Gauhati High Court
Page No.# 1/12 vs Lohori Das And 3 Others on 25 March, 2025
Page No.# 1/12
GAHC010154512023
2025:GAU-AS:3387-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/76/2024
THE STATE OF ASSAM AND ANR.
THROUGH THE SECRETARY TO THE GOVT OF ASSAM DEPARTMENT OF
SCHOOL EDUCATION DISPUR KAMRUP METRO ASSAM PIN 781006
2: THE DIRECTOR OF EDUCATION
KAHILIPARA KAMRUP METRO ASSAM PIN 78101
VERSUS
LOHORI DAS AND 3 OTHERS
W/O SANTOSH BHOWMIK, RESIDENT OF VILLAGE RONGPUR PART IV, PO
RONGPUR, PRESENTLY SERVING AT SILCHAR CACHAR ASSAM PIN 788009
2:THE SECRETARY TO THE GOVT. OF ASSAM
PERSONNEL (B) DEPARTMENT
DISPUR
GUWAHATI 781006
3:THE MISSION DIRECTOR CUM PROJECT DIRECTOR
RASHTRIYA MADHAYAMIK
SIKSHA ABHIJAN
KAMRUP M ASSAM 781019
4:THE MEMBER SECRETARY
EMPOWERED COMMITTEE FOR TET FOR SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI 1
Advocate for the Petitioner : MR. R MAZUMDAR, SC, EDU
Advocate for the Respondent : MS. M D BORAH, SC, RMSA,FOR CAVEATOR,MR. N HAQUE
Page No.# 2/12
(R-1),MR. P K ROYCHOUDHURY (R-1),DR. B AHMED (R-1),MR K UDDIN (R-1),MR. A K
AZAD (R-1),MR M HUSSAIN (R-1)
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of Hearing : 20.03.2025
Date of Judgment: 25.03.2025
JUDGMENT & ORDER (CAV)
(N. Unni Krishnan Nair. J)
Heard Mr. R. Majumdar, learned Standing Counsel, Education Department
appearing for the appellants. Also heard Mr. P. K. Roy Choudhury, learned counsel
along with Mr. A. K. Azad, learned Counsel appearing for the respondent no. 1.
2. The present intra-court appeal has been instituted by the appellants, assailing
the Judgment & Order dated 29.04.2022, passed by the learned Single Judge in
WP(C) No. 6284/2021, thereby allowing the writ petition and directing for
consideration of the case of the respondent no. 1 for appointment as Graduate
Teacher in pursuance to the advertisement dated 11.09.2020, basing on her merit so
obtained in the selection process so held.
3. The facts in brief requisite for the purpose of adjudication of the issue arising in
the present proceeding is noticed as under: -
The Director of Secondary Education, Assam, vide an advertisement dated
11.09.2020 had invited applications from intending and eligible candidates for
filling up of vacant posts of Graduate Teachers (Science & Arts) in provincialised
High/Higher Secondary Schools in the State.
In terms of the said advertisement, an intending candidate for the post of
Graduate Teacher was to have a Graduate and/or Post-Graduate degree from a
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recognized University with least 50% marks in either Graduation or Post-
Graduation (or its equivalent) along with B. Ed degree. The intending candidate
also was required to have acquired Secondary TET qualification with 60% marks
in each paper for Un-reserved category candidate and 50% marks for Reserved
category candidate. The said advertisement also provided for relaxation of the
upper age limit for various categories. The upper age limit was relaxed up to 40
years for Un-reserved category, 42 years for Ex-servicemen, 43 years for
OBC/NOBC and 45 years for ST (P)/ST (H) candidates as on 01.01.2020, in
terms of the provisions of the Office Memorandum (OM) dated 02.09.2020.It
was further stipulated that the relaxation would be applicable only to those
candidates, who had attained the necessary educational or other qualification
prior to crossing of the existing upper age limit of 40 years.
The respondent no. 1 herein, contends that she being eligible in terms of
the qualification set out in the advertisement dated 11.09.2020, had submitted
her application in pursuance thereof. It is further contended that the appellants
herein had published the District Level Combined List for preparation of the
merit list for the Cachar district and therein, the name of the respondent no. 1
was included for final selection.
Thereafter, the appellants herein, had published district wise final
selection list for the post so available in various districts in pursuance to the
advertisement dated 11.09.2020, including for the vacancies so identified in the
district of Cachar, category wise. In the final list so published for the district of
Cachar, the name of the respondent no. 1 was not included. On enquiry, the
respondent no. 1 was given to understand that she was not included in the final
select list under SC category on the ground of overage, inasmuch as, she
having obtained her TET qualification after attaining the age of 40 years, she
would not be eligible to the relaxation of upper age limit as provided for in the
advertisement in terms of the OM dated 02.09.2020.
Page No.# 4/12
Being aggrieved, on account of non inclusion of her name in the final
select list as prepared for the vacancies identified for the district of Cachar for
Scheduled Caste community candidates, the respondent no. 1 approached the
writ Court by way of instituting WP(C) No. 6284/2021.
The learned Single Judge, on considering the issues arising in the writ
petition was pleased vide order dated 29.04.2022 to dispose of the said writ
petition by directing the appellants herein, to consider the case of the
respondent, herein, for appointment as Graduate Teacher in pursuance to the
advertisement dated 11.09.2020, basing on the merit position obtained by her
in the said selection process.
The appellants being aggrieved had instituted the present intra-court
appeal.
4. The challenge in the present intra-court appeal being to the Judgment and Order
dated 29.04.2022; passed by the learned Single Judge in WP(C) No. 6284/2021, the
operative portion thereof, being relevant, is extracted herein below: -
"19. In the instant case, it would be seen that the Office Memorandum dated
02.09.2020 had categorically raised the upper Age limit for entry into the State
Government services for Grade-III and IV posts. In that respect raised the upper
limit for general categories from 38 to 40 years; for SC & ST from 43 years to 45
years; for OBC/MOBC from 40 years to 43 years; for Ex-servicemen from 40
years to 42 years and for persons with disabilities from 40 years to 50 years.
This was the policy in vogue. However, in the Office Memorandum dated
02.09.2020, the Government limited the applicability of the said policy by
restricting the candidates who obtained the qualification within 40 years.
There was an apparent mistake committed by the Government as already held
hereinabove for which an ambiguity arose. Under such circumstances, the
Government issued the Corrigendum to remove the mistake as well as the
ambiguity. It is therefore in the opinion of this Court the Corrigendum is
clarificatory in nature thereby clarifying the position and makes explicit what
was implicit.
20. In view of the above observations as the petitioner had the qualification of
TET prior to the advertisement dated 11.09.2020, the petitioner was eligible to
be considered for appointment in terms with the score obtained in the TET
Examination.
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21. Accordingly, this Court is of the opinion that the petitioner has been able to
make out a case for interference in exercise of the power under Article 226 of
the Constitution of India. It is accordingly held that the TET qualification
acquired by the petitioner, prior to the recruitment process, has to be construed
to be meeting the eligibility criteria, and therefore, while the rejection of the
petitioner in the recruitment process is set aside, the case of the petitioner for
appointment as a Graduate Teacher as per the advertisement dated 11.09.2020
shall be duly considered based upon her position in the merit list be offered
expeditiously and in any case within an outer limit of 45 days from the date a
certified copy of the instant judgment is submitted to the respondent No. 5, i.e.
the Director of Secondary Education, Assam, Kahilipara, Guwahati."
5. Assailing the Judgment and Order dated 29.04.2022; passed by the learned
Single Judge in WP(C) No. 6284/2021, Mr. R. Majumdar, learned Standing Counsel for
the appellants has at the outset, submitted that the advertisement dated 11.09.2020
was issued by incorporating therein, the stipulations so made in the OM dated
02.09.2020; and the selection held in pursuance thereof, was also held by adhering to
the stipulation as contained in the said OM. Mr. Majumdar has submitted that the final
merit list for the various district of the State including the district of Cachar, was also
prepared by adhering to the said stipulation as contained in the OM dated 02.09.2020.
Mr. Majumdar has further submitted that on publication of the final select list for
various districts including the district of Cachar, the appointment letters to the selected
candidates were issued on 05.02.2021.
6. Mr. Majumdar, learned Standing Counsel, Education Department has submitted
that after the appointment letters were issued to the selected candidates, in
pursuance to the advertisement dated 11.09.2020, the Personnel Department had
issued a corrigendum on 20.02.2021, deleting the prescription with regard to the date
when an intending candidate is required to acquire the educational and other
qualifications for being eligible to avail the relaxation of age, existing in the OM dated
02.09.2020. Mr. Majumdar has submitted that the corrigendum dated 20.02.2021
would have no application, insofar as, the selection in pursuance to the advertisement
dated 11.09.2020 is concerned, inasmuch as, the selection process, including the
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issuance of appointment orders to the selected candidates were completed before the
issuance of the said corrigendum.
7. Mr. Majumdar has further submitted that the respondent no. 1 in the writ petition
having projected that person securing lower marks than her in the selection process of
being issued with appointment orders, she ought to have impleaded the persons
securing lower marks than her in the selection process in the writ petition, for
presenting a challenge to the selection process. Mr. Majumdar has submitted that in
absence of any selected candidates being arrayed as a respondent in the writ petition,
no relief would be mandated to be extended to the respondent no. 1 in the matter.
8. Mr. Majumdar, learned Standing Counsel, Education Department by referring to
the Judgment and Order dated 29.04.2021, has submitted that the learned Single
Judge while drawing his conclusions in the matter had ignored the specific contention
raised by the appellants herein, in the affidavit filed in the matter, to the effect that all
the selected candidates were issued with appointment orders on 05.02.2021. Mr.
Majumdar further submits that on account of the fact that the learned Single Judge
had not reckoned the said contention of the appellants, the direction for appointment
of the petitioner as a Graduate Teacher in pursuance to the advertisement dated
11.09.2020, basing on the merit position obtained by her in the selection process
came to be issued, which is clearly erroneous. Mr. Majumdar has submitted that on
the date, the appellant had acquired her TET qualification, she had admittedly crossed
the age of 40 years and accordingly, in terms of the stipulations made in the
advertisement dated 11.09.2020, the respondent no. 1 was rightly construed to be not
an eligible candidate by the appellants for being included in the final select list.
9. Mr. Majumdar has further submitted that in terms of the provisions of the "Assam
Secondary Education (Provincialised Schools) Rules 2018", an intending candidate for
recruitment as a Graduate Teacher in a provincialized school, in addition to possessing
the educational and professional qualification as set out in Schedule 3 of the said
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Rules is also required to acquire the TET qualification. The advertisement dated
11.09.2020, having mandated that such educational and other qualification to be so
acquired by the intending candidate before crossing the age of 40 years, the
respondent no. 1 herein, having admittedly crossed the age of 40 years as on the date
she had acquired the TET qualification, she was not be eligible to avail the relaxation
of upper age limit for SC category candidates to 45 years, as on 01.01.2020.
Accordingly, the respondent no. 1 herein cannot be deemed to be an eligible candidate
for being considered for selection against the vacancies so advertised vide the
advertisement dated 11.09.2020.
10. Mr. Majumdar, learned counsel has further submitted that the writ petition
having been so filed after the conclusion of the selection process and as contended,
the selection having been made strictly in accordance with the stipulations in the
advertisement dated 11.09.2020 and the Rules of 2018, the subsequent corrigendum
dated 20.02.2021, issued by the Personnel Department on 20.02.2021 having no
application with regard to the selection process in question, the respondent no. 1
herein, was not mandated to be considered as an eligible candidate in the selection
process. Moreover, the writ petition having been so instituted without impleading any
of the selected candidates, no relief being permissible to be so granted to the
respondent no. 1 herein, the writ petition was called to be dismissed.
11. Per contra, Mr. P. K. Roy Choudhury, learned counsel for the respondent no. 1
submits that the delay in acquiring of the TET qualification by the respondent no. 1
was on account of the fact that the holding of TET examination was delayed by the
authorities and the respondent no. 1, who had applied in the year 2017, could appear
in the said TET examination only in the year 2020 and accordingly, the TET
qualification as acquired by the appellant is to be deemed to have been so acquired by
her with retrospective effect w.e.f., the date of her application so made in the year
2017. Mr. P. K. Roy Choudhury, has further submitted that on the date of issuance of
the advertisement dated 11.09.2020, the respondent no. 1 herein had already
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acquired her TET qualification and she being otherwise eligible as regards the
prescription of educational and professional qualification in the advertisement dated
11.09.2020, considering the corrigendum as issued by the authorities on 20.02.2021;
and the same having a retrospective effect, there was no bar in considering the case
of the appellant for appointment against the vacancies so advertised vide the
advertisement dated 11.09.2020, considering the merit position obtained by her in the
selection process. Mr. Roy Choudhury, learned counsel has submitted that although
the respondent no. 1 as on 01.01.2020 had crossed the age limit of 40 years, she was
eligible to the relaxation of upper age limit up to 45 years in terms of the OM dated
02.09.2020, more particularly, in view of the subsequent corrigendum dated
20.02.2021, deleting the stipulation in the OM dated 02.09.2020, of such relaxation
being applicable only to candidates who had attained the necessary educational and
other qualification prior to crossing of their existing upper age limit of 40 years.
12. In support of his submission, Mr. Roy Choudhury has relied upon the decision of
the Hon'ble Supreme Court in the case of Chairman/Managing Director, Uttar
Pradesh Power Corporation Limited & Ors., Vs Ram Gopal, reported in (2021)
13 SCC 225.
13. Mr. Roy Choudhury, learned counsel has submitted that the learned Single Judge
vide the Judgment and Order dated 29.04.2022, had considered all the aspects in the
matter and had thereafter, drawn his conclusions therein and the respondent no. 1
being entitled to be extended with the relaxation of upper age limit to 45 years being
a SC candidate, in terms of the OM dated 02.09.2020, no error had occasioned in the
direction issued by the learned Single Judge for consideration of the case of the
respondent no. 1 for appointment as a Graduate Teacher, in pursuance to the
advertisement dated 11.09.2020 in terms of the merit position obtained by her in the
selection process. Mr. Roy Choudhury has accordingly submitted that the Judgment
and Order dated 29.04.2022, would not call for any interference by this Court.
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14. We have heard the learned counsels appearing for the parties and also perused
the materials available on record.
15. The facts as noticed herein above is not disputed. The advertisement dated
11.09.2020, issued for recruitment of Graduate Teacher while laying down the
requisite qualifications mandated to be possessed by the intending candidate, had also
laid down the following criteria: -
"2. A candidate must not be less than 18 years of age and not more than 40
years for unreserved category, 42 years for Ex-Servicemen, 43 years for OBC/
MOBC and 45 years for SC/ST(P)/ST(H) and 50 years for Persons with
Disability (PwD) as on 14 January, 2020 as per Govt. Office Memorandum vide
No. ABP.6/2016/51 Dated 02/09/2020. 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.
The eligible candidates shall apply online in the official website from Midnight
of 15/09/2020 to Midnight of 30/09/2020. No offline application will be
accepted in this regard."
16. A perusal of the said criteria would go to reveal that in terms of the OM dated
02.09.2020, the relaxation of upper age limit in respect of various categories was
permissible to be availed by an intending candidate, provided, such candidate had
attained the necessary education and other qualifications prior to crossing of the
existing upper age limit for the recruitment in question. Insofar as, candidates
belonging to the SC candidate category is concerned, the upper age limit was relaxed
up to 45 years. The respondent no. 1 submitted her application in pursuance to the
advertisement dated 11.09.2020 after noticing the said criteria pertaining to relaxation
of upper age limit. No objection was raised by the respondent no. 1 in the matter
while submitting her application.
17. The respondent no. 1 herein, had applied for appearing in the TET examination
in pursuance to an advertisement issued in the matter on 31.07.2017. The concerned
authorities had not conducted the TET examination in pursuance to the advertisement
dated 31.07.2017. Thereafter, further advertisement for the purpose was issued on
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13.11.2019. Ultimately, the TET examination for Graduate Teacher was held on
19.01.2020. The respondent no. 1 participated in the said TET examination and on
qualifying therein, she was issued with the certificate on 23.07.2020. In the
advertisement dated 11.01.2020, the cut-off date with regard to the age qualification
was prescribed as 01.01.2020. Admittedly, as of 01.01.2020, the respondent no. 1 had
crossed the existing upper age limit of 40 years mandated for Reserved category
candidates. The date of birth of the petitioner was disclosed as 23.04.1975. The
respondent no. 1 having crossed the age of 40 years as on 01.01.2020, she would be
eligible to participate in the selection process only in the event she fulfills the
requirement for being extended with the relaxation of upper age limit in terms of the
OM dated 02.09.2020. The respondent no. 1 admittedly, having not fulfilled the
requirement of the OM dated 02.09.2020 was clearly ineligible for participation in the
recruitment process initiated vide the advertisement dated 11.09.2020.
18. It is to be noted that on the date of issuance of the advertisement dated
31.07.2017, for scheduling the Secondary TET examination, the respondent no. 1 had
crossed the age of 40 years. Accordingly, the respondent no. 1 had not fulfilled the
eligibility criteria as set out in the advertisement dated 11.09.2020 and she cannot be
held to be a candidate eligible for recruitment in pursuance to the advertisement
dated 11.09.2020.
19. The Government of Assam in the Personnel (B) Department had issued a
corrigendum dated 20.02.2021, with the following stipulations: -
"Inviting the reference of this Department's Office Memorandum ΝΟ. ΑΒΡ
06/2016/51 dated 02-09-2020, it is clarified that the second sentence of
paragraph No. 3 (three)" 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."
20. The learned Single Judge by holding that the corrigendum dated 20.02.2021,
was clarificatory in nature and accordingly, would have retrospective effect w.e.f. the
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date of issuance of the OM dated 20.09.2020, had proceeded to hold the respondent
no. 1 to be eligible for consideration for appointment in terms of the merit position
obtained by her in the selection process.
21. The said conclusions drawn by the learned Single Judge, in our considered view
would not be sustainable in the facts and circumstances of the case, inasmuch as, the
said corrigendum, dated 20.02.2021, modifying the earlier OM dated 02.09.2020,
admittedly, was issued after the recruitment process had come to an end with the
issuance of the appointment letters to the selected candidates on 05.02.2021. Even if,
it is held that the corrigendum dated 20.02.2021 was clarificatory in nature and
accordingly, would have retrospective effect from the date the original OM i.e. the OM
dated 02.09.2020 had come into effect, the corrigendum having been so issued after
the selection process was taken to its logical conclusion and appointment effected in
the case of selected candidates, the respondent no. 1 was not entitled to be extended
the benefit of the corrigendum dated 20.02.2021. Accordingly, the respondent no. 1,
in our considered view was not entitled to be granted any relief in the matter by the
writ court
22. Having drawn the above conclusions, we also find from the materials brought on
record that the respondent no. 1 had submitted her application in pursuance to the
advertisement dated 11.09.2020, without raising any objection to the eligibility criteria
as set out therein, in terms of the OM dated 02.09.2020. Accordingly, it would not be
now permissible for the respondent no. 1 to raise any grievance in this connection,
after conclusion of the selection process. Further, the appellants having brought on
record in the writ proceedings that appointment letters were issued to the selected
candidates on 05.02.2021, the respondent no. 1 failed to implead selected candidates,
atleast, those candidates who had scored lower marks than that scored by her in the
selection process. For the lacuna as noticed, we are of the considered view that the
writ petition instituted by the respondent no. 1, herein, did not mandate a
consideration on merits.
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23. At this stage, we take note of the decision relied upon by the learned counsel for
the respondent no. 1 in the case of Ram Gopal (supra).
24. On a perusal of the said decision of the Hon'ble Supreme Court, we are of the
considered view that the ratio thereof would not advance the case of the respondent
no. 1 herein.
25. In view of the facts and circumstances as arising in the present proceeding, we
are of the considered view that the claim made by the respondent no. 1 in writ
petition being WP(C) No. 6248/2021 would not have mandated acceptance and the
learned Single Judge had erred in directing the appellants herein, to appoint the
respondent no. 1 as a Graduate Teacher in terms of the merit position obtained by her
in the selection held in pursuance to the advertisement dated 11.09.2020.
26. In view of the above discussion, we are of the considered view that the
Judgment and Order dated 29.04.2022, passed by the learned Single Judge in WP(C)
No. 6248/2021, would mandate an interference and accordingly, the same is set aside.
27. The writ petition being WP(C) No. 6248/2021 filed by the respondent no. 1
herein stands dismissed. The instant writ appeal accordingly, stands allowed.
.
JUDGE CHIEF JUSTICE
Comparing Assistant
