Himanshu Upadhyay and others vs State of Uttarakhand and others

Hon''ble Sudhanshu Dhulia, J.—Heard Mr. Deepak Bisht, Advocate for the petitioners, Mr. Anil Bisht, Brief Holder for the State of Uttarakhand, and Ms. Seema Sah, Ms. Geeta Parihar, and Mr. Asif Ali, respectively for "Uttarakhand Vidyalayi Shiksha Parishad" as well as Mr. T.A. Khan, Advocate present for National Council for Teacher Education.

In all these connected writ petitions a common question is involved and the respective counsels appearing for the "Uttarakhand Vidyalayi Shiksha Parishad", namely, Ms. Seema Sah, Ms. Geeta Parihar, and Mr. Asif Ali, Advocates, which is the necessary party in the present writ petitions fairly submit that the writ petitions be disposed of at the admission stage itself for the peculiar facts and circumstances of the case.

Although all the writ petitions are being disposed of by the present orders, the facts of the case which has been mentioned are of Writ Petition No. 1582 (SS) of 2011, only for the sake of convenience.

All the petitioners before this Court are the candidates for an examination known as Teachers Eligibility Test (hereafter referred to as "TET"). This examination was conducted under the directions of a Central Body known as National Council for Teacher Education (hereinafter referred to as "NCTE") by which the State Government was to conduct such an examination, which is known as Uttarakhand Teachers Eligibility Test (hereinafter referred to as "UTET"). A candidate who is desirous to become a teacher in an elementary school must qualify with at least 60% of marks (for General Category candidates), and for the reserved category candidates they must qualify this examination with a minimum 50% marks. This would be one of the eligibilities for a teacher in elementary schools, in the State of Uttarakhand. This has been done after the Right to Education being incorporated in Constitution of India under Article 21-A vide Constitution (Eighty Sixth Amendment Act) and consequently, the Parliament enacting an Act known as "Right to Education Act, 2009" whereby, inter alia, it has been stipulated that it is the Right of a child not only to get an elementary education but a "meaningful elementary education." Pursuant to the direction of NCTE the State of Uttarakhand invited the applications from eligible candidates to appear in "TET" examination. One of the conditions imposed by the State Government in the examination (under the direction of NCTE) is that a candidate who possesses B.Ed. qualification will only be eligible to appear in the present examination, if he has at least 50% in graduation, for general category candidates and 45% for reserved category candidates.

Thereafter, a large number of writ petitions were filed before this Court challenging both the authority of the NCTE as well as the State Government to conduct such an examination (i.e. TET), and more particularly the imposition of a condition of having a minimum percentage of marks in graduation a candidate having B.Ed. qualification. These writ petitions were filed by the petitioners in which leading case was Writ Petition No. 772 (SS) of 2011 (Baldev Singh and others Vs. State of Uttarakhand and others) was decided by an order dated 20.8.2011, holding the validity of TET and rejecting the claim of the petitioners regarding holding of such examination. At the same time, this Court also held that fixing the minimum percentage of marks in graduation for this examination has actually no nexus with the object sought to be achieved and therefore, the writ petitions were disposed of with certain directions. It was held that such a restriction (of having minimum percentage in graduation) is both unreasonable, unjust and violative of Article 14 of the Constitution of India. Therefore, this Court declared such a condition of asking a minimum percentage of marks in graduation from candidates having B.Ed. qualification was violative of Article 14 of the Constitution of India. Further this Court directed the respondent to permit the petitioners to appear in TET, Examination treating them to be qualified.

At this juncture, it is necessary to state that Board, NCTE and consequently, the State Government had also during the pendency of the above writ petitions had reduced the percentage of marks from 50% to 45% for general category candidates and from 45% to 40% for the reserved category candidates.

This Court has also been informed that State Government as well as NCTE has not filed any special appeal against this judgment before this Court nor any petition before the Hon''ble Apex Court. Therefore, the above referred judgment has attained a finality. As such, candidates are held to be eligible to appear in the examination and there is no reason to withhold the result of such candidates merely because the petitioners were not party in the above writ petitions. This Court has been informed that such candidates who have appeared in the examination are either being treated to be disqualified or their results have been withheld who have less than minimum prescribed percentage in their graduation. It has further been submitted before this Court that all these candidates are being compelled to obtain orders from this Court, hence these writ petitions.

In view of this, this inaction on the part of the respondents is highly unreasonable and has caused undue hardship to the petitioners. The judgment of this Court passed in Writ Petition No. 772 (SS) of 2011 was a judgment of the candidates having judgment in rem and not a judgment in persona.

Counsel appearing for the Uttarakhand Vidyalayi Shiksha Parishad has filed a letter dated 23.11.2011, which is taken on record, which has been received through Secretary, "Uttarakhand Vidyalayi Shiksah Parishad" in which the respondents state that to a certain extent the Board has accepted its mistake and clarified its position now and on a mere representation by the petitioners the result of such candidates (like the present petitioners) is liable to be declared. However, there should be no such need for any such formality being asked from the petitioners, in case the petitioners had a recognized B.Ed. qualification, they shall be treated to be qualified irrespective of the marks they had obtained in their graduation provided they are graduates from a duly recognized University. Nothing, further needs to be stated by this Court.

With the aforesaid direction, the writ petitions are allowed.

No order as to costs.

Certified copy of this order be issued today itself.