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2017 DIGILAW 757 (GAU)

Jerina Ahmed v. State of Assam

2017-06-08

A.K.GOSWAMI

body2017
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. R. Ali, learned counsel for the petitioner. Also heard Mr. A. Deka, learned standing counsel, Education (Elementary) Department appearing for the respondents Nos. 1, 2, 3 and 4. None appears for respondent Nos. 5 and 6 though the names of the learned counsel are shown in the cause list. The petitioner completed Teachers Eligibility Test (TET) in the year 2012 securing 66% of marks. After due selection process, she was appointed as an Assistant Teacher of L.P. School on contractual basis by an order dated 19.5.2012 issued by the Mission Director, Sarva Siksha Abhiyan (SSA), Assam. She was, subsequently, posted on completion of training at 484 Rowmari L.P. School and while she was so serving, she was re-posted at 1067 No. Azad L.P. School vide order dated 18.6.2012. After joining in that school on 22.6.2012, she is continuing to discharge her duties till date. 2. On 30.10.2014, the Director of Elementary Education, Assam had issued an advertisement inviting online applications in prescribed format from TET qualified candidates for filling up of a total of 8193 vacancies in the post of Assistant Teacher in selected Government/Provincialised L.P. Schools under the Directorate of Elementary Education, Assam in 10 districts of the State, namely, Barpeta, Bongaigaon, Cachar, Darrang, Dhubri, Goalpara, Karimganj, Morigaon, Nagaon and Tinsukia. Subsequently, by Notification dated 14.8.2015 it was made known that Staff Inspection Unit approval from the Finance (SIU) Department could be obtained only for 7636 vacancies. 3. Applications were to be received online from 4.11.2014 to midnight of 13.11.2014. In response to the said advertisement, the petitioner applied for Barpeta district. 4. It is pleaded by the petitioner that in the combined select list published on merit basis for all districts, the petitioner's named appeared at serial No. 137 and that she had secured 209.53 marks in total. 5. Subsequently, the respondent authorities published the merit list for Barpeta District on 25.6.2016 and according to the petitioner, her name ought to have been placed at serial No. 38 on the basis of the total marks obtained by her. But the name of the petitioner was dropped from the list, although candidates who had secured even 110.73 marks in total were appointed. 6. But the name of the petitioner was dropped from the list, although candidates who had secured even 110.73 marks in total were appointed. 6. With the above factual matrix, the petitioner approached this Court by filing this application under Article 226 of the Constitution of India praying for a direction to place her at serial No. 38 in the select list prepared for the district of Barpeta and to appoint her to the post of Assistant Teacher of L.P. School with all benefits with effect from 27.6.2016 as well as to set aside and quash the appointment orders of respondent Nos. 5 and 6. 7. An affidavit was filed by the respondent Nos. 2, i.e. the Director of Elementary Education, Assam. 8. In the said affidavit, it is stated that at the time of submission of online application, the petitioner's age was 40 years 10 months and the age limit prescribed in the advertisement was 38 years as on 1.1.2014. The advertisement provided for condonation of overage provided prayer in a particular format is made and if the authorities are satisfied, age condonation code was to be issued. It is also stated in the affidavit that the over-age condonation order submitted by the petitioner along with the required documents was meant for recruitment of teachers in elementary schools against the advertisement for the year 2011-2012 and therefore, the case of the petitioner was rejected due to non-submission of age-condonation order against the advertisement made on 30.10.2014. 9. Mr. R. Ali, learned counsel for the petitioner has submitted that before the interview was taken, the documents submitted by the petitioner were verified and only on being satisfied, the petitioner was allowed to participate in the interview process and therefore, the respondents cannot now take the plea that the candidature of the petitioner is liable to be rejected on the ground that the petitioner had not applied for condonation of over-age pursuant to the advertisement dated 30.10.2014. It is contended by him that condonation is permissible for all category of TET qualified candidates up to the age of 45 years and the petitioner is well within that range. It is submitted by Mr. It is contended by him that condonation is permissible for all category of TET qualified candidates up to the age of 45 years and the petitioner is well within that range. It is submitted by Mr. Ali that in the age condonation certificate granted to the petitioner, the petitioner was advised to keep the Age Condonation Approval Code No. for future reference and accordingly, the petitioner had put the Approval Code Number while submitting the form online. It is further submitted by him that in the facts and circumstances of the case, to reject the candidature of the petitioner on a very technical ground after allowing her to participate in the selection process will be wholly unjustified and will not be in furtherance of the ends of justice. He has submitted that though in the writ petition, prayer is made for cancellation of the appointment orders of respondent Nos. 5 and 6, he will not be pressing the said prayer as there are vacant permanent posts available. He submits that a permanent vacant post of Assistant Teacher (Arts) is lying vacant in Azad High School which is within the district of Barpeta and that Azad ME School and 1067 No. Azad L.P. School were amalgamated as Azad High School, Howly by order dated 22.3.2017. He concludes his submission by making a prayer for a direction to the respondents to consider appointment of the petitioner in the said school. To buttress his submission, he has relied upon a judgment of this Court rendered in the case of Bodrul Islam Choudhury v. State of Assam & Ors., reported in 2015 (5) GLT 343. 10. Per contra, Mr. Deka has submitted that Criteria No. 1 of the advertisement was very specific and in an unambiguous term it was indicated therein that candidates have to submit a petition separately before the Director of Elementary Education with relevant documents for condonation of over-age whereupon, on satisfaction of the authority, age condonation code will be issued. He submits that the petitioner, admittedly, did not apply for condonation of age in response to the advertisement dated 30.10.2014 and therefore, on further scrutiny when it was detected that the petitioner had not applied for condonation of age, consciously the name of the petitioner was not reflected in the merit list of the District of Barpeta. 11. He submits that the petitioner, admittedly, did not apply for condonation of age in response to the advertisement dated 30.10.2014 and therefore, on further scrutiny when it was detected that the petitioner had not applied for condonation of age, consciously the name of the petitioner was not reflected in the merit list of the District of Barpeta. 11. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 12. At the first instance, the case cited by Mr. Ali may be looked into. 13. The factual background of the aforesaid case was that the petitioner had attained the age of 47 years on the date of the advertisement and he had submitted an application to the respondent No. 2 therein seeking condonation of over-age to enable him to participate in the ongoing recruitment process undertaken for filling up 128 posts of Sub Inspectors of School. The respondent No. 2 had forwarded the application of the petitioner therein to respondent No. 4, i.e. the Director of Elementary Education. In the meantime, the petitioner was allowed to appear in the inter-view. In the final list the name of the petitioner was also reflected. But at the time of issuing appointment orders to the selected candidates no appointment order was issued to the petitioner. On enquiry he learnt that he was not appointed as he was found to be over-aged on the date of advertisement. The respondents rejected the case of the petitioner therein as the relevant Office Memorandum permitted relaxation of over-age up to 45 years. This Court held that principle of estoppel operates overriding the Office Memorandum in question and as the petitioner had not suppressed any fact and was allowed to participate in the recruitment process, directed appointment of the petitioner being the selected candidate. 14. The Criteria No. 1 of the advertisement dated 30.10.2014 reads as follows: "1. An applicant must be not less than 18 years of age and not more than 38 years of age as on 1st January, 2014 (Relaxation of age will be considered for SC/ST candidates for 5 years as per norms). The over-age of TET qualified candidates of all categories may be condoned up to the age of 45 years as on 01.01.2014 by the Director of Elementary Education, Assam. The over-age of TET qualified candidates of all categories may be condoned up to the age of 45 years as on 01.01.2014 by the Director of Elementary Education, Assam. But the candidate has to submit prayer petition separately before the Director of Elementary Education, Assam with relevant documents for condonation of overage, whereupon on satisfaction of the authority, age condonation code will be issued." 15. A perusal of the aforesaid clause goes to show that the age could be condoned up to the age of 45 years as on 1.1.2014. 16. Admittedly, the petitioner had crossed the maximum age limit of 38 years, she being 40 years 10 months on the date of submission of the form. But on the date of submission of form, she was well within 45 years of age and her age could have been condoned. 17. Criteria No. 5 provides for scrutiny of documents. It is also indicated that interview will be conducted at the District level Selection Committee. Criteria No. 9 indicates that incomplete/defective/invalid application will be summarily rejected. 18. The application of the petitioner was not rejected on scrutiny and on the contrary, she was allowed to participate in the interview process in which she came out successful and her name figured in the merit list for the State. 19. It appears that the petitioner had applied for the post of Assistant Teacher after obtaining age condonation approval code in the recruitment process undertaken in the year 2011-2012. In the said approval, the petitioner was given Age Condonation Approval Code along with an endorsement to keep the number for future reference. It is this Approval Code Number which the petitioner had given in the application form. In the Age Condonation Approval Order it has not been indicated specifically that the age condonation is limited only for the purpose of recruitment of teachers for elementary schools in the year 2011-2012, although, there is a reference to the application for condonation in connection with the said recruitment process. In the online application form, there is a column provided for Age Condonation No, if any. In the online application form, there is a column provided for Age Condonation No, if any. It appears to the Court that in absence of a specific indication in Criteria No. 1 that before responding to the aforesaid advertisement one has to apply afresh for age condonation, even if age condonation was granted earlier, there was an element of ambiguity and this perhaps also explains why the petitioner was allowed to appear before the interview board after scrutiny of the documents. It does not appear to the Court that the petitioner had suppressed any material or had sought to take any undue advantage. 20. Viewing the matter in that perspective, rejection of the candidature of the petitioner is considered to be wholly inequitable and therefore, the writ petition is disposed of directing the respondent No. 2 to consider appointment of the petitioner in Azad High School or in any other vacant post of Assistant Teacher in any other school in the district of Barpeta within a period of one month from the date of receipt of a certified copy of this order. However, though the petitioner had prayed that she may be granted the benefits with effect from 27.6.2016, which is the date of appointment of the other selected candidates, I think in the circumstances of the case, ends of justice does not require passing of an order to that effect. Accordingly, the writ petition stands allowed with the aforesaid direction and observation. Petition Allowed.