Calcutta High Court (Appellete Side)
Arpita Roy (Samanta) vs State Of West Bengal & Ors on 2 March, 2012
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
( Constitutional Writ Jurisdiction )
Present :
The Hon'ble Justice Ashim Kumar Banerjee
And
The Hon'ble Justice Shukla Kabir (Sinha)
MAT 124 of 2011
CAN 788 of 2011
Arpita Roy (Samanta)
-vs-
State of West Bengal & Ors.
Mr. Robilal Moitra
Mr. P.S. Deb Barman
Mr. Amitabrata Roy
Mr. Samarjit Dey
Mr. Shaharayar Alam ...for the appellant
Mr. Sk. Kamaluddin .......for the respondent nos. 4 & 5
Heard on: 29.2.2012 and 2.3.2012
Judgment on: 2.3.2012
Ashim Kumar Banerjee,J.
Arpita Roy, the appellant got basic training from an Institute recognized by the West Bengal Board of Primary Education. She got the certificate from the appropriate Institute in the examination held in June, 2005. The certificate was issued by the West Bengal Board of Primary Education, as we find from page 31 of the Paper Book. In 2006 she was 2 sponsored by the Employment Exchange for the post of Primary Teacher in trained category. Due to protracted litigation, 2006 selection process was held in 2009. In the meantime, the training imparted by the Institutes in the State without having appropriate recognition from the Teachers Training authority under the National Council for Teachers' Education (NCTE) Act, 1993, was called in question in public interest litigation. The Division Bench presided over by the then Chief Justice vide judgment and order dated October 1, 2008 in the case of Tulshi Baksi & Anr. -vs- State of West Bengal & Ors. reported in 2008 Volume 4 Calcutta High Court Notes page 789 held the Institutes in the State imparting Teachers' Training Education without having appropriate recognition under the NCTE Act as invalid. They were not authorized to admit any student. They were asked to refund the fees taken from the students, who were admitted during the academic session, prevalent at the time of delivery of the judgment. Pertinent to note, the writ petition was filed in 2006 whereas the decision was had on October 1, 2008. Paragraphs 98, 99 and 100 of the said decision being relevant herein, are quoted below:
"98. On these grounds, this petition deserves to be allowed and we declare that all the respondent institutions which are not recognized by the NCTE could not be given affiliation by the Board. The Institutions, which have not followed the provisions of the NCTE Act and are not recognized by the NCTE Authority, had no right to admit students in the said training programme.
99. Accordingly, we direct that unless these institutions are recognized, they shall not have any authority to admit any student in their institutions. It is clear from the facts that these institutions have acted in flagrant disregard of the provisions of the Act and Rules. All these institutions are bound to be aware of the provisions of the NCTE Act and could not have merely on the basis of the affiliation granted by the Board admitted the poor students. We are aware that 3 the students are now going to lose one year which is very precious in their young lives. But the law must prevail and accordingly, we direct all these unrecognized institutions to return all the fees to each and every student.
100. Before we part we also make it clear those Institutions who are already recognized under the NCTE Act, there are no impediments for them to run their Institutions. We further direct the State Authorities to render all assistance to the said Institutions."
On a combined reading of the paragraphs quoted above, it would appear that the judgment was delivered with a prospective approach. This was clarified by another Division Bench in the case of Hiranmay Bhowmick & Ors. (WP 23077(W) of 2009). The Division Bench presided over by the then Chief Justice vide judgment and order dated February 26, 2010 appearing at pages 45 to 52 of the paper book clarified that the judgment delivered in the case of Tulshi Baksi (supra) could not have any retrospective effect. The Division Bench observed, "while allowing the petition also, the operative order of the Court was confined to the students, who were prosecuting their studies in primary teachers training course in October, 2008. Admissions granted to them in the year 2008-2009 were directed to be cancelled." Their Lordships dismissed the writ petition, wherein the petitioners asked for cancelling the appointment given to the candidates during the period from 1998 to 2005 considering their training certificate.
The appellant was unsuccessful in the selection process held in 2009. She claimed that she was considered as an untrained candidate, although she was sponsored as a trained candidate. Had her training qualification been taken into account by giving additional bonus marks for training, she could have been successful in the said examination. She filed a writ petition before the learned Single Judge. Similar writ petitions were filed 4 by the unsuccessful candidates pertaining to 2006 selection process held in 2009. One of them was Ms. Tumpa Roy in WP 2580(W) of 2010. The learned Single Judge vide judgment and order dated June 29, 2010 appearing at pages 97 to 138 of the paper book observed that the concerned candidate was not entitled to the benefit of her past training imparted by a Training Institute without having been recognized under the NCTE Act. His Lordship was of the view that the decisions in the case of Tulshi Baksi (supra) and in the case of Hiranmoy Bhowmick (supra) would have no role to play in cases, where the candidates were yet to be appointed as Teachers. The learned Judge was however, of the view that the batch of candidates, who despite their training did not get the benefit of such training, should be treated as a Class by themselves. The learned Judge directed the State to frame a scheme for such special class to ameliorate their grievance.
Tumpa Roy did not prefer appeal. We are told that Tumpa Roy got appointment even as an untrained candidate. Tumpa Roy is now pursuing her remedy before the Apex court, inter alia, praying for recognition as a trained candidate to get additional financial benefit. The learned Judge heard the other writ petitions including one filed by Sampa Prodhan and the other filed by Arpita Roy. His Lordship's decision in the case of Tumpa Roy would also govern other writ petitions including the writ petitions filed by Sampa Prodhan and the other filed by Arpita Roy.
Sampa Prodhan preferred an appeal. The Division Bench disposed of the appeal being MAT 268 of 2010. Their Lordships were of the view that despite the fact that Tumpa did not prefer appeal, since the decision in the case of Tumpa had governed the case of Sampa, the Division Bench was competent to examine the correctness of the said decision in the case of 5 Tumpa. Their Lordships considered the earlier two decisions in the case of Tulshi Baksi (supra) and Hiranmoy Bhowmick (supra). Their Lordships were of the view that in view of clarification made in the case of Hiranmoy Bhowmick (supra) and the findings and/or observations made in paragraphs 98, 99 and 100 in the case of Tulshi Baksi (supra), the learned Judge was not right in rejecting the prayer of Tumpa Roy or Sampa Prodhan, as the case may be. Their Lordships were of the view that the learned Single Judge did not consider Rule 10 of the NCTE regulations framed under the NCTE Act, where relaxation was given in given cases, specially for the students who completed academic session 2004-2005. Their Lordships however, observed that the case of Sampa Podhan could not be guided by ultimate decision in the case of Tulshi Baksi (supra) or in the case of Tumpa Roy (supra). Their Lordships set aside the judgment and order in the case of Sampa Prodhan and allowed the appeal.
We are told that all the above decisions are now under consideration of the Apex Court, as the State filed an appeal in the case of Tulshi Baksi, which is still pending. The State also filed an appeal in the case of Sampa Prodhan and all other similarly placed candidates, who got the benefit of the decision in the case of Sampa Prodhan. Those Special Leave Petitions are yet to be disposed of.
We have heard Mr. Robilal Moitra, learned Senior Counsel appearing for the appellant and Mr. Sk. Kamaluddin, learned Counsel appearing for the Primary School Council.
Mr. Moitra submits that the decision in the case of Sampa Prodhan (supra) would squarely apply in this case. Mr. Moitra further contends that the learned Judge erred in observing that the decision in the case of Tulshi Baksi (supa), so clarified by the decision in the case of Hiranmoy Bhowmick 6 (supra), did not give any protection to the batch of candidates, who were claiming benefit of their training qualification obtained prior to the decision had in the case of Tulshi Baksi (supra). According to Mr. Moitra, the judgment referred to above, must have prospective operation and could not be applied retrospectively to nullify the training qualification of Arpita, who got the training qualification in 2005. Mr. Moitra further contends that Arpita was sponsored by the Employment Exchange for 2006 selection process. Due to protracted litigation, selection process was delayed. However, her sponsoring in 2006 selection process should have been considered in trained category, particularly when 2006 selection process was held in 2009 only to fill up the vacancies, which arose prior to 2006 and covered by 2006 selection process.
Per contra, Mr. Kamaluddin contends that the decision in the case of Sampa Prodhan (supra) is pending in appeal before the Apex Court. There was no infirmity in the decision of the learned Single Judge in the case of Sampa Prodhan (supra) or in the case of Arpita Roy following the decision in the case of Tumpa Roy (supra) that does not deserve any interference by this court. As and by way of alternative submission, Mr. Kamaluddin submits, we should wait till the decision of the Apex Court in the case of Tulshi Baksi (supra) and Sampa Prodhan (supra).
We have considered the rival contentions. We have carefully perused the Division Bench decision in the case of Sampa Prodhan (supra). We do not find any scope of disagreement. The decision given by any court, unless specifically mentioned, would have prospective operation and could not have any retrospective operation. The decision in the case of Tulshi Baksi (supra) categorically made it clear that it would operate prospectively, as would be appearing from a combined reading of paragraphs 98, 99 and 100. This became more clear when other Division Bench in the case of Hiranmoy 7 Bhowmick (supra) accepted the argument by the then Advocate General and dismissed the writ petition, which sought annulment of recruitment from 1998 to 2005 considering the training certificate issued by the Training Institute under the West Bengal Board of Primary Education. In such view of the matter, the learned Single Judge should not have denied relief to the writ petitioner, who sought benefit of the training qualification prior to the decision in the case of Tulshi Baksi (supra).
The appeal succeeds and is allowed. The judgment and order impugned is set aside. CAN 788 of 2011 is also disposed of.
There would be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Ashim Kumar Banerjee,J.) I agree.
(Shukla Kabir (Sinha),J.) 8 9