Calcutta High Court (Appellete Side)
Shyamali Sarkar (Roy) & Others vs The State Of West Bengal & Ors on 13 May, 2008
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P No. 94 (W) of 2008
Shyamali Sarkar (Roy) & Others.
Vs.
The State of West Bengal & Ors.
For the Petitioners: Mr. Tapan Kumar Mukherjee,
Mr. Ekramul Bari,
Ms. Bulbul Yeasmin.
For the Advocate General: Ms. Chameli Majumder,
Ms. Sampa Sarkar.
For the Respondents: Mr. Debabrata Karan.
Judgment on: 13.5.2008 S. P. Talukdar, J.: The fact of the present case may briefly be stated as follows: -
By Memo No.288-SW/3S-225/05 dated 25th January, 2006 the Department of Women and Child Development and Social Welfare issued a memorandum relating to selection of Anganwadi Workers and the Anganwadi Helpers under the Integrated Child Development Project within the administrative control of the respondent authority. The petitioners were selected as Anganwadi Workers in respect of different Gram Panchayats and they joined their respective posts in August, 2007 in terms of the respective engagement orders. The Child Development Project Officer of Bamongola and Gazole issued notice upon the petitioners asking them to show cause as to why their appointments would not be terminated in view of their higher qualification. The petitioners are all graduates. They were in search of employment prior to their engagement as Anganwadi Workers. Clause 7 (c) (iii) of the said memorandum specifically mentioned that all graduates are ineligible. The imposition of such criteria is in alleged violation of Article 14 and Article 16 of the Constitution as it hits the Constitutional mandate for equality of opportunity of all citizens in the matter of employment.
The petitioners thus, approached this court for necessary redress and sought for direction upon the respondents to withdraw or cancel or rescind the show cause letter issued by the respondents as well as for further declaration of the said Clause 7(c) (iii) of the memorandum dated 25th January 2006 as ultra vires the Constitution.
It was submitted that the writ petitioners successfully competed in the process for selection to the posts of Anganwadi Workers. The fact that they being graduates are having higher qualification cannot be a ground for their termination. On behalf of the petitioners, it was submitted that the said notification dated 25.1.2006 is a mere executive order and it cannot have any mandatory effect. It is more so, as it is in breach of the Constitutional mandate. Learned Counsel for the writ petitioners submitted that higher qualification could not be a bar for employment. On the other hand, respondent Nos. 5, 7 and 8 by filing affidavit-in-opposition claimed that the writ petitioners before their appointment gave an undertaking in writing that they would have no right to such appointment if it could be found that there had been any suppression of material fact - before or after appointment. They further mentioned that if for the aforesaid reason, their appointment is cancelled, they would have no grievance in that regard.
Ms. Majumdar as learned Counsel representing the Learned Advocate General referred to the backdrop of the scheme under reference. According to her, it is a welfare scheme, which takes care of the unfortunate children belonging to helpless and hapless families. The eligibility criteria was consciously introduced so that candidates with higher qualification are not permitted to compete with candidates who are less qualified. Ms. Majumdar contended that those candidates with less qualification do not have many options. Keeping that in mind, such eligibility criteria was consciously introduced. According to her, the restriction that 'graduates are ineligible' thus, cannot be said to be arbitrary nor it is in violation of Article 14 and Article 16 of the Constitution.
Learned Counsel for the State-respondents submitted that the writ petitioners have no legal or Constitutional rights and as such, the application deserves to be dismissed.
So far Article 14 of the Constitution is concerned, it cannot be doubted that it is the founding faith of the Constitution. It is the pillar on which rests securely the foundation of our democratic republic. It cannot be subjected to a narrow, a pedantic or lexicographic approach.
In the case of Smt. Meneka Gandhi vs. Union of India & Anr., as reported in Air 1978 Supreme Court 597, it was held that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. As observed therein, "the principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14". It must be " right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
On behalf of the writ petitioners, it was emphatically submitted that higher qualification could by no stretch of imagination be a justification for non- consideration of the writ petitioners as eligible candidates. Going a step further, it was contended that the imposition of the restriction that graduates are ineligible by itself bad being violative of the equality clause under the Constitution of India. It was also submitted that the writ petitioners were permitted to join and in fact, they continued to serve for quite some time. Referring to this, it was further mentioned that termination of their services in such backdrop is illegal.
Before proceeding further it may be said that "equality amongst unequal is inequality" as observed by the Socialist Leader, V.I.Lenin. Article14 of the Indian Constitution certainly recognizes the need for equal treatment of all while ensuring equal protection to all. But this cannot stand in the way of a reasonable classification. It is not that "all are equal but some are more equal than others"
as observed by George Orwell in his book "Animal Farm". Ms. Majumdar while representing the learned Advocate General categorically submitted that executive policy of the State cannot be interfered with. She reminded that the scheme under reference is a welfare scheme. It is in the interest of the wretched of the earth. She submitted that persons with higher qualification presumably have wider options. The policy as reflected through the advertisement restricts thousands of other graduates. If any relaxation is shown, it would be an injustice inflicted on thousands of others who for their higher qualification as graduates could not compete in the selection process. It was emphatically added that prescription of over qualification as a bar cannot be said to be arbitrary, nor violative of Article 14 and Article 16 of the Constitution.
Relying upon the decision in the case of S. Satyapal Reddy & Ors vs. Govt. of A. P. & Ors., as reported in (1994) 4 SCC 391, it was contended that power to employ invariably includes the power to prescribe qualification.
In the case of The Post-Graduate Institute & Ors. vs. Dr. J.B.Dilawari & Ors., as reported in AIR 1988 Supreme Court 1348, it was observed that job requirements and prescription of qualifications must be determined by Academic Committee and other Authorities under Act, Rules and Regulations. Though court, it is stated, is expert of experts, it is proper to take note of its limitation.
In the case of State of Bihar and Ors vs. Project Uchcha Vidya, Sikshak Sangh & Ors., as reported in (2006) 2 SCC 545, the Apex Court held that the matters relating to policy may very well be left for the State for decision in accordance with law. Their Lordships in the said case were concerned about the educational qualification of the teaching staff. Having regard to the fact that a limited number of teachers were to be appointed with a view to accomplish a constitutional goal of spreading literacy in the villages, particularly amongst girls, the standards adopted in Zila Schools or Government Schools constituted in urban areas were not insisted upon. It was essentially a government function.
In the case of B. Srinivasa Reddy vs. Karnataka Urban Water Supply & Drainage Board Employees' Association & Ors., as reported in (2006) 11 SCC 731, it was observed that Court cannot sit in judgment over wisdom of Government in choice of person to be appointed so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment.
Deriving inspiration from the decision in the case of The Commissioner, Corporation of Madras vs. Madras Corporation Teachers' Mandram & Ors., as reported in AIR 1997 Supreme Court 2131, it was submitted that it was not for the Court or Tribunal to give directions for creation of post or to prescribe minimum qualifications for the post.
In the factual backdrop of the present case, it may first be said that there had been suppression of material fact by the writ petitioners since it was not disclosed that they were enjoying higher qualification as graduates. This by itself strikes their claim at its root. It is found that all such writ petitioners undertook in writing that in case of detection of placing/furnishing of false particulars, the writ petitioners agreed that there would be no grievances if their services were terminated.
The fact that it was specifically mentioned that graduates are ineligible for selection to the post of Anganwadi Workers leaves very little for this court to do.
There is no merit in the grievances as ventilated. The Writ Petition being No.94 (W) of 2008 be accordingly dismissed. Interim order, if any, stands vacated. No order as to costs.
Xerox certified copy of this judgment, if applied for, be supplied to the parties upon due compliance of the legal formalities.
(S.P.Talukdar, J.)