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2019 Supreme(Gau) 583
IN THE HIGH COURT OF GAUHATI
ACHINTYA MALLA BUJOR BARUA, J.
Swapna Hazarika and Ors - Appellant
Versus
The State of Assam and Ors - Respondent
WP(C) 6880, 8018, 8112, 7008, 6303 and 8122 of 2017
Decided On : 20-03-2019
For the Appellant :N.J. Das, H. Kakati, E. Hussain, A. Choudhury and R. Kalita, Advocates
Headnote:
Issue to give Opportunities, Discrimination –learned counsel leading the argument on behalf of the writ petitioners mainly contend that the minutes of the meeting with the Minister of Education, constitutes a policy decision and hence all such provisions thereof are binding on the authorities in the Elementary Education Department including the SSA – According to Mr. Sarma as the minutes provided that a special TET would be conducted all the petitioners had a legal right under the policy to avail all the aforesaid three opportunities –Held, The requirement of satisfying the necessity in the interest of fair dealing would be that because of the conduct of the respondent authorities, the petitioners had lost certain entitlements which otherwise they would have had the benefit, had the conduct of the authorities not been adverse to them –A consideration of the aspect of being necessary in the interest of fair dealing would definitely not include the personal hardship that a prospective candidate may suffer because of being over age, as there would be many in the open market who would also like to have a Government employment, but for being overage and as because the Government employment was not available they are facing a personal hardship –In consideration of the necessity in the interest of fair dealing based upon a personal hardship or desire of a candidate, in our view would be a violation as it would be discriminatory against any such other prospective candidates who also seek a Government employment, but unable to get it for being overage, in the meantime –Writ Petition disposed of
JUDGMENT :
ACHINTYA MALLA BUJOR BARUA, J.
1. Heard Mr. C.P. Sarma, learned counsel for the petitioners. Also heard Mr. D. Saikia, learned Additional Advocate General appearing for the authorities in the Education Department assisted by Mr. N. Sarma and Mr. P.N. Sarma, learned counsel for the authorities under the SSA.
2. All the writ petitions were preferred on the similar set of facts based on the same set of laws and claiming the same relief and accordingly, all of them are taken up together for its final consideration. For the sake of brevity, only the facts as depicted in the WP(C) 6880/2017 are referred on an understanding of the parties that the same would suffice for adjudication for the other writ petitions also.
3. In the year 2004, the Govt. of Assam in the Elementary Education Department adopted a scheme by the name of 'Education Guarantee Scheme Centre' in short referred to as (EGS)) in the various districts of the State. It is stated that the said scheme was adopted to support and strengthen, as well as to improve the quality of education in the State, more particularly in the rural and isolated areas. The purport of the EGS was that persons would be appointed as Shiksha Mitras and Additional Shiksha Mitra on contractual basis and they would partake the activity of imparting education to those children who were left out of the mainstream educational process and bring them to a level where they can be accommodated in the system of education being provided. Accordingly, about 5015 EGS centres were created all over the State and in the process, the present petitioners were appointed as Shiksha Mitra.
4. It is also stated that such engagement of the petitioners as Shiksha Mitra were done under the Axom Sarba Sikhsa Abhijan Mission (in short SSA). In the year 2012, the EGS centres so created were upgraded to lower primary schools. Upon such upgradation, an issue had arisen as to whether the Shiksha Mitras so engaged earlier would continue to remain in employment and their engagement be converted to that of an Assistant Teacher in the upgraded lower primary schools. In the resultant situation, litigations were preferred by the Shiksha Mitras making a claim that upon the EGS centres being upgraded, their engagement be converted to that of an Assistant Teacher in the upgraded lower primary schools. Amongst others, the said claim received the consideration of this Court in its judgment dated 07.02.2012 in Rumi Gogoi Hazarika Vs. State of Assam and Ors, reported in (2012) 4 GLT 1001, wherein, a conclusion was arrived that such persons who were engaged as Shiksha Mitra under the EGS cannot claim any right to continue in service, nor they can seek regularization under the Right of Children to Free and Compulsory Education Act, 2009 (in short Right to Education Act, 2009). It is stated that the said adjudication of 07.02.2012 in Rumi Gogoi Hazarika (supra) holds the field and it had attained its finality as regards the claim of Shiksha Mitra for being allowed to continue and be regularized as Assistant Teacher upon the EGS centres being upgraded. After the legal right claimed by the Shiksha Mitras got finally adjudicated, results whereof was against them, a meeting was held by the Minister of Education, Assam with the Shiksha Mitras. The said meeting was held in the new conference hall of the SSA Assam on 20.06.2012, which was chaired by the Minister of Education Assam. The minutes of the meeting are made available as Annexure-G to the additional affidavit of the writ petition.
The minutes of the meeting with the Siksha Mitras held on 20.06.2012 provided that the following resolutions, amongst others, were taken:-
i. In 2012, 2013 and 2014 three special TET will be conducted for Siksha Mitras. However, after 2014, no special TET will be conducted as the relaxation given to Assam by NCTE is applicable till March, 2015.
ii. All eligible Siksha Mitras as per NCTE norms will appear in the three special TET which will be conducted by Eleme
