Calcutta High Court (Appellete Side)
Dakshin 24 Parganas Saksharata ... vs State Of West Bengal & Ors on 1 December, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In the High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 17644 (W) of 2002
Dakshin 24 Parganas Saksharata Shikshak Samity & Ors.
-Vs.-
State of West Bengal & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the Petitioners : Mr. Rasomay Mandal, Adv.
Mr. Sajal Mukherjee, Adv.
Mr. Subrata Kumar Sarkar, Adv.
Mr. Rajasrshi Basu, Adv.
For the D.P.S.C. : Mr. Gourav Das, Adv
Heard On : 24.01.2017, 23.02.2017, 20.04.2017,
30.06.2017, 13.07.2017, 20.07.2017,
23.08.2017, 07.09.2017, 12.09.2017.
CAV On : 21.09.2017
Judgment On : 01.12.2017
Arijit Banerjee, J.:-
(1) The case of the writ petitioners is that the petitioner nos. 2 to 89
(in short 'the petitioners') had been working as Organiser Teachers in
Primary Schools in rural areas in South 24 Parganas and had also been
working under several Panchayat Samities in the scheme for
eradication of illiteracy from the rural areas of South 24 Parganas.
They claim that they have the requisite qualification for being
appointed as primary school teachers.
(2) The petitioners came to know that a large number of vacancies in
the posts of Primary Teachers would be filled up by the South 24
Parganas, District Primary School Council (in short DPSC). However,
the names of the petitioners were not sponsored for the said posts by
the concerned Employment Exchanges.
(3) The petitioners moved the instant writ petition seeking
permission to participate as exempted category candidates in the
interview process that was to be held by the said DPSC for selecting
candidates for the posts of primary teachers. By an interim order
dated 8 May, 2003 a learned Judge of this Court directed the
concerned respondents to allow the writ petitioners to take part in the
interview that was scheduled to be held in the 3rd week of May, 2003, without prejudice to the rights and contentions of the parties in the writ petition.
(4) By an order dated 15 May, 2003 the same learned Judge modified the earlier order by way of correction by permitting the petitioners to participate in the interview as 'exempted category' candidates. (5) Alleging wilful violation of the aforesaid two orders, the petitioners filed a contempt application being CPAN no. 1716 of 2003, which was disposed of by the learned Judge by an order dated 17 January, 2005 with the following direction:
"The petitioners would be permitted to appear at the interview when the authority, namely, the District Primary School Council, South 24 Parganas, holds such interviews in future for the purpose of selection of candidates for appointments to the posts of primary teachers in the district concerned provided they are otherwise eligible for such purpose".
(6) The petitioners filed another contempt application being CPAN no. 1657 of 2005 for alleged wilful violation of the aforesaid order dated 17 January,. 2005. The said contempt proceeding was closed by an order dated 29 March, 2010 by recording the submission of learned advocate appearing for the said DPSC to the effect that the DPSC would be in a position to supply application forms which were necessary for the candidates for taking part in the selection process. The Court further directed that upon receipt of such forms from the DPSC the petitioners would be at liberty to submit the same duly filled up in the office of the DPSC within ten days from the date of receipt of such forms and once such forms were submitted, the respective cases of the petitioners would be considered in terms of the earlier orders dated 8 May, 2003 and 15 May, 2003.
(7) A third contempt petition was filed against the Chairman of the said DPSC which, after issuance of rule was numbered as WPCRC no. 238 (W) of 2013, alleging that the said DPSC was not permitting the petitioners to participate in the selection process. In the said proceeding the Chairman of the said DPSC appeared before a learned Judge of this Court on 27 October, 2014 and undertook that the orders passed by this Court would be complied with.
(8) The Chairman of the DPSC preferred an appeal against the said order dated 27 October, 2014 contending that on that date, he did not get the assistance of his lawyer and gave the undertaking before the learned single Judge out of fear of contempt. The Hon'ble Division Bench disposed of the appeal by a judgment and order dated 20 November, 2014, the operative portion whereof reads as follows:-
"As such, we feel that in such changed circumstances, justice will be subserved if we permit those writ petitioners who can satisfy the eligibility criteria as per the extant recruitment rules which is prevalent as on date, to participate in the selection process by relaxing their age bar as they are fighting for this cause since 2003 and most of them have already crossed the maximum age limit for the concerned post by this time.
Accordingly, we dispose of this appeal by directing the concerned authority to allow those writ petitioners who can satisfy the eligibility criteria for the concerned post as per the new recruitment rules, to participate in the future selection process by relaxing the age bar criteria, provided however, they submit their respective applications before the concerned authority by offering their candidatures for the said post within the prescribed time. The concerned authority is, thus, directed to supply the necessary forms to the writ petitioners whenever such selection process will be taken up in future, provided, the writ petitioners apply for issuance of such application before the concerned authority in time.
Since a new arrangement has been made by this Court for permitting the writ petitioners to participate in the selection process, the undertaking which was given by the alleged contemnor before the learned Single Judge of this Court, need not be followed up".
(9) The petitioners preferred a Special Leave Petition against the aforesaid judgment and order dated 20 November, 2014. The Hon'ble Supreme Court disposed of the Special Leave Petition by an order dated 8 November, 2016, the operative portion whereof reads as follows:-
"In our considered opinion, it would not be proper for this Court to interfere in the matter at the present stage when the writ petition is still pending. We, therefore, request the High Court of Calcutta to take up the writ petition for hearing and dispose of the same expeditiously and preferably within four months. The parties are directed to cooperate in the disposal of the writ petition before the High Court without asking for unnecessary adjournments in the matter. It is made clear that the High Court shall not be prejudiced by any of the observations or directions made in the impugned order".
(10) Pursuant to the order of the Hon'ble Supreme Court this matter was mentioned before me by the learned counsel for the petitioners. I have heard learned counsel for the petitioners and the said DPSC at length on different dates and have given as much precedence to this matter as the business of the Court permitted.
(11) Mr. Das, Learned Counsel for the said DPSC took a preliminary objection to the maintainability of the writ petition. He submitted that 89 writ petitioners have moved this writ petition without having any jural relationship with each other. Further, Court fee has been paid for only a single petitioner. Hence, the writ petition should be rejected in limine. In this connection, he relied on a decision of this Court in the case of Mrinal Kanti Das & Ors.-Vs. State of West Bengal & Ors, AIR 2011 CAL 1, and also on a decision of the Hon'ble Apex Court in the case of Mota Singh & Ors. Vs. State of Haryana & Ors., AIR 1981 SC 484.
(12) On merits, Mr. Das learned counsel for the DPSC resisted the petitioners' prayer on the following grounds:-
Firstly, he submitted that at the relevant point of time i.e., when the petitioners approached this Court by way of the present writ petition, the Recruitment Rules, 2002 operated in the field as per the Notification dated 15 January, 2002 issued by the School Education Department, Government of West Bengal. Rule 8 of the 2002 Rules provides that for filling up the posts, names must be called for from the Employment Exchanges. However, admittedly the petitioners were not sponsored by the concerned Employment Exchanges. Hence, they have no right to participate in any selection process. (13) The second ground on which Mr. Das resisted the petitioners' prayer was that the petitioners cannot be treated as 'exempted category' candidates. He referred to Government Memo no. 197-Edn. (P) dated 7 February, 1979 issued by the School Education Department, Government of West Bengal, Clause 3 whereof enumerated the categories of candidates who were to be treated as 'exempted category' candidates. Learned counsel also referred to a Government Memo dated 29 April, 2010 wherein the class of 'exempted category' candidates was further clarified. He submitted that the petitioners do not come within the definition of the 'exempted category' candidates and cannot claim to be entitled to participate in the selection process as 'exempted category' candidates. He further referred to a Notification No. 768-Edn. (P) dated 22 November, 1991 issued by the School Education Department, Government of West Bengal which brought into effect the Rules regulating the Recruitment and Leave of Teachers in Primary Schools in West Bengal. With reference to Rule 9
(b) (vi) (D) of the said Rules, he submitted that at best the petitioners are entitled to one mark for co-curricular activities. (14) Mr. Das further submitted that any order passed for appointment of the petitioners by applying the old Rules for old vacancies would vitally affect the persons already appointed and not made parties in the writ petition. The writ petition is bad for non-joinder of necessary parties. In this connection, learned counsel relied on the decisions of the Hon'ble Apex Court in Prabodh Verma & Ors. Vs. State of Uttar Pradesh, AIR 1985 SC 167 and Ramrao & Ors. Vs. All India Backward Class Bank Employees Welfare Association & Ors., AIR 2004 SC 1459.
(15) Mr. Das then submitted that after the new Rules and NCTE Notifications have come into force and also in view of sections 23 (1) and (2) of the RTE Act, 2009, no person can be appointed as a Primary Teacher unless he fulfils the qualifications laid down by NCTE. The petitioners are admittedly not qualified as per the NCTE Notifications.
Hence, no order should be passed on the writ petition. (16) Learned counsel further submitted that even assuming that at an earlier point of time the petitioners were wrongfully prevented from participating in the selection process, no order should be passed presently permitting the petitioners to participate in the selection process as that would be contrary to the requirement of minimum educational qualifications laid down by NCTE. A wrong order should not be passed to remedy an alleged wrong done to a person in the past.
(17) Learned counsel then submitted that as per the new Recruitment Rules, the West Bengal Board of Primary Education is now the selecting authority and hence it is not possible for the said DPSC to implement the two orders passed by this Court on 8 May, 2003 and 15 May, 2003. Further, most of the petitioners have crossed 50 years of age and hence, cannot be given appointment. The writ petition has become infructuous by efflux of time.
(18) Learned counsel finally submitted that the matter should be referred to the Secretary, Primary Education Department, Government of West Bengal (respondent no. 2) to consider the case of the petitioners in accordance with law. Learned counsel referred to a decision of this Court in the case of Tumpa Roy Vs. State of West Bengal & Ors., 2010 (4) CHN (CAL) 640, where such an order was passed by the Learned Judge.
(19) Appearing for the writ petitioners Mr. Rasomay Mandal learned counsel submitted that even though the names of the petitioners were not sponsored by the concerned Employment Exchanges, this Court has power under Article 226 of the Constitution of India to direct the authorities to allow the petitioners to participate in the selection process for the posts of Primary Teachers. By the orders dated 8 May, 2003 and 15 May, 2003 this Court permitted the petitioners to participate in the selection process. Rule 8 of the 2002 Recruitment Rules is not a bar to this Court passing such an order. He submitted that the said Rule 8 is inconsistent with Article 16 of the Constitution of India which confers a fundamental right on the citizens of India. In this connection, learned counsel relied on the following decisions:-
(i) Excise Superintendent Malkapatnam, Krishna District A.P. Vs. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC 216 (para 6 and 7).
(ii) Tariff Hossain Vs. State of West Bengal & Ors., (2003) 1 CLJ 41 (Para 8 and 12).
(iii) Rabindra Nath Mahata Vs. State of West Bengal & Ors., (2005) 3 CHN 337 (Para 20 and 21).
(iv) Manik Chandra Das vs. State of West Bengal & Ors., (2007) 2 CHN 761 (Para 21 and 22).
(v) Arun Kumar Nayak Vs. Union of India & Ors., (2006) 8 SCC 111 (Para 9 and 10).
(vi) Union of India & Ors. Vs. Pritilata Nanda, (2010) 11 SCC 674 (Para 19, 21 and 20).
(20) In response to the DPSC's submission that the petitioners cannot be permitted to participate in the selection process as 'exempted category' candidates, learned counsel submitted that this Court's orders dated 8 May, 2003 and 15 May, 2003 were not interfered with by the Hon'ble Division Bench in its order Dated 20 November, 2014 as regards permitting the petitioners to participate in the selection process as 'exempted category' candidates. The Hon'ble Supreme Court of India also in its order dated 8 November, 2016 did not interfere on that point. Hence, this Court's orders dated 8 May, 2003 and 15 May, 2003 have attained finality and a coordinate Bench should not differ from such orders.
(21) Regarding the third point i.e., which Recruitment Rules should apply to the petitioners, learned counsel submitted that although the Hon'ble Division Bench in its order dated 20 November, 2014 observed that the petitioners would be governed by the extant Recruitment Rules, the Hon'ble Supreme Court by its order dated 8 November, 2016 has directed this Court to dispose of the writ petition without being influenced by any observation in the order of the Hon'ble Division Bench. He submitted that when the petitioners approached this Court for the first time and orders dated 8 May, 2003 and 15 May, 2003 were passed, the old Recruitment Rules of 2002 were in force. Hence, the said Rules would apply to the petitioners. In the new Rules of 2012, there is no provision giving such Rules retrospective effect. He referred to Section 6 of the Bengal General Clauses Act and submitted that when any Bengal Act or West Bengal Act is not expressed to come into operation with retrospective effect, the Act shall not be operative with retrospective effect. The petitioners are entitled to be considered as per provisions of the Recruitment Rules, 2002. In this connection, learned counsel relied on the following decisions:-
(i) Gopal Krushna Rath Vs. M.A.A. Baig (dead) by L.Rs. and Others.
AIR 1999 SC 2093 (Para 2 and 6).
(ii) Tejshree Ghag & Ors. Vs. Prakash Parashuram Patil & Ors., (2007) 6 SCC 220 (Para 12).
(iii) P. Mohanan Pillai Vs. State of Kerala & Ors., (2007) 9 SCC 497 (Para 10 and 11).
(iv) Kishor Kumar & Ors. Vs. Pradeep Shukla & Ors., (2012) 4 SCC 103 (Para 1, 2 and 14) (22) Mr. Mandal finally submitted that there can be no question of referring the matter to the Secretary, Primary Education Department, Government of West Bengal, since a man cannot be a Judge in his own cause. The writ petition is directed amongst others, against the Secretary, Primary Education Department, Government of West Bengal and hence, it would not be proper to refer the matter to him for decision. He submitted that this Court should take a decision in the matter and should allow the petitioners to participate in the selection process for the posts of Assistant Teachers, in Primary Schools in accordance with the old Recruitment Rules as 'exempted category' candidates condoning the age bar.
Court's View:-
(23) As regards the point of mis-joinder of parties, raised by learned Counsel for the said DPSC, I am personally of the view that at this stage, the said point cannot be urged. This writ petition has a chequered life and has been carried all the way to the Hon'ble Apex Court. Neither before the learned Single Judge, nor before the Hon'ble Division Bench nor before the Hon'ble Apex Court this point was urged by the respondents. In the case of Mrinal Kanti Das (supra), the point of mis-joinder of parties was taken at the first instance before the learned Judge who was of the view that since there was no jural relationship between the petitioners who were all unemployed youths seeking appointment as Assistant Teachers in primary schools, they could not collectively maintain one writ petition.
However, in this case at no point of time this point was urged by the respondents. In my opinion, the circumstances in the case of Mrinal Kanti Das (supra) and in the present case are totally different. (24) I am also of the view that the principle of O. 1 R. 1 of the Code of Civil Procedure permits the petitioners to maintain this writ application jointly/collectively. All the petitioners have the same grievance and the same cause of action. They are aggrieved by the refusal of the respondent authorities to permit them to participate in the selection process. Their rights to relief arise out of the same act or transaction or series of acts or transactions; further, if the petitioners filed separate writ petitions, the question of law and fact would be common. Although, the CPC does not apply to writ petitions in terms, the principle of the Code apply to writ petitions in so far as the same may be made applicable. The object of O. 1 R. 1 of the Code is to avoid multiplicity of judicial proceedings. In so far as the issue of Court fee is concerned, the non-payment of Court fees by all the petitioners is a defect which is curable and should not necessarily prove fatal to the writ petition on its own. I direct the writ petitioners to put in the deficit Court fees within four weeks from date failing which the writ petition shall be deemed to have been dismissed. (25) As regards the entitlement of the petitioners to appear in a selection process as 'exempted category' candidates, I find that paragraph 3 of the Government Memo No. 197-Edn. (P) dated 7 February, 1979 states that 30 per cent of the vacancies to the posts of primary school teachers would be kept reserved for exempted categories regarding whom the appointing authority could give appointment without any reference to the Employment Exchanges. The exempted categories were enumerated as follows:-
"3. The Governor is further pleased to order that 30 per cent of the remaining vacancies to the posts of primary school teachers should be kept reserved for exempted categories of the following types regarding which the appointing authority is competent to give appointment without any reference to the Employment Exchanges:-
(a)Candidates hailing from families who might have been uprooted from their places of residence as a result of the land in question being acquired by Government for major development projects like setting of a power plant or a township etc. as in Haldia only one member from an uprooted family shall be eligible for such preference for jobs in and around the area acquired,
(b) A son/daughter/wife of a primary school teacher dying in harness after 1.4.76 subject to fulfilment of prescribed minimum qualifications,
(c) Ex-Industrial Census personnel who were retrenched with effect from 1st February, 1975 by the Cottage and small Scale Industries Department, ex-census employees who have not been absorbed in any service and ex-employees of R.R. & R. Development (Ex-Sibir Karmacharies who served in connection with the relief and rehabilitation of the Refugees from Pakistan and Bangladesh) who have put in at least six months' continuous service in their previous jobs,
(d) Sons, daughters or dependents of a family any one of which have lost his life as a result of participation in or association with any political, democratic movement during the period from 1970 onwards, i.e. after the fall of the second United Front Government,
(e)Ex-service men who may apply."
(26) By Government Memo dated 29 April, 2010, certain other classes of persons, e.g., persons belonging to the families of land losers, ex- census employees who worked in connection with the 1981 census operations, ex-census enumerators/supervisors of 1981 and 1991 census operations and election job workers/enumerators who were engaged in revision/preparation of Electoral Rolls by the Home Department between 1979 and 1 June, 2000 were included in the class of exempted category subject to the concerned persons fulfilling certain other conditions like period of work, etc. The petitioners do not come within any of the classes which have been notified to be included in exempted category. Hence, in my opinion, the petitioners are not entitled to participate in any selection process as exempted category candidates. The orders dated 8 May, 2003 and 15 May, 2003 were interim orders and it is settled law that an interim order may be modified or even vacated at the final hearing of a proceeding. (27) I am in agreement with learned Counsel for the said DPSC that if the petitioners are permitted to participate in the selection process as per the old Rules of 2001, candidates appointed in the old vacancies as per the old Rules are likely to be adversely affected. However, such persons are not parties to the instant writ petition. In Prabodh Verma (supra), the Apex Court held that a High Court ought not to hear and dispose of a writ petition without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them the High Court ought to dismiss the petition for non-joinder of necessary parties. To similar effect is the decision of the Hon'ble Apex Court in the case of Ramrao & Ors (supra), wherein the promotees had not been impleaded as parties by the writ petitioner and the impugned directions in the writ petition given by the High Court adversely affected the promotees. The High Court's directions were set aside.
Hence, I am of the opinion that if at all the petitioners are entitled to participate in any selection process, the same will have to be in accordance with the present Recruitment Rules. (28) Further, after the RTE Act, 2009 has come into force, nobody can be appointed as a primary school teacher unless he has the qualifications laid down by the NCTE. Even assuming that the petitioners had been wronged in the past which compelled them to approach this Court, with the efflux of time new legislations have come into force and new Recruitment Rules have come into operation. If I were to permit the petitioners to participate in a selection process even if they are not eligible to do so as per the present Recruitment Rules and the law of the land, I would be passing a wrong order. An order contrary to law or applicable Rules cannot be passed with a view to redressing some alleged wrong that may have been done to the petitioners.
(29) Mr. Mandal relied heavily on four Apex Court decisions in support of his submission that the old Recruitment Rules that were in vogue at the time when the petitioners approached this Court should apply to the petitioners. I have noted the decisions hereinabove. The facts of those cases, as I read them, are totally different from the facts of the present case. Further, even if I were to allow the writ petitioners to participate in the selection process if they are eligible to do so under the old Rules, it is an admitted fact that they do not possess the qualification that a candidate aspiring to be a primary school teacher must possess as per the NCTE guidelines.
(30) Further, it appears to be the admitted position that presently the West Bengal Board of Primary Education is the authority to conduct the selection process. However, the Board is not a party respondent and hence, no direction can be passed on the Board.
(31) I am afraid I am unable to grant any substantive relief to the petitioners. I have full sympathy for the petitioners who have been trying hard to get appointments as primary school teachers since 2002. However, sympathy cannot be the basis for the Court to pass an order which will be contrary to the applicable law. The best I can do is to refer the cause of the petitioners to the Secretary, Department of School Education, Government of West Bengal for his sympathetic consideration. I grant liberty to the petitioners to make a comprehensive representation to the respondent no. 2. If the respondent no. 2 finds that the petitioners are eligible to participate in the selection process that will be next initiated by the concerned authority (whether it be the West Bengal Board of Primary School Education or any other authority) for filling up vacancies in the posts of primary school teachers in the District of South 24 Parganas, as per the extant Recruitment Rules and in the event it is found that the petitioners would be eligible for appointment if they succeed in the selection process, the respondent no. 2 shall issue appropriate directions to the concerned authority to permit the petitioners to participate in the selection process by relaxing the age bar. The petitioners may make such representation within three weeks from date. If such representation is made, the respondent no. 2 shall dispose of the same by a reasoned order and in accordance with the applicable Rules/Regulations/Circulars/Notifications within a period of four weeks from the date of receipt of the representation after giving an opportunity of hearing to any one of the petitioners or any authorised representative of the petitioners. Such decision of the respondent no. 2 shall be communicated to the petitioners within a fortnight from the date of the decision. The respondent no. 2 being a highly placed public officer, it is expected that the respondent no. 2 shall deal with the petitioners' case sympathetically. (32) With the aforesaid observations, WP No. 17644(W) of 2002 is disposed of, without, however, any order as to costs. (33) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)