Calcutta High Court (Appellete Side)
Sourav Saha & Ors vs The State West Bengal & Ors on 8 March, 2016
Author: Subrata Talukdar
Bench: Subrata Talukdar
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08.03.2016
03
b.r
W.P. No. 3842(W) of 2016
Sourav Saha & Ors.
-vs-
The State West Bengal & Ors.
Mr. Bikash Ranjan Bhattacharya,
Mr. Sudipta Dasgupta,
Mr. Bikram Banerjee,
....... For the petitioners.
Mr. Tapan Kumar Mukherjee,
Mr. Supratim Dhar,
....... For the State.
Mr. Abhijit Gangopadhyay,
Mr. Sougata Bhattacharyya,
...... for the School Service Commission.
This writ petition is one of a batch of writ petitions
arising out of common points of law and facts. Therefore, this
writ petition along with its analogous matters is proposed to be
dealt with by this Court by way of a common order.
The fundamental plank of challenge in these writ
petitions is to the Notification No. 33-SE/S/IS-26/2010(Pt.II)
dated 13th January, 2016 of the School Education Department
(Secondary Branch), Government of West Bengal. By way of
the said Notification, the West Bengal School Service
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Commission (for short the Commission) {State Level Selection
Test (for short S.L.S.T.) for appointment to the posts of
Teachers}, Rules 2015 (for short the 2015 Rules) was sought
to be amended.
The particular amendment in focus in these writ
petitions is the substitution of the original Rules 6 sub-rule (4)
of the 2015 Rules by the following insertion:-
" (4) Any in-service graduate of honours graduate or
postgraduate, work education, physical education teacher
shall be eligible for selection for appointment only to the
post of higher category in any School under these rules."
Sri Bikash Ranjan Bhattacharya, learned Senior Counsel
and Sri Dilip Kumar Samanta, Sri Ekramul Bari, Sri Subir
Sanyal along with other learned Counsel appearing for the
petitioners argue that the petitioners, in view of the amended
Rule 6 sub-rule (4) (supra) have been prevented from applying
for the 2015 SLST and thereby denied the right of exercising
their choice to seek a better place and better institution of
posting through an open merit examination.
Learned Counsel appearing for the petitioners further
argue that such restriction as introduced by the amended Rule
6 sub-rule (4) (supra) is in violation of Articles 16 of the
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Constitution of India. Learned Counsel point out that the
amended rule restricts the petitioners from exercising
improved employment options since the existing selected
teachers, such as the petitioners can only apply to a higher
category of posts under the amended rules.
The State-Respondents are represented by Sri Tapan
Kumar Mukherjee, learned Additional Government Pleader. The Respondent-West Bengal School Service Commission is represented by Sri Abhijit Gangopadhyay and Sri Sougata Bhattacharyya, learned Counsel.
Sri Mukherjee argues that the present petitioners or, the existing teachers, suffer from no discrimination at all since they have not been prevented from applying for a higher category of posts through the S.L.S.T. 2015. The additional point taken by Sri Mukherjee is that under the Schedule to the 2015 Rules, the higher category of posts are clearly stated to which the existing serving teachers can apply.
By way of example, Sri Mukherjee points out that under the amended Rule 6 Sub-Rule (4)(supra), the Pass and Honours level teachers are not precluded from applying for the higher category of postgraduate posts. In respect of existing postgraduate teachers, similarly they are not prevented from 4 applying for the post of Headmaster/Headmistress of either Secondary or Primary Schools, of course, in tune with their commensurate experience.
Countering the argument of the learned Counsel for the petitioners that Rule 18 of the 2015 Rules creates a moratorium of two years of approved service qua the teachers who seek a second recommendation from the Commission, Sri Mukherjee argues that both the terms of Rule 18 of the 2015 Rules read with the amended Rule 6 sub-rule (4) can be read conjointly inasmuch as the second recommendation by the Commission would lie against the application for a higher category of posts. Therefore, Sri Mukherjee argues that the amended Rule 6 sub-rule (4) has the blessings of Article 16 of the Constitution of India.
Learned Counsel for the Commission draw the attention of this Court to the Notifications of the School Education Department, Secondary Branch, Government of West Bengal dated 21st February, 2012 and 27th February, 2015. Both the Notifications contain the conditions for seeking General, Mutual and Special Transfers in respect of the existing serving teachers. Therefore, learned Counsel for the Commission make the specific point that the lateral movement of seeking a better 5 place and choice of institutions for service as claimed by the petitioners in these writ petitions is well covered by the aforesaid notifications on transfer dated 21st February, 2012 and 27th February, 2015 (supra).
Having heard the parties and on giving anxious consideration to the materials on record, this Court is of the view that the petitioners claim denial of equal opportunity by being restricted to apply only in respect of higher category of posts by way of the impugned amendment. This Court can safely fathom the fact that the opportunity claimed by the petitioners is lateral in nature since it is the common stand of all their learned Counsel that by appearing in the S.L.S.T. with the possibility of improving their standing in the merit list, each of the petitioners would be in a position to exercise a better choice of posting and institution of choice.
To the mind of this Court such lateral opportunity cannot be made strictly enforceable under the provisions of Article 16 of the Constitution which grants equal opportunity in matters of employment. The desire to obtain a better place and choice of posting through an examination which is specially designed for recruitment is not a right which can 6 conceivably qualify as an opportunity to gain employment contemplated by Article 16 of the Constitution of India.
This Court notices that the petitioners are already in employment and, by way of participation in the S.L.S.T., are only seeking to laterally improve their present condition, the scope for which can be readily found in the transfer rules vide the Notifications dated 21st February, 2012 and 27th February, 2015.
Alternatively, the petitioners have not been denied the opportunity to improve their present status by being allowed to apply for the higher category of posts, subject to their qualifications. To the mind of this Court, the extension of the opportunity to employment under Article 16 of the Constitution cannot proceed to the realm of allowing the petitioners lateral opportunities for better places and institutions of posting which stand already covered under the rules of transfer.
This Court is also required to notice that under the All India Service Rules, the existing appointees routinely appear for a second examination for the purpose of seeking a higher category or class of posts. The amended Rule 6 sub-rule (4) echoes a similar sentiment.
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In the backdrop of the above discussion, this Court finds that it is within the realm of the State to exercise a proper rationale assuring equality of employment opportunity to a large number of candidates who are yet to find employment. The petitioners stand in a different class and their present prayer is of a nature which can be taken care of by the General, Mutual and Special Rules of Transfer.
It is trite law that no act should be permitted to be done indirectly which cannot be done directly.
Therefore, at this stage, this Court is only persuaded to grant a direction for affidavits.
Let Affidavit-in-Opposition be filed within a period of three weeks from date; reply within one week thereafter.
Liberty to mention after the period granted to exchange affidavits is complete.
(Subrata Talukdar, J)