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2019 DIGILAW 968 (GAU)

Alakesh Kalita v. State of Assam

2019-08-29

N.KOTISWAR SINGH

body2019
ORDER : N. Kotiswar Singh, J. 1. Heard Mr. P. Upadhyay, learned counsel for the petitioners. Also heard Mr. D. Mazumdar, learned Additional Advocate General for the State and Mr. N. Sarma, learned Standing Counsel, Secondary Education Department. 2. Having heard learned counsel for the parties and considering the nature of the case, this Court is proceeding to dispose of this writ petition at this stage without issuing any formal notice to the respondents. 3. In this petition the petitioners are aspirants for the posts of Post-Graduate and Graduate teachers in various High Schools and Higher Secondary Schools for which the State Government is proceeding to make recruitment by issuing the advertisement dated 14.08.2019 challenged in this petition. Though, they are desirous of competing in the said recruitment process initiated by the impugned advertisement, they are not able to apply for the said posts because of insistence by the State Government that the candidates should be TET qualified also and the petitioners do not have TET qualification. 4. Their contention is that if the State Government insists upon TET qualification, it would prejudicially effect their right to compete for the said advertised posts, inasmuch as, though the petitioners were willing to appear for the TET examination which is to be conducted by the State Government every year, the State Government has not been conducting the same since 2013. It has been accordingly submitted that since it was the State Government which did not hold the TET examination since 2013, the petitioner had no opportunity of appearing in the TET examination and as such, could not get the TET qualification which is now insisted upon by the State Government. It is in this background that the petitioners have sought for a direction from this Court to allow them to take part in the selection process initiated by the impugned advertisement dated 14.8.2019 without insisting upon the qualification of TET by the candidates. 5. Mr. Upadhyay, learned counsel for the petitioners has further submitted that a similar situation had arisen while dealing with the recruitment to the post of teachers in Elementary Schools where possession of the TET qualification was also made an essential qualification. 5. Mr. Upadhyay, learned counsel for the petitioners has further submitted that a similar situation had arisen while dealing with the recruitment to the post of teachers in Elementary Schools where possession of the TET qualification was also made an essential qualification. Accordingly, when the State Government issued an advertisement for recruitment of elementary teachers, some of the candidates who did not possess TET qualification, challenged the said recruitment process and ultimately, after a series of litigations, the Division Bench of this Court in Arup Kr. Medhi & Ors. Vs. State of Assam & Ors. in Writ Appeal No. 32 of 2019 disposed of on 28.03.2019, held that the Government cannot proceed with the recruitment process until the Government provides an opportunity to such candidates who do not have TET qualification to appear in TET examination to be conducted by the State Government in that regard and accordingly, directed that only after such examination is held and necessary results are declared that the State Government can proceed with the recruitment process for appointment to the posts of teachers in the Elementary Schools. 6. In this regard, Mr. D. Mazumdar, learned Additional Advocate General, Assam has submitted that though a review application has been filed by the State Government against the judgment passed by the Division Bench of this Court in the aforesaid Writ Appeal, however, since no stay order has been passed, either by this Court or by any superior Court in this regard. 7. This Court has perused the judgment rendered by the Hon'ble Division Bench of this Court in W.A. No. 32/2019 which was disposed of on 28.03.2019. The relevant portions of the aforesaid judgment read as follows: "................. Though the application in IA(C) 806/2019 was moved in the pending application seeking for an interim order to stay the process of selection pursuant to the Advertisements A & B, both dated 11.3.2018, since the entire issue in the appeal also would depend on consideration of the instant application keeping in view the manner in which the grievance has been put forth by the appellants, we have heard the learned Senior counsel for the appellants as also the learned Additional Advocate General, Assam appearing for the respondents on merits of the rival contentions and in that view we have considered it appropriate to dispose of the writ appeal. 3. 3. In that background, a perusal of the appeal papers would indicate that on the Advertisements A & B dated 11.3.2018 issued by the Director of Elementary Education ('DEE' for short) calling for online application from the eligible candidates for filling up of 5393 regular vacant posts of teachers in Lower Primary schools and 4120 vacant posts of teachers in Upper Primary (UP) schools in the various languages and subjects referred to therein, the appellants have filed the writ petition being W.P.(C) 2280/2018 seeking that the authorities allow the petitioners to participate in the recruitment process initiated through the Advertisements A & B dated 11.3.2018 by relaxing the requirement of Teacher Eligibility Test ('TET' for short) qualification and to consider then-cases for appointment as LP/UP School teachers subject to qualifying in the TET examination as and when the same would be held. In that background, the appellants had also sought for quashing the Advertisements A & B dated 11.3.2018. 4. Learned Single Judge having made a detailed consideration of the matter had taken into consideration the various provisions including the requirement as contemplated under the Right to Education Act, 2009. In that light, the learned Single Judge through the order dated 24.9.2018 has arrived at the conclusion that the requirement of passing TET cannot be relaxed and in that light, has rejected the prayer of the appellants and dismissed the writ petition. It is in that light, the appellants are before this Court in this appeal. 5. In order to decide the matter in its proper perspective, it is to be taken note of the fact that though the prayer in the petition made by the appellants herein was to permit them to participate in the selection process pursuant to the Advertisements A&B dated 11.3.2018 by relaxing the requirement of TET qualification, the basis for such prayer was that the respondents were obliged to hold the examination to secure the TET qualification but, they had not held such examination and in that view, the appellants, who were otherwise qualified, would be prevented from participating in the selection process only because they have not appeared for the TET examination and qualified therein. In that circumstance, the appellants had contended that they cannot be faulted for not appearing in the TET examination, inasmuch as, the opportunity to clear the same had been denied to them by the State by not holding such examination. Therefore, consideration of the matter is required on that basis. 6. While taking note of this aspect, the very prayer as made in the writ petition would also indicate that the appellants were not averse to participate in the TET examination if the same was conducted as the prayer is also to the effect that they be permitted to participate in the selection process pursuant to the advertisement and appointment may be made subject to qualifying in the TET examination. Even at that stage, if the respondent State had conducted such examination, the petitioners would have participated in the same and their appointment was to be considered on qualifying in TET. 7. Having taken note of this aspect, a perusal of the order dated 24.9.2018 passed by the learned Single Judge as already indicated above shows consideration of the fact as to whether relaxation would be permitted. In that regard, since the learned Single Judge has made a detailed consideration and arrived at the conclusion that the relaxation cannot be permitted to that extent, we are in agreement with the conclusion as reached by the learned Single Judge. Though that be the position, when the present proceeding is initiated through a petition under Article 226 of the Constitution and when the prayer ultimately is to seek equal opportunity in public employment and in that regard, when the provisions as contained in Articles 14 and 16 of the Constitution are also kept in view, this Court has an obligation to take note of the background in which a grievance has been put forth by the appellants and in that regard, an appropriate consideration is required to be made. To that extent, the fact that a candidate is to qualify in the TET examination is the common case of the parties. Further, it is not in dispute that the last TET held for all categories by the respondent State was on 10.1.2012. To that extent, the fact that a candidate is to qualify in the TET examination is the common case of the parties. Further, it is not in dispute that the last TET held for all categories by the respondent State was on 10.1.2012. If in that background, the date of the advertisement, namely, 11.3.2018 is taken note, all candidates who have acquired other qualifications to be entitled to be employed as a teacher subsequent to 10.1.2012, would be denied the opportunity of filing their applications pursuant to the Advertisements A & B dated 11.3.2018 and seek for employment. In such a situation, all such candidates would be prevented of an opportunity of seeking public employment. Hence, the instant proceeding requires consideration in that background. 8. Learned Additional Advocate General would, however, seek to contend that even though the respondent State has not held the TET examination subsequent to 2012, the TET was conducted by the Central Government and any candidate who has participated in the said examination and has acquired the qualification would also be entitled to apply and in that light, if the appellants have not chosen to appear in the TET conducted by the Central Government, they cannot make out any grievance in the instant proceeding to that effect. 9. In order to appreciate this aspect of the matter, we have taken note of the guidelines for conducting TET issued by the National Council for Teacher Education available at Annex-ure-3 to the affidavit-in-reply of the writ petition. Clauses 10 and 11 thereto provide for applicability of the TET. In order to appreciate the same in its correct perspective, the same is extracted hereunder. "Applicability (a) TET conducted by the Central Government shall apply to all schools referred to in sub-clause (i) of clause (a) of section 2 of the RTE Act. (b) TET conducted by a State Government/UT with legislature shall apply to: (i) a school of the State Government/UT with legislature and local authority referred to in sub clause (i) of clause (n) of section 2 of the RTE Act; and (ii) a school referred to in sub-clause (ii) of clause (n) of section 2 the RTE Act in that State/UT. A school at (i) and (ii) may also consider eligibility of a candidate who has obtained TET Certificate awarded by another State/UT with legislature. A school at (i) and (ii) may also consider eligibility of a candidate who has obtained TET Certificate awarded by another State/UT with legislature. In case a State Government/UT with legislature decides not to conduct a TET, a school at (i) and (ii) in that State/UT would consider the TET conducted by the Central Government. (c) A school referred to in sub-clause (iv) of clause (n) of section 2 of the RTE Act may exercise the option of considering either the TET conducted by the Central Government or the TET conducted by the State Government/UT with legislature. Frequency of conduct of TET and validity period of TET certificate. 11. The appropriate Government should conduct a TET at least once every year. The Validity Period of TET qualifying certificate for appointment will be decided by the appropriate Government subject to a maximum of seven years for all categories. But there will be no restriction on the number of attempts a person can take for acquiring a TET Certificate. A person who has qualified TET may also appear again for improving his/her score." 10. It is no doubt true as contended by the learned Additional Advocate General that the said provisions indicate that in case a State Government/UT with legislature decides not to conduct TET, in the selection process, a school in the State/UT can consider the TET conducted by the Central Government. Further, Clause 11 indicates that the appropriate Government should conduct TET at least once every year. In that background, if a composite consideration of the Clauses 10 and 11 is made, the requirement is that the TET should be conducted at least once a year. However, if the State Government does not propose to conduct TET, a decision is to be taken. 11. It is in that circumstance, such decision being taken by the State concerned not to hold the TET, the TET conducted by the Central Government and the eligibility thereto would enable a candidate to apply based on such qualification in the TET conducted by the Central Government. In the instant case, there is no material on record to indicate that the State Government had taken a decision not to conduct the TET. 12. In the instant case, there is no material on record to indicate that the State Government had taken a decision not to conduct the TET. 12. Though the learned Additional Advocate General has put forth a contention that the appellants could have participated in the TET conducted by the Central Government to make themselves eligible, we are unable to accept the said contention since as noticed Clause 11 makes an obligation on the appropriate Government to conduct TET at least once a year. In that circumstance, where TET is not conducted, a decision is required to be taken and only in that circumstance, the eligibility of the TET conducted by the Central Government would become valid. 13. In the instant case, as already noticed, there is no decision taken by the State Government and therefore, neither the appellants nor any other persons holding other qualifications to be appointed as a teacher can be expected to participate in the TET conducted by the Central Government as there was no indication to them whatsoever that the State Government has not chosen to hold the TET. Therefore, in that circumstance, the respondent State cannot take shelter under the provisions as contained which also provide for recognition of the TET conducted by the Central Government in certain circumstances. Therefore, if in that light the present case is taken note, the appellants were denied the opportunity of participating in the process of public employment by the action of the respondents and in a circumstance of the present nature, this Court will have to intervene and remedy the situation. 14. If that be the position, though the prayer in the petition was to permit the appellants to participate in the recruitment process without appearing for the TET examination, since they had also indicated that appointment would be subject to their qualification therein, the benefit of appearing for the TET and attempting to qualify therein is to be provided to them as an opportunity in the ongoing selection process. While adverting to this aspect, it is also necessary to take note that in the very Clause 11 as referred to above, it is also indicated that the validity period of TET qualifying certificate would be maximum of 7 years for all categories. 15. While adverting to this aspect, it is also necessary to take note that in the very Clause 11 as referred to above, it is also indicated that the validity period of TET qualifying certificate would be maximum of 7 years for all categories. 15. In that circumstance, even though we arrive at the conclusion that the appellants and similarly placed persons should be provided an opportunity to participate in the selection process, if in order to enable them to participate the Advertisements A & B dated 11.3.2018 are quashed, it would affect the interest of the candidates who are otherwise held qualified in all respects including holding of qualified certificate in the TET examination as on 11.3.2018. Hence, we do not propose to annul the entire process. On the other hand, since we have already concluded that appellants should also be provided a fair opportunity in public employment, the appropriate course would be to direct the respondents to defer the conclusion of the selection process pursuant to the Advertisements A & B dated 11.3.2018. Having so deferred, the respondents shall take steps to hold the TET examination enabling the appellants and similarly placed candidates to participate in the said examination. Immediately on publication of the result of such examination, a corrigendum notification in furtherance of the Advertisements A & B dated 11.3.2018 shall be issued calling for the applications for appointment to the post of LP and UP teachers and on the application being received pursuant to such corrigendum notification, the said applications shall also be considered along with the applications received pursuant to the Advertisements A & B dated 11.3.2018 through a common selection process. It is made clear that the validity of the qualification of such candidate who had applied pursuant to the Advertisements A & B dated 11.3.2018, if valid as on such date, shall continue to remain valid until the selection process is completed Needless to mention that on the respondent State announcing holding of the TET examination, if any of the persons who have applied pursuant to the Advertisements A & B dated 11.3.2018, chooses to appear for the TET examination to be conducted by the State in terms of the above direction, for an attempt to better their score as per the guidelines existing as on date, those candidates would also be entitled to appear and if they choose, they may file fresh application pursuant to the corrigendum notification that would be issued and in such event, the applications to be filed therein shall be taken into consideration by ignoring the earlier applications. 16. It is also made clear that the said liberty is at the choice of the candidate. 17. In terms of the directions issued in paragraph 15 of this order, the instant appeal stands disposed of." 8. Normally, this Court cannot issue any direction to the State authorities to relax any essential qualification as it would be within the wisdom of the employer to do so and in the present case, the State Government is the competent authority to relax any such essential qualification and as such, under normal circumstances it would be difficult for this Court to issue any such direction to the State Government to allow the petitioners to take part in the recruitment process without having TET qualification. 9. However, the petitioners have raised a very fundamental issue that since the State Government did not conduct any TET examination since 2013 and as such, the petitioners could not obviously appear in the test and resultantly could not obtain the TET qualification, insisting on possession of such qualification by the State Government is unreasonable. 9. However, the petitioners have raised a very fundamental issue that since the State Government did not conduct any TET examination since 2013 and as such, the petitioners could not obviously appear in the test and resultantly could not obtain the TET qualification, insisting on possession of such qualification by the State Government is unreasonable. This Court is also of the opinion that under such circumstances, if the State Government is insisting on a condition which is impossible for the petitioner to comply with, such insistence on the part of the State Government of the candidates to possess TET qualification will be violative of the equal opportunity assured under Article 16 of the Constitution of India which provides that there shall be equality of opportunity for all citizens in a matter relating to employment or appointment to any Office under the State. Therefore, in the present case by insisting upon a qualification which the petitioners had been deprived of not acquiring by non-holding of TET examination by the State Government since 2013, the petitioners have been put to a disadvantaged position. Thus, the petitioners have been virtually discriminated as far as the opportunity to compete for the aforesaid posts is concerned. 10. This Court is also of the view that even though the aforesaid decision in W.A. No. 32/2019 was passed with reference to the recruitment in Elementary Education Department, the same principle can be applied in the present case also relating to appointment of Graduate and Post-Graduate teachers in High Schools and Higher Secondary Schools. 11. Accordingly, considering the submissions advanced by learned counsel for the parties and the decision rendered by the Division Bench of this Court in W.A. No. 32/2019 on 28.03.2019, and for the reasons discussed above, this Court is of the opinion that the present petition can be disposed of with a similar direction. Accordingly, this petition is disposed of with the following directions: (I) The State Government will immediately take steps for holding the TET examination, so that the petitioners or such other candidates who may be desirous of obtaining TET qualification may appear in the same. Accordingly, this petition is disposed of with the following directions: (I) The State Government will immediately take steps for holding the TET examination, so that the petitioners or such other candidates who may be desirous of obtaining TET qualification may appear in the same. (II) It is only after the TET examination is held and results thereof are declared that the State authorities can proceed with the recruitment process for appointment to the posts of Graduate and Post Graduate teachers in High Schools and Higher Secondary Schools in terms of the advertisement challenged in the writ petition or any other advertisement issued for appointment to the posts of Graduate and Post Graduate teachers in High Schools and Higher Secondary Schools. (III) This Court would also like to observe that though the petitioners had initially submitted for allowing them to take part in the recruitment process without insisting upon the TET qualification and that their selection may be subject to subsequent possession of TET qualification to which this Court would have agreed, however, in view of the decision rendered by the Division Bench of this Court under similar circumstances, as referred to above, instead of allowing the petitioners to take part in the recruitment process subject to their qualifying in TET examination, they shall be allowed to appear in the TET examination and only after they are found successful in the TET examination to be held as directed above, the recruitment process will be initiated. Accordingly, it is declared that till then, the recruitment process initiated by the impugned advertisement dated 14.08.2019 and any other advertisement for appointment to the posts of Graduate teachers and Post Graduate teachers in Higher Schools and Higher Secondary Schools shall be kept in abeyance. 12. With the above observations and directions, the petition is accordingly disposed of.