RAM SHARAN MAURYA AND OTHERS v. STATE OF U.P. AND OTHERS

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Court in Anand Kumar Yadav2, constituted A a homogeneous class. b) As against the minimum qualifying percentage which was at the level of 45-40% for ATRE- 2018, the fixation of minimum qualifying percentage at the level of 65-60% for ATRE- B 2019 created unnatural and arbitrary distinction between two sets of Shiksha Mitras. c) Such fixation at 65-60% was done after the examination and would amount to changing the rules of the game post examination. Reliance C was placed on the judgments of this Court in K. Manjusree vs. State of Andhra Pradesh and another12 and other cases. d) Being in service for last more than 15 years where they were required to obtain essential D qualifications and prepare for ATRE-2019 while discharging their service obligations, Shiksha Mitras could not be put at the same level as fresh graduates having B.Ed./BTC qualifications. E e) The fixation of minimum qualifying percentage in ATRE-2019 at 65-60% incorporated an exclusionary element as against Shiksha Mitras who, despite being entitled to weightage for their experience as Shiksha Mitras in terms of specific amendment in 1981 Rules, were now F being denied said benefit. f) In terms of 1981 Rules, only 60% of the score obtained in ATRE would be considered along with other parameters in arriving at the quality points. However, ATRE-2019 turned into a G principal selection criteria. g) With 5% reservation for ex-servicemen, seats allocable to them come to 3450 against which 12 (2008) 3 SCC 512 H

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A about 650-700 candidates applied. At 65-60% cut off level, very few of them would stand a chance. Similar would be the situation in respect of other reserved categories such as physically handicapped and dependants of freedom fighters. All these categories would B have greater chances at 45-40% cut off. With regard to the issue of eligibility of B.Ed. candidates, some of the learned counsel submitted:- i) In terms of 1981 Rules, as they stood when C ATRE-2019 was conducted, the persons holding B.Ed. degree could not be appointed as Assistant Teachers but would first be appointed as Trainee Teachers; and they could be considered for the posts of Assistant Teachers only after their successful completion D of six months’ training as Trainee Teachers. ii) As per Rule 14(b), it was upto the Government to consider and decide the number of candidates to be appointed as Trainee Teachers, which exercise was never done. E iii) 23rd, 24th and 25th Amendments to 1981 Rules were effected after ATRE-2019 was held. The retrospective effect granted to these amendments was beyond the rule making power of the State Government and thus could F not save the obvious illegality.

33Copy pinpoint33. Ms. Aishwarya Bhati, learned Additional Solicitor General appeared for the State while Mr. H.N. Salve, Mr. R. Venkataramani, Mr. Pallav Shishodiya, Mr. K.V. Vishwanathan and Ms. V. Mohana, learned Senior Advocates appeared for B.Ed./BTC candidates. Their G submissions were:- A) The State was within its rights to fix cut off marks at 65-60% level. As per Rule 2(1)(x) of 1981 Rules, qualifying marks in respect of ATRE would be “such minimum marks as H

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may be determined from time to time by the A Government”. B) The order dated 07.01.2019 itself disclosed that the proposal for fixing the cut off was initiated on 05.01.2019 i.e. before ATRE-2019 was held on 06.01.2019. The proposal stated that B approximately 11 lakh candidates had appeared in TET-2018 out of which 3,86,000 were declared successful and “there being a possibility of competition”, it was proposed that the cut off marks be fixed at 5% higher than TET Examination”. C

C) The reasons for fixing the cut off marks at 65- 60% level were:- (i) to narrow down the scope of selection because of the increased number of applications; and (ii) to achieve improvement in academic performance whereby meritorious candidates with higher marks would alone be permitted to enter the zone of consideration. (iii) The pattern of ATRE-2019 F was completely different. As against short descriptive answers required in ATRE- 2018, the emphasis in ATRE- 2019 was on multiple choice- objective questions. G D) There was no change in the rules of game as the cut off marks were prescribed for the first time by order dated 07.01.2019. Reliance was placed on the decision of this Court in H

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A Yogesh Yadav vs. Union of India and others 13 and Jharkhand Public Service Commission vs. Manoj Kumar Gupta14. E) The ATRE was valid only for recruitment of that particular year and the candidates had to abide by the conditions of recruitment pertaining to the concerned ATRE examination. Shiksha Mitras who participated in ATRE-2018 and in ATRE-2019 did not form a homogeneous class. F) Since 60% marks from ATRE would be taken into account while preparing quality points, there was no occasion for any candidate not doing his best at ATRE-2019. Thus, non- disclosure of cut off marks in the advertisement/Guidelines was inconsequential. D G) The eligibility and entitlement of B.Ed. candidates to take part in ATRE-2019 was never in challenge before the Single Judge. H) In the Guidelines dated 01.12.2018, under the heading ‘minimum qualifications’, it was specifically mentioned that the eligibility of the candidates would be in terms of minimum qualifications fixed by NCTE through its various notifications including one dated 28.06.2018. (I) 1981 Rules were amended prior to the commencement of recruitment process which now provided for recruitment of B.Ed. candidates directly to the post of Assistant Teacher subject to their undergoing post- appointment training which was in accordance with law. G

34Copy pinpoint34. It was also submitted by Ms. Bhati, learned Additional Solicitor General that the State would provide one more opportunity to Shiksha Mitras to compete in the next selection to dispel any impression of

13 (2013) 14 SCC 623 14 H (2020) 1 SCALE 504

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prejudice but the present selection be allowed to go ahead with cut off at A 65-60% level. 34.1 In the written submissions filed on behalf of the State, an example was placed as under:- “3. A tabular chart showing that a candidate who has throughout obtained 70% marks will be B left out by a Shiksha Mitra who has obtained 50% marks throughout his career in case cut off marks are reduced to 45% & 40% from 65% & 60%. C

G Thus, it is clear that not only quality of teachers will be compromised but a meritorious candidate will be ignored in case cut off marks are reduced to 45% & 40% from 65% & 60%.” H

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A 34.2 In the written submissions filed on behalf of B.Ed./BTC candidates, following charts were also presented:- “On important statistics of ATRE 2018 and 2019

G “The following chart illustrates how a Shiksha Mitra having 35% marks through out his academic career (except 50% in BTC, which is passing marks) would be selected if the qualifying marks in ATRE-2019 is lowered to 45%, whereas a BTC candidates having secured 67% marks through out his academic career would be left out: H

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35Copy pinpoint35. As stated in the counter affidavit of the State, out of 1,78,000 Shiksha Mitras who were given fortuitous appointments as Primary Teachers on contractual basis, 1,37,500 Shiksha Mitras were absorbed as Assistant Teachers in Junior Basic Schools. Their absorption was C subject matter of challenge and the orders passed by the State conferring the advantage of absorption were set aside on the ground that no such benefit could be conferred upon persons who did not have the requisite qualifications to be appointed as Assistant Teachers in Junior Basic Schools. The number of 1,37,500 has some significance as ATRE-2018 D and ATRE-2019 were conducted to fill up 68,500 and 69,000 posts of Assistant Teachers respectively; the aggregate being 1,37,500. After suitable amendments to 1981 Rules, Shiksha Mitras became eligible for appointment to the posts of “Assistant Masters and Assistant Mistresses of Junior Basic Schools” provided they acquired the academic E qualifications prescribed in 1981 Rules. As per para 34 of the counter affidavit, 1,52, 330 Shiksha Mitras are presently working in the State and 45, 357 Shiksha Mitras appeared in ATRE-2019. Thus, more than 1,02,000 Shiksha Mitras did not appear in ATRE-2019 either because they did not have the requisite qualifications or they were not interested in competing for the posts of Assistant F Teachers.

36Copy pinpoint36. According to the record, out of 1,46,060 candidates who qualified in ATRE-2019, 8018 are Shiksha Mitras while B.Ed. and BTC candidates are 97,368 and 38,610 respectively and the candidates having other qualifications are 2064. As against the total number of qualified G candidates, 8018 Shiksha Mitras thus constitute 17.67%. It must be noted here that B.Ed. candidates were not allowed to participate in the earlier selection process and could not appear at ATRE-2018. Their entitlement, as a matter of fact, arose for the first time after ATRE- H

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A 2018. Even when B.Ed. candidates were out of contest, the percentage of qualified Shiksha Mitras in ATRE-2018 (25.02%) was not substantially high as is evident from the chart extracted in paragraph 34.2 hereinabove.

37Copy pinpoint37. We must now consider the issue of eligibility of B.Ed. candidates in the present selection. In TET examination held in March, B 2018, out of 3,86,000 qualified candidates, Shiksha Mitras were 40,000 only; meaning thereby that a large number of candidates other than Shiksha Mitras had been declared qualified. Paragraph 4(2) of G.O. dated 01.12.2018, referred to certain directives of NCTE which in turn, had dealt with eligibility of B.Ed. candidates. It was, therefore, quite apparent that in the ensuing selection process considerable number of C B.Ed. candidates would participate. In this background, the absence of any challenge to the entitlement of B.Ed. candidates to participate in the process and to appear at ATRE-2019 is crucial. But we do not propose to rely only on this aspect and proceed to consider whether the candidates holding B.Ed. degrees are entitled in law to be considered eligible in the present selection process.

38Copy pinpoint38. The National Council for Teachers Education Act, 1993 (‘the NCTE Act’, for short) was enacted, inter alia, to provide for the regulation and proper maintenance of norms and standards in the teacher education system. Chapter II of the NCTE Act deals with establishment of the Council while Chapter III deals with ‘Functions of the Council’. Some of the functions of the Council, as laid down in Section 12, are as under:- “12. Functions of the Council.- It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and coordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may– (a)-(b) … … … G (c) co-ordinate and monitor teacher education and its development in the country; (d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions; H

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(e) lay down norms for any specified category of courses or A trainings in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum; (f)-(m) … … … B (n) perform such other functions as may be entrusted to it by the Central Government.” 38.1 The NCTE Act, as originally enacted, was primarily concerned with regulating standards in “teacher education system”. The provisions of the NCTE Act came up for consideration in State of Maharashtra C vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others15. This Court held:- “62. From the above decisions, in our judgment, the law appears to be very well settled. So far as coordination and determination of standards in institutions for higher education or research, D scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and the State has no power to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution E that there is a concurrent power of Parliament as well as the State Legislatures and appropriate Act can be made by the State Legislature subject to limitations and restrictions under the Constitution.

63. In the instant case, admittedly, Parliament has enacted the F 1993 Act, which is in force. The preamble of the Act provides for establishment of National Council for Teacher Education (NCTE) with a view to achieving planned and coordinated development of the teacher-education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher- education system and for matters connected therewith. With a G view to achieving that object, the National Council for Teacher Education has been established at four places by the Central Government. It is thus clear that the field is fully and completely

15 (2006) 9 SCC 1 H

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A occupied by an Act of Parliament and covered by Entry 66 of List I of Schedule VII. It is, therefore, not open to the State Legislature to encroach upon the said field. Parliament alone could have exercised the power by making appropriate law. In the circumstances, it is not open to the State Government to refuse permission relying on a State Act or on “policy consideration”. B 38.2 In Basic Education Board, U.P. vs. Upendra Rai and others16, the issue was whether the provisions of the NCTE Act related to the ordinary educational institutions and whether they would override the provisions of U.P. Basic Education Act and Rules made thereunder. This Court held:- C “22. It may be mentioned that the word “institution” is defined in Section 2(e) of the NCTE Act to mean an institution which offers courses or training in teachers’ education. Thus, the NCTE Act does not deal with the ordinary educational institutions like primary schools, high schools, intermediate college or university. The word D “institution” as defined in Section 2(2) [sic 2(e)] only means teachers’ training institutes and not the ordinary educational institutions. Hence, it is only the teachers’ training institutions which have to seek grant of recognition or continuation of recognition from the Regional Committee. The ordinary educational institutions E do not have to seek any such recognition or continuation under the NCTE Act. In fact, the NCTE Act does not relate to the ordinary educational institutions at all. We, therefore, fail to understand how it can be said that the NCTE Act overrides the U.P. Basic Education Act and the Rules made thereunder. In fact, the two Acts operate in altogether two different fields. The NCTE F Act deals with the teachers’ training institutions while the U.P. Basic Education Act deals with the ordinary primary schools in U.P. and not any teachers’ training institute. The argument of learned counsel for the respondent is thus wholly misconceived.” 38.3 The NCTE Act was thereafter amended in 2011 by Act * 18 G of 2011 and after such amendment the long title to the Act now reads ‘an Act to provide for the establishment of a National Council for Teacher Education with a view to achieving planned and co-ordinated development

16 (2008) 3 SCC 432 * National Council for Teachers Education (Amendment) Act (18 of 2011) H

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of the teacher education system throughout the country, the regulation A and proper maintenance of norms and standards in the teacher education system including qualifications of school teachers and for matter connected therewith’. By the same amendment Section 12A was inserted in the NCTE Act, the relevant part of said Section being:- B “12A. Power of Council to determine minimum standards of education of school teachers.- For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run aided or recognised by the Central Government or a State Government or a local or other authority: … … …” Section 32 of the NCTE Act empowers the NCTE to make regulations by issuing notification in the official gazette generally to carry out the provisions of the NCTE Act which regulations may now provide for ‘the qualifications of teachers under 12A#. 38.4 It is thus clear that for maintaining standards of education in schools, the NCTE is now 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 now deals with regulation and proper maintenance of norms and standards in respect of qualifications of persons to be recruited as teachers. F

39Copy pinpoint39. Having noted the aforestated change in the scope and ambit of the NCTE Act, another development must also be noticed. The Right of Children to Free and Compulsory Education Act, 2009 (‘the RTE Act’, for short) was enacted by the Parliament, inter alia, to provide to the children in the age group of six to fourteen years “full time elementary G education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards”. Section 23 of the RTE Act deals with qualifications for appointment of teachers and states:-

# Section 32(2)(dd) of the NCTE Act H

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A “23. Qualifications for appointment and terms and conditions of service of teachers.- (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. (2) …… (3) ……”

40Copy pinpoint40. By Notification dated 31.03.2010, the Central Government, in exercise of powers conferred under Section 23 of the RTE Act authorised the NCTE as an “Academic Authority” to lay down the minimum qualifications for a person to be eligible for appointment as a teacher. The Notification dated 28.06.2018 issued by the NCTE was in exercise of power so conferred upon it by virtue of the Notification D dated 31.03.2010. In terms of the Notification dated 28.06.2018, the qualification of ‘Bachelor of Education’ from any NCTE recognised institution shall now be a valid qualification for appointment as a teacher in classes I to V provided the person so appointed as a teacher mandatorily undergoes six months’ Bridge Course in elementary education within two years of such appointment. E

41Copy pinpoint41. Going by the Parliamentary intent in empowering NCTE under the provisions of the NCTE Act and specific authorization in favour of NCTE under said Notification dated 31.03.2010, the authority of NCTE is beyond any doubt. Though there is no specific regulation as contemplated under Section 32 read with Sections 12 and 12A of the F NCTE Act, for the present purposes by virtue of the specific authorization under the Notification dated 31.03.2010, NCTE was entitled to lay down that those holding the qualification of ‘Bachelor of Education’ as detailed in said Notification are entitled to be appointed as teachers for classes I to V. Such prescription on part of the NCTE would be binding. It is for this reason that G.O. dated 01.12.2018 notifying ATRE-2019 clearly stated G that the candidates possessing minimum qualifications specified in Notifications issued by the NCTE including one dated 28.06.2018 were entitled to participate in ATRE-2019.

42Copy pinpoint42. The eligibility and entitlement of B.Ed. candidates in law, thus being beyond any doubt, the next question to be considered is whether H

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without making appropriate consequential amendments to 1981 Rules A before ATRE-2019 was held, the candidates possessing B.Ed. qualification could be allowed to take part in ATRE-2019. Reliance was placed on the following observations from the decisions of this Court. i) P. Mahendran and others etc. v. State of Karnataka and others17 B “4. … …In the absence of any express provision contained in the amending Rules it must be held to be prospective in nature. The Rules which are prospective in nature cannot take away or impair the right of candidates holding Diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment. … …” ii) Madan Mohan Sharma and another v. State of Rajasthan and others18 “…Once the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which were laid down and it cannot be on the basis of the criteria which has been made subsequently”

43Copy pinpoint43. The Notification dated 28.06.2018 being binding on the State E Government, the statutory regime put in place by the State has to be read in conformity with said Notification. 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 and therefore the element of retrospectivity present in the concerned amendments has to be read in that perspective. The intent behind those amendments was not to create a right for the first time with retrospective effect 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. 17 (1990) 1 SCC 411 18 (2008) 3 SCC 724 H

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44Copy pinpoint44. 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. B The decisions relied upon and quoted above therefore have no application to the instant case.

45Copy pinpoint45. The decision of the Constitution Bench of this Court in Dr. Preeti Srivastava and another etc. vs. State of M.P. and others etc. 19 was also relied upon to submit that since the requirements in 1981 Rules C (as they stood before 23rd Amendment) in so far as entitlement of B.Ed. candidates was concerned, were in addition to the conditions emanating from the Notification dated 28.06.2018, it must be independently satisfied and as such there could be no retrospective amendment to 1981 Rules. In said decision, it was held by this Court. D “39. ... In every case the minimum standards as laid down by the Central statute or under it, have to be complied with by the State while making admissions. It may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down.” As held by this Court, an additional norm laid down by the State would certainly be applicable and enforceable. But once, the NCTE laid down that candidates holding B.Ed. degrees would be entitled to be appointed as teachers for classes I to V, provided they undergo a six months’ Bridge Course, the stipulation in 1981 Rules (before 23rd Amendment) that they must first be appointed as trainee teachers must give way to that under the Notification dated 28.06.2018. Said stipulation in 1981 Rules cannot be considered as an additional norm. It ran completely counter to that under the Notification dated 28.06.2018 which is why the Amendment in that behalf was given retrospective effect to bring in consistency.

46Copy pinpoint46. In the circumstances, we approve the conclusions drawn by the High Court with regard to this issue and hold that the B.Ed. candidates were rightly allowed to participate in the instant selection process. 19 (1999) 7 SCC 120 H

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47Copy pinpoint47. We now deal with the questions concerning fixation of 65- A 60% as minimum qualifying marks for ATRE 2019. The first question deals with the submission that such fixation was arbitrary and irrational and can be considered under following sub- heads:- (a) Whether there could be different parameters B regarding minimum qualifying marks in ATRE- 2019 as against those in ATRE-2018. (b) Whether Shiksha Mitras who appeared in ATRE-2018 and ATRE-2019 constituted one single homogenous class. C

(c) Should there not be a different yardstick for Shiksha Mitras, who had been rendering service as teachers, as against what could be applied for fresh graduates. D (d) Should not “minimum qualifying marks” appear to be minimum? Was not the cut off at 65-60% per se arbitrary; (e) Could ATRE-2019 be converted into an exclusionary test and thereby deny to the E Shiksha Mitras the benefit of weightage for experience. The second question concerns about the correctness of the exercise of power in such fixation after ATRE-2019 was held.

48Copy pinpoint48. For selection of 68,500 posts, 1,07,000 candidates had F participated in ATRE-2018; and with qualifying marks at 45-40%, 41,556 candidates had qualified. The percentage of qualifying candidates was thus 38.83%. On the other hand, 4,09,530 candidates participated in the present selection process for 69,000 posts and with 65-60% cut off marks, 1,46,078 candidates had qualified. The percentage of qualifying candidates this time was 37.62%, which was almost equal to that in ATRE-2018. G 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. These figures give indications about the nature H

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A and the difficulty level of the examinations and show that even with cut off at 65-60%, the percentage of qualifying candidates was almost the same.

49Copy pinpoint49. It is true that the total number of posts of Assistant Teachers sought to be filled up by ATRE-2018 and 2019 was 1,37,500, the exact B number of Shiksha Mitras whose absorption as Assistant Teachers was set aside; and that Shiksha Mitras were granted certain benefits in terms of the directions issued by this Court in Anand Kumar Yadav2. One of the submissions was that all Shiksha Mitras who were granted such benefit constituted a homogenous class and as such there could not be any inter se distinction between Shiksha Mitras who appeared in ATRE- C 2018 on one hand and those who appeared in ATRE-2019 on the other. It was also contended that the syllabus for both the examinations with allocation of marks for different subjects being identical, any distinction between two sets of Shiksha Mitras and subjecting those who appeared at ATRE-2019 to considerably high cut off would be arbitrary and illogical.

50Copy pinpoint50. It needs to be stated here that 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. Rather than writing descriptive answers to questions which was the modality in ATRE-2018, multiple choices were given and the correct answer was to be tick marked in ATRE 2019. Naturally, the nature and the difficulty level of both the examinations were different. Sub question (a) must therefore be answered in the affirmative and it must be accepted that there could be different parameters regarding minimum qualifying marks for ATRE- 2019.

51Copy pinpoint51. 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 candidates would undoubtedly compete with each other in the same examination on a para meter which applies to all of them equally. But to say that Shiksha Mitras who appeared in ATRE-2019 must be allowed equality with candidates of ATRE-2018, who were part of a different

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selection process would be incorrect and illogical. The basic norms of A 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. Shiksha Mitras were given chances in two successive selections and some of the Shiksha Mitras who had failed in ATRE-2018 appeared in ATRE-2019 in exercise of such chance. Those who could not clear ATRE-2018 with 45-40% cut off cannot now be heard to say that the same cut off ought to be maintained when the nature of examination and the difficulty level had completely changed. We, therefore, reject the submission that Shiksha Mitras who appeared in ATRE-2018 and ATRE-2019 formed a homogenous class and answer sub question (b) accordingly. The candidates who appeared in ATRE-2018 between themselves formed one class while those who appeared in ATRE-2019 formed another class. The merit of one class had to be tested on the basis of the examination which the candidates forming that class had undergone and no para meters or norms of the earlier examination could be imported or implanted in the latter examination.

52Copy pinpoint52. Relying on the decision of this Court in State of M.P. and others vs. Gopal D. Tirthani and others20, it was submitted that Shiksha Mitras who had been discharging their services as teachers could not be put at the same level with fresh graduates having B.Ed./BTC qualifications. In that case, this Court was called upon to consider setting apart of certain seats by the State Government for in service candidates in Post Graduate courses. It was observed by this Court: - “21. … There is nothing wrong in the State Government setting apart a definite percentage of educational seats at postgraduation level consisting of degree and diploma courses exclusively for the in-service candidates. To the extent of the seats so set apart, there is a separate and exclusive source of entry or channel for admission. It is not reservation. In-service candidates, and the candidates not in the service of the State Government, are two classes based on an intelligible differentia. There is a laudable purpose sought to be achieved. In-service candidates, on attaining higher academic achievements, would be available to be posted 20 (2003) 7 SCC 83 H

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A in rural areas by the State Government. It is not that an in-service candidate would leave the service merely on account of having secured a postgraduate degree or diploma though secured by virtue of being in the service of the State Government. If there is any misapprehension, the same is allayed by the State Government obtaining a bond from such candidates as a condition precedent to their taking admission that after completing PG degree/diploma course they would serve the State Government for another five years. Additionally, a bank guarantee of rupees three lakhs is required to be submitted along with the bond. There is, thus, clearly a perceptible reasonable nexus between the classification and the object sought to be achieved.” This Court was considering validity of certain percentage of seats earmarked for in-service candidates and it found the classification to be correct, having nexus with the object of ensuing availability of competent professionals in the rural parts of the State. On the other hand, the object of giving opportunities to Shiksha Mitras was to ensure that they were given fair chance to compete with others so that the best of the lot would be available to take care of primary education in the State. In our view, the submission does not deserve acceptance. Sub question (c) is answered accordingly.

53Copy pinpoint53. It was further submitted that the fixation of cut off at 65-60% was at a considerably high level and ceased to be “minimum qualifying marks” as contemplated by the relevant provisions of 1989 Rules. This submission found favour with the Single Judge of the High Court who observed that the minimum qualifying marks must appear to be minimum.

F The minimum marks required to pass the TET examination are at a level of 60% for open category. Those who desired to be teachers had already gone through a process rigorous enough to test their ability with minimum passing percentage at 60%%. Moreover, 60% of the marks scored by a candidate in ATRE-2019 would go to determine the quality points allocable to a candidate. Leaving aside the weightage allowable for Shiksha Mitras, the overall academic performance of a candidate thus constituted about 40% of quality points whereas a large chunk thereof depended upon the performance in ATRE-2019. In terms of 1981 Rules, a candidate would be required to “pass” ATRE and thus ATRE was not only an examination that had to be cleared to get into the zone of consideration but 60% of marks scored in that examination would

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be used for the purposes of preparation of merit list. From the perspective of selection, ATRE deserved adequate importance and emphasis. The reason was obvious that all the candidates would be tested on a parameter or a norm which would be equal and identical to all the competing claimants. The fixation at 65-60% level was to garner the best available talent. Even with this qualifying norm, 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. Sub question (d) is answered accordingly. C

54Copy pinpoint54. It was then submitted that going by the provisions of 1981 Rules, the performance in ATRE was supposed to be only one of the indicia. However, by fixing the cut off at 65-60% level, instead of subserving the requirement of furnishing one of the indicia, ATRE-2019 became an exclusionary test. It was submitted that the performance in D ATRE overshadowed every other parameter and in the process the benefit of weightage that every Shiksha Mitra was entitled to, stood denied to him.

55Copy pinpoint55. Though as a result of the 22nd Amendment, passing of ATRE ceased to be part of Rule 8, the requirement was specifically retained in E Rule 14 of 1981 Rules. Further, 60% of the marks scored by a candidate in ATRE, in terms of Appendix I read with Rule 14(2) would go in determining quality points to prepare the merit list. The major portion of quality points being directly relatable to the performance in ATRE, mere fixation at 65-60% level which applied to all the candidates across the F board cannot be said to be exclusionary. ATRE featured as the common platform on the basis of which individual merit of various candidates could be tested, which is why a major portion of allocable quality points was assigned to the performance in ATRE. In the circumstances, the performance in ATRE-2019 was given adequate and due weightage by fixation of cut off at 65-60% level. G

56Copy pinpoint56. The submission that as a result of such fixation large number of Shiksha Mitras were denied advantage of weightage as determined under the provisions of 1981 Rules, also does not deserve acceptance. In Kulbhushan Mishra and another vs. State of U.P. and others, the Division Bench of the High Court had concluded that weightage allocable H

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A to the experience of Shiksha Mitras was not contemplated to be added to the marks obtained by a person in the ATRE. All the Shiksha Mitras were thus aware that they had to qualify in the ATRE and they would be entitled to weightage for their experience only thereafter. More than 8000 Shiksha Mitras did qualify in ATRE-2019, which number must have included those who had earlier failed to make it in ATRE-2018. Those B 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%. The directions issued by this Court in Anand Kumar Yadav 2 were to ensure that regardless of any other considerations, Shiksha Mitras would have opportunity to match their C skills against other candidates. Viewed thus, 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. Sub question (e) must therefore be answered against Shiksha Mitras.

57Copy pinpoint57. While answering the first question, we therefore conclude that the fixation of cut off at 65-60% in ATRE-2019 was perfectly valid and justified. Considering the large number of candidates who appeared at ATRE-2019 as well as the nature and difficulty level of the examination, the cut off was designed to draw the best available talent. The endeavour on part of the State in attempting to secure the best of the teachers was therefore fully justified. 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.

58Copy pinpoint58. With regard to the second question, it is clear from the record that the cut off at 65-60% for ATRE-2019 was declared a day after the examination was held. As is reflected from the Order dated 07.01.2019, the process was initiated on 05.01.2019 but the actual declaration was on 07.01.2019. The correctness of such exercise was called in question by Shiksha Mitras and certain decisions of this Court were relied upon. The basic submissions were that the candidates ought to have been made aware of the cut off well in advance and the fixation of cut off after the examination was over, would be incorrect and invalid.

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We may now consider some of the decisions relied upon by either side. A] In State of Haryana vs. Subash Chander Marwaha and others21, a bench of two judges of this Court considered the question whether the action of the State in appointing first seven persons from the list of qualified candidates leaving out other qualified candidates when there were enough vacancies, was correct. It was observed:- “10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate’s name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the D State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list, and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence.” B] In State of U.P. etc. v. Rafiquddin and others etc.22, the distinction between a normal test and a competitive examination in the light of the submission that the minimum marks were fixed without notice to the candidates, was brought out by this Court as under:- 21 (1974) 3 SCC 220 22 1987 (Supp) SCC 401 H

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A “12. The Division Bench of the High Court observed that the Commission had no authority to fix any minimum marks for the viva voce test and even if it had such a power it could not prescribe the minimum marks without giving notice to the candidates. The Bench further observed that if the Commission had given notice to the candidates before the steps for holding the competitive examination were taken the candidates may or may not have appeared at the examination. In our opinion the High Court committed a serious error in applying the principles of natural justice to a competitive examination. There is a basic difference between an examination held by a college or university or examining body to award degree to candidates appearing at the examination and a competitive examination. The examining body or the authority prescribes minimum pass marks. If a person obtains the minimum marks as prescribed by the authority he is declared successful and placed in the respective grade according to the number of marks obtained by him. In such a case it would be obligatory on the examining authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. A person may obtain sufficiently high marks and yet he may not be selected on account of the limited number of posts and availability of persons of higher quality. Having regard to the nature and characteristics of a competitive examination it is not possible nor necessary to give notice to the candidates about the minimum marks which the Commission may determine for purposes of eliminating the unsuitable candidates. The rule of natural justice does not apply to a competitive examination.” (Emphasis supplied) C] The procedure for selection of ten posts of District and Sessions G Judges (Grade-II) by direct recruitment was in issue in K. Manjusree12. According to the resolution dated 30.11.2004, the method of selection comprised of a written examination for 75 marks and oral examination for 25 marks. There would be minimum percentage of marks required for passing the written examination and the successful candidates would

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[UDAY UMESH LALIT, J.]

be called for interview; and the merit would be determined, according to the aggregate of marks in written and oral examinations. There was thus no requirement of any minimum qualifying marks in the oral interview. However, after the entire process was over, the Sub-Committee introduced a cut off percentage for oral examination, as a result of which, certain candidates stood disqualified. While dealing with the challenge by four such candidates, a bench of three judges of this Court observed: “27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier Resolutions dated 24-7-2001 and 21-2-2002 and held that what was adopted on 30-11-2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them — P.K. Ramachandra Iyer v. Union of India23, Umesh Chandra Shukla v. Union of India 24 and Durgacharan Misra v. State of Orissa 25.” F (Emphasis supplied) After considering the earlier decisions in P.K. Ramachandra Iyer and others v. Union of India and others23, Umesh Chandra Shukla v. Union of India and others 24, Durgacharan Misra v. State of Orissa 25and Maharashtra State Road Transport Corporation and G others v. Rajendra Bhimrao Mandve and others26, this Court observed: 23 (1984) 2 SCC 141 24 (1985) 3 SCC 721 25 (1987) 4 SCC 646 26 (2001) 10 SCC 51 H

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A “33. The Resolution dated 30-11-2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. B We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. C Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.

36. The Full Court however, introduced a new requirement as to minimum marks in the interview by an interpretative process which is not warranted and which is at variance with the interpretation adopted while implementing the current selection process and the earlier selections. As the Full Court approved the Resolution dated 30-11-2004 of the Administrative Committee and also decided to retain the entire process of selection consisting of written examination and interviews it could not have introduced a new requirement of minimum marks in interviews, which had the effect of eliminating candidates, who would otherwise be eligible and suitable for selection. Therefore, we hold that the action of the Full Court in revising the merit list by adopting a minimum percentage of marks for interviews was impermissible.”

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This Court, thus, allowed the challenge and directed the High Court A to prepare a fresh merit list in regard to 83 candidates who had qualified in the written examination with reference to their marks in written test and interview without applying any minimum marks for interviews. D] Relying on the decision in K. Manjusree12, a bench of two judges of this Court in Hemani Malhotra etc. vs. High Court of Delhi27, B concluded:- “15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of C selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce test was illegal.” D

(Emphasis supplied) E] In Tej Prakash Pathak and others Vs. Rajasthan High Court and others28, a bench of three judges was called upon to consider a situation identical to that considered in State of Haryana vs. Subash E Chander Marwaha and Others21, where only three candidates were selected while others were ruled out despite there being vacancies. This Court doubted the decision in K. Manjusree12 and referred the matter to a larger bench. Some of the observations were as under: - “1. Leave granted. F “5. … the rules of the game … the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced.” “27. … changing the rules of the game after the game was played … is clearly impermissible.” G The above, and statements to the similar effect have petrified into a rule of law in the context of employment under the State 27 (2008) 7 SCC 11 28 (2013) 4 SCC 540 H

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A or its instrumentalities. Whether such principle of law is immutable, what are those “rules of the game” which cannot be changed after the game is either commenced or played, in our opinion requires an authoritative pronouncement by a larger Bench of this Court.” B … … …

6. Therefore, the appellants challenged the selection process on the ground that the decision of the Chief Justice to select only those candidates who secured a minimum of 75% marks would amount to “changing the rules of the game after the game is C played”—a cliché whose true purport is required to be examined notwithstanding the declaration of this Court in Manjusree12case that it is “clearly impermissible”. … … …

14. Unfortunately, the decision in Subash Chander Marwaha21 D does not appear to have been brought to the notice of Their Lordships in Manjusree12. This Court in Manjusree relied upon P.K. Ramachandra Iyer v. Union of India23, Umesh Chandra Shukla v. Union of India24 and Durgacharan Misra v. State of Orissa25. In none of the cases, was the decision in Subash E Chander Marwaha21 considered.

15. No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the “rules of the game” insofar as the prescription of eligibility criteria is concerned as was done in C. Channabasavaih v. State of Mysore29, etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the “rules of the game” stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger Bench of this Court. We, therefore, order that the matter be placed before the Hon’ble Chief Justice of India for appropriate orders in this regard.”

29 AIR 1965 SC 1293 H

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F] In Yogesh Yadav13, the attempt on part of the authorities in employing a cut off to select the best candidates was questioned. A bench of two Judges of this Court observed:- “13. The instant case is not a case where no minimum marks are prescribed for viva voce and this is sought to be done after the written test. As noted above, the instructions to the examinees provided that written test will carry 80% marks and 20% marks were assigned for the interview. It was also provided that candidates who secured minimum 50% marks in the general category and minimum 40% marks in the reserved categories in the written test would qualify for the interview. The entire selection was undertaken in accordance with the aforesaid criterion which was laid down at the time of recruitment process. After conducting the interview, marks of the written test and viva voce were to be added. However, since a benchmark was not stipulated for giving the appointment. What is done in the instant case is that a decision is taken to give appointments only to those persons who have secured 70% marks or above marks in the unreserved category and 65% or above marks in the reserved category. In the absence of any rule on this aspect in the first instance, this does not amount to changing the “rules of the game”. The High Court has rightly held that it is not a situation where securing of minimum marks was introduced which was not stipulated in the advertisement, standard was fixed for the purpose of selection. Therefore, it is not a case of changing the rules of the game. On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. The fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case27.” G] In Salam Samarjeet Singh vs. High Court of Manipur at Imphal and another30, there was disagreement between two judges of this Court. Banumathi, J. did not accept the submission that the fixation of minimum marks for ‘interview’ amounted to changing the “rules of the game” and concluded that fixing of 40% marks for interview was consistent with the concerned Rules. Shiva Kirti Singh, J. took a different view while relying upon the decision in K. Majushree12 and Hemani Malhotra27. The matter, therefore stands referred to a larger Bench. 30 (2016) 10 SCC 484 H

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A H] In Sivanandam C.T. and others vs. High Court of Kerala and others31, while dealing with the correctness of the decision in fixing minimum qualifying marks for interview after the process was over, a bench of two judges of this Court relied upon the order in Tej Prakash Pathak 28 and referred the matter to a larger Bench. B I] The facts in Municipal Corporation of Delhi vs. Surender Singh and others32 show that the selection was for the posts of Assistant Teachers (Primary) in the schools of the appellant and clause 25 of the advertisement provided discretion to the Selection Board to fix minimum qualifying marks for each category of vacancies. A bench of two judges of this Court observed:- C “18. From a perusal of the said clause it is noticed that though under the very clause there are no cut-off marks specified, Clause 25 would, however, provide the full discretion to DSSSB to fix the minimum qualifying marks for selection. In the instant case, keeping in view that the recruitment was for the post of Assistant Teacher D (Primary) and also taking note of the orders passed by the High Court in an earlier petition requiring the maintenance of minimum standards, DSSSB while preparing the select list had stopped the selection at a point which was indicated as the cut-off percentage. In a circumstance where Clause 25 was depicted in Advertisement E No. 1/2006, when the private respondents herein and the other petitioners before the High Court were responding to the said advertisement, if at all they had a grievance that the clause is arbitrary and might affect their right ultimately since no minimum marks that is to be obtained have been indicated therein, they were required to assail the same at that stage. On the other hand, despite being aware of the clause providing discretion to DSSSB to fix the minimum qualifying marks, they have participated in the selection process by appearing for the qualifying examination without raising any protest. In that circumstance, the principle of approbate and reprobate would apply and the private respondents herein or any other candidate who participated in the process cannot be heard to complain in that regard.

19. It is no doubt true that the select list was concluded at the particular cut-off point wherein the last selected candidate under 31 (2018) 1 SCC 239 32 H (2019) 8 SCC 67

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the unreserved category had obtained 89.25%. The said decision had been taken by DSSSB to ensure the minimum standard of the teachers that would be recruited and the appellant herein being the recruiting agency in any event, did not have objection. In any event, it is not the case of the petitioners that they had obtained higher marks than the candidate who was shown as the last candidate in the merit list. If that was the position and when it is noticed that the appellant and the other writ petitioners had secured lesser percentage of marks than the last candidate included in the merit list, there could not have been any further consideration whatsoever in the course of judicial review. To that extent, the learned Single Judge, from the observations as noticed above has kept in view all aspects of the matter and in that light had arrived at the conclusion that no error was committed either by DSSSB or the appellant herein.” (Emphasis supplied) J] In Jharkhand Public Service Commission vs. Manoj Kumar D Gupta and another14, the cut off in respect of Paper III was fixed after the examination. Reversing the decision of the High Court, a bench of two Judges of this Court observed:- “7. A perusal of Clause 4.1 of the scheme clearly indicates that the moderation committee has been constituted only for E the purpose of deciding the cut-off marks in each subject for declaring the result. The advertisement clearly indicates that only those candidates who obtained 50% marks in Paper I and II would be eligible to take the test in Paper III. The minimum qualifying marks in case of General/OBC candidates was 50%. F At this stage, there was no need to fix the qualifying marks for Paper III. That need will arise only when the moderation committee meets and decides what should be the level of competence expected from the people who are to be considered for appointment as Lecturers. It is for the moderation committee to decide what should be the cut-off marks. There could be the G subject where all the people who qualified Paper I and II get very low marks in Paper III and the moderation committee may be justified in lowering the standards and prescribing lower qualifying standards. On the other hand, there may be a subject where there are many candidates who do extremely well in Paper III H

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A and the moderation committee may decide to fix a higher minimum standard. The constitution of a moderation committee is normally done only to do this sort of moderation.

8. As far as the finding of the High Court that the rules of the game were changed after the selection process had started, we are of the considered view that this is not the case as far as the present case is concerned. There were no minimum marks provided for Paper III in the advertisement. This could be done by the moderation committee even at a later stage. This is not a change brought about but an additional aspect brought in while determining the merit of the candidates who are found fit to be eligible for consideration for appointment of Lecturers.”

59Copy pinpoint59. Having set out relevant portions from the decisions of this Court, the answer to the second question will depend upon whether the present case is fully covered by the principles laid down in K. Manjusree12. If the case is so covered, in keeping with the Orders of reference in Tej Prakash Pathak 28, Salam Samarjeet Singh30 and Sivanandam31, the instant matter must either be referred to a larger Bench to be heard along with those matters or must await the decision in the reference to the larger Bench.

60Copy pinpoint60. In terms of Rule 2(1)(x) of 1981 Rules, qualifying marks of E ATRE are such minimum marks as may be determined ‘from time to time’ by the Government. Clause (C) of Rule 14 of 1981 Rules lays down that a candidate must have ‘passed Assistant Teacher Recruitment Examination conducted by the Government’. Thus, one of the basic requirements for being considered to be appointed as an F Assistant Teacher under 1981 Rules is passing of ATRE with such minimum marks as may be determined by the Government. Unlike para 7 of the Guidelines for ATRE-2018 which had spelt out that a candidate must secure minimum of 45% or 40% marks (for ‘general’ and ‘reserved’ categories respectively) for passing ATRE-2018, no such stipulation was available in G.O. dated 01.12.2018 notifying ATRE-2019. Though, the minimum qualifying marks were set out in the Guidelines for ATRE- 2018, it is not the requirement of 1981 Rules that such stipulation must be part of the instrument notifying ATRE. By very nature of entrustment, the Government is empowered to lay down minimum marks ‘from time to time’. If this power is taken to be conditioned with the requirement that the stipulation must be part of the instrument notifying the examination,

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then there was no such stipulation for ATRE-2019. Such reading of the rules will lead to somewhat 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. A reasonable construction on the relevant rules would therefore imply that 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. In that case, the further question would be at what stage can such minimum qualifying marks be determined and whether by necessity such minimum qualifying marks must be declared well before the examination.

61Copy pinpoint61. K. Manjusree12 and Hemani Malhotra 27were the cases which pertained to selections undertaken to fill up posts in judicial service. In these cases, no minimum qualifying marks in interview were required and the merit list was to be determined going by the aggregate of marks secured by a candidate in the written examination and the oral examination. By virtue of stipulation of minimum qualifying marks for interview, certain candidates, who otherwise, going by their aggregate would have been in zone of selection, found themselves to be disqualified. The stipulation of minimum qualifying marks having come for the first time and after the selection process was underway or through, this Court found such exercise to be impermissible. E These were cases where, to begin with, there was no stipulation of any minimum qualifying marks for interview. On the other hand, in the present case, the requirement in terms of Rule 2(1)(x) read with Rule 14 is that the minimum qualifying marks as stipulated by the Government must be obtained by a candidate to be considered eligible for selection as Assistant Teacher. It was thus always contemplated that there would be some minimum qualifying marks. What was done by the Government by virtue of its orders dated 07.01.2019 was to fix the quantum or number of such minimum qualifying marks. Therefore, unlike the cases covered by the decision of this Court in K. Manjusree12, where a candidate could reasonably assume that there was no stipulation regarding minimum qualifying marks for interview, and that the aggregate of marks in written and oral examination must constitute the basis on which merit would be determined, no such situation was present in the instant case. The candidate had to pass ATRE-2019 and he must be

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A taken to have known that there would be fixation of some minimum qualifying marks for clearing ATRE-2019. Therefore, there is fundamental distinction between the principle laid down in K. Manjusree12 and followed in Hemani Malhotra27on one hand and the situation in the present case on the other.

62Copy pinpoint62. We are then left with the question whether prescription of such minimum qualifying marks by order dated 07.01.2019 must be set aside merely because such prescription was done after the examination was conducted. At this juncture, it may be relevant to note that the basic prayer made in the leading Writ Petition before the single Judge C was to set aside the order dated 07.01.2019. What could then entail as a consequence is that there would be no minimum qualifying marks for ATRE-2019, which would run counter to the mandate of Rule 2(1)(x) read with Clause (C) of Rule 14. It is precisely for this reason that what was submitted was that the same norm as was available for ATRE-2018 must be adopted for ATRE-2019. In order to lend force to this submission, it was argued that Shiksha Mitras who appeared in ATRE-2018 and ATRE-2019 formed a homogeneous clause and, therefore, the norm that was available in ATRE-2018 must be applied. This argument, on the basis of homogeneity, has already been dealt with and rejected.

63Copy pinpoint63. 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. In that respect, the instant matter is fully covered by the decisions of this Court in Municipal Corporation of Delhi vs. Surender Singh 32 and Jharkhand Public Service Commission vs. Manoj Kumar Gupta and another14. In the first case, the power entrusted under Clause 25 of the advertisement also provided similar discretion to the Selection Board to fix minimum qualifying marks for each category of vacancies. G While construing the exercise of such power, it was found by this Court that it was done ‘to ensure the minimum standard of the teachers that would be recruited’. Similarly, in Jharkhand Public Service Commission14, the exercise of power after the examination in paper III was over, was found to be correct and justified.

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64Copy pinpoint64. If the ultimate object is to select the best available talent and A there is a power to fix the minimum qualifying marks, in keeping with the law laid down by this Court in State of Haryana vs. Subash Chander Marwaha and Others21, State of U.P. vs. Rafiquddin and Others22, Municipal Corporation of Delhi vs. Surender Singh32and Jharkhand Public Service Commission vs. Manoj Kumar Gupta and another14, B we do not find any illegality or impropriety in fixation of cut off at 65- 60% vide order dated 07.01.2019. The facts on record indicate that even with this cut off the number of qualified candidates is more than twice the number of vacancies available. It must be accepted that after considering the nature and difficulty level of examination, the number of candidates who appeared, the concerned authorities have the requisite power to select a criteria which may enable getting the best available teachers. Such endeavour will certainly be consistent with the objectives under the RTE Act.

65Copy pinpoint65. In the circumstances, we affirm the view taken by the Division Bench of the High Court and conclude that in the present case, the fixation of cut off at 65-60%, even after the examination was over, cannot be said to be impermissible. In our considered view, the Government was well within its rights to fix such cut off.

66Copy pinpoint66. Consequently, the challenge at the instance of Shiksha Mitras in all these matters, specifically referred to in Para 27 hereinabove, is negated and the appeals preferred by Shiksha Mitras are dismissed. The appeal arising out of SLP(C) No.6846 of 2020 preferred by the Association of Shiksha Mitras also prayed for absorption of Shiksha Mitras. Such a prayer cannot be granted in view of the pronouncement of the decision of this Court in Anand Kumar Yadav2. Said appeal is, therefore, dismissed.

67Copy pinpoint67. Though we have rejected the challenge on behalf of the Shiksha Mitras and dismissed their appeals, we hope that in keeping with the submissions made on behalf of the State, as recorded in paragraph 34 hereinabove, one more opportunity shall be afforded to Shiksha Mitras G to compete in the next selection. We leave it to the discretion of the State Government to consider the manner and the modalities in which such opportunity can be availed of. Needless to say, the matter in that behalf is entirely left to the discretion of the State Government. H

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68Copy pinpoint68. In the appeals preferred by ex-servicemen or persons with disability, it was submitted that as against the vacancies earmarked for these categories, very few candidates had applied and at 65-60% cut off the number of qualified candidates was far lesser. The cut off at 65- 60% having been held valid and justified, these appeals are also dismissed. If there are less number of candidates against the vacancies for these B categories, such vacancies shall be subject to the Rules in that behalf. If the vacancies cannot be carried forward, the same shall and must enure to the advantage of the candidates in the present selection. Similarly, Writ Petition (Civil)No.703 of 2020 and appeals arising out of petitions preferred by B.Ed./B.T.C. candidates as well as Contempt C Petition (Civil) No. 418 of 2020 and all Intervention Applications also stand disposed of in same terms. No costs.

69Copy pinpoint69. The State Government shall now be entitled to fill up all the concerned posts in terms of the result declared on 12.05.2020 and in accordance with law. D

Kalpana K. Tripathy Matters disposed of.