Decision Regarding TET in May 2012

Decision Regarding TET in May 2012

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No.1995 of 2011 (S/S)
Nirmal Kumar & Ors.
...Petitioners
Versus
State of Uttarakhand & Ors.
...Respondents
with
Writ Petition No.1674 of 2011 (S/S)
Smt. Sharda Devi
...Petitioner
Versus
Uttarakhand Vidhyalayi Shiksha Parishad & Anr.
...Respondents
with
Writ Petition No.1540 of 2011 (S/S)
Manveer Singh & Ors.
...Petitioners
Versus
State of Uttarakhand & Ors.
...Respondents
with
Writ Petition No.1677 of 2011 (S/S)
Gopal Singh & Ors.
...Petitioners
Versus
State of Uttarakhand & Ors.
...Respondents
4
with
Writ Petition No.1751 of 2011 (S/S)
Usha Pant
...Petitioner
Versus
State of Uttarakhand & Anr.
...Respondents
with
Writ Petition No.1804 of 2011 (S/S)
Pawan Kumar Upadhyay
...Petitioner
Versus
Uttarakhand Vidyalayi Shiksha Parishad & Anr.
...Respondents
with
Writ Petition No.1818 of 2011 (S/S)
Dayanand Tamta & Ors.
...Petitioner
Versus
State of Uttarakhand & Ors.
...Respondents
with
Writ Petition No.1831 of 2011 (S/S)
Km. Neha Saxena
...Petitioner
Versus
State of Uttarakhand & Ors.
...Respondents
5
with
Writ Petition No.1836 of 2011 (S/S)
Rakesh Kumar
...Petitioner
Versus
Uttarakhand Vidyalayi Shiksha Parishad & Anr.
...Respondents
with
Writ Petition No.1866 of 2011 (S/S)
Madan Singh Bhaisora
...Petitioner
Versus
Uttarakhand Vidyalayi Shiksha Parishad & Anr.
...Respondents
with
Writ Petition No.1905 of 2011 (S/S)
Smt. Jaya Chaudhary
...Petitioner
Versus
State of Uttarakhand & Anr.
...Respondents
with
Writ Petition No.1931 of 2011 (S/S)
Lalit Mohan Upreti
...Petitioner
Versus
Uttarakhand Vidyalayi Shiksha Parishad & Anr.
...Respondents
6
with
Writ Petition No.1933 of 2011 (S/S)
Jagdish Chandra Pant
...Petitioner
Versus
Uttarakhand Vidyalayi Shiksha Parishad & Anr.
...Respondents
with
Writ Petition No.1934 of 2011 (S/S)
Smt. Kalpana Joshi
...Petitioner
Versus
Uttarakhand Vidyalayi Shiksha Parishad & Anr.
...Respondents
with
Writ Petition No.1935 of 2011 (S/S)
Rajni Raturi
...Petitioner
Versus
Uttarakhand Vidyalayi Shiksha Parishad & Anr.
...Respondents
with
Writ Petition No.1939 of 2011 (S/S)
Yogesh Chandra
...Petitioner
Versus
Uttarakhand Vidyalayi Shiksha Parishad & Anr.
...Respondents
7
with
Writ Petition No.1941 of 2011 (S/S)
Ravindra Pratap Singh
...Petitioner
Versus
State of Uttarakhand & Anr.
...Respondents
with
Writ Petition No.1942 of 2011 (S/S)
Smt. Suchita Bisht
...Petitioner
Versus
Uttarakhand Vidyalayi Shiksha Parishad & Anr.
...Respondents
with
Writ Petition No.1947 of 2011 (S/S)
Vineeta & Anr.
...Petitioners
Versus
State of Uttarakhand & Ors.
...Respondents
with
Writ Petition No.1950 of 2011 (S/S)
Renu Tamta & Anr.
...Petitioners
Versus
Director School Education & Ors.
...Respondents
8
with
Writ Petition No.1952 of 2011 (S/S)
Lalit Mohan Joshi & Anr.
...Petitioners
Versus
State of Uttarakhand & Anr.
...Respondents
with
Writ Petition No.1978 of 2011 (S/S)
Manoj Joshi
...Petitioner
Versus
State of Uttarakhand & Anr.
...Respondents
with
Writ Petition No.1982 of 2011 (S/S)
Sumangal Mandal & Ors.
...Petitioner
Versus
State of Uttarakhand & Anr.
...Respondents
with
Writ Petition No.1984 of 2011 (S/S)
Brij Mohan Singh Negi
...Petitioner
Versus
Director School Educat
ion Uttarakhand & Ors.
...Respondents
9
with
Writ Petition No.1994 of 2011 (S/S)
Smt. Sarita Rani & Anr.
...Petitioners
Versus
Uttarakhand Vidhyalayi Shiksha Parishad & Anr.
...Respondents
with
Writ Petition No.2004 of 2011 (S/S)
Narendra Singh
...Petitioner
Versus
Director School Educat
ion Uttarakhand & Ors.
...Respondents
with
Writ Petition No.140 of 2012 (S/S)
Radha Ballabh & Anr.
...Petitioner
Versus
State of Uttarakhand & Ors.
...Respondents
with
Writ Petition No.394 of 2012 (S/S)
Km. Sonam Devi
...Petitioner
Versus
State of Uttarakhand & Anr.
...Respondents
Mr. Manoj Tiwari, Sr. Advocate assisted by Mr. Pankaj Tangwan, Mr. H.M.
Bhatia, Mr. C.S. Rawat, Mr. G.S. Negi, Mr. Deepak Bisht, Mr. J.S. Bisht, Mr.
G.D. Joshi, Mr. S.C. Bhatt, Mr. Davesh
Bishnoi, Mr. P.S. Bisht, Mr. Vijay
10
Khanduri, Mr. Niranjan Bhatt, Mr. D.S. Bisht, Mr. H.C. Joshi, Mr. B.D.
Pande, Mr. H.C. Pathak, Mr. R.C. Tamta, Advocates for the petitioners.
Mr. H.M. Raturi, Standing Counsel for the State.
Mr. N.S. Negi, Advocate along with Ms. Geeta Parihar, Ms. Seema Sah and
Mr. Asif Ali, Advocates for the Uttarakhand Vidhyalayi Shiksha Parishad
Hon’ble Tarun Agarwala, J.
In this group of petitions, the petitioners are
aggrieved by their failure in not qualifying the
U.T.E.T. Examination, 2011 conducted by
Uttarakhand Vidhyalayi Shiksha Parishad,
Ramnagar, District Nainital (respondent no.2) and
have consequently filed these writ petitions praying
that the respondents be directed to reduce the cut-
off marks from 60% to 50% and reconsider the
evidence given by the petitioners in support of the
disputed questions with regard to the key answers
given by the respondents.
The basic grievance of the petitioners is, that
there are 15 disputed questions, which in one form
or the other, are incorrect and consequently the
respondents are required to reconsider their
answers. According to the petitioners, model key
answers provided by the respondents are incorrect
in some of these disputed questions and that the
answers given by the petitioners are correct. In
some of the questions, there is a good chance that
there are two correct answers in the choice given
and therefore in such cases the candidate should
be awarded one mark in the event he answers any
of the two choices. In some of the questions, all the
four choices are correct and therefore one mark
11
should be awarded to all the candidates. The
petitioners consequently contended that the key
answers given by the respondents should be
reconsidered and revised accordingly. The
petitioners are further aggrieved by the qualifying
marks disclosed in the advertisement for qualifying
the U.T.E.T. Examination. According to the
petitioners, 60% is too high and there is no
rationale behind fixing such percentage. The third
grievance of the petitioners is, that the question
paper that was set by the respondents, was not in
accordance with the guidelines dated 11
th
Februrary, 2011 i.e. to say that the question on
method of teaching in Pedagogy, Mathematics,
Environmental Studies and Language was not given
whereas the guidelines contemplated that
questions on these areas would be asked. The
petitioners contended that since the questions were
not set in the manner disclosed in the guidelines,
which has a statutory flavour, the entire process
stood vitiated and a fresh examination should be
conducted.
In the light of the grievance stipulated
aforesaid, the Court has heard Sri Manoj Tiwari,
the learned senior counsel assisted by Sri Pankaj
Tangwan, the learned counsel for the petitioner in
the leading case. The arguments of the learned
senior counsel was adopted by all the other
counsels, namely, Mr. H.M. Bhatia, Mr. C.S. Rawat,
Mr. G.S. Negi, Mr. Deepak Bisht, Mr. J.S. Bisht,
16
(3) The salary and allowances payable to, and
the terms and conditions of service of, teacher shall
be such as may prescribed.”
Rule 23 of The Right of Children to Free and
Compulsory Education Rules, 2010 provides that
the Central Government shall notify an academic
authority for the purpose of providing a curriculum
and evaluation procedure for elementary education.
For facility, Rule 23 is extracted hereunder:-
“
23. Academic authority.
- (1) The Central
Government shall notify an academic authority for
the purposes of section 29 within one month of the
appointed date.
(2) While laying down the curriculum and
evaluation procedure, the academic authority
notified under sub-rule (1) shall,-
(a) formulate the relevant and age
appropriate syllabus and text books
and other learning material;
(b) develop in-service teacher training
design; and
(c) prepare guidelines for putting into
practice continuous and comprehensive
evaluation.
(3) The academic authority referred to in sub-
rule (1) shall design and implement a process of
holistic school quality assessment on a regular
basis.”
17
Based on the said provision, the Central
Government issued a notification dated 31
st
March,
2010, authorizing National Council for Teachers
Education (NCTE) to be the academic authority to
lay down the minimum qualifications for a person
to be eligible to the appointment of teachers.
Based on the aforesaid Notification dated 31
st
March, 2010, NCTE framed the minimum
qualifications for a person to be eligible to the
appointment of teachers by means of a Notification
dated 23
rd
August, 2010.
The minimum qualification for a person to be
eligible for appointment as a teacher for class I to V
as provided in the Notification dated 23
rd
August,
2010 is extracted hereunder:-
“ 1 Minimum Qualifications.-
(i) Classes I-V
(a) Senior Secondary (or its equivalent) with at
least 50% marks and 2-year Diploma in
Elementary Education (by whatever name
known)
OR
Senior Secondary (or its equivalent) with at
least 45% marks and 2-year Diploma in
Elementary Education (by whatever name
known), in accordance with the NCTE
(Recognition Norms and Procedure), Regulations
2002
18
OR
Senior Secondary (or its equivalent) with at
least 50% marks and 4-year Bachelor of
Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at
least 50% marks and 2-year Diploma in
Education (Special Education)
AND
(b) 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.”
The aforesaid indicates that a person should
have a Senior Secondary Decree or equivalent with
at least 50% marks with 2 year Diploma in
Elementary Education or Bachelor in Elementary
Education. In addition to the aforesaid, a person
should also have passed the Teachers Eligibility
Test. According to this Notification dated 23
rd
August, 2010, this Teachers Eligibility Test is
required to be conducted by the appropriate
Government in accordance with the guidelines
framed by NCTE for the purpose.
Based on the aforesaid, the NCTE framed the
guidelines dated 11
th
February, 2011. Some of the
25
been questioned nor the report submitted by the
Committee has been challenged before this Court.
It is settled law that the opinion given by an expert
in academic matters should not be interfered by a
Court of law in judicial review unless it is shown
that the expert opinion was palpably wrong and
erroneous. In the absence of challenging the report
of the Expert Committee or the constitution of the
expert body, it is not open to the petitioners to
contend that the key answers given by the
respondents should be re-examined by another
Committee constituted by this Court.
The Court further finds that no
malafides
has
been attributed against any members of the Expert
Body. The Supreme Court in
B.C. Mylarappa alias
Dr. Chikkamylarappa vs. Dr. R. Venkatasubbaiah
& Ors., 2008 (14) Supreme Court Cases 306,
has
held that in the absence of any malafides against
the members of the expert body, the opinion
expressed by the expert body cannot be said to be
illegal, invalid and without jurisdiction. The
Supreme Court, in paragraph 26, held:
“26. Admittedly, there is nothing on record to
show any mala fides attributed against the members
of the expert body of the University. The University
Authorities had also before the High Court in their
objections to the writ petition taken a stand that the
appellant had fully satisfied the requirement for
appointment. In this view of the matter and in the
26
absence of any mala fides either of the expert body
of the University or of the University Authorities and
in view of the discussions made hereinabove, it
would be difficult to sustain the orders of the High
Court as the opinion expressed by the Board and its
recommendations cannot be said to be illegal, invalid
and without jurisdiction.”
In the light of the aforesaid, the Court is of the
opinion that it is not appropriate to constitute a
committee or direct the respondent no.2 to re-
examine their key answers and thereafter re-
examine the answer sheets of the petitioners. In the
absence of any statutory rules or regulations, the
examination paper of the petitioners cannot be re-
examined or re-evaluated as held in the case of
Himachal Pradesh Public Service Commission vs.
Mukesh Thakur & Anr. (Supra).
The contention that the qualifying marks of
60% is very high and consequently arbitrary, and
that, it has no rationale cannot be accepted. A
policy decision taken by the Government should
not be
interfered by the Court unless it is
demonstrated that such policy decision is
arbitrary or illogical. If
the policy decision is
discernible and has a
rationale behind it,
the
Court should not interfere in such policy decision.
In this light, the petitioners contend that the
qualifying marks disclosed in the advertisement
was too high. The Court finds that the percentage
27
of 60% as qualifying marks disclosed in the
advertisement was based on the guidelines framed
by NCTE dated 11
th
February, 2011. Clause 9 of
this guideline provides that the qualifying marks for
TET would be 60%. These guidelines have been
framed pursuant to the Notification dated 23
rd
August, 2010 issued u/s 23(1) of the RTE Act. A
reading of the Notification dated 23
rd
August, 2010
indicates that the guidelines framed by NCTE
would have a statutory flavour. Clause 9 of the
guidelines has not been questioned by the
petitioners. No prayer has been made for the
quashing of this clause. In the absence of not
challenging this provision, the Court does not find
any error in the advertisement, so issued,
indicating that the qualifying marks would be 60%.
In any case, it is a policy decision taken by the
State which is discernible. High standards have
been fixed. The NCTE in its wisdom has given high
standards to ensure that better education is
provided to the children in order to fulfill the
mandate of Article 21A read with 45 of the
Constitution, which the Court does not find it to be
arbitrary. In any case, the Court is of the opinion
that the Court should not take upon itself the task
of the statutory authorities and reduce the
percentage so long as the policy decision is not
arbitrary or illogical. The Court is loath to interfere.
It is upon the State authorities to consider this fact
in the light of various factors. Consequently, the
28
submission of the learned counsel for the
petitioners cannot be accepted.
Similarly, the contention that the question
papers were not set in accordance with the
guidelines framed by NCTE cannot be accepted.
This is the task of the examining body, which has
framed the questions in accordance with the
guidelines. These guidelines may have a statutory
flavour but at the same time it remains only a
guideline and the guideline gives a broad picture of
the kind of questions that can be asked in the
examination paper. It does not mean that every
aspect of the guidelines is to be reflected in a
question in the examination paper.
Quite apart from the aforesaid, the Court finds
that the petitioners having participated in the
examination process cannot turn around and
question the percentage of the qualifying marks nor
it can question the process of preparation of the
examination paper not it can contend that the
question paper was not in accordance with the
guidelines framed by NCTE. This question is no
longer
res integra
and has been settled in a catena
of cases by the Supreme Court, namely,
Madan Lal
v. State of J&K [(1995) 3 SCC 486], Marripati
Nagaraja v. Government of Andhra Pradesh
[(2007) 11 SCC 522], Dhananjay Malik v. State
of Uttaranchal [(2008) 4 SCC 171], Amlan Jyoti
Borooah v. State of Assam [(2009) 3 SCC 227]
29
and K.A. Nagamani v. Indian Airlines [(2009) 5
SCC 515].
In Manish Kumar Shahi vs. State of Bihar &
Ors. [(2010) 12 Supreme Court Cases 576]
, the
Supreme Court reiterated the aforesaid decisions
and held that having taken part in the process of
selection knowing fully well that certain marks
have been earmarked for viva voce test, the
petitioner was not entitled to challenge the criteria
or process of selection. The Supreme Court held
that the conduct of the petitioners clearly
disentitled them from questioning the selection.
The Supreme Court in para-16 held:
“16. We also agree with the High Court that
after having taken part in the process of selection
knowing fully well that more than 19% marks have
been earmarked for viva voce test, the petitioner is
not entitled to challenge the criteria or process of
selection. Surely, if the petitioner’s name had
appeared in the merit list, he would not have even
dreamed of challenging the selection. The petitioner
invoked jurisdiction of the High Court under Article
226 of the Constitution of India only after he found
that his name does not figure in the merit list
prepared by the Commission. This conduct of the
petitioner clearly disentitles him from questioning the
selection and the High Court did not commit any
error by refusing to entertain the writ petition.”
30
In the light of the aforesaid, the Court does
not find any merit in the writ petitions and the
same are dismissed without any order on cost.
(Tarun Agarwala, J.)
17
th
May, 2012
Rajni