Case: V. Lavanya  Vs. The State Of Tamil Nadu

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,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%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 firstI (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 asof candidates who appearedNo. of candidates who passed% of passPaper I3,05,4051,7350.57%Papersupplementary 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 asof candidates who appearedNo. of candidates who passed% of passPaper I2,78,72510,3973.7%Paper II3,64,3708,8642.4%Total6,43,09519,2612.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 aeligibility 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 Honble 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,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 ascontinuation of the announcement made by the Honble 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,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 GraduateMarksMinimum Marks (%) to be obtained in TNTETPaper IPaper IIGeneral15060% or 90 marks60% or 90 marksSC, ST, BC, BC(M), MBC, DNC and Persons with Disability (PWD)15055% or 82.5 marks rounded off to 82 marks55% or 82.5 marks rounded off to 82Relaxing 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,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,Communities, and Persons with Disability (PWD) at 82 marks (55% ofsaid 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 asNadu Teacher Eligibility Test for Secondary Grade Teachers and GraduatepassedWeightage of marks90% and above80% and above but below 90%70% and above but below 80%60% and above but below 70%55% and above but belowThe 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,Communities and Persons with Disability (PWD).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 asThe 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 asTamil 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: 60weightage 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 shownExaminationWeightage of marksPercentage of marks obtained in the qualifying examinationMarks assignedH. Sc.15P%(P x 15)/100D.T.Ed.,/D.E.Ed.,25Q%(Q x 25)/100TET60R%(R x 60)/100Total100Tamil 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: 60e 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 shownExaminationWeightage of marksPercentage of marks obtained in the qualifying examinationMarks assignedH.Sc.10P%(P x 10)/100Degree15Q%(Q x 15)/100B.Ed.15R%(R x 15)/100TET60S%(S x 60)/100Total100Government 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.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 areto 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.

Reasoning:
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 hugedisparity 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,s and Persons with Disabilityhardly 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 inare entirely in agreement with the above judgment in Vikas Sankhala case.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 asin 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.Granting relaxation to SC/ST, OBC, physically handicapped anddenotified communities isin furtherance of the constitutional obligation of the State to theand create an equalfield. 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 equalfield 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.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 andcommunities. 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 isthat 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.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,communities etc. The purpose of relaxation was to increase the participation of candidates belonging to backward classes in States 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 Governments prerogative. In terms of their extant reservation policy, the State Government is free to take actions suitable to theconditions 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.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 candidates 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".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.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 thehold that it is the prerogative ofto 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 theMoreover, 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.