Dinesh Maheshwari, J. - (1.) THE learned Counsel for the parties have been heard at length on the prayer made by the Petitioners in this batch of petitions for interim relief and so also on the prayer made by the Respondents for vacation of the interim order earlier passed by this Court.
(2.) FOR only the question relating to interim relief being considered herein, it does not appear necessary to dilate on all the factual and legal aspects related with these matters that are left to be considered at the time of final hearing of the petitions. Suffice it shall be to refer in brief to the basic facts and background aspects of these cases. These writ petitions have been filed by the Petitioners essentially stating their grievance against the criteria as laid down by the National Council for Teacher Education ('National Council' hereafter) in exercise of powers under Sub -section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 ('the Act of 2009' hereafter) in a notification issued on 23.08.2010 and published in the Gazette on 25.08.2010 (Annex. 4); and further grievance against the consequential conditions laid down for the purpose of Rajasthan Teachers Eligibility Test - 2011 ('TET' hereafter) in the guidelines/advertisement dated 30.03.2011. In some of the petitions, the writ Petitioners are aggrieved of the criterion whereby the candidates having commerce subject in graduation are sought to be deprived of the opportunity of appearing in the said TET; and in some of the petitions, the Petitioners are aggrieved of the criterion prescribing 50% marks for eligibility to appear in the said TET. For ready reference and for a look into the nature of the case, the reliefs as claimed in the lead case, CWP No. 3068/2011, are reproduced as under: A/ By an appropriate writ order or direction, the Gazette notification dated 23.8.2010 (Annex. 4) may kindly be quashed and set aside. To the extent that it debars the holder of qualification of graduation in Commerce as ineligible for TET. B/ By an appropriate writ, order or direction, the Respondents may kindly be directed to consider the Petitioners eligible for TET with B.Com. as graduation subject in combination with B.Ed. C/ By an appropriate writ, order or direction, the guidelines/advertisement dated 30.3.2011 (Annex. 5) for RTET 2011 may kindly be quashed and set aside to the extent that it disqualifies the Petitioners on account of B.Com. With B.Ed. D/ Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the Petitioner. E/ Writ petition filed by the Petitioner may kindly be allowed with costs.
(3.) WHEN these cases were taken up for consideration on 15.04.2011, after considering the submissions made on behalf of the Petitioners and so also the qualification laid down in the relevant service rules in the State of Rajasthan namely, the Rajasthan Education Service Rules, 1970, the Rajasthan Education Subordinate Service Rules, 1971 and the Rajasthan Panchayati Raj Rules, 1996, a co -ordinate Bench was, prima facie, of opinion that the conducting of TET through the Board of Secondary Examination was unwarranted because such eligibility of TET has not been provided in the said rules; and it was observed that unless the relevant rules were amended as to incorporate such TET within their ambit, it was meaningless to conduct the TET and the candidates cannot be compelled to appear in such a test. While calling upon the Advocate General to apprise the rationale behind conducting TET beyond contemplation of rules and so also to answer as to how the State Government could compel the candidates possessing B.Ed./B.S.T.C. and other qualification to appear in such a test, the whole process of the Rajasthan Teachers Eligibility Test -2011 was ordered to be stayed. The order dated 15.04.2011 as made in the lead case CWP No. 3068/2011 reads as under: S.B. Civil Writ Petition No. 3068/2011. Date of Order April 15, 2011 Hon'ble Mr. Justice Gopal Krishan Vyas Dr. Pushpendra Singh Bhati for the Petitioners. In this writ petition, the Petitioners have prayed for quashing gazette notification dated 23.08.2010, Annex. -4 issued by the National Council for Teachers Education, so also, guideline/advertisement issued by the Board of Secondary Education, Ajmer whereby applications are invited for Teachers Education Test. In some of the writ petitions filed along with this writ petition, challenge has been made on the ground that prescribing 50% marks for eligibility to appear in TET examination is illegal. Further, it is prayed that opportunity of appearing at the TET examination may be allowed to the candidates having Commerce subjects in Graduation. After hearing learned Counsel for the parties, I have perused the qualification laid down in Rajasthan Education Service Rules, 1970, Rajasthan Educational Subordinate Service Rules, 1971 as well as Rajasthan Panchayati Raj Rules, 1996, in which, qualification and eligibility have been prescribed for recruitment on the posts of Teacher Grade -III and Teacher Grade -II. Upon perusal of the above rules, it emerges that it is nowhere provided in any of the service rules framed by the State Legislature that candidate must possess eligibility of TET for the purpose of recruitment on the post of Teacher; meaning thereby, conducting TET examination through Board of Secondary Education appears to be unwarranted because without prescribing eligibility of possessing the TET in the relevant rules for recruitment on the posts of Teacher Grade -III and Teacher Grade -II no candidate can be compelled to appear in the TET examination. In this view of the matter, I deem it just and proper to restrain the State Government from conducting TET 2011 examination because unless relevant rules are so amended as to incorporate such test within the ambit and scope of the relevant rules for prescribing eligibility, it is meaningless to conduct the test and candidates cannot be compelled to appear in such test. Further, it is also required to be observed that not only the State Government is conducting TET 2011 examination through Board of Secondary Education but have further prescribed so many hurdles like possessing certain percentage of marks and, then, depositing certain amount towards fee, etc., therefore, I am of the opinion that without amending relevant rules or prescribing any eligibility of TET in the rules, it is not proper for the State Government to conduct such examination for the purpose of recruitment of Teachers Grade -III and Teachers Grade -II which is to be made on the basis of existing qualification laid down in the rules. Issue notice. Notice be also issued on the stay application. Let notice be also issued to Advocate General to apprise this Court the rationale behind conducting Rajasthan Teachers Eligibility Test - 2011 beyond the contemplation of the rules and, so also, how the State Government can compel candidates possessing B.Ed./B.S.T.C. and other qualifications to appear in such test. Meanwhile and until further orders, the whole process of Rajasthan Teachers Eligibility Test - 2011 is stayed. The Respondents are directed to continue with the recruitment process strictly in accordance with law as per the existing qualification and eligibility provided in the relevant rules. Rule is made returnable on 04.05.2011. List the case on May 04, 2011. Sd/ -Gopal Krishan Vyas J. 6. The Respondents Nos. 1 and 3 have filed reply to the writ petition and it has, inter alia, been submitted that the TET is being conducted in accordance with the Act of 2009 and the notification issued on 23.08.2010 while essentially contending that now, the candidates shall be required to qualify such eligibility test for securing a teaching job particularly relating to elementary education. Without dilating on various submissions made in the reply, suffice is to notice for the present purpose that on behalf of the Respondents, an additional affidavit has been filed stating, with reference to the communication received from the National Council dated 29.04.2011, that a decision has been taken to include commerce graduates in the qualifications prescribed for appointment as teachers for Class 6th to 8th. It has also been pointed out that the Principal Secretary, School Education, Government of Rajasthan has informed the Secretary and the Coordinator, TET, Ajmer that relaxation is being given to the candidates belonging to SC/ST/OBC/Disabled persons category and so also Widow and Divorced Women candidates and, therefore, a relaxation of 5% in the qualifying marks will be admissible to such candidates for such TET. The contents of the affidavit dated 01.05.2011 are as under: 2. That during pendency of the present writ petition, the Member Secretary, National Council for Teachers Education, New Delhi has issued a letter No. F No. 61 -1/2011/NCTE/N and S dated 29.04.2011, whereby, it has been informed that in a meeting held at MHRD on 08th April, 2010, a decision has been taken to include B.Com. Graduates also in the qualifications prescribed for appointment as a teachers for classes 6 -8, therefore, the appropriate changes in the Teachers Eligibility Test may be made. Formal notification in this regard will be issued by the answering Respondent. A copy of the letter dated 29.04.2011 is being enclosed herewith and marked as Annexure -AA/1. 3. That it is further submitted that the Principal Secretary, School Education, Government of Rajasthan, Jaipur vide letter dated 04.04.2011 has informed Secretary and Coordinator, RTET, Ajmer that the State Government has been giving relaxation to the candidates belonging to SC/ST/OBC/Disabled persons and Widow and Divorced Women candidates in the matter of admission to various teachers education courses. Therefore, a relaxation of 5% in the qualifying marks Sr. Secondary (Or its equivalent) or in B.A./B.Sc., as the case may be will be admissible to all the candidates belonging to SC/ST/OBC/Disabled persons and Widowed and Divorced Women for appearing in the Rajasthan Teachers Eligibility Test. A true and correct copy of the letter dated 04.04.2011 is being enclosed herewith and marked as Annexure -AA/2. 7. During the course of submissions, the Respondents have prayed for vacation of the interim order and it has vehemently been argued that a total stay over entire process of TET is likely to cause serious inconvenience to the Government and so also injury to the thousands of candidates who are waiting to take the said examination. It is also submitted that total stay over entire process may not serve any purpose and, on the contrary if the process of examination is ultimately found to be countenanced by, and in conformity with, law then, all the prospective candidates including the Petitioners might suffer irreparable loss and even the recruitment to the post of teacher in the State of Rajasthan would be in jeopardy. 8. During the course of submissions, the learned Counsel Messers P.S. Bhati, N.S. Charan, H.S. Choudhary and Vishwajeet Joshi have particularly submitted that when such eligibility requirement as that of TET does not find incorporation in the relevant service rules and otherwise, the Petitioners do possess the qualification of B.Ed./BSTC as per the requirements of the relevant rules, there is no reason that they be forced to take TET for the purpose of eligibility for recruitment to the post of teacher. It is also urged that such TET is rather contrary to the mandate of Article 41 of the Constitution of India. It is also submitted that the eligibility conditions are otherwise governed by the regulations made by the National Council in the year 2001 and when such regulations have not been amended nor relevant service rules have been amended, there is no reason that the Petitioners are forced to appear in TET. The learned Counsel, therefore, submitted that the interim order deserves to be confirmed and holding of TET deserves to be stayed. However, the learned Counsel submitted in the alternative that if at all TET is proceeded with, the Petitioners be permitted to appear therein and be not deprived of their chance to appear for being the commerce graduate or for falling below in any particular percentage of marks in any of the qualifying examination. The other learned Counsel appearing for the respective Petitioners have, however, confined their prayer to the effect that the Petitioners be allowed to appear in TET. 9. The learned Additional Advocate General, on instructions, submitted that the State Government has taken the policy decision that the commerce graduates and the persons having 45% marks in graduation may be permitted to appear with applicable relaxation in the concerned category also. The learned Additional Advocate General submitted that the State Government does not intend to oppose the interim relief prayer of the Petitioners for permission to appear in TET but reiterated his submission that the TET may be allowed to be proceeded with. During the course of submissions, it was also submitted that for the last date of submission of forms having expired, the Government is willing to extend the same by a week and so also to extend the date of holding the examination. In conformity with the submissions made, an additional affidavit of the Officer -incharge has been filed on 05.05.2011 stating as under: 2. That the Department of School Education, Government of Rajasthan , has decided that the last date for submission of the applications for the TET is fixed in such a manner that candidates get at -least a week's time for submitting their applications and accordingly at -least a week's time further will be granted for submitting the application forms for TET. Likewise, the date of examination already fixed as 22nd May, 2011 will also be extended and the same will be held on or after 7th June, 2011. 3. That the Board of Secondary Education will also allow the Petitioners to appear in TET provisionally if their application form is in conformity with the requirement. 10. Having given a thoughtful consideration to the submissions made and having examined the matter in its totality, while arguable questions do appear arising in the matter and calling for determination by this Court but then, so far the nature of interim relief is concerned, in the totality of facts and circumstances, it does not appear proper or necessary to continue with the earlier interim order whereby the whole process of TET has been ordered to be stayed. This Court finds force in the submissions of the learned Additional Advocate General that if ultimately TET is found to be countenanced by, and in conformity with, law, not holding of the same would cause inconvenience and injury to all the concerned including the Government and so also the prospective candidates. 11. This Court is of view that merely making out a prima facie case is not decisive for grant of interim relief and the aspects of balance of convenience and irreparable injury do deserve due consideration. The aspects of balance of convenience and irreparable injury in these matters are squarely against the prayer for blanket stay over the entire process of TET. On the other hand, with mere holding of TET, no loss is going to be caused to the Petitioners. 12. So far appearance in the examination is concerned, it goes without saying that it is the choice of a concerned candidate whether to take such examination or not. However, in the given status of Rules, the Act of 2009, and the notifications thereunder, this Court finds no reason to put the entire process at halt during the pendency of these writ petitions. 13. So far the other part of the prayer on behalf of the Petitioners is concerned where they have sought interim orders for permission to take the examination, broadly, it is found from the submissions made by the learned Additional Advocate General that the Respondents have already taken conscious decision to permit the commerce graduates to take the examination and so also to relax the eligibility requirements regarding marks obtained in the qualifying examination. In this regard, this Court is of opinion that if a candidate is otherwise possessing the requisite qualifications as contemplated by the notification, he may be provisionally permitted to appear in TET without referring to the percentage of marks obtained in such qualifying examination; but, of course, all such arrangements shall remain subject to the final orders to be passed in these writ petitions. 14. In the result, the stay applications as moved in these writ petitions are partly allowed; the interim order dated 15.04.2011 as passed in CWP No. 3068/2011 and other similar nature orders made in these petitions are modified; and the Respondents are permitted to go ahead with TET but with the requirements that: (a) The Respondents shall announce an extended date for submission of the application forms as assured; (b) The Respondents shall also announce an extended date of examination as too assured by them; (c) The Respondents shall permit the Petitioners to appear in TET provisionally, irrespective of the percentage of marks obtained by the Petitioners in the qualifying examination, if they are otherwise found eligible and their application forms are in conformity with the requirements; and, of course, subject to the final orders to be passed in these matters. 15. Having regard to the facts and circumstances of the case, it does appear appropriate to take up these petitions for hearing at an early date. Therefore, list these petitions for hearing at this stage on 29.06.2011. 16. The stay applications and the applications for vacation of interim order as made in all these cases stand disposed of accordingly.;