Page No.# 1/8 vs The State Of Assam And 3 Ors
2021 Latest Caselaw 2476 Gua

                                                                     Page No.# 1/8

GAHC010159802021




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

                          Case No. : WP(C)/5441/2021

         MD. JOYNAL ABEDIN AND 3 ORS
         S/O- TAZU SHEIKH, VILL- BOYZERALGA, P.O. NAYERALGA, P.S.
         BILASIPARA, DIST.- DHUBRI, ASSAM- 783348

         2: ABDUL KARIM SHEIKH
          S/O- MOFIZUDDIN SK
         VILL- KAZAIKATA PART-V
          P.O. KAZAIKATA
          P.S. BILASIPARA
          DIST.- DHUBRI
         ASSAM- 783348

         3: SOFIOR RAHMAN
          S/O- SAMSUL HOQUE
         TOWN- BILASIPARA WARD NO.-2
          P.O. BILASIPARA
          P.S. BILASIPARA
          DIST.- DHUBRI
         ASSAM- 783348

         4: JOHIRUL ISLAM
          S/O- OHIS JAMAL SK
         VILL- NAYERALGA PART-IV
          P.O. NAYERALGA
          P.S. BILASIPARA
          DIST.- DHUBRI
         ASSAM- 78334

         VERSUS

         THE STATE OF ASSAM AND 3 ORS
         TO BE. REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM,
         SECONDARY EDUCATION, ASSAM, DISPUR, GHY-6
                                                                           Page No.# 2/8

            2:THE DIRECTOR
             SECONDARY EDUCATION ASSAM KAHILIPARA
             GHY-19

            3:THE EMPOWERED COMMITTEE OF TEACHERS ELIGIBILITY TEST FOR
            SECONDARY EDUCATION
            ASSAM TO BE REP. BY ITS MEMBER SECY.
             DISPUR
             GHY-06

            4:THE RASHTRYA MADHYAMIK SIKSHA ABHIYAN MISSION (R.M.S.A)
            TO BE REP. BY ITS MISSION DIRECTOR
             KAHILIPARA
             GHY-1

Advocate for the Petitioner   : MR. A R BHUYAN

Advocate for the Respondent : SC, SEC. EDU.




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                         ORDER

08.10.2021

Heard Mr. A.R. Bhuyan, learned counsel for the petitioner and Mr. D. Saikia, learned Advocate General for the State, assisted by Ms. P. Chakraborty, learned standing counsel for the Education (Elementary) Department, respondent nos. 1 to 3.

2) The 4 (four) petitioners herein project that pursuant to advertisement dated 30.08.2014, they have passed out Madrassa Teacher Eligibility Test (hereinafter referred to as "M-TET" for short) held in the January, 2015 in the category of Assistant Teacher in B.Sc.

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3) It is projected that in previous recruitment drive, the M-TET qualified lecturers and teachers were allowed to participate in recruitment for filling up the posts of Assistant Teachers of Primary as well as secondary level schools, i.e. High Schools and Higher Secondary Schools. It is also projected that vide notification dated 17.10.2015, the M-TET qualified candidates were allowed to apply for appointment in various categories of Assistant Teachers in primary schools and vide corrigendum dated 03.12.2015, the M-TET qualified candidates were permitted to apply as Assistant Teachers in Model Schools. Thereafter, vide notification dated 21.11.2018 issued by the respondent no. 1, it was provided that the M-TET qualified candidates were eligible to apply for the posts of (i) Assistant Teacher (B.A.), (ii) Assistant Teacher (B.Sc.), and (iii) Assamese Language Teacher in High Schools and Higher Secondary Schools. However, vide notification dated 05.01.2019, the respondent no. 1 had cancelled his earlier notification dated 21.11.2018, which is stated to be the subject matter of challenge in W.P.(C) 1051/2019, which is pending for disposal before this Court. It is submitted that the State had filed an interlocutory application, being I.A. (C) No. 1051/2019 for modification of the order dated 20.02.2019 and 18.02.2020 in W.P.(C) 1061/2019, and the said prayer was allowed by order dated 20.03.2020 by observing that let the authorities verify the applications of the petitioners, which, however, shall be kept in a sealed cover and it was further directed that the equal number of posts of teachers in UP and LP Schools as the number of petitioners shall not be filled up without the leave of the Court. In the meanwhile, the respondent authorities by a general notification released in newspapers, allowed the FM Pre-Senior Madrassa TET qualified candidates and Madrassa Hindi TET qualified candidates for verification of their applications on 19.03.2019 and accordingly, the M-TET qualified Page No.# 4/8

candidate had appeared in the said process undertaken by the Government. Thereafter, a list of qualified candidate was prepared and out of the said list, some persons got appointed in the category of Arabic Teachers and Hindi Teachers.

4) It is also submitted that this Court by judgment dated 22.07.2019 had held that the Madrassa TET examination was valid and conducted as per NCTE norms.

5) Thereafter, an advertisement dated 18.08.2019 was issued for filling up the vacant posts of Assistant Teachers of various categories in the Secondary Schools. Thereafter, vide W.T. message dated 19.08.2019, the respondent no. 2 had clarified that M-TET qualified candidates in the category of Assistant Teacher (B.A.) and Assistant Teacher (B.Sc.) were eligible to apply for the posts of Assistant Teacher (B.A.) and Assistant Teacher (B.Sc.) in the High Schools and Higher Secondary Schools. However, the said W.T. message dated 19.08.2019 was withdrawn by another W.T. message dated 22.08.2019 in view of notification dated 05.01.2019. It is submitted by the learned counsel for the petitioners that the said W.T. message dated 22.08.2019 and the notification dated 05.01.2019 are the subject matter of challenge in W.P.(C) 6174/2019. Thereafter, vide impugned notification dated 10.09.2020 issued by the respondent no. 1, the M-TET qualified candidates were disqualified for being recruited to the posts of Assistant Teachers in L.P., U.P. and Secondary level schools. The said notification is challenged in this writ petition.

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6) The case of the petitioners is that in the meanwhile the respondent no. 2 has issued an advertisement dated 15.09.2021, inviting applications for filling up, amongst others, the vacant posts of (i) Graduate Teachers (Arts), (ii) Graduate Teachers (Science), (iii) Graduate Teachers (Hindi), (iv) Assamese Language Teachers in provincialised High/ Higher Secondary Schools in Assam in the Graduate Scale of Pay. However, no provisions has been made for allowing the M-TET qualified candidates to apply, as such, the said advertisement has been assailed in this writ petition filed under Article 226 of the Constitution of India.

7) Issue notice including notice on the prayer for interim relief, returnable on 02.11.2021. As all the respondents are represented, requisite service copies of the writ petition shall be served on the learned standing counsel for the State respondents.

8)               Heard both sides on the prayer for interim relief.



9)               The learned counsel for the petitioner has submitted that the

petitioners have cleared M-TET and therefore, they are more qualified than the regular Assam TET (hereinafter referred to as A-TET for short) because apart from the regular subjects, the petitioners have knowledge of Arabian History and apart from that the petitioners have also acquired proficiency in one of the three State language, i.e. Assamese and/or Bengali language. Accordingly, it is submitted that the State ought not to have deprived the petitioners an opportunity for applying for participating in recruitment process for filling up the Page No.# 6/8

vacant posts of (i) Graduate Teachers (Arts), (ii) Graduate Teachers (Science),

(iii) Graduate Teachers (Hindi), (iv) Assamese Language Teachers in provincialised High/ Higher Secondary Schools in Assam in the Graduate Scale of Pay, which was initiated vide recruitment advertisement dated 15.09.2021. It is also submitted that the case of the petitioners are squarely covered by the previous judgment and/or orders passed by this Court.

10) Per contra, the learned Advocate General has opposed the prayer for any interim relief and he has elaborately dealt with the submissions made by the learned senior counsel for the petitioners. It is submitted that in light of the nature of duties which the Graduate Teachers are required to perform, the M- TET qualified Graduate Teachers are not at all required. It is submitted that M- TET qualification envisages Theological studies and that the present curriculum does not have Theological studies. Accordingly, it is submitted that if a reasonable time is granted, the State would file their response and bring on record all the relevant materials.

11) It would be pertinent to mention here that in course of his submissions, the learned Advocate General had made a submission that as per the present recruitment scheme, there would be no written examination or viva- voce test, but marks would be allotted on the basis of marks given on specified criteria, which is contained in the advertisement dated 15.09.2021 relating to criteria for selection.

12) It prima facie appears to the Court that the State as an employer Page No.# 7/8

must have the prerogative to fix qualification for appointment to a particular post. Therefore, if in the wisdom of the State respondents, for the purpose of selection and appointment to the posts of (i) Graduate Teachers (Arts), (ii) Graduate Teachers (Science), (iii) Graduate Teachers (Hindi), (iv) Assamese Language Teachers in provincialised High/ Higher Secondary Schools in Assam, M-TET qualification is not the criterion, the Court will be a loath to prescribe qualification by way of an ad interim order, which is not in terms of the Government policy. Moreso when there is no written state or viva-voce test to be conducted for selection and recruitment, which would mean that if the prospective candidates are successful in uploading the applications successfully or if the Court permits applications to be submitted in on-line and/or off-line mode, the State would have to take into consideration all the applications. Therefore, at this stage, no interim relief can be granted. Therefore, interim relief is refused at this stage. However, in the event the Court finds that the petitioners are successful in this writ petition, the Court would not be powerless to direct the State to give appropriate relief to the petitioners.

13) It is clarified that nothing contained in this order is intended to be a finding of the Court on merit, as such, the observations made herein shall not prejudice any of the parties at the time of hearing the matter on merit.

14)            List the matter on 02.11.2021.




                                                              JUDGE
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Comparing Assistant