Page No.# 1/9 vs The State Of Assam And 9 Ors
2025 Latest Caselaw 330 Gua

Gauhati High Court

Page No.# 1/9 vs The State Of Assam And 9 Ors on 8 May, 2025

                                                                 Page No.# 1/9

GAHC010004332019




                                                           2025:GAU-AS:5656

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

                        Case No. : WP(C)/142/2019

         BEAUTI CHETIA
         W/O- SRI PUTUL CHETIA, PERMANENT R/O- VILL KATH GAON, P.O-
         MORNOI BEBEJIA, P.S GHILAMARA, DIST- LAKHIMPUR, ASSAM, PIN-
         787055, PRESENT R/O- GARIGAON, NEAR ASSAM FOREST SCHOOL,
         JALUKBARI, GUWAHATI- 781013



         VERSUS

         THE STATE OF ASSAM AND 9 ORS
         REP. BY THE COMMISSIONER AND SECRETARY EDUCATION (SEC) DEPTT,
         DISPUR, GHY- 06

         2:DIRECTOR
          SECONDARY EDUCATION ASSAM
          KAHILIPARA
          GHY- 19

         3:RASHTRIYA MADHYAMIK SHIKSHA ABHIJAN
         ASSAM
          REP. BY ITS MISSION DIRECTOR
          KAHILIPARA
          GHY- 19

         4:TET EMPOWERED COMMITTEE FOR SECONDARY EDUCATION
         ASSAM
          REP. BY ITS MEMBER SECRETARY
          KAHILIPARA
          GUWAHATI- 19

         5:THE DISTRICT APPROVAL COMMITTEE OF MORIGAON DISTRICT
          FOR RECOMMENDATION OF PANEL OF CANDIDATES FOR THE POST
         GRADUATE TEACHERS
                                                                             Page No.# 2/9

            REP. BY ITS MEMBER SECRETARY (INNSPECTOR OF SCHOOLS OF
            MORIGAON DISTRICT)
            MORIGAON
            ASSAM
            PIN- 782105

            6:INSPECTOR OF SCHOOLS
             MDC
             MORIGAON
            ASSAM
             PIN- 782105

            7:THE SELECTION COMMITTEE
             FOR SELECTION OF POST GRADUATE TEACHERS OF CENTRAL
            DHARAMTUL M BORA H S SCHOOL
             REP. BY ITS MEMBER SECRETARY (PRINCIPAL OF CENTRAL
            DHARAMTUL M BORA HS SCHOOL) P.O- AHATGURI
             DIST- MORIGAON
            ASSAM- 782412

            8:PRINCIPAL
             CENTRAL DHARAMTUL M BORA HS SCHOOL
             P.O- AHATGURI
             DIST- MORIGAON
            ASSAM- 782412

            9:RASHMI BORAH
            ASSTT TEACHER (REGULAR)
             CHANGCHAKI HS GARUBAT
             NAGAON
            ASSAM- 782426

            10:RATAN BARMAN
            ASSTT TEACHER (REGULAR)
             CHILARAI ACADEMY ME SCHOOL
             DHUBRI
            WARD NO. 15
             GAURIPUR
            ASSAM- 78332

Advocate for the Petitioner   : MR. D DAS, MR. M BARUAH

Advocate for the Respondent : SC, SEC. EDU., MR. M DUTTA (R9),MR. A DEKA (R7, R8)

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BEFORE HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR

Date : 08-05-2025

JUDGMENT & ORDER (CAV)

Heard Mr. D. Das, learned counsel for the petitioner as well as Mr. R. Mazumdar, learned Standing Counsel, Secondary Education Department for the respondent Nos. 1, 2 and 6. Also heard Mr. A. Deka, learned counsel appearing for the respondent Nos. 7 and 8 and Mr. M. Dutta, learned counsel for the respondent No.9.

2. The Principal, Central Dharamtul M. Bora Higher Secondary School, District- Morigaon, issued an advertisement on 24.02.2018 for filling up 03(three) posts of Post Graduate Teachers, namely, Mathematics (Unreserved), History (Reserved for Physically Disabled) (Unreserved) and Geography (Unreserved). In the said advertisement, the eligibility criteria provided was that candidates who have qualified in Teachers Eligibility Test (in short TET) Examination conducted for Post Graduate Teachers are only eligible to apply for the post of Post Graduate Teacher and the date of interview was fixed on 02.03.2018. The petitioner being qualified, applied for the post of Post Graduate Teacher, Geography (Unreserved). The respondent Nos. 9 and 10 also applied for the said post of Geography (Unreserved).

3. The recruitment to the post of Post Graduate Teacher in provincialised Higher Secondary Schools is governed by the guidelines provided in the Office Memorandum dated 14.07.2016 issued by the Secondary Education Department, Government of Assam. After the recruitment process was conducted against the advertisement dated 24.02.2018, the Director of Secondary Education, Assam published an order dated 28.12.2018, appointing candidates temporarily as Post Graduate Teacher against the vacant posts in the Provincialised Secondary Schools of Assam under Morigaon district.

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In the said order, the respondent No.10 is shown appointed against the post of Geography in the category of Unreserved in the Rangadaria H.S School at Serial No.2 and the respondent No.9 is shown appointed for the subject Geography in the category of Unreserved in the Central Dharamtul M. Bora Higher Secondary School at Serial No.3. Being aggrieved, the petitioner has filed the present writ petition challenging the appointment of the respondent No.9 as Post Graduate Teacher (Geography) in the Central Dharamtul M. Bora Higher Secondary School with a further direction to appoint the petitioner as Post Graduate Teacher (Geography) in the said Central Dharamtul M. Bora Higher Secondary School.

4. Mr. D. Das, learned counsel for the petitioner submits that after the recruitment process wherein the petitioner and the respondent Nos. 9 and 10 appeared in the interview, the petitioner came to be selected as the first candidate and therefore, the Principal, Central Dharamtul M. Bora Higher Secondary School/respondent No.8 instructed the petitioner to submit an undertaking stating that she will join as Subject Teacher, Geography in the said school, if she gets selected. Accordingly, the petitioner on 09.03.2018 submitted the undertaking before the respondent No.8. However, by the order dated 28.12.2018 issued by the Director of Secondary Education, Assam, the respondent No.9 was shown to have been selected against the post of Post Graduate Teacher in the subject Geography. It is submitted that in terms of the advertisement, the post of Post Graduate Teacher, Geography in the said school is for the Unreserved category. The petitioner belongs to the OBC category and in terms of the ratio laid down by the Hon'ble Supreme Court of India in the case of Saurav Yadav and others -vs- State of Uttar Pradesh and others, reported in AIR 2021 SC 233, the petitioner becomes eligible to apply for the said post inasmuch as, the Unreserved category indicates that it is an open category. The learned counsel for the petitioner also relies in the case of Vikas Sankhala and others -vs- Vikas Kumar Agarwal and others, reported in (2017) 1 SCC 350.

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5. Learned counsel for the petitioner submits that the petitioner has successfully completed the Higher Secondary TET Examination in the year 2014. Apart from that, the petitioner has all the requisite qualification required under the advertisement and the criteria of selection for Post Graduate Teacher has to be done in terms of Clause(5) of the Office Memorandum dated 14.07.2016. Therefore, calculating the marks of the petitioner in terms of Clause(5) of the Office Memorandum dated 14.07.2016, the petitioner has a score of 277.95% whereas the respondent No.9 has a score of only 258.17%. Therefore, as the petitioner has the highest score of marks compared to the respondent No.9, the selection of the respondent No.9 for the post of Post Graduate Teacher (Geography) in the said school is not tenable in law and should be set aside and the respondents be directed to appoint the petitioner to the post of Post Graduate Teacher in Geography in the school in question.

6. Mr. R. Mazumdar, learned Standing Counsel, Secondary Education Department, Assam submits that the petitioner had 59.50% marks in the H.S TET Examination, which was below the cut off marks of 60% for candidates of Unreserved category, but was beyond the cut off marks for candidates belonging to the OBC category. Referring to Rule-10 of the Assam Secondary Education (Provincialised Service) Rules, 2003 (in short Rules of 2003) as amended in 2012, he submits that for direct recruitment, apart from fulfilling the requirement in Schedule-II of the Rules of 2003 regarding the academic and professional qualification, the candidates for the General Category must secure 60% marks in the TET Examination and for those candidates belonging to the SC/ST/OBC/Physically Handicapped candidates, the requirement is a minimum of 55% marks. He submits that when the advertisement was made, it was specifically provided that the post of Post Graduate Teacher in the Geography subject is of the Unreserved category post and therefore, the candidates has to fulfill the requirement as applicable to the General category candidate. In the case of the petitioner, she had only 59.50% marks in the TET Examination, which is below the 60% marks required as an Unreserved Page No.# 6/9

category. Therefore, she was found not eligible for the post and her candidature was rejected in the selection process. He also submits that the respondent No.9 had secured 62.5% marks in the TET Examination, which was above the bar set for the candidates of General category. Accordingly, the respondent No.9 was selected for the said post. He also submits that pursuant to the order dated 28.12.2018, the respondent No.9 had joined to her post on 05.01.2019 in the said school and is currently discharging her duties. He also places reliance in the case of Government (NCT of Delhi) and others -vs- Pradeep Kumar and others, reported in (2019) 10 SCC 120 and submits that the Hon'ble Supreme Court in the said case has held that OBC candidates who had secured a TET qualification by taking advantage of relaxed criteria, would not be allowed to migrate to the General category. Under the circumstances, the present writ petition being devoid of merit deserves to be dismissed.

7. Mr. M. Dutta, learned counsel appearing for the respondent No.9 while endorsing the submissions made by the learned Standing Counsel, Secondary Education Department also submits that the petitioner has admittedly secured 59.50% marks in the H.S TET Examination in terms of the averments made in the writ petition. He submits that the post in question is admittedly an Unreserved post and therefore, any application made by any candidate belonging to any categories will have to be considered in terms of the requirements of the General category. The petitioner having only 59.50% marks in her TET Examination, she was not eligible for the post and therefore, her candidature was rightly rejected. The respondent No.9 on the other hand has secured 62.5% marks in the TET Examination and therefore, in terms of Rule 10 of the Rules of 2003, the respondent No.9 is eligible for the said post and accordingly, she was rightly appointed as Post Graduate Teacher in Geography against the Unreserved category in the said school. It is also submitted that pursuant to her appointment, the respondent No.9 has joined to her post on 05.01.2019. The learned counsel for the respondent No.9 further submits that the better performance of the petitioner in the selection process would have Page No.# 7/9

no consequence inasmuch as, the petitioner does not have the requisite marks of 60% in the TET Examination. He further submits that as the respondent No.9 has been serving since 05.01.2019, it would be inequitable if the appointment of the respondent No.9 is interfered with at this stage even assuming, but not admitting that the selection process had suffered from some irregularities. He therefore, places reliance in the case of Rekha Chaturvedi -vs- University of Rajasthan and others, reported in (1993) Suppl 3 SCC 168 and Babita Kalita -vs- State of Assam and others, reported in 2017 (3) GLT 394.

8. I have considered the submissions forwarded by the learned counsel for the parties.

9. Rule 10 of the Rules of 2003 provides the Academic and Professional Qualification for direct recruitment as provided in Schedule-II of the said Rules. The proviso to Rule 10 of Rules of 2003 further provides that in addition to such academic and professional qualification mentioned in Schedule-II for direct recruitment to the post, all candidates shall have to appear and pass in the Teachers Eligibility Test (TET) Examination conducted by the Government scoring a minimum of 60% marks in case of General category candidates and a minimum of 55% marks in case of SC/ST/OBC/Physically Handicapped candidates.

10. Coming to the case in hand, it is an admitted fact that the petitioner belongs to the OBC category and the respondent No.9 belongs to the Unreserved category. The petitioner secured 59.50% marks in the H.S. TET Examination and the respondent No.9 secured 62.5% marks in the H.S TET Examination.

11. The question to be answered in this present writ petition is whether the petitioner can be allowed to migrate and compete for the Unreserved category simply because she has secured the H.S TET Examination with relaxation of marks belonging to the OBC category.

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12. In case of Pradeep Kumar and others (supra), the Hon'ble Supreme Court while dealing with a similar nature of case has held as under:-

"21. The respondents with their CTET qualification under relaxed norms would be eligible for OBC category posts provided their OBC status is certified and recognized by the Delhi Government. But such not being the case, they are ineligible for the reserved category vacancies. To allow them to migrate and compete for the open category vacancies would not be permissible simply because they have secured the CTET qualification with relaxation of pass marks meant for those belonging to the OBC category. As the respondents have not secured the normal pass marks for general category, their eligibility for the general category vacancies is not secured. Therefore, their performance in the selection examination would be of no relevance, in the present process.

22. AS earlier discussed, this case concerns qualifications obtained with concession in pass marks. Such concession would have a direct impact on standards of competence and merit in the requirement of Special Education Teachers. The principles of reservation under the Constitution of India are intended to be confined to a specifically earmarked category and the unreserved category must be protected, to avoid dilution of competence and merit. If Vikas Sankhala3 is interpreted shorn of its peculiar facts, as has been suggested by the respondents' counsel, it would be in our perception, considering that respondents secured the qualification under relaxed norms, would lead to dilution of merit in the unreserved category. The arguments made to the contrary by the respondents is therefore rejected."

13. In the present case, the petitioner obtained less than 60% marks in her H.S TET Examination. However, she was found qualified due to the relaxation of marks given to the said OBC Category. Since the petitioner has obtained 59.50% marks, which is less than 60% marks in respect of Unreserved category, her candidature would be valid only under the OBC category and therefore, in the considered opinion of this Court, the petitioner cannot be allowed to migrate and compete for the Unreserved category in respect of the post of Geography (Unreserved) for Post Graduate Teacher in terms of the advertisement dated 24.02.2018.

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14. The Hon'ble Supreme Court in the case of Pradeep Kumar and others (supra) had also considered the case of Vikas Sankhala and others (supra) relied upon by the learned counsel for the petitioner and had differentiated the ratio laid down in Vikas Sankhala and others (supra).

15. In the facts and circumstances of the case, I see no merit in the present writ petition and accordingly, the same is dismissed. However, no order as to cost.

16. Return the records to the learned Standing Counsel, School Education Department.

JUDGE

Comparing Assistant