Gauhati High Court
Page No.# 1/7 vs Smt Jyotismita Devi And 16 Ors on 25 February, 2021
Page No.# 1/7
GAHC010071452018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/261/2018
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM(SECONDARY) DEPARTMENT, DISPUR,
GUWAHATI 06
2: THE DIRECTOR OF SECONDARY EDUCATION
KAHILIPARA
GUWAHATI-1
VERSUS
SMT JYOTISMITA DEVI AND 16 ORS
W/O. SHRI TAPAN SARMA, R/O. BELTOLA, LAKHIMI PATH, KAILASH
NAGAR, HOUSE NO. 1, BYE LANE 1, GUWAHATI.781028
2:SMT. DEBASHREE SINHA
D/O. SHRI DEBADAS SARMA
R/O. WEST SINGARI
P.O. SINGARI
SILCHAR
DIST.- CACHAR. 78801
3:SHRI SHOBH NATH VARMA
S/O. LT. SHREERAM VARMA
R/O. KHARI KHARA
P.O. KHARI KHARA
LANKA
DIST. HOJAI. 782435
4:SMT. MEENA PANDEY MISHRA
W/O. SANJIB KR. MISHRA
R/O. EAST AMOLAPATTY
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D.B. ROAD
HOUSING COLONY
P.O. ITACHALI
NAGAON. 782442
5:SHRI PUNAM PANDEY
S/O. RAMESWAR PANDEY
R/O. GANDHIBASTI
SHILPUKHURI
BYE LANE-3
HPUSE 2
P.O. CHANDMARI
DIST. KAMRUP. 781003
6:SHRI SUMIT KUMAR THAKUR
S/O. SRI RAM KRIPAL THAKUR
R/O. PANIGAON SANTIBAN
P.O. ITACHALI
NAGAON.782442
7:SHRI DEEPAK KUMAR GUPTA
S/O. LAKHI NARAYAN GUPTA
R/O. NEAR GURU DWAR ROAD
P.O. BONGAIGAON
DIST. BONGAIGAON.
8:SMT. PUNITA SINGH
W/O. SANJAY SINGH
R/O. MANDULI
P.O. KHARIKHANA
DIST. HOJAI.782435
9:SHRI RAHUL PANDEY
S/O. RAM NIWASH PANDEY
R/O. VANDANA PRESS SHILLONG ROAD
P.O. LANKA
NAGAON.
10:SHRI MANISH KUMAR RATHOR
S/O. BISHNUPUR WARD NO 1
P.O. MORANHAT
DIST. SIVASAGAR. 785685
11:JEBA PARVEEN
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D/O. MR. RAFIK AHMED
R/O. MARAN KUKHAL NAGAR
P.O. MORANHAT
DIST. SIVASAGAR.
12:SMT. SARITA PANDEY
D/O. MR. GANGA PANDEY
R/O. BOGAPANI T.E. LINE NO 10
VILL. BOGAPANI GAON
P.O. BOGAPANI
P.S. DIGBOI
DIST. TINSUKIA. 786125
13:JAHANARA RAHMAN
W/O. MOSFIQUR RAHMAN ALOM
D/O. AZIZUR RAHMAN
VILL. KUTUBPUR
P.S. BISPURIA
DIST. LAKHIMPUR
ASSAM 784161
14:DEBASHREE SINHA
D/O SHRI DEBADAS SINHA R/O SINGARI WEST
P.O. SINGARI
SILCHAR DIST. CACHAR 78801
15:SMTI. AMRITA SINGH
D/O LT. KRISHNA MOHAN SINGH C/O BIRJA MOHAN SINGH VILL- BIDYA
NAGAR
T.E. P.O. BIDYANAGAR DIST. KARIMGANJ
ASSAM 781102
16:MS. REHANA BEGUM
D/O MANAR UDDIN VILL- DAKSHIN MOHANPUR
PT.X
P.O. DAKSHIN MOHANPUR DIST. CACHAR
ASSAM 78801
17:SMTI. SANJALI BARMAN
D/O CONGRESS BARMAN
VILL- SHEORATAL P.O. DHOLAI DIST. CACHAR
ASSAM 7880
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BEFORE
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
Advocate for the Appellants : Mr. K. P. Pathak, Advocate.
Advocates for respondents : Mr. B. D. Das, Senior Advocate,
Mr. S. K. Sarma, Advocate.
Date of hearing and judgment & Order : 25.02.2021
JUDGMENT & ORDER (ORAL)
(Sudhanshu Dhulia, CJ)
Heard Mr. K. P. Pathak, learned counsel for the appellants. Also heard Mr. B. D.
Das, learned senior counsel for the respondents.
2. This writ appeal has been filed by the State aggrieved by the common
judgment and order of the learned Single Judge dated 30.05.2017 passed in WP(C)
440/2017, WP(C) 1830/2017 and WP(C) 350/2017. The writ petitioners were
aggrieved by Clause 4 of the Office Memorandum dated 14.07.2016, passed by the
Government of Assam, Secondary Education Department, Dispur, Guwahati. The
subject of the Memorandum was regarding appointment of Graduate Teacher including
Language Teacher/Hindi Teacher/Classical Teacher in provincialised Higher
Secondary/High Schools. One of the stipulated conditions in the Office Memorandum
was given in Clause 4 as follows:
"(4) No candidate is allowed to apply in the Bengali/Hindi/Assamese
medium schools if the candidate does not have MIL in Bengali, Hindi and
Assamese respectively in the HSLC Examination as the case may be.
Only candidates having Bengali, Hindi and Assamese as MIL in HSLC
Examination are allowed for applying in the schools which are imparting
education in Bengali, Hindi and Assamese medium exclusively."
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3. The argument of the learned counsel for the petitioners before the learned
Single Judge was that education qualifications of teachers are prescribed by statutory
rules known as Assam Secondary Education (Provincialised) Service Rules, 2003 of the
Constitution of India and Rule 10 reads as under:
"10. Academic and professional qualification-The academic and
professional qualification for direct recruitment shall be as in Schedule-II:
Provided that in addition to such academic and professional
qualifications mentioned in Schedule-II, for direct recruitment to the
posts all candidates shall have to appear and pass in the Teachers
Eligibility Test (TET) conducted by the Government scoring a minimum of
60% marks in case of general category candidates and minimum of 55%
marks in case of SC/ST/OBC/Physically handicapped candidates:
Provided further that the conduct of Teachers Eligibility Test shall
be an eligibility test and not test for recruitment for the posts of
Teachers. Qualifying in the Teachers Eligibility Test (TET) shall not entitle
any person to claim appointment as a Teacher."
4. The relevant provisions of Schedule-II, with which we are presently concerned,
prescribed the qualifications inter-alia Hindi Teacher/Classical Teacher which reads as
under:
"(iii) Hindi Teacher:- Pravin/Ratna in Hindi with 50% marks having
degree qualification from any recognized University or B.A. with Hindi as
one of the subjects with 50% marks and B.T/B.Ed degree from any
recognized University [Parangat to be treated as B.Ed degree only for the
purpose of Hindi teaching];
(vi) Classical Teacher (Assamese Language, Manipuri
Language):- B.A. with Hons/Major in the concerned subject with 50%
marks and B.T./B.Ed degree from any recognized University;"
5. The case of the petitioners before the learned Single Judge was that the
educational qualification is given in the statutory Rules which do not prescribed that a
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candidate who is applying in Bengali/Hindi/Assamese medium schools, must have
Bengali, Hindi and Assamese as a medium in Modern India Language (MIL). The Office
Memorandum is therefore in contradiction with the Rules and the learned Single Judge
agreeing with the contentions of the Mr. B. D. Das, learned senior counsel for the
petitioners, allowed the writ petition by observing as follows:
"XXXXXX
16. In view of the above discussion, Clause (4) of the Office
Memorandum dated 14.07.2016, being in transgression of and in conflict
with Rule 10 read with Schedule-II of the 2003 Rules, cannot be
sustained and, therefore, Clause (4) of the Office Memorandum dated
14.07.2016 is struck down. It is immaterial that subsequently, by issuing
notifications, the eligibility conditions prescribed in Clause (4) of the
Office Memorandum dated 14.07.2016 were watered down. Even after
the rigour of Clause (4) is relaxed, the conditions regarding the eligibility
prescribed therein are beyond the ambit of Rule 10 read with Schedule-II
of the 2003 Rules.
17. Resultantly, the writ petitions are allowed.
18. The respondents are directed to declare the results of the
petitioners in respect of the advertisements in response to which they
had submitted their candidature and, depending upon the result, to take
such consequential steps as may be necessary.
XXXXXX"
6. Aggrieved by the said order, this appeal has been filed before this Court. The
fact remains that by now that the State itself has given relaxation to most of the
candidates who are otherwise eligible if their eligibility is strictly read in accordance
with Clause 4 of the Office Memorandum dated 14.07.2016. The relaxation has been
given inasmuch as such candidates having diploma from Assam Sahitya Sabha, Bengali
Sahitya Sabha are held to be eligible. In any case, we are totally in agreement with the
observation of the learned Single Judge. The qualifications have given in the Rules, i.e.
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in the present case. Rule 10 read with Schedule-II. The Government is well within its
rights to ask for additional qualifications in case the same is required but while doing
so, it will have to change the Rules. It cannot be done by an executive fiat which is
also contrary to the Rules.
7. This Court has been informed that subsequent to this order, the Rules have also
been amended.
8. In view thereof, this writ appeal stands dismissed as we do not find any scope
of interference with the order of the learned Single Judge.
JUDGE CHIEF JUSTICE
Comparing Assistant
