Madras High Court Decision Regarding TEACHER ELEIGIBILITITY EXAM and Selections Through it
PART 2
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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 Page 44
44 1 105 70.00 % 48 2 104 69.33 % 42 3 90 60.00 %
42
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 Page 45
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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 Page 46
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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
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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 Page 48
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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-
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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 Page 50
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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, Page 51
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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 Page 52
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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
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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 Page 54
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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 Page 55
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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.
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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:
...
...
...
...
...
...
...
...
...
...
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...
...
...
...
...
...
...
...
...
...”
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 echanical
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 Page 58
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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 Page 59
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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:-
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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.
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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
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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.
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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
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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
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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
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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 Page 67
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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.
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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 Page 70
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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
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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 Page 72
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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
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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
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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 Page 75
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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 Page 77
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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 ÷ 100 = 8.50
(b) For 80% of marks secured in Degree Examination, the weightage marks shall be as follows:
80 X 15 ÷ 100 = 12.00
(c)
For 75% of marks secured in B.Ed., Examination the weightage marks shall be as follows:
75 X 15 ÷ 100 = 11.25
(d) For 70% of marks secured in TET Examination, the weightage marks shall be as follows:
70 X 60 ÷ 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 Page 78
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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 : 15
D.T.Ed.,/D.E.Ed., Exam : 25
TET : 60
Total
100
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 Page 79
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85 X 15 ÷ 100 = 12.75
For 80% of marks in D.T.Ed., / D.E.Ed., Examination the weightage mark shall be
80 X 25 ÷ 100 = 20.00
For 70% of marks in TET Examination, the weightage mark shall be
70 X 60 ÷ 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 Page 80
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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 Page 81
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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 Page 82
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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
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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
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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.
Source : http://judis.nic.in/judis_chennai/Judge_Result_Disp.asp?MyChk=46232
