HC offers Dispur two options to appoint Central TET-passed candidates, Logjam over recruitment of TET teachers

GUWAHATI: The bench of Justice Sanjay Kumar Medhi of the Gauhati High Court has given two options to the State Government to ensure the appointment of Central TET-qualified candidates as teachers based on the advertisement issued on September 11, 2020. While the first option necessitates the de-reservation of some of the posts, the second option necessitates the government to strictly follow the selection list in pursuance of the initial advertisement of September 11, 2020. The High Court ordered the government to carry out the entire process within three months.

The case has a chequered history, as there were a number of litigations that went up to the Supreme Court, and the present writ petition (WP-C 7600/2022) is an offshoot of the earlier proceedings. On September 11, 2020, an advertisement was issued for filling up 3,941 vacancies for assistant teachers in LP and UP schools in Assam. The said advertisement, however, contained a condition that only candidates who were Assam State TET qualified would be allowed to participate, and Central TET qualified candidates were excluded from the purview of the recruitment process. It is the case of the petitioners that in all prior recruitment processes, there was no such distinction between state TET qualifications and central TET qualifications.

Being aggrieved by the said condition, writ petitions were filed by the petitioners along with others, which were registered as WP(C)/3720/2020. This Court, in an order dated September 24, 2020, allowed the offline participation of the petitioners, and it is submitted that in pursuance of such permission, the petitioners had submitted their applications offline. The said writ petitions were, however, dismissed through order on December 18, 2020, the lead case being WP(C)/4174/2020.

The said order was the subject matter of challenge in the writ appeal (24/2021), which was filed on January 25, 2021. It is submitted that the Division Bench made the observation that no interim order was required as a statement was made by the counsel representing the department that due consideration would be given. Subsequently, through an order on February 3, 2021, the Writ Appeal was allowed. It is, however, clarified that among the 916 writ petitioners, there were 581 candidates who had applied under the Director of Elementary Education and 335 candidates who had applied under the SSA. Since there was a requirement for some clarification, on the very next date of passing the judgement, the petitioners filed I.A. (258/2021) on February 4, 2021, in which time was taken to file objection by the Department, which was ultimately done on February 11, 2021. On February 12, 2021, the matter was taken up for consideration, and the last paragraph of the judgement issued on February 3, 2021, was clarified to mean that there would be no ambiguity in the direction that the petitioners who are Central TET qualified were directed to be considered. The order of the Division Bench was unsuccessfully challenged by the Department in the Supreme Court in SLP (C) (9032–9033/2021), and the SLP was dismissed on September 3, 2021.

Thereafter, on May 4, 2022, an advertisement was issued specifically mentioning that it was meant for the writ petitioners in the petitions that were filed in connection with the advertisement of September 11, 2020. The advertisement or notice issued on May 4, 2022, directed the submission of applications online, which the petitioners accordingly did. There is a further notification issued on May 25, 2022, whereby the Department clarifies that the process was to verify or assess the position of the candidates on the select list.

However, on October 28, a notification was published giving the breakdown of vacancies. From the said break-up, which is given in tabular form, vacancies were mainly existing in the ST (H) and ST (P) categories, and the petitioners were mainly in the categories of OBC, MOBC, SC, and unreserved. As a result, the scope of due consideration has been extinguished, resulting in the filing of the present petition.

The bench said that the principal challenge with regard to the eligibility of Central TET-qualified candidates has already been resolved by this Court and also affirmed by the Supreme Court. Therefore, as of date, there cannot be any distinction between a Central TET-qualified candidate and a State TET-qualified candidate based on the recruitment process initiated through the advertisement issued on September 11, 2020, and all such candidates are to be treated at par.

Government counsel R. Mazumdar has taken the point that the Division Bench in the judgement and order issued on February 3, 2021 had, however, made an observation that the recruitment is to be done in two phases, and in the first phase, 3025 candidates of state TET qualified candidates were to be considered, and thereafter, the remaining 916 vacancies are to be filled up by the petitioners. Though it is submitted that while making the said recruitment, the remaining vacancies are in categories in which the petitioners do not qualify, such a submission made on behalf of the Department cannot be sustained for more than one reason. Since in the earlier proceedings it was held that there cannot be any distinction between Central TET qualified candidates and State TET qualified candidates, the said observation to make the appointment of 3025 State TET qualified candidates in the first phase was given only because of the urgency to fill up the posts, and the remaining part of the observation to consider the appointment of the petitioners for the 916 numbers of vacancies cannot be made otiose by the present stand of the Department that vacancies are only available in such categories, mainly ST (H) and ST (P), in which the petitioners cannot be considered.

The bench ordered that the state would have the option to carry out an exercise for de-reserving the numbers of posts in which the present petitioners and the respondent numbers 3 to 7 (candidates) are required to be considered in accordance with the earlier direction of the Division Bench in the judgement and order issued on February 3, 2021, with a stipulation that such de-reservation would be later on adjusted in subsequent recruitment processes. The said exercise, if decided to be undertaken, is to be completed within a period of three months. If the aforesaid option is unviable or not able to be complied with by the State, the respondent authorities are directed to offer appointments to the petitioners after consideration of their position in the select list, and for those petitioners, including respondent numbers 3 to 7, whose positions are above any candidates who have been offered the appointment, the last of such candidates should make way for the appointment of the petitioners. This exercise, however, is to be done by issuing a notice to the affected candidate, and appointments have to be offered to the petitioners strictly based on their position in the select list prepared in pursuance of the initial advertisement of September 11, 2020. The entire process is to be completed within a period of three months.

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