“It needs no emphasis that the right to education guaranteed in terms of Article 21A of the Constitution would envisage quality education being imparted to the children which in turn, would signify that the teachers must be meritorious and the best of the lot. Any process which applied equally to all the candidates and was designed to garner the best talent, cannot be called arbitrary or irrational.”
Supreme Court: In the case relating to filing up of 69000 vacancies of Assistant Teachers in the State of Uttar Pradesh, the bench of UU Lalit* and MM Shantangoudar, JJ has dismissed the petitions challenging the fixation of 65-60% as minimum qualifying marks for Assistant Teacher Recruitment Examination- 2019 (ATRE-2019) and the eligibility of B.Ed. candidates for the posts of Assistant Teachers under the U.P. Basic Education (Teachers) Service Rules, 1981. While doing so, the Court said,
“If the ultimate object is to select the best available talent and there is a power to fix the minimum qualifying marks,… we do not find any illegality or impropriety in fixation of cut off at 65-60% vide order dated 07.01.2019.”
Resultantly, the Court has directed that the State Government shall now be entitled to fill up all the concerned posts in terms of the result declared on 12.05.2020.
- On 26-5-1999, a Government Order was issued by the State of U.P. for engagement of Shiksha Mitras (Parateacher) in order to provide universal primary education and to maintain teacher student ratio in primary schools by hiring persons who were not duly qualified at lesser cost as against the prescribed salary of a qualified teacher.
- On 19-6-2013, a GO was issued giving permission for appointment of Shiksha Mitras on the post of Assistant Teachers in primary schools without having the eligibility and qualifications in terms of the RTE Act, 2009. Consequential executive orders were issued for absorption of 1,24,000 graduate Shiksha Mitras and 46,000 intermediate Shiksha Mitras.
- On 27.05.2018 ATRE-2018 was conducted. In the results, 41,556 candidates were declared to have qualified with qualifying marks of 45- 40% out of which, 40296 candidates applied for counselling and were selected for appointment on 13.08.2018. About 4500 candidates were added to this number after re-valuation process.
- On 06.01.2019 ATRE-2019 was conducted without there being any specification of minimum qualifying marks.
- On 07.01.2019, an order was passed by the Special Secretary to the State Government: prescribing the minimum qualifying marks in respect of ‘Assistant Teacher Recruitment Exam 2019’ for Primary Schools run by Uttar Pradesh, Basic Siksha Council.
- On 24.01.2019, 23rd Amendment to 1981 Rules was published. Consequently, Graduates having 50 per cent or more marks and holding degree of Bachelor of Education (B.Ed.) became eligible for posts of Assistant Master and Assistant Mistresses in Junior Basic Schools in the manner laid down in the Amendment. The concerned provisions in 1981 Rules dealing with eligibility of such candidate were given retrospective effect from 01.01.2018.
What the Supreme Court said
On eligibility of B.Ed. candidates
For maintaining standards of education in schools, the NCTE is specifically empowered to determine the qualifications of persons for being recruited as teachers in schools or colleges. In addition to regulating standards in “teacher education system”, the NCTE Act also deals with regulation and proper maintenance of norms and standards in respect of qualifications of persons to be recruited as teachers.
The eligibility or entitlement being already conferred by Notification dated 28.06.2018, the amendments to 1981 Rules were effected only to make the statutory regime consistent with the directives issued by the NCTE. The right or eligibility was not conferred by amendments effected to 1981 Rules for the first time but was only to effectuate the statutory regime in tune or accord with NCTE directives. Theoretically, even if such statutory regime was not made so consistent, the concerned candidates holding B.Ed. degrees could still be eligible and could not have been denied candidature for ATRE-2019. Pertinently, the performance in ATRE is one of the indicia that goes into making of quality points which in turn have to be considered at the stage of preparation of merit list for selection. By the time the actual process of selection was undertaken, the statutory regime in the form of 1981 Rules was perfectly consistent and in order.
Hence, the B.Ed. candidates were rightly allowed to participate in the instant selection process.
On 65-60% cutoff
Difference in nature of ATRE-2018 and ATRE-2019
In ATRE-2018, the percentage of qualifying candidates was thus 38.83%. On the other hand, the percentage of qualifying candidates in ATRE-2019 was 37.62%, which was almost equal to that in ATRE-2018. However, the number of qualified candidates in ATRE-2018 was less than the number of vacancies; while even with the cut off at 65-60% the number of qualified candidates in the present selection was far in excess of the number of posts. This happened because,
“Though the syllabus and subject wise allocation of marks were identical, the nature of ATRE-2019 was entirely different. The questions in ATRE-2018 were descriptive in nature and the duration of examination was three hours. However, those in ATRE 2019 were multiple choice – objective questions and the duration of examination was also different.”
Hence, there could be different parameters regarding minimum qualifying marks for ATRE-2019.
Candidates appearing in ATRE-2018 and ATRE-2019 formed different classes
All the candidates including Shiksha Mitras who appeared in ATRE 2018 formed one class while those who appeared in ATRE 2019 formed another class. There cannot be inter se connection or homogeneity between candidates appearing in one examination or selection with those appearing in another examination or selection.
“The basic norms of ATRE-2019 must be tested on their own and cannot depend upon para meters or norms on the basis of which ATRE-2018 was held. Otherwise the integrity of the examination process will get defeated and nullified.”
65-60% cutoff was fixed to garner best available talent
Even with 65-60% cutoff, the percentage of qualified candidates in ATRE-2019 was 37.62% which was quite close to 38.83% in ATRE-2018 and the number of qualified candidates was far in excess of the vacancies required to be filled up. Thus, cut off at 65-60% level in the present case, by itself cannot be termed as incorrect or illegal exercise of power. Those Shiksha Mitras who were meritorious and took the examination with seriousness that it deserved, certainly succeeded in securing marks more than the cut off of 65-60%. Hence,
“… the fixation of cut off at 65- 60% which was intended to select the best of the candidates cannot be termed as exclusionary nor was it intended to deprive the Shiksha Mitras of the advantage of weightage for experience.”
State Government is empowered to determine minimum marks “from time to time”
In terms of Rule 2(1)(x) of 1981 Rules, qualifying marks of ATRE are such minimum marks as may be determined ‘from time to time’ by the Government. If this power is taken to be conditioned with the requirement that the stipulation must be part of the instrument notifying the examination, it would lead to illogical consequences. On one hand, the relevant Rule requires passing of ATRE while, on the other hand, there would be no minimum qualifying marks prescribed. Hence, the Government must be said to be having power to lay down such minimum qualifying marks not exactly alongside instrument notifying the examination but at such other reasonable time as well.
“If the Government has the power to fix minimum qualifying marks ‘from time to time’, there is nothing in the Rules which can detract from the exercise of such power even after the examination is over, provided the exercise of such power is not actuated by any malice or ill will and is in furtherance of the object of finding the best available talent.”
Third chance to Shiksha Mitras
Even though the challenge by Shiksha Mitras was dismissed, the Court directed that one more opportunity shall be afforded to Shiksha Mitras to compete in the next selection. The Court left it to the discretion of the State Government to consider the manner and the modalities in which such opportunity can be availed of.
[Ram Sharan Maurya v. State of Uttar Pradesh, CIVIL APPEAL NO.3707 OF 2020, 17.11.2020]
*Justice UU Lalit has penned this judgment
Advocates who appeared in the matter
For the Shiksha Mitras: Senior Advocates P.S. Patwalia, C.A. Sundaram, Rakesh Dwivedi, Rajiv Dhawan, Nidhesh Gupta, V. Shekhar, S. Guru Krishna Kumar, Meenakshi Arora, Dinesh Diwedi, K.T.S. Tulsi, Mr. Jayant Bhushan, and advocates Gaurav Agrawal and Tanya Agarwal.
For State: Additional Solicitor General Aishwarya Bhati
For B. Ed./BTC Candidates: Senior Advocates H.N. Salve, R. Venkataramani, Pallav Shishodiya, K.V. Vishwanathan and V. Mohana