WP(C)/345/2021
2021 Latest Caselaw 2746 Gua

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GAHC010010352021




                              THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  WP(C) No. 345/2021
     Smt. Ajanta Ray
                                                        ... Petitioner
                          Vs.
     1.   The State of Assam,
     2.   The Secretary
     3.   The Mission Director cum Project Director
     4.   The Member Secretary
     5.   The Director of Secondary Education
                                                         ... Respondents

WP(C) No. 409/2021

Smt. GitanjaliDihingia .................... Petitioner Vs.

1. The State of Assam.,

2. The Secretary

3. The Mission Director cum Project Director

4. The Member Secretary

5. The Director of Secondary Education

................... Respondents

WP(C) No. 457/2021

1. Shri Manash Jyoti Saikia and Page No.# 2/16

2. Shri Mridul Bora .................... Petitioners Vs.

1. The State of Assam.,

2. The Secretary

3. The Mission Director cum Project Director

4. The Member Secretary

5. The Director of Secondary Education

................... Respondents WP(C) No. 622 /2021

Shri Johirul Islam .................... Petitioner Vs.

1. The State of Assam.,

2. The Secretary

3. The Mission Director cum Project Director

4. The Member Secretary

5. The Director of Secondary Education

................... Respondents

WP(C) No. 646 /2021

Shri Ratul Barman .................... Petitioner Vs.

1. The State of Assam.,

2. The Secretary

3. The Mission Director cum Project Director

4. The Member Secretary

5. The Director of Secondary Education ................... Respondents

WP(C) No. 662 /2021 Page No.# 3/16

Smti. Snehalata Roy .................... Petitioner Vs.

1. The State of Assam,

2. The Secretary

3. The Mission Director cum Project Director

4. The Member Secretary

5. The Director of Secondary Education

................... Respondents

WP(C) No. 664 /2021

Shri Mahesh Rabidas .................... Petitioner Vs.

1. The State of Assam.,

2. The Secretary

3. The Mission Director cum Project Director

4. The Member Secretary

5. The Director of Secondary Education

................... Respondents

WP(C) No. 670 /2021

1. ParthaNaryan Sinha and

2. Smt. Usha Lata Devi .................... Petitioners Vs.

1. The State of Assam.,

2. The Secretary

3. The Mission Director cum Project Director

4. The Member Secretary

5. The Director of Secondary Education

................... Respondents Page No.# 4/16

BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI

For the Petitioners : Shri K.N. Choudhury, Senior Advocate, (Assisted by Shri L.N. Dihingia, Advocate) {in WP(C) Nos. 345,409 & 457 of 2021}

Shri P.J. Saikia, Advocate, {in WP(C) Nos. 622,646,664 & 670 of 2021}

Shri A. Deka, Advocate, (in WP(C) No. 662/2021)

For the Respondents : Ms. P. Chakraborty, Standing Counsel, Secondary Education, Assam.

Dates of Hearing       :        04.10.2021.

Date of Judgment        :      09.11.2021.



                                  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 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 Graduate Teacher pursuant to an advertisement dated 13.11.2019. 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 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 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 Page No.# 5/16

controversy to rest and there would not be any hurdle/ hindrance in considering the appointment of the petitioners as Graduate Teachers.

3. For better appreciation of the issue, it would be convenient to briefly narrate the facts of each case.

4. The petitioner in WP(C)/345/2021 Smt. Ajanta Ray, who belongs to the OBC category had applied for appointment pursuant to an advertisement dated 11.09.2020 for the post of Graduate Teacher. It is the case of the petitioner that she was having the necessary qualification in all respects, including the TET qualification. The petitioner has contended that in the TET examination held on 19.01.2020, she had come out successful securing 127 marks out of 200.

5. The petitioner in WP(C)/409/2021 Smt. Gitanjali Dihingia, who belongs to the OBC category had applied for appointment pursuant to the advertisement dated 11.09.2020 for the post of Graduate Teacher. It is the case of the petitioner that she was having the necessary qualification in all respects, including the TET qualification. The petitioner has contended that in the TET examination held on 19.01.2020, she had come out successful securing 134 marks out of 200.

6. The petitioners in WP(C)/457/2021, 1. Shri Manash Jyoti Saikia and 2. ShriMridul Bora, who belongs to the OBC / MOBC category had applied for appointment pursuant to the advertisement dated 11.09.2020 for the post of Graduate Teacher. It is the case of the petitioners that they were having the necessary qualification in all respects, including the TET qualification. The petitioners have contended that in the TET examination held on 19.01.2020, they have come out successful securing 117 and 132 marks, respectively out of

200.

7. The petitioner in WP(C)/622/2021 Johirul Islam, who belongs to the MOBC category had applied for appointment pursuant to the advertisement dated 11.09.2020 for the post of Page No.# 6/16

Graduate Teacher. It is the case of the petitioner that he was having the necessary qualification in all respects, including the TET qualification. The petitioner has contended that in the TET examination held on 19.01.2020, he had come out successful securing 132 marks out of 200.

8. The petitioner in WP(C)/646/2021 Shri Ratul Barman, who belongs to the OBC category had applied for appointment pursuant to the advertisement dated 11.09.2020 for the post of Graduate Teacher. It is the case of the petitioner that he was having the necessary qualification in all respects, including the TET qualification. The petitioner has contended that in the TET examination held on 19.01.2020, he had come out successful securing 121 marks out of 200.

9. The petitioner in WP(C)/662/2021 Smti. Snehalata Roy, who belongs to the MOBC category had applied for appointment pursuant to the advertisement dated 11.09.2020 for the post of Graduate Teacher. It is the case of the petitioner that she was having the necessary qualification in all respects, including the TET qualification. The petitioner has contended that in the TET examination held on 19.01.2020, she had come out successful securing 114 marks out of 200.

10. The petitioner in WP(C)/664/2021 Shri Mahesh Rabidas, who belongs to the SC category had applied for appointment pursuant to the advertisement dated 11.09.2020 for the post of Graduate Teacher. It is the case of the petitioner that he was having the necessary qualification in all respects, including the TET qualification. The petitioner has contended that in the TET examination held on 19.01.2020, he had come out successful securing 136 marks out of 200.

11. The petitioners in WP(C)/670/2021 1. ParthaNaryan Sinha and 2. Smt. Usha Lata Devi, who belong to the OBC / MOBC category had applied for appointment pursuant to the advertisement dated 11.09.2020 for the post of Graduate Teacher. It is the case of the petitioners that they were having the necessary qualification in all respects, including the TET Page No.# 7/16

qualification. The petitioners have contended that in the TET examination held on 19.01.2020, they have come out successful securing 136 and 117 marks, respectively out of

200.

12. It is the common case of the petitioners that in the year 2014, an advertisement was issued for holding a special TET examination in which the petitioners had applied for. However, due to reasons best known to the authorities, the examination was not held followed by publication of another advertisement in the year 2017 for TET, which clarified that candidates who had applied earlier was not required to apply again. It is the case of the petitioners that even that process was abandoned with publication of another advertisement in the year 2019 with the same condition of not requiring to apply afresh. It is in this examination held on 19.01.2020 that the petitioners were declared successful.

13. The advertisement dated 11.09.2020 was for 5746 nos. of posts of Graduate Teacher in different districts all across the State of Assam, both Science and Arts. In the eligibility criteria, in Sl. No.2 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 40 years for unreserved category, 43 years for Ex-serviceman, 43 years for OBC / MOBC, 45 years for SC / ST(P) / ST(H), and 50 years for PwD as on 01.01.2020, as per Government Office Memorandum 02.09.2020. It is further provided that 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 40 years.

14. It is an admitted case that none of the petitioners had acquired the TET qualification within the upper age prescribed for various categories. However, it is also a fact that even before the advertisement dated 11.09.2020 was issued, all the petitioners were possessing TET qualification. It appears that due to non-fulfillment of the aforesaid criteria of TET, the candidatures of the petitioners were rejected.

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15. I have heard Shri K.N. Choudhury, learned Senior Counsel assisted by Shri L.N.Dihingia, learned counsel for the petitioners in WP(C)/345, 409 and 457/2021; Shri P.J.Saikia, learned counsel for the petitioners in WP(C)/622, 646, 664 and 670/2021 and Shri A. Deka, learned counsel for the petitioner in WP(C)/662/2021. On the other hand, the State respondents are represented by Ms. P. Chakraborty, learned Standing Counsel, Secondary Education Department, Assam.

16. Shri Choudhury, learned Senior Counsel for the petitioners has 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 is 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. The learned Senior Counsel submits 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 qualification. It is 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.

17. It is further contended that on behalf of the petitioners that the rejection of the cases of the petitioners being on trivial ground, the same is required to be interfered with and the petitioners be directed to offer appointment as Graduate Teachers. It is submitted that vacancies are still existing, and in this connection, the attention of this Court has been drawn to an order dated 04.02.2021 wherein, this Court had recorded the submission of the learned Standing Counsel of the Department that a number of posts of Graduate Teacher are still lying vacant.

18. During the pendency of this writ petition, 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 Page No.# 9/16

Office Memorandum No. ABP 06/2016/51, dated 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.

19. The learned Senior Counsel has also placed on record the earlier notification dated 02.09.2020 issued by the Personnel (B) Department. As per the said notification, while the Government had decided to raise the upper age limit for entry into the State Government service from 38 years to 40 years in Grade-III and Grade-IV posts, decision was also taken to raise the upper age limit by different years for different categories of employees, General, OBC/MOBC, SC and ST. The notification further made it clear that there would be no change in the procedure of recruitment or any relaxation of educational or other qualification prior to crossing of their existing upper age limit.

20. The learned Senior Counsel for the petitioners, accordingly submits that in view of such development, the authorities cannot reject the cases of the petitioners as the reason of rejection itself has been withdrawn.

21. 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 Graduate Teachers;

ii) The controversy regarding acquiring of TET qualification should not come into the way for appointing the petitioners as Graduate Teachers inasmuch as, such qualification was acquired much prior to the recruitment process initiated by the advertisement dated 02.09.2020;

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iii) That the requirement to possess TET 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 Graduate Teachers on the basis of the marks secured;

iv) The availability of vacancies to accommodate the petitioners is already recorded by this Court in the order dated 04.02.2021 as per the instructions of the learned Standing Counsel of the Department.

22. Shri P.J.Saikia and Shri A. Deka, learned counsel for the petitioners in few of the cases have endorsed the submissions of Shri K.N. Choudhury, learned Senior Counsel. However, Shri A. Deka, learned counsel additionally submits that in his case, namely, WP(C)/662/2021 where there is one petitioner, he has challenged the selection process.

23. Per contra, Ms. P. Chakraborty, learned Standing Counsel, Secondary 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 11.09.2020. 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 qualification was acquired after the prescribed age.

24. 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 Ms. Chakraborty, 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 Page No.# 11/16

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 qualification within a particular age;

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.

25. In support of her submissions, the learned Standing Counsel, Education relies upon the following decisions:

i) (1999) 1 SCC 544; [Gopal KrushnaRath vs. M.A.A. Baig (Dead) by LRS. &Ors.]

ii) (2001) 3 SCC 110; [O.P. Lather &Ors. Vs. Satish Kumar Kakkar&Ors.]

iii) (2005) 3 SCC 618; [Food Corporation of India &Ors. Vs. Bhanu Lodh&Ors.]

iv) (2007) 11 SCC 599; [Surinder Singh vs. Union of India &Ors.]

(v) (2008) 4 SCC 171; [Dhananjay Malik &Ors. Vs. State of Uttaranchal &Ors.]

(vi) (2013) 12 SCC 226; [Kuchchh Jal SankatNivaran Samiti &Ors. Vs. State of Gujarat & Another.]

(vii) (2015) 9 SCC 657; [Parisons Agrotech Private Limited & Another vs. Union of India &Ors.]

(viii)(2019) 9 SCC 710; [Kerela State Beverages (M and M) Corporation Limited vs. P.P. Suresh and Ors.]

26. Shri Choudhury, the learned Senior Counsel for the petitioners, in his rejoinder submits Page No.# 12/16

that it is a fact that the petitioners have obtained the TET qualification in a process which have started in the year 2014 and had culminated in the year 2019. As stated above, the results of the TET examination held in the year 2014 and thereafter in 2017 not having been declared and the advertisement for the TET examination held in the year 2019 having specified that incumbents who have applied as per earlier advertisements need not submit fresh application would leave no room but to accept that the TET qualification of the petitioners have to relate back to the year 2014. It is further submitted that the petitioners were not at fault for not holding the TET examination on time. It has also been brought to the notice of this Court that as per notification dated 11.02.2021, more specifically, clause 11 thereof, holding of TET examination at least once every year is a mandatory requirement and the petitioners cannot be made to suffer due to the fault of the Department.

27. By dealing with the citations, the learned Counsel for the petitioners submits that none of the case laws relied upon by the respondents are applicable in the instant case and in view of the Corrigendum dated 20.02.2021, this Court in exercise of Article 226 of the Constitution of India has the power to mould the relief.

28. In these bunch of writ petitions, there are in total 10(ten) number of petitioners. It is not the case of the respondents that the petitioners are not possessing the requisite qualification of TET and the objection is only with regard to the date when such qualification of TET was acquired. As per the advertisement, the aforesaid qualification was required to be procured within a particular age. It is the further case of the petitioners that the TET examination though was notified in the year 2014 in which the petitioners had applied was not held in the said year. Subsequently, even in the year 2017, a fresh process was started which also did not see the light of the day. Finally, in the year 2019, the TET examination was conducted with the stipulation that incumbents who had applied in the earlier process need not apply afresh. Therefore, there is no ambiguity, whatsoever, to the proposition that the TET examination held in the year 2019 is a continuation of the process initiated in the year 2014. Accordingly, this Court finds force in the argument made on behalf of the petitioners that by virtue of the TET qualification acquired in the year 2019, the same would relate back Page No.# 13/16

to the year 2014 and therefore, the condition requiring that all qualification should be attained within a particular age are duly met by all the petitioners.

29. 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 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.

30. As regards, the vacancy position, this Court has already observed above that as per the instruction of the learned Standing Counsel for the Department herself, vacancies in the post of Graduate Teachers are existing which have already been recorded in the order dated 04.12.2021. Further, from the deliberations, it has been revealed that out of 5746 nos. of posts advertised, only 4190 nos. of vacancies have been filled up.

31. Let us now examine the case laws relied upon by the Department.

32. In the case of Gopal Krushna Rath (supra) the Hon'ble Supreme Court by relying upon an earlier case has reiterated that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. However, the Supreme Court has itself kept a window by use of the expression "necessary implication" and in the instant case, only the parent O.M. dated 02.09.2020 is sought to be clarified. In the opinion of this Court, the ratio of this case would rather come to the aid of the petitioners.

33. The case of O.P. Lather (supra) has been relied upon to bring home the contention that a Corrigendum is prospective. Though there is not dispute to be general proposition, in the instant case the Corrigendum is clarificatory in nature and the Rules of interpretation Page No.# 14/16

would require that the same is related back to the parent notification dated 02.09.2020.

34. In the case of F.C.I. (supra), the Hon'ble Supreme Court has laid down that merely because the vacancies are notified, there is no obligation to fill up all the vacancies. However, in the instant case, it is not a case where vacancies have been decided not to be filled up but the candidatures of the petitioners were itself rejected and apart from the fact that vacancies are existing, the appointment of Graduate Teachers are directly connected to the public interest.

35. In the case of Surinder Singh (supra) the Hon'ble Supreme Court laid down that it is the prerogative and authority of the employer to lay down suitable service conditions to the respective post. In the opinion of this Court, the said case will have no manner of application in the present case as the same is not a case for exemption from obtaining the TET qualification.

36. The case of Dhananjay Malik (supra) has been cited to bring home the contention that having participated in the selection process, a candidate is estopped from complaining regarding the same. However, in the instant case, there is neither any complaint nor dispute with regard to the requirement to possess TET qualification.

37. The case of Kuchchh Jal Sankar (supra) and Parisons Agrotech (supra) have been cited in support of his submissions that policy of the Government is not normally to be interfered with. This Court is in humble agreement on the said proposition. However, the same will not have any application in the present case as no policy has been put to challenge.

38. The case of Kerela State Beverages (supra) pertains to procedural legitimate explanation which in the opinion of this Court will not have any application to the facts of the present case.

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39. On the other hand, it would be beneficial to refer to a decision rendered by a 3 Judges Bench of the Hon'ble Supreme Court reported in (2005) 3 SCC 73 [WPIL Ltd., Ghaziabad vs. Commissioner of Central Excise, Meerut, U.P.], the said judgment was in context of a clarificatory notification. In para 15 of the said judgment, the following has been laid down:-

"The learned counsel for the appellant is also right in relying upon a decision of this Court in CCE vs. Wood Craft Products Ltd. In that case, this Court held that a clarificatory notification would take effect retrospectively. Such a notification merely clarifies the position and makes explicit what was implicit. Clarificatory notifications have been issued to end the dispute between the parties.

40. 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 candidatures of the petitioners appear to be on the ground of not acquiring the TET 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 a wholly flimsy and unsustainable ground.

41. 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 qualification acquired by the petitioners prior to the recruitment process 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 Graduate Teacher as per the Advertisement dated 11.09.2020 shall be duly considered and based upon their positions in the Merit List be offered expeditiously and in any case within an outer limit of 45 days from today.

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42. The writ petitions accordingly stands allowed.

JUDGE

Comparing Assistant