Calcutta High Court (Appellete Side)
Sarthak Ghosh & Ors vs The State Of West Bengal on 1 March, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 448 (W) of 2017
Sarthak Ghosh & Ors.
-Vs.-
The State of West Bengal
With
WP 24892(W) of 2016
CAN 953 of 2017
Debdulal Acharya & Ors.
-Vs.-
The State of West Bengal & Ors.
With
WP 27488 (W) of 2016
CAN 951 of 2017
Dinesh Das & Ors.
-Vs.-
The State of West Bengal
With
WP 3217 (W) of 2017
Sumanta Karan & Ors.
-Vs.-
The State of West Bengal & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioners : Mr. Saptangshu Basu, Sr. Adv.
(In WP 448 (W) of 2017) Mr. Kishore Dutta, Sr. Adv.
Mr. Anindya Bose, Adv.
(In WP 27488(W) of 2016) : Mr. Pratik Dhar, Sr. Adv.
Mr. S.P. Jana, Adv.
Mr. Debangshu Ghorai, Adv.
Mr. Ashim Kr. Neogi, Adv.
(In WP 24892 (W) of 2016) : Mr. Kishore Dutta, Sr. Adv.
Mr. Saktipada Jana, Adv.
(In WP 3217 (W) of 2017) : Mr. Saktipada Jana, Adv.
Mr. Ujani Pal (Samanta), Adv.
For the State Respondents : Mr. Rajendra Chaturvedi, Adv.
(In WP 448 (W) of 2017)
For the Board : Mr. L. K. Gupta, Sr. Adv.
Mr. Subir Sanyal, Adv.
Mr. Ratul Biswas, Adv.
For the respondent nos. 3 & 4 : Mr. Sagarmoy Ghosh, Adv.
Heard On : 16.01.2017, 03.02.2017, 06.02.2017, 07.02.2017
CAV On : 16.02.2017
Judgment On : 01.03.2017
Arijit Banerjee, J.:
(1) The short issue but with a wide implication and ramification that arises for determination in these writ petitions is whether the D. Ed. (Special Education) qualification should be treated as a valid training qualification for the purpose of the process of recruitment of teachers in Primary Schools in the State of West Bengal so as to entitle a candidate with such qualification to the appropriate percentage/proportion of the 15 marks allotted for training qualification in the Recruitment Rules. The petitioners have all passed their higher secondary examination. Some of them have also done graduation. The petitioners have all acquired the D. Ed. (Special Education) qualification from various institutes approved by the Rehabilitation Council of India which is a body constituted under the Rehabilitation Council of India Act, 1992. The grievance of the petitioners is that the West Bengal Board of Primary Education (in short the 'Board') is not treating the D. Ed. (Special Education) [in short the 'D. Ed. (SE)'] qualification as a valid training qualification in respect of the selection process initiated by the publication of the impugned advertisement dated 26 September, 2016. The D. Ed (SE) course trains the aspiring teachers to teach students with special needs. The petitioners contend that the D. Ed (SE) qualification entitles them to be considered as trained candidates.
(2) Appearing for the writ petitioners in WP 24892 (W) of 2016, Mr. Kishore Dutta, learned Senior Advocate, submitted that promoting inclusive education is the motto of the day. The National Council for Teacher Education (in short 'NCTE') and Rehabilitation Council of India (in short 'RCI') are working together to being the children with special needs to the mainstream by accommodating them in normal schools. He submitted that Art. 21A of the Constitution was brought in by the Constitution (Eighty-sixth amendment) Act, 2002 casting an obligation on the State to provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may determine by law. To achieve the said object, the Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 (in short 'RTE Act'). Learned Senior Counsel referred to Secs. 2, 3, 12, 23 and 29 of the RTE Act and also to Rules 5 and 11 of the RTE Rules, 2010, which I shall advert to later. He submitted that the State policy is that there should be no segregation of children with special needs or belonging to the financially weaker section of the society and the children without such physical or financial disability. The object is to promote integration.
(3) Mr. Dutta referred to a Memorandum of Understanding dated 19 January, 2005 entered into by and between NCTE and RCI, the preamble of which reads as follows:-
"India has already launched a Sarva Shiksha Abhiyan aimed at bringing all children to school and enabling them to complete elementary education by 2010. The objective is to ensure that every child of the country has had elementary education by 2010.
WHO and the United Nation General Assembly estimated that 10% of the children population has some physical, sensory or cognitive impairment which may interfere with the process of receiving education unless support services are provided. For the last many centuries or so this country has segregated these children in special schools which have been able to reach very small percentage of children with special needs."
(4) Mr. Dutta then referred to a notification dated 23 August, 2010 issued by the NCTE laying down the minimum qualifications for a person to be eligible for appointment as a teacher in Class I to VIII in a School referred to in Sec. 2(n) of the RTE Act. The relevant clauses of the said notification are as follows:-
"1. Minimum Qualifications.:-
(i) Classes I-V
(a) Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Elementary Education(by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2- year diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedures), Regulations, 2002.
OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor of Elementary Education (B. El. Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 2-years Diploma in Education (Special Education) AND
(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for the purpose.
(2) Diploma/Degree Course in Teacher Education.- For the purposes of this notification, a diploma/degree course in teacher education recognized by the National Council for Teacher Education (NCTE) only shall be considered. However, in case of diploma in Education (Special Education) and B. Ed.(Special Education), a course recognized by the Rehabilitation Council of India (RCI) only shall be considered.
(3) Training to be undergone.-A person-
(a) With BA/B.Sc. with at least 50% marks and B. Ed.
Qualification shall also be eligible for appointment for class I to V upto 1st January, 2012, provided he undergoes, after appointment, an NCTE recognized 6 month special programme in Elementary Education.
(b) With D. Ed. (Special Education) or B. Ed (Special Education) qualification shall undergo, after appointment, an NCTE recognized 6 months special programme in Elementary Education.
(4) Teacher appointed before the date of this Notification.- The following categories of teacher appointed for classes I to VIII prior to date of this Notification need not acquire the minimum qualifications specified in Para (1) above,:
(a) A teacher appointed on or after the 3rd September, 2001, i.e. the date on which the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time) came into force, in accordance with that Regulation.
Provided that a teacher of Class I to V possessing B. Ed.
Qualification, or a teacher possessing B. Ed. (Special Education) or D. Ed (Special Education) qualification shall undergo an NCTE recognized 6 - month special programme on elementary education.
(b)A teacher of class I to V with B. Ed. Qualification who has completed a 6-month Special Basic Teacher Course (Special BTC) approved by the NCTE;
(c) A teacher appointed before the 3rd September, 2001, in accordance with the prevalent Recruitment Rules."
(5) Mr. Dutta also referred to a notification dated 29 July, 2011 issued by the NCTE making certain amendments to the earlier notification. He also referred to the National Council for Teacher Education (Determination of minimum qualifications for persons to be recruited as Education Teachers and Physical Education Teachers in Pre-primary, Primary, Upper-primary, Secondary, Senior Secondary or Intermediate Schools or colleges) Regulations, 2014 framed by the NCTE and notified on 12 November, 2014. The said regulations, inter alia, provide that the qualifications for recruitment of teachers in any recognized school imparting Pre-primary, Primary, Upper-primary, Secondary, Senior Secondary or Intermediate education or Colleges imparting senior secondary education shall be as given in the first and second Schedule annexed to the Regulations. The first Schedule provides, inter alia, that for Primary and Upper-primary (Class I to VIII) the minimum qualification would be as laid down by NCTE vide its notification dated 23 August, 2010 as amended from time to time.
(6) Mr. Dutta then referred to another Memorandum of Understanding dated 8 April, 2015 entered into by and between NCTE and RCI, the preamble reads as follows:-
"Preamble As per RTE Act, 2009 it is the responsibility of the Government to ensure that each child, irrespective of its caste, creed, sex and location must get elementary education. The same applies to secondary education also. In order to achieve this objective, various schemes and programmes have also been launched by the Government of India. Inclusive Education is one of them to bring children with disabilities within the main stream of education. This effort is further supported by provisions of resource rooms, home-based education and special schools where besides teachers, special teachers/educators are also involved and appointed.
The RCI has been charged with the responsibility of standardizing the syllabi, regulating and monitoring the training of special teachers/educators who teach children with special needs arising out of disabilities. In fact, it is mandatory for these professionals and personnel to be registered with RCI. On the other hand, it is the responsibility of the NCTE to regulate and monitor the training of teachers to be appointed in schools and teacher educators to be appointed in Teacher Education institutions; and to determine the minimum qualifications of teachers under the RTE Act, 2009. To achieve the goal of inclusive education, it is necessary for RCI and NCTE to act in convergent manner within the purview of their statutory provisions."
The aims and objects of the said MOU provides, inter alia, undertaking research studies for promotion of inclusive education following universal design for learning wherever applicable. The terms of reference of the MOU provide, inter alia, that RCI and NCTE have jointly constituted a National Consultative Committee to evolve and review norms and standards for offering special education teacher preparation programmes with disability specific specialization and other related matters to teachers' service conditions.
(7) Learned Counsel then referred to a notification dated 24 July, 2012 whereby the West Bengal Primary School Teachers Recruitment Rules, 2001 were amended. In particular, learned Advocate drew my attention to the substituted Rule 6 pertaining to qualifications, the relevant portion whereof is extracted below:-
"6. Qualifications.- (1) No person shall be appointed by the Council as a teacher unless he is a citizen of India and has completed the age of 18 years and has not completed the age of 40 years on the first day of the January 1st, of the year of advertisement.
(2) The candidate shall possess the following minimum educational qualifications;-
(a) Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent with at least 50% marks and 2-year Diploma in Elementary Education (by whatever name known); or
(b) Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2002; or
(c) Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent with at least 50% marks and 4-year Bachelor of Elementary Education (B. El. Ed.); or
(d) Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent with at least 50% marks and 2-year Diploma in Education (Special Education); or
(e) Graduation and two year Diploma in Elementary Education (by whatever name known);
Note 1. A person with D. Ed (Special Education) or B. Ed.
(Special Education) qualification shall, after appointment, undergo six month special programme in Elementary Education recognized by the National Council for Teacher Education (NCTE).
Note 2. The persons having qualification of Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent with at least 50% marks or graduate (irrespective of marks obtained therein) or equivalent without 2 years Diploma in Elementary Education (by whatever name known) or 4-year Bachelor or Elementary Education (B. El. Ed.) or 2-year Diploma in Education (Special Education) shall also be eligible for appearing in the Teacher Eligibility Test (TET) to be conducted for appointment of primary school teachers in the State upto 31st March, 2014, subject to condition that those who are appointed without professional qualification shall acquire the professional qualification as specified in sub-Rule (2) of Rule 6 above within a period of two years from the year of appointment.
Note 3. Priority mentioned in sub-Rule (8) Rule 9, shall be given to the eligible candidates who possess the minimum qualifications as specified in sub-Rule (2) of Rule 6.
Note 4. For the purposes of this rule,-
(a) A diploma in teacher education recognized by the National Council for Teacher Education (NCTE) shall be considered;
(b) In case of Diploma in Education (Special Education) and B. Ed (special Education), a course recognized by the Rehabilitation Council of India (RCI) only shall be considered."
(8) Mr. Dutta then referred to the West Bengal Primary School Teachers Recruitment Rules, 2016. I shall come back to the said Rules later. (9) Learned Senior Counsel then referred to the advertisement for the Teacher Eligibility Test (TET) 2012 for appointment to the post of Assistant Teachers in Government sponsored/aided primary/junior basic schools under the District Primary School Councils in West Bengal. The academic qualification required as mentioned in a 'General Information' appended to the said advertisement included a candidate who had passed Higher Secondary under the West Bengal Council of Higher Secondary Education or its equivalent with at least 50% marks and Diploma in Education (Special Education). He then referred to the notification for TET 2014 which was ultimately held in October, 2015 and which the petitioners successfully cleared.
(10) Mr. Dutta then referred to the appointment notification for primary teachers dated 26 September, 2016 inviting online applications from TET 2014 qualified candidates of West Bengal seeking appointment in the posts of Assistant Teachers of a particular Council and stating that the selection and appointment of the candidates would be made in terms of the West Bengal Primary Teachers Recruitment Rules, 2016. One of the eligibility conditions was that a candidate would have to be Higher Secondary pass under the West Bengal Council of Higher Secondary Education or its equivalent with at least 50% marks and 2 years Diploma in Elementary Education (by whatever name known) in accordance with the National Council for Teacher Education (Recognition, Norms and Procedure).
(11) Mr. Dutta submitted that the Recruitment Rules of 2016 should not have been made applicable for recruitment of TET 2014 passed candidates since the selection process started prior to 2016 Rules coming into force, with the publication of notification for TET 2014 which was a part of the selection process. (12) The crux of the submission of Mr. Dutta was that in view of the prevalent policy of inclusive education, a candidate with D. Ed. (SE) qualification should be treated at par with other candidates having similar qualifications like Diploma in Elementary Education (in short D. El. Ed.) and all such candidates should be treated as trained candidates. No discrimination can be made against the candidates with D. Ed. (SE) qualification since such candidates with training to deal with children with special needs are required to be an inseparable part of the integrated educational system making no differentiation between children with special needs and more fortunate children without any such disability.
(13) Appearing for the petitioners in WP 27488(W) of 2016, Mr. Pratik Dhar, Learned Senior Counsel submitted that at the time when the West Bengal Primary Education Act, 1973 was legislated, the subject of education was in the State List. However, after the 42nd amendment of the Constitution, with effect from 3 January, 1977 education has been placed in the Concurrent List as item no. 25. Hence, thereafter, if there is an inconsistency or contradiction between a Central Legislation on education and a State Legislation on the same subject, the State Legislation, to the extent of such inconsistency or contradiction shall be void as provided in Article 254 of the Constitution. In essence, Mr. Dhar submitted that to the extent the West Bengal Primary Education Act, 1973 is inconsistent with the provisions of the RTE Act, the same will be void and provisions of the RTE Act will prevail. (14) Mr. Dhar then referred to Article 21A of the Constitution which came into effect on 1 April, 2010 and guaranteed a fundamental right to free education to all children between six and fourteen years of age irrespective of their being under any disability. He then referred to Article 51A(k) of the Constitution which came into effect on 1 April, 2010 and submitted that this provision was introduced into the Constitution as a logical corollary of Article 21A. The said Article provides that it shall be the fundamental duty of every citizen of India who is a parent or guardian to provide opportunities for education to his child, or, as the case may be, ward between the age of six and fourteen years.
(15) Mr. Dhar then referred to various sub-Sections of Section 2 of the RTE Act which define 'child', 'child belonging to disadvantaged group', 'child with disability', 'elementary education' and 'school'. He also referred to Sections 3 and 8 of the RTE Act. Section 3 provides for a right of a child to free and compulsory education. Section 8 stipulates the duties of the appropriate Government. Mr. Dhar submitted that the petitioners with training in special education must be treated at par with other candidates. Disabled class is not a separate class. The petitioners who are trained to teach disabled children can with equal efficiency teach children without any disability.
(16) Mr. Dhar also referred to the notification dated 23 August, 2010 issued by the NCTE and the notification dated 24 July, 2012 issued by the School Education Department of the Government of West Bengal which have been referred to above while noting the submission of Mr. Kishore Dutta.
(17) Learned Senior Counsel then referred to the West Bengal Primary School Teachers Recruitment Rules, 2016 and in particular to Rules 2(q), 2(r), 6 and 8(3) of the said Rules. He submitted that the NCTE has not specified 'special education' as a special category. According to him, on a proper understanding of Rule 2(q) which defines a trained candidate as one who has obtained Diploma in Elementary Education, the conclusion is inevitable that a candidate with D.Ed. (SE) must be considered to be a trained candidate.
(18) Mr. Dhar then referred to Rules 5-11 of the RTE Rules, 2010 which pertain to special training and admission of children belonging to weaker section and disadvantaged group respectively and submitted that these Rules have been framed to give effect to Article 21A of the Constitution and to the policy of inclusive education.
(19) Learned Senior Counsel then referred to the Agenda Items and Background Notes of the conference of the Education Ministers held on 6 June, 2011. In the said Notes it is clearly stated that persons with two year Diploma in Education (Special Education) and persons with Bachelors in Education (Special Education), recognized by the RCI are eligible for appointment as regular teachers in Class I-V and Class VI-VIII respectively. Inclusion of such persons has been made from the view point of addressing the need of realizing the vision of Inclusive Schools envisaged under the RTE Act.
(20) Mr. Dhar then referred to several decisions. First he relied on a decision of the Delhi High Court in the case of Social Jurist, A Civil Right Group-vs.-Govt. of NCT of Delhi, 2012 (132) DRJ 393. Learned Counsel relied on paragraphs 15 to 18 of the judgement which read as follows:-
"15. The RTE Act as amended in May, 2012 vests a child with "disability" as defined in the Disabilities Act or in the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Metal Retardation and Multiple Disabilities Act, 1999 with the same rights to pursue free and compulsory elementary education, which children without such disabilities have. Even prior to the said amendment, the Delhi School Education (Free seats for Students belonging to Economically Weaker Sections and Disadvantaged Group) order 2011 had included a child with special needs and suffering from disability, as defined in the Disability Act, in the definition of child belonging to disadvantaged group. Though the need for Special Educators in the schools as aforesaid stands admitted but we are also of the view that just like the Government/Municipal and Cantonment Board schools have been directed to have Special Educators irrespective of whether any children with disability are admitted therein or not, recognized unaided private schools as well as aided schools are also required to employ minimum of two Special Educators in each school and appointment of such Special Educators cannot be made dependent on admission of children needing Special Educators. Similarly, each of such schools has to have provision for special aids for such children and is required to provide a barrier free movement. Absence today of any such children in the school cannot be an excuse for not providing such facilities.
16. The counsel for the Action Committee has next contended that the schools be permitted to, if they so desire, have their existing teachers/staff trained as Special Educators instead of being required to engage new staff. We find merit in the said plea. If the existing staff/teachers in the school are surplus and/or the student strength or the student-teacher ratio of the school so permits, the schools can have their existing staff trained to teach children with disability, instead of engaging separate Special Educators. However, this would be subject to as aforesaid existing staff being surplus and being in a position to devote time with children with special needs.
17. We find merit in the contention of the counsel for the GNCTD that the deployment of Special Educators cannot be deferred till the admission of children with special needs and the schools have to be in a state of readiness and preparedness to receive children with special needs.
18. Reference at this stage may be made to the National Policy for Persons with Disabilities of the year 2006 of the Government of India. With respect to education for persons with disabilities the said Policy inter alia states:-
"II. B. Education for Persons with Disabilities.
20. Education is the most effective vehicle of social and economic empowerment. In keeping with the spirit of the Article 21A of the constitution guaranteeing education as a fundamental right and Section 26 of the Persons with Disabilities Act, 1995, free and compulsory education has to be provided to all children with disabilities up to the minimum age of 18 years. According to the Census, 2001, fifty-one percent persons with disabilities are illiterate. This is a very large percentage. There is a need for mainstreaming of the persons with disabilities in the general education system through Inclusive education.
24. There will be concerted effort on the part of the government to improve identification of children with disabilities through regular surveys, their enrolment in appropriate schools and their continuation till they successfully complete their education. The Government will endeavour to provide right kind of learning material and books to be children with disabilities, suitably trained and sensitized teachers and schools which were accessible and disabled friendly."
With respect to children with disabilities the Police inter alia provides:-
"IV. Children with Disabilities.
32. Children with disabilities are the most vulnerable group and need special attention. The Government would strive to:- a. Ensure right to care, protection and security for children with disabilities; b. Ensure the right to development with dignity and equality creating an enabling environment where children can exercise their rights, enjoy equal opportunities and full participation in accordance with various statutes. c. Ensure Inclusion and effective access to education, health, vocational training along with specialized rehabilitation services to children with disabilities.
d. Ensure the right to development as well as recognition f special needs and of care, and protection of children with severe disabilities. V. Barrier-free environment
33. Barrier-free environment enables people with disabilities to move about safely and freely, and use the facilities within the built environment. The goal of barrier free design is to provide an environment that supports the independent functioning of individuals so they can participate without assistance, in everyday activities.
Therefore, to the maximum extent possible, buildings/places/transportation system for public use will be made barrier free."
The policy sets a goal of providing access to appropriate pre-school, primary and secondary level education to every child with disability by the year 2020 and emphasizes on an inclusive education system i.e. education of children with disability along with children without disability, as far as possible."
(21) Learned Counsel then referred to a Constitution Bench decision of the Hon'ble Apex Court in the case of M. Karunanidhi-vs.-Union of India, (1979) 3 SCC 431. In paragraph 7 of the reported judgment, the Hon'ble Apex Court explained the true purport and effect of Article 254 of the Constitution. He submitted that there is an apparent conflict between the substituted Rule 6 of the West Bengal Primary School Teachers Recruitment Rules, 2001 and the 2016 Recruitment Rules inasmuch as Rule 2(q) of the 2016 Rules does not refer to 'special education'. (22) Mr. Dhar referred to a notification dated 23 September, 2016 issued by the West Bengal Central School Service Commission pertaining to recruitment of Assistant Teachers (Upper-primary level). He pointed out that in the said notification the eligibility criteria as regards educational qualification includes B.Ed. (Special Education) as also D. Ed. (Special Education) acquired after following a course recognized by the RCI (page 307 at 311 of WP 27488 (W) of 2016). (23) Learned Senior Counsel then referred to the following decisions:-
(i) Virendra Krishna Mishra-vs.-Union of India, (2015) 2 SCC 712, para 24.
In this decision the Hon'ble Apex Court explains the true effect of Article 14 of the Constitution and also what amounts to reasonable classification for the purpose of legislation.
(ii) Maharashtra State Road Transport Corporation-vs.-Rajendra Bhimrao Mandve, (2001) 10 SCC 51, para 5. Learned Counsel relied on the observation of Hon'ble Apex Court to the effect that the rules of the game, i.e. the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of the selection is commenced.
(iii) Tej Prakash Pathak-vs.-Rajasthan High Court, (2013) 4 SCC 540. In paragraph 10 of the judgment the Hon'ble Apex Court observed as follows:-
"10. Under the Scheme of our Constitution an absolute and non- negotiable prohibition against retrospective law making is made only with reference to the creation of crimes. Any other legal right or obligation could be created, altered, extinguished retrospectively by the sovereign law making bodies. However such drastic power is required to be exercised in a manner that it does not conflict with any other constitutionally guaranteed rights, such as, Articles 14 and 16 etc. Changing the 'rules of game' either midstream or after the game is played is an aspect of retrospective law making power."
(iv) Asoke Sawoo-vs.-The State of West Bengal, (2012) 3 CLJ 482 (DB). Learned Counsel relied on the observation of the Hon'ble Division Bench of this Court at paragraph 50 of the reported judgment to the effect that the selection process should be initiated and completed under the Rules which were in force when the vacancy in question arose.
(24) Mr. Saptangshu Basu, Learned Senior Counsel appearing for the petitioners in WP 448(W) of 2017, submitted that even assuming that the 2016 Recruitment Rules apply, the petitioners have undergone training as specified by NCTE and as such are entitled to the benefit of the proportion of the 15 marks as per Rule 8 of the 2016 Rules. He submitted that the petitioners must be treated as trained candidates. In this connection Mr. Basu heavily relied on a Division Bench judgment of the Allahabad High Court dated 5 February, 2015 in Special Appeal No. 130 of 2014 (Harsh Kumar-vs.-State of U.P.) and Special Appeal No. 131 of 2014 (Devendra Narayan Pandey-vs.-State of U.P.) and in particular paragraphs 2, 4 and 13 of the said judgment which read as follows:
"2. The appellants claim that all of them have acquired the qualification of a Diploma in Education (Special Education) (DEd) and have successfully cleared the Teachers Eligibility Test (TET) and are eligible for appointment to the post of Assistant Teachers in primary schools. On 15 October 2013, the State Government issued a Government Order in regard to the selection/appointment of Assistant Teachers in the Primary Schools run by the Basic Shiksha Parishad as part of a special drive for the recruitment of ten thousand teachers.
The minimum educational qualifications prescribed in the Government Order for the appointment of Assistant Teachers in Primary Schools, are:
(i) A Bachelor's Degree from a University established by law in India;
(ii) A two years BTC Training or a two years BTC Training (Urdu) or a Special BTC Training; and
(iii) The passing of any Teacher Eligibility Test to be conducted by the State Government or by the Central Government.
4. The contention of the appellants was that in view of notifications that were issued by the National Council for Teacher Education (NCTE) on 23 August 2010 and 29 July 2011, the minimum qualifications have been prescribed by the NCTE for appointment of Assistant Teachers in primary schools for Classes I to V. Consequently, it was submitted that in view of the notifications which have been issued by the NCTE under the legislation enacted by Parliament, the qualifications, as prescribed therein must prevail and, hence, it was not open to the State Government to exclude persons, such as the appellants who hold the Diploma in Education (Special Education), which is otherwise recognized as an eligible qualification for appointment as Assistant Teachers in primary schools for teaching Classes I to V. In this regard, reliance was placed on a judgment of a Full Bench of this Court in Shiv Kumar Sharma Vs. State of U.P. & Ors.1, in which it was held that the notification dated 23 August 2010 of the NCTE would have an overriding effect and could not have been ignored.
13. In this view of the matter, we are of the opinion that the learned Single Judge was in error in coming to the conclusion that since the recruitment was in pursuance of a special drive, the Government was justified in confining the eligibility qualifications only to those who held the BTC qualifications for the reason that such candidates could not be adjusted earlier for want of TET qualification. The passing of the TET was introduced as a mandatory requirement by the notification dated 23 August 2010 issued by the NCTE. Persons who did not fulfill the eligibility conditions prescribed in the notification dated 23 August 2010, as amended on 29 July 2011, were not qualified for consideration for appointment as primary school teachers. Hence, there was no occasion for the State to contend or for that matter the learned Single Judge to accept the submission that in order to adjust such BTC qualified candidates, the present advertisement had been issued. The learned Single Judge held that the appellants could not claim equivalence with those candidates who possess BTC qualification. This, in our view, begs the question because once the Diploma in Education (Special Education) is held to be a qualification which is recognized for appointment of Assistant Teachers for teaching Classes I to V, it would be impermissible for the State Government to exclude them from being considered for appointment. In a special drive or otherwise, it is not open to the State Government to exclude one class of teachers who fulfill the qualifications for eligibility prescribed by the NCTE. Any such action would be impermissible for the simple reason that the exclusive power to prescribe eligibility qualifications for such teachers is vested in the NCTE. Once the NCTE has spoken on the subject, as it has through its notification, those qualifications must govern the eligibility requirement. Jurisdiction and power of the NCTE to do so is now settled beyond any doubt, as noted by the Supreme Court." (25) Mr. L. K. Gupta, Learned Senior Advocate appeared for the West Bengal Board of Primary Education (in short 'the Board'). He referred to the notification dated 23 August, 2010 and submitted that it is not the case of the Board that the candidates with Diploma in Special Education do not come within the zone of consideration. However, such candidates cannot be treated at par with candidates with Diploma in Elementary Education.
(26) He submitted that under the NCTE Guidelines only trained candidates can be appointed as primary school teachers excepting where relaxation is granted. Such period of relaxation is over and hence, untrained candidates cannot be appointed any more.
(27) Mr. Gupta referred to paragraph 3 of the notification dated 29 July, 2011 whereby the notification dated 23 August, 2010 was amended. Para III of the amendment notification provides as follows:-
"(iii) For para 3 of the Principal Notification the following shall be substituted, namely:-
(i) Training to be undergone.- A person -
(a) With Graduation with at least 50% marks and B. Ed.
Qualification or with at least 45% marks and 1 year Bachelor in Education (B. Ed.) in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard shall also be eligible for appointment to Class I to V up to 1st January, 2012, provided he/she undergoes, after appointment, an NCTE recognized 6 month Special Programme in Elementary Education;
(b) With D. Ed. (Special Education) or B. Ed. (Special Education) qualification shall undergo, after appointment an NCTE recognized 6 month Special Programme in Elementary Education."
He submitted that after 1st January, 2012 candidates without training as prescribed by the NCTE are not eligible for appointment. (28) Mr. Gupta drew my attention to pages 125 and 138 of WP No. 24892(W) of 2016 and submitted that Diploma for Special Education is granted by the institutes in respect of particular types of disabilities, e.g. physical impairment, hearing handicapped etc. There is no legal mandate that the schools must employ teachers with special training irrespective of their requirement. It would be highly improper to burden a school with a teacher specially trained to teach students with a particular kind of disability even if the school does not have any such student with special needs.
(29) Learned Senior Counsel laid great emphasis on the fact that the NCTE by its notification dated 23 August, 2010 as amended by the notification dated 29 July, 2011 has clearly distinguished between a candidate with Diploma in Elementary Education and a candidate with Diploma in Education (Special Education). That is why, according to Mr. Gupta, the NCTE has stipulated that a person with D. Ed. (Special Education) or B. Ed. (Special Education) qualification shall undergo, after appointment, a NCTE recognized six months special programme in elementary education. Since the NCTE itself differentiates between the two classes of candidates, the Board cannot treat them at par. He submitted that candidates with Diploma in Special Education do not have training in Elementary Education and hence are not in the same position as candidates with Diploma in Elementary Education.
(30) Mr. Gupta then referred to Sec. 2(i) of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short 'The Persons with Disabilities Act), which enumerates different types of disabilities. He reiterated that a Diploma in Special Education is awarded with respect to any one particular type of disability. Appointment of such candidates is need-based as otherwise a teacher with Diploma in Special Education shall remain idle if the school concerned does not have students with such special needs. (31) With reference to the procedure of selection as laid down in paragraph 8 of the West Bengal Primary School Teachers Recruitment Rules, 2016, Mr. Gupta submitted that 15 marks is allotted for candidates with training as specified by NCTE. Diploma in Special Education is not such a training and hence, candidates with Diploma in Special Education are not entitled to the benefit of the reduced proportion of the aforesaid 15 marks since they are not at par or equal with the fully trained candidates.
(32) Learned Senior Counsel then referred to Section 26 of The Persons with Disabilities Act, 1995 which encapsulates the concept of integration of students. He submitted that the present recruitment process is for appointment of teachers in normal schools and no school intends to appoint teachers with Diploma in Special Education.
(33) In response to the argument advances on behalf of the petitioners that rules of the game have been changed after the game started and the 2016 Recruitment Rules cannot be made applicable to the petitioners, Mr. Gupta submitted that the process of selection starts with the public advertisement inviting applications for the vacant posts. In the present case, the 2016 Rules came into force on 2 March, 2016. The appointment notification for primary teachers was published on 26 September, 2016. Thus, with the publication of the said notification the selection process commenced and the said notification clearly specified that the recruitment will be in accordance with the 2016 Recruitment Rules. In support of his submission that the process of selection starts with the publication of the advertisement inviting applications, learned Senior Counsel relied on the Apex Court decision in the case of A. P. Public Service Commission, Hyderabad-vs.-B. Sarat Chandra, (1990) 2 SCC 669 para
7. (34) In reply, Mr. Dhar, Learned Senior Counsel reiterated that the NCTE does not differentiate between the candidates with Diploma in Elementary Education and those with Diploma in Special Education. He submitted that the Government Notification dated 13 August, 2012 whereby the Recruitment Rules of 2001 were amended. As per the amended provision, a candidate with Diploma in Special Education was eligible for appointment, although, he was required to undergo, after appointment, six months special programme in Elementary Education recognized by the NCTE. He submitted that the 2016 Recruitment Rules cannot be interpreted in a contrary manner as that would imply taking of a backward step by the State rather than going forward with the passage of time. He submitted that not having Diploma in Elementary Education does not necessarily mean that the concerned candidate is untrained. He further submitted that the stand of the Board shall defeat the true intent and spirit of Sec. 8(c) of the RTE Act which provides that the appropriate Government shall ensure that a child belonging to weaker section or to the disadvantaged group are not discriminated against and not prevented from pursuing and completing elementary education on any ground. He submitted that the object of the RTE Act is that every school shall be for every child and hence for every teacher. This is the essence of inclusive education. He further submitted that the course for Diploma in Special Education is more elaborate and exhaustive and a candidate with such a diploma is in no way inferior to a candidate with Diploma in Elementary Education.
Court's View:-
(35) I have given anxious consideration to the submissions made on behalf of the parties. As regards whether the Recruitment Rules of 2016 should apply or the Recruitment Rules of 2001 (as amended by the notification dated 23 July, 2012) should apply, I am in complete agreement with Mr. Gupta that the 2016 Rules will apply. Although by issuing the appointment notification for primary teachers dated 26 September, 2016, the Board invited applications from TET 2014 qualified candidates, that does not mean that the ongoing recruitment/selection process commenced in 2014. TET is an examination which a candidate must clear successfully in order to enter the zone of consideration. In other words, to become eligible for participating in the selection process, a candidate must have passed the TET. It is a sine qua non for appointment as a primary school teacher. The TET is not conducted with reference to any particular recruitment process. Qualifying in the TET also does not give a candidate any right to be appointed as a primary school teacher. By no stretch of imagination it can be said that the present recruitment process commenced with the publication of notification pertaining to TET 2014.
(36) In my considered view, the present recruitment process started with the publication of the appointment notification dated 26 September, 2016. In the case of A.P. Public Service Commission (supra), the Hon'ble Court observed that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. It consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Thus, in the present case, selection process began on 26 September, 2016. By that time, the 2016 recruitment rules had come into force. Hence, I have no doubt in my mind that the 2016 Recruitment Rules would also apply to the petitioners although they might have successfully cleared TET 2014. Hence, I am unable to accept the submission made on behalf of the petitioners that the rules of the game were changed after the game started or concluded.
(37) Now, let me come to the crux of the matter. Would the petitioners be entitled to the benefit of the appropriate proportion of 15 marks allotted for candidates having training as specified by the NCTE?
(38) The NCTE is a statutory body which has been given the power and duty to ensure, inter alia, that the teachers appointed in the schools, both primary and higher secondary, across the country, have a minimum level of qualification. This is of utmost importance as otherwise the education of the students would suffer. Section 23 of the RTE Act provides that any person possessing such minimum qualifications, as laid down by an academic authority, authorized by the Central Government, by notification, shall be eligible for appointment as a teacher. The Central Government has by notification authorized the NCTE to be such academic authority. In pursuance of power conferred by Section 23(1) of the RTE Act notification no. S.O. 750 (E) dated 21 March, 2010 issued by the Department of School Education and Literacy, Ministry of Human Resources Development, Government of India, the NCTE issued a notification dated 23 August, 2010 laying down the minimum qualifications for a person to be eligible for appointment as a teacher in Classes I- VIII in a school referred to in Sec. 2(n) of the RTE Act. The relevant portion of the said notification has been extracted above while noting the argument of Mr. Kishore Dutta. As per the said notification a person with at least 50% marks in Senior Secondary examination (or its equivalent) and two years Diploma in Education (Special Education) and who has passed in the TET conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for that purpose, was eligible for appointment as a teacher in Classes I-V in a school referred to in Section 2(n) of the RTE Act. This notification was amended by a notification dated 29 July, 2011 but the eligibility of a person with the credentials mentioned in the previous sentence remained unaffected. In 2012, the Government of West Bengal issued a notification dated 24 July, 2012 amending the West Bengal Primary School Teachers Recruitment Rules, 2001. Rule 6 of the 2001 Rules as amended, in so far as the same is relevant for the present purpose, has been extracted above. It provided, inter alia, that a candidate who is Higher Secondary passed under the West Bengal Primary Council of Higher Secondary Education or its equivalent with at least 50% marks and two years Diploma in Education (Special Education) shall be eligible for appointment. However, in tune with the NCTE notification dated 23 August, 2010 as amended by the notification dated 29 July, 2011, the amended Rule 6 provided that a person with D. Ed. (Special Education) or B. Ed. (Special Education) qualification shall, after appointment, undergo six months special programme in elementary education recognized by the NCTE. Rule 9 of the 2001 Rules as amended which pertained to 'procedure of selection', in Table A provided for a maximum of 20 marks for training as prescribed in Rule 6(2). On 25 May, 2015 the Board issued a notification for TET for Classes I-V to be conducted as per the NCTE guidelines. This was in fact the TET 2014 which got delayed for reasons which are not necessary to discuss here.
(39) By a notification dated 2 March, 2016, the West Bengal Primary School Teachers Recruitment Rules, 2016 were brought into force by the State Government. Rule 2(q) of the said Rules defines 'trained candidate' as a candidate who has obtained Diploma in Elementary Education. Rule 2(r) of the said Rules defines 'training' as two years Diploma in Elementary Education (by whatever name known) from an institute recognized by the NCTE. Rule 8(3) of the said Rules provides as follows:-
"8. (3) Academic qualifications, training, performance in the TET, Extra Curricular activities and performance in viva-voce or interview and Aptitude test, shall be computed in the manner as mentioned in Table A Below:
Table A Sl. Item for Evaluation Maximum No. Marks (i) Madhyamik pass under the West Bengal 05 Board of Secondary Education or its equivalent (ii) Higher Secondary pass under the West 10 Bengal Council of Higher Secondary Education or its equivalent (iii) Training as specified by NCTE 15 (iv) Teacher Eligibility Test (TET) 05 (v) Extra Curricular Activity 05 (vi) Viva voce or Interview 05 (vii) Aptitude Test 05 Total 50 (40) It is thus clear that NCTE is the authority which has the final say as regards specifying the minimum qualification for candidates who aspire to be school teachers and the State Government also amended the 2001 Recruitment Rules and has brought into force to 2016 Rules in tune with the NCTE Guidelines. Rule 8(3) of the 2016 Rules provided that a candidate having training as specified by NCTE would get the benefit of the reduced proportion of 15 marks for such training. Learned Counsel for the respondents vociferously argued that a Diploma in Special Education is not a training as specified by NCTE. This is because a candidate with Diploma in Special Education even under the NCTE Guidelines, would be required to undergo a six months special programme in elementary education after appointment. I am unable to agree with this contention of Mr. Gupta, Learned Senior Counsel for the respondents. If a Diploma in Special Education was not a training as specified/recognized by NCTE, a candidate with such diploma would not be made eligible for appointment as a school teacher. The submission that post-appointment such a candidate will have to undergo a six months course in elementary education does not, in my opinion, detract from the fact that the NCTE recognizes a Diploma in Special Education as a training which makes a candidate eligible for appointment. In my considered view, the petitioners possess training qualification specified by NCTE. As such, they are entitled to the benefit of the appropriate proportion of the 15 marks allocated in Table A of Rule 8(3) of the 2016 Rules.
(41) The conclusion that I have reached is, in my opinion, also warranted by Article 21A of the Constitution read with the general scheme of the RTE Act. Article 21A enshrines the right of all children of the age of six to fourteen years to receive free and compulsory education from the State. This is a fundamental right. Correspondingly, there is an obligation on the State flowing from this constitutional mandate to provide free and compulsory education to all children aged between six and fourteen years. The important words in Article 21A are all children. (emphasis is mine). The word 'all' admits of no exception. Article 21A does not differentiate between different classes of children of the specified age. It makes no difference between children belonging to different economic strata of the society or between children with special needs and the more fortunate children without such special needs. The importance of education for a child cannot be overstated. Without basic education a child is very unlikely to become aware of his rights, duties and obligations and without such awareness a child is unlikely to blossom into mature, well-meaning, and responsible citizen of the country.
(42) To give effect to the intent and spirit of Article 21A of the Constitution, the Parliament promulgated the RTE Act. This is clear from the statements of objects and reasons of such enactment. Section 2(c) of the RTE Act defines a 'child' as a male or female child of the age of six to fourteen years. Section 2(d) defines 'child belonging to disadvantaged group' as a child with disability or a child belonging to the Schedule Caste, Schedule Tribe, the social and educationally backward or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification. Section 2(e) defines child 'belonging to weaker section' as a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification. As per Section 2(ee) of the Act, 'child' with disability' includes a child with disability as defined in Section 2(i) of the Persons with Disabilities Act, 1995; a child, being a person with disability as defined in Section 2(j) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 and a child with 'severe disability' as defined in Section 2(o) of the aforesaid 1999 Act. Section 2(f) defines elementary education as education from the first class to the eighth class. Section 3 of the Act provides that every child including a child belonging to disadvantaged group or the weaker section shall have the right to free and compulsory education in a neighbourhood school till the completion of his/her elementary education and for that purpose no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education. Section 3(3) of the Act provides as follows:-
"S. 3(3) A child with disability referred to in sub-Clause (A) of Clause(ee) of Section 2 shall, without prejudice to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full participation) Act, 1995, (1 of 1996) and a child referred to in sub clauses (B) and (C) of clause (ee) of Section 2, have the same rights to pursue free and compulsory elementary education which children with disabilities have under the provisions of Chapter V of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995:
Provided that a child with 'multiple disabilities' referred to in clause
(h) and a child with 'severe disability' referred to I clause (o) of Section 2 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (44 of 1999) may also have the right to opt for home based education."
(43) Section 6 of the Act imposes a duty on the appropriate Government and local authority to establish schools. Section 7 provides that the Central Government and the State Government shall have concurrent responsibility for providing funds for carrying out the provisions of the Act. Sections 8 and 9 enumerate the duties of the appropriate Government and the local authority which include the duty to provide free and compulsory elementary education to every child. Section 10 of the Act imposes a duty on every parent or guardian to admit or cause to be admitted his or her child or ward to elementary education in the neighbourhood school. (44) Section 2(n) defines school as follows:-
"S. 2(n) 'school' means any recognized school imparting elementary education includes-
(i) A school established, owned or controlled by the appropriate Government or a local authority;
(ii) An aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;
(iii) A school belonging to specified category; and
(iv) An unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;"
Section 12 of the Act lays down the extent of a school's responsibility for free and compulsory education. Section 12(1)(c) provides that the schools specified in sub-clauses (iii) and (iv) of Section 2(n) shall admit in Class I to the extent of at least 25 per cent of the strength of that class, child belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion.
(45) Section 31 of the RTE Act inter alia provides that the National Commission for Protection of Child Rights, constituted under Section 3 or as the case may be, the State Commission for Protection of Child Rights constituted under Section 17 of the Commissions for Protection of Child Rights Act, 2005, shall, in addition to the functions assigned to them under that Act, also examine and review the safeguards for rights provided by or under the RTE Act and recommend the measures for their effective implementation and will enquire into complaints relating to child's right to free and compulsory education. Sections 33 and 34 of the Act provide for Constitution of a National Advisory Council and State Advisory Councils to advise the appropriate Government on implementation of the provisions of the Act in an effective manner.
(46) It is evident from the scheme of the RTE Act that one of its objects is to promote the concept of inclusive education. As I understand, this means encouraging integration of children for the purpose of imparting education irrespective of the economic background or the solvency of the families of the children and irrespective of whether a child is under a disability, physical or mental. Disability is defined in Section 2(i) of the Persons with Disabilities Act, 1995, which reads as follows:-
"S. 2(i) 'disability' means-
(i) Blindness;
(ii) Low vision;
(iii) Leprosy-cured;
(iv) Hearing impairment'
(v) Locomotor disability;
(vi) Mental retardation;
(vii) Mental illness;"
Section 2(b) of the Act defines blindness. Section 2(n) defines leprosy cured person. Section 2(l) defines hearing impairment. Section 2(o) defines locomotor disability. Sections 2(q) and 2(r) define mental illness and mental retardation. The said sub-Sections read as follows:-
"S. 2(b) 'blindness' refers to a condition where a person suffers from any of the following conditions, namely:-
(i) Total absence of sight; or
(ii) Visual acuity not exceeding 6/20 or 20/200 (Snellen) in the better eye with correcting lenses; or
(iii) Limitation of the field of vision subtending an angle or 20 degree or worse;
2 (n). 'leprosy cured person' means any person who has been cured of leprosy but is suffering from-
(i) Loss of sensation in hands or feet as well as loss of sensation and paresis in the eye-lid but with no manifest deformity;
(ii) Manifest deformity and paresis but having sufficient mobility in their hands and feet to enable them to engage in normal economic activity,
(iii) Extreme physical deformity as well as advanced age which prevents him from undertaking any gainful occupation, And the express 'leprosy cured' shall be construed accordingly;
2 (l) 'hearing impairment' means loss of sixty decibels or more in the better year (sic) in the conversational range of frequencies; 2 (o). 'locomotor disability' means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy;
2 (q) 'mental illness' means any mental disorder other than mental retardation;
2(r) 'mental retardation' means a condition of arrested or incomplete development of mind of a person which is specially characterized by sub-normality or intelligence;"
(47) One cannot possibly define disability in an exhaustive manner. However, the aforesaid instances provide a good indication of the misfortune of the children afflicted with disability from birth or who have acquired some such disability after birth. One of the objects of the RTE Act clearly is to try and bring as many of these unfortunate children to the mainstream by providing that a school belonging to the specified category [meaning a School is known as Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School or any other school having a distinct character which may be specified, by notification by the appropriate Government - Section 2(p)] and unaided school shall admit in Class I children belonging to weaker section and disadvantaged group (which includes a child with disability) to the extent possible of at least 25 per cent of the strength of that class and shall provide free and compulsory elementary education to them. This is a laudable move. This way, children with disability can be made to feel as normal as they can possibly be made to feel under the circumstances. Being born with a disability or falling prey to any kind of disability after birth by reason of accident or critical ailment or other circumstances beyond human control, is not a crime. Wherever the situation permits such a child should be accommodated in the mainstream education system rather than being sent to a school designed for such disabled children. Segregating a child with disability from the more fortunate children only highlights the disability of a child and would definitely tend to create an adverse impression in the tender mind of the child.
Making such less fortune children a part of the mainstream education system to the extent possible is one of the most humane things that the members of our society can thrive to do. Isolating and treating such children with disability as a different class and like other normal children will only make them more conscious of their unfortunate condition which is likely to make them feel ostracized and have an indelible adverse impact on their young and innocent minds. This, in my opinion, would amount to treating such children with cruelty and culpable insensitivity. (48) The RTE Act, thus, in my opinion, is a commendable piece of legislation aimed at inter alia accommodating the children with special needs in ordinary schools. But, to teach and guide these children properly and efficiently, one would require teachers with special training and special education. To effectively promote the concept of inclusive education, the educational system would undisputedly require the services of teachers with special training. The petitioners are such candidates with Diploma in Special Education. The NCTE recognizes the importance of absorbing candidates like the petitioners with Diploma in Special Education and accordingly has made a candidate with senior secondary (or its equivalent) with at least 50 per cent marks and two years Diploma in Education (Special Education) eligible for appointment as a primary school teacher, albeit, with a condition that after appointment such persons shall have to undergo a six months special course in elementary education. The role of these persons in building up an integrated inclusive education system is crucial and indispensable. I see no reason why persons like the petitioners should be discriminated against or should be treated as inferior candidates and why they should not be treated at par with other candidates with Diploma in Elementary Education. If they are not treated equally with the other candidates, nobody is likely to run the risk of putting in future, their career in jeopardy by doing a Diploma in Special Education with the result that the object of promoting inclusive education would be defeated.
(49) One may perhaps wonder as to why I went into a detailed analysis of RTE Act. The reason is to demonstrate that one of the important aims/objects of that statute is to propagate and promote the concept of inclusive education for children aged between 8 and 14 years - to absorb the less fortunate children into the mainstream education system rather than relegating them to an isolated education process. To achieve this object, aspiring teachers with training in special education must be made an integral part of the mainstream education system and they must be treated equally with other aspiring teachers with diploma in elementary education. In my considered opinion, treating candidates with D. Ed. (S.E.) qualification differently and as an inferior class vis-à-vis candidates with D. El. Ed. qualification would not pass the test of reasonable classification and hence would be impermissible under the law of the land.
(50) This view I have taken finds strong support in the Division Bench judgment of the Allahabad High Court relied upon by Mr. Saptangshu Basu, Learned Senior Advocate and referred to above, relevant paragraphs whereof have been extracted above.
(51) For the reasons aforestated, I am of the considered opinion that the petitioners are entitled to the benefit of the appropriate proportion of the 15 marks allocated for training as indicated in Table A under the Rule 8(3) of the Recruitment Rules, 2016, in so far the process of selection is concerned.
(52) Mr. Gupta had indicated that in case the Court now holds that the petitioners should get the benefit of being treated as trained candidates, it will create huge logistic problems for the respondents since a major part of the vacancies have already been filled up by issuance of appointment letters. However, since I am of the view that injustice has been meted out to the petitioners, I cannot refrain from granting relief to the petitioners just because the same may create administrative inconvenience to the respondents. Further, as per orders of this Court passed in the present writ applications as also as per the order dated 20 October, 2016 of a Division Bench of this Court passed in a Public Interest Litigation being WP No. 24882 (W) of 2016 (Rita Haldar (Mal) & Ors.-vs.-The State of West Bengal & Ors.), the respondents were directed to indicate in the appointment letters that such appointment would be subject to and abide by the decisions in the pending proceedings of this Court.
(53) Accordingly, there will be an order in terms of prayer (a) of WP No. 24892 (W) of 2016. The respondent authorities shall forthwith take appropriate steps and all measures that are required to be taken as a consequence of this order. (54) WP Nos. 448 (W) of 2017, 24892 (W) of 2016, WP 27488 (W) of 2016 and 3217 (W) of 2017 along with CAN Nos. 953 of 2017 and 951 of 2017 are accordingly disposed of, without, however, any order as to costs. (55) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance with necessary formalities.
(Arijit Banerjee, J.)