TNTET, Madras high court,
Writ Petition Nos.5590 vs State Of Tamil Nadu on 29 April, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29..04..2014
CORAM:
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Writ Petition Nos.5590, 4182, 4183, 4184, 7146, 7371,
7681, 7754, 7755, 7756, 7757, 5985, 8354, 10850, 2780,
2781, 2782, 5842, 5843, 5591, 6361, 6648, 7315, 7316, 7317,
7213, 7626, 7859, 5680, 9008, 10849 and
10843 of 2014 and connected MPs
P.Jayabharathi
... Petitioner in W.P.No.5590 of 2014
-Versus-
1.State of Tamil Nadu,
Rep. By its Secretary to Government,
School Education (TRB) Department,
Secretariat, Chennai 600 009.
2.The Chairman,
Teachers Recruitment Board,
Chennai 600 006.
3.The Director of School Education,
Chennai 600 006.
4.The Director of Elementary Education,
Chennai 600 006.
... Respondents in W.P.No.5590 of 2014
Prayer in W.P.No.5590 of 2014:- Petition filed under Article 226 of The Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the order passed by the 1st respondent in G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 as amended by G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014, insofar as the awarding of weightage mark in the slab system for the Teacher Eligibility Test qualification for the post of B.T. Assistant is concerned and to quash the same and direct the respondents to award mark for the Teacher Eligibility Test qualification on the basis of actual percentage of fraction of mark obtained by the petitioner and award the mark to the Teacher Eligibility Test accordingly and consider the petitioner for appointment to the post of B.T. Assistant (English).
1.S.Karthick
2.B.Vishalini
... Petitioner in W.P.No.5842 of 2014
-Versus-
1.State of Tamil Nadu,
Rep. By its Secretary to Government,
School Education (TRB) Department,
Secretariat, Chennai 600 009.
2.The Chairman,
Teachers Recruitment Board,
Chennai 600 006.
3.The Director of School Education,
Chennai 600 006.
... Respondents in W.P.No.5842 of 2014
Prayer in W.P.No.5842 of 2014:- Petition filed under Article 226 of The Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the order passed by the 1st respondent in G.O.Ms.No.25, School Education (TRB) Department, dated 06.02.2014 and to quash the same, insofar as it denies the relaxation of 5% to the candidates who appeared in the Teacher Eligibility Test conducted by the 2nd respondent in the year 2012 is concerned, and direct the respondents to extend the benefit of 5% relaxation to the petitioner and consequently, issue Teacher Eligibility Test Certificate so as to enable them to get appointment to the post of B.T. Assistant in any one of the Government Schools.
N.Kowsalya
... Petitioner in W.P.No.7681 of 2014
-Versus-
1.The Secretary to Government,
Education Department,
Fort St. Geoge,
Chennai 600 009.
2.The Chairman,
Teacher's Recruitment Board,
E.V.K. Building, College Road,
Chennai 600 006.
3.The Member Secretary,
Teacher's Recruitmetn Board,
E.V.K. Building, College Road,
Chennai 600 006.
... Respondents in W.P.No.7681 of 2014
Prayer in W.P.No.7681 of 2014:- Petition filed under Article 226 of The Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the order passed by the 1st respondent in G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014 and to quash the same and consequently, direct the respondents to appoint the petitioner on the basis of marks awarded at Tamil Nadu Teacher's Eligibility Test conducted by the 3rd respondent.
V.Sridevi
... Petitioner in W.P.No.10849 of 2014
-Versus-
1.The State of Tamil Nadu,
Rep. By its Secretary to Government,
School Education Department,
Fort St. George,
Chennai 600 009.
2.The Teachers' Recruitment Board,
Rep. By its Chairman,
DPI Compound,
College Road, Chennai 600 006.
3.The Director of School Education,
DPI Compound, College Road, Chennai 600 006.
... Respondents in W.P.No.10849 of 2014
Prayer in W.P.No.10849 of 2014:- Petition filed under Article 226 of The Constitution of India, praying for issuance of a Writ of Certiorari calling for the records pertaining to the order passed by the 1st respondent in G.O.Ms.No.25, School Education (TRB) Department, dated 06.02.2014 and to quash the same.
For Petitioner(s)
:
Mr.C.Selvaraj, senior counsel for M/s.C.S. Associates for petitioner(s) in W.P.Nos.5590, 5842, 5843 and 5591 of 2014
Mr.L.Mouli for Petitioner in W.P.No.6361 of 2014
Mr.S.Namonarayanan for petitioner(s) in W.P.Nos.4182, 4184 and 6648 of 2014
Mr.S.Kadarkarai for petitioner(s) in W.P.No.7146 of 2014
Mr.M.R.Jothimanian for petitioner(s) in W.P.No.7371of 2014
Mr.R.Karunagaran for petitioner(s) in W.P.No.7681 of 2014
Mr.T.K.S.Gandhi for petitioner(s) in W.P.No.7754, 7757, 7315 to 7317, 7213 of 2014
Mr.R.Bharath Kumar for petitioner(s) in W.P.No.5985 of 2014
Mr.G.Sankaran for petitioner(s) in W.P.No.8354of 2014
Mrs.Dakshayani Reddy for petitioner(s) in W.P.Nos.10850 and 10849 of 2014
Mr.S.Vijayan for petitioner(s) in W.P.Nos.2780 to 2782 of 2014
M/s.Sai Bharath and Ilan for Petitioner(s) in W.P.No.7626 of 2014
Mr.S.Kasirajan for petitioner(s) in W.P.No.7859 of 2014
Mr.R.Kumaravel for petitioner(s) in W.P.No.5680 of 2014
Mr.D.Shivakumaran for petitioner(s) in W.P.No.9008 of 2014
Ms.D.Almas Banu for petitioner(s) in W.P.No.10843 of 2014
For Respondent(s)
:
Mr.AL.Somayaji , Advocate General Assisted by
Mr.D.Krishnakumar,
Special Government Pleader,
R.Rajeswaran, Special Government Pleader and
Mr.M.Dig Vijaya Pandian, Additional Government Pleader
COMMON ORDER
Since common issues are involved in all these writ petitions, they were heard together and they are disposed of by means of this common order.
2. The common facts involved in all these writ petitions are as follows:
With a laudable object of providing free and compulsory education to all children of the age of six to fourteen years, the Parliament enacted The Right of Children to Free and Compulsory Education Act, 2009 and the same was brought into force w.e.f 27.08.2009. Section 23 of the said Act stipulates the qualifications for appointment and terms and conditions of service of teachers. Sub Section (1) of Section 23 states that 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.
3. In pursuance of the said provision, the Central Government authorised the National Council for Teacher Education (hereinafter referred to as NCTE ) as the Academic Authority empowering it to lay down the minimum qualifications for appointment as teacher. The NCTE, in turn, issued a notification (vide F.No.61-03/20/2010/NCTE (N&S), dated 23.08.2010) laying down the following minimum qualifications for a person to be eligible for appointment as a teacher in Class 1 to VIII.
Minimum Qualification:
(i) Classes I - V:
(a) Senior Secondary (or its equivalent) with at least 50% marks and 2- year Diploma in Elementary Education (by whatever name known)
OR
Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El.Ed)
OR
Senior Secondary (or its equivalent) with at least 50 % marks and 2- year Diploma in Education (Special Education)
AND
(b) 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.
(ii) Classes VI-VIII
(a) B.A./B.Sc. and 2 year Diploma in Elementary Education (by whatever name known)
OR
B.A./B.Sc. with at least 50% marks and 1 year Bachelor in Education (B.Ed)
OR
B.A./B.Sc. 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
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.A./B.Sc. Ed or B.A. Ed./B.Sc. Ed.
OR
B.A/B.Sc. with at least 50% marks and 1 year B.Ed (Special Education)
AND
(b) 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.
4. As seen above, a pass in the Teacher Eligibility Test (hereinafter referred to as TET ) to be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for the said purpose is compulsory.
5. The NCTE thereafter issued guidelines by its proceedings in No.76-4/2010/NCTE/Acad, dated 11.02.2011 for conducting TET. Para 9 of the said notification reads as follows:
Para 9.Qualifying marks:
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 considered 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."
6. Thereafter, the Government of Tamil Nadu issued G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011 designating the Teachers Recruitment Board (TRB) as the Nodel agency for conducting TET and recruitment of teachers.
7. Subsequently, the Government of Tamil Nadu in letter No.2068/C2/2012-1, dated 04.02.2012, issued certain clarifications to G.O.Ms.No.181, dated 15.11.2011, regarding the conduct of TET. According to the said clarifications, there shall be two papers for the TET. Paper-I will be for a person who intends to be a teacher for Classes I to V which consists of 150 Multiple Choice Questions (MCQs). Paper-II will be for a person who intends to be a teacher for Classes VI to VIII which consists of 150 MCQs. This clarification is in tune with the NCTE norms. The percentage of marks required for a pass is 60%.
8. The NCTE amended the earlier notification by another notification in F.No.61-1/2011/NCTE (N&S), dated 29.07.2011. Para 1 of the said notification substituted para 1 of the earlier notification. As per the amended notification the minimum required qualification is as follows:
(I) For sub-para (i) of para 1 of the Principal Notification, the following shall be substituted, namely:--
Para 1. Minimum Qualification:
(i) Classes I - V:
(a) Senior Secondary (or its equivalent) with at least 50% marks and 2- year Diploma in Elementary Education (by whatever name known)
OR
Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El.Ed)
OR
Senior Secondary (or its equivalent) with at least 50 % marks and 2- year Diploma in Education (Special Education)
Graduation and two year Diploma in Elementary Education (by whatever name known)
AND
(b) 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.
(II) For sub-para (ii) of para 1 of the Principal Notification, the following shall be substituted, namely:-
(ii) Classes VI-VIII
(a) Graduation and 2 year Diploma in Elementary Education (by whatever name known)
OR
Graduation with at least 50% marks and 1 year Bachelor in Education (B.Ed)
OR
Graduation 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
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.A./B.Sc. Ed or B.A. Ed./B.Sc. Ed.
OR
Graduation with at least 50% marks and 1 year B.Ed (Special Education)
AND
(b) 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.
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 or 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 upto 1st January, 2012, provided he/she undergoes, after appointment an NCTE recognised 6 months 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 upto 5% in the qualifying marks shall be allowed to the candidates belonging to reserved categories, such as SC/ST/OBC/PH."
9. In the above background, the TRB conducted, for the first time, TET for both the Papers I & II on 12.07.2012. Several lakhs of candidates participated. 60% marks was the minimum required mark for a pass in the TET as per the NCTE norms. When the results were published, it turned out that only 0.36% of the candidates had passed in both the Papers I & II. Therefore, in order to afford yet another opportunity for the failed candidates, the Government directed the TRB to conduct yet another TET before the end of October, 2012. This time, the duration of the examination was ordered to be increased from 1= hours to 3 Hours - vide G.O.Ms.No.222, School Education Department, dated 24.08.2012. As per G.O.Ms.No.222, dated 24.08.2012, it was directed that only those candidates who had earlier failed alone would be permitted to participate in the TET, which was scheduled to be held on 03.10.2012.
10. At this juncture, a number of writ petitions [W.P.No.24507 of 2012 Batch] were filed before this Court by the fresh candidates who had not earlier appeared in the TET. Their grievance was that they should also be permitted to participate in the TET. When the said batch of writ petitions came up for hearing before me, the Chairman, TRB submitted two affidavits stating that the examination which was scheduled to be held on 03.10.2012 would be postponed to 14.10.2012 and fresh candidates would also be permitted.
11. In the meanwhile, for the purpose of fixing the criteria for selection of candidates who have cleared the TET for appointment to the post of Secondary Grade Teachers and B.T. Assistants and other related issues, the Government constituted a Committee under the Chairmanship of the Hon'ble Minister for School Education, Sports and Youth Welfare with three other members namely, the Principal Secretary to Government, School Education Department, The Chairman, Teachers Recruitment Board and The Director of School Education (Vide G.O.(2D)No.36, School Education (Q) Department, dated 14.09.2012).
12. In the second affidavit filed in W.P.Nos.24507 of 2012 batch, the Chairman, TRB had stated that after the recommendation of the above constituted Committee, the Government would examine the matter in detail and would arrive at a criteria for selection of candidates for Secondary Grade Teachers and B.T. Assistants at the earliest.
13. In view of the said affidavit filed, this Court disposed of the writ petitions issuing certain directions including the following:-
10 (vii). So far as the candidates who possess the Teacher Eligibility Certificate are concerned, after receipt of the recommendations of the Committee constituted (vide G.O.(2D) No.36, School Education Department, dated 14.09.2012) selection and appointment shall be made as per the criteria to be fixed by the Committee.
14. The Committee unanimously recommended to the Government to adopt modalities by giving weightage of marks for selection and appointment of Secondary Grade Teachers and Graduate Assistants. Having examined the recommendations of the Committee, the Government issued G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 and prescribed the modalities of giving weightage of marks for selection and appointment of Secondary Grade Teachers and Graduate Assistants.
15. So based on the above norms and the criteria prescribed, the candidates who have cleared the TET in the second examination held on 14.10.2012 were all called for certificate verification, awarded weightage of marks, selected and appointed. Until then, there was no challenge made to G.O.Ms.No.252, dated 05.10.2012.
16. The TRB, for the third time, issued Notification/Advertisement for TET for Paper-I and Paper-II to be held on 17.08.2013 and 18.08.2013. This notification was issued on 22.05.2013. The petitioners in all these writ petitions participated either in Paper-I or in Paper-II or in both. In that examination held as per the Notification itself, the minimum percentage of marks required for pass was only 60% as per the norms prescribed by the NCTE and the Government of Tamil Nadu. The results were subsequently published.
17. Thereafter, the Hon'ble Chief Minister of Tamil Nadu announced on the Floor of the Assembly that 5% relaxation will be given from the present pass mark of 60% for passing TET for the candidates belonging to the Scheduled Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslim), Most Backward Classes, De-notified Communities and persons with Disability.
18. In tune with the said announcement made, the Government issued G.O.Ms.No.25, School Education (TRB) Department, dated 06.02.2014 relaxing 5% marks from the present pass mark of 60% for the candidates belonging to the above categories.
19. The Government Order also further directed that the said relaxation will be applicable for the TET-2013 held on 17.08.2013 and 18.08.2013 . For better understanding let me extract paragraph 3 of the said G.O. which reads as follows:
"3. 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 mark of 60% and fix the pass mark at 55% for candidates belonging to Scheduled 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 to obtain the following minimum marks in Paper I for Secondary Grade Teachers and Paper II for Graduate Assistants:-
Category
Maximum Marks
Minimum Marks (%) to be obtained in TNTET
Paper - I
Paper - II
General
150
60% or 90 marks
60% or 90 marks
SC, ST, BC, BC(M), MBC, DNC and persons with Disability (PWD)
150
55% or 82.5 marks rounded off to 82 marks
55% or 82.5 marks rounded off to 82 marks
(b) Relaxing 5% marks from the 60% marks prescribed for clearing of the Tamil Nadu Teacher Eligibility Test, 2013 held on 17.08.2013 and 18.08.2013 for Schedule Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslims), Most Backward Classes, De-notified Communities and persons with Disability (PWD) and fixed at 55% or 82 marks.
(c) For all future Teacher Eligibility Tests, to fix the minimum marks for candidates belonging to General Categories at 90 marks (60% of 150) and for candidates belonging to Schedule 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)."
20. Thereafter, the Government issued another Government Order in G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014, thereby partially modifying the Government Order in G.O.Ms.No.252, dated 05.10.2012 (this is in respect of weightage marks for selection). Paragraphs 3 and 4 of the said G.O. reads as follows:
"3. Consequent to the orders issued in G.O. third read above, in partial modification of the orders issued in the G.O. first read above , the weightage of marks for the Tamil Nadu Teacher Eligibility Test for Secondary Grade Teachers and Graduate Assistants shall be as indicated below:-
Examination passed
Weightage of Marks
90% and above
80% and above but below 90%
70% and above but below 80%
60% and above but below 70%
55% and above but below 60%
TNTET.
60
60
54
48
42
36
4. The Chairman, Teachers Recruitment Board is directed to take note of this Government Order for finalizing selection list of the Tamil Nadu Teacher Eligibility Test 2013 held on 17.08.2013 and 18.08.2013 and for all future Tamil Nadu Teacher Eligibility Tests with respect to candidates belonging to Scheduled Castes, Schedules Tribes, Backward Classes, Backward Classes (Muslims), Most Backward Classes, Denotified Communities and Persons with Disability (PWD).
21. In the above factual background, now these writ petitions have been filed by the candidates who have appeared for either Paper-I or Paper-II or in both the papers in the TET held on 17.08.2013 and 18.08.2013. (i) In some of the writ petitions, the Government Order in G.O.Ms.No.25, dated 06.02.2014 giving relaxation of 5% of marks in the TET to specific class of persons is under challenge. (ii) In some of the other writ petitions, challenge is to the Government Order in G.O.Ms.No.29, dated 14.02.2014, wherein the candidates have questioned the award of weightage of marks in the slab system and they have sought for a direction to the respondents to take into account the actual percentage of marks secured by the candidates. (iii) In few other writ petitions, the petitioners have challenged the retrospective application of the Government Order in G.O.Ms.No.29, dated 14.02.2014 as well as the Government Order in G.O.Ms.No.25, dated 06.02.2014 to the TET examination held on 17.08.2013 and 18.08.2013. (iv) In few other writ petitions, the candidates have prayed that G.O.Ms.No.25, dated 06.02.2014 and G.O.Ms.No.29, dated 14.02.2014 should be retrospectively extended to the earlier examinations held in the year 2012 as well. (v) In some other writ petitions both G.O.Ms.No.25 and G.O.Ms.No.29 are challenged seeking a consequential direction for awarding of weightage marks as per G.O.Ms.No.252.
22. Now, let me take up these challenges one after the other.
Challenge to G.O.Ms.No.25, dated 06.02.2014
23. The common grounds in the writ petitions concerned would be as follows:-
(i) The impugned Government Order in G.O.Ms.No.25, dated 06.02.2014 which was issued after the entire selection process was over for the examination conducted in August, 2013, would amount to changing the rules of the game after the game is over.
(ii) By reducing the pass percentage to 55%, the respondents have diluted the pass percentage and have made more candidates eligible along with the petitioners which has adversely affected the rights of the petitioners.
(iii) The retrospective operation under the impugned G.O.Ms.No.25, dated 06.02.2014 to TET examinations held in August, 2013 materially affects the vested right of the petitioners for selection.
(iv) The impugned Government Order suffers from total non-application of mind in as much as the relaxation is not on the ground that there are no eligible candidates.
(v) The impugned Government Order is bereft of any reasoning for the issuance of the same and thus the said G.O. is highly unreasonable.
(vi) The impugned Government Order is against the provisions of the Right to Education Act and NCTE Notification which enables the Government to only reduce the pass marks, only, if there is any hardship or that there are no enough number of candidates.
24. In the common counter filed by the Government, it is, inter alia, stated as follows:
(i) There were several representations from different quarters seeking concessions to the reserved categories. The Government after detailed examination of the said requests decided to grant such concessions to the said category of persons in the TET exams conducted in the year 2013 and to all the future TET exams and accordingly passed the Government Order in G.O.Ms.No.25. The Government has gone one step further and allowed 5 % relaxation from the existing 60 % for determining eligibility in the TET for candidates belonging to Scheduled Caste, Scheduled Tribes, Backward Classes, Backward Classes (Muslim), Most Backward Classes, De-notified Communities (DNC) and Persons with Disability (PWD).
(ii) Giving concession is the policy of the Government and it is within its discretion and so, the Courts cannot either interfere with such policy matters nor could it direct the State Government not to give such concession.
(iii) In respect of the candidates who have already appeared in the TET held in the year 2013 the process of selection is under way and it is yet to be completed. Therefore, the said order has been made applicable to the candidates who have appeared for TET held in the year 2013.
25. I have meticulously considered the above rival contentions. In none of the writ petitions, the power of the State Government to give relaxation for the benefit of reserved categories in the matter of percentage of marks for a pass in the TET has been questioned. The foremost ground is that the Government has issued the impugned Government Order in total non-application of mind. As has been stated in the common counter affidavit filed by the respondents, the Government has considered the representations from various quarters seeking relaxation of 5% of pass mark for specified and under privileged communities and having regard to the same, the Government has taken a policy decision to relax the same. Therefore, it cannot be stated that the Government has passed the impugned order in total non-application of mind.
26. Nextly, it is contended by the petitioners that such concessions could be granted only if there is no required number of candidates eligible for appointment. In my considered opinion, this contention is totally baseless as TET is not a competitive examination but it is only a qualifying examination. If the candidates have once passed the said examination, the pass certificate will be valid for seven years and there is no need for them to write the examination every time. At the same time, there is also no restriction for the passed candidates to re-appear to enhance the marks. Thus, it should be understood that TET is only a qualifying examination to qualify persons for appointment as teachers. Therefore, it is not tenable to state that if only there are no sufficient number of candidates available in the market who have passed the TET for appointment, such relaxation could be given. Therefore, this ground is rejected.
27. Yet another ground raised, upon which much focus is made, is that the rules of the game cannot be changed once the game has started. In this case, according to the petitioners the TET Examinations 2013 were held on 17th and 18th of August, 2013 and as per the prospectus issued, the minimum required marks for a pass was 60%. Based on the said prescription, the results were published and the successful candidates were also called for certificate verification and only after that, the impugned Government Order in G.O.Ms.No.25, dated 06.02.2014 has been issued. The grievance of the petitioners is that since the relaxation of 5% of marks has been given to candidates who have appeared in the already concluded examination, it will materially affect the chance of the candidates who have already passed and secured more than 60% of marks, while they are considered for appointment. This argument, in my considered opinion, though attractive, does not persuade me at all. If it is a competitive examination, I may find some justification in the said contention that the rules of the game cannot be changed subsequently. But as I have already pointed out, it is only a qualifying examination.
28. The basic difference between a competitive examination and a qualifying examination is that in a competitive examination, success or failure of one candidate will have an impact on the other candidates because it is a competition between the them. But, in a qualifying examination, success or failure of one candidate will have no bearing on the other. Both the candidates appear for examination only to qualify themselves so as to make themselves eligible for appointment as teachers in future. Thus, the principles applicable to a competitive examination cannot be simply imported to a qualifying examination in a mechanical fashion.
29. The learned counsel Mrs.Dakshayani Reddy appearing the petitioner in W.P.No.10849 of 2014 would make reliance on the judgements of the Hon'ble Supreme Court in K.Manjusree v. State of Andhra Pradesh, (2008) 3 SCC 512 and Tamil Nadu Computer Science, B.Ed., Graduate Teachers Welfare Society v. Higher Secondary School Computer Technical Assistant and others [Civil Appeal No.4187 of 2009 arising out of SLP (C) No.25097 of 2008 dated 09.07.2009].
30. A close reading of the above judgements would go to show that the Hon'ble Supreme Court, in those judgements, has reiterated the principle that the rules of the game cannot be changed after the game is over. But all those cases pertain to competitive examinations and the ultimate selection for appointment. In a qualifying examination, if the change of the rule has materially affected the chances of anybody in getting qualified, then the said principle can be applied even to a qualifying examination. But, if the rules are changed only for the benefit of the candidates and not to the detriment of any single candidate, then the said principle that the rules of the game cannot be changed after the game is over cannot be made applicable. In this case, the relaxation of 5% of marks given to certain reserved categories has not affected the chance of any candidate in getting qualified. Therefore, the contention of the petitioners in this regard is liable to be rejected and accordingly rejected.
31. Nextly, it is contended that because retrospective relaxation is given to the already concluded examinations, more number of candidates will get qualified and such qualified candidates who have secured less than 60% of marks will compete with the petitioners in the matter of appointment and thus the impugned Government Order materially affects the accrued rights of the petitioners. I find no force in this argument for more than one reason. First of all, as has been very clearly stated in the NCTE regulations as well as in the TET Notification, a mere pass in the TET does not confer any right for appointment as a teacher. As I have repeatedly stated, it is only a qualification for appointment as a teacher. In the additional common counter affidavit filed by the Government (dated 23.04.2014) it is stated as follows:
Pursuant to the notification issued by the NCTE, the State Government framed the guidelines for the Teacher Eligibility Test. The State Government is yet to issue the notification for recruitment of Secondary Grade Teachers and Graduate Assistants for the present academic year.
32. Of course, it is true that the candidates who have already secured 60% marks and above have already been called for certificate verification. But such exercise shall not confer any right on them that they shall be appointed as teachers. Therefore, I hold that the publication of results of the TET conducted in August 2013 has not conferred any right of employment as against existing vacancies on the candidates who have secured 60% of marks and above. Thus there is no vested right as claimed by the petitioners so as to say that they have been affected by G.O.Ms.No.25, dated 06.02.2014. Further, when the Government has taken a policy decision to reduce the percentage of marks for the benefit of reserved categories, for a pass and when the power of the Government to do so is not challenged, I find no substance in the challenge. Therefore, this ground is also rejected.
33. For the foregoing discussions , I hold that G.O.Ms.No.25 dated 06.02.2014 is valid and the challenge made to the same has to necessarily fail.
Request for retrospective application of G.O.Ms.No.25, dated 06.02.2014 to the TET held in the year 2012:-
34. In many of these writ petitions, the petitioners who have appeared in the TET in the year 2012 and who could not secure 60% of marks are before this Court challenging G.O.Ms.No.25, dated 06.02.2014 in so far as it gives retrospective effect of relaxation of 5% of marks only to the TET held in August, 2013. According to the petitioners, such retrospective effect should have been given to the examinations held in the year 2012 also. The primary contention of the petitioners is that denial of giving retrospective effect to the examinations held in 2012, when such retrospective effect has been given to the examinations held in 2013, amounts to discrimination which violates Article 14 of the Constitution of India.
35. In this regard, in the common counter filed by the respondents, it is stated in paragraph 18 and 19 as follows:
"It is submitted that the petitioner cannot seek to extend the concession to candidates who appeared in the TET exams in the year 2012. It will create chaos and confusion and will set at naught the settled things. It will affect the persons who have already been selected and have been declared as eligible to be appointed as Teacher in the TET exam in the year 2012 and who were appointed following the extent reservation policy of the Government and are working in various places. It will collapse and undo the entire things already done. Petitioner and persons who failed in the TET exams in the year 2012 had an opportunity to appear in the TET exams conducted in the year 2013 and many of them have appeared and secured pass marks. Therefore, the petitioner is not a similarly placed person like the candidates to whom the benefits have been extended. The candidates who appeared in the TET exam conducted in the year 2013 are yet to be selected and appointed whereas the candidates selected in the TET exams conducted in the year 2012 have already been appointed. It is submitted that the petitioner at no stretch of imagination can claim to be a similarly placed person.
19. It is submitted that all the averments made in the affidavit by the petitioner are denied as untenable. The crux of the contention of the petitioner is that the Government before passing the impugned Order, has not taken into account the plight of the candidates who appeared in the TET exams in the year 2012 and that Government should have extended the concessions to the candidates who have appeared in the year 2012 also. Once the Government has decided to give the concession to persons who wrote TET exams in the year 2013 also it should have been given to all the persons who wrote the TET exams since its inception as they they are similarly placed and therefore the action of the Government is violating of Articles 14 and 16 of the Constitution of India. The contention of the petitioner is baseless as with respect to the candidates who appeared in the two Teacher Eligibility Tests conducted in 2012 the entire process of selection and appointment have been completed and the candidates have already serve more than a year in Government Schools. However, with respect to the candidates who have appeared in the Teacher Eligibility Test, 2013 the process of selection is under way and it yet to be completed. Hence the order stated to be impugned has been made application to the candidates who appeared in the Teacher Eligibility Test, 2013. Hence the said claim of the petitioner is misconceived and is not tenable and does not hold any water in the eye of law."
36. As has been rightly contended by the TRB, so far as the TET Examinations held in the year 2012 are concerned, after publication of the results much water has flown. The candidates who passed in that examinations have already been selected and appointed as teachers. Further, they have almost put in more than one year of service in the Government schools. If retrospective effect is given to impugned G.O. relaxing 5% of pass marks to the examination held in the year 2012, then the candidates who get the benefit of such relaxation will have to be appointed. In such an event, the appointments already made will have to be disturbed, because such appointments are to be in tune with the policy of reservation as well as the weightatge marks. This would only create chaos and confusion. This can be illustrated in the following manner:
A Scheduled Caste candidate who had secured 60% of marks in the TET Paper-II in 2012 had already been appointed based on the weightage of marks obtained in the Higher Secondary Course, Degree Course, B.Ed Degree Course and in the TET. There is a candidate who had secured 58% of marks belonging to Scheduled Caste and failed. As contended by the petitioners, if the retrospective operation has to be given to the relaxation, then the said candidate had to be declared as passed. Now, in the process of selection, if it is found that he had secured more total weightage marks then the candidate who had already been appointed, then the candidate who had already been appointed has to be disturbed and this candidate has to be appointed based on the total weightage marks.
37. Thus, the above illustration amply demonstrates that giving retrospective effect to relaxation for the TET held in the year 2012 will only result in complete chaos and the same will materially affect the candidates who have already been appointed. It is because of these reasons, as has been contended by the learned Advocate General, the Government has not extended the benefit to the candidates who had appeared in the TET held in the year 2012. Thus, I find that there is no discrimination. Above all, the candidates who have been already appointed are not parties to these writ petitions.
38. So far as the TET Examinations held in August, 2013 are concerned, no candidate has been appointed based on the same so far. But the candidates who have already been declared as passed based on 60% of marks and above are waiting for the selection process. As I have already extracted, in the common counter, the Government has stated that the process of selection has not yet commenced for the current year. I have already held that giving retrospective effect to relaxation to the examination held in August, 2013, will not in any manner affect the interest of those candidates who had secured 60% of marks and above. In view of this factual background, the candidates who had appeared and failed in the TET Examinations held in the year 2012 cannot have any grievance as they cannot be equated with the candidates who have appeared in the 2013 examinations.
39. In view of the foregoing discussions, I hold that G.O.Ms.No.25, School Education (TRB) Department, dated 06.02.2014 cannot be extended retrospectively to the TET examinations held in the year 2012.
Challenge to G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 as amended by G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014
40. As we have already seen, after having examined the recommendations of the Committee, the Government issued G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 directing the TRB prescribing the modalities by giving weightage of marks for selection and appointment of Secondary Grade Teachers and Graduate Assistants from out of the candidates who have passed the TET. In brief, the modalities are as follows:-
(i) Selection for both Secondary Grade Teachers and Graduate Assistants shall be on the basis of the weightage marks.
(ii) For Secondary Grade Teachers, weightage marks shall be given for the academic qualification viz., Higher Secondary Examination, D.T.Ed., or D.E.Ed., Examination and TET Examination.
(iii) For Graduate Assistants , weightage marks shall be given for the academic qualification viz., Higher Secondary Examination, Degree Examination, B.Ed., Examination and TET Examination.
(iv) For both Secondary Grade Teachers and Graduate Assistants the total weightage marks shall be 100.
(v) For Secondary Grade Teachers, out of 100 weightage marks, 15 shall be for Higher Secondary Exam, 25 for D.T.Ed., or D.E.Ed., Exam and 60 for TET.
(vi) For Graduate Assistants, out of 100 weightage marks, 10 shall be for Higher Secondary Exam, 15 for Degree Exam, 15 for B.Ed., Exam, and 60 for TET.
(vii) The weightage marks shall be awarded following the Grading System as detailed in para 7 of G.O.Ms.No.252 dated 05.10.2012 as amended by G.O.Ms.No.29 dated 14.02.2014.
41. The petitioners are not aggrieved by selection based on weightage marks as detailed in sub paras (i) to (vi) above. They are aggrieved by the Grading System adopted [vide sub para (vii) above] in the Government Orders.
42. Paragraph 7 of the Government is challenged in W.P.No.7146 of 2014. In some of the writ petitions, the modalities prescribed for awarding of weightage marks for TNTET alone is challenged. In few other writ petitions, amendment made to G.O.Ms.No.252, dated 05.10.2012 by means of Order in G.O.Ms.No.29, dated 14.02.2014 is also challenged. Thus, in all, paragraph 7 of G.O.Ms.No.252, dated 05.10.2012 as amended by G.O.Ms.No.29 dated 14.02.2014 prescribing the Grading System for awarding weightage marks is under challenge in these writ petitions.
43.1 Now, let us have a look into the modalities prescribed in G.O.Ms.No.252, dated 05.10.2012. Para 7 of the Government Order reads as follows:-
7. Tamil Nadu Teacher Eligibility Test Weightage for Secondary Grade Teachers:
(a) There shall be 100 marks in total as full marks.
(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
(c) Marks shall be given for item (i), (ii) and (iii) of clause (b), in the manner mentioned hereunder
(i) For Higher Secondary Exam (12th Standard)
Examination passed
Weightage of Marks
90% and above
80% and above but below 90%
70% and above but below 80%
60% and above but below 70%
50% and above but below 60%
Below 50%
12th Std.
15
15
12
9
6
3
0
(ii) For DTEd/DEEd.
Examination passed
Weightage of Marks
70% and above
50% and above but below 70%
DTEd/DEEd
25
25
20
(iii) For TNTET
Examination passed
Weightage of Marks
90% and above
80% and above but below 90%
70% and above but below 80%
60% and above but below 70%
TNTET
60
60
54
48
42
Tamil Nadu Teacher Eligibility Test Weightage for Graduate Assistants:
(a) There shall be 100 marks in total as full marks.
(b) The computation of 100 marks will be in the following manner:
(i) Higher Secondary Exam : 10 marks
(ii) Degree Exam : 15 marks
(iii) B.Ed. Exam : 15 marks
(iv) Teacher Eligibility Test : 60 marks
(c) Marks shall be given for item (i), (ii), (iii) and (iv) of clause (b), in the manner mentioned hereunder:
(i) For Higher Secondary Exam (12th Standard)
Examination passed
Weightage of Marks
90% and above
80% and above but below 90%
70% and above but below 80%
60% and above but below 70%
50% and above but below 60%
Below 50%
12th Std.
10
10
8
6
4
2
0
(ii) For Degree and B.Ed.
Examination passed
Weightage of Marks
70% and above
50% and above but below 70%
Below 50%
Degree
15
15
12
10
B.Ed.
15
15
12
-
(iii) For TNTET Examination passed Weightage of Marks 90% and above 80% and above but below 90% 70% and above but below 80% 60% and above but below 70% TNTET After computation of marks, based on the above selection criteria, if more than one candidate have the same mark, then preference in selection will be based on the date of birth (the older person will be given priority)"
43.2. Para 3 of G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014 reads as follows:-
"3. Consequent to the orders issued in G.O. third read above, in partial modification of the orders issued in the G.O. first read above , the weightage of marks for the Tamil Nadu Teacher Eligibility Test for Secondary Grade Teachers and Graduate Assistants shall be as indicated below:-
Examination passed Weightage of Marks 90% and above 80% and above but below 90% 70% and above but below 80% 60% and above but below 70% 55% and above but below 60% TNTET.
44. As I have already stated, the petitioners are aggrieved by the above modality viz., awarding of weightage marks by grading system. According to them, the grading system [slab system] adopted in G.O.Ms.No.252, dated 05.10.2012 as amended in G.O.Ms.No.29, dated 14.02.2014 is unconstitutional.
45. The common grounds raised in all these writ petitions can be summarised as follows:
(i) The impugned Government Order treats more meritorious candidates on par with less meritorious candidates, in as much as, all the candidates in one slab are placed together and awarded equal marks and thus, less meritorious candidates get priority over the more meritorious candidates like the petitioners.
(ii) The impugned Government Order defeats the very purpose of TET Examination in as much as the raw marks of the candidates are given a go-by and the individuals who have got different marks are grouped together and treated as equals.
(iii) The impugned Government Order is arbitrary in as much as it ignores the fact that every mark in the TET is obtained by the candidates after hard preparation for the said examination. By placing several individuals who got different marks in the same slab, the merit and ability of the candidates in the examination is given a go-by.
(iv) Though the object of The Right of Children to Free and Compulsory Education Act, 2009 is to ensure merit so that the students are taught by meritorious teachers, by selecting the candidates following the slab system under the impugned Government Order, the merit has been diluted. This will amount to diluting of the very object of the Act.
(v) Paragraph 7 of G.O.Ms.No.252, dated 05.10.2012 offends Article 14 and Article 16 of the Constitution of India.
46. In the counter affidavits filed by the Government, inter alia it is stated:
(i) That in order to provide quality education to the children in the State of Tamil Nadu and considering the need to fill up the vacancies for the post of Teachers, the committee in its meeting held on 14.09.2012 and 24.09.2012 took into consideration the selection methodology followed by the Government of Andhra Pradesh and West Bengal and arrived at the criteria of weightage of marks and recommended the same to the Government. The Government of Andhra Pradesh followed a system by which 20% weightage is given to Andhra Pradesh Teacher Eligibility Test (APTET) and 80% weightage for written test in Teachers Recruitment Test (TRT) for drawing up selection list of Teachers to be recruited in Government service.
(ii) The State of West Bengal has followed the system of giving weightage for academic qualification starting from Madhyamik pass, Higher Secondary pass, Teacher Training, TET and interview.
(iii) Considering the methodologies adopted by the above said two States, the Committee recommended to the Government to adopt the modalities by giving weightage of marks for their academic qualification in XII Standard,D.T.Ed.,/D.E.Ed., Degree, and B.Ed., along with TET for selection and appointment of Secondary Grade Teachers and Graduate Assistants respectively. The Government after examining the recommendations of the committee issued orders in G.O.Ms.252, School Education Department dated 05.10.2012. The Government had, in fact, carefully considered the system of assigning weightage for selecting candidates for appointment in Government service from among the candidates who have passed the Teacher Eligibility Test. In the interest of selecting the best and most meritorious candidates, the 100 marks were distributed between TET marks, degree marks, B.Ed. Marks and Higher Secondary marks. In the case of Graduate Assistants, 100 marks is computed as 60 marks for TET, 15 marks each for degree and B.Ed., and 10 marks for Higher Secondary. The marks so computed were further distributed by assigning weightage on the slab fixed for the respective categories viz., TET, Degree, B.Ed., and Higher Secondary marks. By allotting 60 marks out of the 100 marks for TET, it is ensured that the candidates who have obtained higher marks in TET will stand a better chance of getting selected in Government service.
(iv) In respect of G.O.Ms.No.29, it is stated in the counter that consequent upon the orders issued in G.O.Ms.No.25 dated 06.02.2014 the weightage of marks for TET, Secondary Grade Teachers and Graduate Assistants was ordered in G.O.Ms.No.29, dated 14.02.2014 providing for weightage of marks for even those candidates belonging to the specified reserved cagegories who secured 55% and above but below 60% in the Teacher Eligibility Test Examination held in the year 2013 and all future TET Examinations. It is also contended that there is no violation of either Articles 14 and 16 of the Constitution of India.
47. The learned senior counsel Mr.C.Selvaraj, leading the team of lawyers appearing for the petitioners, would submit that when the actual marks obtained by the candidates are reduced into percentage, that by itself will reflect the mertis of the candidates and there is no need for the Government to adopt the slab system. The learned senior counsel would further submit that by adopting the slab system, the candidates who have secured higher marks have been discriminated as they have been treated on par with the candidates who are less meritorious.
48. In order to demonstrate the above anomaly, the learned senior counsel would refer to the marks secured by the petitioner in W.P.No.5590 of 2014 in the TET. She has secured 104 marks out of 150 marks in the TET which is equivalent to 69.33%. And as per the slab system she will get only 42 weightage marks for TET. The learned senior counsel would further submit that a candidate who had secured 105 marks in the TET [70%] will get 48 weightage marks as per the slab system. Similarly a candidate who has secured only 90 marks (60%) will get 42 weightage marks as per the slab system. For easy understanding let us tabulate the same as follows:-
Sl.No.
Marks secured in TET (out of 150) Marks in Per Centage (%) Weightage marks as per Slab System 70.00 % 69.33 % 60.00 %
49. The learned senior counsel would point out, as illustrated above, the writ petitioner in W.P.No.5590 of 2014 who has secured 104 marks in the TET is equated to the candidate who has secured hardly 90 marks. Thus, according to him, the two unequals are treated as though they are equals which offends Article 14 as well as Article 16 of The Constitution of India. Similarly, he would point out that the said writ petitioner who had secured 104 marks gets only 42 weightage marks as per the grading system; whereas the candidate who has secured 105 marks gets 48 weightage marks as per the grading system, thus, giving a vast disproportionate variation. Here, the writ petitioner's percentage of mark is 69.33%; whereas the other candidate who has secured 105 marks would get 70.00%. The difference is hardly 0.67%. But, the difference between the petitioner and the other candidate as per the grading is 6-weightage marks. Thus, according to the learned senior counsel, the petitioner with 104 marks and the other candidate with 105 marks, who are more or less equal, are treated unequally and thus, it again goes to demonstrate that the system adopted under the impugned Government Order violates Articles 14 and 16(1) of the Constitution of India. The learned counsel would further submit that there is no scientific rationale behind the grading system adopted. Instead, according to him, the raw marks of the candidates should have been taken as the basis for selection.
50. Per contra, the learned Advocate General took much pains in an attempt to demonstrate that there is no violation of either Article 14 or Article 16(12) of the Constitution of India. According to him, grading of marks is a well accepted system and the same has been adopted in various institutions. He would further submit that such system has been adopted by the State of West Bengal and State of Andhra Pradesh. Only taking clue from the same, the committee adopted this method of grading and based on the said recommendation of the committee, the Government of Tamil Nadu has issued the impugned Government Order. The learned Advocate General would further submit that the grading system has been affirmed by a Division Bench of this Court in P.Arunkumar v. State of Tamil Nadu, 2007 Writ LR 965. The learned Advocate General would contend that it may be true that some other method may be suggested to be a more viable method, but, on that score, the present method prescribed in the impugned Government Order cannot be found fault with. If there are any anomalies noted in course of implementation of the system, it will be, in due course, rectified for the future selection process. He would further submit that unless it is so established to the satisfaction of this court, that the present grading system materially offends Article 14 and 16(1) of The Constitution of India, it is not at all possible to interfere with the same on the ground that there are other better methods available. He would further submit that since prescribing the method is a policy decision of the Government, this court should not interfere with the same.
51. I have carefully considered the said submissions. At the out set, we have to make one thing clear, i.e., the raw marks obtained by the candidates in the qualifying examinations such as Higher Secondary, Degree, B.Ed., D.T.Ed., / D.E.Ed., and TET cannot be straight away clubbed and selection made on the basis of the said raw marks because, different weightage marks are given for these qualifying examinations and TET respectively. This is a policy decision of the Government. Therefore, for awarding weightage marks as per the ratio prescribed, some system/method which will scrupulously weigh the inter se merits of the candidates, should be adopted. According to the Government, as per the Government Order, the grading system has been adopted as it is very reasonable.
52. Before proceeding further, let us have a look into the various systems available such as, moderation, scaling, grading, etc. to have a clear understanding as to whether the system prescribed in the impugned Government Order is in tune with Article 14 and 16 of The Constitution of India.
53. The learned counsel, on either side, placed reliance on the judgement of the Hon'ble Supreme Court in Sanjay Singh and another v. U.P. Public Service Commission, Allahabad and another [AIR 2007 SC 950]. In that case, the Hon'ble Supreme Court was mainly concerned with the scaling system adopted by the U.P. Public Service Commission. While explaining as to what do we mean by scaling and moderation, in para 23 of the judgement, the Hon'ble Supreme Court has very elaborately dealt with the same in the following manner:-
23. When a large number of candidates appear for an examination, it is necessary to have uniformity and consistency in valuation of the answer- scripts. Where the number of candidates taking the examination are limited and only one examiner (preferably the paper-setter himself) evaluates the answer-scripts, it is to be assumed that there will be uniformity in the valuation. But where a large number of candidates take the examination, it will not be possible to get all the answer-scripts evaluated by the same examiner. It, therefore, becomes necessary to distribute the answer-scripts among several examiners for valuation with the paper-setter (or other senior person) acting as the Head Examiner. When more than one examiner evaluate the answer-scripts relating to a subject, the subjectivity of the respective examiner will creep into the marks awarded by him to the answer- scripts allotted to him for valuation. Each examiner will apply his own yardstick to assess the answer-scripts. Inevitably therefore, even when experienced examiners receive equal batches of answer scripts, there is difference in average marks and the range of marks awarded, thereby affecting the merit of individual candidates. This apart, there is 'Hawk- Dove' effect. Some examiners are liberal in valuation and tend to award more marks. Some examiners are strict and tend to give less marks. Some may be moderate and balanced in awarding marks. Even among those who are liberal or those who are strict, there may be variance in the degree of strictness or liberality. This means that if the same answer-script is given to different examiners, there is all likelihood of different marks being assigned. If a very well written answer-script goes to a strict examiner and a mediocre answer-script goes to a liberal examiner, the mediocre answer-script may be awarded more marks than the excellent answer-script. In other words, there is 'reduced valuation' by a strict examiner and 'enhanced valuation' by a liberal examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'. Therefore, there is a need to evolve a procedure to ensure uniformity inter se the Examiners so that the effect of 'examiner subjectivity' or 'examiner variability' is minimised. The procedure adopted to reduce examiner subjectivity or variability is known as moderation.
54. In paragraph 24 of the above said judgement, the Hon'ble Supreme Court explains as to what is scaling which reads as follows:-
24. In the Judicial Service Examination, the candidates were required to take the examination in respect of all the five subjects and the candidates did not have any option in regard to the subjects. In such a situation, moderation appears to be an ideal solution. But there are examinations which have a competitive situation where candidates have the option of selecting one or few among a variety of heterogenous subjects and the number of students taking different options also vary and it becomes necessary to prepare a common merit list in respect of such candidates. Let us assume that some candidates take Mathematics as an optional subject and some take English as the optional subject. It is well recognised that marks of 70 out of 100 in Mathematics do not mean the same thing as 70 out of 100 in English. In English 70 out of 100 may indicate an outstanding student whereas in Mathematics, 70 out of 100 may merely indicate an average student. Some optional subjects may be very easy, when compared to others, resulting in wide disparity in the marks secured by equally capable students. In such a situation, candidates who have opted for the easier subjects may steal an advantage over those who opted for difficult subjects. There is another possibility. The paper-setters in regard to some optional subjects may set questions which are comparatively easier to answer when compared to some paper-setters in other subjects who set tougher questions which are difficult to answer. This may happen when for example, in Civil Service Examination, where Physics and Chemistry are optional papers, Examiner A sets a paper in Physics appropriate to degree level and Examiner B sets a paper in Chemistry appropriate for matriculate level. In view of these peculiarities, there is a need to bring the assessment or valuation to a common scale so that the inter se merit of candidates who have opted for different subjects, can be ascertained. The moderation procedure referred to in the earlier para will solve only the problem of examiner variability, where the examiners are many, but valuation of answer-scripts is in respect of a single subject. Moderation is no answer where the problem is to find inter se merit across several subjects, that is, where candidates take examination in different subjects. To solve the problem of inter se merit across different subjects, statistical experts have evolved a method known as scaling, that is creation of scaled score. Scaling places the scores from different tests or test forms on to a common scale. There are different methods of statistical scoring. Standard score method, linear standard score method, normalised equipercentile method are some of the recognised methods for scaling.
55. In para 25 of the judgement, inter alia, the Hon'ble Supreme Court has held as follows:-
25. ... ... ... ... Scaling is the process which brings the mark awarded by Examiner 'A' in regard to Geometry scale and the mark awarded by Examiner 'B' in regard to History scale, to a common scale. Scaling is the exercise of putting the marks which are the results of different scales adopted in different subjects by different examiners into a common scale so as to permit comparison of inter se merit.
56. As we have seen, in the above judgement, moderation is the method which can be adopted to reduce examiner subjectivity or examiner variability. This method of moderation may be necessary only in a case, where, in respect of the same subject valuation is conducted by different examiners while the pattern of examination is descriptive in nature. In other words, when the examination is descriptive in nature, there may be difference in the standard of valuation among various examiners and it is only to bring about uniformity in order to test the inter se merits of the candidates, the method of moderation is followed. Admittedly, in the instant cases, the method adopted is not moderation. Here, moderation method is also not necessary since the pattern of TET Examination is multiple choice questions where there is absolutely no chance for examiners subjectivity or examiners variability. Therefore, moderation method which has been elaborately dealt with in the above said judgement of the Hon'ble Supreme Court has got nothing to do with the instant cases.
57. Now, turning to the scaling method, in the above said judgement, the the Hon'ble Supreme Court has categorically held that to solve the problem of inter se merit across different subjects, statistical experts have evolved a method known as scaling, that is creation of scaled score. Scaling method can be adopted only when the students are made to write examinations in different subjects at their option though the ultimate marks secured by the candidates will be the basis for selection.
58. For example, a candidate who has taken Mathematics can easily secure 100 out of 100 whereas a candidate who has taken English as his subject will find it difficult to get even 90 marks. If the candidate who has taken Mathematics as his subject and the candidate who has taken English as his subject are put in the very same scale, certainly, the candidate who has taken Mathematics as his subject will steal the entire chance. Similarly, the standard of question papers in various subjects may make the difference as the question paper in one subject may be easy whereas in the other it may be tough. In order to minimise the above anomaly, the method of scaling is adopted. Here in the instant cases, the method adopted is not scaling also and therefore, I need not elaborate various systems of scaling.
59. In the instant cases, the learned Advocate General would fairly submit that the method directed to be adopted under the impugned Government Order is neither moderation nor scaling , but it is only "grading".
60. In Sanjay Singh's case cited supra, the Hon'ble Supreme Court examined the reasons as to why the UP Public Service Commission adopted the scaling method instead of moderation. It was pointed out before the Hon'ble Supreme Court by the UP Public Service Commission that anomalies caused on account of examiner variability was engaging its attention and it was found that a candidate's score may depend upon the chance factor of whether his answers script is assessed by a lenient or a strict examiner; and that in an extreme case, while a candidate of a given merit may get a First Class/Division, another student of equal merit may be declared to have failed. Therefore, the Commission constituted a Committee to carry out an indepth study into the matter and suggest appropriate means to ensure that the evaluation was on more equitable basis.
61. According to the UP Public Service Commission, after making a thorough study of the situation the Committee submitted its report suggesting statistical scaling system as the viable method. It was also contended before the Hon'ble Supreme Court that the said scaling method was rational, scientific and reasonable and would lead to assessment of inter se merit of the candidates in a just and proper manner. The Hon'ble Supreme Court went on to examine whether the reasons stated by the Commission for adopting the scaling method were rational, scientific and reasonable and the same would lead to assessment of inter se merit of the candidates. After having examined the same, the Hon'ble Supreme Court held in para 36 as follows:-
36. ... ... ... The material placed does not disclose that the Commission or its expert committee have kept these factors in view in determining the system of scaling. We have already demonstrated the anomalies/absurdities arising from the scaling system used. The Commission will have to identify a suitable system of evaluation, if necessary by appointing another Committee of Experts. Till such new system is in place, the Commission may follow the moderation system set out in Para 23 above with appropriate modifications. [Emphasis supplied]
62. From the above judgement, it is crystal clear that when the examining body decides to convert the actual marks secured by the candidates in the written examination into a scaled mark, the reasons for adopting such method of moderation or scaling should be stated. The Hon'ble Supreme Court has further held that the said system adopted should achieve the object of examining the inter se merits of the candidates leaving no anomaly. Applying the said principles to the facts of the instant cases, let us now have a look into the reasons, if any, stated by the respondent Government for adopting the grading system to award weightage marks for the qualifying examinations and the TET.
63. In the counter filed by the Government, it is stated that in order to evolve the methodology for selecting the candidates, a committee was constituted and the committee held its meetings on 14.09.2012 and 24.09.2012. In the meeting of the Committee held on 14.09.2012, the following points were taken up for consideration [vide page 41 of the typed set of papers filed by the Government]:-
a. Regarding postponing the examination to December.
b. For fixing additional Criteria.
64. A further perusal of the minutes of the first meeting of the Committee would go to show that there was no discussion at all on 14.09.2012 regarding the methodology to be adopted for awarding of weightage marks. The next meeting of the Committee was held on 24.09.2012. The minutes of the said meeting has been filed by way of typed set [vide page 42 of the typed set of papers filed by the Government]. In the said meeting , it was minuted as follows:-
After the briefing by the Principal Secretary, School Education Department about the present position and the order issued, the Committee deliberated about the methodologies to be adopted for fixing additional criteria for selecting candidates for appointment from among those who have cleared the Teacher Eligibility Test. The Committee considered the selection methodology based on the weightage followed by Government of Andra Pradesh and Government of West Bengal. After which the Committee unanimously decided to recommend to the Government to adopt the modalities by giving weightage of marks for their academic qualification in 12th Standard, DTEd./DEEd. and TET for selection of Secondary Grade Teachers and 12th Standard, Degree, B.Ed., and TET for selection of Graduate Assistants as follows:
... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
65. A close perusal of the proceedings of the Committee would go to show that the Committee did not consider the merits and demerits of the grading system adopted. The Committee had only considered the methodology followed by the Government of Andhra Pradesh and Government of West Bengal and simply recommended to adopt the same. The Government also, before issuing G.O.Ms.252, did not examine as to whether the said method of grading is reasonable and whether the same would achieve the object, if any. As has been held by the Hon'ble Supreme Court in Sanjay Singh's case cited supra, I have to necessarily hold that without having any object to be achieved and without examining the merits and demerits of the grading system, the Committee had, in a mechanical fashion, recommended the method of grading simply because such method had been adopted by the States of Andhra Pradesh and West Bengal. The Government of Tamil Nadu also, in turn, had failed to examine the merits and demerits and reasonableness of such gradation and the object, if any, sought to be achieved. In such view of the matter, I hold that there is a total non application of mind on the part of the Government while issuing the impugned Government Orders.
66. Nextly, let us move on to the question as to whether the grading system adopted under the impugned Government Orders is rational, scientific and reasonable. In this regard, the learned Advocate General would submit that grading has been accepted to be a proper mode of assessing the inter se merits of the candidates by a Division Bench of this Court in P.Arunkumar v. State of Tamil Nadu, 2007 Writ LR 965. That was a case relating to admission of students in the I year M.B.B.S. Course by a private minority medical college. The process of selection and the procedure adopted by the college were put under challenge. One of the main grounds raised by the writ petitioner in that case was that the conversion of marks into grades under stanine grading method is not transparent and, therefore, selection made on the basis of the marks awarded under stanine grading system should be deemed to be not on merits.
67. Factually, in that case, the examination was conducted by the college in five papers each consisting of 60 marks. The questions were of objective type. Total marks for all the five papers put together was 300. The Division Bench found that stanine method of grading has been adopted in many universities across the world. Thus, stanine method has been universally accepted. The Division Bench has explained as to what the stanine method is, which reads as follows:-
The name stanine is simply a derivation of the term "star scale. Stanines are normalized standard scores, ranging in value from distribution has a mean of 5 and a standard deviation of 2. Stanines 2 are equal to a = standard deviation unit in width, with the middle stanine defined as the range of scores < of a standard deviation below to < of deviation above the mean. Stanines can, more easily, be thought of groupings of percentile ranks (see below), and like percentile ranks xxx status or relative rank of a score within a particular group. Due coarseness, stanines are less precise indicators than percentile ran times may be misleading (e.g., similar PR's can be grouped into different (e.g., PR=23 and PR=24) and dissimilar PR's can be grouped into stanine (e.g., PR=24 and PR=40)). However, some find that using stanine to minimize the apparent importance of minor score fluctuations, and helpful in the determination of areas of strength and weakness. Standard Score, Status Scores, Percentile Rank, Arithmetic Mean, and Deviation. Eventually, the Division Bench held in paragraphs 42 and 43 as follows:-
42. Therefore, it cannot be said that the Stanine Grade System is unknown in the method of selection for the reason that it is complicated and requires mathematically trained mind to understand. That itself cannot be a ground to brush aside the said method of selection, which can never be stated to be either prejudicial or discriminatory between the candidates.
43. It is not even the case of the appellants that this system amounts to mal-administration. There cannot be any imputation on the first respondent Institution in following the said system, which is certainly complicated and unique. These are the matters which are concerning the specialised mind and so long as they do not infringe the triple tests of selection, viz., merit, transparency and non-exploitative, one cannot say that the system should be ignored by lightly setting aside the importance of the same. Especially, as narrated above, the system has been used world wide and even in respect of the first respondent Institution, it is in un-interrupted use for the past five decades without any complaints.
68. Making heavy reliance upon the same, the learned Advocate General would submit that in the instant case also, since grading has been adopted for awarding weightage marks, the same should be approved. But, the said argument does not persuade me at all for many reasons. First of all, as has been held by the Division Bench, stanine grading system is a well established method which has received the international approval in the field of statistics. The Division Bench also found that there were well established grounds necessitating using the said method. Therefore, the Division Bench in P.Arunkumar's case [cited supra] upheld the same. But, in the cases on hand, it is not as though any method which has received approval in the field of statistics has been adopted by the Government to grade the marks of the candidates. The learned Advocate General would fairly concede that in stanines method, there is a standard formula. Applying the said formula, raw marks secured by the candidates are converted into graded marks. Like the stanines method, there are many other methods approved in the field of statistics. But, no such approved method has been followed in the impugned Government Order to fix the grading methodology. Thus, the grading method prescribed in the impugned Government Order has got no scientific background so as to approve the same. The experts in the field of statistics were neither included in the Committee nor any opinion was obtained from such experts. The said Committee cannot be stated to be an expert body. The report of the Committee does not reflect any discussion on the necessity to prescribe this particular grading system and as to why this grading methodology was considered and with what object. In a blind manner, I regret to say, the Committee has evolved its own method simply because similar methods have been adopted by the Government of Andhra Pradesh and the Government of West Bengal. In such view of the matter, I hold that the judgement of the Division Bench in Arunkumar's case does not in any manner come to the rescue of the impugned Government Orders.
69. Now, once again turning to the judgement of the Hon'ble Supreme Court in Sanjay Singh's case, the Hon'ble Supreme Court had occasion to consider the earlier judgement in S.C.Dixit [AIR 2004 SC 163]. In S.C.Dixit's case, the validity of scaling was considered. The Hon'ble Supreme Court in S.C.Dixit's case had ultimately upheld the scaling on two conclusions namely (i) that the scaling formula was adopted by the Commission after an expert study and in such matters, court will not interfere unless it is proved to be arbitrary and unreasonable; and (ii) the scaling system adopted by the Commission eliminated the inconsistency arising on account of examiner variability. The Hon'ble Supreme Court further held in Dixit's case that as scaling was a recognized method to bring raw marks in different subjects to a common scale, such scaling system was introduced after a scientific study by experts.
70. But, in Sanjay Singh's case, the Hon'ble Supreme Court did not agree with S.C.Dixit's case and, therefore, the Hon'ble Supreme Court overruled the S.C.Dixit's case. In para 37 of the judgement in Sanjay Singh's case, the Hon'ble Supreme Court has ultimately held as follows:-
37. ... ... ... ... But we have found after an examination of the manner in which scaling system has been introduced and the effect thereof on the present examination, that the system is not suitable. We have also concluded that there was no proper or adequate study before introduction of scaling and the scaling system which is primarily intended for preparing a common merit list in regard to candidates who take examinations in different optional subjects, has been inappropriately and mechanically applied to a situation where the need is to eliminate examiner variability on account of strict/liberal valuation. We have found that the scaling system adopted by the Commission leads to irrational results, and does not offer a solution for examiner variability arising from strict/liberal examiners. Therefore, it can be said that neither of the two assumptions made in S.C. Dixit can validly continue to apply to the type of examination with which we are concerned. We are therefore of the view that the approval of the scaling system in S.C. Dixit is no longer valid.
71. From the above observations and conclusions arrived at by the Hon'ble Supreme Court in Sanjay Singh's case, it is crystal clear that before introducing any system to convert the raw marks into graded marks or scaled marks, or moderated marks, there has to be a scientific study conducted by the experts to evolve a system by which inconsistency or variability or anomaly, if any, should be minimised. In the cases on hand, as we have already observed, there was no such scientific study at all conducted by any expert body before introducing this particular grading system. It is also not stated as to what is the object sought to be achieved by introducing this system. It is not even identified as to what are the inconsistencies, anomalies, etc., which would be minimised by this system.
72. The Government also did not consider all these aspects before accepting the report of the committee. As has been held in Sanjay Singh's case, since there is no scientific study for prescribing this particular grading method and as to whether the same would minimise hardship or anomaly or inconsistency, if any, the impugned Government Order prescribing the present grading method cannot be accepted. The Division Bench in P.Arunkumar's case found that grading system was absolutely necessary to achieve certain identified objects, and the grading methodology adopted was also based on the stanines grading methodology approved by the world community. Since in the cases on hand, this particular grading methodology has been adopted by the Government without there being any object sought to be achieved, without there being any scientific study and without there being any accepted method, it has to be necessarily held that the grading methodology stipulated in the impugned Government Order suffers from arbitrary exercise of power of the Government.
73. Let us now examine as to whether the grading methodology prescribed in the impugned Government Order would in any manner enhance the process of selection to assess the inter se merits of the candidates. As we have already discussed, in paragraph No.48 of this order, a candidate who has secured 69.33% in TET gets 42 weightage marks as per the slab and similarly, the candidate who has secured only 60% of marks also gets the same 42 weightage marks. Likewise, a candidate who has secured 70% of marks gets 48 weightage marks; whereas the candidate who has secured 69.33% of marks gets 42 weightage marks. This in my considered opinion is a big anomaly. Thus, this system does not enhance perfection in assessing the inter se merit of the candidates in any manner.
74. But, the learned Advocate General would submit that in P.Arunkumar's case cited supra, the Division Bench has held that there is no violation of Article 14 of the Constitution of India by the system of grading. But a careful reading of the judgement would show that the Division Bench found that there was necessity for converting the raw marks into graded marks and also grading system was founded on a well accepted formula known as Stanine Formula . It was in those circumstances, the Division Bench held that there was no violation of Article 14 of the Constitution. But, in the instant cases, since we have found that there is no object sought to be achieved by this particular system of grading and since it is not made on the basis of any accepted formula by making a thorough scientific study and since the system adopted under the impugned Government Order is demonstrably irrational and unreasonable as it creates a lot of anomalies as the same and treats equals as unequals, and vice versa, I have to necessarily hold that the grading system adopted by the Government in the impugned Government Order violates Article 14 and 16 of The Constitution.
75. The learned senior counsel Mr.C.Selvaraj, appearing for the petitioners , in this regard, would rely upon a judgement of the Hon'ble Supreme Court in Raj Kumar and others v. Shakti Raj and others, (1997) 9 SCC 527 where the Hon'ble Supreme Court was invited to examine a similar issue. In Para 13 of the judgement, the Hon'ble Supreme Court has held as follows:-
13. The examination papers were of common standard and all were required to write the same examination. Under those circumstances, the appropriate procedure should have been to apply the marks as secured by them in the written examination plus the marks awardable to the respective candidates either on the academic qualifications or on the sports qualification or experience qualification or extra- curricular qualification or the marks actually secured in the via voce and to pool them as total marks secured by each candidates and the merit list should have been prepared in the light of the Rules. On the basis of the aggregate marks secured by candidates, select list should have been prepared and recommendation made to enable them to appear in accordance with the prescribed Rules: including the rule of reservation applicable to various categories mentioned in the Rules and allotment made to the respective circles as envisaged under 1955 Rules and all other rules issued in that behalf.
76. The above said observation of the Hon'ble Supreme Court, in my considered opinion, cannot be taken as the law declared by the Hon'ble Supreme Court or principle enunciated. It is only a mere observation made depending upon the facts and circumstances of the case before the Hon'ble Supreme Court. It cannot be said as a universal rule that in all situations, the raw marks secured by the candidates in the written examination should alone be the basis for the selection.
77. The learned Advocate General would nextly contend that Article 14 is the genus and Article 16 is the species. Therefore, according to him, if once it is held that there is no violation of Article 14, necessarily it has to held that Article 16(1) of the Constitution is also not violated. In other words, according to him, for the purpose of public employment, Article 14 and Article 16 of the Constitution are inseparable twins. In this regard, the learned Advocate General would make reliance on the judgement of the Hon'ble Supreme Court in Ajit Singh and others (II) v. State of Punjab and others, (1999) 7 SCC 209. The learned Advocate General would further submit that since the Division Bench of this Court in P.Arunkumar's case has held that grading system does not violate Article 14 , applying the same to the instant cases, it should be held that neither Article 14 nor Article 16(1) is violated.
78. In this regard, it may be seen that the law regarding inter-relationship between Article 14 and Article 16 has been reiterated in Ajit Singh's case in para 22 as follows:-
22. ... ... ... ... Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State". It has been held repeatedly by this Court that sub-clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said sub- clause particularizes the generality in Article 14 and identifies, in a constitutional sense "equality opportunity" in matters of employment and appointment to any office under the State. The word 'employment' being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment.
79. Regarding the legal proposition as pointed out by the learned Advocate General, there is no controversy raised by any of the counsel before this court. The law is well settled that Articles 14 and 16(1) are closely connected and that Article 16(1) is a facet of Article 14. It is also too well settled that there is no compartmentalisation of a particular right under a particular Article in Part-III of The Constitution of India. In other words, the theory of exclusivity which was propounded in A.K.Goplan v. The State of Madras, AIR 1950 SC 27 was overruled in R.C.Cooper v. Union of India, AIR 1970 SC 564. Therefore, challenge to any particular provision of a law can be made either on the touch-stone of Article 14 or on the touch-stone of Article 16(1) or on both. Apart from the grounds upon which such challenge is made as against Article 14, on some different grounds or additional grounds, there can be a challenge as against Article 16(1) of the Constitution also. But, in the instant cases, the said debate is not required inasmuch as I have already concluded that the impugned Government Order prescribing the particular method of gradation of marks violates Article 14 and, therefore, I have no difficulty in holding that it violates Article 16 also.
80.1. The learned Advocate General would nextly rely on a judgement of a Division Bench of the Delhi High Court in Independent Schools Federation of India v. Central Board of Secondary Education and another [LPA No.563 of 2011 dated 11.08.2011]. That was a case where challenge was made to a circular issued by the CBSE introducing examination reforms thereby directing the schools to follow Grading as per continuous and comprehensive evaluation system. The learned single Judge, before whom the writ petition came up, held the view that an expert body like CBSE had taken the decision by consulting all stake holders and such policy decision could not be interfered with on the ground that a better, fairer or wider alternative policy is available. When that was challenged before the Division Bench, the division Bench went into the object of introducing the grading system. In para 9, the Division Bench has elaborately held as to how, the gradation would be helpful to the learners and parents who are the primary stakeholders of school education. It was stated by the CBSE before the Division Bench as follows:-
a) It will reduce stress and anxiety which often builds up during and after the examination which could have an adverse impact on young students especially in the age group of 13-15 years.
b) It will reduce the dropout rate as there will be less fear and anxiety related to performance.
c) In the past there was practice to often finish the entire syllabus much before time and follow it up with Pre-Board(s) and study leave.
80.2. The Division Bench has found that primary function of Grading is to communicate effectively to a variety of stakeholders the degree of achievement of an individual student. The grading of student would also take away the frightening judgmental quality of marks obtained in a test leading to a stress free and joyful learning environment in the school. This will also enable maintaining a meaningful continuity in the assessment pattern from the primary level to the secondary level and also in ensuring a basic uniformity in the schools.
80.3. The Division Bench has further found out the following advantages of the said system:-
It will minimize misclassification of students on the basis of marks.
It will determine unhealthy cut-throat competition among high achievers.
It will reduce societal pressure and will provide the learner with more flexibility.
It will lead to a focus on a better learning environment. Having considered the above aspects, more particularly, the advantages of the system, in para 12, the Division Bench has held as follows:-
12. Thus scrutinized, it is evident that the CBSE has kept in view the interest of the young students and taken a policy decision to introduce a different evaluation system. What is urged before us is that such a system is arbitrary, unreasonable and irrational as it corrodes the marrows of education by annulling the earlier system which provided for competing in the board examination and obtaining marks. 80.4 In para 13, the Division Bench of the Delhi High Court has ultimately held as follows:-
13. Though the learned counsel for the appellant would criticize such norms on certain grounds which we have indicated hereinbefore yet this Court is not an expert to judge the decision of the CBSE that has been arrived at after undertaking detailed exercises. It is a policy decision and that too a policy decision relating to the field of education. One may not be in a position to accept the same. To some, it may look like abolition of competition and to others it may look simplistic. There may be a few who may feel that in the name of change, a cosmetic approach has been done and it could have been better. But, a significant one rider and limitation, the role of the Court in exercise of judicial review is limited. In the University of Mysore and another. v. C.D. Govinda Rao & another, AIR 1965 SC 491, it has been held that Courts should be slow to interfere with the opinions expressed by the experts and the same should be left to the decision of the experts who are more acquainted and familiar with the problems.
81. A cursory perusal of the above judgement would go to show that having regard to the nature of the scheme, more particularly, as to how the scheme will be helpful to the student community and the other stakeholders and as to how it will be advantageous for various stakeholders and as to how it will not cause any infringement to equality, the Division Bench held that the above methodology of grading the students will not be violative of Article 14 of the Constitution of India.
82. Though the learned Advocate General made heavy reliance on the said judgement, to substantiate his contention that gradation will not be violative of Article 14 of the Constitution of India, it cannot be in a mechanical fashion applied to all grading systems. Before the Division Bench of the Delhi High Court, there were so many justifying or reasonable grounds upon which it concluded that there was no violation of Article 14 of the Constitution. But , in the instant cases, as I have already pointed out, the grading method adopted has got no scientific background. It has got no object to be achieved. It creates lot of anomalies. For these reasons, I have to hold that the grading system adopted in the impugned Government Order is surely violative of Article 14 and Article 16 (1) of the Constitution of India.
83. In Sanjay Singh's case, cited supra, in para 34, the Hon'ble Supreme Court has held as follows:-
34. When selections are made on the basis of the marks awarded, and the inter se ranking depends on the marks awarded, treating unequals equally, or giving huge marks to candidates who have secured zero marks in some subjects make the process wholly irrational, virtually bordering on arbitrariness. It is no doubt true that such irrationality may adversely affect only those cases which are at either end of the spectrum, and if they are excluded, by and large the scaling system may be functional. But if the extreme cases are even 20 out of 5000 for each of the subjects, it becomes 100 for 5 subjects, which means that the results of as many as 100 are likely to be affected. It may be more also. In that process, at least 5% to 10% of the vacancies are likely to be filled up by less meritorious candidates. This will lead to considerable heart-burn and dissatisfaction. When the object of the selection process is to try to select the best, and even one mark may make the difference between selection or non-selection, the system of scaling which has the effect of either reducing or increasing the marks in an arbitrary manner will lead to unjust results. This is in addition to the main disadvantage that scaling does not remedy the ill-effects of examiner variability arising out of strictness or liberality in valuation. [Emphasis supplied]
84. In the light of the above observations of the Hon'ble Supreme Court, if we examine the cases on hand, it is crystal clear that every single mark obtained by a candidate makes a lot of difference between selection and non-selection. Therefore, any system that may be adopted for awarding of weightage marks as per the proportion mentioned in the Government Order should be a real test to examine the inter se merits of the candidates. Let us now make an attempt as to whether any other reasonable system could be evolved.
85. The Government has taken a policy decision to make selection on the basis of weightage marks to be awarded for academic qualifications and the TET. This is not under challenge. For Graduate Assistants, the total weightage marks shall be 100 which shall be distributed as 10 marks for Higher Secondary Exam, 15 marks for basic Degree Exam, 15 marks for B.Ed., Exam and 60 marks for TET. In other words, the marks obtained in academic qualifying examinations and TET are not given equal weightage marks. This is also not challenged. The distribution of weightage marks is in the proportion of 10:15:15:60 respectively for Higher Secondary, Degree, B.Ed., and TET. While evolving any system of grading to convert the raw marks into the graded marks, the above proportion should be strictly adhered to. Let me now illustrate as to how by adopting the following system, the proportion could be adhered to without causing any harm to the inter se merits of the candidates.
Illustration (1) :- [For Graduate Assistant] 86.1. Let us assume that a candidate has secured 1020 marks in Higher Secondary Examination out of 1200. It is equivalent to 85%. Similarly, he has secured 80% in Degree Examination; 75% in B.Ed., Examination; and 70% in TET Examination. As per the computation of marks for Graduate Assistant in terms of the Government Order, 10 marks is awarded to Higher Secondary Examination, 15 is awarded to Degree Examination, 15 is awarded to B.Ed., Examination and 60 is awarded to TET Examination. This would go to show that more weightage mark is given to TET. This ratio namely 10:15:15:60 for Higher Secondary, Degree, B.Ed., and TET respectively should be adhered to while awarding weightage marks. This proportion can be maintained in the following manner, i.e., the percentage of marks secured can be further reduced to the above proportion. For example, in the illustration above,
(a) for 85% of marks secured in Higher Secondary Examination, weightage marks shall be as follows:-
85 X 10 w 100 = 8.50
(b) For 80% of marks secured in Degree Examination, the weightage marks shall be as follows:
80 X 15 w 100 = 12.00
(c) For 75% of marks secured in B.Ed., Examination the weightage marks shall be as follows:
75 X 15 w 100 = 11.25
(d) For 70% of marks secured in TET Examination, the weightage marks shall be as follows:
70 X 60 w 100 = 42.00 Total weightage marks = 73.75 86.2 In this method, for every one percentage of mark in Higher Secondary, the weightage mark is 0.10, for every one percentage of mark in Degree, the weightage mark is 0.15, for every one percentage of mark in B.Ed., the weightage mark is 0.15 and for every one percentage of mark in TET, the weightage mark is 0.60.
Illustration (2) :- [For Secondary Grade Teachers] 87.1. Let us assume that a candidate has secured the following marks:-
Higher Secondary Exam :
85% D.T.Ed.,/D.E.Ed., Exam :
80% TET :
75% 87.2. As per G.O.Ms.No.252, the weightage marks to be awarded are as follows:-
Higher Secondary Exam :
D.T.Ed.,/D.E.Ed., Exam :
TET :
Total Thus, the ratio is 15:25:60 87.3. Applying the said ratio, for 85% of marks in Higher Secondary Examination, the weightage mark shall be 85 X 15 w 100 = 12.75 For 80% of marks in D.T.Ed., / D.E.Ed., Examination the weightage mark shall be 80 X 25 w 100 = 20.00 For 70% of marks in TET Examination, the weightage mark shall be 70 X 60 w 100 = 42.00 Thus the total weightage mark is 74.75 87.4. In this method, for every one percentage of mark in Higher Secondary, the weightage mark is 0.15, for every one percentage of mark in D.T.Ed.,/D.E.Ed., the weightage mark is 0.25 and for every percentage of mark in TET, the weightage mark is 0.60.
87.5. If this method is adopted, in my considered opinion, there will be no anomaly or inconsistency or discrimination. In my opinion, this method clearly distributes the appropriate weightage marks as per the ratio. This method is scientific, flawless and reasonable. This is only a suggestion from this court and it is for the Government of Tamil Nadu to consider the same as to whether this method can be followed or any other better method can be followed. At any rate, it is made clear that the present grading system is highly arbitrary and discriminatory and, therefore, the same cannot be the basis for selection.
88. The learned Advocate General , finally, contended that it is the policy decision of the Government, into which, this court cannot interfere with. In this regard , I may refer to the judgements of the Hon'ble Supreme Court in State of U.P.V. Renusagar Power Co., Ltd, 1988 (4) SCC 59, Tata Iron & Steel Co. Ltd. v. Union of India, 1996 (9) SCC 709, Federation of Railway Officers' Association v. Union of India, 2003 (4) SCC 289). Before the Hon'ble Supreme Court in Sanjay Singh's case cited supra, the above judgements were quoted and argument was advanced that the courts should not interfere with the matters affecting policy requiring technical expertise and the Courts should leave them for decision of experts. In para 39 of the said judgement, the Hon'ble Supreme Court while rejecting the said contention, has held as follows:-
39. Learned counsel for the Commission also referred to several decisions in support of its contention that courts will be slow to interfere with matters affecting policy requiring technical expertise and leave them for decision of experts (State of U.P. v. Renusagar Power Co. Ltd., 1988 (4) SCC 59,Tata Iron & Steel Co. Ltd. v. Union of India 1996 (9) SCC 709, Federation of Railway Officers Association v. Union of India 2003 (4) SCC 289). There can be no doubt about the said principle. But manifest arbitrariness and irrationality is an exception to the said principle. Therefore, the said decisions are of no avail.
89. In the cases on hand, as I have already concluded, the grading system prescribed under the impugned Government Order is manifestly discriminatory, irrational and arbitrary which can be found out even without the help of any expert. Therefore, it is the constitutional obligation of this court to set aside the same instead of leaving the same to perpetuate. It is not as though a policy decision of the Government cannot be subjected to judicial review at all. If it is found that the policy decision of the Government violates any of the fundamental rights guaranteed under the Constitution, the same can be subjected to judicial review and interfered with in view of the mandate of Article 13(2) of the Constitution of India.
90. In W.P.Nos.7213, 7315, 7316, 7317, 7754, 7755, 7756 and 7757 of 2014 the petitioners have challenged G.O.Ms.No.25 and G.O.Ms.No.29 and they have also prayed for a direction for making selection as per G.O.Ms.No.252. Since I have already held that G.O.Ms.No.25 is valid, to that extent, the challenge made in these writ petitions has to fail. So far as G.O.Ms.No.29 and G.O.Ms.No.252 are concerned, since I have held that gradation method adopted in these two Government Orders is unconstitutional, the relief sought for by the petitioners for a direction to award weightage mark as per G.O.Ms.No.252 cannot be granted. As a result, these writ petitions are liable only to be dismissed in toto.
91. I am conscious of the fact that in this State, because of the poor performance of the candidates in the TET Examinations and because of the welcome policy of the Government that there shall be no compromise in the quality of teachers, the Government is struggling to fill up the vacancies in the Government Schools which mostly cater the needs of poor and middle class children. Though the TRB conducted the TET Examinations in August 2013, it could not complete the process of selection of candidates, because of various legal tangles. Since the next academic year is fast approaching, I wanted to relieve the TRB from all legal tangles as far as possible so that the TRB could be free to go-ahead with the selection process and at least at the beginning of the next academic year [2014-2015] the vacancies will be filled up for the benefit of the children in the Government Schools. That is the reason why, I have given much importance to these cases relating to TRB and I have almost disposed of all the cases which were pending on my board. I am sure that the disposal of the instant batch of cases will make the TRB to go ahead with the selection of candidates for the posts of Secondary Grade Teachers and Graduate Assistants. Having regard to the urgency of the matter, I am hopeful that the Government will either adopt the method which I have suggested herein above or some other method which will have scientific rational basis so as to enable the TRB to complete the process of selection.
92. In the result, (1) (i) W.P.Nos.6648 and 10849 of 2014 relating to challenge made to G.O.Ms.No.25, School Education (TRB) Department, dated 06.02.2014 are dismissed. No costs. Consequently connected MPs are closed.
(ii) W.P.Nos.5591, 5680, 5842, 5843, 6361, 7626, 7859, 9008 and 10843 of 2014 wherein the petitioners have prayed for giving retrospective operation of 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 to the TET Examinations held in the year-2012 are dismissed. No costs. Consequently connected MPs are closed.
(iii) W.P.Nos.2780, 2781, 2782, 4182, 4183, 4184, 5590, 5985, 7146, 7371, 7681, 8354 and 10850 relating to challenge made to G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 prescribing the method for awarding weightage marks for selection of Secondary Grade Teachers and Graduate Assistants are all allowed and G.O.Ms.No.252, School Education (Q) Department, dated 05.10.2012 and G.O.Ms.No.29, School Education (TRB) Department, dated 14.02.2014 shall stand set aside only in respect of grading method prescribed for awarding weightage marks. No costs. Consequently connected MPs are closed.
(iv) W.P.Nos. 7213, 7315, 7316, 7317, 7754, 7755, 7756 and 7757 of 2014 are dismissed. No costs. Consequently connected MPs are closed.
(2). The Government is directed to issue a Government Order expeditiously prescribing any other scientific rational method for awarding weightage marks for Higher Secondary, D.T.Ed.,/D.E.Ed.,/Degree/B.Ed.,/TET for Secondary Grade Teachers / Graduate Assistants, as the case may be and make selection accordingly.
(3) I am hopeful that the Government will ensure that the selection process is completed and vacancies are filled up at least at the beginning of next academic year.
kmk/kk To
1.The Secretary to Government, School Education (TRB) Department, Secretariat, Chennai 600 009.
2.The Chairman, Teachers Recruitment Board, Chennai 600 006.
3.The Member Secretary, Teachers Recruitment Board, Chennai 600 006.
4.The Director of School Education, Chennai 600 006.
5.The Director of Elementary Education, Chennai 600 006.
