Ananda Ram Das and 75 Ors v. The State of Assam and 5 Ors

ORDER Date : 28-03-2023 Heard Mr. M. Sarma, learned counsel for the petitioners as well as Mr. G. Bokolial, learned Govt. Advocate appearing for the respondent no.1 and Mr. A. Phukan, learned standing counsel for the respondent nos.2, 4 and 5 as well as Mr. P. Nayak, learned standing counsel for the respondent nos.3 and 6.

¶2In this writ petition it is claimed that the petitioners were appointed as instructors in the year 1983-1984 under non-formal educational projects. In course of time, the petitioners were appointed as Supervisors under the said scheme in the year 1992-1993. However, as the said scheme came to an end on

31.03.2001, the services of the petitioners were terminated w.e.f. 31.03.2001. In that regard, formal orders of termination were issued on 15.03.2001.

¶3The petitioners and similarly situated several others persons had approached this Court from time to time with prayer to direct the authorities for considering their re-absorption in service. It is not in dispute that several orders were passed by this Court in different writ petitions, thereby directing the State Govt. authorities to consider the claim of the petitioners in accordance with the then prevailing policies.

¶4It is projected that in connection with WP(C) 2319/2001, the Director Page No.# 19/24 of Elementary Education Assam, by filing an affidavit-in-opposition, has stated that the retrenched Supervisors were asked to appear before a Special Screening Committee constituted by the Govt. and accordingly, the names of 195 Supervisors were selected for their re-absorption. During the said process, this Court in a suo-moto proceeding registered as WP(C) 1457/2010 considered the issue relating to appointment and by order dated 05.03.2010, passed in the said writ petition, restrained the State respondents in carrying out fresh recruitment of LP/UP schools in the State of Assam. The proceedings was taken up in a writ appeal and thereafter the matter was taken up to the Supreme Court of India and the Supreme Court of India, by order dated 08.02.2012 passed in SLP(C)No.4340/2012, lifted the ban in the recruitment process. It is projected that even thereafter the appointments were not made and then another writ petition, being WP(C) No.243/2015 was filed before this Court and by order dated 21.05.2019 this Court directed the respondent authorities to convene a joint sitting and submit a decision about the absorption of the petitioners as Elementary School teachers.

¶5The Commissioner and Secretary to the Govt. of Assam, Elementary Education Department by a speaking order dated 19.07.2019, which is impugned in this writ petition had mentioned therein that the matter was discussed with the Finance Department relating to the appointment of 195 Supervisors and as in the meantime the Assam Right of Children to Free and Compulsory Education Act, 2009 came into force from 27.08.2009 and rules thereunder was framed on 03.11.2011. Moreover, the minimum qualifications for a person to be eligible for appointment as teachers at Elementary level (LP/UP) schools was framed by the NCTE, amongst others, prescribing the professional Page No.# 20/24 qualification as well as requirement of passing TET examination, it was held that the absorption of petitioners as Elementary School teachers in terms of judgment and order dated 25.07.2007 passed in WP(C) 2694/2001 was no longer possible. Accordingly the claim of the petitioners was rejected.

¶6Accordingly by filing this writ petition under Article 226 of the Constitution of India, the petitioners have prayed for a direction upon the respondent authorities to appoint the petitioners in terms of the said judgment and order dated 25.07.2007 passed by this Court in WP(C)2694/2001 and to quash the impugned communication dated 19.07.2019, issued by the respondent no.2.

¶7The learned counsel for the petitioners has referred to the materials available on record and it is submitted that the petitioners had rendered their service for about 17-18 years from the year 1983-84 till 31.03.2001 and therefore, the respondent authorities be directed to absorb the petitioners for any teaching and/or non-teaching post. It is further submitted that the respondent authorities were required to consider the claim of the petitioners for absorption in terms of the qualification which existed and the norms which are available for appointment as prevailing in the year 2006.

¶8The learned counsel for the petitioners has submitted that the cut-off mark of the year 2006 was taken from the fact that the competent authority has passed a speaking order in this regard on 08.11.2006 and in that regard, an affidavit-in-opposition was filed by the Joint Secretary Education (Elementary) Page No.# 21/24 on 09.01.2007, in connection with WP(C) 2319/2001.

¶9It is submitted that even if the Court is inclined to take up a view that the petitioners are required to have the prescribed qualifications including TET for their re-absoprtion as teachers in the Elementary Education Department, it would still be appropriate to direct the respondent authorities to consider the absorption of the petitioners in any non-teaching post.

¶10Per contra, the learned counsel for the respondent nos.3 and 6 has submitted that as the scheme of prescribed non-formal education had terminated on 31.03.2001, the appointments made to the petitioners were co-terminous with the end of the scheme. Accordingly, it is submitted that it was not possible to absorb the petitioners in any teaching and non-teaching posts in any Elementary Schools.

¶11In view of the changed circumstances, now the NCTE norms has been made mandatory and it is prescribed by NCTE that the teaching staff should be TET qualified. Accordingly, it is submitted that it was not possible to implement any scheme for the absorption of the petitioners and to consider the claims of the petitioners in terms of order dated 25.07.2007 passed by this Court in WP(C) 2694/2001.

¶12A similar stand is taken by the learned counsel for the Elementary Education department and in this regard, he has referred to the affidavit-in-opposition filed by the respondent no.2.

Page No.# 22/24

¶13On the consideration of the materials in its entirety, the Court finds that it is undisputed that the petitioners form a part of retrenched Supervisors under the erstwhile non-formal education are person, whose names appear in the list of 195 retrenched Supervisors who were sought to be re-absorbed by the authorities in view of the recommendation made by the High Power Committee constituted by the Government as per the order dated 01.09.2003 passed by this Court in WP(C) 1571/1998 and order dated 25.07.2007 passed in WP(C) 2694/2001. At the relevant time the respondent authorities had shown their concern to the issue raised by the petitioners and not only a list of 195 retrenched Supervisors was prepared for the purpose of re-absorption, but this Court was also moved so as to enable the respondent authorities to appoint the petitioners and other similarly situated persons.

¶14It is also not in dispute that the petitioners were appointed under Non-formal education scheme which has come to an end on 31.03.2001 and that the service of the petitioners were retrenched w.e.f. 31.03.2001 by virtue of orders which were passed on 15.03.2001.

¶15For the purpose of engaging teaching staff for the LP/UP schools for which the Elementary Education Department, the current requirement as prescribed under the NCTE is that the teaching staff must have the basic educational qualification as well as professional qualification prescribed for certain subjects but above all it is a mandatory requirement that a candidate must have passed TET, which was made mandate for appointment of teachers subsequent to enactment to Assam Right of Children to Free and Compulsory Education Act, 2009. It is well settled that the norms laid down in the NCTE Page No.# 23/24 cannot be relaxed. Therefore, notwithstanding that at one point of time the respondent authorities were making an effort to absorb the petitioners in teaching course, in view of the prescription which was given by the NCTE, the Court does not find that any illegality was committed by the Elementary Education Department in passing a speaking order dated 19.07.2019.

¶16At this stage, the learned counsel for the petitioner submits that the cases of the petitioners be compassionately considered for their absorption in the non-teaching post in view of the fact that the petitioners have rendered about 17 years of service in the Elementary Education Department and that they have been moving this Court for their rights since year 2001 and have spent 22 years in litigating for their rights.

¶17Considering the above submission, the Court is inclined to provide that the respondents in the event the petitioners apply for any vacant and advertised post, the Elementary Education Department shall entertain the application of the petitioners for appointment in the non-teaching post under their establishments and that the competent respondent authorities shall consider the prayer of the petitioners on case-to-case basis for considering the exemption of their age bar. If such an application is made by the petitioners the competent authorities of the respondents shall consider the same in accordance with law. The petitioners shall have the liberty to participate in the selection process as and when vacancies arises, subject to fulfilling other conditions.

¶18This aforesaid observation of the Court shall not be construed as if any essential qualifications has been relaxed. Page No.# 24/24

¶19The writ petition stands disposed of with observations as indicated above.

JUDGE Comparing Assistant

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