Gauhati High Court
Page No.# 1/5 vs Jerina Ahmed on 17 February, 2023
Page No.# 1/5
GAHC010025722018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/94/2018
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE COMMISSIONER AND SECRETRY TO THE
GOVERNMENT OF ASSAM (ELEMENTARY ) DEPARTMENT ,DISPUR,
GUWAHATI -6
2: THE DIRECTOR OF ELEMENTARY EDUCATION
KAHILIPARA
GUWAHAT
VERSUS
JERINA AHMED
W/O SHARIFUL ANAM
R/O HOWLY TOWN ,WARD NO-4,
P.O. -HOWLY ,DIST. BARPETA (ASSAM) PIN
Advocate for the appellants : MR. R. MAZUMDAR, SC, EDUCATION
Advocate for the Respondent : MR. R ALI
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 17-02-2023
This intra-court appeal is directed against the judgment/final order dated
08.06.2017, passed by the learned Single Bench in WP(C) 5456/2016 whereby, the
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writ petition(c) filed by the respondent was accepted with the following directions:
"21. Viewing the matter in that perspective, rejection of the candidature of
the petitioner is considered to be wholly inequitable and therefore, the writ
petition is disposed of directing the respondent No. 2 to consider
appointment of the petitioner in Azad High School or in any other vacant post
of Assistant Teacher in any other school in the district of Barpeta within a
period of one month from the date of receipt of a certified copy of this order.
However, though the petitioner had prayed that she may be granted the
benefits with effect from 27.6.2016, which is the date of appointment of the
other selected candidates, I think in the circumstances of the case, ends of
justice does not require passing of an order to that effect.
22. Accordingly, the writ petition stands allowed with the aforesaid
direction and observation."
2. Short controversy, which is raised for consideration of this court in this appeal is
whether, age relaxation granted to the respondent/writ petitioner during the
recruitment process undertaken by the Director of Elementary Education, Assam, in
the year 2011-2012 for the post of Teacher (Contractual Basis), Elementary Education
School, could be considered as operating in the recruitment process for Assistant
Teacher in the selected government/provincialised L.P. Schools under the Director of
Elementary Education, Assam.
3. We have heard and considered the submissions advanced by the learned
counsel for the parties and have gone through the impugned judgment and the
records. We find that the writ petitioner was selected and appointed as an Assistant
Teacher on contractual basis pursuant to a selection process undertaken by the
respondents in the year 2011-2012. She was granted age relaxation in this selection
process and an Age Relaxation Code was issued to her by the Director of Elementary
Education, Assam. She cleared the Teachers Eligibility Test (TET) in the year 2012
securing 66% marks. The advertisement in question was issued by the Director of
Elementary Education, Assam, on 30.10.2014 inviting online applications in the
prescribed format from TET qualified candidates for filling up of total 8193 vacancies
of Assistant Teachers in the selected government/provincialised L.P. Schools. The writ
petitioner having acquired the TET qualification, applied in pursuance to the above
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advertisement for the Barpeta District. As per the combined list published on merit
basis for all districts, the respondent/writ petitioner secured 209.53 marks in the
examination and her name surfaced at Sl. No.137 of the merit list. However, when the
select list for Barpeta District was issued on 25.06.2016, name of the writ petitioner
was not reflected therein even though the candidates who had secured 110.73 marks
were shown selected. Accordingly, the writ petition came to be filed wherein the
respondents were put to notice. In the reply affidavit filed by the respondent no.2, i.e.
Director of Elementary Education, Assam, it was stated that at the time of submission
of the online application the writ petitioner's age was 40 years 10 months and, thus,
she was over age as she had crossed the age limit of 38 years as on 01.01.2014, as
prescribed in the advertisement notification. It was further stated that the
advertisement stipulated for condonation of over age, provided that prayer was made
in the prescribed format and if the authorities were satisfied, Age Condonation Code
was to be issued. The Age Condonation Code issued to the writ petitioner for the
selection process undertaken in the year 2011-2012 was not considered valid for the
recruitment process held in 2014 and, thus, the writ petitioner was not selected
despite standing in merit.
4. The learned Single Bench, considered the criterion No. 5 of the recruitment
notification and held that the application of the writ petitioner was not rejected on
scrutiny. On the contrary, she came out successful and her name figured in the merit
list published by the authorities for Barpeta District. Reference was given to the Age
Condonation Approval Code issued by the Director of Elementary Education for the
recruitment process undertaken in the year 2011-2012 wherein, an endorsement was
made that the Age Condonation Approval Code was to be saved for future references.
This Approval Code number was mentioned by the writ petitioner in the application
form. It was observed that there was no indication in criterion no. 1 of the recruitment
notification that a fresh age condonation application would have to be filed by the
candidate who had been granted age condonation earlier and that the writ petitioner
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was allowed to appear in interview after scrutiny of documents. The learned Single
Bench held that there was an element of ambiguity and the writ petitioner did not
suppress any material nor had she taken any undue advantage and accordingly, she
was entitled to equitable relief.
5. It is an admitted position from record that name of the respondent/writ
petitioner appeared in the merit list issued for the Barpeta district on basis of the
marks secured by her in the examination. The Age Condonation Code provided to the
writ petitioner in the selection process undertaken for the year 2011-12 bears an
endorsement that the same was to be saved for future references. It is not in dispute
that the respondent after relaxation, was within the age limit in the subject
recruitment process. There was no stipulation in criterion no.1 of the recruitment
notification that candidates holding the Age Relaxation Code issued earlier would be
required to procure a fresh age relaxation in the recruitment process 2014, the
respondent/writ petitioner was well within her rights to stake a claim for selection on
the basis of the Code provided to her by the very same authority in the recruitment
process 2011-12. The application form of the respondent/writ petitioner was not
rejected during scrutiny of the documents. Apparently thus, action of the respondent
authorities in rejecting the candidature of the respondent/writ petitioner on the
ground that she did not acquire a fresh Age Relaxation Code bears an apparent
element of ambiguity entitling the respondent/writ petitioner to seek equitable relief.
6. In this background, we are of the firm view that the learned Single Bench was
perfectly justified in granting equitable relief to the respondent/writ petitioner as she
secured more marks than the last candidate selected against the advertised posts.
7. In the wake of the discussion made hereinabove, we are not inclined to
interfere with the impugned order. However, it is made clear that the respondent's
(writ petitioner) name shall be shown at the bottom of the seniority list just below the
last selected candidate. She shall be entitled to notional benefits from the date of
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issuance of the final select list till the date she joins the post.
8. The appeal is disposed of in these terms. No orders as to cost.
JUDGE CHIEF JUSTICE
Comparing Assistant
