Page No.# 1/8 vs The State Of Assam And 5 Ors
2022 Latest Caselaw 1268 Gua

                                                                 Page No.# 1/8

GAHC010142112017




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

                         Case No. : WP(C)/5838/2017

         NABAMITA BHATTACHARJEE and 16 ORS.
         D/O. SRI PROJESH RANJAN BHATTACHARJEE, HOUSE NO. 7, NETAJI
         ROAD, SUBHASNAGAR, SILCHAR-788004, DIST. CACHAR, ASSAM.

         2: SMTI PARNA CHOUDHURY.
          DAUGHTER OF LATE PRAMATHA NATH CHOUDHURY
          MALANCHA APARTMENT
          DAKKAI PATTY
          POST OFFICE SILCHAR-788001
          DISTRICT CACHAR
         ASSAM.

         3: SHRI TAPADIR BHATTACHARJEE.
          SON OF LATE TARAPADA BHARRACHARJEE
         TARAPUR
         KALIBARI ROAD
         POST OFFICE SILCHAR-788003
          DISTRICT CACHAR
         ASSAM.

         4: SRI PUNYADIP HOME CHOUDHURY.
          SON OF LATE PRADYUT HOME CHOUDHURY
          MALUGRAM
         SREE GAURANGA PALLY
         POST OFFICE SILCHAR-788002
          DISTRICT CACHAR
         ASSAM.

         5: MD. FARUK UDDIN BARBHUIYA.
          SON OF LATE JALAL UDDIN BARBHUIYA
          NIZJALALPUR PARTT-II
          P.O.-JALALPUR-788816
          DISTRICT CACHAR
         ASSAM.
                                                     Page No.# 2/8


6: SMTI SUPARNA SHIL.
 DAUGHTER OF SRI SASHI MOHAN SHIL
 CHANDICHARAN ROAD
SILCHAR-788005
 DISTRICT CACHAR
ASSAM.

7: SHRI PROBIR KURMI.
 SON OF LATE MOHAN KURMI VILLAGE ALIPUR BOSTI
 P.O. BASKANI-788101. DISTRICT CACHAR
ASSAM.

8: SHRI DIPCHAND YADAV
 SON OF BASARAJ YADAV
VILLAGE BARIKNAGAR PART-II
 P.O. SILCOORE-788118
DISTRICT CACHAR
ASSAM.

9: SMTI SULEKHA GOALA
 DAUGHTER OF LATE MONINDRA GOALA VILLAGE AND P.O.
BINNAKANDI T.E
 788126
 DISTRICT CACHAR
ASSAM.

10: SHRI SAIBAL SINHA.
 SON OF DHIRENDRA KUMAR SINHA
 VILLAGE ITAKHOLA
P.O. SILCHAR-788001
 DISTRICT CACHAR
ASSAM.

11: SMTI SANDIPA DAS.
 DAUGHTER OF SHYMALENDU DAS
 VILLAGE BETHUKANDI
SILCHAR-788005
 DISTRICT CACHAR
ASSAM.

12: SHRI RANJIT DEB.
 SON OF LATE SATISH CHANDRA DEB
VILLAGE KATIRAIL
 P.O. KATIGORAH-788804
 DISTRICT CACHAR
ASSAM.
                                      Page No.# 3/8

13: SHRI SUBASH CHANDRA KAIRI.
 SON OF SURJYA PRASAD KAIRI
ATHAROTILLA
DHOLAI
 P.O. SILCHAR-788115
DISTRICT CACHAR
ASSAM.

14: SHRI PINAK MITRA.
 SON OF LATE KETAKI RANJAN MITRA
 VILLAGE KATIRAIL
P.O.KATIGORAH-788804
DISTRICT CACHAR
ASSAM.

15: SHRI ANANTA PAUL.
 SON OF LATE HIRENDRA CHANDRA PAUL
VILLAGE SIDDESWAR PART-I
 P.O. KATIGORAH-788804
DISTRICT CACHAR
ASSAM.

16: MD. AZAD HUSSAIN CHOUDHURY.
 SON OF NURUL HAQUE CHOUDHURY
VILLAGE TARINIPUR PART-III
P.O. KATIGORAH-788804
DISTRICT CACHAR
ASSAM.

17: MD. ABDUR RAHMAN.
 SON OF MASSADAR ALI
 VILLAGES SIDDHIPUR
P.O. KATIGORAH-788804
DISTRICT CACHAR
ASSAM.

18: SHRI PROSENJIT DAS.
 SON OF LATE PIJUSH KANTI DAS
VILLAGE KATIRAIL
P.O. KATIGORAH-788804
DISTRICT CACHAR
ASSAM.

19: SMTI SEEMA CHOWHAN.
 DAUGHTER OF ARJUN PRASAD CHOWHAN
VILLAGE 16 NO.BASTI
 P.O. KABUGANJ-788121
DISTRICT CACHAR
                                                                   Page No.# 4/8

            ASSAM

            VERSUS

            THE STATE OF ASSAM and 5 ORS.
            REP. BY THE PRINCIPAL 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
            GUWAHATI-781006
            KAMRUP METRO
            ASSAM.

            3:THE MEMBER-SECRETARY.
             EMPOWERED COMMITTEE ON ELEMENTARY TEACHERS ELIGIBILLITY
            TEST TET
             GOVT. OF ASSAM
             EDUCATION ELEMENTARY DEPARTMENT
            DISPUR
            GUWAHATI-781006.

            4:THE DIRECTOR OF ELEMENTARY EDUCATION
            ASSAM.
             KAHILIPARA
            GUWAHATI-7810019.

            5:THE MISSION DIRECTOR
             SARVA SIKHA ABHIYAN
            SSA
            ASSAM.
             KAHILIPARA
            GUWAHATI-781019.

            6:THE DISTRICT LEVEL SCREENING COMMITTEE.
             REPRESENTED BY THE DISTRICT MISSION COORDINATOR
             SARVA SIKHA ABHIYAN
            SSA
            CACHAR DISTRICT
            POST OFFICE KARIMGANJ-788710
            ASSA

Advocate for the Petitioner   : MS.S DASGUPTA

Advocate for the Respondent :
                                                                                    Page No.# 5/8




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

Date : 08-04-2022

Heard Mr. P A Ahmed, learned counsel for the petitioners. Also heard Mr. A Phukan, learned Standing Counsel for the Elementary Education Department appearing for respondents no. 1, 2 and 4 and Mr. B Choudhury, learned Standing Counsel for the Sarva Sikha Abhiyan appearing for the respondents no. 3, 5 and 6.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioners have assailed the impugned order dated 22.02.2016 (Annexure-9) passed by the respondent no. 5, the Mission Director, Sarva Siksha Abhiyan (in short, SSA), Assam, by which the candidature of the petitioners for the posts of Assistant Teacher in the Lower Primary Schools in the district of Cachar was rejected. The petitioners are further seeking issuance of a mandamus upon the respondent authorities for the appointment of the petitioners to the post of Assistant Teacher in the Lower Primary Schools in Cachar district under the SSA, Assam pursuant to employment advertisement dated 16.07.2014 issued by the said authority.

3. The case projected by the petitioners is that they are otherwise eligible for being selected and appointed as Assistant Teachers in Lower Primary Schools in the district of Cachar. Moreover, it is submitted by the learned counsel for the petitioners that all the petitioners are graduates but as the petitioners were over-aged, they had approached this Court by filing WP(C)/1541/2015 and this Court by an order dated 20.03.2015, based on a previous order of this Court dated 2.2.2015 in WP(C)/6879/2014, disposed of the said writ petition with a direction which is extracted below:

"It is submitted by the learned counsel appearing for both the parties that the present writ petition is covered by the order dated 02.02.2015 passed in WP(C) No. 6879/2014.

The operative portion of the order dated 02.02.2015 passed in WP(C) No. 6879/2014 Page No.# 6/8

is reproduced herein below:

"Having so found, this Court feels that it is a fit case for disposal at this stage by giving a direction to the concerned authority to make enquiry as to whether petitioners are really over-aged. If it is found that the contention of the l earned counsel for the petitioners as to condonation of age is correct, in that event the authority shall consider the candidature of the petitioners as eligible and thereafter pass necessary orders in accordance with law. The same shall be done within a period of one (1) month from the date of receipt of certified cop y of this order. If 111 posts have not been filled up as on today, the same shall be kept vacant. This writ petition stands allowed."

Accordingly, this writ petition is also disposed of in line with the order dated 02.02.2015 passed in WP(C) No. 6879/2014. Beside, the operative portion of the order dated 02.02.2015 passed in WP(C) No. 6879/2014, the authorities shall pass the necessary orders by taking into account office memorandum No. ABP.513/79/9-A dated 27.03.1980 and office memorandum No. ABP.73/89/15 dated 04.01.1992. The writ petition is accordingly disposed of."

4. By referring to the documents annexed to this writ petition, the learned counsel for the petitioners has submitted that the competent authorities i.e. the Director of Elementary Education, Assam by separate orders, had condoned the over-age of all the petitioners so as to enable them to apply for the post of Assistant Teacher for Lower Primary Schools (Contractual) under SSA, Assam. However, the Mission Director, SSA (respondent no. 5) by the impugned order dated 22.02.2016 had concluded that the claim of the 72 (seventy two) petitioners for appointment as Assistant Teachers under the SSA, Assam cannot be considered and the petition was disposed of.

5. The learned counsel for the petitioner has submitted that the said order dated 22.02.2016 is not sustainable on the ground as if the said authority was sitting in appeal over the judgment and order of this Court. It is also submitted that as the petitioners were graduates, they should have been given more preference in the matter of selection and appointment to the post of Assistant Teachers under the SSA. Accordingly, it is submitted that the order dated 22.02.2016 is perverse and not sustainable and therefore, the same is liable to be set aside with a direction to the respondent authorities to consider the claim of the petitioners.

Page No.# 7/8

6. The learned Standing Counsel for the respondents have both made their respective submissions to oppose this writ petition.

7. On a perusal of the order dated 22.02.2016, which is impugned in this writ petition, it is seen that the categorical stand in the said order is to the effect that the selection of Assistant Teachers was done in a transparent manner based on marks and the final selection list was uploaded in the SSA website clearly showing the marks of all selected candidates. However, in this writ petition, the result sheets appearing in the website of the SSA, Assam indicating the marks of all selected candidates has not been annexed.

8. In the absence of the marks obtained by the selected candidates, the Court is unable to arrive at any conclusion that the petitioners were equally situated to any of the selected candidates, who were not holding a graduate degree for which the petitioners were entitled for a preference. Moreover, the learned Standing Counsel for the SSA has drawn the attention of this Court to clause 4 of the employment advertisement wherein it has been mentioned that preference would be given to those who have 2 (two) years Diploma in Elementary Education from recognized institutes and those who have 2 (two) years Diploma in Elementary Education (Special Education) qualification from RCI recognized institutes. It is also pointed out that the essential qualifications for the post of Assistant Teachers for Lower Primary Schools was 50 % in Higher Secondary (or its equivalent) with 5% relaxation for SC/ST/OBC/MOBC and physically handicapped (Orthopedically) candidates with TET (Elementary) passed; or graduate degree from UGC recognized University with TET (Elementary) passed.

9. Therefore, it is apparent that as per clause of the employment advertisement dated 16.07.2014, no preference was provided in respect of the candidates having graduate degree. However, it is observed that preference was to be given only to those candidates were having two years Diploma as indicated herein before.

Page No.# 8/8

10. In view of above, the petitioners have not been able to make out a case that they would be entitled to a preference for having a graduate degree alone. Therefore, this writ petition fails and the same stands dismissed. The parties are left to bear their own cost.

JUDGE

Comparing Assistant