- (1.) This order disposes of the above noted two connected writ petitions. The facts are being taken from CWP No. 21387 of 2011. The petitioners before this Court are members of the Other Backward Classes (OBC). They appeared for the Punjab State Teacher Eligibility Test (PSTET)-2011. The written examination was held on 3.7.2011. Petitioner No. I secured 88 marks while petitioner No.2 secured 84 marks. Both were declared fail in TET Paper-II in the PSTET exam. The petitioners plead that they have been wrongly declared fail. They ought to have been given relaxation of 5% as OBC candidates. If they qualify the examination they have a right of consideration for appointment as Teachers to impart instructions to students from Class I to VIII in a school. The issue involved owes its genesis to the promulgation of the Right of Children to Free and Compulsory Education, Act, 2009 (for short RTE) enacted by the Government of India. Section 23 of the Act lays down qualifications for appointment and terms & conditions of service of Teachers. Section 23 itself does not lay down the minimum qualifications for being eligible for appointment as a Teacher but refers to such minimum qualifications as are laid down by an "Academic Authority" authorized by the Central Government by a notification in this behalf.
(2.) The Central Government has issued a notification on 31.3.2010 authorizing the National Council for Teacher Education (NCTE) as the 'Academic Authority' to lay down the minimum qualifications with reference to Section 23 of the Act. In turn the NCTE has issued two notifications dated 23.8.2010 and 29.7.2011 laying down minimum qualifications of a person to be become eligible for appointment as a teacher for Classes I to VIII. A candidate in order to become eligible for appointment as a teacher in a school is required in terms of these notifications to pass the Teacher Eligibility Test (TET) to be conducted by the 'appropriate Government' in accordance with the guidelines framed by the NCTE for the purpose. What is material for the present case is that the NCTE in its notification has provided relaxation of 5% in the qualifying marks for candidates belonging to reserved categories such as SC/ST/OBC/PH. This reservation policy is incorporated in the notification dated 29.7.2011 (P-3). The respondent-State of Punjab is the designated 'appropriate Government' with respect to its State charged with responsibility of conducting PSTET-2011. The holding of the test was delegated and entrusted by the Department of School Education, Government of Punjab to the State Council of Education, Research and Training (for short 'SCERT), Punjab, Chandigarh-respondent No. 4. It is the SCERT, Punjab that published the guidelines for the PSTET (P-5). The passing of the PSTET confers no right of recruitment or employment. It is only one of the eligibility criteria for consideration for appointment. The PSTET guidelines require a score of 60% or more in the examination to be considered as 'pass'. This score would give a right to a candidate to compete for appointment in schools run by Government, Local Bodies and aided and unaided institutions throughout the land. The guidelines, however, lay down that the States "(a) May consider giving concessions to persons belonging to SC/ST, OBC, differently abled persons etc., in accordance with their extant reservation policy;". This condition in the guidelines brings out the dichotomy between the decision of the 'Academic Authority'-NCTE (P-3) and the guidelines of the 'appropriate Government' (Punjab Government in the present case) (P-5). While NCTE grants relaxation upto 5% in the qualifying marks, the guidelines stultify it by saying that State Government may consider it in accordance with its extant reservation policy. NCTE uses the word "shall" while the guidelines use the word "may". It is broadly this issue, which has to be resolved in the present case. In case, the relaxation is given to the petitioners of 5% they would have to be declared pass in the PSTET.
(3.) Before this Court proceeds further in its attempt to resolve the issue a few crucial dates would be absolutely necessary to be kept in view. The PSTET examination process started on 11.2.2011. The matter of grant of relaxation upto 5% in the qualifying marks for 'SCs/STs etc' in accordance with the extant policy of the State Governments/ UTs and other school managements was considered by the NCTE in its meeting held on 16.3.2011, wherein it was decided to grant the relaxation upto 5%.;