KVS (Recruitment of Primary/TGT Teachers ) Stay Matter , Re Start of Process with Main Examination
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 764/2012 6. OA 888/2012 11. OA 1137/2012
MA 629/2012 MA 735/2012 MA 1698/2012
MA 630/2012 MA 736/2012
MA 1696/2012 MA 1705/2012
OA 783/2012 7. OA 891/2012
MA 659/2012 MA 1695/2012
MA 1702/2012
OA 824/2012 8. OA 920/2012
MA 688/2012 MA 772/2012
MA 1703/2012 MA 1699/2012
OA 866/2012 9 OA 976/2012
MA 1704/2012 MA 1697/2012
5. OA 985/2012 10. OA 990/2012
MA 1701/2012 MA 1700/2012
New Delhi this the 25th day of July, 2012
Hon ble Mr. G.George Paracken, Member (J)
Hon ble Mr. Sudhir Kumar, Member (A)
OA No.764/2012
1. Shri Ravi Rai
S/o Shri Vinay Shanker Rai
R/o V-1-49-B, Budh Vihar Phase-I
Delhi.
2. Shri Lokesh Chaudhary
S/o Shri Surender Singh
R/o D-5, Ganesh Puri
Shalimar Garden, Sahibabad
Ghaziabad, U.P.
3. Ms. Bharti
D/o Shri Rajendra Prasad Sharma
R/o C-48, Budh Vihar, Tajpur Pahari
Badarpur, New Delhi.
4. Ms. Kanchan Sharma
D/o Shri Ravi Dutt Sharma
R/o 3444, Gali No.77,
Block E-2, Molar Band Extension,
Badarpur, New Delhi.
5. Ms. Rinku
W/o Shri Devender Singh
R/o H.No.608, Near Primary School
Khera Khurd, Narela,
Delhi.
6. Ms. Monika Yadav
W/o Shri Sanjeev Yadav
R/o H.No.115, Naharpur
Sector-7, Rohini, New Delhi.
7. Ms. Neerja
W/o Shri Nitin Sharma
R/o A-15, Rahuvir Enclave,
Najafgarh, Delhi . Applicants
Versus
1. Commissioner
Kendriya Vidyalaya Sangathan
18, Institutional Area,
Shaheed Jeet Singh Marg
New Delhi 110 016.
2. Joint Commissioner
Kendriya Vidyalaya Sangathan
18, Institutional Area
Shaheed Jeet Singh Marg,
New Delhi 110 016. . Respondents
OA No.783/2012
1. Devesh Nidhi Sharma
S/o Sh. Vinod Sharma
R/o 2/C Gali No.1 F-Block
Molarband Ext. Badarpur,
New Delhi-44.
2. Kavita Chaudhary,
D/o U.S. Chaudhary,
R/o H.No.133-A, Near Post Office
Garhi Pana, V&PO Bakhatawarpur
Delhi-36. -Applicants
Versus
1. Kendriya Vidyalaya Sangathan,
Through its Commissioner,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016. -Respondents.
OA No.824/2012
1. Smt. Ragini Sharma,
W/oKamal Arora Mohalla,
R/o Chanduwara Near Happy Novel Store,
Narnaul, Distt. M/Garg
Haryana.
2. Ms. Munni Yadav,
D/o Shri Chhail Singh Yadav,
R/o Gangariya Hospital, Near Petrol Pump,
Singhana Road, Narnaul,
Haryana.
3. Shri Rahul Kumar,
S/o Shri Rameshwar Singh,
R/o C-78-A, Gali No.8, Jyoti Colony,
Durgapuri Chowk, Shahdara,
Delhi.
4. Ms. Megha Gupta,
D/o Shri Umesh Gupta,
R/o 337-B, Hari Nagar, Ashram,
New Delhi.
5. Mrs. Babita Devi,
W/o Shri Anil Kumar,
R/o RZ P-3/II, New Roshanpura Extension,
Najafgarh,
New Delhi-110043.
6. Ms. Jyoti,
D/o Shri Santram,
R/o VPO Kanjhawala,
Delhi.
7. Ms. Priya Sehrawat,
D/o Shri Jagbir Singh,
R/o Village Tilanpur Kotla,
PO Najafgarh,
New Delhi.
Applicants.
Versus
1. Kendriya Vidyalaya Sangathan,
Through its Commissioner,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016
2. Joint Commissioner (Admn.),
Kendriya Vidyalaya Sangathan,
18, Institutional Area,
Shaheed Jeet Singh marg,
New Delhi.
Respondents.
OA No.866/2012
1. Ms. Sonia,
W/o Shri Amit Kumar,
R/o H.No.36, Madangir Village,
New Delhi-62.
Applicant
Versus
1. Kendriya Vidyalaya Sangathan,
Through its Commissioner,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016
Respondents.
OA No.985/2012
1. Vivek Kumar Sharma
S/o Shri Sita Ram Sharma
R/o Village Binderwara,
Post-Sikandra, The-Sikral,
District-Dausa, Rajasthan. -Applicant
Versus
1. Kendriya Vidyalaya Sangathan,
Through its Commissioner,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016
2. Joint Commissioner (Admn.),
Kendriya Vidyalaya Sangathan,
18, Institutional Area,
Shaheed Jeet Singh marg,
New Delhi-110016.
Respondents.
OA No.888/2012
1. Mrs. Shweta Saxena,
W/o Shri Nitin Saxena,
R/o C-1189, GF, IFFCO Colony,
Sector-17B, Gurgaon,
Haryana.
2. Mrs. Richa Saxena,
W/o Shri Rakesh Shrivastava,
R/o C-18, Shubham Enclave,
Paschim Vihar,
New Delhi-63.
3. Shri Manoj Kumar,
S/o Shri Bhimpal,
R/o B-2/121, Sultanpuri,
Delhi.
4. Mrs. Sonia Devi,
d/o Shri Jaswant Singh,
R/o 125, Village Nayabans,
PO Khera Kalan,
Delhi.
Applicants.
Versus
1. Kendriya Vidyalaya Sangathan,
Through its Commissioner,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016
2. Joint Commissioner (Admn.),
Kendriya Vidyalaya Sangathan,
18, Institutional Area,
Shaheed Jeet Singh marg,
New Delhi.
Respondents.
OA NO.891/2012
Ajay Agarwal
S/o Shri Lal Chand Agarwal
Resident of
C/o Sh. Parveen Agarwal, 34,
Shastri Nagar, Dayal Bagh,
Ambala Cantt-133001. -Applicant
Versus
The Commissioner,
Kendriya Vidyalaya Sangathan,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016. -Respondent
OA No.920/2012
1. Sujata
D/o Sh.Sukhbir Singh
Aged 24 years
Resident of H.No.106,
Village and PO Kanjhawala
Delhi 110 081
2. Ms. Amita Mathur
D/o Shri Harish Kumar
Aged 22 years
Resident of H. No.1;
Village and PO Karala
Delhi 110 081
3. Ms. Dimpy
D/o Shri Tika Ram
Aged 26 years
Resident of H.No.32A;
Village and PO Mitraon
Najafgarh
Delhi 110 043. .. Applicants
Versus
1. The Commissioner
Kendriya Vidyalaya Sangathan
18, Institutional Area
Shaheed Jeet Singh Marg
New Delhi 110 016. .. Respondents
OA No.976/2012
Smt. Sunita Sharma
W/o Shri Inder Pal
R/o C-5/201
Sector-6, Rohini,
Delhi-110085. -Applicant
Versus
1. Kendriya Vidyalaya Sangathan,
(An autonomous body under the Ministry of
Human Resource Development),
Through its Chairman having its office at:
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110016
2. Secretary,
Ministry of Human Resource Development
Government of India,
Shastri Bhawan, New Delhi. -Respondents
OA No.990/2012
Taruna Yadav
W/o Sh. Karan Yadav
R/o 70 A DDA LIG Flats
Mayakunj Mayapuri, New Delhi-110064. -Applicant
Versus
1. Union of India
Through Secretary, Ministry of HRD
Shastri Bhawan, New Delhi.
2. Kendriya Vidyalaya Sangathan,
Joint Commissioner (Admn.),
18, Shaheed Jeet Singh Marg,
Institutional Area, New Delhi.
Respondents.
OA No.1137/2012
Raghwendra Kumar Dwevedi,
S/o Shri Nath Dwevedi,
R/o BSF Camp, Chhawla,
New Delhi-110073. -Applicant
Versus
1. Union of India
Through Secretary, Ministry of HRD
Shastri Bhawan, New Delhi.
2. Kendriya Vidyalaya Sangathan,
Through its Commissioner,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110062.
3. The Member Secretary,
Kendriya Vidyalaya Sangathan,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110062.
4. The Joint Commissioner (Admn.),
Kendriya Vidyalaya Sangathan,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi-110062. -Respondents
(By Advocate: Shri Pawanjit S. Bindra, for applicants in
OAs No.-985/12,764/12, 824/12, 866/12, 888/12.
Shri Rambir Yadav, for applicant in OA No.783/12.
Shri M.S. Ramalingam with Sh. C. Bheemenna, for
Applicants in OAs No.891/12 & 920/12.
Shri K.G. Gopal Krishnan & Sh. Shyam Moorjani, for
Applicant in OA No.976/12.
Shri Suresh Kr. Sharma, for applicant in OA
No.990/12.
Shri Shashi Shankar, for applicant in OA No.1137/12.
Shri S. Rajappa, for respondents in all the OAs).
O R D E R (Oral)
Mr. Sudhir Kumar, Member (A)
All these 11 cases have been listed above in the sequence of the dates of their filing. They were listed together and came to be heard together and were allowed together on 25.07.2012 with the stipulation that detailed order will follow. Hence they are being disposed of with this detailed order. For the sake of convenience, the sequentially first case in OA No.764/2012 can be taken up for discussion regarding facts. The prayers being more or less similar in all these 11 OAs, they can be illustrated by reproducing the prayers at clause 8 of the above O.A. No.764/2014 as follows:
(a) Set aside notice issued by the respondent in as much as it directs that the respondent would be conducting interview for the post of tgts (eng. hindi, sanskrit, maths, science and social studies) and PRT s for the year 2011-12 from 12.03.12 to 26.03.12 of candidates short listed for interview on the basis of marks obtained by them in CTET held on 26.06.11 and conducted by CBSE and for further directions to the respondent to appoint candidates to the post of TGT and PRT as stated above on the basis of advertisement issued inviting applications for the said posts i.e. on the basis of preliminary examination and main examination followed by the interview. Allow the original application and direct that the Respondent would be conducting interview for the post of TGTs (Eng., Hindi, Sanskrit, Maths, Science and Social Studies) and PRT s for the year 2011-12 from 12.03.12 to 26.03.12 and the candidates have been short listed for interview on the basis of marks obtained by them in CTET held on 26.06.11 conducted by CBSE and direction directing the Respondent to appoint candidates to the post of TGT and PRT as stated above on the basis of advertisement issued inviting applications for the said posts i.e. on the basis of preliminary examination and main examination followed by the interview conducted by the respondent.
2. There are also Miscellaneous Applications filed in each of these OAs, for many applicants joining together as parties is an O.A., and all the M.A.s for joining together are allowed.
3. The applicants in these 11 OAs are aggrieved by a notice issued by the Kendriya Vidyalaya Sangathan (KVS, in short), fixing different cut off marks obtained in the Central Teachers Eligibility Test (CTET, in short) for selections to the posts of Trained Graduate Teachers (TGTs, in short) in different subjects (English Hindi, Sanskrit, Maths, Science and Social Studies) and Primary Teachers (PRTs, in short), stating as follows:-
Sl.
No. Name of Posts Cut-off marks fixed by KVS in C.T.E.T. category wise
1. TGTS Gen. OBC SC ST OH HH VH
ENG. 104 98 92 83 96 98 85
HINDI 98 95 89 89 88 93 90
SANSKRIT 93 90 85 83 - - 104
MATHS 101 93 87 86 99 - -
SCIENCE 104 100 91 82 94 - -
SOCIAL STUDIES 103 101 95 91 98 95 94
2. PRTs 104 98 92 82 94 82 85
4. The case of the applicants of these OAs is that the respondents could not have short-listed the candidates for the interview on the basis of the marks obtained in the CTET held on 26.06.2011, in violation of the advertisement issued by the respondent KVS notifying the recruitments for the posts of TGTs, PRTs and Miscellaneous Teaching Posts which had been published in the Employment News of the week 30.10.2010-5.11.2010. The details of the vacancies were given in the recruitment advertisement in a Tabular Form in respect of Post Code-31 (English), Post Cost-32 (Hindi), Post Code-33 (Social Studies), Post Code-34 (Science), Post Code-35 (Sanskrit), Post Code-36 (Maths), Post Code 51 (Librarian), Post Code-52 (Art Education), Post Code-53 (Work Experience), & Post Code-54 (Physical and Health Education), and that it gave the detailed break down of the total 559 vacancies in all the subjects, along with the prescription of the number of posts reserved for general category, SC,ST,OBC, Orthopedically Handicapped (OH, in short), Visually Handicapped (VH, in short) and Hearing Handicapped (HH, in short). The essential qualifications for the Post Codes 31 to 36 were prescribed as follows:-
Post Code Post/Subjects Subject(s) Qualification on code
31 TGT English English as an elective subject at Degree level 01
32 TGT Hindi Hindi as an elective subject at Degree level 02
33 TGT SST Any two of the following:
History, Geography, Economics and Political Science of which one must be either History or Geography. 03
34 TGT Science Chemistry, Botany and Zoology 04
35 TGT Sanskrit Sanskrit as an elective subject at Degree level 05
36 TGT - Maths Maths with any two of the following subjects: -
Physics/ Chemistry/ Electronics/ Computer Science/ Statistics 06
b) B.Ed. or equivalent Degree from a recognized University.
c) Proficiency in teaching in Hindi and English.
Desirable: Knowledge of Computer Applications.
(Emphasis supplied).
5. The essential qualifications in respect of the remaining Post Codes 51 to 54 are not being re-produced here for the sake of brevity, and also because no submissions were made by any applicants in regard to them. The essential qualifications prescribed in respect of Post Codes 41 (Primary Teacher) Post Code-55 and (Primary Teacher-Music) are also not being re-produced here, since no submissions were made in regard to them also.
6. The detailed advertisement gave the details of Age Relaxation (Para-5), Examination Fee and Mode of Payment (Para-6), Guidance regarding how to apply (Para-7), Mode of Selection and Scheme of Examination (Para-8), Schedule of Examination (Para-9), Examination Cities (Para-10) in which the Selection Examination was to be held, Reasons of Rejection (Para-11), and then the details regarding Last Date for Receipt of Applications (Para-12). No correspondence should be entertained into with the KVS (Para-13), and General Instructions regarding Examinations (Para-14), and the detailed format for application etc. was given thereafter. Out of this, apart from the essential qualifications for the Post Codes 31 to 36 re-produced above, it is essential to also re-produce below Para-8 of the said Advertisement, which stated as follows:-
8. MODE OF SELECTION AND SCHEME OF EXAMINATION
The mode of selection shall include a written examination test/interview as per the following scheme of the examination:
i.. Preliminary Examination: The test will be an objective type multiple choices of answers consisting of 150 questions for a duration of 3 hours and will carry 1 mark each, in 2 parts, as per details mentioned below:
Part 1: The Paper will consist of 110 Questions in the disciplines of General Knowledge, General Awareness, Current Affairs, General Science & Indian Constitution, Reasoning, Quantitative Aptitude and Teaching Aptitude etc. The medium of the question paper will be both English and Hindi
Part 2: The Paper will consist of 40 Questions (20 questions based on English language and 20 questions based on Hindi language) for evaluation of language competence of the candidates which will be of qualifying in nature. However, the candidate will be expected to obtain 05 marks in English & Hindi separately as well as minimum 13 marks in this paper as a whole in order to qualify the test.
Note:-For the evaluation purpose there shall be no negative marking.
ii. Main Examination : Based on the marks and merit rank secured by a candidate in Part-I of the Preliminary Examination, up to a cut off percentage as decided by KVS and those candidates who qualify in Part-2 will be called for the Main Examination. This will be of Descriptive Type Paper consisting of 120 marks for a duration of 3 hours. The medium of the question paper will be both English and Hindi (except Language papers i.e. English, Hindi)
This examination will consist of long, medium and short answer questions pertaining to subject/posts for which a candidate has applied. The questions may be recall type questions to test the conceptual understanding of the topics. A few questions on drawing interpretations from given raw data and some situational questions may also be asked to test the analytical ability and intelligence of the candidates
iii Interview Test : While processing the final result only those candidates will be included who have obtained a pre determined cut off percentage of marks in the Main Examination. Only those candidates will be called for the interview who has secured merit rank based on the performance (above cut off percentage).
The candidate will be interviewed by a Board who will have before them a record of his career. He will be asked questions on matters of general interest and on the subject pertaining to the post applied for. The object of the interview is to assess the personal suitability of the candidate for a career in teaching profession by a Board of competent and unbiased observers. The test is intended to judge the mental caliber and communication skill of a candidate.
Some of the qualities to be judged are mental alertness, critical powers of assimilation, clear and logical exposition, and balance of judgment, variety and depth of interest, leadership, intellectual and moral integrity.
The technique of the interview is not that of a strict cross-examination but of a natural, through directed and purposive conversation which is intended to reveal the mental qualities of the candidate.
The interview test is not intended to be a test either of the specialized or general knowledge of the candidates which has been already tested through their written papers. Candidates are expected to have taken an intelligent interest not only in their special subjects of academic study but also in the events which are happening around them both within and outside their own state or country as well as in modern currents of thought and in new discoveries which should arouse the curiosity of well educated youth/informed citizen.
The final merit will be based on the combined performance in the written test and interview and the weightage shall be 80:20 respectively. However, the weighted evaluation scheme in respect of misc. category of teachers such as Music teacher shall be: Written Test 50%; Performance Test 30%; and Interview 20%.
7. The applicants have pointed out that even before this Notification was issued by the KVS, the Parliament had enacted the Right of Children to Free and Compulsory Education Act, 2009, which had been given ascent to by the Hon ble President of India. Thereafter, through Gazette of India Notification filed as Annexure A-4 in OA No.920/2012, under the residuary Constitutional powers of Union of India for making Statutory Rules, S.O. No.750 (E) dated 31.03.2010 was Gazette notified. Through this S.O., in exercise of the powers conferred by Sub-Section-1 of Section-23 of the Right of Children to Free and Compulsory Education Act, 2009, the Central Government had authorized the National Council for Teachers Education (NCTE, in short) as the academic authority to lay down the minimum qualifications for a person to be eligible for appointment as a Teacher. Thereafter, through Gazette Notification dated 23.08.2010, produced as Annexure A-5, in OA No.920/2012, the NCTE had laid down the minimum qualifications for a person to be eligible for appointment as a Teacher in Classes I-VIII in a school, referred to in clause (n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009. It laid down the qualifications for Teachers for teaching Classes I-V separately, and for teaching Classes VI-VIII separately, as follows:-
1. Minimum Qualifications:-
(i) CLASSES I V
(a) Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Elementary Education (by whatever name known)
OR
Senior Secondary (or its equivalent) with at least 45% marks and 2 year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002.
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 Text (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 BA/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 Text (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.
2. Diploma/Degree Course in Teacher Education:- For the purposes of this Notification, a diploma/degree course in teacher education recognized by the National Council for Teacher Education (NCTE) only shall be considered. However, in case of Diploma in Education (Special Education) and B.Ed (Special Education), a course recognized by the Rehabilitation Council of India (RCI) only shall be considered.
3. Training to be undergone :- A person-
(a) with B.A/B.Sc with at least 50% marks and B.Ed qualification shall also be eligible for appointment for class I to V upto 1st January,2012, provided he undergoes, after appointment, an NCTE recognized 6 month special programme in Elementary Education.
(b) with D.Ed (Special Education) or B.Ed (Special Education) qualification shall undergo, after appointment, an NCTE recognized 6 month special programme in Elementary Education .
(Emphasis supplied)
8. Later on, these minimum qualifications were revised by the NCTE through a Gazette Notification issued 11 months later, on 29.07.2011, stating the minimum qualifications to be as follows:-
1. Minimum Qualifications :-
(i) Classes I V
(a) Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Elementary Education (by whatever name known)
OR
Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations, 2002.
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)
OR
Graduation and two year Diploma in Elementary (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) Sub-para (ii) of para 1 of the principal Notification shall be substituted, namely :
1 (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 Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.
(III) Para 3 of the principal Notification 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 recognized 6-month Special programme in Elementary Education ;
(b) with D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment an NCTE recognized 6-month Special programme in Elementary Education .
9. The whole purpose of the NCTE being appointed as the academic authority to lay down the minimum qualifications for a person to be eligible for appointment as a Teacher, and for allowing it to prescribe those qualifications, and to supervise the conduct of the CTET, through the Central Board of Secondary Education (CBSE, in short), was that the implementation of Right of Children to Free and Compulsory Education (RTE) Act, 2009, required the sudden and immediate recruitment of a large number of teachers across the country in a time bound manner, in unforeseen numbers, and still it was essential to ensure that the quality requirement for recruitment of teachers is not diluted at any cost. It was also necessary to ensure that the persons recruited as Teachers possessed the essential aptitude and ability to meet the challenges of teaching at the Primary (I-V classes) and Upper Primary (VI-VIII classes) levels. For the conduct of the CTET, the Rules filed at Annexure A-6 in OA No.920/2012 were notified, called as the Central Teacher Eligibility Test Rules, 2011 , for governing the test to be conducted on 26.06.2011.
10. The case of the applicants is that when the respondent KVS had issued its Advertisement for Recruitment for the posts of TGTs, PRTs and Miscellaneous Teaching Posts for the year 2011-12 through Annexure A-2, the Gazette Notification dated 23.08.2010 laying down the minimum qualifications for Teachers to teach primary classes I-V and Upper Primary Classes VI-VIII had already been Gazette notified, which the KVS was fully aware of. However, in their detailed 12 page Advertisement as published in the Employment News dated 30.10.2010, as cited and described above, and in particular in Para-8 Mode of Selection and Scheme of Examination , no reference whatsoever was made by the KVS to either NCTE or to the CTET, even though the Gazette Notification dated 23.08.2010 was already in place in this regard, before the issuance of the KVS Advertisement. When the respondent KVS woke up to this, through their letter dated 20.04.2011, after the Preliminary Examination/Screening Test held by the respondent KVS on 12.02.2011 had already been conducted as per Para-8 (i) cited above, the respondent KVS issued a similarly worded letter to all the candidates who had qualified in the Preliminary Screening Test Examination stating as follows:-
Dear Candidates,
With reference to your application for the post of TGT/Primary Teacher in the KVS, you are hereby informed that you have qualified the screening test held on 12th February, 2011. Now, as per the provisions of sub-section (i) of Section 23 of the RTE Act, the Govt. of India vide Notification dated 23rd August, 2010 has laid down the minimum qualification for a person to be eligible for appointment as a teacher to teach classes I to VII. According to the said Notification, for appointment as a teacher the candidate should pass the Central Teacher Eligibility Test (CTET), which will be conducted by appropriate Government in accordance with the guidelines framed by the National Council for Teacher Education (NCTE).
The Govt. of India has entrusted the responsibility of conducting the Central Teacher Eligibility Test(CTET) to the Central Board of Secondary Education (CBSE) which will be applicable to the KVS also.
You are, therefore, required to apply & qualify the Central Teacher Eligibility Test (CTET) scheduled to be held on 26th June, 2011 as per the terms and conditions of the Central Board of Secondary Education published in the Newspaper dated 08th April, 2011 to become eligible for the main examination being conducted by the KVS for the said post.
You are, further, advised to submit a copy of your marks sheet of CTET along with your Roll No. allotted to you for appearing in the Preliminary Examination and Post applied for to The Deputy Commissioner (Admn.), Kendriya Vidyalaya Sangathan, 18 Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016 by Registered/Speed Post within 15 days of the declaration of CTET result so that you may be considered for Main Examination .
(Emphasis in para-3 above supplied)
11. This letter had been issued by the respondent KVS after having deferred the conduct of the Main Examination, which had been already notified to be scheduled on 09.04.2011, as per Para-9 (b) of the Recruitment Notification. The case of the applicants is that as per the provisions of the RTE Act, 2009, the CTET to be conducted on 26.6.2011 was only a mandatory requirement as per the appropriate law, and the subordinate Legislation issued thereunder, and was to be considered only as a test of eligibility for appointment as a Teacher to teach Primary Classes (I-V) or Upper Primary Classes (VI-VIII), and could not have been considered as a replacement for the Main Examination already notified to be conducted by the respondent-KVS through Para-8 (ii) of their Recruitment Notification.
12. The further case of the applicants is that since the process of recruitment had already been set in motion by respondent KVS, by the conduct of the Preliminary Examination/Screening Test of 12.02.2011, thereafter the remaining process of conduct of the Main Examination, and the conduct of the Interview Test thereafter by the KVS, as per the Recruitment Notification already issued, could not have been dispensed with by the respondent-KVS. The applicants have no objection with the respondent-KVS having prescribed an additional statutory requirement of qualifying the CTET, which was conducted on 26.06.2011, and which apparently all the applicants have passed, as they accept it as an additional statutory requirement. However, they are aggrieved that while they have on their part shown their willingness to fulfil the additional statutory requirement of appearing at the CTET and qualifying the same, the respondents have changed the Rules of the game in between the process of selection in the Scheme of Examination as already notified and already set in motion, by cancelling the Main Examination scheduled to be conducted by them, and notifying through the impugned notice dated 28.02.2012 that the interviews will now be conducted by the KVS only on the basis of the marks obtained by the candidates in the CTET held on 26.06.2011, with arbitrary cut off marks being decided for TGTs in different subjects.
13. Heard the cases in detail. It was pointed out by the learned counsels for the applicants that under the CTET Rules, under Rule 5.1 dealing with Minimum Qualifications for teaching the Primary Classes (I-V), passing the CTET with 50% or 45% marks has been prescribed, along with relaxation of 5% qualifying marks for SC/ST and differently abled candidates, and similarly the minimum qualification for qualifying CTET to become a teacher for Upper Primary Classes (VI-VIII) is also only passing, with at least 50% or 45% of marks, as prescribed under Rule-5.2, with 5% relaxation in qualifying marks for SC/ST and differently abled candidates. It is the case of the applicants that there is no concept in the CTET Rules, 2011, for marks above 50% obtained by any candidate to be considered for any purposes whatsoever, as the only requirement for passing the CTET is appearing at the examination, and qualifying it with 50%/45% of marks as prescribed. Therefore, the submission of the applicants is that the respondent KVS was at fault in prescribing different cut off marks obtained on the basis of the CTET conducted by the CBSE for recruitment as TGTs for different subjects, which could not have been the basis for recruitment of teachers for KVS.
14. One very relevant point was mentioned by the learned counsel of OA-620/2012 while arguing the case that in the Scheme of CTET, Mathematics and Science Teachers have been combined in a single category for the conduct of the CTET Examination. It was pointed out that this is entirely in conflict with the essential qualifications as prescribed in Para-2(a) of the Recruitment Advertisement published by the respondent KVS, as per the Table reproduced in para-4/above, in which, for TGT Science posts the knowledge of subjects of Chemistry, Botany and Zoology is required, and for the posts of TGT-Maths, the essential qualification of Maths with any two of the given subjects-Physics/Chemistry/Electronics/Computer Science/Statistics, has been prescribed by the respondent KVS, which separation of Maths from Science has not been prescribed under CTET.
15. It was further pointed out that the structure and content of CTET, as notified, prescribes that the Paper-I of the Examination, for eligibility for teaching Primary Classes (I-V), will be that only 30 marks questions out of total 150 marks being prescribed in respect of Mathematics Teachers, and under Regulation 6.2 in respect of Paper-II, eligibility for teaching Upper Primary Classes (VI-VIII), only 60 marks questions for Mathematics and Science to be asked in the paper out of 150 marks. The learned counsel for the applicants had submitted that this can mean that even a person with very low marks in Mathematics, or even without Mathematics as his main subject, can become qualified to be a Mathematics Teacher for Primary Classes, or a Mathematics and Science Teacher for Upper Primary Classes, if passing/qualifying at the CTET is the only prescribed criteria for facing the Interviews, and then ultimately, the selection as TGTs in respondent-KVS.
16. It was further pointed out that on the other hand, the respondent KVS has always followed the system that a TGT (Maths) should have full proficiency in Mathematics, and that is why the required qualification for the Post Code-36 TGT (Maths), as re-produced in para-4/above, makes it compulsory for Maths being an elective subject at degree level with any two of the other given subjects. It was, therefore, contented by the learned counsel for the applicants of OA No.920/2012, that because of this discrepancy/lacuna, by no stretch of imagination can the CTET ever be a replacement test for recruitment of TGTs, as has been sought to be prescribed by the respondent KVS through their impugned Notification dated 28.02.2012. In fact, Para-8 of the CTET Rules prescribes that candidates securing 60% and above marks will be issued the CTET Certificate, and since the weightage of Mathematics in Paper-I is only 30 marks out of 150, and weightage for Mathematics and Science put together in Paper-II of CTET is only 60 marks out of 150, it is theoretically possible for a candidate to secure more than 60% marks on the basis of knowledge of other things and obtain a CTET Certificate, and then claim appointment to be a Mathematics Teacher or a Science Teacher with the respondent KVS, without adequate proficiency in Maths and/or Science, if the impugned Notification dated 28.02.2012 is not struck down in toto.
17. According to the applicants, the respondent KVS had actually tried to adopt a short cut. While marks above 60% in CTET do not hold any meaning, whatsoever, once the eligibility for issuance of CTET Certificate has been established, the impugned Notification dated 28.02.2012 went beyond that prescription, and as reproduced in the Table in Para-3/above, while retaining 60% marks in respect of Sanskrit Teachers, in OBC category and Hindi Teachers of Visually Handicapped category, for all the other categories, the respondent KVS had fixed arbitrary cut off marks of CTET to be the basis for conducting the interviews scheduled to be held from 12th March to 26th March 2012.
18. These 11 OAs were filed on various dates from 05.03.2012 onwards till 03.04.2012. When the first case OA-754/2012 was listed before the Bench for admission for the purpose of issuance of notices, a Coordinate Bench issued the following interim orders on 06.03.2012:-
We have heard learned counsel for the applicant.
The grievance of the applicants is that instead of following the recruitment process as stipulated in the advertisement, respondents are resorting to another mode thereby making appointment based upon the cut of marks obtaining on the basis of Central Teacher Eligibility Test, which was not permissible. We have given due consideration to the submissions made by the applicant. We are of the view that the applicants have made out prima facie case for the grant of interim stay. Accordingly, respondents are directed to permit the applicants to appear provisionally in the aforesaid interview commencing from 12th March 2012 to 26th March 2012, provisionally, till the next date of hearing. It is also made clear that the respondents shall not make any appointment based upon the aforesaid interview save and except with the prior approval of this Tribunal.
Issue notice to the respondents, returnable on 20.03.2012.
Issue DASTI .
(Emphasis supplied).
19. The interviews were thereafter still conducted by the respondents from 12th March to 26th March 2012, as scheduled, but it transpired during the arguments advanced by the learned counsel for the respondents that the applicants of all these OAs had refused to attend the interview, even though, according to the orders passed by the Coordinate Bench on 06.03.2012, cited above, they had been allowed to appear in the interview provisionally. Detailed arguments on behalf of the applicants clarified their standpoint, as has already described in detail above.
20. During the arguments, learned counsels for the applicants submitted that while the applicants could have been asked to appear at the CTET as a qualifying examination, but that the marks of the CTET could not have been used as a replacement for the marks of the Main Examination, which had already been notified to be conducted by the respondent KVS. In support of their contentions, learned counsels for the applicants had cited the case of Hemani Malhotra vs. High Court of Delhi (2008) 7 SCC 11 in which in Para-15, the Hon ble Apex Court has held as follows:-
15 There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal.
(Emphasis supplied).
21. Also, the Hon ble Apex Court had cited with approval the case of K. Manjusree v. State of A.P. (2008) 3 SCC 512: (2008) 1 SCC (L&S) 841, in Para-14 of the judgment, extracts of which judgment can be re-produced as follows:-
.We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview."
(Emphasis supplied).
22. The learned counsels had, therefore, tried to state that if any change in the selection criteria had to be given effect to, it had to be done before the commencement of the selection process, and adding any additional requirement, or prescribing any minimum marks, during the selection process or after the selection process has commenced is illegal, as the criteria for completion of selection process cannot be changed when the selection process has already started and proceeded on a notified basis. The learned counsels for the applicants also cited the paragraphs 24 to 28 of the judgment of the Hon ble High Court of Jharkhand in the case of Anjuman Taraqqi-e-Urdu Jharkhand & Ors. vs. The State of Jharkhand & Ors. with other connected cases in Writ Petition (S ) No.3099 of 2011 decided on 22.11.2011, which concerned the case of CTET itself. The Hon ble High Court has in Paragraphs 24 to 28 of its judgment stated as follows:-
24. The core question is that whether all the above could have been changed from the original process of selection and appointment started vide notification dated 26.03.2011? For this we take help from the judgement cited by the learned counsel for the State itself i.e., State of Bihar and Others Vs. Mithilesh Kumar reported in (2010) 13 SCC 467 wherein after considering various judgements of the Supreme Court, Hon'ble Supreme Court held that we all say in one voice that the norms and rules as existing on the dates when the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process. Learned counsel for the State submitted that this proposition has been clarified by the Hon'ble Supreme Court in this very judgment by making it clear that unless specifically the same (amendment in rules) were given retrospective effect. Here in this case, the clarification which has been relied upon by the learned counsel for the State has no application inasmuch as it has not been shown that any of the Rule has been made applicable retrospectively so as to make this selection process guided by any retrospectively operative Rules or retrospective amendment of the Rules. Rather say, the judgment only applies to the extent that the process of selection is required to be controlled and governed by the Rules which were existing at the time of start of selection process. We find support to our view from the judgement of the Hon'ble Supreme Court delivered in the case of Madan Mohan Sharma & Anr. Vs. State of Rajasthan & Ors. reported in (2008) 3 SCC 724. In the said case, after holding that the subsequent amendment of the rules which was prospective, cannot be made retrospective so as to make the selection on the basis of the rules which were subsequently amended, the Hon'ble Supreme Court held that, if this was to be done then the only course left open was to recall the advertisement and issue fresh advertisement according to the Rules which had come into force. In the case of Sonia Vs. Oriental Insurance Co. Ltd. & Ors. reported in (2007) 10 SCC 627 and in yet another judgment delivered in the case of N.T. Devin Katti & Ors. Vs. Karnataka Public Service Commission & Ors. reported in (1990) 3 SCC 157, it has been observed that where selection process has been initiated by issuing an advertisement inviting applications selection should normally be regulated by the Rule or Order then prevailing and also when advertisement expressly states that appointment shall be made in accordance with the existing Rule or Orders, subsequent amendment in the existing Rule or Order will not affect the pending selection process unless contrary intention is expressly or impliedly indicated. A similar view has been taken in the case of Hemani Malhotra Vs. High Court of Delhi reported in (2008) 7 SCC 11, in the case of Rakhi Ray & Ors. Vs. High Court of Delhi & Others reported in (2010) 2 SCC 637.
25. Not only this, the question papers have been changed, marking pattern has been changed, criteria for selection and requirement of obtaining minimum marks have also been changed, furthermore, a communication has been sent on 11.10.2011 by the Principal Secretary, Human Resources and Development Department of the State to Chair-person, Jharkhand Academic Council, conveying that the State Government has, by this decision, decided that the candidates selected in preliminary test shall be entitled to appointment and he will not have to face the main examination as notified in the original advertisement and required by Rules of 2002. Therefore, by this change, the preliminary test has been converted, not only into final test but created a right to appointment on the post. In this situation, the argument of learned counsel Sri R. Krishna that preliminary test or TET is not selection process for appointment cannot survive. At this juncture, it will be worthwhile to mention here that a person could have succeeded in preliminary examination if he would have obtained a lower marks i.e., 35% of 30% marks in the language subjects but without amending rules, all those who may have got these marks have been deprived to appear in the final examination as the persons who secured marks less than 60 % have been declared failed. Therefore, a stringent criteria has also been prescribed.
26. Learned counsel for the State submitted that the State has not yet taken any decision (though copy of the communication dated 11.10.2011 is on record) because, for taking such decision, the Rule will require to be amended and today the State is not in a position to give any appointment to successful candidates because the Rule has not been amended to dispense with the main examination. Then in fact, as per law existing today, the State has no right to give any appointment even to the candidates who have been declared successful in the examination because of the plain and simple reason that the successful candidates faced the examination only under the advertisement dated 26.03.2011, then they can be only successful candidates for preliminary and not for main examination but at the same time the examination were not in accordance with rules or as per the advertisement dt. 26.3.2011, therefore, the successful candidates cannot be declared successful candidates even for preliminary test for Teachers appointment. It appears that the State took the decisions time to time and thereafter, tried to become wise and issued various notices and advertisements which is apparent from the fact that in spite of having condition of TET for appointment on the post of teachers, the State proceeded to advertise huge number of vacancies running in about 18,000 and invited applications of 1,31,000 candidates from entire State. Then State became wise when it received the guidelines on 06.04.2011 and issued another notice instead of withdrawing the process of selection itself and tried to make the conditions of original appointment in consonance with the guidelines issued by the NCTE. At that time also, there was no decision that the candidates who will appear in this combined or common test for TET and for selection and appointment shall not have to go for main examination and then on 11.10.2011 it has been conveyed to the Jharkhand Academic Council that the State (without amending the Rules of 2002) has taken decision to give appointment to such selected candidates directly on the post without there being completion or having the main examination and now the State's stand is that such decision has not yet attained finality and not became the part of the Rule. Therefore, till today nobody knows how these selected candidates will be dealt with and these selected candidates are under illusion that they are about to get the appointment order whereas, the candidates who were declared successful were not successful candidates either under rules which are in existence today nor as per advertisement conditions.
27.In view of the above reasons, we found from the facts of the case that nothing survives in the advertisement dated 26.03.2011 in view of the subsequent acts and actions of the State Government except misleading the all candidates who appeared in the examination which is said to be 1,31,000 in numbers.
28. We tried to explore the possibility of saving the interest of the candidates who secured good marks in the examination but it is difficult in view of the fact that the examination itself was contrary to Rules. Process of selection which should be transparent, known to all and thereafter there must be a fair competition which, in the facts of the case, is totally missing and therefore, we have no option but to declare the entire process taken after the issuance of advertisement dated 26.03.2011, to be absolutely illegal, null and void .
(Emphasis supplied).
23. It was submitted that an SLP had also been filed before the Hon ble Apex Court in this case, but the same had been dismissed, and, therefore, this judgment had become final.
24. The crux of the matter lies in the testing of the level of competence of a person for the purposes of teaching, and as to with what level of competence, which level of classes he can be entrusted with to teach. The whole Scheme of CTET deals with the requirements of mass recruitment of Teachers for the purposes of the Right to Education Act, 2009, for teaching the Lower Primary Classes (I-V) and Upper Primary Classes (VI-VIII), mostly in the Rural schools. The level of papers set for Paper-I and/or Paper-II of the CTET can never compare with the higher level of competence and teaching abilities, and deeper knowledge of the concerned subjects, as has so far been required in the elite group of KV Schools, run by the respondent KVS. KV Schools have so far had the reputation of being better than even the Private schools and Convent schools in their level and standards of teaching, and maintenance of discipline. Therefore, the level of competence of the teaching community available in the KV Schools run by the respondent KVS cannot be allowed to be diluted by diluting the standards for selection of the Teachers.
25. The respondents may have taken the decision to adopt the marks of CTET in place of conducting the declared Main Examination, which had been proposed to be held by them, not only in order to save them time and costs, but that was only an after thought. As is quite apparent from the highlighted portion Para-3 of the letter dated 20.04.2011 issued by the respondent KVS, (reproduced in para-10/above), even upto that stage of April 2011, the intention of the respondent KVS was only to get the candidates before them to fulfill the statutory requirement of passing CTET, and for that they had to ask the candidates who had qualified in the Preliminary Examination/Screening Test held on 12.02.2011 to also apply for, appear at, and qualify the CTET scheduled to be held by the CBSE on 26.11.2011, thereby becoming eligible for the Main Examination to be conducted subsequently by the KVS for the advertised posts. Therefore, it is obvious that even as on the date of 20.04.2011, there was no intention on the part of the respondent KVS to do away with the Main Examination, the conduct of which had been notified in the Recruitment Notification advertisement itself, at Para-8(ii), as re-produced in para-6/above. The direction to the candidates, who had already qualified at the Preliminary Examination/Screening Test held on 02.02.2011, to apply for, appear at, and qualify the CTET (i.e. with 60% marks as per Rule-8 of the CTET Rules, 2011), was only prescribed and felt necessary so that the statutory requirement of the Right to Education Act could be met by the Teachers selected for the respondent KVS also.
26. The respondents have not disclosed at any stage, neither in their reply written statement, nor in their oral submissions, as to why, and when, and how their stand changed after 20.04.2011, when through their letter issued on that date, they had only added a second tier of eligibility qualification of CTET being cleared by the candidates in between the Preliminary Examination and the Main Examination to be conducted by them for the purposes of selection of Teachers in response to the Recruitment Advertisement concerned.
27. While there is force in the submissions of the learned counsel for the applicants that the Rules for the Recruitment Notification cannot be changed once the process of recruitment has started, as per the law, as laid down by the Hon ble Apex Court in the case of - N.T. Bevin Katti & Ors. vs. Karnataka Public Service Commission & Ors, (1990) 3 SCC 157, they cannot also assail the issuance of the letter dated 20.04.2011, which was issued only for the concerned candidates to be able to fulfill a statutory requirement, because of a law freshly passed by the Parliament, and the Rules/Subordinate Legislation thereunder, notified after the process of recruitment had started, and was necessarily required to be fulfilled. Therefore, it is held that prescribing the requirement of qualifying CTET was not a deviation, which could be hit by the findings of the Hon ble Apex Court in the case of N.T. Bevin Katti & ors (supra). However, doing away with the Main Examination to be conducted by the KVS, as already notified through the Recruitment Advertisement, and straightaway going ahead to the Interview Test stage, only on the basis of the marks obtained by the candidates in an external examination of CTET conducted by an external body, CBSE, had resulted in a deviation from the notified Rules of Recruitment, which would be squarely hit by the Judgment of the Hon ble Apex Court in N.T. Bevin Katti (supra).
28. During the arguments, learned counsel for the respondents had also offered that the Respondent KVS was prepared to hold the Main Examination for the applicants of these OAs, or in the alternative, even do away with the requirement of the holding of the Main Examination for the applicants of these OAs also, and straightaway go to the stage of the conduct of fresh interviews for the applicants of these 11 OAs. He further made a submission that if the applicants of these OAs had an apprehension that such a fresh interview now would only be a sham, and they would all be disqualified in such a sham interview, the respondent KVS was prepared to concede before this Tribunal to even order an outside agency to conduct the interviews for the applicants of these 11 OAs, the results of which interviews would be acceptable to the respondent KVS. However, learned counsels for the applicants of these 11 OAs pointed out that this exercise was meaningless, since as per the Scheme of the Recruitment Advertisement, 80% weightage has to be given to the marks obtained in the Main Examination, and only 20% weightage has to be given to the marks obtained in the interview. It was further submitted that the Hon ble Apex Court has held that there could be no selection by interview if disproportionate marks have been prescribed for the purposes of interview, and that the rest of the marks in any selection process have to be based on either a departmental examination, or any other process, and that the weightage for interview marks cannot be disproportionate in order to avoid any favouritism at the stage of interview.
29. It was also pointed out by the learned counsels for the applicants that if the offer or concession offered by the learned counsel for the respondent KVS during the arguments, of holding a Main Examination or a direct interview in respect of the present applicants by an outside body was accepted, it would result in two different sub sets of people being created, one sub set consisting of the persons/candidates already interviewed from 12th March to 26th March, 2012 on the basis of the cut off marks obtained by them in the CTET conducted by the CBSE, and the second sub-set consisting of the applicants in the present 11 OAs, to be selected on the basis of the marks obtained in the Main Examination or direct interview by outside agency, now offered to be conducted by the respondent KVS. It was submitted that equity would not be maintained in such a case, because the first sub-set of the persons already interviewed from 12th March to 26th March, 2012, could not, in any way, be equated with the second sub-set, consisting of the present applicants who were being offered a different route or mode of selection for the same recruitment, which was abhorrent to law.
30. Learned counsel for the respondents also submitted that the persons interviewed by the respondent KVS from 12th March to 26th March 2012 have not been made an opposite party respondent in any of these 11 OAs, and not even a few representatives from among them have been arrayed as opposite party respondents in any of the present OAs. In saying so, he relied upon the judgment of the Hon ble Delhi High Court in Rekha & Ors vs. Union of India and Ors. 137 (2007) DLT 299, which reads as under:-
8. This last argument advanced also does not impress us at all. Recruitment to public services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. Merely because in the past some deviation and departure was made in considering the B.Ed. candidates and we are told that was so done because of the paucity of TTC candidates, we cannot allow a patent illegality to continue. The recruitment authorities were well aware that candidates with qualification of TTC and B.Ed. are available yet they chose to restrict entry for appointment only to TTC-pass candidates. It is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. So far as B.Ed. qualification is concerned, in the connected appeals (CAs Nos. 1726-28 of 2001) arising from Kerala which are heard with this appeal, we have already taken the view that B.Ed. qualification cannot be treated as a qualification higher than TTC because the nature of the training imparted for grant of certificate and for degree is totally different and between them there is no parity whatsoever. It is projected before us that presently more candidates available for category. Whether for the aforesaid reasons, B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates for the present vacancies advertised as eligible. In our view, the Division Bench of the Delhi High Court was fully justified in coming to the conclusion that B.Ed. candidates were rightly excluded by the authorities from selection and appointment as primary teachers. We make it clear that we are not called upon to express any opinion on any B.Ed. candidates appointed as primary teachers pursuant to advertisements in the past and our decision is confined only to the advertisement which was under challenge before the High Court and in this appeal.
Thus, the respondent No. 2 was within its powers in prescribing B.Ed. as an educational qualification and the CAT has erred in quashing the advertisement.
b) The respondents No. 3 to 5 have admittedly participated in the selection process and after being unsuccessful have challenged the qualification and the selection process without impleading the successful candidates. Therefore, this petition is contrary to the law laid down by the Hon'ble Supreme Court in the case All India SC and ST Employees' Association v. A. Arthur Jeen and Ors. . The relevant portion of the said judgment reads as follows:
13. Although the candidates included in the panel showing their provisional selection do not get vested right to appointment, they will be surely interested in protecting and defending the select list. It is the admitted position that before the Tribunal the successful candidates whose names were included in the panel of selection were not made parties. The argument of the learned Counsel that since the names and particulars of the successful candidates included in the panel were not given, they could not be made parties, has no force. The applicants before the Tribunal could have made efforts to get the particulars; at least they ought to have imp leaded some of the successful candidates may be in a representative capacity; if the large number of candidates were there and if there was any difficulty in service of notices on them, they could have taken appropriate steps to serve them by any one of the modes permissible in law with the leave of the Tribunal. This Court in Prabodh Verma and Ors. v. State of Uttar Pradesh and Ors. has held that in writ petitions filed against the State questioning the validity of recruitment of a large number of persons in service could not be proceeded with to hear and take decision adverse to those affected persons without getting them or their representatives imp leaded as parties. In para 50 of the said judgment, summarizing the conclusions this Court in regard to impleading of respondents has stated that:
A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties.
14. This Court in para 4 of the judgment in A.M.S. Sushanth and Ors. v. M. Sujatha and Ors. has stated thus:
We find that none of the persons who were selected and whose appointments were set aside by the High Court had been imp leaded as a party-respondent. It appears that a public notice was given in a representative capacity only with regard to the appointment to the post of Assistant Sericulture Officer. The direction of the High Court, however, is not confined to that post alone and it is the appointments to he other posts also which have been set aside. This could not be done. The principles of natural justice demanded that any person who was going to be adversely affected by the order should have had an opportunity of being heard. That apart, one would have expected the High Court to have considered the report submitted under Section 65 on its merits and then decided whether the said report should be accepted or not.
c) The CAT has failed to appreciate that though under the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools), Regulations 2001, (hereinafter referred to as the 'Regulations') have been framed for recruitment of teachers it only prescribes the minimum academic and professional qualification. There is no bar under the Act or the Rules which prescribe any other qualification in addition to the minimum qualification prescribed in the regulation. In the advertisement, the candidates possessing B.Ed. were also made eligible for applying to the post of primary teacher. Therefore, the petitioners were entitled to apply and be considered to the said post .
(Emphasis supplied).
31. But it appears to us that this judgment of the Hon ble Delhi High Court does not assist the cause or the case of the respondent-KVS. It is imperative that they ought to have only a single policy to be followed for the recruitments planned to be made by them through the Recruitment Advertisement, and they cannot create two sub-sets of candidates for the same process of recruitment. After passing the first Preliminary Examination conducted by KVS, only a single class or set of Preliminary Examination qualified candidates had been created. The others as well as the applicants of these O.As had acquired as much right to appear at the Main Examination and the Interviews to be conducted by the KVS, equal to that of those who were allowed to appear at the Interviews held in March, 2012, in respect of some candidates, without holding the Main Examination already notified to be conducted by the KVS, before short-listing candidates for the Interviews. Therefore, in terms of the settled law in this regard, the present applicants not impleading those persons who were Interviewed by the KVS in March, 2012, cannot be held to be fatal to these O.As, as all of them belong to the single class or set of Preliminary Examination qualified candidates, with equal vested rights, if any, to appear at the Main Examination and the Interviews.
32. It is further clear from the Scheme of the two Examinations, the CTET as conducted by the NCTE, and the Main Examination as was notified to be conducted by the respondent-KVS before the start of the selection procession, that the two are not on all fours with each other. This aspect had been most forcefully brought out by the learned counsel appearing for the applicants for the posts of TGT (Maths), who had pointed out that in the Table as reproduced in para-4/above, for the Main Examination for recruitment for the posts of TGT (Science) required Chemistry, Botany and Zoology, and for the posts TGT (Maths) required Maths with any two of the subjects like Physics/Chemistry/Electronics/Computer Science/Statistics, while the CTET combines the selection for the Science and Mathematics Teachers to be together. Therefore, passing of CTET can at best be termed to be a minimum qualification or a condition precedent, but not the sufficient qualification, and the respondents cannot be allowed to base their judgment regarding the selection of Teachers by downgrading the Educational standards from what was prescribed at the beginning of the selection process. Therefore, it is held that CTET could not have been and cannot be a substitute of the Main Examination already notified to be held as per Rule-8 (ii) of the Recruitment Advertisement.
33. In the result, the interviews held from 12.03.2012 to 26.03.2012 by the respondent-KVS, only on the basis of the marks obtained by the candidates of the CTET, cannot be held to have been conducted within the notified Scheme as per the Recruitment Advertisement-cum-vacancy notification issued by the respondents at the beginning of the selection process in the Employment News of the week 30.10.2010 to 05.11.2010. An examination which prescribes 60% or 50% etc. as the passing marks, but does not give due weightage to any higher marks obtained by candidates above that, and it is stated to be and meant to be only as a qualifying examination for appointment of Primary Teachers and Upper Primary Teachers, cannot provide the sole criteria of marks for selection of Trained Graduate Teachers (TGTs) in the respondent-KVS.
34. Accordingly, all the OAs are allowed, and the interviews held in March, 2012 are declared to be illegal. The respondents are directed to re-start the process of selection, by conducting the already notified Main Examination, allowing all the candidates who had applied for the relevant posts against the Recruitment Advertisement-cum-vacancy notification, and had passed the Preliminary Examination/Screening-Test conducted by the Respondent-KVS on 10.02.2011, and have also thereafter passed and qualified at the statutorily prescribed CTET held on 26.06.2011. Only after the respective merit of the candidates is reflected through the marks obtained by them in the Main Examination conducted by the respondent-KVS, and fresh cut-off marks are determined for each Post-Code for calling the candidates for interviews, those interviews alone would be valid under the process of selection already initiated for being undertaken by the respondents. There shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken)
Member (A) Member (J)
Source : http://judis.nic.in/judis_cat/CaseNo_Cat_Qry.aspx (Case No. 764 / 2012 ,1 OA)
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Another judgement (TET related, where advertisement is changed in middle of selection ) -
http://o-tet.blogspot.in/2012/08/otet-hc-relief-for-aspiring-pmy-school.html
Cuttack, Aug 8 (PTI) Orissa High Court today directed the state to continue with the recruitment process of 'Sikhya Sahayaks' in primary schools as per an advertisement made in this effect in December last year. Justice Kumari Sanju Panda said the ongoing recruitment process will continue as per the December 2011 advertisement, where there was no mention of the Teachers Eligibility Test (TET).
