Calcutta High Court (Appellete Side)
Apu Dhar vs The State Of West Bengal & Ors on 13 March, 2012
Author: Indira Banerjee
Bench: Indira Banerjee
1
13.03.2012
W.P. No. 22142 (W) of 2011
Apu Dhar ...
-Versus-
The State of West Bengal & Ors.
Mr. Labanyamoy Sarkar,
Mr. Sandip Ghosh
...For the petitioner
Mr. Ekramul Bari,
Mr. Sambhunath De
.. For the respondent nos. 3 and 4
Mr. Dilip Kr. Sinha .. For the State The short question involved in this writ petition is, whether a candidate who participates in the selection process for appointment to the post of Assistant Teacher of a School under a District Primary School Council, constituted under the West Bengal Primary Education Act 1973, pursuant to a notification declaring a certain number of vacancies, can later, on being unsuccessful, insist that a larger number of vacancies should be filled up.
The appointment of teachers of Primary Schools in West Bengal is governed by the West Bengal Primary School. Teachers Recruitment Rules 2001, hereinafter referred to as the Rules, framed in exercise of power conferred by Sub-Section (1) and Clause-K of Sub-Section (2) of Section 106, read with Clause (K) of Sub- Section (1) of Section 60 of the West Bengal Primary Education Act, 1973.
Some of the relevant provisions of the Rules are set out herein below for convenience:
"3. Roll Strength for a teacher.-
(1)...........................
(2) No Council shall appoint teachers in primary schools within its jurisdiction beyond the number of teachers sanctioned by the State Government for the district or the sub-division.
(3)..............................................
4. Filling up vacancies.- Subject to the condition that the number of vacancies to be filled up shall not exceed the number of sanctioned posts of teachers, a Council shall (a) determine from time to time, the number of 2 vacancies in primary schools within its jurisdiction in accordance with the provisions of sub-rule (1), sub-rule (2) and sub-rule (3) of rule 3 and take steps to fill up the vacancies as and when necessary.
(b) also determine the vacancies in primary schools within its jurisdiction imparting education in any language other than Bengali, as per guidelines issued by the Government and fill in those vacancies.
6. Qualifications.- (1) No person shall be appointed by the Council as a teacher unless he-
(a) is a citizen of India;
(b) has completed the age of 18 years and has not completed the age of 40 years on the first January of the year in which the requisition for sending names of candidates is made to the Employment Exchange concerned; and
(c) possesses the minimum educational qualifications as mentioned in sub-rule(2) (2) The educational qualifications for the post of a teacher shall be-
(a) School Final/Madhyamik pass under the West Bengal
(b) Board of Secondary Education or equivalent,..........or
(c) Erstwhile Higher Secondary pass (XI class) under the West Bengal Board of Secondary Education, or equivalent............
8. Calling for the names from the Employment Exchange.- (1) The number of vacancies as determined under rule 4, except in case the vacancies mentioned in rule 14 and the vacancies to be filled by inter- council transfer under the provisions of sub-section (k) of section 19 of the Act, shall be intimated by the Council to the concerned Employment Exchange. For the purpose of preparation of panel for eligible candidates, the Employment Exchange shall be requested to send names of candidates "1:10 basis" who have requisite qualifications prescribed under sub-rule (2) of rule6:
Provided that in case of non-availability of sufficient number of candidates belonging to the scheduled castes, the scheduled tribes, other backward classes, exempted category, ex-servicemen and physically handicapped persons in the Employment Exchange of the concerned revenue district, a reference shall be made by the Council to the Special Employment Exchange, exempted category cell or the like at the State level for sending further names of candidate of respective categories. (2) The letter to the employment exchange mentioned in sub-rule (1) shall contain, among other matters.-
(a) the required minimum qualifications of candidates: and
(b) the reservation quota for candidates belonging to the Scheduled Castes. Scheduled Tribes. Other Backward Classes. Exempted Category, Ex-servicemen and for physically handicapped candidates, maintaining the existing reservation rules as framed by the competent authority, after deducting 10% from the total vacancies
(c) for appointment on compassionate ground, with relaxation of upper age limit as admissible under Government orders; and
(d) the number of vacancies to be filled up.
(3) Vacancies existing on date plus vacancies anticipated to arise against sanctioned strength, in course of next twelve months may be taken up as total vacancies while sending requisition to the Employment Exchange.
9. Selection Procedure.- (1) After the names of candidates for the posts of teachers are obtained from the employment exchange, all candidates 3 shall be communicated in writing to produce testimonials/certificates for computation of their marks in the score sheets to be prepared for the purpose of such selection.
(2) Credit shall be given and computed in the following manner;
(a) there shall be 100 marks in total as full marks;
(b) Out of 100 marks, 90 marks shall be computed and allotted in the following manner:-
(i) Academic qualifications as prescribed in clauses (a) and (b) of sub-rule (2) of rule 6
(ii) Training as prescribed in clause (d) of sub-rule (2)
(iii) Co-curricular activities as prescribed in clause (f) of sub-rule (2) 65 marks 22 marks 3 marks Total 90 marks The remaining 10(ten) marks shall be allotted for written test;
(c) the percentage of marks to the total full marks obtained by a candidate in School Final/Madhyamik Pariksha/Higher Secondary (XI class) shall be computed as percentage of 65 marks and to be recorded in the score sheet.
(d)The percentage of marks to the total full marks obtained in Junior Basic Training certificate/Primary Teachers' Training Certificate Examination or equivalent shall be computed as percentage of 22 (twenty two) and recorded in the score sheet;
(e)Marks obtained in the written test shall be recorded in the score sheet;
(f)In awarding marks for co-curricular activities one mark shall be credited for,-
(i) a certificate that he represented the district in State
(ii) level games or sports, issued by West Bengal School Sports Association;
(iii) the 'A', 'B', or 'C' level certificate of national Cadet Corps:
provided that the maximum of such marks to be credited shall not exceed three.
(3) The total marks obtained by each candidate for academic qualification, training and co-curricular activities shall be computed in the manner specified in clause ©. Clause (d) and clause (f), and a list of names of all candidates of each category, namely, general, Scheduled Castes, Scheduled Tribes, Other Backward Classes. Exempted Category, Ex-
Servicemen and physically handicapped shall be prepared in descending order of total marks obtained by them.
(4) The Selection Committee in its meeting shall finalise the total number of candidates, from the top of the list of each category mentioned in sub-rule (3) to be called for written test. The number of candidates to be called for written test shall be five times the number of vacancy unless the total number of candidates is insufficient for such written test.
(5) The candidates selected for written test shall be intimated the date, time and place of their written test.
(6) If any of the candidates called for written test as per provision of sub-rule (5), does not appear at the written test or does not comply with the instructions issued by the Council for the district or the sub-division, as the case may be, his candidature may be cancelled by the Selection Committee.
(7) After the written test all the marks, obtained by a candidate for academic qualification, training co-curricular activities and written test, shall be added up and the names of candidates shall be arranged according 4 to total marks obtained, in a descending order.
(8) After the process as laid down in sub-rule (7) is completed, the Selection Committee shall at first prepare a panel of candidates under General Category only, with all the General, Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates and shall be arranged serially according to their merit. This is because the number of Scheduled Castes, Scheduled Tribes or Other Backward Classes candidates qualifying on merit for appointment to any unreserved vacancy in a service or post in any establishment to be filled up by direct recruitment shall not be deducted from the quota reserved in service or post for such candidates.
Thereafter the Selection Committee shall prepare separate panels for Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates in the respective category as per statutory reservation rules, from amongst the remaining candidates of such categories.
In case of candidates belonging to Exempted Category, Ex- Servicemen and physically handicapped (PH) category, a separate panel shall be prepared for vacancies reserved for the respective category. Additional panel of 5% of General, Scheduled Castes, Scheduled Tribes, Other Backward Classes, Exempted Category, Ex-Servicemen and Physically Handicapped candidates shall be prepared in the same manner as referred to above in sub-rule (7). The additional panel for General category shall not include candidates from Scheduled Castes, Scheduled Tribes and Other Backward Classes category.
In case of non-availability of a suitable qualified Exempted Category candidate belonging to general, scheduled castes, scheduled tribes, other backward classes and physically handicapped, the said vacancy of exempted category candidate shall be filled up by a non-exempted category candidate belonging to general, scheduled castes, scheduled tribes, other backward classes and physically handicapped category as the case may be.
Moreover, in case of non-
availability of suitable qualified Ex-
Servicemen candidate belonging to General. Scheduled Castes, Scheduled Tribes. Other Backward Classes, the said vacancies of Ex-Servicemen category shall be filled up by non-Ex-Servicemen candidates belonging to General, Scheduled Castes, Scheduled Tribe, Other Backward Classes respectively.
(9) Thereafter all the panels thus prepared shall be placed in the meeting of the Council for passing and the total number of eligible candidates included in the panel shall be the same as the number of vacancies plus 5% of such existing vacancies.
10. Approval of the Panel.- (1) The panels, after being passed in the meeting of the Council, shall be sent in triplicate to the Director with all necessary papers for approval.
511. Appointment letters.- (1) After the panels of eligible candidates are prepared and approved according to these rules, appointment letters shall be issued to the candidates from the approved panel serially for the vacancies as referred in clause © of sub-rule (2) of rule 8..................
In case of non-joining of candidates within stipulated time from out of the normal panel, the Council may issue appointment letter from the aforesaid additional 5% names in excess of the panel provided the normal panel is exhausted and the vacancies as worked out remain unfilled.
(2)......................
(3) No appointment shall be made beyond notified vacancy for which the panel is to be prepared and the inclusion of name in the panel shall not constitute a claim for appointment.
13. validity of the panel.- Approved panel shall remain valid normally for one year from the date of approval by the Director or his authorized officer provided that the Director or his authorized officer may extend the validity of such panel by six months at a time, but the total period of such extension shall not exceed one year."
On or about 12th April, 2006, the District Primary School Council, North 24 Parganas requisitioned candidates from the employment exchange to fill up 3965 vacancies of Assistant Teachers of Primary Schools in North 24-Parganas district, that had been notified. Candidates were requisitioned from the employment exchange on the ratio of 1:10. About 3965 vacancies having been declared, about 39650 candidates were sponsored by the Employment Exchange.
The name of the petitioner was sponsored by the employment exchange along with others. The petitioner participated in the written test, but could not secure appointment. In the writ application it is alleged that the petitioner had expected to secure higher marks in the written test. However, actual performance is seldom exactly as per expectation. Others might have performed better Moreover this 6 Court exercising jurisdiction under Article 226 of the Constitution of India cannot sit in appeal over assessment of answers in a written test, made by qualified, competent and experienced examiners.
This writ application has been moved on the contention that 797 vacancies that were generated in the year 2007 upto the month of December, 2007, had not been taken into account in determining the vacancies for the year 2006 Mr. Bari emphasized Rule 8(3) of the Rules, which provides that vacancies existing on date plus vacancies anticipated in course of the next twelve months may be taken as total vacancies while sending requisitions to the Employment Exchange.
Mr. Bari argued that the issues involved in this writ petition were identical to the issues involved in the writ petition being W.P. No. 18405 (W) of 2010 (Santosh Kumar Majumder and others vs. The State of West Bengal and others) which was disposed of by His Lordship, the Hon'ble Justice Biswanath Somadder by a judgment and order dated 16th December, 2010, whereby the Chairman of the Council was directed to consider the candidatures of the concerned writ petitioners and forward their names for approval to the office of the Director of School Education, West Bengal, provided, of course, they conformed to and fulfilled all statutory requirements and eligibility criteria.
The relevant part of the judgment and order of His Lordship is set out herein below for convenience:
"However, it appears that 797 (seven hundred and ninety seven) vacancies were generated in the year 2007 up to the month of December, 2007, but were not included and/or considered for the purpose of recruitment.
It has been fairly submitted by the learned advocate appearing on behalf of the Council, upon instruction that actually at the time of recruitment in January / February, 2010, the total vacancy should be included those additional 797 (seven hundred and ninety seven) vacancies as anticipated vacancies, as envisaged under Rule 8(3) of the West Bengal Primary School Teachers Recruitment Rules, 2001. The written instructions to this effect be kept on record.
The recruitment rules governing the recruitment process so far as the writ petitioners are concerned appears to be the West Bengal Primary School Teachers Recruitment Rules, 2001 (hereinafter referred to as the 'said Rules'). A bare perusal of the said Rules goes to show that for the purpose of calling of the names from the concerned employment exchanges, Rule 8(3) of the said Rules provides for vacancies, existing of date plus vacancies anticipated to arise against sanctioned strength in course next 7 twelve months, are to be taken up as total vacancies, while sanctioning requisition to the employment exchange. in view of Rule 8(3) of the said Rule, it is, thus , clear that the concerned Council is required to anticipate the vacancies which might arise against the sanctioned strength in course of the next twelve months, to be calculated from the date of declaration of vacancies in a particular year.
In such circumstances, this Court is of the view that the writ petition can be disposed of with a direction upon the Chairman of the Council to consider the candidature of the writ petitioners and forward ;their names for approval to the office of the Director of School Education, West Bengal, provided, of course, they conform to and fulfil all statutory requirements and eligibility criteria. The entire exercise, in terms of this order, shall be completed by the Chairman of the Council as expeditiously as possible, preferably within a period of six weeks, but not later than eight weeks from the date of communication of a photostat certified copy of this order."
The aforesaid order was passed on the concession of the learned Advocate appearing on behalf of the Council that additional 797 vacancies that arose in 2007 should have been included as anticipated vacancies, when the total number of vacancies was determined. It is on the basis of this concession that His Lordship directed the Chairman of the Council to consider the candidatures of the concerned writ petitioners and forward their names for approval. His Lordship appears to have been misled by the submission of the learned counsel appearing on behalf of the District Primary School Council, who was perhaps not properly instructed in the matter.
His lordship's attention was apparently not drawn to Rule 11(3) which provides that no appointment shall be made beyond the notified vacancy for which the panel is prepared and even inclusion of name in the panel would not constitute a claim for appointment. In this case, the petitioner was not even empanelled.
In the Rules, there are some provisions which are mandatory and others which are directory. The criteria of eligibility for appointment as a Primary Teacher, as given in Rules 6(1) and 6(2) of the Rules is mandatory and inflexible.
Rule 4 casts a mandatory duty on the Primary School Council to determine from time to time, the number of vacancies in primary schools within its jurisdiction, in accordance with the provisions of the relevant rules and take steps to fill up the vacancies as and when necessary, subject to the condition that the number of vacancies to be filled up do not exceed the number of sanctioned posts of teachers.
8Under Rule 8(1) as it stood at the material time when the selection process for appointment to vacancies notified for the year 2006 commenced, the Primary School Council was obliged to intimate the concerned Employment Exchange of the number of vacancies that had been determined. The use of the word "shall" in Rule 8(1) lends support to the aforesaid view.
Rule 8(1) provides that the number of vacancies as determined under Rule 4, shall be intimated by the Council to the concerned employment exchange, for the purpose of preparation of a panel of eligible candidates, and the employment exchange is to be requested to send names of candidates as per 1:10 ratio, provided of course, the candidates have the requisite qualifications and are within the prescribed age limit.
Subsequently, the Rules have been amended and it is now necessary to advertise the vacancies in addition to requisitioning candidates from the concerned employment exchange. All eligible candidates might apply, irrespective of whether their names are sponsored by the employment exchange or not. The amendment has no application to the recruitment process in question. At the material time, that is, in 2006, appointments were made through the employment exchange as per the rules in existence then.
Rule 8(3), as observed above, provided that the vacancies existing on date, plus vacancies anticipated to arise against sanctioned strength, in course of the next twelve months, might be taken as the total vacancies, while sending requisitions to the employment exchange. The use of the word "may" in Rule 8(3) in contrast to the use of the word "shall" in inter alia Rules 4, 5, 6(1), 6(2), 6(4) 8(1) and 8(2) makes it clear that the Rule makers did not intend Rule 8(3) to be mandatory. Rule 8(3) is an enabling provision which empowers the Council to take note of anticipated vacancies when a requisition is sent to the employment exchange.
The entire object of Rule 8(3) is to ensure that the posts of teachers of primary schools are not kept vacant for a long period of time. If only existing vacancies could be taken into account, posts which later fell vacant would remain vacant for a considerable period of time, as appointments are generally made only once a year and in any case a lot of time is consumed for completion of the selection process and issuance of appointment letters.
9In view of Rule 8(3), an obligation has been cast on the Primary School Council to make an estimate of vacancies and call for names from the employment exchange. However, the requirement to take all vacancies anticipated in the following year into account for determining the total number of vacancies is directory and not mandatory and failure to do so neither vitiates the selection process nor gives any right to candidates who had participated in the selection process for filling up 3965 vacancies, to insist on their appointment to the additional vacancies, which had not been notified.
Had the additional vacancies that arose in 2007, been taken into account, the number of competitors would also have been higher upon application of the 1:10 ratio, since about 8000 more candidates would have been requisitioned.
The question is, whether a candidate can, after participation in the selection process, claim any unfair advantage. The answer to the aforesaid question cannot but be in the negative. Even assuming that the Primary School Council committed an error in not including 797 vacancies, no unsuccessful candidate can insist that all those vacancies be filled up, or claim any consideration to those vacancies, for reasons already discussed above.
The reliefs prayed for by the petitioners cannot be granted in view of Rule 11(3) which prohibits appointment beyond notified vacancy, even of empanelled candidates. Even otherwise, it is the prerogative of the employer to decide whether to fill up vacant posts and if so, when.
Rule 8(3) does not, in any case, confer any right on any intending candidates to insist that a larger number of vacancies than those notified should be filled up, and certainly not after participating in the selection process and being unsuccessful.
The subsequent vacancies had openly been advertised. If the petitioner was eligible, he could have applied and competed for selection. In appointment of teachers, what is of paramount importance is the interest of the students for whom the teachers are appointed. In view of the amendment to the rules, all eligible candidates were entitled to apply. There would be more competition and the best candidates as per their performance would be selected as per the Rules. There is no reason why this Court should restrict appointments to the 797vacancies which 10 arose in 2007, only to candidates who participated in the selection process in 2006.
The prayer of the petitioner for a direction on the Chairman of the District Primary School Council to consider his representation, cannot be allowed for reasons discussed above. In any case, consideration of the representation would be nothing but an exercise in futility in view of the submission now made that 797 posts have subsequently been filled up.
The writ application is disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the learned Advocates appearing for the parties subject to compliance with the requisite formalities.
(Indira Banerjee,J.)