A. Raghuvir. C.J.— Debeswar Bora is the petitioner in this case. He passed the Matriculation examination with 35.7% of marks. He also passed the Pre-University course with 35.08%of marks. On June 24,1986 when an advertisement appeared inviting applications for appointment of teachers in L. P. Schools and Middle Schools he applied for the appointment in a Middle School in spite of the fact that in the advertisement it was mentioned by the Director of Elementary Education, Assam that an applicant must have had secured 40% of marks in HSLC Examination if he were to apply for Primary Schools and similarly 40% of marks a candidate should have obtained in Pre-University Course if he were to apply for Middle School. The requirement of 40% marks in the two examinations as appeared in the advertisement was amended later by the Director of Elementary Education by Memo No. BAA. 59/86/18 dated July 9, 1986. In that amendment it was recited that applications may be received from those who have secured less than 40% of marks in both HSLC or Pre-University Examination. Thus after amendment of advertisement all those who applied were considered. Debeswar Bora was selected. He was appointed in Lahir Kumar Gaon M. V. School in the pay scale of Rs. 52 5/- to 920/- on August 2, 1988. Thereafter on April 23, 1990 his services were terminated principally on the ground that in the Pre-University Examination he did not secure 40% of marks. The petitioner hence approached this Court to quash the order of termination dated April 23, 1990 and for other incidental reliefs. While this case was being considered by this Court a large number of cases were filed by teachers whose services were terminated more or less in similar manner. There are writ petitions where the teachers were not appointed though selected. The reason being that they did not obtain 40% of marks in HSLC Examination. Thus there was a revival of the condition of 40% which appeared in the advertisement before July 9, 1986 amendment. The counsel who appeared for such candidates were heard while hearing this case. During the debate counsel who appeared for the teachers of L. P. Schools and Middle Schools whose services were terminated, were also heard.
Thus there was a revival of the condition of 40% which appeared in the advertisement before July 9, 1986 amendment. The counsel who appeared for such candidates were heard while hearing this case. During the debate counsel who appeared for the teachers of L. P. Schools and Middle Schools whose services were terminated, were also heard. The cases of teachers who were not appointed to repeat for the reason that they did not secure 40% of marks for appointment to the post of teachers of L.P.School or Middle Schools were also heard. The common question that arise for consideration is whether there is any legal or statutory requirement for a candidate for appointment to secure 40% of marks, be it for the post of Primary Schools or be it for the post of Middle School. Learned counsel referred 10 Assam Elementary Education (Provincialisation) Rules, 1977, in particular Rule 3 sub-rule (iii) (a) and (b) which runs thus s "3. (iii) Qualification % (a) Matriculation/High School/School Leaving Certificate Examination or any other examination of equivalent standard shall be the minimum qualification for the post of teacher in Lower Primary and Junior Basics preference being given to candidates trained in Senior Basic, Normal and Junior Basic Training Courses, (b) for M. V. and Senior Basic Schools qualification shall be Matric Normal or P. U. or Intermediate or its equivalent." It is seen for eligibility the above Rule does not say anywhere whether it is in clause (a) or clause (b) of sub-rule (iii) of Rule 3 that a candidate should have secured 40% of marks. In the absence of any statutory rule or recitation in the rule., a candidate should have passed the qualifying examination with certain percentage of marks, cannot be insisted either for appointment or if a teacher is appointed he should be terminated. If such an insistence is made by the State authorities it would be inconsistent with the 1977 Rules. The learned counsel streneously argued that teachers who were not appointed they are entitled to be appointed if they are selected and those who have been appointed cannot be terminated. The contention ii well founded.
If such an insistence is made by the State authorities it would be inconsistent with the 1977 Rules. The learned counsel streneously argued that teachers who were not appointed they are entitled to be appointed if they are selected and those who have been appointed cannot be terminated. The contention ii well founded. The learned Senior Government Advocate, who appeared for the respondents argued that it may not be statutory requirement to obtain 40% of marks but the State Government with a view to "narrow down" the unmanageable list of candidate or to "thin down the list" such a requirement was applied. This argument overlooks the fact that such a requirement is not incorporated in the Rules. If the Government intended 40% of marks candidates alone should be made eligible the straight course open to the Government was to amend the Rules. In the absence of amendment in 1977 Rules such an insistence the Government cannot be heard for application of the condition. The Rules recite pass in Matriculation or in Pre-University examination is sufficient eligibility fora candidate to be appointed Therefore, this contention of the State Government that to control the un-manageable numbers or with a view to thin down the list, this requirement is applied cannot hold water. The learned Senior Government Advocate in this regard next referred to Rule 7 which reads as under : "7. Power of Government to dispense with or relax any rule-Where the Government is satisfied that the question of any of these rules may cause undue hardship in any particular case it may dispense with or relax the requirement of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. Provided that the case of any person shall not be dealt with in any manner less favourable to him than provided in the Act." It is suggested en behalf of the State that by exercising power under Rule 7 the requirement of 40% of marks was introduced as it appeared in the advertisement before amendment. The requirement therefore does not suffer from any vice whatsoever. In our view Rule 7 is not relevant or pertinent. Rule 7 reposes power in the Government t« relax Rules in hard cases.
The requirement therefore does not suffer from any vice whatsoever. In our view Rule 7 is not relevant or pertinent. Rule 7 reposes power in the Government t« relax Rules in hard cases. By exercising of this Rule the Government cannot introduce or narrow down the eligibility qualification which is inconsistent with Rule 3 or opposed to Rule 3, The power of the Government under Rule 7 is to relax wherever the application of conditions is causing hardship on any particular candidate. In this regard, learned counsel for the petitioner referred to the instruction issued by the Government in Memo -No. EPE. 25/83/Pt dated September 26, 1986 where a candidate who suffered in the Assam Movement was exempted of 40% marks. The reference to this Memo is an instance of exercise of power under Rule 7. The State Government considered the hardship caused to some of the Assam Movement sufferers and relaxed the rule of requirement as respects 40% of marks. This was done on the basis that the requirement of 40% was legal. In fact, this Court Considered this aspect in Civil Role 1590 on May 25, 1990 though not in such an elaborate manner as it is argued now. In that case this Court held that the Government had the power to exempt the requirement of 40% of marks. Therefore, such candidates who were Assam Movement sufferers were eligible for appointment of teachers' post or those who have been appointed cannot be terminated even it they have secured less than 40% of marks. The ratio of the above decision in the case does not in any v ay go against the spirit of decision arrived at in the instant case. Now in the instant case Debeswar Bora passed the Pre-University course. He was selected. His name was found in the merit list of selected candidates. He was appointed and the District Elementary Education Officer. Jorhat terminated his services by the impugned order dated April 23, 1990. For all the aforesaid reasons, the termination order is quashed. The petitioner may be taken on duty from 1st December, 1990 and he be paid salary from that date onwards. The salary for the period till November, 19^0 we do not think in the circumstances of the case to order payment of the same.
For all the aforesaid reasons, the termination order is quashed. The petitioner may be taken on duty from 1st December, 1990 and he be paid salary from that date onwards. The salary for the period till November, 19^0 we do not think in the circumstances of the case to order payment of the same. We direct the period in between the date of termination to December 1, 1990 may not be considered in future as disruption in service to the detriment of the petitioner. The writ petition is allowed, as indicated above. No costs,