Delhi High Court
Kendriya Vidyalaya Sangathan vs Rohit And Anr. on 18 October, 2016
$~30.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION(C) No. 6342/2015
Date of decision: 18th October, 2016
KENDRIYA VIDYALAYA SANGATHAN ..... Petitioner
Through Mr. U.N. Singh, Advocate.
versus
ROHIT AND ANR. ..... Respondents
Through Mr. Anuj Aggarwal & Mr. Tenzing
Thinlay Lecha, Advocates for respondent No. 1.
Mr. Amit Bansal & Ms. Surbhi Mehta, Advocates
for respondent No. 2.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MS. JUSTICE SUNITA GUPTA
SANJIV KHANNA, J. (ORAL):
The petioner-Kendriya Vidyalaya Sangathan in this writ petition
impugns the order dated 11th February, 2015 passed by the Principal Bench
of the Central Administrative Tribunal (Tribunal, for short) in OA No.
1380/2013 holding that the first respondent-Rohit was eligible and should
be appointed as a Primary Teacher with consequential benefits of fixation
of pay and seniority commensurate with his position in the merit list. In
case no vacancy is immediately available, the first respondent shall be
appointed against the next available vacancy. Cost of Rs.5,000/- stands
awarded.
2. The first respondent had appeared in the written examination and on
the basis of the marks obtained, was called for interview for appointment to
the post of Primary Teacher. His name was included in the Reserve List at
merit position 76. However, no letter of appointment was issued, for the
first respondent had not secured 50% marks in his Class 12 examination,
and candidates who were lower in the order of merit were appointed.
3. In the first round, while partly allowing OA No. 414/2012 vide order
dated 30th October, 2012, the Tribunal had found merit in the first
respondent's contention that he had secured 52% marks in the Class 12
examination in the best of five subjects. Further, as the petitioner had opted
for English language as a core subject and Hindi language as an elective
subject, the marks obtained in the elective subject, i.e. Hindi, were to be
counted in the best of 5 subjects, and the marks in the core subject of
English were to be excluded. On the basis of the performance or marks
obtained in Hindi elective, Political Science, Geography and Physical
Education, the first respondent had obtained more than 50% marks.
Nevertheless, as the Tribunal felt that they were not experts and the
authorities had failed to deal with and examine the contention regarding
calculation of the marks in the Senior School Certificate Examination on
the basis of the best five subjects, an order of remit for re-assessing the first
respondent's eligibility was passed.
4. By the order dated 5th March, 2013 the representation of the first
respondent was again rejected on the ground that he was ineligible having
secured less than 50% marks in the Class 12 examination in the year 2001
and also in the year 2002 when the first respondent has appeared for
improvement. The contention of the first respondent that English core was
an additional subject and should not be counted towards the best of five
total was rejected.
5. The second round of litigation ensued with the first respondent filing
OA No. 1380/2013 which has been allowed vide order dated 11 th February,
2015.
6. In the mark-sheet for the Class 12 examination held in 2001 placed
on record, the first respondent had scored marks as under:-
SUB. SUBJECT TH. PR. TOTAL TOTAL
CODE IN
WORDS
002 HINDI 036 XXX 036 THIRTY
ELECTIVE SIX
028 POLITICAL 045 XXX 045 FORTY
SCIENCE FIVE
029 GEOGRAPHY 032 024 056 FIFTY
SIX
030 ECONOMICS 036 XXX 036 THIRTY
SIX
048 PHYSICAL 013 041 054 FIFTY
EDUCATION FOUR
301 ENGLISH 033 XXX 033 THIRTY
CORE THREE
The first respondent had not secured an overall grade of 50% marks
in the best of five subjects. He had, however, obtained a score of 33% in
English, which are the passing marks in the subject.
7. The first respondent had thereafter appeared for improvement
examinations in the next year, i.e. 2002. In the said year, he had secured
the following marks:-
Subject Subject Theory Practical Total Total in
Code words
301 English 22 ----- 22 Twenty
Core two
002 Hindi 53 ---- 53 Fifty
Elective Three
028 Political 50 ---- 50 Fifty
Science
029 Geography 31 24 55 Fifty Five
030 Economics 41 ---- 41 Forty One
048 Physical 20 41 61 Sixty One
Education
In the 2002 examinations, the first respondent had obtained 22 marks
in English (Core) and, therefore, had failed in the said subject. However, he
had obtained 50% marks in the best of five subjects, namely, Hindi
(Elective), Political Science, Geography, Economics and Physical
Education.
8. The CBSE in their letter dated 17th December, 2012 has referred to
the pass criteria in bye-laws 40.1 applicable to Senior School Certificate
Examination. The relevant clause reads as under:-
"40.1 Pass Criteria (Senior School Certificate
Examination)
(i) A candidate will be eligible to get the Pass Certificate
of the Board, if he/she gets a grade higher than E in all
subjects of internal assessment unless he/she is
exempted. Failing this, result of the external
examination will be withheld but not for a period of
more than one year.
(ii) In order to be declared as having passed the
examination, a candidate shall obtain a grade higher
than E (i.e. at least 33% marks) in all the five subjects
of external examination in the main or at the
compartmental examinations. The pass marks in each
subject of external examination shall be 33%. In case
of a subject involving practical work a candidate must
obtain 33% marks in theory and 33% marks in practical
separately in addition to 33% marks in aggregate in
order to quality in that subject.
(iii) No overall division/distinction/aggregate shall be
awarded.
(iv) In respect of a candidate offering an additional subject,
the following norms shall be applied:
(a) A language offered as an additional subject may
replace a language in the event of a candidate failing in
the same provided after replacement the candidate has
English/Hindi as one of the languages.
(b) An elective subject offered as an additional subject
may replace one of the elective subjects offered by the
candidate. It may also replace a language provided
after replacement the candidate has English/Hindi as
one of the languages.
(c) Additional language offered at elective level may
replace an elective subject provided after replacement,
the number of languages offered shall not exceed
two..........."
A reading of clause/paragraph (iv) to bye-laws 40.1 indicates that a
candidate offering a language as an additional subject, the norm applied is
that the language offered as an additional subject may replace the core
language paper in the event that the candidate has either English or Hindi
as one of the languages. This criterion has been adopted and accepted by
the Tribunal in the present case. Counsel appearing for the CBSE before us
has stated that this principle is applied and adopted in all cases where a
candidate has appeared and not passed the core language paper. Marks
obtained in the elective paper are counted when Hindi or English is one the
languages. The counsel for the CBSE accepts that in the present case, the
Tribunal was right in holding that the marks obtained in English (Core)
need not be counted in the best of five papers. This being the position, the
principle having been sanctioned and affirmed under the Rules of the
CBSE which conducts and holds the said examinations, we would agree
with the Tribunal that the first respondent had obtained more than 50%
marks in the Class-12 examination conducted in the year 2002.
9. The Supreme Court in the case of Kusum Lata versus State of
Haryana and Others, (2002) 6 SCC 343 had dealt with and examined a
similar situation. Reference was made to clause 3.(a) printed on the back
side of the mark sheet to hold that marks obtained in additional subjects
would not be taken into consideration as the additional subject was
optional. It was implicit that the aggregate marks were to be calculated
keeping in view only those subjects which were necessary to pass the 10+2
examinations and not the marks obtained in optional or additional subjects.
Thus, the relevant factor to be seen was what was necessary to pass 10+2
examination conducted by the CBSE and on that basis decide whether the
candidate fulfilled all the requirements of the eligibility clause.
Accordingly and seen in this perspective and applying the same test,
aggregate marks would have to be calculated having regard to the marks
obtained in the best of five subjects and not in the additional subjects,
which were not taken into account.
10. Counsel for the petitioner-Kendriya Vidyalaya Sangathan submits
that this ratio no doubt supports the case of the first respondent, but the
decision in Kusum Lata (supra) would not be applicable as the said case
was one wherein a candidate was seeking admission to a diploma course in
education and not employment qualification. The aforesaid distinction is
unacceptable and must be rejected. The question raised and answered by
the Supreme Court was whether the candidate in question had secured 50%
marks in aggregate in the Class-12 examination. The decision was with
reference to the applicable rules/bye-laws framed by the CBSE and on
interpreting the scheme of the examination, it was held that marks obtained
in compulsory subjects would be taken into account and marks obtained in
the additional or optional subjects need not be counted. The same principle
will be applicable to the present case.
11. Learned counsel for the petitioner submits that even if the first
respondent had obtained 50% marks in Class-12, he would still not meet
the minimum eligibility criteria. Drawing our attention to the essential
qualifications mentioned in the advertisement, he urges that the marks
obtained in English (Core) must be counted.
12. The relevant portion of the advertisement reads as under:-
"ESSENTIAL QUALIFICATIONS.
S. Short Name Post Code Qualification(s) Qualification
of Post Code
No.
1. PRT 41 i)Senior Secondary 01
School Certificate with
50% marks or
Intermediate with 50%
marks or its equivalent;
and
ii) Diploma or certificate
in basic teachers'
training of duration of
not less than two years.
OR
Bachelor of Elementary
Education (B.El.Ed.) or
B.Ed. or equivalent.
ii) Competence to teach through Hindi and English media."
The mandatory eligibility qualification consists of two different
clauses. Clause (i) requires the candidate should have Senior Secondary
School Certificate with 50% marks or he/she should have completed
Intermediate with 50% marks or equivalent. The second requirement is
diploma or certificate in Basic Teachers' Training of duration of not less
than two years or Bachelor of Elementary Education, B.Ed. or equivalent.
Keeping in mind the aforesaid discussion, the first respondent fulfils the
first criteria having cleared Class-12 examination with 50% marks.
Regarding the second criteria, there is no dispute or debate. The first
respondent has undertaken and successfully cleared diploma course in
Elementary Teacher Education. The advertisement also speaks of a
requirement of "competence to teach" through Hindi and English media.
Under the heading "desirable" it is indicated that the candidate should have
knowledge of computer applications. Learned counsel for the petitioner
submits that the first respondent having obtained 22 marks in English
(Core) paper does not have the competence to teach through English
medium. We cannot accept the said contention for the reason that
competence is different from the marks obtained in the Class-12
examination in English (Core) paper. It is not stipulated or stated that the
candidate should have cleared both English and Hindi papers in Class-12
examination. There is a difference between clearing a paper in Class 12
and being competent to teach in the said language after several years.
Competence cannot be judged on the basis of the performance in one
examination. Language skills can be improved and the ability to teach in
English cannot be judged solely on the basis of the marks secured in
English in Class 12 examination when the candidate has thereafter studied
and completed a diploma or a degree course. Competence is to be tested on
the date when the candidate seeks appointment. The first respondent had
appeared in the written examination conducted for selection of a teacher.
The papers, it cannot be doubted, had questions in English which would
have tested the candidate's ability to be able to teach in English. The first
respondent has filed on record a copy of his mark sheet in the diploma
course in Elementary Teacher Education. In English language skills, he
has secured grade A, which is a high grade.
13. The first respondent had secured 109 marks out of 120 marks in the
written examination, which placed him in a fairly high position in the
merit list. The first respondent had secured 4 marks out of 40 marks in
interview. He was initially not called for the interview and had approached
the Tribunal in the Original Application. Pursuant to the interim order
passed, he was called for the interview.
14. The overall marks secured by the first respondent, on the basis of the
said grading in the written examination and the interview, was 74.67.
Persons/candidates, who had secured lesser marks than the first respondent
had been appointed. We are of the opinion that the Tribunal had rightly
held that the first respondent-Rohit meets all the requirements and is
eligible to be appointed as a Primary Teacher.
15. In view of the aforesaid position, we do not find any merit in the
present writ petition and the same is dismissed. Compliance with the
directions of the Tribunal would be made.
SANJIV KHANNA, J.
SUNITA GUPTA, J.
OCTOBER 18, 2016/VKR
