VIKAS SANKHALA & ORS. ETC. versus VIKAS KUMAR AGARWAL & ORS. ETC.
[2016] 7 S.C.R. 639, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Ratio
[2016) 7 S.C.R. 639 
VIKAS SANKHALA & ORS. ETC. 
v. 
VIKAS KUMAR AGARWAL & ORS. ETC. 
(Civil Appeal Nos. 3545-3549 of2016) 
OCTOBER 18, 2016 
(A.K. SIKRI AND R.K. AGRAWAL, JJ.] 
Right of Children to Free and Compulsory Education Act, 
2009 - s. 23: 
Qualifications for appointment of teachers - Passing of 
Teacher Eligibility Test-TET- Minimum pass percentage of TET-
Relaxation in passing marks in TET - Interference with - Held: 
Specific authorization is given to School Management (Government, 
local bodies, Government aided and unaided) to grant special 
concession to different kinds of reserved categories mentioned 
therein, which has to be in accordance with their extant reservation 
policy - Giving concession to certain reserved category candidates 
insofar as passing marks in TET is concerned, that by itself would 
not affect the teaching quality - s. 23(2) itself recognises the power 
for relaxing the minimum qualifications required of a person to be 
eligible for appointment as primary teacher - For giving relaxation 
in passing marks in TET, different outlook and glance is attracted -
Except for State of Andhra Pradesh, no other State has granted 
such wide range of concessions as State of Rajasthan did in its 
letter dated 23.03.2011 - Very high percentage of relaxation may 
amount to compromising with quality which may not be conducive 
to maintaining standards of education - Need to look into and 
reconsider this aspect to bring the relaxations within reasonable
limits - However, the Court not tinkering with the extant of relaxation 
given in letter dated.23.03.2011 since recruitment tests have been 
conducted and selected candidates are .nowcteaching for last number 
of years - Constitution of India - Arts. 15, 16, 38, 39(a) and 46. 
Qualifications for appointment of teachers - Passing of 
Teacher Eligibility Test-TET- Minimum pass percentage of TET-
Whether National Council for Teacher· Education-NCTE notification 
dated July 29, 2011, amending paragraph ) of its earlier guidelines/ 
notification dated February 11, 2011, provides 5% relaxation to 
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the reserved category for passing TET - Held: NCTE does not 
provide 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 - Relaxation provided in the amended 
para 3 has no relation whatsoever with TET but relates to the 
qualifying marks in graduation and B.Ed. Etc - It cannot be said 
that the provision for relaxation upto 5% in qualifying marks at all 
relates to TET - Relaxation in passing TET is governed by para 9 of 
the Notification 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 gives the 
rationale for including TET as a minimum qualification. 
Policy of the State in letter dated March 23, 2011 deciding to 
give relaxation ranging from 10% to 20% in TET marks to different 
reserved categories as mentioned therein - Validity of - Held: 
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. 
Reserved category candidates, who secured better than general 
category candidates in recruitment examination, if could be denied 
migration to general seats on the basis that they had availed 
relaxation in TET - Held: Migration from reserved category to 
general category admissible
to those reserved category candidates 
who secured more marks obtained by the last unreserved category 
candidates selected, subject to the condition that such reserved 
category candidates did not avail any other special concession -
Concession of passing marks in TET would not be treated as 
concession falling in the said category. 
Disposing of the appeals, the Court 
HELD: 1.1 The amended sub-para (ii) of para 3 of the 
Notification/Guidelines dated February 11, 2011 stipulates that 
relaxation upto 5% in the qualifying marks is to be allowed to 
candidates belonging to reserved categories. The submission of 
the appellants who belonged to reserved category and are 
beneficiary of relaxation provided by the State Government vide 
its letter dated March 23, 2011 is that the relaxation provided in 
the said amended para 3 has no relation whatsoever with TET 
and on the co~trary, it relates to the qualifying marks in graduation
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. 
and B.Ed. Etc, is accepted. The submission of the respondent 
belonging to general category as well as those respondents who 
belonged to reserved category but secured more than 55% marks 
In TET that the provision for relaxation upto 5% in qualifying 
marks at all relates to TET, cannot be accepted. 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. 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 said amended para vide notification dated July 
29, 2011. 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 arc 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 rclatable to marks in graduation and B.Ed. 
qualification, meaning thereby insofar as reserved category 
candidates such as SC/ST/OBC/PH are concerned, they would 
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. 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 
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9 which deals with concessions to reserved category candidates 
that has not happene<J and is left intact. [Paras 31, 32] [665-G-H; 
66(j-A-H; 66?-A-BJ 
1.2 The High Court in the impugned judgment also read 
the said amended para 3 in the same manner as it is interpreted 
herein. The view of the High Court on this specific aspect is 
affirmed. Thus, 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, 20ll which remains unaltered. [Para 33) [667-C; 
668-B-C] 
2.1 Passing of TET is an essential qualification, which is a 
condition precedent for appointment as a teacher for Class I to 
VIIl.It is in terms of qualifications letter prescribed by the NCTE 
in its notification dated August 23, 2010 read with February 11, 
2011. In the notification dated August 23, 2010, NCTE laid down 
minimum eligibility qualifications for a person to be a teacher for 
Class I to VIII. As per Clause l(i) and (ii), 45% to 50% marks 
are required in academic qualification including Senior Secondary/ 
BA-B.Sc. This very notification, vide sub-clause (b) of Clause (9) 
(i) and (ii), stipulates another eligibility condition, i.e. passing 
TET which needs to be conducted by. the. respective Governments 
in accordance with guidelines
framed by NCTE. There was no 
provision providing relaxation to reserved category insofar as 
· academic qualifications, i.e. Senior Secondary or graduation etc., 
are concerned. As far as TET is concerned, it was to be guided 
solely by the guidelines to be issued by NCTE. Clause (3) 
prescribes nature of the training to be undergone and minimum 
marks required in BA/Bsc./B.Ed. It was followed by notification 
dated February 11, 2011 which prescribes 60% or more marks 
in TET as pass/qualifying marks. At the same time, it laid down 
that insofar as persons belonging to SC/ST, OBC, differently abled 
persons etc. are concerned, State Government may consider 
giving concessions to them fn accordance with. their extant 
reservation policy. It also required th~ States to give weightage · 
to TET score in carrying out the recruitment of teachers. It is in 
pursuance to the said clause (9) of notification dated February 
l11 2011 that the State Government issued communication dated
VIKAS SANKHALA & ORS. ETC. v. VJKAS KUMAR 
AGARWAL & ORS. ETC. 
March 23, 2011 deciding to give relaxation in TET ranging from 
10% to 20% to different reserved categories. [Para 35) (668-E-
H; 669-A-B) 
2.2 The State Government could not show any such policy 
which existed prior to the issuing communication dated March 
23, 20ll regarding concession to be given to the reserved 
category persons. That has become the reason for the High Court 
to hold that there was no "extant" policy of the State Government 
for giving relaxation to reserved category candidates. (Para 36] 
(669-C] 
2.3 First thing that has to be borne in mind is that after 
prescribing 60% pass marks iu the TET examination, provision 
for relaxation is made in same para 9 giving liberty to the school 
management (Government, local bodies, Government aided and 
unaided) to consider giving concessions to different kinds of 
reserved categories mentioned therein 'whicli has to be in 
accordance with their extant reservation policy'. This brings out 
one important feature. NCTE has nowhere mandated that there 
cannot be relaxation in pass marks in TET examination for 
reserved category candidates or that the standard would remain 
uniform irrespective of the fact as to whether a person belongs 
to general category or any of the reserved categories insofar as 
this examination is concerned. On the contrary, specific 
authorisation is given to grant special concessions. It, thus, 
accepts in principle that relaxed
standard for passing TET can 
be prescribed by laying down a policy in this behalf. In fact, there 
·is no challenge to this permissive provision. [Para 44) (672-E-G] 
2.4 The Government may prescribe relaxed standards for 
such reserved categories, as it is in conformity with the spirit of 
the constitutional pro".isions contained in Articles 15 and 16 read 
with Articles 38, 39(a) and 46 of the Constitution, which are 
enabling· provisions permitting the State to make special 
provisions and provide relaxed standards for persons belonging 
to Scheduled Castes, Schedule Tribes .and socially and 
educationally backwa.rd classes. (Para 45) (673-A-B) 
2'.5 Keeping in mind the said ethos of the Constitution, 
clause 9(a) of notification dated February 11, 2011 is interpreted 
which permits concessio~s to be given .to certain clauses 'in 
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accordance with their extant reservation policy'. As regards 
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". No condition is found 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. The submission 
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 is 
accepted. 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 ofRajasthan in 
accordance with the guiding principals issued by NCTE. This 
would meet the requirement of 'extant reservation policy' of the 
State. [Para 46] (673-C-H; 674-A~B) 
2.6 It is pointed out that except for the State of Andhra
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. 
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 ofrelaxation may amount to compromising with quality 
which may not be conducive to maintaining standards of education. 
However, the Court is 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, 
the State Government is impressed upon to consider this aspect 
and bring the relaxations within reasonable limits. [Para 47) [674-
C-E] 
2. 7 The High Court is also right in remarking that in order 
to impart quality education, those teachers are needed 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. 
Section 23(2) 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. [Para 48] [674-G-H; 675-A-B] 
2.8 When the 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 
principle of distributive justice, fact remains that the very ethos 
of such policies is to bring out equality, by taking affirmative 
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action. Indian Constitution has made adequate enabling 
provisions empowering the State to provide such concessions. 
[~ara 51] [677-B-C] 
State of Madhya Pradesh & Anr. v. Kumari Nivedita 
Jain & Ors. (1981) 4 SCC 296:1982 (1) SCR 759; M. 
Nagaraj & Ors: v. Union of India & Ors. (2006) 8 SCC 
212:2006 (7) Suppl. SCR 336; Dr. Jagadish Saran & 
Ors. v. Union of India (1980) 2 SCC 768:1980 (2) SCR 
831 - referred to. 
2.9 The State has a legitimate and substantial interes.t 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 "societa·l 
discrimination". The 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. 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. (Para 54] [681-C-E) 
2.10 The interpretation given by the High Court cannot be 
accepted. The question No. l is answered holding that relaxation 
prescribed in letter dated March 2J, 2011 in pass marks in TET 
examination for different reserved categories mentioned, is legal 
and valid in law. (Para 55] (681-F] 
3.1 As regards 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
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. 
or analogy. 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. It is demonstrated 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. [Para 60] [684-F-H; 685-A-E] 
3.2 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 
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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 tee and age. [Para 61) [685-F-H] 
· 
3.3 Provision of giving 20% marks ofTET score was applied 
to all candidates irrespective of the category to which he/she 
belongs and, therefore, no concession or relaxation or advantage 
or benefit was given in this behalf which could disturb the level 
playing field and tilt advantage in respect of reserved category 
candidate. On the contrary, the reserved category candidates who 
had secured less marks in TET examination are given lesser 
marks in the recruitment process on the application of the formula 
of allocating 20% marks of TET score. Question No. 3 is 
answered accordingly. [Para 62] [687-F-G] 
3.4 Those reserved category candidates who secured pass 
marks on the application of relaxed standards as contained in the 
extant policy of the Government in its communication dated March 
23, 2011 to be treated as having qualified TET examination and, 
thus, eligible to participate in the selection undertaken by the 
State Government. Migration from reserved category to general 
category shall be admissible to those reserved category 
candidates who secured more marks obtained by the last 
unreserved category candidates who are selected, subject to the
condition that such reserved category candidates did not avail 
any other special concession. It is clarified that concession of 
passing marks in TET would not be treated as concession falling 
in the aforesaid category. (Para 63) [687-H; 688-A-B] 
Unni Krishnan. J.P. & Ors. v. State of Andhra Pradesh 
& Ors. (1993) 1 SCC 655:1993 (1) SCR 594; 
KManjusree v. State ofAndhra Pradesh & Am: (2008) 
3 SCC 512: 2008 (2) SCR 1025; Vijendra Kumar Verma 
v. Public Service Commission, Uttarakhand & Ors. 
(2011) 1 SCC 150: 2010 (12) SCR 944; Jitendra J:(umar 
Singh & Am: v. State of Uttar Pradesh & Ors. (2010) 3 
SCC 119: 2010 (1) SCR 325 - referred to. 
Case Law Reference 
1993 (1) SCR 594 
referred to 
Paral
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
649 
AGARWAL & ORS. ETC. 
19~Z (1) SCR 759 
referred to 
Para 51 
2006 (7) Suppl. SCR 336 
referred to 
Para 52 
19~Q (2) SCR 831 
referred to 
Para 53 
2008 (2) SCR 1025 
referred to 
Para 57 
2010 (12) SCR 944 
referred to 
Para 58 
. 2oiQ (1) SCR 325 
referred to 
Para62 
CIVIL .<\PPELLATE JURISDICTION: Civil Appeal Nos. 3545-
3549 of2016. 
From the Judgment and Order dated 02.07.2013 of the High Court 
of Judicat•.!re for Rajasthan at Jaipur Bench Jaipur in D. B. Civil Special 
Appeal (Writ) Nos. 14 76, 14 70, 1496, 1502 and 1518 of2012 
WITH 
Civil Appeal Nos. 3550-3555, 3556-3559, 3560, 3561, 3562, 3563-
3566, 3567, 3568, 3569 and 3570 of2016. 
Sushi I Kumar Jain, Vivek Kumar Tankha, Ashwini Mata, Sr. Advs., 
Ms. Aishwarya Bhati, T. Gopal, Di lip Kumar Nayak, Shiv Avtar Singh, 
IrshadAhmad, Anurag Rawat, Sudhir Kumar, Naresh Kaushik, Vardhman 
Kaushik, Manoj Joshi, Mrs. Lalita Kaushik, Ms. Christi Jain, Abhinav 
Gupta, Ms. Priyal Jain, Ms. Ankita Gupta, Manu Maheshwari, Vigyan 
Shah, Ms. Pratibha Jain, Puneet Jain, Kamlesh Sharma, Rakesh Dahiya, 
Hanuman Singh, Sachin Pujari, Rishabh Sancheta, T. Mahipal, Pranaya 
Kumar Mohapatra, Mil ind Kumar, Rahul Verma,Advs. for the Appellants. 
S. S. Shamshery, AAG, Ms. Mahima Gupta, Kirtiman Singh, Gopal 
Singh, Irshad Ahmad, H. D. Thanvi, Sarad Kumar Singhania, Gopal 
Shankar Narayan, Shobhit Tiwari, Lal Pratap Singh, Umesh Pratap Singh, 
Vikram Singh Arya, R. C. Kohli, Pradeep
Aggarwal, Brijesh Kumar 
Singh, Amit Sharma, Ishu Prayas, Ms. Ruchi Kohli, Gaurav Sharma, 
Dhawal Mohan, Ms. Vara Gaur, Ajay Choudhary, Advs. for the 
Respondents. 
The Juctgment of the Court was delivered by 
A.K. SIKRI, J. I. The Statement of Objects and Reasons of the 
Right of Children to Free and Compulsory Education Act, 2009 
(hereinafter referred to as the 'RTE Act') recognises one of the most 
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SUPREME COURT REPORTS 
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profound underlying principle contained in the Constitution, viz. the crucial 
role of universal elementary education for strengthening the social fabric 
of democracy through provision of equal opportunities to all has been 
accepted, since inception of our Republic. Other, and equally significant 
principle that it recognises, is that, in order to ensure equal opportunities 
to all citizens, it is necessary that elementary education is provided to 
one and all. Keeping in view this spirit, obligation was imposed upon the 
State, as per Article 41, read with Article 45, of the Constitution to make 
effective provisions for securing the right to education, among other. 
Thus, it is one of the Directive Principles of State Policy enumerated in 
the Constitution that the State shall provide free and compulsory education 
to all children. In order to make it a reality, this Court in the case of 
Unni Krishnan, J.P. & Ors. v. State of Andlira Pradesh & Ors. 1 
stretched the limits of Article 45 by reading right to free education as a 
fundamental right of children upto the age of 14 years so as to enable 
the children up to the age of 14 years to receive the education as a 
matter of right. Law Commission also supported it by making 
recommendation" to the Parliament to make suitable amendment in the 
Constitution. Realising its constitutional commitment, the Parliament 
obliged, and Article 21-A was added vide
the Constitution (Eighty Sixth 
Amendment) Act, 2002 in the following manner: 
Article 21-A. Right to education. - The State shall 
provide free and compulsory education to all children of 
the age of six to fourteen years in such manner as the State 
may, by law, determine." 
Simultaneously, Article 45 of the Constitution was also substituted 
with the following A11icle: 
"Article 45. Provision for early childhood care and 
education to children below the age of six years. -
The State shall endeavour to provide early childhood care 
and education for all children until they complete the age of 
six years." 
2. Notwithstanding the aforesaid provisions in the Constitution and 
significant spatial and numerical expansion of elementary schools in the 
country, goal ofuniversal education continued to allude us. It was found 
that number of children, particularly children from disadvantaged groups 
1 (I993J 1sec645 
'Report No. 165 of the Law Commission of India
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
and weaker sections, who drop out of school before completing elementary 
education, remain very large. It was also noticed that the quality of 
learning achievement is not always entirely satisfactory even in the case 
of children who complete elementary education. Having regard to the 
aforesaid harsh realities, the Parliament enacted the RTE Act with 
following objects in mind: 
"(a) that every child has a right to be provided full time 
elementary education of satisfactory and equitable quality 
in a fo1mal school which satisfies certain essential norms 
and standards; 
(b) 'compulsory education' casts an obligation on the 
ap!'ropriate Government to provide and ensure admission, 
attendance and completion of elementary education; 
( c) 'free education' means that no child, other than a child 
who has been admitted by his or her parents to a school 
which is not supported by the appropriate Government, shall 
be liable to pay any kind of fee or charges or expenses 
which may prevent him or her from pursuing and completing 
elementary education; 
( d) the duties and responsibilities of the appropriate 
Government, local authorities, parents, schools and teachers 
in providing free and compulsory education; and 
(e) a system fc~ protection of the right of children and a 
decentralized grievance redressal mechanism." 
3. It hardly needs to be emphasized that for turning the provision 
of every
child to have free and compulsory education into reality, not 
only sufficient numberofschools are required with all necessary facilities 
and infrastructure, adequate and qualified teaching staff shall also be 
needed to fulfill this noble purpose. It is for this reason that apart from 
other provisions in the RTE Act, provisions like Sections 23 to 27 are 
inserted in the said Act to cater this requirement. 
4. For the purpose of present appeals, it is not necessary to refer 
to each of these provisions. As we are concerned with the educational 
and other qualifications that are needed for appointment of the teaching 
staff, the provision directly touching upon this aspect is Section 23 of the 
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RTE Act, which reads as under: 
"23. Qualifications for appointment and terms and 
conditions of service of teachers: (I) Any person 
possessing such minimum qualifications, as laid down by 
an academic authority, authorised by the Central 
Government, by notification, shall be eligible for appointment 
as a teacher. 
(2) Where a State does not have adequate institutions 
offering courses or training in teacher education, or teachers 
possessing minimum qualifications as laid down under sub-
section (I) are not available in sufficient numbers, the 
Central Government may, if it deems necessary, by 
notification, relax the minimum qualifications required for 
appointment as a teacher, for such period, not exceeding 
five years, as may be specified in that notification: 
Provided that a teacher who, at the commencement of this 
Act, does not possess minimum qualifications as laid down 
under sub-section (I), shall acquire such minimum 
qualifications within a period of five years. 
(3) The salary and allowances payable to, and the terms 
and conditions of service of, teachers shall be such as may 
be prescribed." 
5. Since minimum qualifications are to be laid down by an academic 
authority authorised by the Central Government by notification, such an 
authority which is so authorised by the Central Government is the National 
Council for Teacher Education (for short, 'NCTE'). Thus, NCTE is 
competent to lay
down the minimum qualifications which a person needs 
to possess to make him eligible for appointment as a teacher. 
6. NCTE fulfilled this obligation in the form ofNotification dated 
August 23, 2010, published on August 25, 2010 in the Gazette oflndia, 
whereunder minimum qualifications for appointment as teachers were 
laid down. Apart from other educational qualifications prescribed therein, 
the said Notification also mandates passing of Teacher Eligibility Test 
(for short, 'TET') and reads as follows: 
"Pass in the Teacher Eligibility Test (TET), TO BE 
CONDUCTED BY THE APPROPRIATE Government in
VlKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SlKRI, J.] 
accordance with the Guidelines framed by the NCTE for 
the purpose." 
7. As is clear from the above, such a TET is to be conducted by 
the appropriate State Government, i.e. respective State Governments, 
though in accordance with the guidelines framed by NCTE for this 
purpose. It may also be mentioned at this stage that passing of the said 
TET is a mandatory condition without which a candidate is not eligible to 
participate in the recruitment process for appointment as a teacher. NCTE 
also formulated the guidelines, which were forwarded by it to the 
Secretaries/ Commissioners of Education of State Government/Union 
Territories vide its letter dated February 11, 2011. In these guidelines, it 
was specified that the minimum pass percentage ofTET is 60. At the 
same time, it enabled the State Governments to give concessions to 
persons belonging to SC/ST, OBC, differently abled persons etc. 'in 
accordance with their extant reservation policy'. Para 9 of these 
guidelines stipulating the aforesaid conditions 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
TEI scores in the 
recruitment process; however, qualifying the TEI would 
not confer a right on any person for recruitment/employment 
as it is only one of the eligibility criteria for appointment." 
In para 9, the extent of percentage to which the relaxation could 
be granted in the qualifying marks for TEI was not stipulated and it was 
mentioned that the State Governments could give such concessions in · 
accordance with their extant reservation policy. 
8. Para 3 mentions about the training which was to be undergone 
by a person. It would be apposite to reproduce this para as it has some 
bearing for the purposes of the instant appeals. The same is as under: 
"3. Training to be undergone. - A person -
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qualification shall also be eligible for appointment for Class 
I to V up to l SI January, 2012, provided he undergoes, after 
appointment, an NCTE recognised 6 month special 
programme in Elementary Education. 
(b) with D.Ed. (Special Education) or B.Ed. (Special 
Education) qualification shall undergo, after appointment, 
an NCTE recognised 6 month special programme in 
Elementary Education." 
9. Subsequently, vide Notification dated July 29, 2011, the aforesaid 
letter dated February 11, 2011 was amended. It, inter alia, prescribed 
that relaxation up to 5% in the qualifying marks to the candidates belonging 
to reserved categories could be accorded. 
l 0. New para 3 of the Notification dated February 11, 2011, 
substituted in place of original para 3, is to the following effect: 
D 
"Ill. For para 3 of the Principal Notification the following 
shall be substituted, namely: 
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(i) Training to be undergone. -A person -
(a) with Graduation with at least 50% marks and B.Ed. 
qualification with at least 45% marks and 1 year Bachelor 
in Education (B.Ed.), in accordance with the NCTE 
(Recognition Norms and Pr.ocedure) Regulations issued 
from time to time in this regard, shall also be eligible for 
appointment to Class I to V up to I SI January, 2012, provided 
he/she undergoes, after appointment as NCTE recognized 
6 month Special Programme in Elementary Education; 
(b) With D.Ed. (Special Education) or B.Ed.
(Special 
Education) qualification shall undergo, after appointment 
an NCTE recognised 6 month Special Programme in 
Elementary Education. 
(ii) Reservation Policy: 
Relaxation up to 5% in the qualifying marks shall be allowed 
to the candidates belonging to reserved categories, such as 
SC/ST/OBC/PH."
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
This amendment has given rise to another incidental but connected 
issue, viz. whether 5% relaxation relates to the pass marks which are to 
be attained in TET exam? We shall advert to this and other questions, 
falling for our determination, at the appropriate stage. Since we are 
now stating the events leading to the dispute, let us complete this narration 
of facts, here. 
11. After the issuance of the Notification dated February 11, 2011 
by the NCTE, the State Government herein, i.e. the State of Rajasthan, 
issued the letter dated March 23, 2011 to the concerned authorities 
conveying its decision to grant relaxation in minimum pass marks in the 
TET to reserved category candidates in the following manner: 
"(a) I 0% to persons belonging to SC, ST, OBC, SBC and 
all women belonging to the general category. 
(b) 15% to all women belonging to SC, ST, OBC, SBC and 
widowed and divorced women. 
( c) 20% to persons covered under the definition of"persons 
with disability" under clause (t) of Section 2 of the Persons 
')'ith Disabilities (Equal Opportunities, Protection of Rights 
and Full Participation) Act, 1995." 
12. As per the aforesaid communication dated March 23, 20H of 
the State Government, candidates belonging to SC/ST, OBC, SBC and 
women belonging to General category were to be given I 0% relaxation 
in pass marks in TET. Thus, those belonging to these categories who 
secured 50%
marks were treated as having qualified TET. They were 
allowed to appear in the selection process which was undertaken 
thereafter some time in June 2012 and results thereof were declared in 
August 2012. Many such persons were found eligible and selected at 
different districts in the State ofRajasthan. They were given appointment 
orders-and were also issued joining orders. 
13. At this stage, many candidates belonging to the General category 
filed writ petitions in the High Court of Rajasthan challenging their 
selection on the ground that minimum percentage for passing TET was 
60% and, therefore, all those candidates belonging to the reserved 
categories who secured less than 60% in TET could not be declared as 
having passed TET and were, therefore, ineligible to participate in the 
selection process. Ultimately, the ,learned Single Judge of the High Court 
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decided all these writ petitions vide common judgment dated October 
06, 2012 thereby partly allowing the said writ petitions and holding that 
the ordor dated March 23, 2011 of the State Government could not be 
allowed to stand as the relaxation/concession in qualifying marks was 
not legal or valid. It was also held that as per para 9 of the guidelines 
contained in letter dated February II, 2011 issued by the NCTE, 
concession could be given to persons belonging to SC/ST, OBC, differently 
abled persons, etc. only 'in accordance with their extant reservation 
policy' and insofar as the State of Rajasthan is concerned, it could not 
show any "extant'' reservation policy warranting this concession. The 
State Government challenged the said decision by filing appeals before 
the Division Bench. Likewise, persons belonging to reserved categories 
who had been selected and their selection set aside by the learned Single 
Judge, also preferred appeals. In all, 29 appeals were filed which have 
been decided by a common judgment dated July 02, 2013 by the Division 
Bench of the High Court. Though the Division Bench did not agree with 
some of the reasons given by the learned Single Judge, it dismissed all 
the appeals by given its own reasons. It is in this backdrop that the State 
Government as well as the selected candidates belonging to the reserved 
category have felt aggrieved by the impugned decision
making the same 
subject matter of the present appeals. 
14. Some developments which have taken place after the filing of 
various special leave petitions may also be noted at this stage. 
}5. Vide order dated July 26, 2013, this Court's order in SLP(C) 
No. 23508 of2013 stayed the operation of the impugned judgment for 
three months. In the meanwhile, State ofRajasthan started fresh process 
for recruitment of teachers by advertisement dated September 04, 2013 
(subject to decision of this Court). District-wise written examination was 
held for recruitment of the year 2013 for total 20,000 posts. The reserved 
category candidates who had passed TET in 2011 with relaxations as 
per State policy dated March 23, 2011, applied in the recruitment of 
2013. During the pendency of the matter before this Court, appointments 
were made by the respective local bodies with respect to recruitment of 
2012 giving relaxation in accordance with the State policy dated March 
23, 2011 and also allowing migration as per policy dated May 11, 2011 
subject to decision of this Court. 
The participants of reserved category candidates in recruitment 
process of2012 and 2013 preferred SLP(C) No. 31109of2014 wherein
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
this Court issued notice and allowed the appellant Nos. 8 to 13 belonging 
to 2013 recruitment, to file SLP. In March, 2015, result declared with 
regard to recruitment of2013 giving relaxation in accordance with State 
policy dated March 23, 2011. However, appointments are not given to 
reserved category candidates availing relaxation although seats have 
been kept vacant. Moreover, migration to general seats was not allowed. 
The appellant in SLP(C) No. 31109of2014 belonging to 2013 recruitment 
moved I.A. No. 14 of 2015 seeking direction to the State to prepare 
merit list of 2013 recruitment in the same manner as done in 2012 
recruitment giving benefit of relaxation and migration. In fact, after 
2011, TET was again conducted by the State in 2012. The reserved 
category candidates who had passed TET with relaxations in 2011 did 
not appear in 2012 TET since they were declared pass in 2011 TET 
itself otherwise they would have availed the opportunity to improve their 
TET scores by appearing in TET in 2012. 
16. We may point out at the outset that insofar as issue of 
concession/relaxation in TET is concerned, it has three facets, viz: 
(i) whether relaxation in passing marks for TET was validly given 
by the State Government in its letter dated March 23, 2011 and al I such 
candidates belonging to the reserved categories can be treated as having 
passed TET on obtaining marks as per
relaxed standards? 
(ii) whether no relaxation of any nature could be given by the 
State Government and, therefore, it was incumbent upon the persons 
belonging to reserved categories as well to secure 60% marks in TET to 
treat them as qualifying the said TET? 
OR 
(ii) relaxation to the extent of 5% was permissible, as provided by 
NCTE vide its amendment Notification dated July29, 2011 and, therefore, 
those who secure 55% or above could be treated as successful in TET? 
I 7. Insofar as General category candidates are concerned, who 
were the writ petitioners in the High Court, they maintained that minimum 
qualifying marks were 60% in the absence of any extant reservation 
policy granting such concession. According to them, the State 
Government could not produce any such policy before the High Court 
and even before us and it was accepted that there was no such policy. 
18. Insofar as candidates belonging to the reserved categories are 
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concerned, they are divided into two groups. Many of these candidates 
got 55% and above in TET. They argued that as far as concession 
given by the State Government as per its decision dated March 23, 2011 
is concerned, the same is not warranted and relaxation up to 5% only 
could be given in view of the amendment Notification dated July 29, 
2011. On this premise, they want to oust all those candidates who have 
secured less than 55% marks in TET with the plea that reserved category 
candidates belonging to their group (those who secured 55% or more 
marks in TET) be treated as eligible and posts meant for reserved 
categories be filled up accordingly. It may be mentioned that many 
candidates in their group are below in merit list drawn after the selection 
than those reserved category candidates who secured less than 55% 
marks in TET and, therefore, are not selected. If the other group is 
excluded from the selection as ineligible, candidates from this group may 
succeed in getting the berth. So their endeavour is to oust such other 
group with marks lesser than 55% in TET so that they are able to get in. 
On the other hand, those candidates from reserved categories who have 
secured less than 55% marks in TET but are found eligible in terms of 
relaxation give vide the State Government's decision dated March 23, 
2011 and have emerged successful in the selection have taken the position 
that the said
relaxation given by the State Government is valid and legal. 
19. We may also pointed out at this stage itself that the State 
Government has stood by its decision dated March 23, 2011. 
20. There is yet another issue which was raised in the High Court 
by the writ petitioners (candidates belonging to general category) and 
has been decided by the High Court in their favour. As there is challenge 
to the findings on that issue as well in these appeals, we would like to 
spell out the said issue with necessary details. 
21. It so happened that many candidates who belonged to reserved 
category got higher marks than t.he last candidates from the general 
category who was selected for the appointment in the said recruitment 
process. In terms of its various circulars, which we shall refer to at the 
appropriate stage, such reserved category candidates who emerged more 
meritorious than the general category candidates were allowed to migrate 
in general category. Effect thereof was that these candidates though 
belonging to reserved category occupied the post meant for general 
category. According to the writ petitioners (respondents herein), it was
VIKAS SANKHALA & ORS. ETC. v. VJKAS KUMAR 
659 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.) 
impermissible as these reserved category candidates got selected after 
A 
availing certain concessions and, therefore, there was no reason to allow 
them to shift to general category. The High Court has accepted this 
plea treating the relaxation in pass marks in TET as concession availed 
by the reserved category candidates in the selection process. 
22. Before we advert to the detailed submissions made by the 
B 
respective categories of the parties, it would be appropriate to discuss 
the manner in which the Division Bench of the High Court has rendered 
the impugned decision. 
IMPUGNED JUDGMENT 
23. After taking note of the respective contentions of different 
parties appearing before it, the High Court pointed out that there were 
two peripheral issues which needed a decision before adverting to the 
central issue about the legality of the concession granted by the State 
Government. The selected candidates had challenged the maintainability 
of writ petitions on twin grounds, namely, non-impleadment ofnecessary 
parties and estoppel. After discussing these preliminary issues, the Court 
brushed aside these contentions of the non-writ petitioners. It is not 
necessary to dwell into the same as these contentions were not repeated 
before us. 
While taking up the primary issue involved, the High Court referred 
to the Statement of Objects and Reasons contained in the RTE Act and
pointed out that the avowed objective for enacting the said Act is to 
guarantee full time elementary education of satisfactory and equitable 
quality to every child .. It remarked that the statute is edificed on the 
belief that the values of equality, social justice and democracy and the 
creation of a just and humane society can be achieved only through a 
provision of inclusive elementary education to all. Free and compulsory 
education of satisfactory quality thus, is the salubrious mission of this 
enactment. Thereafter, the High Court referred to Section 23 of the 
RTE Act and further pointed out that the NCTE is the academic authority, 
as envisaged in Section 23(1) of the RTE Act, statutorily empowered to 
stipulate the minimum qualifications for appointment of a teacher. Further, 
power to relax such minimum qualifications has been reserved with the 
Central Government in terms of Section 23(2) of the RTE Act. It, then, 
referred to the notification dated August 23, 2010 issued by the NCTE 
under Section 23(1) of the RTE Act laying down minimum qualifications 
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for a person to be eligible for appointment as a teacher in Class I to 
Class VIII in a School (which have already been taken note of) followed 
by another letter dated February 11, 2011 of the NCTE to the Secretaries 
and Commissioners of the State Governments/ UTs and thereby 
circulating its guidelines conducting the TET by appropriate Government 
as required by its notification dated August 23, 2010. The High Court 
pointed out that reading of this letter dated February 11, 2011 would 
reveal the abiding predication to ensure against dilution of quality in such 
recruitment, and instead, to secure induction of teachers possessed of 
essential aptitude and ability to meet the challenges of teaching at the 
primary and upper primary levels. While reiterating the mandate of a 
pass in the TET to be a norm of eligibility, rationale therefore was 
enumerated as under: 
(i) it would bring national standards and benchmark of teacher 
quality in the recruitment process; 
(ii) it would induce teacher education institutions and students from 
these institutions to further improve their performance standards; 
(iii) it would send a positive signal to all stakeholders that the 
Government lays special emphasis on teacher quality. 
Conspicuously, thus, the essence of the TET was to infuse a 
qualitative content in the recruitment process and thus, set a national 
benchmark forthe sake ofuniformity in the level of
elementary education 
in the country. It prescribed 60% or more marks in TET as pass marks 
with liberty granted to the Governments to give concessions to persons 
belonging to SC/ST, OBC, differently abled persons etc. in accordance 
with extant reservation policy. 
The High Court, then, pointed out that none of the parties had 
challenged the competence of NCTE either to issue guide I ines dated 
February 11, 2011 to conduct the TET or to vest a discretion in the State 
Government to grant relaxation as contemplated therein i.e. in accordance 
with the "extant" reservation policy. The High Court, thereafter, 
discussed letter dated March 23, 2011 issued by the State Government 
giving concession to the extent of 10%/15%/20% to different reserved 
categories but without disclosing any reference to the extant reservation 
policy of the Government. The High Court ultimately found, as already 
pointed out above, that the State Government could not deduce any such 
reservation policy and, thus, held that in the absence of such a pol icy, the
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
State Government could not have granted the concession, as was done 
vi de letter dated March 23, 2011. 
24. Coming to notification dated July 29, 2011 which was issued 
by the NCTE in exercise of its power under Section 23( I) of the RTE 
Act, amending its earlier notification dated August 23, 20 I 0, the High 
Court proce.~ded to discuss as to whether relaxation upto 5% in qualifying 
marks contained therein was relatable to TET. This question had arisen 
for consideration because of the reason that writ petitioners belonging to 
general category had argued that vide said notification dated July 29, 
2011 paragraph 3 of the principal notification dated August 23, 2010 was 
substituted and the context of the said paragraph 3 was totally different. 
After juxtaposing unamended paragraph 3 and amended paragraph 3, 
the High Court pointed out that paragraph 3 of the notification dated 
August 23, 20 I 0 dealt exclusively with the aspect ofNCTE recognised 
six months special programme in elementary education by way of training 
of persons with qualifications mentioned therein after appointment. Thus, 
there was neither any comprehension nor any provision for reservation 
or relaxation of marks. Only academic qualifications with minimum 
percentage of marks was referred to. Therefore, concession of 5% in 
the qualifying marks pertained to the percentage of marks in the qualifying 
examination of
Senior Secondary/graduation etc. and had no nexus with 
the pass marks in the TET. 
The High Court further pointed out that in terms of letter dated 
March 23, 2011 issued by the State Government (which was passed on 
NCTE notification dated March 29, 2011 for giving relaxation qua 
academic qualifications) reserved category candidates availed second 
relaxation qua their academic qualifications. In this manner, they stood 
doubly advantage and the impact of such relaxation had bearing on 
ultimate assessment on merit. 
25. Insofar as validity of the action of the State Government in 
permitting those reserved category candidates who had secured more 
marks than the last candidate selected in the general category, to be 
counted against unreserved category post, is concerned, the discussion 
of the High Court can be divided in two parts. The High Court referred 
to certain circulars on the subject which were issued before the selection 
process had commenced, these arc circulars dated June 17, 1996, March 
. 04, 2002 and June 24, 2008. As per these circulars, only those reserved 
category candidates who have not taken any concession (like that of 
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age, etc.) were entitled to compete against unreserved vacancies and 
be counted against them. The High Court held that since concession 
was availed of by the reserved category candidates in getting relaxation 
in TET pass marks, the migration to general category post was not 
admissible in terms of aforesaid circulars. 
The High Court further noted that circular dated May 11, 2011 
was issued in supersession of earlier circular dated March 04, 2002 
which permitted reserved category candidates to be counted against 
unreserved category vacancies if in the selection they have secured 
more marks than the marks obtained by the last unreserved category 
candidate, who is selected, irrespective of the fact as to whether they 
availed special concessions or not. The High Court held that since this 
circular was issued after the initiation of selection process vide 
advertisement dated March 30, 2011 it could not be app,lied to the said 
selection. 
On the aforesaid basis, migration of such reserved category 
candidates, though emerged as more meritorious in the selection process 
than the last candidate selected in the general category, are not permitted 
to migrate to the general category. 
26. In conclusion, by the impugned judgment, the Division Bench 
dismissed the appeals thereby upholding the direction of the learned single 
Judge in setting aside the results of RTET 2011 to the extent of 
participation of
reserved category candidates benefited by relaxation 
granted to them by the State Government in excess of its extant 
reservation policy. It directed recasting of results by declaring those 
reserved candidates as ineligible and unsuccessful in the RTET 2011 
who had secured less than 60% marks in TET. 
ISSUES TO BE DECIDED 
27. The history of events, right upto the decision of the High Court, 
gives a clear glimpse of the questions oflaw that need to be determined 
by this Court. At this juncture, we would like to formulate these issues, 
G 
asunder: 
H 
i) Whether policy of the State as reflected in its letter dated March 
23, 2011 deciding to give relaxation ranging from I 0% to 20% in TET 
marks to different reserved categories as mentioned therein is valid in 
law?
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
663 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
ii) Whether NCTE notification dated July 29, 2011, which amends 
A 
paragraph 3 of its earlier guidelines/notification dated February 11, 2011, 
provides 5% relaxation to the reserved category for passing TET? 
If so, whether it would be applicable to the reserved categories in 
the State of Rajasthan as well? 
iii) Whether reserved category candidates, who secured better 
than general category candidates in recruitment examination, can be 
denied migration to general seats on the basis that they had availed 
relaxation in TET? 
QUESTION NO. 2 
28. We would like to answer this question first as it will have some 
implications and bearing on Issue No. I formulated by us above. 
29. The poser here is as to whether NCTE has made any provision 
providing relaxation in the passing marks for reserved category 
candidates? ln order to find an answer, the documents which are to be 
scanned through, on which both sides rested their submissions, are: (i) 
Notification dated February 11, 2011 containing guidelines; and (ii) 
amendment thereto incorporated vide notification dated July 29, 2011, 
both issued byNCTE. Insofar as guidelines dated February 11, 2011 
are concerned, they pertain to conducting TET under the RTE Act, 2009. 
Covering letter to these guidelines mentions that vide notification dated 
August23, 2010, NCTE had laid down the minimum qualifications for a 
person to be eligible for
appointment as a Teacher in Class I to Class 
VIII. One of the essential qualification prescribed therein was that such 
a person should pass the TET which will be conducted by the appropriate 
Government in accordance with the guidelines framed by the NCTE. It 
is in that behalf that guidelines in question are framed and circulated. 
Para 3 of these guidelines mentions the rationale for including the TET 
as minimum qualification. Though it is already extracted, for the purpose 
of cohesiveness, we reproduce it here again: 
"(i) It would bring national standards and benchmark of 
teacher quality in the recruitment process; 
(ii) It would induce teacher education institutions and students 
from these institutions to further improve their performance 
standards; 
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A 
(iii) It would send a positive signal to all stakeholders that 
the Government lays special emphasis on teacher quality." 
Para 4 states that such TET examination may be conducted by 
a suitable professional body designated by the appropriate Government 
for this purpose (Here, the State Government had designated Central 
B 
Board of Secondary Education (CBSE), Ajmer as the professional body 
to conduct such an examination). Para 5 prescribes the conditions which 
are to be fulfilled by persons to become eligible for appearing in the 
TET, reads as under: 
"(i) A person who has acquired the academic and 
c 
professional qualifications specified in the NCTE 
Notification dated 23'd August, 20 I 0. 
(ii) A person who is pursuing any of the teacher education 
courses (recognised by the NCTE or the RC!, as the case 
may be) specified in the NCTE Notification dated 23'd 
D 
August, 20 I 0. 
(iii) The eligibility condition for appearing in TET may be 
relaxed in respect of a State/UT which has been granted 
relaxation under sub-section (2) of Section 23 of the RTE 
Act. The relaxation will be specified in the Notification 
E 
issued by the Central Government under that sub-section." 
F 
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Para 6 gives the structure and content ofTET. Para 7 prescribes 
that there wou Id be two papers of the TET, one for a person who intends 
to be a teacher from Class I to Class V and other would be for a person 
who intends to be a teacher for
Classes VI to VIII. The details of 
nature and standards of questions in Paper I and Paper II are also 
prescribed in this para. Para 8 mentions that question papers have to be 
bilingual i.e. in language(s) as decided by the appropriate Government 
as well as in English language. Thereafter comes para 9 which prescribes 
the qualifying marks and reads as under: 
"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;
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
665 
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(b) should give weightage to the TET scores in the 
A 
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." 
For our purposes, it is not necessary to take note of other paras of 
the said gu;delines. 
B 
30. Vide notification dated July 29, 2011, some.amendments were 
made in the aforesaid guidelines dated February 11, 2011. What is 
relevant is that amendment was made to para 3 of notification/guidelines 
dated February 11, 2011 which was substituted with the following amended 
para: 
"III. For para 3 of the Principal Notification the following 
shall be substituted, namely: 
(i) Training to be undergone. -A person -
(a) with Graduation with at least 50% marks and B.Ed. 
qualification with at least 45% marks and I year Bachelor 
in Education (B.Ed.), in accordance with the NCTE 
(Recognition Norms and Procedure) Regulations issued 
from time to time in this regard, shall also be eligible for 
appointment to Class I to V up to 1" January, 2012, provided 
he/she undergoes, after appointment as NCTE recognized 
6 month Special Programme in Elementary Education; 
(b) With D.Ed. (Special Education) or B.Ed. (Special 
Education) qualification shall undergo, after appointment 
an NCTE recognised 6 month Special Programme in 
Elementary Education. 
(ii) Reservation
Policy: 
Relaxation up to 5% in the qualifying marks shall be allowed 
to the candidates belonging to reserved categories, such as 
SC/ST/OBC/PH." 
31. It is the amended sub-para (ii) of para 3 which has become the 
bone of contention as it stipulates that relaxation upto 5% in the qualifying 
marks is to be allowed to candidates belonging to reserved categories. 
Relying on this amendment, it is the contention of respondents belonging 
to general category as well as those respondents who belonged to 
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reserved category but secured more than 55% marks in TET that NCTE 
has stipulated 5% relaxation for TET examination, as it pertains to the 
said examination. As a consequence, the action of the State Government 
granting relaxation for more than 5% is impermissible. On the other 
hand, argument of the appellants who belonged to reserved category 
and are beneficiary of relaxation provided by the State Government vide 
its letter dated March 23, 2011 is that the relaxation provided in the 
aforesaid amended para 3 has no relation whatsoever with TET and on 
the contrary, it relates to the qualifying marks in graduation and B.Ed. 
etc. 
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 vi de 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 mini mum marks in obtaining those qualifications are prescribed. What 
follow' 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
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
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 intact. 
33. We may mention that High Court in the impugned judgment 
has also read the said amended para 3 in the same manner we have 
interpreted. We affirm the view of the High Court on this specific aspect. 
We would like to reproduce the following discussion from the judgment 
of the High Court wherein additional reasons for arriving at this particular 
conclusion are given: 
" ... This view is fortified by the letter No. F.No.61-1/2011/ 
NCTE/N&S dated 1.4.2011 of the NCTE addressed, 
amongst others, to all Secretaries and Commissioners of 
the State Governments/UTs clarifying that following the 
issuance of the notification dated 23 .8.20 I 0, it had received 
representations from the State Government and other 
stakeholders that in respect ofSCs/STs etc. relaxation upto 
5% in the qualifying marks should be allowed, since such 
relaxation is
permissible by the NCTE for admission in 
various teacher education courses. Referring to the 
minimum marks in the notification dated 23.8.2010, in senior 
secondary (or its equivalent) or in B.A./B.Sc., it was 
elucidated that following its meeting held on 16.3.2011 it 
was decided that relaxation upto 5% in such qualifying marks 
would be available to SCs/STs etc., in accordance with the 
extant policy of the State Government /UTs and other school 
managements. There is no reference of such relaxation to 
pass marks in the TET. This accommodation of the NCTE, 
by way of concession of 5% marks qua the academic 
qualifications, is also evident from the provisions of the 
National Council for Teacher Education (Recognition Nonns 
& Procedure) Regulations, 2009 (hereinafter referred to 
as '2009 Regulations') and the norms and standards for 
various education courses as specified in the Appendices 
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thereto and referred to in the course of arguments on its 
behalf. The explanation of the NCTE with regard to the 
nature of the relaxation granted under the caption 
"reservation policy" traceable to paragraph 3 of the principal 
notification dated 23 .8.20 I 0 with reference amongst others 
to the 2009 Regulations cannot be ignored or discarded." 
Thus, 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 unaltered. 
QUESTION NO. 1 
34. In view of our foregoing discussion pertaining to Question No.2, 
it becomes clear th.at as far as relaxation in passing TET is concerned, 
same is governed by para 9 of notification dated February 11, 2011. 
0 
However, before we deal with the said para in particular, we need to 
recapitulate the salient facts and features in brief followed by submissions 
of learned counsel for the parties in this behalf. 
35. It is the common case of the parties that passing ofTET is an 
essential qualification, which is a condition precedent for appointment as 
E 
a teacher for Class I to VIII. It is in terms of qualifications letter 
prescribed by the NCTE in its notification dated August 23, 20 I 0 read 
with February 11, 2011. It may be
mentioned in this behalf that in the 
notification dated August 23, 2010, NCTE laid down minimum eligibility 
qualifications for a person to be a teacher for Class I to Vil!. As per 
Clause l(i) and (ii), 45% to 50% marks are required in academic 
F 
qualification including Senior Secondary/BA-8.Sc. This very notification, 
vi de sub-clause (b) of Clause (9) (i) and (ii), stipulates another eligibility 
condition, i.e. passing TET which needs to be conducted by the respective 
Governments in accordance with guidelines framed by NCTE. There 
was no provision providing relaxation to reserved category insofar as 
G 
academic qualifications, i.e. Senior Secondary or graduation etc., are 
concerned. As far as TET is concerned, it was to be guided solely by 
the guidelines to be issued by NCTE. Clause (3) prescribes nature of 
the training to be undergone and minimum marks required in BA/Bsc./ 
B.Ed. It was followed by notification dated February 11, 2011 which 
prescribes 60% or more marks in TET as pass/qualifying marks. At the 
H
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
same time, it laid down that insofar as persons belonging to SC/ST, OBC, 
differently abled persons etc. are concerned, State Government may 
consider giving concessions to them in accordance with their extant 
reservation policy. It also required the States to give weightage to TET 
score in carrying out the recruitment of teachers. It is in pursuance to 
the said clause (9) ofnotification dated February 11, 2011 thatthe State 
Government issued communication dated March 23, 2011 deciding to 
give relaxation in TET ranging from I 0% to 20% to different reserved 
categories. 
'36. As pointed out above, the State Government could not show 
any such policy which existed prior to the issuing communication dated 
March 23, 2011 regarding concession to be given to the reserved category 
persons. That has become the reason for the High Court to hold that 
there was no "extant" policy of the State Government for giving relaxation 
to reserved category candidates. This approach of the High Court is 
criticised by the appellai1t and the argument which is raised before us is 
that the decision contained in letter dated March 23, 2011 itself is a 
policy decision and should be treated as the 'extant policy'. 
37. Mr. Ashwini Mata, learned senior advocate appearing in certain 
appeals representing reserved category capdidates, elaborated the 
aforesaid contention by arguing that the interpretation of
clause 9(a) of 
guideline dated February 11, 2011 is required to be interpreted while 
taking various aspects in mind i.e. the examination of TET are being 
conducted every year; certificates of having passed TET is valid upto 
maximum 7 years; and further that recruitment process is not conducted 
every year. The later part of clause 9 of guidelines deals with the 
recruitment process of teachers. In this view of matter, at the time of 
recruitment process the School Management (Govt., Local Bodies, Govt. 
aided and unaided) were being given liberty to consider such a reserved 
category candidates as per prevailing, alive reservation policy in regard 
to concession in TET qualifying marks. He submitted that the dictionary 
defines 'extant' as 'alive; prevailing at point of time'. Therefore, there 
is a marked difference between the word 'existing' from the word 'extant' 
as the word 'extant' is used for any point of time. It may be for past, 
present or future, whereas word 'existing' is used only in presenti. 
Relaxation under State Government etc. were in relation to their respective 
applicable policies at the point of recruitment. His emphasis was that 
the expression "in accordance with their extant reserva1ion policy" 
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appearing Clause 9(a) of the Guidelines dated February 11, 2011, relates 
to the dominant underlying policy ofreservation at the time of taking the 
TET exam which is a preclude to the conduct of the common recruitment 
test. He also argued that if the interpretation of the High Court regarding 
Clause 9(a) of the Guidelines dated February 11, 2011 is upheld this 
would lead to the conclusion that State is forever precluded to carry out 
any modification in the extent of relaxations to reserved categories or 
modify the reserved categories after February 11, 2011 which the State 
is otherwise obi iged to do under Article 16( 4) and 15( 4) of the Constitution. 
State is not empowered but duty bound to make reservations and 
relaxations under changing socio-economic scenario. Mr. Mata, on this 
basis, questioned the interpretation propounded by the High Court as 
apparently ultra vires the Constitution. 
38. Ms. Aishwarya Bhati who appeared for few other such 
reserved category candidates added to the aforesaid submission by 
arguing that in fact letter dated March 23, 2011 was not a new policy nor 
did it grant relaxation to persons who were otherwise not eligible for 
reservation. She pointed out that this letter was completely in accord 
with the existing reservation policy prevalent in the State ofRajasthan 
as per notification dated July 31, 2009 which prescribes 49% reservation 
in all Government
services to persons belonging to specified categories. 
According to her, in consonance with the said reservation policy, letter 
dated March 23, 2011 only prescribes specific percentage of concessions. 
She further submitted that this was categorical stand of State Government 
in the High Court. 
39. She pointed out that the counsel for the State had also informed 
this Court, at the time of arguments, that for recruitment of Grade JII 
teachers after RTET, 2011 the factual statistics were as follows: 
Total posts advertised 
Total selections made 
Selections made without concessions 
(it includes 5621 candidates of reserved 
category who had not taken concession) 
Selections made with concessions 
39544 
37317 
23978 
13339 
According to her, the specific statement on Affidavit by the State 
as well as the aforesaid figures, make it writ large that concession granted
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
by State Government vide its letter dated March 23, 2011 was in complete 
conformity with clause 9(a) of the guidelines dated February 11, 2011. 
The NCTE has also supported this interpretation of clause 9(a) of its 
guidelines, both before the High Court as well as this Court. 
40. Insofar as State Government is concerned, apart from justifying 
its decision to give concession in passing marks of TET, the learned 
counsel appearing forthe State also controverted the plea of the general 
category candidates on the outcome of the selection process. It was 
pointed out that number of candidates belonging to general category or 
the candidates who has passed the TET examination on merit and have 
been finally selected and appointed is more than 60% even when as per 
the State Reservation Policy, 49% seats are earmarked for candidates 
belonging to different reserved categories. It is also pointed out that the 
concession in TET passing marks is accorded even to women, irrespective 
of the fact whether they belong to general category or reserved category. 
Thus, out of 13339 candidates who became eligible to participate in the 
selection process after getting concession in TET pass marks, more 
than 2000 ladies from general categories have also been benefited. This 
is apart from hundreds of widowed and divorced women belonging to 
general category who. have been selected after availing concession
in 
pass marks in TET examination. 
4 I. On the other hand, learned counsel for the respondents 
representing general category candidates submitted that in the absence 
of any extant policy operating at the time when letter dated March 23, 
2011 was issued, there could not have been relaxation by that letter. 
The reasoning given by the High Court in the impugned judgment whereby 
this plea is accepted is referred to and relied upon by these counsel. Jn 
this behalf, it was submitted that the impugned judgment of the Division 
Bench records the following facts: 
(i) Both before the Single Judge and Division Bench, the State had 
admitted that there was no extant policy. 
(ii) The NCTE had contended that 5% relaxation provided by its 
notification of July 29, 2011 was only towards qualifying marks (academic 
qualifications) and not for the TET. 
(iii) Out of 40,000 posts of teachers, only 20% of the candidates 
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belonging to the General category have been selected as a consequence 
of the above flawed measures. 
42. tt was further submitted that there was no extant reservation 
policy of the State ofRajasthan which was admitted not only before the 
High Court but this Court as well and the so-called policy submitted 
before this Court was inapplicable as it dealt with percentage of seats 
and did not relate to pass marks in the examination. It was also 
emphasised thatNCTE guidelines dated February 11, 2011 aim to provide 
national standards and a uniform bench mark. Therefore, all candidates, 
whether belonging to general or reserved category, were required to 
pass TET with minimum 60% marks, at least in the absence of extant 
policy of a particular State. 
43. We have considered the respective submissions of the learned 
counsel for the parties appearing before us and also gone through the 
reasons given in the impugned judgment. We may state at the outset 
that Notification dated July 31, 2009 of the State Government pertains to 
the reservation in all government services and does not deal with the 
subject at hand. The outcome hinges upon the interpretation that is to be 
given to para 9(a) of guidelines dated February 11, 2011, specifically the 
meaning that is to be ascribed to "extant policy". 
44. First thing that has to be borne in mind is that after prescribing 
60% pass marks in the TET examination,
provision for relaxation is made 
in same para 9 giving liberty to the school management (Government, 
local bodies, Government aided and unaided) to consider giving 
concessions to different kinds of reserved categories mentioned therein 
'which has to be in accordance with their extant reservation policy'. 
This brings out one impo11ant feature. NCTE has nowhere mandated 
that there cannot be relaxation in pass marks in TET examination for 
reserved category candidates or that the standard would remain uniform 
irrespective of the fact as to whether a person belongs to general category 
or any of the reserved categories insofar as this examination is concerned. 
On the contrary, specific authorisation is given to grant special 
concessions. It, thus, accepts in principle that relaxed standard for passing 
TET can be prescribed by laying down a policy in this behalf. In fact, 
there is no challenge to this permissive provision. All that is argued by 
general category candidates is that there is no such "extant policy", 
meaning thereby if there is such a policy, the action of the State
VlKAS SANKHALA & ORS. ETC. v. VlKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SlKRl, J.] 
Government would be justified. 
45. In fact, it hardly needs to be emphasised that the Government 
may prescribe relaxed standards for such reserved categories, as it is in 
conformity with the spirit of the constitutional provisions contained in 
Articles IS and 16 read with Articles 38, 39(a) and 46 of the Constitution, 
which are enabling provisions permitting the State to make special 
provisions and provide relaxed standards for persons belonging to 
Scheduled Castes, Schedule Tribes and socially and educationally 
backward classes. 
46. Keeping in mind the aforesaid ethos of the Constitution, we 
proceed to interpret clause 9(a) ofnotification dated February 11, 2011 
which permits concessions to be given to certain clauses 'in accordance 
with their extant reservation policy'. The 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 ifthere 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 ifthere 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 ofTET 
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 
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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 ofRajasthan in accordance with the guiding principals 
issued by NCTE. In our opinion this would meet the requirement of 
'extant reservation policy' of the State. 
4 7. 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 ofrelaxation 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 limits. 
48. 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. Forth is purpose, if passing ofTET 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 ~oncession to certain reserved
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
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/Classes. 
49. Going by the scheme of the Constitution, it is more than obvious 
that the framers had kept in mind social and economic conditions of the 
marginalised section of the society, and in particular, those who were 
backward and discriminated against for centuries. Chapters on 
'Fundamental Rights' as well as 'Directive Principles of State Policies' 
eloquently bear out the challenges of overcoming poverty, discrimination 
and inequality, promoting equal access to group quality education, health 
and housing, untouchability and exploitation of weaker section. In making 
such provisions with a purpose of eradicating the aforesaid ills with which 
marginalized section of Indian society was suffering (in fact, even now 
continue to suffer in great measure), we, the people gave us the 
Constitution which
is transformative in nature. Vision depicted therein 
was to aim at achieving agaratarian society. Professor Upendra Baxi 
brings out this transformative feature of the Indian Constitution, so 
brilliantly, in the following words: 
"To be sure, the Indian Constitution frontally addresses 
millennial wrongs· such as untouchability; indeed, the 
constitution is transformative on this normative register. It 
is historically the first modern constitution not merely to 
declare constitutionally unlawful the practice of 
discrimination on the 'grounds ofuntouchability' (Article 
23 and 24 ). A unique feature of these provisions consists in 
the creation of constitutional offence, even to the point of 
derogation of the design and detail of Indian federalism 
because Article 35 empowers a parliamentary override over 
the legislative of the states within the Indian union. How 
many we understand in the Indian case the differential 
reconstitutions of memories ofancient wrongs as providing 
the very leitmotif of constitutional change compared with 
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A 
the organization of collective amnesia concerning the 
Partition Holocaust? Does this question to all matter in any 
understanding oflndian Constitution now at work? 
True, transformative constitutionals texts and contexts 
remain the very last sites for language oflove, gift, belonging 
B 
and care.3 
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50. Professor Baxi identifies three 'C's of constitutionalism'. CI 
is the text of Constitution, C2 is the constitutional law which is the official 
interpretation (namely, the way it is interpreted by the courts) and C3, in 
the conventional sense invites attention to the normative theory or 
ideological core or even the 'spirit of constitutions'. The task of 
transformating the constitutionalism is primarily that of the Courts, 
particularly the Apex Court, while enforcing the provisions of the 
Constitution. It is for this reason that this Court has always interpret the 
3 Chapter 1: Preliminary notes on transformative constitutionalism from Transformative 
Constitutionalism: Comparing the apex courts of Brazil, India and South Africa: by 
Oscar Vilhena, Upendra Baxi and Frans Viljoen (editors); South Asian Edition 20 I 4 
'Though in the aforesaid Chapter, he has expanded it to 8 'C's, other 'C's are different 
facets to C2. He elaborates these 'C's as under. 
"Understanding the 'transformative' in BISA and related comparative 
constitutional studies (COSOG) contexts entails further division of C2 
beyond the
official (of authoritative) interpretation by others. Via.C4, 
I designate practices of non official interpretation from the learned 
professions, including public intellectuals and social and human rights 
movements. CS designates all persons in a dominant position-corporate' 
'financial', 'market' and ·consumer' citizens- who especially contest 
C2 to advance their own strategic interest. C6 compriS'es interpretive 
praxes emanating from the voice of human and social suffering of the 
rightless or the worst-off citizens and persons who claims the human 
'right to have rights [This is a favorite notion of Hannah Arendt. See, 
for a recent analysis, W Hamacher "The right to have a rights (four- and-
a halfremarks)' (2004) 103 So111h Atlantic Quarterly 343. See also FI 
michelman 'Parsing a "right to have rights" '(1996) 3 Constellations 
200.] C6 often stands articulated by communities of resistance- for 
short here, on the power of social movements and human rights struggles. 
For C6 interpretive praxes to have any substantive impact on 
constitutional law ( C2) the hospitable figuration of activists justices 
remains necessary; perhaps, this is best named as a distinctive C7. 
At the same time. we also need to consider CS- the constituted powers 
to suspend constitutions in the state of within- notion emergency often 
named as ·armed rebellion•, or ex1ernal threats most poignantly manifest 
in the contemporary grammars and rhetoric of 'wars on terror'.
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. S!KRI, J.] 
text of the Constitution in such a way that 'spirit' of the constitution is 
realised. 
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 
categol) persons, thus, ensures equality as a levelling process. At 
jurisprudt>ntial level, whether reservation policies are defended on 
compensatory principles, utilitarian principles or on the principle 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. This was so eloquently stated in State of Ma<lltya 
Pra<lesll & Am. v. Kumari Nive<lita Jai11 & Ors.; 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 ai:iy 
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 
' ( 19s 1 J 4 sec 296 
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Colleges cannot be said to be unreasonable and the said 
relaxation constitutes no violation of Article 15( I) 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 S1.:heduled Tribes categories who 
were otherwise qualified and eligible to seek admission into 
Medical Colleges only in relation to seats reserved for 
them ... " 
52. Likewise, a Constitution Bench of this Court in M. Nagaraj & 
Ors. v. U11io11 of l11dia & Ors. 6 felt it necessary to make following 
remarks: 
"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 clas:,es. Affirmative action in the above sense 
seeks to move beyond the concept of non-discrimination 
towards equalising results with respect to various groups. 
Both the conceptions constitute "equality of opportunity"." 
53. We would also like to reproduce an emotive, but at the same 
time constitutionally justified, discourse in Dr. Jag(l{/isll Sara11 & Ors. 
v. U11i011 of l1ulitt7• This Court, speaking through
Justice Krishna Iyer, 
highlighted the constitutional mandate of providing equal opportunity to 
every member of the society, including the oppressed classes, in the 
following words of wisdom: 
"16. The primary imperative of Articles 14 and 15 is equal 
opportunity for all across the nation to attain excellence 
and this has burning relevance to our times when the country 
is gradually being 'broken up into fragments by narrow 
domestic walls' in politics, economics and education, undoing 
the founding faith of an undivided integrated India by 
surrender to lesser appeals and grosser passions. What is 
fundamental, as an enduring value of our polity, is guarantee 
'"(2006) s sec 212 
'( 1980> 2 sec 768
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. (A. K. SIKRI, J.] 
to each of equal opportunity to unfold the full potential of 
his personality. Anyone anywhere, humble or high, agrestic 
or urban, man or woman, and whatever his religion or 
irreligion, shall be afforded equal chance for admission to 
any secular educational course or school for cultural growth, 
training facility, speciality or employment. "Each according 
to his ability", is of pervasive validity, and it is a latent, though 
radical, fundamental that, given propitious environments, 
talent is more or less evenly distributed and everyone has a 
prospect of rising to the peak. Environmental inhibitions 
mostly "freeze the genial current of the soul" of many a 
humble human whose failure is 'inflicted'', not innate. Be it 
from the secular perspective of human equality or the 
spiritual insight of divinity in everyone, the inherent 
superiority cult with a herren-volk tint, is contrary to our 
axiom of equality. That is why "equal protection of the laws" 
for full growth is guaranteed, apart from "equality before 
the law". Even so, in our imperfect society, some objective 
standards like common admission tests are prescribed to 
measure merit, without subjective manipulation or university-
wise invidiousness. In one sense, it is a false dilemma to 
th ink that there is rivalry between equality and excellence, 
although superficially they are competing values. In the long 
run, when every
member of the society has equal 
oppo11m1ity, genetically and environmentally,' to develop his 
potential, each will be able, in his own way, to manifest his 
faculty fully. The philosophy and pragmatism of universal 
excellence through universal equal opportunity is part of 
our culture and constitutional creed. 
17. This norm of non-discrimination, however, admits of 
just exceptions geared to equality and does not forbid those 
basic measures needed to abolish the gaping realities of 
current inequality afflicting "socially and educationally 
backward classes" and "the Scheduled Castes, and the 
Scheduled Tribes". Such measures are rightly being taken 
by the State and are perfectly constitutional as the State of 
Kera/av.NM Thomas [( 1976) 2 SCC 31 O] has explained. 
Equality and steps towards equalisation are not idle 
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39. If equality of opportunity for every person in the country 
is the constitutional guarantee, a candidate who gets more 
marks than another is entitled to preference for admission. 
Merit must be the test when choosing the best, according 
to this rule of equal chance for equal marks. This proposition 
has greater importance when we reach the higher levels of 
education like post-graduate courses. After all, top 
technological expe1tise in any vital field like medicine is a 
nation's human asset without which its advance and 
development will be stunted. The role of high grade skill or 
special talent may be less at the lesser levels of education, 
jobs and disciplines of social inconsequence, but more at 
the higher levels of sophisticated skills and strategic 
employment. To devalue merit at the summit is to temporise 
with the country's development in the vital areas of 
professional expertise. In science and technology and other 
specialised fields of developmental significance, to relax 
lazily or easily in regard to exacting standards of perfonnance 
may be running a grave national risk because in advanced 
medicine and other critical departments of higher 
knowledge, crucial to material progress, the people oflndia 
should not be denied the best the nation's talent lying latent 
can produce. If the best potential in these
fields is cold-
shouldered for populist considerations garbed as reservations, 
the victims, in the long run, may be the people themselves. 
Of course, this unrelenting strictness in selecting the best 
may not be so imperative at other levels where a broad 
measure of efficiency may be good enough and what is 
needed is merely to weed out the worthless. 
40. Coming to brass tacks, deviation from equal marks will 
meet with approval only ifthe essential conditions set out 
above are fulfilled. The class which enjoys reservation must 
be educationally handicapped. The reservation must be 
geared to getting over the handicap. The rationale of 
reservation must be in the case of medical students, removal
VIK.AS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
of regional or class inadequacy or like disadvantage. The 
quantum of reservation should not be excessive or societally 
injurious, measured by the overall competency of the end-
product viz. degree-holders. A host of variables influence 
the quantification of the reservation. But one factor deserves 
great emphasis. The higher the level of the speciality the 
lesser the role of reservation. Such being the pragmatics 
and dynamics of social justice and equal rights, let us apply 
the tests to the case on hand." 
54. 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 catego1y who are found meritorious in selection 
are ultimately appointed. We are of the
opinion that in.this manner the 
two constitutional goals, that ofrendering 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. I 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. 
QUESTION NO; 3 
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56. The policy decision was contained in letter dated May 11, 2011 
G 
issued by the State Government thereby allowing migration ofreserved 
category candidates to general category who had secured better than 
general category candidates in recruitment examinations. This has been 
criticised by the High Court and held to be invalid on the ground that this 
was done by circular dated February 11, 2011 which was issued after 
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the recruitment process started with the issuance of advertisement dated 
March 30, 2011 and, therefore, it was impennissible to change the nonns 
after the recruitment process had been initiated. 
57. In this behalf, the High Court has referred to Circular No. F-
7(2) DOP/ A-Il/96 dated June 17, 1996 of the Government ofRajasthan 
whereby decision was conveyed that the candidates belonging to SC/ST 
and OBC who gets selected fulfilling the conditions of eligibility regarding 
age limit and attempts prescribed for general candidates can be placed 
_on general merit list and those who get placement in the merit list as a 
result of special concession given to them in terms of age and attempts 
should not be considered as the general candidates but should be 
considered against reserve vacancies. The High Court further noted 
that later circular No. F.7(1) DOP/A-2/99 dated March 04, 2002 issued 
on the same subject reiterated the aforesaid position. Yet again, vide 
Circular No. F.15(24) DOP/Ail/75 dated June 24, 2008, it was clarified 
that only those reserved category candidates who have not taken any 
concessions (like that of age, etc.) can compete against non-reserved 
vacancies and be counted against them. It also clarified that women, 
persons with disabilities, sportspersons, in-servicemen are counted against 
their respective category, even if they are suitable for selection against 
non-reserved or
open competition vacancy/post. However, if any 
remaining candidate of these categories after providing the vacancies/ 
posts reserved for them are more meritorious than the last person of the 
open competition category, such candidate will be selected even if it 
leads to selection of more candidates than that provided by virtue of 
reservation. On the basis of the aforesaid circulars, the High Court 
commented that only those reserved category candidates were entitled 
to be migrated to general quota if they complete with availing any special 
concessions in terms of age, attempts and otherwise except concession 
regarding fee. However, this norm was changed by impugned Circular 
No. F. 7( 1 )DOP/ A-11/99 dated May 11, 2011 which was issued in 
supersession of the earlier circular dated March 04, 2002 and permitted 
reserved category candidates to be counted against unreserved category 
vacancies if in the selection they had secured more marks than the marks 
obtained by the last unreserved category candidate who. is selected, 
irrespective of the fact that as to whether they avail special concessions 
or not. As pointed out above, the High Court has held that since this 
change in norms took place after the initiation of selection process vi de
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
advertisement dated March 30, 2011, the circular dated May 11, 2011 
was not applied as the aforesaid move/amendment in selection norms 
was impermissible as held oy this Court in K. Manjusree v. State of 
Andlira Pradesh & Anr. 8 
58. The learned counsel appearing for reserved category 
candidates/appellants submitted that passing ofTET examination is just 
one of the eligibility criteria and cannot be treated as part of the 
recruitment process and, therefore, cannot be counted as given relaxation 
or concession availed by the reserved category candidates. On that 
basis, it was sought to argue that even if circular dated May 11, 2011 is 
ignored, as per the policy contained in earlier circulars, those reserved 
category candidates who had secured more marks than the last candidate 
selected in the general category, were entitled to be counted against 
unreserved category posts. It was also pointed out that insofar as 
recruitment process is concerned, weightage of 20% of TET marks 
was given in the final score. This flat weightage of20% ofTET marks 
given to all candidates irrespective of the categories to which they belong 
provided a level playing field. In this manner, those candidates who had 
secured more marks in TET were placed at advantageous positions by 
giving the said weightage. The other effect was that those candidates in 
reserved category who had secured less marks than 60%
and became 
eligible to participate in the selection process by virtue of concession in 
the eligibility criteria ofTET pass marks, naturally got less marks under 
this head. Therefore, as far as recruitment process is concerned, no 
such benefit had accrued to the reserved category candidates. It was 
also argued that principle of estoppel would apply as the general category 
candidates did not challenge the recruitment process including the 
advertisement and filed the writ petitions only after they found themselves 
to be unsuccessful on declaration of the results of the recruitment. 
Reference in this behalf is made to the judgment in the case of Vijendra 
Kumar Verma v. Public Service Commission, Uttarakliand & Ors. 9 
It was further pointed out that during the pendency of the matter before 
this Court, appointments were made by the respective local bodies with 
respect to recruitment of2012 giving relaxation in accordance with the 
State policy dated March 23, 2011 and also allowing migration as per 
policy dated May I I, 2011 subject to the decision of this Court. The 
participants of reserved category candidates in recruitment process of 
'<2oos) 3 sec 512 
'<201I)1sec150 
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2012 and 2013 preferred SLP (C) No. 31109 of2014 wherein this Court 
issued notice and allowed the appellant Nos. 8 to 13 belonging to 2013 
recruitment to file SLP. In March, 2015, result declared with regard to 
recruitment of 2013 giving relaxation in accordance with State policy 
dated March 23, 2011. However, appointments are not given to reserved 
category candidates availing relaxation although seats have been kept 
vacant. Moreover, migration to general seats was not allowed. The 
appellants in SLP(C) No. 31109 of2014 belonging to 2013 recruitment, 
moved I.A. No. 14 of2015 seeking direction to the State to prepare 
merit list of 2013 recruitment in the same manner as done in 2012 
recruitment giving benefit of relaxation and migration. In fact, after 
2011, TET was again conducted by the State in 2012. The reserved 
category candidates who had passed TET with relaxations in 2011 did 
not appear in 2012 TET since they were declared pass in 2011 TET 
itself. Otherwise, they would have availed the opportunity to improve 
their TET scores by appearing in TET in 2012. 
59. The learned counsel for the general category candidates, on 
the other hand, maintained that TET was a part of recruitment process 
and relaxation in passing marks in that examination amounted to giving 
concession to reserved category candidates and after availing such 
concession they were not entitled to migrate to general
category. 
It 
was also submitted that insofar as decision of the State contained in 
letter dated May 11, 2011 is concerned, it was rightly held by the High 
Court that norms could not be changed after the selection process has 
started. 
60. Having regard to the respective submissions noted above,'first 
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 fonns 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 ofTET. 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
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
'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 ofTET 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 
of20% ofTET 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 TET. 
61. 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 d'ated 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. 
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62. In Jitendra Kumar Singh & Anr. v. State of Uttar Pradesh 
& Ors. 10, this Court has very categorically held that relaxations given in 
educational qualifications etc. making a person eligible to participate in 
selection process would not be treated as availing benefits in the 
recruitment/employment and the benefits envisaged have to be those 
which have direct relation to recruitment/employment and are relatable 
to the jovial relationship of employer and employee. It is also clarified 
that such benefits must occur from and should be post 'level playing 
field'. We would like to reproduce the following discussion from the 
said judgment touching upon the aforesaid aspects: 
"48. In view of the aforesaid facts, we are of the considered 
opinion that the submissions of the appellants that relaxation 
in fee or age would deprive the candidates belonging to the 
reserved category of an opportunity to compete against the 
general category candidates is without any foundation. It is 
to be noticed that the reserved category candidates have 
not been given any advantage in the selection process. All 
the candidates had to appear in the same written test and 
face the same interview. It is therefore quite apparent that 
the concession in fee and age relaxation only enabled certain 
candidates belonging to the reserved category to fall within 
the zone of consideration. The concession in age did not in 
any
manner tilt the balance in favour of the reserved 
category candidates, in the preparation of final merit/select 
list. 
49. It is permissible forthe State in view of Articles 14, 15, 
16 and 38 of the Constitution oflndia to make suitable 
provisions in law to eradicate the disadvantages of 
candidates belonging to socially and educationally backward 
classes. Reservations are a mode to achieve the equality 
of opportunity guaranteed under Article 16(1) of the 
Constitution oflndia~ Concessions and relaxations in fee or 
age provided to tli_e reserved category candidates to enable 
them to compete and seek benefit of reservation, is merely 
an aid to reservation. The concessions and relaxations place 
the candidates on a par with general category candidates. 
It is only thereafter the merit of the candidates is to be 
1•<2010) J sec 119
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR 
687 
AGARWAL & ORS. ETC. [A. K. SIKRI, J.] 
determined without any further concessions in favour of 
A 
the reserved category candidates. 
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75. In our opinion, the relaxation iQ age does not in any 
manner upset the "level playing field". It is not possible to 
accept the submission of the learned counsel for the 
appellants that relaxation in age or the concession in fee 
would in any manner be infringement of Article 16(1) of 
the Constitution oflndia. These concessions are provisions 
pertaining to the eligibility of a candidate to appear in the 
competitive examination. At the time when the. concessions 
are availed, the open competition has not commenced. It 
commences when all the candidates who fulfill the eligibility 
conditions, namely, qualifications, age, preliminary written 
test and physical test are permitted to sit in the main written 
examination. With age relaxation and the fee concession, 
the reserved candidates are merely brought within the zone 
of consideration, so that they can participate in the open 
competition on merit. Once the candidate participates in 
the written examination, it is immaterial as to which category, 
the candidate belongs. All the candidates to be declared 
eligible had participated in the preliminary test as also in the 
physical .test. It is only thereafter that successful candidates 
have been permitted to participate in the open competition." 
·It is stated at the cost of
repetiti9n that provision of giving 20% 
_ marks of TET score was applied to all candidates irrespective of the 
category to which he/she belongs and, therefore, no concession or 
relaxation or advantage or benefit was given in this behalf which could 
disturb the level playing field and tilt advantage in respect ofreserved 
category candidate. On the contrary, the reserved category candidates 
who had secured less marks in TET examination are given lesser marks 
in the recruitment process on the application of the formula of allocating 
20% marks ofTET score. Question No. 3 is answered accordingly.· 
63. These appeals are accordingly allowed in the manner indicating 
in this judgment, effect whereof would be as under: 
(a) Those reserved categofY candidates who secured pass marks 
on the application ofrelaxed standards as contained in the extant policy 
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A 
of the Government in its communication dated March 23, 2011 to be 
tre14ted as having qualified TET examination and, thus, eligible to 
participate in the selection undertaken by the State Government. 
(b) Migration from reserved category to general category sh al 1 be 
admissible to those reserved category candidates who secured more 
B 
marks obtained by the last unreserved category candidates who are 
selected, subject to the condition that such reserved category candidates 
did not avail any other special concession. It is clarified that concession 
of passing marks in TET would not be treated as concession falling in 
the aforesaid category. 
c 
All these appeals are disposed of accordingly. No order as to 
cost. 
Nidhi Jain 
Appeals disposed of.