Shri Tarique Anwar Laskar & Ors. vs The State Of Assam & Ors.

Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. N. Gautam, learned counsel for the petitioners in WP(C) No. 3807/2019; Mr. J. Laskar, learned counsel for the petitioners in WP(C) No. 3879/2020; Mr. N.H. Laskar, learned counsel for the petitioner in WP(C) No. 7274/2021, Mr. K. Mira, learned counsel for the petitioners in WP(C) No. 5818/2023; and Mr. M. Das, learned counsel for the petitioners in WP(C) No. 1260/2024. Also heard Mr. D. Saikia, learned Advocate General of Assam cum Senior Counsel for the State respondents in all the writ petitions.

In these batch of petitions, under Article 226 of the Constitution of India, the petitioners have challenged the recruitment of candidates to 11,319 numbers of vacant posts of Assistant Teachers, under the scheme of "Strengthening Elementary Education of Assam" as so indicated in the Notification, dated 06.09.2017, (ANNEXURE- C) and prayed for setting aside and quashing of appointment of 11,319 numbers of Assistant Teachers, under the aforesaid scheme, being the said appointments made without advertisement.

Further, the petitioner in WP(C) No. 1260 of 2024, has additionally challenged the letter, dated 10.01.2023, issued by the Secretary to the Government of Assam, Department of School Education, providing option in respect of service conditions of contractual teachers and State Pool of Teacher, under Samagra Shiksha Assam, to the extent the same relates to the service of the 9731 numbers of Assistant Teachers of L.P. School, under the scheme of ‘Strengthening Elementary Education of Assam’

As a common question of law is involved in this batch of five writ petitions, i.e. (i) WP(C) No. 3807/2019; (ii) WP(C) No. 3879/2020; (iii) WP(C) No. 7274/2021, (iv) WP(C) No. 5818/2023; (v) WP(C) No. 1260/2024, and as agreed upon, it is proposed to dispose of all these five writ petitions by this common judgment and order.

The background facts leading filing of the present petition is briefly adumbrated as under:-

The respondent No.1, the Commissioner and Secretary to the Government of Assam has filed an affidavit-in-opposition, wherein it has taken a stand that the Asom Sarba Siksha Abhiyan Mission had published advertisement for 7042 number of posts of contractual Assistant Teacher vide No.SSA/TT/Engagement of Asst. Teacher/1095/2017/1218, dated 30-06-2017. In the advertisement it was clearly mentioned that the number of vacancy may increase. It is also stated that that in the meantime, a communication was received from Government of India vide Letter No. D.O. No. 17-2/2017-EE.17, dated 03-08-2017, regarding last chance to acquire the requisite minimum qualification by elementary level teachers within 31 March, 2019. In the letter, broad strategy was mentioned to complete the st training of untrained teachers by 31 of March, 2019, as a last chance. st

As 31 of March, 2019 was the last date of acquiring professional qualification (2 year D.El.Ed/B.Ed etc.) by the elementary level untrained teachers, the matter was considered with utmost seriousness and considering the requirement of teacher in elementary level schools in the State, a decision was taken to fill up the "State Pool of teachers" from the remaining eligible candidates in order of merit of the above mentioned engagement process on the basis of the provision mentioned in the advertisement dated 30-06-2017, i.e. "number of vacancy may increase".

This was done keeping in view the emergent situation that as the National Institute of Open Schooling (NIOS) registration for admission into the 2 years D.El.Ed. was supposed to be closed on 15-09-2017. If the State Pool of teachers was to be filled up by fresh advertisement, it would not be possible to enroll the untrained Assistant Teachers of State Pool in NIOS, within 15-09-2017. Considering the same, these teachers were engaged against State Pool on the basis of provision mentioned in the advertisement, dated 30-06-2017, i.e. "number of vacancy may increase".

The entire process of engagement of 11319 Assistant Teachers under the scheme of "Strengthening Elementary Education of Assam" was carried out against the advertisement No. SSA/TT/Engagement of Asstt.Teacher/1095/2017/1218, dated 30-06-2017, under the provision i.e. "number of vacancy may increase". The 11319 numbers of Assistant Teachers under State Pool were engaged so that these teachers can get themselves trained by enrolling themselves in the NIOS for 2 years D.El.Ed. Programme, by 15-09-2017.

It is also stated that all total 24345 numbers of candidates had submitted their online applications in response of the advertisement No. SSA/TT/Engagement of Asstt. Teacher/1095/ 2017/1218, dated 30-06-2017.

The Department of Elementary Education or Sarba Siksha Abhiyan, Assam is in no way responsible for non submission of online application by the petitioners of this case. As 24345 candidates had submitted online applications, the petitioner in this case could have also submitted their online applications against the said advertisement Non submission of online application by the petitioner is not the fault of Department of Elementary or Sarba Siksha Abhiyan, Assam, in as much as, no bar was imposed on the instant petitioners to participate in the process of appointment/ engagement pursuant to the advertisement dated 30-06-2017.

It is also stated that both the notifications as stated by the petitioner are contractual appointment. The candidates, who have already been serving, have no objections on regarding the period of engagement and that the petitioners are not being aggrieved by those notifications.

The petitioner had filed an affidavit in reply reiterating and reaffirming the statement and averment made in the petition. It is stated that the statement made by respondent No. 1 in the affidavit in opposition is an admission to the fact that recruitment of 11,319 persons as Assistant Teachers on contractual basis, under the scheme of Strengthening Elementary Education of Assam' was done without any advertisement inviting applications, from the eligible candidates for filling up said 11,319 posts in context.

Private respondent No.6 has filed his affidavit in opposition. His stand is that the averments that it was not indicated as to whether the increase or decrease in the category wise numbers of vacancy would resultantly increase or decrease district-wise vacancy so indicated, is a superfluous as the same would be automatic and related to increase or decrease in the category wise numbers of vacancy, for the advertisement itself indicates 'District-wise category-wise vacancy positions of posts'. The petitioners did not participate in the recruitment process nor did they carry out the mandatory verification of documents as required and as such they do not have any locus-standi to file the instant writ petition challenging the appointments of selected candidates, when the advertisement admittedly indicates increase or decrease of posts. The statements that the petitioners were contemplating to participate for the post in the Lower Primary Level and that they were surprised to notice that as against 7042 numbers of posts 11,319 numbers of candidates have been appointed against 'increased vacancy', which indicates that appointments to 11,319 numbers of posts have been made without any advertisement, are not true and correct as there being clear indication of increase or decrease in number of posts. The advertisement dated 30.06.2017, also indicates vacancies in the respective districts, which the petitioners belong to. It was specifically mentioned that the numbers of vacancy might increase or decrease and those candidates, who applied for the given posts and participated in process & appeared for the final verification, are only appointed/engaged. The candidates were engaged with a condition that they would qualify/acquire the professional qualification (Diploma in Elementary Education) within 31.03.2019, which is also a condition under Advertisement dated 30.06.2017. Those who have qualified the said professional qualification have been continued in service by issuing Notification for extension engagement from time to time. The service rendered by the answering respondent and others are on contractual basis. There is no legal impediment in renewal or extension of the contract from time to time, if the conditions are fulfilled. The petitioners, who had deliberately chosen to be aloof from the process of engagement, under the advertisement, dated 30.06.2017, now cannot claim that there should have been separate advertisement for their own mistake. The petitioners are responsible for their own laches and negligence, for which the allegation that the petitioners have been deprived of the chance of participation is absolutely false and baseless. The engagement of 11,319 number of candidates was made and notified against the advertisement dated 30.06.2017, which would be more evident from the Notification dated 06.09.2017 (Annexure-C to the writ petition). Further, when the petitioners have not been challenging recruitment of 7042 numbers of candidates, so appointed in context, with the recruitment process initiated vide Advertisement, dated 30.06.2017, they also cannot challenge the recruitment of remaining 4,277 candidates for the reason that the Advertisement dated 30.06.2017, indicated probability of increased vacancy. The statements that the recruitment of 11,319 numbers of candidates is vitiated for non-advertisement, trampling the chance of participation and selection of the petitioners are not true and correct. The engagement of 11,319 numbers of candidates was made and notified against the advertisement, dated 30.06.2017, which would be more evident from the Notification, dated 06.09.2017 (Annexure-C to the writ petition). By issuing Notification, Dated 10.08.2018, the Mission Director, SSA, Assam the service of engaged teachers, under the scheme of 'Strengthening of Elementary Education' was extended up to 30th September, 2019. Further, the clause 12 of the advertisement, dated 30.06.2017, stipulates that the teachers, who will be engaged through this advertisement under relaxed qualification norms, will be have to acquire professional qualification, specified in the st NCTE notification within 31 March, 2019. Therefore, there is also presumption of extension till 31.03.2019. He also stated that he passed the professional qualification of Diploma in Elementary Education, for the Session 2017-19, from the National Institute of Open Schooling and accordingly, he has been issued Certificate on 04.03.2020. Thus, he has st fulfilled the requirement of having professional qualification, within 31 March, 2019, and the service rendered by him and others are on contractual basis. The Govt. of Assam had issued a Notification vide st No.PMA.38/2020/27, dated 1 July, 2020 in pursuance of Cabinet decision extending some benefits to the teachers who were engaged vide Notification No.648/2017/36, dated 06.09.2017, and he has also been extended the same benefit executing an agreement, dated 01.07.2020. Therefore, it is the policy decision of the Govt. Of Assam whereby the teachers, who were engaged vide Notification No.648/2017/36 06.09.2017, have been given extension.

The petitioner No. 70, in writ petition No. 3807 of 2019, has filed his affidavit-in-reply, wherein he has stated that the petitioners are eligible and duly qualified to be selected and appointed as Assistant Teacher of Lower Primary, Assistant Teacher of Upper Primary and Science Graduate in Upper Primary. The advertisement dated 30.06.2017, was issued for filling up 7042 posts of Assistant Teachers of Lower Primary and Upper Primary Schools. But, the respondent authorities had notified that a total of 11,319 Nos. of candidates to be engaged as Assistant Teachers in respect of the advertisement dated 30.06.2017, against the advertised vacancy of 7042 Teachers. The additional posts were created/issued without any advertisement. It is also stated that the Government of India in the Ministry of Human Resource Development (Department of School Education & Literacy) vide letter, dated 03.08.2017, stated that registration of unqualified, untrained, teachers on NIOS Portal, should be completed between 16.08.2017 to 15.09.2017. It is also additionally stated that this one-time measure is only for the unqualified, in-service teachers, in Govt./Govt.-aided/Private schools. Thus, the State has committed a mala-fide exercise in appointing the private respondents as Assistant Teachers under SSA, Assam as by no stretch of imagination, it could be said that the appointees were unqualified in-service teachers in Govt./Govt.-aided/Private schools as none of the appointees were unqualified-in-service teachers in Govt./Govt.-aided/Private schools. So, in the absence of any statutory backing, the entire exercise is illegal and without any backing of law. Therefore, such exercise undertaken by the authorities to fill up the "State Pool of Teachers" is violative of Articles 14 and 16 of the Constitution of India. Recruiting 11,319 numbers of teachers, without any advertisement, lacks fairness and transparency. Such an exercise has caused serious prejudice to the petitioners. The petitioner did not participate in the recruitment process as their chances were bleak against the initial advertisement dated 30.06.2017 for 7042 Nos. of post. It is also stated that vide Notification, dated 11.07.2024, the "Assam Elementary Education (Provincialization) Rules, 1977" was amended. By the said amendment the authorities has introduced "Special Recruitment Drive" by which the authorities has sought to recruit regular teachers from the existing contractual or State Pool teachers under the Samagra Shiksha Abhiyan, Assam (i.e. the private respondents in the instant writ petition). The action of the authorities in sanctioning and advertising 35,133 numbers of personal posts of Upper Primary and Lower Primary School teachers for the Special Recruitment Drive, under the Directorate of Elementary Education, Assam has seriously prejudiced the petitioners and others similarly qualified candidates of the State of Assam. In the said advertisement, it is categorically mentioned that only candidates who are working as Contractual and State Pool contractual teachers, under Samagra Siksha Assam, are eligible. In this regard, it is to be stated that a writ petition bearing No. W.P. (C) No. 5207 of 2024, challenging the vires of the 2024 Amendment of the Rules of 1977, is presently pending adjudication before this Court. It is also stated that as per the Ministry of Human Resource Development and NCTE Notifications, dated 03.08.2017, 15.09.2019 and 22.09.2017, the D.El.Ed. course is valid for only for those teachers who have joined the service on or before 10.08.2017. However, the state pool teachers, who were appointed vide appointment letter dated 08.09.2017, and thereafter, in pursuance to the appointment letters they have joined in service. It is also stated that Hon'ble Supreme Court, in SLP (C) No. 23583-84 of 2022 (Jaiveer Singh vs. The State of Uttarakhand & Ors), has categorically held that the one-time measure was only for those Teachers who were in-service and had completed their course, as on 01.04.2019. Thus, it is inconceivable that the respondent authorities have appointed the private respondents as Assistant Teachers let alone regularize them vide the Amendment of 2024 to the Rules of 1977, when the private respondents are not qualified to be appointed as Teachers in the first place. It is an admitted position that National Institute of Open Schooling degree was admissible only for in-service teachers, in view of the letter, dated 03.08.2017. Therefore, as on 03.08.2017, those state contractual pool Teachers who are recruited were not in service. As such, the respondent authorities by recruiting such teacher under Special Recruitment Drive are guilty of manifest arbitrariness, illegality and having taken recourse to an action which is not backed by statutory prescriptions and in-service teachers in Govt./Govt.-aided/Private schools, thus, seriously prejudiced the petitioners and other similarly qualified teachers which is in grave violation of the Constitution of India and other Statutory laws in force.

Mr. Choudhury, learned Senior Counsel for the petitioners in WP(C) No. 3807/2019, submits that the Mission Director, SSA, Assam, being the respondent No. 2, had issued an advertisement being Annexure-A, at page No.58 of the petition, for filling up of 7042 numbers of posts. Thereafter, the result was declared vide Annexure-B, at page No.62 and total 6172 numbers of candidates were found to be eligible and they were appointed accordingly. Subsequently, another 331 numbers of candidates were also appointed. He also submits that the petitioners have no grievance in appointing those candidates, as inspite of possessing requisite qualifications, the petitioners chosen not to apply for the said posts, due to availability of less numbers of candidates in their home districts. But, the petitioners are aggrieved for issuance of Notification dated 06.09.2017, by the Mission Director SSA, Assam as vide said Notification it was stated that 11,319 numbers of TET qualified candidate, have been notified to be engaged as teachers on contractual basis, pursuant to the advertisement dated 30.06.2017. Mr. Choudhury has pointed it out that appointment of 11,313 numbers of candidates is violation of the Rule of Law, and thereby, the right of the petitioners, under Articles 14 and 16(1) of the Constitution of India, are violated. Therefore, Mr. Choudhury has contended to set aside the appointment of 11,319 candidates.

In support of his submission Mr. Choudhury has referred following decisions:-

Mr. J. Laskar, learned counsel for the petitioners in WP(C) No. 3879/2020; Mr. N.H. Laskar, learned counsel for the petitioner in WP(C) No. 7274/2021, Mr. K. Mira, learned counsel for the petitioners in WP(C) No. 5818/2023; and Mr. M. Das, learned counsel for the petitioners in WP(C) No. 1260/2024, have also subscribes the submissions of Mr. Choudhury, learned counsel for the petitioners in WP(C) No. 3807/2019.

Per contra, Mr. D. Saikia, learned Advocate General of Assam cum Senior Counsel for the State respondents, submitted that this batch of writ petitions are not at all maintainable. Firstly, Mr. Saikia has pointed it out that there is delay and laches on the part of the petitioners in approaching this Court. He also pointed it out that while the advertisement was published on 30.06.2017, the petitioners have approached the court on 22.05.2019, about two years later and there is no whisper in the writ petitions about the delay. Secondly, Mr. Saikia has pointed it out that the petitioners have not challenged the advertisement, what they have challenged is a Notification, dated 06.09.2017, issued by the Missions Director, SSA, Assam and without there being any challenge to the advertisement, they cannot successfully challenge the said Notification and on such count also the petitions becomes redundant. Thirdly, Mr. Saikia has pointed out that the petitioners in all the writ petitions did not participate in the selection process and as such they have no locus-standi to challenge the selection process. In support of said contention Mr. Saikia has referred to a decision of Hon’ble Supreme Court in Meeta Sahai vs. State of Bihar,reported in(2019) 20 SCC 17, (para 17). Fourthly, Mr. Saikia has submitted that the petitioners have not challenged any of the engagement order and at least they should have challenged one of the engagement letters of the candidates so appointed. Fifthly, Mr. Saikia submitted that the respondent authorities had completed three recruitment processes in the meantime and appointed 35,000 numbers of contractual teachers, under special recruitment drive and barring 150 teachers, rest of the teachers have been regularized and now their status has been changed. Sixthly, Mr. Saikia has submitted that the respondent authorities had, in the meantime amended the Rule 1977.

Mr. Saikia also submitted that the respondent No.2, in the advertisement dated 30.06.2017, had clearly indicated that the category wise number of vacancies may increase or decrease, after obtaining approval from the concerned department. Further, he submitted that after the D.O. letter, No. 17-2/2017-EE.17, of the Addl. Secretary (EE-II), rd dated 3 of August, 2017, wherein last chance was given to acquire the st requisite minimum qualification by elementary level teachers within 31 March, 2019 and in the said letter, broad strategy was mentioned to complete the training of untrained teachers and to acquire professional st qualification (2 year D.El.Ed./B.Ed., etc.) by 31 March, 2019 as a last chance. And under such emergent situation, a conscious policy decision was taken by the respondent authority to fill up the ‘State Pool of teachers’ from the remaining eligible candidates, in order of merit, of the recruitment process, initiated by advertisement dated 30-06-2017, and to prepare them, as per the New Education Policy and further to maintain the student teacher ratio, as required under Right to Education Act.

Mr. Saikia also submitted that there is no violation of the rights of the petitioners, as guaranteed under Articles 14 and 16 of the Constitution of India, who had not even participated in the selection process. Under such circumstances Mr. Saikia has contended to dismiss the petitions.

In reply, Mr. Choudhury, learned counsel for the petitioners in WP(C) 3807/2019 submitted that the plea of delay is not taken by the respondent authorities in their affidavit in opposition. Mr. Choudhury has also pointed it out that though the Rule 1977 was amended by the respondent authorities, yet, the same is under challenge. He further submitted that that this an atrocious case and the attempt to justify the same has to be set at naught. He also pointed it out that there is violation of the Rule and the right of the petitioners, under Articles 14 and 16, has been violated herein this case. Further, referring to the D.O. rd letter No. 17-2/2017-EE.17, of the Addl. Secretary (EE-II), dated 3 of August, 2017, Mr. Choudhury submitted that the condition stipulated therein is applicable only in case of in-service teachers. And as such the justification, so given by the respondent authorities cannot be accepted. Mr. Choudhury has also referred to a decision of Hon’ble Supreme Court in Koushik Das and Others vs. State of West Bengal and Others reported in (2025) 5 SCC 413, (para-46), in support of his submission.

Having heard the submissions of learned counsel for all the parties, this court has carefully gone through the petition and the documents placed on record. And also perused the decisions, so referred by learned counsel for all the parties.

The basic facts herein these cases are not in dispute. Pursuant to the advertisement dated 30/06/2017,the respondent authorities had initiated the process for filling up of 7042 numbers of vacancies of Assistant Teachers, from TET/CTET qualified candidates, indicating District-wise, Category-wise vacancy positions. It is also indicated that the category-wise numbers of vacancies might increase or decrease, after approval from the concerned department. The petitioners, however, did not participate in the recruitment process considering the fixed numbers district-wise vacancies, as the chances of their selection was bleak, considering the huge numbers of applicants. There was, however, no bar for a candidate to participate in any of the District of Assam, the only restriction being, the choice of District had to be singular. The result of the said recruitment process was declared on 01/09/2017. Thereafter, a Notification, dated 06/09/2017, was issued indicating that 11,319 numbers of TET qualified candidates had been notified to be engaged as Assistant Teachers, in respect of the advertisement dated 30/06/2017. Thereafter, total 11,319 numbers of candidates were appointed against "increased Vacancy", which indicates that appointments to 11,319 numbers of posts were made without any advertisement.

The order of appointment indicated that in view of the Notification, dated 06/09/2017, the engagement was for a period of 11 months, at a fixed pay of Rupees 20,000/- (Rupees Twenty Thousand) per month. But, they are still continuing in service like a regular service selectees. The petitioners have not been challenging the recruitment of 7042 numbers of candidates, made pursuant to the Advertisement, dated 30/06/2017, but, they have been challenging the back door entry of 11,319 numbers of candidates, without any advertisement. Since the petitioners had contemplated applying for the post of Assistant Teacher, at Lower Primary Level, the challenge is restricted to 9731 candidates so appointed beyond 5854 candidates at Lower Primary Level. The petitioners had also represented to the respondent authorities on 22/12/2017, 30/01/2018 and 06/05/2019, for ventilating their grievances, but the same failed to evoke any response.

In view of the rival contentions, so made by the parties, the issues, to be addressed by this Court are formulated as under:-

With regard to the issue No.(i), this Court finds that it is fairly well settled that generally, a person who did not participate in (or apply for) the selection process usually lacks locus standi (legal standing) to challenge it in the courts. Such a person is usually treated as a ‘stranger’ to the recruitment process. As they did not apply and participate in the process, they have no personal grievance or direct stake. Only unsuccessful candidates, who actually took part in the process, and can show they were aggrieved, typically have the locus to challenge irregularities, if any.

The relief being sought for in this batch of Writ Petition appears to be in the nature of a Public Interest Litigation. The petitioners herein, does not have any grievance with regard to the eligibility of the private respondents and rest of the teachers, so appointed to the post of assistant teachers. But, their grievance is that when there was advertisement for 7042 numbers of posts, whereas, recruitment of 11,319 numbers of TET qualified candidates were made. This, in the considered view of this Court, is not a person centric litigation, but is in the nature of a Public Interest Litigation. Further, the petitioners had also not challenged the advertisement, but have only challenged the Notification, dated 06.09.2017. Undoubtedly, the grievance of the petitioners is in the nature of public interest. It is settled law that Public Interest Litigation is not maintainable in service matters, except however the Writ of Quo Warranto in view of the decision of Hon’ble Supreme Court in the case of Madan Lal vs. High Court of J&K, reported in (2014) 15 SCC 308.

The petitioners herein appears to be strangers to the recruitment process, and being stranger they cannot maintain a writ of certiorari or mandamus, as held by Hon’ble Supreme Court in the case of Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed, reported in (1976) 1 SCC 671. The relevant paragraphs of the aforesaid decisions are extracted herein below:-

In the case of Meeta Sahai (supra), so referred by Mr. Saikia, learned Advocate General, Hon’ble Supreme Court, while dealing with the issue has held as under:-

In view of the above discussion, this Court is of the view that the petitioners have no locus-standi to challenge the recruitment process, being stranger to it. Issue No. (i) above, stands answered accordingly.

Moving forward to issue No.(ii), this Court had already discussed herein above, that the respondent authorities had appointed 11,319 numbers of candidates, while the number of vacancies indicated in the advertisement was 7042.

The default principle is that appointments cannot exceed the number of vacancies advertised, as it would violate Articles 14 and 16 (equality and equal opportunity in public employment). This prevents arbitrariness and ensures transparency for all potential candidates.

In the case of Girish Jayanti Lal Vaghela(supra) Hon’ble Supreme Court has held as under:-

In the case of State of U.P. vs. Neeraj Awasthi, reported in (2006) 1 SCC 667, Hon’ble Supreme Court has held as under:-

However, when the advertisement itself explicitly states that the number of posts/vacancies "may be increased or decreased" (or similar wording), courts have held that this provides flexibility. The recruiting authority can make additional appointments if justified (e.g., additional vacancies arise or are identified), without it being per se illegal. Reference in this context can be made to a decision of Hon’ble Supreme Court in the case of Sanjay Kumar Mishra & Ors. vs. District Judge, Ambedkar Nagar (U.P.), Civil Appeal No. of 2025 [@Special Leave Petition (C) No.14980 of 2024].

In the said case, the advertisement made by the District Judge of Ambedkar Nagar is produced as Annexure P1, wherein the vacant posts are shown to be twelve, but with the rider that the number of posts may be increased or decreased. While dealing with the issue Hon’ble Supreme Court has observed as under:-

Thus, drawing premises from the aforesaid discussion, this Court is of the considered opinion that in view of the stipulation in advertisement, that the number of vacancies may increase or decrease, the right of the petitioners, guaranteed under Articles 14 and 16 of the Constitution of India, cannot be said to be violated on account of appointment of excess numbers of candidates beyond the vacancies indicated in the advertisement.

Now, it is to be seen if there is any delay in preferring the writ petition and if any explanation for delay is forthcoming from the petitioner’s side. Over all delay in filing the petitions, and the reasons assigned in the same are indicated in the below noted chart:-

While dealing with this issue, Hon’ble Supreme Court in the case of P.S. Sadasivaswamy v. State of T.N., reported in (1975) 1 SCC 152, held that a person aggrieved by promotion of a junior should ordinarily approach the court within six months or at most a year. There is no rigid limitation, but it is a “sound and wise exercise of discretion” to refuse extraordinary jurisdiction under Article 226 to persons who do not approach expeditiously, stand by and allow things to happen, and then try to unsettle settled matters with stale claims. Long delay makes it impractical to reconstruct the original situation.

Again Hon’ble Supreme Court, in the case of Mrinmoy Maity vs. Chhanda Koley & Ors., reported in(2024) 15 SCC 215, held as under:-

Again in the case of Tridip Kumar Dingal& Others v. State of W.B.& Others, reported in (2009) 1 SCC 768Hon’ble Supreme Court has held that as under:-

In the case of Union of India and Ors. Vs. Tarsem Singh reported in(2008) 8 SCC 648, Hon’ble Supreme Court, referring to its earlier decisions, has summarized the principle as under:-

Again in the case of Shiv Dass v. Union of India reported in (2007) 9 SCC 274, Hon’ble Supreme Court, while dealing with the issue, has held as under:-

What can be crystallized from the aforesaid discussion is that there is no statutory limitation period under Article 226. However, the Courts apply the doctrine of delay and laches as a discretionary bar. What the Courts usually consider are:-

What the Courts weighed is that delay allows the opposite parties’ position or that of third parties, to change - e.g., promotions become final, property is transferred, allottees take possession, seniority lists stabilize, or administrative decisions are acted upon, the Courts refuse to “unscramble a scrambled egg” or unsettle settled matters.

In the instant case, there is delay and laches on the part of the petitioners in approaching this Court, and the reasons assigned are indicated in para No.18 above. The period of delay ranges from 19 months to 76 months. In WP(C) No. 3807/2019; (WP(C) No. 3879/2020; and in WP(C) No. 5818/2023; no explanation is offered by the petitioners. However, in WP(C) No. 7274/2021, and WP(C) No. 1260/2024, the petitioner have put forwarded an explanation for the delay. It is stated in both the petitions that due to acute financial problems and for personal reasons they could not approach the Court in time. This explanation is also found to be not plausible and legally acceptable explanation of the delay of 51 months and 76 months, respectively.

Thus, there appears to be substance in the submissions of learned Advocate General in respect of the delay. And this Court is inclined to record concurrence to the same.

Further, the grievance of the petitioners is in respect of the Notification dated 06.09.2017, which, as submitted by the learned Advocate General, is a conscious policy decision of the respondent authorities, related to and affected several other teachers also. And when reopening of the issue would affect the settled rights of the said teachers, then the claim will not be entertained in view of the decision of Hon’ble Supreme Court in the case of Tarsem Singh(supra). Further, as held by Hon’ble Supreme Court in the case of Shiv Dass(supra) unexplained delay coupled with the creation of third-party rights in the meantime is an important factor, which also to be weighed by the courts while deciding whether or not to invoke writ jurisdiction which is indisputably discretionary.

Though Mr. Choudhury has pointed it out that the respondent authorities in their affidavits have not explicitly raised the issue of delay, yet, it is well settled in the case of Shiv Dass (supra) that delay/laches is one of the factors, the High Court bears in mind under Article 226. A court can consider and apply the doctrine of delay and laches in a writ petition, even if the respondent has not explicitly raised it in their affidavits or counter. Delay and laches are not rigid "plea" that must be formally raised like an affirmative defence in every case. It relates to the court's discretion and the equities of the situation, such as, prejudice to the other party, third-party rights created in the interim, public inconvenience, or the petitioner's failure to assert rights promptly etc. Courts have held that they can examine it independently based on the facts on record. If the delay is inordinate and unexplained, or causes prejudice, relief can be denied. The court may refuse relief in delayed writs on this ground, even if not strictly pleaded; emphasizing that writ relief is equitable and not available to the "tardy and indolent."

In the case of the aforesaid discussion and finding the Issue No. III above, has to be answered in negative and accordingly the same stands answered.

Moving forward to the Issue No. IV, this Court finds that admittedly, the petitioners have not challenged the advertisement dated 30.06.2017. And indisputably, the Notification dated 06.09.2017, is sequel to the advertisement dated 30.06.2017. Therefore, the question arises - can the petitioners challenge the Notification dated 06.09.2017, without challenging the advertisement dated 30.06.2017. It is the contention of the learned Advocate General that the petitioners cannot challenge the Notification dated 06.09.2017, without challenging the advertisement dated 30.06.2017.

It is to be noted here that in a recruitment process, the advertisement sets the "rules of the game." However, in the instant case, with an explicit rider allowing vacancies to increase or decrease, the authorities have the flexibility to fill additional posts from the same selection process without a fresh advertisement, provided it is done bona fide, transparently, and without altering core eligibility or selection criteria mid-way.

However, in the instant case, the petitioners have challenged the subsequent notification on the ground of violation of equality under Articles 14/16 and also on the ground of lack of bona-fide. But, indisputably, the selection process is not challenged on the ground of lack of transparency. There is no allegation of altering the selection criteria, mid-way. There is also no allegation that the additional recruitment is a backdoor entry or it favors specific persons.

Since the petitioners are aggrieved by the subsequent notification on the ground of violation of equality under Articles 14/16 and also on the ground of lack of bona-fide, and on such count the petition, though, seems to be maintainable, yet, it appears that the case of the state respondents is solely based upon the rider contained in the advertisement that the vacancy may increase or decrease. In that view of the matter, this Court is of the view that without a challenge to the advertisement, which contains the rider, the petitioner cannot successfully maintain the petitions. Since the rider in the advertisement is the root of the matter, this Court is of the considered opinion that challenge to the advertisement is a must. Further, the rider in the advertisement protects the subsequent Notification. The petitioners herein, thus, had failed to demonstrate that the recruitment was mala fide, or it was done in contravention of selection norms, e.g., not from the same merit list. Therefore, this issue has to be answered in negative and accordingly, the same stands answered.

In respect of the last issue, i.e. whether the reason assigned for appointment of 11,319 numbers of teachers is justified, this Court has considered the submissions of learned counsel for both the parties. As already discussed, one of the reasons is that in the advertisement itself there is a rider that the number of vacancy may increase or decrease. The other one, as pointed out by Mr. Saikia, learned Advocate General, is the D.O. letter No. 17-2/2017-EE.17, of the Addl. Secretary (EE-II), rd dated 3 of August, 2017, regarding last chance to acquire the requisite minimum qualification by elementary level teachers within st 31 March, 2019. rd

This Court has gone through the letter D.O. letter, dated 3 of August, 2017, Annexure- 2 of the affidavit filed by the state respondent and also the plea taken in the affidavit dated. It appears that in the said letter, it was asked to complete the training of untrained teachers st st by 31 March, 2019 as a last chance. And since 31 March, 2019 was the last date of acquiring professional qualification (2 year D.El.Ed/B.Ed etc.) by the elementary level untrained teachers, the state respondents had considered the matter with utmost seriousness and in view of the requirement of teacher in elementary level schools in the State, a conscious decision, to fill up the ‘State Pool of teachers’ from the remaining eligible candidates, in order of merit, from the above mentioned engagement process, on the basis of the provision mentioned in the advertisement, dated 30-06-2017 i.e. "number of vacancy may increase", was taken. It is also stated that in view of the emergent situation that as the National Institute of Open Schooling (NIOS) registration for admission into the 2 years D.El.Ed., was supposed to be closed on 15-09-2017. If the State Pool of teachers was to be filled up by fresh advertisement, it would not be possible to enroll the untrained Assistant Teachers of State Pool in NIOS within 15-09-2017. Considering the same, these teachers were engaged against State Pool on the basis of provision mentioned in the advertisement dated 30-06-2017 i.e. ‘number of vacancy may increase’. And it is also stated that the 11,319 numbers of Assistant Teachers, under State Pool, were engaged so that these teachers can get themselves trained by enrolling themselves in the NIOS for 2 years D.El.Ed., programme by 15-09-2017.

Though Mr. Choudhury, learned counsel for the petitioners, submitted that the condition stipulated therein is applicable only in case of in-service teachers, and as such, the justification, so given by the respondent authorities cannot be accepted, yet, one should not rd lose sight of the fact that in the letter dated 3 of August, 2017, deadline for registration in the NIOS, for 2 years D.El.Ed. programme was given as 15-09-2017. While the final merit list of the exercise carried out pursuant to the advertisement dated 30.06.2017, and the result was published on 01.09.2017, then carrying out another fresh exercise within 15.09.2017, was a next to impossible task for the respondent authorities. On such count the reason so assigned by the respondent authorities to fill up the 11,319 numbers of vacancies in ‘State Pool of Teachers’, from the remaining eligible candidates, in order of merit from the engagement process, dated 30.06.2017, on the basis of the rider in the advertisement, dated 30-06-2017, that the ‘number of vacancy may increase,’ cannot be ignored all together. Therefore, this Court is unable to agree with the submission of Mr. Choudhury in this regard.

Further, it appears that the respondent authorities had taken a policy decision to fill up the State Pool of teachers with a view to get them trained up and to enroll the untrained Assistant Teachers of State Pool in NIOS within 15-09-2017, for 2 years D.El. Ed. Programme. It is a well-established principle of judicial review in our country that courts generally do not interfere with the policy decisions of the government. The executive and legislature have the primary domain over policy-making, especially in economic, fiscal, administrative, and developmental matters.

The role of the courts is limited to checking legality, constitutionality, arbitrariness, or violation of fundamental rights—not to second-guess wisdom, merits, or alternatives. The Courts refrain from interfering unless the policy is: (i) Violative of the Constitution or any statute. (ii) Arbitrary, irrational, or mala fide.(iii) Discriminatory or violates fundamental rights (e.g., Article 14 equality). Though the petitioners herein have taken a plea that their right guaranteed under Articles 14 and 16 of the Constitution of India are violated, yet, in view of the stipulation in the advertisement, that the number of vacancies may increase or decrease, the right of the petitioners, guaranteed under Article 14 and 16 cannot be said to be violated on account of the appointment of an excess number of candidates, beyond the vacancies indicated in the advertisement. Further, the petitioners herein had failed to demonstrate that the increase of recruitment was mala fide, or it was done in contravention of selection norms, e.g., not from the same merit list.

In view of above discussion and finding, the last issue has to be answered in affirmative, and accordingly, the same stands answered.

To recapitulate, on the following grounds this Court is not inclined to interfere with the impugned Notification, dated 06.09.2017:-

Under the given factual and legal backdrop, this Court is of the view that the present batches of writ petitions are not maintainable. Accordingly, the same stands dismissed.

In terms of above, these writ petitions stand disposed of leaving the parties to bear their own costs.