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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3545 – 3549 OF 2016

VIKAS SANKHALA & ORS. ETC. .....APPELLANT(S)

VERSUS

VIKAS KUMAR AGARWAL & ORS. ETC. .....RESPONDENT(S)

W I T H

CIVIL APPEAL NOS. 3550-3555 OF 2016

CIVIL APPEAL NOS. 3556-3559 OF 2016

CIVIL APPEAL NO. 3560 OF 2016

CIVIL APPEAL NO. 3561 OF 2016

CIVIL APPEAL NO. 3562 OF 2016

CIVIL APPEAL NOS. 3563-3566 OF 2016

CIVIL APPEAL NO. 3567 OF 2016

CIVIL APPEAL NO. 3568 OF 2016

CIVIL APPEAL NO. 3569 OF 2016

CIVIL APPEAL NO. 3570 OF 2016

J U D G M E N T A.K. SIKRI, J.

The Statement of Objects and Reasons of the Right of Children to

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Free and Compulsory Education Act, 2009 (hereinafter referred to as the

'RTE  Act')  recognises  one  of  the  most  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 Andhra 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

recommendation2 to the Parliament to make suitable amendment in the

Constitution.   Realising  its  constitutional  commitment,  the  Parliament

1

(1993) 1 SCC 645 2 Report No. 165 of the Law Commission of India

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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 Article:

“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 of universal education continued to allude us.  It was found

that number of children, particularly children from disadvantaged groups

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 formal school which satisfies certain essential norms and standards;

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(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 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 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 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 RTE Act,

which reads as under:

“23.   Qualifications  for  appointment  and  terms  and

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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 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 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.

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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 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 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:

“  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

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unaided)

(a) may consider giving concessions to persons belonging to  SC/ST,  OBC,  differently  abled  persons,  etc.,  in accordance with their extant reservation policy;

(b)  should  give  weightage  to  the  TET  scores  in  the recruitment  process;  however,  qualifying  the  TET would not  confer  a  right  on  any  person  for recruitment/employment as it is only one of the eligibility criteria for appointment.”

In  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 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 –

(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 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

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to reserved categories could be accorded.

10) 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 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.”

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.

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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)  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, 1995.”

12) 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 orders.

13) At this stage, many candidates belonging to the General category filed

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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

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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.

15) Vide order dated July 26, 2013, this Court's 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 Court.   

The participants of reserved category candidates in recruitment process

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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 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  all  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

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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  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 policy.

18) 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

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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

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the said issue with necessary details.

21) 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 process.

22) Before we advert to the detailed submissions made by the 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

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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 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.

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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

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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

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 policy.

The  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, 2011.

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24) 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

TET.

The High Court further pointed out that in terms of letter dated March 23,

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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  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 circulars.

The  High  Court  further  noted  that  circular  dated  May  11,  2011 was

issued in supersession of earlier circular dated March 04, 2002 which

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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

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

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27) The history of events, right upto the decision of the High Court, gives a

clear glimpse of the questions of law that need to be determined by this

Court.   At  this  juncture,  we would  like  to  formulate  these  issues,  as

under:

i) Whether policy of the State as reflected in its letter dated March 23, 2011

deciding to give relaxation ranging from 10% to 20% in TET marks to

different reserved categories as mentioned therein is valid in law?

ii) Whether  NCTE  notification  dated  July  29,  2011,  which  amends

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. 1 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?  In

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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 by NCTE.  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

August 23, 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;

(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

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suitable professional body designated by the appropriate Government

for this purpose (Here, the State Government had designated Central

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 professional  qualifications  specified  in  the  NCTE Notification dated 23rd August, 2010.

(ii)  A person who is pursuing any of the teacher education courses (recognised by the NCTE or the RCI, as the case may  be)  specified  in  the  NCTE  Notification  dated  23rd August, 2010.

(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 issued by the Central Government under that sub-section.”

 Para 6 gives the structure and content of TET.  Para 7 prescribes that

there would 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:

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“9.  A person who scores 60% or more in the TET exam will  be considered as TET pass.   School  managements (Government,  local  bodies,  government  aided  and unaided)-

(a)  may consider giving concessions to persons belonging to  SC/ST,  OBC,  differently  abled  persons,  etc.  in accordance with their extant reservation policy;

(b)   should  give  weightage  to  the  TET  scores  in  the recruitment  process;  however,  qualifying  the  TET would not  confer  a  right  on  any  person  for recruitment/employment as it is only one of the eligibility criteria for appointment.”

 For our purposes, it is not necessary to take note of other paras of the

said guidelines.

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 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

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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

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

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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

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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 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 23.8.2010, it had received representations from the State

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Government  and  other  stakeholders  that  in  respect  of SCs/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 Norms & Procedure) Regulations,  2009  (hereinafter  referred  to  as  '2009 Regulations')  and  the  norms  and  standards  for  various education courses as specified in the Appendices 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  23.8.2010  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 that as far as relaxation in passing TET is concerned,

same is  governed by para 9 of  notification dated February 11,  2011.

However, before we deal with the said para in particular, we need to

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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 of TET is an essential

qualification, which is a condition precedent for appointment as a teacher

for Class I to VIII.  It is in terms of qualifications letter prescribed by the

NCTE in its notification dated August 23, 2010 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 VIII.  As per Clause 1(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

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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)  of  notification  dated  February  11,  2011  that  the  State

Government issued communication dated March 23, 2011 deciding to

give relaxation in TET ranging from 10% 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 appellant  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  candidates,  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

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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 reservation policy” appearing

Clause 9(a) of the Guidelines dated February 11, 2011, relates to the

dominant underlying policy of reservation 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

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any modification in the extent of relaxations to reserved categories or

modify the reserved categories after February 11, 2011 which the State

is  otherwise  obliged  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 of Rajasthan 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 III teachers

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after RTET, 2011 the factual statistics were as follows:

Total posts advertised - 39544 Total selections made - 37317 Selections made without concessions - 23978 (it includes 5621 candidates of reserved category who had not taken concession) Selections made with concessions - 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 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 for the 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

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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.

41) 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.  In

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 belonging to

the  General  category  have  been  selected  as  a  consequence  of  the

above flawed measures.

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42) It was further submitted that there was no extant reservation policy of the

State of Rajasthan 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 that

NCTE  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

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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 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.   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 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 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

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backward classes.

46) Keeping in mind the aforesaid ethos of the Constitution, we proceed to

interpret  clause  9(a)  of  notification  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 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

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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 State.

47) 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

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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 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.   For  this  purpose,  if  passing  of  TET

examination is treated as minimum essential qualification for a person to

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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/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

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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 of untouchability’ (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 of ancient wrongs as providing the very leitmotif of constitutional change compared with  the  organization  of  collective  amnesia  concerning  the Partition  Holocaust?  Does  this  question  to  all  matter  in  any understanding of Indian Constitution now at work?  True, transformative constitutionals texts and contexts remain the  very  last  sites  for  language  of  love,  gift,  belonging  and care.3

50) Professor Baxi identifies three 'C's of constitutionalism4. C1 is the text of 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 2014  

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  comprises  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 half remarks)’ (2004) 103 South 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

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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

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

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 action. Indian Constitution has 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 C8- the constituted powers to suspend constitutions in the state of within- notion emergency often named as ‘  armed rebellion’,  or external  threats most poignantly  manifest  in the contemporary grammars and rhetoric of ‘wars on terror’.

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made adequate enabling provisions empowering the State to provide

such concessions.  This was so eloquently stated in  State of Madhya

Pradesh & Anr. v. Kumari Nivedita Jain & Ors.5 as under:

“26.   It  cannot  be  disputed  that  the  State  must  do everything  possible  for  the  upliftment  of  the  Scheduled Castes  and  Scheduled  Tribes  and  other  backward communities and the State is entitled to make reservations for them in the matter of admission to medical and other technical  institutions.  In  the  absence  of  any  law  to  the contrary,  it  must  also  be  open  to  the  Government  to impose  such  conditions  as  would  make  the  reservation effective  and would  benefit  the  candidates  belonging  to these  categories  for  whose  benefit  and  welfare  the reservations have been made. In any particular situation, taking into  consideration the realities and circumstances prevailing in the State it will be open to the State to vary and  modify  the  conditions  regarding  selection  for admission,  if  such  modification  or  variation  becomes necessary for achieving the purpose for which reservation has been made and if there be no law to the contrary. Note (ii)  of Rule 20 of the Rules for admission framed by the State Government specifically empowers the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary ….. The relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes and Scheduled Tribes for admission into Medical Colleges cannot be said to be unreasonable and the said relaxation constitutes no violation of Article 15(1) and (2) of the Constitution. The said  relaxation  also  does  not  offend  Article  14  of  the Constitution. It has to be noticed that there is no relaxation of  the  condition  regarding  eligibility  for  admission  into Medical  Colleges.  The  relaxation  is  only  in  the  rule regarding selection of candidates belonging to Scheduled Castes  and  Scheduled  Tribes  categories  who  were otherwise  qualified  and  eligible  to  seek  admission  into Medical  Colleges  only  in  relation  to  seats  reserved  for them...”

52) Likewise, a Constitution Bench of  this Court  in  M. Nagaraj & Ors.  v.

5 (1981) 4 SCC 296

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Union of India & 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  classes.  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.  Jagadish  Saran  &  Ors.  v.

Union of  India7.   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  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

6 (2006) 8 SCC 212 7 (1980) 2 SCC 768

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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 think 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 opportunity, 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  Kerala  v.N.M.  Thomas [(1976)  2  SCC  310]  has  explained.  Equality  and  steps towards equalisation are not idle ‘incantation’ but actuality, not mere ideal but real, life.

xx xx xx

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  expertise  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

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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 performance may be running a grave national risk because in  advanced  medicine  and  other  critical  departments  of higher knowledge, crucial to material progress, the people of India 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 if the 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  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

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philosophy.  After all it only ensures that such candidates belonging to

reserved category become eligible for appointment as primary teachers.

On the other hand, when it comes to selection process such reserved

category candidates have to compete with general category candidates

wherein due regard for merit is given.  Therefore, only those  candidates

belonging to reserved category who are found meritorious in selection

are ultimately appointed.  We are of the opinion that in this manner the

two constitutional goals, that of rendering quality education on the one

hand and providing “equality of opportunity” to the unprivileged class on

the other hand, are adequately met and rightly balanced.

55) We, thus, do not agree with the interpretation that is given by the High

Court and answer Question No. 1 holding that relaxation prescribed in

letter  dated  March  23,  2011 in  pass  marks  in  TET  examination  for

different reserved categories mentioned therein is legal and valid in law.   

QUESTION NO. 3

56) The policy decision was contained in letter dated May 11, 2011 issued by

the State Government thereby allowing migration of reserved 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 the

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recruitment  process started with the issuance of  advertisement  dated

March  30,  2011 and,  therefore,  it  was  impermissible  to  change  the

norms after the recruitment process had been initiated.

57) In  this  behalf,  the  High  Court  has  referred  to  Circular  No.  F-7(2)

DOP/A-II/96  dated  June  17,  1996  of  the  Government  of  Rajasthan

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/AII/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

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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-II/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 vide 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  by  this  Court  in  K.

Manjusree v. State of Andhra Pradesh & Anr.8

58) The  learned  counsel  appearing  for  reserved  category

8 (2008) 3 SCC 512

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candidates/appellants submitted that passing of TET 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 of 20% of TET

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 of TET 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

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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,

Uttarakhand  &  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 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 the

decision of this Court.  The 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 appellants 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

9 (2011) 1 SCC 150

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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 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

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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

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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 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  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.

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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 for the State in view of Articles 14, 15, 16 and 38 of  the Constitution of  India  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 of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is

10 (2010) 3 SCC 119

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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  determined  without  any  further concessions in favour of the reserved category candidates.

xx xx xx

75.  In our opinion, the relaxation in 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  of  India.  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 repetition 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  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%

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marks of TET score.  Question No. 3 is answered accordingly.

63) These appeals are accordingly allowed in the manner indicated in this

judgment, effect whereof would be as under:

(a)   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.   

(b)  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.   

All these appeals are disposed of accordingly.  No order as to cost.

.............................................J. (A.K. SIKRI)

.............................................J. (R.K. AGRAWAL)

NEW DELHI; OCTOBER 18, 2016.