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2017 DIGILAW 817 (GAU)

Barnali Deka v. State of Assam

2017-06-20

MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : Manojit Bhuyan, J. 1. As all the three writ petitions i.e. WP(C) 804/2017, WP(C) 76/2017 and WP(C) 1832/2017 raises a common issue, the same are heard and disposed of by this common judgment. For ease of reference, the primary pleadings in WP(C) 804/2017 are taken note of, save the basic facts in the other two. An affidavit-in-opposition filed on behalf of the Director of Elementary Education, Assam in WP(C) 804/2017 is on record. 2. On 30.08.2016, an Advertisement was issued from the Office of the Director of Elementary Education, Assam by which online applications were invited from citizens of India who have qualified in Upper Primary Teacher Eligibility Test (TET) and having Diploma in Elementary Education (DElEd)/Basic Education (B.Ed.) qualification for filling up 5144 Nos. of regular vacant posts of Teachers in Upper Primary Schools under the Directorate of Elementary Education, Assam. The said Advertisement covered 21 (twenty one) Districts of Assam. A similar Advertisement covering as many districts was issued on the same date for filling up 6134 Nos. of regular vacant post of Teachers in Lower Primary Schools under the same Directorate from those who have qualified in Lower Primary Teacher Eligibility Test and DElEd. Both the Advertisements, apparently, excluded the Sixth Schedule Districts, namely, Baksa, Chirang, Dima Hasao, Kokrajhar, Karbi Anglong and Udalguri. 3. The two writ petitioners in WP(C) 804/2017 applied for posts in Upper Primary Schools in Nalbari and Barpeta districts respectively, being in possession of the requisite qualifications. According to the said petitioners, they have been provisionally selected and their names figure at serial No. 36 and 574 of the Select List of the districts concerned. 4. The nine petitioners in WP(C) 1832/2017 had also responded to the Advertisement dated 30.08.2016 for the posts of Teachers in Upper Primary Schools as having the requisite qualifications. Petitioner No. 1 applied against the post in Kamrup (Metro) district and was selected at serial No. 28 of the provisional Select List. Petitioner Nos. 2, 3, 4, 5 and 6 applied in Dhubri district and in the provisional Select List their names figured at serial Nos. 72, 17, 2, 9 and 10 respectively. Petitioner Nos. 7, 8 and 9 applied for the post in Hailakandi, Jorhat and Bongaigaon districts respectively and they were found selected and placed at serial Nos. 13, 5 and 19 of the provisional list of the districts concerned. 5. 72, 17, 2, 9 and 10 respectively. Petitioner Nos. 7, 8 and 9 applied for the post in Hailakandi, Jorhat and Bongaigaon districts respectively and they were found selected and placed at serial Nos. 13, 5 and 19 of the provisional list of the districts concerned. 5. The three petitioners in WP(C) 76/2017 applied against the posts of Teachers in Lower Primary Schools in Barpeta District. They were provisionally selected and placed at serial Nos. 379, 381 and 237 respectively. 6. Cause of action arose on the issuance of the letter dated 08.12.2016 issued under the hand of the Secretary to the Government of Assam, Elementary Education Department whereby it was held that in case of candidates who have passed the Teacher Eligibility Test meant for Sixth Schedule Districts, their candidature will not be accepted. As this letter, particularly Clause I thereof is under challenge, the same is reproduced hereunder: "Government of assam Elementary education department Dispur, Guwahati-6. No. PMA 345/2016/Pt.II/19 Dated, Dispur the 8th December, 2016. From : Sri R.C. Jain, IAS, Secretary to the Govt. of Assam. To : The Director of Elementary Education, Assam, Kahilipara, Guwahati-19. Sub : Instruction in connection with Screening/verification of documents for selection of candidates for the post of Asstt. Teacher in LP/UP Schools. Ref : Your letter No. EAA/SIU/822/2016/113 dated 25.11.2016. Sir, In inviting a reference to the above, I am directed to request you to follow the following instructions during the process of screening/verification of particulars of candidates for selection for the regular post of Asstt. Teacher in LP/UP schools. 1. The candidature of candidate who have passed TET for BTC and Sixth Schedule areas, their candidature shall not be accepted. In the TET qualified certificate of those candidates it was clearly mentioned that they can't apply in General areas. 2. The medium TET itself means that they can only apply for schools where Bengali language is implemented. So, we may restrict them only for Bengali medium schools and for that purpose, a separate merit list will have to be prepared for appointing them exclusively in the Bengal medium schools of the State. Necessary instructions in this regard may be issued to District Level Screening Committee immediately for compliance. Yours faithfully, Secretary to the Govt. of Assam Elementary Education Department Memo No. PMA. 345/2016/Pt. II/ 19-A Dated Dispur the 8th December, 2016 Copy to: 1. Necessary instructions in this regard may be issued to District Level Screening Committee immediately for compliance. Yours faithfully, Secretary to the Govt. of Assam Elementary Education Department Memo No. PMA. 345/2016/Pt. II/ 19-A Dated Dispur the 8th December, 2016 Copy to: 1. P.S. to Minister, Education, Assam for king appraisal of the Hon'ble Minister. 2. P.S. to Principal Secretary to the Govt. of Assam, Education Deptt., Dispur. 3. The Deputy Commissioner, (ALL), _______________________________ 4. The District Elementary Education Officer, (All), ____________________ By order etc., (Fulbar Ali) Under Secretary to the Govt. of Assam Elementary Education Department " 7. Having regard to the above, it is seen that the petitioners in WP(C) 804/2017 have passed Teacher Eligibility Test (only for Sixth Schedule Districts). Over and above, the petitioner No. 1 have passed B.Ed. Examination in the year 2011 and the petitioner No. 2 also holds Diploma in Elementary Education. In this regard, necessary certificates have also been enclosed. In WP(C) 1832/2017, each of the writ petitioners have only qualified in the Teacher Eligibility Test (only for Sixth Schedule Districts) in Upper Primary subject, save and except, the petitioner No. 1 who passed Lower Primary Teacher Eligibility Test. In so far as the three petitioners in WP(C) 76/2017 are concerned, each of them have passed Teacher Eligibility Test (only for Sixth Schedule Districts) and also holds Diploma in Elementary Education. At this point, it would be necessary to clarify that if the minimum academic prescription for the post of teachers in Lower Primary Schools is L.P. TET and DElEd. qualification, the petitioners in WP(C) 1832/2017 did not have the requisite qualification to vie for the post of teachers in Lower Primary schools. 8. The petitioners in the other two writ petitions i.e. WP(C) 804/2017 and WP(C) 76/2017 have the requisite qualification as prescribed in the Advertisement. Issue arising is whether the action of the State respondents to oust them from consideration is bonafide. This takes the Court to the legality and validity of the impugned letter dated 08.12.2016 whereby it was held that the candidates who have passed TET for BTC and Sixth Schedule areas, their candidature will not be accepted. This letter comes in the way of the future prospects of the writ petitioners in WP(C) 804/2017 and those in WP(C) 76/2017. 9. This letter comes in the way of the future prospects of the writ petitioners in WP(C) 804/2017 and those in WP(C) 76/2017. 9. In the affidavit-in-opposition filed by the Director of Elementary Education, it is stated at paragraph 6 thereof that the TET Certificates of the petitioners are only valid for Sixth Schedule Districts. Also, in paragraph 9 thereof it is stated that the TET Certificates clearly mentions that the candidates cannot apply in general areas. On the face of it, the said statements are wholly incorrect as neither the TET Certificates held by the petitioners mentions about its validity only within the Sixth Schedule Districts or that the same does not have applicability in general areas outside the Sixth Schedule areas. 10. First and foremost, a mere perusal of the Advertisement dated 30.08.2016 goes to show that no embargo is placed in respect of those candidates who passed TET eligibility from Sixth Schedule areas. Applications were invited from citizens of India as defined in Article 5 to 8 of the Constitution of India and those having qualifications as prescribed therein. All the writ petitioners responded and duly participated in the selection process. It is not a case where their candidature had been rejected at the threshold for having passed TET examination from Sixth Schedule areas. In fact, they were allowed to participate and in the process also got selected and secured place in the provisional Select List in the districts concerned. On the very admission of the Director of Elementary Education, Assam, the selection process is on the verge of completion with appointment letters to be issued to the selected candidates shortly in order of merit. The impugned letter dated 08.12.2016 was issued well after the selection process was initiated, rather, after the petitioners found their due place in respective Select List. Apparently, the respondent authority could not have changed the rules of the game at a belated time by taking a stand not prescribed/stipulated in the Advertisement dated 30.08.2016. This by itself strikes at the legality and validity of the impugned letter dated 08.12.2016. 11. Turning to the Certificates of the petitioners evidencing their Teacher Eligibility Test qualification, the same were issued by the Member Secretary, Empowered Committee, Teacher Eligibility Test, Assam. The said Certificates mention that it is only for Sixth Schedule districts. This by itself strikes at the legality and validity of the impugned letter dated 08.12.2016. 11. Turning to the Certificates of the petitioners evidencing their Teacher Eligibility Test qualification, the same were issued by the Member Secretary, Empowered Committee, Teacher Eligibility Test, Assam. The said Certificates mention that it is only for Sixth Schedule districts. In the Remarks column appended to the Certificates it has been certified that the Mark-sheet cum Certificate will remain valid for seven years from the date of issue and will only be valid subject to production of original certificate/records to the concerned authorities in due course of time. The Certificates do not confine its validity and applicability to specify districts or areas. The mention of Sixth Schedule districts can only have one meaning, in that, the Teacher Eligibility Test examination held on 19.12.2012 was only for candidates hailing from Sixth Schedule districts. The mention of Sixth Schedule district is only with regard to the area concerned and the Certificates do not exclude its applicability for seeking employment in areas outside the Sixth Schedule areas. To hold it otherwise would stand as an anathema to Article 14 and 16 of the Constitution of India. 12. Turning to the letter dated 08.12.2016, a close perusal thereof discloses the inherent contradictions therein. Whereas in Clause 1 it states that the candidature of the candidates who have passed TET for BTC and Sixth Schedule areas shall not be accepted, in Clause 2 it states that they can only apply for the schools where Bengal language is implemented. Clause 2 restricts the candidates who have passed TET for BTC and Sixth Schedule areas only for Bengali medium schools with further stipulation that separate Merit List will have to be prepared for appointing them exclusively in the Bengali medium schools of the State (emphasis supplied). Whereas in Clause 1 it is stated they cannot apply in the general areas, in Clause 2 it permits them to be appointed in Bengali schools of the State. Firstly, the restriction imposed in its application to general areas is on misreading of the TET Certificates of the petitioners. Secondly, the letter dated 08.12.2016 is inherently flawed as there is no consistency between Clause 1 and Clause 2. Firstly, the restriction imposed in its application to general areas is on misreading of the TET Certificates of the petitioners. Secondly, the letter dated 08.12.2016 is inherently flawed as there is no consistency between Clause 1 and Clause 2. Without going into the broader issue of the legality and validity of the letter dated 08.12.2016 in the teeth of the constitutional safeguards under Article 14 and 16, the same cannot stand scrutiny of law due to inherent contradictions and inconsistencies so conspicuously present. The said letter dated 08.12.2016 do not hold out a valid policy of the State Government. 13. The stand of the respondents as reflected in the affidavit-in-opposition is also peculiar and defies logic. Justification for excluding candidates like the petitioners is that if all the TET passed candidates for BTC and Sixth Schedule districts are allowed to participate in the selection process pursuant to Advertisement dated 30.08.2016 and their candidature are considered on merit, then the candidates the who have passed TET for Assam may be deprived of getting appointment as Assistant Teachers in the non-Sixth Schedule districts and this will result in discrimination and deprive level playing ground. This statement is made at paragraph 9 of the affidavit-in-opposition. This reasoning cannot pass the test of reasonableness and deprive such of the petitioners having the required qualification and eligible to be appointed in order of merit pursuant to Advertisement dated 30.08.2016. Further, in one hand apprehension is expressed that if the candidatures of persons having TET qualification for BTC and Sixth Schedule districts are considered on merit, it may go to deprive the candidates who have passed TET for Assam. On the other, it is also pleaded that candidates of Sixth Schedule areas falter in the competition of general Teacher Eligibility Test for Assam due to higher standard of test, which would mean that the candidates qualifying in TET for Assam are placed in higher proficiency level than the TET qualified candidates for BTC and Sixth Schedule areas. This being the pleaded stand, the apprehension expressed is without any rational basis. 14. Clause 1 of the letter dated 08.12.2016, intending to reject the candidature of the petitioners, cannot stand the scrutiny of law and is liable to be set aside, which is accordingly done. This being the pleaded stand, the apprehension expressed is without any rational basis. 14. Clause 1 of the letter dated 08.12.2016, intending to reject the candidature of the petitioners, cannot stand the scrutiny of law and is liable to be set aside, which is accordingly done. As alluded to above, the writ petitioners in WP(C) 804/2017 and those in WP (C) 76/2017, who possesses the requisite qualifications as prescribed in the Advertisement dated 30.08.2016, cannot be deprived of their legitimate rights if their merit position in the Select List of the districts concerned makes them eligible for appointment. In so far as the petitioners in WP(C) 1832/2017 are concerned, Clause 1 of the letter dated 08.12.2016 also cannot come in their way subject to they fulfilling the requisite qualifications as per the Advertisement dated 30.08.2016. The respondent authorities, on the setting aside of Clause 1 of the letter dated 08.12.2016, shall now take consequential action towards considering the case of the petitioners for appointment, subject to their merit position and they having the requisite qualifications so prescribed. The required exercise be completed as expeditiously as possible. 15. Accordingly, WP(C) 804/2017 and WP(C) 76/2017 stands allowed and WP(C) 1832/2017 is partly allowed. No cost.