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

(b) compulsory education casts an obligation on the appropriate 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 for protection of the right of children and a decentralized grievance redressal mechanism3. 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 number of schools 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 requirement4. 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 RTE Act, which reads as under:23. Qualifications for appointment and terms and conditions of service of teachers:(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed5. 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 teacher6. NCTE fulfilled this obligation in the form of Notification dated August 23, 2010, published on August 25, 2010 in the Gazette of India, 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 accordance with the Guidelines framed by the NCTE for the purpose7. 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 of TET 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:9. A person who scores 60% or more in the TET exam will be considered as TET pass. School managements (Government, local bodies, government aided and unaided)(a) may consider giving concessions to persons belonging to SC/ST, OBC, differently abled persons, etc., in accordance with their extant reservation policy;(b) should give weightage to the TET scores in the recruitment process; however, qualifying the TET would not confer a right on any person for recruitment/employment as it is only one of the eligibility criteria for appointmentIn para 9, the extent of percentage to which the relaxation could be granted in the qualifying marks for TET was not stipulated and it was mentioned that the State Governments could give such concessions in accordance with their extant reservation policy8. 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 -(a) with B.A./B.Sc. with at least 50% marks and B.Ed. qualification shall also be eligible for appointment for Class I to V up to 1st 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 Education9. 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 accorded10. New para 3 of the Notification dated February 11, 2011, substituted in place of original para 3, is to the following effect: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 1 year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard, shall also be eligible for appointment to Class I to V up to 1st 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 EducationRelaxation up to 5% in the qualifying marks shall be allowed to the candidates belonging to reserved categories, such as SC/ST/OBC/PH11. 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) 10% 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 with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 199512. As per the aforesaid communication dated March 23, 2011 of the State Government, candidates belonging to SC/ST, OBC, SBC and women belonging to General category were to be given 10% 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 of Rajasthan. They were given appointment orders and were also issued joining orders13. 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 decided all these writ petitions vide common judgment dated October 06, 2012 thereby partly allowing the said writ petitions and holding that the order 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 11, 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 appeals15. Vide order dated July 26, 2013, this Courts order in SLP(C) No. 23508 of 2013 stayed the operation of the impugned judgment for three months. In the meanwhile, State of Rajasthan 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 CourtThe participants of reserved category candidates in recruitment process of 2012 and 2013 preferred SLP(C) No. 31109 of 2014 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 appellant in SLP(C) No. 31109 of 2014 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 201216. 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 all such candidates belonging to the reserved categories can be treated as having passed TET on obtaining marks as per relaxed standards?(ii) relaxation to the extent of 5% was permissible, as provided by NCTE vide its amendment Notification dated July 29, 2011 and, therefore, those who secure 55% or above could be treated as successful in TET?17. 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 policy18. Insofar as candidates belonging to the reserved categories are 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 Governments 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 legal20. 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 details21. It so happened that many candidates who belonged to reserved category got higher marks than the 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 impermissible as these reserved category candidates got selected after 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 process23. 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 of necessary 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 usWhile 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 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 qualityConspicuously, thus, the essence of the TET was to infuse a qualitative content in the recruitment process and thus, set a national benchmark for the sake of uniformity 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 policyThe High Court, then, pointed out that none of the parties had challenged the competence of NCTE either to issue guidelines 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 policy, the State Government could not have granted the concession, as was done vide letter dated March 23, 201124. Coming to notification dated July 29, 2011 which was issued by the NCTE in exercise of its power under Section 23(1) of the RTE Act, amending its earlier notification dated August 23, 2010, the High Court proceeded 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, 2010 dealt exclusively with the aspect of NCTE 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 TETThe 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 merit25. 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 are 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 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 circularsThe 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 applied to the said selectionOn 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 category26. 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.

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