IN THE SUPREME COURT OF INDIA CIVIL … BY MADRAS BENCH] AND CIVIL APPEAL NOS.10717-10718 OF 2016 (ARISING OUT OF SLP (C) ... Madras and Madurai Bench of the High Court of Madras …
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(Muslim), Most Backward Classes, De-notified Communities and Persons
with Disability (PWD). In tune with the announcement, the State Government
issued orders in G.O.Ms.No.25 School Education (TRB) Department
dated 06.02.2014 in which relaxation of 5% of marks was given to the
candidates belonging to SC, ST, BC, BC(M), MBC, DNC and PWD
candidates. However, minimum qualifying marks with regard to general
candidates was retained as 60% or 90% marks in both the papers. Relevant
portion of the said G.O. (Ms.) No.25 dated 06.02.2014, reads as under:-
“In continuation of the announcement made by the Hon’ble Chief Minister,the Government orders as follows:
a) Relaxing 5% marks from the present pass marks of 60%and fix the pass mark at 55% for candidates belonging toScheduled Caste, Scheduled Tribes, Backward Classes,Backward Classes (Muslim), Most Backward Classes,De-notified Communities and Persons with Disability(PWD) as given below. The candidates are required toobtain the following minimum marks in Paper I forSecondary Grade Teachers and Paper II for GraduateAssistants:-
Category MaximumMarks
Minimum Marks (%) to beobtained in TNTETPaper I Paper II
General 150 60% or 90 marks 60% or 90 marks SC, ST, BC, BC(M), MBC, DNC and
b) Relaxing 5% marks from the 60% marks prescribed forclearing of the Tamil Nadu Teacher Eligibility Test, 2013 heldon 17.08.2013 and 18.08.2013 for Scheduled Caste,Scheduled Tribes, Backward Classes, Backward Classes(Muslims), Most Backward Classes, De-notified Communitiesand Persons with Disability (PWD) and fixed at 55% or 82marks.
C) For all future Teacher Eligibility Tests, to fix the minimummarks for candidates belonging to General Category at 90marks (60% of 150) and for candidates belonging toScheduled Caste, Scheduled Tribes, Backward Classes,Backward Classes (Muslims), Most Backward Classes,De-notified Communities, and Persons with Disability (PWD)at 82 marks (55% of 150).”
The said relaxation of 5% marks was held applicable to TET held on
17.08.2013 and 18.08.2013 and all future TETs for the reserved category
candidates.
8. Vide G.O.Ms. No. 29 School Education (Q) Department dated
14.02.2014, corresponding amendments were made in criteria for selection
of candidates who have cleared the TET for appointment to the post of
Secondary Grade Teachers and Graduate Assistants prescribed in G.O.
dated 05.10.2012. The said order laid down the weightage of marks under
TET head as ‘36’ for those candidates who obtain 55% and above but below
60% marks in TET. The order also specified that the amended selection
criteria would be applicable to TET held on 17.08.2013 and 18.08.2013.
Relevant portion of the said G.O. reads as under:
“Tamil Nadu Teacher Eligibility Test for Secondary Grade Teachers andGraduate Assistants:-
4. The Chairman, Teachers Recruitment Board is directed to take note ofthis Government order for finalizing selection list of the Tamil NaduTeacher Eligibility Test 2013 held on 17.08.2013 and 18.08.2013 and forall future Tamil Nadu Teacher Eligibility Test with respect to candidatesbelonging to Scheduled Caste, Scheduled Tribes, Backward Classes,Backward Classes (Muslims), Most Backward Classes, De-notifiedCommunities and Persons with Disability (PWD).”
9. Resultantly, a number of writ petitions were filed before the High Court
challenging the Government Orders passed in G.O.Ms.No.252 School
Education(Q) Department, dated 05.10.2012, G.O.Ms.No.25 School
Education (TRB) Department dated 06.02.2014 and G.O.Ms.No.29, School
Education (TRB) Department dated 14.02.2014 on different grounds. The
Writ Court disposed of these petitions by upholding the validity of
G.O.Ms.No.25, School Education (TRB) Department dated 06.02.2014.
However, the learned Single Judge set aside the grading system adopted by
the Government in G.O. Ms. No. 252 dated 05.10.2012 observing that it
lacks rationality as it places a candidate with the difference of 1 to 9 marks in
the same basket.
10. Pursuant to the order passed by the learned Single Judge, while
continuing with the weightage of marks fixed earlier as per the Government
Order passed in G.O.Ms.No.252 School Education (Q) Department, dated
05.10.2012 with reference to the basic qualification marks, the State
Government passed a subsequent order in G.O.(Ms.) No.71 School
Education (TRB) Department dated 30.05.2014 in tune with the suggestion
made by the learned Single Judge. Relevant portion of the said G.O.(Ms.)
No.71 dated 30.05.2014, is as under:
“7. The Government now issue revised orders for fixing the weightage and fordistributing the weightage marks fixed in the light of the High Court orders asmentioned in para 5 above for selection of candidates for appointment to thepost of Secondary Grade Teachers and Graduate Assistants in GovernmentSchools from among those candidates who have cleared the Tamil NaduTeacher Eligibility Test. The weightage of marks and the distribution ofweightage of marks be fixed as follows:-
A) Tamil Nadu Teacher Eligibility Test Weightage for SecondaryGrade Teachers(a) There shall be 100 marks in total
(b) The computation of 100 marks will be in the following manner(i) Higher Secondary Exam : 15 marks(ii) D.T.Ed.,/D.E.Ed., Exam : 25 marks(iii) Teacher Eligibility Test : 60 marks
The weightage so assigned as indicated in (b) above to be distributed based onthe actual percentage of marks obtained by the candidate in the qualifyingexaminations as shown below:-
B) Tamil Nadu Teacher Eligibility Test Weightage for GraduateAssistants :
(a) There shall be 100 marks in total(b) The computation of 100 marks will be in the following manner
The weightage so assigned as indicated in (b) above to be distributedbased on the actual percentage of marks obtained by the candidate in thequalifying examinations as shown below:-
relaxation provided by the State Government by G.O.(Ms.) No.25 dated06.02.2014 is legally justified?
16. In exercise of the power conferred under Section 23 (1) of Right of
Children to Free and Compulsory Education Act 35 of 2009, a Notification
was issued by NCTE prescribing the minimum qualification for a person to
be eligible for appointment as a teacher in Class I to VIII in a school referred
to in clause (n) of Section 2 of Act 35 of 2009. Notification dated 23.08.2010
was followed by Guidelines dated 11.02.2011 issued by the NCTE for
conducting TET under the Act. Guideline No.9 deals with qualifying marks,
which 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 reservationpolicy;
(b) should give weightage to the TET scores in the recruitment process;however, qualifying the TET would not confer a right on any person forrecruitment/employment as it is only one of the eligibility criteria forappointment.”
While prescribing 60% marks as minimum qualifying marks for TET, Clause
9 enables concerned government/authorities to grant concessions/relaxation
to persons belonging to SC/ST, OBC, differently-abled persons, etc., in
accordance with their extant reservation policy.
17. As noticed earlier, the Government of Tamil Nadu in G.O.(Ms.) No.252
School Education (Q) Department dated 05.10.2012 fixed the criteria for
16 (4) of the Constitution enables the State to make provision for reservation
of appointments or posts in favour of any backward class of citizens which,
in its opinion, is not, adequately represented in the services under the State.
Article 16(4) has to be read with Article 335 which deals with claims of
Scheduled Castes and Scheduled Tribes to services and posts and lays
down that “the claims of the members of the Scheduled Castes and
Scheduled Tribes shall be taken into consideration, consistently with the
maintenance of efficiency of administration, in the making of appointments to
services and posts in connection with the affairs of the Union or of a State”.
23. Constitution of India has made adequate enabling provisions
empowering the State to promote reservation/concessions: Special
provisions are made for advancement of the socially and economically
backward classes. These provisions will bring out the contents of equality of
opportunity guaranteed under Articles 14, 15 (1), 16 (1) of the Constitution of
India by creating equal level-playing field. In M. Nagaraj and Others v.
Union of India and Others (2006) 8 SCC 212, Constitution Bench of this
Court held as follows:-
“47. Equality of opportunity has two different and distinct concepts. Thereis a conceptual distinction between a non-discrimination principle andaffirmative action under which the State is obliged to provide alevel-playing field to the oppressed classes. Affirmative action in theabove sense seeks to move beyond the concept of non-discriminationtowards equalizing results with respect to various groups. Both theconceptions constitute “equality of opportunity”.”
24. Preferential treatment or concessions granted to SC/ST, backward
classes, physically handicapped and denotified communities is within the
concept of equality. Grant of relaxation is for the upliftment of Scheduled
Castes and Scheduled Tribes and other backward communities and the
same has been eloquently stated in State of Madhya Pradesh and Anr. v.
Kumari Nivedita Jain and Others (1981) 4 SCC 296 as under:-
“26. It cannot be disputed that the State must do everything possible for theupliftment of the Scheduled Castes and Scheduled Tribes and otherbackward communities and the State is entitled to make reservations forthem in the matter of admission to medical and other technical institutions. Inthe absence of any law to the contrary, it must also be open to theGovernment to impose such conditions as would make the reservationeffective and would benefit the candidates belonging to these categories forwhose benefit and welfare the reservations have been made. In anyparticular situation, taking into consideration the realities and circumstancesprevailing in the State it will be open to the State to vary and modify theconditions regarding selection for admission, if such modification or variationbecomes necessary for achieving the purpose for which reservation hasbeen made and if there be no law to the contrary. Note (ii) of Rule 20 of theRules for admission framed by the State Government specifically empowersthe Government to grant such relaxation in the minimum qualifying marks tothe extent considered necessary…..The relaxation made by the StateGovernment in the rule regarding selection of candidates belonging toScheduled Castes and Scheduled Tribes for admission into Medical Collegescannot be said to be unreasonable and the said relaxation constitutes noviolation of Article 15(1) and (2) of the Constitution. The said relaxation alsodoes not offend Article 14 of the Constitution. It has to be noticed that there isno relaxation of the condition regarding eligibility for admission into MedicalColleges. The relaxation is only in the rule regarding selection of candidatesbelonging to Scheduled Castes and Scheduled Tribes categories who wereotherwise qualified and eligible to seek admission into Medical Colleges onlyin relation to seats reserved for them….”
25. The idea behind laying down NCTE Guidelines for conducting TET
was to bring about uniformity and certainty in the standards and quality of
education being imparted to the students across the nation. However, at the
same time the framers of the guidelines took note of the huge
(Muslim), Most Backward Classes, De-notified Communities and Persons
with Disability (PWD).
26. State of Rajasthan by its Notification dated 29.07.2011 has granted
similar relaxation of 5% marks in the qualifying marks relatable to TET
exams conducted in the State of Rajasthan. The Rajasthan High Court
struck down the relaxation granted by the State of Rajasthan on the ground
that such relaxation was in excess of extant reservation policy. In Vikas
Sankhala and Ors. v. Vikas Kumar Agarwal and Ors. Etc. (2016) 10
SCALE 163, this Court reversed the judgment of the Rajasthan High Court
holding that State has a legitimate right in granting such relaxation to SC/ST,
OBC etc. After referring to Nivedita Jain and M. Nagaraj case, this Court in
paras (51), (54) and (55) held as under:-
“51. Examined in the aforesaid context, when our Constitution envisagesequal respect and concern for each individual in the society and theattainment of the goal requires special attention to be paid to some, that
ought to be done. Giving of desired concessions to the reserved categorypersons, thus, ensures equality as a levelling process. At jurisprudentiallevel, whether reservation policies are defended on compensatory principles,utilitarian principles or on the principles of distributive justice, fact remainsthat the very ethos of such policies is to bring out equality, by takingaffirmative action. Indian Constitution has made adequate enablingprovisions empowering the State to provide such concessions.……..
54. It hardly needs to be emphasized that the State has a legitimate andsubstantial interest in ameliorating or eliminating where feasible, the disablingeffects of identified discrimination. It is a duty cast upon the State, by theConstitution, to remedy the effects of “societal discrimination”. Provision forrelaxation in TET pass marks has to be looked into from this angle which is intune with the constitutional philosophy. After all it only ensures that suchcandidates belonging to reserved category become eligible for appointmentas primary teachers. On the other hand, when it comes to selection processsuch reserved category candidates have to compete with general categorycandidates wherein due regard for merit is given. Therefore, only thosecandidates belonging to reserved category who are found meritorious inselection are ultimately appointed. We are of the opinion that in this mannerthe two constitutional goals, that of rendering quality education on the onehand and providing “equality of opportunity’ to the unprivileged class on theother hand, are adequately met and rightly balanced.
55. We, thus, do not agree with the interpretation that is given by the HighCourt and answer Question No.1 holding that relaxation prescribed in letterdated March 23, 2011 in pass marks in TET examination for differentreserved categories mentioned therein is legal and valid in law.”
We are entirely in agreement with the above judgment in Vikas Sankhala
case.
27. Granting relaxation to SC/ST, OBC, physically handicapped and
de-notified communities is in furtherance of the constitutional obligation of
the State to the under-privileged and create an equal level-playing field.
After referring to clause 9 of the NCTE Guidelines, the Madras High Court
rightly held that the Government of Tamil Nadu has acted in exercise of the
powers conferred under clause 9 of the Guidelines issued by the NCTE.
Madurai Bench was not right in quashing G.O.(Ms.) No.25 dated 06.02.2014
Constitution of India and being a policy decision in terms of its extant
reservation policy cannot be impeached on the ground that the relaxation
has been given to suit some specific class of individuals.
30. It is now well settled by a catena of decisions that there can be no
question of estoppels against the Government in the exercise of its
legislative, sovereign or executive powers (vide Excise Commissioner
U.P., Allahabad v. Ram Kumar (1976) 3 SCC 540 and M. Ramanatha
Pillai v. State of Kerala and Anr. (1973) 2 SCC 650). The view taken by
Madurai Bench as regards the stand of the Government to relax the norms
allegedly in contradiction to its earlier stand is not sustainable in law.
Point No. 3: Whether providing relaxation of 5% marks in TET amounts tochange in the criteria of selection of teachers after the selection processcommenced?
31. The appellants have contended that the provisionally selected
candidates were called to attend certificate verification on 23.01.2014 and
24.01.2014 and weightage marks were also awarded as per the then
existing Government Order. While so, by issuing impugned G.O.Ms. No.25
dated 06.02.2014 and G.O.Ms. No. 29 dated 14.02.2014 the criteria of
selection was altered by relaxing passing marks by 5% in TET from 60% to
55%, thereby allowing large number of candidates who scored lesser marks
to be considered for selection. As per the appellants, this has resulted in
altering the criteria of selection after the commencement of selection