Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the 'RTE Act') recognises one of the most profound underlying principle contained in the Constitution, viz. the crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to all has been accepted, since inception of our Republic.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS. 3545 – 3549 OF 2016


|VIKAS SANKHALA & ORS. ETC.                 |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|VIKAS KUMAR AGARWAL & ORS. ETC.            |.....RESPONDENT(S)           |

                                   W I T H
                     CIVIL APPEAL NOS. 3550-3555 OF 2016

                     CIVIL APPEAL NOS. 3556-3559 OF 2016

                        CIVIL APPEAL NO. 3560 OF 2016

                        CIVIL APPEAL NO. 3561 OF 2016

                        CIVIL APPEAL NO. 3562 OF 2016

                     CIVIL APPEAL NOS. 3563-3566 OF 2016

                        CIVIL APPEAL NO. 3567 OF 2016

                        CIVIL APPEAL NO. 3568 OF 2016

                        CIVIL APPEAL NO. 3569 OF 2016

                        CIVIL APPEAL NO. 3570 OF 2016

                               J U D G M E N T

A.K. SIKRI, J.
                 The Statement of  Objects  and  Reasons  of  the  Right  of
Children to Free and Compulsory Education Act,  2009  (hereinafter  referred
to as the  'RTE  Act')  recognises  one  of  the  most  profound  underlying
principle contained in the Constitution, viz. the crucial role of  universal
elementary education  for  strengthening  the  social  fabric  of  democracy
through provision of equal opportunities to all  has  been  accepted,  since
inception of our Republic.  Other, and equally  significant  principle  that
it recognises, is that, in  order  to  ensure  equal  opportunities  to  all
citizens, it is necessary that elementary education is provided to  one  and
all.  Keeping in view this spirit, obligation was imposed  upon  the  State,
as per Article 41, read  with  Article  45,  of  the  Constitution  to  make
effective provisions for securing  the  right  to  education,  among  other.
Thus, it is one of the Directive Principles of State  Policy  enumerated  in
the Constitution that the State shall provide free and compulsory  education
to all children.  In order to make it a reality, this Court in the  case  of
Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh  &  Ors.[1]  stretched
the  limits  of  Article  45  by  reading  right  to  free  education  as  a
fundamental right of children upto the age of 14 years so as to  enable  the
children up to the age of 14 years to receive the education as a  matter  of
right.  Law Commission also supported it by making recommendation[2] to  the
Parliament to make suitable amendment in the  Constitution.   Realising  its
constitutional commitment, the Parliament  obliged,  and  Article  21-A  was
added vide the Constitution  (Eighty  Sixth  Amendment)  Act,  2002  in  the
following manner:
Article 21-A.  Right to education.  –  The  State  shall  provide  free  and
compulsory education to all children of the age of six to fourteen years  in
such manner as the State may, by law, determine.”

             Simultaneously,  Article  45  of  the  Constitution  was   also
substituted with the following Article:
“Article 45.  Provision for early childhood care and education  to  children
below the age of six years. – The State shall  endeavour  to  provide  early
childhood care and education for all children until they  complete  the  age
of six years.”

Notwithstanding  the  aforesaid   provisions   in   the   Constitution   and
significant spatial and numerical expansion of  elementary  schools  in  the
country, goal of universal education continued to allude us.  It  was  found
that number of children, particularly  children  from  disadvantaged  groups
and weaker sections, who drop out of  school  before  completing  elementary
education, remain very large.  It was  also  noticed  that  the  quality  of
learning achievement is not always entirely satisfactory even  in  the  case
of children  who  complete  elementary  education.   Having  regard  to  the
aforesaid  harsh  realities,  the  Parliament  enacted  the  RTE  Act   with
following objects in mind:
“(a)  that every child has a right  to  be  provided  full  time  elementary
education of satisfactory and equitable quality in  a  formal  school  which
satisfies certain essential norms and standards;

(b)   'compulsory  education'  casts  an  obligation  on   the   appropriate
Government to provide and ensure admission,  attendance  and  completion  of
elementary education;

(c)  'free education' means that no child, other than a child who  has  been
admitted by his or her parents to a school which is  not  supported  by  the
appropriate Government, shall be liable to pay any kind of  fee  or  charges
or expenses which may prevent  him  or  her  from  pursuing  and  completing
elementary education;

(d)  the duties and responsibilities of the  appropriate  Government,  local
authorities, parents, schools and teachers in providing free and  compulsory
education; and

(e)  a system for protection of the right of children  and  a  decentralized
grievance redressal mechanism.”


It hardly needs to be emphasized that for turning  the  provision  of  every
child  to  have  free  and  compulsory  education  into  reality,  not  only
sufficient number of schools are required with all necessary facilities  and
infrastructure, adequate and qualified teaching staff shall also  be  needed
to fulfill this noble purpose.  It is for this reason that apart from  other
provisions in the RTE Act, provisions like Sections 23 to  27  are  inserted
in the said Act to cater this requirement.

For the purpose of present appeals, it is not necessary to refer to each  of
these provisions.  As we  are  concerned  with  the  educational  and  other
qualifications that are needed for appointment of the  teaching  staff,  the
provision directly touching upon this aspect is Section 23 of the  RTE  Act,
which reads as under:
“23.  Qualifications for appointment and terms and conditions of service  of
teachers:  (1) Any person possessing such minimum  qualifications,  as  laid
down by an academic authority, authorised  by  the  Central  Government,  by
notification, shall be eligible for appointment as a teacher.

(2) Where a State does not have adequate institutions  offering  courses  or
training   in   teacher   education,   or   teachers   possessing    minimum
qualifications as laid down under  sub-section  (1)  are  not  available  in
sufficient numbers, the Central Government may, if it  deems  necessary,  by
notification, relax the minimum qualifications required for  appointment  as
a teacher, for such period, not exceeding five years, as  may  be  specified
in that notification:


Provided that a teacher who, at the  commencement  of  this  Act,  does  not
possess minimum qualifications as laid down  under  sub-section  (1),  shall
acquire such minimum qualifications within a period of five years.

(3) The salary and allowances payable to, and the terms  and  conditions  of
service of, teachers shall be such as may be prescribed.”


Since minimum qualifications are to be laid down by  an  academic  authority
authorised by the Central Government  by  notification,  such  an  authority
which is so authorised by the Central Government  is  the  National  Council
for Teacher Education (for short, 'NCTE').  Thus, NCTE is competent  to  lay
down the minimum qualifications which a person needs to possess to make  him
eligible for appointment as a teacher.

NCTE fulfilled this obligation in the form of Notification dated August  23,
2010, published on August 25, 2010  in  the  Gazette  of  India,  whereunder
minimum qualifications for appointment as teachers were  laid  down.   Apart
from  other  educational  qualifications  prescribed   therein,   the   said
Notification also mandates passing of Teacher Eligibility Test  (for  short,
'TET') and reads as follows:
“Pass in the Teacher  Eligibility  Test  (TET),   TO  BE  CONDUCTED  BY  THE
APPROPRIATE Government in accordance with the Guidelines framed by the  NCTE
for the purpose.”

As is clear  from  the  above,  such  a  TET  is  to  be  conducted  by  the
appropriate State Government, i.e. respective State Governments,  though  in
accordance with the guidelines framed by NCTE  for  this  purpose.   It  may
also be mentioned at this stage that passing of the said TET is a  mandatory
condition without which a candidate is not eligible to  participate  in  the
recruitment process for appointment as a teacher.  NCTE also formulated  the
guidelines, which were forwarded by it to the Secretaries/ Commissioners  of
Education of  State  Government/Union  Territories  vide  its  letter  dated
February 11, 2011.  In these guidelines, it was specified that  the  minimum
pass percentage of TET is 60.  At  the  same  time,  it  enabled  the  State
Governments  to  give  concessions  to  persons  belonging  to  SC/ST,  OBC,
differently abled persons etc. 'in accordance with their extant  reservation
policy'.  Para 9 of these guidelines stipulating  the  aforesaid  conditions
reads as under:
“Qualifying 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.”

            In para 9, the extent of  percentage  to  which  the  relaxation
could be granted in the qualifying marks for TET was not stipulated  and  it
was mentioned that the State Governments  could  give  such  concessions  in
accordance with their extant reservation policy.

Para 3 mentions about the training which was to be undergone  by  a  person.
It would be apposite to reproduce this para as it has some bearing  for  the
purposes of the instant appeals.  The same is as under:
“3.  Training to be undergone. –  A person –

(a)  with B.A./B.Sc. with at least 50% marks and B.Ed.  qualification  shall
also be eligible for appointment for Class I to V up to 1st  January,  2012,
provided he  undergoes,  after  appointment,  an  NCTE  recognised  6  month
special programme in Elementary Education.

(b)   with  D.Ed.  (Special  Education)   or   B.Ed.   (Special   Education)
qualification shall undergo, after appointment, an NCTE recognised  6  month
special programme in Elementary Education.”

Subsequently, vide Notification dated July 29, 2011,  the  aforesaid  letter
dated February 11, 2011  was  amended.   It,  inter  alia,  prescribed  that
relaxation up to 5% in the qualifying marks to the candidates  belonging  to
reserved categories could be accorded.

New para 3 of the Notification  dated  February  11,  2011,  substituted  in
place of original para 3, is to the following effect:
“III.  For para 3 of the  Principal  Notification  the  following  shall  be
substituted, namely:

(i)  Training to be undergone. – A person –

(a) with Graduation with at least 50% marks and B.Ed. qualification with  at
least 45% marks and 1 year Bachelor  in  Education  (B.Ed.),  in  accordance
with the NCTE (Recognition Norms  and  Procedure)  Regulations  issued  from
time to time in this regard, shall  also  be  eligible  for  appointment  to
Class I to V up to 1st  January,  2012,  provided  he/she  undergoes,  after
appointment as NCTE recognized  6  month  Special  Programme  in  Elementary
Education;

(b)   With  D.Ed.  (Special  Education)   or   B.Ed.   (Special   Education)
qualification shall undergo, after appointment an NCTE  recognised  6  month
Special Programme in Elementary Education.

(ii)  Reservation Policy:

Relaxation up to 5%  in  the  qualifying  marks  shall  be  allowed  to  the
candidates belonging to reserved categories, such as SC/ST/OBC/PH.”

             This  amendment  has  given  rise  to  another  incidental  but
connected issue, viz. whether 5% relaxation relates to the pass marks  which
are to be attained  in  TET  exam?   We  shall  advert  to  this  and  other
questions, falling for our determination, at the appropriate  stage.   Since
we are now stating the events leading to the dispute, let us  complete  this
narration of facts, here.

After the issuance of the Notification dated February 11, 2011 by the  NCTE,
the State Government herein, i.e. the State of Rajasthan, issued the  letter
dated March 23, 2011 to the concerned authorities conveying its decision  to
grant relaxation in minimum pass marks  in  the  TET  to  reserved  category
candidates in the following manner:

“(a)  10% to persons belonging to SC, ST, OBC, SBC and all  women  belonging
to the general category.

(b)  15% to all women  belonging  to  SC,  ST,  OBC,  SBC  and  widowed  and
divorced women.

(c)   20%  to  persons  covered  under  the  definition  of  “persons   with
disability” under clause (t) of Section 2 of the Persons  with  Disabilities
(Equal Opportunities, Protection of  Rights  and  Full  Participation)  Act,
1995.”

As per the aforesaid  communication  dated  March  23,  2011  of  the  State
Government, candidates belonging to SC/ST, OBC, SBC and women  belonging  to
General category were to be given 10%  relaxation  in  pass  marks  in  TET.
Thus, those belonging  to  these  categories  who  secured  50%  marks  were
treated as having qualified  TET.   They  were  allowed  to  appear  in  the
selection process which was undertaken thereafter some  time  in  June  2012
and results thereof were declared in August 2012.  Many  such  persons  were
found  eligible  and  selected  at  different  districts  in  the  State  of
Rajasthan. They were given appointment orders and were also  issued  joining
orders.

At this stage, many candidates belonging to the General category filed  writ
petitions in the High Court of Rajasthan challenging their selection on  the
ground that minimum percentage for passing TET was 60% and,  therefore,  all
those candidates belonging to the reserved categories who secured less  than
60% in TET could not be declared as having passed TET and  were,  therefore,
ineligible  to  participate  in  the  selection  process.   Ultimately,  the
learned Single Judge of the High Court  decided  all  these  writ  petitions
vide common judgment dated October 06,  2012  thereby  partly  allowing  the
said writ petitions and holding that the order dated March 23, 2011  of  the
State Government could not be allowed to stand as the  relaxation/concession
in qualifying marks was not legal or valid.  It was also held  that  as  per
para 9 of the guidelines contained in letter dated February 11, 2011  issued
by the NCTE, concession could be given to persons belonging to  SC/ST,  OBC,
differently abled persons,  etc.  only  'in  accordance  with  their  extant
reservation policy' and insofar as the State of Rajasthan is  concerned,  it
could not show any “extant” reservation policy warranting  this  concession.
The State Government challenged the said decision by filing  appeals  before
the Division Bench.  Likewise, persons belonging to reserved categories  who
had been selected and their  selection  set  aside  by  the  learned  Single
Judge, also preferred appeals.  In all, 29 appeals  were  filed  which  have
been decided by a common judgment dated July 02, 2013 by the Division  Bench
of the High Court.  Though the Division Bench did not  agree  with  some  of
the reasons given by the learned Single Judge, it dismissed all the  appeals
by given its own reasons.  It is in this backdrop that the State  Government
as well as the selected candidates belonging to the reserved  category  have
felt aggrieved by the impugned decision making the same  subject  matter  of
the present appeals.

Some developments which  have  taken  place  after  the  filing  of  various
special leave petitions may also be noted at this stage.

Vide order dated July 26, 2013, this Court's order in SLP(C)  No.  23508  of
2013 stayed the operation of the impugned judgment  for  three  months.   In
the meanwhile, State of Rajasthan started fresh process for  recruitment  of
teachers by advertisement dated September 04, 2013 (subject to  decision  of
this Court). District-wise written examination was held for  recruitment  of
the year 2013 for total 20,000 posts.  The reserved category candidates  who
had passed TET in 2011 with relaxations as per State policy dated March  23,
2011, applied in the recruitment  of  2013.   During  the  pendency  of  the
matter before this Court, appointments were made  by  the  respective  local
bodies with respect to recruitment of 2012 giving relaxation  in  accordance
with the State policy dated March 23, 2011 and also  allowing  migration  as
per policy dated May 11, 2011 subject to decision of this Court.
      The  participants  of  reserved  category  candidates  in  recruitment
process of 2012 and 2013 preferred SLP(C) No. 31109  of  2014  wherein  this
Court issued notice and allowed the appellant Nos.  8  to  13  belonging  to
2013 recruitment, to file SLP. In March, 2015, result declared  with  regard
to recruitment of 2013 giving relaxation in  accordance  with  State  policy
dated March 23, 2011.  However,  appointments  are  not  given  to  reserved
category candidates  availing  relaxation  although  seats  have  been  kept
vacant.   Moreover,  migration  to  general  seats  was  not  allowed.   The
appellant in SLP(C) No. 31109 of 2014 belonging to  2013  recruitment  moved
I.A. No. 14 of 2015 seeking direction to the State to prepare merit list  of
2013 recruitment in the same manner  as  done  in  2012  recruitment  giving
benefit of relaxation and migration.  In fact, after  2011,  TET  was  again
conducted by the State in 2012.  The reserved category  candidates  who  had
passed TET with relaxations in 2011 did not appear in 2012  TET  since  they
were declared pass in 2011 TET itself otherwise they would have availed  the
opportunity to improve their TET scores by appearing in TET in 2012.

We  may   point   out   at   the   outset   that   insofar   as   issue   of
concession/relaxation in TET is concerned, it has three facets, viz:
(i)   whether relaxation in passing marks for TET was validly given  by  the
State Government in its letter dated March 23, 2011 and all such  candidates
belonging to the reserved categories can be treated as having passed TET  on
obtaining marks as per relaxed standards?
(ii)   whether no relaxation of any nature  could  be  given  by  the  State
Government and, therefore, it was incumbent upon the  persons  belonging  to
reserved categories as well to secure 60% marks in  TET  to  treat  them  as
qualifying the said TET?
                                     OR
(ii)  relaxation to the extent of 5% was permissible, as  provided  by  NCTE
vide its amendment Notification dated July 29, 2011  and,  therefore,  those
who secure 55% or above could be treated as successful in TET?

Insofar as General category candidates are  concerned,  who  were  the  writ
petitioners in the High  Court,  they  maintained  that  minimum  qualifying
marks were 60% in the absence of  any  extant  reservation  policy  granting
such concession.  According to them, the State Government could not  produce
any such policy before the  High  Court  and  even  before  us  and  it  was
accepted that there was no such policy.

Insofar as candidates belonging to the reserved  categories  are  concerned,
they are divided into two groups.  Many of  these  candidates  got  55%  and
above in TET.  They argued that as far as  concession  given  by  the  State
Government as per its decision dated March 23, 2011 is concerned,  the  same
is not warranted and relaxation up to 5% only could be given in view of  the
amendment Notification dated July 29, 2011.  On this premise, they  want  to
oust all those candidates who have secured less than 55% marks in  TET  with
the plea that reserved category candidates belonging to their  group  (those
who secured 55% or more marks in TET)  be  treated  as  eligible  and  posts
meant  for  reserved  categories  be  filled  up  accordingly.   It  may  be
mentioned that many candidates in their group are below in merit list  drawn
after the selection than those  reserved  category  candidates  who  secured
less than 55% marks in TET and, therefore, are not selected.  If  the  other
group is excluded from the selection as  ineligible,  candidates  from  this
group may succeed in getting the berth.  So their endeavour is to oust  such
other group with marks lesser than 55% in TET so that they are able  to  get
in.  On the other hand, those candidates from reserved categories  who  have
secured less than 55% marks in TET  but  are  found  eligible  in  terms  of
relaxation give vide the State Government's decision dated  March  23,  2011
and have emerged successful in the selection have taken  the  position  that
the said relaxation given by the State Government is valid and legal.

We may also pointed out at this stage itself that the State  Government  has
stood by its decision dated March 23, 2011.

There is yet another issue which was raised in the High Court  by  the  writ
petitioners (candidates belonging to general category) and has been  decided
by the High Court in their favour.  As there is challenge  to  the  findings
on that issue as well in these appeals, we would like to spell out the  said
issue with necessary details.

It so happened that many candidates who belonged to  reserved  category  got
higher marks than the last candidates from  the  general  category  who  was
selected for the appointment in the said recruitment process.  In  terms  of
its various circulars, which we shall refer to  at  the  appropriate  stage,
such reserved category candidates who  emerged  more  meritorious  than  the
general category candidates were allowed to  migrate  in  general  category.
Effect thereof was  that  these  candidates  though  belonging  to  reserved
category occupied the post meant for general  category.   According  to  the
writ  petitioners  (respondents  herein),  it  was  impermissible  as  these
reserved  category  candidates   got   selected   after   availing   certain
concessions and, therefore, there was no reason to allow them  to  shift  to
general category.  The High  Court  has  accepted  this  plea  treating  the
relaxation in pass marks in  TET  as  concession  availed  by  the  reserved
category candidates in the selection process.

Before we  advert  to  the  detailed  submissions  made  by  the  respective
categories of the parties, it would be appropriate to discuss the manner  in
which the Division Bench  of  the  High  Court  has  rendered  the  impugned
decision.

IMPUGNED JUDGMENT
After taking  note  of  the  respective  contentions  of  different  parties
appearing before it,  the  High  Court  pointed  out  that  there  were  two
peripheral issues which needed a decision before adverting  to  the  central
issue about the legality of the concession granted by the State  Government.
  The  selected  candidates  had  challenged  the  maintainability  of  writ
petitions on twin grounds, namely, non-impleadment of necessary parties  and
estoppel.  After discussing these  preliminary  issues,  the  Court  brushed
aside these contentions of the non-writ petitioners.  It  is  not  necessary
to dwell into the same as these contentions were not repeated before us.
            While taking up the  primary  issue  involved,  the  High  Court
referred to the Statement of Objects and Reasons contained in  the  RTE  Act
and pointed out that the avowed objective for enacting the said  Act  is  to
guarantee full time  elementary  education  of  satisfactory  and  equitable
quality to every child.  It remarked that the statute  is  edificed  on  the
belief that the values of equality, social justice  and  democracy  and  the
creation of a just and  humane  society  can  be  achieved  only  through  a
provision of inclusive elementary education to  all.   Free  and  compulsory
education of satisfactory quality thus, is the salubrious  mission  of  this
enactment.  Thereafter, the High Court referred to Section  23  of  the  RTE
Act and further pointed out that the NCTE  is  the  academic  authority,  as
envisaged in  Section  23(1)  of  the  RTE  Act,  statutorily  empowered  to
stipulate  the  minimum  qualifications  for  appointment  of   a   teacher.
Further, power to relax such minimum qualifications has been  reserved  with
the Central Government in terms of Section 23(2) of the RTE Act.  It,  then,
referred to the notification dated August 23, 2010 issued by the NCTE  under
Section 23(1) of the RTE  Act  laying  down  minimum  qualifications  for  a
person to be eligible for appointment as a teacher in Class I to Class  VIII
in a School (which have already been taken  note  of)  followed  by  another
letter  dated  February  11,  2011  of  the  NCTE  to  the  Secretaries  and
Commissioners of the State Governments/  UTs  and  thereby  circulating  its
guidelines conducting the TET by appropriate Government as required  by  its
notification dated August  23,  2010.   The  High  Court  pointed  out  that
reading of this letter dated February 11,  2011  would  reveal  the  abiding
predication to ensure against dilution of quality in such  recruitment,  and
instead, to secure induction of teachers  possessed  of  essential  aptitude
and ability to meet the challenges of teaching  at  the  primary  and  upper
primary levels.  While reiterating the mandate of a pass in the TET to be  a
norm of eligibility, rationale therefore was enumerated as under:
(i)   it would bring national standards and benchmark of teacher quality  in
the recruitment process;
(ii)  it would induce  teacher  education  institutions  and  students  from
these institutions to further improve their performance standards;
(iii) it  would  send  a  positive  signal  to  all  stakeholders  that  the
Government lays special emphasis on teacher quality.

            Conspicuously, thus, the essence of the  TET  was  to  infuse  a
qualitative content in the recruitment process  and  thus,  set  a  national
benchmark for the sake of uniformity in the level  of  elementary  education
in the country.  It prescribed 60% or more marks in TET as pass  marks  with
liberty granted to the Governments to give concessions to persons  belonging
to SC/ST, OBC, differently abled persons  etc.  in  accordance  with  extant
reservation policy.
            The High Court, then, pointed out that none of the  parties  had
challenged the competence of NCTE either to issue guidelines dated  February
11, 2011 to conduct the TET or to vest a discretion in the State  Government
to grant relaxation as contemplated therein  i.e.  in  accordance  with  the
“extant” reservation policy.  The High Court, thereafter,  discussed  letter
dated March 23, 2011 issued by the State  Government  giving  concession  to
the extent of 10%/15%/20%  to  different  reserved  categories  but  without
disclosing  any  reference  to  the  extant  reservation   policy   of   the
Government.   The High  Court  ultimately  found,  as  already  pointed  out
above, that the State Government  could  not  deduce  any  such  reservation
policy and, thus, held that in the absence  of  such  a  policy,  the  State
Government could not have granted the concession, as was  done  vide  letter
dated March 23, 2011.

Coming to notification dated July 29, 2011 which was issued by the  NCTE  in
exercise of its power under Section 23(1)  of  the  RTE  Act,  amending  its
earlier notification dated August 23, 2010,  the  High  Court  proceeded  to
discuss as to whether relaxation  upto  5%  in  qualifying  marks  contained
therein was relatable to TET. This question  had  arisen  for  consideration
because of the reason that writ petitioners belonging  to  general  category
had argued that vide said notification dated July 29, 2011  paragraph  3  of
the principal notification dated August 23, 2010  was  substituted  and  the
context of the said paragraph 3 was totally  different.   After  juxtaposing
unamended paragraph 3 and amended paragraph 3, the High  Court  pointed  out
that  paragraph  3  of  the  notification  dated  August  23,   2010   dealt
exclusively with the aspect of NCTE recognised six months special  programme
in elementary education by way of training of  persons  with  qualifications
mentioned  therein  after  appointment.   Thus,  there   was   neither   any
comprehension nor any provision for  reservation  or  relaxation  of  marks.
Only academic qualifications with minimum percentage of marks  was  referred
to.  Therefore, concession of 5% in the qualifying marks  pertained  to  the
percentage   of   marks   in   the   qualifying   examination   of    Senior
Secondary/graduation etc. and had no nexus with the pass marks in the TET.
            The High Court further pointed  out  that  in  terms  of  letter
dated March 23, 2011 issued by the State Government  (which  was  passed  on
NCTE notification dated March 29, 2011 for giving  relaxation  qua  academic
qualifications) reserved category candidates availed second  relaxation  qua
their academic qualifications.  In this manner, they stood doubly  advantage
and the impact of such relaxation had  bearing  on  ultimate  assessment  on
merit.

Insofar as validity of the action of  the  State  Government  in  permitting
those reserved category candidates who had secured more marks than the  last
candidate  selected  in  the  general  category,  to  be   counted   against
unreserved category post, is concerned, the discussion  of  the  High  Court
can be divided in two parts.  The High Court referred to  certain  circulars
on  the  subject  which  were  issued  before  the  selection  process   had
commenced, these are circulars dated June 17, 1996, March 04, 2002 and  June
24, 2008.  As per these circulars, only those reserved  category  candidates
who have not taken any concession (like that of age, etc.) were entitled  to
compete against unreserved vacancies and be counted against them.  The  High
Court held that since concession was availed of  by  the  reserved  category
candidates in getting  relaxation  in  TET  pass  marks,  the  migration  to
general category post was not admissible in terms of aforesaid circulars.
      The High Court further noted that circular  dated  May  11,  2011  was
issued in supersession of  earlier  circular  dated  March  04,  2002  which
permitted reserved category candidates  to  be  counted  against  unreserved
category vacancies if in the selection they have  secured  more  marks  than
the marks obtained  by  the  last  unreserved  category  candidate,  who  is
selected, irrespective of the  fact  as  to  whether  they  availed  special
concessions or not. The High Court held that since this circular was  issued
after the initiation of selection process  vide  advertisement  dated  March
30, 2011 it could not be applied to the said selection.
       On  the  aforesaid  basis,  migration  of  such   reserved   category
candidates, though emerged as more  meritorious  in  the  selection  process
than the last candidate selected in the general category, are not  permitted
to migrate to the general category.

In conclusion, by the impugned judgment, the Division  Bench  dismissed  the
appeals thereby upholding the direction  of  the  learned  single  Judge  in
setting aside the results of RTET 2011 to the  extent  of  participation  of
reserved category candidates benefited by relaxation granted to them by  the
State Government in excess of its extant reservation  policy.   It  directed
recasting of results by declaring those reserved  candidates  as  ineligible
and unsuccessful in the RTET 2011 who had secured less  than  60%  marks  in
TET.

ISSUES TO BE DECIDED
The history of events, right upto the decision of the High  Court,  gives  a
clear glimpse of the questions of law that need to  be  determined  by  this
Court.  At this juncture, we  would  like  to  formulate  these  issues,  as
under:
i)    Whether policy of the State as reflected in  its  letter  dated  March
23, 2011 deciding to give relaxation ranging from 10% to 20%  in  TET  marks
to different reserved categories as mentioned therein is valid in law?
ii)   Whether NCTE notification dated July 29, 2011, which amends  paragraph
3 of its earlier guidelines/notification dated February 11,  2011,  provides
5% relaxation to the reserved category for passing TET?
                 If so, whether it  would  be  applicable  to  the  reserved
categories in the State of Rajasthan as well?
      iii)  Whether reserved category candidates, who  secured  better  than
general category  candidates  in  recruitment  examination,  can  be  denied
migration to general seats on the basis that they had availed relaxation  in
TET?

QUESTION NO. 2
We  would  like  to  answer  this  question  first  as  it  will  have  some
implications and bearing on Issue No. 1 formulated by us above.

The poser here is as to  whether  NCTE  has  made  any  provision  providing
relaxation in the passing marks for reserved category candidates?  In  order
to find an answer, the documents which are to be scanned through,  on  which
both sides rested their submissions, are:  (i) Notification  dated  February
11, 2011 containing guidelines; and  (ii)   amendment  thereto  incorporated
vide notification dated July 29, 2011, both  issued  by  NCTE.   Insofar  as
guidelines  dated  February  11,  2011  are  concerned,  they   pertain   to
conducting  TET  under  the  RTE  Act,  2009.   Covering  letter  to   these
guidelines mentions that vide notification dated August 23, 2010,  NCTE  had
laid down the minimum  qualifications  for  a  person  to  be  eligible  for
appointment as a Teacher in Class I to Class VIII.   One  of  the  essential
qualification prescribed therein was that such a person should pass the  TET
which will be conducted by the appropriate  Government  in  accordance  with
the guidelines framed by the NCTE.  It is in that behalf that guidelines  in
question are framed and circulated.  Para 3  of  these  guidelines  mentions
the rationale for including the TET as minimum qualification.  Though it  is
already extracted, for the purpose of cohesiveness,  we  reproduce  it  here
again:
“(i)  It would bring national standards and benchmark of teacher quality  in
the recruitment process;

(ii)  It would induce  teacher  education  institutions  and  students  from
these institutions to further improve their performance standards;

(iii)  It would  send  a  positive  signal  to  all  stakeholders  that  the
Government lays special emphasis on teacher quality.”


            Para 4 states that such TET examination may be  conducted  by  a
suitable professional body designated  by  the  appropriate  Government  for
this purpose (Here, the State Government had  designated  Central  Board  of
Secondary Education (CBSE), Ajmer as the professional body to  conduct  such
an  examination).   Para  5  prescribes  the  conditions  which  are  to  be
fulfilled by persons to become eligible for appearing in the TET,  reads  as
under:
“(i)   A  person  who   has   acquired   the   academic   and   professional
qualifications specified in the NCTE Notification dated 23rd August, 2010.

(ii)  A person  who  is  pursuing  any  of  the  teacher  education  courses
(recognised by the NCTE or the RCI, as the case may  be)  specified  in  the
NCTE Notification dated 23rd August, 2010.

(iii)  The eligibility condition for appearing in  TET  may  be  relaxed  in
respect of a State/UT which has been granted  relaxation  under  sub-section
(2) of Section 23 of the RTE Act.  The relaxation will be specified  in  the
Notification issued by the Central Government under that sub-section.”

            Para  6  gives  the  structure  and  content  of  TET.   Para  7
prescribes that there would be two papers of the TET, one for a  person  who
intends to be a teacher from Class I to Class V and other  would  be  for  a
person who intends to be a teacher for Classes VI to VIII.  The  details  of
nature and standards  of  questions  in  Paper  I  and  Paper  II  are  also
prescribed in this para. Para 8 mentions that question  papers  have  to  be
bilingual i.e. in language(s) as decided by the  appropriate  Government  as
well as in English language.  Thereafter comes para 9 which  prescribes  the
qualifying marks and reads as under:
“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.”

            For our purposes, it is not necessary  to  take  note  of  other
paras of the said guidelines.

Vide notification dated July 29, 2011, some  amendments  were  made  in  the
aforesaid guidelines dated February 11, 2011.   What  is  relevant  is  that
amendment was made to para 3 of notification/guidelines dated  February  11,
2011 which was substituted with the following amended para:
“III.  For para 3 of the  Principal  Notification  the  following  shall  be
substituted, namely:

(i)  Training to be undergone. – A person –

(a) with Graduation with at least 50% marks and B.Ed. qualification with  at
least 45% marks and 1 year Bachelor  in  Education  (B.Ed.),  in  accordance
with the NCTE (Recognition Norms  and  Procedure)  Regulations  issued  from
time to time in this regard, shall  also  be  eligible  for  appointment  to
Class I to V up to 1st  January,  2012,  provided  he/she  undergoes,  after
appointment as NCTE recognized  6  month  Special  Programme  in  Elementary
Education;

(b)   With  D.Ed.  (Special  Education)   or   B.Ed.   (Special   Education)
qualification shall undergo, after appointment an NCTE  recognised  6  month
Special Programme in Elementary Education.

(ii)  Reservation Policy:

Relaxation up to 5%  in  the  qualifying  marks  shall  be  allowed  to  the
candidates belonging to reserved categories, such as SC/ST/OBC/PH.”

It is the amended sub-para (ii) of para 3  which  has  become  the  bone  of
contention as it stipulates that relaxation upto 5% in the qualifying  marks
is to be allowed to candidates belonging to  reserved  categories.   Relying
on this amendment, it is the contention of respondents belonging to  general
category as well as those respondents who belonged to reserved category  but
secured more than 55% marks in TET that NCTE has  stipulated  5%  relaxation
for TET  examination,  as  it  pertains  to  the  said  examination.   As  a
consequence, the action of the  State  Government  granting  relaxation  for
more than  5%  is  impermissible.   On  the  other  hand,  argument  of  the
appellants  who  belonged  to  reserved  category  and  are  beneficiary  of
relaxation provided by the State Government vide its letter dated March  23,
2011 is that the relaxation provided in the aforesaid amended para 3 has  no
relation whatsoever with  TET  and  on  the  contrary,  it  relates  to  the
qualifying marks in graduation and B.Ed. etc.

We find merit in the contention of the appellants and do not agree with  the
respondents that the provision for relaxation upto 5%  in  qualifying  marks
at all relates to TET.  In the first  instance,  it  is  to  be  noted  that
insofar as qualifying marks for TET are concerned, they  are  prescribed  in
para 9 of the guidelines dated February 11, 2011.  There is no amendment  to
the said para.  Amendment  is  incorporated  in  para  3  of  the  principal
notification dated February  11,  2011  which  we  have  already  reproduced
above.  Original para 3 gives the rationale for including TET as  a  minimum
qualification.  Though, it  is  not  understood  as  to  why  that  para  is
substituted by the aforesaid amended para vide notification dated  July  29,
2011.  Be that as it may, a reading of amended para  3  clearly  brings  out
that it incorporates two aspects.  First aspect touches  upon  the  training
to be undergone by a person and this training  can  be  undergone  by  those
persons who have certain specified marks in graduation  and  D.Ed.  (Special
Education) or B.Ed. (Special Education).  Training is for 6 months  duration
i.e. 6  months  special  programme  in  elementary  education.   Insofar  as
persons having graduation and B.Ed.  qualification  are  concerned,  minimum
marks in the graduation or B.Ed. are  also  prescribed.   It  is  stipulated
that graduation should be with at least 50% marks  and  B.Ed.  qualification
with at least 45% marks.   However,  those  who  have  done  D.Ed.  (Special
Education) or B.Ed. (Special  Education),  no  minimum  marks  in  obtaining
those qualifications are prescribed.  What follows is  that  person  who  is
graduate with B.Ed. qualification, he/she should have minimum 50%  marks  in
graduation and 45% marks in B.Ed. qualification.   It  is  in  this  context
second aspect of the amended provision in sub-para (ii) of para  3  mentions
about 'Reservation Policy' and  allows  relaxation  upto  5%  in  qualifying
marks.  This  relaxation  is,  therefore,  clearly  relatable  to  marks  in
graduation and B.Ed. qualification,  meaning  thereby  insofar  as  reserved
category candidates  such  as  SC/ST/OBC/PH  are  concerned,  they  will  be
treated as qualified to undergo the training in case  they  pass  graduation
with minimum 45% marks and B.Ed. qualification with minimum 40%  marks.   We
are clear in mind that this relaxation of 5% does not relate to TET at  all.
 Had it been so, this notification dated July 29, 2011  would  have  amended
para  9  and,  particularly,  sub-para  (a)  of  para  9  which  deals  with
concessions to reserved category candidates that has  not  happened  and  is
left intact.

We may mention that High Court in the impugned judgment has  also  read  the
said amended para 3 in the same manner we have interpreted.  We  affirm  the
view of the High Court on this specific aspect.  We would like to  reproduce
the following discussion  from  the  judgment  of  the  High  Court  wherein
additional reasons for arriving at this particular conclusion are given:
“...This view is fortified by the letter No.  F.No.61-1/2011/NCTE/N&S  dated
1.4.2011 of the NCTE addressed,  amongst  others,  to  all  Secretaries  and
Commissioners of the State Governments/UTs  clarifying  that  following  the
issuance  of   the   notification   dated   23.8.2010,   it   had   received
representations from the State Government and  other  stakeholders  that  in
respect of SCs/STs etc. relaxation upto 5% in the  qualifying  marks  should
be allowed, since such relaxation is permissible by the NCTE  for  admission
in various teacher education courses. Referring to the minimum marks in  the
notification dated 23.8.2010, in senior secondary (or its equivalent) or  in
B.A./B.Sc., it was elucidated that following its meeting held  on  16.3.2011
it was decided that relaxation upto 5% in such  qualifying  marks  would  be
available to SCs/STs etc., in accordance  with  the  extant  policy  of  the
State Government /UTs and other school managements. There  is  no  reference
of such relaxation to pass marks in  the  TET.  This  accommodation  of  the
NCTE, by way of concession of 5% marks qua the academic  qualifications,  is
also evident from  the  provisions  of  the  National  Council  for  Teacher
Education (Recognition Norms &  Procedure)  Regulations,  2009  (hereinafter
referred to as '2009 Regulations') and the norms and standards  for  various
education courses as specified in the Appendices thereto and referred to  in
the course of arguments on its behalf. The  explanation  of  the  NCTE  with
regard  to  the  nature  of  the  relaxation  granted  under   the   caption
“reservation policy” traceable to paragraph 3 of the principal  notification
dated 23.8.2010 with  reference  amongst  others  to  the  2009  Regulations
cannot be ignored or discarded.”

            Thus, our answer to Question No. 2 is that insofar  as  NCTE  is
concerned,  it  has  not  provided  any  provision  for  relaxation  in  TET
examination for reserved category candidates but has left it  to  the  State
Governments to do the needful in this behalf, as per para  9  of  guidelines
dated February 11, 2011 which remains unaltered.

QUESTION NO. 1
In view of our foregoing discussion pertaining to Question No.2, it  becomes
clear that as far as  relaxation  in  passing  TET  is  concerned,  same  is
governed by para 9  of  notification  dated  February  11,  2011.   However,
before we deal with the said para in particular,  we  need  to  recapitulate
the salient facts and features in brief followed by submissions  of  learned
counsel for the parties in this behalf.

It is the common case of the parties that passing of  TET  is  an  essential
qualification, which is a condition precedent for appointment as  a  teacher
for Class I to VIII.  It is in terms of qualifications letter prescribed  by
the NCTE in its notification dated August 23, 2010 read  with  February  11,
2011.  It may be mentioned  in this behalf that in  the  notification  dated
August 23, 2010, NCTE laid down minimum  eligibility  qualifications  for  a
person to be a teacher for Class I to VIII.  As per Clause  1(i)  and  (ii),
45% to 50% marks are required in  academic  qualification  including  Senior
Secondary/BA-B.Sc.  This very notification, vide  sub-clause (b)  of  Clause
(9) (i) and (ii), stipulates another  eligibility  condition,  i.e.  passing
TET which needs to be conducted by the respective Governments in  accordance
with  guidelines  framed  by  NCTE.   There  was  no   provision   providing
relaxation to reserved category insofar  as  academic  qualifications,  i.e.
Senior Secondary or graduation etc.,  are  concerned.   As  far  as  TET  is
concerned, it was to be guided solely by the  guidelines  to  be  issued  by
NCTE.  Clause (3) prescribes nature of the  training  to  be  undergone  and
minimum marks required in BA/Bsc./B.Ed.  It  was  followed  by  notification
dated February 11, 2011 which  prescribes  60%  or  more  marks  in  TET  as
pass/qualifying marks.  At the same time,  it  laid  down  that  insofar  as
persons  belonging  to  SC/ST,  OBC,  differently  abled  persons  etc.  are
concerned, State Government may  consider  giving  concessions  to  them  in
accordance with their extant  reservation  policy.   It  also  required  the
States to give weightage to TET score in carrying  out  the  recruitment  of
teachers.  It is in pursuance to the said clause (9) of  notification  dated
February 11, 2011 that  the  State  Government  issued  communication  dated
March 23, 2011 deciding to give relaxation in TET ranging from  10%  to  20%
to different reserved categories.

As pointed out above, the State Government could not show  any  such  policy
which existed prior to  the  issuing  communication  dated  March  23,  2011
regarding concession to be given to the  reserved  category  persons.   That
has become the reason for the High Court to hold that there was no  “extant”
policy of the State Government for giving relaxation  to  reserved  category
candidates.  This approach of the High Court is criticised by the  appellant
and the argument which is raised before us is that  the  decision  contained
in letter dated March 23, 2011 itself is a policy  decision  and  should  be
treated as the 'extant policy'.

Mr. Ashwini Mata, learned  senior  advocate  appearing  in  certain  appeals
representing  reserved  category  candidates,   elaborated   the   aforesaid
contention by arguing that the interpretation of clause  9(a)  of  guideline
dated February 11, 2011 is required to be interpreted while  taking  various
aspects in mind i.e. the examination of TET are being conducted every  year;
certificates of having passed  TET  is  valid  upto  maximum  7  years;  and
further that recruitment process is not conducted  every  year.   The  later
part of clause 9  of  guidelines  deals  with  the  recruitment  process  of
teachers.  In this view of matter, at the time of  recruitment  process  the
School Management (Govt., Local Bodies, Govt. aided and unaided) were  being
given liberty to  consider  such  a  reserved  category  candidates  as  per
prevailing,  alive  reservation  policy  in  regard  to  concession  in  TET
qualifying marks.  He submitted that  the  dictionary  defines  'extant'  as
'alive; prevailing  at  point  of  time'.   Therefore,  there  is  a  marked
difference between the word 'existing' from the word 'extant'  as  the  word
'extant' is used for any point of time.  It may  be  for  past,  present  or
future, whereas word 'existing' is used only in presenti.  Relaxation  under
State Government etc.  were  in  relation  to  their  respective  applicable
policies at the point of recruitment.  His emphasis was that the  expression
“in accordance with their extant reservation policy” appearing  Clause  9(a)
of  the  Guidelines  dated  February  11,  2011,  relates  to  the  dominant
underlying policy of reservation at the time of taking the  TET  exam  which
is a preclude to the conduct  of  the  common  recruitment  test.   He  also
argued that if the interpretation of the High Court  regarding  Clause  9(a)
of the Guidelines dated February 11, 2011 is upheld this would lead  to  the
conclusion that State is forever precluded to carry out any modification  in
the extent of relaxations to reserved  categories  or  modify  the  reserved
categories after February 11, 2011 which the State is otherwise  obliged  to
do under Article  16(4)  and  15(4)  of  the  Constitution.   State  is  not
empowered  but  duty  bound  to  make  reservations  and  relaxations  under
changing socio-economic scenario.  Mr. Mata, on this basis,  questioned  the
interpretation propounded by the High Court as apparently  ultra  vires  the
Constitution.

Ms. Aishwarya Bhati who  appeared  for  few  other  such  reserved  category
candidates added to the aforesaid submission by arguing that in fact  letter
dated March 23, 2011 was not a new policy nor did  it  grant  relaxation  to
persons who were otherwise not eligible for reservation.   She  pointed  out
that this letter was completely in  accord  with  the  existing  reservation
policy prevalent in the State of Rajasthan as per  notification  dated  July
31, 2009 which prescribes 49% reservation  in  all  Government  services  to
persons belonging to specified categories.  According to her, in  consonance
with  the  said  reservation  policy,  letter  dated  March  23,  2011  only
prescribes specific percentage of concessions.  She further  submitted  that
this was categorical stand of State Government in the High Court.

She pointed out that the counsel  for  the  State  had  also  informed  this
Court, at the time of arguments, that for recruitment of Grade III  teachers
after RTET, 2011 the factual statistics were as follows:
                 Total posts advertised                      -     39544
                 Total selections made                  -    37317
                 Selections made without concessions    -    23978
                 (it includes 5621 candidates of reserved
                 category who had not taken concession)
                 Selections made with concessions -     13339

            According to her, the specific statement  on  Affidavit  by  the
State as well as the aforesaid figures, make it writ large  that  concession
granted by State Government vide its letter dated  March  23,  2011  was  in
complete conformity with clause 9(a) of the guidelines  dated  February  11,
2011.  The NCTE has also supported this interpretation  of  clause  9(a)  of
its guidelines, both before the High Court as well as this Court.

Insofar  as  State  Government  is  concerned,  apart  from  justifying  its
decision to give concession in  passing marks of TET,  the  learned  counsel
appearing for the State also controverted the plea of the  general  category
candidates on the outcome of the selection  process.   It  was  pointed  out
that number of candidates belonging to general category  or  the  candidates
who has passed the TET examination on merit and have been  finally  selected
and appointed is more than 60%  even  when  as  per  the  State  Reservation
Policy, 49% seats  are  earmarked  for  candidates  belonging  to  different
reserved categories.  It is also pointed out  that  the  concession  in  TET
passing marks is accorded even to women, irrespective of  the  fact  whether
they belong to general category or reserved category.  Thus,  out  of  13339
candidates who became eligible  to  participate  in  the  selection  process
after getting concession in TET pass  marks,  more  than  2000  ladies  from
general categories have also been benefited.  This is  apart  from  hundreds
of widowed and divorced women belonging to general category  who  have  been
selected after availing concession in pass marks in TET examination.

On the other hand, learned counsel for the respondents representing  general
category candidates submitted that in  the  absence  of  any  extant  policy
operating at the time when letter dated March 23,  2011  was  issued,  there
could not have been relaxation by that letter.  The reasoning given  by  the
High Court in the  impugned  judgment  whereby  this  plea  is  accepted  is
referred to and relied upon by  these  counsel.   In  this  behalf,  it  was
submitted that the impugned judgment  of  the  Division  Bench  records  the
following facts:
(i)  Both before  the  Single  Judge  and  Division  Bench,  the  State  had
admitted that there was no extant policy.
(ii)   The  NCTE  had  contended  that  5%  relaxation   provided   by   its
notification of July 29, 2011 was only towards  qualifying  marks  (academic
qualifications) and not for the TET.
(iii)  Out  of  40,000  posts  of  teachers,  only  20%  of  the  candidates
belonging to the General category have been selected  as  a  consequence  of
the above flawed measures.

It was further submitted that there was no extant reservation policy of  the
State of Rajasthan which was admitted not only before  the  High  Court  but
this Court as well and the so-called policy submitted before this Court  was
inapplicable as it dealt with percentage of seats  and  did  not  relate  to
pass marks in the examination.  It was also emphasised that NCTE  guidelines
dated February 11, 2011 aim to provide  national  standards  and  a  uniform
bench mark.  Therefore, all candidates,  whether  belonging  to  general  or
reserved category, were required to pass TET  with  minimum  60%  marks,  at
least in the absence of extant policy of a particular State.

We have considered the respective submissions of  the  learned  counsel  for
the parties appearing before us and also gone through the reasons  given  in
the impugned judgment.  We may state at the outset that  Notification  dated
July 31, 2009 of the State Government pertains to  the  reservation  in  all
government services and does  not  deal  with  the  subject  at  hand.   The
outcome hinges upon the interpretation that is to be given to para  9(a)  of
guidelines dated February 11, 2011, specifically the meaning that is  to  be
ascribed to “extant policy”.

First thing that has to be borne in mind is that after prescribing 60%  pass
marks in the TET examination, provision for relaxation is made in same  para
9 giving  liberty  to  the  school  management  (Government,  local  bodies,
Government aided and unaided) to consider giving  concessions  to  different
kinds  of  reserved  categories  mentioned  therein  'which  has  to  be  in
accordance with their extant  reservation  policy'.   This  brings  out  one
important  feature.   NCTE  has  nowhere  mandated  that  there  cannot   be
relaxation  in  pass  marks  in  TET  examination  for   reserved   category
candidates or that the standard would remain  uniform  irrespective  of  the
fact as to whether a person belongs  to  general  category  or  any  of  the
reserved categories insofar  as  this  examination  is  concerned.   On  the
contrary, specific authorisation is  given  to  grant  special  concessions.
It, thus, accepts in principle that relaxed standard for passing TET can  be
prescribed by laying down a policy in this behalf.  In  fact,  there  is  no
challenge to this permissive provision.   All  that  is  argued  by  general
category candidates is that  there  is  no  such  “extant  policy”,  meaning
thereby if there is such a policy, the action of the State Government  would
be justified.

In fact, it hardly needs to be emphasised that the Government may  prescribe
relaxed standards for such reserved categories, as it is in conformity  with
the spirit of the constitutional provisions contained in Articles 15 and  16
read with Articles 38, 39(a) and 46 of the Constitution, which are  enabling
provisions permitting the State  to  make  special  provisions  and  provide
relaxed standards  for  persons  belonging  to  Scheduled  Castes,  Schedule
Tribes and socially and educationally backward classes.

Keeping in mind the aforesaid ethos  of  the  Constitution,  we  proceed  to
interpret clause 9(a) of notification dated February 11, 2011 which  permits
concessions to be given to certain clauses 'in accordance with their  extant
reservation policy'.  The question here is as to whether  it  was  necessary
that there had to be  an  “existing”  policy  before  the  State  Government
issued its letter dated March 23, 2011 or laying down of such  a  policy  in
communication dated March 23, 2011 itself, may be for the first time,  would
fulfill the requirement of “extant policy”.  We do not  find  any  condition
in clause 9(a) for 'pre-existing' reservation policy.  On the contrary,  the
provision only mentions that if there  is  a  reservation  policy  providing
concessions to the  persons  belonging  to  SC/ST,  OBC,  differently  abled
persons etc., concessions can be given in accordance with the  said  policy.
Even if there was no such policy in existence  as  on  the  date  when  NCTE
issued guidelines dated February 11, 2011, it  would  not  mean  that  State
Governments are precluded from  formulating  such  reservation  policy  even
thereafter.  Para 9(a) uses the expression 'extant' reservation  policy  and
not 'pre-existing' reservation policy.  Mr. Mata,  learned  senior  advocate
is right in submitting that a holistic reading of para 9 of  the  guidelines
would mean that at the time of recruitment process, the  school  managements
were being  given  liberty  to  consider  and  provide  for  concessions  to
reserved category candidates in TET  qualifying  marks.   Thus,  it  becomes
clear that the word 'extant' means which remains or  survives.   To  give  a
practical interpretation to clause 9 of guidelines dated February 11,  2011,
the phrase 'extant reservation policy' should be read  to  mean  the  policy
surviving at the time of TET examination or at  the  most  at  the  time  of
recruitment.  Any other interpretation of the said phrase would  be  totally
impracticable and would deprive the State for  taking  a  decision  to  give
relaxation to reserved category candidates.  Such interpretation  cannot  be
applied thereby seizing the powers of  the  State  in  recognising  reserved
categories and to give relaxations and to modify  them  from  time  to  time
with changing socio-economical conditions.  The advertisement issued by  the
local authorities for the recruitment of teachers in  2012  as  well  as  in
2013 specifically contains clause 7(b) that the candidate is required to  be
passed in TET conducting by  State  of  Rajasthan  in  accordance  with  the
guiding principals issued by NCTE.  In  our  opinion  this  would  meet  the
requirement of 'extant reservation policy' of the State.

It is a matter of record, which is taken note of the High Court  also,  such
relaxation has been granted by various  State  Governments  and  respondents
State is not only State.  However, one observation made by  the  High  Court
needs serious consideration. It is pointed out that except for the State  of
Andhra Pradesh, no other State has granted such wide  range  of  concessions
as the State of Rajasthan did in its letter dated March 23, 2011.   This  is
an aspect which needs to be looked into and needs to be reconsidered by  the
States inasmuch  as  very  high  percentage  of  relaxation  may  amount  to
compromising  with  quality  which  may  not  be  conducive  to  maintaining
standards of education. However, we are not tinkering  with  the  extant  of
relaxation given in letter dated March 23, 2011 because of the  reason  that
on that basis, two recruitment tests have been conducted and candidates  who
have been selected are now teaching for last number of years.  However,  for
future selections in this behalf, we impress upon the  State  Government  to
consider this aspect and bring the relaxations within reasonable limits.

The exhortation of the High Court in the impugned judgment  that  the  noble
purpose contained  in  RTE  Act  can  be  achieved  by  providing  free  and
compulsory education of satisfactory quality, cannot be doubted.  Indeed  it
is a salubrious mission of the RTE Act which not only guarantees  full  time
elementary education to every child upto 14  years  of  age,  but  also  the
quality of education which is satisfactory and equitable.   The  High  Court
is also right in remarking that in order to  impart  quality  education,  we
need those teachers who are processed of essential aptitude and  ability  to
meet the challenged of teaching at the primary  and  upper  primary  levels.
No doubt,  these  are  important  considerations  to  achieve  the  laudable
objects.  For this purpose, if passing of  TET  examination  is  treated  as
minimum essential qualification for a person to be eligible for  appointment
as primary teacher, that  cannot  be  countenanced.      However,   when  it
comes to giving concession to certain reserved category  candidates  insofar
as passing marks in TET is concerned, such a provision by  itself  will  not
affect the teaching quality.  All said and done, Section 23(2)  of  the  RTE
Act itself recognises the power  for  relaxing  the  minimum  qualifications
required of a person to be eligible  for  appointment  as  primary  teacher.
When it comes to the question of giving relaxation in passing marks in  TET,
 different outlook and glance stands attracted.  Here comes the question  of
taking affirmative action  for  the  upliftment  of  the  Scheduled  Castes,
Scheduled Tribes and Other Backward Communities/Classes.

Going by the scheme of the Constitution, it is more than  obvious  that  the
framers had kept in mind social and economic conditions of the  marginalised
section of the society, and in  particular,  those  who  were  backward  and
discriminated against for centuries.  Chapters on  'Fundamental  Rights'  as
well as 'Directive Principles of State Policies'  eloquently  bear  out  the
challenges of overcoming poverty, discrimination and  inequality,  promoting
equal access to group quality education, health and housing,  untouchability
and exploitation of weaker  section.   In  making  such  provisions  with  a
purpose of eradicating the aforesaid ills with  which  marginalized  section
of Indian society was suffering (in fact, even now  continue  to  suffer  in
great  measure),  we,  the  people  gave  us  the  Constitution   which   is
transformative in nature.  Vision depicted therein was to aim  at  achieving
agaratarian   society.      Professor   Upendra   Baxi   brings   out   this
transformative feature of the Indian Constitution, so  brilliantly,  in  the
following words:
“To be sure, the Indian Constitution frontally addresses  millennial  wrongs
such as untouchability; indeed, the constitution is transformative  on  this
normative register. It is historically the  first  modern  constitution  not
merely to declare constitutionally unlawful the practice  of  discrimination
on the ‘grounds of untouchability’ (Article 23 and 24). A unique feature  of
these provisions consists in the creation of  constitutional  offence,  even
to the point of derogation of the design and  detail  of  Indian  federalism
because Article 35 empowers a parliamentary override  over  the  legislative
of the states within the Indian union. How many we understand in the  Indian
case the differential reconstitutions  of  memories  of  ancient  wrongs  as
providing the very leitmotif of  constitutional  change  compared  with  the
organization of collective amnesia concerning the Partition Holocaust?  Does
this question to all matter in any understanding of Indian Constitution  now
at work?
True, transformative constitutionals texts  and  contexts  remain  the  very
last sites for language of love, gift, belonging and care.[3]


Professor Baxi identifies three 'C's  of  constitutionalism[4].  C1  is  the
text of Constitution, C2 is the constitutional law  which  is  the  official
interpretation (namely, the way it is interpreted by the courts) and C3,  in
the  conventional  sense  invites  attention  to  the  normative  theory  or
ideological core  or  even  the  'spirit  of  constitutions'.  The  task  of
transformating the  constitutionalism  is  primarily  that  of  the  Courts,
particularly  the  Apex  Court,  while  enforcing  the  provisions  of   the
Constitution.  It is for this reason that this Court  has  always  interpret
the  text  of  the  Constitution  in  such  a  way  that  'spirit'  of   the
constitution is realised.

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 principle  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.   This  was  so
eloquently stated in State of Madhya Pradesh & Anr. v. Kumari Nivedita  Jain
& Ors.[5] 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...”


Likewise, a Constitution Bench of this Court in M. Nagaraj & Ors.  v.  Union
of India & Ors.[6] felt it necessary to make following remarks:
“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
equalising results with respect to  various  groups.  Both  the  conceptions
constitute “equality of opportunity”.”


We  would  also  like  to  reproduce  an  emotive,  but  at  the  same  time
constitutionally justified, discourse in Dr. Jagadish Saran & Ors. v.  Union
of  India[7].   This  Court,  speaking   through   Justice   Krishna   Iyer,
highlighted the constitutional mandate of  providing  equal  opportunity  to
every member of  the  society,  including  the  oppressed  classes,  in  the
following words of wisdom:
“16.  The primary imperative of Articles 14 and 15 is equal opportunity  for
all across the nation to attain excellence and this  has  burning  relevance
to our times when the country is gradually being ‘broken up  into  fragments
by narrow domestic walls’ in politics, economics and education, undoing  the
founding faith of an undivided  integrated  India  by  surrender  to  lesser
appeals and grosser passions. What is fundamental, as an enduring  value  of
our polity, is guarantee to each of equal opportunity  to  unfold  the  full
potential of his personality. Anyone anywhere, humble or high,  agrestic  or
urban, man or woman, and whatever  his  religion  or  irreligion,  shall  be
afforded equal chance for admission to any  secular  educational  course  or
school for cultural growth, training  facility,  speciality  or  employment.
“Each according to his ability”, is of  pervasive  validity,  and  it  is  a
latent, though radical, fundamental  that,  given  propitious  environments,
talent is more or less evenly distributed and everyone  has  a  prospect  of
rising to the peak. Environmental  inhibitions  mostly  “freeze  the  genial
current of the soul” of many a humble human whose  failure  is  ‘inflicted”,
not innate. Be it from the secular perspective  of  human  equality  or  the
spiritual insight of divinity in everyone,  the  inherent  superiority  cult
with a herren-volk tint, is contrary to our axiom of equality. That  is  why
“equal protection of the laws” for full growth  is  guaranteed,  apart  from
“equality  before  the  law”.  Even  so,  in  our  imperfect  society,  some
objective standards like common admission tests are  prescribed  to  measure
merit, without subjective manipulation or university-wise invidiousness.  In
one sense, it is a false dilemma to think  that  there  is  rivalry  between
equality and excellence, although superficially they are  competing  values.
In the long run, when every member of the  society  has  equal  opportunity,
genetically and environmentally,’ to develop his  potential,  each  will  be
able, in his own way, to manifest his  faculty  fully.  The  philosophy  and
pragmatism of universal excellence through universal  equal  opportunity  is
part of our culture and constitutional creed.

17.  This norm of non-discrimination, however,  admits  of  just  exceptions
geared to equality and does  not  forbid  those  basic  measures  needed  to
abolish the gaping realities of current inequality afflicting “socially  and
educationally  backward  classes”  and  “the  Scheduled  Castes,   and   the
Scheduled Tribes”. Such measures are rightly being taken by  the  State  and
are perfectly constitutional as the State of Kerala v.N.M. Thomas [(1976)  2
SCC 310] has explained. Equality and  steps  towards  equalisation  are  not
idle ‘incantation’ but actuality, not mere ideal but real, life.

                          xx          xx         xx

39. If equality of opportunity for  every  person  in  the  country  is  the
constitutional guarantee, a candidate who gets more marks  than  another  is
entitled to preference for admission. Merit must be the test  when  choosing
the best, according to this rule of  equal  chance  for  equal  marks.  This
proposition has greater importance  when  we  reach  the  higher  levels  of
education  like  post-graduate  courses.  After   all,   top   technological
expertise in any vital  field  like  medicine  is  a  nation's  human  asset
without which its advance and development will be stunted. The role of  high
grade skill  or  special  talent  may  be  less  at  the  lesser  levels  of
education, jobs and disciplines of social inconsequence,  but  more  at  the
higher levels of sophisticated skills and strategic employment.  To  devalue
merit at the summit is to temporise with the country's  development  in  the
vital areas of professional expertise. In science and technology  and  other
specialised fields of developmental significance, to relax lazily or  easily
in regard to exacting standards  of  performance  may  be  running  a  grave
national risk because in advanced medicine and  other  critical  departments
of higher knowledge, crucial to  material  progress,  the  people  of  India
should not be denied the best the nation's talent lying latent can  produce.
If the best potential  in  these  fields  is  cold-shouldered  for  populist
considerations garbed as reservations, the victims, in the long run, may  be
the people themselves. Of course, this unrelenting strictness  in  selecting
the best may not be so imperative at other levels where a broad  measure  of
efficiency may be good enough and what is needed is merely to weed  out  the
worthless.

40.  Coming to brass tacks,  deviation  from  equal  marks  will  meet  with
approval only if the essential conditions set out above are  fulfilled.  The
class which  enjoys  reservation  must  be  educationally  handicapped.  The
reservation must be geared to getting over the handicap.  The  rationale  of
reservation must be in the case of medical students, removal of regional  or
class inadequacy or like disadvantage. The  quantum  of  reservation  should
not  be  excessive  or  societally  injurious,  measured  by   the   overall
competency of the end-product  viz.  degree-holders.  A  host  of  variables
influence the quantification of the reservation.  But  one  factor  deserves
great emphasis. The higher the level of the speciality the lesser  the  role
of reservation. Such being the pragmatics and  dynamics  of  social  justice
and equal rights, let us apply the tests to the case on hand.”

It hardly needs to be  emphasised  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.

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.

QUESTION NO. 3
The policy decision was contained in letter dated May  11,  2011  issued  by
the  State  Government  thereby  allowing  migration  of  reserved  category
candidates to general category who had secured better than general  category
candidates in recruitment examinations.  This has  been  criticised  by  the
High Court and held to be invalid on  the  ground  that  this  was  done  by
circular dated February 11, 2011 which  was  issued  after  the  recruitment
process started with the issuance of  advertisement  dated  March  30,  2011
and,  therefore,  it  was  impermissible  to  change  the  norms  after  the
recruitment process had been initiated.

In this behalf, the High Court has referred to Circular  No.  F-7(2)  DOP/A-
II/96 dated June 17, 1996 of the Government of  Rajasthan  whereby  decision
was conveyed that the  candidates  belonging  to  SC/ST  and  OBC  who  gets
selected fulfilling the conditions of eligibility regarding  age  limit  and
attempts prescribed for general candidates can be placed  on  general  merit
list and those who get placement in the merit list as a  result  of  special
concession given to them  in  terms  of  age  and  attempts  should  not  be
considered as the  general  candidates  but  should  be  considered  against
reserve vacancies.  The High Court further noted  that  later  circular  No.
F.7(1)  DOP/A-2/99  dated  March  04,  2002  issued  on  the  same   subject
reiterated the aforesaid position.  Yet again, vide  Circular  No.  F.15(24)
DOP/AII/75 dated June 24, 2008, it was clarified that  only  those  reserved
category candidates who have not taken any concessions (like  that  of  age,
etc.) can compete against non-reserved  vacancies  and  be  counted  against
them.   It  also  clarified   that   women,   persons   with   disabilities,
sportspersons, in-servicemen are counted against their respective  category,
even if they  are  suitable  for  selection  against  non-reserved  or  open
competition vacancy/post.  However, if  any  remaining  candidate  of  these
categories after providing the vacancies/posts reserved for  them  are  more
meritorious than the last person of  the  open  competition  category,  such
candidate will be selected even if it leads to selection of more  candidates
than that provided by virtue of reservation.  On the basis of the  aforesaid
circulars, the High  Court  commented  that  only  those  reserved  category
candidates were entitled to be migrated to general quota  if  they  complete
with availing  any  special  concessions  in  terms  of  age,  attempts  and
otherwise except concession regarding fee.  However, this norm  was  changed
by impugned Circular No. F.7(1)DOP/A-II/99 dated  May  11,  2011  which  was
issued in supersession of the earlier circular  dated  March  04,  2002  and
permitted reserved category candidates  to  be  counted  against  unreserved
category vacancies if in the selection they had secured more marks than  the
marks obtained by the last unreserved category candidate  who  is  selected,
irrespective of the fact that as to whether they avail  special  concessions
or not.  As pointed out above, the High  Court  has  held  that  since  this
change in norms took place after the initiation of  selection  process  vide
advertisement dated March 30, 2011, the circular dated May 11, 2011 was  not
applied  as  the   aforesaid   move/amendment   in   selection   norms   was
impermissible as held by this Court in  K.  Manjusree  v.  State  of  Andhra
Pradesh & Anr.[8]

The learned counsel appearing for  reserved  category  candidates/appellants
submitted that passing of TET examination is just  one  of  the  eligibility
criteria and cannot be treated as  part  of  the  recruitment  process  and,
therefore, cannot be counted as given relaxation or  concession  availed  by
the reserved category candidates.  On that basis, it  was  sought  to  argue
that even if circular dated May 11, 2011  is  ignored,  as  per  the  policy
contained in earlier circulars, those reserved category candidates  who  had
secured  more  marks  than  the  last  candidate  selected  in  the  general
category, were entitled to be counted  against  unreserved  category  posts.
It was also pointed out that insofar as recruitment  process  is  concerned,
weightage of 20% of TET marks was given  in  the  final  score.   This  flat
weightage of 20% of TET marks given to all candidates  irrespective  of  the
categories to which they belong  provided a level playing  field.   In  this
manner, those candidates who had secured more marks in TET  were  placed  at
advantageous positions by giving the said weightage.  The other  effect  was
that those candidates in reserved category who had secured less  marks  than
60% and became eligible to participate in the selection  process  by  virtue
of concession in the eligibility criteria of TET pass marks,  naturally  got
less marks under this head.  Therefore, as far  as  recruitment  process  is
concerned, no such benefit had accrued to the reserved category  candidates.
 It was also argued that principle of estoppel would apply  as  the  general
category candidates did not challenge the recruitment process including  the
advertisement and filed the writ petitions only after they found  themselves
to be unsuccessful  on  declaration  of  the  results  of  the  recruitment.
Reference in this behalf is made to the judgment in  the  case  of  Vijendra
Kumar Verma v. Public Service Commission,  Uttarakhand  &  Ors.[9]   It  was
further pointed out that during the  pendency  of  the  matter  before  this
Court, appointments were made by the respective local  bodies  with  respect
to recruitment of 2012  giving  relaxation  in  accordance  with  the  State
policy dated March 23, 2011 and also allowing migration as per policy  dated
May 11, 2011 subject to the decision of this  Court.   The  participants  of
reserved category  candidates  in  recruitment  process  of  2012  and  2013
preferred SLP (C) No. 31109 of 2014 wherein this  Court  issued  notice  and
allowed the appellant Nos. 8 to 13 belonging to  2013  recruitment  to  file
SLP.  In March, 2015, result declared with regard  to  recruitment  of  2013
giving relaxation in accordance with State  policy  dated  March  23,  2011.
However,  appointments  are  not  given  to  reserved  category   candidates
availing  relaxation  although  seats  have  been  kept  vacant.   Moreover,
migration to general seats was not allowed.  The appellants in SLP  (C)  No.
31109 of 2014 belonging to 2013 recruitment,  moved  I.A.  No.  14  of  2015
seeking direction to the State to prepare merit list of 2013 recruitment  in
the same manner as done in 2012 recruitment  giving  benefit  of  relaxation
and migration.  In fact, after 2011, TET was again conducted  by  the  State
in  2012.   The  reserved  category  candidates  who  had  passed  TET  with
relaxations in 2011 did not appear in 2012  TET  since  they  were  declared
pass  in  2011  TET  itself.   Otherwise,  they  would  have   availed   the
opportunity to improve their TET scores by appearing in TET in 2012.

The learned counsel for the general category candidates, on the other  hand,
maintained that TET was a part of  recruitment  process  and  relaxation  in
passing marks in that examination amounted to giving concession to  reserved
category candidates  and  after  availing  such  concession  they  were  not
entitled to migrate to  general  category.    It  was  also  submitted  that
insofar as decision of the State contained in letter dated May 11,  2011  is
concerned, it was rightly held by the High Court that  norms  could  not  be
changed after the selection process has started.

Having regard to the respective submissions noted above, first  aspect  that
needs consideration is as to whether relaxation  in  TET  pass  marks  would
amount to concession in the recruitment process.  The High  Court  has  held
to be so on the premise that  para 9(a) dealing with such relaxation in  TET
marks  forms  part  of  the  document  which  relates  to  the   recruitment
procedure.  It is difficult to accept this rationale  or  analogy.   Passing
of TET examination is a  condition  of  eligibility  for  appointment  as  a
teacher.  It is a necessary qualification without which a candidate  is  not
eligible to be considered for appointment.  This was  clearly  mentioned  in
guidelines/notification dated February 11, 2011.  These  guidelines  pertain
to conducting of TET.  Basic features whereof have already been pointed  out
above.  Even para 9 which provides for concessions  that  can  be  given  to
certain reserved categories deals with 'qualifying  marks'  that  is  to  be
obtained in TET examination.  Thus, a  person  who  passes  TET  examination
becomes eligible to participate in the selection process as  and  when  such
selection process for filling up of the posts of primary teachers is  to  be
undertaken by the State.  On the other hand, when it  comes  to  recruitment
of  teachers,  the  method  for  appointment  of  teachers   is   altogether
different.  Here, merit list of successful candidates is to be  prepared  on
the basis of marks obtained under different heads.   One  of  the  heads  is
marks in TET.  So far as this head is concerned, 20% of the  marks  obtained
in TET are to be assigned to  each  candidate.   Therefore,  those  reserved
category candidates who secured lesser marks  in  TET  would  naturally  get
less marks under this head.  We like to  demonstrate  it  with  an  example.
Suppose a reserved category  candidate  obtains  53  marks  in  TET,  he  is
treated as having  qualified  TET.   However,  when  he  is  considered  for
selection to the post of primary teacher, in respect of allocation of  marks
he will get 20% marks for TET.   As against him,  a  general  candidate  who
secures 70 marks in TET shall be awarded 14 marks  in  recruitment  process.
Thus, on the basis of TET marks reserved category candidate has not got  any
advantage while considering his candidature for the post.  On the  contrary,
“level playing field” is maintained whereby a person securing  higher  marks
in TET, whether belonging to  general  category  or  reserved  category,  is
allocated higher marks in respect of 20% of TET marks. Thus, in  recruitment
process no weightage or concession is given and allocation  of  20%  of  TET
marks is applied across  the  board.   Therefore,  the  High  Court  is  not
correct in observing that concession was given in  the  recruitment  process
on the basis of relaxation in TET.

Once this  vital  differentiation  is  understood,  it  would  lead  to  the
conclusion that no concession becomes available  to  the  reserved  category
candidate by giving relaxation in pass marks in TET insofar  as  recruitment
process is concerned.  It only  enables  them  to  compete  with  others  by
allowing them to participate in the selection process.   In  this  backdrop,
irrespective  of  circular  dated  May  11,  2011,  the  reserved   category
candidates who secured more marks than marks obtained by the last  candidate
selected in general category, would be entitled  to  be  considered  against
unreserved  category  vacancies.   However,  it  would  be  subject  to  the
condition that these candidates have not availed  any  other  concession  in
terms of number of attempts, etc., except on fee and age.

In Jitendra Kumar Singh & Anr. v. State of Uttar Pradesh  &  Ors.[10],  this
Court has very categorically held  that  relaxations  given  in  educational
qualifications etc. making a person eligible  to  participate  in  selection
process   would   not   be   treated   as   availing   benefits    in    the
recruitment/employment and the benefits envisaged have  to  be  those  which
have direct relation to recruitment/employment  and  are  relatable  to  the
jovial relationship of employer and employee.  It  is  also  clarified  that
such benefits must occur from and should be post 'level playing field'.   We
would like to reproduce the following  discussion  from  the  said  judgment
touching upon the aforesaid aspects:
“48. In view of the aforesaid facts, we are of the considered  opinion  that
the submissions of the appellants  that  relaxation  in  fee  or  age  would
deprive the candidates belonging to the reserved category of an  opportunity
to  compete  against  the  general  category  candidates  is   without   any
foundation. It is to be noticed that the reserved category  candidates  have
not been given any advantage in the selection process.  All  the  candidates
had to appear in the same written test and face the same  interview.  It  is
therefore quite apparent that the concession in fee and age relaxation  only
enabled certain candidates  belonging  to  the  reserved  category  to  fall
within the zone of consideration. The concession  in  age  did  not  in  any
manner tilt the balance in favour of the reserved  category  candidates,  in
the preparation of final merit/select list.

49.  It is permissible for the State in view of Articles 14, 15, 16  and  38
of the  Constitution  of  India  to  make  suitable  provisions  in  law  to
eradicate  the  disadvantages  of  candidates  belonging  to  socially   and
educationally backward classes. Reservations  are  a  mode  to  achieve  the
equality of opportunity guaranteed under Article 16(1) of  the  Constitution
of India. Concessions  and  relaxations  in  fee  or  age  provided  to  the
reserved category candidates to enable them to compete and seek  benefit  of
reservation,  is  merely  an  aid  to  reservation.  The   concessions   and
relaxations place the candidates on a par with general category  candidates.
It is only thereafter the merit  of  the  candidates  is  to  be  determined
without  any  further  concessions  in  favour  of  the  reserved   category
candidates.

                          xx          xx         xx

75.  In our opinion, the relaxation in age does not in any manner upset  the
“level playing field”. It is not possible to accept the  submission  of  the
learned counsel for the appellants that relaxation in age or the  concession
in fee would  in  any  manner  be  infringement  of  Article  16(1)  of  the
Constitution of India. These concessions are provisions  pertaining  to  the
eligibility of a candidate to appear in the competitive examination. At  the
time when  the  concessions  are  availed,  the  open  competition  has  not
commenced. It commences when all the candidates who fulfill the  eligibility
conditions,  namely,  qualifications,  age,  preliminary  written  test  and
physical test are permitted to sit in the  main  written  examination.  With
age relaxation and the fee concession, the reserved  candidates  are  merely
brought within the zone of consideration, so that they  can  participate  in
the open competition on  merit.  Once  the  candidate  participates  in  the
written examination, it is immaterial as to which  category,  the  candidate
belongs. All the candidates to be declared eligible had participated in  the
preliminary test as also in the physical test. It is  only  thereafter  that
successful candidates  have  been  permitted  to  participate  in  the  open
competition.”

            It is stated at the cost of repetition that provision of  giving
20% marks of TET score was applied to all  candidates  irrespective  of  the
category  to  which  he/she  belongs  and,  therefore,  no   concession   or
relaxation or advantage or benefit was given  in  this  behalf  which  could
disturb the level playing field and tilt advantage in  respect  of  reserved
category candidate.  On the contrary, the reserved category  candidates  who
had secured less marks in TET examination are  given  lesser  marks  in  the
recruitment process on the application of  the  formula  of  allocating  20%
marks of TET score.  Question No. 3 is answered accordingly.


These appeals are accordingly  allowed  in  the  manner  indicated  in  this
judgment, effect whereof would be as under:
(a)  Those reserved category  candidates  who  secured  pass  marks  on  the
application of relaxed standards as contained in the extant  policy  of  the
Government in its communication dated  March  23,  2011  to  be  treated  as
having qualified TET examination and, thus, eligible to participate  in  the
selection undertaken by the State Government.
(b)   Migration  from  reserved  category  to  general  category  shall   be
admissible to those reserved category  candidates  who  secured  more  marks
obtained by the  last  unreserved  category  candidates  who  are  selected,
subject to the condition that such  reserved  category  candidates  did  not
avail any other special concession.  It  is  clarified  that  concession  of
passing marks in TET would not be  treated  as  concession  falling  in  the
aforesaid category.
            All these appeals are disposed of accordingly.  No order  as  to
cost.

                             .............................................J.
                                                                (A.K. SIKRI)


                             .............................................J.
                                                              (R.K. AGRAWAL)
NEW DELHI;
OCTOBER 18, 2016.
-----------------------
[1]
      (1993) 1 SCC 645
[2]   Report No. 165 of the Law Commission of India
[3]
      Chapter 1: Preliminary notes on transformative constitutionalism from
Transformative Constitutionalism: Comparing the apex courts of Brazil,
India and South Africa: by Oscar Vilhena, Upendra Baxi and Frans Viljoen
(editors); South Asian Edition 2014

[4]   Though in the aforesaid Chapter, he has expanded it to 8 'C's, other
'C's are different facets to C2.  He elaborates these 'C's as under.
      “Understanding the ‘transformative’ in BISA  and  related  comparative
constitutional studies (COSOG)  contexts  entails  further  division  of  C2
beyond the official (of authoritative) interpretation by others.  Via.C4,  I
designate  practices  of  non  official  interpretation  from  the   learned
professions, including public intellectuals  and  social  and  human  rights
movements. CS designates all persons in  a  dominant  position-  ‘corporate’
‘financial’, ‘market’ and ‘consumer’ citizens- who especially contest C2  to
advance their own  strategic  interest.  C6  comprises  interpretive  praxes
emanating from the voice of human and social suffering of the  rightless  or
the worst-off citizens and persons  who  claims  the  human ‘right  to  have
rights [This is a favorite notion  of  Hannah  Arendt.  See,  for  a  recent
analysis, W Hamacher ‘The  right  to  have  a  rights  (four-  and-  a  half
remarks)’ (2004) 103 South Atlantic Quarterly 343.  See  also  FI  michelman
‘Parsing a “right to have rights” ’(1996) 3  Constellations  200.] C6  often
stands articulated by communities of resistance-  for  short  here,  on  the
power of social movements and human rights struggles.  For  C6  interpretive
praxes to have  any  substantive  impact  on  constitutional  law  (C2)  the
hospitable figuration of  activists  justices  remains  necessary;  perhaps,
this is best named as a distinctive C7.

      At the same time, we also need to consider C8- the constituted  powers
to suspend constitutions in the state  of  within-  notion  emergency  often
named as ‘ armed rebellion’, or external threats  most  poignantly  manifest
in the contemporary grammars and rhetoric of ‘wars on terror’.



[5]   (1981) 4 SCC 296
[6]   (2006) 8 SCC 212
[7]   (1980) 2 SCC 768
[8]   (2008) 3 SCC 512
[9]   (2011) 1 SCC 150
[10]  (2010) 3 SCC 119