Calcutta High Court (Appellete Side)
Goutam Kumar Sasmal vs The State Of West Bengal & Ors on 15 December, 2011
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present:
The Hon'ble Justice Jyotirmay Bhattacharya W. P. No. 7727(W) of 2011 GOUTAM KUMAR SASMAL Versus THE STATE OF WEST BENGAL & ORS.
For the Petitioner : Mr. Tapabrata Chakraborty
Mr. Ashim Kr. Roy
For the State : Mr. Mintu Kumar Goswami
Judgment On: December 15, 2011.
Recognition without financial involvement was granted to Vivekananda Loksiksha Niketan, Faridpore, Dakshin Dauki in Paschim Midnapore by the Government with effect from current Academic Session of 2001 with a condition that the institution, as recognised, will abide by the norms as laid down by the Government from time to time. The said school is a special school for the blind and mentally retarded students. Subsequently, in 2006 sponsorship was granted to the said school with 23 teaching and non-teaching posts with effect from 1st December, 2 2005 on various conditions. The condition with which this Court is presently concerned is set out hereunder:-
(i) The existing teaching and non-teaching regular staff of the institution will be absorbed against the respective posts, as sanctioned herein and will be placed in the respective scales of pay. The scale of pay will be allowed to the teacher (primary and pre-primary/preparatory grade) as the case may be in terms of the notification number 553-Edn.
(MEE) dt 20.04.2995. The organizing staff having requisite qualification and training will be absorbed in the teacher posts.
The petitioner herein was one of such organiser teaching staff of the said institution. He has been acting as a Principal of the said institution ever since before its recognition. At the time when the said institution received recognition by the Government, his educational qualification was M.A. in History. He had Diploma in Special Education (VH) at the secondary level. Considering his educational qualification he was absorbed in the post of Assistant Teacher with effect from 1st December, 2005.
Subsequently in 2010 the petitioner enhanced his qualification by acquiring Master Degree in Psychology from Vinayaka Missions University. After acquiring 3 Master degree in psychology he submitted a representation before the Director, Mass Education Extension for approving his appointment as Principal of the said school with effect from 1st December, 2005 and to grant scale of pay of the Principal by modifying the order issued on 11th May, 2007. It is alleged by the petitioner that since the petitioner was the organiser Principal of the said institution, his service should have been approved as Principal in the said institution.
The petitioner claimed that he had the requisite qualification for being absorbed in the post of Principal in the said institution even at the time when the institution was recognised. He further claimed that in identical circumstances two other organiser Principals of the other two institutions, namely, Sri Ahin Dey and Sri Kajal Kumar Reja were appointed as Principals in Sathi, Paschim Midnapore and Burdwan Blind Academy respectively.
It was further contended by him that since he has subsequently enhanced his qualification by acquiring the Master degree in Psychology which is the requisite qualification for the Principal of the Mentally/Multiple Handicapped, his prayer for absorption in the post of Principal in the said institution cannot be denied even if the said institution is treated as a school for Mentally/Multiple Handicapped. 4
Since the petitioner's such prayer was disallowed by the Director of Mass Education by his order dated 23rd March, 2011, the petitioner has come before this Court with this writ petition.
The Director rejected the petitioner's such prayer. According to him, the petitioner did not have the requisite qualification to become the Principal in the said institution as the said institution is a school for Multiple Handicapped and the requisite qualification for the post of Principal in such institution as per the Government notification dated 20th April, 1995 was M.A. or M.Sc. in Psychology at the time when the said institution was granted recognition. The petitioner had Master degree in History. Since at the relevant time he did not have the Master degree in Psychology, the petitioner could not be absorbed in the post of Principal in the said institution.
It was further observed by the Director that the post of Principal is not a promotional post. As such the said post cannot be filled up by the petitioner by promoting him to the said post after he acquired the requisite qualification for the said post. The Director also held that no discrimination was made to him while absorbing the petitioner in the post of Assistant Teacher. Ahin Dey and Kajal Kumar Reja, according to the Director, had the requisite qualification to be appointed as 5 Principal in their respective institutions and as such they were appointed as Principals in their respective institutions. Ahin Dey and Kajal Kumar Reja, according to the Director, cannot be treated at par with the petitioner who did not have the requisite educational qualification for the post of Principal at the time of grant of its recognition.
The said decision of the Director contained in page 98 of this writ petition is under challenged in this writ petition at the instance of the petitioner.
Let me now consider as to how far the Director was justified in rejecting the petitioner's claim in the facts as stated above.
The eligibility criteria and the method of recruitment to the post of teaching/non-teaching staff including the Group-'D' employees in Government sponsored institutions for the handicapped were prescribed in the Rules framed by the Government on 20th April, 1995 under Notification no. 553-EDM(MEE)/3S-23/91. Three categories of Government sponsored institutions for the handicapped are recognised under the said Rules. Those schools are categorized in the following manner:
a) School for Deaf;
b) School for Mentally/Multiple candidate & 6
c) School for the Blind.
As per the prescribed Rules, recruitment to the post of teaching and non- teaching employees in those institutions is to be made by direct recruitment from amongst candidates to be sponsored by Employment Exchange. The requisite qualification for the post of Principal/Headmaster/Headmistress for the schools for Deaf as per the said Rules as follows:
"1) QUALIFICATION:
A) ESSENTIAL:
X) Hons. Graduate or Masters Degree of any University (Y) Degree in Education for the Hearing Impaired with 5 years teaching experience in a school for the Deaf or Diploma in Education for the deaf with 7 year's teaching experience in a school for the deaf or Certificate in teaching the deaf with 10 year's teaching experience in a school for the Deaf.
B) DESIRABLE:
Knowledge of Office Admn. And knowledge of Bengali. II) AGE LIMIT: 40 years relaxable for S.C./S.T. & Physically handicapped (Hearing Handicapped and visually handicapped persons are not eligible for highly qualified candidates)." 7
The requisite qualification for the post of Principal/Headmaster/Headmistress for the schools for the Mentally/Multiple Handicapped as described in the said Rules as follows:
"1) QUALIFICATION:
X) ESSENTIAL:
a) M.A. or M.Sc. in Psychology.
b) Diploma in Mental retardation from National Institute for the Mentally Handicapped or Diploma in Mental Retardation from an Institute Recognised by Rehabilitation Council Training Certificate for teaching Mentally Retarded or Multiple Handicapped from a Recognised Institute (The course must be affiliated by University).
c) 5 year's teaching experience in a special School for the Mentally Handicapped or Multiply Handicapped or spastics relaxable for a highly qualified candidates.
Y) DESIRABLE:
(a) Training in Education/Vocational Guidance from recognised Institution.
(b) Knowledge in Office Administration.
(c) Knowledge in Bengali.
II) AGE LIMIT:
Within 45 years relaxable for highly qualified candidates.8
N.B. Hearing handicapped and visually handicapped persons are not eligible for the Post."
The requisite qualification for the post of Principal/Headmaster/Headmistress for the schools for the Blind as described in the said Rules as follows:
"1) QUALIFICATION:
(X) ESSENTIAL:
A) Hons. Graduate Degree or Master Degree. B) Diploma/Certificate in Teaching the Blind from a Recognised Institute.
d) 5 year's Teaching Experience in a School for the Blind. (Y) DESIRABLE:
(A) Knowledge in Office Administration.
(B) Knowledge in Bengali.
II) AGE LIMIT: 45 years, relaxable for highly qualified candidates.
N.B. Hearing handicapped and visually handicapped persons are not eligible for the Post."
Thus, this Court finds that the educational qualification for the post of Principal in different categories of such schools are prescribed differently under the 9 said Rules. So far as the post of Principal in the school for the Deaf is concerned, any Honours Graduate or Master Degree holder from any University or candidate having degree in education for the hearing impaired with 5 year's teaching experience in a school for the Deaf or Diploma in Education for the deaf with 7 year's teaching experience in a school for the deaf or Certificate in teaching the deaf with 10 year's teaching experience in a school for the Deaf, is eligible to be considered for the said post.
So far as the education qualification which is laid down for the post of Principal in the school for Mentally/Multiple handicapped, is concerned, a candidate having (a) M.A. or M.Sc. in Psychology and (b) Diploma in Mental retardation from National Institute for the Mentally Handicapped or Diploma in Mental Retardation from an Institute Recognised by Rehabilitation Council Training Certificate for teaching Mentally Retarded or Multiple Handicapped from a Recognised Institute (The course must be affiliated by University), is eligible to be considered for the post of Principal in such school.
So far as the post of Principal in schools for the Blind is concerned, a candidate having- (a) Honours Graduate degree or Master Degree; (b) Diploma/Certificate in Training the Blind from a recognised institute and (C) 5 year's 10 teaching experience in a school for Blind, is eligible to be considered for the post of Principal in such school. Since the education qualification prescribed for the post of Principal in these three categories of schools are differently laid down in the said Rules, this Court firstly is required to identify the category of school to which this particular school belongs. Admittedly, the school admits blind students and mentally retarded students in the said institution. Thus, this is not a school for the deaf. Then again since the school admits both the blind and mentally retarded student, this school cannot be categorized as a school for the blind only.
Now, the other category of school which is left, is the school for mentally/multiple handicapped.
Let me now consider as to whether the school belongs to this category or not. I have already indicated above that the school admits blind and mentally retarded students. Multiple handicapped has not been defined in the Rules. Mr. Chakraborty, learned Advocate appearing for the petitioner, submitted that multiple handicapped means a candidate suffering from multiple handicapness. By way of elaboration he submitted that if a student suffers from both blindness and mental retardness or a candidate being a deaf and dumb also suffers from blindness and so on and so forth, can be regarded as a candidate suffering from multiple 11 handicapness. According to Mr. Chakraborty if any institution admits such students having multiple handicapness, then those schools can only be regarded as school for multiple handicapped and for such school the educational qualification for the post of Principal will be M.A. or M.Sc. in Psychology. Mr. Chakraborty, thus, submits that since the petitioner's school does not admit student having multiple handicapness, the educational qualification for the Principal which is prescribed for the schools for mentally/multiple handicapped cannot be applied to the petitioner for considering his claim for his appointment to the post of Principal in the said school which admits both blind boys and mentally retarded boys. Mr. Chakraborty further contended that not a single student having both blindness and mentally retardness has been admitted in the said school. As such he submitted that Master degree in Psychology cannot be regarded as an essential educational qualification for the post of Principal in the said school. Mr. Chakraborty, further contended that even assuming that such school is regarded as a school for multiple handicapped, still then since the applicant acquired Master degree in Psychology subsequently, he should have been appointed in the post of Principal in the said school as the said post therein still remains vacant.
Mr. Chakraborty further contended that when the other two similarly placed organiser Principals were absorbed in the post of Principal in their respective 12 institutions, the petitioner's claim for his appointment in the present institution ought not to have been rejected by the concerned authority.
Mr. Chakraborty, thus, invites this Court to intervene in this matter, for doing justice to his client.
Mr. Mintu Kumar Goswami, learned Advocate, appearing for the State refuted such submission of Mr. Chakraborty by submitting that the schools for multiple handicapped are those schools which admit student having different types of handicapness. Mr. Goswami submits that since the concerned school admits both blind boys and mentally retarded boys, this school should be regarded as a school for multiple handicapped. Mr. Goswami further submits that since three categories of schools are recognised under the said Rules and the present school being neither a school for deaf nor a school for blind excessively, is essentially a school for the multiple handicapped students and as such the Master Degree in Psychology is the essential qualification for the post of Principal. Mr. Goswami thus, submits that since the petitioner did not have the educational qualification of Master Degree in Psychology at the time when the school was recognised by the government, he could not have been appointed as a Principal in the said school.
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Mr. Goswami further submitted that the post of Principal is not a promotional post. He further submitted that as per the said Rules, the post of Principal is required to be filled up by way of direct recruitment. As such he contended that whenever steps would be taken by the concerned authority for filling up the said post, the petitioner would be considered along with other eligible candidate for the said post provided he satisfies the other eligibility criteria for the said post and applies for the said post.
Mr. Goswami further submits that the neither Sathi, Paschim Midnapore nor Burdwan Blind Academy is a school for the multiple handicapped. Sathi is a school for the blind and deaf and Burdwan Blind Academy is a school for the blind boys. Ahin Dey and Kajal Kumar Reja had the requisite qualification for being appointed as the Principals in their respective institutions; as such they were absorbed in the post of Principal in their respective institutions. Thus, they cannot be treated at par with the petitioner who did not have the requisite qualification for the post of Principal at the time when the school was recognised by the Government. He, thus, supported the order impugned and ultimately submitted that no interference with the impugned order is necessary in the facts and circumstances of the instant case. 14
Having heard the learned Advocates of the parties and after considering the extent Rules and also by taking into consideration that the school admits both blind boys and mentally retarded boys, this Court, is of the view, that this is essentially a school for the multiple handicapped students. As such Master Degree in Psychology, according to me, is the requisite qualification for the post of Principal in the said school.
Let me now consider the present problem from a different angle. Master decree in Psychology which is prescribed as educational qualification for the post of the Principal in schools for the mentally/multiple handicapped students, is not the prescribed educational qualification for the post of Principal in the other two categories of schools namely, the school for the deaf and the school for blind. Graduation degree or Master degree from any University without referring to any particular subject is prescribed for the post of Principal in the school for the deaf. Similarly, Master degree and Honours degree without referring to any particular subject was prescribed as the essential educational qualification for the post of Principal in schools for the blind. But in so far as the post of Principal in the school for mentally/multiple handicapped students, is concerned the prescription is M.A. or M.Sc. in Psychology i.e. Master degree in a specified subject. Education 15 qualification in Psychology was prescribed as expertised knowledge in Psychology is necessary for teaching and/or for imparting training to the mentally retarded student and/or student having multiple handicapness and/or for management of such schools. Even assuming that Mr. Chakraborty is right in his submission that since the school does not admit any students suffering from both blindness and mentally retardness, the school cannot be regarded as a school for multiple handicapped, but still then since the school admittedly admits mentally retarded students, the Principal should possess the Master degree in Psychology which is required for imparting training to the mentally retarded students and also for management of such schools. Since Honours degree or Post Graduate degree in any subject without any specification was prescribed as the requisite educational qualification for the post of Principal in the other two categories of schools, this Court holds that the Master degree holder in Psychology can also effectively impart training to the blind boys and also can run the administration of the school effectively. As such this Court holds that finding of the Director to the effect that the school concerned is a school for the multiple handicapped and the prescribed qualification for the post for Principal is M.A. or M.Sc. in Psychology, does not appear to me as incorrect.
This Court also does not find any substances in the submission of Mr. Chakraborty to the effect that any discretionary treatment has been given to the 16 petitioner while refusing him to be absorbed in the post of Principal in the said school. Since Ahin Dey and Kajal Kumar Reja were not similarly placed like the petitioner, the ground of discrimination, as sought to be highlighted by Mr. Chakraborty, does not appear to me as sound and convincing. Though Sathi, according to me, is a school for multiple handicapped as it admits both blind and deaf students, but since requisite educational qualification for the post of Principal either in the school for the blind or in the school for the deaf is not M.A. of M.Sc. in Psychology, this Court holds that absorption of Sri Dey in the post of Principal in the said school, cannot be cited as an instance of discrimination by the petitioner herein who is not similarly placed like Mr. Dey.
It is rightly pointed out by Mr. Goswami that the post of Principal is not a promotional post. As such the petitioner cannot be appointed in the post of Principal in the said school as he subsequently acquired Master Degree in Psychology.
Thus, this Court holds that the petitioner's claim for his appointment as Principal in the said school after he acquired eligible qualification, also cannot be accepted.
This Court, thus, holds that the writ petition deserves no merit for consideration.
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The writ petition, thus, stands rejected.
Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.)