Calcutta High Court (Appellete Side)
For The vs Monirujjaman Mullick on 12 March, 2012
Author: Indira Banerjee
Bench: Indira Banerjee
1 .
W.P. 21766 (W) 2011 Mr. Anjan Bhattacharyya, Mr. Asish Kumar Chowdhury, Ms. Aparna Basu Chowdhury.
..for the petitioner.
Mr. S. K.Seal.
..for the State.
Mr. Subir Sanyal, Ms. Susmita Sen.
..for the respondent no.4.
In this writ petition the petitioners have sought orders directing the Chairman, District Primary School Council, Birbhum, to consider the representation of the petitioners for appointment to the posts of Assistant Primary School Teachers in primary Schools in Birbhum district by condoning their age bar.
The prayers in the writ petition are apparently innocuous. The petitioners have merely sought an order directing the respondent authorities to consider the representation made by the petitioners being Annexure P-9 to the writ petition.
The representation is however for, inter alia, appointment to posts of Assistant Primary School Teachers. The question is whether any purpose would be served by consideration of the representation. Can the representations possibly be allowed?
The petitioners claim to have rendered service as instructors in various Non-formal Education Centers. According to the petitioners, they worked continuously without any break and to the fullest satisfaction of the authorities concerned for over five years.
It appears that some of the writ petitioners, namely, the petitioner nos.2, 3, 4, 5, 6, 13 and 18 belong to Scheduled Castes and/or Scheduled Tribes and/or other backward communities and hold certificates to that effect. So far as the other petitioners are concerned, it may be presumed that they are general category candidates.
The minimum educational qualification for appointment as Assistant Teacher of a Primary School is Madhyamik pass. It is thus, not necessary for this Court to look into the higher qualifications which some of the petitioners claim to possess. A candidate who has the requisite educational qualification and is otherwise eligible has a right to be considered for appointment in accordance 2 with law. Moreover, Rules make it absolutely clear, for removal of any doubts that, for selection of a teacher, no extra marks are to be given for higher academic qualifications.
Appointment of Assistant Primary Teachers of Primary Schools is governed by the West Bengal Primary School Teachers Recruitment Rules 2001, made in exercise of power conferred by Sub-section 1 and clause (k) of Sub-section 2 of Section 106, read with clause (k) of sub-section (1) of Section 60 of the West Bengal Primary Education Act, 1973, (hereinafter referred to as 1973 Act).
Rule 6 of the West Bengal Primary School Teachers Recruitment Rules 2001, hereinafter referred to as the 2001 Rules, provides that no person is to be appointed by the Council as a teacher unless;
i) he is a citizen of India,
ii) he has completed the age of 18 years and has not completed the age of 40 years on the 1st January of the year of publication of employment notification, and
iii) he has passed the School Final/Madhyamik examination, or the Higher Secondary Examination at the end of class-XI, as per the old Rules.
Candidates eligible for appointment as Assistant Primary School Teachers are not automatically appointed. There is a procedure for selection of candidates for appointment. There are certain norms for selection of candidates for appointment to posts of teachers from amongst the numerous candidates who might be sponsored and/or might apply pursuant to advertisements.
Rule 7 of the 2001 Rules provides for the constitution of a Selection Committee for the purpose of selection. Rule 8 provides for publication of employment notification. In addition to requisitioning candidates from the Employment Exchange, vacancies now have to be advertised in at least two leading daily News Papers, one in the local language and the other in English.
The Council is required to notify, for the convenience of candidates, all relevant particulars including the date, place and time for collection of application forms the manner of submission of application forms, including interalia the last dates categories of candidates for whom seats are reserved and the percentage of posts reserved for different categories of candidates, the eligibility criteria, the manner of payment of application fee and any other particulars that might be approved by the State Government.
Rule 9 of the 2001 Rules lays down the selection procedure for appointment of candidates. A category wise list of candidates is required to be prepared in descending order on the basis of the total marks scored by them in the Madhyamik examination. Thereafter a merit list of candidates to be called for the written 3 test is prepared in the ratio of 1:15 of the total number of vacancies that have to be filled up. The total marks for assessment of candidate is 50 of which 30 marks are allocated for the written examination, 17 marks for Aptitude test/interview and 3 marks for Extra Curricular activity. In awarding marks for extra curricular activity one mark is to be given for a certificate of the West Bengal Sports Association certifying that the candidate had represented the district in State Level games or sport; one mark is to be credited for "A" level certificate, and maximum of two marks for "B" and "C" level certificate, issued by the National Cadet Crops. If a candidate called for the written examination does not appear at the written examination or does not comply with the instructions issued by the concerned Primary School Council his candidature is liable to be cancelled by the Selection Committee. The marks obtained by a candidate in the aptitude test/interview are added to the marks awarded for academic results and the marks obtained in the written test and a category-wise list is prepared on the basis of merit, after which the marks obtained for extra curricular activities are added to the marks. Thereafter the final category- wise list is prepared on the basis of merit.
There can be no question of appointment of any candidates by-passing the procedure for selection as laid down in the 2001 Rules. There can also be no question of any absorption or appointment giving a total go-bye to the procedure of selection. For special exempted category candidates there can at best be some reservation, some relaxation of marks and some relaxation in age, if the Rules so provide.
On a perusal of the various provisions of the 2001 Rules it is clear that there is no power reserved to any authority to condone the age limit for appointment. It is not understood how this Court can direct the concerned respondents to consider the representation of the petitioners for giving them appointment to the post of Assistant Primary School Teacher in Primary Schools in Birbhum district by condoning the age bar when the candidates have neither applied nor participated in the selection process and when there is no power under the 2001 Rules to condone the age bar. Any order on the respondent Chairman District Primary School Council to consider the representation of the petitioners, which is for appointment to posts of Assistant School Teachers would be nothing but an exercise in futility, for the result of such representation could be anybody's case. The Chairman of the Primary School Council cannot concede to a request in contravention of the 2001 Rules.
In the case of State of West Bengal & Anr. Vs. Monirujjaman Mullick, reported in AIR 1996 S.C. 3466, cited by Mr. Sanyal, learned counsel appearing 4 on behalf of the respondent no.4, the Supreme Court held that a non formal education centre could not be equated with Primary Schools. As rightly submitted by Mr. Sanyal, that non formal educational centers cannot be equated with Primary Schools and Instructors who worked at non formal educational centers cannot claim the benefit of regularization as Assistant Primary School Teachers.
Even if non-formal educational centres can be equated with Primary Schools, it is doubtful whether regularization and/or absorption can be automatic. The concerned instructors would, at best, have the right to be considered for appointment in accordance with the rules, provided they were otherwise eligible. In other words they would have to compete with other applicants and succeed.
In the case of Malda District Primary School Council & Anr.Vs.Md. Faridur Rahaman & Ors. Reported in 2001 (1) Calcutta High Court Notes 204, cited by Mr. Sanyal, a Division Bench of this Court considered the 2001 Rules and held that when Rules provided that candidates up to the age of 40 years would be eligible, a candidate who had crossed the age of 40 years could not be eligible. There was no power to relax the age limit. If such candidates were employed or even permitted to appear in the interview that would be unauthorised. As held by the Division Bench, statutory law is binding. Rule of law imposes an obligation to adhere to statutory law. No Court can give a direction contrary to a statutory law.
In the case of Biman Chandra Karmakar & Ors. Vs. State of West Bengal & Ors., reported in 1998(1) CLJ 374, cited by Mr. Sanyal, another Division Bench of this Court held that this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, could not issue a direction upon the Statutory authority to ignore the mandatory provisions of a Statute/Statutory Rules.
Mr. Anjan Bhattacharyya, learned counsel appearing on behalf of the petitioner referred to two or three Single Bench Judgments of this Court all of which have been annexed to the writ petition. The first judgment/order which is th dated 14 October, 1999, was passed by Amitavha Lala, J in W.P.17776 (W) of 1999. Taking a sympathetic view of instructors of adult educational centers, who had become barred by age for being considered for direct recruitment, the Court observed that it would be necessary for the State Government to relax necessary age and qualification so as to enable them to apply and seek recruitment through the Public Service Commission. In the aforesaid case His Lordship merely directed the Employment Exchange to sponsor the names of the 5 concerned candidates. It was for the State to amend the Rules to provide for age relaxation if the State deemed it expedient to do so. This has not been done.
th The next order is an order dated 24 December, 2010 passed by Maharaj Sinha, J in WP No.18325 (W) of 2004. In the aforesaid order, which is an ex parte order, the Hon'ble Judge meticulously recorded the submission made on behalf of the writ petitioner that other instructors, similarly circumstanced as the writ petitioners, had been given appointment to posts of Assistant Teachers in Primary Schools in different areas. Having considered the aforesaid submission the Court directed the Chairman of the District Primary School Council to give appointment to the petitioner.
Be it noted that no one appeared on behalf of the respondents to controvert the submissions made on behalf of the petitioner. No affidavit-in- opposition was filed. The Court thus proceeded on the basis that the averments made in the writ petition were correct.
The third order relied upon by Mr. Bhattacharyya is an order dated 1st October, 2010 passed by the Hon'ble Justice Biswanath Somadder in WP No. 14522(W) of 2010 which is set out hereinbelow for convenience;
"Having heard the learned advocates for the parties and upon perusing the instant writ petition, it appears that the District Primary School Council, Murshidabad, has already forwarded the names of the writ petitioners to the office of the Director of Schools Education, Government of West Bengal.
In such facts and circumstances, the instant writ petition is disposed of with a direction upon the Director of School Education, Government of West Bengal, to take appropriate steps in the matter and grant approval in favour of the writ petitioners, in the event they conform to and fulfil all statutory requirements necessary for the purpose of securing their appointment. It is expected that the Director of School Education, Government of West Bengal, shall take a decision with regard to the matter, as expeditiously as possible, preferably within a period of four weeks, but not later than six weeks from date of communication of a photostat certified copy of this order. In the event the Director of School Education, Government of West Bengal, grants approval in favour of the writ petitioners, the Chairman of the concerned Council shall issue necessary appointment letters in favour of the writ petitioners within a week therefrom."
From the aforesaid order it appears that the writ petitioners were seeking approval of appointments already made. In any case, the Court only directed the Director of School Education to take steps in the matter and to grant approval on condition that they 6 fulfilled "all statutory requirements necessary for the purpose of securing their appointment". There was no direction to waive statutory conditions. Mr. Bhattacharyya submitted that the writ petitioners in W.P. 14522(W) of 2010 were instructors of adult educational center similarly circumstanced as the writ petitioners.
A judgment is a precedent for the question of law that is raised and decided. An order and/ or direction given in the particular facts of a case cannot operate as a binding precedent on subsequent benches. Judgments of the Supreme Court directing authorities to relax and/or to consider age relaxation, in the particular facts of the case, in the context of Rules, which provide for age relaxation can have no application. No judgments of the Supreme Court have however actually been cited.
All the three judgments relied upon by Mr. Bhattacharyya are judgments of a Single Bench where as the judgments in Malda District Primary School Council & Anr.Vs. Md. Faridur Rahaman & Ors. (Supra) and the judgment in Biman Chandra Karmakar & Ors. Vs. State of West Bengal & Ors., (supra) cited by Mr.Sanyal are Division Bench judgments. In Malda District Primary School Council& Anr. Vs. Md. Faridur Rahaman the 2001 Rules have been considered and interpreted. As a Single Bench I am bound by the judgment rendered by the Division Bench.
The writ petition, thus, fails and the same is dismissed. Urgent certified photostat copy of this order, if applied for, be supplied to the learned Advocates appearing for the parties subject to compliance with all requisite formalities.
(INDIRA BANERJEE,J.) 7