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(v) Whether the qualifying mark prescribed in the written examination for eligibility for oral interview is arbitrary and violative of Articles 14 and 16 of the Constitution?

(vi) Whether the reduction of qualifying marks for the respective classes of OC, BC and SC/ST/PH in G.O. Rt. No.618, dated 18-5-1998 is arbitrary, illegal and unconstitutional?

(vii) Whether several malpractices alleged in the examination are established and even if established, are of such magnitude an destructive of very object and intcndment of the examinations entailing in cancellation of entire examinations?

32. Common notification has been issued for selection of SG teachers and other posts mentioned above prescribing the qualifying marks in the written examination at 50,45, and 40 out of 85 for OC BC & SC/ST/PH respectively. The said notification is in consonance with Rule 13(a) of A.P. Direct Recruitment for Posts of Teachers (Scheme of Selection) Rules, 1994, which have been framed in exercise of the rule-making power drawn from various provisions of the Acts mentioned supra, in view of several vacancies of SG Teachers in Government Schools, as also schools run by Zilla Parishad and Mandal Praja Parishad. Written Examination was conducted pursuant to the above notification, which is in consonance with _the statutory rule and there cannot be any deviation from the same. Merely because requisite number of qualified candidates were not available, the Government is not entitled to issue a notification like G.O. Rt.No.618, dated 18-5-1998 by reducing the qualifying marks facilitating the disqualified in the written test to appear for the oral interview. That apart, G.O. Rt.No.618 was issued not in exercise of the rule making power under which G.O Ms.No.221, dated 16-7-1994 was issued framing the rules, the title of which is stated supra. G.O. Rt. No.618, is not in the nature of amending G.O. Ms.No.221. In fact, it cannot be, for the reason that it is not in exercise of the rule making power under which G.O. Ms.No.221 was issued. G.O. Rt.No.618 has been issued under Rule 31 of the Andlira Pradesh State and Subordinate Service Rules which liave been framed under proviso to Article 309 of the Constitution. They may be only in the nature of some relaxation, but they are not having the effect of amending G.O. Ms.No.221. Further, the Andhra Pradesh State and Subordinate Service Rules have got no application in the instant case and in any event, are only applicable to the Government schools and not Zilla Parishad or Mandal Praja Parishad schools. But, there cannot be any dichotomy. What is not applicable to the teachers of Mandal and Zilla Parishad schools cannot be made applicable to the teachers of Government schools as it was a common notification and the option was given to give choice with regard to schools run by the Government or other local authorities. If the rule is to be amended, it has to be done by invoking the correct statutory provisions and that should be done only before issuance of notification and not at a later stage. As already stated above, there is no minimum qualifying marks in the oral interview and if candidates secure the minimum qualifying marks in the written examination for the respective categories of OC, BC and SC/ST/PH even if they get '0' marks in the oral interview, they are bound to be selected subject to the vacancy position and in order of merit. But, what has happened in the instant case is that by reduction of marks after the written test and evaluation, the candidates, who secured lower marks .than qualifying marks, have been admitted for oral interview and some of them scored over the candidates, who were qualified in accordance with the notification. We just give an instance in Writ Petition No.22799 of 1998. The petitioner, namely, J. Krishna Kumar had appeared for written test with hall-ticket No.19100640 and is an 'OC' and secured 50.50 marks in the written test and 6.25 marks in the oral interview, the total being 56.75 marks. His selection was automatic having regard to the marks he has secured, but his selection was over-turned because of the reduction in the qualifying marks and the candidates who scored less than him in written test made a march over him. Such instances galore. There is also another aspect to be considered and that is the rationale in choosing the '5 mark theory' in reduction. Any reduction in marks should have nexus with the object to be achieved and the object to be achieved, which is ex facie clear from G.O. Rt.No.618, dated 18-5-1998, is that as requisite" number of candidates have failed to secure the marks specified in the notification, the candidates, who have secured lower marks, are facilitated to attend the interview and if that be the case, the reduction of marks should be such that scope should be given to the last candidate, who has got possibility of getting selected and it cannot be a just arbitrary reduction of 5 marks without any purpose. The learned Government Pleader for School Education has produced before us the marks of the candidates of several districts, but we do not want to multiply and we take the marks of the candidates of Khammam district. We have, in depth, perused the marks lists of Khammam district. In order to avoid duplicity, we are adopting the basis of marks of OC category candidates, which analogy will automatically apply to other candidates of BC and SC/ST/ PH. In Khammam district, the last candidate (OC category) who had obtained the qualifying marks of 50 is at rank No.837. From rank No.838 downwards, the candidates permitted for interview are with marks less than 50 and by virtue of G.O.Rt. No.618, dated 18-5-1998 they were permitted to appear for interview. Clubbing the written test marks with oral interview marks and starting from rank No.838 Hall-Ticket No.22102204, candidate P. Satyanarctyana, who preferred ZP/MP (Zilla Parishad/Mandal Parishad) belonging to OC category, secured 48 marks in written test and 13.1 marks in oral making a total of 61.1. The last of such candidates who were called for interview in view of qualifying marks reduction in G.O.Rt,No.618 is rank No.1528 with Hall-Ticket No.22100069 namely D. Jayalakshmi, who opted ZP/MP and is an OC and obtained 45 marks in written test and 10 marks in oral interview making a total of 55 marks. Now, the argument with regard to irrationality in just reducing 5 marks is that, the oral marks being 15, the possibility of securing 15 marks cannot be ruled-out and if that is so, why 40 marks were not prescribed as a qualifying mark in written test for OC candidates, in which event, adding 15 marks of oral interview, which is not improbable or impossible, the total marks would be 55 and in not doing so, there is a discrimination as equals are unequally treated. Another argument is that from rank No. 1200, namely N. Ravi Shanker, who opted ZP/MP belonging to OC category and secured 47.5 marks in the written test and 10,5 marks in the oral test, total being 58 marks, if the qualifying marks were reduced to 43 and with a probability of obtaining 15 marks in oral test, it would make 58 and the candidates who secured 58 with written test marks of 43, should have been on par with the candidates with rank No. 1200 and below and that even on this count the reduction of only 5 marks is also arbitrary and irrational. In OA No.5762 of 1998, which was filed by the petitioner in Writ Petition No.24288 of 1998, it was held by the Tribunal that "the question whether qualifying marks have to be reduced or not is a policy decision to be taken by the Government". But we do not concur with the said view. It is, of course, for the executive Government to prescribe the marks by resorting to the appropriate rule making power as was done in G.O.Ms.No.221 and also to reduce the same. But the same should be done before the notification and the notification should be in consonance with the policy enunciated in the rule and whatever examination has to be conducted and selection process to be undergone shall only be in accordance with the rule which was in vogue on the date of notification and the same cannot be changed in the middle of selection process and, that too, in the manner done in G.O.Rt.No.618. Further, a policy decision also is susceptible to the vice of discrimination which is prohibited under equality clause in , Article 14 and also oilier provisions in Part-Ill of the Constitution, A policy decision which is against the Statute Law is also illegal and is liable to be set aside. Further, G.O. Rt.No.618 cannot be tenned as an amendment to the rule at all and it was issued only for a particular purpose of these cases so as to reduce the mark for the reason that the qualified candidates are less in number. Apart from the fact that it cannot be termed as an amendment of rule which, of course, is contrary to law, cannot be made for a particular purpose like this. If sufficient candidates conforming to the vacancies are not qualified in the written test, then a fresh notification has to be issued but the solution cannot lie in taking decision like in G.O.Rt.No.618. Our view is fortified by the decisions mentioned below.

34. With regard to standard of syllabus, there is a mention to make. Secondary Grade Teachers are elementary teachers from I Standard to VII Standard. The educational qualification is a pass in Intermediate plus Teacher Training Certificate course. They cannot be equated with graduates in education (B.Ed). Certainly, the standard of the graduates like BA, B.Sc and B.Ed, will be higher than the candidates with Intermediate qualification and the Teachers Training Certificate. In fact, B.Ed, can be studied only after acquiring baclielor degree in Arts, Science or Commerce and for B.Ed, entrance itself, the qualifying marks in the written test is 45%, which is National standard as evidenced by the norms and standards for teacher-education institutions which was issued by the National Council for Teacher Education at New Delhi in the year 1995 in exercise of the rule making power under Section 12(e) of the National Council for Teachers Education Act, 1993, and para 8.0 fixes the norms regarding admissions criteria and 45% of the marks is the criterion for admission to B.Ed or Master degree courses in open category with provision for relaxation for SC/ST and other reserved candidates, and it is ununderstandable as to how the pass marks can be as high as 50, 45, 40 for OC, BC and SC/ST candidates. We have posed a specific question to the learned Advocate-General as to whether in the State of Andhra Pradcsh, for any examination -qualifying entrance, or competitive - this per centage of marks which comes to 58% for OC, 52.8% for BC and 47% for SC/ST are prescribed and the learned Advocate-General replied in the negative stating that minimum qualifying mark is only 45% as stated above which in terms of 85, will come to 38.25 marks. Even for medical, engineering and agricultural courses which are high professional courses, the qualifying marks are 45% and for other remaining courses it is 35%. Even for District Judges selection as also Munsif Magistrate Selection, in the written test the qualifying marks is 30 out of 80 which comes to 37.5%. Even in the examinations conducted by the Andhra Pradesh Public Service Commission, for State Service, the qualifying marks in the written test is 40%, 35% and 30% respectively for OC, BC and SC/ST/PH while for Subordinate Services, it is 30% for all the communities. In the instant case, certainly the qualifying mark is on high side and is arbitrary. It is also discriminatory for the reason that the candidate with a pass in Intermediate and Teacher Training Certificate can never be equated with graduates and postgraduates and here is a case of uncquals being treated equally, thus, violating Article 14 of the Constitution of India. But, because of the acute unemployment problem, we cannot put a restriction on the persons having higher qualification not to compete for SG teachers or even for Language Pandits Grade-II. Over Population which is rising at the alarming rate of 2% per annum is causing the struggle for employment for existence which is traceable to the fundamental right to life under Article 21 of the Constitution. For that reason, neither are we inclined to set aside the written examination held nor do we suggest to restrict the maximum educational qualification to only Intermediate. Merit is welcome and more so in teachers' profession, but it does not mean that persons with basic and minimum qualifications should be disadvantaged. Standard of syllabus should be of basic standards with qualifying marks in written test not to exceed 40% marks for OC 35% marks for BC and 30% marks for SC/ST/PH candidates. Further, as higher qualified are expected to try for greener pastures, making the elementary teachers' post as a spring board, the entire list in order of merit should be kept alive for a minimum period of one year entitling the next eligible candidates for selection. The Government of Andhra Pradesh, represented by its Secretary, Education Department, is directed to amend G.O.Ms.No.221, Education Department, dated 16-7-1994 accordingly well in advance of next notification.