection process. As I have
already extracted, in the common counter, the Government has stated that
the process of selection has not yet commenced for the current year. I
have already held that giving retrospective effect to relaxation to the
examination held in August, 2013, will not in any manner affect the
interest of those candidates who had secured 60% of marks and above. In
view of this factual background, the candidates who had appeared and
failed in the TET Examinations held in the year 2012 cannot have any
grievance as they cannot be equated with the candidates who have
appeared in the 2013 examinations.
39. In view of
the foregoing discussions, I hold that G.O.Ms.No.25, School Education
(TRB) Department, dated 06.02.2014 cannot be extended retrospectively
to the TET examinations held in the year 2012.
Challenge
to G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 as
amended by G.O.Ms.No.29, School Education (TRB) Department, dated
14.02.2014
40. As we have already seen, after
having examined the recommendations of the Committee, the Government
issued G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012
directing the TRB prescribing the modalities by giving weightage of
marks for selection and appointment of Secondary Grade Teachers and
Graduate Assistants from out of the candidates who have passed the TET.
In brief, the modalities are as follows:-
(i) Selection for both Secondary Grade Teachers and Graduate Assistants shall be on the basis of the weightage marks.
(ii) For Secondary Grade Teachers, weightage marks shall be given for
the academic qualification viz., Higher Secondary Examination, D.T.Ed.,
or D.E.Ed., Examination and TET Examination.
(iii) For
Graduate Assistants , weightage marks shall be given for the academic
qualification viz., Higher Secondary Examination, Degree
Examination, B.Ed., Examination and TET Examination.
(iv) For both Secondary Grade Teachers and Graduate Assistants the total weightage marks shall be 100.
(v) For Secondary Grade Teachers, out of 100 weightage marks, 15 shall
be for Higher Secondary Exam, 25 for D.T.Ed., or D.E.Ed., Exam and 60
for TET.
(vi) For Graduate Assistants, out of 100 weightage
marks, 10 shall be for Higher Secondary Exam, 15 for Degree Exam, 15 for
B.Ed., Exam, and 60 for TET.
(vii) The weightage marks shall
be awarded following the Grading System as detailed in para 7 of
G.O.Ms.No.252 dated 05.10.2012 as amended by G.O.Ms.No.29 dated
14.02.2014.
41. The petitioners are not aggrieved
by selection based on weightage marks as detailed in sub paras (i) to
(vi) above. They are aggrieved by the Grading System adopted [vide sub
para (vii) above] in the Government Orders.
42.
Paragraph 7 of the Government is challenged in W.P.No.7146 of 2014. In
some of the writ petitions, the modalities prescribed for awarding of
weightage marks for TNTET alone is challenged. In few other writ
petitions, amendment made to G.O.Ms.No.252, dated 05.10.2012 by means
of Order in G.O.Ms.No.29, dated 14.02.2014 is also challenged. Thus,
in all, paragraph 7 of G.O.Ms.No.252, dated 05.10.2012 as amended by
G.O.Ms.No.29 dated 14.02.2014 prescribing the Grading System for
awarding weightage marks is under challenge in these writ petitions.
43.1 Now, let us have a look into the modalities prescribed in
G.O.Ms.No.252, dated 05.10.2012. Para 7 of the Government Order reads as
follows:-
7. Tamil Nadu Teacher Eligibility Test Weightage for Secondary Grade Teachers:
(a) There shall be 100 marks in total as full marks.
(b) The computation of 100 marks will be in the following manner
(i) Higher Secondary Exam : 15 marks
(ii) D.T.Ed., / D.E.Ed., Exam : 25 marks
(iii) Teacher Eligibility Test : 60 marks
(c) Marks shall be given for item (i), (ii) and (iii) of clause (b), in the manner mentioned hereunder
(i) For Higher Secondary Exam (12th Standard)
Examination passed
Weightage of Marks
90% and above
80% and above but below 90%
70% and above but below 80%
60% and above but below 70%
50% and above but below 60%
Below 50%
12th Std.
15
15
12
9
6
3
0
(ii) For DTEd/DEEd.
Examination passed
Weightage of Marks
70% and above
50% and above but below 70%
DTEd/DEEd
25
25
20
(iii) For TNTET
Examination passed
Weightage of Marks
90% and above
80% and above but below 90%
70% and above but below 80%
60% and above but below 70%
TNTET
60
60
54
48
42
Tamil Nadu Teacher Eligibility Test Weightage for Graduate Assistants:
(a) There shall be 100 marks in total as full marks.
(b) The computation of 100 marks will be in the following manner:
(i) Higher Secondary Exam : 10 marks
(ii) Degree Exam : 15 marks
(iii) B.Ed. Exam : 15 marks
(iv) Teacher Eligibility Test : 60 marks
(c) Marks shall be given for item (i), (ii), (iii) and (iv) of clause (b), in the manner mentioned hereunder:
(i) For Higher Secondary Exam (12th Standard)
Examination passed
Weightage of Marks
90% and above
80% and above but below 90%
70% and above but below 80%
60% and above but below 70%
50% and above but below 60%
Below 50%
12th Std.
10
10
8
6
4
2
0
(ii) For Degree and B.Ed.
Examination passed
Weightage of Marks
70% and above
50% and above but below 70%
Below 50%
Degree
15
15
12
10
B.Ed.
15
15
12
-
(iii)
For TNTET Examination passed Weightage of Marks 90% and above 80% and
above but below 90% 70% and above but below 80% 60% and above but below
70% TNTET After computation of marks, based on the above selection
criteria, if more than one candidate have the same mark, then preference
in selection will be based on the date of birth (the older person will
be given priority)"
43.2. Para 3 of G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014 reads as follows:-
"3.
Consequent to the orders issued in G.O. third read above, in partial
modification of the orders issued in the G.O. first read above , the
weightage of marks for the Tamil Nadu Teacher Eligibility Test for
Secondary Grade Teachers and Graduate Assistants shall be as indicated
below:-
Examination passed Weightage of Marks 90% and
above 80% and above but below 90% 70% and above but below 80% 60% and
above but below 70% 55% and above but below 60% TNTET.
44.
As I have already stated, the petitioners are aggrieved by the above
modality viz., awarding of weightage marks by grading system. According
to them, the grading system [slab system] adopted in G.O.Ms.No.252,
dated 05.10.2012 as amended in G.O.Ms.No.29, dated 14.02.2014 is
unconstitutional.
45. The common grounds raised in all these writ petitions can be summarised as follows:
(i)
The impugned Government Order treats more meritorious candidates on par
with less meritorious candidates, in as much as, all the candidates in
one slab are placed together and awarded equal marks and thus, less
meritorious candidates get priority over the more meritorious candidates
like the petitioners.
(ii) The impugned Government
Order defeats the very purpose of TET Examination in as much as the raw
marks of the candidates are given a go-by and the individuals who have
got different marks are grouped together and treated as equals.
(iii)
The impugned Government Order is arbitrary in as much as it ignores the
fact that every mark in the TET is obtained by the candidates after
hard preparation for the said examination. By placing several
individuals who got different marks in the same slab, the merit and
ability of the candidates in the examination is given a go-by.
(iv)
Though the object of The Right of Children to Free and Compulsory
Education Act, 2009 is to ensure merit so that the students are taught
by meritorious teachers, by selecting the candidates following the slab
system under the impugned Government Order, the merit has been diluted.
This will amount to diluting of the very object of the Act.
(v) Paragraph 7 of G.O.Ms.No.252, dated 05.10.2012 offends Article 14 and Article 16 of the Constitution of India.
46. In the counter affidavits filed by the Government, inter alia it is stated:
(i)
That in order to provide quality education to the children in the State
of Tamil Nadu and considering the need to fill up the vacancies for the
post of Teachers, the committee in its meeting held on 14.09.2012 and
24.09.2012 took into consideration the selection methodology followed by
the Government of Andhra Pradesh and West Bengal and arrived at the
criteria of weightage of marks and recommended the same to the
Government. The Government of Andhra Pradesh followed a system by which
20% weightage is given to Andhra Pradesh Teacher Eligibility Test
(APTET) and 80% weightage for written test in Teachers Recruitment Test
(TRT) for drawing up selection list of Teachers to be recruited in
Government service.
(ii) The State of West Bengal has
followed the system of giving weightage for academic qualification
starting from Madhyamik pass, Higher Secondary pass, Teacher Training,
TET and interview.
(iii) Considering the methodologies
adopted by the above said two States, the Committee recommended to the
Government to adopt the modalities by giving weightage of marks for
their academic qualification in XII Standard,D.T.Ed.,/D.E.Ed., Degree,
and B.Ed., along with TET for selection and appointment of Secondary
Grade Teachers and Graduate Assistants respectively. The Government
after examining the recommendations of the committee issued orders in
G.O.Ms.252, School Education Department dated 05.10.2012. The Government
had, in fact, carefully considered the system of assigning weightage
for selecting candidates for appointment in Government service from
among the candidates who have passed the Teacher Eligibility Test. In
the interest of selecting the best and most meritorious candidates, the
100 marks were distributed between TET marks, degree marks, B.Ed. Marks
and Higher Secondary marks. In the case of Graduate Assistants, 100
marks is computed as 60 marks for TET, 15 marks each for degree and
B.Ed., and 10 marks for Higher Secondary. The marks so computed were
further distributed by assigning weightage on the slab fixed for the
respective categories viz., TET, Degree, B.Ed., and Higher Secondary
marks. By allotting 60 marks out of the 100 marks for TET, it is ensured
that the candidates who have obtained higher marks in TET will stand a
better chance of getting selected in Government service.
(iv)
In respect of G.O.Ms.No.29, it is stated in the counter that consequent
upon the orders issued in G.O.Ms.No.25 dated 06.02.2014 the weightage
of marks for TET, Secondary Grade Teachers and Graduate Assistants was
ordered in G.O.Ms.No.29, dated 14.02.2014 providing for weightage of
marks for even those candidates belonging to the specified reserved
cagegories who secured 55% and above but below 60% in the Teacher
Eligibility Test Examination held in the year 2013 and all future TET
Examinations. It is also contended that there is no violation of either
Articles 14 and 16 of the Constitution of India.
47.
The learned senior counsel Mr.C.Selvaraj, leading the team of lawyers
appearing for the petitioners, would submit that when the actual marks
obtained by the candidates are reduced into percentage, that by itself
will reflect the mertis of the candidates and there is no need for the
Government to adopt the slab system. The learned senior counsel would
further submit that by adopting the slab system, the candidates who have
secured higher marks have been discriminated as they have been treated
on par with the candidates who are less meritorious.
48.
In order to demonstrate the above anomaly, the learned senior counsel
would refer to the marks secured by the petitioner in W.P.No.5590 of
2014 in the TET. She has secured 104 marks out of 150 marks in the TET
which is equivalent to 69.33%. And as per the slab system she will get
only 42 weightage marks for TET. The learned senior counsel would
further submit that a candidate who had secured 105 marks in the TET
[70%] will get 48 weightage marks as per the slab system. Similarly a
candidate who has secured only 90 marks (60%) will get 42 weightage
marks as per the slab system. For easy understanding let us tabulate the
same as follows:-
Sl.No.
Marks secured in TET (out of 150) Marks in Per Centage (%) Weightage marks as per Slab System 70.00 % 69.33 % 60.00 %
49.
The learned senior counsel would point out, as illustrated above, the
writ petitioner in W.P.No.5590 of 2014 who has secured 104 marks in the
TET is equated to the candidate who has secured hardly 90 marks. Thus,
according to him, the two unequals are treated as though they are equals
which offends Article 14 as well as Article 16 of The Constitution of
India. Similarly, he would point out that the said writ petitioner who
had secured 104 marks gets only 42 weightage marks as per the grading
system; whereas the candidate who has secured 105 marks gets 48
weightage marks as per the grading system, thus, giving a vast
disproportionate variation. Here, the writ petitioner's percentage of
mark is 69.33%; whereas the other candidate who has secured 105 marks
would get 70.00%. The difference is hardly 0.67%. But, the difference
between the petitioner and the other candidate as per the grading is
6-weightage marks. Thus, according to the learned senior counsel, the
petitioner with 104 marks and the other candidate with 105 marks, who
are more or less equal, are treated unequally and thus, it again goes to
demonstrate that the system adopted under the impugned Government Order
violates Articles 14 and 16(1) of the Constitution of India. The
learned counsel would further submit that there is no scientific
rationale behind the grading system adopted. Instead, according to him,
the raw marks of the candidates should have been taken as the basis for
selection.
50. Per contra, the learned Advocate General
took much pains in an attempt to demonstrate that there is no violation
of either Article 14 or Article 16(12) of the Constitution of India.
According to him, grading of marks is a well accepted system and the
same has been adopted in various institutions. He would further submit
that such system has been adopted by the State of West Bengal and State
of Andhra Pradesh. Only taking clue from the same, the committee adopted
this method of grading and based on the said recommendation of the
committee, the Government of Tamil Nadu has issued the impugned
Government Order. The learned Advocate General would further submit that
the grading system has been affirmed by a Division Bench of this Court
in P.Arunkumar v. State of Tamil Nadu, 2007 Writ LR 965. The learned
Advocate General would contend that it may be true that some other
method may be suggested to be a more viable method, but, on that score,
the present method prescribed in the impugned Government Order cannot be
found fault with. If there are any anomalies noted in course of
implementation of the system, it will be, in due course, rectified for
the future selection process. He would further submit that unless it is
so established to the satisfaction of this court, that the present
grading system materially offends Article 14 and 16(1) of The
Constitution of India, it is not at all possible to interfere with the
same on the ground that there are other better methods available. He
would further submit that since prescribing the method is a policy
decision of the Government, this court should not interfere with the
same.
51. I have carefully considered the said
submissions. At the out set, we have to make one thing clear, i.e., the
raw marks obtained by the candidates in the qualifying examinations such
as Higher Secondary, Degree, B.Ed., D.T.Ed., / D.E.Ed., and TET cannot
be straight away clubbed and selection made on the basis of the said raw
marks because, different weightage marks are given for these qualifying
examinations and TET respectively. This is a policy decision of the
Government. Therefore, for awarding weightage marks as per the ratio
prescribed, some system/method which will scrupulously weigh the inter
se merits of the candidates, should be adopted. According to the
Government, as per the Government Order, the grading system has been
adopted as it is very reasonable.
52. Before proceeding
further, let us have a look into the various systems available such as,
moderation, scaling, grading, etc. to have a clear understanding as to
whether the system prescribed in the impugned Government Order is in
tune with Article 14 and 16 of The Constitution of India.
53.
The learned counsel, on either side, placed reliance on the judgement
of the Hon'ble Supreme Court in Sanjay Singh and another v. U.P. Public
Service Commission, Allahabad and another [AIR 2007 SC 950]. In that
case, the Hon'ble Supreme Court was mainly concerned with the scaling
system adopted by the U.P. Public Service Commission. While explaining
as to what do we mean by scaling and moderation, in para 23 of the
judgement, the Hon'ble Supreme Court has very elaborately dealt with the
same in the following manner:-
23. When a large number
of candidates appear for an examination, it is necessary to have
uniformity and consistency in valuation of the answer- scripts. Where
the number of candidates taking the examination are limited and only one
examiner (preferably the paper-setter himself) evaluates the
answer-scripts, it is to be assumed that there will be uniformity in the
valuation. But where a large number of candidates take the examination,
it will not be possible to get all the answer-scripts evaluated by the
same examiner. It, therefore, becomes necessary to distribute the
answer-scripts among several examiners for valuation with the
paper-setter (or other senior person) acting as the Head Examiner. When
more than one examiner evaluate the answer-scripts relating to a
subject, the subjectivity of the respective examiner will creep into the
marks awarded by him to the answer- scripts allotted to him for
valuation. Each examiner will apply his own yardstick to assess the
answer-scripts. Inevitably therefore, even when experienced examiners
receive equal batches of answer scripts, there is difference in average
marks and the range of marks awarded, thereby affecting the merit of
individual candidates. This apart, there is 'Hawk- Dove' effect. Some
examiners are liberal in valuation and tend to award more marks. Some
examiners are strict and tend to give less marks. Some may be moderate
and balanced in awarding marks. Even among those who are liberal or
those who are strict, there may be variance in the degree of strictness
or liberality. This means that if the same answer-script is given to
different examiners, there is all likelihood of different marks being
assigned. If a very well written answer-script goes to a strict examiner
and a mediocre answer-script goes to a liberal examiner, the mediocre
answer-script may be awarded more marks than the excellent
answer-script. In other words, there is 'reduced valuation' by a strict
examiner and 'enhanced valuation' by a liberal examiner. This is known
as 'examiner variability' or 'Hawk-Dove effect'. Therefore, there is a
need to evolve a procedure to ensure uniformity inter se the Examiners
so that the effect of 'examiner subjectivity' or 'examiner variability'
is minimised. The procedure adopted to reduce examiner subjectivity or
variability is known as moderation.
54. In paragraph
24 of the above said judgement, the Hon'ble Supreme Court explains as to
what is scaling which reads as follows:-
24. In the
Judicial Service Examination, the candidates were required to take the
examination in respect of all the five subjects and the candidates did
not have any option in regard to the subjects. In such a situation,
moderation appears to be an ideal solution. But there are examinations
which have a competitive situation where candidates have the option of
selecting one or few among a variety of heterogenous subjects and the
number of students taking different options also vary and it becomes
necessary to prepare a common merit list in respect of such candidates.
Let us assume that some candidates take Mathematics as an optional
subject and some take English as the optional subject. It is well
recognised that marks of 70 out of 100 in Mathematics do not mean the
same thing as 70 out of 100 in English. In English 70 out of 100 may
indicate an outstanding student whereas in Mathematics, 70 out of 100
may merely indicate an average student. Some optional subjects may be
very easy, when compared to others, resulting in wide disparity in the
marks secured by equally capable students. In such a situation,
candidates who have opted for the easier subjects may steal an advantage
over those who opted for difficult subjects. There is another
possibility. The paper-setters in regard to some optional subjects may
set questions which are comparatively easier to answer when compared to
some paper-setters in other subjects who set tougher questions which are
difficult to answer. This may happen when for example, in Civil Service
Examination, where Physics and Chemistry are optional papers, Examiner
A sets a paper in Physics appropriate to degree level and Examiner B
sets a paper in Chemistry appropriate for matriculate level. In view of
these peculiarities, there is a need to bring the assessment or
valuation to a common scale so that the inter se merit of candidates who
have opted for different subjects, can be ascertained. The moderation
procedure referred to in the earlier para will solve only the problem of
examiner variability, where the examiners are many, but valuation of
answer-scripts is in respect of a single subject. Moderation is no
answer where the problem is to find inter se merit across several
subjects, that is, where candidates take examination in different
subjects. To solve the problem of inter se merit across different
subjects, statistical experts have evolved a method known as scaling,
that is creation of scaled score. Scaling places the scores from
different tests or test forms on to a common scale. There are different
methods of statistical scoring. Standard score method, linear standard
score method, normalised equipercentile method are some of the
recognised methods for scaling.
55. In para 25 of the judgement, inter alia, the Hon'ble Supreme Court has held as follows:-
25.
... ... ... ... Scaling is the process which brings the mark awarded by
Examiner 'A' in regard to Geometry scale and the mark awarded by
Examiner 'B' in regard to History scale, to a common scale. Scaling is
the exercise of putting the marks which are the results of different
scales adopted in different subjects by different examiners into a
common scale so as to permit comparison of inter se merit.
56.
As we have seen, in the above judgement, moderation is the method which
can be adopted to reduce examiner subjectivity or examiner variability.
This method of moderation may be necessary only in a case, where, in
respect of the same subject valuation is conducted by different
examiners while the pattern of examination is descriptive in nature. In
other words, when the examination is descriptive in nature, there may be
difference in the standard of valuation among various examiners and it
is only to bring about uniformity in order to test the inter se merits
of the candidates, the method of moderation is followed. Admittedly, in
the instant cases, the method adopted is not moderation. Here,
moderation method is also not necessary since the pattern of TET
Examination is multiple choice questions where there is absolutely no
chance for examiners subjectivity or examiners variability. Therefore,
moderation method which has been elaborately dealt with in the above
said judgement of the Hon'ble Supreme Court has got nothing to do with
the instant cases.
57. Now, turning to the scaling
method, in the above said judgement, the the Hon'ble Supreme Court has
categorically held that to solve the problem of inter se merit across
different subjects, statistical experts have evolved a method known as
scaling, that is creation of scaled score. Scaling method can be adopted
only when the students are made to write examinations in different
subjects at their option though the ultimate marks secured by the
candidates will be the basis for selection.
58. For
example, a candidate who has taken Mathematics can easily secure 100 out
of 100 whereas a candidate who has taken English as his subject will
find it difficult to get even 90 marks. If the candidate who has taken
Mathematics as his subject and the candidate who has taken English as
his subject are put in the very same scale, certainly, the candidate who
has taken Mathematics as his subject will steal the entire chance.
Similarly, the standard of question papers in various subjects may make
the difference as the question paper in one subject may be easy whereas
in the other it may be tough. In order to minimise the above anomaly,
the method of scaling is adopted. Here in the instant cases, the method
adopted is not scaling also and therefore, I need not elaborate various
systems of scaling.
59. In the instant cases, the
learned Advocate General would fairly submit that the method directed to
be adopted under the impugned Government Order is neither moderation
nor scaling , but it is only "grading".
60. In Sanjay
Singh's case cited supra, the Hon'ble Supreme Court examined the reasons
as to why the UP Public Service Commission adopted the scaling method
instead of moderation. It was pointed out before the Hon'ble Supreme
Court by the UP Public Service Commission that anomalies caused on
account of examiner variability was engaging its attention and it was
found that a candidate's score may depend upon the chance factor of
whether his answers script is assessed by a lenient or a strict
examiner; and that in an extreme case, while a candidate of a given
merit may get a First Class/Division, another student of equal merit may
be declared to have failed. Therefore, the Commission constituted a
Committee to carry out an indepth study into the matter and suggest
appropriate means to ensure that the evaluation was on more equitable
basis.
61. According to the UP Public Service
Commission, after making a thorough study of the situation the Committee
submitted its report suggesting statistical scaling system as the
viable method. It was also contended before the Hon'ble Supreme Court
that the said scaling method was rational, scientific and reasonable and
would lead to assessment of inter se merit of the candidates in a just
and proper manner. The Hon'ble Supreme Court went on to examine whether
the reasons stated by the Commission for adopting the scaling method
were rational, scientific and reasonable and the same would lead to
assessment of inter se merit of the candidates. After having examined
the same, the Hon'ble Supreme Court held in para 36 as follows:-
36.
... ... ... The material placed does not disclose that the Commission
or its expert committee have kept these factors in view in determining
the system of scaling. We have already demonstrated the
anomalies/absurdities arising from the scaling system used. The
Commission will have to identify a suitable system of evaluation, if
necessary by appointing another Committee of Experts. Till such new
system is in place, the Commission may follow the moderation system set
out in Para 23 above with appropriate modifications. [Emphasis
supplied]
62. From the above judgement, it is crystal
clear that when the examining body decides to convert the actual marks
secured by the candidates in the written examination into a scaled mark,
the reasons for adopting such method of moderation or scaling should be
stated. The Hon'ble Supreme Court has further held that the said system
adopted should achieve the object of examining the inter se merits of
the candidates leaving no anomaly. Applying the said principles to the
facts of the instant cases, let us now have a look into the reasons, if
any, stated by the respondent Government for adopting the grading
system to award weightage marks for the qualifying examinations and the
TET.
63. In the counter filed by the Government, it is
stated that in order to evolve the methodology for selecting the
candidates, a committee was constituted and the committee held its
meetings on 14.09.2012 and 24.09.2012. In the meeting of the Committee
held on 14.09.2012, the following points were taken up for consideration
[vide page 41 of the typed set of papers filed by the Government]:-
a. Regarding postponing the examination to December.
b. For fixing additional Criteria.
64.
A further perusal of the minutes of the first meeting of the Committee
would go to show that there was no discussion at all on 14.09.2012
regarding the methodology to be adopted for awarding of weightage marks.
The next meeting of the Committee was held on 24.09.2012. The minutes
of the said meeting has been filed by way of typed set [vide page 42 of
the typed set of papers filed by the Government]. In the said meeting ,
it was minuted as follows:-
After the briefing by the
Principal Secretary, School Education Department about the present
position and the order issued, the Committee deliberated about the
methodologies to be adopted for fixing additional criteria for selecting
candidates for appointment from among those who have cleared the
Teacher Eligibility Test. The Committee considered the selection
methodology based on the weightage followed by Government of Andra
Pradesh and Government of West Bengal. After which the Committee
unanimously decided to recommend to the Government to adopt the
modalities by giving weightage of marks for their academic qualification
in 12th Standard, DTEd./DEEd. and TET for selection of Secondary Grade
Teachers and 12th Standard, Degree, B.Ed., and TET for selection of
Graduate Assistants as follows:
... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
65.
A close perusal of the proceedings of the Committee would go to show
that the Committee did not consider the merits and demerits of the
grading system adopted. The Committee had only considered the
methodology followed by the Government of Andhra Pradesh and Government
of West Bengal and simply recommended to adopt the same. The Government
also, before issuing G.O.Ms.252, did not examine as to whether the said
method of grading is reasonable and whether the same would achieve the
object, if any. As has been held by the Hon'ble Supreme Court in Sanjay
Singh's case cited supra, I have to necessarily hold that without having
any object to be achieved and without examining the merits and demerits
of the grading system, the Committee had, in a mechanical fashion,
recommended the method of grading simply because such method had been
adopted by the States of Andhra Pradesh and West Bengal. The Government
of Tamil Nadu also, in turn, had failed to examine the merits and
demerits and reasonableness of such gradation and the object, if any,
sought to be achieved. In such view of the matter, I hold that there is a
total non application of mind on the part of the Government while
issuing the impugned Government Orders.
66. Nextly, let
us move on to the question as to whether the grading system adopted
under the impugned Government Orders is rational, scientific and
reasonable. In this regard, the learned Advocate General would submit
that grading has been accepted to be a proper mode of assessing the
inter se merits of the candidates by a Division Bench of this Court in
P.Arunkumar v. State of Tamil Nadu, 2007 Writ LR 965. That was a case
relating to admission of students in the I year M.B.B.S. Course by a
private minority medical college. The process of selection and the
procedure adopted by the college were put under challenge. One of the
main grounds raised by the writ petitioner in that case was that the
conversion of marks into grades under stanine grading method is not
transparent and, therefore, selection made on the basis of the marks
awarded under stanine grading system should be deemed to be not on
merits.
67. Factually, in that case, the examination
was conducted by the college in five papers each consisting of 60 marks.
The questions were of objective type. Total marks for all the five
papers put together was 300. The Division Bench found that stanine
method of grading has been adopted in many universities across the
world. Thus, stanine method has been universally accepted. The Division
Bench has explained as to what the stanine method is, which reads as
follows:-
The name stanine is simply a derivation of
the term "star scale. Stanines are normalized standard scores, ranging
in value from distribution has a mean of 5 and a standard deviation of
2. Stanines 2 are equal to a = standard deviation unit in width, with
the middle stanine defined as the range of scores < of a standard
deviation below to < of deviation above the mean. Stanines can, more
easily, be thought of groupings of percentile ranks (see below), and
like percentile ranks xxx status or relative rank of a score within a
particular group. Due coarseness, stanines are less precise indicators
than percentile ran times may be misleading (e.g., similar PR's can be
grouped into different (e.g., PR=23 and PR=24) and dissimilar PR's can
be grouped into stanine (e.g., PR=24 and PR=40)). However, some find
that using stanine to minimize the apparent importance of minor score
fluctuations, and helpful in the determination of areas of strength and
weakness. Standard Score, Status Scores, Percentile Rank, Arithmetic
Mean, and Deviation. Eventually, the Division Bench held in paragraphs
42 and 43 as follows:-
42. Therefore, it cannot be said
that the Stanine Grade System is unknown in the method of selection for
the reason that it is complicated and requires mathematically trained
mind to understand. That itself cannot be a ground to brush aside the
said method of selection, which can never be stated to be either
prejudicial or discriminatory between the candidates.
43.
It is not even the case of the appellants that this system amounts to
mal-administration. There cannot be any imputation on the first
respondent Institution in following the said system, which is certainly
complicated and unique. These are the matters which are concerning the
specialised mind and so long as they do not infringe the triple tests of
selection, viz., merit, transparency and non-exploitative, one cannot
say that the system should be ignored by lightly setting aside the
importance of the same. Especially, as narrated above, the system has
been used world wide and even in respect of the first respondent
Institution, it is in un-interrupted use for the past five decades
without any complaints.
68. Making heavy reliance upon
the same, the learned Advocate General would submit that in the instant
case also, since grading has been adopted for awarding weightage marks,
the same should be approved. But, the said argument does not persuade me
at all for many reasons. First of all, as has been held by the Division
Bench, stanine grading system is a well established method which has
received the international approval in the field of statistics. The
Division Bench also found that there were well established grounds
necessitating using the said method. Therefore, the Division Bench in
P.Arunkumar's case [cited supra] upheld the same. But, in the cases on
hand, it is not as though any method which has received approval in the
field of statistics has been adopted by the Government to grade the
marks of the candidates. The learned Advocate General would fairly
concede that in stanines method, there is a standard formula. Applying
the said formula, raw marks secured by the candidates are converted into
graded marks. Like the stanines method, there are many other methods
approved in the field of statistics. But, no such approved method has
been followed in the impugned Government Order to fix the grading
methodology. Thus, the grading method prescribed in the impugned
Government Order has got no scientific background so as to approve the
same. The experts in the field of statistics were neither included in
the Committee nor any opinion was obtained from such experts. The said
Committee cannot be stated to be an expert body. The report of the
Committee does not reflect any discussion on the necessity to prescribe
this particular grading system and as to why this grading methodology
was considered and with what object. In a blind manner, I regret to say,
the Committee has evolved its own method simply because similar methods
have been adopted by the Government of Andhra Pradesh and the
Government of West Bengal. In such view of the matter, I hold that the
judgement of the Division Bench in Arunkumar's case does not in any
manner come to the rescue of the impugned Government Orders.
69.
Now, once again turning to the judgement of the Hon'ble Supreme Court
in Sanjay Singh's case, the Hon'ble Supreme Court had occasion to
consider the earlier judgement in S.C.Dixit [AIR 2004 SC 163]. In
S.C.Dixit's case, the validity of scaling was considered. The Hon'ble
Supreme Court in S.C.Dixit's case had ultimately upheld the scaling on
two conclusions namely (i) that the scaling formula was adopted by the
Commission after an expert study and in such matters, court will not
interfere unless it is proved to be arbitrary and unreasonable; and (ii)
the scaling system adopted by the Commission eliminated the
inconsistency arising on account of examiner variability. The Hon'ble
Supreme Court further held in Dixit's case that as scaling was a
recognized method to bring raw marks in different subjects to a common
scale, such scaling system was introduced after a scientific study by
experts.
70. But, in Sanjay Singh's case, the Hon'ble
Supreme Court did not agree with S.C.Dixit's case and, therefore, the
Hon'ble Supreme Court overruled the S.C.Dixit's case. In para 37 of the
judgement in Sanjay Singh's case, the Hon'ble Supreme Court has
ultimately held as follows:-
37. ... ... ... ... But we
have found after an examination of the manner in which scaling system
has been introduced and the effect thereof on the present examination,
that the system is not suitable. We have also concluded that there was
no proper or adequate study before introduction of scaling and the
scaling system which is primarily intended for preparing a common merit
list in regard to candidates who take examinations in different optional
subjects, has been inappropriately and mechanically applied to a
situation where the need is to eliminate examiner variability on account
of strict/liberal valuation. We have found that the scaling system
adopted by the Commission leads to irrational results, and does not
offer a solution for examiner variability arising from strict/liberal
examiners. Therefore, it can be said that neither of the two assumptions
made in S.C. Dixit can validly continue to apply to the type of
examination with which we are concerned. We are therefore of the view
that the approval of the scaling system in S.C. Dixit is no longer
valid.
71. From the above observations and conclusions
arrived at by the Hon'ble Supreme Court in Sanjay Singh's case, it is
crystal clear that before introducing any system to convert the raw
marks into graded marks or scaled marks, or moderated marks, there has
to be a scientific study conducted by the experts to evolve a system by
which inconsistency or variability or anomaly, if any, should be
minimised. In the cases on hand, as we have already observed, there was
no such scientific study at all conducted by any expert body before
introducing this particular grading system. It is also not stated as to
what is the object sought to be achieved by introducing this system. It
is not even identified as to what are the inconsistencies, anomalies,
etc., which would be minimised by this system.
72. The
Government also did not consider all these aspects before accepting the
report of the committee. As has been held in Sanjay Singh's case, since
there is no scientific study for prescribing this particular grading
method and as to whether the same would minimise hardship or anomaly or
inconsistency, if any, the impugned Government Order prescribing the
present grading method cannot be accepted. The Division Bench in
P.Arunkumar's case found that grading system was absolutely necessary to
achieve certain identified objects, and the grading methodology adopted
was also based on the stanines grading methodology approved by the
world community. Since in the cases on hand, this particular grading
methodology has been adopted by the Government without there being any
object sought to be achieved, without there being any scientific study
and without there being any accepted method, it has to be necessarily
held that the grading methodology stipulated in the impugned Government
Order suffers from arbitrary exercise of power of the Government.
73.
Let us now examine as to whether the grading methodology prescribed in
the impugned Government Order would in any manner enhance the process of
selection to assess the inter se merits of the candidates. As we have
already discussed, in paragraph No.48 of this order, a candidate who has
secured 69.33% in TET gets 42 weightage marks as per the slab and
similarly, the candidate who has secured only 60% of marks also gets the
same 42 weightage marks. Likewise, a candidate who has secured 70% of
marks gets 48 weightage marks; whereas the candidate who has secured
69.33% of marks gets 42 weightage marks. This in my considered opinion
is a big anomaly. Thus, this system does not enhance perfection in
assessing the inter se merit of the candidates in any manner.
74.
But, the learned Advocate General would submit that in P.Arunkumar's
case cited supra, the Division Bench has held that there is no violation
of Article 14 of the Constitution of India by the system of grading.
But a careful reading of the judgement would show that the Division
Bench found that there was necessity for converting the raw marks into
graded marks and also grading system was founded on a well accepted
formula known as Stanine Formula . It was in those circumstances, the
Division Bench held that there was no violation of Article 14 of the
Constitution. But, in the instant cases, since we have found that there
is no object sought to be achieved by this particular system of grading
and since it is not made on the basis of any accepted formula by making a
thorough scientific study and since the system adopted under the
impugned Government Order is demonstrably irrational and unreasonable as
it creates a lot of anomalies as the same and treats equals as
unequals, and vice versa, I have to necessarily hold that the grading
system adopted by the Government in the impugned Government Order
violates Article 14 and 16 of The Constitution.
75. The
learned senior counsel Mr.C.Selvaraj, appearing for the petitioners ,
in this regard, would rely upon a judgement of the Hon'ble Supreme Court
in Raj Kumar and others v. Shakti Raj and others, (1997) 9 SCC 527
where the Hon'ble Supreme Court was invited to examine a similar issue.
In Para 13 of the judgement, the Hon'ble Supreme Court has held as
follows:-
13. The examination papers were of common
standard and all were required to write the same examination. Under
those circumstances, the appropriate procedure should have been to apply
the marks as secured by them in the written examination plus the marks
awardable to the respective candidates either on the academic
qualifications or on the sports qualification or experience
qualification or extra- curricular qualification or the marks actually
secured in the via voce and to pool them as total marks secured by each
candidates and the merit list should have been prepared in the light of
the Rules. On the basis of the aggregate marks secured by candidates,
select list should have been prepared and recommendation made to enable
them to appear in accordance with the prescribed Rules: including the
rule of reservation applicable to various categories mentioned in the
Rules and allotment made to the respective circles as envisaged under
1955 Rules and all other rules issued in that behalf.
76.
The above said observation of the Hon'ble Supreme Court, in my
considered opinion, cannot be taken as the law declared by the Hon'ble
Supreme Court or principle enunciated. It is only a mere observation
made depending upon the facts and circumstances of the case before the
Hon'ble Supreme Court. It cannot be said as a universal rule that in all
situations, the raw marks secured by the candidates in the written
examination should alone be the basis for the selection.
77.
The learned Advocate General would nextly contend that Article 14 is
the genus and Article 16 is the species. Therefore, according to him, if
once it is held that there is no violation of Article 14, necessarily
it has to held that Article 16(1) of the Constitution is also not
violated. In other words, according to him, for the purpose of public
employment, Article 14 and Article 16 of the Constitution are
inseparable twins. In this regard, the learned Advocate General would
make reliance on the judgement of the Hon'ble Supreme Court in Ajit
Singh and others (II) v. State of Punjab and others, (1999) 7 SCC 209.
The learned Advocate General would further submit that since the
Division Bench of this Court in P.Arunkumar's case has held that grading
system does not violate Article 14 , applying the same to the instant
cases, it should be held that neither Article 14 nor Article 16(1) is
violated.
78. In this regard, it may be seen that the
law regarding inter-relationship between Article 14 and Article 16 has
been reiterated in Ajit Singh's case in para 22 as follows:-
22.
... ... ... ... Article 14 and Article 16(1) are closely connected.
They deal with individual rights of the person. Article 14 demands that
the "State shall not deny to any person equality before the law or the
equal protection of the laws". Article 16(1) issues a positive command
that "there shall be equality of opportunity for all citizens in the
matters relating to employment or appointment to any office under the
State". It has been held repeatedly by this Court that sub-clause (1) of
Article 16 is a facet of Article 14 and that it takes its roots from
Article 14. The said sub- clause particularizes the generality in
Article 14 and identifies, in a constitutional sense "equality
opportunity" in matters of employment and appointment to any office
under the State. The word 'employment' being wider, there is no dispute
that it takes within its fold, the aspect of promotions to posts above
the stage of initial level of recruitment.
79.
Regarding the legal proposition as pointed out by the learned Advocate
General, there is no controversy raised by any of the counsel before
this court. The law is well settled that Articles 14 and 16(1) are
closely connected and that Article 16(1) is a facet of Article 14. It is
also too well settled that there is no compartmentalisation of a
particular right under a particular Article in Part-III of The
Constitution of India. In other words, the theory of exclusivity which
was propounded in A.K.Goplan v. The State of Madras, AIR 1950 SC 27 was
overruled in R.C.Cooper v. Union of India, AIR 1970 SC 564. Therefore,
challenge to any particular provision of a law can be made either on the
touch-stone of Article 14 or on the touch-stone of Article 16(1) or on
both. Apart from the grounds upon which such challenge is made as
against Article 14, on some different grounds or additional grounds,
there can be a challenge as against Article 16(1) of the Constitution
also. But, in the instant cases, the said debate is not required
inasmuch as I have already concluded that the impugned Government Order
prescribing the particular method of gradation of marks violates Article
14 and, therefore, I have no difficulty in holding that it violates
Article 16 also.
80.1. The learned Advocate General
would nextly rely on a judgement of a Division Bench of the Delhi High
Court in Independent Schools Federation of India v. Central Board of
Secondary Education and another [LPA No.563 of 2011 dated 11.08.2011].
That was a case where challenge was made to a circular issued by the
CBSE introducing examination reforms thereby directing the schools to
follow Grading as per continuous and comprehensive evaluation system.
The learned single Judge, before whom the writ petition came up, held
the view that an expert body like CBSE had taken the decision by
consulting all stake holders and such policy decision could not be
interfered with on the ground that a better, fairer or wider alternative
policy is available. When that was challenged before the Division
Bench, the division Bench went into the object of introducing the
grading system. In para 9, the Division Bench has elaborately held as to
how, the gradation would be helpful to the learners and parents who are
the primary stakeholders of school education. It was stated by the CBSE
before the Division Bench as follows:-
a) It will
reduce stress and anxiety which often builds up during and after the
examination which could have an adverse impact on young students
especially in the age group of 13-15 years.
b) It will reduce the dropout rate as there will be less fear and anxiety related to performance.
c)
In the past there was practice to often finish the entire syllabus much
before time and follow it up with Pre-Board(s) and study leave.
80.2.
The Division Bench has found that primary function of Grading is to
communicate effectively to a variety of stakeholders the degree of
achievement of an individual student. The grading of student would also
take away the frightening judgmental quality of marks obtained in a test
leading to a stress free and joyful learning environment in the school.
This will also enable maintaining a meaningful continuity in the
assessment pattern from the primary level to the secondary level and
also in ensuring a basic uniformity in the schools.
80.3. The Division Bench has further found out the following advantages of the said system:-
It will minimize misclassification of students on the basis of marks.
It will determine unhealthy cut-throat competition among high achievers.
It will reduce societal pressure and will provide the learner with more flexibility.
It
will lead to a focus on a better learning environment. Having
considered the above aspects, more particularly, the advantages of the
system, in para 12, the Division Bench has held as follows:-
12.
Thus scrutinized, it is evident that the CBSE has kept in view the
interest of the young students and taken a policy decision to introduce a
different evaluation system. What is urged before us is that such a
system is arbitrary, unreasonable and irrational as it corrodes the
marrows of education by annulling the earlier system which provided for
competing in the board examination and obtaining marks. 80.4 In para
13, the Division Bench of the Delhi High Court has ultimately held as
follows:-
13. Though the learned counsel for the
appellant would criticize such norms on certain grounds which we have
indicated hereinbefore yet this Court is not an expert to judge the
decision of the CBSE that has been arrived at after undertaking detailed
exercises. It is a policy decision and that too a policy decision
relating to the field of education. One may not be in a position to
accept the same. To some, it may look like abolition of competition and
to others it may look simplistic. There may be a few who may feel that
in the name of change, a cosmetic approach has been done and it could
have been better. But, a significant one rider and limitation, the role
of the Court in exercise of judicial review is limited. In the
University of Mysore and another. v. C.D. Govinda Rao & another, AIR
1965 SC 491, it has been held that Courts should be slow to interfere
with the opinions expressed by the experts and the same should be left
to the decision of the experts who are more acquainted and familiar with
the problems.
81. A cursory perusal of the above
judgement would go to show that having regard to the nature of the
scheme, more particularly, as to how the scheme will be helpful to the
student community and the other stakeholders and as to how it will be
advantageous for various stakeholders and as to how it will not cause
any infringement to equality, the Division Bench held that the above
methodology of grading the students will not be violative of Article 14
of the Constitution of India.
82. Though the learned
Advocate General made heavy reliance on the said judgement, to
substantiate his contention that gradation will not be violative of
Article 14 of the Constitution of India, it cannot be in a mechanical
fashion applied to all grading systems. Before the Division Bench of the
Delhi High Court, there were so many justifying or reasonable grounds
upon which it concluded that there was no violation of Article 14 of the
Constitution. But , in the instant cases, as I have already pointed
out, the grading method adopted has got no scientific background. It has
got no object to be achieved. It creates lot of anomalies. For these
reasons, I have to hold that the grading system adopted in the impugned
Government Order is surely violative of Article 14 and Article 16 (1) of
the Constitution of India.
83. In Sanjay Singh's case, cited supra, in para 34, the Hon'ble Supreme Court has held as follows:-
34.
When selections are made on the basis of the marks awarded, and the
inter se ranking depends on the marks awarded, treating unequals
equally, or giving huge marks to candidates who have secured zero marks
in some subjects make the process wholly irrational, virtually bordering
on arbitrariness. It is no doubt true that such irrationality may
adversely affect only those cases which are at either end of the
spectrum, and if they are excluded, by and large the scaling system may
be functional. But if the extreme cases are even 20 out of 5000 for each
of the subjects, it becomes 100 for 5 subjects, which means that the
results of as many as 100 are likely to be affected. It may be more
also. In that process, at least 5% to 10% of the vacancies are likely to
be filled up by less meritorious candidates. This will lead to
considerable heart-burn and dissatisfaction. When the object of the
selection process is to try to select the best, and even one mark may
make the difference between selection or non-selection, the system of
scaling which has the effect of either reducing or increasing the marks
in an arbitrary manner will lead to unjust results. This is in addition
to the main disadvantage that scaling does not remedy the ill-effects of
examiner variability arising out of strictness or liberality in
valuation. [Emphasis supplied]
84. In the light of the
above observations of the Hon'ble Supreme Court, if we examine the
cases on hand, it is crystal clear that every single mark obtained by a
candidate makes a lot of difference between selection and non-selection.
Therefore, any system that may be adopted for awarding of weightage
marks as per the proportion mentioned in the Government Order should be a
real test to examine the inter se merits of the candidates. Let us now
make an attempt as to whether any other reasonable system could be
evolved.
85. The Government has taken a policy decision
to make selection on the basis of weightage marks to be awarded for
academic qualifications and the TET. This is not under challenge. For
Graduate Assistants, the total weightage marks shall be 100 which shall
be distributed as 10 marks for Higher Secondary Exam, 15 marks for basic
Degree Exam, 15 marks for B.Ed., Exam and 60 marks for TET. In other
words, the marks obtained in academic qualifying examinations and TET
are not given equal weightage marks. This is also not challenged. The
distribution of weightage marks is in the proportion of 10:15:15:60
respectively for Higher Secondary, Degree, B.Ed., and TET. While
evolving any system of grading to convert the raw marks into the graded
marks, the above proportion should be strictly adhered to. Let me now
illustrate as to how by adopting the following system, the proportion
could be adhered to without causing any harm to the inter se merits of
the candidates.
Illustration (1) :- [For Graduate
Assistant] 86.1. Let us assume that a candidate has secured 1020 marks
in Higher Secondary Examination out of 1200. It is equivalent to 85%.
Similarly, he has secured 80% in Degree Examination; 75% in B.Ed.,
Examination; and 70% in TET Examination. As per the computation of marks
for Graduate Assistant in terms of the Government Order, 10 marks is
awarded to Higher Secondary Examination, 15 is awarded to Degree
Examination, 15 is awarded to B.Ed., Examination and 60 is awarded to
TET Examination. This would go to show that more weightage mark is given
to TET. This ratio namely 10:15:15:60 for Higher Secondary, Degree,
B.Ed., and TET respectively should be adhered to while awarding
weightage marks. This proportion can be maintained in the following
manner, i.e., the percentage of marks secured can be further reduced to
the above proportion. For example, in the illustration above,
(a) for 85% of marks secured in Higher Secondary Examination, weightage marks shall be as follows:-
85 X 10 w 100 = 8.50
(b) For 80% of marks secured in Degree Examination, the weightage marks shall be as follows:
80 X 15 w 100 = 12.00
(c) For 75% of marks secured in B.Ed., Examination the weightage marks shall be as follows:
75 X 15 w 100 = 11.25
(d) For 70% of marks secured in TET Examination, the weightage marks shall be as follows:
70
X 60 w 100 = 42.00 Total weightage marks = 73.75 86.2 In this method,
for every one percentage of mark in Higher Secondary, the weightage mark
is 0.10, for every one percentage of mark in Degree, the weightage mark
is 0.15, for every one percentage of mark in B.Ed., the weightage mark
is 0.15 and for every one percentage of mark in TET, the weightage mark
is 0.60.
Illustration (2) :- [For Secondary Grade Teachers] 87.1. Let us assume that a candidate has secured the following marks:-
Higher Secondary Exam :
85% D.T.Ed.,/D.E.Ed., Exam :
80% TET :
75% 87.2. As per G.O.Ms.No.252, the weightage marks to be awarded are as follows:-
Higher Secondary Exam :
D.T.Ed.,/D.E.Ed., Exam :
TET :
Total
Thus, the ratio is 15:25:60 87.3. Applying the said ratio, for 85% of
marks in Higher Secondary Examination, the weightage mark shall be 85 X
15 w 100 = 12.75 For 80% of marks in D.T.Ed., / D.E.Ed., Examination the
weightage mark shall be 80 X 25 w 100 = 20.00 For 70% of marks in TET
Examination, the weightage mark shall be 70 X 60 w 100 = 42.00 Thus the
total weightage mark is 74.75 87.4. In this method, for every one
percentage of mark in Higher Secondary, the weightage mark is 0.15, for
every one percentage of mark in D.T.Ed.,/D.E.Ed., the weightage mark is
0.25 and for every percentage of mark in TET, the weightage mark is
0.60.
87.5. If this method is adopted, in my considered
opinion, there will be no anomaly or inconsistency or discrimination.
In my opinion, this method clearly distributes the appropriate weightage
marks as per the ratio. This method is scientific, flawless and
reasonable. This is only a suggestion from this court and it is for the
Government of Tamil Nadu to consider the same as to whether this method
can be followed or any other better method can be followed. At any rate,
it is made clear that the present grading system is highly arbitrary
and discriminatory and, therefore, the same cannot be the basis for
selection.
88. The learned Advocate General , finally,
contended that it is the policy decision of the Government, into which,
this court cannot interfere with. In this regard , I may refer to the
judgements of the Hon'ble Supreme Court in State of U.P.V. Renusagar
Power Co., Ltd, 1988 (4) SCC 59, Tata Iron & Steel Co. Ltd. v. Union
of India, 1996 (9) SCC 709, Federation of Railway Officers' Association
v. Union of India, 2003 (4) SCC 289). Before the Hon'ble Supreme Court
in Sanjay Singh's case cited supra, the above judgements were quoted and
argument was advanced that the courts should not interfere with the
matters affecting policy requiring technical expertise and the Courts
should leave them for decision of experts. In para 39 of the said
judgement, the Hon'ble Supreme Court while rejecting the said
contention, has held as follows:-
39. Learned counsel
for the Commission also referred to several decisions in support of its
contention that courts will be slow to interfere with matters affecting
policy requiring technical expertise and leave them for decision of
experts (State of U.P. v. Renusagar Power Co. Ltd., 1988 (4) SCC 59,Tata
Iron & Steel Co. Ltd. v. Union of India 1996 (9) SCC 709,
Federation of Railway Officers Association v. Union of India 2003 (4)
SCC 289). There can be no doubt about the said principle. But manifest
arbitrariness and irrationality is an exception to the said principle.
Therefore, the said decisions are of no avail.
89. In
the cases on hand, as I have already concluded, the grading system
prescribed under the impugned Government Order is manifestly
discriminatory, irrational and arbitrary which can be found out even
without the help of any expert. Therefore, it is the constitutional
obligation of this court to set aside the same instead of leaving the
same to perpetuate. It is not as though a policy decision of the
Government cannot be subjected to judicial review at all. If it is found
that the policy decision of the Government violates any of the
fundamental rights guaranteed under the Constitution, the same can be
subjected to judicial review and interfered with in view of the mandate
of Article 13(2) of the Constitution of India.
90. In
W.P.Nos.7213, 7315, 7316, 7317, 7754, 7755, 7756 and 7757 of 2014 the
petitioners have challenged G.O.Ms.No.25 and G.O.Ms.No.29 and they have
also prayed for a direction for making selection as per G.O.Ms.No.252.
Since I have already held that G.O.Ms.No.25 is valid, to that extent,
the challenge made in these writ petitions has to fail. So far as
G.O.Ms.No.29 and G.O.Ms.No.252 are concerned, since I have held that
gradation method adopted in these two Government Orders is
unconstitutional, the relief sought for by the petitioners for a
direction to award weightage mark as per G.O.Ms.No.252 cannot be
granted. As a result, these writ petitions are liable only to be
dismissed in toto.
91. I am conscious of the fact that
in this State, because of the poor performance of the candidates in the
TET Examinations and because of the welcome policy of the Government
that there shall be no compromise in the quality of teachers, the
Government is struggling to fill up the vacancies in the Government
Schools which mostly cater the needs of poor and middle class children.
Though the TRB conducted the TET Examinations in August 2013, it could
not complete the process of selection of candidates, because of various
legal tangles. Since the next academic year is fast approaching, I
wanted to relieve the TRB from all legal tangles as far as possible so
that the TRB could be free to go-ahead with the selection process and at
least at the beginning of the next academic year [2014-2015] the
vacancies will be filled up for the benefit of the children in the
Government Schools. That is the reason why, I have given much importance
to these cases relating to TRB and I have almost disposed of all the
cases which were pending on my board. I am sure that the disposal of the
instant batch of cases will make the TRB to go ahead with the selection
of candidates for the posts of Secondary Grade Teachers and Graduate
Assistants. Having regard to the urgency of the matter, I am hopeful
that the Government will either adopt the method which I have suggested
herein above or some other method which will have scientific rational
basis so as to enable the TRB to complete the process of selection.
92.
In the result, (1) (i) W.P.Nos.6648 and 10849 of 2014 relating to
challenge made to G.O.Ms.No.25, School Education (TRB) Department, dated
06.02.2014 are dismissed. No costs. Consequently connected MPs are
closed.
(ii) W.P.Nos.5591, 5680, 5842, 5843, 6361,
7626, 7859, 9008 and 10843 of 2014 wherein the petitioners have prayed
for giving retrospective operation of G.O.Ms.No.25, School Education
(TRB) Department, dated 06.02.2014 and G.O.Ms.No.29, School Education
(TRB) Department, dated 14.02.2014 to the TET Examinations held in the
year-2012 are dismissed. No costs. Consequently connected MPs are
closed.
(iii) W.P.Nos.2780, 2781, 2782, 4182, 4183,
4184, 5590, 5985, 7146, 7371, 7681, 8354 and 10850 relating to challenge
made to G.O.Ms.No.252, School Education (Q) Department, dated
05.10.2012 prescribing the method for awarding weightage marks for
selection of Secondary Grade Teachers and Graduate Assistants are all
allowed and G.O.Ms.No.252, School Education (Q) Department, dated
05.10.2012 and G.O.Ms.No.29, School Education (TRB) Department, dated
14.02.2014 shall stand set aside only in respect of grading method
prescribed for awarding weightage marks. No costs. Consequently
connected MPs are closed.
(iv) W.P.Nos. 7213, 7315,
7316, 7317, 7754, 7755, 7756 and 7757 of 2014 are dismissed. No costs.
Consequently connected MPs are closed.
(2). The
Government is directed to issue a Government Order expeditiously
prescribing any other scientific rational method for awarding weightage
marks for Higher Secondary, D.T.Ed.,/D.E.Ed.,/Degree/B.Ed.,/TET for
Secondary Grade Teachers / Graduate Assistants, as the case may be and
make selection accordingly.
(3) I am hopeful that the
Government will ensure that the selection process is completed and
vacancies are filled up at least at the beginning of next academic year.
kmk/kk To
1.The Secretary to Government, School Education (TRB) Department, Secretariat, Chennai 600 009.
2.The Chairman, Teachers Recruitment Board, Chennai 600 006.
3.The Member Secretary, Teachers Recruitment Board, Chennai 600 006.
4.The Director of School Education, Chennai 600 006.
5.The Director of Elementary Education, Chennai 600 006.