Gauhati High Court
WP(C)/854/2020 on 21 December, 2021
Page No.# 1/18
GAHC010031262020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.909/2020
Amar Sheel & 25 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ............. Respondents
WP(C) No.854/2020
Abdur Rahman Laskar .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.857/2020
Rajasree Bora .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.858/2020
Paris Dutta .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.898/2020
Abul Kalak & Anr. .................... Petitioners
Page No.# 2/18
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.899/2020
Ranju Kakati and 2 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.900/2020
Sabrina Ahmed .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.901/2020
Bornalee Bhuyan .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.903/2020
Manik Ali .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.905/2020
Smt. Mousumi Deuri and 2 Ors. ................. Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.935/2020
Page No.# 3/18
Niranjan Bordoloi and 30 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ............. Respondents
WP(C) No.964/2020
Bhanita Das .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.971/2020
Rumi Devi .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.978/2020
Monica Begum .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1008/2020
Dipika Kakoty .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1011/2020
Rejina Sultana .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1015/2020
Navajyoti Konwar and 2 Ors. .................... Petitioners
Page No.# 4/18
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1016/2020
Banyashree Thakur and 21 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1017/2020
Mosharof Alom Ahmed .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1018/2020
Nayan Jyoti Sarma and 14 Ors. ................. Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1024/2020
Dipak Kumr Roy and Anr. .................... Petitioners
Vs.
The State of Assam and Ors. ............. Respondents
WP(C) No.1092/2020
Dipali Kumar Roy and Anr. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
Page No.# 5/18
WP(C) No.1122/2020
Sankar Medhi and 2 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1183/2020
Afzalur Rahman and 9 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1199/2020
Ujjal Das .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1204/2020
Rupashri Patowary and 12 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1207/2020
Nitya Nanda Phukan and 9 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1214/2020
Bhuban Das and 2 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
Page No.# 6/18
WP(C) No.1229/2020
Dipankar Hazarika and 47 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1233/2020
Anju Das ................. Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1239/2020
Arup Kumr Hazarika and 19 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ............. Respondents
WP(C) No.1246/2020
Tasmin Sultana and 12 Ors. .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1288/2020
Tenzing Basumatary .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1290/2020
Debajit Sarma and Anr. .................... Petitioners
Vs.
Page No.# 7/18
The State of Assam and Ors. ................ Respondents
WP(C) No.1317/2020
Farida Khatun and Anr. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1330/2020
Dipali Borah .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1349/2020
Shahab Uddin Ahmed .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1363/2020
Sutripti Mukherjee and 5 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1368/2020
Riju Chutia and 30 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1380/2020
Seema Changmai and 5 Ors. ................. Petitioners
Page No.# 8/18
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1418/2020
Ashish Chakraborty and 20 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ............. Respondents
WP(C) No.1422/2020
Mahendra Pathak .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1467/2020
Krishna Roy and 2 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1565/2020
Sankar Kumar Roy and 37 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1730/2020
Naba Krishna Dutta .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1824/2020
Neelam Kumar Sharma and 2 Ors. .................... Petitioners
Page No.# 9/18
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.1985/2020
Bhanu Borah .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.2083/2020
Dipak Sharma .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.2486/2020
Ajita Nath and 6 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.2540/2020
Arup Das and Anr. ................. Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.4182/2020
Mrinali Gharphalia .................... Petitioners
Vs.
The State of Assam and Ors. ............. Respondents
Page No.# 10/18
WP(C) No.4511/2020
Ankur Dev Choudhury .................... Petitioner
Vs.
The State of Assam and Ors. ................ Respondents
WP(C) No.2771/2021
Taj Uddin Laskar and 8 Ors. .................... Petitioners
Vs.
The State of Assam and Ors. ................ Respondents
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
For the Petitioners : Shri KM Mahanta; Shri MU Mahmud; Shri PK Sharma;
Shri PD Nair; Shri H Das; Shri SS Goswami; Shri I
Choudhury; Shri C Boruah; Shri M Dutta; Shri S
Borthakur; Shri MA Sheikh; Shri PA Ahmed; Shri RA
Ahmed; Shri UJ Saikia; Shri A Deka; Shri R Ali; PJ
Saikia; Shri M Ahmed; Shri PU Ahmed; Shri B
Buragohain; Shri K Bhuyan; Shri SB Prasad; Shri N
Borah; Shri T Deuri; Mrs. R Devi; Shri LR Mazumdar;
Shri SM Sarma; Shri DP Borah; Shri NN Jha; and Shri
J Laskar, Advocates.
For the Respondents : Shri R Mazumdar, SC, Edu. (Ele.)
Department.
Date of Hearing : 21.12.2021.
Date of Judgment : 21.12.2021.
JUDGEMENT & ORDER
1. Identical issue being raised in these writ petitions, the same are taken up
together for analogous hearing and are being disposed of by this common judgment
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and order.
2. The extra-ordinary jurisdiction of this Court has been sought to be invoked by
challenging the exclusion of the petitioners from the select list of candidates for the
post of Assistant Teacher in Lower Primary and Upper Primary Schools pursuant to two
advertisements dated 11.03.2018. It the case of the petitioners that they had secured
higher marks than the last selected candidate and yet, they have been left out in the
select list. The only discernible reason appears to be non-possessing of the TET / Dl.
Ed. qualification before the petitioners had attained an upper age limit. It is the case
of the petitioners that in any event, all of them had the qualification of TET / Dl. Ed.
prior to the selection process. The petitioners have placed reliance upon a
development during the pendency of the writ petitions which, as per the petitioners,
would bring the entire controversy to rest and there would not be any hurdle /
hindrance in considering the appointment of the petitioners as Assistant Teachers.
3. At the outset, the learned counsel for the parties have submitted in tandem that
the principal issue has already been decided by this Court vide a judgment and order
dated 09.11.2021 passed in a bunch of writ petitions, including WP(C)/345/2021
(Smti. Ajanta Ray Vs. State of Assam & Ors.). That being the position, narration of the
facts of each case is considered unnecessary. Suffice it to mention that the grievance
of the petitioners are in connection with denying them the benefit of appointment as
Assistant Teacher of Lower and Upper Primary Schools in spite of being placed higher
than the candidates who have been offered such appointment. The only discernible
reason, as indicated above, is inability to acquire the qualification of TET / Dl. Ed.
before a particular date. There is however, no dispute to the fact that all the
petitioners are otherwise equipped with the qualification of TET / Dl. Ed. prior to the
date when the recruitment process had begun.
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4. The advertisements dated 11.03.2018 were for 5393 posts of LP School
Teachers and 4120 posts of Upper Primary School Teachers in different districts all
across the State of Assam. In the eligibility criteria, in Sl. No.3, amongst other, the
prescribed age of the candidates has been stated, as per which a candidate must not
be less than 18 years and not more than 38 years of age as on 01.01.2018 and also
providing for relaxation of upper age limit of SC / ST candidates and Persons with
Disability for 5 years as per norms. The said advertisements were followed by an
addendum dated 29.10.2018 whereby in Sl. No. 3, it was notified that the upper age
limit stood revised up-to 44 years in respect of General / UR candidates, 47 years in
respect of OBC / MOBC candidates and 49 years in respect of SC / ST and Person with
Disability candidates as on 01.01.2018. It was further provided that the relaxation
shall be applicable only for those candidates who have attained the necessary
educational or other qualifications prior to crossing of their existing age limit of 38
years.
5. It is an admitted case that none of the petitioners had acquired the TET / Dl.
Ed. qualification within the upper age prescribed for various categories. However, it is
also a fact that even before the advertisement dated 11.03.2018 was issued, all the
petitioners were possessing TET / Dl. Ed. qualification. It appears that due to non-
fulfillment of the aforesaid criteria of TET / Dl. Ed., the candidatures of the petitioners
were rejected.
6. I have heard Shri KM Mahanta; Shri MU Mahmud; Shri PK Sharma; Shri PD Nair;
Shri H Das; Shri SS Goswami; Shri I Choudhury; Shri C Boruah; Shri M Dutta; Shri S
Borthakur; Shri MA Sheikh; Shri PA Ahmed; Shri RA Ahmed; Shri UJ Saikia; Shri A
Deka; Shri R Ali; PJ Saikia; Shri M Ahmed; Shri PU Ahmed; Shri B Buragohain; Shri K
Bhuyan; Shri SB Prasad; Shri N Borah; Shri T Deuri; Mrs. R Devi; Shri LR Mazumdar;
Shri SM Sarma; Shri DP Borah; Shri NN Jha; and Shri J Laskar, learned counsel for the
Page No.# 13/18
petitioners whereas the State respondents are represented by Shri R Mazumdar,
learned Standing Counsel, Elementary Education Department, Assam.
7. As indicated above, an identical issue had come up for consideration before this
Court in a bunch of writ petitions, including WP(C)/345/2021. The only difference on
facts was that the recruitment was for Graduate Teachers in various High / HS schools
in Assam wherein a similar clause was there to be eligible in all respects, including
possessing TET qualification within the upper age limit which was 40 years in that
case. Though a relaxation clause was there, it was made clear that necessary
educational and other qualifications should be obtained before crossing the prescribed
age limit.
8. On behalf of the petitioners in the aforesaid bunch of cases, it was submitted
that rejection of the candidature of the petitioners on the ground of not obtaining the
TET qualification within the prescribed age limit is absolutely unreasonable, arbitrary
and whimsical, apart from being discriminatory. It was submitted that the petitioners
are being treated as a different class and there does not seem to be any object to be
achieved by such classification and the nexus and that it is not a case where the TET
qualification was achieved after the recruitment process had started and in fact, it is
the case of all the petitioners that much prior to the date of the advertisement, all of
them had acquired the TET / Dl. Ed. qualification. It was contended that because of
the impugned action, less meritorious candidates have been given the benefit of the
appointment by ignoring the claims of the petitioners.
9. During the pendency of the writ petitions, a very interesting and material
development had taken place in the form of a Corrigendum issued by the Personnel
(B) Department. By the said Corrigendum dated 20.02.2021, it has been clarified that
so far as the Department's Office Memorandum No. ABP 06/2016/51, dated
Page No.# 14/18
02.09.2020 is concerned, the second sentence in paragraph 3, namely, "this relaxation
shall be applicable only to those candidates who have attained the necessary
educational or other qualifications prior to crossing of their existing upper age limit of
40 years shall be deleted from the said Office Memorandum". It is submitted that the
said relaxation would have a direct bearing with the cases of the petitioners as it was
because of the restrictions / conditions of requiring to obtain the minimum
qualification, including TET before a particular age had come into operation leading to
the rejection of the case of the petitioners.
10. In the present bunch of cases, a similar stand is adopted on behalf of the
petitioners and the following is the gist of the submissions made on behalf of the
petitioners:
i) That the petitioners are qualified in all respects to be appointed as
Assistant Teachers;
ii) The controversy regarding acquiring of TET / Dl. Ed. qualification
should not come into the way for appointing the petitioners as Assistant
Teachers inasmuch as, such qualification was acquired much prior to the
recruitment process initiated by the advertisements dated 11.03.2018;
iii) That the requirement to possess TET / Dl. Ed. qualification before a
prescribed date as per notification dated 02.09.2020 has been done away
with the corrigendum dated 20.02.2021 and therefore, there is no
impediment at all to consider the appointment of the petitioners as
Assistant Teachers on the basis of the marks secured;
iv) The availability of vacancies to accommodate the petitioners is already
Page No.# 15/18
recorded by this Court in the order dated 26.08.2020 passed in
IA(C)/1366/2020 in WP(C)/909/2020 wherein, it has been recorded that
so far LP Schools are concerned, 2332 posts were still vacant and for UP
Schools, 2113 posts were still vacant.
11. Per contra, R Mazumdar, learned Standing Counsel, Elementary Education
Department has argued that it a settled position of law that to get the benefit of
appointment, an intending candidate is required to be eligible as on the date of
initiation of the recruitment process and the process, in the instant case, was initiated
by the date of the advertisement i.e., dated 11.03.2018. The learned Standing Counsel
has argued that even taking the ultimate date of submission of application form, as
per the advertisement, none of the petitioners would be eligible as admittedly the TET
/ Dl. Ed. qualification was acquired after the prescribed age.
12. As regards the Corrigendum dated 20.02.2021 of the Government of Assam, the
learned Standing Counsel has submitted that the same would have prospective effect
only and cannot be given retrospective effect. It is submitted by the learned Standing
Counsel that the said Corrigendum cannot have any role in the adjudication of the
present case. The arguments made by the learned Standing Counsel can be
summarized in the following manner:
i) The petitioners had participated in the selection process without any
objection knowingly fully well regarding existence of such eligibility
criteria which is required to be obtained within a particular age;
ii) Admittedly, the petitioners were not fulfilling an essential criterion
regarding obtaining of TET / Dl. Ed. qualification within a particular age;
Page No.# 16/18
iii) The names of the petitioners are obviously not in the select list;
iv) The Corrigendum dated 28.02.2021 being prospective in nature, the
same would not have any applicability in the present case;
v) No rights of any manner have been vested upon the petitioners by the
Corrigendum.
13. In support of their respective submissions, the learned counsel for the parties
had relied upon a number of case laws. However, since the issue has already been
decided, this Court is of the view that the discussion on the case laws may not be
necessary.
14. In this bunch of writ petitions, it is not the case of the respondents that the
petitioners do not possess the requisite qualification of TET / Dl. Ed. and the objection
is only with regard to the date when such qualification of TET / Dl. Ed. was acquired.
As per the advertisement, the aforesaid qualification was required to be procured
within a particular age. However, due to non-holding of the examination, such degree
was not able to be attained within the prescribed age limit. However, there is no
dispute that such qualifications have been obtained starting of the recruitment
process. Accordingly, this Court finds force in the argument made on behalf of the
petitioners that by virtue of the TET / Dl. Ed. qualification acquired later, the same
would relate back and therefore, the condition requiring that all qualification should be
attained within a particular age are duly met by all the petitioners.
15. Apart from the aforesaid position, the Corrigendum issued on 20.02.2021 by the
Personnel (B) Department would also be of immense significance. The Corrigendum is
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specifically with regard to the earlier Office Memorandum No. ABP 06/2016/51 dated
02.09.2020. The expression used is "it is clarified", meaning thereby that the same is
clarificatory in nature and therefore, by the Rules of interpretation, the same would
relate back to the notification which is intended to be clarified. That being the
position, this Court is not inclined to accept this submission of the learned counsel for
the Department that the Corrigendum should be construed to be prospective in
nature.
16. As regards, the vacancy position, this Court has already observed above that at
present 2332 numbers of vacancies for LP School Teachers and 2113 for UP Schools
are existing in various schools of the State.
17. This Court has also viewed the controversy in question both from the angle of
public interest as well as efficiency in public service. Though the rejection of the
candidature of the petitioners appears to be on the ground of not acquiring the TET /
Dl. Ed. qualification within a particular age, it is an admitted fact that all the
petitioners had acquired the qualification prior to the initiation of the recruitment
process. When such qualification was possessed by the petitioners even before the
recruitment process was notified, whether the said qualification was obtained within a
particular age limit is wholly immaterial. In any case, such requirement having been
removed by the clarificatory notification dated 20.02.2021 published during the
pendency of the writ petitions, the rejection of the candidature of the petitioners
appear to be done on wholly flimsy and unsustainable ground.
18. On the backdrop of the aforesaid discussions, this Court is of the opinion that
the petitioners have been able to make out a case for interference in exercise of
powers under Article 226 of the Constitution of India. It is, accordingly held that the
TET / Dl. Ed. qualification acquired by the petitioners prior to the recruitment process
Page No.# 18/18
has to be construed to be meeting the eligibility criteria and therefore, while the
rejection of the petitioners in the recruitment process is set aside, the cases of the
petitioners for appointment as Assistant Teachers as per the Advertisement dated
11.03.2018 shall be duly considered and based upon their positions in the Merit List
appointments be offered expeditiously and in any case within an outer limit of 45 days
from today.
19. The writ petitions accordingly stand allowed.
JUDGE
Comparing Assistant
