Gauhati High Court
Page No.# 1/22 vs The State Of Assam And 5 Ors on 22 February, 2021
Page No.# 1/22
GAHC010140722020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./100/2020
RAJU CHAKRABORTY AND 58 ORS.
SON OF LATE SATYESH CHKRABORTY, SHYAMA PRASAD ROAD, WARD
NO. 24, POST OFFICE KARIMGANJ-788710, DISTRICT KARIMGANJ, ASSAM.
2: MIHIR KANTI NATH
SON OF LATE PRASSANNA KUMAR NATH
J
RAILWAY COLONY
POST OFFICE KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
3: AMIT KUMAR DUTTA
SON OF LATE SITANGSHU KUMAR DUTTA
SHYAMA PRASAD ROAD
WARD NO. 24
POST OFFICE KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
4: AZIR UDDIN
SON OF LATE ABDUR RAHMAN
VILLAGE ALAMKHANI
P.O. NILAMBAZAR-788722
DISTRICT KARIMGANJ
ASSAM.
5: ADUL BASIT
Page No.# 2/22
SON OF LATE ABDUL MANNAN
VILLAGE AND P.O. BRHAMANSHANAN-788722
DISTRICT KARIMGANJ
ASSAM.
6: ANAMIKA DAS
DAUGHTER OF LATE ABHAY CHARAN DAS CHOUDHURY
NILMONI ROAD
KARIMGANJ TOWN
POST OFFICE KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
7: SUPDITA GANGULY DAS
DAUGHTER OF LATE SUKESH CHANDRA DAS
LAXMICHARAN ROAD
KARIMGANJ TOWN
POST OFFICE KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
8: ADUL BASIT
SON OF LATE MOYEEN UDDIN
VILLAGE SOUTH LAFASAIL
P.O. LAKSHMI BAZAR-788709
DISTRICT KARIMGANJ
ASSAM
9: TAJ UDDIN
SON OF LATE ABDUL KHALIQUE
VILLAGE BAGAN
P.O. KATHALI BAZAR-788725
DISTRICT KARIMGANJ
ASSAM.
10: SUDIP SAHA
Page No.# 3/22
SON OF LATE PURNA CHANDRA SAHA
DASPATTY
KARIMGANJ TOWN
POST OFFICE KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
11: PABAN KUMAR CHAKRABORTY
SON OF LATE SUDHIR CHANDRA CHAKRABORTY
AZAD SAGAR ROAD
KARIMGANJ TOWN
POST OFFICE KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
12: JUGAL KISHORE DUTTA
C/O OF LATE DHRUBA DUTTA
STATION ROAD
NEAR MASZID
KARIMGANJ TOWN
POST OFFICE KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
13: MOHITOSH DAS
SON OF LATE MIHIR KUMAR DAS
GACH KALIBARI ROAD
KARIMGANJ TOWN
POST OFFICE KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
14: SWAPAN KUMAR PAUL
SON OF LATE SUSHIL CHANDRA PAUL
VILLAGE AND P.O. NILAMBAZAR-788722
Page No.# 4/22
DISTRICT KARIMGANJ
ASSAM.
15: DEEPA NAG DEB PURKAYASTHA
VILLAGE NAIRGRAM
WARD NO. 8
POST OFFICE NAIRGRAM-788710
DISTRICT KARIMGANJ
ASSAM.
16: DWIJENDRA CHANDRA DAS
SON OF LATE RABINDRA CHANDRA DAS
INDIRA COLONY (RAILWAY SITE)
SUBHASH NAGAR
POST OFFICE KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
17: JOYPATI BANIK
WIFE OF DEBASHISH CHANDRA DEY
SUBHASH SARANI
SILCHAR ROAD
POST OFFICE KARIMGANJ-788713
DISTRICT KARIMGANJ
ASSAM.
18: JAYANTA BHATTACHARJEE
SON OF LATE JYOTIRMOY BHATTACHARJEE
JANGLA KALIBARI ROAD
P.O. BADARPURGHAT-788803
DISTRICT KARIMGANJ
ASSAM.
19: RUMI BHATTACHARJEE
DAUGHTER OF LATE RABINDRA NATH SHARMA
WIFE OF JOYDEB BHATTACHARJEE
Page No.# 5/22
P.O. BADARPURGHAT-788803
DISTRICT KARIMGANJ
ASSAM.
20: ABDUL AHAD KHAN
SON OF LATE KANIR ALI KHAN
VILLAGE MIRADIGIRPAR
P.O. NILAMBAZAR-788722
DISTRICT KARIMGANJ
ASSAM.
21: SANJU DUTTA
SON OF LATE AMULAYA DUTTA
ROY NAGAR
KARIMGANJ TOWN
POST OFFICE KARIMGANJ-788711
DISTRICT KARIMGANJ
ASSAM.
22: AMBAR BHATTACHARJEE
SON OF LATE AMARENDRA BHATTACHARJEE
RED CROSS ROAD
WARD NO. 12
POST OFFICE KARIMGANJ-788711
DISTRICT KARIMGANJ
ASSAM.
23: APARNA NATH
DAUGHTER OF LATE ANANDA MOHON NATH
VILLAGE AMARKHAL
P.O. ANIPUR-
DISTRICT KARIMGANJ
ASSAM.
24: SANJEEB DAS
VILLAGE NAYAGRAM
P.O. NILAMBAZAR-788722
Page No.# 6/22
DISTRICT KARIMGANJ
ASSAM.
25: KALYAN KUMAR DEY
SON OF LATE KANAILAL DEY
VILLAGE CHARAKURI
P.O. KARIMGANJ-788711
DISTRICT KARIMGANJ
ASSAM
26: ANINDITA ROY
DAUGHTER OF SRI ARABINDA ROY
ROY NAGAR
KARIMGANJ TOWN
P.O. KARIMGANJ-788711
DISTRICT KARIMGANJ
ASSAM
27: SOUMEN ROY
SON OF SRI JALODISH ROY
SETTLEMENT ROAD
P.O. KARIMGANJ-788712
DISTRICT KARIMGANJ
ASSAM.
28: SIMA DEB
DAUGHTER OF LATE JYOISH DEB
VILLAGE AND P.O. BARAIGAM- 788723
DISTRICT KARIMGANJ
ASSAM.
29: PRODYUT KUMAR DEY
SON OF LATE PRASANTA KUMAR DEY
LAXSHIM BAZAR ROAD
P.O. KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
30: ARPITA DUTTA CHOUDHURY @ ARPITA DAS
Page No.# 7/22
DAUGHTER OF LATE RABINDRA KUMAR DAS
BIRASHREE SARADA PALLY
MALIPARA
P.O. KARIMGANJ-788711
DISTRICT KARIMGANJ
ASSAM.
31: SABITA PAUL
DAUGHTER OF LATE RAKESH CHANDRA PAUL
VILLAGE RAMKRISHNA NAGAR
P.O. RAMKRISHNA NAGAR-
DISTRICT KARIMGANJ
ASSAM.
32: KAKALI DEY
DAUGHTER OF SRI BIRESWAR CHOUDHURY
JUM BASTI M.E.SCHOOL ROAD
P.O. BADARPUR-
DISTRICT KARIMGANJ
ASSAM.
33: JYOTISWAR NARAYAN SHARMA
SON OF LATE RAMENDRA NARAYAN SHARMA
CHARBAZAR
P.O. KARIMGANJ-788711
DISTRICT KARIMGANJ
ASSAM.
34: TAPASHI DEB (DHAR)
DAUGHTER OF LATE TAPADIR RANJAN DEB
R.C. DAS ROAD
P.O. KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
35: ANUPA PAUL
C/O LATE MAKHAN LAL PAUL
RAMKRISHNA MISSION ROAD
P.O. KARIMGANJ-788710
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DISTRICT KARIMGANJ
ASSAM.
36: MAZIR UDDIN
SON OF ABDUS SATTAR
VILLAGE DURLAVPUR
P.O.KANAIBAZAR-788724
DISTRICT KARIMGANJ
ASSAM.
37: MOHITOSH DAS
SON OF LATE MIHIR KUMAR DAS
LONGAI ROAD
P.O. KARIMGANJ-788711
DISTRICT KARIMGANJ
ASSAM.
38: SELIM UDDIN
SON OF USTAR ALI
VILLAGE AND P.O. ERQALIGOOL-788724
DISTRICT KARIMGANJ
ASSAM.
39: ABDUL KHALIQUE
SON OF ABDUL GOFUR
VILLAGE DARARPAR
P.O. DURGANAGAR-788722
DISTRICT KARIMGANJ
ASSAM.
40: SWARUP DAS
SON OF BIRENDRA CHANDRA DAS
VILLAGE BIDYANAGAR
P.O. NILAMBAZAR-788722
DISTRICT KARIMGANJ
ASSAM.
Page No.# 9/22
41: AJITA NATH
DAUGHTER OF SATYENDRA CHANDRA NATH
VILLAGE HALGHAT
P.O. NILAMBAZAR-788722
DISTRICT KARIMGANJ
ASSAM.
42: CHHAD UDDIN
SON OF LATE JUNAB ALI
VILLAGE AND P.O. PECHALA-788723
DISTRICT KARIMGANJ
ASSAM.
43: MONTEE PURKAYASTHA
DAUGHTER OF BANAMALI PURKAYASTHA
R.K. MISSION ROAD
P.O. KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
44: ANUBHA DAS
DAUGHTER OF LATE NARENDRA CHANDARA DAS
NARIKHALI
P.O. LAKSHMIBAZAR-788709
DISTRICT KARIMGANJ
ASSAM.
45: DWIJENDRA CHANDRA NATH
SON OF LATE RABINDRA CHANDRA DAS
INDHIRA COLONY
P.O. KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSAM.
46: MITALI PAUL
DAUGHTER OF LATE AMAL KANTI PAUL
LONGAI TEA ESTATE
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P.O. CHANDKHIRA-788725
DISTRICT KARIMGANJ
ASSAM.
47: MADHABI DEBNATH
DAUGHTER OF DAYAMOY DEBNATH
VILLAGE MARUGAON
P.O. TIHEM-788725
DISTRICT KARIMGANJ
ASSAM.
48: MOUSAMI BANIK
DAUGHTER OF MONORANJAN BANIK
BIPIN PAUL ROAD
P.O. KARIMGANJ--788711
DISTRICT KARIMGANJ
ASSAM.
49: BISHWESWAR NATH
SON OF LATE BIPIN CHANDRA NATH
VILLAGE KETKONA
P.O. SRIGOURI BBAZAR-788719
DISTRICT KARIMGANJ
ASSAM.
50: KULESH CHANDRA NATH
SON OF SATYENDRA CHANDRA NATH
VILLAGE SURIGRAM
P.O. AYLABARI-788713
DISTRICT KARIMGANJ
ASSAM.
51: SHYAMAL BHATTACHARJEE
SON OF SHYMAPADA BHATTACHARJEE
POST OFFICE RAMKRISHNA NAGAR-788166
DISTRICT KARIMGANJ
ASSAM.
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52: ARDHENDU DEB
SON OF LATE ADHAR CHANDRA DEB
POST OFFICE VETERBOND-788736
DISTRICT KARIMGANJ
ASSAM.
53: AMTI KUMAR DAS
SON OF LATE MOHIT KUMAR DAS
LAKSHMICHARAN ROAD
P.O. KARIMGANJ--788710
DISTRICT KARIMGANJ
ASSAM.
54: SAUMEN CHAKRABORTY
SON OF LATE SATYENDRA KUMAR CHAKRABORTY
MAIN ROAD
OPPOSITE R.D. GIRLS COLLEGE
POST OFFICE KARIMGANJ- 788710
DISTRICT KARIMGANJ
ASSAM.
55: RAMKRISHNA PAUL
SON OF LATE PRANBALLAB PAUL
SHIBBARI ROAD
WARD NO. 16
POST OFFICE KARIMGANJ--788710
DISTRICT KARIMGANJ
ASSAM.
56: SABYASACHI CHAKRABORTY
SON OF LATE SUDHEN CHAKRABORTY
AZAD SAGAR ROAD
P.O. SETTLEMENT ROAD -788712
DISTRICT KARIMGANJ
ASSAM.
57: SIJU DAS
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SON OF JOGADISH DAS
VILLAGE SADARASHI
P.O. KARIMGANJ-788709
DISTRICT KARIMGANJ
ASSAM.
58: MRINAL KANTI BHATTACHARJEE
SON OF LATE JNANENDRA BHATTACHARJEE
VILLAGE CHERAGIBAZAR
P.O. CHERAGI-788737
DISTRICT KARIMGANJ
ASSAM.
59: SUBHASISH PAUL
SON OF GOURANGA PAUL
BANAMALI ROAD
P.O. KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSA
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
EDUCATION (ELEMENTARY) DEPTT. DISPUR, GUWAHATI-781006, ASSAM
2:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
EDUCATION (ELEMENTARY) DEPARTMENT
DISPUR
POST OFFICE GUWAHATI- 781006
DISTRICT KAMRUP (M)
ASSAM
3:THE MEMBER SECRETARY
EMPOWERED COMMITTEE ON ELEMENTARY TEACHERS ELIGIBILITY
TEST (TET)
GOVT. OF ASSAM
EDUCATION (ELEMENTARY) DEPARTMENT
Page No.# 13/22
DISPUR
P.O. GUWAHATI-781006
ASSAM.
4:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
P.O. GUWAHATI-7810019
ASSAM
5:THE MISSION DIRECTOR
SARVA SIKHA ABHIYAN
(SSA)
ASSAM
KAHILIPARA
P.O. GUWAHATI-781019
ASSAM.
6:THE DISTRICT LEVEL SCREENING COMMITTEE
REPRESENTED BY THE DISTRICT MISSION COORDINATOR
SARVA SIKHA ABHIYAN
(SSA)
KARIMGANJ DISTRICT)
POST OFFICE KARIMGANJ-788710
DISTRICT KARIMGANJ
ASSA
Advocate for the Petitioner : MR. N DHAR
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
JUDGMENT & ORDER (CAV)
Date : 22-02-2021
(Soumitra Saikia, J.)
Heard Mr. N. Dhar, learned counsel for the review petitioners. Also heard Mr. N.
Khataniar, learned Standing counsel, Education (Elementary) Department, Government of
Page No.# 14/22
Assam appearing for respondents.
2. This review petition is directed against the common judgment and order dated 04-09-
2020 rendered in WP(C)/8068/2019 and other connected writ petitions whereby
WP(C)/8068/2019, WP(C)/5572/2017, WP(C)7174/2017 & WP(C)/7387/2017 were taken up
together for hearing and disposal.
3. The skeletal facts necessary in addressing the issues raised in the present review
petition are that by an advertisement dated 12-02-2014 issued by the Mission Director, Sarva
Siksha Abhiyan (SSA), Assam applications were invited for recruitment on contractual basis to
the posts of Assistant Teachers in Lower Primary School across eight (8) districts of Assam.
The applications of the petitioners were rejected by the Respondent Authorities as they did
not secure 50% marks in their Higher Secondary examination as per the Recruitment Rules.
The petitioners being aggrieved, challenged the rejection before this Court by filing
WP(C)/6879/2014. The grievances of the petitioners were that inspite of they being
graduates from UGC recognized universities, their Graduate qualifications were not taken into
consideration and instead their cases were rejected as they did not obtain 50% marks in their
Higher Secondary examination. During the course of hearing, the State Respondents
submitted that their case may have been rejected because of the age bar which, however,
was disputed by the petitioners as their age bar had already been condoned by the
Department. A Single Bench of this Court vide order dated 02-02-2015 disposed of the said
writ petition by holding that 50% marks in Higher Secondary examination is not necessary in
case of graduate candidates like the petitioners and therefore, the Department was directed
to make an enquiry as to whether their candidatures were rejected on the ground of age bar
and thereon was passed necessary orders.
4. A contempt petition being Contempt Case No. 02/2016 was also filed which came to be
disposed of vide order dated 11-01-2018, in view of the fact that, the direction by a Single
Bench of this Court by order dated 02-02-2015 passed in WP(C)/6879/2014 was complied
with. The respondent Department in compliance with the directions of this Court considered
their applications, but however, rejected the same by different orders. The Department
rejected the claims of the petitioners on the ground that Schedule-I to Rule 3(vi)(a) of the
Assam Elementary Education (Provincialization) Rules, 1977 did not provide for allotment of
Page No.# 15/22
marks for graduate qualifications.
5. In the year 2014, another similar advertisement dated 16-07-2014 was issued and the
petitioners again submitted their candidatures for appointment on contractual basis to the
posts of Assistant Teachers in Lower Primary School across various districts of Assam. The
applications submitted were again rejected by the Department on the ground that they did
not secure 50% marks in the Higher Secondary Examination. Being aggrieved, petitioners
preferred WP(C)/5572/2017, WP(C)/7147/2017 and WP(C)/7387/2017 assailing the orders of
the Respondent Department rejecting the representations filed by the petitioners against their
non considerations. Later WP(C)/8068/2019 was filed by the present review petitioners
whereby the petitioners prayed for a Writ of Certiorari for setting aside and quashing
Schedule-I to Rule 3 (vi)(a) of the Assam Elementary Education (Provincialisation) Rules,
1977 for selection to the posts of Lower Primary School Teachers. The petitioners also prayed
for a Writ of Mandamus directing the Respondent Authorities to amend the impugned
Schedule-I to Rule 3 (vi)(a) of the Assam Elementary Education (Provincialisation) Rules,
1977 and thereby to provide for adding of marks secured by the candidates in their graduate
degree examination from UGC recognized universities for the purpose of their selection to the
post of Assistant Teacher in Lower Primary School in accordance with Rules 3(b) & 3(vi) (a) of
the of the Assam Elementary Education (Provincialisation) Rules, 1977. Since
WP(C)/8068/2019 had put Schedule-I of Rule 3 (vi) (a) 1977 Rules to challenge, the matter
was placed before the Division Bench as per the High Court Rules. Thereafter, by subsequent
orders of this Court all these writ petitions were directed to be listed together. Consequently,
the writ petitions being WP(C)/8068/2019, WP(C)/5572/2017, WP(C)/7174/2017 and
WP(C)/7387/2017 were taken up for hearing and were disposed of vide order dated 04-09-
2020 which is presently sought to be reviewed.
6. This Court after elaborate consideration of the issues raised rejected the contentions of
the petitioners and dismissed the writ petitions. This Court vide judgment and order dated
04-09-2020 dismissed the writ petitions after arriving at the following conclusions:
(a) That pursuant to the enactment of Right to Education Act, 2009,
the NCTE vide notification dated 31-03-2010 published in the Gazette of India
on 5th April, 2010, had been declared to be the academic authority under
Page No.# 16/22
section 23 of the Act. By the notification dated 29-07-2011, the NCTE notified
the minimum qualifications for person to be eligible for appointment as a
teacher. The minimum qualifications mentioned were 50% in senior secondary
along with 2 years Diploma in Elementary Education/4 years Bachelor of
Elementary Education. By the said notification although graduation was one of
the qualifications mentioned however, the candidate must be a graduate with 2
(two) years Diploma in Elementary Education. It is seen that it is not mere
graduation but graduation and 2 (two) years diploma in Elementary Education
(by whatever name known) and TET passed to be conducted by the appropriate
Government in accordance with the guidelines framed by the NCTE for the
purposes is the minimum qualifications notified by NCTE. Under section 23(2) of
the Right to Education Act, 2009, it is only the Central Government who is
empowered to relax the minimum qualification for teachers laid down by NCTE,
if deemed necessary upon such request made by any State Government. As no
relaxation has been made by the Central Government the qualifications under
notification dated 29-07-2011 will have to be followed and given primacy in
terms of section 23 of the Right to Education Act, 2009. It is not the pleaded
case of the petitioners that the Government of Assam at the relevant point of
time had sought for, from the Central Government, relaxation/modification of
the minimum qualifications laid down by the NCTE vide notification dated 29-07-
2011, to provide for graduation only, along with TET qualification as minimum
qualification for Lower Primary School Teachers.
(b) The petitioners did not plead that they were not aware of the minimum
qualifications required as notified by NCTE, prior issuance of the advertisement
dated 16-07-2014. The notification dated 29-07-2011 issued by NCTE was also
not under challenge by the petitioners.
(c) Although, in the advertisement dated 16-07-2014 it was provided that
graduation for UGC recognized universities as one of the essential qualification,
the same being in conflict with the qualifications laid down by NCTE vide their
notification dated 29-07-2011 read with Section 3(vi)(a) of Schedule -I, of the
Page No.# 17/22
Assam Elementary Education (Provincialisation) Rules, 1977, the petitioners
cannot claim any right towards the selection and appointment to any post in
terms of the advertisement as the advertisement is in not in consonance with
the Recruitment Rules read with the NCTE notification.
(d) The State Government or its agency was under an obligation to act as per
notification issued by NCTE and not give effect to any contrary rule. The
recruitment to any service can only be made in accordance with the Recruitment
Rules and any error if any in the advertisement cannot override any Recruitment
Rule and create any right in favour of the candidates if they are not otherwise
eligible according to the Recruitment Rules.
(e) While passing the order dated 02-02-2015 passed in WP(C)/6879/2014 as
well as order dated 20-03-2015 passed in WP(C)/1541/2015 and
WP(C)/1546/2015 passed by two Single Benches of this Court, the provisions of
Right to Education Act, 2009; Notifications issued by the NCTE laying down the
mandatory qualifications and experiences, were never brought up for
consideration by the contesting parties before the Single Benches. Consequently,
there was no occasion by this Court earlier to deal with the requirement of
minimum qualifications by the petitioners in terms of the notification dated 29-
07-2014 issued by the NCTE and other subsequent notifications. The writ
petitions were disposed of ultimately directing the authorities to consider the
case of the petitioner in terms of the directions issued. A contempt petition
being Contempt Case No. 02/2016 filed by the petitioners alleging willful
disobedience of the orders passed in WP(C)/6879/2014 was closed, on
satisfaction arrived at by this Court that the case of the petitioners were duly
considered by the respondent authorities in terms of the order dated 02-02-
2015 passed in WP(C)/6876/2014. The selected candidates who have in the
meantime been appointed were also not arrayed as party respondents.
The writ petitions were accordingly dismissed as being devoid of any
merit.
Page No.# 18/22
7. We have heard the learned counsel appearing for the review petitioners and have
carefully perused the grounds taken seeking review of the judgment dated 04-09-2020. This
review petition is essentially preferred on the following grounds -
(i) That the judgment under review did not decide the core issue in
the writ petition as to whether marks secured by the review petitioners due to
their qualification over and above the minimum qualification shall be added or
not in preparing the select list for the appointment to the post of Assistant
Teachers.
(ii) That the review petitioners as the writ petitioners did not challenge
Rule 3(vi)(a) of the Rules of 1977 rather they have relied upon Rule 3(vi) (a) in
support of their case.
(iii) That it is not the case of the petitioners that Graduation alone with
or without TET qualifications can be considered sufficient for selection and
appointment of teachers. The two (2) years diploma in Elementary Education is
not available in Assam and accordingly, all candidates appointed to the post of
Assistant Teachers in Lower Primary or either Higher Secondary passed with
50% marks and TET qualification or they have graduation degrees with TET
passed qualification.
(iv) That the judgment under review requires reconsideration because
of the finding that the advertisement dated 14-07-2014 was not challenged by
the petitioners and which according to the Review petitioners was not the
subject matter in the writ petition.
(v) That the Review petitioners are neither challenging the
advertisement dated 14-07-2014 nor they are challenging the Act of 1977 or the
Rules framed thereunder but they are challenging the procedures adopted by
the authorities in the selection process in violation of the statutory rules.
(vi) That non arraying of the selected candidates in the writ proceedings
in view of the select list being published and appointment being made was error
Page No.# 19/22
apparent as the petitioners were not claiming any relief against the selected
candidates.
8. Upon hearing the learned counsel appearing for the petitioners and upon careful
perusal of the grounds taken in the review petition we find that there is no error apparent
which is noticeable on the face of the record and which requires review of the judgment. The
judgment under review upon due consideration of the pleadings and the submissions of the
contesting parties, rejected the claims of the petitioners that insistence of requirement of
50% in their Higher Secondary by the Department, is arbitrary and contrary to Statutory
Rules as they are graduate degree holders from UGC recognized universities with TET passed,
in view of the qualifications mentioned in the advertisement dated 14-07-2014. In the
judgment under review this Court inter-alia arrived at the finding that the advertisement
dated 14-07-2014 under which the writ petitioners/review petitioners have claimed their
rights did not conform to the Recruitment Rules and/or with the NCTE norms notified. As it is
not disputed that the advertisement dated 23-07-2014 is not conformity with the mandate of
the Rules read with the NCTE notification, no vested rights can accrue to the writ
petitioners/review petitioners and consequently, no direction can be issued to the Department
to consider their graduate qualification and allot marks thereon for the purpose of selection.
Under the circumstances, any direction to the contrary, will amount to interference with the
Rules and which direction ordinarily a writ Court should refrain from issuing in judicial review
under Article 226 of the Constitution of India.
9. The reference to a judgment of a Coordinate Bench ( Tayenjam Herojit Singh and others
vs. State of Manipur and others) taken in the ground "G" the review petition although not
urged at the time of hearing has also been duly noted. This Judgment by a Coordinate Bench
of this Court was considering the validity of statutory Rules governing recruitment of Primary
Teachers in the state of Manipur. The grievance of the petitioners therein was that the Central
Government by notification published at the relevant point of time, had relaxed the eligibility
criteria in respect of the state of Manipur and also provided therein that the candidates with
minimum qualifications would be preferred first and then candidates with relaxed qualification
should be considered. However, Recruitment Rules were subsequently framed by the State of
Manipur which contravened the standard of relaxation permitted by the Central Government
Page No.# 20/22
and recruitments were made without considering the candidates having stipulated
qualifications by giving preference to candidates as per the relaxed norms. The Division
Bench of this Court struck down the statutory rules as being repugnant to the Notification
issued by the Central Government under the Right to Education Act. By this judgment this
Court held that as "Education" being a subject matter under concurrent list of the
Constitution of India, executive decision/policy decision framed by the State cannot be
allowed to operate when they are contrary to statutory enactments or Rules framed by the
Central Government already occupying the field. The said executive decision/Rules framed by
the State being contrary to such statutory enactments or Rules framed by a Central
Government the same were struck down.
This judgment referred to in the review petition by the review petitioners does not
come to the aid of the review petitioners, inasmuch as, the ratio of the said judgment is that
when there is any executive decision/instruction issued by the Central Government already
occupying the field, even Recruitment Rules framed by the State cannot operate in a field
already occupied. In the facts of the present case, by our judgment dated 04-09-2020 under
review, it was categorically held that any recruitment process cannot be contrary to the
Recruitment Rules as well as the notifications issued by the NCTE as the Academic Authority
appointed by the Central Government under section 23 of the RTE Act, 2009. We are satisfied
that the Judgment dated 04-09-2020 does not call for any review.
10. It is trite to mention here that the spirit of the order 47 Rule 1 of the Code of Civil
Procedure, 1908 (in short C.P.C.) is equally applicable in a review jurisdiction under article
226 of the Constitution of India. The review jurisdiction under article 226 of the Constitution
of India is extremely limited and is only available for any error apparent on the face of the
record. The power of review must be exercised within the framed work of under section 11
read with Order 47 of the Code of Civil Procedure, 1908. The Apex Court in the case of Union
of India v. B. Valluvan, reported in (2006) 8 SCC 686 held that:-
"16. The Division Bench of the High Court committed a serious error in
entering into the merit of the matter while exercising its review
jurisdiction. The Court's jurisdiction to review its own judgment, as is well
known, is limited. The High Court, indisputably, has a power of
Page No.# 21/22
review, but it must be exercised within the framework of
Section 114 read with Order 47 of the Code of Civil Procedure.
The High Court did not arrive at a finding that there existed an error on
the face of the record. In fact, the High Court, despite noticing the
argument advanced on behalf of the Union of India that the 1st
respondent had no legal right to be appointed, proceeded to opine that
the panel prepared for filling up of future vacancies should be given
effect to. The review of the High Court was not only contrary to the
circular letter issued by the Union of India, but also contrary to the
general principles of law."
(Emphasis Supplied)
11. In another judgment the Apex Court in the case of Sivakami v. State of T.N.,
reported in (2018) 4 SCC 587 held that the power of review under Order 47 Rule is 1 very
limited and may be exercised only if there is a mistake or an error apparent on the face of the
record. Power of review is not to be confused with Appellate powers. The review
petitions/applications cannot be decided like regular intra-court appeal. Relevant paragraphs
are extracted below:
" 18. The scope of the appellate powers and the review powers is well
defined. The power of review under Order 47 Rule 1 of the Code of Civil
Procedure, 1908 is very limited and it may be exercised only if there is a
mistake or an error apparent on the face of the record. The power of
review is not to be confused with the appellate power. The review
petition/application cannot be decided like a regular intra-court appeal.
On the other hand, the scope of appeal is much wider wherein all the
issues raised by the parties are open for examination by the appellate
court.
19. A fortiori, what was not decided in appeal by the Division Bench
could not be decided by the Division Bench while deciding the review
application. It is for this reason, we are also constrained to set aside the
review order."
Page No.# 22/22
12. We have carefully perused the judgment under review and are of the view that in the
facts and circumstances of the case, no vested right can accrue to the writ petitioners by way
of an advertisement which is contrary to the Recruitment Rules as well as NCTE notification.
We are of the view that the judgment does not call for any review and the present Review
Petition is accordingly dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
