JUDGMENT

Sudhanshu Dhulia, C.J. - Heard Mr. K.K. Mahanta, learned senior counsel, assisted by Mr. K.M. Mahanta, learned counsel for the writ appellants, and Mr. D. Saikia, learned senior standing counsel, Government of Assam, appearing for the respondent Nos.1 & 2, Mr. K. Gogoi, learned Central Government counsel, appearing for the respondent No.3 and Mr. I. Alam, learned standing counsel, NCTE, appearing for the respondent No.5.

2. Right to elementary education was made a fundamental right after the 86th amendment to the Constitution of India[1] in the year 2002 (w.e.f. 01.04.2010), by incorporating Article 21A in Part III of the Constitution of India. This right, however, could not be made effective until the manner of providing the compulsory education was determined. This was done by way of Parliamentary Enactment known as Right of Children to Free and Compulsory Education Act, 2009 (from hereinafter referred to as the "Act"), which became effective on 26.08.2009. The Act is founded on the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all[2] The mandate of the Act is not just to make elementary education free and compulsory for children, but to make this education a meaningful education and not a mere formality. One of the areas, which the Act seeks to address, is that the teachers who impart training in the elementary schools (i.e. from Class- I to VIII) must be properly educated, and more importantly, properly trained with an aptitude for teaching.

3. One of the essential conditions for being eligible as an elementary school teacher is that a candidate must have successfully qualified a test known as Teachers Eligibility Test (TET). This test (i.e. TET) is conducted both by the State Governments, as well as by the Central Government. For the sake of convenience, we will call the TET conducted by the Central Government as "Central TET" and the TET conducted by the State Government (i.e. in the present case, Government of Assam) as "State TET". All the writ appellants before us are the ones, who had qualified the Central TET. The Government of Assam in the present recruitment process, where the existing vacancies of teachers in elementary school are to be filled, has excluded the candidates who have done their TET from Central, i.e. Central TET. In other words, only the candidates who have done State TET are qualified to appear in the present selection process, which started with the publication of advertisement on 11.09.2020.

4. The Central TET qualified candidates are the appellants before us as the writ petitions filed by the writ petitioners/writ appellants (wherein they sought parity with the State TET candidates), were dismissed by the learned Single Judge of this Court vide judgment & Order dated 18.12.2020. The present writ appeal is a challenge to the aforesaid judgment & order of the learned Single Judge, and against the action of the State which has kept them out from the selection process.

5. Before we examine the rival contentions of the parties, i.e. the candidates (Central TET candidates) and the State Government, which are represented before us by senior advocates, Mr. K.K. Mahanta, appearing for the writ appellants and Mr. D. Saikia, appearing for the Government of Assam, respectively, we must refer to the relevant provisions of law on which reliance has been placed by both the parties.

6. Section 23 of the Act prescribes qualifications for appointment and terms and conditions of service of teachers in an elementary school. Section 23 of the Act reads as follows:-

"23. Qualifications for appointment and terms and conditions of service of teachers- (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher.

(2) Where a State does not have ad