Calcutta High Court (Appellete Side)
Sm. Krishna Khatua vs State Of West Bengal & Ors on 19 February, 2015
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
W.P. 25384(W) of 2005
Sm. Krishna Khatua
Vs.
State of West Bengal & Ors.
For the petitioner : Mr. Sutirtha Das, Advocate
Heard on: - February 12, 2015.
Judgment on: - February 19 , 2015.
Ashis Kumar Chakraborty, J.
In December, 1996, the petitioner was selected as an Assistant Teacher in Bengali of Subdi Sitanath Vidyapith, in the District of Purba Midnapur. The petitioner is a Post Graduate in Bengali. She secured 50.2% marks in Madhyamik Examination, 42% marks in Higher Secondary Examination, 49% marks in Bengali (Hons.), 49.9% in Post Graduation and 54.4% in B.Ed.
In this writ petition, the petitioner has challenged a notification bearing no. 760-SE(S) dated June 20, 2005 issued by the Principal Secretary to the Government of West Bengal on behalf of the Governor (hereinafter referred to as "the impugned notification"). From February, 1998 the recruitment to the post of all Teachers including Headmaster/Headmistress, in a recognized Non- Government aided High/Higher Secondary Schools as also Secondary and Junior High Schools (hereinafter referred to as "the said Schools"), are conducted under the provisions of the West Bengal School Service Commission Act, 1997. Before issuance of the impugned notification, the essential educational qualification for selection to the post of the Headmaster/Headmistress of the said schools were governed by conditions specified by the notification bearing no. 14- SE(S) dated January 08, 1998 issued by the same authority who issued the impugned one. As per the notification dated January 08, 1998, as amended by notification dated February 23, 2001, the essential educational qualification, for the post of Headmaster/Headmistress of the said schools was Master/Honours (Regular/Special) Degree with good academic records, criteria for which will be laid down by Central School Service Commission and a degree in Bachelor of Teaching/Bachelor in Education. There was no requirement of securing minimum marks at the Secondary or Higher Secondary level. By the impugned notification, the said notification dated January 08, 1998 was further amended to the effect that, in order to be eligible to apply for selection for the said posts of Headmaster/Headmistress of the said schools, the candidate must also have scored at least 45% marks both at the Secondary and Higher Secondary level, 40% marks in the Honours subject at Honours Level etc. The impugned notification was issued in exercise of power conferred on the State Government by Section 8(1) read with Section 17(1) and 17(2)(d) of the West Bengal School Service Commission Act, 1997 (hereinafter referred to as "the said Act of 1997") and Sub-Rule 7 of West Bengal School Service Commission Rules 1997.
After issuance of the impugned notification dated June 20, 2005, the respondent no. 2, that is, the West Bengal Central School Service Commission published the Information Brief, Application Form (hereinafter referred to as "the said Information Brief"), for appointment of Headmaster/Headmistress of the said schools. The said Information Brief provided that one of the essential qualifications of a candidate to be eligible to apply for the said post Headmaster/Headmistress of the said schools was Master Degree with at least 45% marks both at the Secondary and the Higher Secondary level. The petitioner submitted her application to the concerned respondents, in the prescribed format, for the post of Headmistress of two schools namely, Gopinathpur Balika Vidyalaya, Bhagabanpur and Ajaya Balika Vidyalaya, Bansgora, Khejuri, District Purba Medinipur and thereafter filed this writ petition. In the writ petition, the petitioner challenged the vires of the impugned notification in so far as the same lays down the requirement of 45% marks both at the Secondary and Higher Secondary level and prayed that she should be permitted to sit in the selection test of 2005 for appointment to the post of Headmistress of Gopinathpur Balika Vidyalaya and Ajaya Balika Vidyalaya which are junior High Schools. The ground of challenge to the impugned notification by the writ petitioner, was that the essential educational qualification requiring a candidate seeking to apply for the post of Headmaster/Headmistress of the said schools must have scored at least 45% marks, both at the Secondary and Higher Secondary level is illegal, unjust, unreasonable and arbitrary and the same results in violation of her fundamental rights guaranteed to her under the Constitution of India. Thus, the petitioner has challenged only one of the essential conditions stipulated in the impugned notification, that is, with regard to the requirement of minimum 45% marks both at Secondary and Higher Secondary level and not the condition of 40% marks in the Honours subject, at the Honours level. In the writ petition, on January 20, 2006 an order was passed by the learned Single Judge of this Court restraining the respondent School Service Commission from making any recommendation in respect of any of the aforesaid two schools until February 15, 2006. The said order further directed that if any recommendation has been made in the mean time, the same shall not be given effect to till February 15, 2006. The said interim order dated January 20, 2006 was extended from time to time. In November , 2006, one Rekha Paul filed an application, praying for being added as a party respondent in this writ petition, on the ground that she participated in the selection procedure conducted by the respondent nos. 2 and 4 service commissions as per the said Information Brief and she was selected for the post of the Headmistress of Gopinathpur Balika Vidyalaya. The said application was allowed and the said Smt. Rekha Paul was impleaded as the respondent no. 8 in this writ petition.
Thereafter, the said Rekha Paul filed another application being CAN 8835 of 2007 praying for an order directing the respondent nos. 3, 4 and 5 (the Chairman of the West Bengal Central School Service Commission, the West Bengal School Service Commission, West Region and its Chairman respectively) to make the recommendation for her appointment to the post of Headmistress of the said Gopinathpur Balika Vidyalaya. By an order dated April 08, 2008, a learned Single Judge of this Court allowed the said application CAN 8835 of 2007 by directing the third, fourth and fifth respondents to take necessary steps, within a period of fortnight, for recommending the respondent no. 8/Rekha Paul for the post of Headmistress in the said Gopinathpur Balika Vidyalaya.
Thus, it is evident that the selection process initiated by the respondent authorities to the post of Headmaster/Headmistress, as per the said Information Brief, in terms of the said impugned notification dated June 20, 2006 was given effect to by selecting various persons, including the said Mrs. Rekha Paul, as the Headmaster/Headmistress of the various schools. However, the petitioner was not allowed to participate in the selection procedure initiated in terms of the said Information Brief. Further, when the said order dated April 4, 2008 was passed by the learned Single Judge directing the third, fourth and fifth respondents to recommend the said Rekha Paul for the post of Headmistress of the Gopinathpur Balika Vidyalaya, the writ petitioner was represented by her Advocate. However, the writ petitioner could not substantiate any illegality in the impugned notification that was given effect to in the selection process conducted by the respondents in terms of the said Information Brief. Further, the petitioner did not challenge the said order dated April 4, 2008 passed by the learned Single Judge before the Division Bench.
From May 2008, this writ petition was pending and for some time the writ petition was appearing under the heading "unattended writ petitions". None of the respondents has filed any affidavit-in- opposition.
When the writ petition was taken up for hearing on February 11, 2015, Mr. Sutirtha Das, learned advocate led by Mr. Subir Sanyal, advocate argued the matter on behalf of the petitioner. However, none appeared to represent any of the respondents. Mr. Das , on behalf of the writ petitioner, submitted that the said order dated April 4, 2008 was an interim order and the said order has no bearing on the right of the petitioner to challenge the impugned notification at the final hearing of the writ petition. According to him, even today the writ petitioner has a right to apply for being selected to the post of Headmistress of any of the said Schools, but the impugned notification deprives her of the said right.
Mr. Das, strenuously urged that the impugned notification dated June 20, 2005 requiring a candidate to be eligible to apply for the post of Headmistress/Headmaster of the said school to have scored at least 45% marks both at the Secondary and Higher Secondary level is arbitrary and the said notification cannot be made applicable in respect of Assistant Teachers appointed prior to 2003. In support of such contention, he relied on the decision of the Supreme Court in the case of T.R. Kapur and Ors. vs. State of Haryana and Ors. reported in 1986(Supp.) SCC 584.
I have considered the aforesaid submissions made by Mr. Sutirtha Das appearing for the writ petitioner, but I am unable to accept his contentions. The petitioner did not challenge the impugned notification on the ground of lack of authority of the Principal Secretary of the Government of West Bengal for the Governor to issue the same. It is the case of the petitioner herself that the post of Headmistress/Headmaster of the said schools is the promotional post from the post of Assistant Teacher. It is not that as per the earlier notification dated January 08, 1998 all the Assistant Teachers of said schools are entitled to apply for the said post of Headmaster/Headmistress as matter of right, without fulfilling the criteria of minimum educational qualification of Master Degree with good academic records and a degree in Bachelor of Teaching/Bachelor in Education/Post Graduate Basic Training from any recognized University etc. Now, the competent authority took a policy decision and issued the impugned notification prescribing an essential educational qualification for a person applying for the post of Headmaster/Headmistress of the said schools must also have scored at least 45% marks both in Secondary and Higher Secondary level and 40% marks in the Honours subject in the Honours level. The petitioner has not challenged the requirement fixed by the impugned notification for at least 40% marks in the Honours subject in the Honours level. Mr. Das appearing for the writ petitioner could not satisfy me as to how the object of fixing such essential educational qualification for minimum 45% marks at both Secondary and Higher Secondary level by the impugned notification can be claimed to be either unreasonable or irrational or arbitrary. Thus, I find no illegality in the impugned notification in so far as the same added the essential educational qualification, for the post of Headmaster/Headmistress of the said school, minimum 45% marks both at the Secondary and Higher Secondary level.
Further, it is already found that writ petitioner has accepted the said order dated April 08, 2008 passed by a learned Single Judge of this Court upholding the claim of the respondent no. 8 to be appointed as a Headmistress of the said Gopinathpur Balika Vidyalaya as a result of the selection procedure conducted by giving effect to the impugned notification. The entire selection process for appointment of Headmistress of all the schools, including the two schools mentioned by the petitioner in the prayer of the writ petition, in terms of the said Information Brief of 2005 appear to have been completed. In the case of T.R. Kapur (supra) cited by Mr. Das, the Supreme Court held that the impugned notification was issued by the State of Haryana with retrospective effect to nullify the decision of the Supreme Court in the case of A.S. Parmar vs. State of Haryana reported in AIR 1984 SC 643. In the said case reported in AIR 1984 SC 643, the Supreme Court held that a degree for Engineering was not essential for promotion of Assistant Engineers in the Irrigation Branch to the Post of Executive Engineer in Class I service. The notification impugned in the said case made a degree for Engineering as essential qualification for promotion to Class - I service. The dispute raised in the said case was with regard to promotion to the post of Executive Engineer in Class-I Service from the post of direct recruitment of Assistant Engineer in Class-I service and from the post of Sub-Divisional Officers belonging to Class-II service. The Supreme Court quashed the impugned notification on the ground that the notification sought to nullify the Court's decision in the said case of A.S. Parmar vs. State of Haryana and that a right vested in favour of an employee by a Rule cannot be taken away by retrospective amendment of the same Rule. In paragraph 14 of the said decision the Supreme Court also held as follows:-
"The requirement of a degree in Engineering, which was an essential educational qualification for purposes of direct recruitment of Assistant Executive Engineers in Class - I service under Rule 6(a) of the Class I Rules could not be projected for promotion of Sub-Divisional Officers belonging to Class II service to the posts of Executive Engineers in Class I service under Rule 6(b) as they formed two distinct sources from which the appointments to the posts of Executive Engineers could be made."
From the aforesaid, it is evident that the said decision in the case of T.R. Kapur (supra) has no manner of application in this case. In any event, with effect from September 26, 2007, the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2007 (hereinafter referred to as "the said Rules of 2007") has come into effect and all appointments to the post of Headmaster/Headmistress of the said schools whether High/Higher Secondary school or Junior High School are presently governed by the said Rules. As per Rules 3 and 4 read with schedule 1 of the said Rules of 2007, one of the essential educational qualifications, for the post of Headmaster/Headmistress of the said schools, is also that the candidate must have secured at least 45% marks both at the Secondary level and Higher Secondary level. Thus, any present claim of the petitioner to apply for the post of Headmistress of any of the High/Higher Secondary school or Junior High School, has to fulfil the said essential educational qualification laid down in the said Rules of 2007. However, the petitioner has not challenged the validity of any provision contain in the said Rules of 2007.
For all the foregoing reasons, I find no merit in this writ petition and the writ petition stands rejected.
However, there will be no order as to costs.
[ Ashis Kumar Chakraborty, J.]