Case: Vikas Sankhala & Ors Etc Vs. Vikas Kumar Agarwal & Ors Etc


Decision:
1[ds]32. We find merit in the contention of the appellants and do not agree with the respondents that the provision for relaxation upto 5% in qualifying marks at all relates to TET. In the first instance, it is to be noted that insofar as qualifying marks for TET are concerned, they are prescribed in para 9 of the guidelines dated February 11, 2011. There is no amendment to the said para. Amendment is incorporated in para 3 of the principal notification dated February 11, 2011 which we have already reproduced above. Original para 3 gives the rationale for including TET as a minimum qualification. Though, it is not understood as to why that para is substituted by the aforesaid amended para vide notification dated July 29, 2011. Be that as it may, a reading of amended para 3 clearly brings out that it incorporates two aspects. First aspect touches upon the training to be undergone by a person and this training can be undergone by those persons who have certain specified marks in graduation and D.Ed. (Special Education) or B.Ed. (Special Education). Training is for 6 months duration i.e. 6 months special programme in elementary education. Insofar as persons having graduation and B.Ed. qualification are concerned, minimum marks in the graduation or B.Ed. are also prescribed. It is stipulated that graduation should be with at least 50% marks and B.Ed. qualification with at least 45% marks. However, those who have done D.Ed. (Special Education) or B.Ed. (Special Education), no minimum marks in obtaining those qualifications are prescribed. What follows is that person who is graduate with B.Ed. qualification, he/she should have minimum 50% marks in graduation and 45% marks in B.Ed. qualification. It is in this context second aspect of the amended provision in sub-para (ii) of para 3 mentions about Reservation Policy and allows relaxation upto 5% in qualifying marks. This relaxation is, therefore, clearly relatable to marks in graduation and B.Ed. qualification, meaning thereby insofar as reserved category candidates such as SC/ST/OBC/PH are concerned, they will be treated as qualified to undergo the training in case they pass graduation with minimum 45% marks and B.Ed. qualification with minimum 40% marks. We are clear in mind that this relaxation of 5% does not relate to TET at all. Had it been so, this notification dated July 29, 2011 would have amended para 9 and, particularly, sub-para (a) of para 9 which deals with concessions to reserved category candidates that has not happened and is left intactThus, our answer to Question No. 2 is that insofar as NCTE is concerned, it has not provided any provision for relaxation in TET examination for reserved category candidates but has left it to the State Governments to do the needful in this behalf, as per para 9 of guidelines dated February 11, 2011 which remains unaltered54. It hardly needs to be emphasised 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 balanced55. 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 lawfirst aspect that needs consideration is as to whether relaxation in TET pass marks would amount to concession in the recruitment process. The High Court has held to be so on the premise that para 9(a) dealing with such relaxation in TET marks forms part of the document which relates to the recruitment procedure. It is difficult to accept this rationale or analogy. Passing of TET examination is a condition of eligibility for appointment as a teacher. It is a necessary qualification without which a candidate is not eligible to be considered for appointment. This was clearly mentioned in guidelines/notification dated February 11, 2011. These guidelines pertain to conducting of TET. Basic features whereof have already been pointed out above. Even para 9 which provides for concessions that can be given to certain reserved categories deals with qualifying marks that is to be obtained in TET examination. Thus, a person who passes TET examination becomes eligible to participate in the selection process as and when such selection process for filling up of the posts of primary teachers is to be undertaken by the State. On the other hand, when it comes to recruitment of teachers, the method for appointment of teachers is altogether different. Here, merit list of successful candidates is to be prepared on the basis of marks obtained under different heads. One of the heads is marks in TET. So far as this head is concerned, 20% of the marks obtained in TET are to be assigned to each candidate. Therefore, those reserved category candidates who secured lesser marks in TET would naturally get less marks under this head. We like to demonstrate it with an example. Suppose a reserved category candidate obtains 53 marks in TET, he is treated as having qualified TET. However, when he is considered for selection to the post of primary teacher, in respect of allocation of marks he will get 20% marks for TET. As against him, a general candidate who secures 70 marks in TET shall be awarded 14 marks in recruitment process. Thus, on the basis of TET marks reserved category candidate has not got any advantage while considering his candidature for the post. On the contrary, level playing field is maintained whereby a person securing higher marks in TET, whether belonging to general category or reserved category, is allocated higher marks in respect of 20% of TET marks. Thus, in recruitment process no weightage or concession is given and allocation of 20% of TET marks is applied across the board. Therefore, the High Court is not correct in observing that concession was given in the recruitment process on the basis of relaxation in TET61. Once this vital differentiation is understood, it would lead to the conclusion that no concession becomes available to the reserved category candidate by giving relaxation in pass marks in TET insofar as recruitment process is concerned. It only enables them to compete with others by allowing them to participate in the selection process. In this backdrop, irrespective of circular dated May 11, 2011, the reserved category candidates who secured more marks than marks obtained by the last candidate selected in general category, would be entitled to be considered against unreserved category vacancies. However, it would be subject to the condition that these candidates have not availed any other concession in terms of number of attempts, etc., except on fee and ageThe question here is as to whether it was necessary that there had to be an existing policy before the State Government issued its letter dated March 23, 2011 or laying down of such a policy in communication dated March 23, 2011 itself, may be for the first time, would fulfill the requirement of extant policy. We do not find any condition in clause 9(a) for pre-existing reservation policy. On the contrary, the provision only mentions that if there is a reservation policy providing concessions to the persons belonging to SC/ST, OBC, differently abled persons etc., concessions can be given in accordance with the said policy. Even if there was no such policy in existence as on the date when NCTE issued guidelines dated February 11, 2011, it would not mean that State Governments are precluded from formulating such reservation policy even thereafter. Para 9(a) uses the expression extant reservation policy and not pre-existing reservation policy. Mr. Mata, learned senior advocate is right in submitting that a holistic reading of para 9 of the guidelines would mean that at the time of recruitment process, the school managements were being given liberty to consider and provide for concessions to reserved category candidates in TET qualifying marks. Thus, it becomes clear that the word extant means which remains or survives. To give a practical interpretation to clause 9 of guidelines dated February 11, 2011, the phrase extant reservation policy should be read to mean the policy surviving at the time of TET examination or at the most at the time of recruitment. Any other interpretation of the said phrase would be totally impracticable and would deprive the State for taking a decision to give relaxation to reserved category candidates. Such interpretation cannot be applied thereby seizing the powers of the State in recognising reserved categories and to give relaxations and to modify them from time to time with changing socio-economical conditions. The advertisement issued by the local authorities for the recruitment of teachers in 2012 as well as in 2013 specifically contains clause 7(b) that the candidate is required to be passed in TET conducting by State of Rajasthan in accordance with the guiding principals issued by NCTE. In our opinion this would meet the requirement of extant reservation policy of the State47. It is a matter of record, which is taken note of the High Court also, such relaxation has been granted by various State Governments and respondents State is not only State. However, one observation made by the High Court needs serious consideration. It is pointed out that except for the State of Andhra Pradesh, no other State has granted such wide range of concessions as the State of Rajasthan did in its letter dated March 23, 2011. This is an aspect which needs to be looked into and needs to be reconsidered by the States inasmuch as very high percentage of relaxation may amount to compromising with quality which may not be conducive to maintaining standards of education. However, we are not tinkering with the extant of relaxation given in letter dated March 23, 2011 because of the reason that on that basis, two recruitment tests have been conducted and candidates who have been selected are now teaching for last number of years. However, for future selections in this behalf, we impress upon the State Government to consider this aspect and bring the relaxations within reasonable limits48. The exhortation of the High Court in the impugned judgment that the noble purpose contained in RTE Act can be achieved by providing free and compulsory education of satisfactory quality, cannot be doubted. Indeed it is a salubrious mission of the RTE Act which not only guarantees full time elementary education to every child upto 14 years of age, but also the quality of education which is satisfactory and equitable. The High Court is also right in remarking that in order to impart quality education, we need those teachers who are processed of essential aptitude and ability to meet the challenged of teaching at the primary and upper primary levels. No doubt, these are important considerations to achieve the laudable objects. For this purpose, if passing of TET examination is treated as minimum essential qualification for a person to be eligible for appointment as primary teacher, that cannot be countenanced. However, when it comes to giving concession to certain reserved category candidates insofar as passing marks in TET is concerned, such a provision by itself will not affect the teaching quality. All said and done, Section 23(2) of the RTE Act itself recognises the power for relaxing the minimum qualifications required of a person to be eligible for appointment as primary teacher. When it comes to the question of giving relaxation in passing marks in TET, different outlook and glance stands attracted. Here comes the question of taking affirmative action for the upliftment of the Scheduled Castes, Scheduled Tribes and Other Backward Communities/Classesthat needs consideration is as to whether relaxation in TET pass marks would amount to concession in the recruitment process. The High Court has held to be so on the premise that para 9(a) dealing with such relaxation in TET marks forms part of the document which relates to the recruitment procedure. It is difficult to accept this rationale or analogy. Passing of TET examination is a condition of eligibility for appointment as a teacher. It is a necessary qualification without which a candidate is not eligible to be considered for appointment. This was clearly mentioned in guidelines/notification dated February 11, 2011. These guidelines pertain to conducting of TET. Basic features whereof have already been pointed out above. Even para 9 which provides for concessions that can be given to certain reserved categories deals with qualifying marks that is to be obtained in TET examination. Thus, a person who passes TET examination becomes eligible to participate in the selection process as and when such selection process for filling up of the posts of primary teachers is to be undertaken by the State. On the other hand, when it comes to recruitment of teachers, the method for appointment of teachers is altogether different. Here, merit list of successful candidates is to be prepared on the basis of marks obtained under different heads. One of the heads is marks in TET. So far as this head is concerned, 20% of the marks obtained in TET are to be assigned to each candidate. Therefore, those reserved category candidates who secured lesser marks in TET would naturally get less marks under this head. We like to demonstrate it with an example. Suppose a reserved category candidate obtains 53 marks in TET, he is treated as having qualified TET. However, when he is considered for selection to the post of primary teacher, in respect of allocation of marks he will get 20% marks for TET. As against him, a general candidate who secures 70 marks in TET shall be awarded 14 marks in recruitment process. Thus, on the basis of TET marks reserved category candidate has not got any advantage while considering his candidature for the post. On the contrary, level playing field is maintained whereby a person securing higher marks in TET, whether belonging to general category or reserved category, is allocated higher marks in respect of 20% of TET marks. Thus, in recruitment process no weightage or concession is given and allocation of 20% of TET marks is applied across the board. Therefore, the High Court is not correct in observing that concession was given in the recruitment process on the basis of relaxation in TET61. Once this vital differentiation is understood, it would lead to the conclusion that no concession becomes available to the reserved category candidate by giving relaxation in pass marks in TET insofar as recruitment process is concerned. It only enables them to compete with others by allowing them to participate in the selection process. In this backdrop, irrespective of circular dated May 11, 2011, the reserved category candidates who secured more marks than marks obtained by the last candidate selected in general category, would be entitled to be considered against unreserved category vacancies. However, it would be subject to the condition that these candidates have not availed any other concession in terms of number of attempts, etc., except on fee and age