Calcutta High Court (Appellete Side)
Bidyut Kumar Gayen & Ors vs The State Of West Bengal & Ors on 14 September, 2016
Author: C. S. Karnan
Bench: C. S. Karnan
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice C.S. Karnan.
W.P. No. 16797 (W) of 2016
Bidyut Kumar Gayen & Ors.
- Vs. -
The State of West Bengal & Ors.
Mr. Hiranmoy Bhattacharya,
Mr. Nilay Baran Mandal ....... for the Petitioners
Mr. L.K. Gupta, Ld. A.A.G.
Mr. Amitesh Banerjee,
Mr. Tarak Karan ....... for the State
Mr. Subir Sanyal,
Mr. Ratul Biswas ....... for the W.B.B.P.E.
Heard On : 19.08.2016.
Judgment On : 14.09.2016.
C. S. Karnan, J.:
The short facts of the case are as follows :-
The petitioners submit that they are belonging to the schedule caste, schedule tribes and other communities that come under the backward class category, they have obtained 50% marks in the Higher Secondary Examination, now they are all unemployed educated youth and some of them are trained. The First Respondent / the Secretary attached to the department of Education, West Bengal Government had issued a notification dated 25.05.2015 for the Teachers' Eligibility Test, for Classes- I to V to be conducted by the West Bengal Board of Primary Education, as per the National Council for Teachers' Education guidelines. As per the notification the petitioners have submitted their respective applications along with the admissible fees. They were issued admission cards in order to appear in the Teachers' Eligibility Test which was held on 11.12.2015 by the Primary Education Board.
The petitioners' further submit that after conducting the Teachers' Eligibility Test, the said test was not published nor any valid reason given. As such, the petitioners are gravely prejudiced due to non-publication of the results of the Teachers' Eligibility Test held on 11.10.2015. A core anomaly put on hold by non- implementation. Most of the candidates are on the threshold of the age bar as per the recruitment rules. As such, the respondents herein are totally inactive and with no service rendered as required by the specified recruitment rules. However it is an admitted fact that due to the last recent General Assembly Election of West Bengal there is a delay. On completion of the elections the result was not announced, as such the petitioners and other aspirant candidates are suffering and in acute anticipation. As per the Ministry of Human Resource and Development the extended period of one year extension already expired on 31.03.2016. Hence, the petitioners seek an extension of relaxation as per Rule 18 of the Right to Children's Free and Compulsory Education Rules 2010. The petitioners further submit that aggrieved by the inaction of the respondents' / education department, declaring the result of the Teacher Eligibility Test, which was held on 11.10.2015 by following the relaxation granted by the VI respondent / The Ministry of Human Development, Government of India vide notification dated 01.04.2015. As per the said notification for relaxation the respondents have not completed the selection process for the post of assistant teacher in the primary schools in the entire State of West Bengal within the period of the said notification by the 6th respondent.
The highly competent counsel appearing for the petitioners submits that the petitioner and other untrained candidates belonging to the schedule caste, schedule tribe de-notified community, most backward classes, other backward classes etc. and all of these categories are economically belonging to the weaker section of society besides they are fully qualified in meeting the required standard and they have also obtained above 50% marks in higher secondary examination. The competent counsel further submits that the Government of West Bengal sought relaxation from the Ministry of Human Resource Development / Department of School Education and Library. Accordingly the said department/ 6th respondent had granted relaxation and the same was published in the Government Gazette, pursuant to the said notification. The respondent also issued a notification on 25.05.2015 for the Teacher Eligibility Test, the same was conducted on 11.10.2015 wherein a huge number of candidates have appeared. After conducting the said test the result had not been announced, even after a lapse of nearly 9 months, as such the aspirant candidates are put into severe hardship and suffering without the anticipated employment opportunity. Therefore a mandatory direction is of paramount importance, by publishing the result of the teachers' eligibility test. Hence, the learned Counsel makes a deep request to allow this writ petition on humanitarian grounds to say the least.
The very competent Additional Advocate General Mr. L.K. Gupta, appearing for the state of West Bengal submits that in the said test there are no trained candidates even upto the year 2007. Under the circumstances one Mr. Tulsi Bakshi had filed a Public Interest Litigation before this Court wherein the Divisional Bench of this Hon'ble Court passed a judgment holding that a one year training qualification awarded by the Primary Teachers Training Institute recognised by the State Board as being not a valid qualification. However those securing admission in the Primary Teachers' Training Institutions in the year 2007 completed their training in the year 2009. The results have been published on 05.07.2011 wherein 247 candidates became successful. Likewise the 2nd year training course for the academic years 2009-2011 in which only 3477 candidates had succeeded and their result was published on 02.12.2011.
The very competent Additional Advocate General further added that the order of the Supreme Court had permitted an intermittent course for those candidates who had completed the one year training course from the Primary Teachers' Training Institute recognised by the Board of Education, State of West Bengal. In the said abridged course for the year 2010-2011, only 7357 candidates became successful. Due to the non-availability of sufficient trained candidates the State Government of West Bengal made a representation to the National Council Teachers' Education and sought for relaxation for the years 2010-2011 as per the provision in Section 23(2) of the Right of Children of the State to Free and Compulsory Education Act, 2009 and Rules framed thereunder, in respect of the minimum teachers' qualification norms notified by the national Council for teachers education for Classes- I to V. The Learned Additional Advocate General further submits that there are 35000 vacancies at that instant point of time, but only 11081 trained candidates are available. Under the circumstances in order to fulfil the total number of vacancies the untrained candidates have to be appointed after observing all the norms including the conducting of Teachers' Eligibility Test. Accordingly the said test was conducted after obtaining permission from the Ministry of Human Resources Development vide their notification dated 10.06.2011. The Human Resources Development Department had granted relaxation in respect of the minimum Teacher Qualification norms as notified by the National Council for Teachers' Education upto 31.03.2014, after providing the condition that both trained and untrained candidates are permitted to appear for the Teachers' Eligibility Test. After the said test the successfully trained candidates will be appointed in the first phase, thereafter the untrained candidates who are successful in the Teachers' Eligibility Test will be appointed as a 2nd preference, but on the condition that those untrained appointed candidates must secure their training qualification within 2 years from the date of their appointments. The Teacher Eligibility Test for the year 2012 was held by the Board of Primary Education, West Bengal, in the year 2013.
The highly competent Additional Advocate General further submits that in the said examination, 1089 trained candidates and 17704 untrained candidates became successful. As per the condition imposed by the Human Resource Development Department the successful trained candidates i.e. 1089 candidates were appointed initially, thereafter the untrained candidates were appointed in the year 2014 and filled the remaining vacancies through untrained candidates. The untrained appointed candidates are about to complete their two years training course as per the notification issued by the VI respondent hereunder. Before the expiry of the relaxation period as per the notification dated 10.06.2011 issued by the VI respondent herein another Teachers' Eligibility Test was announced and accordingly scheduled to be held on 31.03.2014, but the same was not conducted due to the general election for Parliament. Under the circumstances the State Government was constrained to approach the Ministry of Human Resources Department, Government of India for an extension of the relaxation in conducting the Teachers' Eligibility Test. Accordingly the period was extended upto 31.03.2016.
The Learned Additional Advocate General further submits that after the year 2014 about 30000 vacancies were available, whereas the qualified trained candidates availability was 19495 as on 23.03.2015. The Ministry of Human Resources Development Department withheld the request by the State Government for extension of relaxation in the minimum training qualification by a letter dated 30.09.2014. However, the State Government had not made any recruitment on the basis of the initial relaxation granted by the Ministry of Human Resources Development Department. The State Government explained the situation about the said recruitment not being completed and the relaxation period that expired on 31.03.2014. Under the circumstances the State Government by its communication dated 23.03.2015 wherein they sought for relaxation till 31.03.2016. In the meantime additional vacancies kept arising every year by an increase of 15000 candidates from the year 2014, as such, now the total number of vacancies are around 40000 as being available. The Learned Additional Advocate General further added that considering the present situation, The Human Resources Department / VI respondent had granted further extension to the relaxation upto 31.03.2016, in their publication dated 01.04.2015 on condition that trained candidates if found successful in the Teachers' Eligibility Test would be appointed initially and only then the untrained candidates would be appointed against the rest of the available vacancies. A further condition that all those untrained appointed candidates must get themselves trained within a period of two years from the date of each of their respective appointment.
The Learned Additional Advocate General further submits that several writ petition have been filed challenging the validity of the notification dated 01.04.2015 for extending the relaxation in respect of minimum teachers' training qualification norms awarded to the State of West Bengal. Under the circumstances, the Election Commission had announced a General State Assembly Election held in the month of May through five phases. Hence, the IInd respondent namely the Board of Primary Education would not announce the result of the Teachers' Eligibility Test held on 11.10.2015. The State of West Bengal Education Board have not committed any irregularity or illegibility or any other lapse in order to publish the result, but due to the election notification and pending litigation before this Court on the same issue.
The Learned Counsel further submits that the Human Resources Department, Government of India had granted the relaxation as per the provision under Section 23(2) of the Right of Children to Free and Compulsory Education Act and Rules framed thereunder are in force. As such, the notification is sustainable under law, therefore, the notification cannot be challenged at any Court of law. The said notification shall not prejudice any of the qualified or failed candidates to the said post. The primary education board strictly followed the conditions notified in the publication dated 01.04.2015. The said notification had expired on 31.03.2016, hence, the highly competent counsel entreats the court to permit the state government to proceed with the required procedures. The very competent counsel Mr. Subir Sanyal appearing for the Board of Education i.e. the 2nd and 3rd respondents herein submit that all the procedures for appointing the trained and untrained candidates after conducting required eligibility test followed by viva-voce, then the mode of appointment is to be carried out. The respondents never committed any gross violation or short coming. Further the Learned Counsel adopts the arguments advanced by the Learned Additional Advocate General.
From the above deliberations, the views of this Court are as follows :-
1) The State Government sought relaxation from the II respondent herein namely the Ministry of Human Resources Development Department and the School Education and Literacy Department under the provisions of Section 23(2) of the Right of Children to Free and Compulsory Education Act, 2009 and Rules framed thereunder in order to fill up the entire vacancies with untrained candidates since there are no adequately trained candidates who are presently available. The VI respondent had granted relaxation after certain conditions, similarly the trained and untrained candidates shall be appointed to the available vacancies.
As such the trained candidates will not be prejudiced in any manner.
2) The State Government took the stand in order to provide proper education to the students who are in poor need of the same, in the entire State of West Bengal. Education is a fundamental right to students in our country. The Learned Additional Advocate General rightly pointed out that approximately 40000 vacancies are available as of now. The VI respondent's condition, i.e. the State Government is to first absorb and appoint the trained candidates and thereafter appoint the untrained candidates. The trained candidates as per the statistics by the Learned Additional Advocate General are about 19495, therefore the untrained candidates appointments will not be disturbed with the trained candidates privilege.
3) All the respondents are strictly to follow the logical use as per the provision of Section 23(2) of the Right to Childrens' Free and Compulsory Education Act, 2009 and Rules framed thereunder.
4) The notification dated 01.04.2015 granted an extension of the relaxation upto 31.03.2016, but due to the General State Assembly Election the appointment process has been kept in abeyance. As such, there is no lack of service on the side of the State Government of West Bengal. Therefore, this Court permits the respondents 1, 2 and 3 to proceed in the mode of selection for appointing the teachers. Further the respondents are at liberty to approach the respondents 4, 5 and 6 in order to extend the relaxation. The Respondents 4, 5 and 6 consider the same favourably as per law to the State Government in the interest of Educational Development in the State and evolving attention from the very grass-root level. Considering the factual position of the case and arguments advanced by the Learned Advocates on all sides and on perusing the annexed documents of the writ petition, the views 1 to 4 as mentioned above, this writ petition is allowed with a direction to the respondents 1, 2 and 3 to complete the selection process for recruitment and appointment of primary school teachers in accordance with law and statutory legal procedures and after publishing the results of the teachers' eligibility test and then execute the same accordingly at the earliest since being a crucial issue. Consequently, both parties are not permitted to file an appeal against this order due to the main issue of the students' welfare and employment of about 40000 teachers which is of paramount importance to the State in particular and to the Nation in general.
There will be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible.
(C.S. Karnan, J.)