LAW FOR ALL

Thursday, November 10, 2016

Indus Water Treaty 1960 was entered into between the Governments of India and Pakistan on 19th September, 1960, under which India is entitled to the free, unrestricted use of the waters of the Ravi, Beas and Sutlej till they finally cross into Pakistan; WHEREAS while at the time of signing the said treaty, the waters of Sutlej had already been planned to be utilised for the Bhakra-Nangal Project, the surplus flow of rivers Ravi and Beas, over and above the pre-partition use, was allocated by the Agreement in 1955 between the concerned states as follows namely:- Punjab 7.20 MAF (Including 1.30 MAF for Pepsu) Rajasthan 8.00 MAF Jammu & Kashmir 0.65 MAF ................. 15.85 MAF .................= delay in execution of a final judgment or decree, more so when it is of the Apex Court, should never be countenanced by any authority because it would surely tend to undermine people’s faith in the judicial system of the country, entailing in turn avoidable harm to all the institutions and functionaries under the Constitution, may be even to the Constitution itself.-2016 Nov. http://judis.nic.in/supremecourt/imgst.aspx?filename=44297- U/A 143(1) OF THE CONSTITUTION OF INDIA Vs. ... ANIL R. DAVE, PINAKI CHANDRA GHOSE, SHIVA KIRTI SINGH, ADARSH KUMAR GOEL, AMITAVA ROY

REPORTABLE
IN THE SUPREME COURT OF INDIA
ADVISORY JURISDICTION

SPECIAL REFERENCE NO. 1 OF 2004
(UNDER ARTICLE 143 (1) OF THE CONSTITUTION OF INDIA)
“IN RE: THE PUNJAB TERMINATION OF AGREEMENT ACT, 2004”

The following is the opinion of the Court:

ANIL R. DAVE, J.

1. By a Reference dated 22nd July, 2004, Hon’ble the President of India
made a request for an advisory opinion to this Court under Article 143 (1)
of the Constitution of India, in relation to enactment of the Punjab
Termination of Agreement Act, 2004 (hereinafter referred to as “the Punjab
Act”) by the State of Punjab.

2. The text of the Reference referred to for the consideration & opinion
of this Court is as follows:-
“WHERAS the Indus Basin comprises the rivers Indus, Jhelum, Chenab,
Ravi, Beas and Sutlej;

WHEREAS the Indus Water Treaty 1960 was entered into between the
Governments of India and Pakistan on 19th September, 1960, under which
India is entitled to the free, unrestricted use of the waters of the Ravi,
Beas and Sutlej till they finally cross into Pakistan;

WHEREAS while at the time of signing the said treaty, the waters of Sutlej
had already been planned to be utilised for the Bhakra-Nangal Project, the
surplus flow of rivers Ravi and Beas, over and above the pre-partition use,
was allocated by the Agreement in 1955 between the concerned states as
follows namely:-

Punjab 7.20 MAF
(Including 1.30 MAF for Pepsu)

Rajasthan 8.00 MAF
Jammu & Kashmir 0.65 MAF
.................
15.85 MAF
.................

WHEREAS after the afore-said allocation, there was a reorganisation of the
State of Punjab under the Punjab Reorganisation Act, 1966 (31 of 1966) as a
result of which successor states, namely, State of Punjab and State of
Haryana were created and it became necessary to determine the respective
shares of the successor states out of the quantum of water which could
become available in accordance with aforesaid allocation for use in the
erstwhile State of Punjab and when the successor states failed to reach an
agreement, a notification dated 24th March, 1976 was issued by the Central
Government under Section 78 of the Punjab Reorganisation Act, 1966 under
which State of Haryana was allocated 3.5 MAF quantity of water;

WHEREAS to give effect to the allocation of 3.5 MAF of water to the State
of Haryana under the said 1976 notification, construction of Satluj-Yamuna
Link Canal (hereinafter called SYL Canal) was started by the State of
Haryana in their portion after the 1976 notification. The construction of
SYL Canal was also started by Punjab in their portion in early eighties;

WHEREAS the States of Punjab, Haryana and Rajasthan entered into agreement
dated 31.12.1981, by which the States of Punjab, Haryana and Rajasthan, in
view of overall national interest and optimum utilisation of the waters,
agreed on the reallocation of the waters among the States as follows:-

Share of Punjab : 4.22 MAF
Share of Haryana : 3.50 MAF
Share of Rajasthan : 8.60 MAF

Quantity earmarked
for Delhi water supply: 0.20 MAF
Share of J & K : 0.65 MAF
...............
Total 17.17 MAF
...............
WHEREAS it was also agreed under the aforesaid 1981 agreement that the SYL
Canal project could be completed in a time bound manner with a maximum
period of two years from the date of signing of the agreement so that the
State of Haryana is enabled to draw its allocated share of water. This
agreement is in use for deciding the periodical distribution of waters
among the concerned states by the Bhakra Beas Management Board;

WHEREAS an accord called the “Punjab Settlement” was signed on 24th July,
1985 to resolve the issues relating to the State of Punjab;

WHEREAS paragraph 9.1 of the ‘Punjab Settlement’ provide that the farmers
of Punjab, Haryana and Rajasthan will continue to get water not less than
what they are using from the Ravi-Beas System as on 1.7.1985, though waters
used for consumptive purposes will also remain unaffected and that quantum
of usage claimed shall be verified by the Tribunal referred to in Paragraph
9.2 of the settlement under which the claims of Punjab and Haryana
regarding their shares in the remaining waters will be referred for
adjudication to a Tribunal;

WHEREAS to give effect to paragraphs 9.1 and 9.2 of the ‘Punjab
Settlement’, Section 14 was inserted in the Inter-State water Disputes Act,
1956 under which Eradi Tribunal was constituted for verification of the
quantum of usage of water claimed by the farmers of Punjab, Haryana and
Rajasthan regarding shares in their remaining waters. The Tribunal
forwarded a report in January, 1987. References of the States of Punjab,
Haryana and Rajasthan and Central Government seeking clarification/
guidance on certain points of the report was made to the Tribunal in
August, 1987 under relevant provisions of the Inter-State River Water
Disputes Act, 1956. These references are under the consideration of the
Tribunal at present;

WHEREAS it was also agreed under paragraph 9.3 of the ‘Punjab Settlement’
that the construction of the SYL Canal shall continue and it shall be
completed by 15th August, 1986;

WHEREAS the SYL Canal could not be completed as the works came to a halt
following the killings of Chief Engineer and a Superintending Engineer of
the project in July, 1990 and were not resumed by the Government of Punjab
subsequently and the State of Haryana filed Suit No. 6 of 1996 before this
Hon’ble Court praying for early completion of the SYL Canal in Punjab
territory;

WHEREAS the said suit was decreed by this Hon’ble Court by its order dated
15.01.2002, by relying on the 31.12.1981 agreement and the State of Punjab
was directed to make the SYL Canal functional within a period of one year;

WHEREAS the State of Punjab filed a Suit (O.S. No. 1 of 2003) seeking
discharge/ dissolution of the obligation to construct the SYL Canal as
directed and Suit O.S. No. 1 of 2003 was dismissed by this Hon’ble Court by
its judgment and order dated 4.6.2004. The Union of India was directed in
the said judgment and order dated 4.6.2004 to mobilise a central agency to
take control of the canal works within a period of one month and the State
of Punjab was directed to handover the works to the Central Agency within
two weeks thereafter;

WHEREAS on 12th July, 2004, the State of Punjab has enacted the Punjab
Termination of Agreements Act, 2004 (herein after called Punjab Act, 2004)
terminating and discharging the Government of Punjab from its obligations
under the agreement dated 31.12.1981 and all other agreements relating to
waters of Ravi-Beas.

WHEREAS on 15th July, 2004, the Union of India filed an application for
taking on record subsequent facts and developments after the passing of the
order of the Hon’ble Supreme Court dated 4.6.2004 and requesting the
Hon’ble Court to pass such other and further orders as deemed fit in the
interest of justice;

WHEREAS doubts have been expressed with regard to the constitutional
validity of the Punjab Act, 2004 and its provisions and also whether the
agreement dated 31.12.1981 can be said to have been validly terminated by
the State of Punjab and whether the State of Punjab has been lawfully
discharged from the said agreement;

AND whereas in view of the aforesaid, it appears that there is likelihood
of the constitutional validity of the provisions of the Punjab Act 2004
being challenged in Courts of law involving protracted and avoidable
litigation, that the differences and doubts have given rise to public
controversy which may lead to undesirable consequences and that a question
of law has arisen which is of such a nature and of such public importance
that is expedient to obtain the opinion of the Hon’ble Supreme Court of
India thereon;

NOW, THEREFORE, in exercise of powers conferred upon me by clause (1) of
Article 143 of the Constitution of India, I, A.P.J. Abdul Kalam, President
of India, hereby refer the following questions to the Supreme Court of
India for consideration and report thereon, namely:

i) Whether the Punjab Termination of Agreements Act, 2004 and the
provisions thereof are in accordance with the provisions of the
Constitution of India;

ii) Whether the Punjab Termination of Agreements Act, 2004 and the
provisions thereof are in accordance with the provisions of Section 14 of
the Inter-State Water Disputes Act, 1956, Section 78 of the Punjab
Reorganisation Act, 1966 and the Notification dated 24th March, 1976 issued
there under;

iii) Whether the State of Punjab had validly terminated the agreement
dated 31.12.1981 and all other agreements relating to the Ravi-Beas waters
and is discharged from its obligation under the said agreement(s); and

iv) Whether in view of the provisions of the Act; the State of Punjab is
discharged from its obligations from the judgment and decree dated
15.01.2002 and the judgment and order dated 4.6.2004 of the Supreme Court
of India.”

3. In pursuance of notice issued, the learned Attorney General for India
appeared and made introductory submissions with regard to the Reference and
thereafter, by an order dated 2nd August, 2004, this Court, issued notices
to the Union of India and States of Punjab, Haryana, Rajasthan, Himachal
Pradesh, Jammu & Kashmir and the NCT of Delhi through their respective
Chief Secretaries.

4. Virtually, all relevant facts which are necessary for rendering our
opinion on the issues referred to this Court have been duly incorporated in
the Reference and in the circumstances, we would not like to burden our
opinion by reiterating the facts. Suffice it to state that by virtue of
the provisions of Article 143 of the Constitution of India this Court has
to examine the validity of the Punjab Act, 2004 and we have also to examine
whether the State of Punjab had validly terminated the Agreement dated 31st
December, 1981 and other agreements relating to Ravi-Beas waters so as to
discharge it from the obligations which it had to discharge under certain
valid orders passed by appropriate authorities. However, for further
clarity we may incorporate facts with regard to certain litigation, in a
nutshell, which are as under:

The States of Punjab, Haryana and Rajasthan entered into an Agreement dated
31st December, 1981 which has been referred to hereinabove in the
Reference, by virtue of which the States of Pubjab, Haryana and Rajasthan,
in view of overall national interest and optimum utilization of Ravi and
Beas waters had agreed on re-allocation of Ravi and Beas waters but as the
said agreement was not being acted upon by the State of Punjab, the State
of Haryana had instituted Suit No.6 of 1996 before this Court under Article
131 of the Constitution of India impleading the State of Punjab and Union
of India, seeking the following, among other, reliefs:-

"(a) pass a decree declaring that the order dated 24-3-1976, the Agreement
of 31-12-1981 and the Settlement of 24-7-1985 are final and binding inter
alia on the State of Punjab casting an obligation on Defendant 1 to
immediately restart and complete the portion of the Sutlej-Yamuna Link
Canal Project as also make it usable in all respects, not only under the
aforesaid order of 1976, Agreement of 1981 and Settlement of 1985 but also
pursuant to a contract established by conduct from 1976 till date;

(b) pass a decree of mandatory injunction compelling defendant 1 (failing
which defendant 2 by or through any agency) to discharge its/their
obligations under the said Notification of 1976, the Agreement of 1981 and
the Settlement of 1985 and in any case under contract established by
conduct, by immediately restarting and completing that portion of the
Sutlej-Yamuna Link Canal Project in the State of Punjab and otherwise
making it suitable for use within a time bound manner as may be stipulated
by this Hon'ble Court to enable the State of Haryana to receive its share
of the Ravi and Beas waters;”

5. This Court after examining all the legal aspects and provisions,
passed a decree in the said Suit No. 6 of 1996 vide judgment dated 15th
January, 2002, relevant portion of which is extracted hereinbelow:-
“18. ........ The State Governments having entered into agreements among
themselves on the intervention of the Prime Minister of the country,
resulting in withdrawal of the pending suits in the Court, cannot be
permitted to take a stand contrary to the agreements arrived at between
themselves. We are also of the considered opinion that it was the solemn
duty of the Central Government to see that the terms of the agreement are
complied with in toto. That apart, more than Rs. 700 crores of public
revenue cannot be allowed to be washed down the drain, when the entire
portion of the canal within the territory of Haryana has already been
completed and major portion of the said canal within the territory of
Punjab also has been dug, leaving only minor patches within the said
territory of Punjab to be completed. If the apprehension of the State is
that on account of digging of the canal, the State of Haryana would draw
more water than that which has been allocated in its favour, then the said
apprehension also is thoroughly unfounded inasmuch as the source for
drawing of water is only from the reservoir, which lies within the
territory of Punjab and a drop of water will not flow in the canal unless
the connecting doors are open. But the quantity of water that has already
been allocated in favour of the State of Haryana, must be allowed to be
drawn and that can be drawn only if the additional link canal is completed
inasmuch as the existing Bhakra Main Canal has the capacity of supplying
only 1.62 MAF of water. This being the position, we unhesitatingly hold
that the plaintiff-State of Haryana has made out a case for issuance of an
order of injunction in the mandatory form against the State of Punjab to
complete the portion of SYL Canal, which remains incomplete and in the
event the State of Punjab fails to complete the same, then the Union
Government-defendant 2 must see to its completion, so that the money that
has already been spent and the money which may further be spent could at
least be utilized by the countrymen. We have examined the materials from
the stand point of existence of a prima facie case, balance of convenience
and irreparable loss and injury and we are satisfied that the plaintiff has
been able to establish each one of the aforesaid criteria and as such is
entitled to the injunction sought for. This issue is accordingly answered
in favour of the plaintiff and against the defendants. We, therefore, by
way of a mandatory injunction, direct the defendant-State of Punjab to
continue the digging of Sutlej-Yamuna Link Canal, portion of which has not
been completed as yet and make the canal functional within one year from
today. We also direct the Government of India – defendant 2 to discharge
its constitutional obligation in implementation of the aforesaid direction
in relation to the digging of canal and if within a period of one year the
SYL Canal is not completed by the defendant-State of Punjab, then the Union
Government should get it done through its own agencies as expeditiously as
possible, so that the huge amount of money that has already been spent and
that would yet to be spent, will not be wasted and the plaintiff-State of
Haryana would be able to draw the full quantity of water that has already
been allotted to its share. Needless to mention, the direction to dig SYL
Canal should not be construed by the State of Haryana as a license to
permit them to draw water in excess of the water that has already been
allotted and in the event the tribunal, which is still considering the case
of re-allotment of the water, grants any excess water to the State of
Haryana, then it may also consider issuing appropriate directions as to how
much of the water could be drawn through SYL Canal.

19. The Plaintiff’s suit is decreed on the aforesaid terms. There will be
no order as to costs.”
[Emphasis Supplied]
6. The State of Punjab did not comply with the decree dated 15th
January, 2002 passed by this Court in Suit No. 6 of 1996. On 18th January,
2002, the State of Punjab filed an application for review of said judgment
dated 15th January, 2002 which was dismissed by this Court on 5th March,
2002. On 18th December, 2002, an application was filed by the State of
Haryana for enforcement of the judgment and decree dated 15.01.2002 and the
said application was registered as IA No. 1 of 2002.

7. On 13th January, 2003; the State of Punjab filed suit No. 1 of 2003
under Article 131 of the Constitution of India before this Court seeking
inter-alia the following reliefs:-
(a) To discharge/dissolve the obligation to construct SYL Canal imposed by
the mandatory injunction decreed by this Hon'ble Court in its
judgment/decree dated 15.01.2002 in OS No.6/1996 for the reasons set out in
the plaint;

(b) To declare that the judgment/decree dated 15.01.2002 in OS No. 6/1996
is not binding or enforceable since the issues raised in that suit could
only have been decided by a Constitution Bench in terms of Article 145(3)
of Constitution of India;

(c) To declare that Section 14 of the Act, 1956 is ultra-vires the
Constitution of India;

(d) To declare that Section 14 of the Act, 1956 is no longer enforceable
for the reasons set out in the plaint;

(e) To declare the Punjab Settlement (Rajiv Longowal Accord) is not
enforceable under the changed circumstances as set out in the Plaint:

In the alternative;
in case it is held by this Hon'ble Court that the Punjab Settlement dated
24.07.1985 is an enforceable Agreement then direct enforceability and
compliance with other 10 issues and to keep in abeyance obligation to
construct SYL canal till other conditions set out in the settlement are
implemented and/or the Water Disputes arising from the reallocation of Ravi-
Beas waters are resolved under the Act, 1956.

(f) Declare that Section 78(1) of the Act, 1966 is ultra vires the
Constitution of India, and that all acts, deeds and things done pursuant
thereto or in consequence thereof including all Notifications, Agreements,
etc. are null and void including the notification dated 24.03.1976 and the
Agreement dated 31.12.1981 as non-est and void ab initio.

8. By judgment and order dated June 4, 2004; this Court dismissed the
suit filed by the State of Punjab and allowed the execution petition filed
by the State of Haryana by passing inter-alia the following order:-
“96. The residuary power under Section 51(e) allows a Court to pass orders
for enforcing a decree in a manner which would give effect to it. The
period specified in the decree for completion of the canal by Punjab is
long since over. The Union of India has said that it had worked out a
contingent action plan during this period. The contingency in the form of
expiry of the one year period in January 2003 has occurred. We have not
been told whether the contingency plan has been put into operation.
Although it appears that the Cabinet Committee on Project Appraisals had
approved the proposal for completion of the SYL canal by BRO and at a
meeting convened as early as on 20-2-1991, the then Prime Minister directed
that BRO take over the work for completion of the SYL Canal in the minimum
time possible, BRO is not now available for the purpose. After the decree
the Central Water Commission Officials have inspected the canal on 9-10-
2002. The report has assessed a minimum period of about two years for
removing silt deposits, clearing of trees and bushes, completing the
damaged and balance works and making the canal functional and has estimated
an amount of about Rs.250 crores for this purpose excluding the liabilities
of Punjab. In the circumstances we direct the Union of India to carry out
its proposed action plan within the following time frame:

1) The Union of India is to mobilize a Central agency to take control of
the canal works from Punjab within a month from today.

2) Punjab must hand over the works to the Central Agency within 2 (Two)
weeks thereafter.

3) An empowered committee should be set up to coordinate and facilitate the
early implementation of the decree within 4 (four) weeks from today.
Representatives of the States of Haryana and Punjab should be included in
such Committee;

4) The construction of the remaining portion of the canal including the
survey, preparation of detailed estimates and other preparatory works such
as repair, desilting, clearance of vegetation etc. are to be executed and
completed by the Central Agency within such time as the High Powered
Committee will determine.

5) The Central and the Punjab Governments should provide adequate security
for the staff of the Central Agency.

97. We conclude this chapter with a reminder to the State of Punjab that
"Great states have a temper superior to that of private litigants, and it
is to be hoped that enough has been decided for patriotism, the fraternity
of the Union, and mutual consideration to bring it to an end".
[Emphasis Supplied]
9. In the aforestated background, on 12th July, 2004, the State of
Punjab enacted the Punjab Act, 2004 with an intention to terminate the
Agreement dated 31st December, 1981 and all other Agreements relating to
sharing of waters of rivers Ravi and Beas. Intention behind the said
enactment was also to discharge the Government of Punjab from the
obligations arising under the aforestated Agreement dated 31st December,
1981 and to nullify the decrees of the Court referred to hereinabove.

10. The aforestated facts will give some further idea about the facts and
circumstances in which the President of India has referred the aforestated
questions to this Court for its opinion.

11. At this juncture, we would like to refer to certain unwarranted
developments which took place after we started hearing this Reference. The
legislature for the State of Punjab introduced Punjab Satluj Yamuna Link
Canal Land (Transfer of Proprietary Rights) Bill, 2016. No assent of
Goverrnor till date and therefore, it is not a legislation and will remain
Bill passed by Legislative Assembly. By virtue of the aforestated
legislation, the State of Punjab proposed to act in clear violation of the
Agreement dated 31st December, 1981 which has been referred to in the
Reference.

12. The State of Punjab had an intention to de-notify the land acquired
for the purpose of construction of Sutlej Yamuna Link Canal (hereinafter
referred to as “the SYL Canal”) in Punjab and in pursuance of the said
enactment, the State of Punjab had started returning possession of the land
already acquired to its landlords and earth moving equipments had been
mobilized to level, destroy and fill up the SYL Canal which was in the
process of construction.

13. In the aforestated circumstances, I.A. No.7 of 2016 had been filed by
the State of Haryana praying that the operation and implementation of
Punjab Satluj Yamuna Link Canal Land (Transfer of Proprietary Rights) Act,
2016 be suspended so that the entire proceedings initiated in pursuance of
the Reference may not be frustrated. After hearing the concerned parties,
on 17.3.2016, this Court was constrained to pass the following order:-

“I.A. No.7/2016 – for appropriate directions. Taken on Board. Upon perusal
of the contents of the application and upon hearing the learned counsel
appearing for the parties, prima facie, it appears that an effort has been
made to see that execution of a decree of this Court is being made
inexecutable and this Court cannot be a silent spectator of the said fact
and therefore, we direct that status quo shall be maintained by the parties
with regard to the following properties referred to in para (d)(ii) of the
application:

“(d)(ii) lands, works, property and portions of the SYL canal and all lands
within the alignment of the SYL canal within the territories of the State
of Punjab which are covered by the judgments of this Court in State of
Haryana v State of Punjab, (2002) 2 SCC 507 (paragraphs 18 and 19) and
State of Haryana v State of Punjab, (2004) 12 SCC 712 (paragraph 96),”.

In the circumstances, it is further directed that (i) The Secretary,
Home Department, Union of India, (ii) The Chief Secretary, State of Punjab,
and (iii)The Director General of Police, State of Punjab are appointed as
Court Receivers as prayed for in para (d)(ii) and all the properties
referred to in the said para shall be deemed to have vested in them and
they shall also see that status quo is maintained with regard to the
properties referred to herein-above. Counter affidavits to the application
be filed on or before 28th March, 2016”.

14. We have heard the learned Solicitor General of India appearing for
the Union of India and learned counsel appearing for the States of Punjab,
Haryana, Jammu and Kashmir (J & K), Rajasthan, Himachal Pradesh and the NCT
of Delhi at length. Several judgments were cited by the learned counsel so
as to substantiate their arguments. We do not propose to refer to all the
judgments cited, especially in view of the fact that the law laid down by
this Court, which has been referred to by the learned counsel cannot be
disputed and there are some judgments which refer to all the issues with
which we are concerned. We have considered all the submissions and
substance of all the judgments referred to by them and we are referring to
the submissions made by them in a nutshell hereinbelow.

15. As all the questions referred to this Court are interlinked, for the
sake of convenience, we have discussed the same together instead of dealing
with them separately.

16. The learned counsel appearing on behalf of the State of Punjab
vehemently submitted that this Reference is not maintainable under the
provisions of Article 143(1) of the Constitution of India. He submitted
that several issues with regard to facts not on record are also involved
and that is one of the reasons for which this Court should not render its
opinion. He further submitted that it is not obligatory on the part of
this Court to give its opinion in each and every matter which might be
referred to this Court by the President of India. According to him, looking
at the facts of this case, especially when several other incidental facts
are involved in the issue referred to this Court, this Court should refuse
to give its opinion. He also referred to some of the judgments which lay
down law to the effect that it is not obligatory on the part of this Court
to give opinion as and when a Reference is made by the President of India
under the provisions of Article 143(1) of the Constitution of India.

17. He further submitted that this Court must take into account the fact
that the circumstances have changed substantially in the last few years.
According to him, after this Court had decreed the suit filed by the State
of Haryana referred to hereinabove, the actual position with regard to the
supply of water in the rivers has remarkably changed as supply of water
has been substantially reduced, which has created problems for the State of
Punjab and in view of the changed circumstances, according to him, it was
necessary for the State of Punjab to take a different stand and in the new
set of circumstances, the Punjab Act, 2004 had to be enacted and it is
imperative on the part of the Statutory Authorities and this Court to
consider the said changed circumstances and therefore, the Punjab Act, 2004
cannot be said to be invalid or ultra vires the Constitution of India. He
further submitted that in view of the fact that under the provisions of
Section 14 of The Inter-State River Water Disputes Act, 1956 the Tribunal
has already been constituted, it would be expedient to refer the entire
matter to the Tribunal so that the Tribunal can consider all the relevant
facts and take an appropriate decision.

18. He further submitted that the State of Punjab has already filed a
suit with a prayer to constitute a Tribunal so that the dispute can be
referred to the Tribunal and in the aforestated circumstances, the
Reference should not be answered. Moreover, he also submitted that the law
on the subject is crystal clear to the effect that whenever there is any
decision with regard to sharing of waters, the decision should be reviewed
periodically when the circumstances get changed i.e. when the flow of water
or supply of water is changed. According to him, in the changed
circumstances compliance of all earlier orders should not be insisted upon
and a fresh decision based on the ground realities should be taken with
regard to sharing of the waters. The sum and substance of the submissions
of the learned counsel appearing for the State of Punjab was that this
Reference is not at all maintainable as the law enacted by the State of
Punjab is within its statutory powers.

19. In reply to the main issue with regard to the validity of the
Reference the learned counsel appearing for the State of Haryana and those
supporting him submitted that the Reference is maintainable and the
submissions made by the learned counsel appearing for the State of Punjab
did not have any substance.

20. So as to examine whether such a Reference can be made, let us
consider the provisions of Article 143 of the Constitution of India, which
reads as under:-
“Article 143: Power of President to consult Supreme Court.-

(1) If at any time it appears to the President that a question of law or
fact has arisen, or is likely to arise, which is of such a nature and of
such public importance that it is expedient to obtain the opinion of the
Supreme Court upon it, he may refer the question to that Court for
consideration and the Court may, after such hearing as it thinks fit,
report to the President its opinion, thereon.

(2) The President may, notwithstanding anything in the proviso to Article
131, refer a dispute of the kind mentioned in the said proviso to the
Supreme Court for opinion and Supreme Court shall, after such hearing as it
thinks fit, report to the President its opinion thereon.”

21. A bare perusal of Article 143 of the Constitution would show that the
President is authorized to refer to this Court a question of law or fact,
which in his/her opinion is of such a nature and of such a public
importance that it is expedient to obtain the opinion of the Supreme Court
upon it. The Article does not restrict the President to obtain opinion
only on a pure question of law. The submission made by the learned counsel
appearing for the State of Punjab that several questions of fact are
involved in the Reference is thus hardly relevant, for the reason that an
opinion can be sought on question of law and even on question of fact.

22. It is true that it is for this Court to decide whether to render its
opinion to the President and it is also true that such a view has been
taken by this Court and in a given case this Court can refuse to give its
opinion.

23. While considering the same issue, this Court in the case of Natural
Resources Allocation, In Re, Special Reference No.1 of 2012 2012(10) SCC 1
has observed as under:
“35. Insofar as the impact of filing and withdrawal of the review
application by the Union of India against the decision in 2G case on the
maintainability of the instant Reference is concerned, it is a matter of
record that in the review petition, certain aspects of the grounds for
review which have been stated in the recitals of the Reference as well as
in some questions, were highlighted. However, there is a gulf of
difference between the jurisdiction exercised by this Court in a review and
the discretion exercised in answering a reference under Article 143(1) of
the Constitution. A review is basically guided by the well-settled
principles for review of a judgment and a decree or order passed inter se
parties. The Court in exercise of power of review may entertain the review
under the acceptable and settled parameters. But, when an opinion of this
Court is sought by the executive taking recourse to a constitutional power,
needless to say, the same stands on a different footing altogether. A
review is lis specific and the rights of the parties to the controversy are
dealt with therein, whereas a reference is answered keeping in view the
terms of the reference and scrutinising whether the same satisfies the
requirements inherent in the language employed under Article 143(1) of the
Constitution. In our view, therefore, merely because a review had been
filed and withdrawn and in the recital the narration pertains to the said
case, the same would not be an embargo or impediment for exercise of
discretion to answer the reference”.

24. Thus, it is within the discretion of this Court, subject to certain
parameters to decide whether to refuse to answer a question on a reference.
Looking at the facts of this Case, in our opinion this is not a case where
this Court would like to refuse to give its opinion to the President under
the provisions of Article 143 of the Constitution of India as there is no
good reason for the same.

25. In the circumstances, we do not agree with the submission made by the
learned counsel for the State of Punjab to the effect that we should not
give our opinion simply because we are not bound to give our opinion under
the provisions of Article 143 of the Constitution of India.

26. On the other hand, the learned counsel appearing for the State of
Haryana narrated the history of the litigation of different States on the
issue of water sharing of the rivers concerned and submitted in a nutshell
that by enacting the Punjab Act, 2004, the State of Punjab wanted to
nullify the effect of the decrees passed by this Court against the said
State. He further submitted that by a legislative act, a party to the
litigation cannot enact a Statute which would nullify the effect of a
decree passed by a Court of law and if such a thing is permitted,
governance of our democracy as per rule of law would be in jeopardy because
the Constitution of India provides for the manner in which the dispute
among the States has to be adjudicated. If in a federal structure like
ours, one State against whom a decree has been passed by this Court is
permitted to enact law to nullify the decree, it would result into very
hazardous consequences and mutilate the finality of a judicial verdict
leading to uncertainty and that may result into legal chaos in the
country. He mainly relied upon the judgments delivered by this Court in the
case of Re: Cauvery Water Disputes Tribunal, (1993) 1 Supp. SCC 96 (II) and
State of Tamil Nadu v. State of Kerala and Another, (2014) 12 SCC 696. He
submitted that our Constitution provides for separation of powers and the
method of adjudication of disputes among the States. If the law
incorporated in the Constitution is not followed there would not be rule of
law in the country. He referred to some other judgments so as to
substantiate his case, mainly to the effect that such a law would adversely
affect the functioning of different branches of the Government. He also
submitted that it would not be within the power of a legislature to enact
law to nullify the decree of the Supreme Court.

27. He further submitted that once an Agreement with regard to sharing of
waters had been executed, it becomes duty of each State, which is a party
to the Agreement, to respect the Agreement and to act accordingly. In the
instant case, there is not only an agreement but there are decrees of this
Court, which would be nullified if such an Act is implemented. He,
therefore, submitted that this Court should opine against the
constitutionality of the Punjab Act, 2004 and should also opine that it is
obligatory on the part of the State of Punjab to act as per the Agreement
entered into by it.

28. He further submitted that if for any reason the State of Punjab has a
feeling that because of the changed circumstances, it is not possible to
share waters of the rivers in the proportion decided under the Agreement or
any decree, the State of Punjab or any other State, which is a party to the
agreement should approach the Tribunal for getting an appropriate order so
that the needful can be done for reviewing the proportion on the basis
whereof the water sharing agreement had been executed. Instead of doing
so, according to him, the State of Punjab has tried to exercise its
legislative powers so as to nullify the decree of this Court, which is
contrary to settled law.

29. He further submitted that even our federal structure would be
adversely affected if a State is permitted to act in a way which would
nullify the decree passed by a competent Court. He strenuously submitted
that such an Act would result into lawlessness and breaking down of the
legal system.

30. The other counsel appearing for different States have supported the
learned counsel appearing for the State of Haryana and they have also
submitted that the State of Punjab could not have enacted the Punjab Act so
as to nullify the decree of a competent Court and to unilaterally absolve
itself from its liability under the Agreement.

31. Upon hearing the learned counsel and going through the record
pertaining to the case and upon perusal of the judgments cited by the
learned counsel, we are of the view that the Punjab Act cannot be
considered to be legal and valid and the State of Punjab can not absolve
itself from its duties/liabilities arising out of the Agreement in
question.

32. As stated hereinabove, it is not in dispute that there was a
litigation between the State of Punjab and the State of Haryana and
ultimately a decree was made whereby the arrangement with regard to sharing
of water as per the agreement dated 31st December, 1981 had been made.
There is thus a legal sanction to the said arrangement and once a binding
decree has been passed by a Court of law, a party to the litigation cannot
unilaterally act in a manner which would nullify the effect of the decree.

33. In the instant case, instead of approaching the appropriate
authority, namely, the Tribunal for appropriate relief, the State of Punjab
exercised its legislative power by enacting the Punjab Act so as to nullify
the effect of the Decree.

34. Dealing with a similar issue, this Court in the case of State of
Tamil Nadu (supra), has held that a State “cannot through legislation do an
act in conflict with the judgment of the highest Court which has attained
finality. If a legislation is found to have breached the established
constitutional limitation such as separation of powers, it has to go and
cannot be allowed to remain” (Para 146).

35. It has been further observed by this Court as under:-
“147. It is true that the State’s sovereign interests provide the
foundation of the public trust doctrine but the judicial function is also a
very important sovereign function of the State and the foundation of the
rule of law. The legislature cannot by invoking “public trust doctrine” or
“precautionary principle” indirectly control the action of the courts and
directly or indirectly set aside the authoritative and binding finding of
fact by the court, particularly, in situations where the executive branch
(Government of the State) was a party in the litigation and the final
judgment was delivered after hearing them.

xxx xxx xxx
149. This Court in Mullaperiyar Environmental Protection Forum v. Union
of India [(2006) 3 SCC 643], after hearing the State of Kerala, was not
persuaded by Kerala’s argument that the Mullaperiyar Dam was unsafe or
storage of water in that Dam cannot be increased. Rather, it permitted
Tamil Nadu to increase the present water level from 136 ft to 142 ft and
restrained Kerala from interfering in Tamil Nadu’s right in increasing the
water level in the Mullaperiyar Dam to 142 ft. Thus, a judgment has been
given by this Court in contest between the two States in respect of safety
of Mullaperiyar Dam for raising the water level to 142 ft. The essential
element of the judicial function is the decision of a dispute actually
arising between the parties and brought before the court. Necessarily, such
decision must be binding upon the parties and enforceable according to the
decision. A plain and simple judicial decision on fact cannot be altered by
a legislative decision by employing doctrines or principles such as “public
trust doctrine”, “precautionary principle”, “larger safety principle” and,
“competence of the State Legislature to override agreements between the two
States”. The constitutional principle that the legislature can render
judicial decision ineffective by enacting validating law within its
legislative field fundamentally altering or changing its character
retrospectively has no application where a judicial decision has been
rendered by recording a finding of fact. Under the pretence of power, the
legislature, cannot neutralise the effect of the judgment given after
ascertainment of fact by means of evidence/materials placed by the parties
to the dispute. A decision which disposes of the matter by giving findings
upon the facts is not open to change by legislature. A final judgment, once
rendered, operates and remains in force until altered by the court in
appropriate proceedings.

150. The 2006 (Amendment) Act plainly seeks to nullify the judgment of this
Court which is constitutionally impermissible. Moreover, it is not disputed
by Kerala that the 2006 (Amendment) Act is not a validation enactment.
Since the impugned law is not a validating law, it is not required to
inquire whether in making the validation the legislature has removed the
defect which the Court has found in existing law. The 2006 (Amendment) Act
in its application to and effect on the Mullaperiyar Dam is a legislation
other than substantially legislative as it is aimed at nullifying the prior
and authoritative decision of this Court. The nub of the infringement
consists in the Kerala Legislature’s revising the final judgment of this
Court in utter disregard of the constitutional principle that the revision
of such final judgment must remain exclusively within the discretion of the
court.”

36. It has been further observed in the said judgment that a litigating
person cannot become judge in its own cause. The said well known principle
has been clearly depicted in paragraph 158 of the said judgment as under:-
“158. There is yet another facet that in federal disputes, the legislature
(Parliament and State Legislatures) cannot be judge in their own cause in
the case of any dispute with another State. The rule of law which is the
basic feature of our Constitution forbids the Union and the States from
deciding, by law, a dispute between two States or between the Union and one
or more States. If this was permitted under the Constitution, the Union and
the States which have any dispute between them inter se would enact law
establishing its claim or right against the other and that would lead to
contradictory and irreconcilable laws. The Constitution makers in order to
obviate any likelihood of contradictory and irreconcilable laws being
enacted has provided for independent adjudication of federal disputes.
Article 131 of the Constitution confers original jurisdiction upon this
Court in relation to the disputes between the Government of India and one
or more States or between the Government of India and any State or States
on one side and one or more States on the other or between two or more
States insofar as dispute involves any question on which the existence or
extent of a legal right depends. The proviso appended to Article 131 carves
out an exception to the jurisdiction of this Court to a dispute arising out
of treaty, agreement, covenant, engagement, sanad or other similar
instrument which have been entered into or executed before the commencement
of the Constitution and continues in operation after such commencement,
which are political in nature. In relation to dispute relating to waters of
inter-State river or river valleys, Article 262 provides for creation of
tribunal or forum for their adjudication. In federal disputes, Parliament
or State Legislatures by law, if seek to decide a dispute between the two
States or between the Union and one or more States directly or indirectly,
the adjudicatory mechanism provided in Articles 131 and 262 of the
Constitution would be rendered nugatory and, therefore, such legislation
cannot be constitutionally countenanced being violative of separation of
powers doctrine.”

37. Finally, on the subject on hand, this Court observed as under in
paragraph 160:
“160. Where a dispute between two States has already been adjudicated upon
by this Court, which it is empowered to deal with, any unilateral law
enacted by one of the parties that results in overturning the final
judgment is bad not because it is affected by the principles of res
judicata but because it infringes the doctrine of separation of powers and
rule of law, as by such law, the legislature has clearly usurped the
judicial power.”

38. Looking at the aforestated legal position, in our opinion, the State
of Punjab had exceeded its legislative power in proceeding to nullify the
decree of this Court and therefore, the Punjab Act cannot be said to be a
validly enacted legislation, as held by this Court in terms the aforestated
judgments.

39. It is pertinent to note that the water dispute, which the State of
Punjab and State of Haryana had, had been referred to the Tribunal as per
the provisions of Section 14 of the Inter State Water Disputes Act, 1956.
After considering the relevant provisions, even with regard to Section 78
of the Punjab Reorganization Act, 1966, the Tribunal had taken a judicial
decision and the said decision is also sought to be disturbed by virtue of
enactment of the Punjab Act. The Agreement dated 31st December, 1981 is
about sharing of waters of Ravi and Beas rivers. The said Agreement could
not have been unilaterally terminated by one of the parties to the
Agreement by exercising its legislative power and if any party or any State
does so, looking at the law laid down by this Court in the case of State of
Tamil Nadu (supra), such unilateral action of a particular State has to be
declared contrary to the Constitution of India as well as the provisions of
the Inter State Water Disputes Act, 1956.

40. Once a conclusion is arrived at to the effect that one State, which
is a party to the litigation or an Agreement, cannot unilaterally terminate
the Agreement or nullify the decree of the highest Court of the country,
the State of Punjab cannot discharge itself from its obligation which
arises from the judgment and decree dated 15th January, 2002 and the
judgment and order dated 4th January, 2004 of the apex Court.

41. For the aforestated reasons, in our opinion, the Punjab Act cannot be
said to be in accordance with the provisions of the Constitution of India
and by virtue of the said Act the State of Punjab cannot nullify the
judgment and decree referred to hereinabove and terminate the Agreement
dated 31st December, 1981.

42. Thus, in our view, all the questions referred to this Court are
answered in the negative.

43. This opinion shall be transmitted to the President of India in
accordance with the procedure prescribed in Part V of the Supreme Court
Rules, 2013.

...........................J
(ANIL R. DAVE)

...........................J
(PINAKI CHANDRA GHOSE)

...........................J
(SHIVA KIRTI SINGH)

..........................J
(ADARSH KUMAR GOEL)

..........................J
(AMITAVA ROY)
New Delhi
November 10, 2016.
REPORTABLE

IN THE SUPREME COURT OF INDIA
ADVISORY JURISDICTION

SPECIAL REFERENCE NO.1 OF 2004
U/A 143(1) OF THE CONSTITUTION OF INDIA
[IN RE : THE PUNJAB TERMINATION OF AGREEMENT ACT, 2004]

O P I N I O N
SHIVA KIRTI SINGH, J.

1. Having gone through the exceedingly well formulated judgment of Anil
Dave, J., I record my respectful agreement with the same. But at the same
time I am tempted by the facts and nature of controversy involved in this
Reference to remind all the stakeholders interested in the healthy upkeep
of Indian Constitutional set-up, and particularly the States which form
part of the Indian Federal structure, of the peculiar and essential
features of our federal set-up. Awareness of these features is essential
to keep the system healthy and transact constitutional powers –
legislative, executive and judicial on proper tracks to foster the spirit
of constitutionalism.
2. It is not at all necessary to refer to a catena of judgments that
tell us in most unambiguous terms that the Indian Constitution envisages a
federal form of governance but with a pronounced bias and obvious tilt
towards the Centre. Historically, the States were not having absolute
sovereignty. The territories of States can be altered or totally taken away
and even their names can be changed. Despite the distribution of
legislative power by Article 246, leave aside the situations of emergency,
even during normal times provisions like Articles 248, 249, 251, 252, 253
and 254 run counter to the normal legislative powers of States. Over
subjects covered by the Concurrent List, in the case of any repugnancy, the
laws by Parliament have superiority and prevail over those by State
Legislature. Executive powers are understandably co-terminus with the
legislative powers.
3. Of utmost significance, in the context at hand is supremacy of the
Constitution. Even to the permissible extent, it can be amended only by
the Union Parliament. The Constitution grants and recognizes supreme
authority to the courts to not only interpret but also to protect the
Constitution and the laws. Regardless of other features showing the Indian
model to be only a quasi-federal, the Indian Constitution is very explicit
and emphatic in creating checks and balances by providing for a strong and
independent judiciary and a well defined constitutional mechanism for
resolving conflicts between the executive and legislative authority of the
Union and those of the States. Indians have given to themselves a single
Constitution and single citizenship. Judicial power is exercisable by a
single set of courts within their territorial jurisdictions. High Courts
are final courts at State level with constitutional powers under Articles
226 and 227. Supreme Court is undoubtedly the apex court in the hierarchy
with amalgam of ultimate powers over decisions of all courts – civil,
criminal, revenue and quasi-judicial tribunals. Its powers and duties are
enormous not only on the appellate side but under Article 32 of the
Constitution and other original jurisdictions such as Constitutional
References and also original suits where the disputes may be between the
States or between Union and States etc.
4. From the abovementioned set up under our Constitution, there is no
difficulty in concluding that no Government, whether Central or State can
usurp the power of adjudicating disputes vested in the Judiciary including
High Courts and the Supreme Court. Further, as a corollary, the judgments
and decrees which are the end product of exercise of judicial power cannot
be set at naught by the process of legislative declaration in respect of
facts and circumstances. As explained already in the main judgment, the
situation is somewhat different when a competent legislature engages itself
in the exercise of validating a law declared defective or invalid for
reasons which are curable.
5. An observation necessitated by the somewhat disturbing facts: delay
in execution of a final judgment or decree, more so when it is of the Apex
Court, should never be countenanced by any authority because it would
surely tend to undermine people’s faith in the judicial system of the
country, entailing in turn avoidable harm to all the institutions and
functionaries under the Constitution, may be even to the Constitution
itself.

.…………………………………….J.
[SHIVA KIRTI SINGH]
New Delhi.
November 10, 2016

relaxation of 5% marks to the reserved category candidates in the State Teachers Eligibility Test (hereinafter referred to as the TET) approved by the State Government, which is allegedly in contravention of the norms to that effect embodied in the notification dated 23.08.2010 issued by the NCTE.= The Madras High Court rightly rejected the challenge to G.O.(Ms.) No.25 dated 06.02.2014 and G.O.(Ms.)No. 71 dated 30.05.2014, holding that as per the NCTE Guidelines, the State Government has the power to grant relaxation on the marks obtained in the TET for the candidates belonging to reserved category and the same is affirmed. The Madurai Bench did not keep in view the NCTE Guidelines and the power of the State Government to grant relaxation in terms of their extant reservation policy and erred in quashing G.O.(Ms.) No.25 dated 06.02.2014 and hence the same is liable to be set aside.= 2016 Nov..http://judis.nic.in/supremecourt/imgst.aspx?filename=44295 -V. LAVANYA & ORS. Vs. THE STATE OF TAMIL NADU & ORS. SHIVA KIRTI SINGH, R. BANUMATHI

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10700 OF 2016
(Arising out of SLP (C) NO. 29245/2014)

V. LAVANYA & ORS. APPELLANTS
Versus
STATE OF TAMIL NADU
REPRESENTED BY ITS PRINCIPAL SECRETARY & ORS.
RESPONDENTS

WITH

CIVIL APPEAL NOS. 10715-10716 OF 2016
(ARISING OUT OF SLP (C) NOS. 29353-29354 OF 2014)

CIVIL APPEAL NO. 10720 OF 2016
(ARISING OUT OF SLP (C) NO. 29634/2014)

CIVIL APPEAL NO. 10726 OF 2016
(ARISING OUT OF SLP (C) NO. 29715 OF 2014)

CIVIL APPEAL NOS. 10731-32 OF 2016
(ARISING OUT OF SLP (C) NO.32238-32239 OF 2014)

CIVIL APPEAL NO. 10737 OF 2016
(ARISING OUT OF SLP (C) NO.32240 OF 2014)

CIVIL APPEAL NO. 10736 OF 2016
(ARISING OUT OF SLP (C) NO. 32241 OF 2014)

CIVIL APPEAL NO. 10735 OF 2016
(ARISING OUT OF SLP (C) NO.34978 OF 2014)

CIVIL APPEAL NO. 10734 OF 2016
(ARISING OUT OF SLP (C) NO. 32160 OF 2014)

CIVIL APPEAL NO. 10733 OF 2016
(ARISING OUT OF SLP (C) NO. 34568 OF 2014)

CIVIL APPEAL NOS. 10727-10730 OF 2016
(ARISING OUT OF SLP (C) NOS. 33127-33128 OF 2014)

CIVIL APPEAL NO. 10725 OF 2016
(ARISING OUT OF SLP (C) NO. 6543 OF 2015)

CIVIL APPEAL NOS. 10721-10723 OF 2016
(ARISING OUT OF SLP (C) NOS. 26461-26463 OF 2015)

CIVIL APPEAL NO. 10719 OF 2016
(ARISING OUT OF SLP (C) NO. 26464 OF 2015)

CIVIL APPEAL NOS. 10701-10714 OF 2016
(ARISING OUT OF SLP (C) NOS. 31629-31642 OF 2014)
[PETITIONS BY WAY OF SPECIAL LEAVE ARISING OUT JUDGMENTS DELIVERED BY
MADRAS BENCH]

AND
CIVIL APPEAL NOS.10717-10718 OF 2016
(ARISING OUT OF SLP (C) NOS. 26256-26257/2015)
[PETITION BY WAY OF SPECIAL LEAVE @ JUDGMENT DELIVERED BY MADURAI BENCH]

STATE OF TAMIL NADU
REPRESENTED BY ITS SECRETARY TO GOVT.,
SCHOOL EDUCATION (TRB) DEPARTMENT AND ORS.
APPELLANTS
V.

S. VINCENT AND ORS. RESPONDENTS

J U D G M E N T

R. BANUMATHI J.

Leave granted.

2. The present batch of appeals raise identical questions of law and
fact concerning appointment of Secondary Grade Teachers and B.T. Assistants
in the State of Tamil Nadu as per the Guidelines prescribed by National
Council for Teacher Education (hereinafter referred to as the NCTE) in this
regard. These appeals impugn the conflicting judgments passed by both
Madras and Madurai Bench of the High Court of Madras in W.A. No. 1031/2014
& Others. dated 22.09.2014; and W.P. No. 4558/2014 dated 25.09.2014
respectively. The dispute revolves around the relaxation of 5% marks to
the reserved category candidates in the State Teachers Eligibility Test
(hereinafter referred to as the TET) approved by the State Government,
which is allegedly in contravention of the norms to that effect embodied in
the notification dated 23.08.2010 issued by the NCTE.

3. Pursuant to the mandate of Right of Children to Free and Compulsory
Education Act, 2009 ("the RTE Act"), the NCTE laid down minimum
qualifications for a person to be eligible for appointment as a Teacher
through a Notification dated 11.02.2011. As per the said Notification:
“…to be eligible for appointment as a teacher if any of the schools
referred to in clause (n) of section 2 of the RTE Act is that he/she should
pass the teacher eligibility test (TET) which will be conducted by the
appropriate Government in accordance with the Guidelines framed by the
NCTE”. NCTE Guidelines prescribed 60% marks to be declared as pass in TET.
The said Guidelines enabled the State Government to grant concession to
persons belonging to Scheduled Castes/Scheduled Tribes, other Backward
Classes, differently-abled persons etc.

4. In pursuance of the provisions of the Act, the State Government
enacted the Tamil Nadu Right of Children to Free and Compulsory Education
Act, 2011. State Government issued Order No. G.O.Ms.No.181 dated
15.11.2011, prescribing 60% marks as pass marks for TET under the said G.O.
The Teacher Recruitment Board was appointed as the Nodal Agency for
conducting the TET and recruitment of teachers. Subsequently, the State
Government vide G.O.(Ms.) No.252 School Education (Q) Department dated
05.10.2012 issued the Procedure/Guidelines for State Teachers’ Eligibility
Test. The said Guidelines earmarked 60% marks for State eligibility test
and the remaining 40% for academic performance of the candidates. The 40%
performance-based marks were divided into 10 marks and 15 marks each for
the Higher Secondary Examination/Degree Examination and D.T.Ed/B. Ed.
examination respectively.

5. The Teachers Recruitment Board conducted the first TET-Paper I
(Secondary Grade Teacher) and Paper II (Graduate Teacher) on 12.07.2012
throughout the State in which 7,14,526 candidates appeared and 2448(0.3%)
were successful. The details of number of the candidates who appeared and
who passed are as under:-
|Exam |No. of candidates|No. of candidates |% of pass |
| |who appeared |who passed | |
|Paper I |3,05,405 |1,735 |0.57% |
|Paper II |4,09,121 |713 |0.17% |
|Total |7,14,526 |2,448 |0.34% |

A supplementary TET was also conducted on 14.10.2012 for Paper I and Paper
II in which all the candidates who had appeared in the first examination
and had not secured 60% marks were allowed to appear without any additional
examination fee. Around six lakh candidates appeared in the said exam, out
of which 19,261 (around 3%) only cleared the TET. The details are as
under:-
|Exam |No. of |No. of |% of pass |
| |candidates who |candidates who | |
| |appeared |passed | |
|Paper I |2,78,725 |10,397 |3.7% |
|Paper II |3,64,370 |8,864 |2.4% |
|Total |6,43,095 |19,261 |2.9% |

6. The third TET which is the subject matter of the present challenge
was conducted by the Teacher Recruitment Board in two papers viz., Paper I
and Paper II on 17.08.2013 and 18.08.2013 respectively. The TET was
conducted pursuant to Notification dated 22.05.2013 by which 10,672
vacancies of BT Assistants was advertised. As per the Notification, TET is
only a pre-requisite eligibility test for those who are seeking appointment
as a teacher; a TET certificate issued will be valid for seven years from
the date of its issuance and recruitment of teachers will be conducted
separately as and when there is a need, following the Guidelines issued by
the State Government. Around 16,000 candidates qualified TET with more
than 60% marks. In January, 2014, candidates who had obtained 60% or more
were called for Certificate Verification (CV). Verification of
certificates was done as per the G.O. (Ms.) No. 252 dated 05.10.2012 and
weightage marks were also awarded. However, recruitment of teachers and
appointment thereof was not done.
7. In the meanwhile, the Hon’ble Chief Minister announced on the floor
of the Assembly, relaxation of 5% marks in the passing marks of 60% and
thus prescribed the passing marks as 55% for the candidates belonging to
Scheduled Caste, Schedule Tribes, Backward Classes, Backward Classes
(Muslim), Most Backward Classes, De-notified Communities and Persons with
Disability (PWD). In tune with the announcement, the State Government
issued orders in G.O.Ms.No.25 School Education (TRB) Department dated
06.02.2014 in which relaxation of 5% of marks was given to the candidates
belonging to SC, ST, BC, BC(M), MBC, DNC and PWD candidates. However,
minimum qualifying marks with regard to general candidates was retained as
60% or 90% marks in both the papers. Relevant portion of the said G.O.
(Ms.) No.25 dated 06.02.2014, reads as under:-
“In continuation of the announcement made by the Hon’ble Chief Minister,
the Government orders as follows:

Relaxing 5% marks from the present pass marks of 60% and fix the pass mark
at 55% for candidates belonging to Scheduled Caste, Scheduled Tribes,
Backward Classes, Backward Classes (Muslim), Most Backward Classes, De-
notified Communities and Persons with Disability (PWD) as given below. The
candidates are required to obtain the following minimum marks in Paper I
for Secondary Grade Teachers and Paper II for Graduate Assistants:-

|Category |Maximum |Minimum Marks (%) to be obtained |
| |Marks |in TNTET |
| | |Paper I |Paper II |
|General |150 |60% or 90 marks|60% or 90 marks |
|SC, ST, BC, |150 |55% or 82.5 |55% or 82.5 |
|BC(M), MBC, | |marks rounded |marks rounded |
|DNC and | |off to 82 marks|off to 82 marks |
|Persons with | | | |
|Disability | | | |
|(PWD) | | | |

b) Relaxing 5% marks from the 60% marks prescribed for clearing of the
Tamil Nadu Teacher Eligibility Test, 2013 held on 17.08.2013 and 18.08.2013
for Scheduled Caste, Scheduled Tribes, Backward Classes, Backward Classes
(Muslims), Most Backward Classes, De-notified Communities and Persons with
Disability (PWD) and fixed at 55% or 82 marks.
C) For all future Teacher Eligibility Tests, to fix the minimum marks
for candidates belonging to General Category at 90 marks (60% of 150) and
for candidates belonging to Scheduled Caste, Scheduled Tribes, Backward
Classes, Backward Classes (Muslims), Most Backward Classes, De-notified
Communities, and Persons with Disability (PWD) at 82 marks (55% of 150).”

The said relaxation of 5% marks was held applicable to TET held on
17.08.2013 and 18.08.2013 and all future TETs for the reserved category
candidates.
8. Vide G.O.Ms. No. 29 School Education (Q) Department dated 14.02.2014,
corresponding amendments were made in criteria for selection of candidates
who have cleared the TET for appointment to the post of Secondary Grade
Teachers and Graduate Assistants prescribed in G.O. dated 05.10.2012. The
said order laid down the weightage of marks under TET head as ‘36’ for
those candidates who obtain 55% and above but below 60% marks in TET. The
order also specified that the amended selection criteria would be
applicable to TET held on 17.08.2013 and 18.08.2013. Relevant portion of
the said G.O. reads as under:
“Tamil Nadu Teacher Eligibility Test for Secondary Grade Teachers and
Graduate Assistants:-
|Examination|Weightage |90% |80% |70% and|60% and |55% and |
|passed |of marks |and |and |above |above but|above |
| | |above |above |but |below 70%|but |
| | | |but |below | |below |
| | | |below |80% | |60% |
| | | |90% | | | |
|TNTET |60 |60 |54 |48 |42 |36 |

4. The Chairman, Teachers Recruitment Board is directed to take note of
this Government order for finalizing selection list of the Tamil Nadu
Teacher Eligibility Test 2013 held on 17.08.2013 and 18.08.2013 and for all
future Tamil Nadu Teacher Eligibility Test with respect to candidates
belonging to Scheduled Caste, Scheduled Tribes, Backward Classes, Backward
Classes (Muslims), Most Backward Classes, De-notified Communities and
Persons with Disability (PWD).”

9. Resultantly, a number of writ petitions were filed before the High
Court challenging the Government Orders passed in G.O.Ms.No.252 School
Education(Q) Department, dated 05.10.2012, 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 on different grounds. The Writ Court disposed
of these petitions by upholding the validity of G.O.Ms.No.25, School
Education (TRB) Department dated 06.02.2014. However, the learned Single
Judge set aside the grading system adopted by the Government in G.O. Ms.
No. 252 dated 05.10.2012 observing that it lacks rationality as it places a
candidate with the difference of 1 to 9 marks in the same basket.

10. Pursuant to the order passed by the learned Single Judge, while
continuing with the weightage of marks fixed earlier as per the Government
Order passed in G.O.Ms.No.252 School Education (Q) Department, dated
05.10.2012 with reference to the basic qualification marks, the State
Government passed a subsequent order in G.O.(Ms.) No.71 School Education
(TRB) Department dated 30.05.2014 in tune with the suggestion made by the
learned Single Judge. Relevant portion of the said G.O.(Ms.) No.71 dated
30.05.2014, is as under:
“7. The Government now issue revised orders for fixing the weightage and
for distributing the weightage marks fixed in the light of the High Court
orders as mentioned in para 5 above for selection of candidates for
appointment to the post of Secondary Grade Teachers and Graduate Assistants
in Government Schools from among those candidates who have cleared the
Tamil Nadu Teacher Eligibility Test. The weightage of marks and the
distribution of weightage of marks be fixed as follows:-

A) Tamil Nadu Teacher Eligibility Test Weightage for Secondary Grade
Teachers
(a) There shall be 100 marks in total

(b) The computation of 100 marks will be in the following manner
(i) Higher Secondary Exam : 15 marks
(ii) D.T.Ed.,/D.E.Ed., Exam : 25 marks
(iii) Teacher Eligibility Test : 60 marks

The weightage so assigned as indicated in (b) above to be distributed based
on the actual percentage of marks obtained by the candidate in the
qualifying examinations as shown below:-

B) Tamil Nadu Teacher Eligibility Test Weightage for Graduate
Assistants:

(a) There shall be 100 marks in total
(b) The computation of 100 marks will be in the following manner
(i) Higher Secondary Exam : 10 marks
(ii) Degree Exam : 15 marks
(iii) B.Ed., Exam : 15 marks
(iv) Teacher Eligibility Test : 60 marks

The weightage so assigned as indicated in (b) above to be distributed based
on the actual percentage of marks obtained by the candidate in the
qualifying examinations as shown below:-

|Qualifying|Weightage |Percentage of marks |Marks assigned |
|Examinatio|of marks |obtained in the | |
|n | |qualifying | |
| | |examination | |
|H.Sc. |10 |P% |P x 10 |
| | | |100 |
|Degree |15 |Q% |Q x 15 |
| | | |100 |
|B.Ed. |15 |R% |R x 15 |
| | | |100 |
|TET |60 |S% |S x 60 |
| | | |100 |
|Total |100 | |xxx |

The Government Order passed in G.O.(Ms.) No.71 School Education (TRP)
Department dated 30.05.2014 was challenged both on the ground of weightage
having been awarded for the marks obtained in three qualifications and also
the method of gradation.

11. The High Court of Judicature at Madras heard various writ petitions
and writ appeals filed before it challenging the concerned G.Os and by the
orders impugned herein disposed of the same. The High Court dismissed the
writ appeals as well as the writ petitions holding that the challenge to
the policy decision of the Government can sustain only if it suffers from
arbitrariness and unreasonableness which did not surface in these cases.
It was held that the writ petitioners/writ appellants are non-suited to
challenge the procedure adopted in granting weightage to the marks obtained
in the basic qualification required.

12. As opposed to the view taken by the Madras Bench of the High Court,
in a batch of writ petitions, the Madurai Bench has quashed the relaxation
given to the reserved category candidates. The Madurai Bench also heard the
challenge to Government Orders passed in G.O.Ms.No.252 School Education (Q)
Department, dated 05.10.2012, 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 and held that in the absence of any statistics
to prove that the prescription of 60% marks resulted in fewer number of
candidates belonging to reserved categories getting appointed, it is not
possible to uphold the Government Order. The Court further observed that
the argument that relaxation was necessary to advance social justice, is
nothing but a myth and is devoid of any factual data and analysis.

13. These petitions by way of special leave have been filed challenging
the two contradicting decisions of the Madras Bench and Madurai Bench of
the Madras High Court. For the sake of convenience, unless otherwise
expressly mentioned, the term appellant has been used to refer to the
private parties or original writ petitioners. Contention of the appellants
is that after the Select List was finalized on the basis of G.O.Ms. No. 252
dated 05.10.2012, marks were awarded to all the candidates as per
Government Order and all the candidates were awaiting the order of
appointment and thereafter, Government issued orders in G.O.Ms. No. 25
School Education Department relaxing 5% marks with respect to candidates
belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, Most
Backward Classes, Backward Classes (Muslims) De-notified communities and
differently-abled persons by which the pass marks was reduced to 55% from
60% and G.O.Ms. School Education No. 29 dated 14.02.2014 was issued
amending the criteria for selection prescribed in G.O.Ms. 252 dated
05.10.2012. It was submitted that the Government has reduced the passing
percentage for qualifying in the TET and changed the criteria for selection
after the commencement of the selection process, which is arbitrary,
illegal and violative of Article 14 of the Constitution of India. In this
regard, reliance was placed upon K. Manjushree v. State of Andhra Pradesh
and Anr. (2008) 3 SCC 512 and Hemani Malhotra v. High Court of Delhi (2008)
7 SCC 11 to contend that it is impermissible to change the rules of
selection once the selection process has started.

14. Per contra, learned counsel appearing for the State submitted that
relaxation has been extended by the State Government only to the reserved
category candidates. It was submitted that Clause 9 of the NCTE Guidelines
for conducting TET empowers the State Government to give
concessions/relaxations to candidates belonging to reserved categories and
the State Government in exercise of its power under Clause 9 of the NCTE
Guidelines granted relaxation and the same cannot be challenged. It is
submitted that the TET examination is a qualifying examination and after
writing the examination and after accepting the rules and terms of
selection in the first place, the appellants cannot challenge the
procedure adopted by the respondent-State and challenge the weightage of
marks. It was submitted that the Madras Bench has rightly upheld G.O. (Ms.)
No. 25 dated 06.02.2014, G.O.Ms. No. 29 dated 14.02.2014 and G.O.Ms. No. 71
dated 30.05.2014 and the contrary view taken by the Madurai Bench is
unsustainable.

15. Upon consideration of the rival submissions and perusal of the
impugned judgments, the following issues arise for consideration:-
(i) Whether the State Government has the competence to give relaxation of
5% marks in Teacher Eligibility Test (TET) and whether such relaxation
provided by the State Government by G.O.(Ms.) No.25 dated 06.02.2014 is
legally justified?
(ii) Having regard to the stand of the Government in the earlier round of
Writ Petitions in Writ Petition No.30426 of 2012 and 22407 of 2013, not to
relax the qualifying marks for Teacher Eligibility Test (TET), whether
Government is estopped from granting relaxation?
(iii) Whether providing relaxation of 5% marks in Teacher Eligibility Test
(TET) by G.O.(Ms.) No.25 dated 06.02.2014 amounts to change in the criteria
of selection of teachers after the selection process commenced?
(iv) Whether prescribing 40% marks as weightage for the academic
performance is arbitrary and does not take into consideration different
streams of education and subjects of study?

Point No. 1: Whether the State Government has the competence to give
relaxation of 5% marks in Teacher Eligibility Test (TET) and whether such
relaxation provided by the State Government by G.O.(Ms.) No.25 dated
06.02.2014 is legally justified?

16. In exercise of the power conferred under Section 23 (1) of Right of
Children to Free and Compulsory Education Act 35 of 2009, a Notification
was issued by NCTE prescribing the minimum qualification for a person to be
eligible for appointment as a teacher in Class I to VIII in a school
referred to in clause (n) of Section 2 of Act 35 of 2009. Notification
dated 23.08.2010 was followed by Guidelines dated 11.02.2011 issued by the
NCTE for conducting TET under the Act. Guideline No.9 deals with
qualifying marks, which reads as under:-
“Qualifying marks.-
9. 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 TET scores in the recruitment process;
however, qualifying the TET would not confer a right on any person for
recruitment/employment as it is only one of the eligibility criteria for
appointment.”

While prescribing 60% marks as minimum qualifying marks for TET, Clause 9
enables concerned government/authorities to grant concessions/relaxation to
persons belonging to SC/ST, OBC, differently-abled persons, etc., in
accordance with their extant reservation policy.

17. As noticed earlier, the Government of Tamil Nadu in G.O.(Ms.) No.252
School Education (Q) Department dated 05.10.2012 fixed the criteria for
selection of candidates who have cleared the TET for appointment to the
post of Secondary Grade Teachers and B.T. Assistants. As per the said
Government Order, out of the 100 marks, 40 marks have been earmarked for
academic performance. Remaining 60 marks out of 100 has been fixed for the
TET. A Notification was issued by the Teachers Recruitment Board on
22.05.2013 for the conduct of TET, followed by recruitment of teachers.
Clause 6 of the Notification, which deals with “General Information”, makes
it clear that the TET is only a pre-requisite eligibility test for those
who are seeking appointment as a teacher and that a TET certificate issued
will be valid for seven years from the date of its issuance. Recruitment
of teachers is conducted separately as and when there is a need, following
the Guidelines issued by the Government of Tamil Nadu. Accordingly, it was
notified to the candidates that TET is only an eligibility test and
conducting of the same is distinct from the recruitment of teachers, which
is a subsequent event.

18. Section 23 of the RTE Act empowers the Central Government to
authorize the academic authority to prescribe minimum qualification to be
eligible for appointment of teachers. Once the academic authority fixes
the minimum qualification, then the relaxation is possible only under
Section 23(2). Sub-section (2) enables the State to approach the Central
Government to relax the minimum qualification required for appointment of
teachers, where a State does not have adequate institutions offering
courses or training in teacher education, or teachers possessing minimum
qualification as laid down under sub-section (1) are not available in
sufficient numbers. On such request, the Central Government may, if it
deems necessary, by Notification, relax the minimum qualification required
for appointment as a teacher, for such period, not exceeding five years, as
may be specified in that Notification. In terms of Section 23 (2) power to
relax such minimum qualification has been reserved with the Central
Government.

19. Contention of the appellants is that Section 23 (2) of the RTE Act
requires the State/Union Territories to request the Central Government for
relaxation of prescribed minimum qualification to be eligible for
appointment of teachers and the power to relax the minimum qualification is
exclusively within the domain of the Central Government and the same does
not rest with the State Government or NCTE. It is further submitted that
the High Court without properly appreciating the import of Section 23 of
the Act, and Rules 17 and 18 of the Rules, erroneously held that Clause No.
9 of NCTE Guidelines dated 11.02.2011 empowered the State to make such
relaxation. It was submitted that the Guidelines of NCTE cannot be contrary
to the provisions of the Act and the Rules.

20. Per contra, the respondent-State has maintained that the Government
was well within its powers to take a policy decision of granting relaxation
to the reserved category candidates. In this regard, the State has placed
reliance on Clause No.9 of NCTE Guidelines which empowers the Government or
local bodies to grant concessions/relaxation as per their respective
reservation policies.

21. As noted earlier, Clause No.9 NCTE Guideline vests a discretion in
the School Managements (State Government, Local Bodies, Government aided
and un-aided) to grant relaxation/concessions to persons belonging to
SC/ST, OBC, differently-abled persons etc. in accordance with their extant
reservation policy. Clause No. 9(a) clearly empowers the State
Government/School Managements/Local Bodies to grant such relaxation.
Candidates had also contended before the courts that no reservation policy
was in-effect at the relevant point of time.

22. Article 14 of the Constitution enshrines the principle of equality
before law. Article 15 prohibits discrimination against citizens on
grounds only of religion, race, caste, sex, place of birth or any of them.
As per Article 16, there shall be equality of opportunity for all citizens
in matters relating to employment, or appointment to any office under the
State. However, at the same time, the framers of the Constitution were
conscious of the backwardness of large sections of the population. It was
also apparent that because of their backwardness, these sections of the
population would not be in a position to compete with advanced section of
the community. Article 16 (4) of the Constitution enables the State to make
provision for reservation of appointments or posts in favour of any
backward class of citizens which, in its opinion, is not, adequately
represented in the services under the State. Article 16(4) has to be read
with Article 335 which deals with claims of Scheduled Castes and Scheduled
Tribes to services and posts and lays down that “the claims of the members
of the Scheduled Castes and Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of a State”.

23. Constitution of India has made adequate enabling provisions
empowering the State to promote reservation/concessions: Special provisions
are made for advancement of the socially and economically backward classes.
These provisions will bring out the contents of equality of opportunity
guaranteed under Articles 14, 15 (1), 16 (1) of the Constitution of India
by creating equal level-playing field. In M. Nagaraj and Others v. Union
of India and Others (2006) 8 SCC 212, Constitution Bench of this Court held
as follows:-
“47. Equality of opportunity has two different and distinct concepts.
There is a conceptual distinction between a non-discrimination principle
and affirmative action under which the State is obliged to provide a level-
playing field to the oppressed classes. Affirmative action in the above
sense seeks to move beyond the concept of non-discrimination towards
equalizing results with respect to various groups. Both the conceptions
constitute “equality of opportunity”.”

24. Preferential treatment or concessions granted to SC/ST, backward
classes, physically handicapped and denotified communities is within the
concept of equality. Grant of relaxation is for the upliftment of
Scheduled Castes and Scheduled Tribes and other backward communities and
the same has been eloquently stated in State of Madhya Pradesh and Anr. v.
Kumari Nivedita Jain and Others (1981) 4 SCC 296 as under:-

“26. It cannot be disputed that the State must do everything possible for
the upliftment of the Scheduled Castes and Scheduled Tribes and other
backward communities and the State is entitled to make reservations for
them in the matter of admission to medical and other technical
institutions. In the absence of any law to the contrary, it must also be
open to the Government to impose such conditions as would make the
reservation effective and would benefit the candidates belonging to these
categories for whose benefit and welfare the reservations have been made.
In any particular situation, taking into consideration the realities and
circumstances prevailing in the State it will be open to the State to vary
and modify the conditions regarding selection for admission, if such
modification or variation becomes necessary for achieving the purpose for
which reservation has been made and if there be no law to the contrary.
Note (ii) of Rule 20 of the Rules for admission framed by the State
Government specifically empowers the Government to grant such relaxation in
the minimum qualifying marks to the extent considered necessary…..The
relaxation made by the State Government in the rule regarding selection of
candidates belonging to Scheduled Castes and Scheduled Tribes for admission
into Medical Colleges cannot be said to be unreasonable and the said
relaxation constitutes no violation of Article 15(1) and (2) of the
Constitution. The said relaxation also does not offend Article 14 of the
Constitution. It has to be noticed that there is no relaxation of the
condition regarding eligibility for admission into Medical Colleges. The
relaxation is only in the rule regarding selection of candidates belonging
to Scheduled Castes and Scheduled Tribes categories who were otherwise
qualified and eligible to seek admission into Medical Colleges only in
relation to seats reserved for them….”

25. The idea behind laying down NCTE Guidelines for conducting TET was to
bring about uniformity and certainty in the standards and quality of
education being imparted to the students across the nation. However, at
the same time the framers of the guidelines took note of the huge socio-
economic disparity existing in the nation and accordingly, by virtue of
Clause No. 9 enabled the respective state governments/authorities to
provide relaxation to the candidates belonging to socially backward
classes. As discussed earlier, such a provision is in line with the
principles enshrined in the Constitution. State Government cannot be
faulted for discharging its constitutional obligation of upliftment of
socially and economically backward Communities by providing 5% relaxation
to candidates belonging to Scheduled Caste, Schedule Tribes, Backward
Classes, Backward Classes (Muslim), Most Backward Classes, De-notified
Communities and Persons with Disability (PWD).

26. State of Rajasthan by its Notification dated 29.07.2011 has granted
similar relaxation of 5% marks in the qualifying marks relatable to TET
exams conducted in the State of Rajasthan. The Rajasthan High Court struck
down the relaxation granted by the State of Rajasthan on the ground that
such relaxation was in excess of extant reservation policy. In Vikas
Sankhala and Ors. v. Vikas Kumar Agarwal and Ors. Etc. (2016) 10 SCALE 163,
this Court reversed the judgment of the Rajasthan High Court holding that
State has a legitimate right in granting such relaxation to SC/ST, OBC etc.
After referring to Nivedita Jain and M. Nagaraj case, this Court in paras
(51), (54) and (55) held as under:-
“51. Examined in the aforesaid context, when our 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 principles of distributive
justice, fact remains that the very ethos of such policies is to bring out
equality, by taking affirmative action. Indian Constitution has made
adequate enabling provisions empowering the State to provide such
concessions.
……..

54. It hardly needs to be emphasized that the State has a legitimate and
substantial interest 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 “societal
discrimination”. 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. We are of the opinion that 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.

55. We, thus, do not agree with the interpretation that is given by the
High Court and answer Question No.1 holding that 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.”

We are entirely in agreement with the above judgment in Vikas Sankhala
case.
27. Granting relaxation to SC/ST, OBC, physically handicapped and de-
notified communities is in furtherance of the constitutional obligation of
the State to the under-privileged and create an equal level-playing field.
After referring to clause 9 of the NCTE Guidelines, the Madras High Court
rightly held that the Government of Tamil Nadu has acted in exercise of the
powers conferred under clause 9 of the Guidelines issued by the NCTE.
Madurai Bench was not right in quashing G.O.(Ms.) No.25 dated 06.02.2014 on
the ground that such relaxation “based upon the theory of social justice is
actually destructive of the very fabric of the social justice”. In our
considered view, the judgment of the Madurai Bench has not kept in view the
constitutional obligation of the State to provide equal level-playing field
to the under privileged. In consonance with the M. Nagaraj case, an
affirmative action taken by State Government granting relaxation for TET
would not amount to dilution of standards and hence the view taken by the
Madurai Bench is not sustainable and is liable to be set aside.

Point No. 2: Whether the State Government is estopped from granting
relaxation?

28. In the earlier round of litigation (in Writ Petition No. 30425 of
2012 and Writ Petition No.22407 of 2013), Government of Tamil Nadu took a
categorical stand that they would not compromise on the quality of the
teachers. After referring to the said stand of the State Government in
its counter affidavit before the Division Bench, in paras (38) to (40) of
the judgment, Madurai Bench observed that the State Government is not
justified in retracting from its earlier stand. The Madurai Bench further
observed that the impugned Government Order G.O.(Ms.) No. 25 dated
06.02.2014 is not based upon any statistics and therefore granting
relaxation to advance social justice “…. is nothing but a myth and is not
based on facts and figures”. On behalf of the appellants much reliance was
placed upon the earlier stand of the Government to contend that when the
Government had earlier taken the stand that it would not grant relaxation
of marks for TET pass and dilute the standards of education, the Government
cannot approbate and reprobate at the same time by changing its stand. It
was further submitted that the teachers are responsible for moulding the
younger minds and any dilution of standards of TET would be detrimental to
the standards of education.
29. We are unable to persuade ourselves to accept the view of Madurai
Bench quashing the impugned G.O. on the ground of alleged change in the
stand of the Government. Considering the representation from various
quarters, it was a policy decision taken by the Government to relax marks
for TET pass for specified and under-privileged communities. It is a
matter of State policy to frame and prescribe selection norms with regard
to services and posts connected with the affairs of the State. It is well-
settled that courts cannot interfere with the policy decisions of the State
especially when the policy decision is taken in public interest to further
the advancement of reserved categories. A policy decision taken by the
State in exercise of its jurisdiction under Article 162 of the Constitution
of India is subservient only to the mandate of the constitutional
provisions and the recruitment rules framed by the State itself, either in
terms of a legislative act or an executive order. The relaxation provided
by the State Government and criteria of selection laid down vide impugned
government orders are in exercise of the powers provided under the proviso
to Article 309 of the Constitution of India and being a policy decision in
terms of its extant reservation policy cannot be impeached on the ground
that the relaxation has been given to suit some specific class of
individuals.

30. It is now well settled by a catena of decisions that there can be no
question of estoppels against the Government in the exercise of its
legislative, sovereign or executive powers (vide Excise Commissioner U.P.,
Allahabad v. Ram Kumar (1976) 3 SCC 540 and M. Ramanatha Pillai v. State of
Kerala and Anr. (1973) 2 SCC 650). The view taken by Madurai Bench as
regards the stand of the Government to relax the norms allegedly in
contradiction to its earlier stand is not sustainable in law.

Point No. 3: Whether providing relaxation of 5% marks in TET amounts to
change in the criteria of selection of teachers after the selection process
commenced?

31. The appellants have contended that the provisionally selected
candidates were called to attend certificate verification on 23.01.2014 and
24.01.2014 and weightage marks were also awarded as per the then existing
Government Order. While so, by issuing impugned G.O.Ms. No.25 dated
06.02.2014 and G.O.Ms. No. 29 dated 14.02.2014 the criteria of selection
was altered by relaxing passing marks by 5% in TET from 60% to 55%, thereby
allowing large number of candidates who scored lesser marks to be
considered for selection. As per the appellants, this has resulted in
altering the criteria of selection after the commencement of selection
process. Reliance is placed upon K. Manjushree v. State of Andhra Pradesh
and Anr. (2008) 3 SCC 512 and Hemani Malhotra v. High Court of Delhi (2008)
7 SCC 11 to contend that the rules of selection cannot be changed after the
selection process commenced.

32. Per contra, State has contended that granting relaxation of marks to
SCs/STs/OBCs and others will not amount to change in the rules of the
games. By relaxation of marks more candidates belonging to reserved
category are allowed to compete. The appellants cannot contend that their
rights have been taken away; no prejudice has been caused to them as the
selection criteria has not been altered with respect to them.

33. Appellants appeared in the TET conducted on 17.08.2013 and
18.08.2013. Respondents were to select the suitable candidates. As per
the selection criteria laid down in G.O. Ms. No. 252 laid down that the
candidates have to secure minimum 60% in TET so as to qualify the said
exam. The weightage of the marks secured in TET was 60% and that of
academic qualification was 40%. It is true that the candidates who passed
TET were called to attend certificate verification on 23.01.2014 and
24.01.2014; but the selection process has not been completed. Later on,
G.O.Ms. No.25 dated 06.02.2014 was issued granting relaxation of 5% marks
to SC, ST, backward classes, physically handicapped, de-notified
communities etc. The purpose of relaxation was to increase the
participation of candidates belonging to backward classes in State’s pool
of teachers. The State Government merely widened the ambit of TET so as to
reach out to those candidates belonging to the deprived section of the
society who were not able to compete, inspite of possessing good academic
records and qualifications. The change brought about in the selection
criteria is Government’s prerogative. In terms of their extant reservation
policy, the State Government is free to take actions suitable to the socio-
economic conditions prevalent in the State, especially with regard to
selection of candidates belonging to reserved category to be employed in
State Service. Merely, because the Government has widened the ambit of
selection, so as to enable more and more candidates to take part in the
selection process, the right of candidates who were already in the process
cannot be said to have been adversely affected. It is in the interest of
reserved category of candidates that more candidates take part in the
selection process and best and most efficient of them get selected. This
will not amount to change in the criteria for selection after the selection
process commenced.

34. As discussed earlier, by virtue of NCTE Guidelines No.9 dated
11.02.2011, the State Government was already empowered to grant relaxation
to under-privileged candidates and only in exercise of that power,
G.O.Ms.No.25 was issued to create a level-playing field. Further as noted
earlier, in TET-I conducted in 2012, 7,14,526 candidates had appeared and
only 2448 (0.3%) had qualified. In the subsequent TET, around 6 lakhs
candidates had appeared and only 20,000 i.e. 3% candidates could clear the
test. Even in third TET with which we are concerned only 16,392 candidates
had qualified. In that scenario to provide a level-playing field to persons
belonging to SC/ST/OBC, denotified communities, differently-abled persons
etc., State Government relaxed 5% marks to enable them to compete with
others. It was the prerogative of the State Government to relax the
passing marks with respect to reserved category candidates so that more
qualified candidates could come up and participate in the selection
process. In fact, even after grant of relaxation of 5% marks, many posts of
reserved categories are remaining unfilled. State has placed the figures
before us to show that even after granting relaxation of 5% marks, many
posts of SCs/STs and other backward categories in various subjects are
remaining unfilled.

35. The Government has not changed the rules of selection so far as the
present appellants are concerned. Weightage of marks obtained in TET as
well as that of academic qualification is still the same. The entire
selection process conforms to the equitable standards laid down by the
State Government in line with the principles enshrined in the Constitution
and the extant reservation policy of the State. It is not the case where
basic eligibility criteria has been altered in the midst of the selection
process. Conducting TET and calling for certificate verification
thereafter is an exercise which the State Government is obliged to conduct
every year as per the Guidelines issued by NCTE. By calling for CV along
with certificates of other requisite academic qualifications, a candidate’s
overall eligibility is ascertained and then he/she is recruited. Such an
exercise by which qualified teachers in the State are segregated and
correspondingly certified to that effect cannot be equated to finalization
of select list which comes at a much later stage. No prejudice has been
caused to the appellants, since the marks obtained by the appellants in TET
are to remain valid for a period of seven years, based on which they can
compete for the future vacancies. Merely because appellants were called
for certificate verification, it cannot be contended that they have
acquired a legal right to the post. Impugned G.O. Ms.No.25 did not take
away the rights of the appellants from being considered on their own merits
as pointed out by the Madras Bench. We entirely agree with the views taken
by the Madras Bench that “by merely allowing more persons to compete, the
petitioners cannot contend that their accrued right has been taken away”.

36. Appearing in TET is synonymous to obtaining an eligibility. By
obtaining pass marks in TET a candidate is not said to have been recruited.
Marks obtained in TET accounts only for 60% in the final selection and rest
40% is covered by academic performance. By granting relaxation of 5% marks
in TET for reserved categories only, the eligibility criteria is neither
altered nor any prejudice is caused to the appellants. The contention of
the appellants that the State Government cannot legally alter the selection
criteria after conducting the exam does not find force in the light of view
taken by a three Judge Bench of this Court in Tej Prakash Pathak and Ors.
v. Rajasthan High Court and Ors. (2013) 4 SCC 540. In this case, the then
Chief Justice of the concerned High Court ordered that examination
conducted for the posts of ‘Translators’ be treated as competitive
examination and only those candidates who secured a minimum of 75% marks be
selected to fill up the posts in questions. In view of the decision of the
Chief Justice, only three candidates were found suitable for appointment.
This triggered the litigation. It was observed that there is difference
between altering the basic eligibility criteria in the mid of the process
of selection and altering the mere procedure of selection.

37. The State Government cannot be faulted for altering the selection
criteria by relaxing 5% marks in favour of reserved category candidates. In
Tej Prakash (supra) the alteration in procedure in effect led to
elimination of selected candidates, still the Court refrained from finding
fault with such an alteration, as it was done in public interest. In the
present case, the relaxation afforded to the reserved category candidates
has in no way eliminated the appellants from the selection process; rather
a fair opportunity has been provided to other candidates who can
legitimately compete with the appellants herein.
Point No.4: Challenge to G.O. Ms. No.71 dated 30.05.2014?
38. The appellants have also challenged G.O.Ms. 71, which was issued by
the respondents pursuant to the decision of the Single Judge of the High
Court. As already noted before, the Single Judge while declining the
challenge to G.O.Ms. No. 252 and G.O.Ms. No. 25 had set aside the grading
system adopted by the Government vide G.O.Ms. No. 252. The Single Judge
observed that the grading system adopted in G.O.Ms. No. 252 lacks
rationality as it places candidates with the difference of 1 to 9
percentage in the same basket. Accordingly, vide G.O.Ms.No. 71 the
Government came up with the grading methodology as indicated supra in para
No 10. The appellants have not only challenged the new grading system
introduced by G.O. No. 71; but they have also challenged the weightage of
marks of 40% earmarked for academic performance. It is their contention
that the Government has blindly accepted the recommendation of Single Judge
without application of mind.
39. As it is evident from the records, distribution of marks for academic
performance and TET fixed by the respondents vide G.O. No. 252 continues to
be the same even after issuing of G.O. No. 71. That is, for the post of
secondary grade teachers weightage of marks obtained in H.Sc. examination,
D.T.Ed./D.E.Ed and TET was 15 marks, 25 marks and 60 marks respectively and
it continues to be the same. Similarly, for the post of Graduate
Assistants weightage of marks obtained in H.Sc. examination, Degree
Examination, B.Ed and TET was 10 marks, 15 marks, 15 marks and 60 marks and
it also continued to be the same. In such circumstances, we hold that the
Madras High Court has correctly held that it is not open to the appellants
to challenge the weightage of marks. The TET conducted on 17.08.2013 and
18.08.2013 was pursuant to the issuing of G.O.Ms.No.252 fixing the
weightage for the marks in the basic qualification itself in which the
appellants have participated. Thus, it is not open to the appellants to
challenge the said procedure adopted by the respondents after writing the
examination.

40. The second aspect of challenge relates to the grading system adopted
by the respondents. The respondents have acted as per the directions of the
Single Judge of the High Court. The Single Judge in his judgment dated
29.04.2014 while declaring the slab system irrational, suggested a
scientific rational method for award of weightage marks with reference to
actual marks secured by each candidate in H.Sc./D.T.Ed./D.E.Ed/B.Ed/TET for
Secondary Grade Teachers/ Graduate Assistants as the case may be and
accordingly make selections. This was accepted by the government in
G.O.(Ms.) No.71 dated 30.05.2014 and the respondents have thus come up with
the present awarding of weightage marks with reference to actual marks
secured by each candidate which is more scientific and appropriate and as
compared to the previous grading system contained in G.O. No. 252 which had
put candidates obtaining 1-9% marks on the same footing.

41. The appellants have maintained that while prescribing the marks for
performance in Higher Secondary Examination, the respondents have failed to
take into account different Education Boards (CBSE, ICSE, State Boards
etc.) conducting Higher Secondary Examination and difference in their marks
awarding patterns. As also, the appellants have alleged that respondents
failed to consider different streams of education while formulating the
grading pattern. It is submitted that unless and until the respondents
take note of difference in marking scheme of Education boards, as also the
marking scheme of different streams such as Arts, Science etc. a valid
grading system cannot be formulated. Equivalence of academic
qualifications is a matter for experts and courts normally do not interfere
with the decisions of the Government based on the recommendations of the
experts (vide University of Mysore v. CD Govinda Rao (1964) 4 SCR 575 and
Mohd. Sujat Ali v. Union of India (1975) 3 SCC 76). We hold that it is the
prerogative of State-Authorities to formulate a system whereby weightage
marks is decided with reference to actual marks secured by each candidate.
In the present case, as no arbitrariness is proved on the part of the
respondents, in formulating the grading system we cannot interfere with the
same. We cannot be expected to go into every minute technicalities of
decision taken by the experts and perform the job of the respondent-State.
Moreover, the High Court has also noted that submission of learned Advocate
General that almost all the appellants have completed their High Secondary
examination from the State Boards.

42. The contention that different Boards of Examination have different
standards and the examiners who evaluate the scripts are in some places
more liberal than others and that the candidates who acquired
qualifications decades back had to suffer strict evaluation as compared to
the candidates who have qualified in the recent past facing liberal
evaluation criteria, are all hypothetical arguments without any pleading
and supporting material disclosed in the Writ Petitions. As noted earlier,
weightage of marks for academic performance and TET fixed vide G.O.(Ms.)
No.252 dated 05.10.2012 continues to be the same even after issuing
G.O.(Ms.)No.71 dated 30.05.2014. Having taken up the examination as per
G.O.(Ms.) No.252, the appellants cannot challenge the award of weightage
for the distribution of marks for academic performance with reference to
actual marks secured by each candidate. The appellants are not justified
in challenging every rational decision taken by the respondents to make the
selection process more fair and reasonable merely because the outcome does
not favour the limited individual interests of the appellants.

43. The Madras High Court rightly rejected the challenge to G.O.(Ms.)
No.25 dated 06.02.2014 and G.O.(Ms.)No. 71 dated 30.05.2014, holding that
as per the NCTE Guidelines, the State Government has the power to grant
relaxation on the marks obtained in the TET for the candidates belonging to
reserved category and the same is affirmed. The Madurai Bench did not keep
in view the NCTE Guidelines and the power of the State Government to grant
relaxation in terms of their extant reservation policy and erred in
quashing G.O.(Ms.) No.25 dated 06.02.2014 and hence the same is liable to
be set aside.

44. The appeals filed by the State Government are, accordingly, allowed
and the impugned judgment of the Madurai Bench is set aside. The impugned
judgment of the Madras Bench of the High Court is affirmed and all the
appeals preferred by the unsuccessful candidates are dismissed.

...……………………….J.
[SHIVA KIRTI SINGH]

.………………………..J.
[R. BANUMATHI]
New Delhi;
November 9, 2016

-----------------------
|Qualifyin|Weightage |Percentage of marks|Marks assigned|
|g |of marks |obtained in the | |
|Examinati| |qualifying | |
|on | |examination | |
|H. Sc. |15 |P% |P x 15 |
| | | |100 |
|D.T.Ed.,/|25 |Q% |Q x 25 |
|D.E.Ed., | | |100 |
|TET |60 |R% |R x 60 |
| | | |100 |
|Total |100 | |xxxxx |

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Thursday, November 10, 2016