Allahabad High Court
Jai Prakash Patel And 4 Others vs State Of U.P. 4 Others on 26 April, 2018
Equivalent citations: AIRONLINE 2018 ALL 177
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 58 Case :- WRIT - A No. - 10298 of 2018 Petitioner :- Jai Prakash Patel And 4 Others Respondent :- State Of U.P. 4 Others Counsel for Petitioner :- Siddharth Khare,Sr. Advocate Ashok Khare Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,Hritudhwaj Pratap Sahi,Samarath Singh,Sankalp Narain Connected with Case :- WRIT - A No. - 10306 of 2018 Petitioner :- Sharad Kumar And 5 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav And Case :- WRIT - A No. - 9979 of 2018 Petitioner :- Ratna Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ram Krishna Chaurasia Counsel for Respondent :- C.S.C.,Rajesh Khare Hon'ble Ashwani Kumar Mishra,J.
1. State Government has issued a Government Order dated 15.12.2016, notifying the selection for appointment to 12460 posts of Assistant Teacher in different basic schools run by the Basic Shiksha Parishad. Appointments were to be made in accordance with the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as 'Rules of 1981'). Essential qualification for appointment to the post although is specified in Rule 8 of the Rules of 1981, but it is settled by now that qualification for the post would be such as is provided under the NCTE Regulations (see: Shiv Kumar Sharma and others vs. State of U.P. and others: 2013 (6) ADJ 310 and Anand Kumar Yadav and others vs. Union of India and others: 2015 (8) ADJ 338 (FB).
2. Selection is to be made on the basis of quality point marks secured by a candidate as per Appendix-I to the Rules of 1981. Appendix-I is reproduced hereinafter:-
"Appendix-I [See Rule 14(3) Quality points for selection of candidates ________________________________________________________________ Name of Quality points Examination/Degree _________________________________________________________________
1. High School
2. Intermediate
3. Graduation Degree Percentage of Marks 10 Percentage of Marks x 2 10 Percentage of Marks x 4 10 Training -
First Division Second Division Third Division
(a) Theory 12 6 3
(b) Practical 12 6 3 ____________________________________________________
3. Rules specify the marks that are to be allocated on the basis of performance in concerned course including training. 12 marks are provided to those who secure training in First Division while Second Division candidates get 06 marks and the candidates passing in Third Division are entitled to 03 marks.
4. Two year training programme for Basic Teacher Certificate (BTC) is conducted by State Council for Education Research & Training (hereinafter referred to as 'Examining Body' or 'SCERT'). The Examining Body issued a Training Policy in 2006, for the training course. As per the policy, marks were to be awarded depending upon the performance of a candidate which was to be categorized as First Division where marks obtained is above 60%; Second Division when marks scored are between 50 to 59%; and Third Division between 40 to 49% marks. Such marking is for theory while in practical First Division would mean securing of 70% and above marks; Second Division between 60 to 69% marks; and Third Division between 50 to 59% marks. Candidates scoring below 40% marks in theory and below 50% marks in training were declared fail.
5. In 2013, the Examining Body issued a new training policy. Although the syllabus remained the same but the grading system was altered. Awarding of marks so as to place a candidate in one of the three divisions was done away with and substituted with awarding of grades. The grading system was categorized as Grade A, securing 80% and above marks; Grade B between 65 to 79 marks and; Grade C between 50 to 64% in theory, while in practical Grade A meant securing 85% and above marks, Grade B between 70 to 84% marks and Grade C between 60 to 69%.
6. Equating the respective proficiency in training programme between candidates upto the year 2012, and those who have passed training programme in 2013 is the principal issue arising for consideration in these petitions. After the process was initiated vide Government Order dated 15.12.2016, a circular was issued by the Secretary, U.P. Basic Shiksha Parishad, on 20.12.2016 notifying the schedule of selection. Another circular was also issued on 26.12.2016, laying down the guidelines on the basis of which selection was to be made. Clause 9(ka) of the guidelines provides for the mechanism to be followed in holding the selection, which reads as under:-
"9& p;u izfØ;k& d& vH;fFkZ;ks dk p;u@ fu;qfDr v/;kid lsok fu;ekoyh 1981 ¼v|ru ;Fkk la'kksf/kr½ rFkk p;uksaijkUr v/;kid dh rSukrh v/;kid lsokfu;ekoyh 2008 ¼v|ru ;Fkk la'kksf/kr½ ds vuqlkj fd;k tk;sxkA p;u@ fu;qfDr gsrq ofj"BrkØe dk fu/kkZj.k v/;kid lsok fu;ekoyh ds ifjf'k"V ^d^ ds fo|eku izfØ;kuqlkj rS;kj fd;k tk;sxkA vH;FkhZ ds p;u ds fy, xq.koRrk vad dk fu/kkZj.k%& ijh{kk@ mif/k dk uke xq.koRrk vad gkbZLdwy vadks dk izfr'kr@10 b.VjehfM,V vadks dk izfr'kr X 2@10 Lukrd mif/k vadks dk izfr'kr X 4@10 izf'k{k.k ¼f}rh; ch0Vh0lh0 izf'k{k.k] f}rh; mnwZ izxh.krk ch0Vh0lh0 izf'k{k.k] fof'k"V ch0Vh0lh0 izf'k{k.k ,oa Mh0,M0 ¼fo'ks'k f'k{k½½ izFke Js.kh ¼fuxZeu laLFkk }kjk iznRr½ f}rh; Js.kh ¼fuxZeu laLFkk }kjk iznRr½ r`rh; Js.kh ¼fuxZeu laLFkk }kjk iznRr½ ¼d½ fl)kUr 12 6 3 ¼[k½ iz;ksxkRed 12 6 3 ch0,y0,M0 vH;fFkZ;ks ds fy, ijh{kk@ mif/k dk uke xq.koRrk vad gkbZLdwy vadks dk izfr'kr@10 b.VjehfM,V vadks dk izfr'kr X 2@10 ch0,y0,M0 ¼izFke rhu o"kZ½ ch0,y0,M0 izFke rhu o"kksZ esa izkIr dqy vadks dk izfr'kr X 4@10 ch0,y0,M0 ¼vfUre@ prqFkZ o"kZ½ ch0,y0,M0 vfUre@ prqFkZ o"kksZ esa izkIr dqy vadks dk izfr'kr X 3@10
7. Clause 9(ka), as noticed above, was challenged before this Court in Writ Petition No.3293 of 2017. The writ petition was disposed of on 16.5.2017 after noticing the anomaly in evaluating training upto the year 2012 and 2013, and a direction was issued to re-fix it in light of the observations made therein. Operative portion of the order dated 16.5.2017 is reproduced hereinafter:-
"The crux of the matter is that when no criterion has been given in the Notification for awarding quality point marks in relation to the candidates who passed BTC, 2013 when Grading system was in operation, then how the selection is to be made is not clear as in the Notification awarding of quality point marks is based upon Divisions. Only.
Therefore, in my view, the criterion fixed by the authorities is faulty and does not treat the B.T.C. Training Course-2012 equally with B.T.C. Training Course-2013. Accordingly, the marking system of quality point marks in Clause 9 (Ka) not being in consonance with the Rules cannot be sustained and the same is liable to be quashed.
The respondent No.1 is hereby directed to re-fix the criteria taking into account the observations made herein above and then proceed with the selection. Till such action is done, the selection proceedings shall be kept in abeyance and shall abide by the final decision by the authorities. The writ petition is accordingly stands disposed of."
8. A Government Order came to be issued by the State on 11.8.2017, acknowledging the anomaly arising in awarding of marks on account of change in the grading system. Para 10 of the Government Order is relevant for the present purposes and is reproduced hereinafter:-
"ek0 mPp U;k;ky; }kjk fjV ;kfpdk la0&3293@2017 Kku pUnz o 03 vU; cuke LvsV vkQ ;w0ih0 o 07 vU; esa ikfjr vkns'k fnukad 16-5-2017 ds leknj esa Hkfo"; esa ifj"knh; izkFkfed fo|ky;ks ds lgk;d v/;kidksa ds inks ij HkrhZ fd;s tkus ds iwoZ ch0Vh0lh0 izf'k{k.k 2013 mRrh.kZ vH;fFkZ;ksa ds fy, xzsM ds lkis{k esfjV xq.kkad dk iqu% fu/kkZj.k ¼Re-fix½ fd;k tk;sxkA bl laca/k esa f'k{kk funs'kd] csfld m0iz0 ls izLrko izkIr dj ch0Vh0lh0 izf'k{k.k 2013 ds mikf/kdkjh vH;fFkZ;ks ds laca/k esa xzsM ds lkis{k esfjV xq.kkad iqu% fu/kkZfjr ¼Re-fix½ fd;s tkus ds lEcU/k esa m0iz0 csfld f'k{kk ¼v/;kid½ fu;ekoyh& 1981v|ru la'kksf/kr es lfEefyr dj fy;k tk;sxk] vkSj tc rd mDr dk;Zokgh iw.kZ ugh dj yh tkrh rc rd mDr foKkiu esa lkis{k HkrhZ@ p;u izfØ;k LFkfxr dh tkrh gSA"
9. The judgment delivered by this Court on 16.5.2017 was in the meantime subjected to challenge in Special Appeal Defective No.365 of 2017 (Kuldeep Singh and others vs. State of U.P. and others) alongwith other connected appeals. Upon hearing of the matter on 23.8.2017, the Division Bench made the following observations:-
"Let the respondent no. 1 Secretary of Basic Education Board shall file his personal affidavit, indicating as to how it has been resolved to award 12 marks to all those candidates who had secured 60 per cent marks and above in B.T.C. 2013 final examination and 6 marks to all those candidates who had secured 50 to 60 per cent and 3 marks to all those candidates who had secured less than 50 per cent marks, when as per the decision of the Controller Examining Authority for B.T.C. examination 2013 had been adopted i.e. entire different evaluation system i.e. grading, the candidates were awarded grades as the marks received as follows: A-Grade 80 per cent and above, B-Grade 65 to 80 per cent and C-Grade 60 to 65 in theory papers and in respect of practical examination the grading was to be done as follows, A-Grade 85 per cent and above, B-Grade 70 to 85 per cent and C-Grade 60 to 70 per cent. Meaning thereby, that so far as theory paper is concerned a candidate securing less than 50 per cent was disclosed failed and a candidate securing less than 60 per cent marks in practical was declared fail and therefore, illegible to apply for appointment as Assistant Teacher.
The Secretary must also explain, as to why, it was not provided that A-Grade be equable to Ist division, B-Grade as Second division and C-Grade as IIIrd Division at par the divisions, awarded in respect of B.T.C. examination in the year 2013.
The affidavit shall be filed by 31st August, 2017. Status quo shall be maintained till 31st August, 2017. Put up on 31st August, 2017."
10. The special appeals eventually got disposed of on 6.2.2018. The Court noticed that Rules of 1981 were amended by Twentieth Amendment Rules 2017 on 9.11.2017, but held that the amended rules would not apply retrospectively to the selection proceedings already initiated vide Government Order dated 15.12.2016. The direction issued by the learned Single Judge on 16.5.2017 to re-fix the criteria and to resume selection only thereafter has not been approved. It is, however, provided by the Division Bench that the State would decided whether to resume the selection and in such event to specify as to under which rule quality point marks would be provided to the 2013 BTC batch. Operative portion of the Division Bench judgment dated 6.2.2018 is extracted hereinafter:-
"We, are however, of the opinion that this Rule has come into effect from 09.11.2017 and at present it has only prospective effect. Therefore, it will not apply to the selection process initiated earlier. We also notice that the State Government in its Office Memorandum dated 11.08.2017 had clearly found that there was an anomaly in the circular awarding of quality point marks between the BTC 2012 and 2013 batch and, accordingly, stayed the selection process.
In the light of the aforesaid, we are of the opinion that the State Government has yet to take a decision as to whether it wants to proceed with the selection process or not. Since the Rules framed are prospective in nature and would not apply to the selection process, which had already started, the State Government should take a decision in this regard. We are further of the opinion that the finding of the learned Single Judge that the Clause 9(ka) of the circular was not in consonance with the Rules of 1981 is patently erroneous inasmuch as clause 9(ka) is nothing but is reflection of Appendix I and II of the Rules of 1981.
Consequently, the learned Single Judge fell in error in quashing clause 9(ka) of the guidelines and therefore to that extent the order of the learned Single Judge is set aside.
In the light of the aforesaid, we dispose of the Special Appeal directing the State Government to take a decision within four weeks from today as to whether they would like to proceed with the selection process or not. If it chooses to proceed/continue with the selection process pursuant to the Government Order dated 15.12.2016, the State Government must specify the Rules under which quality point marks would be provided to the candidates of BTC 2013 batch."
11. It is thereafter that the State Government has issued the Government Order dated 11.4.2018, specifying that the recruitment in question on the post of Assistant Teacher would be made in accordance with the Rules of 1981, as amended vide Fifteenth Amendment Rules existing on 15.12.2016. Direction has been issued to conclude the process of recruitment by 15th June, 2018. The Secretary, U.P. Basic Shiksha Parishad has also issued a subsequent circular dated 16.4.2018 specifying schedule for conducting the counselling as per which the entire process has to be completed by 1.5.2018. The Government Order dated 11.4.2018, as well as subsequent circular dated 16.4.2018 is challenged in the writ petitions. Following prayers are made in the leading Writ Petition No.10298 of 2018:-
"(i) a writ, order or direction in the nature of certiorari quashing the Government Order dated 11.4.2018 issued by the State Government (Annexure 15 to the writ petition) as also the circular letter dated 16.4.2018 issued by the Secretary, Board of Basic Education, U.P., Allahabad (Annexure 16 to the writ petition)
(ii) a writ, order or direction of a suitable nature restraining the respondents from proceeding with the selection process without removing the anomaly between the division awarded to candidates who have passed BTC 2012 with grads of candidates who have passed BTC 2013.
(iii) a writ, order or direction of a suitable nature commanding the respondents to equate Grade A, B & C awarded to candidates having passed 2 Year Regular BTC Training course in 2013 batch with award of quality points on the basis of First Division/Second Division/Third Division with regard to candidates having passed the said BTC Teachers Training course uptill 2012 batch."
12. According to the petitioners though the State Government has clarified that recruitment would be made as per the Fifteenth Amendment Rules, which was in force on 15.12.2016, but there is no consideration on the material aspect as to how the respective merits of those who have secured training in the year 2013 would be assessed viz-a-viz candidates completing training till the year 2012. It is stated that since Rules of 1981 do not provide for grading system, as such the State was required to appropriately clarify as to what exactly would constitute First Division, Second Division and Third Division in the substituted grading system in 2013. It is contended that in the absence of consideration on this aspect unequals would be treated equally thereby violating Article 14.
13. Respondent State as well as intervenors, on the other hand contend that the Government Order and circular under challenge are in conformity with the Rules of 1981, and are also in accordance with the Division Bench judgment of this Court dated 6.2.2018. It is also stated that petitioners are not aggrieved inasmuch as they are entitled to 12 marks both in the previous marking system as also in the grading system of 2013 and that questions raised by them are only of academic importance. It is also stated that basic schools are already starved of Assistant Teachers and any interference, at this stage, would delay the recruitment process adversely affecting education system for children aged between 8 to 14 years.
14. I have heard Sri Ashok Khare, learned Senior counsel assisted by Sri Sunil Kumar Srivastava and Shri Prabhakar Awasthi for the petitioners, Sri Neeraj Tripathi, learned Additional Advocate General assisted by Sri Vivek Rai, learned Additional Chief Standing Counsel for the State and Sri A.K.Yadav for the Basic Education Board through its Secretary and Sri M.D. Singh Shekhar, learned Senior Counsel assisted by Sri Man Bahadur Singh as also Shri Ravi Kant, learned Senior Counsel assisted by Sri Tarun Agrawal for the intervenors, and have perused the materials brought on record.
15. Recruitment to the post of Assistant Teacher is to be made in accordance with the Rules of 1981. The criteria to determine merit of a candidate is the quality point marks secured by him, as per Appendix-I to the Rules of 1981. So far as the award of marks in high school, intermediate or graduation is concerned, there is no change. It is the change in awarding of marks for the training course which poses an issue.
16. There are two distinct aspects. The first aspect relates to training and its evaluation. The training is imparted by the Examining Body i.e. SCERT. It is an independent body which regulates the conduct of training programme and also the inter se merit of candidates by awarding marks to them. Assessing the performance of a candidate and awarding marks to him/her is its exclusive domain. Till the year 2012 it was assessing performance of trained candidates by awarding them marks which could be categorized in First Division, Second Division and Third Division. For the year 2013 the assessment of training performance is by way of grading system. Nothing is brought on record which may show that Examining Body has evolved any criteria for putting the marking system (uptill the year 2012) and grading system (2013) on one scale. Undisputedly, it is the Examining Body which would be competent to put both systems on one scale.
17. The second aspect relates to recruitment. The recruitment authority i.e. the State/Basic Shiksha Parishad has to appoint the Assistant Teachers in accordance with the Rules framed for the purpose i.e. Rules of 1981. The Rules of 1981, as amended, upto Fifteenth Amendment provide for awarding of marks on the basis of division secured by a candidate. Although division is not defined but the parties are not at issue on the fact that Third Division in theory means 40 to 50% marks while in practical it means 50 to 60% marks and there is an increase of 10%, both in theory and practical for Second Division and First Division respectively. The recruiting agency has merely to award marks based on the Division secured by the candidate.
18. Neither the Examining Body nor the Recruitment Body has put Division and Grade on one scale. Although the Government Order dated 11.8.2017 had acknowledged this anomaly but while issuing the Government Order dated 11.4.2018 this aspect has not been clarified. This apparently is for the reason that the Division Bench in its judgment dated 6.2.2018 had limited the aspect of clarification to specifying as to under which rule quality point marks would be provided to BTC candidates of 2013 batch. In the Government Order dated 11.4.2018 it is clarified that recruitment would be conducted in accordance with the Fifteenth Amendment Rules of 1981. Sri Ashok Khare, learned Senior Counsel, contends that anomaly created due to change in the marking system and criteria to evaluate grade awarded in 2013 BTC batch ought to have been clarified before proceeding with the recruitment.
19. Sri Khare submits that the Division Bench had already suggested a valid criteria for equating division with grades in its order dated 23.8.2017 but the State has failed to examine this aspect in correct perspective. Argument is that change in evaluating system has proportionally increased awarding of marks and it would not commensurate with divisions. It is pointed out that as against passing marks of 40% in theory upto 2012 course, the passing marks in 2013 exam is enhanced to 50%. Submission is that unless the marks to be secured against division is appropriately enhanced the grades would not gel with division, in its present form.
20. During the course of hearing, learned Additional Advocate General Sri Tripathi was permitted to seek appropriate instructions from the State on the submission of petitioners. Sri Tripathi on the basis of instructions obtained submits that it would not be possible for the recruiting body to alter the value ascribed to division, at this stage. It is submitted that once State has clarified that recruitment would be made as per Fifteenth Amendment Rules of 1981, any departure from it would be impermissible.
21. A perusal of the record will go to show that the recruitment body was conscious of the anomaly and attempt was made to equalize two marking systems on one scale. The Basic Shiksha Parishad pondered over the alternatives available before it for the purposes of undertaking recruitment. Body of experts in its meeting dated 8.11.2016 deliberated upon the issue and the minutes in that regard have been brought on record by the intervenors. The minutes are reproduced hereinafter:-
Ø0la0 Lfefr }kjk lq>k;s x;s fodYiA fodYi ls leL;k dk lek/kku dh fLFkfr 1- f}o"khZ; oh0Vh0lh0 uohu ikB~;Øe esa A, B, C, xzssM ds fy;s fu/kkZfjr xq.kkad 10] 08] 06 ds Lfkku ij lsok fu;ekoyh ds vuq:i 12] 06] 03 dj fn;k tk;sA bl fodYi ls leL;k dk lek/kku lEHko ugh gS D;ksfd iwoZ O;oLFkk ds vuqlkj fyf[kr ijh{kk esa igys 60 izfr'kr ;k mlls vf/kd vad ij izFke Js.kh rFkk iz;ksxkRed ijh{kk esa 70 izfr'kr ;k mlls vf/kd vad ij izFke Js.kh fn;s tkus dh O;oLFkk esa fyf[kr ijh{kk esa 60 izfr'kr rFkk iz;ksxkRed ijh{kk 70 izfr'kr ikus okys dks Øe'k% C xzsM rFkk B xzsM esa j[kk x;k gS ftlds vuqlkj mUgsa 03 o 06 vad ns; gksaxsA 2- f}o"khZ; ch0Vh0lh0 uohu ikB~;Øe esa A, B, C, xzssM ds fy;s fu/kkZfjr xq.kkad 10] 08] 06] ds Lfkku ij 12] 08] 06 dj fn;k tk;s D;ksfd fyf[kr ijh{kk esa igys 40 ls 49 ij r`rh; Js.kh rFkk xq.kkad 03 fn;s tkrs gSA orZeku ikB~;Øe esa 50 izfr'kr ls de dks vuqRrh.kZ ekuk x;k gSA blh izdkj f}rh; o izFke Js.kh ds Lfkku ij vc A, B, C, xzssM fn;k x;k gS rFkk mRrh.kZ izfr'kr Hkh iwoZ ls vf/kd gSA bl fodYi ls Hkh fLFkfr mijksDrkuqlkj gh jgsxh D;ksafd fyf[kr ijh{kk esa 60 izfr'kr vad izkIr djus okys ch0Vh0lh0 2013 ds vH;FkhZ dks 12 xq.kkad ugh fey ik;saxs vfirq mUgsa 03 vad izkIr gksaxsA 3- Pwwfd vad i= esa xzsM ds lkFk lkFk vad dk Hkh mYys[k jgsxk vr% lsok fu;ekoyh ds vuqlkj iwoZ dh HkkWfr izfr'kr vadks ds vk/kkj ij xq.kkad dk vkax.ku fd;k tk;sA bl fodYi ls leL;k dk lek/kku lEHko gS D;ksafd iwoZ O;oLFkk ds vuqlkj izFke] f}rh; ,oa r`rh; Js.kh esa fu/kkZfjr izkIrkad izfr'kr dks ekU; fd;s tkus ls ch0Vh0lh0 2013 ds mRrh.kZ vH;FkhZ ;k rks izFke Js.kh esa ;k fQj f}rh; Js.kh esa ekU; fd;s tk;sxs vkSj blds vk/kkj ij mUgs Øe'k% 12 ,oa 06 xq.kkad izkIr gksxsA ijUrq blds fy;s ;fn csfld f'k{kk ifj"kn ls ;g funsZ'k ekaxk tkrk gS fd ch0Vh0lh0 2013 esa fdrus izfr'kr ij izFke] f}rh; ,oa r`rh; Js.kh ekuk tk;s rks blds fy;s iwoZ ikB~;Øe esa fu/kkZfjr izkIrkad izfr'kr dks vk/kkj ekudj funsZ'k Hkstk tkuk gksxkA ;gh O;oLFkk l= 2013&14 o 2014&15 esa ykxw fd;k tkuk mfpr gksxk D;ksafd budk izf'k{k.k izkjEHk gks pqdk gS vksj dfri; lsesLVjks dh ijh{kk,a Hkh lEikfnr gks pqdh gSA chp esa ifjorZu ls vO;oLFkk gksxhA iwoZ ikB~;Øe esa fu/kkZfjr izkIrkad izfr'kr ,oa xzsfMax dh O;oLFkk l= 2015&16 ls fuEufyf[kr ds vuqlkj fd;k tkuk mfpr gksxkA fyf[kr ijh{kk Ø- la-
izkIrkad dk izfr'kr Js.kh xzsM xzsM IokbUV 1- 60 izfr'kr ;k mlls vf/kd izFke A 12 2- 60 izfr'kr ls de rFkk 50 izfr'kr rd f}rh;
B 06 3- 50 izfr'kr ls de rFkk 40 izfr'kr rd r`rh;
C 03 4- 40 izfr'kr ls de ij VuqRrh.kZ D 0 iz;ksxkRed ijh{kk Ø- la-
izkIrkad dk izfr'kr Js.kh xzsM xzsM IokbUV 1- 70 izfr'kr ;k mlls vf/kd izFke A 12 2- 70 izfr'kr ls de rFkk 60 izfr'kr rd f}rh;
B 06 3- 60 izfr'kr ls de rFkk 50 izfr'kr rd r`rh;
C 03 4- 50 izfr'kr ls de ij vuqRrh.kZ D 0 bl izdkj ijh{kk lfefr }kjk vius iwoZ esa fy;s x;s fu.kZ; esa lcls mfpr izLrko fcUnq 03 ds vuqlkj dk;Zokgh fd;s tkus rFkk ch0Vh0lh0 2013 ds fy;s vuqeksfnr ikB~;Øe ds i`"B la[;k& 103 fcUnq 14 ij izkIrkad izfr'kr Js.kh] xzsM IokbUV dk mYys[k mijksDr lkfj.kh ds vuqlkj fd;s tkus dk izLrko fd;k tkrk gSA
22. A perusal of deliberations would go to show that in the opinion of experts the anomaly would not be rectified by merely substituting Division with Grades. It would otherwise be difficult for the recruitment body to do so on its own, without the examining body doing so. Such a move would otherwise be open to challenge on the ground that in the absence of rules amended the value attached to Division cannot be changed. A candidate scoring 69% marks can complain that he cannot be awarded 06 marks by treating him to be in Second Division.
23. Sri Khare, however, submitted with vehemence that a person scoring 40% marks in 2013 BTC course would be allowed 03 marks by the recruiting agency in the process, although the examining authority would declare him failed.
24. No doubt challenges are posed when two distinct system of awarding marks are required to be put on one scale. Even if an ideal situation does not exist, the recruitment ought not to be interfered with unless it is shown to be wholly unworkable or violating the statutory rules.
25. An original marksheet of 2013 batch candidate has been produced before the Court and its photocopy is taken on record. A perusal of the marksheet issued by the Examination Regulatory Authority would go to show that apart from specifying the Grade secured marks are also awarded to the candidates. So far as awarding of Grades is concerned, it looses to have any significance under the applicable rules of 1981. It can therefore conveniently be omitted from consideration. The marks, however, can be relied upon to determine the Division of a candidate and marks can be given to him accordingly as per the Appendix-I.
26. The only difficulty that needs to be addressed is in respect of candidates scoring 40% to 50% in theory and 50% to 60% in practical, inasmuch as such candidates would be entitled to 03 marks each as per the Appendix-I although they are declared fail by the Examining Authority. The situation is not that complex as it may seem at the outset. It is the Examining Body which is to certify whether a candidate has failed or passed the training course. Once the candidate has failed as per the Examining Body, he cannot be considered for appointment as he would lack the requisite qualification itself for the course. The recruiting agency, therefore, would necessarily have to exclude such person from consideration.
27. This would result in effectively curtailing Division only to two i.e. First Division and Second Division. Even if that be so, the recruitment made would still be in conformity with the recruitment rules and would also not violate the norms fixed by the Examining Body.
28. The mere fact that a larger chunk of persons would qualify for First Division would not vitiate the recruitment. In the peculiar facts of the present case it becomes inevitable to follow such course so that the recruitment remains compliant with the laws. The fact that awarding of marks in other courses would assume significance would also not be doing violence to the rules. Considering the fact that recruitment is otherwise urgently wanted to secure the objective of providing free education to children between 08 and 14 years, in my view, the course adopted by the State must find approval of the Court.
29. Learned counsel for the petitioner has placed reliance upon a decision of the Apex Court in Kusum Lata Vs. State of Haryana and others, (2002) 6 SCC 343. The issue raised before the Apex Court was as to whether the marks awarded in sixth subject could be taken into consideration when such paper itself was optional. The Apex Court observed as under in para 11:-
"11. The only difference in the marksheet issued by CBSE is that it does not show total after five subjects and in fact no total is shown. The relevant consideration is not the manner of issue of the marksheet or the different proforma which may be adopted by one Board or the other but to go into the real object behind the clause. As already stated, the object of the clause prescribing the eligibility condition is that the qualifying examination shall be passed by a candidate with at least 50% marks. A candidate on securing requisite marks would pass without taking the sixth subject. There would have been no difficulty if the proforma of CBSE was similar to the one adopted by Haryana. In that eventuality it would not have been possible to decline admission to the appellant on the ground for her not satisfying the minimum prescribed percentage under the eligibility condition. This kind of approach would be arbitrary and discriminatory. Thus, the interpretation placed by the High Court is hyper-technical and erroneous. We are unable to sustain the said interpretation. The appellant satisfies the eligibility stipulation and the respondents committed serious illegality in declining her admission to D.Ed course."
The controversy that arose for consideration in Kusum Lata (supra) would not be of any relevance in the facts and circumstances of the present case.
30. Reliance is also placed upon a judgment of the Apex Court in Tej Prakash Pathak and others Vs. Rajasthan High Court and others, (2013) 4 SCC 540, in order to contend that the proposition that 'rules of the Game cannot be altered once the Game has begun' is not an inflexible rule and in appropriate cases some departure or supplementation would be permissible. In the judgment relied upon, the Hon'ble Supreme Court has merely referred the question in para 15 of the judgment for consideration of a Larger Bench, which reads as under:-
"15. No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the ''rules of the game' insofar as the prescription of eligibility criteria is concerned as was done in the case of C. Channabasavaiah v. State of Mysore [AIR 1965 SC 1293] etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the ''rules of the game' stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger Bench of this Court. We, therefore, order that the matter be placed before the Hon'ble Chief Justice of India for appropriate orders in this regard."
31. The proposition that rules of the Game cannot be changed once the Game has begun is to well-settled to be questioned (See:-A.A Calton v. The Director of Education, (1983) 3 SCC 33; P. Mahendra and others Vs. State of Karnataka and others, AIR 1990 SC 405; N.T. Devin Katti and others Vs. Karnataka Public Service Commission and others, (1990) 3 SCC 157; Director, SCTI For Medical Science & Technology and another Vs. M. Pushkaran, (2008) 1 SCC 448; Tej Prakash Pathak and others Vs. Rajasthan High Court and others, (2013) 4 SCC 540; and Santosh Kumar Singh Vs. State of U.P. and others, reported in 2015 (33) LCD 2402). The reference order in Tej Prakash Pathak (supra) would not have the effect of nullifying the proposition otherwise settled in law. In view of the findings returned that action of the State is in conformity with requirement of applicable rules, there would be no occasion to depart from the principle.
32. Reliance is also placed upon a judgment of the Apex Court in Sanjay Singh and another Vs. U.P. Public Service Commission, Allahabad and another, (2007) 3 SCC 720. The issue that arose for consideration was as to whether the scaling could be done by the recruitment agency in a manner, which may violate the statutory rules applicable for recruitment. The Hon'ble Supreme Court after examining the law clearly observed that scaling technique was not appropriately followed for the recruitment in question, and as it had the effect of violating the rules, the same was not approved of. Equities were adjusted accordingly. This authority supports the view that the recruitment rules have to be followed and the recruitment agency would not be justified in resorting to scaling so as to violate the recruitment rules itself.
33. In University Grants Commission and another Vs. Neha Anil Bobde (Gadekar), (2013) 10 SCC 519, reliance upon which is placed by learned Senior Counsel for the petitioners, following proposition is laid in para 31:-
"31. We are of the view that, in academic matters, unless there is a clear violation of statutory provisions, the Regulations or the Notification issued, the Courts shall keep their hands off since those issues fall within the domain of the experts. This Court in University of Mysore vs. C.D. Govinda Rao, AIR 1965 SC 491, Tariq Islam vs. Aligarh Muslim University (2001) 8 SCC 546 and Rajbir Singh Dalal vs. Chaudhary Devi Lal University (2008) 9 SCC 284, has taken the view that the Court shall not generally sit in appeal over the opinion expressed by expert academic bodies and normally it is wise and safe for the Courts to leave the decision of academic experts who are more familiar with the problem they face, than the Courts generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University. For attaining the said standards, it is open to the UGC to lay down any "qualifying criteria", which has a rational nexus to the object to be achieved, that is for maintenance of standards of teaching, examination and research. Candidates declared eligible for lectureship may be considered for appointment as Assistant Professors in Universities and colleges and the standard of such a teaching faculty has a direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges. UGC has only implemented the opinion of the Experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India."
34. In the facts of the present case, State action having been found in substantial compliance of the statutory rules it would, therefore, not require any interference from the writ court. This Court although has proceeded to examine the contentions urged on behalf of petitioners, on merits, but it would also be appropriate to notice the aspect highlighted by Sri M.D. Singh 'Shekhar' for the intervenors. The petitioners in leading Writ Petition No.10298 of 2018 have all scored marks above 60% both for BTC upto 2012 (petitioner no.1) and other petitioners who have done BTC in 2013. They would be entitled to award of 12 marks in either of the situations. The petitioners, therefore, would not be prejudiced in any manner by the Government Order under challenge. The argument of Sri Shekhar is, therefore, liable to be accepted. It has otherwise been clarified that merely because zone of consideration would stand enlarged as greater number of persons would score 12 marks would not invalidate the recruitment exercise.
35. In view of the discussions aforesaid, as also on conspectus of case laws relied upon, this Court finds that the Government Order dated 11.4.2018 as well as the consequential circular are in substantial compliance of the recruitment Rules of 1981 and therefore do not require any interference in writ proceedings. Writ petitions, accordingly, fail and are dismissed. No order, however, is passed as to costs.
Order Date :- 26.4.2018 Ashok Kr./Anil (Ashwani Kumar Mishra, J.)