V. LAVANYA & ORS. Vs. THE STATE OF TAMIL NADU & ORS.

Tags Appointment

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 10700 of 2016, Judgment Date: Nov 09, 2016

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)

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
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.

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|No. of candidates |% of pass |
| |who appeared |who passed | |
|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% |

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 |No. of |% of pass |
| |candidates who |candidates who | |
| |appeared |passed | |
|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 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:

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:-

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|Weightage |90% |80% |70% and|60% and |55% and |
|passed |of marks |and |and |above |above but|above |
| | |above |above |but |below 70%|but |
| | | |but |below | |below |
| | | |below |80% | |60% |
| | | |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 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:-

|Qualifying|Weightage |Percentage of marks |Marks assigned |
|Examinatio|of marks |obtained in the | |
|n | |qualifying | |
| | |examination | |
|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.

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 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
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
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
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
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 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 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”.”

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 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
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 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 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 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
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 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
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. 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% 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 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 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 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.
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 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

-----------------------
|Qualifyin|Weightage |Percentage of marks|Marks assigned|
|g |of marks |obtained in the | |
|Examinati| |qualifying | |
|on | |examination | |
|H. Sc. |15 |P% |P x 15 |
| | | |100 |
|D.T.Ed.,/|25 |Q% |Q x 25 |
|D.E.Ed., | | |100 |
|TET |60 |R% |R x 60 |
| | | |100 |
|Total |100 | |xxxxx |

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