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Government can fix minimum qualification even after the examination unless detracted by law: SC

If the Government has the power to fix minimum qualifying marks ‘from time to time’, there is nothing in the Rules which can detract from the exercise of such power even after the examination is over, provided the exercise of such power is not actuated by any malice or ill will and is in furtherance of the object of finding the best available talent. (Para 63)

Ram Sharan Maurya and Ors. v. State of U.P

Civil Appeal No. 3707 of 2020 (Arising out of SLP(C)No.6841 of 2020)

18 November 2020.

The Hon’ble Supreme Court comprising of Justice Uday Umesh Lalit and Justice Mohan M. Shantanagoudar held in a case that there is nothing in the rule that detracts from fixing the qualification marks even after the examination if it for finding the best available talent.

These appeals, inter alia, deal with the extent of rights of Shiksha Mitras and benefits conferred upon them by the decision of this Court in State of U.P. and another vs. Anand Kumar Yadav and others (2018) 13 SCC 560. Shiksha Mitras became eligible for appointment to the posts of “Assistant Masters and Assistant Mistresses of Junior Basic Schools” and one of the required academic qualifications, as stated in Rule 8, is the passing of Assistant Teacher Recruitment Examination conducted by the State Government. On 15.03.2018, by 22nd Amendment, 1981 Rules were amended removing the requirement of the passing of ATRE from the essential qualifications contained in Rule 8. However, the requirement was retained in Rule 14 dealing with the procedure for selection of Assistant Teachers.

On 21.05.2018, a G.O. was issued relaxing the qualifying marks of 45-40% to 33-30% for General and Reserved categories respectively. 23rd amendment rules dealing with the eligibility of such candidates were given retrospective effect from 01.01.2018. 24th Amendment gave retrospective effect to sub-clause (aa) of Rule 8(ii) from 28.06.2018. This amendment deals with the inclusion B.Ed. graduates to attend the ATRE. On 28.06.2018, the National Council for Teachers Education (“NCTE”, for short) amended its OM dated 23.08.2018.

ATRE-2019 was conducted on 06.01.2019 without there being any specification of minimum qualifying marks. On 7.1.2019 the notification was issued by the Government which increased the qualifying marks to 60-65 % from the previous year. On or about 16.01.2019, the first petition namely W.P. No.118(SS) of 2019 was filed by some Shiksha Mitras challenging the aforementioned Order dated 07.01.2019 and assailing the fixation of minimum qualifying marks. About 99 Writ Petitions in all were filed by Shiksha Mitras questioning the Order dated 07.01.2019. The High Court held in favour of the Petitioners. On appeal, the same was reversed by the division bench of the Allahabad High Court. It is against this judgment the present appeal is preferred.

The counsel for the petitioners, among other things, contended that (i) 1,37,500 Shiksha Mitras who was initially absorbed in regular service and whose absorption was set aside as a result of the orders passed by the Full Bench of the High Court of Judicature at Allahabad and by this Court in Anand Kumar Yadav, constituted a homogeneous class. (ii) As against the minimum qualifying percentage which was at the level of 45-40% for ATRE-2018, the fixation of minimum qualifying percentage at the level of 65-60% for ATRE-2019 created an unnatural and arbitrary distinction between two sets of Shiksha Mitras. (iii) Such fixation at 65-60% was done after the examination and would amount to changing the rules of the game post-examination (iv) As per Rule 14(b), it was up to the Government to consider and decide the number of candidates to be appointed as Trainee Teachers, which exercise was never done.

The counsels for the respondents, among other things, contended that (i) there was no change in the rules of the game as the cut-off marks were prescribed for the first time by order dated 07.01.2019. (ii) Shiksha Mitras who participated in ATRE-2018 and ATRE-2019 did not form a homogeneous class. (iii) Since 60% of marks from ATRE would be taken into account while preparing quality points, there was no occasion for any candidate not doing his best at ATRE-2019. (iv) In the Guidelines dated 01.12.2018, under the heading ‘minimum qualifications’, it was specifically mentioned that the eligibility of the candidates would be in terms of minimum qualifications fixed by NCTE through its various notifications including one dated 28.06.2018. (v) 1981 Rules were amended before the commencement of the recruitment process which is now provided for the recruitment of B.Ed. candidates directly to the post of Assistant Teacher subject to their undergoing post-appointment training which was per the law.

The questions of law framed and answered by the Court are as follows:

(i) Whether the eligibility of B.Ed. candidates for the posts of Assistant Teachers under 1981 Rules is valid?

(ii) Whether the fixation of 65-60% as minimum qualifying marks for ATRE-2019 and particularly after the holding of the examination is legally valid?

A. The first question deals with the submission that such fixation was arbitrary and irrational and can be considered under the following sub-heads:-

(a) Whether there could be different parameters regarding minimum qualifying marks in ATRE-2019 as against those in ATRE-2018.

(b) Whether Shiksha Mitras who appeared in ATRE-2018 and ATRE-2019 constituted one single homogenous class.

(c) Should there not be a different yardstick for Shiksha Mitras, who had been rendering service as teachers, as against what could be applied for fresh graduates.

(d) Should not “minimum qualifying marks” appear to be minimum? Was not the cut off at 65-60% per se arbitrary;

(e) Could ATRE-2019 be converted into an exclusionary test and thereby deny to the Shiksha Mitras the benefit of weightage for the experience.

B. The second question concerns the correctness of the exercise of power in such fixation

after ATRE-2019 was held.

With regard to the first question, placing reliance on section 12A of the NCTE Act and section 23 of the RTE Act, the court observed the following:

Going by the Parliamentary intent in empowering NCTE under the provisions of the NCTE Act and specific authorization in favour of NCTE under said Notification dated 31.03.2010, the authority of NCTE is beyond any doubt. Though there is no specific regulation as contemplated under Section 32 read with Sections 12 and 12A of the NCTE Act, for the present purposes by virtue of the specific authorization under the Notification dated 31.03.2010, NCTE was entitled to lay down that those holding the qualification of ‘Bachelor of Education’ as detailed in said Notification are entitled to be appointed as teachers for classes I to V. Such prescription on part of the NCTE would be binding. It is for this reason that G.O. dated 01.12.2018 notifying ATRE-2019 clearly stated that the candidates possessing minimum qualifications specified in Notifications issued by the NCTE including one dated 28.06.2018 were entitled to participate in ATRE-2019. (Para 41)

Further, the court observed:

The Notification dated 28.06.2018 being binding on the State Government, the statutory regime put in place by the State has to be read in conformity with said Notification. The eligibility or entitlement being already conferred by Notification dated 28.06.2018, the amendments to 1981 Rules were effected only to make the statutory regime consistent with the directives issued by the NCTE. The right or eligibility was not conferred by amendments effected to 1981 Rules for the first time and therefore the element of retrospectively present in the concerned amendments has to be read in that perspective. The intent behind those amendments was not to create a right for the first time with retrospective effect but was only to effectuate the statutory regime in tune or accord with NCTE directives. Theoretically, even if such statutory regime was not made so consistent, the concerned candidates holding B.Ed. degrees could still be eligible and could not have been denied candidature for ATRE-2019. (Para 43)

In the above regard, the Court referred to its judgment in Dr. Preeti Srivastava and another, etc. vs. State of M.P. and others, etc. (1999) 7 SCC 120, Madan Mohan Sharma and another v. State of Rajasthan and others (2008) 3 SCC 724 and held the following:

As held by this Court, an additional norm laid down by the State would certainly be applicable and enforceable. But once, the NCTE laid down that candidates holding B.Ed. degrees would be entitled to be appointed as teachers for classes I to V, provided they undergo a six months’ Bridge Course, the stipulation in 1981 Rules (before 23rd Amendment) that they must first be appointed as trainee teachers must give way to that under the Notification dated 28.06.2018. Said stipulation in 1981 Rules cannot be considered as an additional norm. It ran completely counter to that under the Notification dated 28.06.2018 which is why the Amendment in that behalf was given retrospective effect to bring inconsistency. (Para 45)

The first sub-question in the first part of the second question of law was affirmed by the following observation:

It needs to be stated here that though the syllabus and subject wise allocation of marks were identical, the nature of ATRE-2019 was entirely different. The questions in ATRE-2018 were descriptive in nature and the duration of examination was three hours. However, those in ATRE 2019 were multiple choice – objective questions and the duration of examination was also different. Rather than writing descriptive answers to questions which was the modality in ATRE-2018, multiple choices were given and the correct answer was to be tick marked in ATRE 2019. Naturally, the nature and the difficulty level of both the examinations were different. Sub question (a) must therefore be answered in the affirmative and it must be accepted that there could be different parameters regarding minimum qualifying marks for ATRE-2019. (Para 50)

The Court brought out that the persons who appeared in the year 2018 and the year 2019 do not form a homogenous class and observed the following with regard to the second sub-question in the following words:

We, therefore, reject the submission that Shiksha Mitras who appeared in ATRE-2018 and ATRE-2019 formed a homogenous class and answer sub-question (b) accordingly. The candidates who appeared in ATRE-2018 between themselves formed one class while those who appeared in ATRE-2019 formed another class. The merit of one class had to be tested based on the examination which the candidates forming that class had undergone and no parameters or norms of the earlier examination could be imported or implanted in the latter examination. (Para 51)

Distinguishing the judgment of this Court in State of M.P. and others vs. Gopal D. Tirthani and others, (2003) 7 SCC 83 from the present case, the court observed the following concerning the third sub-question:

This Court was considering validity of a certain percentage of seats earmarked for in-service candidates and it found the classification to be correct, having nexus with the object of ensuring the availability of competent professionals in the rural parts of the State. On the other hand, the object of giving opportunities to Shiksha Mitras was to ensure that they were given a fair chance to compete with others so that the best of the lot would be available to take care of primary education in the State. In our view, the submission does not deserve acceptance. Sub question (c) is answered accordingly. (Para 52)

Answering the fourth sub-question, the Court brought out the significance of the term “pass” in the 1981 rules and observed the following:

The fixation at 65-60% level was to garner the best available talent. Even with this qualifying norm, the percentage of qualified candidates in ATRE-2019 was 37.62% which was quite close to 38.83% in ATRE-2018 and the number of qualified candidates was far in excess of the vacancies required to be filled up. Thus, cut off at 65-60% level in the present case, by itself cannot be termed as an incorrect or illegal exercise of power. Sub question (d) is answered accordingly. (Para 53)

Pointing out the judgment of the division bench of the Allahabad High Court in Kulbhushan Mishra and another vs. State of U.P. and others, the Court observed the following:

The directions issued by this Court in Anand Kumar Yadav were to ensure that regardless of any other considerations, Shiksha Mitras would have the opportunity to match their skills against other candidates. Viewed thus, the fixation of cut off at 65-60% which was intended to select the best of the candidates cannot be termed as exclusionary nor was it intended to deprive the Shiksha Mitras of the advantage of weightage for the experience. Sub question (e) must therefore be answered against Shiksha Mitras. (Para 56)

Concluding the first part of the second question, the court noted:

The endeavour on part of the State in attempting to secure the best of the teachers was therefore fully justified. It needs no emphasis that the right to education guaranteed in terms of Article 21A of the Constitution would envisage quality education being imparted to the children which in turn, would signify that the teachers must be meritorious and the best of the lot. Any process which applied equally to all the candidates and was designed to garner the best talent cannot be called arbitrary or irrational. (Para 57)

Dealing with the second part, the Court made a distinction between the judgments of the Court in K. Manjusree vs. State of Andhra Pradesh and another (2008) 3 SCC 512 and Hemani Malhotra, etc. vs. High Court of Delhi (2008) 7 SCC 11, and the present case in the following words:

K. Manjusree and Hemani Malhotra were the cases that pertained to selections undertaken to fill up posts in judicial service. In these cases, no minimum qualifying marks in interviews were required and the merit list was to be determined going by the aggregate of marks secured by a candidate in the written examination and the oral examination. Under stipulation of minimum qualifying marks for interview, certain candidates, who otherwise, going by their aggregate would have been in the zone of selection, found themselves to be disqualified. The stipulation of minimum qualifying marks has come for the first time and after the selection process was underway or through, this Court found such exercise to be impermissible.

These were cases where, to begin with, there was no stipulation of any minimum qualifying marks for interview. On the other hand, in the present case, the requirement in terms of Rule 2(1) (x) read with Rule 14 is that the minimum qualifying marks as stipulated by the Government must be obtained by a candidate to be considered eligible for selection as Assistant Teacher. It was thus always contemplated that there would be some minimum qualifying marks. What was done by the Government by its orders dated 07.01.2019 was to fix the quantum or number of such minimum qualifying marks. Therefore, unlike the cases covered by the decision of this Court in K. Manjusree, where a candidate could reasonably assume that there was no stipulation regarding minimum qualifying marks for interview and that the aggregate of marks in written and oral examination must constitute the basis on which merit would be determined, no such situation was present in the instant case. The candidate had to pass ATRE-2019 and he must be taken to have known that there would be the fixation of some minimum qualifying marks for clearing ATRE-2019.

Therefore, there is a fundamental distinction between the principle laid down in K. Manjusree and followed in Hemani Malhotra on one hand and the situation in the present case on the other. (Para 61)

In the above regard, the court noted the following:

If the Government has the power to fix minimum qualifying marks ‘from time to time’, there is nothing in the Rules which can detract from the exercise of such power even after the examination is over, provided the exercise of such power is not actuated by any malice or ill will and is in furtherance of the object of finding the best available talent. (Para 63)

If the ultimate object is to select the best available talent and there is a power to fix the minimum qualifying marks, in keeping with the law laid down by this Court in State of Haryana vs. Subash Chander Marwaha and Others, State of U.P. vs. Rafiquddin and Others, Municipal Corporation of Delhi vs. Surender Singh and Jharkhand Public Service Commission vs. Manoj Kumar Gupta and another, we do not find any illegality or impropriety in fixation of cut off at 65-60% vide order dated 07.01.2019. The facts on record indicate that even with this cut off the number of qualified candidates is more than twice the number of vacancies available.

It must be accepted that after considering the nature and difficulty level of examination, the number of candidates who appeared, the concerned authorities have the requisite power to select criteria which may enable getting the best available teachers. Such endeavour will certainly be consistent with the objectives under the RTE Act. (Para 64)

Concluding, the Court held:

In the appeals preferred by ex-servicemen or persons with a disability, it was submitted that as against the vacancies earmarked for these categories, very few candidates had applied and at 65-60% cut off the number of qualified candidates was far lesser. The cut off at 65-60% having been held valid and justified, these appeals are also dismissed. If there is less number of candidates against the vacancies for these categories, such vacancies shall be subject to the Rules on that behalf. If the vacancies cannot be carried forward, the same shall and must ensure to the advantage of the candidates in the present selection. (Para 68)

Consequently, the appeals were dismissed.

Kalidharun K M



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