IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.09.2014
Coram
The Honourable Mr.Justice SATISH K. AGNIHOTRI
and
The Honourable Mr.Justice M.M.SUNDRESH
W.A.Nos.707, 776, 857, 944, 972, 1031, 1037 and 1038 of 2014, W.P.Nos.18587, 20040, 21488, 21566, 22170 to 22177, 22498, 22499, 22503, 22504, 22800, 22837, 22897, 23019, 23094, 23225, 23227, 23264 23624, 23749, 23786, 23792, 23875, 23882, 23930 to 23933, 24435 to 24454, 24679 to 24682, 24921, , 24979 and 25022 of 2014 and Miscellaneous petitions.
W.A.No.707 of 2014
P.Sushila ....Appellant
Vs.
1.The State of Tamil Nadu,
represented by its Principal Secretary
to Government, School Education Department,
Fort St. George, Chennai-9.
2.The Teachers' Recruitment Board,
represented by its Chairman,
DPI Compound, College Road,
Chennai-600 006. .... Respondents
.
. Submissions of Petitioners:-
Leaned counsels appearing for the petitioners submitted that the State Government does not have the power or authority to reduce the qualifying pass mark fixed for the qualifying examination. The order passed by the Government in G.O.Ms.No.25, School Education (TRB) Department, dated 6.2.2014 is unconstitutional as it has been passed after the the Notification and after the examinations are over. Therefore, the rules of the game cannot be changed by the Government. The rights accrued to the petitioners cannot be taken away by a subsequent action of the Government. The retrospective application of the Government Order cannot be sustained in the eye of law. The impugned Government Order passed in G.O.Ms.No.25, School Education (TRB) Department, dated 6.2.2014 is liable to be set aside on the ground of non-application of mind and not disclosing any reasons. There was no evaluation done between the different schemes of education while taking into consideration of marks obtained in plus 2, Degree and B.Ed examinations. Though the petitioners have not challenged the said clause, which was originally found in G.O.Ms.No.252, School Education (Q) Department, dated 5.10.2012, it is well open to them to challenge it when it is once again incorporated in G.O.(Ms.) No.71, School Education (TRB) Department dated 30.5.2014. The seniority of those candidates who already registered themselves in the Employment Exchange has not been taken note of as done by the Government of Tamil Nadu in some other cases. The learned single Judge has committed an error in holding that the TET test was a qualifying test, whereas it is a competitive one. The candidates, who wrote the examination in the earlier pattern while completing the degree have been put in the same pedestal as that of the candidates, who wrote under the Semester system. The Government Order in G.O.(Ms.) No.71 dated 30.5.2014 has been passed without any non-application of mind by simply adopting the suggestion given by the learned single Judge. The basic qualification pertaining to an examination cannot be diluted. By the impugned Government Order passed in G.O.Ms.No.25, School Education (TRB) Department, dated 6.2.2014, failed candidates have been declared as "passed" and there is no rationale behind the decision made by the State Government in reducing the marks from 60% to 55%. The change in the gradation system adversely affects the interest of the petitioners. In support of the said contentions, the learned counsels have made reliance upon the following judgments:
''(1) Minor S.Aswin Kumar v. State of Tamil Nadu, (2007 (2) CTC 677);
(2) N.Priyadarshini and others Vs. The Secretary to Government, Education Department, Fort St.George, Chennai - 9 and another, (2005(3) CTC 449);
(3) Minor Nishanth Ramesh, represented by Mother/Natural Guardian and others Vs. State of Tamil Nadu, represented by its Secretary to Government, Education Department and others, ((2006) 2 M.L.J. 382);
(4) Rajesh Kumar Raigar Vs. Vikas Kumar Agarwal and Others, (Division Bench Judgment of Rajasthan High Court at Jaipur Bench dated 2.7.2013).
(5) Sanjay Singh and another Vs., U.P.Public Service Commission, Allahabad and another, (2007) 3 SCC 720); (6) Christian Medical College, Vellore and others VS. Union of India and others, ((2014) 2 SCC 305) and
(7) Andhra Pradesh Public Service Commission Vs. Baloji Badhavath and others, ((2009) 5 SCC 1).
5. Submissions of respondents:-
Learned Advocate General appearing for the respondents submitted that the impugned orders passed by the Government have statutory backing. The power is available to the Government under Section 38(1) of the Act, 2009 read with Rule 18. Rules have been framed by the Government of Tamil Nadu in pursuant to the powers conferred under Section 38(1) of the Act. The decision has been made on a consideration of relevant materials. Such a policy decision cannot be questioned as there is no arbitrariness involved. The petitioners are not aggrieved as there is no right vested in them. Even in the case of selection, the power is available to the Government to modify the procedure including the fixation of qualification. It is not as if the petitioners have been non-suited by the action of the Government. On the contrary, more candidates were given the opportunity to participate. The marks of the petitioners have not been reduced. The petitioners have not challenged G.O.Ms.No.252, School Education Department dated 5.10.2012 with reference to the weightage given to the minimum qualification marks and hence it cannot be challenged subsequently in an indirect way. The order passed by the leaned single judge with respect to the same has also not been challenged and therefore it cannot be done by way of a collateral proceeding. The subsequent notifications published for the direct recruitment of Secondary Grade Teachers and B.T Assistants have not bee challenged. The Government has merely acted as per Clause 9 of the guidelines issued by the NCTE. The proceedings of NCTE also provides for reduction of qualifying marks from 60% to 55%. There is no arbitrariness in the system, adopted for giving weightage to the marks obtained in the T.E.T examination. The petitioners are not able to show any arbitrariness in the same. Almost all the petitioners have written their plus 2 examination under the State Board. The normalisation has been done with the CBSE by giving a benefit to those students. Similar is the case with B.Ed examinations. Therefore, unless and until the petitioners demonstrate that they are prejudiced by the failure of the respondents in adopting the normalisation, they are not entitled for the relief sought for. The petitioners are estopped from challenging the weightage of marks obtained in the minimum qualification. For the reasons known to them they have not challenged it at the earliest point of time. As against the other States, 60% has been earmarked for the TET. There is a level playing field governing the candidates. It is not as if the Government has taken into consideration of one yardstick alone. On the contrary, it has taken into consideration of the marks obtained in S.S.L.C examination, B.Ed examination, Degree Examination and TET examination. Such a rational yardstick adopted cannot be questioned in the eye of law. The petitioners are not able to show the prejudice in awarding of weightage of marks. Having agreed for the same system earlier with respect to the awarding of marks for the examinations with respect to the minimum qualification they cannot approbate and reprobate. The petitioners cannot maintain the writ petitions with respect to the challenge made to G.O.Ms.No.252 Department dated 5.10.2012 which has come much prior to the examinations conducted. There are separate examinations for Mathematics and Science on the one hand and Social subjects on the other hand. Therefore, the very foundation upon which the argument has been made between Arts Subjects and Science subjects cannot stand to scrutiny. The learned single Judge has correctly held that the Teacher Eligibility Test conducted is only a qualifying examination as it deals with the requisite pass mark. In academic matters, the Courts should be slow in interfering. The decisions relied upon by the learned counsel for the petitioners are not applicable to the case on hand. As there is no unreasonableness or arbitrariness a writ large in the decision made, the same does not warrant any interference. In support of his contention, the learned Advocate General has made reliance upon the following decisions:
(1) Jai Singh Dalal and others Vs. State of Haryana and another, (1993 Supp (2) SCC 600);
(2) Madan Lal and others Vs. State of Jammu & Kashmir and others, ((1995) 3 SCC 486);
(3) Prof. A Marx Vs. Government of Tamil Nadu and another, (Unreported Judgment of the Supreme Court in S.L.P.(C) Nos.28043 and 28042 of 2013 dated 13.12.2013;
(4) Bihar Public Service Commission and others Vs. Kamini and others, ((2007) 5 SCC 519);
(5) Edukanti Kistamma (dead) through L.Rs and others Vs. S.Venkatareddy (dead) through L.Rs., ((2010) 1 SCC 756);
(6) V.Tamilarasan Vs. The Principal Secretary to Government, School Education Department, (Interim Order dated 3.9.2014 made in W.P.No.14428 of 2014 etc.,)
(7) Aman Piyush Khanna, thro' Father and Guardian Piyush Krishna and 4 Ors., Vs. State of Gujarat thro' Secretary and another, (Division Bench judgment of Gujarat High Court reported in (2009) 3 GLR 2382); and
(8) Yajuvendra Singh Chanddel and another Vs. State of U.P and others, (Judgment of the Allahabad High Court in Civil Misc. Writ Petition Nos.1156 of 2013 etc., dated 16.01.2013).
6. Discussion:-
6.1. Jurisdiction of the State Government:-
6.1.1. The learned counsel appearing for the petitioners submitted that the State Government does not have the power or authority to reduce the qualifying marks for the Teacher Eligibility Test from 60% to 55%. Reliance has been made on Sections 23(1) and 23(2) of the Act read with Rules 17 and 18. We do not agree with the submissions made on this ground. The decision has been made in pursuant to the guidelines issued as per the letter dated 11.2.2011 by the NCTE. It is not the case of the petitioners that the NCTE does not have the power to issue the guidelines. The said guidelines have not been put to challenge before us. The NCTE is also not a party before us. In this connection, on the power of the State Government when a writ petition was filed seeking a direction to relax the qualifying marks, the Supreme Court in Prof. A Marx Vs. Government of Tamil Nadu and another, (Unreported Judgment of the Supreme Court in S.L.P.(C) Nos.28043 and 28042 of 2013 dated 13.12.2013 was pleased to hold as follows:
''4. Learned counsel appearing for the petitioner submitted that fixing 60% as uniform qualifying marks is illegal and is violative of Article 16(4) of the Constitution of India. Learned counsel submitted that the State ought to fulfill the constitutional obligation in allocating minimum qualifying marks based on communal reservation.
5. We find it difficult to accede to the request of the counsel. The question as to whether the cut-off marks stipulated for the reserved category candidates have to be reduced or not, is entirely a matter for the State Government to decide. The Court exercising writ jurisdiction cannot grant such relaxation/concessional marks, as the same is the decision to be taken by the State Government. Taking into consideration a variety of factors, State/Authorities concerned in their wisdom would fix the cut off marks and court cannot substitute its views to that of the experts. We, in such circumstances, are not inclined to interfere with these special leave petitions and the same are dismissed.''
Therefore, in view of the above, we are not able to subscribe to the submissions made on behalf of the petitioners.
6.1.2. A further submission has been made on behalf of the petitioners that the impugned Government Order in G.O.Ms.No.25 School Education (TRB) Department dated 6.2.2014 is contrary to guideline No.9. It did not give any reasons and there is non-application of mind., There is no material available before us to hold that the Government did not apply its mind. The object and rationale behind the selection of teachers is to have more qualified ones to teach the students. This can only be augmented by a wider participation. Therefore, with that public interest in mind, the decision has been made by the Government of Tamil Nadu. Hence, this submission also deserves to be rejected.
6.1.3. It is not in dispute that the relaxation has been extended by the State Government only to those reserved categories, which have been identified and given the benefit of reservation already. As Clause 9 of the guidelines gives power of relaxation, it cannot be said that the action of the State Government would amount to declaring those who already failed. Accordingly, we hold that the Government of Tamil Nadu has acted only in exercise of the power conferred under clause 9 of the guidelines issued by the NCTE.
6.2. Qualifying examination or Competitive examination:-
It is vehemently contended on behalf of the petitioners that the learned single Judge was not correct in holding that the Teacher Eligibility Test is a qualifying one as against a competitive one. Considering the said submission, we are of the view that the test conducted by the respondents is both qualifying and competitive in nature. It becomes a qualifying examination while fixing the qualifying marks. In other words, until and unless a candidate acquires the qualifying mark he or she shall not be considered further. It also becomes a competitive examination when the said qualifying marks are considered for the purpose of over all performance towards the selection. We hold that the learned single Judge is right in his view since the relaxation of marks would have a bearing to the present cases as a qualifying mark. In other words, by the relaxation, the qualifying marks for a pass in the test has been reduced enabling the other candidates to participate. On the contrary, it did not take away the rights of the petitioners from being considered on merit. Therefore, the consideration of the mark for competition for selection to the posts with respect to the petitioners has not been diluted, varied or modified. Hence, the said contention also fails.
6.3. Changing the rules of the game:-
In view of the above said finding, the submission made that the respondents cannot be allowed to change the rules of the game after it has started has no legal basis. It is not as if the right vested in the petitioners has been taken away by the respondents. By merely allowing more persons to compete the petitioners cannot contend that their accrued right has been taken away. It is also not as if the respondents have disqualified the petitioners on the basis of their qualification by preventing them to participate in the selection process on merit. Hence, we are of the view that the learned single Judge was absolutely right in holding that the decisions relied upon by the petitioners are not applicable to the present cases. We also note that the selection process has not been completed. The petitioners have not been declared as selected. Furthermore, as rightly submitted by the learned Advocate General, awarding of marks is one thing and recruiting candidates for Secondary Grade Teachers and B.T.Assistants is another. The marks obtained are to remain for a period of seven years. Therefore, they can be appointed for the various vacancies. Suffice it is to state that the petitioners are yet to acquire a legal right.
6.4. Maintainability to the challenge on weightage:-
The Government Order passed in G.O.(Ms.) No.71 School Education (TRP) Department dated 30.5.2014 has been challenged both on the ground of weightage having been awarded for the marks obtained in three qualifications and also the method of gradation. Insofar as the first challenge is concerned, we are of the considered view that it is not open to the petitioners to challenge the weightage of marks. The examination was conducted on 17.8.2013 and 18.8.2013 respectively. The Government Order fixing the weightage for the marks in the basic qualification has been passed in G.O.Ms.No.252 School Education (Q) Department, dated 5.10.2012, which is much prior. Therefore, the petitioners cannot challenge the said procedure adopted by the respondents after writing the examination and after coming to know that they would not be in a position for consideration on merit for the posts sought to be filled up. In this connection, useful reference can be made to the judgment of the Supreme Court in Madan Lal and others Vs. State of Jammu & Kashmir and others, ((1995) 3 SCC 486), wherein the earlier decision rendered has been quoted with approval. The following passage of the said judgment is apposite:
''9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of OmPrakash Shukla v. Akhilesh Kumar Shukla, (1986 SUPP SCC 285 = AIR 1986 SC 1043), it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioners appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
Accordingly, we are of the view that the petitioners are non-suited to challenge the procedure adopted in granting weightage to the marks obtained in the basic qualification required.
6.5. Challenge to the awarding of marks:-
6.6.1. The petitioners have challenged both weightage system and the methodology adopted for computing the marks awarded in the Teacher Eligibility Test. Coming to the weightage of 40%, we are of the view that the said issue has not been raised on the earlier round of litigation. In fact, the learned single Judge has made a specific observation about the same. It is not as if the respondents have not taken into consideration of the relevant materials. Insofar as the Secondary School Education, the learned Advocate General submitted that almost all the petitioners have completed their plus 2 examination before the State Board. The moderation has been adopted by the Government of Tamil Nadu for the professional course only with respect to CBSE Courses by increasing the marks of the said examination. This would only show prima facie that the candidates, who appeared for the Study Examination in plus 2, are scoring higher marks. Therefore, it is for the petitioners to demonstrate that they are prejudiced by the uniform treatment given by the respondents. In the absence of any empirical data and material we are unable to accept the submissions made by the petitioners. The 40% of marks has been divided between the marks obtained in plus 2 examination, Degree examination and B.Ed examination. Therefore, the respondents have taken into consideration of three different examinations. Such a yardstick adopted can only be fair and equitable. Almost all the candidates have written the same examination pattern in B.Ed. Insofar as the degree Examination, as rightly submitted by the learned Advocate General, posts are sought to be filled with reference to the subjects. Therefore, the degree marks obtained in Mathematics is not taken on par with the degree marks obtained in Arts. In other words, the competition is between a degree-holder of Science and Mathematics alone as against a degree-holder of Arts. Similarly, the submission made that no evolution has been made between those candidates, who wrote old S.S.L.C examination as against the plus 2 examiantion, does not merit acceptance in the absence of sufficient materials in support of the same. Here again, the petitioners have not demonstrated before us about their prejudice. It is not as if the selection has been made mainly upon the marks obtained in the Basic Qualification examinations. On the contrary, the selection is contemplated by giving weightage of 60% to the marks obtained in the Teacher Eligibility Test and only 40% to the marks obtained in the Basic Qualification Examination.
6.5.2. The methodology adopted by the respondents, in our considered view, in quantifying the percentage of marks with respect to Teacher Eligibility Test cannot be termed as arbitrary. It is for the petitioners to demonstrate that the methodology adopted is not correct. The learned single Judge correctly found that the earlier methodology adopted was not correct, since the difference between 1 to 9 is sought to be got over by treating it on equal footing. The respondents have correctly removed such anomaly. We also find that the methodology adopted by the respondents is more rational compared to those adopted in some other States such as Andhra Pradesh and West Bengal, where less percentage of marks have been given to the marks obtained in the Teacher Eligibility Test.
6.5.3. Challenge has been made to the Government Order passed in G.O.(Ms.) No.71 School Education (TRP) Department dated 30.5.2014 on the ground that the Government has merely accepted the suggestion of the learned single Judge. We do not find any non-application of mind involved. As discussed earlier, the petitioners are not able to demonstrate the arbitrariness or unreasonableness in the methodology adopted by the respondents. Nor we find anything wrong in the suggestion made by the learned single Judge. The learned single Judge has merely stated that it is for the respondents to adopt either the suggestions made or to any other method. The respondents have found fit to adopt the suggestion made by the learned single Judge, as being reasonable and fair. In such view of the matter, we do not find any illegality in passing the Government Order.
6.6. Other submissions:-
6.6.1. The submissions made on the ground that the Government of Tamil Nadu ought to have granted priority to the B.T Assistants as done in the other cases cannot be accepted. The petitioners cannot demand as a matter of right that they should be given preference based upon their registration in the Employment Exchange. Therefore, in the absence of any such legal right, the said contention cannot be accepted.
6.6.2. We have also perused the decisions relied upon by the learned counsel for the petitioners. In our considered view, the said decisions are not applicable to the cases on hand. As discussed above, it is not as if the respondents have made the assessment merely based upon the marks obtained in the Basic Qualification Examinations or the Teacher Eligibility Test. On the contrary, they have taken into consideration of the marks obtained in various examinations. Much reliance has been made by the petitioners on the Division Bench judgment of the High Court of Rajasthan in Rajesh Kumar Raigar Vs. Vikas Kumar Agarwal and Others, (Jaipur Bench, dated 2.7.2013). A perusal of the said judgment would show that the facts involved therein are different to the cases on hand. In the said case, the respondents therein sought to prepare a merit list by adding 20% of marks secured by the candidates belonging to the reserved categories in the Teacher Eligibility Test. In the present cases, only 5% relaxation has been given so as to enable more candidates to participate. Further, a challenge made was also at the instance of the Non-OBC candidates as they were aggrieved. In the cases on hand, the dispute is between the reserved category candidates alone. The relaxation given in the present cases does not have a bearing on the ultimate assessment of the merit. What has been done by the respondents before us is by way of a relaxation in the pass marks in the Teacher Eligibility Test so as to render a candidate to become qualified to participate in the recruitment test. Therefore, in our considered view, the said decision does not have any application to the cases on hand.
6.6.3. The decision relied by the petitioners i.e., interim order passed by the learned single Judge having been passed by way of interim order on a prima facie consideration cannot be considered as a binding precedent.
6.6.4. The deicsion of the Supreme Court in Andhra Pradesh Public Service Commission Vs. Baloji Badhavath and others, ((2009) 5 SCC 1) relied on by the learned counsel for the petitioners is not applicable to the present cases. In the said case, there is no provision as contained in clause 9 of the guidelines dated 11.2.2011. As discussed by us already, the guidelines of the NCTE are not under challenge. The procedure adopted for selection of the candidates in the said decision is totally different from the one before us. Therefore, the said decision has no application to the present case.
6.6.5. What has been challenged before us is the policy decision made by the Government of Tamil Nadu. Until and unless the said decision bristles with arbitrariness and unreasonableness, the power of the judicial review over the same is very limited. On considering the submissions made and after going through the relevant records, we do not find any reason to interfere with the orders under challenge.
7. Conclusion:-
For the fore-going, we do not find any merit in these writ appeals as well as the writ petitions and accordingly the same are dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are also dismissed.
(
Satish K.Agnihotri,J.
and
M.M.Sundresh,J.
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