Madras High Court Decision Regarding TEACHER ELEIGIBILITITY EXAM and Selections Through it
PART 2
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
45
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
46
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
48
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
50
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
51
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
52
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
54
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
55
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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57
...
...
...
...
...
...
...
...
...
...”
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
58
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
59
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.
Page 63
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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
70
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
72
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
75
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
77
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
78
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
79
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
80
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
81
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
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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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83
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
Page 85
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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
