UPTET SARKARI NAUKRI News - ALLAHABAD HIGH COURT ORDER REGARDING 15TH,16TH AMEND, TET WTZ RELEASED-

UPTET SARKARI NAUKRI   News - ALLAHABAD HIGH COURT ORDER REGARDING 15TH,16TH AMEND, TET WTZ RELEASED- 


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HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Reserved On 24.11.2016
Delivered On 01.12.2016
Chief Justice's Court

Case :- SPECIAL APPEAL No. - 657 of 2015

Appellant :- Deepak Sharma
Respondent :- State Of U.P. & 15 Others
Counsel for Appellant :- Shailendra
Counsel for Respondent :- C.S.C.,Amit Saxena,Bhanu Pratap Singh

With

Case :- WRIT - C No. - 49667 of 2016

Petitioner :- Sanjay Kumar Ray And 6 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Vikas Goswami,Sanjay Kumar Ray
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav

With

Case :- WRIT - C No. - 41678 of 2016

Petitioner :- Anuj Kumar Srivastava And 41 Ors.
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav

With

Case :- SPECIAL APPEAL DEFECTIVE No. - 678 of 2015

Appellant :- Mohd. Shafiq And 4 Others
Respondent :- State Of U.P. And 6 Others
Counsel for Appellant :- Anoop Trivedi
Counsel for Respondent :- C.S.C.,K.C. Shukla

With

Case :- SPECIAL APPEAL DEFECTIVE No. - 680 of 2015

Appellant :- Ajay Prakash Singh And 3 Others
Respondent :- State Of U.P. And 15 Others
Counsel for Appellant :- D.P. Rajbhar,Y.K.Saxena
Counsel for Respondent :- C.S.C.,A.K. Yadav,Siddharth Khare

With

Case :- SPECIAL APPEAL DEFECTIVE No. - 414 of 2016

Appellant :- State Of U.P. And 3 Ors.
Respondent :- Shiv Kumar Pathak And 11 Ors.
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
Counsel for Respondent :- Siddharth Khare

With

Case :- SPECIAL APPEAL DEFECTIVE No. - 415 of 2016

Appellant :- State Of U.P. And 3 Ors.
Respondent :- Satya Prakash Singh And 4 Ors.
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh

With

Case :- SPECIAL APPEAL DEFECTIVE No. - 416 of 2016

Appellant :- State Of U.P. And 3 Ors.
Respondent :- Sankarshan Pandey
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
Counsel for Respondent :- Abhishek Srivastava

With

Case :- SPECIAL APPEAL DEFECTIVE No. - 417 of 2016
Appellant :- State Of U.P. And 4 Ors.
Respondent :- Bhagwati Prasad
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh

With

Case :- SPECIAL APPEAL DEFECTIVE No. - 418 of 2016

Appellant :- State Of U.P. And 3 Ors.
Respondent :- Umesh Kumar Singh And 4 Ors.
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
Counsel for Respondent :- Prabhakar Awasthi

With

Case :- SPECIAL APPEAL DEFECTIVE No. - 419 of 2016

Appellant :- State Of U.P. And 3 Ors.
Respondent :- Sarabjeet Verma And 3 Ors.
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh

With

Case :- SPECIAL APPEAL DEFECTIVE No. - 420 of 2016

Appellant :- State Of U.P. And 3 Ors.
Respondent :- Jayant Kumar Singh And Another
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh

With

Case :- SPECIAL APPEAL DEFECTIVE No. - 421 of 2016

Appellant :- State Of U.P. And 8 Ors.
Respondent :- Abhishek Kumar Mishra
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh
Counsel for Respondent :- Siddharth Khare

With

Case :- SPECIAL APPEAL DEFECTIVE No. - 422 of 2016

Appellant :- State Of U.P. And 3 Ors.
Respondent :- Amit Kumar
Counsel for Appellant :- Qamrul Hasan Siddiqui,Bhanu Pratap Singh

With

Case :- SPECIAL APPEAL No. - 722 of 2015

Appellant :- Anjali
Respondent :- State Of U.P. And 15 Others
Counsel for Appellant :- Pramod Kumar Singh,Chandra Jeet Yadav
Counsel for Respondent :- C.S.C.

With

Case :- WRIT - A No. - 23938 of 2016

Petitioner :- Pramod Kumar And 4 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Tarun Agrawal,Ravi Kant
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,Rijwan Ali Akhtar

With

Case :- WRIT - C No. - 54416 of 2015

Petitioner :- Sitaram & 6 Others
Respondent :- State Of U.P. 2 Others
Counsel for Petitioner :- Vibhu Rai,Anoop Trivedi
Counsel for Respondent :- C.S.C.,A.K. Yadav,Rajiv Joshi

With

Case :- WRIT - C No. - 59431 of 2015

Petitioner :- Shri Kant Dubey And 3 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Siddharth Khare
Counsel for Respondent :- C.S.C.,A.K. Yadav,Bhanu Pratap Singh

With

Case :- WRIT - C No. - 63258 of 2015

Petitioner :- Sanjeev Kumar And 3 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Shailesh Kumar Shukla
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav

With

Case :- WRIT - C No. - 3784 of 2016

Petitioner :- Sachin Malik And 51 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh
Counsel for Respondent :- C.S.C.

With

Case :- WRIT - C No. - 7810 of 2016

Petitioner :- Ajay Kumar Tiwari And 95 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Neeraj Tiwari,Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav

With

Case :- WRIT - C No. - 14027 of 2016

Petitioner :- Ankur Kumar And 347 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav

With

Case :- WRIT - C No. - 16322 of 2016

Petitioner :- Himanshu Rana And 41 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Anil Kumar Singh,Agnihotri Kumar Tripathi
Counsel for Respondent :- C.S.C.

With

Case :- WRIT - C No. - 16977 of 2016

Petitioner :- Arun Kumar Tripathi And 118 Ors.
Respondent :- State Of U.P. And 2 Ors.
Counsel for Petitioner :- Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav

With

Case :- WRIT - C No. - 39410 of 2016

Petitioner :- Om Narayan And 5 Others
Respondent :- State Of U.P. And Another
Counsel for Petitioner :- Anoop Trivedi,Vibhu Rai
Counsel for Respondent :- C.S.C.,Rijwan Ali Akhtar

With

Case :- WRIT - C No. - 36156 of 2016

Petitioner :- Rudresh Kumar Mishra And 82 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav

With

Case :- WRIT - C No. - 3063 of 2016

Petitioner :- Jogendra And 77 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Navin Kumar Sharma,Neeraj Tiwari
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav

With

Case :- WRIT - C No. - 53366 of 2016

Petitioner :- Sandeep Kumar Shukla And 62 Ors.
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Navin Kumar Sharma
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav

With

Case :- WRIT - C No. - 55774 of 2016

Petitioner :- Rishikesh Mishra And 3 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Akhilesh Tripathi,Santosh Kumar Gupta
Counsel for Respondent :- C.S.C.

Hon'ble Dilip B. Bhosale,Chief Justice
Hon'ble Yashwant Varma,J.

This batch emanates from a challenge laid to the U.P. Basic Education (Teachers) Service (16th Amendment) Rules, 20121. The aforesaid 16th Amendment Rules are liable to be read in the context of the U.P. Basic Education (Teachers) Service (15th Amendment) Rules, 20122 which came to be struck down by a Division Bench of this Court in Shiv Kumar Pathak Vs. State of U.P.3 Initially a challenge to the 16th Amendment Rules came to be raised before a learned Single Judge of the Court, who on 18 August 2015 proceeded to hold that since Rule 14(3) of the 15th Amendment Rules had already been struck down, the 16th Amendment Rules were rendered inoperative and could not be acted upon. Accordingly, the learned Single Judge allowed the challenge to the validity of the 16th Amendment Rules and directed the State respondents to prepare a fresh list of candidates in accordance with the provisions of Rule 14 of the U.P. Basic Education (Teachers) Service Rules, 19814 The special appeals emanate from this judgment of the learned Single Judge. One of the objections which was taken to the judgment of the learned Single Judge aforementioned is that he had no jurisdiction, in light of the orders then prevailing of Hon'ble the Chief Justice, to either entertain, consider or rule upon a challenge relating to the validity of a statutory enactment or Rules framed thereunder. It was therefore, contended that the judgment had been rendered without jurisdiction and was liable to fall on this short ground alone. Faced with the aforesaid objection, various independent writ petitions came to be preferred which were connected with the special appeals. These writ petitions laid an independent and renewed challenge to the 16th Amendment Rules. We further note that the State has also filed appeals against the judgment rendered by the learned Single Judge on 18 August, 2015. Apart from the said challenge, there are two petitions which stand tagged with this group namely Writ Petition No. 23938 of 2016 and Writ Petition No. 54416 of 2015 both of which challenge the validity of the Guidelines dated 11 February 2011 framed by the National Councill for Teacher Education5 in purported exercise of powers conferred by Section 23 of the Right of Children to Free and Compulsory Education Act, 20096. Before noticing the rival submissions which fall for consideration, it would be pertinent to briefly notice the background facts since the litigation itself has a history.
Primary schools in the State are administered and managed by the Board of Basic Education which stands constituted under the provisions of the U.P. Basic Education Act, 19727. A "basic school" under the 1972 Act is defined to mean a school where instructions are imparted from Class I to VIII. A "junior basic school" is defined to mean a school where instructions from Class I to V are imparted. For the purposes of appointment of teachers, the State Government in exercise of powers conferred by Section 19 of the 1972 Act has framed the 1981 Rules. Since we are concerned with the issue of appointment of Assistant Teachers, we may only note the relevant part of Rule 8 which prescribed the academic qualifications liable to be possessed by a person to be considered for appointment as an Assistant Teacher. The relevant part of Rule 8 as it originally stood is extracted herein below:
(ii) Assistant Master and Assistant Mistress of Junior Basic School
A Bachelor's Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto:
Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course."

Rule 14 set forth the procedure for determination of vacancies, preparation of a select list and the manner in which Assistant Teachers are liable to be selected and appointed. The said Rule as it stood prior to the amendments in question as well as the U.P. Basic Education (Teachers) Service (12th Amendment) Rules 20118, read as follows:
"14. Determination of vacancies and preparation of list-(1) In respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, dependants of freedom-fighters and other categories under Rule 9 and notify the vacancies to the Employment Exchange and in at least two news papers having adequate circulation in the State as well as in the concerned district inviting applications from candidates possessing prescribed training qualification from the district concerned.
(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement and the names of candidates received from the Employment Exchange and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment.
(3) The Regional Assistant Director of Education (Basic) may, on the application of a candidate, and for reasons to be recorded, direct that his name be included at the bottom of the list prepared under sub-rule (2).
(4) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have passed the said training course later and the candidates who have passed the training course in a particular years shall be arranged in accordance with the quality points specified in the appendix.
(5) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2).
(6) The list prepared under sub-rule (2) and arranged in accordance with sub-rule (4) shall be forwarded by the appointing authority to the Selection Committee." (emphasis supplied)
By the Constitution (Eighty Sixth Amendment) Act, 2002, Article 21A came to be inserted by providing for free and compulsory education to all children falling in the age group of six to fourteen years as a fundamental right in such manner as the States may by law determine. In order to give effect to this constitutional amendment, the Union Government enacted the 2009 Act. The Act was enforced w.e.f. 1 April 2010. The "appropriate Government" under the 2009 Act has been defined to mean the Union Government in relation to a school established, owned or controlled by it and in relation to all other schools, the State Governments or the Union territories within whose territorial area the school may be situate. "Elementary education" is defined therein to mean education from class I to VIII. Section 3 of the 2009 Act mirrors the constitutional guarantee enshrined in Article 21A by providing that every child of the age of six to fourteen years shall have the right to free and compulsory education in a neighbourhood school till the completion of his or her elementary education. The controversy which stands raised before us turns and primarily revolves around and upon the provisions of Section 23 of the 2009 Act which reads as follows:
"23. Qualifications for appointment and terms and conditions of service of teachers.- (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:
Provided that a teacher, who at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years.
(3) The salary and allowances payable to, and the terms and conditions of service of, teacher shall be such as may be prescribed."
As is evident from a reading of Section 23, the minimum qualifications which must be possessed by a person in order to be eligible for appointment as a teacher are to be those which may be prescribed by an academic authority authorised by the Union Government. NCTE had initially come to be constituted in terms of the provisions of the National Council for Teacher Education Act, 19939. By a notification dated 31 March 2010, the Union Government designated NCTE to be the academic authority for the purposes of implementation of the 2009 Act. Upon being so designated, NCTE on 23 August 2010 issued a notification laying down the minimum qualifications required to be possessed by a person in order to be eligible for appointment as an Assistant Teacher in class I to VIII in a school covered by the provisions of the 2009 Act. The extract of this notification insofar as it is relevant for our purposes reads as follows:

"(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." (emphasis supplied)

A perusal of the notification so prescribed evidences that apart from holding a graduate degree or other educational qualification as prescribed, NCTE also requires a prospective teacher to have passed a Teachers Eligibility Test (TET). This notification further provides that TET would be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for the said purpose. These guidelines were framed by the NCTE and circulated under cover of its letter dated 11 February 2011. It was at this stage that the State Government for the first time proceeded to amend the 1981 Rules by promulgating the 12th Amendment Rules on 9 November 2011. Rule 8 which prescribed the qualifications liable to be possessed by an Assistant Teacher was also consequently amended and the rule mandated a teacher to have passed the TET examination conducted by the State of U.P. Rule 14 was also amended and sub-rule (3) laid down that the name of candidates shall be prepared and placed in descending order on the basis of marks obtained in the TET examination conducted by the Government of U.P. This amendment in the 1981 Rules as is evident was primarily brought about to bring the provisions of the 1981 Rules in consonance with the notification dated 23 August 2010 issued by the NCTE. The validity of the 12th Amendment Rules, we are informed was upheld in Seeta Ram Vs. State of U.P.10 and Govind Kumar Dixit and others V State of U.P. and others11.
The authority of the NCTE to issue the notification dated 23 August 2010 and the requirement of passing a TET examination as amended thereunder was raised before this Court. In Prabhakar Singh and others Vs. State of U.P.12, referring to paragraph 3 (a) of the notification dated 23 August 2010 it was held that the compliance with the requirement of passing the TET examination was not mandatory for the category of persons falling in the paragraph aforementioned. Doubting the correctness of this judgment, a learned Single Judge referred the issues arising from the judgment in Prabhakar Singh for consideration by a larger Bench. Consequently, a Full Bench of the Court came to be constituted. The Full Bench answered the issues raised for its consideration by its judgment dated 31 May 2013 in Shiv Kumar Sharma and others Vs. State of U.P. And others13. During the course of its deliberations, the Full Bench framed the following issues as is evident from paragraph 11 of the report:-
"To address the issue involved, we had heard the matter and framed 3 questions as follows:-
"(a) What does the phrase "minimum qualifications" occurring in Section 23 (1) of the right of Children to Free and Compulsory Education Act, 2009 (the Act) mean - whether passing the 'Teacher's Eligibility Test', is a qualification for the purposes of Section 23 (1), and it insistence by the NCTE in the Notification dated 23.8.2010 is in consonance with the powers delegated to the NCTE under Section 23 (1) of the Act?
(b) Whether clause 3 (a) of the Notifications dated 23.8.2010 and 29.7.2011 issued by the NCTE under Section 23 (1) of the Act, permits persons coming under the ambit of that clause to not undergo the 'Teacher's Eligibility Test', before they are eligible for appointment as Assistant Teachers? What is the significance of the words "shall also be eligible for appointment for Class-I to V upto 1st January, 2012, provided he undergoes, after appointment an NCTE recognized six months special programme in elementary education"?
(c) Whether the opinion expressed by the Division Bench in Prabhakar Singh and others Vs. State of U.P. and others, 2013 (1) ADJ 651 (DB), is correct in law?"
Dealing with issue No. 1, the Full Bench traced the history and the constitutional background which led to the insertion of Article 21A and the promulgation of the 2009 Act. It proceeded to observe as follows:
"87. The legislative competence and the intent therefore lead to the conclusion that the Central Government has authorised the National Council for Teacher Education to make provisions and which have been carefully en-grafted in the Notification dated 23.8.2010. The State Government has followed suit. However, the State Government delayed the incorporation as the Rules were framed by it later on in 2011 and the 1981 Rules were amended much later. The 12th, 13th, 14th, 15th and 16th amendment in the 1981 Rules were brought at a later period. In our opinion, however, merely because the State incorporated these provisions in its rules later on would not take away the impact of the norms prescribed by the National Council for Teacher Education that stood enforced w.e.f. 23.8.2010. The delegated legislation of the State Government was subject to the primary legislation of the Central Government. The framing of rules as a subordinate legislation is subservient to the provisions framed by the Central Government. The notification dated 23.8.2010 therefore has an overriding effect and it could not have been ignored. If the State Government has proceeded to make appointments after 23.8.2010 without complying with the provisions of teacher eligibility test then such appointments would be deficient in such qualification.
88. It may be emphasised that there is no challenge raised to such appointments against rules, but the law is certain that appointment de-hors the rules cannot be said to be valid. After the enforcement of the notification dated 23.8.2010 every candidate aspiring to become a teacher of elementary education in any of the institutions defined under the 2009 Act has to be possessed of the qualifications prescribed therein. The intention therefore of the legislature is clear that no teacher without such a qualification can be allowed to continue as a teacher in the institution. We wish to clarify that the binding effect of the notifications and the guidelines is such that the weightage which is contemplated under the guidelines dated 11th February, 2011 cannot be ignored. The minimum score that is required of a candidate is 60% to pass the teacher eligibility test. A concession of 5% has been made in favour of the reserved category candidates including the physically challenged and disabled persons. This norm therefore cannot be diluted. Apart from this, the State Government has to take notice of the fact that weightage has to be given in the recruitment process as well. It is for the State Government to suitably adopt the said guidelines and we do not wish to add anything further at this stage as we are only concerned with the essentiality of the qualification of the teacher eligibility test to be possessed by any candidate aspiring to be appointed as a teacher." (emphasis supplied)
It ultimately answered the questions framed by it in the following terms:
"The questions that have been therefore framed by us are answered as follows:-
1. The teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5 as per the notification dated 23.8.2010 which notification is within the powers of the NCTE under Section 23 (1) of the 2009 Act.
2. Clause 3(a) of the notification dated 23.8.2010 is an integral part of the notification and cannot be read in isolation so as to exempt such candidates who are described in the said clause to be possessed of qualifications from the teacher eligibility test.
3. We approve of the judgment of the division bench in Prabhakar Singh's case to the extent of laying down the interpretation of the commencement of recruitment process under Clause 5 of the notification dated 23.8.2010 but we disapprove and overrule the ratio of the said decision in relation to grant of exemption and relaxation from teacher eligibility test to the candidates referred to in Clause 3 (a) of the notification dated 23.8.2010, and consequently, hold that the teacher eligibility test is compulsory for all candidates referred to in Clause 1 and Clause 3 (a)."
It becomes relevant to note that although the Full Bench delivered judgment on 31 May 2013, in the meanwhile on 31 August 2012, the State promulgated the 15th Amendment Rules. These Rules amended sub-rule (3) of Rule 14 to provide that the names of selected candidates shall be arranged in accordance with the quality points specified in Appendix-1. Appendix-1 earmarked the award of quality points in respect of the marks obtained by a candidate in the High School, Intermediate and graduation examinations. This amendment assumes significance inasmuch as the position which was brought about by the 12th Amendment Rules and which mandated selection only on the basis of marks obtained in the TET examination came to be fundamentally altered. To clarify it becomes relevant to state that while Rule 8 continued to require an aspiring teacher to possess a TET certificate, the system by which his selection was made dependent solely upon the marks obtained by him in the said examination was completely done away with. Consequently while TET remained part of the minimum qualifications required of an Assistant Teacher, the consideration of marks obtained by a person in the TET examination was done away with.
The 15th Amendment Rules were again challenged before this Court in a batch of writ petitions. Two learned Judges of the Court in Shiv Kumar Patkak Vs. State of U.P.14 considered the challenge and ultimately held that the change in the criteria of selection to the position as it prevailed prior to the 12th Amendment Rules was not in conformity with law. It accordingly struck down Rule 14(3) as introduced by the 15th Amendment Rules. The Division Bench while considering the challenge to the 15th Amendment Rules duly took note of the notification dated 23 August 2010 issued by the NCTE as well as the Guidelines issued by it on 11 February 2011. It proceeded to frame the following issues for resolution:-
"From the submissions of learned counsel for the parties and the pleadings on record, following are the issues which arise for consideration in this bunch of appeals.
1.Whether 1981 Rules are applicable for selection of B.Ed. Candidates for imparting six months training for appointment as Assistant Teachers in junior basic schools?
2.Whether the advertisement dated 30.11.2011 for selection and appointment as trainee teacher against 72,825 posts in different junior basic schools was invalid on the ground that there was no cadre of trainee teachers in 1981 Rules ?
3.Whether the guidelines dated 11.2.2011 issued by the National Council For Teacher Education requiring that State should give weightage to the marks of Teachers Eligibility Test while appointing the teachers were not binding on the State and could have been ignored while making selection and appointment on the post Assistant Teachers in junior basic schools?
4.Whether the State Government's order dated 26.7.2012 to make Teachers Eligibility Test only as a minimum qualification and restoration of the mechanism of giving weightage only on the basis of educational qualification for appointment of teachers as was in force prior to 12th Amendment Rules was in accordance with law?
5. Whether there were valid reasons for the State Government to declare the advertisement dated 30.11.2011 as ineffective and to cancel the advertisement?
6.Whether the U.P. Basic Education (Teachers) Service (15th Amendment) Rules dated 31.8.2012 and the Government Order dated 31.8.2012 were in accordance with law?
7. To what reliefs, the appellants are entitled in these appeals, if any?"
It accordingly proceeded to consider the question as to whether the Guidelines framed by the NCTE would be binding on the State. While considering the said issue, the Division Bench also noted what the Full Bench had come to hold in respect of the powers of the NCTE and the binding character of the standards laid down by it in exercise of powers conferred by Section 23 of the 2009 Act. The Division Bench then proceeded to hold as follows:
"66. While deciding the Issue No.3 we have already held that the guidelines dated 11.2.2011, issued by the National Council for Teacher Education require the State to give weightage of the marks obtained in the 'Teacher Eligibility Test' Examination -2011 in appointment on the post of Teachers. The guidelines dated 11.2.2011 issued by the National Council for Teacher Education have been held to be binding. A Full Bench of this Court in Shiv Kumar Sharma (Supra) in paragraph 88 (as quoted above) has already laid down that the State Government has to give weightage to the marks of the Teacher Eligibility Test in the recruitment process. In view of the binding nature of the guidelines dated 11.2.2011, issued by the National Council for Teacher Education and the decision of the Full Bench of this Court in Shiv Kumar Sharma's case (Supra) the State Government could not have taken any decision to ignore the weightage of the marks of the Teacher Eligibility Test Examination-2011. It is relevant to note that immediately after the advertisement dated 30.11.2011, as well as the 12th amendment Rules dated 09.11.2011, by which the selection was contemplated as per the marks of the Teacher Eligibility Test, a challenge to advertisement dated 30.11.2011 and 12th Amendment Rules was raised in this Court by means of Writ Petition No.71558/2011, Seeta Ram Vs. State of U.P. & Ors and Writ Petition No.72433/2011, Govind Kumar Dixit & Ors Vs. State of U.P. & Ors. Writ Petition No.71558/2011, Seeta Ram Vs. State of U.P. & Ors was dismissed on 12.12.2011 by the learned Single Judge of this Court who repelled the challenge to the advertisement dated 30.11.2011, as well as the 12th amendment Rules dated 09.11.2011. While dismissing the writ petition following was laid down in paragraph 9.
"9. So far as making of qualifying examination basis of selection is concerned, it is always permissible to the rules framing authority to determine the criteria for selection which may base on the merits of the candidate possessed in various academic qualifications or qualifying test or any other criteria which may otherwise be valid and once it is so determined, unless it can be said that the same amendment in the rule is contrary to any statutory provision or otherwise ultra vires or vitiated in law, the same cannot be interfered.
70. The 15th amendment rules has been challenged on the ground of it being arbitrary and unreasonable being violative of Article 14 of the Constitution. The notification dated 23.8.2010 issued under Section 23 (1) of the Act, 2009 being under a Parliamentary enactment has to prevail over any rules made by the State under a State Act. The Rules, 1981 right from 1993 contains an Appendix which provides a formula for selecting a teacher. Appendix indicates that selection was based only on the educational qualification of an candidate including the training qualification. After the notification dated 23.8.2010 and guidelines dated 11.2.2011 issued by the National Council for Teacher Education, the State amended its Rules, 1981 by 12th amendment rules to bring it in conformity with the above notification and guidelines. The 12th amendment rules was perfectly in accordance with law and the challenge to the aforesaid rules have also been repelled by this Court in two judgments of Seeta Ram and Govind Kumar Dixit's case (supra). The decision of the State Government not to give any weightage to the marks obtained in the Teacher Eligibility Test Examination-2011 cannot be said to be in conformity with the guidelines of the National Council for Teacher Education referred to above and was clearly arbitrary. The Full Bench of this Court in Shiv Kumar Sharma's case (supra) has already held that the State Government cannot disregard the guidelines of National Council For Teacher Education dated 11.2.2011. The 15th Amendment Rules is thus also contrary to law declared by this Court. The Teacher Eligibility Test (Examination-2011) which has been recognised as an essential qualification for the teachers selection, hence without giving any weightage to the said examination the State cannot proceed with the selection. As noted above, the allegations made against few candidates of committing irregularities in the Teacher Eligibility Test or involvement in criminal offence cannot be a ground to deny benefit of Teacher Eligibility Test to lacs and lacs of the candidates against whom there is neither any allegation nor any charge. The State having not cancelled the Teacher Eligibility Test-2011 and having allowed the Teacher Eligibility Test to be utilised for qualification of candidates ought to have given full effect to the result of the Teacher Eligibility Test examination. The allegations of irregularities and involvement in criminal offence by some candidates was fully neutralised by the State's decision to debar any such candidates from the selection against whom there are allegations of irregularities or involvement in criminal offence. The High Powered Committee has further stated in its report that an undertaking be taken on an affidavit from all the candidates that in event anything adverse is found against them, their selection shall be cancelled. The State having given effect to the notification dated 23.8.2011 as well as the guidelines dated 11.2.2011 issued by the National Council for Teacher Education by amending its rules by 12th amendment rules, which was in consonance with the scheme under the Act, 2009, a Parliamentary enactment cannot be allowed to go back and resort to its old criteria for selection which was prevalent prior to the Act, 2009 and prior to the notification dated 23.8.2010 and guidelines dated 11.2.2011. We are, thus of the view that Rule 14(3) of the 15th amendment rules by which the criteria for selection was changed has to be held to be arbitrary and unreasonable and deserves to be struck down. The Government Order dated 31.8.2012 was issued by the State in consequence to the 15th amendment rules. The Government Order dated 31.8.2012 states that in view of the 15th amendment rules the earlier advertisement (dated 30.11.2011) has become ineffective and thus be cancelled. For cancelling the advertisement no other reason have been given except the changed criteria of selection by 15th amendment rules. The Government Order dated 31.8.2012 having not given any other reason for cancelling the advertisement except that it had become ineffective after the 15th amendment rules, thus the Government Order dated 31.8.2012, also deserves to be set-aside including the consequential communication dated 31.8.2012 issued by the Board of Basic Education." (emphasis supplied)
On 4 December 2012, the State Government yet again proceeded to amend the 1981 Rules and promulgated the 16th Amendment Rules. Significant for our purpose is the amendment brought about to Rule 14 (3). This rule provided that the name of candidates in the list prepared in sub-rule (2) was liable to be arranged in accordance with the quality points obtained by a candidate and as specified in Appendix-1. It becomes pertinent to note here that no separate Appendix-1 was introduced by the 16th Amendment Rules. The reference to Appendix-1 was obviously to the amendment which had been introduced by the 15th Amendment Rules which had drawn up and specified the particulars which must be taken into consideration and had enumerated the same in Appendix-1 as introduced thereby. This aspect assumes significance in view of the fact that Appendix-1 to the 1981 Rules had come to be introduced by the newly amended Rule 14(3) as introduced by the 15th Amendment Rules. Rule 14(3) as introduced thereby had come to be declared as unconstitutional and ultra vires by the Division Bench in Shiv Kumar Pathak. It was in this backdrop that the challenge to the 16th Amendment Rules came to be preferred before the learned Single Judge. The learned Single Judge as noted above, proceeded to hold that since the 15th Amendment Rules had already been struck down, the 16th Amendment was rendered wholly unworkable. This observation came to be made in light of what has been noted by us above namely Appendix-1 having been totally effaced from the statute book by virtue of the judicial declaration entered by the Division Bench in Shiv Kumar Pathak. It was in this backdrop of the facts that the learned Single Judge came to hold that Rule 14(3) as introduced by the 16th Amendment Rules was wholly otiose.
It is important to note that the judgment of the Division Bench in Shiv Kumar Pathak has been taken in appeal to the Supreme Court. In the pending Civil appeals, we note that on 2 November 2015, the Supreme Court has proceeded to formulate the following issues for consideration:
"At this juncture, we must formulate the issues that the learned counsel should address while arguing the matter on the next date, for we are not inclined any more to deal with the matter as interim measures. The issues are as under :
a) Whether the NCTE Guidelines fixing the minimum qualification are arbitrary and unreasonable?
b) Whether the marks obtained in the TET Examination is the sole criterion for filling up the vacancies?
c) Whether the High Court is justified in declaring the 15th Amendment brought in on 31.08.2012 to the U.P. Basic Education (Teachers) Service Rules, 1981?
d) Assuming, the guidelines framed by the NCTE are treated as intra vires, the question will be what interpretation would be placed by the Court on the concept of weightage as mentioned in the guidelines of the NCTE? "

We have been informed by the learned counsel for the parties that the judgment of the Division Bench in Shiv Kumar Pathak has not been stayed by the Supreme Court till date. During the course of submissions advanced by the rival parties before us, we noted that the issues which were being canvassed were in fact identical and similar to those framed by the Supreme Court especially issues such as whether the guidelines framed by the NCTE were valid, could they form the sole criteria for filling vacancies and if held to be intra vires what interpretation is liable to be rendered to the word "weightage" in paragraph 9(b) of the Guidelines dated 11 February 2011. Upon this being pointed out, the majority of the learned counsels for the parties urged us to proceed to dispose of this batch of matters so as to enable them to take their matters also to the Supreme Court and raise all contentions so that a quietus to the entire controversy is ultimately rendered. We accordingly proceeded to hear the parties on merits and consequently note the submissions advanced hereinafter.
Leading the challenge to the validity of the 16th Amendment Rules as raised in the writ petitions before us, Sri Khare, learned Senior Counsel has urged the following contentions:
He submits that the learned Single Judge was justified in proceeding to strike down the 16th Amendment Rules in light of the binding verdict rendered by the Full Bench of the Court as well as the Division Bench which had struck down the 15th Amendment Rules. Sri Khare submitted that the 16th Amendment Rules and more particularly Rule 14(3) thereof was clearly unworkable in the absence of an Appendix - I remaining on the statute book. He contended that the declaration of the Division Bench in Shiv Kumar Sharma in respect of Rule 14 as introduced by the 15th Amendment Rules would have the effect of the same being wholly erased and removed. He drew our specific attention to the fact that Appendix-I had in fact come to be introduced only by the 15th Amendment Rules. He then referred to the principles enunciated by the Full Bench in respect of the jurisdiction and authority of NCTE and submitted that since it had been anointed as the academic authority by the Union Government, the notifications and guidelines issued by it must have primacy. Sri Khare submitted that insofar as the subject of primary education is concerned, the legislative power of the State as flowing from Entry 45 of List-III of the Seventh Schedule to the Constitution is no longer untrammelled. It is his submission that the legislative power of the State must yield and be subject to such overriding directives as may be issued by a competent authority under a central legislation which governs the field. He submits that both the notification dated 23 August 2010 as well as the Guidelines framed by the NCTE on 11 February 2011 are clearly of binding character and cannot be ignored by the State. He submits that the use of the word "weightage" in Para 9(b) of the Guidelines clearly incorporates and represents the conscious decision taken by NCTE to ensure that the marks obtained by a candidate in the TET Examination, must be accorded some consideration. His submission is that the possession of a TET Certificate being given the status of only a minimum requirement would not be in consonance with the decision of the primary academic authority that weightage be accorded to the marks obtained by a candidate in the said examination. Sri Khare has clarified that it is not the contention of the petitioner that TET marks alone form the basis for selecting a particular candidate. He submits that the use of the word "weightage" in Para 9(b) clearly mandates some credence and weight being attached and accorded to marks obtained in the TET Examination. Referring to the Appendix to the 1981 Rules as it existed prior to the 12th Amendment, Sri Khare submits that the said Appendix came into play only in a case where there were candidates who had passed the training course in the same year. The Appendix, Sri Khare submits, was restricted in its application only to such a contingency. Insofar as the Appendix which came to be introduced by the 15th Amendment Rules is concerned, Sri Khare points out that the same no longer exists consequent to Rule 14(3) being struck down and declared invalid by the Division Bench in Shiv Kumar Pathak. The Rules therefore in the submission of Sri Khare have been rendered wholly unworkable. Sri Khare has contended that assuming that the learned Single Judge lacked the authority to consider a challenge connected to the validity of legislation, this Court may independently consider the legal challenge to the 16th Amendment Rules in the writ petitions preferred thereafter and placed before us as part of this batch.
Sri Shailendra, learned counsel who has advanced submissions on the appeals taken against the judgment of the learned Single Judge, has submitted that the learned Single Judge had clearly erred in proceeding to entertain and rule upon a challenge to legislation, even though as per the roster no such jurisdiction stood conferred upon him. He further submitted that the appellants represented by him were afforded no opportunity of hearing and that even their impleadment applications had not been disposed of. He further referred to the fact that although he was heard on 25 May 2015 and asked to file written submissions by the next date, though such submissions were filed on 26 May 2015 the same were neither noticed nor considered by the learned Single Judge. He further laid stress upon the fact that in the writ petition itself no prayer had been made for declaring the 16th Amendment Rules to be invalid. He submitted that the only relief of significance which was sought was for the issuance of a writ of certiorari quashing the Notifications dated 30 August 2012 and 5 December 2012 (being the notifications by which the 15th and 16th Amendment Rules respectively, were promulgated). These submissions have to some extent been reiterated by the State which is also in appeal against the judgement rendered by the learned Single Judge.
Leading the arguments on behalf of the candidates who have come to be selected during the pendency of the litigation, Sri H.N. Singh, learned Senior Counsel has raised various contentions for our consideration. Sri Singh, learned Senior Counsel has primarily contended that the guidelines issued by the NCTE are merely advisory in character and cannot eclipse or override the legislative authority of the State to frame rules for the appointment of teachers in primary educational institutions. Sri Singh has submitted that by virtue of Article 45 of the Constitution, the subject of recruitment and prescribing the terms and conditions of service of teachers in primary institutions is the exclusive province of the State. He submits that NCTE had exercised the powers under Section 23 by promulgating the Notification dated 23 August 2010. The Guidelines issued on 11 February 2011, in the submission of Sri Singh, are not referable to the said provision at all. He seeks to draw sustenance for the submission from the fact that the guidelines as promulgated by NCTE have not been claimed or declared by it to have been issued in exercise of powers conferred by Section 23. Sri Singh has then contended that a reading of Clause 9(b) of the guidelines itself indicates that even NCTE does not envisage TET to be the sole criteria for selection. Referring to the provisions of sub-section (3) of Section 23, Sri Singh submits that the power to lay down "terms and conditions of service" is vested exclusively with the appropriate State Government. It is his contention that the phrase "terms and conditions of service" as employed in section 23 (3), would include the jurisdiction and authority of the State to frame rules relating to the qualifications which must be possessed by a candidate who aspires to be appointed as an Assistant Teacher. Insofar as the judgment rendered by the Full Bench is concerned, Sri Singh submits that from the issues as framed, it is more than apparent that what the Full Bench was considering was the binding effect and character of the Notification dated 23 August 2010. He submits that the Full Bench was neither called upon nor could it be said to have considered or ruled upon the validity of the guidelines. He submits that the issue of whether Para 9(b) of the guidelines, would have overriding effect and operation over the rules framed by the State, neither arose nor fell for consideration of the Full Bench. In this light, Sri Singh submits that the Division Bench which decided Shiv Kumar Pathak, clearly erred in proceeding as if this issue had been authoritatively decided and ruled upon by the Full Bench.
Sri Ravi Kant, learned Senior Counsel and Sri Anoop Trivedi, learned counsel, have advanced submissions on behalf of the petitioners who have challenged the validity of the guidelines directly. According to them, the only obligation which stands placed on the State under the 2009 Act is that the teachers who came to be appointed must possess the minimum qualifications prescribed by NCTE. It is their submission that the method and manner of selection is within the exclusive domain of the State Government. They submit that the guidelines framed by the NCTE were merely advisory in nature and in case the State chose not to give any weightage to TET marks, it has committed no error. They submit that the administrative guidelines cannot supplant the substantive rule making power conferred upon the State Government by Section 19 of the 1981 Act.
It is these rival submissions which now fall for our determination.
In order to appreciate the rival submissions, it would be apposite to briefly notice the legislative history which surrounds the subject of education. Education as a subject at the time when the Constitution was originally framed was contained in Entry - 11 of List-II of the Seventh Schedule to the Constitution. At this time, primary educational institutions in the State of U.P. were being managed and administered by municipal authorities and formed the subject matter of as many as three separate enactments. The need was therefore felt to bring about a comprehensive legislation to deal with the subject of primary education and for the State to take over the control of elementary educational institutions. It was with this avowed object that the 1972 Act came to be promulgated. It was the 1972 Act which contemplated and gave birth to the Board of Basic Education. Article 45 of the Constitution which stood placed in the Chapter relating to Directive Principles, was found not to have brought about any significant change. It had also not led to the fulfilment of the constitutional objective and goal of providing free and compulsory education to children till the completion of fourteen years of age

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CTET, TEACHER ELIGIBILITY TEST (TET), NCTE, RTE, UPTET, HTET, JTET / Jharkhand TET, OTET / Odisha TET  ,
Rajasthan TET /  RTET,  BETET / Bihar TET,   PSTET / Punjab State Teacher Eligibility Test, West Bengal TET / WBTET, MPTET / Madhya Pradesh TET, ASSAM TET / ATET
, UTET / Uttrakhand TET , GTET / Gujarat TET , TNTET / Tamilnadu TET , APTET / Andhra Pradesh TET , CGTET / Chattisgarh TET, HPTET / Himachal Pradesh TET
 

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CTET SARKARI NAUKRI News -CTET NE SPASHT KIYA KI CANFIDATE TET MARKS BADANE KE LIYE BAAR BAAR -CTET EXAM DE SAKTA HAI -

CTET SARKARI NAUKRI   News -CTET NE SPASHT KIYA KI CANFIDATE TET MARKS BADANE KE LIYE BAAR BAAR -CTET EXAM DE SAKTA HAI -

Yeh NCTE GUIDELINES KE TAHT JAAREE KIYE NIRDESH HAIN,
LEKIN JAB EK CANDIDATE BAHUT ACHHE TET MARKS LE KAR BHEE SELECTION MEI USKA WEIGHTAGE NAHIN LE PAAYEGA, TO BEROJGARON SE AISEE LOOT KHASOT KYON.

NCTE KO RTE ACT KE TAHT MINIMUM QUALIFICATION TAY KARNE KI POWER  DEE GAYEE HAI ->>>FOR CLASS 1 TO 8 TEACHERS SELECTION PROCESS KE LEEYE 

who has qualified CTET may also appear again for improving his/her score

There is no restriction on the number of attempts a person can take for acquiring a CTET Certificate. A person who has qualified CTET may also appear again for improving his/her score

http://ctet.nic.in/CMS/Public/View.aspx?page=59

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, UTET / Uttrakhand TET , GTET / Gujarat TET , TNTET / Tamilnadu TET , APTET / Andhra Pradesh TET , CGTET / Chattisgarh TET, HPTET / Himachal Pradesh TET
 

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UPTET SARKARI NAUKRI News -मित्रो आज नए विज्ञापन वालो के लिए बहुत बड़ी खुशखबरी -

UPTET SARKARI NAUKRI   News -मित्रो आज नए विज्ञापन वालो के लिए बहुत बड़ी खुशखबरी - 

सोशल मिडिया से :-
वृजेन्द्र कश्यप >>>
मित्रो आज नए विज्ञापन वालो के लिए बहुत बड़ी खुशखबरी |||||
आज माननीय दीपक मिश्रा जी की कौर्ट नम्बर 3 में हमारी परमादेश की दूसरी बार सुनवाई हुई जोकि 6-7मिनट चली 
जिसमे हमारे सीनियर अधिवक्ता ने 16वे संशोधन की बात रखी और बताया कि हमारा विज्ञापन ncte से परमीशन के बाद प्रशिक्षु शिक्षक पद का सृजन 16वे संशोधन में करके निकला हैं 
इससे पहले बेसिक शिक्षा नियमावली में बीएड वालो के लिए पद का सृजन प्राइमरी में नही था और संशोधन 16 रद्द भी नही हैं तब भी सरकार भर्ती नही कर रही जबकि रद्द 15th अमेंडमेंट पर 90000 से अधिक भर्ती कर चुकी है 
और ये ऐसे लोगो की रिट हैं जो सिर्फ नए ऐड 7-12-2012 में आवेदक हैं और ये बीएड वालो के लिए आखिरी भर्ती है 
जज साहब बोले कि आप लोग इस ईशू पर हाई कोर्ट क्यों नही गए तब एडवोकेट ने कहा कि हमारी टेट की समयसीमा खत्म हो गई हैं और आपके आदेशानुसार अंतिम निर्णय तक बढ़ गई है इसलिये हम आर्टिकल 32 से आये है 
हमारे ऐडवोकेट ने कोर्ट को बताया कि विधानसभा में बेसिक शिक्षा मंत्री ने बोला हैं कि हमारे दोनों विज्ञापन अलग अलग हैं इसको उन्होंने पढ़ा जोकि हमने ग्राउंड भी बनाया हैं 
और भी नए ऐड के फेवर में कई बाते हुई जोकि बताना उचित नही हैं 
दीपक मिश्रा जी ने मुस्कुराते हुए कहा कि ये मामला बहुत intresting है और उन्होंने हमारी रिट को उत्तर प्रदेश के स्पेशल कॉउंसल श्री रवि प्रकाश मेहरोत्रा जी को सर्व कराके जबाब लगाने को बोला हैं 
और जो लोग पीयूष भाई की दोनों ऐड पर भर्ती की मांग की परमादेश ख़ारिज होने पर बोल रहे थे नया ऐड बहाल नही हो सकता आज ये सिद्ध हो गया कि न्यू ऐड हम बहाल कराके दम लेगे 
फिर जज साहब हमारे मामले की डेट जनवरी में लगा रहे थे फिर 22 फरबरी को टैग करते हुए बोले कि उस दिन फुल डे मैटर चलेगा इसलिये अब इसे 22 को टैग कर दो 
बाकि बाते बाद में 
वृजेन्द्र कश्यप 
जय भोलेनाथ
जय माता दी

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, UTET / Uttrakhand TET , GTET / Gujarat TET , TNTET / Tamilnadu TET , APTET / Andhra Pradesh TET , CGTET / Chattisgarh TET, HPTET / Himachal Pradesh TET
 

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TNTET : Tamil Nadu TET : Supreme Court of India Judgement on NCTE Guidelines, Weightage & its Powers in case of TNTET & selection process

TNTET : Tamil Nadu TET : Supreme Court of India Judgement on NCTE Guidelines, Weightage & its Powers in case of TNTET & selection process  








 http://supremecourtofindia.nic.in/FileServer/2016-11-09_1478685108.pdf.



C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10700 OF 2016 (Arising out of SLP (C) NO. 29245/2014) V. LAVANYA & ORS. APPELLANTS Versus STATE OF TAMIL NADU REPRESENTED BY ITS PRINCIPAL SECRETARY & ORS. RESPONDENTS WITH CIVIL APPEAL NOS. 10715-10716 OF 2016 (ARISING OUT OF SLP (C) NOS. 29353-29354 OF 2014) CIVIL APPEAL NO. 10720 OF 2016 (ARISING OUT OF SLP (C) NO. 29634/2014) CIVIL APPEAL NO. 10726 OF 2016 (ARISING OUT OF SLP (C) NO. 29715 OF 2014) CIVIL APPEAL NOS. 10731-32 OF 2016 (ARISING OUT OF SLP (C) NO.32238-32239 OF 2014) CIVIL APPEAL NO. 10737 OF 2016 (ARISING OUT OF SLP (C) NO.32240 OF 2014) CIVIL APPEAL NO. 10736 OF 2016 (ARISING OUT OF SLP (C) NO. 32241 OF 2014) CIVIL APPEAL NO. 10735 OF 2016 (ARISING OUT OF SLP (C) NO.34978 OF 2014) CIVIL APPEAL NO. 10734 OF 2016 (ARISING OUT OF SLP (C) NO. 32160 OF 2014) CIVIL APPEAL NO. 10733 OF 2016 (ARISING OUT OF SLP (C) NO. 34568 OF 2014) CIVIL APPEAL NOS. 10727-10730 OF 2016 (ARISING OUT OF SLP (C) NOS. 33127-33128 OF 2014) Page No. 1 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. CIVIL APPEAL NO. 10725 OF 2016 (ARISING OUT OF SLP (C) NO. 6543 OF 2015) CIVIL APPEAL NOS. 10721-10723 OF 2016 (ARISING OUT OF SLP (C) NOS. 26461-26463 OF 2015) CIVIL APPEAL NO. 10719 OF 2016 (ARISING OUT OF SLP (C) NO. 26464 OF 2015) CIVIL APPEAL NOS. 10701-10714 OF 2016 (ARISING OUT OF SLP (C) NOS. 31629-31642 OF 2014) [PETITIONS BY WAY OF SPECIAL LEAVE ARISING OUT JUDGMENTS DELIVERED BY MADRAS BENCH] AND CIVIL APPEAL NOS.10717-10718 OF 2016 (ARISING OUT OF SLP (C) NOS. 26256-26257/2015) [PETITION BY WAY OF SPECIAL LEAVE @ JUDGMENT DELIVERED BY MADURAI BENCH] STATE OF TAMIL NADU REPRESENTED BY ITS SECRETARY TO GOVT., SCHOOL EDUCATION (TRB) DEPARTMENT AND ORS. APPELLANTS V. S. VINCENT AND ORS. RESPONDENTS J U D G M E N T R. BANUMATHI J. Leave granted. 2. The present batch of appeals raise identical questions of law and fact concerning appointment of Secondary Grade Teachers and B.T. Assistants in the State of Tamil Nadu as per the Guidelines prescribed by National Council for Teacher Education (hereinafter referred to as the NCTE) in this Page No. 2 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. regard. These appeals impugn the conflicting judgments passed by both Madras and Madurai Bench of the High Court of Madras in W.A. No. 1031/2014 & Others. dated 22.09.2014; and W.P. No. 4558/2014 dated 25.09.2014 respectively. The dispute revolves around the relaxation of 5% marks to the reserved category candidates in the State Teachers Eligibility Test (hereinafter referred to as the TET) approved by the State Government, which is allegedly in contravention of the norms to that effect embodied in the notification dated 23.08.2010 issued by the NCTE. 3. Pursuant to the mandate of Right of Children to Free and Compulsory Education Act, 2009 ("the RTE Act"), the NCTE laid down minimum qualifications for a person to be eligible for appointment as a Teacher through a Notification dated 11.02.2011. As per the said Notification: “…to be eligible for appointment as a teacher if any of the schools referred to in clause (n) of section 2 of the RTE Act is that he/she should pass the teacher eligibility test (TET) which will be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE”. NCTE Guidelines prescribed 60% marks to be declared as pass in TET. The said Guidelines enabled the State Government to grant concession to persons belonging to Scheduled Castes/Scheduled Tribes, other Backward Classes, differently-abled persons etc. Page No. 3 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. 4. In pursuance of the provisions of the Act, the State Government enacted the Tamil Nadu Right of Children to Free and Compulsory Education Act, 2011. State Government issued Order No. G.O.Ms.No.181 dated 15.11.2011, prescribing 60% marks as pass marks for TET under the said G.O. The Teacher Recruitment Board was appointed as the Nodal Agency for conducting the TET and recruitment of teachers. Subsequently, the State Government vide G.O.(Ms.) No.252 School Education (Q) Department dated 05.10.2012 issued the Procedure/Guidelines for State Teachers’ Eligibility Test. The said Guidelines earmarked 60% marks for State eligibility test and the remaining 40% for academic performance of the candidates. The 40% performance-based marks were divided into 10 marks and 15 marks each for the Higher Secondary Examination/Degree Examination and D.T.Ed/B. Ed. examination respectively. 5. The Teachers Recruitment Board conducted the first TET-Paper I (Secondary Grade Teacher) and Paper II (Graduate Teacher) on 12.07.2012 throughout the State in which 7,14,526 candidates appeared and 2448(0.3%) were successful. The details of number of the candidates who appeared and who passed are as under:- Exam No. of candidates who appeared No. of candidates who passed % of pass Paper I 3,05,405 1,735 0.57% Paper II 4,09,121 713 0.17% Total 7,14,526 2,448 0.34% Page No. 4 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. A supplementary TET was also conducted on 14.10.2012 for Paper I and Paper II in which all the candidates who had appeared in the first examination and had not secured 60% marks were allowed to appear without any additional examination fee. Around six lakh candidates appeared in the said exam, out of which 19,261 (around 3%) only cleared the TET. The details are as under:- Exam No. of candidates who appeared No. of candidates who passed % of pass Paper I 2,78,725 10,397 3.7% Paper II 3,64,370 8,864 2.4% Total 6,43,095 19,261 2.9% 6. The third TET which is the subject matter of the present challenge was conducted by the Teacher Recruitment Board in two papers viz., Paper I and Paper II on 17.08.2013 and 18.08.2013 respectively. The TET was conducted pursuant to Notification dated 22.05.2013 by which 10,672 vacancies of BT Assistants was advertised. As per the Notification, TET is only a pre-requisite eligibility test for those who are seeking appointment as a teacher; a TET certificate issued will be valid for seven years from the date of its issuance and recruitment of teachers will be conducted separately as and when there is a need, following the Guidelines issued by the State Government. Around 16,000 candidates qualified TET with more than 60% marks. In January, 2014, candidates who had obtained 60% or more were called for Certificate Verification (CV). Verification of certificates was done as per the G.O. (Ms.) No. 252 dated 05.10.2012 and weightage marks were Page No. 5 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. also awarded. However, recruitment of teachers and appointment thereof was not done. 7. In the meanwhile, the Hon’ble Chief Minister announced on the floor of the Assembly, relaxation of 5% marks in the passing marks of 60% and thus prescribed the passing marks as 55% for the candidates belonging to Scheduled Caste, Schedule Tribes, Backward Classes, Backward Classes (Muslim), Most Backward Classes, De-notified Communities and Persons with Disability (PWD). In tune with the announcement, the State Government issued orders in G.O.Ms.No.25 School Education (TRB) Department dated 06.02.2014 in which relaxation of 5% of marks was given to the candidates belonging to SC, ST, BC, BC(M), MBC, DNC and PWD candidates. However, minimum qualifying marks with regard to general candidates was retained as 60% or 90% marks in both the papers. Relevant portion of the said G.O. (Ms.) No.25 dated 06.02.2014, reads as under:- “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 marks 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 150 55% or 82.5 marks rounded off to 82 55% or 82.5 marks rounded off to 82 marks Page No. 6 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. Persons with Disability (PWD) 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 Scheduled 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 Category at 90 marks (60% of 150) and for candidates belonging to Scheduled 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).” The said relaxation of 5% marks was held applicable to TET held on 17.08.2013 and 18.08.2013 and all future TETs for the reserved category candidates. 8. Vide G.O.Ms. No. 29 School Education (Q) Department dated 14.02.2014, corresponding amendments were made in criteria for selection of candidates who have cleared the TET for appointment to the post of Secondary Grade Teachers and Graduate Assistants prescribed in G.O. dated 05.10.2012. The said order laid down the weightage of marks under TET head as ‘36’ for those candidates who obtain 55% and above but below 60% marks in TET. The order also specified that the amended selection criteria would be applicable to TET held on 17.08.2013 and 18.08.2013. Relevant portion of the said G.O. reads as under: “Tamil Nadu Teacher Eligibility Test for Secondary Grade Teachers and Graduate Assistants:- Examination passed Weightage of marks 90% and above 80% and above but below 70% and above but below 80% 60% and above but below 70% 55% and above but below 60% Page No. 7 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. 90% 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 Test with respect to candidates belonging to Scheduled Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslims), Most Backward Classes, De-notified Communities and Persons with Disability (PWD).” 9. Resultantly, a number of writ petitions were filed before the High Court challenging the Government Orders passed in G.O.Ms.No.252 School Education(Q) Department, dated 05.10.2012, 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 on different grounds. The Writ Court disposed of these petitions by upholding the validity of G.O.Ms.No.25, School Education (TRB) Department dated 06.02.2014. However, the learned Single Judge set aside the grading system adopted by the Government in G.O. Ms. No. 252 dated 05.10.2012 observing that it lacks rationality as it places a candidate with the difference of 1 to 9 marks in the same basket. 10. Pursuant to the order passed by the learned Single Judge, while continuing with the weightage of marks fixed earlier as per the Government Order passed in G.O.Ms.No.252 School Education (Q) Department, dated 05.10.2012 with reference to the basic qualification marks, the State Government passed a subsequent order in G.O.(Ms.) No.71 School Education (TRB) Department dated 30.05.2014 in tune with the suggestion Page No. 8 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. made by the learned Single Judge. Relevant portion of the said G.O.(Ms.) No.71 dated 30.05.2014, is as under: “7. The Government now issue revised orders for fixing the weightage and for distributing the weightage marks fixed in the light of the High Court orders as mentioned in para 5 above for selection of candidates for appointment to the post of Secondary Grade Teachers and Graduate Assistants in Government Schools from among those candidates who have cleared the Tamil Nadu Teacher Eligibility Test. The weightage of marks and the distribution of weightage of marks be fixed as follows:- A) Tamil Nadu Teacher Eligibility Test Weightage for Secondary Grade Teachers (a) There shall be 100 marks in total (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 The weightage so assigned as indicated in (b) above to be distributed based on the actual percentage of marks obtained by the candidate in the qualifying examinations as shown below:- B) Tamil Nadu Teacher Eligibility Test Weightage for Graduate Assistants: (a) There shall be 100 marks in total (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 The weightage so assigned as indicated in (b) above to be distributed based on the actual percentage of marks obtained by the candidate in the qualifying examinations as shown below:- Page No. 9 of 34 Qualifying Examinatio n Weightage of marks Percentage of marks obtained in the qualifying examination Marks assigned H. Sc. 15 P% P x 15 100 D.T.Ed.,/ D.E.Ed., 25 Q% Q x 25 100 TET 60 R% R x 60 100 Total 100 xxxxx
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. Qualifying Examination Weightage of marks Percentage of marks obtained in the qualifying examination Marks assigned H.Sc. 10 P% P x 10 100 Degree 15 Q% Q x 15 100 B.Ed. 15 R% R x 15 100 TET 60 S% S x 60 100 Total 100 xxx The Government Order passed in G.O.(Ms.) No.71 School Education (TRP) Department dated 30.05.2014 was challenged both on the ground of weightage having been awarded for the marks obtained in three qualifications and also the method of gradation. 11. The High Court of Judicature at Madras heard various writ petitions and writ appeals filed before it challenging the concerned G.Os and by the orders impugned herein disposed of the same. The High Court dismissed the writ appeals as well as the writ petitions holding that the challenge to the policy decision of the Government can sustain only if it suffers from arbitrariness and unreasonableness which did not surface in these cases. It was held that the writ petitioners/writ appellants are non-suited to challenge the procedure adopted in granting weightage to the marks obtained in the basic qualification required. Page No. 10 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. 12. As opposed to the view taken by the Madras Bench of the High Court, in a batch of writ petitions, the Madurai Bench has quashed the relaxation given to the reserved category candidates. The Madurai Bench also heard the challenge to Government Orders passed in G.O.Ms.No.252 School Education (Q) Department, dated 05.10.2012, 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 and held that in the absence of any statistics to prove that the prescription of 60% marks resulted in fewer number of candidates belonging to reserved categories getting appointed, it is not possible to uphold the Government Order. The Court further observed that the argument that relaxation was necessary to advance social justice, is nothing but a myth and is devoid of any factual data and analysis. 13. These petitions by way of special leave have been filed challenging the two contradicting decisions of the Madras Bench and Madurai Bench of the Madras High Court. For the sake of convenience, unless otherwise expressly mentioned, the term appellant has been used to refer to the private parties or original writ petitioners. Contention of the appellants is that after the Select List was finalized on the basis of G.O.Ms. No. 252 dated 05.10.2012, marks were awarded to all the candidates as per Government Order and all the candidates were awaiting the order of appointment and thereafter, Government issued orders in G.O.Ms. No. 25 School Education Page No. 11 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. Department relaxing 5% marks with respect to candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, Most Backward Classes, Backward Classes (Muslims) De-notified communities and differently-abled persons by which the pass marks was reduced to 55% from 60% and G.O.Ms. School Education No. 29 dated 14.02.2014 was issued amending the criteria for selection prescribed in G.O.Ms. 252 dated 05.10.2012. It was submitted that the Government has reduced the passing percentage for qualifying in the TET and changed the criteria for selection after the commencement of the selection process, which is arbitrary, illegal and violative of Article 14 of the Constitution of India. In this regard, reliance was placed upon K. Manjushree v. State of Andhra Pradesh and Anr. (2008) 3 SCC 512 and Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11 to contend that it is impermissible to change the rules of selection once the selection process has started. 14. Per contra, learned counsel appearing for the State submitted that relaxation has been extended by the State Government only to the reserved category candidates. It was submitted that Clause 9 of the NCTE Guidelines for conducting TET empowers the State Government to give concessions/relaxations to candidates belonging to reserved categories and the State Government in exercise of its power under Clause 9 of the NCTE Guidelines granted relaxation and the same cannot be challenged. It is Page No. 12 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. submitted that the TET examination is a qualifying examination and after writing the examination and after accepting the rules and terms of selection in the first place, the appellants cannot challenge the procedure adopted by the respondent-State and challenge the weightage of marks. It was submitted that the Madras Bench has rightly upheld G.O. (Ms.) No. 25 dated 06.02.2014, G.O.Ms. No. 29 dated 14.02.2014 and G.O.Ms. No. 71 dated 30.05.2014 and the contrary view taken by the Madurai Bench is unsustainable. 15. Upon consideration of the rival submissions and perusal of the impugned judgments, the following issues arise for consideration:- (i) Whether the State Government has the competence to give relaxation of 5% marks in Teacher Eligibility Test (TET) and whether such relaxation provided by the State Government by G.O.(Ms.) No.25 dated 06.02.2014 is legally justified? (ii) Having regard to the stand of the Government in the earlier round of Writ Petitions in Writ Petition No.30426 of 2012 and 22407 of 2013, not to relax the qualifying marks for Teacher Eligibility Test (TET), whether Government is estopped from granting relaxation? (iii) Whether providing relaxation of 5% marks in Teacher Eligibility Test (TET) by G.O.(Ms.) No.25 dated 06.02.2014 amounts to change in the criteria of selection of teachers after the selection process commenced? (iv) Whether prescribing 40% marks as weightage for the academic performance is arbitrary and does not take into consideration different streams of education and subjects of study? Point No. 1: Whether the State Government has the competence to give relaxation of 5% marks in Teacher Eligibility Test (TET) and whether such Page No. 13 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. relaxation provided by the State Government by G.O.(Ms.) No.25 dated 06.02.2014 is legally justified? 16. In exercise of the power conferred under Section 23 (1) of Right of Children to Free and Compulsory Education Act 35 of 2009, a Notification was issued by NCTE prescribing the minimum qualification for a person to be eligible for appointment as a teacher in Class I to VIII in a school referred to in clause (n) of Section 2 of Act 35 of 2009. Notification dated 23.08.2010 was followed by Guidelines dated 11.02.2011 issued by the NCTE for conducting TET under the Act. Guideline No.9 deals with qualifying marks, which reads as under:- “Qualifying marks.- 9. A person who scores 60% or more in the TET exam will be considered as TET pass. School managements (Government, local bodies, government aided and unaided) (a) may consider giving concessions to persons belonging to SC/ST, OBC, differently abled persons, etc., in accordance with their extant reservation policy; (b) should give weightage to the TET scores in the recruitment process; however, qualifying the TET would not confer a right on any person for recruitment/employment as it is only one of the eligibility criteria for appointment.” While prescribing 60% marks as minimum qualifying marks for TET, Clause 9 enables concerned government/authorities to grant concessions/relaxation to persons belonging to SC/ST, OBC, differently-abled persons, etc., in accordance with their extant reservation policy. 17. As noticed earlier, the Government of Tamil Nadu in G.O.(Ms.) No.252 School Education (Q) Department dated 05.10.2012 fixed the criteria for Page No. 14 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. selection of candidates who have cleared the TET for appointment to the post of Secondary Grade Teachers and B.T. Assistants. As per the said Government Order, out of the 100 marks, 40 marks have been earmarked for academic performance. Remaining 60 marks out of 100 has been fixed for the TET. A Notification was issued by the Teachers Recruitment Board on 22.05.2013 for the conduct of TET, followed by recruitment of teachers. Clause 6 of the Notification, which deals with “General Information”, makes it clear that the TET is only a pre-requisite eligibility test for those who are seeking appointment as a teacher and that a TET certificate issued will be valid for seven years from the date of its issuance. Recruitment of teachers is conducted separately as and when there is a need, following the Guidelines issued by the Government of Tamil Nadu. Accordingly, it was notified to the candidates that TET is only an eligibility test and conducting of the same is distinct from the recruitment of teachers, which is a subsequent event. 18. Section 23 of the RTE Act empowers the Central Government to authorize the academic authority to prescribe minimum qualification to be eligible for appointment of teachers. Once the academic authority fixes the minimum qualification, then the relaxation is possible only under Section 23(2). Sub-section (2) enables the State to approach the Central Government to relax the minimum qualification required for appointment of Page No. 15 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. teachers, where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualification as laid down under sub-section (1) are not available in sufficient numbers. On such request, the Central Government may, if it deems necessary, by Notification, relax the minimum qualification required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that Notification. In terms of Section 23 (2) power to relax such minimum qualification has been reserved with the Central Government. 19. Contention of the appellants is that Section 23 (2) of the RTE Act requires the State/Union Territories to request the Central Government for relaxation of prescribed minimum qualification to be eligible for appointment of teachers and the power to relax the minimum qualification is exclusively within the domain of the Central Government and the same does not rest with the State Government or NCTE. It is further submitted that the High Court without properly appreciating the import of Section 23 of the Act, and Rules 17 and 18 of the Rules, erroneously held that Clause No. 9 of NCTE Guidelines dated 11.02.2011 empowered the State to make such relaxation. It was submitted that the Guidelines of NCTE cannot be contrary to the provisions of the Act and the Rules. 20. Per contra, the respondent-State has maintained that the Government was well within its powers to take a policy decision of granting relaxation to Page No. 16 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. the reserved category candidates. In this regard, the State has placed reliance on Clause No.9 of NCTE Guidelines which empowers the Government or local bodies to grant concessions/relaxation as per their respective reservation policies. 21. As noted earlier, Clause No.9 NCTE Guideline vests a discretion in the School Managements (State Government, Local Bodies, Government aided and un-aided) to grant relaxation/concessions to persons belonging to SC/ST, OBC, differently-abled persons etc. in accordance with their extant reservation policy. Clause No. 9(a) clearly empowers the State Government/School Managements/Local Bodies to grant such relaxation. Candidates had also contended before the courts that no reservation policy was in-effect at the relevant point of time. 22. Article 14 of the Constitution enshrines the principle of equality before law. Article 15 prohibits discrimination against citizens on grounds only of religion, race, caste, sex, place of birth or any of them. As per Article 16, there shall be equality of opportunity for all citizens in matters relating to employment, or appointment to any office under the State. However, at the same time, the framers of the Constitution were conscious of the backwardness of large sections of the population. It was also apparent that because of their backwardness, these sections of the population would not be in a position to compete with advanced section of the community. Article Page No. 17 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. 16 (4) of the Constitution enables the State to make provision for reservation of appointments or posts in favour of any backward class of citizens which, in its opinion, is not, adequately represented in the services under the State. Article 16(4) has to be read with Article 335 which deals with claims of Scheduled Castes and Scheduled Tribes to services and posts and lays down that “the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State”. 23. Constitution of India has made adequate enabling provisions empowering the State to promote reservation/concessions: Special provisions are made for advancement of the socially and economically backward classes. These provisions will bring out the contents of equality of opportunity guaranteed under Articles 14, 15 (1), 16 (1) of the Constitution of India by creating equal level-playing field. In M. Nagaraj and Others v. Union of India and Others (2006) 8 SCC 212, Constitution Bench of this Court held as follows:- “47. Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the State is obliged to provide a level-playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalizing results with respect to various groups. Both the conceptions constitute “equality of opportunity”.” Page No. 18 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. 24. Preferential treatment or concessions granted to SC/ST, backward classes, physically handicapped and denotified communities is within the concept of equality. Grant of relaxation is for the upliftment of Scheduled Castes and Scheduled Tribes and other backward communities and the same has been eloquently stated in State of Madhya Pradesh and Anr. v. Kumari Nivedita Jain and Others (1981) 4 SCC 296 as under:- “26. It cannot be disputed that the State must do everything possible for the upliftment of the Scheduled Castes and Scheduled Tribes and other backward communities and the State is entitled to make reservations for them in the matter of admission to medical and other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective and would benefit the candidates belonging to these categories for whose benefit and welfare the reservations have been made. In any particular situation, taking into consideration the realities and circumstances prevailing in the State it will be open to the State to vary and modify the conditions regarding selection for admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made and if there be no law to the contrary. Note (ii) of Rule 20 of the Rules for admission framed by the State Government specifically empowers the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary…..The relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes and Scheduled Tribes for admission into Medical Colleges cannot be said to be unreasonable and the said relaxation constitutes no violation of Article 15(1) and (2) of the Constitution. The said relaxation also does not offend Article 14 of the Constitution. It has to be noticed that there is no relaxation of the condition regarding eligibility for admission into Medical Colleges. The relaxation is only in the rule regarding selection of candidates belonging to Scheduled Castes and Scheduled Tribes categories who were otherwise qualified and eligible to seek admission into Medical Colleges only in relation to seats reserved for them….” 25. The idea behind laying down NCTE Guidelines for conducting TET was to bring about uniformity and certainty in the standards and quality of education being imparted to the students across the nation. However, at the same time the framers of the guidelines took note of the huge Page No. 19 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. socio-economic disparity existing in the nation and accordingly, by virtue of Clause No. 9 enabled the respective state governments/authorities to provide relaxation to the candidates belonging to socially backward classes. As discussed earlier, such a provision is in line with the principles enshrined in the Constitution. State Government cannot be faulted for discharging its constitutional obligation of upliftment of socially and economically backward Communities by providing 5% relaxation to candidates belonging to Scheduled Caste, Schedule Tribes, Backward Classes, Backward Classes (Muslim), Most Backward Classes, De-notified Communities and Persons with Disability (PWD). 26. State of Rajasthan by its Notification dated 29.07.2011 has granted similar relaxation of 5% marks in the qualifying marks relatable to TET exams conducted in the State of Rajasthan. The Rajasthan High Court struck down the relaxation granted by the State of Rajasthan on the ground that such relaxation was in excess of extant reservation policy. In Vikas Sankhala and Ors. v. Vikas Kumar Agarwal and Ors. Etc. (2016) 10 SCALE 163, this Court reversed the judgment of the Rajasthan High Court holding that State has a legitimate right in granting such relaxation to SC/ST, OBC etc. After referring to Nivedita Jain and M. Nagaraj case, this Court in paras (51), (54) and (55) held as under:- “51. Examined in the aforesaid context, when our Constitution envisages equal respect and concern for each individual in the society and the attainment of the goal requires special attention to be paid to some, that Page No. 20 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. ought to be done. Giving of desired concessions to the reserved category persons, thus, ensures equality as a levelling process. At jurisprudential level, whether reservation policies are defended on compensatory principles, utilitarian principles or on the principles of distributive justice, fact remains that the very ethos of such policies is to bring out equality, by taking affirmative action. Indian Constitution has made adequate enabling provisions empowering the State to provide such concessions. …….. 54. It hardly needs to be emphasized that the State has a legitimate and substantial interest in ameliorating or eliminating where feasible, the disabling effects of identified discrimination. It is a duty cast upon the State, by the Constitution, to remedy the effects of “societal discrimination”. Provision for relaxation in TET pass marks has to be looked into from this angle which is in tune with the constitutional philosophy. After all it only ensures that such candidates belonging to reserved category become eligible for appointment as primary teachers. On the other hand, when it comes to selection process such reserved category candidates have to compete with general category candidates wherein due regard for merit is given. Therefore, only those candidates belonging to reserved category who are found meritorious in selection are ultimately appointed. We are of the opinion that in this manner the two constitutional goals, that of rendering quality education on the one hand and providing “equality of opportunity’ to the unprivileged class on the other hand, are adequately met and rightly balanced. 55. We, thus, do not agree with the interpretation that is given by the High Court and answer Question No.1 holding that relaxation prescribed in letter dated March 23, 2011 in pass marks in TET examination for different reserved categories mentioned therein is legal and valid in law.” We are entirely in agreement with the above judgment in Vikas Sankhala case. 27. Granting relaxation to SC/ST, OBC, physically handicapped and de-notified communities is in furtherance of the constitutional obligation of the State to the under-privileged and create an equal level-playing field. After referring to clause 9 of the NCTE Guidelines, the Madras High Court rightly held that the Government of Tamil Nadu has acted in exercise of the powers conferred under clause 9 of the Guidelines issued by the NCTE. Madurai Bench was not right in quashing G.O.(Ms.) No.25 dated 06.02.2014 Page No. 21 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. on the ground that such relaxation “based upon the theory of social justice is actually destructive of the very fabric of the social justice”. In our considered view, the judgment of the Madurai Bench has not kept in view the constitutional obligation of the State to provide equal level-playing field to the under privileged. In consonance with the M. Nagaraj case, an affirmative action taken by State Government granting relaxation for TET would not amount to dilution of standards and hence the view taken by the Madurai Bench is not sustainable and is liable to be set aside. Point No. 2: Whether the State Government is estopped from granting relaxation? 28. In the earlier round of litigation (in Writ Petition No. 30425 of 2012 and Writ Petition No.22407 of 2013), Government of Tamil Nadu took a categorical stand that they would not compromise on the quality of the teachers. After referring to the said stand of the State Government in its counter affidavit before the Division Bench, in paras (38) to (40) of the judgment, Madurai Bench observed that the State Government is not justified in retracting from its earlier stand. The Madurai Bench further observed that the impugned Government Order G.O.(Ms.) No. 25 dated 06.02.2014 is not based upon any statistics and therefore granting relaxation to advance social justice “…. is nothing but a myth and is not based on facts and figures”. On behalf of the appellants much reliance was placed upon the earlier stand of the Government to contend that when the Government Page No. 22 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. had earlier taken the stand that it would not grant relaxation of marks for TET pass and dilute the standards of education, the Government cannot approbate and reprobate at the same time by changing its stand. It was further submitted that the teachers are responsible for moulding the younger minds and any dilution of standards of TET would be detrimental to the standards of education. 29. We are unable to persuade ourselves to accept the view of Madurai Bench quashing the impugned G.O. on the ground of alleged change in the stand of the Government. Considering the representation from various quarters, it was a policy decision taken by the Government to relax marks for TET pass for specified and under-privileged communities. It is a matter of State policy to frame and prescribe selection norms with regard to services and posts connected with the affairs of the State. It is well-settled that courts cannot interfere with the policy decisions of the State especially when the policy decision is taken in public interest to further the advancement of reserved categories. A policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India is subservient only to the mandate of the constitutional provisions and the recruitment rules framed by the State itself, either in terms of a legislative act or an executive order. The relaxation provided by the State Government and criteria of selection laid down vide impugned government orders are in exercise of the powers provided under the proviso to Article 309 of the Page No. 23 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. Constitution of India and being a policy decision in terms of its extant reservation policy cannot be impeached on the ground that the relaxation has been given to suit some specific class of individuals. 30. It is now well settled by a catena of decisions that there can be no question of estoppels against the Government in the exercise of its legislative, sovereign or executive powers (vide Excise Commissioner U.P., Allahabad v. Ram Kumar (1976) 3 SCC 540 and M. Ramanatha Pillai v. State of Kerala and Anr. (1973) 2 SCC 650). The view taken by Madurai Bench as regards the stand of the Government to relax the norms allegedly in contradiction to its earlier stand is not sustainable in law. Point No. 3: Whether providing relaxation of 5% marks in TET amounts to change in the criteria of selection of teachers after the selection process commenced? 31. The appellants have contended that the provisionally selected candidates were called to attend certificate verification on 23.01.2014 and 24.01.2014 and weightage marks were also awarded as per the then existing Government Order. While so, by issuing impugned G.O.Ms. No.25 dated 06.02.2014 and G.O.Ms. No. 29 dated 14.02.2014 the criteria of selection was altered by relaxing passing marks by 5% in TET from 60% to 55%, thereby allowing large number of candidates who scored lesser marks to be considered for selection. As per the appellants, this has resulted in altering the criteria of selection after the commencement of selection Page No. 24 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. process. Reliance is placed upon K. Manjushree v. State of Andhra Pradesh and Anr. (2008) 3 SCC 512 and Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11 to contend that the rules of selection cannot be changed after the selection process commenced. 32. Per contra, State has contended that granting relaxation of marks to SCs/STs/OBCs and others will not amount to change in the rules of the games. By relaxation of marks more candidates belonging to reserved category are allowed to compete. The appellants cannot contend that their rights have been taken away; no prejudice has been caused to them as the selection criteria has not been altered with respect to them. 33. Appellants appeared in the TET conducted on 17.08.2013 and 18.08.2013. Respondents were to select the suitable candidates. As per the selection criteria laid down in G.O. Ms. No. 252 laid down that the candidates have to secure minimum 60% in TET so as to qualify the said exam. The weightage of the marks secured in TET was 60% and that of academic qualification was 40%. It is true that the candidates who passed TET were called to attend certificate verification on 23.01.2014 and 24.01.2014; but the selection process has not been completed. Later on, G.O.Ms. No.25 dated 06.02.2014 was issued granting relaxation of 5% marks to SC, ST, backward classes, physically handicapped, de-notified communities etc. The purpose of relaxation was to increase the participation Page No. 25 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. of candidates belonging to backward classes in State’s pool of teachers. The State Government merely widened the ambit of TET so as to reach out to those candidates belonging to the deprived section of the society who were not able to compete, inspite of possessing good academic records and qualifications. The change brought about in the selection criteria is Government’s prerogative. In terms of their extant reservation policy, the State Government is free to take actions suitable to the socio-economic conditions prevalent in the State, especially with regard to selection of candidates belonging to reserved category to be employed in State Service. Merely, because the Government has widened the ambit of selection, so as to enable more and more candidates to take part in the selection process, the right of candidates who were already in the process cannot be said to have been adversely affected. It is in the interest of reserved category of candidates that more candidates take part in the selection process and best and most efficient of them get selected. This will not amount to change in the criteria for selection after the selection process commenced. 34. As discussed earlier, by virtue of NCTE Guidelines No.9 dated 11.02.2011, the State Government was already empowered to grant relaxation to under-privileged candidates and only in exercise of that power, G.O.Ms.No.25 was issued to create a level-playing field. Further as noted earlier, in TET-I conducted in 2012, 7,14,526 candidates had appeared and Page No. 26 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. only 2448 (0.3%) had qualified. In the subsequent TET, around 6 lakhs candidates had appeared and only 20,000 i.e. 3% candidates could clear the test. Even in third TET with which we are concerned only 16,392 candidates had qualified. In that scenario to provide a level-playing field to persons belonging to SC/ST/OBC, denotified communities, differently-abled persons etc., State Government relaxed 5% marks to enable them to compete with others. It was the prerogative of the State Government to relax the passing marks with respect to reserved category candidates so that more qualified candidates could come up and participate in the selection process. In fact, even after grant of relaxation of 5% marks, many posts of reserved categories are remaining unfilled. State has placed the figures before us to show that even after granting relaxation of 5% marks, many posts of SCs/STs and other backward categories in various subjects are remaining unfilled. 35. The Government has not changed the rules of selection so far as the present appellants are concerned. Weightage of marks obtained in TET as well as that of academic qualification is still the same. The entire selection process conforms to the equitable standards laid down by the State Government in line with the principles enshrined in the Constitution and the extant reservation policy of the State. It is not the case where basic eligibility criteria has been altered in the midst of the selection process. Page No. 27 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. Conducting TET and calling for certificate verification thereafter is an exercise which the State Government is obliged to conduct every year as per the Guidelines issued by NCTE. By calling for CV along with certificates of other requisite academic qualifications, a candidate’s overall eligibility is ascertained and then he/she is recruited. Such an exercise by which qualified teachers in the State are segregated and correspondingly certified to that effect cannot be equated to finalization of select list which comes at a much later stage. No prejudice has been caused to the appellants, since the marks obtained by the appellants in TET are to remain valid for a period of seven years, based on which they can compete for the future vacancies. Merely because appellants were called for certificate verification, it cannot be contended that they have acquired a legal right to the post. Impugned G.O. Ms.No.25 did not take away the rights of the appellants from being considered on their own merits as pointed out by the Madras Bench. We entirely agree with the views taken by the Madras Bench that “by merely allowing more persons to compete, the petitioners cannot contend that their accrued right has been taken away”. 36. Appearing in TET is synonymous to obtaining an eligibility. By obtaining pass marks in TET a candidate is not said to have been recruited. Marks obtained in TET accounts only for 60% in the final selection and rest 40% is covered by academic performance. By granting relaxation of 5% Page No. 28 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. marks in TET for reserved categories only, the eligibility criteria is neither altered nor any prejudice is caused to the appellants. The contention of the appellants that the State Government cannot legally alter the selection criteria after conducting the exam does not find force in the light of view taken by a three Judge Bench of this Court in Tej Prakash Pathak and Ors. v. Rajasthan High Court and Ors. (2013) 4 SCC 540. In this case, the then Chief Justice of the concerned High Court ordered that examination conducted for the posts of ‘Translators’ be treated as competitive examination and only those candidates who secured a minimum of 75% marks be selected to fill up the posts in questions. In view of the decision of the Chief Justice, only three candidates were found suitable for appointment. This triggered the litigation. It was observed that there is difference between altering the basic eligibility criteria in the mid of the process of selection and altering the mere procedure of selection. 37. The State Government cannot be faulted for altering the selection criteria by relaxing 5% marks in favour of reserved category candidates. In Tej Prakash (supra) the alteration in procedure in effect led to elimination of selected candidates, still the Court refrained from finding fault with such an alteration, as it was done in public interest. In the present case, the relaxation afforded to the reserved category candidates has in no way eliminated the appellants from the selection process; rather a fair opportunity Page No. 29 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. has been provided to other candidates who can legitimately compete with the appellants herein. Point No.4: Challenge to G.O. Ms. No.71 dated 30.05.2014? 38. The appellants have also challenged G.O.Ms. 71, which was issued by the respondents pursuant to the decision of the Single Judge of the High Court. As already noted before, the Single Judge while declining the challenge to G.O.Ms. No. 252 and G.O.Ms. No. 25 had set aside the grading system adopted by the Government vide G.O.Ms. No. 252. The Single Judge observed that the grading system adopted in G.O.Ms. No. 252 lacks rationality as it places candidates with the difference of 1 to 9 percentage in the same basket. Accordingly, vide G.O.Ms.No. 71 the Government came up with the grading methodology as indicated supra in para No 10. The appellants have not only challenged the new grading system introduced by G.O. No. 71; but they have also challenged the weightage of marks of 40% earmarked for academic performance. It is their contention that the Government has blindly accepted the recommendation of Single Judge without application of mind. 39. As it is evident from the records, distribution of marks for academic performance and TET fixed by the respondents vide G.O. No. 252 continues to be the same even after issuing of G.O. No. 71. That is, for the post of secondary grade teachers weightage of marks obtained in H.Sc. examination, D.T.Ed./D.E.Ed and TET was 15 marks, 25 marks and 60 Page No. 30 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. marks respectively and it continues to be the same. Similarly, for the post of Graduate Assistants weightage of marks obtained in H.Sc. examination, Degree Examination, B.Ed and TET was 10 marks, 15 marks, 15 marks and 60 marks and it also continued to be the same. In such circumstances, we hold that the Madras High Court has correctly held that it is not open to the appellants to challenge the weightage of marks. The TET conducted on 17.08.2013 and 18.08.2013 was pursuant to the issuing of G.O.Ms.No.252 fixing the weightage for the marks in the basic qualification itself in which the appellants have participated. Thus, it is not open to the appellants to challenge the said procedure adopted by the respondents after writing the examination. 40. The second aspect of challenge relates to the grading system adopted by the respondents. The respondents have acted as per the directions of the Single Judge of the High Court. The Single Judge in his judgment dated 29.04.2014 while declaring the slab system irrational, suggested a scientific rational method for award of weightage marks with reference to actual marks secured by each candidate in H.Sc./D.T.Ed./D.E.Ed/B.Ed/TET for Secondary Grade Teachers/ Graduate Assistants as the case may be and accordingly make selections. This was accepted by the government in G.O.(Ms.) No.71 dated 30.05.2014 and the respondents have thus come up with the present awarding of weightage marks with reference to actual marks secured by each candidate which is more scientific and appropriate and as compared to Page No. 31 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. the previous grading system contained in G.O. No. 252 which had put candidates obtaining 1-9% marks on the same footing. 41. The appellants have maintained that while prescribing the marks for performance in Higher Secondary Examination, the respondents have failed to take into account different Education Boards (CBSE, ICSE, State Boards etc.) conducting Higher Secondary Examination and difference in their marks awarding patterns. As also, the appellants have alleged that respondents failed to consider different streams of education while formulating the grading pattern. It is submitted that unless and until the respondents take note of difference in marking scheme of Education boards, as also the marking scheme of different streams such as Arts, Science etc. a valid grading system cannot be formulated. Equivalence of academic qualifications is a matter for experts and courts normally do not interfere with the decisions of the Government based on the recommendations of the experts (vide University of Mysore v. CD Govinda Rao (1964) 4 SCR 575 and Mohd. Sujat Ali v. Union of India (1975) 3 SCC 76). We hold that it is the prerogative of State-Authorities to formulate a system whereby weightage marks is decided with reference to actual marks secured by each candidate. In the present case, as no arbitrariness is proved on the part of the respondents, in formulating the grading system we cannot interfere with the same. We cannot be expected to go into every minute technicalities of decision taken by the experts and perform the job of the respondent-State. Page No. 32 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. Moreover, the High Court has also noted that submission of learned Advocate General that almost all the appellants have completed their High Secondary examination from the State Boards. 42. The contention that different Boards of Examination have different standards and the examiners who evaluate the scripts are in some places more liberal than others and that the candidates who acquired qualifications decades back had to suffer strict evaluation as compared to the candidates who have qualified in the recent past facing liberal evaluation criteria, are all hypothetical arguments without any pleading and supporting material disclosed in the Writ Petitions. As noted earlier, weightage of marks for academic performance and TET fixed vide G.O.(Ms.) No.252 dated 05.10.2012 continues to be the same even after issuing G.O.(Ms.)No.71 dated 30.05.2014. Having taken up the examination as per G.O.(Ms.) No.252, the appellants cannot challenge the award of weightage for the distribution of marks for academic performance with reference to actual marks secured by each candidate. The appellants are not justified in challenging every rational decision taken by the respondents to make the selection process more fair and reasonable merely because the outcome does not favour the limited individual interests of the appellants. 43. The Madras High Court rightly rejected the challenge to G.O.(Ms.) No.25 dated 06.02.2014 and G.O.(Ms.)No. 71 dated 30.05.2014, holding Page No. 33 of 34
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C.A. No………… of 2016 @ SLP© No. 29245/2014 ETC. that as per the NCTE Guidelines, the State Government has the power to grant relaxation on the marks obtained in the TET for the candidates belonging to reserved category and the same is affirmed. The Madurai Bench did not keep in view the NCTE Guidelines and the power of the State Government to grant relaxation in terms of their extant reservation policy and erred in quashing G.O.(Ms.) No.25 dated 06.02.2014 and hence the same is liable to be set aside. 44. The appeals filed by the State Government are, accordingly, allowed and the impugned judgment of the Madurai Bench is set aside. The impugned judgment of the Madras Bench of the High Court is affirmed and all the appeals preferred by the unsuccessful candidates are dismissed. ...……………………….J. [SHIVA KIRTI SINGH] .………………………..J. [R. BANUMATHI] New Delhi; November 9, 2016 Page No. 34 of 34



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