REET SARKARI NAUKRI News - Over Relaxation To Reserved Category Candidates May Compromise Quality: SC [Read Judgment -
राजस्थान टेट मामले में शिक्षा की गुणवत्ता को लेकर सुप्रीम कोर्ट सख्त , राजस्थान हाई कोर्ट के निर्णय को बकरार रखा ,
आरक्षित केटेगरी को थोड़ी राहत , लेकिन राजस्थान राज्य सरकार द्वारा आरक्षित श्रेणी को दी जाने वाली भारी छूट को सुप्रीम कोर्ट ने नकार दिया
आरक्षित केटेगरी को डबल बेनिफिट मिला - मतलब अगर टेट परीक्षा आरक्षण के दम पर पास करी , और अगर चयन पॉइंट में आरक्षण से पास होने वाले ने
अंतिम चयन में जनरल केटेगरी में जगह बनाई , तो इसको सुप्रीम कोर्ट ने मान्य कर दिया है ,
देखिये :-
उत्तर प्रदेश में शिक्षा मित्र मामले पर भी सुप्रीम कोर्ट गुणवत्ता को लेकर फैसला दे सकता है , सामान्यत हाई कोर्ट का फैसला बदलता नहीं है ।
दीवाली की खुशियां में भांग न पड़े , इसलिए सुप्रीम कोर्ट ने अच्छी सोच दिखाते हुए अगली तारीख यू पी शिक्षा मित्र मामले में दीवाली बाद रखी
SC upheld relaxation in pass marks in Rajasthan TTE exams for different reserved categories. The Supreme Court in Vikas Sankhala & Ors. Vs. Vikas Kumar Agarwal & Ors, has refused to interfere with relaxation in pass marks in Teacher Eligibility Test (TET) examination in Rajasthan for different reserved categories and held that it is legal and valid in law. The bench headed by Justice AK Sikri observed that very high percentage of relaxation might amount to compromising with quality, which may not be conducive to maintaining standards of education, and asked the state government to consider this aspect and bring the relaxations within reasonable limits for future selections. Disposing of appeals preferred by reserved category candidates, the court held as follows:
Those reserved category candidates who secured pass marks on the application of relaxed standards as contained in the extant policy of the government in its communication dated March 23, 2011, to be treated as having qualified TET examination and, thus, eligible to participate in the selection undertaken by the state government. Migration from reserved category to general category shall be admissible to those reserved category candidates who secured more marks obtained by the last unreserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail of 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. The court noted the high court observation that except for the state of Andhra Pradesh, no other state has granted such wide range of concessions as the state of Rajasthan did and observed that this 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,” the bench said. Upholding the relaxation given to reserved categories, the court observed that 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. “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,” the court added.
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 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 recommendation[2] to the
Parliament to make suitable amendment in the Constitution. Realising its
constitutional commitment, the Parliament obliged, and Article 21-A was
added vide the Constitution (Eighty Sixth Amendment) Act, 2002 in the
following manner:
Article 21-A. Right to education. – The State shall provide free and
compulsory education to all children of the age of six to fourteen years in
such manner as the State may, by law, determine.”
Simultaneously, Article 45 of the Constitution was also
substituted with the following 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.”
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;
(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.”
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.
For the purpose of present appeals, it is not necessary to refer to each of
these provisions. As we are concerned with the educational and other
qualifications that are needed for appointment of the teaching staff, the
provision directly touching upon this aspect is Section 23 of the RTE Act,
which reads as under:
“23. Qualifications for appointment and terms and conditions of service of
teachers: (1) Any person possessing such minimum qualifications, as laid
down by an academic authority, authorised by the Central Government, by
notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or
training in teacher education, or teachers possessing minimum
qualifications as laid down under sub-section (1) are not available in
sufficient numbers, the Central Government may, if it deems necessary, by
notification, relax the minimum qualifications required for appointment as
a teacher, for such period, not exceeding five years, as may be specified
in that notification:
Provided that a teacher who, at the commencement of this Act, does not
possess minimum qualifications as laid down under sub-section (1), shall
acquire such minimum qualifications within a period of five years.
(3) The salary and allowances payable to, and the terms and conditions of
service of, teachers shall be such as may be prescribed.”
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.
NCTE fulfilled this obligation in the form of Notification dated August 23,
2010, published on August 25, 2010 in the Gazette of India, whereunder
minimum qualifications for appointment as teachers were laid down. Apart
from other educational qualifications prescribed therein, the said
Notification also mandates passing of Teacher Eligibility Test (for short,
'TET') and reads as follows:
“Pass in the Teacher Eligibility Test (TET), TO BE CONDUCTED BY THE
APPROPRIATE Government in accordance with the Guidelines framed by the NCTE
for the purpose.”
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 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.
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.”
Subsequently, vide Notification dated July 29, 2011, the aforesaid letter
dated February 11, 2011 was amended. It, inter alia, prescribed that
relaxation up to 5% in the qualifying marks to the candidates belonging to
reserved categories could be accorded.
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.
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.”
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.
At this stage, many candidates belonging to the General category filed writ
petitions in the High Court of Rajasthan challenging their selection on the
ground that minimum percentage for passing TET was 60% and, therefore, all
those candidates belonging to the reserved categories who secured less than
60% in TET could not be declared as having passed TET and were, therefore,
ineligible to participate in the selection process. Ultimately, the
learned Single Judge of the High Court decided all these writ petitions
vide common judgment dated October 06, 2012 thereby partly allowing the
said writ petitions and holding that the order dated March 23, 2011 of the
State Government could not be allowed to stand as the relaxation/concession
in qualifying marks was not legal or valid. It was also held that as per
para 9 of the guidelines contained in letter dated February 11, 2011 issued
by the NCTE, concession could be given to persons belonging to SC/ST, OBC,
differently abled persons, etc. only 'in accordance with their extant
reservation policy' and insofar as the State of Rajasthan is concerned, it
could not show any “extant” reservation policy warranting this concession.
The State Government challenged the said decision by filing appeals before
the Division Bench. Likewise, persons belonging to reserved categories who
had been selected and their selection set aside by the learned Single
Judge, also preferred appeals. In all, 29 appeals were filed which have
been decided by a common judgment dated July 02, 2013 by the Division Bench
of the High Court. Though the Division Bench did not agree with some of
the reasons given by the learned Single Judge, it dismissed all the appeals
by given its own reasons. It is in this backdrop that the State Government
as well as the selected candidates belonging to the reserved category have
felt aggrieved by the impugned decision making the same subject matter of
the present appeals.
Some developments which have taken place after the filing of various
special leave petitions may also be noted at this stage.
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 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.
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
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?
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.
Insofar as candidates belonging to the reserved categories are concerned,
they are divided into two groups. Many of these candidates got 55% and
above in TET. They argued that as far as concession given by the State
Government as per its decision dated March 23, 2011 is concerned, the same
is not warranted and relaxation up to 5% only could be given in view of the
amendment Notification dated July 29, 2011. On this premise, they want to
oust all those candidates who have secured less than 55% marks in TET with
the plea that reserved category candidates belonging to their group (those
who secured 55% or more marks in TET) be treated as eligible and posts
meant for reserved categories be filled up accordingly. It may be
mentioned that many candidates in their group are below in merit list drawn
after the selection than those reserved category candidates who secured
less than 55% marks in TET and, therefore, are not selected. If the other
group is excluded from the selection as ineligible, candidates from this
group may succeed in getting the berth. So their endeavour is to oust such
other group with marks lesser than 55% in TET so that they are able to get
in. On the other hand, those candidates from reserved categories who have
secured less than 55% marks in TET but are found eligible in terms of
relaxation give vide the State 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.
We may also pointed out at this stage itself that the State Government has
stood by its decision dated March 23, 2011.
There is yet another issue which was raised in the High Court by the writ
petitioners (candidates belonging to general category) and has been decided
by the High Court in their favour. As there is challenge to the findings
on that issue as well in these appeals, we would like to spell out the said
issue with necessary details.
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.
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
After taking note of the respective contentions of different parties
appearing before it, the High Court pointed out that there were two
peripheral issues which needed a decision before adverting to the central
issue about the legality of the concession granted by the State Government.
The selected candidates had challenged the maintainability of writ
petitions on twin grounds, namely, non-impleadment of necessary parties and
estoppel. After discussing these preliminary issues, the Court brushed
aside these contentions of the non-writ petitioners. It is not necessary
to dwell into the same as these contentions were not repeated before us.
While taking up the primary issue involved, the High Court
referred to the Statement of Objects and Reasons contained in the RTE Act
and pointed out that the avowed objective for enacting the said Act is to
guarantee full time elementary education of satisfactory and equitable
quality to every child. It remarked that the statute is edificed on the
belief that the values of equality, social justice and democracy and the
creation of a just and humane society can be achieved only through a
provision of inclusive elementary education to all. Free and compulsory
education of satisfactory quality thus, is the salubrious mission of this
enactment. Thereafter, the High Court referred to Section 23 of the RTE
Act and further pointed out that the NCTE is the academic authority, as
envisaged in Section 23(1) of the RTE Act, statutorily empowered to
stipulate the minimum qualifications for appointment of a teacher.
Further, power to relax such minimum qualifications has been reserved with
the Central Government in terms of Section 23(2) of the RTE Act. It, then,
referred to the notification dated August 23, 2010 issued by the NCTE under
Section 23(1) of the RTE Act laying down minimum qualifications for a
person to be eligible for appointment as a teacher in Class I to Class VIII
in a School (which have already been taken note of) followed by another
letter dated February 11, 2011 of the NCTE to the Secretaries and
Commissioners of the State Governments/ UTs and thereby circulating its
guidelines conducting the TET by appropriate Government as required by its
notification dated August 23, 2010. The High Court pointed out that
reading of this letter dated February 11, 2011 would reveal the abiding
predication to ensure against dilution of quality in such recruitment, and
instead, to secure induction of teachers possessed of essential aptitude
and ability to meet the challenges of teaching at the primary and upper
primary levels. While reiterating the mandate of a pass in the TET to be a
norm of eligibility, rationale therefore was enumerated as under:
(i) it would bring national standards and benchmark of teacher quality in
the recruitment process;
(ii) it would induce teacher education institutions and students from
these institutions to further improve their performance standards;
(iii) it would send a positive signal to all stakeholders that the
Government lays special emphasis on teacher quality.
Conspicuously, thus, the essence of the TET was to infuse a
qualitative content in the recruitment process and thus, set a national
benchmark 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.
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, 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.
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
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.
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
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
We would like to answer this question first as it will have some
implications and bearing on Issue No. 1 formulated by us above.
The poser here is as to whether NCTE has made any provision providing
relaxation in the passing marks for reserved category candidates? In 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
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:
“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.
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 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.”
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.
We find merit in the contention of the appellants and do not agree with the
respondents that the provision for relaxation upto 5% in qualifying marks
at all relates to TET. In the first instance, it is to be noted that
insofar as qualifying marks for TET are concerned, they are prescribed in
para 9 of the guidelines dated February 11, 2011. There is no amendment to
the said para. Amendment is incorporated in para 3 of the principal
notification dated February 11, 2011 which we have already reproduced
above. Original para 3 gives the rationale for including TET as a minimum
qualification. Though, it is not understood as to why that para is
substituted by the aforesaid amended para vide notification dated July 29,
2011. Be that as it may, a reading of amended para 3 clearly brings out
that it incorporates two aspects. First aspect touches upon the training
to be undergone by a person and this training can be undergone by those
persons who have certain specified marks in graduation and D.Ed. (Special
Education) or B.Ed. (Special Education). Training is for 6 months duration
i.e. 6 months special programme in elementary education. Insofar as
persons having graduation and B.Ed. qualification are concerned, minimum
marks in the graduation or B.Ed. are also prescribed. It is stipulated
that graduation should be with at least 50% marks and B.Ed. qualification
with at least 45% marks. However, those who have done D.Ed. (Special
Education) or B.Ed. (Special Education), no minimum marks in obtaining
those qualifications are prescribed. What follows is that person who is
graduate with B.Ed. qualification, he/she should have minimum 50% marks in
graduation and 45% marks in B.Ed. qualification. It is in this context
second aspect of the amended provision in sub-para (ii) of para 3 mentions
about 'Reservation Policy' and allows relaxation upto 5% in qualifying
marks. This relaxation is, therefore, clearly relatable to marks in
graduation and B.Ed. qualification, meaning thereby insofar as reserved
category candidates such as SC/ST/OBC/PH are concerned, they will be
treated as qualified to undergo the training in case they pass graduation
with minimum 45% marks and B.Ed. qualification with minimum 40% marks. We
are clear in mind that this relaxation of 5% does not relate to TET at all.
Had it been so, this notification dated July 29, 2011 would have amended
para 9 and, particularly, sub-para (a) of para 9 which deals with
concessions to reserved category candidates that has not happened and is
left intact.
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 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
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 recapitulate
the salient facts and features in brief followed by submissions of learned
counsel for the parties in this behalf.
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 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.
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'.
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 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 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.
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.
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
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.
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 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.
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.
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.
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”.
First thing that has to be borne in mind is that after prescribing 60% pass
marks in the TET examination, provision for relaxation is made in same para
9 giving liberty to the school management (Government, local bodies,
Government aided and unaided) to consider giving concessions to different
kinds of reserved categories mentioned therein 'which has to be in
accordance with their extant reservation policy'. This brings out one
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.
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 backward classes.
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 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.
It is a matter of record, which is taken note of the High Court also, such
relaxation has been granted by various State Governments and respondents
State is not only State. However, one observation made by the High Court
needs serious consideration. It is pointed out that except for the State of
Andhra Pradesh, no other State has granted such wide range of concessions
as the State of Rajasthan did in its letter dated March 23, 2011. This is
an aspect which needs to be looked into and needs to be reconsidered by the
States inasmuch as very high percentage of relaxation may amount to
compromising with quality which may not be conducive to maintaining
standards of education. However, we are not tinkering with the extant of
relaxation given in letter dated March 23, 2011 because of the reason that
on that basis, two recruitment tests have been conducted and candidates who
have been selected are now teaching for last number of years. However, for
future selections in this behalf, we impress upon the State Government to
consider this aspect and bring the relaxations within reasonable limits.
The exhortation of the High Court in the impugned judgment that the noble
purpose contained in RTE Act can be achieved by providing free and
compulsory education of satisfactory quality, cannot be doubted. Indeed it
is a salubrious mission of the RTE Act which not only guarantees full time
elementary education to every child upto 14 years of age, but also the
quality of education which is satisfactory and equitable. The High Court
is also right in remarking that in order to impart quality education, we
need those teachers who are processed of essential aptitude and ability to
meet the challenged of teaching at the primary and upper primary levels.
No doubt, these are important considerations to achieve the laudable
objects. For this purpose, if passing of TET examination is treated as
minimum essential qualification for a person to be eligible for appointment
as primary teacher, that cannot be countenanced. However, when it
comes to giving concession to certain reserved category candidates insofar
as passing marks in TET is concerned, such a provision by itself will not
affect the teaching quality. All said and done, Section 23(2) of the RTE
Act itself recognises the power for relaxing the minimum qualifications
required of a person to be eligible for appointment as primary teacher.
When it comes to the question of giving relaxation in passing marks in TET,
different outlook and glance stands attracted. Here comes the question of
taking affirmative action for the upliftment of the Scheduled Castes,
Scheduled Tribes and Other Backward Communities/Classes.
Going by the scheme of the Constitution, it is more than obvious that the
framers had kept in mind social and economic conditions of the marginalised
section of the society, and in particular, those who were backward and
discriminated against for centuries. Chapters on 'Fundamental Rights' as
well as 'Directive Principles of State Policies' eloquently bear out the
challenges of overcoming poverty, discrimination and inequality, promoting
equal access to group quality education, health and housing, untouchability
and exploitation of weaker section. In making such provisions with a
purpose of eradicating the aforesaid ills with which marginalized section
of Indian society was suffering (in fact, even now continue to suffer in
great measure), we, the people gave us the Constitution which is
transformative in nature. Vision depicted therein was to aim at achieving
agaratarian society. Professor Upendra Baxi brings out this
transformative feature of the Indian Constitution, so brilliantly, in the
following words:
“To be sure, the Indian Constitution frontally addresses millennial wrongs
such as untouchability; indeed, the constitution is transformative on this
normative register. It is historically the first modern constitution not
merely to declare constitutionally unlawful the practice of discrimination
on the ‘grounds 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]
Professor Baxi identifies three 'C's of constitutionalism[4]. C1 is the
text of Constitution, C2 is the constitutional law which is the official
interpretation (namely, the way it is interpreted by the courts) and C3, in
the conventional sense invites attention to the normative theory or
ideological core or even the 'spirit of constitutions'. The task of
transformating the constitutionalism is primarily that of the Courts,
particularly the Apex Court, while enforcing the provisions of the
Constitution. It is for this reason that this Court has always interpret
the text of the Constitution in such a way that 'spirit' of the
constitution is realised.
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 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...”
Likewise, a Constitution Bench of this Court in M. Nagaraj & Ors. v. 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”.”
We would also like to reproduce an emotive, but at the same time
constitutionally justified, discourse in Dr. Jagadish Saran & Ors. v. Union
of India[7]. 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 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 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.”
It hardly needs to be emphasised that the State has a legitimate and
substantial interest in ameliorating or eliminating where feasible, the
disabling effects of identified discrimination. It is a duty cast upon the
State, by the Constitution, to remedy the effects of “societal
discrimination”. Provision for relaxation in TET pass marks has to be
looked into from this angle which is in tune with the constitutional
philosophy. After all it only ensures that such candidates belonging to
reserved category become eligible for appointment as primary teachers. On
the other hand, when it comes to selection process such reserved category
candidates have to compete with general category candidates wherein due
regard for merit is given. Therefore, only those candidates belonging to
reserved category who are found meritorious in selection are ultimately
appointed. We are of the opinion that in this manner the two
constitutional goals, that of rendering quality education on the one hand
and providing “equality of opportunity” to the unprivileged class on the
other hand, are adequately met and rightly balanced.
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
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 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.
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 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]
The learned counsel appearing for reserved category 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 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 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.
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.
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 mentioned in
guidelines/notification dated February 11, 2011. These guidelines pertain
to conducting of TET. Basic features whereof have already been pointed out
above. Even para 9 which provides for concessions that can be given to
certain reserved categories deals with 'qualifying marks' that is to be
obtained in TET examination. Thus, a person who passes TET examination
becomes eligible to participate in the selection process as and when such
selection process for filling up of the posts of primary teachers is to be
undertaken by the State. On the other hand, when it comes to recruitment
of teachers, the method for appointment of teachers is altogether
different. Here, merit list of successful candidates is to be prepared on
the basis of marks obtained under different heads. One of the heads is
marks in TET. So far as this head is concerned, 20% of the marks obtained
in TET are to be assigned to each candidate. Therefore, those reserved
category candidates who secured lesser marks in TET would naturally get
less marks under this head. We like to demonstrate it with an example.
Suppose a reserved category candidate obtains 53 marks in TET, he is
treated as having qualified TET. However, when he is considered for
selection to the post of primary teacher, in respect of allocation of marks
he will get 20% marks for TET. As against him, a general candidate who
secures 70 marks in TET shall be awarded 14 marks in recruitment process.
Thus, on the basis of TET marks reserved category candidate has not got any
advantage while considering his candidature for the post. On the contrary,
“level playing field” is maintained whereby a person securing higher marks
in TET, whether belonging to general category or reserved category, is
allocated higher marks in respect of 20% of TET marks. Thus, in recruitment
process no weightage or concession is given and allocation of 20% of TET
marks is applied across the board. Therefore, the High Court is not
correct in observing that concession was given in the recruitment process
on the basis of relaxation in TET.
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.
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 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%
marks of TET score. Question No. 3 is answered accordingly.
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.
-----------------------
[1]
(1993) 1 SCC 645
[2] Report No. 165 of the Law Commission of India
[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 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’.
[5] (1981) 4 SCC 296
[6] (2006) 8 SCC 212
[7] (1980) 2 SCC 768
[8] (2008) 3 SCC 512
[9] (2011) 1 SCC 150
[10] (2010) 3 SCC 119
RTET / टीईटी / TET - Teacher Eligibility Test Updates / Teacher Recruitment /SARKARI NAUKRI NEWS / SARKARI NAUKRI / News
REET CTET, TEACHER ELIGIBILITY TEST (TET), NCTE, RTE, UPTET, HTET, JTET / Jharkhand TET, OTET / Odisha TET , शिक्षक भर्ती
Rajasthan TET / RTET, BETET / Bihar TET, PSTET / Punjab State Teacher Eligibility Test, West Bengal TET / WBTET, MPTET / Madhya Pradesh TET, ASSAM TET / ATET
, UTET / Uttrakhand TET , GTET / Gujarat TET , TNTET / Tamilnadu TET , APTET / Andhra Pradesh TET , CGTET / Chattisgarh TET, HPTET / Himachal Pradesh TET
राजस्थान टेट मामले में शिक्षा की गुणवत्ता को लेकर सुप्रीम कोर्ट सख्त , राजस्थान हाई कोर्ट के निर्णय को बकरार रखा ,
आरक्षित केटेगरी को थोड़ी राहत , लेकिन राजस्थान राज्य सरकार द्वारा आरक्षित श्रेणी को दी जाने वाली भारी छूट को सुप्रीम कोर्ट ने नकार दिया
आरक्षित केटेगरी को डबल बेनिफिट मिला - मतलब अगर टेट परीक्षा आरक्षण के दम पर पास करी , और अगर चयन पॉइंट में आरक्षण से पास होने वाले ने
अंतिम चयन में जनरल केटेगरी में जगह बनाई , तो इसको सुप्रीम कोर्ट ने मान्य कर दिया है ,
देखिये :-
उत्तर प्रदेश में शिक्षा मित्र मामले पर भी सुप्रीम कोर्ट गुणवत्ता को लेकर फैसला दे सकता है , सामान्यत हाई कोर्ट का फैसला बदलता नहीं है ।
दीवाली की खुशियां में भांग न पड़े , इसलिए सुप्रीम कोर्ट ने अच्छी सोच दिखाते हुए अगली तारीख यू पी शिक्षा मित्र मामले में दीवाली बाद रखी
SC upheld relaxation in pass marks in Rajasthan TTE exams for different reserved categories. The Supreme Court in Vikas Sankhala & Ors. Vs. Vikas Kumar Agarwal & Ors, has refused to interfere with relaxation in pass marks in Teacher Eligibility Test (TET) examination in Rajasthan for different reserved categories and held that it is legal and valid in law. The bench headed by Justice AK Sikri observed that very high percentage of relaxation might amount to compromising with quality, which may not be conducive to maintaining standards of education, and asked the state government to consider this aspect and bring the relaxations within reasonable limits for future selections. Disposing of appeals preferred by reserved category candidates, the court held as follows:
Those reserved category candidates who secured pass marks on the application of relaxed standards as contained in the extant policy of the government in its communication dated March 23, 2011, to be treated as having qualified TET examination and, thus, eligible to participate in the selection undertaken by the state government. Migration from reserved category to general category shall be admissible to those reserved category candidates who secured more marks obtained by the last unreserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail of 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. The court noted the high court observation that except for the state of Andhra Pradesh, no other state has granted such wide range of concessions as the state of Rajasthan did and observed that this 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,” the bench said. Upholding the relaxation given to reserved categories, the court observed that 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. “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,” the court added.
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 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 recommendation[2] to the
Parliament to make suitable amendment in the Constitution. Realising its
constitutional commitment, the Parliament obliged, and Article 21-A was
added vide the Constitution (Eighty Sixth Amendment) Act, 2002 in the
following manner:
Article 21-A. Right to education. – The State shall provide free and
compulsory education to all children of the age of six to fourteen years in
such manner as the State may, by law, determine.”
Simultaneously, Article 45 of the Constitution was also
substituted with the following 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.”
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;
(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.”
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.
For the purpose of present appeals, it is not necessary to refer to each of
these provisions. As we are concerned with the educational and other
qualifications that are needed for appointment of the teaching staff, the
provision directly touching upon this aspect is Section 23 of the RTE Act,
which reads as under:
“23. Qualifications for appointment and terms and conditions of service of
teachers: (1) Any person possessing such minimum qualifications, as laid
down by an academic authority, authorised by the Central Government, by
notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or
training in teacher education, or teachers possessing minimum
qualifications as laid down under sub-section (1) are not available in
sufficient numbers, the Central Government may, if it deems necessary, by
notification, relax the minimum qualifications required for appointment as
a teacher, for such period, not exceeding five years, as may be specified
in that notification:
Provided that a teacher who, at the commencement of this Act, does not
possess minimum qualifications as laid down under sub-section (1), shall
acquire such minimum qualifications within a period of five years.
(3) The salary and allowances payable to, and the terms and conditions of
service of, teachers shall be such as may be prescribed.”
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.
NCTE fulfilled this obligation in the form of Notification dated August 23,
2010, published on August 25, 2010 in the Gazette of India, whereunder
minimum qualifications for appointment as teachers were laid down. Apart
from other educational qualifications prescribed therein, the said
Notification also mandates passing of Teacher Eligibility Test (for short,
'TET') and reads as follows:
“Pass in the Teacher Eligibility Test (TET), TO BE CONDUCTED BY THE
APPROPRIATE Government in accordance with the Guidelines framed by the NCTE
for the purpose.”
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 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.
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.”
Subsequently, vide Notification dated July 29, 2011, the aforesaid letter
dated February 11, 2011 was amended. It, inter alia, prescribed that
relaxation up to 5% in the qualifying marks to the candidates belonging to
reserved categories could be accorded.
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.
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.”
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.
At this stage, many candidates belonging to the General category filed writ
petitions in the High Court of Rajasthan challenging their selection on the
ground that minimum percentage for passing TET was 60% and, therefore, all
those candidates belonging to the reserved categories who secured less than
60% in TET could not be declared as having passed TET and were, therefore,
ineligible to participate in the selection process. Ultimately, the
learned Single Judge of the High Court decided all these writ petitions
vide common judgment dated October 06, 2012 thereby partly allowing the
said writ petitions and holding that the order dated March 23, 2011 of the
State Government could not be allowed to stand as the relaxation/concession
in qualifying marks was not legal or valid. It was also held that as per
para 9 of the guidelines contained in letter dated February 11, 2011 issued
by the NCTE, concession could be given to persons belonging to SC/ST, OBC,
differently abled persons, etc. only 'in accordance with their extant
reservation policy' and insofar as the State of Rajasthan is concerned, it
could not show any “extant” reservation policy warranting this concession.
The State Government challenged the said decision by filing appeals before
the Division Bench. Likewise, persons belonging to reserved categories who
had been selected and their selection set aside by the learned Single
Judge, also preferred appeals. In all, 29 appeals were filed which have
been decided by a common judgment dated July 02, 2013 by the Division Bench
of the High Court. Though the Division Bench did not agree with some of
the reasons given by the learned Single Judge, it dismissed all the appeals
by given its own reasons. It is in this backdrop that the State Government
as well as the selected candidates belonging to the reserved category have
felt aggrieved by the impugned decision making the same subject matter of
the present appeals.
Some developments which have taken place after the filing of various
special leave petitions may also be noted at this stage.
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 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.
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
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?
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.
Insofar as candidates belonging to the reserved categories are concerned,
they are divided into two groups. Many of these candidates got 55% and
above in TET. They argued that as far as concession given by the State
Government as per its decision dated March 23, 2011 is concerned, the same
is not warranted and relaxation up to 5% only could be given in view of the
amendment Notification dated July 29, 2011. On this premise, they want to
oust all those candidates who have secured less than 55% marks in TET with
the plea that reserved category candidates belonging to their group (those
who secured 55% or more marks in TET) be treated as eligible and posts
meant for reserved categories be filled up accordingly. It may be
mentioned that many candidates in their group are below in merit list drawn
after the selection than those reserved category candidates who secured
less than 55% marks in TET and, therefore, are not selected. If the other
group is excluded from the selection as ineligible, candidates from this
group may succeed in getting the berth. So their endeavour is to oust such
other group with marks lesser than 55% in TET so that they are able to get
in. On the other hand, those candidates from reserved categories who have
secured less than 55% marks in TET but are found eligible in terms of
relaxation give vide the State 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.
We may also pointed out at this stage itself that the State Government has
stood by its decision dated March 23, 2011.
There is yet another issue which was raised in the High Court by the writ
petitioners (candidates belonging to general category) and has been decided
by the High Court in their favour. As there is challenge to the findings
on that issue as well in these appeals, we would like to spell out the said
issue with necessary details.
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.
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
After taking note of the respective contentions of different parties
appearing before it, the High Court pointed out that there were two
peripheral issues which needed a decision before adverting to the central
issue about the legality of the concession granted by the State Government.
The selected candidates had challenged the maintainability of writ
petitions on twin grounds, namely, non-impleadment of necessary parties and
estoppel. After discussing these preliminary issues, the Court brushed
aside these contentions of the non-writ petitioners. It is not necessary
to dwell into the same as these contentions were not repeated before us.
While taking up the primary issue involved, the High Court
referred to the Statement of Objects and Reasons contained in the RTE Act
and pointed out that the avowed objective for enacting the said Act is to
guarantee full time elementary education of satisfactory and equitable
quality to every child. It remarked that the statute is edificed on the
belief that the values of equality, social justice and democracy and the
creation of a just and humane society can be achieved only through a
provision of inclusive elementary education to all. Free and compulsory
education of satisfactory quality thus, is the salubrious mission of this
enactment. Thereafter, the High Court referred to Section 23 of the RTE
Act and further pointed out that the NCTE is the academic authority, as
envisaged in Section 23(1) of the RTE Act, statutorily empowered to
stipulate the minimum qualifications for appointment of a teacher.
Further, power to relax such minimum qualifications has been reserved with
the Central Government in terms of Section 23(2) of the RTE Act. It, then,
referred to the notification dated August 23, 2010 issued by the NCTE under
Section 23(1) of the RTE Act laying down minimum qualifications for a
person to be eligible for appointment as a teacher in Class I to Class VIII
in a School (which have already been taken note of) followed by another
letter dated February 11, 2011 of the NCTE to the Secretaries and
Commissioners of the State Governments/ UTs and thereby circulating its
guidelines conducting the TET by appropriate Government as required by its
notification dated August 23, 2010. The High Court pointed out that
reading of this letter dated February 11, 2011 would reveal the abiding
predication to ensure against dilution of quality in such recruitment, and
instead, to secure induction of teachers possessed of essential aptitude
and ability to meet the challenges of teaching at the primary and upper
primary levels. While reiterating the mandate of a pass in the TET to be a
norm of eligibility, rationale therefore was enumerated as under:
(i) it would bring national standards and benchmark of teacher quality in
the recruitment process;
(ii) it would induce teacher education institutions and students from
these institutions to further improve their performance standards;
(iii) it would send a positive signal to all stakeholders that the
Government lays special emphasis on teacher quality.
Conspicuously, thus, the essence of the TET was to infuse a
qualitative content in the recruitment process and thus, set a national
benchmark 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.
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, 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.
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
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.
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
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
We would like to answer this question first as it will have some
implications and bearing on Issue No. 1 formulated by us above.
The poser here is as to whether NCTE has made any provision providing
relaxation in the passing marks for reserved category candidates? In 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
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:
“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.
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 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.”
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.
We find merit in the contention of the appellants and do not agree with the
respondents that the provision for relaxation upto 5% in qualifying marks
at all relates to TET. In the first instance, it is to be noted that
insofar as qualifying marks for TET are concerned, they are prescribed in
para 9 of the guidelines dated February 11, 2011. There is no amendment to
the said para. Amendment is incorporated in para 3 of the principal
notification dated February 11, 2011 which we have already reproduced
above. Original para 3 gives the rationale for including TET as a minimum
qualification. Though, it is not understood as to why that para is
substituted by the aforesaid amended para vide notification dated July 29,
2011. Be that as it may, a reading of amended para 3 clearly brings out
that it incorporates two aspects. First aspect touches upon the training
to be undergone by a person and this training can be undergone by those
persons who have certain specified marks in graduation and D.Ed. (Special
Education) or B.Ed. (Special Education). Training is for 6 months duration
i.e. 6 months special programme in elementary education. Insofar as
persons having graduation and B.Ed. qualification are concerned, minimum
marks in the graduation or B.Ed. are also prescribed. It is stipulated
that graduation should be with at least 50% marks and B.Ed. qualification
with at least 45% marks. However, those who have done D.Ed. (Special
Education) or B.Ed. (Special Education), no minimum marks in obtaining
those qualifications are prescribed. What follows is that person who is
graduate with B.Ed. qualification, he/she should have minimum 50% marks in
graduation and 45% marks in B.Ed. qualification. It is in this context
second aspect of the amended provision in sub-para (ii) of para 3 mentions
about 'Reservation Policy' and allows relaxation upto 5% in qualifying
marks. This relaxation is, therefore, clearly relatable to marks in
graduation and B.Ed. qualification, meaning thereby insofar as reserved
category candidates such as SC/ST/OBC/PH are concerned, they will be
treated as qualified to undergo the training in case they pass graduation
with minimum 45% marks and B.Ed. qualification with minimum 40% marks. We
are clear in mind that this relaxation of 5% does not relate to TET at all.
Had it been so, this notification dated July 29, 2011 would have amended
para 9 and, particularly, sub-para (a) of para 9 which deals with
concessions to reserved category candidates that has not happened and is
left intact.
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 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
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 recapitulate
the salient facts and features in brief followed by submissions of learned
counsel for the parties in this behalf.
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 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.
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'.
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 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 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.
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.
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
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.
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 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.
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.
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.
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”.
First thing that has to be borne in mind is that after prescribing 60% pass
marks in the TET examination, provision for relaxation is made in same para
9 giving liberty to the school management (Government, local bodies,
Government aided and unaided) to consider giving concessions to different
kinds of reserved categories mentioned therein 'which has to be in
accordance with their extant reservation policy'. This brings out one
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.
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 backward classes.
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 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.
It is a matter of record, which is taken note of the High Court also, such
relaxation has been granted by various State Governments and respondents
State is not only State. However, one observation made by the High Court
needs serious consideration. It is pointed out that except for the State of
Andhra Pradesh, no other State has granted such wide range of concessions
as the State of Rajasthan did in its letter dated March 23, 2011. This is
an aspect which needs to be looked into and needs to be reconsidered by the
States inasmuch as very high percentage of relaxation may amount to
compromising with quality which may not be conducive to maintaining
standards of education. However, we are not tinkering with the extant of
relaxation given in letter dated March 23, 2011 because of the reason that
on that basis, two recruitment tests have been conducted and candidates who
have been selected are now teaching for last number of years. However, for
future selections in this behalf, we impress upon the State Government to
consider this aspect and bring the relaxations within reasonable limits.
The exhortation of the High Court in the impugned judgment that the noble
purpose contained in RTE Act can be achieved by providing free and
compulsory education of satisfactory quality, cannot be doubted. Indeed it
is a salubrious mission of the RTE Act which not only guarantees full time
elementary education to every child upto 14 years of age, but also the
quality of education which is satisfactory and equitable. The High Court
is also right in remarking that in order to impart quality education, we
need those teachers who are processed of essential aptitude and ability to
meet the challenged of teaching at the primary and upper primary levels.
No doubt, these are important considerations to achieve the laudable
objects. For this purpose, if passing of TET examination is treated as
minimum essential qualification for a person to be eligible for appointment
as primary teacher, that cannot be countenanced. However, when it
comes to giving concession to certain reserved category candidates insofar
as passing marks in TET is concerned, such a provision by itself will not
affect the teaching quality. All said and done, Section 23(2) of the RTE
Act itself recognises the power for relaxing the minimum qualifications
required of a person to be eligible for appointment as primary teacher.
When it comes to the question of giving relaxation in passing marks in TET,
different outlook and glance stands attracted. Here comes the question of
taking affirmative action for the upliftment of the Scheduled Castes,
Scheduled Tribes and Other Backward Communities/Classes.
Going by the scheme of the Constitution, it is more than obvious that the
framers had kept in mind social and economic conditions of the marginalised
section of the society, and in particular, those who were backward and
discriminated against for centuries. Chapters on 'Fundamental Rights' as
well as 'Directive Principles of State Policies' eloquently bear out the
challenges of overcoming poverty, discrimination and inequality, promoting
equal access to group quality education, health and housing, untouchability
and exploitation of weaker section. In making such provisions with a
purpose of eradicating the aforesaid ills with which marginalized section
of Indian society was suffering (in fact, even now continue to suffer in
great measure), we, the people gave us the Constitution which is
transformative in nature. Vision depicted therein was to aim at achieving
agaratarian society. Professor Upendra Baxi brings out this
transformative feature of the Indian Constitution, so brilliantly, in the
following words:
“To be sure, the Indian Constitution frontally addresses millennial wrongs
such as untouchability; indeed, the constitution is transformative on this
normative register. It is historically the first modern constitution not
merely to declare constitutionally unlawful the practice of discrimination
on the ‘grounds 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]
Professor Baxi identifies three 'C's of constitutionalism[4]. C1 is the
text of Constitution, C2 is the constitutional law which is the official
interpretation (namely, the way it is interpreted by the courts) and C3, in
the conventional sense invites attention to the normative theory or
ideological core or even the 'spirit of constitutions'. The task of
transformating the constitutionalism is primarily that of the Courts,
particularly the Apex Court, while enforcing the provisions of the
Constitution. It is for this reason that this Court has always interpret
the text of the Constitution in such a way that 'spirit' of the
constitution is realised.
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 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...”
Likewise, a Constitution Bench of this Court in M. Nagaraj & Ors. v. 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”.”
We would also like to reproduce an emotive, but at the same time
constitutionally justified, discourse in Dr. Jagadish Saran & Ors. v. Union
of India[7]. 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 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 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.”
It hardly needs to be emphasised that the State has a legitimate and
substantial interest in ameliorating or eliminating where feasible, the
disabling effects of identified discrimination. It is a duty cast upon the
State, by the Constitution, to remedy the effects of “societal
discrimination”. Provision for relaxation in TET pass marks has to be
looked into from this angle which is in tune with the constitutional
philosophy. After all it only ensures that such candidates belonging to
reserved category become eligible for appointment as primary teachers. On
the other hand, when it comes to selection process such reserved category
candidates have to compete with general category candidates wherein due
regard for merit is given. Therefore, only those candidates belonging to
reserved category who are found meritorious in selection are ultimately
appointed. We are of the opinion that in this manner the two
constitutional goals, that of rendering quality education on the one hand
and providing “equality of opportunity” to the unprivileged class on the
other hand, are adequately met and rightly balanced.
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
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 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.
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 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]
The learned counsel appearing for reserved category 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 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 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.
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.
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 mentioned in
guidelines/notification dated February 11, 2011. These guidelines pertain
to conducting of TET. Basic features whereof have already been pointed out
above. Even para 9 which provides for concessions that can be given to
certain reserved categories deals with 'qualifying marks' that is to be
obtained in TET examination. Thus, a person who passes TET examination
becomes eligible to participate in the selection process as and when such
selection process for filling up of the posts of primary teachers is to be
undertaken by the State. On the other hand, when it comes to recruitment
of teachers, the method for appointment of teachers is altogether
different. Here, merit list of successful candidates is to be prepared on
the basis of marks obtained under different heads. One of the heads is
marks in TET. So far as this head is concerned, 20% of the marks obtained
in TET are to be assigned to each candidate. Therefore, those reserved
category candidates who secured lesser marks in TET would naturally get
less marks under this head. We like to demonstrate it with an example.
Suppose a reserved category candidate obtains 53 marks in TET, he is
treated as having qualified TET. However, when he is considered for
selection to the post of primary teacher, in respect of allocation of marks
he will get 20% marks for TET. As against him, a general candidate who
secures 70 marks in TET shall be awarded 14 marks in recruitment process.
Thus, on the basis of TET marks reserved category candidate has not got any
advantage while considering his candidature for the post. On the contrary,
“level playing field” is maintained whereby a person securing higher marks
in TET, whether belonging to general category or reserved category, is
allocated higher marks in respect of 20% of TET marks. Thus, in recruitment
process no weightage or concession is given and allocation of 20% of TET
marks is applied across the board. Therefore, the High Court is not
correct in observing that concession was given in the recruitment process
on the basis of relaxation in TET.
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.
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 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%
marks of TET score. Question No. 3 is answered accordingly.
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.
-----------------------
[1]
(1993) 1 SCC 645
[2] Report No. 165 of the Law Commission of India
[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 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’.
[5] (1981) 4 SCC 296
[6] (2006) 8 SCC 212
[7] (1980) 2 SCC 768
[8] (2008) 3 SCC 512
[9] (2011) 1 SCC 150
[10] (2010) 3 SCC 119
RTET / टीईटी / TET - Teacher Eligibility Test Updates / Teacher Recruitment /SARKARI NAUKRI NEWS / SARKARI NAUKRI / News
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