High Court · 2012

The State has filed the Misc. Case No. 3125/2012 in the WP(C) No.5180/20 3. 12 and Misc Case No. 3452/2012 in the WP(C) No. 5347/2012 praying for vacating t he interim orders, since ineligible candidates will be permitted to participate in the TET Examination. I have heard Mr AB Choudhury, the learned senior counsel, Mr DK Sarma, M 4. s D Borgohain, Mr N Islam, the learned counsel appearing for the writ petitioner s. I have also heard Mr D Saikia, the learned Addl Advocate General appearing fo r the State respondents. The petitioners contend that under the Assam Secondary Education (Provin 5. cialised) Service Rules, 2003 (hereinafter referred to as (cid:28)the 2003 Rules (cid:29)), the qualifying criteria for appointment of teachers did not earlier prescribe 50% m inimum marks and all graduates irrespective of their marks in graduation were ma de eligible to apply for the post of teachers, provided they had the BT/B Ed deg ree. They contend that since the Assam Secondary Education (Provincialised) Serv ice (Amendment) Rules, 2012 (hereinafter referred to as (cid:28)the 2012 Rules (cid:29)) was br ought in force w.e.f. 3.7.2012 through a Gazette Notification, the 2012 Rules ca nnot be applied for laying down the eligibility criteria even for those vacancie s, which were available prior to 2012. 6. The writ petitioners also contend that the 2012 Rules can have only pros pective effect and can’t be applied retrospectively to prescribe 50% marks in gr aduation examination, as this will disentitle a large group of aspirants from se curing appointment to pre-existing vacancies. The petitioners rely upon the deci sion of the Supreme Court in State of Rajasthan vs R Dayal & ors, reported in (1997) 10 SCC 419 , to argue that eligibility in the recruitment process must re late to the law prevalent at the time when the vacancy arose and the 2012 Rules can’t be applied to make some of the aspirants ineligible. 7. However, Mr D Saikia, the learned Addl Advocate General submits that the TET Eligibility Examination advertised on 11.9.2012 is only qualifying examinat ion and is not a recruitment notice which can be related to any pre-existing or current vacancies. Accordingly, the applicant argues that the decision of the Ap ex Court pertaining to the qualifying criteria for pre-existing vacancies is not relevant, for the impugned qualifying test.

8. The applicants rely upon the decision of the Apex Court in State of Guja rat and ors. vs Arbindkumar T. Tiwari and another, reported in 2012 9 SCC 545, t o argue that the State is competent to lay down the eligibility criteria and thi s being in the exclusive domain of legislature/executive, can’t be subject matte r of judicial review. Pressing for vacating the interim order, the learned Addl Govt Advocate argues that the Courts don’t have power to issue direction for gra nting relaxation of eligibility criteria for the writ petitioners. 9. Referring to Schedule-II under the 2012 Rules, the State argues that eli gibility criteria prescribed in the impugned advertisement is consistent with th e criteria prescribed by the amended Rules and since the State expect better qua lified aspirants, 50% marks in graduation is prescribed in the advertisement and this is in conformity with the 2012 Rules. The State counsel also argues that t he National Council for Teachers Education (NCTE) has prescribed 50% as the mini mum marks for recruitment of teachers at the elementary level (Class-I to VIII) and this criteria is being adopted by the State even for the secondary level ( Class IX to XII). But Mr DK Sarma points out that under the 2003 Rules, the qua lifying criteria was 45% and now under the 2012 Rules, it is raised to 50%. 10. I have considered the submissions made by the rival groups and have also taken note of the decision cited by the learned counsel. The advertisement of 11.9.2012 pertains to a process for determining el 11. igibility of aspirants for the post of teachers in Secondary Schools. Therefore, it can’t be said that the impugned process is not a recruitment process since t he result of the process is appointment to the successful candidates. Accordingl y this issue is answered against the State applicants. 12. However at the same time, it must be understood that State as the employ er has the executive authority to prescribe the eligibility criteria and more im portantly, the eligibility criteria is consistent with the Rules which were amen ded and in force w.e.f. 3.7.2012. 13. It must also be borne in mind that while the petitioners seek relaxation of eligibility criteria they don’t challenge the vires of the 2012 Rules, on t he basis of which the eligibility criteria has been prescribed in the impugned a dvertisement. In my opinion the State is competent to prescribe the eligibility criter 14. ia for making recruitment. and 50% minimum marks which is stipulated in the adve rtisement is expected to recruit teachers of better merit and this in turn, wil l serve the interest of the students. Bearing in mind the above and considering the fact that the eligibility 15. criteria is consistent with the 2012 Rules, and seeing little scope for the Cou rt to relax the criteria, I am inclined to vacate the interim order operating in the WP(C) No. 5180/2012 and 5347/2012. The Misc case No. 3125/2012 and the Misc Case No. 3452/2012 are allowed accordingly. Consequently the interim order is d eclined for the petitioners in the WP(C) Nos. 4923 and 5388 of 2012. 16. After the above order was dictated in open Court, Mr AB Choudhury, the l earned senior counsel, Mr DK Sarma, Ms D Borgohain and Mr N Islam, representing the writ petitioners submit in one voice that they want to withdraw the writ pet itions in order to challenge the vires of the 2012 Rules. 17. etitions are disposed of as not pressed with due liberty to the petitioners. In view of the submissions made by the petitioner’s lawyers, the writ p