Mamta Rani vs The State Of Jharkhand
2024 Latest Caselaw 10451 Jhar

Jharkhand High Court

Mamta Rani vs The State Of Jharkhand on 18 November, 2024

Author: Deepak Roshan

Bench: Deepak Roshan

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    W.P. (S) No. 1044 of 2022
                                 ......

Mamta Rani, aged about 43 years, wife of Sri Abhijit Kumar Gupta, resident of Shiv Bhawan, Professor Colony, Bilasi Towan, Deoghar, P.O. and P.S. Deoghar, District-Deoghar, Jharkhand-814112. .....Petitioner.

Versus

1. The State of Jharkhand, through its Secretary, Ministry of Human Resources Development, Government of Jharkhand, having its office at Project Bhawan, Dhurwa, P.O. & P.S. Dhurwa, District-Ranchi.

2. Director, Primary Education, Government of Jharkhand, having its office at Department of School Education and Literacy Do ES & L, MDI Bhawan, Ground Floor, P.O. and P.S. Dhurwa, District-Ranchi.

3. Deputy Commissioner, Deoghar having its office at Office of the Deputy Commissioner, Deoghar, P.O. & P.S. Deoghar, District-Deoghar.

4. District Superintendent of Education, Deoghar, having its office at Circular Rd. Saket Vihar, Barmasia, Deoghar, P.O. and P.S. Deoghar, District-Deoghar. ..... Respondents

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1.

      CORAM     : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Ms. Khalida Haya Rashmi, Adv For the Respondents : Ms. Darshana Poddar, AAG-1

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CAV On 20.09.2024 Pronounced on: 18/11/2024

Heard learned counsel for the parties.

2. The grievance of the petitioner is that though she had

qualified in the Teachers Eligibility Test (in short TET)

examination but she has not been given appointment for the

post of Assistant Teacher in spite of the fact that her marks were

more than the last selected candidate.

3. Learned counsel for the petitioner draws attention of this

Court towards the advertisement which was published in the

year 2015 for the post of appointment of Teachers and submits

that by going through the advertisement it would transpire that

that the qualification for being appointed as Teacher, the

candidates must have passed TET. However, though the

petitioner is having more merit points than the last selected

candidate but the appointment has been denied to her.

4. Learned counsel further draws attention of this Court

towards the counter affidavit wherein stand has been taken by

the respondents that as per Jharkhand Primary School

Teachers' Appointment Rules, 2012 (hereinafter to be referred

as Appointment Rules); the petitioner had to secure 60% marks

in TET examination for appointment on the post of Trained

Graduate Assistant Teacher; as PH category are to be treated as

unreserved category. Since the petitioner had applied under

unreserved/PH category she must secure 60% marks in TET

examination for appointment on the post of Trained Graduate

Assistant Teacher. Further the candidate having the minimum

60% qualifying marks in TET examination has been given

appointment on the post of Trained Graduate Assistant

Teacher. Since the petitioner has secured less marks in TET

examination, therefore, she has not been given appointment on

the post of Trained Graduate Assistant Teacher.

She contended that the stand of the respondents that

since the petitioner was qualified in TET examination as a

reserved candidates and secured less than 60 percent and thus

not entitled for appointment; is not tenable in the eye of law, in

as much as, Clause- 4 (ख) (II) (ब) of Appointment Rules clearly

stipulates that passing of TET examination is only for the

purpose of qualification. Relying upon Clause- 4 (ख) (II) (ब) of the

Appointment Rules, she submits that the action of the

respondents is not legal and fit to be rejected. Since the

petitioner had secured more merit points than the last selected

candidate; thus, her case as Trained Graduate Assistant

Teacher may be considered in the light of the Clause-4 (ख) (II) (ब)

which categorically states that the marks of TET examination

will be only for qualifying purpose.

5. Learned counsel for the respondent-State reiterated the

statement made in the counter affidavit and submits that since

the petitioner had secured 57.33% marks in the TET

examination which is less than 60% which is required for

consideration of appointment under unreserved category;

whereas the selected candidate Mr. Jha had secured 60.7% in

the TET examination comes under the general category. As a

matter of fact, the petitioner is having eligibility criteria to be

considered under BC category only; whereas there is no vacancy

under the BC category. Therefore, the petitioner cannot be

appointed as a teacher under the general category as in the TET

examination, she has not secured 60% marks and therefore her

candidature has been rejected.

6. Having heard learned counsel for the parties and after

going through the documents annexed with the respective

affidavits and the averments made therein; it appears that the

admitted fact of the case is that the petitioner qualified in the

TET examination being a reserved category candidate and she

duly applied for the post Trained Graduate Assistant Teacher

pursuant to the advertisement No.03/2015 for the District of

Deoghar.

7. From bare perusal of the said advertisement, it appears

that as per Clause-4 (ख)(II)(ब), the only qualification which was

required that the candidates should be TET pass. It further

transpires that pursuant to this advertisement, though the

petitioner passed the TET examination under reserved category

but since for the District of Deoghar, there was only one vacancy

under PH category, as such the petitioner applied under the PH

category being visually handicapped which was to be treated as

unreserved category. In the advertisement there is no averment

that reserved candidates shall not apply for the unreserved

post.

From the advertisement, it also appears that proper

procedure is given how much marks is to be taken for the

purpose of selection with regard to TET examination but the

facts remains that the examination of TET is only for the

purpose of qualification which entitles a candidate for the

purpose of appointment as Assistant Teacher.

8. It is categorical statement of the petitioner that as per the

procedure laid down for adding the marks of TET examination

as well as main examination; petitioner had secured more merit

points than the last selected candidate but only due to fact that

she secured 57.33 % in TET examination; she was denied

appointment.

9. In the above factual scenario; the only issue which is to

be decided by this Court is that "when there was no seat under

BC reserved category and the petitioner had duly applied under

the PH/general category and as per the procedure of marks, she

had secured more marks than the last appointed candidate; then

whether the 60% minimum marks in passing the TET

examination for general category will be taken into consideration

for the purpose of appointment of this petitioner as Assistant

Teacher."

10. In this regard reference may be in the case of Vikas

Sankhala & Ors. Vs. Vikas Kumar Agarwal & Ors., reported

in (2017) 1 SCC 350 wherein the Hon'ble Apex Court has

categorically dealt this issue at paragraph 80 to 83 which is as

under:-

"80. Having regard to the respective submissions noted above, first aspect that needs consideration is as to whether relaxation in TET pass marks would amount to concession in the recruitment process. The High Court has held to be so on the premise that Para 9(a) dealing with such relaxation in TET marks forms part of the document which relates to the recruitment procedure. It is difficult to accept this rationale or analogy. Passing of TET examination is a condition of eligibility for appointment as a teacher. It is a necessary qualification without which a candidate is not eligible to be considered for appointment. This was clearly mentioned in the Guidelines/Notification dated 11-2- 2011. These Guidelines pertain to conducting of TET; basic features whereof have already been pointed out above. Even Para 9 which provides for concessions that can be given to certain reserved categories deals with "qualifying marks" that is to be obtained in TET examination. Thus, a person who passes TET examination becomes eligible to participate in the selection process as and when such selection process for filling up of the posts of primary teachers is to be undertaken by the State. On the other hand, when it comes to recruitment of teachers, the method for appointment of teachers is altogether different. Here, merit list of successful candidates is to be prepared on the basis of marks obtained under different heads. One of the heads is "marks in TET".

So far as this head is concerned, 20% of the marks obtained in TET are to be assigned to each candidate. Therefore, those reserved category candidates who secured lesser marks in TET would naturally get less marks under this head. We would like to demonstrate it with an example:

Suppose a reserved category candidate obtains 53 marks in TET, he is treated as having qualified TET. However, when he is considered for selection to the post of primary teacher, in respect of allocation of marks he will get 20% marks for TET. As against him, a general candidate who secures 70 marks in TET shall be awarded 14 marks in recruitment process. Thus, on the basis of TET marks reserved category candidate has not got any advantage while considering his candidature for the post. On the contrary, "level-playing field" is maintained whereby a person securing higher marks in TET, whether belonging to general category or reserved category, is allocated higher marks in respect of 20% of TET marks. Thus, in recruitment process no weightage or concession is given and allocation of 20% of TET marks is applied across the board. Therefore, the High Court is not correct in observing that concession was given in the recruitment process on the basis of relaxation in TET.

81. Once this vital differentiation is understood, it would lead to the conclusion that no concession becomes available to the reserved category candidate by giving relaxation in pass marks in TET insofar as recruitment process is concerned. It only enables them to compete with others by allowing them to participate in the selection process. In this backdrop, irrespective of the Circular dated 11-5-2011, the reserved category candidates who secured more marks than marks obtained by the last candidate selected in general category, would be entitled to be considered against unreserved category vacancies. However, it would be subject to the condition that these candidates have not availed any other concession in terms of number of attempts, etc., except on fee and age.

82. In Jitendra Kumar Singh v. State of U.P. [Jitendra Kumar Singh v. State of U.P., (2010) 3 SCC 119 : (2010) 1 SCC (L&S) 772] , this Court has very categorically held that relaxations given in educational qualifications, etc. making a person eligible to participate in selection process would not be treated as availing benefits in the recruitment/employment and the benefits envisaged have to be those which have direct relation to recruitment/employment and are relatable to the jovial relationship of employer and employee. It is also clarified that such benefits must occur from and should be post "level-playing field". We would like to reproduce the following discussion from the said judgment touching upon the aforesaid aspects: (SCC pp. 138 & 146-47, paras 48-49 & 75) "48. In view of the aforesaid facts, we are of the considered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the general category candidates is without any foundation. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enabled certain candidates belonging to the reserved category to fall within the zone of consideration.

The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list.

49. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16(1) of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates on a par with general category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates.

75. In our opinion, the relaxation in age does not in any manner upset the "level-playing field". It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16(1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfil the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought

within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the preliminary test as also in the physical test. It is only thereafter that successful candidates have been permitted to participate in the open competition."

83. It is stated at the cost of repetition that provision of giving 20% marks of TET score was applied to all candidates irrespective of the category to which he/she belongs and, therefore, no concession or relaxation or advantage or benefit was given in this behalf which could disturb the level-playing field and tilt advantage in respect of reserved category candidate. On the contrary, the reserved category candidates who had secured less marks in TET examination are given lesser marks in the recruitment process on the application of the formula of allocating 20% marks of TET score. Question (iii) is answered accordingly." Emphasis Supplied

11. After going through the aforesaid judgment, it clearly

transpires that the issue involved in this case is squarely

covered by the above referred judgment in which the Hon'ble

Apex Court has held that a person who passes TET examination

becomes eligible to participate in the selection process as and

when such selection process for filling up of the posts of primary

teachers is to be undertaken by the State when it comes to the

recruitment of teachers, the method for appointment of

teachers is altogether different.

12. In crux, the Hon'ble Apex Court has held that passing of

TET examination is a condition of eligibility for appointment as

a teacher. It is a necessary qualification without which a

candidate is not eligible to be considered for appointment; as

such the stand of the respondents that since the petitioner

passed the TET examination as a reserved candidates and

secured less than 60 percent and the advertisement was for the

PH category which were to be treated as unreserved category

and she was not having 60 percent in TET examination, as such

she will not be appointed; has no legs to stand in the eye of law.

13. In this view of the matter, interest of justice would be

sufficed by remitting this case back to the respondent No.4, who

is directed to verify the record of the case and consider the case

of the petitioner for appointment in the light of the aforesaid

findings and the judgment referred hereinabove and if the

petitioner had secured more marks and she is qualified and

eligible in the light of the judgment passed by the Hon'ble Apex

Court for the appointment; then necessary order shall be

passed with regard to her appointment.

It goes without saying that since the matter is old the

order shall be passed within a period of Eight weeks from the

date of receipt/production of a copy of this order.

14. With the aforesaid observations and directions, the

instant writ application stands allowed. Pending applications if

any also stands disposed of.

(Deepak Roshan, J.) Jharkhand High Court at Ranchi Dated:-18/11/2024 Amardeep/ AFR/