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2025 DIGILAW 1522 (GAU)

State of Assam v. Dipankar Gogoi S/o Durnagogoi

2025-09-05

ASHUTOSH KUMAR, MICHAEL ZOTHANKHUMA

body2025
JUDGMENT : ASHUTOSH KUMAR, CJ. 1. We have heard Mr. R. Mazumdar, learned Advocate for the appellants in Writ Appeal No.186/2022; Mr. K.N. Choudhury, learned Senior Advocate, assisted by Mr. D.J. Das, learned Advocate for the appellants in Writ Appeal No.215/2022; Mr. K.K. Mahanta, learned Senior Advocate, assisted by Mr. K.M. Mahanta, learned Advocate for the appellants in Writ Appeal No.222/2022 and Dr. G.J. Sharma, learned Advocate for the appellants in Writ Appeal No.283/2022. Also heard Mr. R. Mazumdar, learned Standing Counsel, Education (Secondary) Department; Mr. I. Chowdhury, learned Senior Advocate, assisted by Mr. T. Das, learned Advocate for the respondent Nos.817 to 821 in Writ Appeal No.186/2022 and Mr. S. Borthakur, leaned Advocate for the respondent Nos.793 to 816 in Writ Appeal No.186/2022. 2. All the appeals have been heard together and are being disposed of by this common judgment. 3. The Government of Assam in the Secondary Education Department, keeping in mind the provisions contained in the Assam Secondary Education (Provincialised Schools) Service Rules, 2018 (hereinafter to be referred as the “Rules of 2018”), constituted an “Empowered Committee for TET for Secondary Education, Assam” (hereinafter to be referred as the “Empowered Committee”) for conducting the Teacher Eligibility Test Examinations for candidates to appear and qualify the Teacher Eligibility Test (hereinafter to be referred as “TET”) for Secondary Education. 4. The Empowered Committee issued an advertisement on 13.11.2019 inviting applications for appearing in the TET from intending candidates for Graduate Teachers in Secondary Education, Assam for Assamese medium only. For the purposes of conducting the TET Examination, the advertisement clearly notified the zones, the eligibility criteria, the time schedule as also the structure and content of the Test. The Examination was to take place for 200 marks for 200 Multiple Choice Questions (MCQs), each one of them carrying equal marks. There were two parts of the Examination, the first part being General Studies, current affairs and the subject Examination, whereas the second part was for pedagogy and General English. It was specified in the said advertisement that the candidates will have to qualify both the parts separately to qualify the Examination. The minimum qualifying marks for passing the TET was fixed at 60% with 5% relaxation for SC/ST/OBC/MOBC/PWD candidates. It was specified in the said advertisement that the candidates will have to qualify both the parts separately to qualify the Examination. The minimum qualifying marks for passing the TET was fixed at 60% with 5% relaxation for SC/ST/OBC/MOBC/PWD candidates. It was also stipulated in the advertisement that notwithstanding the minimum prescribed marks secured in the TET Examination, the number of candidates declared as TET Examination qualified would be maximum of double the number of vacancies of teachers and such candidates will be determined as per merit position. All candidates, who would pass the TET Examination, will be awarded with a Certificate and the validity of the said Certificate shall be for a maximum period of 7(seven) years from the date of issuance of the said Certificate by the Empowered Committee, Government of Assam, subject to the condition that the candidate would otherwise fulfill the eligibility criteria prescribed for recruitment to service in the Government of Assam. 5. It would be relevant here to state that Rules 10(1) and 10(2) of the Rules of 2018 provide for academic and professional qualification. It specifies that in addition to such academic and professional qualifications, as mentioned in Schedule-III to the Rules, for direct recruitment to the posts, candidates shall have to appear and pass in the Teacher Eligibility Test (TET) in the concerned cadre, conducted by the Government scoring a minimum of 60% marks in case of Un-reserved Category candidates and minimum of 55% marks in case of Scheduled Castes/Scheduled Tribes/Other Backward Classes and Persons with Disability candidates. Any experience teacher, who has appeared but could not secure the minimum qualifying 60 marks in the TET, shall be awarded at least 60 marks in respect of their experience if he or she has already completed 15(fifteen) years of teaching experience. Any marks secured by such experienced teacher over and above 60 qualifying marks in TET shall be counted additionally in respect of TET for such teacher for the purpose of selection for the post of Post Graduate Teacher and Graduate Teacher, as the case may be. 6. Any marks secured by such experienced teacher over and above 60 qualifying marks in TET shall be counted additionally in respect of TET for such teacher for the purpose of selection for the post of Post Graduate Teacher and Graduate Teacher, as the case may be. 6. Schedule-III of the Act of 2018, referred to above, provides the qualification for Graduate Teacher as Graduate/Post-Graduate from recognized University with at least 50% marks in either Graduation or Post-Graduation (or its equivalent) and Bachelor of Education (B.Ed.) from National Council for Teacher Education (hereinafter to be referred as “NCTE”) recognized Institution, but degrees obtained from off-campus and distance education Institution shall not be considered as valid. 7. It would also be relevant here to state that the Central Government, in its Ministry of Human Resource Development, has authorized the NCTE to lay down the minimum qualification, as mandated in the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter to be referred as the “RTE Act”), which applies to children of the age of 6 to 14 years, who are to be provided free and compulsory education from Class-I to Class-VIII (Elementary Education). The NCTE, vide various Notifications, have laid down the prescribed qualification, which include TET to be one of the mandatory qualification, to be qualified for appointment as a teacher of Elementary Education. The Guidelines for conducting TET under the RTE Act is for elementary school teachers and not for secondary level education. 8. The contention of some of the appellants/writ petitioners before the learned Single Judge was that the advertisement in question, which prescribed a candidate to secure 60 marks in each of the two papers to pass the TET Examination, ran counter to the Rules of 2018 which only provides for passing the TET Examination with 60% marks in the aggregate. It was also contended that even the Guidelines issued by the NCTE has fixed the qualifying marks at 60% aggregate. The appellants, therefore, contend that the advertisement ought to have strictly conformed to the governing Rules/Regulations and no additional condition, inconsistent with the Rules ought to have been brought in. It was also contended that even the Guidelines issued by the NCTE has fixed the qualifying marks at 60% aggregate. The appellants, therefore, contend that the advertisement ought to have strictly conformed to the governing Rules/Regulations and no additional condition, inconsistent with the Rules ought to have been brought in. If the statutory Rules/NCTE Guidelines prescribed 60% aggregate in TET (with relaxations for Reserved Categories), insisting of 60% in each paper in the advertisement and that also without a traceable power in the Rules authorizing the Examining Body to prescribe sectional cut-off in addition to the aggregate, is impermissible. However, the candidates applied and appeared in the TET Examination, which was held on 19.01.2020. 9. It further appears that while evaluating the results of the TET, it was noticed by the Empowered Committee that only 6879 candidates had qualified the TET Examination. A conscious decision, therefore, was taken to award grace marks to enable more candidates to qualify the Examination. The decision ultimately was to award a maximum grace of 5 marks, in either Part-I or Part-II, to the candidates who had qualified in either of the 2(two) Parts but had failed in the other, so that the candidate could qualify the Part in which he/she has failed for 5 or less than 5 marks. 10. With the addition of grace marks, the number of candidates, who would have qualified, would be 11322. Accordingly, grace marks were given and 11322 candidates were declared qualified on the result declared on 04.03.2020. 11. After the declaration of the results, objections were raised with respect to anomalies in the answer keys and question booklets. Such objections were raised by those candidates who had failed the Examination. Despite that, the authorities requested the resource University to look into the objections. It was found that answer keys of only 2(two) questions were wrong and, therefore, it was ultimately recommended and decided that one mark would be awarded for a question under Part-I of Assamese language to candidates who did not score in that particular question and one more mark would be awarded for a question under Part-II of all mediums (Assamese, Bengali, Hindi, Bodo and Manipuri) as the second question was from Part-II of the General English, which was common to all mediums to the candidates, who did not score in that particular question on the first evaluation of the result. 12. 12. With this exercise, a total of 12032 candidates were declared qualified, out of which 7417 candidates had qualified on raw merit and 4615 candidates had qualified with grace marks. 13. The contention of the State is that another decision was taken to make the procedure fair and equitable, viz. that while calculating the merit position in accordance with the Schedule of Rule 10 of the Rules of 2018, the marks actually obtained in TET Examination (without considering the grace marks, if any) would be taken into consideration. Thus, in the process for appointment of teachers of the secondary level, only the actual marks obtained by the candidates, without taking into account the grace marks, would be considered. 14. After the results were declared, the Director of Secondary Education, Assam issued an advertisement on 12.09.2020, calling for applications from eligible candidates to fill up 5746 posts of Graduate Teacher in Provincialised High and Higher Secondary Schools in Assam. Accordingly, the appointments were made in the said posts. 15. Several set of writ petitions were filed challenging the validity of the aforesaid advertisement; grant of grace of 5 marks; for seeking more grace marks; further seeking direction that only candidates, who passed without grace marks, be considered for appointment, etc. 16. All these writ petitions, referred to above, were heard together by a learned Single Judge of this Court, who, vide his judgment dated 18.05.2022, held that the advertisement was not in consonance with the Rules and that instead of seeking 60% marks each in both the papers, the candidates be evaluated at 60% in aggregate. The reason assigned was that the qualifying marks, as provided in the Rules of 2018 and Guidelines of NCTE, could not have been changed unilaterally, notwithstanding the fact that the candidates had appeared and their results were declared. 17. With respect to grant of grace marks, the learned Single Judge was of the view that since there was no material on record to show as to which authority had taken the decision to award grace up to 5 marks and there being no source of power to do so, and as the candidates were not intimated at any stage of the Examination, the same was unjustified. It was categorically held by the learned Single Judge that neither in the advertisement dated 13.11.2019 nor at the time of declaration of the results or even before when the applications for re-evaluation were called for on 15.05.2020, it was intimated that grace marks would be given. 18. The purpose of introducing TET qualification as mandatory, apart from a candidate holding the prescribed educational qualification, had a purpose, namely, to enhance the teaching quality. This purpose, according to the learned Single Judge, would be diluted by awarding grace marks. 19. There was also no rationale of awarding the grace marks of up to 5 marks in either Part-I or Part-II to candidates who had qualified in either of the two Parts, but had failed in one Part. It was clearly in derogation of the Rules of 2018 as also the NCTE Guidelines. 20. The learned Single Judge, however, upheld the award of 2 marks in 2 papers because of wrong question-answer keys. 21. All the writ petitions, thus, were disposed off accordingly with a direction to the respondent authorities to undertake the exercise of re- evaluation within a period of 2(two) months from the date of service of the certified copy of the judgment to the Director of Secondary Education, Assam. 22. Consequently, many appeals were filed, including one by the State, challenging the correctness of the afore-noted judgment with respect to the decision holding the advertisement to be faulty and not in consonance with the Rules of 2018 and recall of grace marks as it was allowed post-the examination which tantamounts to change of the rule of the game midway. 23. Thus, the issues before this Court are – (i) Whether the prescription of 60% marks in each paper of TET for qualifying, though the Rules speak only of 60% aggregate, is arbitrary or inconsistent with the law? (ii) Whether the grant of grace marks for enlarging the pool of eligible candidates, but not for merit ranking, is impermissible? (iii) Now, whether the appointments already made pursuant to such process deserve to be quashed? 24. The State in Writ Appeal No.186/2022 has submitted that the TET for Secondary Education in Assam was not conducted with any reference to or on the basis of any Guidelines issued by the NCTE; rather it was conducted under the provisions of the Assam Secondary Education (Provincialised Schools) Service Rules, 2018. 24. The State in Writ Appeal No.186/2022 has submitted that the TET for Secondary Education in Assam was not conducted with any reference to or on the basis of any Guidelines issued by the NCTE; rather it was conducted under the provisions of the Assam Secondary Education (Provincialised Schools) Service Rules, 2018. The NCTE has laid down the eligibility criteria for appointment of persons as teachers in Elementary Education only and not for teachers in Secondary Education. The other submission on behalf of the State is that holding of TET and commencing with the recruitment process are two different processes with two different advertisements, concerning two different events, which cannot be clubbed together. 25. The State also relied on its authority and the power to invoke the provision of relaxation contained in Rule 33 of the Rules of 2018 to tide over any difficulty. The difficulty had arisen due to failure of a majority of candidates who had appeared in TET in obtaining requisite qualifying marks, which would have been too less qua the huge vacancy in the High/Higher Secondary Schools of the State. 26. Thus, in greater public interest, a decision had been taken to grant 5 grace marks to only such candidates who had obtained aggregate 60% but had not obtained 60% marks in either of the papers, the prime purpose being only to increase the pool from where appointments could be made. 27. The Rules of 2018 only provide that the candidates shall have to appear and pass in the TET and will have to score a minimum of 60% marks in case of an Un-reserved Category candidate and minimum of 55% marks in case of a Reserved Category candidate. 28. Setting a slightly higher standard/benchmark is within the authority of the State and is also not arbitrary. Even otherwise, such a decision was never challenged and the challenge was put up only after the results were declared. It was wrong of the Court, as contended by the State, to direct for recalling of 5 grace marks holding it to be a “change of the rule of the game midway”. 29. It was only a procedural adjustment for the purposes of enlarging the pool. 30. The vacancy position was staggering, namely, 373 for Government Schools and 15923 for Provincialised Schools. 31. 29. It was only a procedural adjustment for the purposes of enlarging the pool. 30. The vacancy position was staggering, namely, 373 for Government Schools and 15923 for Provincialised Schools. 31. Without the addition of grace marks which did not impinge on the quality, for such grace marks were given to the candidates who had secured 60% in aggregate, the pool would have been too small compared to the vacancy; and as was advertised, candidates would be considered out of the pool of two times the number of vacancy, would not have been possible. 32. Since grace marks were not counted while computing the merits in recruitment, nobody stood dissatisfied. 33. It has also been argued on behalf of the State that the learned Single Judge did not take into account that when it was noticed that only 6879 candidates had qualified the TET, the statistics of the medium TER was considered on 25.02.2020 and a recommendation was made to the Chairman of TET Empowered Committee to take a decision regarding grant of grace marks to candidates to facilitate the declaration of results. 34. On 28.02.2020, the aforesaid proposal was placed before the Hon’ble Minister of Education with the statistics whereafter a conscious decision was taken after due deliberation to grant grace marks in any one Part, which would not compromise the general standard but would serve the purpose of increasing the pool qua the vacancies advertised. The approval for grant of grace marks was accorded on 02.03.2020 and only thereafter, the result was declared on 04.03.2020. 35. As per the present status of vacancies, it has been submitted for the remaining 5781 vacant posts of Graduate Teacher on different Provincialised Secondary Schools, the advertisement has already been issued. 36. Mr. K.N. Choudhury, learned Senior Advocate for the appellants in Writ Appeal No.215/2022 has submitted that possession of TET qualification is an eligibility criteria and a condition of the recruitment, which may not be relaxed but the decision to award grace marks under the fact situation was required to have been seen with a correct perspective. The learned Single Judge, it was contended, failed to notice Rule 33 of the Rules of 2018, which provided the power of relaxation. 37. The learned Senior Advocate relied upon the decision of Supreme Court in Mukul Saikia & Ors. Vs. State of Assam & Ors. The learned Single Judge, it was contended, failed to notice Rule 33 of the Rules of 2018, which provided the power of relaxation. 37. The learned Senior Advocate relied upon the decision of Supreme Court in Mukul Saikia & Ors. Vs. State of Assam & Ors. (2009) 1 SCC 386 and J.C. Yadav & Ors. Vs. State of Haryana & Ors. (1990) 2 SCC 189. 38. It was wrong to conclude, argued by Mr. Choudhury, that no materials were placed on record to show that the decision to award grace marks was taken before the issuance of advertisement dated 11.09.2020. The eventual decision to award grace marks was taken on 02.03.2020, whereas the advertisement for recruitment is dated 11.09.2020. The rules of the game were never changed midway for the reason that no decision was taken post 11.09.2020, i.e. the date of the advertisement for recruitment. 39. It was further submitted that prescription in the advertisement for 60% in both the papers is not inconsistent with Rule 10(2) of the Rules of 2018. The Rules of 2018 provide for a minimum of 60% in the aggregate, without proscribing the authorities to increase the bench-mark and in this case it has only slightly been increased to minimum 60% in both the papers. Thus, it was only a clarification and did not run contrary to the statutory Rules. The minimum prescription could not have been lessened further, but the clarification of minimum of 60% in both the papers, definitely does not render the advertisement in question to be contradictory to the statutory Rules. 40. Similar arguments were advanced by the learned Advocates appearing in Writ Appeal No.222/2022 and the respondents in Writ Appeal No.186/2022. 41. It was urged on behalf of the appellants in some of the appeals that the learned Single Judge did not consider that TET was only an eligibility test conducted for the purposes of adhering to certain standards for selecting the eligible persons for the posts of Teachers for improving the benchmark of teaching. 42. The Rules of 2018 do not provide as to how many papers would be there in the examination and what would be the full marks of each such papers. 43. 42. The Rules of 2018 do not provide as to how many papers would be there in the examination and what would be the full marks of each such papers. 43. The advertisement in question, therefore, has only filled up the gap with clear stipulation that there shall be 2(two) papers of 100 marks each and a candidate will have to secure 60% marks in each individual paper to be declared qualified in the TET. This is clearly and absolutely within the authority and not against the prescription of the Rule or violative of it, in any manner, whatsoever. 44. The reference to NCTE Guidelines was uncalled for as those are only for Elementary Schools. However, it was submitted that the learned Single Judge was justified in holding that awarding of grace marks was unsustainable in law. 45. The submissions on behalf of the respondent Nos.793 to 816 in Writ Appeal No.186/2022 is that they ought to be declared as qualified in TET and be considered for recruitment retrospectively. 46. A bare look at the relevant Rules of 2018 would demonstrate that for recruitment to the post of teacher, a candidate has to pass the TET Examination, scoring a minimum of 60% marks in case of Un-reserved category and minimum of 55% marks in reserved category. The NCTE Guidelines, in clear terms, is for the purposes of recruitment of teachers in the Elementary School under the RTE Act and not for secondary school teaching. 47. Thus, the learned Single Judge erred in holding that prescription in the advertisement in question of minimum of 60% marks in both the papers is contrary to any Rules. 48. The learned Single Judge also failed to consider that TET Examination is only for the purposes of ascertaining the minimum competence of a teacher to be recruited. By itself, it does not give any indefeasible right for recruitment. 49. The Supreme Court in Tej Prakash Pathak & Ors. Vs. Rajasthan High Court & Ors. (2025) 2 SCC 1 , has settled the law in this regard. The judgment was delivered by a Bench of 5(five) Judges on reference. In fact, a 3(three) Judges Bench in Tej Prakash Pathak & Ors. Vs. State of Rajasthan & Ors. 49. The Supreme Court in Tej Prakash Pathak & Ors. Vs. Rajasthan High Court & Ors. (2025) 2 SCC 1 , has settled the law in this regard. The judgment was delivered by a Bench of 5(five) Judges on reference. In fact, a 3(three) Judges Bench in Tej Prakash Pathak & Ors. Vs. State of Rajasthan & Ors. (2013) 4 SCC 540 , while accepting the salutary principle that once the recruitment process commences, the State or its instrumentalities cannot tinker with the rules of the game in so far as prescription of eligibility criteria is concerned, but expressed doubt whether this principle would apply also to the procedure for selection. It was held, thus, that: (i) a recruitment process commences from the issuance of the advertisement, calling for applications and ends with filling up of vacancies; (ii) eligibility criteria for being placed in the select list, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to extant Rules so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness; (iii) the recruiting bodies, subject to the extant Rules may devise appropriate procedure for bringing the recruitment process to its logical end, provided the procedure so adopted is transparent, non-discriminatory/non-arbitrary and has a rational nexus to the objects sought to be achieved . It was also held that the extant Rules having a statutory force are binding on the recruiting body, both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps. [Emphasis provided] (iv) Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may chose not to fill up the vacancies. However, if the vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list. 50. The extant Rules in the present case is the Rules of 2018, which as has already been noted, provides a minimum benchmark of 60% without specifying as to the number of papers in which a candidate will be required to appear. 50. The extant Rules in the present case is the Rules of 2018, which as has already been noted, provides a minimum benchmark of 60% without specifying as to the number of papers in which a candidate will be required to appear. In this context, it has to be considered whether the State would be entitled to prescribe standards higher than the minimum prescribed. 51. It has been held in State of Haryana Vs. Subash Chander Marwaha & Ors. (1974) 3 SCC 220 and Jyoti K.K. & Ors. Vs. Kerala Public Service Commission, (2010) 15 SCC 596 that prescribing higher qualification/standard is permissible, if rationally connected with the object of recruitment. This would not be contrary to the Rules. 52. The insistence on 60% in each paper in the present advertisement is pedagogically rational; a teacher cannot be deficient in one subject and yet be considered fully qualified. This condition cannot at all be called arbitrary or ultra vires as it is in consonance with the basic purpose of enhancing the teaching quality and standardizing the recruitment process. Prescribing 60% in both the papers and not limiting the qualifying marks to 60% in aggregate is in no way unjust, irrational or too onerous for candidates to achieve. 53. The learned Single Judge, while dealing with the award of grace marks, found that there was no provision for the same in the advertisement dated 13.11.2019 or was this informed to the candidates when the application for re-evaluation was called for on 15.05.2020. The learned Single Judge could not locate any source of power for the authorities to grant grace marks. Since it was not known as to when and by whom the decision to award grace marks was given, it was only a “change of the rule of the game midway”, which was impermissible. The grace marks policy lacked the rule authority and could not have been adopted to expand the eligibility. Post-hoc grace to manufacture eligibility, according to the learned Single Judge, was a prohibited relaxation. 54. Way back in the year 2002, in the case of Maharashtra State Board of Secondary & Higher Education Vs. Amit & Anr. (2002) 6 SCC 153 , it was held that grace marks is not to be liberally awarded. They are in the nature of a concession in removing the real hardship faced by certain candidates. 54. Way back in the year 2002, in the case of Maharashtra State Board of Secondary & Higher Education Vs. Amit & Anr. (2002) 6 SCC 153 , it was held that grace marks is not to be liberally awarded. They are in the nature of a concession in removing the real hardship faced by certain candidates. Awarding of grace marks definitely results in diluting the academic standards. This was held in a situation where the High Court had allowed the writ petition preferred by one of the candidates directing the Maharashtra Board to declare the petitioner therein as having passed the examination as he was entitled to grant of 20 grace marks. 55. In Orissa Public Service Commission & Anr. Vs. Rupashree Chowdhary & Anr. (2011) 8 SCC 108 , it was emphasized that when Rules specify a minimum marks, there cannot be any question of relaxation or rounding off the marks obtained by the candidate for bringing a candidate up to the minimum requirement. This was in the context of appointment of Officers in Orisssa Superior Judicial Service and the Orissa Judicial Service Rules, 2007 were taken into account. 56. In Taniya Malik Vs. Registrar General of the High Court of Delhi , (2018) 14 SCC 129 , the relaxation of minimum pass marks was not approved of in case of recruitment of District Judges. [Also refer to K. Manjusree Vs. State of Andhra Pradesh & Anr. (2008) 3 SCC 512 ; Himani Malhotra Vs. High Court of Delhi , (2008) 7 SCC 11 ; Bedanga Talukdar Vs. Saifudaullah Khan & Ors. (2011) 12 SCC 85 ; Bhanu Pratap Vs. State of Haryana & Ors. (2011) 15 SCC 304 ; Registrar, Rejiv Gandhi University of Health Sciences, Bangalore Vs. G. Hemlatha & Ors. (2012) 8 SCC 568 and State of Uttar Pradesh & Anr. Vs. Anand Kumar Yadav & Ors. (2018) 13 SCC 560 , etc]. 57. All these judgments are in the context of recruitment or for the basic examination at various levels of education. 58. G. Hemlatha & Ors. (2012) 8 SCC 568 and State of Uttar Pradesh & Anr. Vs. Anand Kumar Yadav & Ors. (2018) 13 SCC 560 , etc]. 57. All these judgments are in the context of recruitment or for the basic examination at various levels of education. 58. It ought not to be lost sight of that in these set of cases, the award of grace marks was only for the purposes of increasing the pool of candidates, from which recruitment could be made for the post of teachers in Secondary Schools, subject to such candidates coming in the merit after a due process of selection, but without adding the grace marks. The grace of 5 marks has been given to the candidates, who had 60% aggregate but fell short in 1(one) paper and the grace marks have not been counted while computing the merit list for recruitment. Thus, the grace marks has only enlarged the pool of eligible candidates so that adequate numbers could be called for recruitment (2 x the vacancies). 59. Could it then be said that the 5 grace marks conferred any undue advantage in the competitive merit list? The answer is obviously “No”. 60. The persons who got the grace marks were not academically weak as they had an aggregate of 60%. The grace mark was only given to remove the “each paper” bottleneck. No one as it appears, stands prejudiced with this. The candidates with higher raw merit would still be selected/or have been selected on the basis of un-graced marks. 61. As has already been referred to and held in the authoritative judgment of the larger Bench in Tej Prakash Pathak (supra) that where the Rules are non-existent or silent, administrative instructions may fill in the gaps. 62. So far as changing the rules of the game midway is concerned, it is again reiterated that this is not with respect to recruitment but only for the purposes of creating a larger pool for which decision was taken at the appropriate level. 63. True it is that it was not intimated earlier, but no change was made after the results were declared and before the recruitment process was initiated with the issuance of the advertisement dated 12.09.2020. This, in our considered view, is no change of the rule of the game midway. 64. Teachers have already been appointed. 63. True it is that it was not intimated earlier, but no change was made after the results were declared and before the recruitment process was initiated with the issuance of the advertisement dated 12.09.2020. This, in our considered view, is no change of the rule of the game midway. 64. Teachers have already been appointed. Education is a matter of public interest; vacancies in large numbers of schools cannot remain unfulfilled. A large number of schools are dependent on the services of the teachers. Unsettling appointments would create a chaos, which would deprive the children of education. 65. It has long been held that equity and public interest weigh against unsettling selections, unless illegalities are glaring and prejudicial. 66. In the present case, we have not found any illegality. Here, as merit was determined solely on raw marks, no prejudice also can be said to have been caused to higher merit candidates. 67. We also are of the view that the criticism regarding awarding grace marks of 5 to be arbitrary, is misplaced. Grace marks were given only for eligibility and not for ranking and, therefore, in such a situation, the quantum does not distort the merit. 68. For the afore-noted reasons, we do not find ourselves persuaded by the reasonings of the learned Single Judge and perforce, we set aside the judgment impugned and hold that (i) the requirement of securing 60% in each paper of TET is a valid and rational prescription, consistent with the object of the Examination and not inconsistent with the Rules; (ii) the grant of 5 grace marks to enlarge the pool of eligible candidates without counting such grace in merit rank, does not prejudice any candidate and it cannot be termed arbitrary; (iii) the appointments already made on the basis of raw merit ought not to be unsettled. 69. However, before parting, we need say that the State Government must clarify and codify in express terms prospectively the eligibility criterion (whether aggregate or paper-wise) and any policy of moderation/grace marks, so that the unnecessary litigation is avoided. 70. All these writ appeals stand disposed off accordingly.