Nilufa Sultana Vs the State of Assam and Anr.

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GAHC010090262022

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2025:GAU-AS:5822

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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)/3100/2022

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ANSHUMITA GOGOI AND 44 ORS.

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D/O SUSHIL GOGOI, R/O DUHUTIA, P.O. NAKACHARI, P.S MARIANI, PIN -785635 DIST. JORHAT, ASSAM

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2: KAUSHIK BHATTACHARJEE

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S/O KALI CHARAN BHATTACHARJEE R/O SAPATGRAM WARD NO. 3 P.O. SAPATGRAM P.S SAPATGRAM PIN-783337 DIST. DHUBRI ASSAM

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3: LUKUMONI GOGOI

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D/O MONDIT GOGOI R/O BASASAYAK DIBRUAL P.O. MAJBARI P.S. AMGURI PIN-785680 DIST. SIVASAGAR ASSAM

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4: KRISHNA PATOWARY

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D/O LT. JADU PATOWARY R/O MUKTAPUR P.O. LOCH P.S. BAIHATA CHARIALI PIN-781381 DIST. KAMRUP (R) ASSAM

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5: DIPIKA BORAH D/O PITAMBARM BORAH R/O CHENIKUTHI HILL SIDE P.O. SILPUKHURI P.S. CHANDMARI PIN-781003 DIST. KAMRUP (M) ASSAM

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6: ANISHA BHARALI D/O CHITRA N BHARALI R/O MAJIKUCHI P.O. MAJIKUCHI PIN-784178 DIST. BISWANATH ASSAM

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7: DIKSHITA DEKA D/O BINOD KUMAR DEKA R/O MOHKHALI P.O. GOPAITHAN P.S. BELSOR PIN-781334 DIST. NALBARI ASSAM 8: PALLABICKA BARUAH D/O PARBOTI PRASHAD BARUAH R/O GANDHI NAGAR MAKWN P.O. MAKUM JUNCTION P.S. MAKUM PIN-786170 DIST. TINSUKIA ASSAM

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9: BHANU DEWRI D/O HARESWAR DEWRI R/O MADANPUR P.O. LOHARGHAT PIN-781120 DIST. KAMRUP (R) ASSAM

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10: DIPANJALI BORAH D/O HIMANGSHU BARMAN R/O MAJARATI P.O. MAJARATI PIN-782002 DIST. NAGAON ASSAM

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11: HIMADRI KALITA RAY W/O- Chandan Ray R/O - Sonakhuli Part-1 P.O - Srijongram Pin - 783384 Dist - Bongaigaon Assam.

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12: MADHUSUDHAN BARMAN D/O- Late Bholanath Barman R/O - Aminkata P.O - Aminkata P.S - Gossaigaon

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Pin - 783337

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Dist - Kokrajhar Assam. 13: DASHAMI KALITA /O- Bhaskar Jyoti Hazarika R/O - Telahi Bhakatgaon P/O - Bangaldhra P.S - Dharamtul Pin - 782412 Dist - Morigaon Assam. 14: TUTU MANI BORAH D/O- Kushal Thakuria R/O - Bokrajhar Bagicha P.O - Tengabari Pin - 784525 Dist - Udalguri Assam.

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15: RIMA CHETIA HANDIQUE D/O- Jitu Handique R/O -Mechagarh Handique Gaon P.O - Sivasagar Pin - 785697 Dist - Sivasagar Assam.

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16: KAMAL PHUKAN S/O- Tikendra Phukan R/O - Udaipur P.O - Jonai P.S - Jonai Pin - 787060

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Dist - Dhemaji Assam. 17: ARUP BORAH S/O- Late Rupan Borh R/O - Akhoiphutia P.O - Akhoiphutia P.S - Sivasagar Pin - 785697 Dist - Sivasagar Assam.

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18: JINTI BORAH D/O- Dulen Saikia R/O -Kari P.O - Dolohat Pin - 787023 Dist - Lakhimpur Assam. 19: NURUDDIN ALI S/O- Motibor Rahman R/O - Hasdoba P.O - Hasdoba P.S - Lakhipur Pin - 783129 Dist - Goalpara Assam. 20: PALLABI DAS D/O- Golak Chandra Das R/O - Gargara P.O - Sikarhati

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P.S - Palashbari Pin - 781125 Dist - Kamrup(R) Assam. 21: RAMIJ UZ JAMAN S/O- Joinal Ahmed R/O - Sondha P.O - Sondha P.S - Nalbari Pin - 781337 Dist - Nalbari Assam. 22: SUBHADRA THAKURIA D/O- Padmeswar Thakuria R/O - Nahira P.O - Nahira P.S - Palashbari Pin - 781132 Dist - Kamrup(R) Assam. 23: TILUMONI GOGOI S/O- Upen Borah R/O - Borachuck P.O - Khatorgaon Pin - 784169 Dist - Biswanath Assam. 24: MAFIDA YESMIN W/O- Fakaruddin Ahmed R/O - Rajapukhuri

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P.O - Chamuakhat P.S - Dhula Pin - 784190

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25: SUMSUMI GOGOI D/O- Hari Chandra Gogoi R/O - Sarala Baruah Chuk P.O - Sootea Pin - 784175 Dist - Biswanath Assam. 26: RAZZAKUL HUSSAIN S/O- Shuna Miah R/O - Chasra No.1 P.O - Satrakanara P.S - Baghbar Pin - 781308 Dist - Barpeta Assam. 27: NITYANANDA PEGU S/O- Bineswar Pegu R/O - Kathalguri P.O - Kekuripomua P.S - Dhakuakhana Pin - 787055 Dist - Lakhimpur Assam.

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28: PRANTRISHNA BARUAH D/O- Tileswar Baruah R/O - Holongapar Gohaingaon P.O - Kaparadhara

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Pin - 785700

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Dist - Jorhat Assam 29: DHANJIT DEKA S/O- Basundhar Deka R/O - Senapatipara P.O - Burhinagar P.S - Sipajhar Pin - 784147 Dist - Darrang Assam. 30: ANANTA KALITA S/O- Bhogeswar Kalita R/O - Auniati Satra P.O - Majuli Pin - 785106 Dist - Majuli Assam. 31: PRERANA BHUYAN D/O- Chandra Bhuyan R/O - Madhabgaon P.O -Jamugurihat Pin - 784180 Dist - Sonitpur Assam. 32: JYOTIREKHA DEKA W/O- Bijan Bayan R/O - Pathsala Ward No.2 P.O - Pathsala Pin - 781325 Dist - Bajali

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Assam.

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33: JYOTISMITA SALOI D/O- Nilamani Medhi R/O - Bagurihati P.O - Bagurihat P.S - Belsor Pin - 781310 Dist - Nalbari Assam.

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34: BHARGAB JYOTI NATH S/O- Hem Chandra Nath R/O - Nayakpara P.O - Sipajhar P.S - Sipajhar Pin - 784145 Dist - Darrang Assam.

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35: SYEDA NILUFAR JAMIL D/O- Syed Inamul Islam R/O - Rangia Ward No. 10 P.O - Rangia P.S - Rangia Pin - 781354 Dist - Rangia Assam.

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36: JAISHREE DEVI D/O- Lakhi Nath R/O - No. 1 Solmoria P.O - Laluck Pin - 787023

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Dist - Lakhimpur Assam. 37: SADDAM HUSSAIN S/O- Moslem Ali R/O - Sapkata Mukalmua P.O -Nalbari Pin - 781126 Dist - Nalbari Assam. 38: RAMEN KALITA S/O- Late Harendra Kalita R/O - Debananda P.O - Hazarikapara P.S - Sipajhar Pin - 784145 Dist - Darrang Assam 39: SATABDISHIKHA KONCH D/O- Thuluk Konch R/O - 1 No. Borbil P.O - Naharpara P.S - Tingkhang Pin - 786613 Dist - Dibrugarh Assam 40: DIPIKA SENSWA D/O- Gunaram Senswa R/O - Tehania P.O - Samaguri P.S - Amguri Pin - 785680 Dist - Sivsagar Assam

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41: MOONMI BORUAH D/O- Late Hema Boruah R/O - Samaguri Na-Ali P.O - Samaguri P.S - Amguri Pin - 785680 Dist - Sivasagar Assam 42: TARALI KALITA D/O- Hiren Kalita R/O - Sualkuchi P.O - Sualkuchi Pin - 781103 Dist - Kamrup(R) Assam.

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43: DHANMANI KALITA S/O- Kshemadhar Kalita R/O - Debananda P.O - Hazarikapara P.S - Sipajhar Pin - 784145 Dist - Darrang Assam 44: ABDUS SATTAR D/O- Abdul Latif R/O - Soilmari P.O - Chikni P.S - Kalgachia Pin - 781321 Dist - Barpeta Assam.

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45: DULUMANI DEKA

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D/O KUMUD DEKA R/O ATHGAON P.O. HINGULEE P.S KAMALPUR PIN781380 DIST. KAMRUP (R) ASSA

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VERSUS

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THE STATE OF ASSAM AND ANR.

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, ELEMENTARY EDUCATION DEPTT. DISPUR GUWAHATI-6

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2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-1

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Advocate for the Petitioner : MR. M BARUAH, MR S BORTHAKUR,MR P K DAS,MR. M ALOM

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Advocate for the Respondent : SC, ELEM. EDU,

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Linked Case : WP(C)/733/2024

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SALEHA BEGOM LASKAR R/O- VILL- MOHANPUR PART VI

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P.O- MOHANPUR

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P.S- ALGAPUR DIST- HAILAKANDI PIN-788150

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VERSUS

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THE STATE OF ASSAM AND ANR

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REP. BY THE COMMISSIONER AND SECRETRY TO THE GOVT. OF ASSAM ELEMENTARY EDUCATION DEPARTMENT

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GUWAHATI-06

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2:THE DEPARTMENT OF SCHOOL EDUCATION ERSTWHILE DIRECTOR OF ELEMENTARY EDUCATION KAHILIPARA GUWAHATI-781019 ASSAM -----------Advocate for : MR. K M MAHANTA Advocate for : SC

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ELEM. EDU appearing for THE STATE OF ASSAM AND ANR

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Linked Case : WP(C)/1691/2025 TH SUSHMITA SINGHA W/O- S KHUDOL SAMNA SINGHA R/O- RAJYESWARPUR PART-VIII P.O.- LALA P.S.- LALA DIST- HAILAKANDI ASSAM. VERSUS THE STATE OF ASSAM AND 2 ORS. TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM DEPARTMENT OF SCHOOL EDUCATION DISPUR GUWAHATI-06. 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GAUHATI- 19. 3:THE DISTRICT ELEMENTARY EDUCATION OFFICER HAILAKANDI P.O. P.S. AND DISTRICT- HAILAKANDI ASSAM. -----------Advocate for : MR. A M BARBHUIYA Advocate for : SC ELEM. EDU appearing for THE STATE OF ASSAM AND 2 ORS. Linked Case : WP(C)/1996/2024 MALABIKA BORUAH AND 5 ORS. C/O- TULEN BORUAH R/O- RAIDONGIA P.O. GHILAMARA P.S. GHILAMARA

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PIN- 787053 DIST. LAKHIMPUR ASSAM 2: ERANI BORDOLOI D/O- MONDIT GOGOI D/O- AMULYA BORDOLOI R/O- TATIBAHAR P.O. PADMAPUR P.S. NARAYANPUR PIN- 784164 DIST. LAKHIMPUR ASSAM 3: DIMPAL CHUTIA D/O- TIRTHA NATH CHUTIA R/O- MAJ GAON P.O. MORNOI BEBEJIA P.S. GHILAMARA PIN- 787055 DIST. LAKHIMPUR ASSAM 4: ANJALI PATOWARY W/O- DIMBESWAR MAJUMDAR R/O- BAIHATA P.O. BAIHATA P.S. KAMALPUR PIN- 781380 DIST. KAMRUP ASSAM 5: JUN TI PHUKAN D/O- LATE MUKHESWAR PHUKAN R/O- POTIAPATHARGAON P.O. BADULIPARA PIN- 785611 DIST. GOLAGHAT ASSAM VERSUS

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THE STATE OF ASSAM AND ANR REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM ELEMENTARY EDUCATION DEPARTMENT DISPUR GUWAHATI-6.

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2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GHY-19. -----------Advocate for : MR S BORTHAKUR Advocate for : SC ELEM. EDU appearing for THE STATE OF ASSAM AND ANR

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Linked Case : WP(C)/692/2024

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NILUFA SULTANA W/O- MD. JAHID AHMED R/O- VILL.- SELEWSUTI P.O. MAHTOLI BAZAR P.S. BOKO DIST. KAMRUP ASSAM VERSUS

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THE STATE OF ASSAM AND ANR REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM SCHOOL EDUCATION (ELEMENTARY) DEPARTMENT DISPUR GUWAHATI-6.

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2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19. -----------Advocate for : DR. B AHMED Advocate for : SC ELEM. EDU appearing for THE STATE OF ASSAM AND ANR

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Linked Case : WP(C)/7365/2023

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MINA HAZARIKA AND ANR W/O- SHRI CHANDRA KONWAR R/O- VILL.- NABAKATHARBARI P.O. DHAKUAKHANA

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DIST. LAKHIMPUR ASSAM PIN- 78755. 2: BINA CHETRY W/O- SHRI SUBHAS CHETRY R/O- VILL.- BORPAK NEPALI GAON P.O. MACHKHOWA DIST. DHEMAJI ASSAM PIN- 787058. VERSUS THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM EDUCATION DEPARTMENT DISPUR GUWAHATI-781006. 2:THE DIRECTOR ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19. 3:THE DISTRICT ELEMENTARY EDUCATION OFFICER DHEMAJI ASSAM 4:THE DEPUTY INSPECTOR OF SCHOOLS DHEMAJI ASSAM 5:THE BLOCK ELEMENTARY EDUCATION OFFICER DHEMAJI DIST. DHEMAJI ASSAM 6:THE HEAD MASTER JIADHAL ME SCHOOL DIST. DHEMAJI ASSAM 7:THE HEAD MASTER PURBUTTAR MACHKHOWA ME SCHOOL DIST. DHEMAJI

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ASSAM

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-----------Advocate for : MS M BORAH Advocate for : SC ELEM. EDU appearing for THE STATE OF ASSAM AND 6 ORS

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- B E F O R E -

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HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY

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For the petitioners : Mr. K.K Mahanta, Sr. Adv : Mr. S Borthakur. Adv : Mr. P.K. Roy Choudhury, Adv : Mr. A.M. Barbhuiya, Adv

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For the Respondents : Mr. NJ Khataniar, SC, Elementary Education

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Date of hearing : 07.04.2025

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Date of judgment : 09.05.2025

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JUDGMENT & ORDER (CAV)

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Heard Mr. S Borthakur, learned counsel for the petitioners appearing in WP(C) No.3100/2022 & WP(C) No.1996/2024 and Ms. M Borah, learned counsel for the petitioner in WP(C) No.7365/2023. Also heard Mr. N. J Khataniar, learned standing counsel, Elementary Education Department appearing for all the respondents in all these writ petitions.

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These writ petitions are taken up together for final disposal as proposed by the learned counsels for the contesting parties, and also for the reason that the issue involved in these writ petitions and the reliefs sought are similar.

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The case of the petitioners in all these writ petitions is that all the petitioners have the qualification of Praveen from Rastrabhasha Prachar Samiti and they claim to be eligible to be appointed as Teacher in Upper Primary School in the subject Hindi. However, their grievance is that such a qualification is not considered to be an eligibility, though the same qualification is a recognised qualification for selection as a Teacher for High Schools, in Hindi in Assam. It is also an admitted position that the petitioners, beyond qualifying Praveen from Rastrabhasha Prachar Samiti, had also acquired a Bachelor’s degree in Arts.

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The background fact of this litigation is that certain advertisements were issued by the Director of Elementary Education, Assam for appointment of Hindi Teacher in Upper Primary Schools (Class VI to VIII), in which, the qualification for appointment of teachers in Hindi in Upper Primary Schools were prescribed as Graduate from an UGC recognized University, having Hindi as one of the subject and two years diploma in Elementary Education or B. Ed or D. Ed. (Special Education) or B. Ed (Special Education) and passed in Assam TET for Upper Primary Schools conducted by the Department of Elementary Education.

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There is no dispute as regards the petitioners’ qualification of being graduates from recognized university or having the qualification of B. Ed etc, and passing the Assam TET for Upper Primary Schools. However, what the petitioners are claiming and as recorded hereinabove, is that they having obtained Praveen from Rastrabhasha Prachar Samiti, they should be allowed to participate in the selection process and they seek a declaration by way of a mandamus that their qualification of Praveen should be treated as a qualification in terms of such

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advertisements.

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The basis of such prayer is that a similar qualification of Praveen is recognised for appointment of Hindi teachers in High School under the Secondary Education Department, and at the same time, it is not recognized as a valid qualification for appointment of Hindi Teachers in Upper Primary Schools under the Elementary Education Department.

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In this context, Mr. Borthakur, learned counsel for the petitioners, referring to the Schedule of Assam Secondary Education (Provincialisation) Rules, 2018, argues that for Hindi teachers in Secondary Education (Class IX & X), the qualification prescribed is Praveen and Ratna in Hindi with 50% marks, and having degree qualification from any recognized university or B. Ed. It is his further contention that the state by framing the aforesaid Rule, 2018 under proviso to Article 309 had already recognized the Praveen to be a recognized degree for appointment of Hindi teacher in High Schools and therefore there cannot be any ground for not recognizing same degree in case of appointment of Hindi Teachers for Upper Primary Schools (Class VI to VIII).

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The state has taken a specific stand in their affidavit in opposition that the aforesaid prescription having Hindi as a subject prescribed in the advertisement is in conformity and in terms of the NCTE Notification dated 23.08.2010, by which the essential qualification for being appointed as teachers in Primary and Upper Primary Schools is mandated. Referring to the provisions relating to the essential qualification for being appointed as teachers of Upper Primary Schools, prescribed under Assam Elementary Education Provincialization Rules, 1977, Mr.

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Khataniar, learned Standing Counsel, School Education Department contends that it is prescribed under the Rules that minimum qualification of a person to be eligible for appointment as a teacher in the Upper Primary School shall be as per notification issued by the State Government from time to time in conformity with NCTE norms and therefore, according to him, the respondent State cannot be faulted in prescribing a qualification in terms of the NCTE notification.

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Countering such argument, Mr. Borthakur submits that the NCTE notification dated 23.08.2010, has not prescribed any additional qualification of having one of the subject as Hindi in degree, rather the qualification prescribed for appointment of teachers for Upper Primary Schools (Class VI to Class VIII) is BA/BSC and two years diploma in Elementary Education (by whether and whatever name known) and therefore, Hindi as a subject in graduation cannot be insisted by the State when they relies on the NCTE notification and the State cannot be allowed to approbate and reprobate.

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In the aforesaid backdrop of prescription of rules, this court, having prima facie found force in the argument of Mr. Borthakur, learned counsel for the petitioners that NCTE notification dated 23.08.2010, nowhere prescribes any additional qualification of having Hindi as one of the subjects beyond the BA/BSC degree and also having a prima facie view that similar degree i.e., Praveen has duly been recognized as qualification for appointment on teacher in the High School (Class IX and X), the state was directed to file an affidavit clarifying the aforesaid disparity i.e, when there is no prescription in the notification dated 23.08.2010 issued by the NCTE for additional qualification of Hindi as one

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of the subject in degree and when the qualification of Praveen is recognized as a qualification for being appointed as Hindi teacher in High School, why the Praveen degree is not being recognized as a valid qualification for being appointed as Hindi teacher in Upper Primary School in addition to graduation.

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The State has filed an additional affidavit through the Director of Elementary Education, Assam and a stand has been that to the effect that the Government of India by Press notes dated 18.02.1970, 07.07.1973 and 05.05.1988 had made it clear that though the Government of India has given recognition to Prabodh, Visharad and Praveen examinations, however, same are not to be treated as equivalent to full-fledged degree. Therefore, it is contended that as the NCTE had clearly stipulated that minimum qualification in a particular subject (in the case in Hindi), should be there in the level of graduation and Praveen cannot be treated as equivalent to full-fledged degree and therefore, in adherence of NCTE guidelines, the Praveen in Hindi for the LP School teachers are not accepted. According to the State, the Government has already issued a notification dated 21.04.2017, which mandates the requirement of Hindi as one of the subjects in graduation.

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This Court has given anxious consideration to the submissions advanced by the learned counsel for the parties. Also, perused the statutes and notifications cited at the bar.

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A service condition is indeed controlled by the rules framed for that context. In the case in hand, the relevant service rules of the petitioners are Assam Elementary Education (Provincialisation) Service Rules, 1977, (hereinafter referred to as Rules, 1977), subject qualification,

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admittedly, is relatable to Elementary School teachers. Rule 3 of the Rules, 1977 deals with the method of recruitment and Rule 3(iii) of the Rules, 1977 prescribes that minimum qualifications for a person to be eligible for appointment as a teacher, shall be as per notification issued by the State Government from time to time in conformity with NCTE norms.

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Therefore, the required qualification so far relating to the present petitioners shall be as per notification issued in this regard by the NCTE dated 23.08.2010 and /or any notification issued in this regard by the State in conformity with NCTE notification.

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It is important to note herein that after the enactment of the Right of Children to Education Act, 2009, (hereinafter referred to as Act, 2009), NCTE was notified as the Academic Authority in terms of Section 23 (1) of the Act, 2009 by inserting Section 12A to NCTE Act, 1993. Thus, NCTE is statutorily empowered and authorized to determine minimum standards of education of school teachers at the Elementary level. Accordingly, NCTE issued the notification dated 23.08.2010, prescribing the minimum qualification for being appointed as a teacher in Elementary Schools. The minimum qualification for being appointed as a teacher, more particularly, as teachers for classes VI to VIII, which is the subject matter of the present writ petitions, prescribes the following:

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a. BA/BSC and two-year diploma in Elementary Education (by whatever name known). Or,

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b. BA/BSC with at least 50% marks and a one-year bachelors in Education (BA). Or

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c. BA/B.Sc. with at least 45% marks and one year bachelor degree in Education (BA) in accordance with NCTE (Recognition

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Norms and Procedure) Regulation, issued from time to time in this regard.

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d. In addition to the aforesaid, another mandatory requirement is the passing of Teacher’s Eligibility Test (TET), conducted by appropriate government in accordance with guidelines framed by NCTE for that purpose.

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The present petitioners are admittedly having the required essential qualification prescribed and as recorded at paragraph (a) hereinabove. There is no dispute that the petitioners have the prescribed qualification of TET. Thus, in terms of NCTE notification, the petitioners are having both the qualifications, i.e., the educational/professional qualification as well as the additional qualification of TET for being appointed as teachers in Elementary Schools in terms of NCTE notification.

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There is nothing in the aforesaid notification dated 23.08.2010 or in any amendment thereof, even remotely prescribing any specific cadre of Hindi teacher for Elementary Schools or any specific educational qualification of having Hindi as a special subject in graduation for being appointed as teachers for teaching Hindi in Elementary Schools in classes VI to VIII.

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Mr. Khataniar, learned counsel for the respondent also fairly submits that no separate notification has been issued by the State in exercise of its power under Rule 3(iii) of the Rules, 1977, prescribing any such qualification.

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In the aforesaid backdrop, it is clear that in both the rules i.e., Rules 1977 (which controls the service condition including method of

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recruitment of teachers in Elementary Schools, consisting of Lower primary and Upper Primary Schools) and the NCTE notification dated 23.08.2010 as recorded hereinabove, there is nothing to suggest any requirement of having Hindi as a subject in the graduation level for being appointed as a Hindi teacher in Elementary Schools.

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It is important to note that Rule 3(iii) of the Rules 1977 was substituted by an amendment on 25.10.2012. Before such amendment, Rule 3 (iii) (b) of the Rules, 1977, prescribed the qualification for being appointed as a Hindi teacher. Such qualification prescribed was HSLC examination passed with Hindi Visharad from Assam Rashtrabhasa Prasar Samity or Higher Secondary Education Passed with Hindi as one of the subject or equivalent thereof. However, such a prescription has now been deleted from the Rules, and Rule 3(iii) of the Rules, 1977 was substituted. Thus, from this point of view, read with the mandate of NCTE notification dated 23.08.2010 and the substituted Rule 3(iii) leaves no room of doubt that there is no special prescription of special qualification for being appointed as Hindi teacher in Elementary Schools, rather there is no such cadre of Hindi Teacher in the Rules, 1977.

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Now, let this court deal with the stand taken by the respondent in the additional affidavit. As recorded hereinabove, the service rule prescribes qualification as per NCTE norms. The NCTE had already prescribed the required qualifications. Such a prescription was made in conformity with the RTE Act, 2009.

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The notification dated 18.02.1970, 07.07.1973 and 05.05.1988, relied upon by the respondent State was issued prior to enactment of the RTE Act, 2009 and amendment of NCTE Act, 1993. Therefore, the notifications

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issued post enactment of the RTE Act, 2009 and post introduction of section 12A of the NCTE Act, 1993, by which the NCTE was empowered as the specialized authority to prescribe educational qualification for teachers, shall be relevant and not any other notification, prescribing qualification for being appointed a teachers in elementary schools. 22. The notification dated 21.04.2017, which is being placed by the State respondent to justify their action in prescribing graduation from a UGC recognized University having Hindi as one of the subjects with Upper Primary TET, is relatable to the relaxation of recruitment of Bl.Ed for Lower Primary school teachers and B. Ed for Upper Priamary school teachers, as an eligibility condition for a period of one year four months 25 days with effect from 13.04.2017 and thus, the said notification itself had lost its force as it was specified in the notification itself that the qualification prescribed will remain valid for one year four months and twenty five days with effect from 13.04.2017. Thus, such notification which is having no force beyond its expiry, cannot have any bearing on prescribing an educational qualification for being appointed as Hindi Teachers in Elementary Schools i.e. to acquire graduation from UGC recognized university having Hindi as one of the subject, more particularly, in absence of any such prescription of having Hindi as one of the subject either in NCTE notification dated 23.08.2010 or in absence of any notification prescribing such qualification in terms of Rule 3(iii) of the Rules, 1977. That being the position, insistence of Hindi as a special subject in graduation in absence of any prescription by NCTE or in absence of notification by issued by the State in exercise of power under Rule 3 (iii) of the Rules, 1977, shall be violative of the petitioner’s right

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under Articles 14 and 16 of the Constitution of India.

¶137

Having said so, this court cannot be oblivious of the right of an employer to add certain qualifications in conformity with the NCTE notification issued in this regard; however, in the absence of such a notification issued, the State cannot insist on additional qualification beyond the scope of the NCTE notification prescribing qualification.

¶138

Now coming to the impugned advertisements, the selection process continued and during pendency of these writ petitions, the selection process had already been completed, and therefore, this Cort at this stage cannot issue a writ of mandamus to allow the petitioners to participate in the selection process. However, the determination made hereinabove shall be made applicable in future advertisements until and unless such special prescription qualifications are made by way of appropriate notification in conformity with the NCTE.

¶139

The question whether the degrees in question awarded by the Rashtrabhasa Prasar Samity can be treated to be equivalent to having Hindi in graduation for the reason of similar qualification being recognised for appointment of Hindi teacher under High School under Assam Secondary Education provincialisation Service Rules, is kept open.

¶140

Accordingly, the writ petitions stand disposed of with the determination and observations made hereinabove. Parties to bear their own cost.

¶141

J U D G E

¶142

Comparing Assistant

Nilufa Sultana v. the State of Assam and Anr.

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Nilufa Sultana v. the State of Assam and Anr.

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