# 7 S.C.R. 639 VIKAS SANKHALA & ORS. ETC v. VIKAS KUMAR AGARWAL & ORS. ETC

- **Citation:** [2016] 7 S.C.R. 639
- **Court:** Supreme Court of India
- **Decided:** 2016-10-18
- **Case number:** Civil Appeal Nos. 3545-3549 of2016
- **Bench:** A.K. Sikri, R.K. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/7-s-c-r-639-vikas-sankhala-ors-etc-v-vikas-kumar-agarwal-ors-etc-31638
- **Pages:** 50

## Headnote

Right of Children to Free and Compulsory Education Act,
2009 - s. 23:
Qualifications for appointment of teachers - Passing of
Teacher Eligibility Test-TET- Minimum pass percentage of TETRelaxation in passing marks in TET - Interference with - Held:
Specific authorization is given to School Management (Government,
local bodies, Government aided and unaided) to grant special
concession to different kinds of reserved categories mentioned
therein, which has to be in accordance with their extant reservation
policy - Giving concession to certain reserved category candidates
insofar as passing marks in TET is concerned, that by itself would
not affect the teaching quality - s. 23(2) itself recognises the power
for relaxing the minimum qualifications required of a person to be
eligible for appointment as primary teacher - For giving relaxation
in passing marks in TET, different outlook and glance is attracted -
Except for State of Andhra Pradesh, no other State has granted
such wide range of concessions as State of Rajasthan did in its
letter dated 23.03.2011 - Very high percentage of relaxation may
amount to compromising with quality which may not be conducive
to maintaining standards of education - Need to look into and
reconsider this aspect to bring the relaxations within reasonable
limits - However, the Court not tinkering with the extant of relaxation
given in letter dated.23.03.2011 since recruitment tests have been
conducted and selected candidates are .nowcteaching for last number
of years - Constitution of India - Arts. 15, 16, 38, 39(a) and 46.
Qualifications for appointment of teachers - Passing of
Teacher Eligibility Test-TET- Minimum pass percentage of TETWhether National Council for Teacher· Education-NCTE notification
dated July 29, 2011, amending paragraph ) of its earlier guidelines/
notification dated February 11, 2011, provides 5% relaxation to
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SUPREME COURT REPORTS
[2016] 7 S.C.R.
the reserved category for passing TET - Held: NCTE does not
provide any provision for relaxation in TET examination for reserved
category candidates but has left it to the State Governments to do
the needful in this behalf - Relaxation provided in the amended
para 3 has no relation whatsoever with TET but relates to the
qualifying marks in graduation and B.Ed. Etc - It cannot be said
that the provision for relaxation upto 5% in qualifying marks at all
relates to TET - Relaxation in passing TET is governed by para 9 of
the Notification dated February 11, 2011 - There is no amendment
to the said para - Amendment is incorporated in para 3 of the
principal notification dated February 11, 2011, which gives the
rationale for including TET as a minimum qualification.
Policy of the State in letter dated March 23, 2011 deciding to
give relaxation ranging from 10% to 20% in TET marks to different
reserved categories as mentioned therein - Validity of - Held:
Relaxation prescribed in letter dated March 23, 2011 in pass marks
in TET examination for different reserved categories mentioned
therein is legal and valid in law.
Reserved category candidates, who secured better than general
category candidates in recruitment examination, if could be denied
migration to general seats on the basis that they had availed
relaxation in TET - Held: Migration from reserved category to
general category admissible to those reserved category candidates
who secured more marks obtained by the last unreserved category
candidates selected, subject to the condition that such reserved
category candidates did not avail any other special concession -
Concession of passing marks in TET would not be treated as
concession falling in the said category.
Disposing of the appeals, the Court
HELD: 1.1 The amended sub-para (ii) of para 3 of the
Notification/Guidelines dated February 11, 2011 stipulates that
relaxation upto 5% in the qualifying marks is to be allowed to
candidates belonging to reserved categories. The submission of
the appell

## Text

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[2016) 7 S.C.R. 639
VIKAS SANKHALA & ORS. ETC.
v.
VIKAS KUMAR AGARWAL & ORS. ETC.
(Civil Appeal Nos. 3545-3549 of2016)
OCTOBER 18, 2016
(A.K. SIKRI AND R.K. AGRAWAL, JJ.]
Right of Children to Free and Compulsory Education Act,
2009 - s. 23:
Qualifications for appointment of teachers - Passing of
Teacher Eligibility Test-TET- Minimum pass percentage of TETRelaxation in passing marks in TET - Interference with - Held:
Specific authorization is given to School Management (Government,
local bodies, Government aided and unaided) to grant special
concession to different kinds of reserved categories mentioned
therein, which has to be in accordance with their extant reservation
policy - Giving concession to certain reserved category candidates
insofar as passing marks in TET is concerned, that by itself would
not affect the teaching quality - s. 23(2) itself recognises the power
for relaxing the minimum qualifications required of a person to be
eligible for appointment as primary teacher - For giving relaxation
in passing marks in TET, different outlook and glance is attracted -
Except for State of Andhra Pradesh, no other State has granted
such wide range of concessions as State of Rajasthan did in its
letter dated 23.03.2011 - Very high percentage of relaxation may
amount to compromising with quality which may not be conducive
to maintaining standards of education - Need to look into and
reconsider this aspect to bring the relaxations within reasonable
limits - However, the Court not tinkering with the extant of relaxation
given in letter dated.23.03.2011 since recruitment tests have been
conducted and selected candidates are .nowcteaching for last number
of years - Constitution of India - Arts. 15, 16, 38, 39(a) and 46.
Qualifications for appointment of teachers - Passing of
Teacher Eligibility Test-TET- Minimum pass percentage of TETWhether National Council for Teacher· Education-NCTE notification
dated July 29, 2011, amending paragraph ) of its earlier guidelines/
notification dated February 11, 2011, provides 5% relaxation to
639 .
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SUPREME COURT REPORTS
[2016] 7 S.C.R.
the reserved category for passing TET - Held: NCTE does not
provide any provision for relaxation in TET examination for reserved
category candidates but has left it to the State Governments to do
the needful in this behalf - Relaxation provided in the amended
para 3 has no relation whatsoever with TET but relates to the
qualifying marks in graduation and B.Ed. Etc - It cannot be said
that the provision for relaxation upto 5% in qualifying marks at all
relates to TET - Relaxation in passing TET is governed by para 9 of
the Notification dated February 11, 2011 - There is no amendment
to the said para - Amendment is incorporated in para 3 of the
principal notification dated February 11, 2011, which gives the
rationale for including TET as a minimum qualification.
Policy of the State in letter dated March 23, 2011 deciding to
give relaxation ranging from 10% to 20% in TET marks to different
reserved categories as mentioned therein - Validity of - Held:
Relaxation prescribed in letter dated March 23, 2011 in pass marks
in TET examination for different reserved categories mentioned
therein is legal and valid in law.
Reserved category candidates, who secured better than general
category candidates in recruitment examination, if could be denied
migration to general seats on the basis that they had availed
relaxation in TET - Held: Migration from reserved category to
general category admissible to those reserved category candidates
who secured more marks obtained by the last unreserved category
candidates selected, subject to the condition that such reserved
category candidates did not avail any other special concession -
Concession of passing marks in TET would not be treated as
concession falling in the said category.
Disposing of the appeals, the Court
HELD: 1.1 The amended sub-para (ii) of para 3 of the
Notification/Guidelines dated February 11, 2011 stipulates that
relaxation upto 5% in the qualifying marks is to be allowed to
candidates belonging to reserved categories. The submission of
the appellants who belonged to reserved category and are
beneficiary of relaxation provided by the State Government vide
its letter dated March 23, 2011 is that the relaxation provided in
the said amended para 3 has no relation whatsoever with TET
and on the co~trary, it relates to the qualifying marks in graduation
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR
AGARWAL & ORS. ETC.
and B.Ed. Etc, is accepted. The submission of the respondent
belonging to general category as well as those respondents who
belonged to reserved category but secured more than 55% marks
In TET that the provision for relaxation upto 5% in qualifying
marks at all relates to TET, cannot be accepted. Insofar as
qualifying marks for TET are concerned, they are prescribed in
para 9 of the guidelines dated :February 11, 2011. There is no
amendment to the said para. Amendment is incorporated in para
3 of the principal notification dated February 11, 2011. Original
para 3 gives the rationale for including TET as a minimum
qualification. Though, it is not understood as to why that para is
substituted by the said amended para vide notification dated July
29, 2011. A reading of amended para 3 clearly brings out that it
incorporates two aspects. First aspect touches upon the training
to be undergone by a person and this training can be undergone
by those persons who have certain specified marks in graduation
and D.Ed. (Special Education) or B.Ed. (Special Education).
Training is for 6 months duration i.e. 6 months special programme
in elementary education. Insofar as persons having graduation
and B.Ed. qualification are concerned, minimum marks in the
graduation or B.Ed. are also prescribed. It is stipulated that
graduation should be with at least 50% marks and B.Ed.
qualification with at least 45% marks. However, those who have
done D.Ed. (Special Education) or B.Ed. (Special Education), no
minimum marks in obtaining those qualifications arc prescribed.
What follows is that person who is graduate with B.Ed.
qualification, he/she should have minimum 50% marks in
graduation and 45% marks in B.Ed. qualification. It is in this
context second aspect of the amended provision in sub-para (ii)
of para 3 mentions about 'Reservation Policy' and allows
relaxation upto 5% in qualifying marks. This relaxation is,
therefore, clearly rclatable to marks in graduation and B.Ed.
qualification, meaning thereby insofar as reserved category
candidates such as SC/ST/OBC/PH are concerned, they would
be treated as qualified to undergo the training in case they pass
graduation with minimum 45% marks and B.Ed. qualification with
minimum 40% marks. This relaxation of 5% does not relate to
TET at all. Had it been so, this notification dated July 29, 2011
would have amended para 9 and, particularly, sub-para (a) of para
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9 which deals with concessions to reserved category candidates
that has not happene<J and is left intact. [Paras 31, 32] [665-G-H;
66(j-A-H; 66?-A-BJ
1.2 The High Court in the impugned judgment also read
the said amended para 3 in the same manner as it is interpreted
herein. The view of the High Court on this specific aspect is
affirmed. Thus, insofar as NCTE is concerned, it has not provided
any provision for relaxation in TET examination for reserved
category candidates but has left it to the State Governments to
do the needful in this behalf, as per para 9 of guidelines dated
February 11, 20ll which remains unaltered. [Para 33) [667-C;
668-B-C]
2.1 Passing of TET is an essential qualification, which is a
condition precedent for appointment as a teacher for Class I to
VIIl.It is in terms of qualifications letter prescribed by the NCTE
in its notification dated August 23, 2010 read with February 11,
2011. In the notification dated August 23, 2010, NCTE laid down
minimum eligibility qualifications for a person to be a teacher for
Class I to VIII. As per Clause l(i) and (ii), 45% to 50% marks
are required in academic qualification including Senior Secondary/
BA-B.Sc. This very notification, vide sub-clause (b) of Clause (9)
(i) and (ii), stipulates another eligibility condition, i.e. passing
TET which needs to be conducted by. the. respective Governments
in accordance with guidelines framed by NCTE. There was no
provision providing relaxation to reserved category insofar as
· academic qualifications, i.e. Senior Secondary or graduation etc.,
are concerned. As far as TET is concerned, it was to be guided
solely by the guidelines to be issued by NCTE. Clause (3)
prescribes nature of the training to be undergone and minimum
marks required in BA/Bsc./B.Ed. It was followed by notification
dated February 11, 2011 which prescribes 60% or more marks
in TET as pass/qualifying marks. At the same time, it laid down
that insofar as persons belonging to SC/ST, OBC, differently abled
persons etc. are concerned, State Government may consider
giving concessions to them fn accordance with. their extant
reservation policy. It also required th~ States to give weightage ·
to TET score in carrying out the recruitment of teachers. It is in
pursuance to the said clause (9) of notification dated February
l11 2011 that the State Government issued communication dated
VIKAS SANKHALA & ORS. ETC. v. VJKAS KUMAR
AGARWAL & ORS. ETC.
March 23, 2011 deciding to give relaxation in TET ranging from
10% to 20% to different reserved categories. [Para 35) (668-EH; 669-A-B)
2.2 The State Government could not show any such policy
which existed prior to the issuing communication dated March
23, 20ll regarding concession to be given to the reserved
category persons. That has become the reason for the High Court
to hold that there was no "extant" policy of the State Government
for giving relaxation to reserved category candidates. (Para 36]
(669-C]
2.3 First thing that has to be borne in mind is that after
prescribing 60% pass marks iu the TET examination, provision
for relaxation is made in same para 9 giving liberty to the school
management (Government, local bodies, Government aided and
unaided) to consider giving concessions to different kinds of
reserved categories mentioned therein 'whicli has to be in
accordance with their extant reservation policy'. This brings out
one important feature. NCTE has nowhere mandated that there
cannot be relaxation in pass marks in TET examination for
reserved category candidates or that the standard would remain
uniform irrespective of the fact as to whether a person belongs
to general category or any of the reserved categories insofar as
this examination is concerned. On the contrary, specific
authorisation is given to grant special concessions. It, thus,
accepts in principle that relaxed standard for passing TET can
be prescribed by laying down a policy in this behalf. In fact, there
·is no challenge to this permissive provision. [Para 44) (672-E-G]
2.4 The Government may prescribe relaxed standards for
such reserved categories, as it is in conformity with the spirit of
the constitutional pro".isions contained in Articles 15 and 16 read
with Articles 38, 39(a) and 46 of the Constitution, which are
enabling· provisions permitting the State to make special
provisions and provide relaxed standards for persons belonging
to Scheduled Castes, Schedule Tribes .and socially and
educationally backwa.rd classes. (Para 45) (673-A-B)
2'.5 Keeping in mind the said ethos of the Constitution,
clause 9(a) of notification dated February 11, 2011 is interpreted
which permits concessio~s to be given .to certain clauses 'in
'
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accordance with their extant reservation policy'. As regards
whether it was necessary that there had to be an "existing" policy
before the State Government issued its letter dated March 23,
2011 or laying down of such a policy in communication dated
March 23, 2011 itself, may be for the first time, would fulfill the
requirement of "extant policy". No condition is found in clause
9(a) for 'pre-existing' reservation policy. On the contrary, the
provision only mentions that if there is a reservation policy
providing concessions to the persons belonging to SC/ST, OBC,
differently abled persons etc., concessions can be given in
accordance with the said policy. Even if there was no such policy
in existence as on the date when NCTE issued guidelines dated
February 11, 2011, it would not mean that State Governments
are precluded from formulating such reservation policy even
thereafter .. Para 9(a) uses the expression 'extant' reservation
policy and not 'pre-existing' reservation policy. The submission
that a holistic reading of para 9 of the guidelines would mean that
at the time of recruitment process, the school managements were
being given liberty to consider and provide for concessions to
reserved category candidates in TET qualifying marks is
accepted. Thus, it becomes clear that the word 'extant' means
which remains or survives. To give a practical interpretation to
clause 9 of guidelines dated February 11, 2011, the phrase 'extant
reservation policy' should be read to mean the policy surviving
at the time of TET examination or at the most at the time of
recruitment. Any other interpretation of the said phrase would
be totally impracticable and would deprive the State for taking a
decision to give relaxation to reserved category candidates. Such
interpretation cannot be applied thereby seizing the powers of
the State in recognising reserved categories and to give
relaxations and to modify them from time to time with changing
socio-economical conditions. The advertisement issued by the
local authorities for the recruitment of teachers in 2012 as well
as in 2013 specifically contains clause 7(b) that the candidate is
required to be passed in TET conducting by State ofRajasthan in
accordance with the guiding principals issued by NCTE. This
would meet the requirement of 'extant reservation policy' of the
State. [Para 46] (673-C-H; 674-A~B)
2.6 It is pointed out that except for the State of Andhra
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR
AGARWAL & ORS. ETC.
Pradesh, no other State has granted such wide range of
concessions as the State of Rajasthan did in its letter dated March
23, 2011. This is an aspect which needs to be looked into and
needs to be reconsidered by the States inasmuch as very high
percentage ofrelaxation may amount to compromising with quality
which may not be conducive to maintaining standards of education.
However, the Court is not tinkering with the extant of relaxation
given in letter dated March 23, 2011 because of the reason that
on that basis, two recruitment tests have been conducted and
candidates who have been selected are now teaching for last
number of years. However, for future selections in this behalf,
the State Government is impressed upon to consider this aspect
and bring the relaxations within reasonable limits. [Para 47) [674C-E]
2. 7 The High Court is also right in remarking that in order
to impart quality education, those teachers are needed who are
processed of essential aptitude and ability to meet the challenged
of teaching at the primary and upper primary levels. No doubt,
these are important considerations to achieve the laudable
objects. For this purpose, if passing of TET examination is treated
as minimum essential qualification for a person to be eligible for
appointment as primary teacher, that cannot be countenanced.
However, when it comes to giving concession to certain reserved
category candidates insofar as passing marks in TET is concerned,
such a provision by itself will not affect the teaching quality.
Section 23(2) itself recognises the power for relaxing the minimum
qualifications required of a person to be eligible for appointment
as primary teacher. When it comes to the question of giving
relaxation in passing marks in TET, different outlook and glance
stands attracted. [Para 48] [674-G-H; 675-A-B]
2.8 When the Constitution envisages equal respect and
concern for each individual in the society and the attainment of
the goal requires special attention to be paid to some, that ought
to be done. Giving of desired concessions to the reserved
category persons, thus, ensures equality as a levelling process.
At jurisprudential level, whether reservation policies are defended
on compensatory principles, utilitarian principles or on the
principle of distributive justice, fact remains that the very ethos
of such policies is to bring out equality, by taking affirmative
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[2016] 7 S.C .R.
action. Indian Constitution has made adequate enabling
provisions empowering the State to provide such concessions.
[~ara 51] [677-B-C]
State of Madhya Pradesh & Anr. v. Kumari Nivedita
Jain & Ors. (1981) 4 SCC 296:1982 (1) SCR 759; M.
Nagaraj & Ors: v. Union of India & Ors. (2006) 8 SCC
212:2006 (7) Suppl. SCR 336; Dr. Jagadish Saran &
Ors. v. Union of India (1980) 2 SCC 768:1980 (2) SCR
831 - referred to.
2.9 The State has a legitimate and substantial interes.t in
ameliorating or eliminating where feasible, the disabling effects
of identified discrimination. It is a duty cast upon the State, by
the Constitution, to remedy the effects of "societa·l
discrimination". The provision for relaxation in TET pass marks
has to be looked into from this angle which is in tune with the
constitutional philosophy. After all it only ensures that such
candidates belonging to reserved category become eligible for
appointment as primary teachers. On the other hand, when it
comes to selection process such reserved category candidates
have to compete with general category candidates wherein due
regard for merit is given. Therefore, only those candidates
belonging to reserved category who are found meritorious in
selection are ultimately appointed. In this manner the two
constitutional goals, that of rendering quality education on the
one hand and providing "equality of opportunity" to the
unprivileged class on the other hand, are adequately met and
rightly balanced. (Para 54] [681-C-E)
2.10 The interpretation given by the High Court cannot be
accepted. The question No. l is answered holding that relaxation
prescribed in letter dated March 2J, 2011 in pass marks in TET
examination for different reserved categories mentioned, is legal
and valid in law. (Para 55] (681-F]
3.1 As regards whether relaxation in TET pass marks would
amount to concession in the recruitment process, the High Court
has held to be so on the premise that para 9(a) dealing with such
relaxation in TET marks forms part of the document which relates
to the recruitment procedure. It is difficult to accept this rationale
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR
AGARWAL & ORS. ETC.
or analogy. Para 9 which provides for concessions that can be
given to certain reserved categories deals with 'qualifying marks'
that is to be obtained in TET examination. Thus, a person who
passes TET examination becomes eligible to participate in the
selection process as and when such selection process for filling
up of the posts of primary teachers is to be undertaken by the
State. On the other hand, when it comes to recruitment of
teachers, the method for appointment of teachers is altogether
different. Here, merit list of successful candidates is to be
prepared on the basis of marks obtained under different heads.
One of the heads is marks in TET. So far as this head is concerned,
20% of the marks obtained in TET are to be assigned to each
candidate. Therefore, those reserved category candidates who
secured lesser marks in TET would naturally get less marks under
this head. It is demonstrated with an example. Suppose a reserved
category candidate obtains 53 marks in TET, he is treated as
having qualified TET. However, when he is considered for
selection to the post of primary teacher, in respect of allocation
of marks he will get 20% marks for TET. As against him, a general
candidate who secures 70 marks in TET shall be awarded 14
marks in recruitment process. Thus, on the basis of TET marks
reserved category candidate has not got any advantage while
considering his candidature for the post. On the contrary, "level
playing field" is maintained whereby a person securing higher
marks in TET, whether belonging to general category or reserved
category, is allocated higher marks in respect of 20% of TET
marks. Thus, in recruitment process no weightage or concession
is given and allocation of 20% of TET marks is applied across
the board. [Para 60] [684-F-H; 685-A-E]
3.2 Once this vital differentiation is understood, it would
· lead to the conclusion that no concession becomes available to
the reserved category candidate by giving relaxation in pass
marks in TET insofar as recruitment process is concerned. It
only enables them to compete with others by allowing them to
participate in the selection process. In this backdrop, irrespective
of circular dated May 11, 2011, the reserved category candidates
who secured more marks than marks obtained by the last
candidate selected in general category, would be entitled to be
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[20 I 6] 7 S.C.R.
considered against unreserved category vacancies. However, it
would be subject to the condition that these candidates have not
availed any other concession in terms of number of attempts,
etc., except on tee and age. [Para 61) [685-F-H]
·
3.3 Provision of giving 20% marks ofTET score was applied
to all candidates irrespective of the category to which he/she
belongs and, therefore, no concession or relaxation or advantage
or benefit was given in this behalf which could disturb the level
playing field and tilt advantage in respect of reserved category
candidate. On the contrary, the reserved category candidates who
had secured less marks in TET examination are given lesser
marks in the recruitment process on the application of the formula
of allocating 20% marks of TET score. Question No. 3 is
answered accordingly. [Para 62] [687-F-G]
3.4 Those reserved category candidates who secured pass
marks on the application of relaxed standards as contained in the
extant policy of the Government in its communication dated March
23, 2011 to be treated as having qualified TET examination and,
thus, eligible to participate in the selection undertaken by the
State Government. Migration from reserved category to general
category shall be admissible to those reserved category
candidates who secured more marks obtained by the last
unreserved category candidates who are selected, subject to the
condition that such reserved category candidates did not avail
any other special concession. It is clarified that concession of
passing marks in TET would not be treated as concession falling
in the aforesaid category. (Para 63) [687-H; 688-A-B]
Unni Krishnan. J.P. & Ors. v. State of Andhra Pradesh
& Ors. (1993) 1 SCC 655:1993 (1) SCR 594;
KManjusree v. State ofAndhra Pradesh & Am: (2008)
3 SCC 512: 2008 (2) SCR 1025; Vijendra Kumar Verma
v. Public Service Commission, Uttarakhand & Ors.
(2011) 1 SCC 150: 2010 (12) SCR 944; Jitendra J:(umar
Singh & Am: v. State of Uttar Pradesh & Ors. (2010) 3
SCC 119: 2010 (1) SCR 325 - referred to.
Case Law Reference
1993 (1) SCR 594
referred to
Paral
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR
649
AGARWAL & ORS. ETC.
19~Z (1) SCR 759
referred to
Para 51
2006 (7) Suppl. SCR 336
referred to
Para 52
19~Q (2) SCR 831
referred to
Para 53
2008 (2) SCR 1025
referred to
Para 57
2010 (12) SCR 944
referred to
Para 58
. 2oiQ (1) SCR 325
referred to
Para62
CIVIL .<\PPELLATE JURISDICTION: Civil Appeal Nos. 35453549 of2016.
From the Judgment and Order dated 02.07.2013 of the High Court
of Judicat•.!re for Rajasthan at Jaipur Bench Jaipur in D. B. Civil Special
Appeal (Writ) Nos. 14 76, 14 70, 1496, 1502 and 1518 of2012
WITH
Civil Appeal Nos. 3550-3555, 3556-3559, 3560, 3561, 3562, 35633566, 3567, 3568, 3569 and 3570 of2016.
Sushi I Kumar Jain, Vivek Kumar Tankha, Ashwini Mata, Sr. Advs.,
Ms. Aishwarya Bhati, T. Gopal, Di lip Kumar Nayak, Shiv Avtar Singh,
IrshadAhmad, Anurag Rawat, Sudhir Kumar, Naresh Kaushik, Vardhman
Kaushik, Manoj Joshi, Mrs. Lalita Kaushik, Ms. Christi Jain, Abhinav
Gupta, Ms. Priyal Jain, Ms. Ankita Gupta, Manu Maheshwari, Vigyan
Shah, Ms. Pratibha Jain, Puneet Jain, Kamlesh Sharma, Rakesh Dahiya,
Hanuman Singh, Sachin Pujari, Rishabh Sancheta, T. Mahipal, Pranaya
Kumar Mohapatra, Mil ind Kumar, Rahul Verma,Advs. for the Appellants.
S. S. Shamshery, AAG, Ms. Mahima Gupta, Kirtiman Singh, Gopal
Singh, Irshad Ahmad, H. D. Thanvi, Sarad Kumar Singhania, Gopal
Shankar Narayan, Shobhit Tiwari, Lal Pratap Singh, Umesh Pratap Singh,
Vikram Singh Arya, R. C. Kohli, Pradeep Aggarwal, Brijesh Kumar
Singh, Amit Sharma, Ishu Prayas, Ms. Ruchi Kohli, Gaurav Sharma,
Dhawal Mohan, Ms. Vara Gaur, Ajay Choudhary, Advs. for the
Respondents.
The Juctgment of the Court was delivered by
A.K. SIKRI, J. I. The Statement of Objects and Reasons of the
Right of Children to Free and Compulsory Education Act, 2009
(hereinafter referred to as the 'RTE Act') recognises one of the most
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profound underlying principle contained in the Constitution, viz. the crucial
role of universal elementary education for strengthening the social fabric
of democracy through provision of equal opportunities to all has been
accepted, since inception of our Republic. Other, and equally significant
principle that it recognises, is that, in order to ensure equal opportunities
to all citizens, it is necessary that elementary education is provided to
one and all. Keeping in view this spirit, obligation was imposed upon the
State, as per Article 41, read with Article 45, of the Constitution to make
effective provisions for securing the right to education, among other.
Thus, it is one of the Directive Principles of State Policy enumerated in
the Constitution that the State shall provide free and compulsory education
to all children. In order to make it a reality, this Court in the case of
Unni Krishnan, J.P. & Ors. v. State of Andlira Pradesh & Ors. 1
stretched the limits of Article 45 by reading right to free education as a
fundamental right of children upto the age of 14 years so as to enable
the children up to the age of 14 years to receive the education as a
matter of right. Law Commission also supported it by making
recommendation" to the Parliament to make suitable amendment in the
Constitution. Realising its constitutional commitment, the Parliament
obliged, and Article 21-A was added vide the Constitution (Eighty Sixth
Amendment) Act, 2002 in the following manner:
Article 21-A. Right to education. - The State shall
provide free and compulsory education to all children of
the age of six to fourteen years in such manner as the State
may, by law, determine."
Simultaneously, Article 45 of the Constitution was also substituted
with the following A11icle:
"Article 45. Provision for early childhood care and
education to children below the age of six years. -
The State shall endeavour to provide early childhood care
and education for all children until they complete the age of
six years."
2. Notwithstanding the aforesaid provisions in the Constitution and
significant spatial and numerical expansion of elementary schools in the
country, goal ofuniversal education continued to allude us. It was found
that number of children, particularly children from disadvantaged groups
1 (I993J 1sec645
'Report No. 165 of the Law Commission of India
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR
AGARWAL & ORS. ETC. [A. K. SIKRI, J.]
and weaker sections, who drop out of school before completing elementary
education, remain very large. It was also noticed that the quality of
learning achievement is not always entirely satisfactory even in the case
of children who complete elementary education. Having regard to the
aforesaid harsh realities, the Parliament enacted the RTE Act with
following objects in mind:
"(a) that every child has a right to be provided full time
elementary education of satisfactory and equitable quality
in a fo1mal school which satisfies certain essential norms
and standards;
(b) 'compulsory education' casts an obligation on the
ap!'ropriate Government to provide and ensure admission,
attendance and completion of elementary education;
( c) 'free education' means that no child, other than a child
who has been admitted by his or her parents to a school
which is not supported by the appropriate Government, shall
be liable to pay any kind of fee or charges or expenses
which may prevent him or her from pursuing and completing
elementary education;
( d) the duties and responsibilities of the appropriate
Government, local authorities, parents, schools and teachers
in providing free and compulsory education; and
(e) a system fc~ protection of the right of children and a
decentralized grievance redressal mechanism."
3. It hardly needs to be emphasized that for turning the provision
of every child to have free and compulsory education into reality, not
only sufficient numberofschools are required with all necessary facilities
and infrastructure, adequate and qualified teaching staff shall also be
needed to fulfill this noble purpose. It is for this reason that apart from
other provisions in the RTE Act, provisions like Sections 23 to 27 are
inserted in the said Act to cater this requirement.
4. For the purpose of present appeals, it is not necessary to refer
to each of these provisions. As we are concerned with the educational
and other qualifications that are needed for appointment of the teaching
staff, the provision directly touching upon this aspect is Section 23 of the
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RTE Act, which reads as under:
"23. Qualifications for appointment and terms and
conditions of service of teachers: (I) Any person
possessing such minimum qualifications, as laid down by
an academic authority, authorised by the Central
Government, by notification, shall be eligible for appointment
as a teacher.
(2) Where a State does not have adequate institutions
offering courses or training in teacher education, or teachers
possessing minimum qualifications as laid down under subsection (I) are not available in sufficient numbers, the
Central Government may, if it deems necessary, by
notification, relax the minimum qualifications required for
appointment as a teacher, for such period, not exceeding
five years, as may be specified in that notification:
Provided that a teacher who, at the commencement of this
Act, does not possess minimum qualifications as laid down
under sub-section (I), shall acquire such minimum
qualifications within a period of five years.
(3) The salary and allowances payable to, and the terms
and conditions of service of, teachers shall be such as may
be prescribed."
5. Since minimum qualifications are to be laid down by an academic
authority authorised by the Central Government by notification, such an
authority which is so authorised by the Central Government is the National
Council for Teacher Education (for short, 'NCTE'). Thus, NCTE is
competent to lay down the minimum qualifications which a person needs
to possess to make him eligible for appointment as a teacher.
6. NCTE fulfilled this obligation in the form ofNotification dated
August 23, 2010, published on August 25, 2010 in the Gazette oflndia,
whereunder minimum qualifications for appointment as teachers were
laid down. Apart from other educational qualifications prescribed therein,
the said Notification also mandates passing of Teacher Eligibility Test
(for short, 'TET') and reads as follows:
"Pass in the Teacher Eligibility Test (TET), TO BE
CONDUCTED BY THE APPROPRIATE Government in
VlKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR
AGARWAL & ORS. ETC. [A. K. SlKRI, J.]
accordance with the Guidelines framed by the NCTE for
the purpose."
7. As is clear from the above, such a TET is to be conducted by
the appropriate State Government, i.e. respective State Governments,
though in accordance with the guidelines framed by NCTE for this
purpose. It may also be mentioned at this stage that passing of the said
TET is a mandatory condition without which a candidate is not eligible to
participate in the recruitment process for appointment as a teacher. NCTE
also formulated the guidelines, which were forwarded by it to the
Secretaries/ Commissioners of Education of State Government/Union
Territories vide its letter dated February 11, 2011. In these guidelines, it
was specified that the minimum pass percentage ofTET is 60. At the
same time, it enabled the State Governments to give concessions to
persons belonging to SC/ST, OBC, differently abled persons etc. 'in
accordance with their extant reservation policy'. Para 9 of these
guidelines stipulating the aforesaid conditions reads as under:
"Qualifying marks9. A person who scores 60% or more in the TET exam will
be considered as TET pass. School managements
(Government, local bodies, government aided and unaided)
(a) may consider giving concessions to persons belonging
to SC/ST, OBC, differently abled persons, etc., in
accordance with their extant reservation policy;
(b) should give weightage to the TEI scores in the
recruitment process; however, qualifying the TEI would
not confer a right on any person for recruitment/employment
as it is only one of the eligibility criteria for appointment."
In para 9, the extent of percentage to which the relaxation could
be granted in the qualifying marks for TEI was not stipulated and it was
mentioned that the State Governments could give such concessions in ·
accordance with their extant reservation policy.
8. Para 3 mentions about the training which was to be undergone
by a person. It would be apposite to reproduce this para as it has some
bearing for the purposes of the instant appeals. The same is as under:
"3. Training to be undergone. - A person -
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qualification shall also be eligible for appointment for Class
I to V up to l SI January, 2012, provided he undergoes, after
appointment, an NCTE recognised 6 month special
programme in Elementary Education.
(b) with D.Ed. (Special Education) or B.Ed. (Special
Education) qualification shall undergo, after appointment,
an NCTE recognised 6 month special programme in
Elementary Education."
9. Subsequently, vide Notification dated July 29, 2011, the aforesaid
letter dated February 11, 2011 was amended. It, inter alia, prescribed
that relaxation up to 5% in the qualifying marks to the candidates belonging
to reserved categories could be accorded.
l 0. New para 3 of the Notification dated February 11, 2011,
substituted in place of original para 3, is to the following effect:
D
"Ill. For para 3 of the Principal Notification the following
shall be substituted, namely:
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(i) Training to be undergone. -A person -
(a) with Graduation with at least 50% marks and B.Ed.
qualification with at least 45% marks and 1 year Bachelor
in Education (B.Ed.), in accordance with the NCTE
(Recognition Norms and Pr.ocedure) Regulations issued
from time to time in this regard, shall also be eligible for
appointment to Class I to V up to I SI January, 2012, provided
he/she undergoes, after appointment as NCTE recognized
6 month Special Programme in Elementary Education;
(b) With D.Ed. (Special Education) or B.Ed. (Special
Education) qualification shall undergo, after appointment
an NCTE recognised 6 month Special Programme in
Elementary Education.
(ii) Reservation Policy:
Relaxation up to 5% in the qualifying marks shall be allowed
to the candidates belonging to reserved categories, such as
SC/ST/OBC/PH."
VIKAS SANKHALA & ORS. ETC. v. VIKAS KUMAR
AGARWAL & ORS. ETC. [A. K. SIKRI, J.]
This amendment has given rise to another incidental but connected
issue, viz. whether 5% relaxation relates to the pass marks which are to
be attained in TET exam? We shall advert to this and other questions,
falling for our determination, at the appropriate stage. Since we are
now stating the events leading to the dispute, let us complete this narration
of facts, here.
11. After the issuance of the Notification dated February 11, 2011
by the NCTE, the State Government herein, i.e. the State of Rajasthan,
issued the letter dated March 23, 2011 to the concerned authorities
conveying its decision to grant relaxation in minimum pass marks in the
TET to reserved category candidates in the following manner:
"(a) I 0% to persons belonging to SC, ST, OBC, SBC and
all women belonging to the general category.
(b) 15% to all women belonging to SC, ST, OBC, SBC and
widowed and divorced women.
( c) 20% to persons covered under the definition of"persons
with disability" under clause (t) of Section 2 of the Persons
')'ith Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995."
12. As per the aforesaid communication dated March 23, 20H of
the State Government, candidates belonging to SC/ST, OBC, SBC and
women belonging to General category were to be given I 0% relaxation
in pass marks in TET. Thus, those belonging to these categories who
secured 50% marks were treated as having qualified TET. They were
allowed to appear in the selection process which was undertaken
thereafter some time in June 2012 and results thereof were declared in
August 2012. Many such persons were found eligible and selected at
different districts in the State ofRajasthan. They were given appointment
orders-and were also issued joining orders.
13. At this stage, many candidates belonging to the General category
filed writ petitions in the High Court of Rajasthan challenging their
selection on the ground that minimum percentage for passing TET was
60% and, therefore, all those candidates belonging to the reserved
categories who secured less than 60% in TET could not be declared as
having passed TET and were, therefore, ineligible to participate in the
selection process. Ultimately, the ,learned Single Judge of the High Court
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decided all these writ petitions vide common judgment dated October
06, 2012 thereby partly allowing the said writ petitions and holding that
the ordor dated March 23, 2011 of the State Government could not be
allowed to stand as the relaxation/concession in qualifying marks was
not legal or valid. It was also held that as per para 9 of the guidelines
contained in letter dated February II, 2011 issued by the NCTE,
concession could be given to persons belonging to SC/ST, OBC, differently
abled persons, etc. only 'in accordance with their extant reservation
policy' and insofar as the State of Rajasthan is concerned, it could not
show any "extant'' reservation policy warranting this concession. The
State Government challenged the said decision by filing appeals before
the Division Bench. Likewise, persons belonging to reserved categories
who had been selected and their selection set aside by the learned Single
Judge, also preferred appeals. In all, 29 appeals were filed which have
been decided by a common judgment dated July 02, 2013 by the Division
Bench of the High Court. Though the Division Bench did not agree with
some of the reasons given by the learned Single Judge, it dismissed all
the appeals by given its own reasons. It is in this backdrop that the State
Government as well as the selected candidates belonging to the reserved
category have felt aggrieved by the impugned decision making the same
subject matter of the present appeals.
14.