Calcutta High Court (Appellete Side)
West Bengal Central School Service ... vs Tauhid Alam & Others on 17 April, 2009
Author: Prasenjit Mandal
Bench: Ashim Kumar Banerjee, Prasenjit Mandal
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Mr. Justice Prasenjit Mandal
F.M.A. 383 of 2009
With
F.M.A. 384 of 2009
West Bengal Central School Service Commission
-Versus-
Tauhid Alam & Others
State of West Bengal
-Versus-
Tauhid Alam & Others.
For the School Service : Mr. Bikash Ranjan Bhattacharyay
Commission Mr. Abhijit Gangopadhyay
Mr. Kanak Kiran Bandyopadhyay
For the State of : Mr. Joydeep Kar
West Bengal Mr. Saikat Banerjee
Mr. Jasojeet Mukherjee
Mr. Rajib Pal
Mrs. Juin Datta Chakraborty
For Tauhid Alam & Ors : Mr. Amal Baran Chatterjee
Mr. Animesh Goswami
Mr. Abdul Alim
Mr. Habibur Rahaman.
For the Learned : Mr. Tapabrata Chakraborty
Advocate General Mr. Abhijit Basu
Heard on : April 6, 2009, April 7, 2009.
Judgment on : April 17, 2009.
ASHIM KUMAR BANERJEE.J:
West Bengal School Service Commission published an advertisement
on July 12, 2006 appearing at page 206 of the Paper Book inviting
application for the 7th Regional Level Selection Test (hereinafter
referred to as "RLST") scheduled to be held on November 12, 2006
inter alia for the post of Urdu Teacher (Male Vacancy) in Bengali
Medium School for the Northern Region.
The West Bengal School Service Commission (Selection of Persons for
Appointment to the Post of Teachers) Rules, 2006 came into force on
June 6, 2006. Rule 5 of the said rules of 2006 being relevant herein
is quoted below :-
"5. Additional qualification of candidate. - A candidate willing to
be selected as a Teacher in any school, having Bengali orEnglish or
Hindi or Nepali or Telegu or Santhali or Urdu as the medium of
instruction, must have Bengali or English or Hindi or Nepali or Telegu
or Santhali or Urdu as first or second or third language -
(a) at secondary level of the Board or Board of Madrasah or
equivalent; or
(b) at higher secondary level of the Council or equivalent, or
(c) at any subsequent higher level of education in that language
paper."
As per the said Rule quoted (Supra) a candidate willing to be selected
as a teacher in any school having a particular language as medium of
instruction must have such language as first or second or third
language in course of his study at the Secondary Level/Higher
Secondary Level or any subsequent Higher Level of education.
The respondents, in these appeals, being Tauhid Alam and Md.
Mansur Alam wanted to apply for the post of Urdu Teacher in respect
of the vacancies in Northern Region earmarked for Bengali Medium
Schools although, they did not have Bengali as a combination subject
either at Secondary or Higher Secondary or in any subsequent level of
education. They filed a writ petition being W.P. No. 184905 (W) of
2006 inter alia challenging the advertisement imposing such
condition in terms of Rule 5 of the said Rules of 2006. The learned
single Judge passed an interim order permitting them to appear at
the said selection test. The School Service Commission preferred an
appeal being aggrieved by the said interim order. The Division Bench
dismissed the appeal. Tauhid and Mansur participated in the
selection test. However, their results were not declared. The School
Service Commission filed an Affidavit-in-Opposition in the writ
proceeding inter alia contending that in absence of a challenge to
Rule 5 they were not entitled to be considered for appointment.
It now appears that out of four vacancies one vacancy was filled up
by this School Service Commission giving appointment to Md. Imran
Kuresi who satisfied the requirement having Urdu, English as well as
Bengali as combination subjects at the Secondary Level. The other
three vacancies were carried forward for the next RLST. The School
Service Commission published advertisement on October 6,
2007.Challenging such action on the part of the School Service
Commission Tauhid and Mansur filed second writ petition being W.P.
No. 22720(W) of 2007 inter alia challenging the vires of Rule 5 of the
said rules of 2006 as well as permission to appear in the 8th RLST
without prejudice to their rights and contentions. The writ petition
was heard and disposed of by the learned single Judge by judgment
and order dated September 5, 2008 appearing at page 109-163 of the
Paper Book impugned in this appeal.
The learned Judge allowed the writ petition by striking down Rule 5
inter alia on the following grounds :-
i) Under Section 8(1) of the West Bengal School Service
Commission Act, 1997 manner and scope of selection of persons
for appointment to the post of teachers were prescribed. Section
17 provided that the State by notification would be entitled to
make Rules for carrying out the purposes of the said Act. Such
power, however, could not mean that the authorities could
frame Rules which were unreasonable or in violation of the
fundamental rights guaranteed by the Constitution
ii) Rule 5 was arbitrary and violative of the provisions of Article 14
as there was no provision for any third language at the
Madhyamik, Higher Secondary or Graduation Level in the State.
iii) The restriction imposed by Rule 5 was wholly unreasonable.
Being aggrieved, the State as well as School Service Commission
preferred the instant appeals.
Appearing for the appellant, School Service Commission, Mr. Abhijit
Gangopadhyay led by Mr. Bikash Ranjan Bhattacharyay, learned
senior counsel contended that the Rule 5 required a particular
language to be a combination subject at the study level to compete for
the post in a particular school having the medium of instruction in
the said language. This was required to facilitate proper teaching in
the concerned school. The respondents had Urdu and English in
their study level. Hence, they were fit for the post of Urdu Teacher
both in Urdu medium as well as English medium. The respondents
admittedly did not have Bengali at any level as contemplated under
Rule 5. Hence, in case, they were admitted in a Bengali Medium
School it would be difficult for them to teach in the said school
without having proficiency in such language being the medium of
instruction. Mr. Gangopadhyay produced the Mark Sheet of Md.
Imran Kuresi, a successful appointee who had Bengali as additional
subject at the Secondary Level. Hence, the contention made before
the learned single Judge that there was no scope for studying three
languages at any level of education in this State, was not correct.
Mr. Joydeep Kar, learned counsel appearing for the State while
adopting the submission made by Mr. Ganguly contended that under
Section 17 of the said Act of 1997 the State was empowered to frame
Rules for appointment of teachers. The said Rules of 2006 was
accordingly framed by the State. Rule 5 stipulated the requirement of
additional qualification compelling a candidate to have a particular
language at his study level which was the medium of instruction in
the school where he intended to be appointed. This could not be
called either arbitrary or unreasonable. Mr. Kar, in support of his
contention relied on two Apex Court decisions in the case of J. Ranga
Swamy Versus Government of Andhra Pradesh and Others reported in
1990 Volume 1 Supreme Court Cases page 288 and Basic Education
Board, U.P. Versus Upendra Rai And Others reported in 2008 Volume
3 Supreme Court Cases Page 432.
Opposing the appeals Mr. Amal Baran Chatterjee, learned counsel
appearing for the Tauhid and Mansur contended as follows :-
i) Rule 5 stipulated inter alia, Bengali as first or second or third
language at any level of education for being considered for
appointment in a Bengali Medium School. The respondents had
Urdu and English as combination subjects in language group.
English was a compulsory subject. Hence, there could be no
scope for them to study Bengali as a third language in absence
of any such curriculum at any level of education within the
State.
ii) Since the candidates competed for the post of Urdu being the
subject studied at all levels up to Post Graduate Level they could
not have studied Bengali as a third language at any level as
English was a common language being compulsory at the
Secondary and Higher Secondary Level.
iii) The concerned schools were situated at Islampur Division,
district of Uttar Dinajpur which was earlier a part of Bihar and
the concerned schools were having multi-lingual students.
Hence, those vacancies could not be earmarked in Bengali
Medium category.
iv) There was no scope for study of any third language at any level
of education in the State. Hence, Rule 5 contemplating study of
Bengali as a third language was impossible to be performed.
Mr. Chatterjee while distinguishing the cases cited by Mr. Kar
contended that the Apex Court observed that comparative study of
two qualifications was not within the domain of the Court. Such ratio
was not, at all, applicable having regards to the facts and
circumstances of the present case.
Article 14 of the Constitution denotes equal opportunity to all. Article
14, 16 and 19 read together would, inter alia, mandate equal
opportunity to all being similarly circumstanced. When State is
giving appointment through a selection process the State must give
equal opportunity to all having eligible qualifications to compete for
the said selection process. If any Rule or Statute offends the basic
structure of our Constitution such Rule or Statute is liable to be
struck down. The State is however, entitled to discriminate between
one and the other having an intelligible differentia between them.
Hence, to test a particular provision to find out whether it offends the
basic structure of our Constitution one has to look to the impugned
provision to find out, whether the restriction, if any, imposed by the
said provision was reasonable having an intelligible differentia
between two persons or two groups or whether such restriction was
arbitrary.
State, by way of a policy decision, decided to bear the cost of
providing teachers in aided schools through out the State meaning
thereby, all the teachers of the aided schools in the State are entitled
to draw their salary and other service benefits from the State
Exchequer. Hence, State is entitled to direct the mode of
recruitment. As and by way of a policy decision the State decided to
form a Commission for the purpose of recruitment of teachers. Hence,
the West Bengal School Service commission Act, 1997 came into
force. Section 17 empowered the State to frame Rules to facilitate
appointments. Rule 5 was one of such Rules which came in
existence in June 2006. The said Rules of 2006 prescribed the
qualification, age and other requirements to be followed in the matter
of recruitment of teachers. Rule 5 prescribed the additional
qualification. Hence, per se, such Rule could not be called as ultra
vires the said Act or the Constitution. We have carefully perused the
writ petition and the grounds stipulated therein. We are unable to
find out as to how this particular Rule could be termed as arbitrary
or discriminatory.
A student in a Bengali Medium School participates in study having
Bengali as medium of instruction. Hence, the teachers appointed in
the said school must have Bengali as a language in course of their
study at any level. It is required to facilitate proper teaching so that
the concerned teacher could easily communicate with his students.
The respondents admittedly did not study Bengali at any level of
education. Mr. Chatterjee tried to contend that they studied Bengali
up to class VIII, although we do not find any definite assertion in the
petition. The petitioners, however, made an indirect averment in
paragraph 22 of the petition to the extent that a provision for study of
third language was available up to class VIII.
We find that before the learned single Judge emphasis was put on the
particular phraseology "third language". Mr. Chatterjee also put
emphasis before us on that score. If we read Rule 5 carefully we
would find that the true purport of the said rule was to have Bengali
as a subject at any level to be in a Bengali Medium School. Whether
it was a third language or an additional subject, is immaterial.
Bengali admittedly is a subject in language group. In case any
candidate studies Bengali as a subject in addition to other two
languages it would automatically be a third language although not
specifically mentioned either in the Mark Sheet or in the syllabus.
We have also perused the syllabus to find out the subjects available
at the Secondary Level under the West Bengal Board of Secondary
Education. We find that in the first language group Bengali, English
and Urdu are available, in the second language group English,
Bengali and Nepali are available, in additional subject group Bengali,
English, Hindi, Nepali, Urdu, Sanskrit, Persian, Arabic, French are
available. Hence, it is possible for a candidate to have at least three
language subjects at the Secondary Level. The respondents could
have done so while undergoing study at the Secondary Level. They
did not do so. The successful appointee Imran Kuresi had three
subjects at the Secondary Level. Hence, he was given appointment.
This aspect perhaps, was not considered by the learned single Judge.
On perusal of the judgment and order impugned we do not find any
such discussion. Hence, the plea that applicability of the said Rule
was impossible, is far from truth. It might be true that it would be
difficult for the Commission to get sufficient candidates for the said
post. We are told that in the 7th RLST only Imran could be found
suitable. The rest three vacancies were carried forward at the 8th
RLST level where also all the posts could not be filled up. The
Commission is, however, trying to fill up the post by carrying forward
the rest of the vacancy for the next RLST. Hence, the plea of
impossibility cannot be accepted.
The learned Judge held that such restriction was unreasonable. As
observed earlier, the true purport of the Rule was to facilitate proper
communication between the teacher and the student so that the
students may not suffer due to language problem. We are unable to
find out as to how this Rule could be stated to be unreasonable. The
respondents are fit for appointment to any Urdu or English Medium
School. They could very well offer their candidature for the vacancies
in either Urdu or English Medium as and when advertised.
Restriction on their participation in Bengali Medium cannot be called
as unreasonable as we feel that the interest of the students is
paramount and cannot be compromised to accommodate the
petitioners relaxing the Rule so that they could fit in for the post.
Mr. Kar cited the Apex Court decisions referred to (Supra) where the
Apex Court was of the opinion that whether a particular qualification
would be just and appropriate for the post, should be left to the
appointing authority. The Apex Court also held that policy decision
cannot be interfered by Court unless it violates Constitutional or
statutory provision. As already held by us, neither the subject Rule
offends any fundamental right guaranteed to Constitution nor it
could be said to be de hors the provisions of the said Act of 1997.
We repeat, welfare of the student is of paramount importance. The
restriction, if any, imposed by the special Rule is only to facilitate
proper teaching availing a particular medium of instruction. A
teacher having no appropriate qualification in the said medium would
not be fit for the said post. The said Rule is neither arbitrary nor
discriminatory, as on a plain reading the true purport is apparent as
discussed above.
The appeals succeed.
The judgment and order under appeal is set aside.
The writ petition is dismissed.
There would be, however, no order as to costs.
Urgent xerox certified copy would be given to the parties, if applied
for.
PRASENJIT MANDAL,J.
I agree.
[ASHIM KUMAR BANERJEE, J.] [PRASENJIT MANDAL,J.]