Calcutta High Court (Appellete Side)
Pranati Aguan vs State Of West Bengal And Ors on 10 June, 2022
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Moushumi Bhattacharya.
CAN 3 of 2019 (Old CAN 2777 of 2019)
in
WPA 21174 of 2017
With
Pranati Aguan
Vs.
State of West Bengal and Ors.
With
CAN 2 of 2019 (Old CAN 2543 of 2019)
in
WPA 17688 of 2017
Gautam Pramanik & Ors.
Vs.
State of West Bengal & Ors.
With
WPA 21173 of 2017
Narayan Poddar & Anr.
Vs
State of West Bengal & Ors.
With
CAN 1 of 2017 (Old CAN 11548 of 2017),
CAN 4 of 2020
in
WPA 21322 of 2017
Nirmalya Das & Ors.
Vs
State of West Bengal & Ors.
With
2
WPA 23699 of 2017
Dolan Kundu
Vs
The State of West Bengal & Ors.
With
WPA 24431 of 2017
Sumanta Banerjee
Vs
State of West Bengal & Ors.
With
WPA 24438 of 2017
Biman Kumar Das & Ors.
Vs
State of West Bengal & Ors.
For the Petitioners : Mr. Kalyan Bandyopadhyay, Sr. Adv.
Mr. Ekramul Bari, Sr. Adv.
Mr. Siddharta Sankar Mandal, Adv.
Ms. Tanuja Basak, Adv.
Mr. Sk. Imtiaz Ali, Adv.
For the State : Mr. Anirban Ray, Ld. Government Pleader
Mr. Pinaki Dhole, Adv.
Mr. Avishek Prasad, Adv.
Mr. Varun Kothari, Adv.
For the State in 24431 of 2017 : Mr. Bhaskar Prasad Vaisya, Adv.
Mr. Suman Dey, Adv.
For the WBCSSC : Dr. Sutanu Kr. Patra, Adv.
Mr. Kanak Bandyapadhyay, Adv.
Mr. Supriya Dubey, Adv.
Last Heard on : 20.05.2022.
Judgment on : 10.06.2022.
3
Moushumi Bhattacharya, J.
1. The petitioners pray for cancellation and withdrawal of amendments
made to the West Bengal School Service Commission (Selection for
appointment to the Posts of Headmaster/Headmistress in Secondary or
Higher Secondary and Junior High Schools) Rules, 2016 as notified on 24th
March, 2017 and all subsequent Notifications issued thereafter to the extent
of imposing enhanced qualifications for selection of
Headmasters/Headmistresses in Secondary, Higher Secondary and Junior
High Schools. The ground for seeking rescission of the impugned Notification
is infringement of Article 14 of the Constitution. The petitioners seek to make
out a case that the impugned Notification, enhancing the qualification for
selection to the post of Headmaster/Headmistress from 45% to 50% in
academic and professional qualifications, is violative of the right to equality
and that the petitioners have been discriminated against by the said
impugned amendment.
2. The petitioners are Assistant Teachers of High Schools in the State and
are presently serving in that position. The petitioners claim to be eligible for
being appointed to the post of Headmaster/Headmistress in the concerned
schools on the basis of the marks obtained by the petitioners which are in the
range of 45%-50% in the post-graduate level. The petitioners contend that by
the earlier Gazette Publication on 21st September, 2016 of the Selection Rules,
2016, particularly Rule 4 read with Schedule I of the said Rules, the required
qualification of a candidate for appointment to the post of
Headmaster/Headmistress in schools was a Master's degree from a recognized
University with at least 45% marks at the post-graduate level.
3. By an order dated 22nd January, 2019, a learned Single Judge of this
Court had stayed the counselling scheduled to be held on 24th January, 2019
until further orders. The stay order as well as subsequent orders extending
the stay on counselling were vacated by this Court on 25th June, 2019. The
selection process for appointing the eligible candidates in terms of the
amended Rules of 2016 were allowed to continue and a certain number of
seats were directed to be kept vacant for balancing the interest of the
petitioners who had approached the Court for relief.
4. Mr. Kalyan Bandhopadhay and Mr. Ekramul Bari, learned senior
counsel appearing for the petitioners, submit that the impugned Notification
of 24th March, 2017 has abruptly increased the required percentage from 45%
to 50% which is violative of the petitioners' right to equality under Article 14 of
the Constitution. Counsel also assail subsequent Notifications including of
12th June, 2017 which published the eligibility criteria for recruitment to the
post of Headmaster/Headmistress. It is further submitted that the impugned
Notification has restrained the petitioners from participating in the
recruitment process even though the petitioners have completed 10 years of
continuous service. Counsel submit that the impugned Notification has
resulted in an artificial distinction by treating the petitioners as a separate
class and further that the State respondents cannot rely upon The National
Council for Teacher Education Act, 1993 for prescribing a minimum standard
of education for school teachers. It is also submitted that the impugned
Notification creates a classification of the petitioners as teachers in one class
and the Headmaster/Headmistress in another class in respect of all their
educational qualifications. Counsel have cited several cases to stress on the
petitioners' right to equal opportunity in the matter of public employment
under Articles 14 and 16 of the Constitution.
5. Mr. Anirban Ray, learned Government pleader assisted by Mr. Varun
Kothari, learned counsel, appearing for the State defend the impugned
Notification on the ground that the NCTE Act, 1993 provides for certain
uniform provisions which are applicable to all schools imparting pre-primary,
primary, upper primary, secondary or senior secondary education and that
the State is bound by the said Act. Counsel also relies on a Regulation dated
12th November, 2014 issued under the NCTE Act for determining the
minimum qualifications for persons who are to be recruited as teachers in
Pre-Primary, Primary, Upper Primary, Secondary, Senior Secondary or
Intermediate Schools or Colleges. Counsel submits that the State enacted the
impugned amendment Notification pursuant to the Regulation issued by the
National Council for Teacher Education and further that the increase in the
eligibility criterion for becoming Headmaster/Headmistress from 45% to 50%
in post-graduate is for the purpose of increasing the standard of education
imparted to the students of the State. Counsel denies that the impugned
Notification is discriminatory or that it creates any artificial distinctions in any
manner. It is also submitted that the petitioners cannot have any legitimate
expectation of becoming a Headmaster/Headmistress as the same is not a
promotional post and the petitioners would have to fulfil the eligibility criteria
for being selected as a Headmaster/Headmistress. Counsel rely on several
decisions in support of their contentions.
6. The West Bengal Central School Service Commission is represented and
reiterates the stand taken by the State.
7. The controversy in the present matter is whether the School Education
Department of the Government of West Bengal could have, by the impugned
Notification dated 24th March, 2017, amended Schedule I and Schedule II of
the West Bengal School Service Commission (Selection for appointment to the
Posts of Headmaster/Headmistress in Secondary or Higher Secondary and
Junior High Schools) Rules, 2016, by enhancing the educational qualification
including professional qualifications from 45% to 50% for recruitment to the
post of Headmaster/Headmistress. The ground taken in the writ petitions in
support of such challenge essentially concern the petitioners being deprived of
an opportunity to participate in the recruitment for the post of
Headmaster/Headmistress as a result of the enhancement of educational
qualifications from 45% to 50%. The petitioners are serving as Assistant
Teachers in High Schools and/or schools coming within the ambit of the
Selection Rules, 2016. The second ground of challenge is the Government
Schools having notified a similar increase in the percentage in respect of
educational and professional qualifications.
8. The first issue, which hence needs to the considered is whether the
impugned Notification creates any unnatural or unreasonable classification
between teachers who are eligible for being selected to the post of
Headmaster/Headmistress and those who are already occupying the said
post. The second related aspect is whether the impugned Notification makes
an artificial distinction between the schools covered by the Notification
namely, governed by the West Bengal Central School Service Commission and
those coming under the Public Service Commission, West Bengal.
9. The first part of the first issue is being answered as follows. The
petitioners cannot have any legitimate expectation for being recruited to the
post of Headmaster/Headmistress in the concerned schools from the time of
joining the said schools since the post of Headmaster/Headmistress is not a
promotional post and the petitioners would hence be required not only to fulfil
the eligibility criteria for being recruited to the post but also clear certain
rounds of selection including written examination and/or interview. Thus, the
ground taken in the writ petitions of the petitioners being deprived of an
opportunity for being considered for the post of Headmaster/Headmistress is
not found to be acceptable.
10. The related issue of whether the petitioners can invoke Articles 14 and
16 of the Constitution; the right to equality and equal opportunity in matters
of public employment; should be weighed against the right of the State to
amend the educational qualification for recruitment to the post of
Headmaster/Headmistress.
11. The object of The National Council for Teachers Education Act, 1993 is
the establishment of a National Council for Teacher Education with a view to
achieving a planned and co-ordinated development of the teacher education
system throughout the country and for the regulation and proper
maintenance of norms and standards in the teacher education system.
Section 1(4)(c) of the NCTE Act makes it clear that the provisions of the Act
shall apply to all schools imparting pre-primary, primary, upper primary,
secondary or senior secondary education as well as colleges providing senior
secondary or intermediate education. Section 12A gives the power to the
'Council', as defined under Section 2(c), to maintain a standard of education
in schools by way of regulations which also includes the power to determine
the qualification of persons for being recruited as teachers.
12. Although the Public Service Commission appears to continue with its
benchmark requirement of 45% - an assumption brought about by the
requirement of a second class Master's degree with Honours of an Indian
University or equivalent qualifications - the contention of inequality is
considerably watered down by the stand of the State. The learned Government
pleader submits that all recruitments made by the Public Service Commission
on the basis of 45% educational qualification requirement have been put on
hold and that the State will soon bring about a similar amendment to the
relevant Act/Rules. Even if the stand of the State is discounted, the argument
of the petitioners of the impugned Notification creating an artificial distinction
between teachers of schools governed by the School Service Commission and
those by the Public Service Commission fails to satisfy the tests for such
argument. The reasons are as follows.
13. An argument of an unnatural or artificial distinction is based upon
equals being treated as unequals. It emanates from the concept of equality
before the law and equal opportunities for persons who are equals and expect
to be treated as such in all respects. Whether the State, by legislation or by
executive action, can treat such persons as falling under different categories,
is to be determined on the twin plank of the categorization being based on
clear and explainable criteria and the categorization having an
understandable nexus with the object sought to be achieved by the creation of
the classes. This is the fundamental rule of a reasonable (or an unreasonable)
classification. If Articles 14 and 16 of the Constitution are given a meaningful
and mutually-purposive interpretation, the object would be to uphold and
preserve equitable distribution of opportunities within a class of persons
marked by well-defined characteristics. The object cannot be to treat persons
across all spectrums as equals but to first segregate the spectrums according
to the special features of each and ensure that persons within these individual
groups are not treated discriminated against. A complaint of violation of the
guarantee of equality can be taken to its equitable conclusion provided there
is iniquitous treatment of persons falling within the same bracket despite their
homogeneous characteristics. A classification based on grouping of persons
based on similar and identifiable markers will withstand judicial scrutiny if
the class of persons are distinct and different from those excluded from the
class. The differential attributes of those within and those outside must be
clear so as to demolish any charge of unequal treatment of persons within and
outside the group.
14. The safeguard in Article 14 of the Constitution is to prevent
discriminatory treatment of persons who claim to be equals; the right does not
mean giving equal treatment or equal protection of the law to persons who are
unequals and would hence require differential treatment for preserving their
unique and individual characteristics. The image which comes to mind is of 3
persons of unequal height being given 3 ladders to see beyond a wall; the idea
is not to give 3 equal-sized ladders to the 3 persons but giving the tallest
ladder to the shortest person and the shortest ladder to the tallest person so
that all 3 can look beyond the wall (wishfully at a brighter and more equal
future).
15. In the present case, the complaint is of the petitioners, who are
Assistant Teachers being put in a separate class from the
Headmasters/Headmistresses .The reason for the complaint is that the
Headmasters/Headmistresses are not being subjected to the qualifying
percentage of 50% which has been brought about by the impugned
Notification. This argument is fallacious. As stated above, there is no natural
or automatic progression/promotion from the post of Assistant Teachers to
Headmasters through intermediate stages. An Assistant Teacher would have
to put himself/herself through a selection process for qualifying to the post of
Headmaster/Headmistress. The two positions namely, of an Assistant
Teacher and a Headmaster/Headmistress are therefore conceptually and
functionally different. Moreover, since the impugned Notification is prospective
in nature, there can be no scope of a person who is presently holding the post
of a Headmaster/Headmistress being subjected to the eligibility criterion of
50% marks in Master's Degree from a recognized University at the post-
graduate level. The proviso to serial no. 1 (i) under Schedule I of the Selection
Rules, 2016, carving out an exception to Headmaster/Headmistress already
appointed in the concerned schools, therefore, does not offend Article 14 of
the Constitution in the manner complained of or otherwise.
16. The second level of discrimination, as alleged, is between the teachers
appointed by the School Service Commission and those by the Public Service
Commission. The two classes of teachers are distinct and disparate from each
other since the mode and manner of selection as well as appointing
authorities are wholly different. The petitioners hence cannot complain of
unequal treatment between these two groups of teachers since the two classes
are based on well-defined characteristics and are distinct from each other.
17. State of A.P vs Nallmilli Rami Reddi; (2001) 7 SCC 708 explained the
concept of a reasonable classification and the tests for holding such
classification to be patently arbitrary. The Supreme Court held that as long
as there is equality and uniformity in each group, the law will not become
discriminatory. In Balco Employees' Union (Regd.) vs Union of India; (2002) 2
SCC 333 and Satyadev Bhagaur vs The State of Rajasthan in Civil Appeal No.
1422 of 2022, (pronounced on 17.2.2022), the Supreme Court enunciated the
legal position that the policies of the Government should not remain static.
This was also reiterated in Independent Thought vs Union of India; (2017) 10
SCC 800, where the efficacy of evolution of the laws in line with the needs of
the society was recognized by the Supreme Court in the specific area of the
Parliament increasing the minimum age for marriage. In Satyadev Bhagaur
the Supreme Court cautioned that unless the policy decision is
demonstratively capricious or arbitrary or suffers from the vice of
discrimination the policy decision cannot be struck down. State of Uttar
Pradesh vs Shiv Kumar Pathak; (2018) 8 SCC 595 is for the proposition that
the State Government is under an obligation to act as per the notifications
issued by the NCTE. In Subhash Chandra vs Delhi Subordinate Services
Selection Board; (2009) 15 SCC 458, the Supreme Court noted that the State's
action must be supported by compelling reasons before a person's
constitutional rights are impinged upon. In Independent Thought the Supreme
Court noted that courts are reluctant to strike down laws as unconstitutional
unless it is shown that the law clearly violates the constitutional provisions or
the fundamental rights of the citizens. In The State of Jammu and Kashmir vs
Shri Triloki Nath Khosa; (1974) 1 SCC 19 a 5-Judge Bench of the Supreme
Court rejected the contention of the respondents that the classification of
Assistant Engineers into degree-holders and diploma-holders rests on any
unreal or unreasonable basis. V. Lavanya vs State of Tamil Nadu; (2017) 1
SCC 322 was concerned with enabling the provisions for empowering the State
to promote reservations and special provisions for socially and economically
backward classes. State of Punjab vs Brijeshwar Singh Chahal; (2016) 6 SCC 1
recognises the expanding horizon in the interpretation of Article 14 of the
Constitution and the Court's willingness to entertain pleas for judicial review
in this field. The Supreme Court in Binoy Viswam vs Union of India; (2017) 7
SCC 59 in fact spoke for reasonable classification of persons, objects and
transactions by the legislature for the purpose of achieving specific ends. In
Navtej Singh Johar vs Union of India; (2018) 10 SCC 1 a 5-Judge Bench of the
Supreme Court brought to the fore the risk of a formulaic classification
without due importance to the safeguards against arbitrary State action. The
decisions shown on behalf of the petitioners do not assist their cause or
support the contention that the impugned Notification enhancing the
benchmark classification from 45% to 50% for recruitment to the post of
Headmaster/Headmistress violates the constitutional safeguard to equality
before the law and equal opportunities in matters of public employment.
18. The reasonableness of the classification of treating the School Service
Commission and Public Service Commission teachers as two separate groups
and the teachers and Headmasters as two separate classes have already been
discussed above. The Notification has a rationale and a most credible nexus
with the object of upgrading the standard of teachers who are to be recruited
as Headmasters/Headmistresses. Requiring a higher academic classification
for the post of Headmaster/Headmistress cannot be said to be violative either
in logic or in practice. The Supreme Court recognized the importance of
excellence in academic standards brought about by the excellence of teachers
and staff in State of Orissa vs Mamata Mohanty; (2011) 3 SCC 436. It was
specifically held in this decision that the quality of teaching staff cannot be
compromised and that the selection of the most suitable persons is essential
for maintaining excellence in the standard of teaching in the institution. It
was further held that Article 21-A has been added to the Constitution for
facilitating proper and good quality education for children. It should also be
recognized that the benchmark required for recruitment to certain posts,
particularly of teachers including Headmasters, has to be raised from time to
time in sync with the evolving academic performance indicators in the State.
Eligibility criteria cannot remain frozen or static for all times to come. A timely
step for an upward revision can never be taken if a spanner is thrown every
time the State seeks to change the benchmark eligibility criteria for
recruitment to certain posts, particularly in schools and colleges.
19. The above reasons persuade this Court to sustain the impugned
Notification dated 24.03.2017 and hold that the writ petitions do not have any
factual or legal basis for seeking cancellation of the Notification. All interim
orders are vacated.
20. WPA 21174 of 2017, WPA 17688 of 2017, WPA 21173 of 2017, WPA
21322 of 2017, WPA 23699 of 2017, WPA 24431 of 2017 and WPA 24438 of
2017 are accordingly dismissed without any order as to costs. Connected
applications, if any, are also disposed of.
Urgent Photostat certified copies of this judgment, if applied for, be
supplied to the respective parties upon fulfillment of the requisite formalities.
(Moushumi Bhattacharya, J.)
