Manik Ali and 17 Ors. Vs the State of Assam and 9 Ors.

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GAHC010196522021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/6906/2021

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MANIK ALI AND 17 ORS S/O- LATE HAZI ABDUL RAHMAN R/O- VILL- BHERAGAON PO-JAHURPAM DIST.- BARPETA (ASSAM) PIN -781314

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2: ABDUR RAHIM S/O-MIRZANUR RAHMAN R/O- VILL-DHARMAPUR PO-GHUGUBARI

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PS-SORBHOG DIST.-BARPETA (ASSAM) PIN -781319

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3: HAZRAT ALI AHMED @ HAJARAT ALI AHAMED S/O-LATE ABDUL MALEQUE R/O- VILL-BALIKURI PO- BALIKURI PS-KALGACHIA DIST.- BARPETA (ASSAM) PIN -781319

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4: SORMAN ALI S/O-LATE MD. MOZIBAR RAHMAN R/O- VILL-BHATNAPAITI PO-KADAM TOLA PS-ALOPATTI DIST- BARPETA (ASSAM) PIN-781308

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5: SHAMSUL HAQUE S/O-MD. SORMAN ALI

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R/O- VILL-RAMAPARA PAM PO- RAMAPARA PAM PS-BAGHBAR DIST.- BARPETA (ASSAM) PIN -781308

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6: SAHED ALI S/O-LATE ASURUDDIN R/O- VILL-SONKUCHI PO-SONKUCHI PS-BARPETA DIST.-BARPETA (ASSAM) PIN - 781301

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7: SHAMSUL HAQUE S/O-MD. AMZAD ALI R/O- VILL-PATHLIKUCHI GAON PO- MANDIA PS-BARPETA DIST.- BARPETA(ASSAM) PIN - 781308

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8: ABDUR RAHIM S/O-LATE AKROM ALI R/O- VILL-BANTIPUR PO- JARABARI PS-BARPETA DIST.- BARPETA (ASSAM PIN -781314

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9: ASORUDDIN MANDAL S/O-SUKUR ALI MANDAL R/O- VILL-ADURIPARA PO-KACHUMARA DIST.- BARPETA (ASSAM)

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10: ALAUDDIN ALI S/O-ALAHI MUNSHI R/O- VILL-CHANGELIA PO-KALAHBHANGA PS-BARPETA ROAD DIST.- BARPETA (ASSAM) PIN - 781315

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11: EKTAR JAHAN W/O- SORHAB ALI R/O- VILL-HOWLY TOWN WARD NO-4

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PO-HOWLY PS-HOWLY DIST.- BARPETA (ASSAM PIN - 781316

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12: HARI CHARAN DEBNATH S/O- JATINDRA DEV NATH R/O- VILL-PAKA BETBARI PAM PO-PAKA BETBARI PATHER DIST.- BARPETA (ASSAM) PIN - 781352

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13: FATIMA ZAHURA D/O- LATE EASIN ALI R/O- VILL- KALGACHIA PO-KALGACHIA PS-KALGACHIA DIST.- BARPETA (ASSAM) PIN -781314

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14: MD. ABUL KALAM AZAD S/O- LATE SHIRAJ UDDIN MANDAL R/O- VILL- GUILEZA PO- CHARCHARIA PS-KALGACHIA DIST.- BARPETA (ASSAM PIN - 781319

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15: ZAHIDUL ISLAM S/O-LATE IMAN UDDIN R/O- VILL- BALIKURI PO-BALIKURI PS-BAGHBAR DIST.- BARPETA (ASSAM) PIN - 781319

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16: MD. NURUL ISLAM S/O- LATE DARBESH ALI R/O- VILL-KUKARPAR PO-PASCHIM MAZDIA DIST.- BARPETA (ASSAM) PIN - 781305

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17: RATI KANTA SARKAR S/O- LATE GYAN MOHAN SARKAR R/O- VILL- GANAKPARA PO- MAKRIKUCHI PS-TARABARI

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DIST.- BARPETA (ASSAM) PIN - 781305 18: RAHMAT ALI MANDAL S/O-MD. KHUSMAHMUD MANDAL R/O- VILL- PATHIMARI PO- PATHIMARI PS-KACHUMARA DIST.- BARPETA (ASSAM) PIN -78112

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VERSUS

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THE STATE OF ASSAM AND 9 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR, GUWAHATI -6 2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-6 3:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM CUM CHAIRMAN STATE LEVEL SCRUTINY COMMITTEE ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19 4:NATIONAL COUNCIL OF TEACHERS EDUCATION G-7 SECTOR-10 DWARKA NEAR METRO STATION NEW DELHI-110075 5:THE DISTRICT LEVEL SCRUTINY COMMITTEE BARPETA REPRESENTED BY ITS CHAIRMAN CUM THE DEPUTY COMMISSIONER BARPETA ASSAM PIN- 781301 6:THE DISTRICT ELEMENTARY EDUCATION OFFICER BARPETA DISTRICT BARPETA

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DISTRICT-BARPETA ASSAM PIN- 781301 7:THE BLOCK ELEMENTARY EDUCATION OFFICER MANDIA BLOCK MANDIA PO- MANDIA DIST.- BARPETA (ASSAM) PIN-781308 8:THE BLOCK ELEMENTARY EDUCATION OFFICER RUPSHI BLOCK KALGACHIA PO- KALGACHIA DIST.- BARPETA (ASSAM) PIN- 781319 9:THE BLOCK ELEMENTARY EDUCATION OFFICER BHAWANIPUR BLOCK HOWLY PO- HOWLY DIST.- BARPETA (ASSAM) PIN-781316 10:THE BLOCK ELEMENTARY EDUCATION OFFICER CHENGA BLOCK CHENGA PO- CHENGA DIST.- BARPETA (ASSAM) PIN-78130

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Advocate for the Petitioner : MR. K R PATGIRI, MS. U HAZARIKA,MRS. MRS. C DAS Advocate for the Respondent : SC, ELEM. EDU, GA, ASSAM,SC, FINANCE,SC, N C T E

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Linked Case : WP(C)/6931/2021 TARAP ALI AHMED AND 3 ORS S/O- LATE MD. HAMID ALI R/O- VILLAGE BALIKURI PO- BALIKURI PS- KALGACHIA DIST- BARPETA (ASSAM) 2: ABDUL LATIF S/O- ABDUL MAZID R/O- VILLAGE-CHANDMAMA PATHAR PO-CHANDMAMA PS- KALGACHIA DIST- BARPETA (ASSAM)

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PIN-781321

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3: MD. SHAHIDUR RAHMAN ALIAS MD. SHAIDUR RAHMAN S/O- LATE TUFAN ALI R/O VILLAGE BALIKURI NONKEY PO- BALIKURI PS- KALGACHIA DIST- BARPETA (ASSAM) PIN 781319 4: MANOWARA KHATUN W/O- BAREQUE ALI AHMED R/O VILLAGE-SIKATARY PO-TARAKANDI PS- KALGACHIA DIST- BARPETA (ASSAM) PIN -781321 VERSUS THE STATE OF ASSAM AND 7 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM EDUCATION (ELEMENTARY) DEPARTMENT DISPUR GUWAHATI-06 2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-06 3:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM CUM CHAIRMAN STATE LEVEL SCRUTINY COMMITTEE ELEMENTARY EDUCATION ASSAM KAHILIPARA GHY-19 4:THE DISTRICT LEVEL SCRUTINY COMMITTEE BARPETA REP. BY ITS CHAIRMAN CUM THE DEPUTY COMMISSIONER BARPETA ASSAM PIN-781301

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5:THE DISTRICT ELEMENTARY EDUCATION OFFICER BARPETA DIST- BARPETA ASSAM PIN-781301 6:THE BLOCK ELEMENTARY EDUCATION OFFICER RUPSHI BLOCK KALGACHIA DIST-BARPETA ASSAM PIN-781301 7:THE BLOCK ELEMENTARY EDUCATION OFFICER MANDIA BLOCK MANDIA BARPETA ASSAM PIN- 781319 8:NATIONAL COUNCIL OF TEACHER'S EDUCATION

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G-7 SECTOR-10 DWARKA NEAR METRO STATION NEW DELHI-110075 -----------Advocate for : MR. K R PATGIRI Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 7 ORS

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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02.04.2025

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Heard Mr. K.R. Patgiri, learned counsel for the petitioners. Also heard Ms. S. Chutia, learned counsel for the respondent nos.1, 3, 6, 7, 8, 9 & 10. Ms. R. Barooah, learned counsel appears for the respondent no.2, Mr. I. Alam, learned counsel appears for the respondent no.4 and Mr. P. Saikia, learned counsel

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appears for the respondent no.5.

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The petitioners’ grievance is that though their services have been provincialised as “Tutor” under the Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 (hereinafter referred to as the “2017 Act”), the petitioners have not been paid the salary of Head Teachers of the High Schools/Higher Secondary Schools. The petitioners have also prayed that the requirement of having the qualification of passing Teacher Eligibility Test (TET), should be relaxed in case of the petitioners.

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The petitioners’ counsel submits that the petitioners were the Head Masters of various Venture ME Schools, which were subsequently provincialised under the 2017 Act. The schools of the petitioners were thereafter amalgamated with High Schools/Higher Secondary Schools, wherein in terms of the Government Policy and the 2017 Rules, the Headmasters/Teachers of the Base Schools, i.e. High Schools/Higher Secondary Schools were appointed as Headmasters of the amalgamated schools.

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The petitioners’ counsel submits that the petitioners who were Head Teachers of various Upper Primary (M.E) Schools should be given the salary given to Head Teachers/Headmasters of the amalgamated schools, i.e. Rs.12,150/- per month instead of the Rs.10,800/- per month they are receiving. He also submits that the requirement of having TET qualification for upgradation of their salary as Head Teachers is nigh impossible for the petitioners, inasmuch as, they have crossed 50 years of age as on date.

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Ms. S. Chutia, learned counsel for the Elementary Education, on the other hand, submits that in terms of Section 2(u) of the 2017 Act, a "tutor" means and includes Teachers, Assistant Teachers, Classical Teachers, Lecturers, Headmaster etc, in a provincialised educational institution under the 2017 Act, who are not eligible for provincialisation of their services in the post of Teacher, due to lack of educational and professional qualifications required as per the Right of Children to Free and Compulsory Education Act, 2009, National Council for Teachers Education Act, 1993, University Grants Commission Act, 1956 and the relevant rules and regulations framed thereunder and any other Act, as the case may be. She also submits that proviso to Section 2(u) provides that a Tutor shall not be eligible to hold the post of Professors, Principal, Vice-Principal, Headmaster, Assistant Headmaster, etc, as the case may be, under the 2017 Act.

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Ms. S. Chutia, learned counsel further submits that in exercise of powers conferred by Section 23(1) of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the 2009 Act”) and in pursuance to the Notification No.S.O.750 (E) dated 31.03.2010, issued by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, the National Council for Teacher Education (NCTE) has laid down the minimum qualification for a person to be eligible for appointment as a Teacher for Class-I to Class-VIII, wherein TET is to be obtained by the Teacher in question. She submits that the said TET qualification has not been obtained by the petitioners and in terms of Condition No.6 of the order dated 05.02.2021, by which the petitioners have been appointed as Tutors, they have

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been given 5 years time to obtain the said TET qualification. She submits that as the order dated 05.02.2021 has not been put to challenge, the petitioners would have to obtain the said qualification and the said qualification cannot be relaxed due to Section 2(u) of the 2017 Act. She accordingly submits that the writ petition should be dismissed as there is no merit in the writ petition.

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I have heard the learned counsels for the parties.

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As can be seen from the submissions made by the counsels for the parties and the pleadings, the petitioners are seeking a direction to be issued to the respondent to treat them as Head Teachers of their respective Schools, by being given the pay/salary given to Head Teachers. The further prayer is for a direction to the respondent authorities to relax the qualification of passing TET.

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In terms of Section 2(u) of the 2017 Act, a Tutor is not eligible to hold the post of Headmaster or Head Teacher in an educational institution provincialised under the 2017 Act, if he/she does not have the TET qualification. In the present case, there is no challenge to the 2017 Rules, especially Section 2(u) and the proviso therein. Further, the Schedule to Section 8(3) of the 2017 Act has fixed the salary admissible to a Tutor to be equivalent to Assistant Teacher of an Upper Primary School, i.e. Rs.10,800/- for the first and second year and thereafter to Rs.12,000/- for the 3^rd to 5^th year. The Headmasters, on the other hand, start from a fixed salary of Rs.12,150/- to Rs.13,500/-. As the petitioners cannot be made the Headmaster as they do not have the TET qualification, which a Headmaster requires to have, this Court does not find any merit in the claim of the petitioners for being paid the salary paid to a Headmaster.

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With regard to the petitioners’ prayer that the qualification of TET should be relaxed in the case of the petitioners, this Court finds that the NCTE has already fixed TET Pass as an eligibility criteria, for a Teacher teaching in Class-I to Class-VIII. The same is also not under challenge. Further, the appointment orders of the petitioners dated 05.02.2021 provides that for Tutors who do not have the qualification of TET as per NCTE Guidelines and Service Rules on the date of issue of the appointment order as Tutor, the Tutor shall acquire such qualification within 5 years from the date of issue of his or her appointment order and thereafter be entitled to the pay and allowances equivalent to Teachers w.e.f the date of acquiring such qualification. The said condition in the appointment orders dated 05.02.2021 has also not been put to challenge by the petitioners. Accordingly, in view of the qualification of TET being the eligibility criteria stipulated by the NCTE in terms of Section 23(1) of the 2009 Act and in pursuance to the Notification No.S.O.750 (E) dated 31.03.2010, issued by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, which has not been put to challenge and in view of Section 2(u) of the 2017 Act, the prayer of the petitioners for relaxation from obtaining TET qualification cannot be granted.

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In view of the above reasons, this Court does not find any ground to exercise it’s discretion in the present cases. Both the writ petitions are accordingly dismissed.

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JUDGE

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Comparing Assistant

Manik Ali and 17 Ors. v. the State of Assam and 9 Ors.

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Manik Ali and 17 Ors. v. the State of Assam and 9 Ors.

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