Page No.# 1/ vs The State Of Assam on 6 March, 2026

[Cites 2, Cited by 0]

Gauhati High Court

Page No.# 1/ vs The State Of Assam on 6 March, 2026

1. Heard Mr. R. Sarma, learned counsel for the appellant. Also heard Mr. A. Deka, learned counsel for the respondent no.9. Mr. N.J. Khataniar, learned counsel appears for the respondent nos. 1, 2, 4, 5 & 6.

2. The appellant has challenged the correctness of the judgment rendered by the learned Single Judge dated 08.05.2025 passed in WP(C) 142/2019, whereby Page No.# 3/11 the claim of the appellant to be appointed to the post of Post Graduate Teacher in the stream of Geography, vide Advertisement dated 24.02.2018, was rejected on the ground that the appellant had appeared against an unreserved category vacancy, while she herself was from a reserved category and had obtained Teacher Eligibility Test (TET) Certification on a relaxed percentage.

3. The learned counsel for the appellant submits that the learned Single Judge could not have applied the judgment of the Supreme Court in Government (NCT of Delhi) and Others vs. Pradeep Kumar and Others , reported in (2019) 10 SCC 120 in the facts of this case and should have instead applied the judgment of the Hon'ble Supreme Court in the case of Vikas Sankhala and Others vs. Vikas Kumar Agarwal & Others, reported in (2017) 1 SCC 350.

4. The learned counsel for the appellant submits that in view of the judgment of the Supreme Court in the case of Vikas Sankhala (supra), the candidature of the appellant could not have been rejected, as there was no extra benefit given to the appellant in view of 100% of the TET marks of the candidates being counted along with the marks obtained by the candidates in the selection process.

5. The learned counsel for the appellant submits that a reserved category applicant could always apply for a post earmarked for an unreserved category, as an unreserved category post is an open post where anybody could compete with one another. He submits that as the marks obtained by the candidates in Page No.# 4/11 TET examination, whether it be the general category candidate or a reserved category candidate, having been given weightage in the selection process, there was a level playing field for all the candidates and no extra benefit accrued to the reserved category candidates. The learned counsel for the appellant submits that though the appellant had secured 58 marks and 61 marks respectively in the two papers for TET examination, which works out to 59.5%, the respondent no.9 had secured 59 and 66 in the two papers for the TET examination, which works out to 62.5%. However, when 100% weightage has been given to the marks obtained by the candidates in TET examination, it cannot be said that the respondent no.9 was put to any dis-advantageous position, as the respondent no.9 had secured more marks than the appellant in the TET examination.

6. On the other hand, Mr. A. Deka, learned counsel for the respondent no.9 submits that when the post to be filled up is an unreserved category post, the appellant, who belongs to the reserved category, could not be allowed to compete for appointment to the unreserved category post, as the appellant had secured TET qualification on the basis of a relaxed percentage. When the TET qualification required unreserved category candidates to secure 60% marks, while reserved category candidates required 55% marks, and as the appellant had secured only 59.5% marks for the TET qualification, the TET qualification of the appellant could not be an eligibility criteria for participating in the selection process for an unreserved category post. In this regard, he has relied upon the judgment of the Supreme Court in the case of Pradeep Kumar and Others (supra).

7. We have heard the learned counsels for the parties.

Page No.# 5/11

8. The advertisement calling for filling up the post of Post Graduate Teacher for Geography from candidates who have TET qualification, provides that they should have the minimum educational qualification in MA & BA with 50% marks. Admittedly, the appellant and the respondent no.9 have got the said educational qualification. They both have the TET qualification also. However, the appellant had secured the same by way of the relaxed percentage of marks, being a reserved category candidate. The criteria for selection to the post of Post Graduate Teacher in terms of the advertisement was based on paragraph-5 of the Office Memorandum dated 14.07.2016, issued by the Government of Assam, Secondary Education Department. Paragraph 5(v) of the Office Memorandum dated 14.07.2016 provides that the criteria for selection of Post Graduate Teacher shall be "100 marks on percentage of marks in TET examination". As such, in terms of Paragraph 5(v) of the Office Memorandum dated 14.07.2016, the Selection Committee is to add the appellant's 59.5% TET marks to the overall marks of the appellant obtained in the selection process and 62.5% TET marks to the marks obtained by the respondent no.9.

9. In the case of Vikas Sankhala (supra), one of the issues to be decided was whether reserved category candidates, who secured better marks than general category candidates in the recruitment examination, could be denied migration to general seats, on the basis that they had availed relaxation while obtaining TET qualification. The Supreme Court held that passing of TET examination is a condition of eligibility for appointment of a teacher and a person who passes TET examination becomes eligible to participate in the selection process. It further held that when the merit list of successful Page No.# 6/11 candidates is prepared on the basis of marks obtained under different heads, where one of the heads pertains to the marks obtained during TET qualification which is to be assigned to the respective candidates along with the other marks secured in the selection process, the reserved category candidate would not be getting any advantage on considering his candidature for the said post. This would be due to the fact that the marks obtained by the candidates in TET had been added to the total marks scored by the candidates in the selection process, which ensured that a level playing field was maintained, whereby the marks obtained by a person in TET, whether he belonged to the general category or reserved category, was maintained. The Supreme Court further held that in the recruitment process where the marks secured in TET qualification was allocated to the overall marks in the selection process, no weightage or concession can be said to have been given to a reserved category candidate. Thus reserved category candidates who secured more marks than the marks obtained by the last candidate selected in the general category in the selection process, would be entitled to be considered against unreserved category vacancies. However, it would be subject to the condition that those reserved category candidates had not availed any other concession in terms of number of attempts etc. except on fee and age. Paragraph-80 & 81 of the judgment of the Supreme Court in Vikas Sankhala (supra) is reproduced hereinbelow, as follows :

"80. Having regard to the respective submissions noted above, first aspect that needs consideration is as to whether relaxation in TET pass marks would amount to concession in the recruitment process. The High Court has held to be so on the premise that Para 9(a) dealing with such relaxation in TET marks forms part of the document which relates to the recruitment procedure. It is difficult to accept this rationale or analogy. Passing of TET examination is a condition of eligibility for appointment as Page No.# 7/11 a teacher. It is a necessary qualification without which a candidate is not eligible to be considered for appointment. This was clearly mentioned in the Guidelines/Notification dated 11-2-2011. These Guidelines pertain to conducting of TET; basic features whereof have already been pointed out above. Even Para 9 which provides for concessions that can be given to certain reserved categories deals with "qualifying marks" that is to be obtained in TET examination. Thus, a person who passes TET examination becomes eligible to participate in the selection process as and when such selection process for filling up of the posts of primary teachers is to be undertaken by the State. On the other hand, when it comes to recruitment of teachers, the method for appointment of teachers is altogether different. Here, merit list of successful candidates is to be prepared on the basis of marks obtained under different heads. One of the heads is "marks in TET". So far as this head is concerned, 20% of the marks obtained in TET are to be assigned to each candidate. Therefore, those reserved category candidates who secured lesser marks in TET would naturally get less marks under this head. We would like to demonstrate it with an example : Suppose a reserved category candidate obtains 53 marks in TET, he is treated as having qualified TET. However, when he is considered for selection to the post of primary teacher, in respect of allocation of marks he will get 20% marks for TET. As against him, a general candidate who secures 70 marks in TET shall be awarded 14 marks in recruitment process. Thus, on the basis of TET marks reserved category candidate has not got any advantage while considering his candidature for the post. On the contrary, "level-playing field" is maintained whereby a person securing higher marks in TET, whether belonging to general category or reserved category, is allocated higher marks in respect of 20% of TET marks. Thus, in recruitment process no weightage or concession is given and allocation of 20% of TET marks is applied across the board. Therefore, the High Court is not correct in observing that concession was given in the recruitment process on the basis of relaxation in TET.

81. Once this vital differentiation is understood, it would lead to the Page No.# 8/11 conclusion that no concession becomes available to the reserved category candidate by giving relaxation in pass marks in TET insofar as recruitment process is concerned. It only enables them to compete with others by allowing them to participate in the selection process. In this backdrop, irrespective of the Circular dated 11-5-2011, the reserved category candidates who secured more marks than marks obtained by the last candidate selected in general category, would be entitled to be considered against unreserved category vacancies. However, it would be subject to the condition that these candidates have not availed any other concession in terms of number of attempts, etc., except on fee and age."

10. The next issue to be decided is whether the decision of the three Judges Bench of the Supreme Court in the case of Pradeep Kumar (supra) would apply and overrule the judgment of Vikas Sankhala (supra) in the facts of the present case.

11. On a bare perusal of the judgment in Pradeep Kumar (supra), it is quite apparent that the fact situation in Pradeep Kumar (supra) and Vikas Sankhala (supra) are different. Further, the 3 Judges Bench in Pradeep Kumar (supra) does not over-rule Vikas Sankhala (supra) as they operate in different fact situation. It should also be kept in mind that a decision is only an authority what it decides and a little difference in facts lessens the presidential value of a decision.

12. In the case of Pradeep Kumar (supra), Pradeep Kumar and others had obtained Central Teacher Eligibility Test (CTET) qualification under the relaxed pass norms for OBC candidates in States, other than Delhi. They offered their candidature for vacancies in Delhi and appeared in the recruitment test.

Page No.# 9/11 However, their candidature was held to be not eligible, on the ground that Pradeep Kumar was CTET qualified as OBC, but OBC outsider. The rejection of the candidature of Pradeep Kumar was due to the fact that the OBC Certificate issued to them was from outside Delhi and due to the above fact they were not recognized as OBCs in Delhi. Accordingly, they could not claim the eligibility qua the CTET with lower pass marks in the CTET examination. In the Delhi recruitment process, Pradeep Kumar and others did not possess OBC (Delhi) Certification and as such, could not be considered to be an OBC category candidate in terms of the guidelines/rules pertaining to the Delhi Government. Further, as per the CTET guidelines unreserved candidates were required to obtain 60% marks in CTET. As Pradeep Kumar had obtained less than 60% in CTET examination, his candidature could not be considered for OBC (Delhi) category.

13. The Supreme Court thus held that Pradeep Kumar and Others with their CTET qualification under the relaxed norms would be eligible for OBC category posts, provided their OBC status was certified and recognized by the Delhi Government. The same not being the case, they were ineligible to compete as reserved category candidates. To allow them to migrate and compete for the open category vacancies would not be permissible, simply because they secured CTET qualification with relaxed pass marks meant for those belonging to the OBC category, which OBC category was not recognised by the Delhi Government.

14. The Supreme Court in Pradeep Kumar (supra) also considered the ratio in Vikas Sankhala (supra) and held that the said decision had been arrived at Page No.# 10/11 due to the peculiar facts of the said case, where a different selection yardstick had been applied. It thus held that unlike the facts in Vikas Sankhala (supra), there was an express bar on migration to unreserved category vacancies for reserved category candidates, who had availed of relaxation including those for qualification for OBCs outside Delhi.

15. As we can see from the decision of the Supreme Court in Pradeep Kumar (supra), the facts therein were different from the facts in Vikas Sankhala (supra). As such, we are of the view that the decision in Pradeep Kumar (supra) is not applicable to the facts of the present case, which is akin with the facts of the case in Vikas Sankhala (supra). In Vikas Sankhala (supra), 20% of the marks of unreserved/reserved category candidates obtained during TET certification were to be counted in the selection process. In the present case, 100% of the marks obtained in the TET qualification examination were to be added to the overall marks of all the candidates. Thus, 59.5 marks would be added to the appellant's overall marks in the selection process, while 62.5 marks would be added to the overall marks of the respondent no.9. No advantage accrues to the appellant over and above the respondent no.9 due to the above. Thus, we find that the learned Single Judge had wrongly applied Pradeep Kumar (supra) to the facts of this case. The facts of the present case is squarely covered by the judgment rendered in Vikas Sankhala (supra), as the counting of TET marks in the selection process neutralised the benefits of eligibility given to reserved candidates.

16. In view of the above reasons, we do not agree with the decision of the learned Single Judge in the impugned judgment and order dated 08.05.2025, Page No.# 11/11 where it has held that the appellant cannot be allowed to migrate and compete for the unreserved category post, in terms of the judgment of the Supreme Court in the case of Pradeep Kumar (supra). The impugned judgment and order dated 08.05.2025 passed in WP(C) No.142/2019 is set aside. We also set aside the appointment of the respondent no.9 as Post Graduate Teacher in pursuance to the Advertisement dated 24.02.2018, as the appellant had secured more marks in the selection process than the respondent no.9.

17. The respondent authorities shall accordingly issue an appointment order to the appellant, within a period of 2 (two) weeks from the date of receipt of a certified copy of this order. Consequently, the Select List dated 28.12.2018 is set aside, in so far as it relates to the inclusion of the respondent no.9 as the selected candidate for the post of Post Graduate Teacher in Central Dharamtul M. Bora H.S. School. As the respondent no.9 has apparently been working for around 6 (six) years as Post Graduate Teacher as on date, the overage of the respondent no.9, if any, may be considered sympathetically, if the respondent no.9 applies for any other vacant post.

18. The writ appeal is accordingly allowed.

                                                JUDGE                       JUDGE




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