High Court
Case Details
WP(C) 1220/2011 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL)
Decision
The challenge in this writ petition is the order dated 09/02/1011 (copy not enclosed to the writ petition) by which the respondent No.4 pursuant to a se lection was appointed as Post-graduate teacher in Assamese (Subject Teacher) in Dalgaon Higher Secondary School. The petitioner was an applicant for the post al ong with others including the respondent No.4. The grounds on which the writ pet ition is structured, against the selection and appointment of the respondent No. 4, is that the petitioner being a B.Ed degree holder, he ought to have been prov ided with additional marks in the interview. It will be pertinent to mention her e that as against the total 129.3 marks secured by the respondent No. 4 in the s election, the petitioner secured 120.1 marks. In between, there are 13 (thirteen ) candidates securing better marks below 129.3 marks secured by the respondent N o. 4. Thus, even if the writ petition is allowed, it is one of the said 13 candi dates who will have claim over the petitioner. 2. The advertisement for the post was issued inviting applications so as to reach the authority on or before 20/06/2007. Thereafter, an interview was held on 29/08/2007. On completion of the selection with the required formalities, the respondent No. 4 was appointed on 09/02/2011. The basic ground on which the pet itioner has challenged the appointment of the respondent No.4 is that the petiti oner having completed his B.Ed course in the year 2007, although results were no t declared, he should have been given preference. Admittedly, the results were d eclared on 18/02/2009, much after the advertisement and selection for which the interview was held on 29/08/2007. According to the petitioner, his academic perf ormance being better than the respondent No. 4, he should have been preferred ov er him. However, the petitioner is silent about the performance of 13 other cand idates who secured better marks than him in the selection. In the counter affidavit filed by the respondent No.2 i.e. the Director 3. of Secondary Education, Assam, it has been stated that the selection was conduct ed as per the procedure by the Selection Committee constituted for the purpose i n which as against 129.3 marks secured by the respondent No.4, the petitioner co uld secure only 120.1 marks. On the basis of the marks secured by the petitioner , he was placed at Sl. No. 15 of the merit list as against the 1st position occu pied by the respondent No. 4. Mr. N. C. Das, learned senior counsel assisted by Mrs. M. Devi, learned 4. counsel for the petitioner referring to the academic performance of the petition er vis-à-vis the respondent no.4 submits that apart from the fact that the petit ioner is B. Ed degree holder, the respondent No.4 being 3rd Division holder in b oth HSLC and HSSLC, he was not eligible to appear in the selection and that the petitioner ought to have been given additional marks in respect of his B. Ed qua lification. In this connection he has referred to Schedule II of the Assam Secon dary Education (Provincialised) Service Rules, 2003. 5. Mr. A. Deka, learned Standing Counsel, Education, on the other hand subm its that since the selection was conducted by a competent Selection Board, this Court exercising writ jurisdiction cannot sit on appeal over the decision arrive d at by the expert body. Producing the selection records, he also submits that s ince the respondent No.4 performed better in the selection than the other candid ates including the petitioner, the Selection Committee recommended him and conse quently he was appointed by order dated 09/02/2011. As regards the question of e ducational qualification raised by the petitioner, although not specifically ple aded in the writ petition, he submits that the respondent No. 4 having had the r equisite qualification, was eligible to sit in the selection. 6. Mr. R.P. Sarmah, learned senior counsel assisted by Mr. D. Doley, learne d counsel for the respondent No.4 submits that the particular clause in the Sche dule II to the aforesaid Rules is not applicable having regard to the prescripti on of minimum qualification for the post of Post-graduate teacher under the same set of rules and the schedule. He also submits that having regard to the non-ap plicability of the particular clause, the same was omitted by subsequent amendme nt that was brought to the rules in the year 2012. 7. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and have also perused the entire materials on recor d. By now about 3 (three) years have gone by since the respondent No. 4 was appo inted as Post-graduate teacher for Assamese in the particular School. Although t he order has been put to challenge but the copy thereof is not annexed to the wr it petition. However, Mr. A. Deka, learned Standing Counsel, Education has produ ced a copy of the same. 8. As noted above, the basic ground on which the writ petition has been str uctured against the selection and appointment of the respondent No.4 is that the petitioner being better qualified with B. Ed. Degree, he should have been prefe rred by the Selection Committee, more particularly, in respect of B.Ed. degree b y awarding additional marks. The fact of the matter is that the petitioner had c ompleted B.Ed. course in 2007 for the session 2006-07. He appeared in the B.Ed e xamination in the year 2008 and results were declared on 18/02/2009, much after the selection was conducted on 29/08/2007. Needless to say that qualification pr escribed in the advertisement will have to be fulfilled and considered on the la st date of submission of application. Even if the same is extended, the candida te must posses the requisite qualification at-least on the date of interview/sel ection. In the instant case, the petitioner as per his own showing had appeared in the B.Ed examination much after the selection was conducted and to be precise in 2008 and results were declared on 18/02/2009. Thus, merely because the petit ioner had completed the B.Ed course in 2007 but without appearing in the said ex amination and declaration of the results thereof, he cannot claim that weightage /marks should have been given on that count. 9. If the above ground projected in the writ petition is not acceptable, th e writ petition fails. Mr. Das, learned counsel for the petitioner during the co urse of argument also submitted that the respondent No. 4 having secured 3rd Div ision, both in HSLC and HSSLC examination, his candidature ought not to have bee n accepted. In this connection, he has referred to Schedule II of the aforesaid Rules of 2003, by which academic qualification for the post of Post-graduate tea cher was prescribed. For a ready reference, Clause-I of Schedule II is quoted be low :- (cid:28)1. nd Class Major Degree in the subject concerned with a minimum of 45% marks in ag gregate. B.Ed/B.T and M.Ed degree shall be treated as an added qualification. To be eligible to apply a candidate must secure at least 2nd Division either in th e HSLC or in the High Secondary Examination or equivalent. These shall be relaxa The minimum qualification for Post Graduate Teacher should be at least 2 tion of this condition for the reserved categories, (cid:29) 10. As noted above, although there is no specific averment either in the wri t petition or in the affidavit-in-reply raising the plea that respondent No. 4 w as not eligible to offer candidature, but the learned counsel for the petitioner by referring to the aforesaid provisions has contended that since the responden t No. 4 secured 3rd Division both in the HSLC and HSSLC examinations, his candid ature ought not have been considered. However, referring to the 1st part of the Schedule, Mr. R.P. Sarmah, learned counsel for the respondent No. 4 submitted th at since the respondent No. 4 was 2nd Class 1st in his MA examination, he duly p ossesed the minimum required qualification and accordingly his candidature was c onsidered. 11. If we go by the 1st part of the Clause-I of the Schedule II, the (cid:28)Minimu m Qualification (cid:29) for the post of graduate teacher is at-least 2nd class Major De gree in the subject concerned with a minimum 45% marks in aggregate, B.Ed/BT and M.Ed degree is to be treated as added qualification. It is only in the 2nd part of the said clause, a provision was made for securing at-least 2nd Division eit her in the HSLC or HSSLC examination or equivalent with the provision of relaxat ion of the condition for the reserved categories. The Schedule II (Clause I) hav ing prescribed the minimum qualification for PG teacher is at-least 2nd Class Ma jor Degree in the subject concerned with a minimum of 45% marks in aggregate, th e said (cid:28)Minimum Qualification (cid:29) cannot be rendered otiose by the later clause. I t is in this count, Mr. Sarmah, learned counsel for the respondent No.4 has subm itted that now under the amended rules, there is no such prescription and that t he only requirement is Post-graduate degree with 50% marks. 12. Apart from the fact that there is no specific pleadings in respect of th e lack of educational qualification of the respondent No. 4 and that the very or der under challenge is not annexed to the writ petition, the second clause of th e prescribed educational qualification cannot render meaningless the first claus e of the educational qualification, in terms of which the (cid:28)Minimum Qualification (cid:29) was 2nd Class Major Degree in the subject concerned with a minimum of 45% mark s in aggregate. The respondent No.4 is a Post-graduate holder in Assamese and he stood 2nd Class 1st in the said examination. 13. Above being the position, this un-projected ground in the writ petition cannot be accepted, so as to sustain the challenge to the selection and appointm ent of the respondent No.4. 14. ion and accordingly it is dismissed, without however, any order as to costs. For all the aforesaid reasons, I do not find any merit in the writ petit