JUDGMENT
Ashok Bhushan, J.
1. Heard counsel for the petitioners and Sri K.S. Kushwaha learned standing counsel appearing for the respondents.
All these writ petitions raise common issues of law and fact and are being disposed of by this common judgment by consent of parties. Writ Petition No. 54049 of 2007 in which pleadings are complete is being treated as leading case and for deciding all these writ petitions, it is sufficient to refer to the pleadings of Writ Petition No. 54040 of 2007.
The principal prayer made in all these writ petitions is to quash the Government order dated 10th July, 2007 (paragraph 3(1) of the Government order) in so far as it provides for district-wise selection and preparation of district-wise merit list. A writ of mandamus has also been sought directing the respondents to prepare State-wise merit list. The further prayer made in the writ petition is for commanding the respondents to adopt the criteria of selection by adding the percentage of marks of B.Ed, practical and theory instead of taking the percentage by adding marks obtained in theory and practical of the training qualification.
2. Brief facts of the case, necessary to be noted for deciding the “”Issues raised in the writ petitions are; a large number of post of teachers in the primary institutions are laying vacant in the State of U.P. Due to non availability of teachers having basic training certificate, the State of U.P. decided to impart a Special Basic Training to those candidates who have passed B.Ed, so as to make them eligible for selection and appointment as Assistant Teachers in the primary institutions. After obtaining approval for running the Special Basic Training Course-2007 from the N.C.T.E. under the National Council of Teachers Education Act, 1993, a Government order dated 10th July, 2007 was issued by the State Government for imparting Special Basic Training to 60,000.00 candidates possessing B.Ed, qualification of six months training. The paragraph 3 of the Government order dated 10th July, 2007 lays down conditions and directions under which the Special Basic Training is to be imparted. Paragraph 3(1) of the Government order provides that selection for imparting Special Basic Training Course-2007 shall be made on the basis of district-wise merit. The Government order further provides that it is necessary for the candidates to be original resident of the district from where they are making applications. Paragraph 11 of the Government order also provided that merit index shall be prepared on the basis of percentage of marks received in High School, Intermediate, Graduation and B.Ed, and for B.Ed, examination percentage of total marks received by the candidates shall be taken into consideration. Another Government order dated 13th July, 2007 was issued by which it was decided to give opportunity to all the candidates to apply from desired districts and no restriction be placed on the basis of place of birth or residence of the candidates. The Director, State Council of Education, Research and Training issued a letter dated 15thJune, 2007 issuing instructions to all District Magistrates, which also contained instructions for computation of merit index of the candidates for selection for training. By an order of this Court passed in Writ Petition of Arvind Kumar Singh the candidates who have passed B.P.Ed., C.P.Ed. or D.P.Ed, were also permitted to apply for Special Basic Training Course-2007. The State Government also issued an Government order dated 6th August, 2007 permitting the candidates having passing B.P.Ed., C.P.Ed, or D.P.Ed, to apply for Special Basic Training Course-2007. In pursuance of the Government order notices were published by various Principals of the D.I.E.T.s that the candidates having B.P.Ed., C.P.Ed, or D.P.Ed, can also apply. The respondents have proceeded for preparation of the merit list for selecting the candidates for Special Basic Training Course-2007. In the counter affidavit filed in Writ Petition No. 52429 of 2007 (Arun Kumar and Ors. v. State of U.P. and Ors.) a schedule has been annexed which mentioned the publication of interim select list on 20th December, 2007 prior to which other process including verification of marks were scheduled to be completed. Several writ petitions were filed making the averments as noted above on different dates, e.g. Writ Petition No. 54049 of 2007 was filed on 13th October, 2007 and other writ petitions were filed on different dates. All having been filed prior to issue of interim merit list, by an order passed on 19th December, 2007 in these writ petitions, this Court directed that issuance of merit list be deferred till 2nd January, 2008.
3. The submissions made by learned Counsel for the petitioners can be grouped in two heads. The first submission pressed in these writ petitions is challenge to preparation of district-wise merit list with the prayer that direction be issued to prepare State-wise merit list. The Government order dated 10th July, 2007 in so far as it directed preparation of district-wise merit list has been challenged. The submission of counsel for the petitioners is that preparation of district-wise merit list was quashed by this Court vide its judgment in Anant Kumar Tiwari’s v. State of U.P. and Ors. reported in 2002 (2) UPLBEC 1527 in which writ petition the advertisement dated 14th August, 2001 pertaining to Special Basic Training Course-2001 was challenged. The Government order dated 3rd August, 2001 on the basis of which advertisement was issued on 14th August, 2001 provided that a candidate can apply for Special Basic Training Course-2001 from his home district only and in the event no vacancy is available in the home district he can apply to any other district of the region. By a subsequent corrigendum dated 22nd September, 2001 it was provided that the list shall be prepared State-wise and there shall be one merit list in the entire State. Again before two or three days of the declaration of result it was directed that merit list shall be prepared district-wise. Anant Kumar Tiwari and others filed writ petition challenging the advertisement, which confined the selection to a particular district. The prayer was also made for directing the respondents to prepare a fresh State-wise merit list considering the candidature at State level. A learned Single Judge of this Court allowed the writ petition quashing the Government order as well as the advertisement. It was left open to the State to go for fresh process of appointment. The said judgment of the learned Single Judge was affirmed by the Division Bench in State of U.P. and Ors. v. Anant Kumar and Ors. 2003 (3) A.W.C. 2060. Against the judgment of the Division Bench appeal was filed in the Apex Court which too was dismissed, which judgment is Rajesh Kumar Gupta and Ors. v. State of U.P. and Ors. Learned Counsel for the petitioners submitted that the district-wise merit list having been frowned upon in the aforesaid judgment, the State cannot resort to district-wise merit list and it was obligatory for the State to have prepared the State-wise merit list. It is further contended that even if liberty is given to a candidate to apply from any district, the said procedure is inconvenient and cumbersome unnecessary burdening the candidates for making application in large number of districts. It is submitted that in certain districts persons having lower merit may be selected whereas persons having higher merit in some other district may not be selected. The second plank of argument of the learned Counsel for the petitioners is that the methodology adopted by the respondents in computing the merit index of teaching qualification, i.e., B.E.d., B.P.Ed., C.P.Ed., D.P.Ed, or L.T. is arbitrary. The petitioners have contended that total marks of theory and practical in the above examinations defers from University to University. Prior to 2004 the practical and theory marks of above teaching qualifications were less and after 2004 the maximum marks of theory and practical have been increased. It is further contended that maximum marks in theory and practical for B.P.Ed., C.P.Ed, or D.P.Ed, are much more as compared to those candidates who have passed B.Ed, and in adding marks obtained in practical and theory and then obtaining the percentage leads to arbitrariness and discrimination among the candidates having identical merits. Further in the writ petition it has been explained by giving illustration, which shall also be considered while considering the submissions in detail.
3.1 The petitioners’ submission is that instead of taking percentage of marks obtained by candidates, by adding marks obtained by a candidate in theory and practical, at best the percentage of marks obtained in practical and theory ought to have been separately added. Learned Counsel for the petitioners submits that by the methodology adopted by the respondents candidates having identical merit as disclosed in theory and practical of a teaching qualification, there is a lot of difference in merit index depending on the maximum marks of practical and theory allotted by different Universities. The submission is that by this method the true merit of the candidates is sacrificed and those candidates who have passed the examination having more maximum marks in theory and practical are in advantageous position.
4. Sri K.S. Kushwaha learned standing counsel appearing for the respondents refuting the submissions of learned Counsel for the petitioners, contended that no error has been committed by the State Government in deciding to prepare district-wise merit list. He submits that in Special Basic Training Course-2007 there is no restriction on the basis of residence or place of birth of a candidate and the selection for training is to be imparted in the different D.I.E.Ts., hence there is no error in preparing the district-wise merit list. He further submits that judgment of Anant Kumar Tiwari’s case (supra) was based on fact where there was restriction for applying only from home district of a candidate, which restriction was held to be violative of Articles 15 and 16 of the Constitution of India and the said restriction not being there in the present selection, the said judgment cannot be applied in the present circumstances. Sri K.S. Kushwaha has further submitted that methodology applied by the respondents for computing the merit index of a candidate of teaching qualification does not suffer from any error, which has been uniformly applied to all candidates and minimize the inequalities. He further submits that by this method the discrimination in the marks of the candidates having more marks in theory and practical has been minimized. He also contends that writ petition is liable to be dismissed due to non joinder of parties since the candidates who have been selected, have not been impleaded.
Learned Counsel for the parties have placed reliance on judgments of this Court as well as of the Apex Court, which shall be referred to while considering the submissions in detail.
5. I have considered the submissions of learned Counsel for the parties and have perused the record.
5.1 The first issue which requires consideration is the issue of preparation of merit list district-wise or State-wise. The judgment of this Court in Anant Kumar Tiwari’s case (supra) affirmed by the Division Bench as well as the Apex Court is the sheet anchor of the arguments of learned Counsel for the petitioners. Learned Counsel for the petitioners submits that this Court having already set-aside the district-wise merit list and directed for preparation of State-wise merit list, it was not open for the State Government to direct for preparation of district-wise merit list. For above submission, it is necessary to first notice the details of the earlier selection, which was subject matter of challenge in the writ petition of Anant Kumar tiwari’s case (supra). The 2001 selection was initiated by the Government order dated 3rd August, 2001 copy of which has been filed as Annexure-12 to the writ petition (Writ Petition No. 54049 of 2001). Paragraph 4 of the Government order provided that applications were to be invited after proper advertisement by Director, N.C.E.R.T. and the applications were to be received by registered post by the Director, N.C.E.R.T. The advertisement was required to mention the district-wise vacancies and the candidates were entitled to make applications against vacancies of their home district only. The State Government by corrigendum dated 22nd September, 2001 provided that merit list shall be prepared State-wise and there shall be one merit list for the entire State. Subsequently again few days of before issue of merit list, the State again decided to issue district-wise merit list. In those facts and circumstances the writ petition were filed challenging the Government order dated 3nd August, 2001 and the consequential advertisement as well as the Government order. Learned single Judge noticed the grounds of challenge and made following observations in paragraphs 27 and 28 of the judgment in Anant Kumar Tiwari’s case (supra) :
27. Coming to the next submission made by petitioners’ counsel that frequent change was by issuing corrigendum of the original advertisement providing initially recruitment and preparation of the merit list District-wise and thereafter changing the same to the State-wise and a day or two before the declaration of the result again going back to the District-wise, per se amounts to discrimination and the action is also arbitrary and is hit by Articles 14, 16 and 21 of the Constitution of India. Learned Counsel for the petitioners has submitted that in view of Section 4 of the U.P. Basic Education Act, read with Rule 17-A of the 1981 Rules, the concept of district cadres is un-known. This is further clear from the G.Os. dated 9.1.1998 and 21.1.1998 that the cadre is State-wise and the object of the State cadre is to provide equal opportunity to all, in such circumstances any criteria which provides District-wise selection is illegal and discriminatory and it is probably with this view that the original advertisement was amended by issuing a corrigendum changing the criterion from District-wise to State-wise. The cadre in service will come into existence only when a person is appointed to the service and restricting the some of District-wise would per se amount to discrimination inasmuch as the person domiciling or residing in a particular district and as has been shown in the present writ petition as well as supplementary affidavits and counter-affidavits that there are some districts where there were zero vacancy meaning thereby that though the State is going to appoint approximately twenty-thousand Assistant Teacher, the meritorious candidates belonging to such districts, which have zero vacancy would have no opportunity to apply for the same and get an appointment though living in the same State governed by the same Rules and the cadre, if any, shall come only after the appointment and before that creating the district cadre and making appointment restricted to the district cadre is per se, arbitrary and denying the quality clause of the Constitution of India.
28. The another circumstance, which supports the petitioners’ case that by the notification dated 22.9.2001, it is again to apply to every applicant that merit list shall be prepared State-wise and changing the same after the last date of application amounts to going back from the promise made by the State Government and on the basis of the principles of estoppel also the State is stopped from going back from the criteria of the State-wise merit list to District-wise merit list.
5.2 Learned Single Judge further noticed the ground of challenge in paragraphs 37 and 38 of the judgment, which are as follows:
37. Learned Counsel for the petitioners further relied upon the decisions reported in (2000) 2 UPLBEC 1608 Govind A. Mane and Ors. v. State of Maharashtra and Ors. , Union of India and Ors. v. Sanjay Pant and Ors., in support of the arguments that restriction on application from home district alone is per se, arbitrary and violative of Article 16(2) of the Constitution of India. So is the position of reservation on the basis firstly sex and thereafter of Arts and Science category of students, which have already been held un-reasonable and un-constitutional.
38. A case has been taken in the counter affidavit that in order to adjust the vacancies so that the requirement of all the districts may be made for appointment of the Assistant Teachers in question, the vacancies of one district have been transferred to another district. This, according to the averment made by the learned Counsel for the petitioners, has no rational as the State has already advertised that the merit list shall be prepared State-wise and this transfer of vacancy from one district to another district substantiate the petitioner that under law the entire State has to be taken as one unit. Thus, the changing the preparation of merit list for State-wise to District-wise is illegal, arbitrary and contrary to Constitutional provisions and law declared by this Court.
5.3 Ultimately the learned Single Judge quashed the Government order as well as the advertisement holding them to be arbitrary, discriminatory and violative of Articles 14, 15, 16 and 21 of the Constitution of India. The said judgment was appealed by the State and the Division Bench of this Court had occasion to consider the challenge in State of U.P. and Ors. v. Anant Kumar Tiwari and Ors. The Division Bench noticed the restrictions on application from home district alone and after noticing the entire scheme made following observations in paragraphs 43 and 44 of the said judgment:
43. It is not in dispute that in the advertisement, which was published in the newspapers, applications were invited for selection of candidates for giving special B.T.C. training for appointment on the post of assistant teachers in primary schools run by the Board in rural areas. Thus, having the special B.T.C. training is a prequalification for getting appointment as assistant teacher. Rule 4 provides separate cadre of service for each local area. The recruitment of assistant teachers under Rule 5 is not confined to the residence of that local area only. In fact, under Rule 7 of 1981 Rules, any citizen of India can be a candidate for recruitment to the said post. Thus, the procedure, which has to be followed by the State Government for making selection of candidates for imparting special B.T.C. training for appointment on the post of assistant masters in the primary schools should be in conformity with the provisions of 1981 Service Rules, which does not confine its limit to the candidates of the home district or of a local area alone. If all the vacancies of assistant teachers in the primary schools of various local areas have been clubbed together and advertised on account of expediency and convenience, it was appropriate that the merit list at the State level be prepared and the allocation be done according to the criteria set out in the Government order dated 14.9.2001. In the Government order dated 14.9.2001, the Government has fixed the following criteria for allotment of seat to the candidates,
A merit list of all the applications received will be prepared on the basis of quality points of the educational and other qualifications in accordance with the provisions given in the Government orders mentioned above at the State level, which will be prepared in proportion to the total vacancies for training. The above list will be arranged district-wise, in conformity with the vacancies available in the district and a provision of reservation as per the rules will be ensured. The candidates on the merit list shall be allotted as per the following, in order of merit:
(a) Home district of the candidate;
(b) Another district of the Division, wherein home district is located;
(c) Nearest Division to the home district Division of the candidate where the vacancy is available.
44. The plea taken by the learned Advocate General that the students ought to be taught in the local dialect which differs from region to region in the State of U.P. is misconceived inasmuch as, by restricting the prospective applicants of the home district to apply in that district only presumably by virtue of birth alone in that district does not serve the purpose, as that person may have studied elsewhere and may have forgotten the dialect of the home district. Further, Article 15(1) and Article 16(2) of the Constitution put a complete prohibition upon the State from discriminating persons on the basis of birth and place of residence in the matter of employment within the State. In the case of English Medium Students Parents Association (supra), the Hon’ble Supreme Court had held that:
All educational experts are uniformly of the opinion that pupils should begin their schooling through the medium of their mother tongue. There is great reason and justice behind this. Where the tender minds of the children are subject to an alien medium the learning process become unnatural. If inflicts a cruel strain on the children which makes the entire transaction mechanical. Besides, the educational process becomes artificial and torturous. The basic knowledge can easily be garnered through the mother tongue. The introduction of a foreign language tends to threaten to atrophy the development of mother tongue. When the pupil comes of age and reaches the Vth standard level, the second language is required to take it as a second language. At the secondary stage the three-language formula is introduced. However, in cases of non-Kannada speaking students grace marks up to 15 are awarded. Certainly, it cannot be contended that a student studying in a school from Karnataka need not know the regional language. It should be the endeavour of every State to promote the regional language of the State. In fact, the Government of Karnataka has done commendably well in passing this Government order. Therefore, to contend that the imposition of study of Kannada throws an undue burden on the students is untenable. Again to quota Mahatma Gandhi:
The medium of instruction should be altered at once and at any cost, the provincial languages being given their rightful place, I would prefer temporary chaos in higher education to the criminal waste that is daily accumulating.
As rightly contended by the learned Advocate General where the State by means of the impugned Government order desires to bring about academic discipline as a regulatory measure it is a matter of policy. The State knows how best to implement the language policy. It is not for the Court to interfere.
5.4 The Division Bench also relied on the judgment of the Apex Court in Kailash Chand Sharma v. State of Rajasthan and Ors. in which the bonus marks to the resident of a district and the resident of the rural area of the district was held to be impermissible. Another judgment of the Apex Court relied by the Division Bench was Harshendra Choubissa and Ors. v. State of Rajasthan and Ors. . The conclusions were recorded by the Division Bench in following words in paragraph 50 of the judgment:
50. Applying the principles laid down by the Apex Court in the aforementioned cases to the present case, we find that restricting the selection and preparation of merit list at the District level are not all justified and it amounts to discrimination. In the present case taking into consideration the exigencies the State Government had decided to prepare the merit list at the State level and for restoring it to District level the reasons advanced by the State Government are irrelevant. Thus, the action of the State in restoring the preparation of merit list from State level to District level is arbitrary and is violative of Article 15(1) and 16(2) of the Constitution of India.
5.5 The judgment of the Division Bench was challenged before the Apex Court in Rajesh Kumar Gupta’s case (supra). While considering the issue of preparation of merit list at the district level instead of State level, the Apex Court laid down following in paragraphs 16 and 17 of the judgment:
16. The Division Bench of the High Court came to the conclusion that the merit list could not be prepared on district-wise basis and that restricting the selection and preparation of merit list at the district level was not justified and amounted to discrimination. It was also found that though at one stage the State Government had decided to prepare the merit list on the State level, it was suddenly changed to the district level and the reasons advanced for the sudden change were found to be wholly irrelevant and unjustified. The action of the State Government in restoring the preparation of merit list from State level to district level was held arbitrary and violative of Articles 15(1) and 16(2) of the Constitution. The High Court has referred and relied on a number of judgments of this Court which have frowned upon recruitment on the basis of criteria restricted to candidates from specified local areas.
17. Although a feeble attempt was made by the counsel on behalf of the State respondents that different districts have different dialects and, therefore, it would be necessary to restrict the selection to candidates conversant and fluent in those regional dialects, we are not satisfied that adequate material was presented to the High Court on the basis of which this distinction could have been justified. In the first place, there was no material to indicate that dialects vary from district to district. Consequently, there was no material to indicate that a candidate from one district was not likely to be familiar with the dialect of another district for which he applied for training. There was also no material placed on record to indicate that training was to be in local dialect for the local school only. Finally, if the emphasis is really on the regional dialect, nothing prevented the State Government from making the knowledge of a specified regional dialect as preferential criterion for recruitment. For these reasons, we agree with the view taken by the Division Bench on this issue and hold that restriction of the selection and preparation of merit list at the district level was arbitrary and violative of Articles 15(1) and 16(2) of the Constitution.
6. The Apex Court while approving the judgment of the Division Bench noted that Division Bench had frowned upon recruitment on the basis of criteria restricted to candidates from specified local area. The restriction of the selection and preparation of the merit list at district level was held to be violative of Articles 15(1) and 16(2) of the Constitution of India, which two articles have been specifically noted by the Apex Court in its judgment, which are as follows:
15(1). The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
16(2). No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
Both the above articles prohibit discrimination against any citizen on the ground of place of birth. Article 16(2) provides that no citizen shall, on grounds only of…place of birth, residence or any of them be ineligible or discriminated against any employment under the State. In 2001 selection there was a restriction that a candidate could have applied only from his home district and the district-wise merit list was to be prepared in the manner as noticed above. Thus there was a clear restriction on the ground of place of birth or place of residence of a candidate, which was impermissible on principles as enshrined under Article 15(1) and 16(2) of the Constitution of India. The candidates were not eligible to apply against vacancies with regard to other districts, which was per se arbitrary and discriminatory. There cannot be any dispute to the proposition as laid down by the Division Bench of this Court in State of U.P. and Ors. v. Anant Kumar Tiwari case and the Apex Court in Rajesh Kumar Gupta’s case (supra). The question, however, is as to whether the ratio of the said judgments is to be applied in the selection of 2007. In 2007 selection, as noticed above, by the Government order dated 13th July, 2007 the restriction from applying from home district of a candidate has been withdrawn and a candidate has been permitted to apply against vacancies of any district irrespective of place of birth or place of residence. The offending part of earlier restriction, which was frowned upon by the Division Bench of this Court and approved by the Apex Court in Rajesh Kumar Gupta’s case (supra) is not present in the Special Basic Training Course-2007, a candidate having been permitted to apply from any district of his choice. It is further noted that in 2001 selection the advertisement was issued by the Director, N.C.E.R.T. and the applications were submitted to Director, N.C.E.R.T. whereas in 2007 selection the advertisements have been issued by Principal of respective D.I.E.Ts. of each district and the applications are submitted to the Principals of each D.I.E.Ts. of different districts. The number of candidates, who are being taken for imparting Special Basic Training Course-2007 is akin to the number of vacancies of teachers laying in the district. The object of imparting training is to make the said candidates eligible for appointment as Assistant Teachers in the primary institutions of the districts. In these circumstances, it cannot be said that inviting application by Principals of the D.I.E.Ts. against the number of the candidates to be taken by respective D.I.E.Ts. and these candidates will be imparted training at different D.I.E.Ts. of the district in any manner offend Articles 14, 15 or 16 of the Constitution of India. Every candidate has opportunity to make an application. It is the choice of a candidate to apply against the vacancies of all the district or few of them, there being no restriction of choice no violation of Articles 14, 15 or 16 can be sustained.
7. The submission of counsel for the petitioners that applying in large number of districts by a candidate is inconvenient and expensive cannot be said to be a sufficient ground on which preparation of merit list by the respective D.I.E.Ts. can be faulted with. Every applications, which have been received against the vacancies laying in a district, which has been advertised by the Principal of a D.I.E.T., shall be considered and merit list will be prepared accordingly. A person who has not applied for a vacancy in one particular district cannot complain that in that district a person who was of less merit has been selected.
In view of the aforesaid, the preparation of district-wise merit list for Special Basic Training Course-2007 in accordance with the Government order dated 10th July, 2007 cannot be said to be arbitrary or discriminatory. The first submission of learned Counsel for the petitioners, thus, cannot be accepted.
8. Before coming to the second head of submission, the submission raised by Sri K.S. Kushwaha, learned Counsel for the respondents, that selected candidates having not been impleaded, the writ petition is not maintainable requires to be considered. According to the schedule of programme as enclosed as Annexure-6 to the counter affidavit in Writ Petition No. 52429 of 2007 (Arun Kumar and Ors. v. State of U.P. and Ors.) the date of publication of interim merit list was scheduled as 20th December, 2007. The interim merit list having not yet been published, it cannot be said that any candidate has been selected so as to require the petitioners to implead the selected candidates. The selection having not yet been made, the writ petition cannot be said to be suffering from any defect of non joinder of necessary party.
8.1 Now comes the second head of submission of learned Counsel for the petitioners. Before proceeding to consider the submission, it is necessary to notice the relevant requirement as laid down in the Government order dated 10th July, 2007. Paragraph 11 of the Government order dt. 10th July, 2007 provides for selection on the basis of percentage of marks received by a candidate. Paragraph 11 of the Government order is as under:
11- izf’k{k.k gsrq vH;fFkZ;ksa dh lwph rS;kj djrs le; xq.kkad dk vkx.ku gkbZLdwy] b.VjehfM;V] Lukrd ,oa ch0,M0 ds izkIrkad izfr’kr ds ;ksx ds vk/kkj ij fd;k tk;sxk A ch0,M+0 lEcU/kh ijh{kk esa vH;FkhZ;ks }kjk dqy izkIrkadks dks izfr’kr vkxf.kr fd;k tk;sxk A bl izdkj dsoy pkj ijh{kkvks ds vadks ds izkIrkad izfr’kr dk ;ksx xq.kkad fu/kkZfjr djus dk vk/kkj gksxk A
8.2 The requirement of the Government order, as noticed above, is to prepare the merit index on the basis of percentage of marks received by a candidate in High School, Intermediate, Graduation and B.Ed. There is no difficulty in taking percentage of High School, Intermediate and Graduation since in the said examination percentage is given while adding the marks of both theory and practical. The difficulty arises only with regard to computing the percentage of marks of B.Ed, or teaching qualification. As noticed above, the candidates apart from B.Ed., i.e., those who have passed B.P.Ed., C.P.Ed., D.P.Ed, or L.T. have also been made eligible to apply. The petitioners’ case in the writ petition is that respondents while computing the percentage of B.Ed, are adding the marks obtained in theory and practical and then taking the percentage of the same for purposes of merit index, which is causing great disparity and discrimination due to the fact that different Universities provide for different maximum marks in theory and practical and those candidates who have passed from an University which has provided more maximum marks for practical are in advantageous position.
8.3 Learned Counsel for the petitioners submitted that even if two candidates who have passed theory and practical examination from different University with same merit, i.e., with same percentage separately are liable to be allotted different merit index depending on the total of maximum marks awarded by the University. This has been clearly pleaded in paragraph 23 of Writ Petition No. 54049 of 2007 and explained in Annexure-19 to the said writ petition. It is useful to refer to the table given in Annexure-19 to the writ petition, which gives comparison of marks awarded by four Universities to a candidate. In the chart illustration has been given that if all the Universities awarded 50% marks in theory and 90% marks in practical in what manner their index ultimately to be found shall vary. It is useful to quote the said illustration, which is as follows:
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8.4 As explained by learned standing counsel under the instructions issued for Special Basic Training Course-2007 the percentage of teaching qualification is to be arrived at by adding the marks secured in theory and practical and then arriving at the percentage. By applying this method candidate having passed from Kanpur University, Meerut University and Bhopal University with same percentage of marks in theory and practical, i.e., 50% and 90% respectively will receive advantage of 6%, 10% and 13.34% respectively. In another writ petition, i.e., Writ Petition No. 50967 of 2007 illustration has been given showing comparison of marks of a candidate who has passed B.P.Ed, and B.Ed, with same percentage in theory and practical. The illustration has been taken of both B.P.Ed, and B.Ed, candidates who have passed theory with 60% and practical with 90% and applying the procedure, which has been adopted by the respondents, there is variation in the merit index of both the candidates although they have passed B.Ed, and B.P.Ed, with same percentage. Following illustration clearly demonstrate, which has been pleaded in paragraph 25 of Writ Petition No. 50967 of 2007:
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;ksx& izkIrkad&lS)kfUrd~$izk;ksxkRed izSfDVdy$O;ogkfjd izSfDVdy 360$180$360 900
fof'k"V ch0Vh0lh0 eas xq.kkad & 900 @ 1200 100 75 izfr'kr
ch0,M0 iw.kkZd & 800
lS)kfUrd iz;ksxkRed
600 200
60 izfr'kr 90 izfr'kr
360 180
;ksx& izkIrkad$izk;ksxkRed 360$180 540
fof'k"V ch0Vh0lh0 esa xq.kkad 540@800 x 100 67-5 izfr'kr
leku izfr'kr ikus ds ckn Hkh nksuks ch0ih0,M0@ch0,M0 ds vUrj &
ch0ih0,M0 75 izfr'kr rFkk ch0,M0 67-5 izfr'kr A
esfjV vUrj & 7-5 izfr'kr
9. Different University awards degrees which have different maximum marks in theory and practical. A candidate who has obtained a particular percentage from one University can be treated to be equal in merit to a candidate who has obtained similar percentage of marks from another University. The merit of candidate is reflected from percentage which he has received in particular examination, is also the basis of selection as provided in paragraph 11 of the Government order dated 10th July, 2007. It is relevant to note that counter affidavits in both the writ petitions i.e., Writ Petition No. 54049 of 2007 and 50967 of 2007 have been filed but no specific reply has been given to the averments made in paragraphs 23 and 25 respectively of the above writ petitions nor any justification has been given as to how the variation in merit index of a candidate can be justified only on the ground of different maximum marks prescribed by different Universities for practical and theory.
Sri K.S. Kushwaha, learned Counsel appearing for the respondents submitted that in case the methodology as contended by counsel for the petitioners is accepted there will be variation. He has submitted that there will be minimum variation if the methodology of Special Basic Training Course-2007 is adopted. Following illustration was given by learned Standing Counsel to demonstrate his point:
gkbZLdwy
b.VjehfM;V
Lukrd
Ch0
,M0
egk;ksx
fyf[kr
iz;ksxkRed&1
iz;ksxkRed&2
iw0
izk0
izfr
iw0
izk0
izfr
iw0
izk0
izfr
1
2
3
4
5
6
7
8
9
10
11
12
13
60%
60%
60%
600
360
60%
300
240
80%
–
–
–
320%
60%
60%
60%
600
360
60%
300
240
80%
200
160
80%
400%
60%
60%
60%
600
360
60%
300
240
80%
–
–
–
246.66%
900 600 66-66 izfr'kr
iw.kkZd ;ksx izkIrkad ;ksx izfr'kr izkIrkad
Learned standing counsel from the above chart contended that in case in practical and theory a candidate is shown to have 60% and 80% respectively, there will be difference as tried to explain by him by above chart. The above chart has three columns. In the first column there is one practical in which a candidate has secured 80% and in theory 60% in B.Ed. In the second column candidate secured 60% in theory and 80% in practical whereas there are two practicals. In the third column the marks obtained in theory and practical are added and then percentage 66.66 was found out. In case the criteria as contended by the petitioner is applied, the merit index of all the candidates will be same, which is demonstrated as below:
gkbZLdwy
b.Vj
Lukrd
ch0,M0
egk;ksx
fyf[kr
iz;ksxkRed&1
iz;ksxkRed&2
iw0
izk0
izfr
iw0
izk0
izfr
iw0
izk0
izfr
1
2
3
4
5
6
7
8
9
10
11
12
13
60%
60%
60%
600
360
60%
300
240
80%
–
–
–
HS, Inter &
Gr.
60+60+60=
180
B.Ed.
60+80
—–=70
2
G.
Total 250
60%
60%
60%
600
360
60%
300
240
80%
200
160
80%
HS, Inter &
Gr.
60+60+60=
180
B.Ed.
60+80
—–=70
2
G.
Total 250
Learned standing counsel has contended that scope of interference with any policy decision of the State is very limited. He submits that policy framed by the State for conducting the selection for Special Basic Training Course-2007 cannot be
interfered while exercising jurisdiction under Article 226 of the Constitution. Learned standing counsel has placed reliance on various judgments of this Court as well as the Apex Court, which are; Ekta Shakti Foundation v. Govt. of NCT of Delhi ; State of H.P. and Anr. v. Padam Devi and Ors. ; Krishnan Kakkanth v. Govt. of Kerala ; Ugar Sugar Works Ltd. v. Delhi Administration and Ors. ; State of Orissa and Ors. v. Gopinath Dash and Ors. ; Tamil Nadu Education Department v. State of Tamil Nadu and Ors. Learned Counsel for the petitioners on the other hand has contended that any policy decision, if arbitrary, can be interfered with by this Court in exercise of writ jurisdiction. He has relied on judgments of the Apex Court as well as of this Court Krishnan Kakkanth v. Govt. of Kerala and Ors. ; L. Chandra Kumar v. Union of India and Ors. ; Ugar Sugar Works Ltd. v. Delhi Administration and Ors. ; Union of India and Anr. v. International Trading Co. and Anr. 1992 Supp. (2) S.C.C. 481; National Institute of Mental Health & Neuro Sciences v. Dr. K. Kalyan Raman and Ors. and ; Union of India and Ors. v. 0. Chakradhar.
10. The present is a case where the State has taken decision to make selection for Special Basic Training Course on the basis of percentage of marks received by a candidate in four examination, which are High School, Intermediate, Graduation and B.Ed. (B.P.Ed., C.P.Ed., D.P.Ed., L.T.). Present is not a case where any question of interfering with the aforesaid policy decision of the State as provided in paragraph 11 of the Government order dated 10th July, 2007 that selection is to be made on the basis of percentage of marks received in the aforesaid four examinations. There is no difficulty with regard to finding out the percentage of marks of High School, Intermediate and Graduation but difficulty has been highlighted by the petitioners only with regard to computing the percentage of marks in B.Ed. and other training qualifications. On the method adopted by the respondents in arriving at the percentage of marks great disparity and discrimination is noticed depending on the maximum marks allotted by a particular University to a candidate. The merit of a candidate can be expressed in percentage of marks. The candidate passing from different University with same percentage in theory and practical have to be treated to have passed examination with equal merit and there merit index should not vary on the ground that different Universities have allotted different maximum marks for theory and practical. The computation of percentage as adopted by the respondents is clearly arbitrary and discriminatory, which cannot be upheld.
11. Thus in view of the aforesaid, the petitioners have made out a case for issuing a direction to the respondents to compute the percentage of marks of training qualification taking average of percentage of marks in theory and practical of the said examination. In case there are more -than one practical, the average marks of all the practicals, which are entitled to be reckoned with are to be taken. According to paragraph 11 of the Government order dated 10th July, 2007 the emphasis is on the percentage of marks. Thus taking the percentage of marks obtained by candidate in theory and practical is in consonance with the criteria as laid down in paragraph 11 of the Government order and also satisfy the object of the selection. Thus the second submission raised by counsel for the petitioners has substance and a case has been made out for issuing a direction to the respondents to take the aggregate percentage of marks of theory and practical in the B.Ed, or other teaching qualification. For example, a candidate has passed B.Ed. with 60% in theory and 80% in practical, his marks to be added in B.Ed. should be 70%, i.e., aggregate percentage of theory and practical. The respondents are directed to add the marks of the training qualification of the candidate accordingly and the merit list of the candidates be drawn and issued accordingly.
12. In the result, the writ petition is partly allowed. The prayer for quashing the Government order dated 10th July, 2007 in so far as it directs for preparation of district-wise merit list is refused whereas the prayer of the petitioners for directing the respondents to prepare the merit index of candidates by adding percentage of marks of theory and practical of B.Ed. and other training qualifications is allowed. The respondents may prepare and issue the merit list accordingly.
Parties shall bear their own costs.