Nirbhay Singh and others vs State of Punjab and others

This order will dispose of above noted 21 cases, as common

questions of law and facts are involved in them, which can conveniently be

decided by a common order. The facts are being taken from CWP No.

17370 of 2016.

The petitioners herein are seeking :

(i) A writ in the nature of certiorari, mandamus or any other

appropriate writ, order or direction for quashing the

impugned advertisement dated 30.07.2016 (Annexure P-

5) issued in undue haste by respondent No.2 prescribing

therein the qualification of "Pass in Teacher Eligibility

Test (TET) conducted by the State Government of

Punjab" and fixing the cut off date as 28.08.2016 without

prior conducting the "PSTET - 2016" Examination and

declaring its result, being illegal, arbitrary,

discriminatory and violative of Articles 14 and 16 of the

Constitution of India;

(ii) Issue a writ in the nature of certiorari, mandamus or any

other appropriate writ, order or direction for quashing the

impugned Corrigendum dated 06.08.2016 vide which the

date of conducting the PSTET-2106 test has been

postponed to 25.09.2016 with mala fide intention in

unfair, unjust and illegal manner in order to deprive of

the petitioner from applying for the posts in question;

(iii) issue a writ in the nature of mandamus or any other

appropriate writ, order or direction for directing the

respondents to allow the petitioners to apply online for

the posts of ETT Teacher notified vide advertisement

dated 30.07.2016 (Annexure P-5) by refixing the cut off

date after declaration of the result of PSTET-2016 now

rescheduled to be held on 25.09.2016 and further to

consider the candidatures of the petitioners for selection

and appointment as ETT Teacher provisionally subject to

their having qualified the PSTET-2016 examination; and

(iv) To grant any other relief to the petitioners, to which they

may be found entitled by this Court in the facts and

circumstances of the instant case.

In brief, the facts leading to filing of the instant writ petition are

required to be noted. Under the "Right of Children to Free and Compulsory

Education Act, 2009" (RTE Act, 2009) minimum qualification to be

possessed by any person for appointment as a Teacher is covered under

Section 23, which requires a person to have clear the Teachers Eligibility

Test (TET under RTE Act, 2009) test. Pursuant to the guidelines issued by

the National Council for Teachers Education respondent No.3 issued a

public notice in the newspaper "Ajit" on 02.07.2016 and notified the date

for holding of PSTET 2016 and invited online applications from eligible

candidates. The petitioners who were eligible, applied for PSTET-I and their

online applications were accepted and they were issued registration

numbers. Prior to the test being held, an advertisement was also issued

inviting applications from eligible candidates to fill up 2005 posts of E.T.T.

Teachers on or before 28.08.2016 with an essential qualification prescribed

that a candidate should have passed the TET conducted by the Punjab

Government, in other words, should have cleared the PSTET test. The

PSTET-2016 which was scheduled to be held on 21.08.2016, was postponed

by a public notice issued from 21.08.2016 to 25.09.2016. On account of

postponement, the petitioners herein alleged that they would be deprived of

applying for 2005 posts of ETT Teachers advertised, which requires a

candidate to have qualified the TET test or PSTET test. The prayer made

that on account of the postponement of the test, petitioners herein, who have

the other qualifications, have been deprived of getting a job. The petitioners

approached the respondent-department with a request to allow them to

submit their applications and to participate in the recruitment of the ETT

posts in question but the request was declined.

Learned counsel appearing on behalf of the petitioners urge that

by postponing the PSTET scheduled to be held on 21.08.2016 to 25.09.2016

and, by inviting applications to fill up 2005 ETT posts with an egligibilty

criteria of having PSTET qualification, the petitioners have been deprived

of an opportunity of seeking employment which is detrimental to them. It is

argued that similarly situated 19 JBT had approached this Court by way of

filing CWP No. 5984 of 2012, titled as " Manpreet Kaur vs. Chandigarh

Administration and others " in which the High Court had directed

respondent No.2 to consider the candidature of the petitioners till they show

themselves as having qualified in the CTET Test, which was scheduled to

be held in the month of May, 2012. It is argued that in a similar situation, in

2011, public notices were on receipt of applications for filling up of Master

Cadre in the Education Department had been issued and it was one of the

conditions that concerned candidates must have passed the TET test. The

last date for receipt of applications was 30.05.2011, though the respondent-

State had not conducted the test till then the TET test was conducted on

03.07.2011 and result declared on 13.07.2011. It was under these

circumstances that a Writ No. 21301 of 2011, titled as " Gurjinder Singh vs.

State of Punjab and others " was filed seeking extension of the last date of

receipt of application from 30.05.2011 so that the candidates who had

qualified TET test held on 03.07.2011 may also become eligible. The High

Court disposed of the writ petition with directions to the respondents to

consider extending the cut off date prescribed in the advertisement which

was considered and the last date of submission of applications was extended

to 01.08.2012 i.e. after the result had been declared. Learned counsel for the

petitioners further submit that the case of the petitioners is similar to the

petitioners in Writ No. 21301 of 2011, titled as " Gurjinder Singh vs. State

of Punjab and others " (supra) as without taking the PSTET test 2016, posts

have been advertised to be filled up which would necessarily mean that the

petitioners are deprived of an opportunity of employment.

Per contra, learned counsel appearing on behalf of the

respondents-State would submit that Punjab State Teachers Eligibility Test

is necessary qualification for a person to be eligible to be appointed as ETT

Teacher in the Education Department and it is the qualification which has to

be considered as on the last date of submission of application forms i.e.

28.08.2016. It is also argued that 4935 candidates had applied till the last

date of submission of applications i.e. 28.08.2016, meaning thereby,

sufficient number of candidates were available for scrutiny of documents

and appointment for 2005 ETT posts. It is also argued that the Punjab State

Teachers Eligibility Test was conducted in the year 2011, twice in the year

2013, in 2014 and 2015 also prior to issuance of the recruitment notice

dated 30.07.2016 and as such sufficient number of candidates were

available.

Civil Misc Application No 11024 of 2016 has been preferred

under Order 1 Rule 10 CPC for impleading applicants as interveners. The

applicants are such people who have already acquired the PSTET

qualification, having undertaken the test on previous years. This application

was allowed by order dated 16.12.2016.

Mr. Vikas Chatrath, learned counsel appearing on their behalf

argued that an advertisement was issued on 30.07.2016 in which it had

clearly been mentioned that only those candidates who have passed the

Punjab State Teachers Eligibility Test conducted by the Punjab Government

would be eligible. It is argued that the cut off date prescribed in the

advertisement has not been challenged and in case the writ petition filed by

the petitioners succeeds, the rights of the applicants would be affected since

they were eligible in terms of the advertisement issued. It is also argued that

it is within the domain of the executive of the Legislature to establish or fix

a cut off date and the Courts cannot assume such powers by placing reliance

on judgment rendered in Divisional Manager, Arvali Golf Club vs

Chanderhas and another, 2008(1) SCT 275 (SC) . It is also argued that the

petitioners have not been able to establish any mala fides in the cut off date

being prescribed or in the postponement of the PSTET eligibility test.

Further reliance has been placed upon LPA No. 745 of 2016, titled Bharat

Bhushan and others vs. State of Punjab and others, decided on 11.05.2016

whereby the appellants had sought extension of the last date of submission

of forms which argument came to be rejected holding that the cut off date

could not be extended.

I have heard learned counsel for the parties and have perused

the pleadings in the case.

In CWP No. 17478 of 2016, this Court passed the following

order on 27.08.2016.

"In the meantime, the respondents are directed to accept

the petitioners'' applications/admit forms manually

through hard copy (outside the online system) and to

permit them to participate in the selection process

through counseling etc. However, this order is

provisional and will confer no equities on the petitioners

whose rights will be determined in this petition and

would await its result. The result of the process of

counselling qua the petitioners be kept in sealed cover to

be presented to the Court as and when directed."

As per Section 23 of the RTE Act, a person can be appointed as

a Teacher in Elementary School who possesses the minimum qualification

and has passed the Teachers'' Eligibility Test to be conducted by the

appropriate Government. As per the guidelines for conducting Teachers''

Eligibility Test under the Right of Children to Free and Compulsory

Education Act, 2009, it has been stipulated that "appropriate Government

should conduct a TET at least once every year. The validity Period of TET

qualifying certificate for appointment will be decided by the appropriate

Government subject to a maximum of seven years for all categories. But

there will be no restriction on the number of attempts a person can take for

acquiring a TET certificate. A person who has qualified TET may also

appear again for improving his/her score."

In the instant case, applications were invited for the test to be

conducted on 21.08.2016 which came to be postponed, to be held on

25.09.2016. This corrigendum was issued on 06.08.2016. An advertisement

was issued on 30.07.2016, inviting applications of eligible candidates to fill

up 2005 posts of ETT teachers and the last date of submission of online

forms was to be 28.08.2016. The only questions that arises for consideration

for this Court is "whether the petitioners have been deprived of their right

to apply for the post of ETT Teachers as the test scheduled to be held on

21.08.2016 stood postponed to 25.09.2016.?"

The law as laid down in Ashok Kumar Sonkar vs Union of

India and others reported in ( 2007) 4 SCC 54 is clear that the eligibility of

a candidate has to be seen as on the last date fixed for submitting the

application form, which in the instant case is 28.08.2016. It is also an

admitted fact that the petitioners were not qualified since they had not

cleared the PSTET test as on the last date of submission of the application

form. Would the postponement of their test give them an indefeasible right

to challenge the postponement of the exam citing mala fide''s ? A similar

issue arose before the LPA Bench in Bharat Bhushan & Ors. vs. State of

Punjab and others, LPA No. 745 of 2016, decided on 11.05.2016 where the

academic session for the ETT Course was to commence from 15.11.2013

and to conclude in November, 2015 but the same was delayed and

examinations conducted only in April, 2016, whereas posts of ETT

Teachers had been advertised with the last date for submission of online

applications to be 02.12.2015. It was argued on account of the delay in

holding of the examination in April 2016, the applicants had been deprived

of an opportunity to submit their online applications in December 2015. It

was argued that no harm would be caused if the petitioners would be

allowed to appear provisionally subject to their clearing the ETT

examination. The LPA Bench confirmed the orders passed by the Single

Bench holding that cut off date is sacrosanct and only those persons who

were eligible on the date of submission of application form would be

entitled to be considered. In the case of Antim Kumari vs. State of

Haryana and others, CWP No. 346 of 2013 decided on 29.04.2015, a

Division Bench of this Court while dealing with a similar issue pertaining to

appointment in the State Of Haryana formulated three questions:

(i) Whether the candidates who have qualified JBT/ETT after 30.07.2011 and were in possession of allother eligibility conditions as on the cut-off date mentioned in the advertisement except the certificate of STET, which they could not obtain as no examination was held after they acquired the minimum eligibility, can be deprived of their right to compete?

(ii) Whether the candidates who have qualified CTET during the year 2012 when no STET was held , are entitled to claim eligibility for the advertised posts in terms of guidelines issued by NCTE?

(iii) What would the fate of candidates who acquired JBT/ETT diploma after 30.07.2011, i.e. the date of advertisement to appear for the STET and who have CWP-346-2013 and others connected cases qualified such test in the very first opportunity given to them on 26.06.2013 vide the

advertisement dated 28.04.2013? ".

The first set of candidates were given a concession by the Government and

were offered appointment, but the Learned Division Bench held that if there

is no eligibility as on the last cut of date, the petitioners would not be

entitled to any relief. In the case of Antim Kumari (supra) an affidavit filed

by the NCET in CWP No.CWP-346-2013 was also noticed wherein NCET

specifically stated that the guidelines contained in clauses 10 and 11 of the

NCTE guidelines dated 11.02.2011 are directory in nature. While noticing

the guidelines it was held that "Education being a subject in the concurrent

list, the power to frame appropriate legislation/regulation /rule vests with

the appropriate legislature and the State Government is well within its

rights to prescribe the qualification of eligibility that candidates applying

for the post must necessarily qualify the Teachers EligibilityTest of the said

State. There would be no illegality in the same and merely because a State

Government has failed to conduct a STET in a given year would not amount

to taking a decision not to hold the exam and to hold the candidates who

have qualified Central Teachers Eligibility Test as eligible.'''' A reading of

the said guidelines would show that test is to be held every year, but

nowhere does it stipulate that the recruitment process is to be initiated only

after the TET test has been conducted. In the case decided by a single

Bench of this court in Priyanka vs State of Punjab and others, CWP No.

17508 of 2016, decided on 26.08.2016, it has been held that "firstly, as per

guidelines (P-3), direction is mandatory for the appropriate Government to

conduct a Teacher Eligibility Test at least once every year and concededly

the TET Test has been notified to be conducted in September 2016. It is also

conceded position that in December 2015, the required TET Test was also

held and the petitioner had full opportunity to appear in the same but she

either failed in the test or did not take chance to become eligible. Therefore,

in the facts of the present case, no case for interference is made out.

Moreover, it is nowhere provided that TET Test has to be first held and

thereafter recruitment is to be made."

Further, as noticed in the argument raised by respondents, TET

test have been conducted in the years 2011, twice in 2013, 2014 and 2015

and, therefore, candidates have already acquired a right to be considered for

appointment. The argument raised that the TET has been postponed with

mala fide intentions would not be sustainable. Merely because the test

stands postponed would not be a justifiable reason to raise such an

argument. The plea of mala fides has to be proved by positive evidence and

not mere allegation as has been done in the instant case. In the case in hand ,

the petitioners have not been able to establish that the postponement has

taken place to benefit only a few chosen ones. There are more than 4500

candidates readily available who have already cleared the test, against 2005

posts advertised, who now have a vested right to be considered for

appointment. The petitioners could have a reason to raise an issue for not

being considered if they had the necessary eligibility as per the cut off date,

however this eligibility is lacking.

The judgments as relied upon by learned counsel for the

petitioners are distinguishable, since in those cases posts had been

advertised without conducting the PSTET test. The PSTET test was

conducted for the first time on 03.07.2012 and result was declared on

13.07.2012. It was in this situation that the advertisement dated 07.05.2011

came to be challenged which is not the situation herein since PSTET test

has been conducted in the years 2011, twice in 2013 and then in 2014 and

2015, which certificates are valid for a period of seven years.

Looked at from another angle, the petitioners who have not

been able to establish mala fides, would have to establish infringement of

their fundamental right to approach the High Court. Admittedly, they do not

have the necessary qualification to apply for the post of the ETT as on the

last day of submission of the application form and the eligibility will have to

be seen accordingly. The cut off date is sacrosanct which can not be

changed at the mere asking of the petitioners. In Ramrao v. All India

Backward Class Bank Employees Welfare Assn ., (2004) 2 SCC 76 it has

been held:

"32. If a cut-off date can be fixed, indisputably those who fall

within the purview thereof would form a separate class. Such a

classification has a reasonable nexus with the object which the

decision of the Bank to promote its employees seeks to achieve.

Such classifications would neither fall within the category of

creating a class within a class or an artificial classification so

as to offend Article 14 of the Constitution of India.

Whenever such a cut-off date is fixed, a question may

arise as to why a person would suffer only because he comes

within the wrong side of the cut-off date, but, the fact that some

persons or a section of society would face hardship, by itself

cannot be a ground for holding that the cut-off date so fixed is

ultra vires Article 14 of the Constitution."

In view of the above, I do not find any merit in the writ

petitions and the same are hereby dismissed.

A photocopy of this order be placed on the file of each

connected case.