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2019 Supreme(Gau) 1127
IN THE HIGH COURT OF GAUHATI
Kalyan Rai Surana, J.
Nurul Islam and Ors. – Appellants
Versus
The State of Assam and Ors. – Respondents
WP(C) 7811 of 2015, 787 of 2016, 5083 of 2015, 4874, 2224, 2127, 3222, 2040 of 2014, 5072 of 2012, 3322, 2174, 4970 of 2014, 6942 of 2015, 3254, 2344 of 2014, 6278 of 2015, 5489, 2609, 3123, 5552, 4658, 2464 of 2014, 6218 of 2015, 2543 of 2014, 5471 of 2017, 5265 of 2014, 1402 of 2014 and 630 of 2018
Decided On : 22-07-2019
For the Appellant :R.P. Kakoti, U.K. Nair, Senior Advocates, N. Dhar, A.K. Purkayastha, R. Dubey, A.R. Bhuyan, P. Goswami, B. Taid, P.J. Dutta, M.A.I. Hussain, A.M. Barbhuiya, Z. Hammad, F. Begum, H.A. Ahmed, P.L. Das, S.S. Rahman, A.Y. Choudhury, T.A. Choudhury, K. Gogoi, L. Khan, N. Kumari, T.U. Laskar, S. Dasgupta, A.B. Kayastha, J.M.A Choudhury, P. Kataki, R. Begum, M. Dutta, S.K. Singh, S. Sharma, H.R. Khan, A. Motalib, N. Islam, S. Sutradhar, I. Alam, A.S. Ahmed, B. Sinha, S. Saikia, F.U. Borbhuiya, K. Rahman, K. Bhatta, J.M. Sulaiman, M.R. Adhikari, P.J. Saikia, S.S. Roy, M. Phukan and A. Gayan, Advocates
For the Respondent:J. Abedin, Advocate
Headnote:
Assam Madrassa Education Provincialisation Act, 1995 – Sections 2(b), 54– Constitution of India – Articles 29 and 30 –Issue on Eligibility Test, Appointment – The petitioner claims that she was a selected in the previous recruitment process – Hence, the petitioner is seeking a direction to the authorities for appointing her – learned counsel has given a brief background including the brief history of madrassa education system in the State –It has been projected that the first attempt to streamline Madrassa Education was initiated in the year 1934 under the control of the then Director of Public Instruction – Thereafter, the process of further streamlining the Madrassa Education was done by virtue of Chapter - XI of the Assam Education Department Rules & Orders, 1955 –the following points have come up for determination by the Court in this bunch of writ petitions –Whether the advertisement issued by the Govt. Secondary Education Department, by which Teachers Eligibility Test (TET for short) Education for the unreserved posts in provincialised Madrassa Institutions is valid or the said advertisement is hit by Article 30(1) of the Constitution of India? –Held, As regards W.P.(C), the petitioners have no personal interest in the matter as they are not seeking any personal relief in the said writ petition, as such, on the said ground, the petitioners are not found to be entitled to any relief in the said writ petition, accordingly, the said writ petition stands dismissed –Nonetheless, it would be relevant to mention herein that by the order passed in W.P, this Court had held that the impugned advertisement is all about prescribing the minimum qualification, experience and other criteria bearing on merit for appointment of teachers in the Madrassa institutions and does not interfere with the overall administrative control exercised by the management of such Madrassa institutions over their staff, or abridges/dilutes, in any other manner, their right to establish and administer the Madrassa institutions Court is inclined to observe that the Managing Committee of a Madrassa covered by the AMEP Act is constituted/reconstituted or replaced by the Government –They have no independent right to lay down their own guidelines, but such Managing Committee (by whatever name called) is required to strictly adhere to the Government guidelines – It is reiterated at the cost of repetition that the Madrassas covered by the AMEP Act are not minority institutions –Petition dismissed
JUDGMENT :
Kalyan Rai Surana, J.
1. Heard Mr. R.P. Kakoti, Mr. U.K. Nair, Senior Advocates, Mr. N. Dhar, Mr. A.K. Purkayastha, Mr. P. Kataki, Mr. K. Bhuyan, Mr. R. Dubey, Mr. A.R. Bhuyan, Mr. B.P. Borah, Ms. R. Begum, Mr. A. Ali, Advocates, Mr. J. Abedin (S.C., Secondary Education Department), Mr. I. Alam (S.C., NETE), for the appearing parties in this batch of 28 writ petitions.
2. The nature of the challenge in these writ petitions:
a). For the sake of convenience, the writ petitions are segregated under four categories.
(b). The petitioners in one set of writ petition, being W.P.(C) No. 5265/2014 claim that they are the Managing Committee of the concerned Madrassa and they have challenged the notification No. RMSA/TET/Madrassa/342/2014/1 dated 30.08.2014, by which the Secondary Education Department has imposed a condition that the Madrassa should select teachers (by various designations/posts called) from amongst eligible candidates who have cleared "Teacher Eligibility Test" (TET for short) examination on the ground that it infringes the right of the Managing Committee protected under Articles 29 and 30 of the Constitution of India as Madrassa are minority institution.
(c). The petitioners in the second set of writ petitions, being W.P.(C) 5072/2012, W.P.(C) 2464/2014, W.P.(C) 5083/2015, W.P.(C) 6278/2015, and W.P.(C) 630/2018, are challenging the selection process being undertaken for appointment of teachers (by various names and designations called), without having cleared TET, amongst others, on the ground that it is discriminatory against the students desiring to study under Madrassa education system.
(d). The petitioners in the third set of writ petitions, being W.P.(C) No. 7811/2015, W.P.(C) 1402/2014, W.P.(C) 2040/2014, W.P.(C) 2127/2014, W.P. (C) 2174/2014, W.P.(C) 2224/2014, W.P.(C) 2344/2014, W.P.(C) 2543/2014, W.P.(C) 2609/2014, W.P.(C) 3123/2014, W.P.(C) 3222/2014, W.P.(C) 3254/2014, W.P.(C) 3322/2014, W.P.(C) 4658/2014, W.P.(C) 4970/2014, W.P. (C) 5265/2014, W.P.(C) 5489/2014, W.P.(C) 5552/2014, W.P.(C) 6218/2014, W.P.(C) 6942/2014, W.P.(C) 5471/2017, are challenging the abandonment of the selection process that was being undertaken vide notification dated 12.09.2012 for appointment of teachers in Madrassas, without the requirement that the candidate should have cleared TET.
(e). The petitioners in the fourth set of the writ petition, being W.P.(C) No. 787/2016 has projected that she is TET qualified and eligible for appointment as a teacher in Madrassa institutions. The petitioner claims that she was also selected in the previous recruitment process. Hence, the petitioner is seeking a direction to the authorities for appointing her.
3. On the facts and points of law urged by the respective counsel, the following two points have come up for determination by the Court in this bunch of writ petitions. They are as under:-
1) Whether the advertisement No. RMSA/TET/Madrassa/342/2014/1 dated 30.08.2014 issued by the Govt. of Assam, Secondary Education Department, by which Teachers Eligibility Test (TET for short) of Madrassa Education for the unreserved posts in provincialised Madrassa Institutions is valid or the said advertisement is hit by Article 30(1) of the Constitution of India?
(2) Whether the W.T. message under Memo No. ASE.164/2013/8 dated 21.12.2013 issued by the Commissioner & Secretary to the Govt. of Assam, Secondary Education Department to all Principals/Superintendents of Arabic Colleges/Title Madrassas and Senior Madrassas (Provincialised), by which the process of selection of teaching and non-teaching staff of provincialised Madrassa Educational Institutions, which was being held at the level of Superintendents of Madrassa and concerned Managing Committees was cancelled is sustainable?
Undisputed brief facts:
4. The Madrassa Education System consists of three levels of education programmes/examination, vi
