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CA/7724/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR DIRECTION No. 7724 of 2011
In
SPECIAL
CIVIL APPLICATION No. 6781 of 2011
=========================================================
NAKUM
MONIKABEN HIMMATLAL & 4 - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR.HIREN
M MODI for
Petitioner(s) : 1 - 5.
MR MAULIK NANAVATI, AGP for Respondent(s) :
1,
None for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 19/07/2011
ORAL
ORDER
Heard
learned advocates appearing on behalf of respective parties.
In
this application in paragraph 9(a), a prayer is made to allow
applicant to appear in examination of TET (Teacher’s Eligibility
Test) to be held on or around 31st August, 2011. The very
applicants have filed Special Civil Application No.6781 of 2011,
wherein, this Court has passed an order on 9th June, 2011,
which is quoted as under :
“1.
Rule returnable on 28th
July 2011. Mr. Raval, learned A.G.P. waives service of
notice of Rule on behalf of respondent Nos. 1 and 2.
2. Mr. Raval, learned
A.G.P. places on record the further affidavit on behalf of respondent
No.2. The same is taken on record.
3. Heard learned
Advocate Mr. Hiren M. Modi for the petitioners and learned A.G.P. Mr.
Janak Raval for the respondents, as regards the interim relief.
4. The petitioners in
the present petition have challenged the resolution dated 27th
April, 2011 issued by the Education Department to the extent that no
relaxation in the Minimum Qualifying Marks has been granted to the
candidates belonging to the reserved category. The petitioners have
also prayed for the interim relief directing the respondents to
permit the petitioners to appear in the examination of Teachers
Eligibility Test (TET) to be held on 12th June, 2011.
5. It has been submitted
by learned Advocate Mr. Modi for the petitioners that the petitioners
belong to the SC/ST and SEBC category and have passed their B.A. and
B.Ed. Examinations. According to Mr. Modi, on 27th April,
2011, the respondents have issued the resolution fixing the standards
for the appointment of the Primary School Teachers/Vidya Sahayaks and
Higher Primary School Teachers/Vidya Sahayaks requiring the
candidates to secure the qualifying marks in the TET, however, no
relaxation in the Minimum Qualifying Marks has been given to the
candidates belonging to the reserved category, like the petitioners.
Mr. Modi, relying upon the communication dated 1st April
2011 of National Council for Teacher Education, addressed to all the
Secretaries and Commissioners of Education of the State Governments,
communicating the decision taken by the NCTE for relaxation up to 5%
in the qualifying marks to the SC/ST candidates, in accordance with
the extent policy of the State Governments, submitted that in view of
the said decision taken by the NCTE, the State Government also should
grant the relaxation in the Minimum Qualifying Marks to the reserved
category candidates. Mr. Modi submitted that till the State
Government takes the policy decision, in view of the said decision of
the NCTE, the petitioners be permitted to appear in the examination
of TET, scheduled to be held on 12th June, 2011.
6. Learned A.G.P. Mr.
Raval, however, relying upon the affidavit-in-reply and further
affidavit filed on behalf of respondent No.2 submitted that the
petitioners have no legal, much less fundamental rights to seek
relaxation as prayed for in the petition. According to Mr. Raval, the
Minimum Qualifying Marks having been fixed by the Notification and
the issue as to whether the relaxation should be granted to the
candidates belonging to the reserved category or not, is a matter of
policy decision, to be taken by the State Government. In reply to the
submission made by learned Advocate Mr. Modi as regards the letter of
NCTE dated 01.04.2011, Mr. Raval has stated that the NCTE has issued
the said decision in accordance with the policy of the State
Government and that the State Government having passed the Resolution
dated 27.04.2011 wherein no such relaxation has been provided, the
petitioners cannot be permitted to appear in the examination of TET
to be held on 12th June, 2011.
7. Having regard to the
contentions raised by the learned Advocates for the parties, and the
documents on record, it clearly transpires that the petitioners have
sought to challenge the Resolution dated 27.04.2011 passed by the
respondent Education Department wherein no relaxation in the
Qualifying Marks to be obtained in TET, has been given to the
candidates belonging to the reserved category, like SC/ST & SEBC.
It is true that NCTE appears to have taken the decision as contained
in the letter dated 01.04.2011 to the effect that the relaxation up
to 5% in the Qualifying Marks should be allowed to the SC/ST
candidates, however, it is subject to the policy of the concerned
State Governments/Union Territories and other School Managements. In
view of the further affidavit filed by the respondent No.2, it
clearly transpires that the State Government in Education Department,
while passing the resolution dated 27.04.2011, has not granted any
such relaxation in the Qualifying Marks in the TET. Under the
circumstances, as rightly submitted by learned A.G.P. Mr. Raval, this
being a matter of policy decision of the Government, the petitioners
cannot insist to grant relaxation in the Qualifying Marks. Since no
legal much less fundamental rights of the petitioners have been
allegedly violated by the respondents, the respondents could not be
directed to take a particular policy decision, and the petitioners
could not be permitted to appear in the TET examination to be held on
12th June 2011 as prayed for by the petitioners by way of
interim relief.
8. In that view of the
matter, the prayer of the petitioners to grant interim relief as
prayed for in para 11(b) could not be granted.”
The
very same prayer, which has been made by applicant – petitioner
in aforesaid main Special Civil Application in paragraph 11(b), has
been rejected by this Court. Against which, no further challenge has
been made by petitioner. However, same relief has been prayed in
present application only on ground that examination of TET is going
to be scheduled on or around 31st August, 2011.
If
that be so, let applicant – petitioner may approach respondents
with such a request.
As
and when such approach will be made by applicant, let respondents be
consider it in accordance with law on or before 31st
August, 2011.
In
view of above observation and direction, present application is
disposed of by this Court.
Direct
service is permitted.
[H.K.
RATHOD, J.]
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