IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM AND ARUNACHAL PRADESH) WRIT PETITION (C) NO. 7160/2013

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MIZAM AND ARUNACHAL PRADESH) WRIT PETITION (C) NO. 7160/ Smt. Mina Hazarika, Wife of Sri Chandra Konwar, P.O. Bahakatharbari, P.O. Dhakuakhana, Dist- Lakhimpur, Assam 2. Smt. Bina Chetry, Wife of Sri Subhas Chetry, Resident of Barpak Nepali Gaon P.O. Machkhowa Dist- Dhemaji, Assam 3. Sri Suman Adhikari, Son of Sri Bola Nath Adhikari Resident of Mahari Camp Gugamukh Dist- Lakhimpur, Assam..PETITIONERS -versus- 1. The State of Assam, Represented by the Commissioner & Secretary to the Govt. of Assam, Education Department, Dispur, Guwahati-6 2. The Director, Elementary Education, Assam, Kahilipara, Guwahati The District Elementary Education Officer, Dhemaji 4. The Deputy Inspector of Schools, Dhemaji Page 1 of 8

2 5. The Block Elementary Education Officer, Dhemaji, Dist- Dhemaji Assam 6. The Headmaster, Jiadhal ME School, Dhemaji, Assam 7. The Headmaster, Purbuttar Machkhowa ME School Dist- Dhemaji, Assam 8. The Headmaster, Bishnupur Tekjuri ME School Dist- Dhemaji, Assam..RESPONDENTS P R E S E N T HON BLE MR. JUSTICE MICHAEL ZOTHANKHUMA For the petitioners : Mr SN Sarma, Sr. Advocate Mr AJ Das, Advocate For the respondents : Mr NJ Khataniar, Advocate Date of hearing : Date of judgment : JUDGMENT & DER (CAV) Heard Mr SN Sarma, learned senior counsel assisted by Mr AJ Das, learned counsel for the petitioner and Mr NJ Khataniar, learned Standing Counsel, Education (Elementary) Department. The question to be decided is whether the petitioners are eligible to be considered for selection to the post of Hindi Teacher in an Upper Primary school on the basis of a certificate issued by the Assam Rashtrabhasha Prachar Samiti showing that they have passed Pravin Examination, while the advertisement issued requires Graduate degree from the UGC recognized University having Hindi as one of the subjects and TET qualified. The petitioners were selected and appointed as Hindi Teachers, but, were thereafter not allowed to work on learning that they did not have Hindi as one of the subjects while pursuing their graduate degrees. Page 2 of 8

3 2. Petitioners case is that pursuant to an advertisement dated they applied for the post of Hindi Teacher in Upper Primary Schools. After due process of selection, the petitioners were selected as Hindi Teacher for Upper Primary Schools vide order dated The petitioners joined their respective Middle English Schools and while they were in service, the District Elementary Education Officer, Dhemaji issued a letter dated directing the Deputy Inspector of Schools and Block Elementary Education Officer, Dhemaji to instruct the candidates who had been selected on the basis of qualifications received from Assam Rastrabhasa Prasar Samiti not to join in the respective school and if they had already joined, then to submit a report to the office of the District Elementary Education Officer, Dhemaji. The petitioners were thereafter not allowed to continue to work in their respective schools as Hindi Teacher. 4. Mr SN Sarma, learned senior counsel has submitted that the Govt. of Assam has recognized Pravin/Ratna in Hindi with 50% marks having Degree qualification from any recognized University or B.A. with Hindi as one of the subjects with 50% marks and B.T/B.Ed degree from any recognized University as the minimum qualification for being appointed to the post of Hindi Teacher in any Secondary School. He thus submits that the petitioners being eligible for appointment as Hindi Teacher to a Secondary School, it is illogical to debar them from being appointed to an Upper Primary School which is having a lower class on the basis of an advertisement which is not in consonance with the policy of the State Government and the Assam Secondary Education (Provincialised) Service Rules, Clause (iii) of Schedule II of the Assam Secondary Education (Provincialised) Service Rules, 2003 states as under: (iii) Hindi Teacher :- Pravin/ Ratna in Hindi with 50% marks having degree qualification from any recognized University or B.A. with Hindi as one of the subjects with 50% marks and B.T/B.Ed degree from any recognized University [ Parangat to be treated as B.Ed degree only for the purpose of Hindi teaching] Page 3 of 8

4 6. Mr SN Sarma has also submitted that the petitioners while submitting their applications for selection to the post of Hindi Teacher have clearly reflected in their application forms the source of receiving their qualifications in Hindi i.e. Assam Rastrabhasa Prasar Samiti. He further submits that the respondents having fully known that the petitioners had received their Degree from the said Samiti, they should not be allowed to turn around and cancel the petitioners selection appointment as there was no mis-representation or fraud played by the petitioners. 7. Mr NJ Khataniar, counsel for the respondents submits that the petitioners do not have the qualifications as stipulated in the advertisement dated and their selection was made due to bonafide mistake committed by the respondents. He submits that as the petitioners do not have the requisite qualification stipulated in the advertisement, their case should not have been considered and accordingly the action of the respondents in stopping them from attending their classes and not allowing them to work is valid and proper. 8. Mr NJ Khataniar also submits that the advertisement dated lays down, amongst others, the following qualifications for the post of Hindi Teacher for Upper Primary Schools: Graduate Degree from the UGC recognized University having Hindi as one of the subjects and TET qualified 9. Counsel for the respondents thus submits that the petitioners not having Hindi as a subject in their graduation degree, the same is not in consonance with the requirements stipulated in the advertisement. He also submits that the minimum educational qualification required for teachers of Secondary Schools and Upper Primary Schools are different. He further submits that the qualifications required for Hindi Teachers for Secondary Schools are provided by the Assam Secondary Education (Provincialised) Service Rules, 2003 (in short, the 2003 Rules ) and for teachers of the Upper Primary Schools the qualifications required are provided in the Assam Elementary Education (Provincialisation) Rules, 1977 (in short, the 1977 Rules ). He thus submits that the advertisement having been issued for posts in the Upper Primary schools and in consonance with the 1977 Rules, the action of the respondents in not allowing the petitioners to work is proper as the petitioners do not Page 4 of 8

5 have any right to hold the post of Hindi Teacher in Upper Primary Schools as they are not qualified. He submits that educational qualification required for appointment of a Hindi Teacher for Upper Primary Schools is governed by Rule 3(b)(iii) of the Assam Elementary Education (Provincialisation) Rules, The educational qualification has to be in conformity with the NCTE norms. In the NCTE Notification dated issued vide F.No /20/2010/NCTE/(N&S), the minimum qualification for Class VI to VIII (Upper Primary) has been stated to be as under: (a) B.A/B.Sc and 2-year Diploma in Elementary Education (by whatever name known) B.A/B.Sc. with at least 50% marks and 1-year Bachelor in Education (B.Ed) B.A./B.Sc. with least 45% marks and 1-year Bachelor in Education (B.Ed), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Elementary Education (B.El.Ed) Senior Secondary (or its equivalent) with at least 50% marks and 4-year BA/B.Sc. Ed or B.A.Ed/B.Sc.Ed. B.A./B.Sc. with at least 50% marks and 1-year B.Ed (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 The respondents counsel submits that though Hindi is not specifically mentioned in the examples given in the in the NCTE Notification dt , the examples given in the NCTE Notification dt for Class VI-VIII indicates that a Hindi teacher should have completed B.A./B.Sc with one of the subject being Hindi. Otherwise, the very purpose of stipulating B.A./B.Sc without a Hindi teacher having one of the subject in Hindi would be lost. Page 5 of 8

6 11. Mr NJ Khataniar also submits that the petitioners being fully aware of the advertisement and the conditions stipulated therein have applied for the post of Hindi Teacher. However, they being not qualified to hold the posts, they were told not to continue in the posts. He also submitted that the petitioners have not challenged the advertisement. 12. I have heard the counsels for the parties. 13. The advertisement calling for applications for appointment to the post of Hindi teacher of Upper Primary Schools is reproduced below: Category of post Hindi Teacher for Upper Primary School Essential Qualification & experiences Graduate degree from the UGC recognized University having Hindi as one of the subjects and TET qualified. [Ministry of Human Resource Development (MHRD), Govt. of India has relaxed professional qualification i.e. 2-year Diploma in Elementary Education till 31/03/2015 and also further relaxed the minimum teacher qualification for graduate candidates laid down by the NCTE Notification dated 23 rd August, As per this relaxation, a candidate having graduation from any UGC recognized University can apply irrespective of marks obtained in graduation]. Preference will be given to (a) those who have B.Ed degree or 2 years Diploma in Elementary Education from recognized institutes (b) those who have D.Ed. (Special Education) or B.Ed (Special Education) qualification shall also get preference Scale of Pay Pay Band Rs. 5,200-20,200/- + Grade Pay 14. The question that is required to be seen is whether the petitioners were eligible to be considered for selection to the post of Hindi teacher in Upper Primary schools as per the advertisement dated and whether they have the required qualification to be eligible for consideration. The further question is whether there has been violation of the principles of natural justice as the petitioners have Page 6 of 8

7 been selected and appointed as Hindi Teachers in Upper Primary Schools. However, they were later on asked not to continue with the teaching in the schools in which they were posted pursuant to the impugned letter dated issued by the District Elementary Education Officer, Dhemaji as they did not have Hindi as one of the subjects while pursuing their graduation. 15. The petitioners have challenged the letter dated issued by the Director of Elementary Education, Assam which is allegedly to the effect that no candidate should be selected and appointed as Hindi teacher in Upper Primary schools with qualification of Assam Rastrabhasa Prasar Samiti/ Wardha. However, the said letter has not been annexed with the writ petition. The other document challenged is the letter dated which states that some specific allegations have been received that the petitioners had by mistake got the benefit of qualification from the Assam Rastrabhasa Prasar Samiti/ Wardha and managed to get selection and appointment. The letter dated further states : The matter of such cases irregularly selected candidate will be disposed by speaking order after verifying documents and if need. As such you are directed to instruct the candidate not to joint in respective school and if they have already joint then submit the report to the office of the undersigned for taking necessary action. Pursuant to the aforesaid letter dated , the petitioners have been stopped from taking classes in the Upper Primary schools in which they have been appointed. 16. Counsel for the petitioners has submitted that as the petitioners have got the requisite qualification for being selected as Hindi teacher in Higher Secondary Schools, they are also eligible to be selected for post of Hindi teacher in Upper Primary schools. 17. No doubt, the petitioners are qualified to be appointed as teachers in Higher Secondary schools. However, the advertisement issued for selection of Hindi teachers in Upper Primary schools has categorically stated that the candidates are required to have a graduate degree from a UGC recognised University having Hindi as one of the subjects and TET qualified. The petitioners do not have the aforesaid qualification as Page 7 of 8

8 they did not have Hindi as one of their subjects while pursuing their graduation. Besides this, the petitioners have not challenged the advertisement wherein the above condition of having Hindi as one of the subjects in the graduation degree course has been stipulated. The respondents have also admitted that it was due to a mistake that the petitioners were considered for selection and appointed to the posts. Admission of mistake by the respondents does not in any way make the petitioners eligible for consideration in violation of the advertisement so issued for appointment to the post of Hindi Teacher in Upper Primary Schools. 18. With regard to the petitioner s contention that they being eligible for being selected as Hindi Teacher under the 2003 Rules, they can also be considered for appointment for teaching lower classes, a perusal of Clause (iii) of Schedule II of the 2003 Rules shows that the said Rule is only meant for appointment of Hindi Teacher in Higher Secondary Schools and it does not cover posts of Hindi Teacher in Upper Primary schools. However, the fact that the petitioners do not have the requisite qualification as per the advertisement dated for appointment to the post of Hindi Teacher in Upper Primary schools and the conditions stipulated in the said advertisement not having been challenged, the petitioners cannot be considered for selection to the post of Hindi teacher and their selection in violation of the conditions stipulated in the advertisement does not cure the defect. 19. With regard to whether there has been violation of the principles of natural justice as no notice was issued prior to the issuance of the impugned letter dt , I am of the opinion that the facts speak for themselves. However, as the impugned letter dt does not indicate that the respondents have taken the necessary action as reflected in the said letter, the respondents are directed to give an opportunity of hearing to the petitioners before taking the necessary action within a period of two months from today. 20. The writ petition is accordingly disposed of. 21. No cost. skd JUDGE Page 8 of 8