1.0 Rule. Learned advocate for the respondents waive service on behalf of the respective respondents. With the consent of both the sides, the matter is taken up for final hearing today itself.
2.0 By way of present petition, the petitioners prayed for direction holding that Clause 5 of the Circular dated 27.04.2011 issued by respondent No. 1 is unjust, unreasonable, arbitrary and infringing the fundamental rights of the petitioners and in the alternative to direct the respondent No.1 to the effect that respondent No. 1, for the purpose of recruitment shall consider the marksheet which is higher in merits among all the attempts made in TET for the purpose of improving the past score and not the last mark sheet.
3.0 The facts of the case in brief are as under:
3.1 The petitioners made application with respondent No. 1 for appearing in TET examinations. All the petitioners cleared their respective TET examination. As per the guidelines of the National Council for Teachers Education, a candidate who has qualified TET examination can appear again for improving his/her score and there are no impediments on the number of attempts being made by any candidate for improving his/her previous merit. Since there was no bar for giving as many attempts for improving score of TET, the petitioners made application pursuant to the advertisement issued by respondent No.1. Their hall tickets came to be issued and examinations were conducted. The petitioners again gave attempt in TET on a solemn belief that out of two examinations the certificate with the highest marks would be considered by the Government for the purpose of recruitment.
3.2 After giving the examination, the Government issued a Circular which mentions that if any candidate has reappeared in TET exam for the purpose of improving score, then the last mark sheet of the candidate shall be considered for the purpose of recruitment. Since the impugned decision of the respondent is not in consonance with the guidelines framed by the respondent No.2, the petitioners preferred present petition.
4.0 On 06.09.2012 this Court passed the following order which reads as under:
“ This Court has issued notice for the limited purpose of Clause5 mentioned at page number 157 of the petition where even the marks which were valid for 5 years will not be considered only because he has failed in the last attempt.
In that view of the matter, without disturbing Clause5 (at page No.157 of the petition) last marks will come into operation in view of clause5. However, no specific statement is made by petitioners that out of 64 petitioners, how many of them have failed in the last examination.
In that view of the matter, Mr.Pahwa, requests for time, S.O. to 7th September, 2012.”
5.0 Pursuant to the order dated 06.09.2012, petitioner No. 1 filed further affidavit wherein it is stated that except petitioner No. 60 Mr.Mineshkumar Laxmanbhai Amin all the other petitioners have failed in the last attempt. It is further submitted that petitioner No.60 has though passed in the last attempt, his score in the last examination was less than what he had secured in his previous attempt. It is further stated that petitioner No. 62 Ms. Sumitraben Ramanbhai Patel could not attend the last examination and therefore, she deemed to have been failed. By virtue of operation of clause 5, all the petitioners except petitioner No. 60 thus have become disqualified for the purpose of recruitment.
6.0 Affidavitinreply is filed by the respondent wherein it is stated that on plain reading of Clause 5 of Circular it will be culled out that it is not mandatory for the participant to give further examination of TET. It is only if he chooses so, he can appear in the TET Examination again which they may be taken in 5 years as the time period for the certificate issued in TET examination is fixed for 5 years. Therefore, it is made clear to all concerned that if they appear in further examination which may be taken within 5 years, then the last result of the TET examination will be considered for the appointment.
7.0 As a result of hearing and perusal of the record, it is clear that the only question raised in the petition is with regard to the reasonableness of clause 5 of the Circular dated 27.4.2011 which states that if the candidate chooses to appear in further TET examination which may be conducted within five years, then the last result of the examination will be considered for the purpose of appointment.
8.0 According to the petitioners, this stipulation is unreasonable, but failed to appoint out as to how the same is unreasonable or arbitrary. It is true that the candidate has been given an option to appear in further examinations to improve his marks. If the clause is truly interpreted, it would be clear that such stipulation is meant only for improving the marks and not otherwise. Therefore, a candidate who is confident of getting higher marks only needs to attend the examination. If such a candidate appears and scores higher marks, his such last marks would be considered irrespective of whether the marks are higher or lower.
8.1 There is no rule that if one candidate scores less marks then his last mark should be considered and scores higher marks then the last marks should be considered. If such a free hand is given, all the candidates will appear in the examinations as a routine course as he or she will know that even if he/she scores less marks, the marks of last examination would be considered. There cannot be such a stipulation for the simple reason that the respondent authority is not supposed to take examination of all the candidates who are not going to score higher marks. Time, money and manpower are required to conduct such examination. If there is a universal rule that a candidate can go on appearing in the examination without scoring higher marks, it would defeat the purpose of giving opportunity to score higher marks.
8.2 The sole purpose of the stipulation is to extend opportunity to deserving candidates and not to all. Therefore only those who are confident to score higher marks needs to appear in the subsequent examination and such a practice would reduce the burden of the concerned authority. I am therefore of the view that there cannot be any arbitrariness in considering the marks obtained in the last examination by a candidate if the candidates appears for examination for scoring higher marks.
8.3 However, the contention that if one fails in the last examination, then his last marks should be considered in case he passed in the earlier examination should be accepted. Suppose a candidate appears in the first instance and passes in the said examination and then he appears in the subsequent examination for scoring higher marks and fails in the same, it would work against his interest. In this case he had already passed in the earlier examination and by chance he could not succeed through the next examination. It is an admitted fact that the validity of the first examination would be for a period of five years. Therefore, if one fails in the subsequent examination, then he cannot be deprived of his earlier success which is already in operation for five years. Therefore this Court is of the opinion that if one passes in the earlier examination and thereafter fails in the subsequent examination, then it would be in the interest of the candidate to consider his result of ‘passing’ in the last examination which is already in operation.
9.0 In the premises aforesaid, it is held that the stipulation that if one scores less marks in the subsequent examination than the earlier examination, the last marks obtained by him shall be considered for all purposes. There is no illegality in clause 5 of the Circular dated 27.04.2011. However, it is held that if one passes in the earlier examination and he fails in the subsequent examination, his earlier result of ‘passing’ the examination which is already in operation for five years shall be considered. It is clarified and ordered accordingly. Rule is made absolute to the aforesaid extent with no order as to costs.
10.0 It is also observed that If the petitioners have not appeared in the subsequent examinations and if they had passed in the earlier examination and are qualified, their case will be considered by the respondent authority.
(K.S.JHAVERI, J.) niru*