Shrabani Nayek & Ors vs Soumen Paul & Ors
2023 Latest Caselaw 2435 Cal

01 11.04.2023              MAT 1725 of 2022
   Ct. No.11                     With
  (Subhankar)             IA No. CAN 1 of 2022
                                    With
                           IA No. CAN 2 of 2022


                           Shrabani Nayek & Ors.
                                    -Vs.-
                           Soumen Paul & Ors.
                                   With
                           MAT 1761 of 2022
                                   With
                           IA No. CAN 1 of 2022


                           Bamapada Pan & Ors.
                                    -Vs.-
                         The State of West Bengal & Ors.
                                  With
                           MAT 1837 of 2022
                                  With
                           IA No. CAN 1 of 2022
                                  With
                           IA No. CAN 2 of 2022


                           Sadek Biswas & Ors.
                                  -Vs.-
                           Souman Paul & Ors.




                Mr. Subir Sanyal,
                Mr. Chittapriya Ghosh,
                Mr. Somesh Kumar Ghosh
                                             .... For the Appellants
                                             in MAT 1725 of 2022.

                Mr. Sabyasachi Chatterjee,
                Mr. Badrul Karim,
                Mr. Dipankar Das
                             2




                                   .... For the Appellants
                                   in MAT 1761 of 2022

      Mr. Biswaroop Bhattacharya,
      Mr. Golam Mohiuddin,
      Ms. Puja Mondal
                               ....For the Appellants in
                                  MAT 1837 of 2022

      Mr. Sudipta Dasgupta,
      Ms. Dipa Acharyya,
      Ms. Shalini Ghosh
      Mr. Sutirtha Nayek
                                .... For the Respondents/

Writ Petitioners in MAT 1725 of 2022.

Mr. Bikram Banerjee, Mr. Arka Nandi, Mr. Sondwip Sutradhar, Mr. Saikat Sutradhar .....For the Respondents/ Writ Petitioners in MAT 1837 of 2022.

Mr. Tapan Kumar Mukherjee, Mr. Kapil Guha, Mr. Rakesh Singh ....... For the State in MAT 1725 of 2022.

Mr. Bhaskar Prasad Vaisya, Mr. Ranjan Saha ...... For the State in MAT 1761 of 2022 & MAT 1837 of 2022.

Mr. Saikat Banerjee, Mr. Kaushik Chowdhury ...... For the WBBPE in all the appeals.

Mr. Sauvik Nandy ....... For the NCTE in all the appeals.

The three above stated appeals are taken up for

analogous consideration since they involve common

factual and legal issues.

In MAT 1725 of 2022, the Order dated 29th of

September, 2022 passed by the Hon'ble Single Bench in

WPA 20031 of 2022 is under challenge. Similar challenge

is thrown to the said Order dated 29th of September, 2022

of the same Hon'ble Single Bench in MAT 1837 of 2022,

also passed in the same writ petition, being WPA 20031 of

2022.

The appellants in MAT 1837 of 2022 and MAT 1725

of 2022 were not parties to the writ petition being WPA

20031 of 2022. Hence, the appellants in MAT 1837 of

2022 and MAT 1725 of 2022 have each filed CAN 1 of

2022 praying for Leave to Appeal.

In MAT 1761 of 2022, the appellants claim to be

aggrieved by the Order of the Hon'ble Single Bench dated

18th of October, 2022 in the writ petition being WPA

23210 of 2022. Having lost before the Hon'ble Single

Bench as the writ petitioners in WPA 23210 of 2022, the

writ petitioners have now filed this intra-court mandamus

appeal being MAT 1761 of 2022.

At issue in the above mentioned appeals is the

direction passed by the Hon'ble Single Bench by the

Order dated 29th of September, 2022 (supra) allowing the

writ petitioners therein, who are respondents to MAT

1837 of 2022 and MAT 1725 of 2022, to appear for

recruitment to the post of Assistant Teachers in

Government aided/Government Sponsored/Junior Basic

Primary Schools' vide the Recruitment Notification

published on 29th of September, 2022 of the West Bengal

Board of Primary Education (for short the Board). The

appellants in MAT 1761 of 2022 also challenge the denial

of reliefs on similar grounds by the Hon'ble Single Bench

vide its Order dated 18th of October, 2022.

The appellants submit that they are all Teacher

Eligibility Test (for short TET) qualified and trained

candidates. The appellants possess the minimum

educational training prescribed by the National Council

for Teacher Education (for short the NCTE). The

appellants are aggrieved that the writ petitioners who are

TET qualified but did not possess training qualifications

at the stage when the Recruitment Notification dated 29th

of September, 2022 was published, could not have been

permitted by the Hon'ble Single Bench to participate in

the recruitment process.

Mr. Sanyal, Learned Counsel appearing for the

appellants, draws the attention of this Court to the

Notification of the School Education Department,

Elementary Education Branch, Government of West

Bengal dated 22nd of December, 2020. The said

Notification amends the West Bengal Primary School

Teachers' Recruitment Rules, 2016 (for short the 2016

Rules).

Particular emphasis is placed by Learned Counsel

to Chapter - III Rule 6 which provides for the

qualifications to be appointed. Rule 6 (1) and (2) read as

follows:-

"6.(1) No person shall be appointed by the Council as a teacher unless he is a citizen of India and has completed the age of 18 years as on 1st day of January of the year of advertisement and has not completed the age of 40 years on the 1st day of January of the year of advertisement as specified in sub-rule (3). (2) The candidate shall possess the minimum educational and training qualification as prescribed by the National Council for Teacher Education prevailing as on date of publication of recruitment notification."

Learned Counsel submits that the minimum

educational and training qualifications as prescribed by

the NCTE must be therefore held by the candidates at the

stage when the recruitment process begins with the

publication of the Recruitment Notification. In other

words, with the publication of the Notification dated 29th

of September, 2022 (supra), it must be understood in law

that an intending candidate must possess the educational

training qualification as on the date of such Notification.

Next, referring to the NCTE Notification dated the

23th of August, 2010, Learned Counsel submits that the

minimum qualification for participating in the

recruitment of Assistant Teachers in Primary Schools

stands as follows:-

"Rule 1 (i)(a) Senior Secondary or its equivalent with at least 50% maximum and two years diploma in Elementary Education (by whatever name none)."

The appellants take the position that as on the date

of the Recruitment Notification dated 29th of September,

2022, none of the writ petitioners had completed their

training qualification. This fact stands recognized by the

Order of the Hon'ble Single Bench dated 29th of

September, 2022. The Hon'ble Single Bench has

considered a concessional offer by the Board to the effect

that those candidates who had not completed their

training qualifications namely, D.El.Ed., as on the date of

publication of the Recruitment Notification, shall still be

treated to be within the zone of consideration on the

ground that as on the date of the interview, i.e. in

December, 2022, the candidates would have received

their final certificates for the two-year D.El.Ed. Course

pertaining to 2020 - 2022.

Mr. Sanyal submits that the Board had been

unable to complete its D.El.Ed. Course by June, 2022,

i.e. upon the expiry of two years between June, 2020 and

June, 2022. The Board had then hurriedly completed the

two year D.El.Ed course on and by the 29th of November,

2022 by issuing Certificates on and by the said date, i.e.

29th of November, 2022.

It is pointed out that therefore it is an admitted

position that as on 29th of September, 2022, which is the

date of publication of the Recruitment Notification, none

of the writ petitioners were qualified trained candidates. It

is argued that the Board therefore incorporated a

provision in the Recruitment Notification dated 29th of

September, 2022 vide Clause 3 (b) thereof which reads as

follows:-

"3.(b) The candidate shall possess the minimum educational and training qualifications as prescribed by the National Council for Teacher Education prevailing as on date of publication of recruitment notification.

AND TET qualified candidates who are undergoing D.El.Ed./D.Ed. (Special Education)/B.Ed. Training Part-I examination (session-2020-2022) will be given opportunity to participate in the recruitment process to be initiated by the Board."

It is therefore argued that the provision of the

Recruitment Notification dated 29th of September, 2022

namely, Clause 3(b) (supra) which gives a prospective

relaxation to 2020-2022 D.El.Ed. candidates whose

courses could not be completed, requires to be struck

down.

It is emphasized that Rule 6 of Chapter 3 of the

2016 Rules of the Board is specific in as much as

candidates intending to apply are mandatorily required to

possess the minimum educational and training

qualification as prescribed by the NCTE. The NCTE

Notification of 2010 also provides for a two year Diploma

in Elementary Education or, in other words the D.El.Ed.

It is the NCTE Notification of 2010 which carries statutory

flavor in as much as it has been published in terms of

Sub-Section 1 of Section 23(2) of the Right of Children to

Free and Compulsory Education Act, 2009 (for short the

2009 Act).

It is therefore reiterated by Mr. Sanyal that the

Board cannot create room for the writ petitioners to apply

for recruitment without possessing the minimum

educational qualification as on the date of publication of

the Recruitment Notification, which is 29th September,

2022. In support of his arguments, Mr. Sanyal relies

upon the authorities reported in (2011) 9 SCC 438 (at

Paragraph 15), (2013) 11 SCC 58 (at Paragraphs 19, 20

and 21) and (2000) 5 SCC 262 (at Paragraph 13).

It is thus argued that the cut-off date for

recruitment must follow the Statutory Rules and, in the

event the Statutory Rule is silent, then such cut-off date

must follow the date on which the Recruitment

Notification/advertisement is published. Finally, in the

event no such dates are available as stated above, the last

date specified for receipt of an application by the

competent authority shall be the last date for considering

the eligibility criteria of the intending candidates.

It is submitted that none of the legal tests laid

down in (2000) 5 SCC 263 (supra) have been applied in

the case of the writ petitioners. It is argued that there can

be no infraction of the statutory tests. The Hon'ble Single

Bench had fallen into error by permitting the writ

petitioners to be considered for recruitment as Assistant

Teachers in Government-aided Schools under the

Recruitment Notification dated 29th of September, 2022

(supra).

Mr. Biswaroop Bhattacharya, Learned Counsel

appearing for the appellants in MAT 1837 of 2022 in

addition to adopting the submissions of Mr. Sanyal,

relying upon the authority reported in (1997) 4 SCC 18 (at

Paragraph 6) submits that the law laid down in (2000) 5

SCC 262 was earlier noticed in (1997) 4 SCC 18 (supra) to

the effect that there can be no deviation from the last date

prescribed for filing applications.

Mr. Sudipta Dasgupta, Learned Counsel appearing

for the respondents/writ petitioners in all the three

appeals with Mr. Bikram Banerjee, Learned Counsel,

submits that the writ petitioners were enrolled for the

D.El.Ed. training course from June, 2020 to be completed

by June, 2022. Therefore, the writ petitioners had

technically completed their D.El.Ed. training course in

June, 2022 with the close of their final semester.

However, the Board, for reasons of its own, could

not complete the D.El.Ed. Examination within June,

2022, i.e. within two years. The Board was going through

a crisis in the face of a series of issues connected to

recruitment of both teaching and non-teaching staff. The

ad hoc committee of the Board then took charge in

August, 2022.

As the first step towards putting back on the rails

the academic careers of the writ petitioners, the Board

stepped up its efforts to complete the final Part II of the

D.El.Ed. course in a few months on and from August,

2022. Accordingly, examinations were held and the Part II

D.El.Ed. Certificates with Mark Sheets were ready to be

handed over as on 29th of November, 2022.

In the meantime sensing that the Board may

proceed by publishing the Recruitment Notification

during the extended period of completion of their D.El.Ed.

course, the writ petitioners approached the Hon'ble Single

Bench with the plea that since they could not be faulted

for any action of the Board, their candidatures should be

considered by the Board while holding any recruitment

exercise.

Learned Counsel points out that the Board

therefore published the Recruitment Notification dated

29th of September, 2022 with the provision that the

D.El.Ed. candidates, such as the writ petitioners, shall be

eligible to participate in terms of Clause 3(b) of the said

Recruitment Notification. It is submitted that as on the

date of interview, each of the writ petitioners possessed

the final D.El.Ed. training certificate.

It is brought to the notice of this Court by Mr.

Dasgupta that although the writ petitioners had obtained

the TET training qualification long back, they could not

be successful in obtaining an admission to a D.El.Ed.

Course since each of the D.El.Ed. Colleges had a

maximum intake capacity of students. It is pointed out

that the training qualifications for recruitment were

mandatory on and from 2017. Earlier, the recruitment for

Assistant Teachers did not require training qualification

as a mandatory condition to be eligible for recruitment.

Upon the training condition being made mandatory, the

D.El.Ed. Colleges started to be established on and from

2017 and, inspite of the best efforts of the writ

petitioners, they could get admission only in 2020.

Mr. Dasgupta submits that the D.El.Ed. course

ought to have been completed by the Board by June,

2022. It is due to no fault of the writ petitioners that the

course could not be completed in June, 2022. Referring to

Clause 3(a) of the Recruitment Notification dated 29th of

September, 2022, Mr. Dasgupta submits that the age for

being eligible to apply is a minimum of 18 years and a

maximum of 40 years on the first day of January of the

year of publication of the advertisement. In such view of

the matter the writ petitioners stand the risk of being

declared overage in the event they are not allowed to

participate in the instant recruitment process as

advertised on the 29th of September, 2022.

It is submitted that the writ petitioners had

therefore approached the Hon'ble Single Bench with the

prayer that in the event the Board decides to publish a

Recruitment Notification in 2022, such Recruitment

Notification should include within its scope and ambit the

2020-2022 D.El.Ed. candidates. Accordingly, Learned

Counsel supports the terms of the Recruitment

Notification dated 29th of September, 2022 which creates

a provision for granting opportunity of participation to the

TET qualified candidates of the 2020-2022 D.El.Ed.

course. It is further pointed out that the D.El.Ed.

candidates of 2020-2022 course had completed their Part

II Examinations and obtained their training certificates by

and within 29th of November, 2022 and, as on the date of

interview, were qualified for selection as trained

candidates.

On behalf of the Board, Mr. Saikat Banerjee,

Learned Counsel, appears and relies on the affidavit of

the Board as directed to be filed by an order of this Court

dated the 27th of February, 2023 in MAT 1725 of 2022.

The affidavit, inter alia, at Paragraph 4 reads as follows:-

"4. Before I proceed to deal with the different paragraphs of the „said application‟, I consider it necessary to plead as follows:

A] The core controversy in the present lis is as to whether the West Bengal Board of Primary Education [hereafter WBBPE] by permitting candidates {who were yet to clear their Part II examination conducted by WBBPE} to participate in the 2022 recruitment process committed any illegality.

B] Notification dated 29/07/2011 [Page 84 of the „said application‟] issued by NCTE, considered by the answering respondents to be relevant is inter alia extracted infra:

1. Minimum Qualifications:-

(i) Classes I-V

a) Senior Secondary (or its equivalent) with at least 50% marks and 2 years Diploma in

Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2 year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002.

OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El.Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Education (Special Education) OR Graduation and two year Diploma in Elementary Education (by whatever name known)

C] The aforesaid notification dated 29/07/2011 lays down the minimum qualifications for a person to be eligible for appointment as a teacher. The notification never stipulates any date of eligibility. In other words, on and from which date such eligibility is to be counted and/or assessed is not specified in the notification. It can be the first day of January of the year of recruitment; it can be on the date of recruitment notification or it can be the date on which the candidate is evaluated. At the cost of prolixity it is stated that no fixed date of considering the eligibility is evident from the aforesaid notification of NCTE.

D] An intending candidate upon clearing his 10+2 Board Examination is eligible for being admitted in D.El.Ed course. Since the +2 Board Exam results are normally published within 15th June of each calendar year, the two year D.El.Ed course has its session from 1st July to 30th June for the two successive years thereafter. The examining body in West Bengal for such D.El.Ed course is WBBPE. The present ad hoc committee of WBBPE headed by the President of the Board took charge on 24/08/2022. This deponent took

charge as the Deputy Secretary of WBBPE on 26/08/2022. The office bearers of WBBPE noticed that for the session 2020-2022, the Part I examination was held by WBBPE after the Part II session ended on 30/06/2022, between 15/07/2022 and 18/08/2022. WBBPE published the results of Part I D.El.Ed course vide notification no. 233/WBBPE/D.El.Ed./2022 dated 29.09/2022. A copy of such notification is annexed hereto and marked with the letter „R-1‟.

E] WBBPE immediately thereafter in November, 2022 conducted the Part II examination for the 2020-2022 session; results whereof were published vide notification no.

325/WBBPE/D.El.Ed./2022 dated 30/12/2022. A copy of such notification is annexed hereto and marked with the letter „R-2‟.

F] At Page 73 of the „said application‟ is a notification dated 29/09/2022 issued by WBBPE. Clause 5 of such notification reads thus: "The Recruitment Notification and the Application Form will be available in the websites: www.wbbpe.org, https://wbbprimary education.org on or after 21.10.2022."

G] In view of the above, the notification dated 29/09/2022 cannot at all be termed as the 2022 recruitment notification. It is rather an introduction to the recruitment notification which was published 21/10/2022. A recruitment notification must contain the number of vacancies which are intended to be filled up by the examining/recommending body. The notification appearing at Page 73 of the „said application‟ do not contain the number of vacancies.

H] Rule 8(3) Table A of the West Bengal Primary School Teachers Recruitment Rules, 2016 is extracted infra:

Table A Item for evaluation Maximum Marks

Sl. No.

the West Bengal Board of Secondary Education or its equivalent

under the West Bengal Council of Higher Secondary Education or its equivalent

NCTE

(TET)

Activities

I] Vide memo no. 2235/WBBPE/2022 dated 21/12/2022, the Board notified that it is going to conduct the first phase of interview/viva voce and aptitude test centrally under its direct supervision and monitoring. A copy of such notification without its enclosure is annexed hereto and marked with the letter „R-3‟ .

J] The concluding paragraph of the said notification reads thus:

"In order to dissipate any confusion/ambiguity, the examining/recommending body, being the Board makes it abundantly clear that the State Wide Merit List, for the 2022 Recruitment process will only be published after assessing/evaluating every benchmark contained in the recruitment rules."

K] Thus the Board at present is only conducting the viva voce or interview and the aptitude test of the applicant/candidates for the 2022 recruitment process. It is yet to allot marks for the remaining six benchmarks, which includes marks for training. In other words, the time to allot marks for D.El.Ed. (Training qualification) is yet to arrive. Marks for Madhyamik and Higher Secondary cannot be given at this juncture in view of pendency of the Maitra Committee‟s

report which is to be submitted before this Hon‟ble Court in WPA 23585/2022 [Saikat Nandi & Ors. Vs. State of West Bengal & Ors.]."

The Board submits that subsequently Recruitment

Notification dated 29th of September, 2022 was followed

by another Notification on the 21st of October, 2022 in

continuation of the recruitment procedure. It is submitted

that the Board is presently in the process of holding

interviews of all candidates who are D.El.Ed qualified as

on the date of holding interviews in December, 2022.

Next, in MAT 1761 of 2022, the appellants have

challenged the Order dated 18th October, 2022 passed by

the Hon'ble Single Bench in WPA 23210 of 2022. By the

said impugned Order dated 18th of October, 2022, the

Hon'ble Single Bench was pleased to deny any interim

relief to the writ petitioners in WPA 23210 of 2022 being

the appellants in MAT 1761 of 2022. The appellants claim

to be similarly circumstanced as the appellants in MAT

1725 of 2022 and MAT 1837 of 2022 being the trained

candidates as on the date of the Recruitment Notification

dated 29th September, 2022.

The appellants claim to be prejudiced by the Order

dated 18th of October, 2022 which extends the benefit of

participation to candidates who did not possess the

training qualification as on the date of publication of the

Recruitment Notification dated 29th September, 2022. The

appellants in MAT 1761 of 2022 are aggrieved by that

part of the Recruitment Notification dated 29th

September, 2022 which allows participation in favour of

non-trained candidates vide Clause 3(b) (supra), in

respect of which interim relief has been denied by the

Hon'ble Single Bench.

Having heard the parties and considering the

materials placed, this Court is of the clear view that the

Board cannot travel beyond its own Recruitment Rules.

Apropos the above discussion, the 2016 Recruitment

Rules as amended by the Notification dated 22nd

December, 2020 (supra) unambiguously specifies the

eligibility qualification required as on the date of the

advertisement. The nature of such qualification is also

specified by the NCTE Notification dated 23rd August,

2010.

This Court further notices that the law is settled on

the point, which stands also discussed above, that the

eligibility qualifications must be possessed by any

candidate on the date of the Recruitment Notification. It is

undisputed that the private Respondents in MAT 1725 of

2022 and MAT 1837 of 2022 acquired the minimum

eligibility condition of D.El.Ed on 29th November, 2022,

i.e. much after the publication of the Recruitment

Notification on 29th September, 2022. In view of such

position the Board could not have created room for the

Private Respondents/the Writ Petitioners to apply without

possessing the eligibility qualification as on the date of

the advertisement.

This Court also finds the argument of the Board in

its affidavit (supra) that the Notification dated the 29th of

September, 2022 is not the Recruitment Notification

inasmuch as it did not contain the number of vacancies

to be filled up, to be fallacious.

This Court finds the argument of the Board to be

equally fallacious that the Notification dated 29th

September, 2022 was a preparatory exercise to the actual

Recruitment Notification dated 21st October, 2022 which

carried the number of vacancies to be filled up.

The above arguments of the Board are self-

defeating inasmuch as this Court finds that the Board

always intended to act upon the Notification dated 29th

September, 2022 which carried the eligibility for the writ

petitioners who were not D.El.Ed qualified to apply. The

argument of the Board cannot be also sustained since,

even as on 21st October, 2022 described by the Board as

the proper Recruitment Notification, the writ petitioners

were not D.El.Ed qualified candidates.

Accordingly, the appeals succeed.

The Orders impugned of the Hon'ble Single Bench

stand set aside.

Clause 3(b) of the Recruitment Notification dated

29th September, 2022 followed by the further Notification

dated 21st October, 2022 to the extent of permitting

candidates who did not have the minimum training

qualification on the date of the Notification dated 29th

September, 2022 to apply stands quashed.

MAT 1725 of 2022 with IA No. CAN 1 of 2022

with IA No. CAN 2 of 2022 and MAT 1761 of 2022 with

IA No. CAN 1 of 2022 and MAT 1837 of 2022 with IA

No. CAN 1 of 2022 with IA No. CAN 2 of 2022 stand

accordingly disposed of.

Since affidavits are not invited, all allegations to the

contrary stand denied and disputed.

All parties to act in terms of the copy of the order

downloaded from the official website of this Court.

Urgent Xerox certified photocopies of this judgment,

if applied for, be given to the parties upon compliance of

the requisite formalities.

(Supratim Bhattacharya, J.) (Subrata Talukdar, J.)