High Court
Legal Reasoning
1 RA / 36 / 2025 + IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADREVIEW APPLICATION NO. 36 OF 2025 IN WP/5354/2024Jyoti Gorakhnath Gaikwad.. Applicant VersusThe State of Maharashtra through Secretary and others.. RespondentsANDREVIEW APPLICATION NO. 37 OF 2025 IN WP/3916/2024Nilesh Shivaji Patil and others.. Applicants VersusThe State of Maharashtra through Secretary and others.. Respondents...Advocate for the applicants / petitioners : Mr. S.B. Deore along with Mr. R.A. Shinde and Ms. Suchita J. PawarGP for the respondent – State : Mr. A.B. Girase... CORAM : MANGESH S. PATIL & PRAFULLA S. KHUBALKAR, JJ.DATE : 07 APRIL 2025ORDER (MANGESH S. PATIL, J.) :Heard the learned advocate for the applicants. 2.The applicants had preferred writ petition nos. 5354 of2024 and 3916 of 2024, claiming identical reliefs are seeking review ofcommon judgment and order dated 14.02.2025 passed in a group ofwrit petitions bearing writ petition no. 8610 of 2024 with connected
Decision
2 RA / 36 / 2025 + matters, including the present review applicants’ petitions, whereby wehad dismissed the writ petitions. 3.A common issue that was raised in all the writ petitionswhich we had answered in the negative, was to the effect as to whethercandidates from the reserved category who had availed the concessionto become eligible to participate in the examination to select thecandidates for a post, can migrate to an open / unreserved category onthe basis of their scores in the selection examination.4.The issue had cropped up in the wake of the fact that inview of section 23 of the Right of Children to Free and CompulsoryEducation Act, 2009 (RTE Act), the qualification for appointment andterms and conditions of service of the teachers have to be provided forensuring quality of education imparted to children. The NationalCouncil for Teacher Education (NCTE) laid down the qualification for aperson to be appointed to teach class I to VIII by issuing notification on23.08.2010, laying down that Teachers Eligibility Test (TET) as anessential qualification. By issuing notification dated 11.02.2011 itfurther prescribed that a candidate would be qualified for beingappointed if he has secured 60% or more marks at the TET. Bynotification dated 29.07.2011, NCTE further notified that thisqualification criterion shall stand reduced by 5% of the qualifyingmarks, for the reserved category candidates. Meaning thereby, that the 3 RA / 36 / 2025 + reserved category candidates having scored 55% or more marks at theTET, shall stand qualified. 5.In the light of such notification, the state issued agovernment resolution on 13.02.2013 and prescribed TET as amandatory qualification for appointment of teachers. It subsequentlyissued few more circulars inter alia extending the time for acquiring thequalification, number of attempts available for a candidate to appear atthe TET. 6.Pursuant to the directions of this High Court in PIL no. 8 of2015, the government of Maharashtra passed government resolutiondated 23.06.2017, prescribing the modalities for undertakingrecruitment of teachers in the schools being run by the local bodies,government, unaided and aided institutions and even privatemanagements. It prescribed Teachers Aptitude and Intelligence Test(TAIT) as a competitive examination providing that the marks obtainedin that test as a parameter for preparation of the merit list. It was alsodeclared that TET or Central Eligibility Test (CET) would be theessential qualification with the afore-mentioned parameters laid downby CTE to become eligible to appear at the TAIT.7.The respondent - Maharashtra State Council ofExamination, Pune (MSCE) conducted examination for selecting the 4 RA / 36 / 2025 + candidates for being appointed in different schools being run by ZillaParishads, Municipal Corporations, Nagar Panchayats and privatemanagements, in the year 2023 pursuant to the government resolutiondated 07.02.2019.8.The petitioners in all the writ petitioners became eligibleand had appeared at the TAIT claiming concession of 5% of marks inthe eligibility examination, TET/CTET. On that basis, after the firstmerit list was published, they had sought to migrate to the unreservedcategory and were aggrieved by the notification which was impugned inthe writ petitions whereby it was expressly informed by MSCE in clause18 that pursuant to the order passed by the Supreme Court in SpecialLeave Petition no. 11254 of 2019 dated 24.10.2019 (Govt. Of NCTDelhi and others V. Pradeep Kumar and others; AIR Online 2019SC 2024), it was being informed that the candidates who had receivedconcession for being eligible to appear at TAIT from reserved category,would be considered only from the reserved category on the basis oftheir score at the TAIT and would be considered in unreservedcategory only if he was eligible to appear at TAIT without havingobtained any such concession. 9.By the order under review, inter alia holding that the factsituation in all these matters was clearly covered by the decision of the 5 RA / 36 / 2025 + Supreme Court in the matter of Pradip Kumar (supra) and thepetitions were dismissed. 10.Learned advocate for the review applicants submits that inspite of the specific stand of the petitioners that ‘the rules of gamecould not have been changed after it was played’ being the principleenunciated in the matter of Tej Prakash Pathak and others Vs.Rajasthan High Court and others (2025) 2 SCC 1, the Court hadignored the trite principle while passing the order under review, as theonly ground for the petitioners to seek review. He would submit thatthe issue was not considered from that angle which is an errorapparent on the face of the record and the order be reviewed. 11.We have considered the submissions of the learnedadvocates and perused the papers. 12.Though it is evident that while passing the order underreview, we had not expressly referred to the decision in the matter ofTej Prakash (supra), it is quite evident, as we would now point out thatthe principle therein was deeply considered, to demonstrate as to howthe submission on this line on behalf of the petitioners was not factuallyand legally coming to their rescue. Paragraph no. 27 of the judgmentunder review reads as under :- “27. As regards the stand of the petitioners that they were notmade known that they would not be entitled to migration and it is 6 RA / 36 / 2025 + only after publication of the merit list that the notification inquestion dated 26.02.2024 was uploaded, as has been rightlysubmitted by the learned Advocate General, this was the extantpolicy as per the D.O.P.T. memoranda dated 01.07.1998 and04.04.2018. Again, no such prior intimation in the form of acondition in the advertisement or notification would be necessaryinasmuch as this is the law of the land which has been declared bythe Supreme Court. Since it is a matter of following policy ofreservation, as has been rightly put by the learned AdvocateGeneral, notification dated 26.02.2024 is nothing but reiteration ofthe policy. It is not a case of changing the rules of the game.Having derived concession to reach the benchmark, for appearingat TAIT, the petitioners can be said to have knowledge about theconsequences. Even without such notification dated 26.02.2024,the same principle would apply, preventing them from migrating tothe unreserved category. Therefore, even this submission of thelearned advocates for the petitioners is not legally tenable.”13.When admittedly, TAIT was conducted, as is mentionedherein-above, in the light of the notifications and guidelines issued bythe apex body - NCTE and when TAIT was expressly declared to bethe competitive examination for appointment as teachers and whensuch migration is not legally possible, it cannot be said that the orderunder review contains any formal defect or error apparent on the faceof the record to enable us to invoke the extra-ordinary and limitedpowers of review.14.There is no merit in both the applications and those arerejected. [ PRAFULLA S. KHUBALKAR ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/