Gauhati High Court
Page No.# 1/25 vs The State Of Assam And Anr on 9 May, 2025
Page No.# 1/25
GAHC010090262022
2025:GAU-AS:5822
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3100/2022
ANSHUMITA GOGOI AND 44 ORS.
D/O SUSHIL GOGOI, R/O DUHUTIA, P.O. NAKACHARI, P.S MARIANI, PIN
-785635 DIST. JORHAT, ASSAM
2: KAUSHIK BHATTACHARJEE
S/O KALI CHARAN BHATTACHARJEE R/O SAPATGRAM WARD NO. 3
P.O. SAPATGRAM P.S SAPATGRAM PIN-783337 DIST. DHUBRI
ASSAM
3: LUKUMONI GOGOI
D/O MONDIT GOGOI
R/O BASASAYAK DIBRUAL
P.O. MAJBARI
P.S. AMGURI
PIN-785680 DIST. SIVASAGAR
ASSAM
4: KRISHNA PATOWARY
D/O LT. JADU PATOWARY R/O MUKTAPUR P.O. LOCH
P.S. BAIHATA CHARIALI
PIN-781381 DIST. KAMRUP (R) ASSAM
5: DIPIKA BORAH
D/O PITAMBARM BORAH
R/O CHENIKUTHI HILL SIDE P.O. SILPUKHURI
P.S. CHANDMARI PIN-781003 DIST. KAMRUP (M) ASSAM
6: ANISHA BHARALI
D/O CHITRA N BHARALI
R/O MAJIKUCHI
P.O. MAJIKUCHI
PIN-784178 DIST. BISWANATH
ASSAM
Page No.# 2/25
7: DIKSHITA DEKA
D/O BINOD KUMAR DEKA R/O MOHKHALI
P.O. GOPAITHAN
P.S. BELSOR
PIN-781334 DIST. NALBARI
ASSAM
8: PALLABICKA BARUAH
D/O PARBOTI PRASHAD BARUAH
R/O GANDHI NAGAR MAKWN
P.O. MAKUM JUNCTION
P.S. MAKUM
PIN-786170 DIST. TINSUKIA
ASSAM
9: BHANU DEWRI
D/O HARESWAR DEWRI
R/O MADANPUR
P.O. LOHARGHAT
PIN-781120 DIST. KAMRUP (R) ASSAM
10: DIPANJALI BORAH
D/O HIMANGSHU BARMAN
R/O MAJARATI
P.O. MAJARATI
PIN-782002 DIST. NAGAON
ASSAM
11: HIMADRI KALITA RAY
W/O- Chandan Ray
R/O - Sonakhuli Part-1
P.O - Srijongram
Pin - 783384
Dist - Bongaigaon
Assam.
12: MADHUSUDHAN BARMAN
D/O- Late Bholanath Barman
R/O - Aminkata
P.O - Aminkata
P.S - Gossaigaon
Pin - 783337
Page No.# 3/25
Dist - Kokrajhar
Assam.
13: DASHAMI KALITA
/O- Bhaskar Jyoti Hazarika
R/O - Telahi Bhakatgaon
P/O - Bangaldhra
P.S - Dharamtul
Pin - 782412
Dist - Morigaon
Assam.
14: TUTU MANI BORAH
D/O- Kushal Thakuria
R/O - Bokrajhar Bagicha
P.O - Tengabari
Pin - 784525
Dist - Udalguri
Assam.
15: RIMA CHETIA HANDIQUE
D/O- Jitu Handique
R/O -Mechagarh Handique
Gaon
P.O - Sivasagar
Pin - 785697
Dist - Sivasagar
Assam.
16: KAMAL PHUKAN
S/O- Tikendra Phukan
R/O - Udaipur
P.O - Jonai
P.S - Jonai
Pin - 787060
Page No.# 4/25
Dist - Dhemaji
Assam.
17: ARUP BORAH
S/O- Late Rupan Borh
R/O - Akhoiphutia
P.O - Akhoiphutia
P.S - Sivasagar
Pin - 785697
Dist - Sivasagar
Assam.
18: JINTI BORAH
D/O- Dulen Saikia
R/O -Kari
P.O - Dolohat
Pin - 787023
Dist - Lakhimpur
Assam.
19: NURUDDIN ALI
S/O- Motibor Rahman
R/O - Hasdoba
P.O - Hasdoba
P.S - Lakhipur
Pin - 783129
Dist - Goalpara
Assam.
20: PALLABI DAS
D/O- Golak Chandra Das
R/O - Gargara
P.O - Sikarhati
Page No.# 5/25
P.S - Palashbari
Pin - 781125
Dist - Kamrup(R)
Assam.
21: RAMIJ UZ JAMAN
S/O- Joinal Ahmed
R/O - Sondha
P.O - Sondha
P.S - Nalbari
Pin - 781337
Dist - Nalbari
Assam.
22: SUBHADRA THAKURIA
D/O- Padmeswar Thakuria
R/O - Nahira
P.O - Nahira
P.S - Palashbari
Pin - 781132
Dist - Kamrup(R)
Assam.
23: TILUMONI GOGOI
S/O- Upen Borah
R/O - Borachuck
P.O - Khatorgaon
Pin - 784169
Dist - Biswanath
Assam.
24: MAFIDA YESMIN
W/O- Fakaruddin Ahmed
R/O - Rajapukhuri
Page No.# 6/25
P.O - Chamuakhat
P.S - Dhula
Pin - 784190
25: SUMSUMI GOGOI
D/O- Hari Chandra Gogoi
R/O - Sarala Baruah Chuk
P.O - Sootea
Pin - 784175
Dist - Biswanath
Assam.
26: RAZZAKUL HUSSAIN
S/O- Shuna Miah
R/O - Chasra No.1
P.O - Satrakanara
P.S - Baghbar
Pin - 781308
Dist - Barpeta
Assam.
27: NITYANANDA PEGU
S/O- Bineswar Pegu
R/O - Kathalguri
P.O - Kekuripomua
P.S - Dhakuakhana
Pin - 787055
Dist - Lakhimpur
Assam.
28: PRANTRISHNA BARUAH
D/O- Tileswar Baruah
R/O - Holongapar Gohaingaon
P.O - Kaparadhara
Pin - 785700
Page No.# 7/25
Dist - Jorhat
Assam
29: DHANJIT DEKA
S/O- Basundhar Deka
R/O - Senapatipara
P.O - Burhinagar
P.S - Sipajhar
Pin - 784147
Dist - Darrang
Assam.
30: ANANTA KALITA
S/O- Bhogeswar Kalita
R/O - Auniati Satra
P.O - Majuli
Pin - 785106
Dist - Majuli
Assam.
31: PRERANA BHUYAN
D/O- Chandra Bhuyan
R/O - Madhabgaon
P.O -Jamugurihat
Pin - 784180
Dist - Sonitpur
Assam.
32: JYOTIREKHA DEKA
W/O- Bijan Bayan
R/O - Pathsala Ward No.2
P.O - Pathsala
Pin - 781325
Dist - Bajali
Page No.# 8/25
Assam.
33: JYOTISMITA SALOI
D/O- Nilamani Medhi
R/O - Bagurihati
P.O - Bagurihat
P.S - Belsor
Pin - 781310
Dist - Nalbari
Assam.
34: BHARGAB JYOTI NATH
S/O- Hem Chandra Nath
R/O - Nayakpara
P.O - Sipajhar
P.S - Sipajhar
Pin - 784145
Dist - Darrang
Assam.
35: SYEDA NILUFAR JAMIL
D/O- Syed Inamul Islam
R/O - Rangia Ward No. 10
P.O - Rangia
P.S - Rangia
Pin - 781354
Dist - Rangia
Assam.
36: JAISHREE DEVI
D/O- Lakhi Nath
R/O - No. 1 Solmoria
P.O - Laluck
Pin - 787023
Page No.# 9/25
Dist - Lakhimpur
Assam.
37: SADDAM HUSSAIN
S/O- Moslem Ali
R/O - Sapkata
Mukalmua
P.O -Nalbari
Pin - 781126
Dist - Nalbari
Assam.
38: RAMEN KALITA
S/O- Late Harendra Kalita
R/O - Debananda
P.O - Hazarikapara
P.S - Sipajhar
Pin - 784145
Dist - Darrang
Assam
39: SATABDISHIKHA KONCH
D/O- Thuluk Konch
R/O - 1 No. Borbil
P.O - Naharpara
P.S - Tingkhang
Pin - 786613
Dist - Dibrugarh
Assam
40: DIPIKA SENSWA
D/O- Gunaram Senswa
R/O - Tehania
P.O - Samaguri
P.S - Amguri
Pin - 785680
Dist - Sivsagar
Assam
Page No.# 10/25
41: MOONMI BORUAH
D/O- Late Hema Boruah
R/O - Samaguri Na-Ali
P.O - Samaguri
P.S - Amguri
Pin - 785680
Dist - Sivasagar
Assam
42: TARALI KALITA
D/O- Hiren Kalita
R/O - Sualkuchi
P.O - Sualkuchi
Pin - 781103
Dist - Kamrup(R)
Assam.
43: DHANMANI KALITA
S/O- Kshemadhar Kalita
R/O - Debananda
P.O - Hazarikapara
P.S - Sipajhar
Pin - 784145
Dist - Darrang
Assam
44: ABDUS SATTAR
D/O- Abdul Latif
R/O - Soilmari
P.O - Chikni
P.S - Kalgachia
Pin - 781321
Dist - Barpeta
Assam.
45: DULUMANI DEKA
D/O KUMUD DEKA R/O ATHGAON P.O. HINGULEE P.S KAMALPUR PIN-
781380 DIST. KAMRUP (R) ASSA
Page No.# 11/25
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
ELEMENTARY EDUCATION DEPTT. DISPUR GUWAHATI-6
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA GUWAHATI-1
Advocate for the Petitioner : MR. M BARUAH, MR S BORTHAKUR,MR P K DAS,MR. M
ALOM
Advocate for the Respondent : SC, ELEM. EDU,
Linked Case : WP(C)/733/2024
SALEHA BEGOM LASKAR
R/O- VILL- MOHANPUR PART VI
P.O- MOHANPUR
P.S- ALGAPUR
DIST- HAILAKANDI
PIN-788150
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE COMMISSIONER AND SECRETRY TO THE GOVT. OF ASSAM
ELEMENTARY EDUCATION DEPARTMENT
GUWAHATI-06
2:THE DEPARTMENT OF SCHOOL EDUCATION
ERSTWHILE DIRECTOR OF ELEMENTARY EDUCATION
KAHILIPARA
GUWAHATI-781019
ASSAM
------------
Advocate for : MR. K M MAHANTA
Advocate for : SC
Page No.# 12/25
ELEM. EDU appearing for THE STATE OF ASSAM AND ANR
Linked Case : WP(C)/1691/2025
TH SUSHMITA SINGHA
W/O- S KHUDOL SAMNA SINGHA
R/O- RAJYESWARPUR PART-VIII
P.O.- LALA
P.S.- LALA
DIST- HAILAKANDI
ASSAM.
VERSUS
THE STATE OF ASSAM AND 2 ORS.
TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVT. OF ASSAM
DEPARTMENT OF SCHOOL EDUCATION
DISPUR
GUWAHATI-06.
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GAUHATI- 19.
3:THE DISTRICT ELEMENTARY EDUCATION OFFICER
HAILAKANDI
P.O.
P.S. AND DISTRICT- HAILAKANDI
ASSAM.
------------
Advocate for : MR. A M BARBHUIYA
Advocate for : SC
ELEM. EDU appearing for THE STATE OF ASSAM AND 2 ORS.
Linked Case : WP(C)/1996/2024
MALABIKA BORUAH AND 5 ORS.
C/O- TULEN BORUAH
R/O- RAIDONGIA
P.O. GHILAMARA
P.S. GHILAMARA
Page No.# 13/25
PIN- 787053
DIST. LAKHIMPUR
ASSAM
2: ERANI BORDOLOI
D/O- MONDIT GOGOI
D/O- AMULYA BORDOLOI
R/O- TATIBAHAR
P.O. PADMAPUR
P.S. NARAYANPUR
PIN- 784164
DIST. LAKHIMPUR
ASSAM
3: DIMPAL CHUTIA
D/O- TIRTHA NATH CHUTIA
R/O- MAJ GAON
P.O. MORNOI BEBEJIA
P.S. GHILAMARA
PIN- 787055
DIST. LAKHIMPUR
ASSAM
4: ANJALI PATOWARY
W/O- DIMBESWAR MAJUMDAR
R/O- BAIHATA
P.O. BAIHATA
P.S. KAMALPUR
PIN- 781380
DIST. KAMRUP
ASSAM
5: JUN TI PHUKAN
D/O- LATE MUKHESWAR PHUKAN
R/O- POTIAPATHARGAON
P.O. BADULIPARA
PIN- 785611
DIST. GOLAGHAT
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
ELEMENTARY EDUCATION DEPARTMENT
DISPUR
GUWAHATI-6.
Page No.# 14/25
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GHY-19.
------------
Advocate for : MR S BORTHAKUR
Advocate for : SC
ELEM. EDU appearing for THE STATE OF ASSAM AND ANR
Linked Case : WP(C)/692/2024
NILUFA SULTANA
W/O- MD. JAHID AHMED
R/O- VILL.- SELEWSUTI
P.O. MAHTOLI BAZAR
P.S. BOKO
DIST. KAMRUP
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
SCHOOL EDUCATION (ELEMENTARY) DEPARTMENT
DISPUR
GUWAHATI-6.
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19.
------------
Advocate for : DR. B AHMED
Advocate for : SC
ELEM. EDU appearing for THE STATE OF ASSAM AND ANR
Linked Case : WP(C)/7365/2023
MINA HAZARIKA AND ANR
W/O- SHRI CHANDRA KONWAR
R/O- VILL.- NABAKATHARBARI
P.O. DHAKUAKHANA
Page No.# 15/25
DIST. LAKHIMPUR
ASSAM
PIN- 78755.
2: BINA CHETRY
W/O- SHRI SUBHAS CHETRY
R/O- VILL.- BORPAK NEPALI GAON
P.O. MACHKHOWA
DIST. DHEMAJI
ASSAM
PIN- 787058.
VERSUS
THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
EDUCATION DEPARTMENT
DISPUR
GUWAHATI-781006.
2:THE DIRECTOR
ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19.
3:THE DISTRICT ELEMENTARY EDUCATION OFFICER
DHEMAJI
ASSAM
4:THE DEPUTY INSPECTOR OF SCHOOLS
DHEMAJI
ASSAM
5:THE BLOCK ELEMENTARY EDUCATION OFFICER
DHEMAJI
DIST. DHEMAJI
ASSAM
6:THE HEAD MASTER
JIADHAL ME SCHOOL
DIST. DHEMAJI
ASSAM
7:THE HEAD MASTER
PURBUTTAR MACHKHOWA ME SCHOOL
DIST. DHEMAJI
Page No.# 16/25
ASSAM
------------
Advocate for : MS M BORAH
Advocate for : SC
ELEM. EDU appearing for THE STATE OF ASSAM AND 6 ORS
- B E F O R E-
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
For the petitioners : Mr. K.K Mahanta, Sr. Adv
: Mr. S Borthakur. Adv
: Mr. P.K. Roy Choudhury, Adv
: Mr. A.M. Barbhuiya, Adv
For the Respondents : Mr. NJ Khataniar, SC,
Elementary Education
Date of hearing : 07.04.2025
Date of judgment : 09.05.2025
JUDGMENT & ORDER (CAV)
1. Heard Mr. S Borthakur, learned counsel for the petitioners
appearing in WP(C) No.3100/2022 & WP(C) No.1996/2024 and Ms. M
Borah, learned counsel for the petitioner in WP(C) No.7365/2023. Also
heard Mr. N. J Khataniar, learned standing counsel, Elementary Education
Department appearing for all the respondents in all these writ petitions.
2. These writ petitions are taken up together for final disposal as
proposed by the learned counsels for the contesting parties, and also for
the reason that the issue involved in these writ petitions and the reliefs
sought are similar.
Page No.# 17/25
3. The case of the petitioners in all these writ petitions is that all
the petitioners have the qualification of Praveen from Rastrabhasha
Prachar Samiti and they claim to be eligible to be appointed as Teacher in
Upper Primary School in the subject Hindi. However, their grievance is that
such a qualification is not considered to be an eligibility, though the same
qualification is a recognised qualification for selection as a Teacher for
High Schools, in Hindi in Assam. It is also an admitted position that the
petitioners, beyond qualifying Praveen from Rastrabhasha Prachar Samiti,
had also acquired a Bachelor's degree in Arts.
4. The background fact of this litigation is that certain
advertisements were issued by the Director of Elementary Education,
Assam for appointment of Hindi Teacher in Upper Primary Schools (Class
VI to VIII), in which, the qualification for appointment of teachers in Hindi
in Upper Primary Schools were prescribed as Graduate from an UGC
recognized University, having Hindi as one of the subject and two years
diploma in Elementary Education or B. Ed or D. Ed. (Special Education) or
B. Ed (Special Education) and passed in Assam TET for Upper Primary
Schools conducted by the Department of Elementary Education.
5. There is no dispute as regards the petitioners' qualification of
being graduates from recognized university or having the qualification of
B. Ed etc, and passing the Assam TET for Upper Primary Schools.
However, what the petitioners are claiming and as recorded hereinabove,
is that they having obtained Praveen from Rastrabhasha Prachar Samiti,
they should be allowed to participate in the selection process and they
seek a declaration by way of a mandamus that their qualification of
Praveen should be treated as a qualification in terms of such
Page No.# 18/25
advertisements.
6. The basis of such prayer is that a similar qualification of
Praveen is recognised for appointment of Hindi teachers in High School
under the Secondary Education Department, and at the same time, it is
not recognized as a valid qualification for appointment of Hindi Teachers in
Upper Primary Schools under the Elementary Education Department.
7. In this context, Mr. Borthakur, learned counsel for the
petitioners, referring to the Schedule of Assam Secondary Education
(Provincialisation) Rules, 2018, argues that for Hindi teachers in
Secondary Education (Class IX & X), the qualification prescribed is
Praveen and Ratna in Hindi with 50% marks, and having degree
qualification from any recognized university or B. Ed. It is his further
contention that the state by framing the aforesaid Rule, 2018 under
proviso to Article 309 had already recognized the Praveen to be a
recognized degree for appointment of Hindi teacher in High Schools and
therefore there cannot be any ground for not recognizing same degree in
case of appointment of Hindi Teachers for Upper Primary Schools (Class VI
to VIII).
8. The state has taken a specific stand in their affidavit in
opposition that the aforesaid prescription having Hindi as a subject
prescribed in the advertisement is in conformity and in terms of the NCTE
Notification dated 23.08.2010, by which the essential qualification for
being appointed as teachers in Primary and Upper Primary Schools is
mandated. Referring to the provisions relating to the essential qualification
for being appointed as teachers of Upper Primary Schools, prescribed
under Assam Elementary Education Provincialization Rules, 1977, Mr.
Page No.# 19/25
Khataniar, learned Standing Counsel, School Education Department
contends that it is prescribed under the Rules that minimum qualification
of a person to be eligible for appointment as a teacher in the Upper
Primary School shall be as per notification issued by the State Government
from time to time in conformity with NCTE norms and therefore, according
to him, the respondent State cannot be faulted in prescribing a
qualification in terms of the NCTE notification.
9. Countering such argument, Mr. Borthakur submits that the
NCTE notification dated 23.08.2010, has not prescribed any additional
qualification of having one of the subject as Hindi in degree, rather the
qualification prescribed for appointment of teachers for Upper Primary
Schools (Class VI to Class VIII) is BA/BSC and two years diploma in
Elementary Education (by whether and whatever name known) and
therefore, Hindi as a subject in graduation cannot be insisted by the State
when they relies on the NCTE notification and the State cannot be allowed
to approbate and reprobate.
10. In the aforesaid backdrop of prescription of rules, this court,
having prima facie found force in the argument of Mr. Borthakur, learned
counsel for the petitioners that NCTE notification dated 23.08.2010,
nowhere prescribes any additional qualification of having Hindi as one of
the subjects beyond the BA/BSC degree and also having a prima facie
view that similar degree i.e., Praveen has duly been recognized as
qualification for appointment on teacher in the High School (Class IX and
X), the state was directed to file an affidavit clarifying the aforesaid
disparity i.e, when there is no prescription in the notification dated
23.08.2010 issued by the NCTE for additional qualification of Hindi as one
Page No.# 20/25
of the subject in degree and when the qualification of Praveen is
recognized as a qualification for being appointed as Hindi teacher in High
School, why the Praveen degree is not being recognized as a valid
qualification for being appointed as Hindi teacher in Upper Primary School
in addition to graduation.
11. The State has filed an additional affidavit through the Director of
Elementary Education, Assam and a stand has been that to the effect that
the Government of India by Press notes dated 18.02.1970, 07.07.1973
and 05.05.1988 had made it clear that though the Government of India
has given recognition to Prabodh, Visharad and Praveen examinations,
however, same are not to be treated as equivalent to full-fledged degree.
Therefore, it is contended that as the NCTE had clearly stipulated that
minimum qualification in a particular subject (in the case in Hindi), should
be there in the level of graduation and Praveen cannot be treated as
equivalent to full-fledged degree and therefore, in adherence of NCTE
guidelines, the Praveen in Hindi for the LP School teachers are not
accepted. According to the State, the Government has already issued a
notification dated 21.04.2017, which mandates the requirement of Hindi
as one of the subjects in graduation.
12. This Court has given anxious consideration to the submissions
advanced by the learned counsel for the parties. Also, perused the
statutes and notifications cited at the bar.
13. A service condition is indeed controlled by the rules framed for
that context. In the case in hand, the relevant service rules of the
petitioners are Assam Elementary Education (Provincialisation) Service
Rules, 1977, (hereinafter referred to as Rules, 1977), subject qualification,
Page No.# 21/25
admittedly, is relatable to Elementary School teachers. Rule 3 of the Rules,
1977 deals with the method of recruitment and Rule 3(iii) of the Rules,
1977 prescribes that minimum qualifications for a person to be eligible for
appointment as a teacher, shall be as per notification issued by the State
Government from time to time in conformity with NCTE norms.
14. Therefore, the required qualification so far relating to the
present petitioners shall be as per notification issued in this regard by the
NCTE dated 23.08.2010 and /or any notification issued in this regard by
the State in conformity with NCTE notification.
15. It is important to note herein that after the enactment of the
Right of Children to Education Act, 2009, (hereinafter referred to as Act,
2009), NCTE was notified as the Academic Authority in terms of Section
23 (1) of the Act, 2009 by inserting Section 12A to NCTE Act, 1993. Thus,
NCTE is statutorily empowered and authorized to determine minimum
standards of education of school teachers at the Elementary level.
Accordingly, NCTE issued the notification dated 23.08.2010, prescribing
the minimum qualification for being appointed as a teacher in Elementary
Schools. The minimum qualification for being appointed as a teacher,
more particularly, as teachers for classes VI to VIII, which is the subject
matter of the present writ petitions, prescribes the following:
a. BA/BSC and two-year diploma in Elementary Education (by
whatever name known). Or,
b. BA/BSC with at least 50% marks and a one-year bachelors in
Education (BA). Or
c. BA/B.Sc. with at least 45% marks and one year bachelor
degree in Education (BA) in accordance with NCTE (Recognition
Page No.# 22/25
Norms and Procedure) Regulation, issued from time to time in this
regard.
d. In addition to the aforesaid, another mandatory requirement
is the passing of Teacher's Eligibility Test (TET), conducted by
appropriate government in accordance with guidelines framed by
NCTE for that purpose.
16. The present petitioners are admittedly having the required
essential qualification prescribed and as recorded at paragraph (a)
hereinabove. There is no dispute that the petitioners have the prescribed
qualification of TET. Thus, in terms of NCTE notification, the petitioners
are having both the qualifications, i.e., the educational/professional
qualification as well as the additional qualification of TET for being
appointed as teachers in Elementary Schools in terms of NCTE
notification.
17. There is nothing in the aforesaid notification dated 23.08.2010 or
in any amendment thereof, even remotely prescribing any specific cadre
of Hindi teacher for Elementary Schools or any specific educational
qualification of having Hindi as a special subject in graduation for being
appointed as teachers for teaching Hindi in Elementary Schools in classes
VI to VIII.
18. Mr. Khataniar, learned counsel for the respondent also fairly
submits that no separate notification has been issued by the State in
exercise of its power under Rule 3(iii) of the Rules, 1977, prescribing any
such qualification.
19. In the aforesaid backdrop, it is clear that in both the rules i.e.,
Rules 1977 (which controls the service condition including method of
Page No.# 23/25
recruitment of teachers in Elementary Schools, consisting of Lower
primary and Upper Primary Schools) and the NCTE notification dated
23.08.2010 as recorded hereinabove, there is nothing to suggest any
requirement of having Hindi as a subject in the graduation level for being
appointed as a Hindi teacher in Elementary Schools.
20. It is important to note that Rule 3(iii) of the Rules 1977 was
substituted by an amendment on 25.10.2012. Before such amendment,
Rule 3 (iii) (b) of the Rules, 1977, prescribed the qualification for being
appointed as a Hindi teacher. Such qualification prescribed was HSLC
examination passed with Hindi Visharad from Assam Rashtrabhasa Prasar
Samity or Higher Secondary Education Passed with Hindi as one of the
subject or equivalent thereof. However, such a prescription has now been
deleted from the Rules, and Rule 3(iii) of the Rules, 1977 was substituted.
Thus, from this point of view, read with the mandate of NCTE notification
dated 23.08.2010 and the substituted Rule 3(iii) leaves no room of doubt
that there is no special prescription of special qualification for being
appointed as Hindi teacher in Elementary Schools, rather there is no such
cadre of Hindi Teacher in the Rules, 1977.
21. Now, let this court deal with the stand taken by the respondent
in the additional affidavit. As recorded hereinabove, the service rule
prescribes qualification as per NCTE norms. The NCTE had already
prescribed the required qualifications. Such a prescription was made in
conformity with the RTE Act, 2009.
The notification dated 18.02.1970, 07.07.1973 and 05.05.1988, relied
upon by the respondent State was issued prior to enactment of the RTE
Act, 2009 and amendment of NCTE Act, 1993. Therefore, the notifications
Page No.# 24/25
issued post enactment of the RTE Act, 2009 and post introduction of
section 12A of the NCTE Act, 1993, by which the NCTE was empowered
as the specialized authority to prescribe educational qualification for
teachers, shall be relevant and not any other notification, prescribing
qualification for being appointed a teachers in elementary schools.
22. The notification dated 21.04.2017, which is being placed by the
State respondent to justify their action in prescribing graduation from a
UGC recognized University having Hindi as one of the subjects with Upper
Primary TET, is relatable to the relaxation of recruitment of Bl.Ed for
Lower Primary school teachers and B. Ed for Upper Priamary school
teachers, as an eligibility condition for a period of one year four months
25 days with effect from 13.04.2017 and thus, the said notification itself
had lost its force as it was specified in the notification itself that the
qualification prescribed will remain valid for one year four months and
twenty five days with effect from 13.04.2017. Thus, such notification
which is having no force beyond its expiry, cannot have any bearing on
prescribing an educational qualification for being appointed as Hindi
Teachers in Elementary Schools i.e. to acquire graduation from UGC
recognized university having Hindi as one of the subject, more particularly,
in absence of any such prescription of having Hindi as one of the subject
either in NCTE notification dated 23.08.2010 or in absence of any
notification prescribing such qualification in terms of Rule 3(iii) of the
Rules, 1977. That being the position, insistence of Hindi as a special
subject in graduation in absence of any prescription by NCTE or in
absence of notification by issued by the State in exercise of power under
Rule 3 (iii) of the Rules, 1977, shall be violative of the petitioner's right
Page No.# 25/25
under Articles 14 and 16 of the Constitution of India.
23. Having said so, this court cannot be oblivious of the right of an
employer to add certain qualifications in conformity with the NCTE
notification issued in this regard; however, in the absence of such a
notification issued, the State cannot insist on additional qualification
beyond the scope of the NCTE notification prescribing qualification.
24. Now coming to the impugned advertisements, the selection
process continued and during pendency of these writ petitions, the
selection process had already been completed, and therefore, this Cort at
this stage cannot issue a writ of mandamus to allow the petitioners to
participate in the selection process. However, the determination made
hereinabove shall be made applicable in future advertisements until and
unless such special prescription qualifications are made by way of
appropriate notification in conformity with the NCTE.
25. The question whether the degrees in question awarded by the
Rashtrabhasa Prasar Samity can be treated to be equivalent to having
Hindi in graduation for the reason of similar qualification being recognised
for appointment of Hindi teacher under High School under Assam
Secondary Education provincialisation Service Rules, is kept open.
26. Accordingly, the writ petitions stand disposed of with the
determination and observations made hereinabove. Parties to bear their
own cost.
JUDGE
Comparing Assistant
