Calcutta High Court (Appellete Side)
Priyanka Mondal vs The State Of West Bengal & Ors on 21 January, 2021
21.01.2021
SL No.102
Court No.12
(gc)
MAT 82 of 2021
With
CAN 1 of 2021
Priyanka Mondal
Vs.
The State of West Bengal & Ors.
(Via Video Conference)
Mr. S.N. Mukherjee, Sr. Adv.,
Ms. Susmita Shaw,
Mr. Nilendu Bhattacharya,
Mr. Kapil Guha,
...for the appellant.
Mr. L.K. Gupta, Sr. Adv.,
Mr. Subir Sanyal,
Mr. Ratul Biswas,
...for the W.B.B.P.E.
Mr. Kishore Dutta, A.G.,
Mr. Sayan Sinha,
...for the State.
Mr. Ajay Chaubey,
Mr. Sanjeeb Seni,
...for the U.O.I.
Mr. Souvik Nandy,
...for the N.C.T.E.
By consent of the parties, the appeal and the
application are treated as on the day's list and disposed of
by this common order.
The appeal is arising out of an order dated 18th
January, 2021 in a writ application filed by one Priyanka
Mondal challenging the notification dated 23rd December,
2020 for recruitment of Primary Teachers. Before the
learned Single Judge a prayer was made for allowing the
writ petitioner to participate in TET-2014 pursuant to the
said notification on the ground that the writ petitioner has
the qualification as prescribed in the notification, save and
2
except, Clause (c) of the Eligibility Criteria as she would be
appearing for the TET Examination scheduled for 31st
December, 2020 and it is in the fitness of the thing that the
relaxation should be extended to all the candidates who
would qualify in the TET-2017.
It was urged before the learned Single Judge as well
as before us that in terms of the notification dated 11th
February, 2011 issued by the National Council for Teachers
Education (in short "NCTE"), it is obligatory under Rule 11
for the appropriate Government to conduct a TET at least
once every year and the State, being the appropriate
Government, having failed to conduct such TET every year,
the right of the writ petitioner to be considered for the
recruitment process would be infringed in the event the
TET qualification of 2014 is not extended to TET-2017. The
learned Single Judge denied the interim order on the
ground that whether such provision is mandatory or
directory needs consideration. The learned Single Judge
has also held that the writ petitioner ought to have
approached the Board to allow the petitioner to participate
in the recruitment process before filing the writ petition.
Mr. S.N. Mukherjee, learned Senior Counsel
appearing on behalf of the writ petitioner submits that it is
not in dispute that so far as qualification (a) and (b) of the
notification for recruitment dated 23rd December, 2020 is
concerned, the appellant has a requisite qualification but
the inclusion of Clause (c) in the said notification, namely,
3
that the candidate should also pass in the TET-2014
conducted by the West Bengal Board of Primary Education,
ought to have extended to the candidates who are
appearing for TET-2017 as it is the failure on the part of the
appropriate Government in not holding TET Examination
every year as directed by NCTE in its notification dated 11th
February, 2011. It is submitted that the last TET
Examination was held in the year 2014 and there is no
explanation offered as to why the TET Examination for the
subsequent period was not held. When the State decided to
hold TET-2017 in terms of the advertisement 31st
December, 2020, there is no reason not to extend the
benefit of TET-2017 to the successful candidates. It is also
submitted that by restricting it to TET-2014, the State
respondents have narrowed down the area of consideration
and it is discriminatory, arbitrary and also contrary to the
notification dated 11th February, 2011.
Mr. Kishore Dutta, learned Advocate General
representing the State submits that the provisions of NCTE
Guideline are directory in nature as held by the Hon'ble
Supreme Court in State of Uttar Pradesh and Others Vs.
Shiv Kumar Pathak and Others reported at (2018) 12
SCC 595. It is an admitted position that the writ petitioner
was not qualified for TET-2014 as she was under-age and
filed the writ petition only on the basis of the notification
dated 31st December, 2020 inviting candidates to
participate in TET-2017 Examination to be conducted by
the West Bengal Board of Primary Education. It is further
submitted that if the writ petitioner was really aggrieved by
the inaction on the part of the State authorities for not
conducting TET every year, nothing prevented the writ
petitioner to approach the Court for holding TET
Examination for the subsequent periods and not to wait till
the notification dated 31st December, 2020 was issued
inviting the applicants for participating in TET-2017. Mr.
Advocate General has reiterated that in view of the decision
of the Hon'ble Supreme Court in Shiv Kumar Pathak
(supra), it is not incumbent upon the State to hold TET
Examination every year, in any event, it is an issue to be
decided at the final hearing of the writ petition.
The learned Counsel representing the other
respondents have adopted the submissions made by the
learned Advocate General.
The learned Counsel for the NCTE has submitted
before us that the Guideline-11 is directory and not
mandatory.
At this stage, we are concerned with the
propriety of an order passed by the learned Single
Judge refusing ad-interim order of injunction. In
considering the prayer for ad-interim order of
injunction, the Court is required to take into
consideration certain essential facts. The writ
petitioner could not have participated in TET-2014.
She became eligible for TET-2017 only after 2018
because she acquired a technical qualification in the
year 2018 itself. In fact, the notice dated 12th May,
2017 would not come to the aid of the writ petitioner
had the TET-2017 was held in the year 2017 itself.
The sheet anchor of the writ petitioner is the
notification dated 31st December, 2020. Had there
been no notification dated 31st December, 2020, the
writ petitioner possibly could not have approached this
Court. The process of recruitment starts with an
advertisement which lays down the qualification,
admittedly the writ petitioner was not qualified on the
date of advertisement. The writ petitioner invited us to
change the rule of the game after the process has
started. One would have followed that the writ petition
was filed challenging the very basis of the recruitment
process immediately after 23rd December, 2020. The
recruitment process to be initiated under the
notification has set out different dates for completion of
the formalities. All the online applications were to be
filed by 6th of January, 2021. The writ petition was
filed on 11th January, 2021. The judgment of the
Hon'ble Supreme Court Shiv Kumar Pathak (supra)
records the submission of the NCTE that the
notification dated 11th February, 2011 is not
mandatory. However, we find that there is no decision
on merit as to the mandatory nature of all the Clauses
of the Guidelines. It goes by concession. At the same
time, it needs to be considered whether such guidelines
are mandatory in nature having regard to the fact that
the nomenclature is used by the NCTE in respect of
various rules are: "guidelines for conducting TET". It is
on a prima facie reading of the judgment in Shiv
Kumar Pathak (supra), it appears that NCTE has
made a concession and that is restricted only with
regard to the weightage to be given to the marks
obtained in TET and not in relation to the other
Clauses of the said Guideline. The state has taken a
conscious decision to recruit teachers on the board of,
inter alia, results in 2014 TET. The decision to hold
TET 2017 is a subsequent decision which may govern
future recruitment. However, these are the issues we
feel to be decided at the final hearing of the writ
petition. The issue raised by Mr. Mukherjee has to be
weighed with the balance of convenience and the
comparative hardship that would result in the event
the State is now to ask to relax the qualification.
Moreover TET certificate is valid for 7 years. There is no
reason also to doubt that the state would not take
steps in near future for filing up future vacancies
keeping in mind its duties under the Right to Children
to Free & Compulsory Education Act, 2009 falling the
NCTE guidelines. The petitioner is yet to qualify in TET
2017. The examination is going to be held on 31st
January, 2021.
On the aforesaid consideration, we do not find any
reason to interfere with the order passed by the learned
Single Judge.
The appeal being MAT 82 of 2021 and the stay
application being CAN 1 of 2021, accordingly, stands
dismissed.
However, the learned Single Judge shall decide the
writ petition being uninfluenced by any observation made
by us in this order.
Urgent Photostat certified copy of this order, if
applied for, be given to the parties on usual undertaking.
(Aniruddha Roy, J.) (Soumen Sen, J.)
