2016 Supreme(SC) 842

SUPREME COURT OF INDIA
A.K. SIKRI, R.K. AGRAWAL, JJ.
VIKAS SANKHALA & ORS. ETC. – APPELLANTS
VERSUS
VIKAS KUMAR AGARWAL & ORS. ETC. – RESPONDENTS
Civil Appeal Nos. 3545-3549 of 2016 With 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
Decided On : 18-10-2016

IMPORTANT POINTS
NCTE has not provided any provision for relaxation in TET examination for reserved category candidates.
Notification dated July 31, 2009 pertains to the reservation in all government services and does not deal with the recruitment of teachers.
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.
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.
No concession is given to reserved category availing relaxation in pass marks in TET.

Headnote:(a) School Education – NCTE guidelines dated February 11, 2011 and amendment thereof dated July 29, 2011 – Para 9 and 3 – Qualifying marks for TET prescribed in para 9 – Not amended – Para 3 giving rationale for TET – Amended – Amended para 3(ii) prescribing qualifying marks for 6 month’s special training in elementary education – Graduates with B.Ed. qualification should have minimum 50% marks in graduation and 45% marks in B.Ed. qualification – Amended provision providing for relaxation of 5% marks in graduation and B. Ed. for SC/ST/OBC/PH candidates, for undergoing the training, as per reservation policy – Relaxation nothing to do with TET – Had Government meant to give relaxation in TET, para 9(a) would have been amended – Thus, NCTE has not provided any provision for relaxation in TET examination for reserved category candidates. (Para 32, 33)

       (b) School education – Appointment of teachers – TET is condition precedent – Governed solely by NCTE guidelines – Para 9(i) and (ii) (b) – Prescribing 60% marks in TET as pass/qualifying marks – Empowerin g State government to consider giving relaxation to SC/ST, OBC, differently abled persons etc. – State government, by communication dated March 23, 2011, deciding to give relaxation in TET ranging from 10% to 20% to different reserved categories – No reservation policy prior to the communication – Notification dated July 31, 2009 pertains to the reservation in all government services and does not deal with the subject at hand. (Para 35, 43)

       (c) School education – Appointment of teachers – TET is condition precedent – Governed solely by NCTE guidelines – Para 9(i) and (ii) (b) – Prescribing 60% pass marks in the TET examination – Also giving liberty to the school management (Government, local bodies, Government aided and unaided) to consider giving concessions to different kinds of reserved categories ‘in accordance with their extant reservation policy’ – NCTE nowhere prohibiting relaxation in pass marks in TET examination for reserved category candidates – Specific authorisation given to grant special concessions – NCTE thus accepting in principle prescribing relaxed standard for passing TET by laying down a policy in this behalf – Appellant only asserting that there is no extant policy. (Para 43, 44)

       (d) School education – NCTE guidelines dated February 11, 2011 – Para 9 r/w Articles 15 and 16 read with Articles 38, 39(a) and 46, Constitution of India – ‘Extant policy’ of reservation – Clause 9(a) not mandating any 'pre-existing' reservation policy – Even if there was no such policy in existence as on February 11, 2011, State Governments not precluded from formulating such reservation policy even thereafter – Term used is ‘extant’ and not ‘pre-existing’ – 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 – Advertisement requiring candidates to have passed TET conducted in accordance with NCTE guidelines – Held, meets requirement of 'extant reservation policy'. (Para 46)

       (e) NCTE guidelines dated February 11, 2011 – Para 9 r/w Articles 15 and 16 read with Articles 38, 39(a) and 46, Constitution of India – Reservation policy – To bring about equality by taking affirmative action – Held, 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. (Para 55)

       (1981) 4 SCC 296; 2007(4) S.C.T. 664 : (2006) 8 SCC 212; (1980) 2 SCC 768– Relied upon

       (f) School education – Appointment of teachers – NCTE guidelines – Guidelines/notification dated February 11, 2011 – Passing TET examination – A condition of eligibility – Method of recruitment for teachers altogether different – Weightage for TET marks, 20% of marks obtained in TET, is only one part – Reserved category candidate not getting any advantage – No concession to reserved category availing relaxation in pass marks in TET. (Para 60, 61)

       2010(3) S.C.T. 826 : (2010) 3 SCC 119 – Relied upon

       2008(2) S.C.T. 6 : (2008) 3 SCC 512 – Referred

       Facts of the case:

       This is a case relating to appointment of teachers in schools and conduct of TET therefor.

       As per 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.

       The Single Judge of the High Court partly allowed the writ petitions and held 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.

       Finding of the Court:

       Impugned judgment is not sustainable.

       Result: Appeals allowed.