Calcutta High Court (Appellete Side)
For The vs Upendra Rai & Ors on 24 June, 2010
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
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AST 425-429 of 2010 & AST 435-438, 440-442, 444--450 of 2010
24.06.2010 AST 425 of 2010
Re: An application for stay (ASTA 130 of 2010)
With
AST 426 of 2010
Re: An application for Stay (ASTA 131 of 2010)
With
AST 427 of 2010
Re: An application for Stay (ASTA 132 of 2010)
with
AST 428 of 2010
Re: An application for Stay (ASTA 133 of 2010)
with
AST 429 of 2010
Re: An application for Stay (ASTA 134 of 2010)
with
AST 435 of 2010
Re: An appln. for further order (ASTA 145 of 2010)
With
AST 436 of 2010
Re: An appln. for further order (ASTA 144 of 2010)
With
AST 437 of 2010
Re: An appln. for further order (ASTA 138 of 2010)
With
AST 438 of 2010
Re: An appln. for further order (ASTA 143 of 2010)
With
AST 440 of 2010
Re: An appln. for further order (ASTA 141 of 2010)
With
AST 441 of 2010
Re: An appln. for further order (ASTA 139 of 2010)
With
AST 442 of 2010
Re: An appln. for further order (ASTA 137 of 2010)
With
AST 444 of 2010
Re: An appln. for further order (ASTA 142 of 2010)
With
AST 445 of 2010
Re: An appln. for further order (ASTA 146 of 2010)
With
AST 446 of 2010
Re: An appln. for further order (ASTA 140 of 2010)
With
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AST 425-429 of 2010 & AST 435-438, 440-442, 444--450 of 2010
AST 447 of 2010
Re: An appln. for further order (ASTA 157 of 2010)
With
AST 448 of 2010
Re: An appln. for further order (ASTA 159 of 2010)
With
AST 449 of 2010
Re: An appln. for further order (ASTA 147 of 2010)
With
AST 450 of 2010
Re: An appln. for further order (ASTA 148 of 2010)
Mr. Bikash Ranjan Bhattacharyya,
Mr. Kamalesh Bhattacharyya.
... For the appellants.
Mr. Balai Chandra Ray, Ld. Advocate Gen.,
Mr. Jaydeep Kar,
Mr. Tapabrata Chakraborty,
Mr. Kumaresh Dalal.
... For the State.
Mr. Saikat Banerjee.
... for the Primary Board.
Mr. Tulsidas Maity.
... For the Primary Council.
In stead of hearing of the stay applications, with the
consent of the learned counsel for the parties we have taken
the appeals itself for hearing by treating the same as on
day's list.
2. These appeals are directed against the order dated
16th June, 2010 of the learned Single Judge declining to
grant any interim relief sought for by the writ petitioners in
the writ petitions challenging the amendments to the West
Bengal Primary School Teachers Recruitment Rules, 2001,
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mentioned in the notification dated 20th May, 2009 and
24th July, 2009, as further clarified by notification dated
23rd April, 2010.
3. Respondent no.4, District Primary School Council,
Purba Midnapore issued an advertisement dated 30th
August, 2009 inviting applications for about 4000 posts of
primary teacher including those reserved for various
categories. On the basis of the amended Rules requiring
the District Primary School Council (hereinafter referred to
as the DPSC) to prepare a merit list of the candidates to be
called for the written test in the ratio 1:15 in the total
number of vacancies to be filled (as per the amendment
made by Notification dated 27th July, 2009), the DPSC
accordingly prepared a merit list of the candidates in each
category to be called for the written test scheduled to be
held on 27th June, 2010. The appellants' names are not
included in the said merit lists and therefore, the
appellants filed the writ petitions challenging the above
amendments to the Recruitment Rules of 2001 and prayed
for mandatory interim direction to the respondent
authorities for permitting the appellants to participate in
the selection process by appearing at the written test
scheduled on 27th June, 2010. The learned Single Judge
declined to grant interim relief. Hence, these appeals.
4. Mr. Bikash Ranjan Bhattacharyya and other learned
counsel appearing for the appellants have submitted that
the appellants are trained candidates who have undergone
training for primary teachers as required by the National
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Council for Teachers Education (in short NCTE) under the
NCTE (determination of minimum qualifications for
recruitment of teachers in schools) Regulations 2001. It is
submitted that under the NCTE Act, 1993, the said council
has power to make regulations and as per the said
regulations, for appointment of a teacher in a primary
school, a candidate must possess the following
qualification of primary teachers' training.
5. It is submitted that in view of the above statutory
regulations laid down in the first schedule to the said
Regulations of 2001, the respondent-authorities are bound
to give weightage to the basic teachers training. Prior to the
amendments made on 20th May, 2009, Rule 6(6) gave
priority and preference to the candidates having primary
teachers training qualification from recognised institutions
and, therefore, Rule 9 of the Recruitment Rules, 2001
prescribed that out of total 100 marks for which the
candidate will be assessed, 22 marks will be earmarked for
teachers' training as reflected in the marks obtained in
Junior Basic Training certificate/Primary Teachers Training
Certificate Examination or equivalent.
6. Relying on the decision of the Apex Court reported in
(2005) 7 SCC 567 it is submitted by the learned counsel for
the writ petitioners that the basic teachers' training is
essential for being competent to teach children in primary
school and, therefore, prior to the amendment, Rule 9
laying down the selection procedure rightly prescribed 22
out of 100 marks as the weightage to be given for such
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training. The impugned amendments have however made
retrograde changes by not prescribing any marks for
training. It is, therefore, submitted that if weightage is given
for training as per the pre-amended Rule 6(6) and Rule 9,
the appellants would be definitely included in the merit list
of candidates to be called for the written test.
7. On the other hand, learned Advocate General with
Mr. Kar, learned Government Pleader has opposed the
appeals and submitted that the entire matter is governed by
statutory rules as amended and that the amended rules do
not provide for any weightage to be given for training.
8. Relying on the decision of the Apex Court reported in
(2008) 3 SCC 432 in the case of Basic Education Board,
U.P. -Vs- Upendra Rai & Ors, it is submitted by the learned
Advocate General that the NCTE Act, 1993 was made to
regulate teachers' training system and the teachers'
training institutes in the country. There are two types of
education institutions - (1) ordinary educational
institutions like primary schools, high schools, intermediate
colleges and universities, and (2) teachers' training
institutes. The NCTE Act only deals with the second
category of institutions viz., teachers' training institutes. It
has nothing to do with the ordinary educational
institutions. Hence, the qualification for appointment as
teacher in the ordinary educational institutions like the
primary schools, cannot be prescribed under the NCTE Act.
The essential qualifications are prescribed by the local Acts
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and Rules in each State. In the case before the Apex Court,
it was held that in U.P. the essential qualification for
appointment as a primary school teacher in a junior basic
school is prescribed by Rule 8 of U.P. Basic Education
(Teachers) Service Rules, 1981 which have been framed
under the U.P. Basic Education Act, 1972. A person who
does not have the qualification mentioned in Rule 8 of the
aforesaid Rules, cannot validly be appointed as an
Assistant Master or Assistant Mistress in a Junior Basic
School.It is submitted that similarly recruitment of Primary
Teachers in the State of West Bengal is governed by the
West Bengal Primary School Teachers' Recruitment Rules,
2001 as amended from time to time which are framed
under Section 105 of the West Bengal Primary Education
Act.
9. We find that prior to 16th December, 2005 West
Bengal Primary School Teachers' Recruitment Rules, 2001
provided for the following educational qualification as the
essential minimum qualification :
" (2) The educational qualifications for the post of a
teacher shall be -
a) School Final/Madhyamik pass under the
West Bengal Board of Secondary Education
or equivalent , with training
b) Erstwhile Higher Secondary pass (XI class )
under the West Bengal Board of Secondary
Education or equivalent with training.
(emphasis supplied)
However, the words "with training" were omitted by
amendment vide Notification dated 16.12.2005 and by the
same Notification, the following sub-rule (6) was inserted -
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AST 425-429 of 2010 & AST 435-438, 440-442, 444--450 of 2010
"6(6). Priority and preference will be given to
candidates having requisite training from a recognised
institute (provided candidates will be recruited on merit
basis if trained candidate is not available".
(emphasis supplied)
Between 16-12-2005 and 19-05-2009, the relevant
portion of Rule 9 presenting the Selection Procedure reads
as under :
"(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
..........65 marks
ii) Training as prescribed in clause (d) of
sub-rule (2)
..........22 marks
iii) Co-curricular activities as prescribed
in clause (f) of sub-rule (2)
..........03 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.
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(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;"
10. By the impugned Notification dated 20th May, 2009
Rule 6 has been substituted and the amended Rule
prescribes only the following qualification :
"....possess the pass certificate in the School
Final/Madhyamik examination or erstwhile Higher
Secondary Pass (XI class) examination under the
West Bengal Board of Secondary Education or its
equivalent qualification."
Preference clause for trained candidates has been
omitted and sub-rule (3) of Amended Rule 6 also provides
that no extra marks shall be given for higher academic
qualification at the time of selection of teachers.
By the amendment made on May 20, 2009 Rule 9
has been substituted and the relevant portion of Rule 9
reads as under:
" Total marks for assessment of a candidate shall be
of 50 marks as under:
(i) Academic Results : 25 marks.
(ii) Extra Curricular activity : 03 marks.
(iii) Written examination : 11 marks
(iv) aptitude test/interview : 11 marks
Explanation 1. - 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 25
marks."
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11. Thereafter, by the amendment Notification dated
July 27, 2009 Rule 9 has been further amended and the
relevant portion of the amended Rule 9 reads as under:
"(2) The Selection Committee shall thereafter prepare
a merit list of the candidates to be called for the
written test in the ratio of 1:15 of the total number of
vacancies to be filled;
(3) Total marks for assessment of a candidate shall
be of 50 marks as under:
(i) Written Examination : 30 marks.
(ii) Aptitude Test/Interview : 17 marks.
(iii)Extra Curricular Activities : 03 marks."
The subsequent notification dated 23rd April, 2010
provides that out of 17 marks to be awarded under head
(ii), 12 marks shall be awarded on the basis of marks at the
Secondary Education Board Examination and the
remaining 5 marks shall be awarded on the basis of
performance at the interview.
12. Learned Advocate General has submitted apart from
28,000 vacancies recently filled in from out of candidates
sponsored by the Employment Exchanges as required
under the pre-amended rules, there are 32,000 vacancies
of Primary School Teachers which are being filled in in the
present recruitment process in the State after issuing
advertisements in Newspapers and that the respondent
DPSC has advertised about 4000 vacancies on 30th August,
2009. It is submitted that as per amended Rule 9(2) the
Selection Committee has prepared a merit list of candidates
to be called for the written test in the ratio 1:15 of the total
number of vacancies to be filled in each category and such
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AST 425-429 of 2010 & AST 435-438, 440-442, 444--450 of 2010
merit lists have to be prepared and have been prepared
according to the merit assessed on the basis of the results
of the Secondary Education Board Examination. Since the
appellants did not score sufficient marks at Secondary
Examination to be included in such lists, the appellants
have not been called for the written examination. Hence,
they have no right to make any grievance.
13. It is further submitted that as per the decision of
the Apex Court in Basic Education Board, UP (2008) 3 SCC
432, NCTE Act regulates teachers training system and
teachers training institutes in the country but ordinary
educational institutions like primary schools are not
governed by the said Act. Hence, it is open to the State
Government to prescribe such educational qualification as
it considers appropriate for laying down the eligibility
criteria of primary school teachers. In the State of West
Bengal there were only 20 institutions with recognition
from NCTE and 118 institutions imparting training through
a one year course. In the case of Tulsi Bakshi (2008) 4 CHN
905 this Court did not consider such training to be
satisfying the norms laid down by the NCTE for the period
from 2005-2006 onwards and,therefore, the State
Government had to make the amendment to the West
Bengal Primary School Teachers' Recruitment Rules, 2001
and the words "with training" were required to be deleted in
sub-rule (2) of Rule 6. It is true that candidates with
training from a recognized institute were to be given
priority and preference under sub-rule (6) of Rule 6.
However, candidates with such training are very few and it
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would not be possible for the State Government to fill in
32000 vacancies and to call proportionate number of
candidates (15 times the number of vacancies) for written
test. Hence, Rule 6 as well as Rule 9 were amended on 20th
May and 27th July, 2009 and the amended Rules do not
provide for any weightage for training. Any directions to the
respondents to call the appellants for written test in spite
of their having obtained less marks in the Secondary
Education Board Examination would mean giving a go-bye
to the amended statutory rules.
14. Having heard the learned counsel for the parties,
we find that in view of the decision of the Apex Court in
Basic Education Board, U.P. vs. Upendra Rai & Ors., (2008)
3 SCC 432, and non-availability of sufficient number of
trained candidates in the State, while the State
Government has shown power as well justification for
deleting the words "with training" in Rule 6 of the
Recruitment Rules, 2001 prescribing the eligibility criteria
for appointment of teachers in primary schools in the State
of West Bengal, however, we do not find any rational
justification for deleting sub-rule (6) of pre-amended Rule 6
which reads as under:
" Priority and preference will be given to candidates
for requisite training from a recognised institute
(provided candidates will be recruited on merit basis
if trained candidate is not available)"
The bracketed portion permitting the authorities to
recruit untrained candidates, if trained candidates are not
available, is sufficient to ensure that primary schools in the
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State would not be left without teachers, if candidates with
requisite training from NCTE recognised institute are not
available.
15. It is true that the learned Advocate General was at
pains to point out that the training imparted by a large
number of institutions (as many as 118 out of 138 in the
State) was found to be not matching up to NCTE norms as
held by another Division Bench of this Court in Tulsi
Bakshi's case reported in (2008) 4 CHN 905 and, therefore,
the State Government was justified in doing away with
priority and preference given to candidates having training
from institutions not recognised by NCTE, but no rational
justification is given for taking away priority or preference
even from candidates having requisite training from
institutes recognised by NCTE. Prima facie the Rule making
authority appears to have adopted the approach of
"throwing the baby out with water in the bath tub".
16. However, at this stage the question is what interim
arrangement should be made during pendency of the writ
petitions, when written examination is scheduled to be held
on 27th June, 2010. For 4000 vacancies, 60,000 candidates
will be appearing at the written examination. Any direction
to the respondent authorities to permit the appellants to
appear at the written examination will amount to directing
the authorities to permit the candidates with lower marks
at the Secondary School Examination to appear at the
written examination. There may be several other
candidates who might have obtained more marks than the
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appellants, but less marks than those obtained by the last
candidate in the merit list of candidates called for the
written examination. We are, therefore, of the view that any
interim direction at this stage to re-arrange the merit list of
candidates to be called for the written test will only
dislocate and delay the selection procedure when
thousands of primary schools in the State are without
teachers.
17. At the same time, if the selection procedure goes on
and all the 32,000 vacancies are filled in, not only
candidates with primary teachers training qualification
obtained from institutions recognized by NCTE will be
denied the incentive of better employment prospects but
students of tender age in Primary Schools will be deprived
of their expertise which has been explained by the Apex
Court in the case of Dilip Kumar Ghosh & Ors. Vs.
Chairman & Ors reported in (2005) 7 SCC 567 in the
following terms:
In the case of the junior basic training and primary
teachers training certificate the emphasis is on the
development of the child. In the primary school, the
teacher has to study the psychology and
development of the child at a tender age. Primary
School Teachers with such training can impart
proper education to the child of tender age who
requires an expert and tending hand.
18. While we are conscious that the matters are at the
interlocutory stage, we cannot overlook the reliefs which
the Writ Court may consider granting at the hearing of the
writ applications. In this context we may quote the
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following pertinent observations made by the Apex Court in
Shiv Shankar Dal Mills vs. State of Haryana, 1980 (2) SCC
437 :
"Article 226 grants an extraordinary remedy which
is essentially discretionary although founded on
legal injury. It is perfectly open for the Court,
exercising this flexible power, to pass such order as
public interest dictates and equity projects :
'Courts of equiry may, and frequently do, go
much further both to give and withhold relief
in furtherance of the public interest than they
are accustomed to go where only private
interests are involved. Accordingly, the
granting or withholding of relief may
prooperly be dependant upon considerations
as of public interest.........2'
(2. 27 Am Jur 2/d Equiry,
p.626)"
(emphasis supplied)
19. We are, therefore, of the view that some interim
arrangements is required to be worked out without
disturbing the selection process, so that in case the
appellants succeed in the writ petitions, appropriate orders
can be passed while moulding the reliefs.
ORDER
20. In view of the above discussion, while declining the appellants' prayer for permitting them to appear at the written examination, the appeals are disposed of in terms of the following directions which shall abide by the result 15 AST 425-429 of 2010 & AST 435-438, 440-442, 444--450 of 2010 of the writ petitions :-
The respondents shall not fill in 5% (five per cent) of the vacancies of primary teachers in primary schools under the respondent District Council (including vacancies in each reserved category) which are being filled in pursuant to the advertisements published in August, 2009 and thereafter, so that in case the writ petitions are allowed, at that stage the Court may consider directing the respondent authorities to give priority and preference to eligible candidates possessing the primary teachers training qualification obtained from an institute recognized by National Council for Teachers' Education, after issuing a fresh advertisement.
IT IS CLARIFIED THAT :-
a) the above direction shall not apply to vacancies in any district or institution which are already filled in or for which appointment orders are already issued till yesterday.
b) the above direction shall not apply to old vacancies filled in or being filled in from out of candidates sponsored by the employment exchanges.
c) the above percentage is by way of an interim arrangement during pendency of the writ petitions and does not preclude the authorities from prescribing a higher percentage, if and when they are inclined to do so.16
AST 425-429 of 2010 & AST 435-438, 440-442, 444--450 of 2010
d) The written examination shall be held as scheduled and all the candidates to whom admit cards have been issued shall be permitted to appear at the written examination and the results thereof shall be declared and the recruitment process shall go on. In other words, notwithstanding the direction not to fill in 5% vacancies, there shall be no curtailment of the zone of consideration for the written examination or for the oral interview in respect of the vacancies advertised.
e) after preparing panel for 95% vacancies, the respondent Council shall also prepare a panel for the remaining 5% vacancies, but the said 5% vacancies shall not be filled in during pendency of the writ petitions without prior permission of this Court, but the panel shall be treated as alive during pendency of the writ petitions.
f) any direction to the contrary or inconsistent with the above directions and clarifications (except the directions of the Hon'ble Supreme Court) shall stand modified in terms of this order.
21. The observations made in this order being an interlocutory stage are made for the limited purpose of interim arrangement during pendency of the petitions.
22. With the consent of the learned counsel for the parties, it is directed that in view of the urgency and importance of the issues involved in this litigation, the writ petitions challenging the vires of the amendments to the West Bengal Primary Teachers Recruitment Rules, 2001 at the instance of the candidates possessing primary teachers 17 AST 425-429 of 2010 & AST 435-438, 440-442, 444--450 of 2010 training from institutes recognized by NCTE, shall be placed before this Bench.
23. The writ petitions shall be listed for hearing on 21st July, 2010. The respondents shall file their affidavit-in- opposition by 7th July, 2010 and the writ petitioners shall file their reply by 14th July, 2010.
The writ petitioners shall specifically indicate in a chart for all the petitioners indicating the Institutions from which they received primary teachers' training, the year of passing the examination and when the Institute was recognised by NCTE
24. The appeals are, accordingly, disposed of in the above terms. The stay applications are disposed of as infructuous.
Photostat copy of this order duly countersigned by the Assistant Registrar (Court) shall be supplied to the learned advocates for the parties on usual undertakings.
(MOHIS S. SHAH, CHIEF JUSTICE) (TARUN KUMAR GUPTA, J.) 18 AST 425-429 of 2010 & AST 435-438, 440-442, 444--450 of 2010 19 AST 425-429 of 2010 & AST 435-438, 440-442, 444--450 of 2010