JUDGMENT & ORDER : 1. Heard Mr. M. Sarania, learned counsel for the petitioner. Also heard Ms. K. Phukan, learned State counsel, appearing for the respondent No.1 and 6, Mr. N. Sarma, learned standing counsel, Education (Elementary) Department, appearing for the respondent Nos.2 and 3 and Mr. M. Khataniar, learned standing counsel, BTC, appearing for the respondent Nos.4, 5 and 7. 2. The father of the petitioner, namely, Khagen Ch. Das, while serving as an Assistant Teacher in 95 No. Sonmahari L.P. School, died in harness on 26.08.2010, leaving behind his wife, three sons and a daughter. The petitioner belongs to Koch Community, which is recognized as an Other Backward Class (OBC). He had submitted an application on 20.12.2010 for appointment under 5% reserved quota for appointment on compassionate ground under the Office Memorandum dated 09.09.1983. 3. From the minutes of the District Level Committee (DLC), constituted pursuant to the judgment of this Court in the case of Achyut Ranjan Das -Vs- State of Assam & Ors., reported in 2006 (4) GLT 674, to consider the cases of compassionate appointment at the first instance, it appears that the DLC had considered 24(twenty-four) applicants including the petitioner, who had applied for the post of Assistant Teacher in Primary School, which is a Grade-III post, against 43(forty-three) numbers of vacancy under the District Elementary Education Officer, Baksa. The DLC had recommended 3(three) candidates including the petitioner, whose position is reflected at serial No.1. The recommendations were considered by the State Level Committee (SLC) in its meeting held on 01.04.2014, which is also constituted in terms of the judgment rendered in Achyut Ranjan Das (supra). The minutes of the said meeting was circulated on 15.07.2014. The SLC rejected the case of the petitioner as being under qualified and not having required percentage. Against this decision rejecting the application of the petitioner for compassionate ground, this present writ petition is filed. 4. In the writ petition, the petitioner has also challenged an Office Memorandum dated 16.05.2012 (Annexure-VII to the writ petition) issued by the Commissioner & Secretary to the Government of Assam, Education (Elementary) Department, prescribing the minimum qualifications required for appointment as Assistant Teacher in Elementary Schools on compassionate ground. The relevant portion of the Office Memorandum reads as follows:- “OFFICE MEMORANDUM Sub: Minimum qualification required for appointment as Assistant Teacher in Elementary Schools on compassionate ground. The relevant portion of the Office Memorandum reads as follows:- “OFFICE MEMORANDUM Sub: Minimum qualification required for appointment as Assistant Teacher in Elementary Schools on compassionate ground. Consequent upon the fixation of the qualifications for a person to be eligible for appointment as a teacher by the National Council for Teacher Education (NCTE) as per RTE Act, 2009, vide its notification No.61-03/20/2010/ NCTE/(N&S) dated 23rd August, 2010, a large number of candidates including those related Court cases for appointment on compassionate ground face deprivation of their appointment as Assistant Teachers in elementary schools for not having requisite qualification as per NCTE norms. In view of the dearth of candidates with professional qualification as per NCTE norms and lack of Teacher Training Institutions for such professional courses in the State, Government of Assam had requested Government of India for relaxation of certain qualifications for teachers appointment in elementary schools and Government of India has allowed relaxation of professional qualifications up to 31st March, 2015. On the other hand, the Government of Assam vide OM No.ABP 357/80/137 dated 3/9/1983 and OM No.ABP 357/80/Pt/12 dated 23/3/1992, relating to the scheme for appointment on compassionate ground, has provided for relaxation in educational qualification in cases of extreme hardship, giving the applicant under the scheme an opportunity to acquire the requisite qualifications. It is also provided that if such a relaxation is allowed in respect of an applicant of Grade-IV post, the same shall stand relaxed for all times to come. And if for a Grade-III post, acquirement of requisite qualification would be required only for promotion to the next higher post and for fixation of inter-se seniority. Accordingly, Government of Assam is pleased to adopt the following norms in respect of minimum qualifications required for appointment on compassionate ground as an Assistant Teacher in the elementary schools – 1. Candidates for appointment on compassionate ground need not appear in Teachers Eligibility Test (TET). 2. Cases prior to 23rd of August, 2010 : Minimum qualification required for both LP and UP is Higher Secondary or its equivalent as laid down in the Assam Elementary (Provincialisation) Rules, 1977 as amended in 2005 before the notification of the NCTE norms as the qualification laid down in the RTE Act, 2009, has come into force prospectively. 2. Cases prior to 23rd of August, 2010 : Minimum qualification required for both LP and UP is Higher Secondary or its equivalent as laid down in the Assam Elementary (Provincialisation) Rules, 1977 as amended in 2005 before the notification of the NCTE norms as the qualification laid down in the RTE Act, 2009, has come into force prospectively. However, such appointee shall have to acquire requisite qualification in terms of the RTE Act, 2009, and Rules framed there under, within a period of 5(five) years, failing which, the consequence laid down in the scheme shall follow. 3. Cases on or after 23rd August, 2010 (upto 31/3/2010) (i) Class I to Class V (a) Senior Secondary or its equivalent with at least 50 percent marks. OR (b) Graduate (irrespective of marks). (ii) Class VI to Class VIII : Graduate Note: However, Government will have a fresh look at the norms once the period of relaxation for i.e. upto 31/3/2015, professional qualification given by Govt. of India vide Notification No.F.No.1-17/2010-EE-4 dated 26/08/2011 and (ii) F. No.1-17/2010-EE-4 dated 10/10/2011 in respect of Assam is over. Reserved categories: Relaxation of 5 percent in qualifying marks shall be allowed to the candidates belonging to reserved categories such as SC/ST/OBC/PH, with respect to (i) and (ii) above.” 5. Mr. Sarania has submitted that the petitioner secured 43.5% marks in the Higher Secondary Examination and in terms of Assam Elementary Education (Provincialisation) Rules, 1977 (for short, “1977 Rules”), the minimum qualification for Assistant Teacher in Upper Primary and Lower Primary Schools being Higher Secondary or any other examination of equivalent standard with 45% marks for general category candidates and 40% marks for reserved category candidates, he is distinctly eligible for being considered for compassionate appointment and, therefore, the SLC is not justified in holding that the petitioner was having less percentage of marks and that he is under qualified. It is submitted by him that the aforesaid finding was recorded on the basis of the Office Memorandum dated 16.05.2012 and the norms prescribed therein could not have been applied in respect of the application submitted by the petitioner on 22.12.2010. Further contention of Mr. It is submitted by him that the aforesaid finding was recorded on the basis of the Office Memorandum dated 16.05.2012 and the norms prescribed therein could not have been applied in respect of the application submitted by the petitioner on 22.12.2010. Further contention of Mr. Sarania is that the Office Memorandum dated 16.05.2012 could not have been given retrospective effect with effect from 23.08.2010 in violation of the provisions of 1977 Rules as the norms prescribed by the National Council for Teacher Education (NCTE) in the Notification dated 23.08.2010 prescribing minimum qualification was incorporated by way of amendment in the 1977 Rules with effect from 20.10.2012 and, therefore, the Office Memorandum is, ex facie, bad in law. He has submitted that the petitioner has, in the meantime, obtained B.A. Degree from Krishna Kanta Handiqui State Open University on 16.11.2014 and hence, he is, at any rate, now eligible for being considered for compassionate appointment in a Grade-III post and, therefore, a direction may be issued to the respondent authorities to consider once again the case of the petitioner for appointment on compassionate ground in a Grade-III post of Assistant Teacher. 6. The learned counsel appearing for the respondents have submitted that in view of the NCTE Notification dated 23.08.2010 issued in exercise of powers conferred by Section 23(1) of the Right of Children to Free and Compulsory Education Act, 2009 (for short, “2009 Act”) prescribing educational qualification for appointment as a teacher in Class-I to VIII, the qualification prescribed therein will supersede any other qualification prescribed under any Rule and the Office Memorandum dated 16.05.2012 is only clarificatory in character and, therefore, there is no illegality in rejecting the case of the petitioner for compassionate appointment on the ground of not fulfilling the requisite educational qualification norms. It is also submitted that the candidates recommended by the SLC having also not been made party respondents in this proceeding, the writ petition suffers from the incurable defect of non-joinder of necessary parties. They also contend that the petitioner himself having applied for a post of Assistant Teacher in a Lower Primary School, though he was not qualified to be appointed, cannot claim consideration of appointment on a Grade-III post now and, therefore, the writ petition is liable to be dismissed. 7. They also contend that the petitioner himself having applied for a post of Assistant Teacher in a Lower Primary School, though he was not qualified to be appointed, cannot claim consideration of appointment on a Grade-III post now and, therefore, the writ petition is liable to be dismissed. 7. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the materials on record. 8. The petitioner was recommended by the DLC for appointment in one of the three available posts for appointment on compassionate ground and, therefore, I am of the considered opinion that the submissions of the learned counsel appearing for the respondents to the effect that the writ petition is liable to be dismissed for non-joinder of necessary parties has no merit as they were not competing for one and the same post. 9. The 1977 Rules, prior to its amendment on 20.12.2012, had prescribed that for appointment as an Assistant Teacher in L.P. School, 45% marks for general category candidate and 40% marks for reserved category candidates in the senior secondary level will be the minimum qualification. The petitioner having secured 43.5% marks had thus, fulfilled the requisite qualification norms under the 1977 Rules. However, in exercise of powers under Section 23(1) of the 2009 Act and in pursuance of the Notification dated 31.03.2010 issued by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, the NCTE, by its notification dated 23.08.2010 laid down minimum qualification for a person to be eligible for appointment as a teacher in Class-I to VIII in a school referred to in Clause-(n) of Section 2 of the 2009 Act with effect from the date of the said Notification. The qualification prescribed for Classes-I to V, with which the present case is concerned, reads as follows:- (i) Classes I – V (a) Senior Secondary (or its equivalent) with at least 50% marks and 2 – year Diploma in Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2 – year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002 OR Senior Secondary (or its equivalent) with at least 50% marks and 4 – year Bachelor of Elementary Education (B. El.ED) OR Senior Secondary (or its equivalent) with at least 50% marks and 2 – year Diploma in Education (Special Education) AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.” 10. It is to be noticed that the petitioner had applied for appointment on compassionate ground on 20.12.2010, which is, after coming into force of the NCTE Notification dated 23.08.2010. It is also seen from the minutes of the meeting of the DLC held on 22.12.2011 that 3(three) Assistant Teachers for Under Primary Schools were recommended including the petitioner. The other 2(two) are Khanindra Baro and Firuzul Islam. Perusal of the minutes of the SLC meeting held on 01.04.2014 indicates that the cases of the petitioner as well as of Khanindra Baro were rejected on the ground of being under qualified and not having the requisite percentage and that Md. Firuzul Islam was appointed in an L.P. School. It appears that expression Under Primary and Lower Primary are interchangeably used. From the representation dated 13.08.2014 of the petitioner at Annexure-VIII of the writ petition, it is evident that the petitioner had applied for appointment as Assistant Teacher in L.P. School on the death of his father. 11. Section 23 of the 2009 Act reads as follows:- “23. Qualifications for appointment and terms and conditions of service of teachers: (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. 11. Section 23 of the 2009 Act reads as follows:- “23. Qualifications for appointment and terms and conditions of service of teachers: (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. (2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification: Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years. (3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.” 12. NCTE guidelines dated 23.08.2010 mandates that for appointment as teacher in Class I to VIII in a school referred to in Clause (n) of Section 2 of the 2009 Act, the minimum qualifications will be as prescribed from the date of the Notification. 13. Subsequently, Rule 3(iii) of 1977 Rules was amended on 20.10.2012 as hereunder:- “(iii) Qualification – The minimum Qualification of a person to be eligible for appointment as a teacher in elementary school shall be as per Notification issued by the State Government from time to time in conformity with NCTE norms. These qualifications shall be applicable to all category of elementary schools. In case of any relaxation required in respect of any qualification as prescribed by the NCTE from time to time, the State Government shall take up the matter with the Government of India for such relaxation.” 14. In this connection, it will be also appropriate to quote Rule 15 of the Assam Right of Children to Free and Compulsory Education Rules, 2011 (for short, “2011 Rules”). Same reads as follows:- “15. Minimum qualification for the purposes of section 23 (1) :- The minimum qualifications for a person to be eligible for appointment as a teacher in elementary schools shall be as notified by the National Council for Teacher Education vide no. F. No. 61- 03/20/2010/NCTE (N&S) dated 23/8/2010. Same reads as follows:- “15. Minimum qualification for the purposes of section 23 (1) :- The minimum qualifications for a person to be eligible for appointment as a teacher in elementary schools shall be as notified by the National Council for Teacher Education vide no. F. No. 61- 03/20/2010/NCTE (N&S) dated 23/8/2010. The provisions of all Rules/Notifications/Orders of the Government, prescribing qualifications for teachers, which are repugnant to the stipulations laid down by the National Council for Teacher Education stand superseded. “ 15. From the Office Memorandum dated 16.05.2012, it is evident that the Government of Assam had requested the Government of India for relaxation of certain qualifications for appointment of teachers in elementary schools and the Government of India had allowed relaxation of professional qualification up to 31.03.2015. The Office Memorandum makes it clear that relaxation of 5% in qualifying marks would be allowed to the candidates belonging to reserved categories such as SC/ST/OBC/PH and, therefore, for a candidate belonging to reserved category, the minimum qualification would stand at 45% marks in senior secondary or its equivalent examination or graduate (irrespective of marks). The case of the petitioner falls in category of cases on or after 23.08.2010 up to 31.03.2015 as indicated in the Office Memorandum dated 16.05.2012. In view of the provision of Section 23 of the 2009 Act, a person will be eligible for appointment if such a person possesses the minimum qualification as prescribed by an academic authority authorised by the Central Government. NCTE, which is an authorised institution, had prescribed the minimum qualification. Section 23(2) of 2009 Act empowers the Central Government to grant relaxation in respect of qualification prescribed by NCTE and it appears from the Notification dated 16.05.2012 that the Government of India had also provided for certain relaxation on a request made by the Government of Assam. But for the relaxation granted, the norms as laid down in the Notification of the NCTE dated 23.08.2010 would have been applicable. But for the relaxation granted, the norms as laid down in the Notification of the NCTE dated 23.08.2010 would have been applicable. At this juncture, it will also be relevant to note that the NCTE had subsequently issued another Notification dated 29.07.2011 substituting, amongst others, Paragraph 1(i) of the Notification dated 23.08.2010 as under:- (i) Classes I – V (a) Senior Secondary (or its equivalent) with at least 50% marks and 2 – year Diploma in Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2 – year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002 OR Senior Secondary (or its equivalent) with at least 50% marks and 4 – year Bachelor of Elementary Education (B. El.ED) OR Senior Secondary (or its equivalent) with at least 50% marks and 2 – year Diploma in Education (Special Education) OR Graduation and two year Diploma in Elementary Education (by whatever name known) AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.” 16. None of the parties had brought on record the development after 31.03.2015, the date on which relaxation granted by the Government of India vide Notification dated 26.08.2011 and 10.10.2011 expired. 17. Education, including technical education, Medical Education and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List-1 under 7th Schedule of the Constitution of India finds place as Entry 25 in the List-III. Article 254 of the Constitution of India, amongst others, provides that if any provision of law made by the Legislature of the State is repugnant to any provision of law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in List-III, then subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy be void. As 1977 Rules did not have the assent of the President of India, Article 254(2) will have no application. As 1977 Rules did not have the assent of the President of India, Article 254(2) will have no application. 18. In the above view of the matter, the SLC was justified in coming to the conclusion that the petitioner did not have the requisite qualification and thereby rejecting his prayer for compassionate appointment to the post of Assistant Teacher. Though the petitioner had applied for appointment on compassionate ground for the post of Assistant Teacher in an L.P. School for which he was clearly not eligible because of lack of essential minimum qualifications, the DLC had wrongly recommended his appointment as such. 19. Considering the matter in its entirety, I am of the opinion that ends of justice demands that the case of the petitioner for appointment on compassionate ground is required to be considered against a post for which he was eligible to be considered on the date of his application. Even if subsequently the petitioner acquires a qualification necessary for appointment as an Assistant Teacher in L.P. School, direction for fresh consideration for compassionate appointment has to be on the basis of the qualification as was obtaining on the date of the application and not on the basis of qualification acquired subsequently. 20. Accordingly, the DLC is directed to consider the case of the petitioner along with other applicants for compassionate appointment against a post for which he was eligible on 22.12.2010, i.e. the date of his application, within a period of 4(four) months from the date of receipt of a copy of this order. 21. The writ petition stands disposed of in the light of the aforesaid directions and observations.