Calcutta High Court (Appellete Side)
Bibhash Karmakar vs Chairman on 16 September, 2011
Author: Harish Tandon
Bench: Harish Tandon
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Form No.J. (2)
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present :
THE HON'BLE JUSTICE HARISH TANDON
WP No. 3413 (W) of 2011
Bibhash Karmakar
Versus
Chairman, Kolkata Primary School Council & Ors.
For the petitioner : Mr. Bibhash Karmakar (in person)
For the Council : Mr. Tulsidas Maity
For the State : Mr. Ayan Banerjee
Heard on : 16.8.2011 & 1.9.2011
Judgment on : 16.9.2011
HARISH TANDON, J.:
The petitioner is appearing in person and has challenged the decision of the Chairman, Kolkata Primary School Council vide memo no. 842/PC dated 3.7.2010 in the instant writ petition.
The case adumbrated in this writ petition is that pursuant to an advertisement published on 30.8.2009 for recruitment of the primary teacher in the government sponsored/aided primary school for the district of Kolkata the petitioner collected the application form and brochure and submitted 2 the same on 25.10.2009. It is alleged by the petitioner that he was not called for the written test to be held on 4.7.2010.
The petitioner filed earlier writ petition being WP no. 843 of 2010 for an order to allow the petitioner to appear in the written test scheduled to be held on 4.7.2010. the said writ application was disposed of with a direction upon the authorities concerned to consider the case of the petitioner forthwith. By the impugned order the Chairman, Kolkata Primary School Council did not find the petitioner eligible to sit for the written test. The intra court appeal filed by the petitioner against the order dated 1.7.2010 was also dismissed and a special leave petition filed by the petitioner faced the same consequences but liberty was given to the petitioner to challenge the said decision dated 3.7.2010 which is impugned in this writ petition by filing the fresh writ petition.
Instead of challenging the said order in the Appellate Side the petitioner challenged the same in the Original Side by filing WP No. 1386 of 2010 which was dismissed on 7th December 2010 for want of jurisdiction. Hence the instant writ petition is filed.
The petitioner appearing in person contends that the authorities cannot fixed different cut- off marks in different vernacular medium under the same category i.e. scheduled caste/scheduled tribe. He contends that the authority has fixed the higher cut-off marks for Bengali medium whereas lower cut-off marks is fixed for Hindi, Urdu and Oria medium under the Scheduled Caste and Scheduled Tribe category. He strenuously submits that if a person belongs to a scheduled caste/scheduled tribe in his original state he should be treated at par with the scheduled caste/scheduled tribe of the other state and relies upon a Constitutional Bench judgment of the apex 3 court in case of Marri Chandra Shekhar RaoVs. Dean, Seth G.S. Medical College & Ors. reported in (1990) 3 SCC 130.
Mr. Ayan Banerjee, learned Advocate appearing for the state submits that the petitioner having applied for the said post cannot challenge the initial selection process after being found unsuccessful for written test.
Mr. Tulsidas Maity, learned Advocate appearing for the District Primary School Council submits that the petitioner applied for Bengali medium under the scheduled tribe category and could not obtain the minimum cut-off marks fixed therein and as such was not called for the written test. He further submits that the Primary School Council notifies the vacancies for the schools imparting the education in different medium i.e. vernacular language and such classification is rational and cannot be said to be arbitrary. He further submits that after having found unsuccessful for the written test the petitioner cannot assail the selection process after participation thereof.
Having considered the respective submissions, the only thrust which has been made by the petitioner is that there may not be a different cut-off marks in different medium under the same category. According to him, if the candidate belongs to a scheduled tribe category the cut-off marks should be fixed uniformly for all the medium and there cannot be a different cut-off marks.
The only point which is sought to be contended by the petitioner is that there cannot be a different cut-off marks for different medium of primary schools in respect of scheduled caste category as the same amounts to an unequal treatment amongst the equals. 4
Article 16 of the Constitution provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. All the candidates belonging to the scheduled caste/scheduled tribe were called by the District Primary School Council under such category but for the schools imparting education in different medium of language. It is inconceivable that a candidate who have acquired qualification from an educational institution imparting in a particular medium of language shall be allowed to teach in a school where the education is given in a different medium of language. In other words, if a candidate who have acquired educational qualification from a Benali medium school cannot be appointed to an Urdu medium school because of the difference in languages. Similarly a candidate who have educated himself from an Urdu medium school should not be appointed to an Oria medium school or a Bengal medium school.
Article 16 of the Constitution prohibits the hostile discrimination which does not include within itself to bring any classification within the same class provided the same is intelligible and rational.
Support can be derived from a seven-judge-Bench judgment of the Supreme Court in case of State of Kerala & Anr. Vs. N.M. Thomas & Ors. reported in (1976) 2 SCC 310, Justice A.N. Ray (His Lordship the then was) speaking for the majority held that the classification within the same class is not prohibited under Article 14 and Article 16 of the Constitution provided the same does not prohibit discrimination without reason in these words :
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"44. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of Backward Classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and tribes, who are said by this Court to be Backward Classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Article 15(4) and 16(4) bring out the position of Backward Classes to merit equality. Special provisions are made for the advancement of Backward Classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept equality is equality of opportunity for appointment. Preferential treatment for members of Backward Classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. Preferential representation for the Backward Classes in services with due regard to administrative efficiency is permissible object and Backward Classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality."
Even Justice Murtaza Fazle Ali (His Lordship the then was) in paragraph 180 while concurring that the classification within the same class is permissible laid down the parameters in following :
"180. Clause (1) of Article 16 clearly provides for equality of opportunity to all citizens in the services under the State. It is important to note that the Constitution uses the words "equality of opportunity for all citizens". This inherently implies that the opportunity must be given not only to a particular section of the society or a particular class of citizens who may be advanced or otherwise more affluent but to all classes of citizens. This, therefore, can be achieved by making a reasonable classification so that every class of citizens is duly represented in services which will enable equality of opportunity to all citizens. The classification, however, must be a reasonable one and must fulfil the following conditions:
(i) It must have a rational basis;
(ii) it must have a close nexus with the object sought to be achieved;
(iii) it should not select any person for hostile discrimination at the cost of others.
Now let us see whether Rule 13-AA can be justifiable under clause (1) of Article 16. Rule 13-AA of the Rules reads thus:
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"Notwithstanding anything contained in these rules, the Government may, by order, exempt for a specified period, any member or members, belonging to a Scheduled Caste or a Scheduled Tribe, and already in service, from passing the tests referred to in Rule 13 or Rule 13-A of the said Rules.
What the rule does is merely to authorise the Government to exempt for a specified period any member or members of the scheduled castes and scheduled tribes from passing the tests referred to in Rule 13 and Rule 13-A. It may be noticed that this rule does not at all give a complete licence. A lower division clerk who is a member of the scheduled caste or scheduled tribe could not be promoted without passing any test at all so as to destroy the concept of equality. It merely gives a special concession or a temporary relaxation to backward class of citizens in order to lift them, advance them and enable them to compete with the stronger sections of the society. Thus the basis of the rule is undoubtedly both rational and reasonable."
Thus by inviting an application from a candidate for the schools imparting education in different languages under the same category does not offends Article 14 and Article 16 of the Constitution.
Let me now consider the judgment cited by the petitioner.
In case of Marri Chandra Shekhar Rao (supra) the Supreme Court was considering the question whether rights granted to the scheduled castes or scheduled tribes in a state shall be carried and made applicable to another state upon migration or not. In the said report the father of the petitioner therein was issued a scheduled tribe certificate by the Tehishilder, Tenali, Andhra Pradesh and was appointed in a fertilizer corporation of India, a Public Sector Undertaking under the scheduled tribes quota. The father of the petitioner joined another company, Government of India Undertaking company under the said quota and was stationed in different state. The petitioner sought to avail the benefit of the resolution of the scheduled tribe in the migrated state. While answering the said question it is held in paragraph 13 :
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"13. * * * * * but when a scheduled caste or tribe migrates, there is no inhibition in migrating but when he migrates, he does not and cannot carry any special rights or privileges attributed to him or granted to him in the original state specified for that state or area or particular thereof. If that right is not given in the migrated state it does not interfere with his constitutional right of equality or of migration or of carrying on his trade, business or profession * * * * * *".
The Constitutional Bench while construing the provision of Article 341 and 342 of the Constitution felt that the legislature should consider the rights given to the scheduled castes and scheduled tribes in the matter of involuntary migration in these words :
"23. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribe in the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary (sic involuntary) transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration."
The said Constitutional Bench judgment is not a pointer to an issue involved in this writ petition and has no manner of applicability.
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The petitioner also cannot succeed on another point. Admittedly, on the basis of the said advertisement by which the Kolkata District Primary School Council invited the application from the eligible candidates under the scheduled caste/scheduled tribe category for the schools imparting education in different languages, the petitioner without any damour applied under the Bengali medium school and having found unsuccessful for the written test have challenged the said publication in this writ petition. After having participated in the selection process the petitioner is stopped from challenging that the advertisement inviting an application is not in terms of the statutory rules. The apex court in case of Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand reported in (2011) 1 SCC 150 held that after participation in a selection process, challenge to a recruitment process is not permissible in following words :
"24. When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction."
On this count as well, the petitioner cannot succeed.
Even on merit the Kolkata Primary School Council rejected the claim of the petitioner to appear in the written examination as the petitioner could not obtained the cut-off marks fixed for Bengali medium under scheduled caste.
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As indicated above, the writ petition is devoid of merit and is accordingly dismissed. There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J)