Case BriefsSupreme Court

“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. 


Relevant Facts


  • 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.

Therefore,

“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, 2020 SCC OnLine SC 939, 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

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah*, JJ had held that it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post, not the Courts.

“Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts.”

In the present case, applications were invited by the appellant Bank for the post of Peon by publishing an advertisement in the local newspaper. The eligibility criteria mentioned in the said advertisement was that a candidate should have passed 12th class or its equivalent with basic reading/writing knowledge of English. It specifically provided that a candidate should not be a Graduate as on 01.01.2016

The respondent herein – original writ petitioner, based on the information provided by him in his application, was appointed. While scrutiny of the documents was going on, the appellant Bank came to know about a graduate certificate showing that the respondent was a graduate since 2014.  Thus, it was noticed and found that he was not eligible as per the advertisement and the Circulars and that the respondent deliberately, wilfully and intentionally suppressed the fact that he was a graduate. Therefore, his candidature was cancelled and he was not allowed to join the bank in subordinate cadre. The High Court of Orissa, however, directed the appellant Bank to allow the respondent to discharge his duties as a Peon as per the appointment order.

The Bank submitted that considering the nature of the post – Peon/subordinate cadre, a conscious decision was taken by it that a candidate having the qualification of graduation shall not be eligible and the candidate who passed in 12th standard or its equivalent with basic reading/writing knowledge of English shall only be eligible. Hence, unless it is found to be most arbitrary, the same cannot be the subject-matter of a judicial review.

The Court held that prescribing the eligibility criteria/educational qualification that a graduate candidate shall not be eligible and the candidate must have passed 12th standard is justified and it is a conscious decision taken by the Bank which is in force since 2008. Therefore, the High Court has clearly erred in directing the appellant Bank to allow the respondent-original writ petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement.

Considering the facts and circumstances of the case at hand, the Court noticed that in the application, the respondent did not disclose that he is a graduate from 2014 and only mentioned his qualification as 12th pass. Therefore, the respondent deliberately, wilfully and intentionally suppressed the fact that he was a graduate. Had it been known to the bank that he was a graduate, he would not have at all been considered for selection as a Peon in the bank.

The Court further held that once having participated in the recruitment process as per the advertisement, thereafter it is not open for him to contend that acquisition of higher qualification cannot be a disqualification and that too when he never challenged the eligibility criteria/educational qualification mentioned in the advertisement.

[Chief Manager, Punjab National Bank v. Anit Kumar Das, 2020 SCC OnLine SC 897, decided on 03.11.2020]


*Justice MR Shah has penned this judgment 

Case BriefsHigh Courts

Punjab and Haryana High Court: Augustine George Masih, J. disposed of the present petition on grounds of it being infructuous.

The Petitioner challenged the order passed by the Collector, Patiala; order passed by the Divisional Commissioner, Patiala Division; and order passed by the Financial Commissioner, Punjab, whereby the appointment of Jagtar Singh (Respondent 5) was upheld as Lambardar of Village Basma, Tehsil Rajpura, District Patiala.

The petitioner contended that Jagtar Singh had defrauded the official respondents and the State as he had with a mala fide intention shown that he had purchased some land by way of sale deed, which was done with an intention to fulfill the eligibility condition for appointment to the post of Lambardar. The said land was, in fact, sold by the petitioner to another seller on 17.01.2011. He, therefore, contended that the appointment could not be sustained and deserved to be set aside. Pursuant to the said action of Jagtar Singh, his own appointment as Lambardar of the village had been cancelled by the District Collector.

It was argued by the opposing counsel that on the date of appointment of the said respondent i.e, he was eligible and, therefore, the appointment could not be said to be illegal. Since the appointment of the respondent had been cancelled, the present writ petition had been rendered infructuous. It was further asserted that the date of eligibility was the date of appointment by the Collector.

After considering the submissions made by the counsel for the parties, the Court held that in the light of the eligibility to be seen being the date of appointment on the post of Lambardar, the appointment of Jagtar Singh could not be said to be illegal as, on the said date, he was eligible for appointment to the post of Lambardar. In case of any violation of the statutory rules at a subsequent stage by a Lambardar, the competent authority i.e. the District Collector was entitled to take action against such an appointed Lambardar, which had been taken by the District Collector, S.A.S. Nagar. Since Respondent 5 was already removed from the post of Lambardar, the present writ petition was rendered infructuous. [Satnam Singh v. Financial Commissioner, Punjab, 2019 SCC OnLine P&H 2260, decided on 26-11-2019]

Case BriefsSupreme Court

Supreme Court: Stating that the essential qualifications for appointment to a post are for the employer to decide, the bench of Arun Mishra and Navin Sinha, JJ said,

“The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re­writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review.”

The Court further held that if the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law.

“In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”

The Court was hearing the appeal filed against the order of the High Court holding that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors under separate advertisements dated 04.01.2012 and 31.03.2015.

It was submitted before the Court that the academic qualifications coupled with the requisite years of practical experience in the manufacturing and testing of drugs were essential qualifications for appointment. Research experience in a research and development laboratory was a desirable qualification which may have entitled such a person to a preference only. The latter experience could not be equated with and considered to be at par with the essential eligibility to be considered for appointment. It was argued that the High Court erred in misreading the advertisement to redefine the desirable qualification as an essential qualification by itself.

The Court said that the plain reading of the advertisement provides that a degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University coupled with the requisite years of experience thereafter in manufacturing or testing of drugs were essential qualifications. Preference could be given to those possessing the additional desirable qualification of research experience in the synthesis and testing of drugs in a research laboratory.

The Court also said that

“an expert committee may have been constituted and which examined the documents before calling the candidates for interview cannot operate as an estoppel against the clear terms of the advertisement to render an ineligible candidate eligible for appointment.”

[Maharashtra Public Service Commission v. Sandeep Shriram Warade, 2019 SCC OnLine SC 652, decided on 03.05.2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise & Service Tax Appellate Tribunal (CESTAT): This appeal was filed before Sulekha Beevi C.S., Member.

Facts of the case were such that appellants were engaged in manufacturing of wheels and components for cars, jeeps, tractors, commercial vehicles, etc. and were registered with the Central Excise Department.

It was found that assessee had availed CENVAT credit of service tax paid on various input services including outward freight. A show cause notice was issued proposing to recover the ineligible availed credit along with interest for which penalty was imposed. After due process of law, in respect of Goods Transport Agency services the adjudicating authority did not allow CENVAT credit but for all other services the same was allowed. Hence, this appeal was filed before the Tribunal.

M. Kannan, counsel on behalf of the appellant had submitted that appellant had sold goods to customers on FOR basis. Therefore, place of removal should be buyer’s premises. Adjudicating authority found the appellant to be not eligible for the credit of the service tax paid on the freight for outward transportation of goods upto buyer’s premises. Whereas, L. Nandakumar, counsel on behalf of respondent contended that appellant needs to produce documents in order to prove that the place of removal is the buyer’s premises. Counsel relied on the case of CCE v. Ultra Tech Cement Ltd., (2018) 9 GSTL 337 (SC) where it was held that credit is eligible from the place of removal upto the buyer’s premises.

Tribunal observed that in cases such as this when the sale takes at buyer’s premises, the place of removal is the buyer’s premises. Thus, it was necessary to determine the place of removal to consider the eligibility of credit of service tax paid on freight charges upto the buyer’s premises. Therefore, Tribunal concluded it to be a fit case for remanding it to the adjudicating authority to look into the issue of eligibility of credit on GTA services after determining the place of removal after considering the decision referred above. Therefore, the impugned order was set aside. [Wheels India Ltd. v. Commissioner (GST), 2019 SCC OnLine CESTAT 46, decided on 14-03-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sunil Gaur, J., disposed of a writ petition before it. The petitioner, an unsuccessful candidate for the post of Trained Graduate Teacher (TGT) in Mathematics, had filed the writ petition against the appointment of Respondent 7, who was selected as TGT in Dhanpatmal Virmani Secondary School, Roop Nagar, Delhi.

The petitioner’s case was that the Masters’ degree held by Respondent 7 was fabricated and that there was interpolation of marks scored by Respondent 7 in the interview. The petitioner submitted that while she was working as a guest teacher in another school, Respondent 7’s ineligibility gave her a valid claim to be appointed as TGT. The petitioner submitted that several representations in this regard were made but to no avail. She also brought to light the fact that she had sent a legal notice to the respondents but there was no response to it.

The Court adjudged that a proper inquiry was called for, considering the fact that Respondent 7’s marks were handwritten whereas the other candidates’ were printed in the interview score sheet and that Respondent 7 claimed to have earned an MA in Mathematics from Kalinga University, Raipur, Chhatisgarh, which is a full time regular course, while she was in regular service in a MCD school within the same period. The Court directed that the conclusions of the inquiry be communicated to the petitioner so she may avail remedy available under law. Petition disposed of. [Ashu Rani v. Dhanpatmal Virmani Senior Secondary School,2018 SCC OnLine Del 7127, decided on 07.02.2018]

Case BriefsSupreme Court

Supreme Court: Stating that ‘transfer’ and ‘recruitment by transfer’ are entirely two different concepts, the Court said that no doubt transfer can be from one category to another category or within the class if the rule permits interchangeability of the categories within a class but any other transfer both intra category and inter category are in fact, under law is a selection and appointment by way of a transfer from one category to another or from one class to another class or from one service to another.

Explaining further, the Court said that transfer in relation to service simply means a change of a place of employment within an organization. Such transfer being to a similar post in the same cadre and therefore, obviously such a transfer does not result in the termination of his lien in the parent cadre but recruitment by transfer is a different service concept altogether. Once an employee undergoes a transfer by way of a recruitment to a different cadre or to a different service, the employee loses his lien in the parent cadre/service. In that process, there is an induction to a new cadre and sometimes with a different type of duty. Such induction has distinct consequence on the career of the employee different from what would have been the normal course had he continued in the parent service.

The bench of Kurian Joseph and R. Banumathi, JJ also explained the difference between ‘Seniority’ and ‘eligibility’ and said that as far as promotion or recruitment by transfer to a higher category or different service is concerned if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being superseded. Other things being equal, senior automatically gets promoted. But in the case of selection based on merit-cum-seniority, it is a settled principle that seniority has to give way to merit. Only if merit being equal senior will get the promotion. It was held that merely because a person is senior, if the senior is not otherwise eligible for consideration as per the rules for promotion, the senior will have to give way to the eligible juniors. [Palure Bhaskar Rao v. P. Ramaseshaiah, 2017 SCC OnLine SC 388, decided on 12.04.2017]