The State of Tripura v. Rajib Debnath

Mr. S.S. Dey, Advocate General Ms. Ayantika Chakraborty, Advocate Mr. B. Majumder, Dy.SG Mr. P. Roy Barman, Sr. Advocate Ms. Aradhita Debbarma, Advocate Mr. Kawsik Nath, Advocate Mr. Samarjit Bhattacharjee, Advocate Date of hearing Date of delivery of Judgment & Order : : Whether fit for reporting 04/04/2024 YES 01/02/2024 : HON’BLE MR JUSTICE ARINDAM LODH HON’BLE MR JUSTICE S.D. PURKAYASTHA (Arindam Lodh, J.) JUDGMENT & ORDER [ Heard Mr. S.S. Dey, learned Advocate General assisted by Mrs. A. Chakraborty, learned counsel appearing for the appellants-State. Also heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. Samarjit Bhattacharjee and Mr. Kawsik Nath, learned counsel appearing for the respondents as well as Mr. B. Majumder, learned Dy. SG appearing for the proforma-respondents.

2. The instant writ appeal has been filed by the appellants-State for quashing/setting aside the impugned judgment and order dated 23.03.2022 passed by the learned Writ court in WP(C) No.539 of 2021 whereby and whereunder the learned Writ court directed the appellants-State to consider the writ petitioners, who have passed the Central Teachers Eligibility Test(C- TET), for selection in the post of Under Graduate Teacher(Class-I to Class- V) and Graduate Teacher(Class-V to Class-VIII) at par with the State TET passed candidates and further to grant them age relaxation wherever necessary as few respondents have already crossed the maximum age of recruitment.

3. Shortly stated, the respondents/writ petitioners(here-in-after referred to as the writ petitioner) have passed Central Teachers Eligibility Test(here-in-after referred to as “C-TET”) conducted by the Central Board of Secondary Education, Delhi during the year 2019-2022 and 2021. They filed a writ petition before the Writ court numbered as WP(C) No.539 0f 2021, inter alia, stating that there were posts of Graduate and Under Graduate Teachers lying vacant in the State of Tripura, but the State respondents did not conduct its Teachers Eligibility Test(here-in-after referred to as TET) examination viz. Tripura Teachers Eligibility Test(here-in-after referred to as T-TET) and further that the Teachers’ Recruitment Board, Tripura(here-in- after referred to as TRBT) vide Notification dated 27.11.2020 invited applications for selection of 1725 and 2116 vacant posts respectively for Under Graduate Teacher and Graduate Teacher, limiting the zone of consideration only to T-TET passed candidates, and completely excluding the C-TET passed candidates. It was the contention of the writ petitioners in that writ petition that the exclusion of the C-TET passed candidates was illegal and that there are at least 12,222 vacant posts of Graduate and Under Graduate Teachers where C-TET passed candidates could be considered for selection along with the T-TET passed candidates. The writ petitioners, therefore, prayed for directing the appellants-State respondents(here-in-after referred to as “the appellants”) to consider the C-TET passed candidates eligible for selection in the posts of Under Graduate Teacher and Graduate Teacher at par with State T-TET passed candidates.

4. The appellants by filing counter affidavit before the learned Writ court had stated that since 2015 onwards T-TET examinations were being conducted by the appellants every year and in the 2019, it was held in the month of October. Furthermore, in the year 2018, T-TET examination was conducted twice. It was further stated that only in the year 2020, T-TET examination could not be conducted due to prevailing COVID-19 pandemic situation. The appellants further stated that in terms of the Recruitment Rules for appointment to the post of elementary teachers[Under Graduate Teacher(Class I to V) and Graduate Teacher(Class VI to VIII)], the candidates, who have passed T-TET(Paper-I) and T-TET(Paper-II) respectively, are eligible to apply for the respective posts, as and when the State Government notifies for such recruitment. But, the candidates, who have passed the C-TET, are not eligible to apply for the posts Elementary Teachers of the State of Tripura managed and owned by the Government of Tripura under the present guidelines issued by the NCTE. The NCTE vide its communication dated 07.07.2021, inter alia, advised the authorities of the Department of Elementary Education, Tripura to refer and follow the NCTE guidelines dated 11.02.2011. The State of Tripura have already decided and acted upon the decision in holding State TET(T-TET). So, there remains no scope for the State of Tripura to transgress the statutorily fixed zone of consideration, beyond the T-TET passed candidates in the selection process of recruitment of Elementary Teachers(Class I to VIII Standard) in the State of Tripura. The State Government have taken a conscious policy decision in this respect by way of opting to conduct TET(T-TET) so as to exclude C- TET, as a natural statutory consequence. The policy decision is guided by larger public interest and adopted in exercise of statutory option provided by the law to the State of Tripura.

5. The appellants in their counter affidavit further stated that in terms of Section 23(1) of Right of Children to free and Compulsory Education Act, 2009(here-in-after referred to as RTE Act, 2010), the Central Government have been conferred with the rights to exclusively authorize any academic authority to lay down the minimum qualification for appointment of teachers at elementary level, i.e. Class-I to Class-VIII standard and in exercise of the statutory power the Government of India in the Ministry of Human Resources Development(MHRD) issued notification dated

31.03.2010, inter alia, authorizing the National Council for Teacher Education(NCTE) as the academic authority to lay down minimum qualification for a person to be eligible for appointment as an elementary teacher. In Clause 1(b), the minimum qualification for teachers to be appointed for Class-I to Class-V in the elementary education system has been prescribed. It has been provided that a candidate is required to pass the Teacher Eligibility Test(TET) to be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for that purpose. For the purpose of reference, the provisions of Clause 1(b) of the minimum qualification, as prescribed by the NCTE vide notification dated

23.08.2010 are reproduced here-under, for convenience: “1(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, (ii) Classes VI- VIII (a) B.A./ B.SC and 2 year Diploma in Elementary Education ( by whatever name known) Or B.A./B.SC with at least 50% marks and 1-year Bachelor in Education (B.Ed) Or B.A./ B.SC with at 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. Or Senior Secondary (or its equivalent) with at least 50% marks and 4 years Bachelor in Elementary Education (B. ELED) Or Senior Secondary (or its equivalent) with at least 50% marks and 4 years BA/B.SC.ED. or BA.ED/BSC.ED. B.A/B.SC with at least 50% marks and 1 year B.ED (Special Education) And Passed 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. In other words, the statutory provision provided for a qualification in the TET to be conducted by the appropriate government.”

6. Vide a communication dated 11.02.2011, the NCTE has circulated guidelines for conducting TET examination. In Clause 10(a) of the said guidelines, it is provided that TET conducted by the Central Government would apply to all schools referred to in Section 2(a)(i), of NCTE Act,1993, meaning thereby schools established, owned or controlled by the Central Government or the Administrator of the Union Territory having no legislature. The Statutory mandate for C-TET is confined and limited to schools established and owned by the Central Government or those Union Territories. The schools established, owned and controlled or managed by the State Government is outside the purview of C-TET. Clause 10(b)(ii) of the NCTE guidelines further affirmatively provides that in case a State Government or Union Territory with legislature, decides not to conduct a TET, a school established, owned and controlled or managed by the State Government or Union Territory with legislature would consider the C-TET conducted by the Central Government.

7. In the context of the case it would be relevant to extract Clause 10 of the guidelines of National Council for Teacher Education (for short, NCTE): “10. 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 uthority 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 of 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. 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.”

8. Sub-Section (a) and Sub-Section (b) of Section 10 of the NCTE guidelines makes it very clear that TET, which is conducted by Central Government will apply to only Government Schools which are covered under Clause 2(a)(i) of the Act, i.e. “a School established, owned or controlled by the Central Government, or the administrator of the Union Territory, not having a legislature, and TET conducted by the State Government will apply to a School of the State Government in that State.” The “Schools” which are referred to in Sub-clause (ii) of Clause (n) of Section 2 of the Act are as under:- “(i) a school established, owned or controlled by the appropriate Government or a local authority; (ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; (iii) a school belonging to specified category; and (iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate government or the local authority.”

9. On perusal of the aforesaid provision what crystallises is that Central-TET makes a candidate eligible for appointment in a school, which is run by the Central Government or Union Territory having no legislature, and State-TET makes a candidate eligible for appointment in the schools, which are run by the State or which come under the jurisdiction of the State. However, there is an exception under this provision that a candidate who has obtained Central-TET will also be considered for appointment in a school under the State Government, if the State Government “decides not to conduct the TET”. Under the said provisions, let us now evaluate the factual situation of the disputes raised before us.

10. Mr. Dey, learned Advocate General appearing on behalf of the appellants has submitted the Education(School) Department, Government of Tripura had constituted Teachers’ Recruitment Board, Tripura(for short TRBT) in the year 2015 vide notification dated 11.03.2015 for the purpose of conducting State TET, commonly referred to as T-TET for selection of teachers at the elementary level(Class I to Class VIII). It has been further submitted that T-TET is being conducted regularly every year since 2015 and in reply to the contention of the writ petitioners that the T- TET examination was not held in the year 2019, 2020 and 2021, it is submitted that it would be revealed from the advertisement dated 13.09.2019 issued vide Ref.No.F.4(1-1)/COE/TRBT/2016/170 and advertisement dated

10.02.2021 vide Ref.No.F.4(1-11)/COE/TTET/ TRBT/2020/19 issued by the TRBT that the T-TET examination were rightly conducted by Education(School) Department, Government of Tripura. Moreover, in the year 2018, T-TET examination was held twice. It was only in the year 2020, the T-TET could not be held due to the prevailing COVID-19 pandemic situation.

11. Mr. Roy Barman, learned senior counsel appearing for the writ petitioners heavily relied upon the decision of the Gauhati High Court in Binod Karmakar & Ors. Vs. The State of Assam & Ors.[Writ Appeal No.24 of 2021, decided on 03.02.2021]. We have perused the judgment where the Gauhati High Court having relied on the doctrine of proportionality has observed that the said doctrine as grounded in the rule of law requires regularity, predictability and certainity in the government dealings with the public and the doctrine of legitimate expectation operates both in the procedural and substantive matters. Thereafter, it has been observed thus: “There was a predictability which had given rise to a legitimate expectation, considering that the action of the State was grounded in law as the law provides that the State Government can appoint Central TET candidates in a given contingency. In other words, it was not a mere fancy of these candidates. True, in 2019 the State chose to do its own TET and it is also true that the State can make Central TET eligible only if it chooses not to hold its own TET examination. But in all fairness, and as the learned senior counsel for the writ appellants Mr. Mahanta would submit, State's action would have been justified had it come with a notice forewarning, that henceforth Central TET candidates will not be considered. There was no such notice in 2019 when State TET was held after a gap of seven years. On the contrary, the decision not to allow the Central TET candidates from taking part in this recruitment process was announce only on 11-09-2020. Further, when it chose to do its recruitment for the year 2020 again in that year, there is no State TET examination. In other words, a Central TET qualified candidate, who had all long been held to be eligible in this examination were definitely caught unaware with the advertisement of the State dated 11.09.2020, where they were left out”.

12. The facts of the case in hand is quite distinguishable from the facts of the case in Binod Karmakar(supra). In the present case, Government of Tripura with legislature conducts T-TET examination every year since 2015 and only in the year 2020, T-TET examination could not be conducted due to the prevailing COVID-19 pandemic situation. But, in Binod Karmakar(supra), the State of Assam had not conducted Assam Teachers’ Eligibility Test(for short , “A-TET”) examination since 2013 i.e. for a period of seven years. The Division Bench of Gauhati High Court while deciding the above mentioned case had observed at para 50 thus: “50. We must state that the learned Single Judge in its judgment & Order dated 18.12.2020 has discussed in detail the principle of legitimate expectation. Finally, the learned Single Judge had come to the conclusion that the test of legitimate expectation will not be applicable to the facts of the given case as the provisions of law only provided that a Central TET candidate can be appointed only in a school under the Central Government or under Union Territory, not having a legislature. We are, however, of the opinion that this is not the correct position.

54. Considering the facts and circumstances of the case in its entirety and balancing the equities, we direct that the recruitment process initiated by the department on the basis of advertisement dated 11.09.2020 be now processed in two phases. In the first phase, appointment orders for filling up 3025 out of 3941 vacancies may be issued from amongst State TET qualified candidates. The appointment orders in respect of the remaining 916 vacancies be issued to the eligible candidates in the second phase after considering the candidatures of the 916 writ petitioners which includes the present appellants, who are Central TET qualified candidates. It is, however, made clear the appointment of the writ petitioners/appellants would be subject to the condition that appellants have the State TET qualification and other guidelines prescribed by NCTE and they fulfil all eligibility norms prescribed by the advertisement notice dated 11.09.2020, including necessary proficiency in the required language.”

13. In the case of Binod Karmakar(supra), it was held that the Assam Government did not conduct A-TET examination for long period of 7 years. But, here in the case at hand, the learned Single Bench had failed to appreciate the fact that the State of Tripura has been conducting T-TET examinations since 2015, and it was only in the year 2020 T-TET examination could not be conducted due to the prevailing COVID-19 pandemic situation.

14. On meticulous reading of the NCTE guidelines, we are of the opinion that a State-TET qualified candidate normally is qualified and/or eligible for the schools, which are run by the State or under jurisdiction of that State, wherefrom he had completed his State-TET. Central-TET qualified candidates, under normal circumstances, are only eligible for appointment in schools, which are run by the Central Government or under the Union Territories, which do not have a legislature. But, the Notification dated 11.02.2011 made by the NCTE, creates an exception where a Central TET qualified candidate will also be eligible for appointment in State run schools, in case, the State decides not to hold its own TET.

15. In the instant case, learned Single Judge in its judgment and order dated 23.03.2022 held that clause 10(b)(ii) National Council for Teacher Education (for short “NCTE”) is interchangeable under certain contingencies. So, learned Writ court also held that though T-TET and C- TET qualified candidates are interchangeable but there are certain contingencies. Here in our opinion, learned Single Judge fell short of properly analysing the contingencies. In the opinion of this court, contingencies would occur only when firstly, if a State Government/Union Territory has not implemented the NCTE guidelines as narrated in the preceding paragraphs; secondly, the State Government does not have necessary legislature to conduct State TET; and, thirdly, a State Government or Union Territory with legislature decides not to conduct a TET, as we find a situation enumerated in the case of Binod Karmakar(supra). However, the learned Writ court did not appreciate the fact the State Government has been conducting T-TET examination from 2015 since its implementation of the NCTE guidelines and it was only in the year 2020 T-TET examination could not be conducted due to the prevailing COVID-19 pandemic situation. Clause 10(b) of the NCTE guidelines clearly stated that 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.

16. In the instant case, the situation is totally different and free from the contingencies referred to here-in-above. Here, the Government of Tripura has its own legislature to conduct TET examination in each and every year and has never decided not to conduct TET. Further, there is no instance that the Government of Tripura has not conducted TET for an indefinite or unreasonable period.

17. In our opinion, the court in its own wisdom should not direct the State Government to open two parallel avenues in disregard to the statutory guidelines issued by the NCTE for recruitment of teachers at elementary level.

18. For the reasons stated and discussed here-in-above, we find merit in the State appeal and accordingly the instant writ appeal stands allowed. The impugned judgment and order dated 23.03.2022, passed in WP(C) No.539 of 2021 by learned Single Judge stand set aside and quashed. JUDGE JUDGE Snigdha SAIKAT KAR 16:19:48 +05'30'