Kolkata High Court (Appellete Side)
Bishnupada Ghosh & Ors vs State Of West Bengal & Ors on 1 September, 2014
Author: Jyotirmay Bhattacharya
1.9.2014
ac
M.A.T. 474 of 2014
(CAN 3422 of 2014)
Bishnupada Ghosh & ors.
Versus
State of West Bengal & Ors.
Mr. Ekramul Bari,
Mr. S.M. Ali,
Ms. Tanuja Basak.
...For the Applicants/Appellants.
Mr. Bikash Ranjan Bhattacharya,
Mr. Saktipada Jana.
... For the Writ Petitioners/
Respondents
Mr. Jaharlal De,
Mr. Shamim ul Bari.
...For the State.
Mr. Tulsi Das Maiti,
Mr. Pradip Kr. Ghosh,
Ms. Namita Basu.
...For the Respondent Nos. 3 & 4.
This mandamus appeal is directed against the judgement and/or order passed by
the Learned Single Judge of this court on 23rd December, 2013 in W.P. No. 36584
(W) of 2013 at the instance of the appellants who were granted leave to file the
instant mandamus appeal as person adversely affected by the order passed by the
Learned Trial Judge. By the impugned order, the panel which was prepared by the
Kolkata Primary School Council for Head Teacher, was upset as it was not
prepared in conformity with the National Council for Teachers' Education
Notification dated 25th August, 2010 which according to the Learned Trial Judge
will apply mutatis mutandis in respect of the appointment of Head Teachers.
The legality and/or propriety of the said judgement and/or order of the Learned
Trial Judge is under challenge in this mandamus appeal.
Let us now consider the merit of the instant appeal in the facts of the instant
case.
The West Bengal Primary Education Act, 1973 does not prescribe the procedure for
appointment of Head Teacher in the primary school. The eligibility criteria of
the teachers for being considered for appointment as Head Teacher has also not
been prescribed under the West Bengal Primary Education Act, 1973.
Section 106 of the said Act vests the rule making power with the State
Government. In exercise of such rule making power provided under Section 106 of
the said Act, the State Government has framed Primary Teachers Recruitment
Rules, 2001 (hereinafter referred to as the Said Rule of 2001) which has
statutory force. Appointment of Head Teacher is dealt with in Rule 17 of the
said Rule which runs as follows:-
"The Council shall appoint Head Teacher in every primary school within the
jurisdiction of the Council, from a panel of senior primary teachers possessing
requisite qualification as laid down in Sub-Rule (1) and Sub-Rule (2) of Rule 6
and who have obtained a junior basic training certificate or primary teachers
training certificate or equivalent."
Since the requisite qualification of the teachers for being considered for
appointment as Head Teacher is laid down in Sub-Rule (1) and Sub-Rule (2) of
Rule 6 of the said Rule, we feel it necessary to quote the Sub-Rule (1) and Sub-
Rule (2) of the said Rule herein:-
"6. Qualifications-(1) No person shall be appointed by the Council as a teacher
unless he-
a) is a citizen of India;
b) has completed the age of 18 years and has not completed the age of 40 years
on the first January of the year in which the requisition for sending names of
candidates is made to the Employment Exchange concerned; and
c) possesses the minimum educational qualifications as mentioned in sub-rule(2).
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."
Let us now analyze the provisions of Rule 17 to ascertain the basic eligibility
criteria which was laid down in Rule 17 for the teachers for being considered as
Head Teacher.
On plain reading of the said provision, it appears to us that the following
conditions must be satisfied by the teachers for being considered as Head
Teacher:-
i) he or she must be a primary teacher,
ii) he or she must have possessed requisite qualification as laid down in Sub-
Rule(1) and Sub-Rule (2) of Rule 6,
iii) he or she must have a junior basic training certificate or primary teachers
training certificate or equivalent.
A panel will be prepared by the Council comprising of senior most primary
teachers who can satisfy the above three criteria. This Rule was allthroughout
followed by the Council for appointment of Head Teacher in different primary
schools under the Council right from the date when Rule of 2001 was framed.
Problem started when the Right of Children to Free and Compulsory Education Act,
2009(hereinafter referred to as the Central Act of 2009) was enacted, and
certain notifications were issued by the concerned authority under the said Act
prescribing minimum qualification for appointment of the teachers imparting
primary education.
Mr. Bhattacharya, Learned senior advocate appearing for the writ
petitioner/respondents submits that since the Right of Children to Free and
Compulsory Education Act, 2009 is the Central Act and when the said Act and the
notification issued thereunder prescribe the minimum qualification criteria of
the teachers of the primary school, the provisions contained in the said Act and
the notification issued thereunder, should be read along with the provisions
contained in Rule 17 of the Primary Teachers Recruitment Rules 2001 so that Head
Teachers can be appointed from those teachers who possess the requisite
qualification as laid down in the Right of Children to Free and Compulsory
Education Act, 2009 and the notification issued in connection therewith.
According to him, the contrary provision contained in the State Act prescribing
different educational qualification was virtually overridden by the Central Act.
Let us now consider the impact of such submission of Mr. Bhattacharya in the
facts of the instant case.
Section 23(1) of the Right of Children to Free and Compulsory Education Act,
2009 deals with qualification for appointment and terms and conditions of
service of teachers. Educational qualification of a person for being appointed
as a teacher in primary school is not specified in the said Section. It is
provided therein that any person possessing such minimum qualification as laid
down by an academic authority, authorized by the Central Government by
notification, shall be eligible for appointment as a teacher.
Sub-section (2) of Section 23 provides that where State does not have adequate
institutions offering courses of training in teacher education, or teachers
possessing minimum qualifications as laid down under sub-section (1) are not
available in sufficient numbers, the Central Government may, if it deems
necessary, by notification, relax the minimum qualification required for
appointment as a teacher, for such period, not exceeding five years, as may be
specified in that notification; provided that a teacher who, at the commencement
of this Act, does not possess minimum qualifications as laid down under sub-
section (1) shall acquire such minimum qualifications within a period of five
years.
Minimum educational qualification of the person who may be considered for
appointment as primary teacher is prescribed by the Central Government
Notification dated 25th August, 2010. The relevant part of the said
notification wherein minimum qualification of the candidates for being
considered for appointment as teachers for classes 1 to V is prescribed runs as
follows :
i) Senior Secondary (or its equivalent) with at least 50% marks and 2 - year
Diploma in Elementary Education (whatever name known),
OR
Senior Secondary (or its equivalent) with at least 45% marks and 2 - year
Diploma in Elementary Education (whatever name known), in accordance with the
NCTE (Recognition Norms and Procedure, Regulation 2002
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor
of Elementary Education (El. Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 2 -- year
Diploma in Education (Special Education)
And
ii) Pass in the Teacher Eligibility Test (TET), to be conducted by the
appropriate Government in accordance with the Guidelines framed by the NCTE for
the purpose.
Para 2 of the said notification provides that a diploma/degree course in teacher
education recognized by the National Council for Teacher Education (NCTE) only
shall be considered as Diploma/Degree Course in Teacher Eduction. However, in
case of Diploma in Education (Special Education) and B.Ed (Special Education)
course recognized by the Rehabilitation Council of India (RCI) only shall be
considered.
How a teacher is required to undergo training after his appointment is also
provided therein. It is provided that a person :
a) with B.A./B.Sc. with at least 50% marks and B.Ed qualification shall also be
eligible for appointment for class I to V upto 1st January, 2012 provided he
undergoes, after appointment, an NCTE recognized 6-month special programme
in Elementary Education.
b) With D.Ed. (Special Education) or B.Ed (Special Education) qualification
shall undergo, after appointment, an NCTE recognized 6 month special programme
in Elementary Education.
The said notification was made effective with effect from the date when such
notification was issued, i.e. 25th August, 2010. While issuing the
notification, the concerned authority thought about the teachers who were
appointed for class 1 to VIII before issuance of the said notification and
decided that they need not acquire the minimum qualification specified in para 1
above. Thus, the service of the existing teachers was saved by the said
notification. They were treated at par with those teachers who will be
subsequently appointed by following the notification of 2010.
The State Government also by issuing a Government Order dated 13th August, 2012
clarified that the teachers appointed prior to 3rd September, 2001 shall go by
the State Government norms and they need not have to upgrade their
qualifications. The State Government, further, clarified that the teachers who
were appointed between 3rd September, 2001 and 31st December, 2005 possessing
academic qualification as per the State Government norms and completed one-
year/two-year teacher training course from State recognised institutions are not
required to enhance their qualification as per note 2 under first schedule to
the NCTE (Determination of minimum qualifications for Recruitment of Teachers in
Schools) Regulation 2001 dated 4th September, 2001 published in terms of F. No.
9-2/2001/NCTE dated 3rd September, 2001. By issuing a subsequent Government
Order on 4th March, 2013; it was notified by the State Government that the
teachers who being attained one-year/two-year Diploma in Elementary Education
from State recognised institution and appointed as teacher on or before 31st
December, 2005 shall be treated as 'trained teacher'.
If the provision of the Right of Children to Free and Compulsory Education Act,
2009 and the Central Government Notification dated 25th August, 2010 are read
alongwith the Government Order issued by the State Government on 13th August,
2012 and 4th March, 2013 then we have no hesitation to hold that the untrained
teachers who were appointed prior to 3rd September, 2001 and those teachers who
were appointed between 3rd September, 2001 and 31st September, 2005 possessing
academic qualification as per the State Government norms and completed one-
year/two-year teacher training course from State recognised institutions are
eligible to be considered for the post of Head Teacher in the primary school as
they are all treated at per with the trained teachers appointed as per the norms
prescribed in the notifications issued under the Central Act of 2009.
This conclusion we draw as we do not find any contrary provising laying down
different eligibility criteria, for the teachers for being considered as Head
Teacher by the Central Act, namely, the Right of Children to Free and Compulsory
Education Act, 2009 and the Notification issued in pursuance thereof.
It may be mentioned herein that as a matter of fact, the Right of Children to
Free and Compulsory Education Act, 2009 does not prescribe the eligibility
criteria for the Head Teacher. As such, the Rules of 2001 framed by the State
Government is to be followed for appointment of Head Teacher in the primary
school, subject to fulfillment of the eligibility criteria regarding educational
qualification of the teachers as per the Central Government Notifications issued
under Section 23 of the Said Central Act of 2009.
Our attention was also drawn by Mr. Bhattacharya, Learned Senior Counsel,
appearing for the writ petitioners/respondents to another Central Government
Notification issued on 1st June, 2011 whereby some relaxation with regard to
eligibility criteria for appointment of teachers in the primary school in West
Bengal was given in exercise of the power conferred under sub-section (2) of
Section 23 of the Right of Children to Free and Compulsory Education Act, 2009.
The said notification was also given effect prospectively. By the said
notification, relaxation of the training qualification was given for the primary
teachers in West Bengal, as sufficient number of trained candidates was not
available in West Bengal.
However, it was also provided in the said notification that in the matter of
appointment, the State Government shall give priority to those eligible
candidates who possess the minimum qualifications specified in the NCTE's
notification dated 25th August, 2010 and if the available vacancies cannot be
filled up by trained candidates then the other candidates with the relaxed
qualifications may be considered for filling up the left out vacancies.
This provision was made for the purpose of appointment of teachers in the
primary school. The said notification does not provide that untrained teachers
appointed with relaxed qualification can not be considered for the post of Head
Teacher. In fact, the NCTE's notification dated 25th August, 2010; for the
first time laid down the qualification criteria for the primary teachers. As
per the minimum qualification criteria laid down therein, the untrained
teachers, appointed prior to 3rd September, 2001 and the teachers who were
appointed between 3rd September, 2001 and 31st December, 2005; possessing one-
year/two-year diploma in Elementary Education from State recognised institution
were mentioned as eligible primary teachers therein. Since subsequently
sufficient member of trained teachers were not available in West Bengal,
relaxation with regard to training qualification was given in the subsequent
notification. Such relaxation was given for new appointment, without affecting
the service condition of the existing teacher.
When the Central Act and the notification issued under the Said Act as well as
the State Act and the notification issued thereunder treat the existing teachers
who are appointed prior to issuance of the Central Government Notification dated
25th August, 2010 at par with those who are subsequently appointed as per the
Central Government norms, as prescribed in the said notification dated 25th
August, 2010 and the subsequent notification issued in connection therewith, we
do not find any reason to treat the existing teachers differently from those who
are appointed as teachers with training qualification as per the notifications
issued under the Central Act of 2009; as we cannot create a class within a class
for differentiating the existing teacher from the teachers appointed after 2010,
particularly when the Central Act of 2009 and the notifications issued
thereunder do not treat them differently.
We, thus, cannot agree with the findings of the Learned Trial Judge that the
minimum qualification for the Assistant Teachers, as specified in the National
Council for Teachers Education's Notification dated 25th August, 2010 will apply
mutatis mutandis in respect of appointment of Head Teachers for the simple
reason that notifications issued under the Central Act of 2009 does not provide
for application of the minimum qualification for the Assistant Teachers, as
specified in the National Council for Teachers Education Notification dated 25th
August, 2010 in respect of appointment of Head Teacher. If we have to concur
with the findings of the Learned Trial Judge then we will have to add something
in the notification which we cannot do.
We, thus, allow this appeal and set aside the judgment and/or order impugned in
this appeal. The writ petition, thus, stands dismissed.
(Jyotirmay Bhattacharya, J.)
(Tapash Mookherjee, J.)
