Uttarakhand Board of School Education, Ramnagar & Others vs Km. Jyoti Deopa & others

Rajiv Sharma, A.C.J

These appeals being connected, they are being disposed of by this common judgment.

These appeals are preferred against the common judgment dated 11.11.2013 rendered by a learned Single Judge in Writ Petition (S/S) No. 1660 of

2013 and analogous matters.

Key facts necessary for the adjudication of these appeals are that the respondents were not permitted to appear in the Uttarakhand Teachers’

Eligibility Test â€" II, 2013 (hereinafter referred to as the “UTET-II 2013â€). The main grievance of the respondents was that the prescription of

minimum 45% marks in Graduation / B.Ed. as mandatory to consider for admission to UTET-II 2013 was contrary to the judgment rendered by a

learned Single Judge of this Court in the case of Baldev Singh & others vs. State of Uttarakhand & others, reported in 2011 (2) UD 575.

The learned Single Judge in Baldev Singh’s case (supra), on similar set of facts and rule position, has held as under:

“50. As we have already discussed above, there is no intelligible differentia between a candidate having less than 50 per cent and a candidate

having more than 50 per cent in his graduation, in order to determine eligibility to appear in TET examination. In any case, when ability of a candidate

has to be finally judged by the percentage of marks he obtains in TET examination which is whether he qualifies with more than 60 per cent marks in

TET or not, it would be both unreasonable and unfair to bar a candidate who has obtained 49 per cent marks in graduation from appearing in this

examination, for the simple reason that there is always a possibility that he may secure higher in the TET examination than a candidate who has

obtained more than 50 per cent marks in his graduation. Such a classification though at some other place may be justified and reasonable such as

where a candidate is to be admitted to a higher course of learning in the same stream but presently, for the reasons stated above, it does not seem to

be so. This requirement is unreasonable and violative of Article 14 of the Constitution of India.

However, even assuming for the sake of argument that the above decision of the Hon’ble Rajasthan High Court does not help the case of the

petitioners, yet this Court is of a considered view, as it has already been discussed in the preceding paragraphs, 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 declares

such condition of asking a minimum percentage of marks in graduation from those candidates who are B.Ed. qualified in NCTE notification dated

23.8.2010 and subsequent State Government Order dated 29.4.2011 as violative of Article 14 of the Constitution of India. Further this Court directs

the respondents to permit the petitioners to appear in TET examination treating them to be qualified under Clause 3 of the notification dated 23.8.2010

and State Government Order dated 29.4.2011.â€​

The learned Single Judge, in Baldev Singh’s case (supra), has opined that fixation of 45% or 50% marks in Graduation / B.Ed., as minimum cut-

off marks to appear in UTET-I examination, was bad in law.

An appeal was preferred against the judgment rendered by the learned Single Judge in Baldev Singh’s case (supra) being Special Appeal No.

34 of 2012. The said appeal was dismissed for default on 07.05.2013 and the Restoration Application filed seeking restoration of the appeal was also

dismissed on 05.03.2018.

The learned Single Judge, in the impugned judgment, has also taken into consideration the judgment rendered by the Division Bench of this Court in

Special Appeal No. 286 of 2013 and analogous matters, decided on 04.09.2013. The relevant portion of the said judgment reads as under:

“Question before the learned Single Judge was, whether the advertisement published by the appellant on 24th December, 2012 holding out that in

order to appear in the TET-I examination, the candidates with B.Ed. qualification were required to have at least 45 percent marks in their graduation.

This question cropped up, inasmuch as, in Clause (3) of the Notification dated 23rd August, 2010, NCTE had prescribed that a person with B.A. /

B.Sc. with at least 50 percent marks and B.Ed. qualification shall also be eligible for appointment for Class 1 to 5 upto 1st January, 2012, provided he

goes for, after appointment, an NCTE recognized six months’ special training for elementary education. Later on, by another notification dated

29th July, 2011, NCTE reduced the percentage of marks from 50 percent to 45 percent. In Baldev Singh and others Vs. State of Uttarakhand, a

challenge was thrown to fixation of 50 percent / 45 percent marks at the graduation as a condition for appointment on the ground that while entering

B.Ed. course, recognized by NCTE, there was no requirement of having such percentage. Before a learned Single Judge, Baldev Singh and others

succeeded. The judgment is reported in 2011(2) U.D. 575. This judgment was rendered on 20th August, 2011. Against the said judgment, NCTE

preferred Special Appeal No. 34 of 2012, but could not secure a stay. Appellant thought that despite the said judgment rendered by the learned Single

Judge of this Court and the same having not been interfered with by the appellate court, it was still permissible for the appellant to insist that

candidates, having B.Ed., must have 45 percent marks in graduation and, accordingly, issued the said notification. NCTE permitted Special Appeal No.

34 of 2012 to be dismissed for non-prosecution on 7th May, 2013. Present Appeals have been preferred by the appellant in view of an interim order

passed by this Court in Special Appeal No. 28 of 2013 NCTE Vs. Rajesh Kumar Tiwari and others. A Division Bench of the Court held that receiving

45 percent marks in graduation was a mandatory provision of the law and, accordingly, felt that an order passed contrary to such mandatory provision

of law cannot be taken into countenance. At that stage, appellant NCTE ought to have produced the order of this Court rendered in Baldev Singh and

others VS. State of Uttarakhand before the Division Bench. That was not done. It was suppressed that by reason of the said judgment, rendered in

Baldev Singh Vs. State of Uttarakhand, receiving 45 percent marks in graduation did not remain a mandatory provision of law. The order of the

Division Bench dated 12th March, 2013 has been obtained by suppression of material facts. In any event, the judgment rendered on 12th March, 2013

in Special Appeal No. 28 of 2013 had nothing to do with the decision rendered by the learned Single Judge upon consideration of the merits of the

case.â€​

The learned Single Judge has correctly followed the ratio of the earlier judgments.

Accordingly, there is neither any illegality, nor any perversity in the judgment dated 11.11.2013 rendered by the learned Single Judge. The appeals

are, accordingly, dismissed.