Gauhati High Court
Page No.# 1/14 vs Abdul Manaf on 24 November, 2021
Page No.# 1/14
GAHC010163282021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/276/2021
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT,
DISPUR, GUWAHATI-6
2: THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-1
VERSUS
ABDUL MANAF
S/O ABDUL AZIZ, R/O VILL- BIDYANAGAR T.E., P.O.-BIDYANAGAR, DIST-
KARIMGANJ, ASSAM
Advocate for the Petitioner : MR. N J KHATANIAR (SC, EDUCATION)
Advocate for the Respondent : MR. J RAHMAN
Linked Case : WA/252/2021
THE STATE OF ASSAM AND ANR.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
EDUCATION (ELEMENTARY) DEPARTMENT
DISPUR
GUWAHATI-6.
Page No.# 2/14
2: THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI 781019.
VERSUS
SNIGDHA BORKOTOKY AND 34 ORS.
D/O- SRI BUDHIN CHANDRA BORKOTOKY R/O- VILL.-MADHUPUR
BISWANATH CHARIALI P.O.- CHARIALI P.S.- BISWANATH CHARIALI PIN-
784176 DIST.- BISWANATH
ASSAM
2:ABHISHEK SAH
S/O- BHOGENDRA SAH
R/O- KRISHNA NAGAR
L.K. ROAD
HAIBARGAON
P.O.- HAIBARGAON
DIST- NAGAON
ASSAM
PIN- 782002
3:SUMIT SONAR
S/O- NANDALAL SONAR
R/O- VILL- KALKALIGHAT
P.O.- KALKALIGHATL
P.S.- PATHARKANDI
DIST- KARIMGANJ (ASSAM)
PIN- 788725.
4:RAJIV KAMAR
S/O- KRISHNA PRASAD KAMAR
R/O- VILL- DIGBOI
P.O. DIGBOI
DIST TINSUKIA (ASSAM)
PIN- 786171.
5:RUPAM KUMARI RAI
D/O- RAMESH RAI
R/O- VILL- LEDO
P.O.- LEDO
Page No.# 3/14
DIST TINSUKIA (ASSAM)
PIN- 786182
6:PAWAN KUMAR
S/O- PASHUPATI NATH SAH
R/O- VILL.- GAURIPURL
P.O.- GHABHERUBHETI
P.S.- PHILLOBARI
DIST TINSUKIA (ASSAM)
PIN- 786160
7:RAMBHA KUMARI
D/O- BIDHYANEHAL SINGH
R/O- VILL- JUGLANI
P.O.- BOKAJAN
P.S.- SALONIBARI
DIST SONITPUR(ASSAM)
PIN- 784105.
8:AMAR JYOTI PRASAD
S/O- DHRUBA NARAYAN PRASAD
R/O- VILL- KACHUPUKHURI
P.O.- KACHUPUKHURI
DIST KARBI ANGLONG (ASSAM)
PIN- 782482
9:SANOJ KUMAR KARKI
S/O- CHANDRA BAHADUR KARKI
R/O- VILL- BORSOLA
P.O- BORSOLA
DIST- SONITPUR(ASSAM)
PIN- 784110.
10:AJIT KUMAR RAM
S/O- RAMNATH RAM
R/O- VILL- MOSOKA
P.O- HAWAIPUR
DIST- WEST KARBI ANGLONG(ASSAM)
Page No.# 4/14
PIN- 782446.
11:ARATI PAUL
D/O- MANJEE PAUL
R/O- VILL- JAMPATHAR
P.O- KHERONI
P.S.- KHERONI
DIST- WEST KARBI ANGLONG (ASSAM)
PIN- 782448.
12:JAYANTI BISWAS
D/O- LATE KRISHNA KANTA BISWAS
R/O- VILL- NIZ LALUK
P.O.- LALUK
P.S.- LALUK
DIST- NORTH LAKHIMPUR (ASSAM)
PIN- 784160
13:AYUSHI VERMA
D/O- LATE RATAN LAL VERMA
R/O- VILL- DULLABEHERRA BARA BAZAR
P.O- DULLABEHERRA
P.S.- RATABARI
DIST- KARIMGANJ (ASSAM)
PIN- 788736
14:SAPNA CHHETRI
D/O- SAMBHU CHHETRI
R/O- VILL- NO.2 SUAGPUR
P.O.- NO.2 SUAGPUR
P.S.- GORESWAR
DIST- BAKSA (ASSAM)
PIN- 781364.
15:SWAPNA CHAKRABORTY
D/O- LATE RANJIT CHAKRABORTY
R/O- VILL- SILCHAR
Page No.# 5/14
TARAPUR (ROYGARH)
P.O.- TARAPUR
DIST- CACHAR (ASSAM)
PIN- 788003.
16:SABITA CHAUHAN
D/O- UMA SHANKAR CHAUHAN
R/O- VILL- MORIKOLONG BASBARI
P.O.- NAGAON
P.S.- SADAR
DIST- NAGAON (ASSAM)
PIN- 782001.
17:USHA PRASAD
D/O- HARI RAM PRASAD
R/O- VILL- DOOMDOOMA
P.O.- DOOMDOOMA
DIST.- TINSUKIA (ASSAM)
PIN- 786151.
18:BIR SHANKAR RAY
S/O- LATE CHANDEV RAY
R/O- VILL- NAGAR PATTY
TARUN PHUKAN ROAD
P.O- DOOMDOOMA
DIST.- TINSUKIA (ASSAM)
PIN- 786151.
19:SANJIT VERMA
S/O- AMARNATH VERMA
R/O VILL- MANDULI
P.O.- KHARIKHANA
DIST- HOJAI (ASSAM)
PIN- 782446.
20:BASANTI BALA
D/O- ANII BALA
R/O- VILL- TINSUKIA
Page No.# 6/14
P.O.- TINSUKIA
DIST.- TINSUKIA (ASSAM)
PIN- 786125.
21:JULEKHA KHATUN
D/O- MD. HAMEED ANSARI
R/O- VILL- DOSTINAGAR
P.O.- GOALPARA
DIST- GOALPARA (ASSAM)
PIN- 783101.
22:SURAJMAL CHAUHAN
S/O- RAMPA.. CHAUHAN
R/O-VILL- KHERONI KACHARI GAON
P.O.- KHERONI
P.S.- KHERONI
DIST- WEST KARBI ANGLONG (ASSAM)
PIN- 782448
23:SHAHANJ BEGUM
W/O- ABDUL MANAF
R/O- VILL- BIDYANAGAR T.E.
P.O.- BIDYANAGAR
DIST- KARIMGANJ (ASSAM)
PIN
24:ALKA SINGH
D/O- RANA PRATAP SINGH
R/O- CENTRAL DIGBOI
P.O. P.S.- DIGBOI
DIST- TINSUKIA (ASSAM)
PIN- 786171
25:SUMAN KUMARI VERMA
D/O- SURESH VERMA
R/O- VILL- JENGKHA NO.1
P.O.- JENGKHA
P.S.- KHERONI
DIST- WEST KARBI ANGLONG (ASSAM)
Page No.# 7/14
PIN- 782448.
26:SUNITA CHAUHAN
D/O- BIKRAM CHAUHAN
R/O- VILL- BAGISADUBI NO.2
P.O.- KHERONI
P.S.- KHERONI
DIST- WEST KARBI ANGLONG (ASSAM)
PIN- 782448.
27:CHANDAN KUMAR YADAV
S/O- RAMAYAN YADAV
R/O- VILL- LOONPURIA BENGALI GAON
P.O.- PANITOLA
DIST- TINSUKIA (ASSAM)
PIN- 786183.
28:SWETA SINGH
D/O- RAMSURESH SINGH
R/O- VILL- WATIZOR NO.2
P.O.- FOREST BAZAR
P.S.- KHERONI
DIST- WEST KARBI ANGLONG (ASSAM)
PIN- 782448.
29:MINARA BEGUM
D/O- MD. SAHABUDDIN
R/O- VILL- NIZ. BANSKANDI PART 4
P.O.- KARAIKANDI
DIST- CACHAR (ASSAM)
PIN- 788101.
30:SIROJ ANSARI
S/O- HAMID ANSARI
R/O- VILL- MANDULI
P.O.-KHARIKHANA
DIST- HOJAI (ASSAM)
PIN- 782446.
Page No.# 8/14
31:POOJA KUMARI
D/O- MANOJ YADAV
R/O- VILL- DOOMDOOMA
P.O.- DOOMDOOMA
P.S.- DOOMDOOMA
DIST- TINSUKIA (ASSAM)
PIN- 786151.
32:PUSHPA KUMARI RAI
D/O- MANOJ RAI
R/O- VILL- DOOMDOOMA
P.O.- DOOMDOOMA
P.S.- DOOMDOOMA
DIST- TINSUKIA (ASSAM)
PIN- 786151.
33:ANJALI CHOUHAN
D/O- LATE BALIRAM CHOUHAN
R/O- VILL- HOJAI
KRISHNA NAGAR
P.O.- HOJAI
P.S.-HOJAI
DIST- HOJAI (ASSAM)
PIN- 782435.
34:PRIYANKA DEKA
D/O- PRADIP DEKA
R/O- VILL- BILIMARA
P.O.- JHARGAON
DIST- MORIGAON (ASSAM)
PIN- 782411.
35:NAINA KUMARI @ NAINA GUPTA
D/O- JAIMANGAL SAH
VILL- TINSUKIA
P.O.- TINSUKIA
DIST TINSUKIA (ASSAM)
PIN- 786125
Page No.# 9/14
------------
Advocate for : SC
EDU
Advocate for : MR. U K NAIR (R-5-7
10-15
17
19
25-27
29
30
34
35) appearing for SNIGDHA BORKOTOKY AND 34 ORS.
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
24.11.2021
(Sudhanshu Dhulia, CJ)
Heard Mr. D. Saikia, learned Advocate General, Assam, appearing for the
appellants. Also heard Mr. U. K. Nair, learned Senior Advocate for respondent
nos. 5 to 7, 10 to 15, 17, 19 to 25, 27, 29, 30, 34 and 35 as well as Mr. M. Khan,
learned Advocate appearing for the sole respondent in WA 276/2021.
2. These writ appeals have been filed by the State of Assam challenging the
order dated 15.09.2021, passed by the learned Single Judge in WP(C)
3271/2020 and WP(C) 1495/2020.
3. Since both these appeals have been filed against the same judgment and
order, both these appeals have been heard together and are being disposed of
by this common order.
4. The matter relates to appointment of teachers in Upper Primary Schools in
the State of Assam. The material facts that have fallen before us for our
consideration are as follows:
Page No.# 10/14
After enforcement of the "Right of Children to Free and Compulsory
Education Act, 2009", the task of prescribing the qualifications/eligibility criteria
for appointment of teachers in Lower as well as Upper Primary Schools
throughout India was entrusted upon a nodal agency, known as "National
Council for Teacher Education" (NCTE). Subsequently, the NCTE vide its
notification dated 23.08.2010 had laid down the minimum qualifications for a
person to be eligible for appointment of teachers in Lower Primary and Upper
Primary Schools. One of the essential qualifications for appointment of teachers
in Lower and Upper Primary Schools was that such candidate must have passed
an examination known as "Teacher Eligibility Test (TET). In the TET
Examination, one of the papers that a candidate is required to qualify is
"Language-I" paper and the languages included in "Language-I" paper in Assam
are Hindi, Assamese, Bodo, Manipuri, Bengali. A candidate appearing in TET
examination may opt for any one of the aforementioned languages in
"Language-I" paper. All the petitioners before the learned Single Judge are the
ones who had qualified the "Language-I" paper in "Hindi language". In the said
advertisement dated 11.03.2018, the respondent authorities/appellants had
fixed certain criteria in respect of selection and appointment to the posts
advertised. Criteria No. 1 of the advertisement, which is relevant for the purpose
of this case, reads as under:
"Criteria
1. The candidates will be selected for the post of Teachers of Upper
Primary Schools in the same medium as per the Language-I selected in
the Teacher Eligibility Test (TET) for UPS."
5. The writ petitioners/respondents before this court have all the
qualifications including TET, however, the dispute is only related to their
Page No.# 11/14
appointment.The Government of Assam, vide its advertisement dated
11.03.2018, had advertised for filling up of 4120 posts of Teachers in Upper
Primary Schools in the State of Assam. The category-wise break-up of vacancies
were as follows:
Assistant Teacher : 2068
Science Teacher : 299
Hindi Teacher : 1285
Arabic Teacher : 154
Assamese Language Teacher : 292
___________________________________
Total : 4120
6. The writ petitioners/respondents had qualified in the TET and had been
selected, but have not been appointed as, according to the State Government,
the posts which the writ petitioners/respondents had applied for, are no more
available as the vacancies have exhausted.
7. Learned senior counsel for the writ petitioners/ respondents Mr. Nair has
apprised this court that out of the thirty-five writ petitioners/respondents in WA
252/2021, ten writ petitioners/respondents had participated in the subsequent
recruitment process initiated vide advertisement dated 11.09.2020 and they
have already been selected and appointed.
8. It is an admitted fact that although 1285 nos. of posts of Hindi Teacher
had been advertised, but in the recruitment exercisethe respondent authorities
(appellants before us) decided to appoint the petitioners (having "Hindi" as
Page No.# 12/14
"Language-I" paper) only to fill up the posts of teachers in Hindi medium school
and, resultantly, very limited number of posts were filled up. The State
respondents, while doing so, relied upon the above-referred Criteria No. 1of the
advertisement which, according to the State respondents/appellants is in terms
of the guidelines framed by the NCTE in its notification dated 11.02.2011. One
of such guidelines, upon which reliance has been placed by the State
respondents/appellants, reads as under:
· "The Test items for Language-I will focus on the proficiencies
related to the medium of instruction (as chosen from list of
prescribed language options in the application form)."
9. A reading of the aforesaid guideline will show that a candidate who had
opted "Hindi" as Language-I in the TET Examination, was to be considered
proficient in Hindi Language and, therefore, the writ petitioners having opted
"Hindi" as "Language-I" paper, were only considered eligible to teach Hindi in
schools which were having Hindi language as the medium of instruction. In
other words, they were not considered to be eligible for appointment in schools
where the medium of instruction is either Assamese, or Bodo, or Bengali, or
Manipuri irrespective of the fact whether the school has the vacancy of Hindi
Teacher or not. We cannot lose sight of the fact that the State must have some
purpose for doing so, which is that a teacher may be proficient in teaching Hindi
language, but that does not necessarily mean that he is also proficient in other
mediums of instructions, i.e. Assamese, or Bodo, or Bengali, or Manipuri and, in
such an event, in a school where primarily the medium of instruction is different
than Hindi, such a teacher will not be able to teach properly even if he is to
teach only Hindi Language, because, while teaching the students, he would also
have to interact with the students in the language which is the medium of
Page No.# 13/14
instruction, i.e. Assamese, or Bodo, or Bengali, or Manipuri. That, at least, is the
logic behind not appointing the petitioners in the vacancies of Hindi Teacher
which are presently lying vacant in Assamese, Bodo, Bengali and Manipuri
medium Upper Primary schools.
10. The learned Single Judge has, however, held the aforementioned Criteria
No. 1of the advertisement to be unreasonable and, accordingly, has set aside
the same. We would disagree with this finding inasmuch as in a given situation
the State may have its reason for putting such a condition. In the present case
the particular clause was put in the advertisement for testing the proficiency of
a candidate in a particular language and, for that purpose, the State has come
to the conclusion that proficiency in a language can be judged from the fact that
a candidate has proficiency in the language which he has opted in the TET
examination. To our mind, the condition cannot be unreasonable. Although in a
given circumstances it may not be practical. To that extent we do not agree with
the finding of the learned Single Judge.
11. However, we do agree with the learned Single Judge that given the
circumstances of the case, where posts of "Hindi Teacher" are lying vacant
subject to the test of proficiency in the "medium of instruction"of that given
school, the present petitioners can be adjusted.
12. We therefore dispose of the appeal with the direction that as a one-time
measure, the respondent authorities/appellants shall consider the writ
petitioners/respondents (excluding those amongst them who have already been
selected and appointed) for appointment as Hindi Teachers in schools having
medium of instruction as Assamese, or Bodo, or Bengali, or Manipuri as there
are existing vacancies of "Hindi teacher" in these schools.
Page No.# 14/14
This exercise for consideration and appointment of the writ
petitioners/respondents as Hindi Teachers, as directed above, will be undertaken
and completed within 31st March, 2022. It is also made clear that the
proficiency of the writ petitioners/respondents in the language (which could be
Assamese, Bengali or any other language in which the students are taught in a
given school), must be tested first and only if the candidate succeeds in the
proficiency test they shall be appointed.
We make it very clear that our direction for the above test as well as our
observations here depend upon the fact of the present case alone.
JUDGE CHIEF JUSTICE
Comparing Assistant
