Biplab Thakur & Ors vs Parimal Mahato & Ors
2023 Latest Caselaw 5040 Cal

                IN THE HIGH COURT AT CALCUTTA
                 CIVIL APPELLATE JURISDICTION
                        APPELLATE SIDE

PRESENT:
The Hon'ble Justice Soumen Sen
           And
The Hon'ble Justice Uday Kumar

                        MAT 2023 of 2022
                               with
                       I.A No. CAN 2 of 2022

                       Biplab Thakur & Ors.
                                Vs.
                       Parimal Mahato & Ors.

For the Appellant         : Mr. Ekramul Bari, Adv.,
                            Mr. Syed Mansur Ali, Adv.,
                            Mr. Imtiaj Uddin, Adv.,
                            Ms. Tanuja Basak, Adv.


For the Respondent/       : Mr. Sabyasachi Chatterjee, Adv.,

Writ petitioner             Mr. Badrul Karim, Adv.,
                            Mr. Imtiaz Akhter, Adv.
                            Mr. Subhrajit Saha, Adv.,
                            Mr. Kiron Sk. Adv.

For the WBBPE             : Mr. Saikat Banerjee, Adv.,
                            Mr. Ratul Biswas, Adv.,
                            Mr. Kaushik Chowdhury, Adv.

For the NCTE              : Mr. Sauvik Nandy, Adv.,
                            Mr. A. Chakraborty, Adv.

For the State             : Mr. Tapan Kr. Mukherjee, AGP.,
                            Mr. Avishek Prasad, Adv.,
                            Mr. Tapas Kr. Dey, Adv.

Hearing concluded on      : 9th August, 2023

Judgment on               : 16th August, 2023

Soumen Sen, J.:- The appeal is arising out of an order dated

21st November, 2022 at the instance of the para teachers of primary

schools.

2. They are aggrieved by the impugned order dated 21st November,

2022 in view of the direction upon the Education Department to take steps

for filling up the vacancies of para teachers by reading down the Notification

dated 23rd September, 2016 and in permitting the upper primary para

teachers to participate in the selection process for the recruitment of para

teachers of primary schools.

3. The appellants are aggrieved by the said order as it has affected

their rights to participate in the selection process initiated pursuant to the

Notification dated 23rd September, 2016. The said notification was issued in

terms of Note 7 of Rule 6(3) of the West Bengal Primary School Teachers'

Recruitment Rules 2016, (hereinafter referred to as "Primary Teachers'

Recruitment Rules, 2016") in which a direction was given by the Hon'ble

Governor that during the "forthcoming" recruitment of teacher for primary

schools, 10% of the existing vacant posts shall be filled up by the para

teachers serving at present in various primary schools across the State.

4. Mr. Ekramul Bari, learned counsel for the appellants has

submitted that the Primary Teachers' Recruitment Rules, 2016 prescribe a

selection process for appointment of teachers in primary schools whereas

the recruitment for upper primary para teachers are governed by West

Bengal School Service Commission (Selection for Appointment to the Post of

Teachers for Upper Primary Level of Schools) Rules, 2016, (in short, "Upper

Primary Level Rules 2016"). In both the Rules there is a provision for

earmarking 10% of the total vacant posts for the para teachers without

disturbing the 100 points roster as notified by the State Government from

time to time.

5. It is submitted that eligibility criteria and honorarium for the post

of para teachers of primary and upper primary are different. The

educational qualification of primary para teachers is Madhyamik pass or

equivalent whereas for upper primary para teachers the qualification is

graduate with 300 marks in relevant subject. In the Primary Teachers'

Recruitment Rules, Rule 2(b) mentioned that 'appointment' means

appointment of teachers of primary schools in accordance with the provision

of the Act and Rules made thereafter. Similar provisions exist in the Upper

Primary Level Rules 2016. In clause 2(p) it has been clearly stated that

vacancy means a vacancy in the post of Teacher for classes of Upper

Primary Level.

6. The grievance of the appellants are that if the upper primary

teachers are allowed to participate in the 10% vacancies to be notified for

primary teachers, it would be discriminatory as the para teachers duly

qualified for upper primary level will be doubly benefitted. They are not

eligible for participation in the 10% vacancies for para teachers for primary

school. There are different qualifications and pay scale. Moreover, 10%

reservation for upper primary teachers has been provided in terms of

Rule8(4) of the Upper Primary Level Rules, 2016. The writ petitioners had

never challenged the vires, legality and validity of Rule 6, Note 7 of the

Primary Teachers' Recruitment Rules, 2016 issued by the State Government

identifying 10% vacancies to be filled up for para-teachers in the primary

schools. The writ petitioners being the para-teachers of upper primary

school also enjoy similar advantage and they cannot take advantage of

reservation in upper primary as well as primary when there is no ambiguity

in the Rules and the Notification.

7. Mr. Tapan Kumar Mukherjee, the learned AGP on behalf of the

State respondents have contended that the recruitment process was

initiated by the West Bengal Board of Primary Education (in short WBBPE)

constituted under the West Bengal Board of Primary Education Act, 1973 (in

short, WBBPE Act, 1973). Section 106 of the WBBPE Act, 1973 empowers

the State Government to frame a Rule and pursuant thereto Primary

Teachers Recruitment Rules, 2016 was framed and duly notified on 2nd

March, 2016. In Rule 2(a) 'Act' is defined to mean the West Bengal Primary

Education Act, 1973, Rule 2(k) has defined the primary school which

includes Junior Basic School. Teacher has been defined in Rule 2(o).

Teacher means a person who holds a teaching post in primary school or in a

junior basic school on a regular and whole time basis and is paid either

wholly or in part from the funds under the control of the State Government

in the Education department. Rule 2(p) has defined the Teachers Eligibility

Test (in short TET) to be conducted by the Board. Trained candidates have

been defined in Rule 2(q). It means a candidate who has obtained diploma in

elementary education. The Board is the selecting authority.

8. The said Rule has been amended by the Notification dated 22nd

December 2020. "Training" in terms of Rule 2(r) means the training referred

to in the notification dated 23rd August 2010, issued by the National Council

for Teacher Education (in short NCTE) as subsequently amended and in

Rule 6 it has been provided that the candidate shall possess minimum

educational and training qualification as prescribed by the NCTE. The

Primary Education Department by a notification dated 24th September, 2016

required that during the "forthcoming" recruitment of teachers for primary

schools, 10% of the existing vacant posts shall be filled up by the para-

teachers serving at present in various primary schools in the State of West

Bengal.

9. On 1st April 2010 the Right of Children to Free and Compulsory

Education Act, 2009 came into force and Section 23 of the said Act provides

inter alia that any person possessing such minimum qualifications as laid

down by an academic authority, authorized by the Central Government, by

notification shall be eligible for appointment as a teacher. Section 2(f)

defines elementary education from first class to eighth class. This Act

applies to primary schools i.e. upto Class IV and from Class V to Class VIII it

is called as Upper-Primary that is Junior High School in West Bengal.

10. It is submitted that in terms of Notification dated 23rd August,

2010 issued by National Council For Teacher Education (in short, 'NCTE')

issued under Section 23(1) of the Right of Children to Free and Compulsory

Education Act, 2009 (in short, 'RTE') the eligibility criterion for appointment

as a teacher in Classes I to V and VI to VIII has been laid down. It prescribes

different qualifications for the two sets of teachers.

11. According to the notification issued by the NCTE under the RTE

Act, 2009 the candidates must be qualified in a TET Examination to be

conducted by the State Government. In case of primary Schools TET is

conducted by the WBBPE (Board) and for Secondary Schools it is conducted

by the School Service Commission.

12. In so far as Teachers for appointment of Upper Primary, namely

from Class V to Class VIII recruitment is done by the West Bengal School

Service Commission (in short WBSSC) under the West Bengal School Service

Commission Act, 1997 (in short WBSSC Act, 1997) which came into force on

and from 1st November 1997. According to Section 2(a) of the WBSSC Act,

1997 the Board means the West Bengal Board of Secondary Education (in

short WBBSE) established under the West Bengal Board of Secondary

Education Act, 1963 (in short the WBBSE Act, 1963). Section 17 of the 1997

Act, empowered the State Government to frame a Rule for carrying out the

purposes of the said Act and accordingly on 20th September 2016 a Rule has

been framed for appointment of Teachers in Upper Primary level of Schools,

that is, up to Class VIII. This Rule is called in short Upper Primary Level

Rules, 2016. According to Rule 2(r) Teachers Eligibility Test to be conducted

by the West Bengal School Service Commission (WBSSC). According to Rule

2(a) of the said Rule, 2016 the Act means the WBSSC Act, 1997.

13. The NCTE has amended its Notification dated 23rd August 2010

on 29th July, 2011. The said Notification prescribed that the candidate must

have 50% marks in Higher Secondary Level with 2 year Diploma in

Elementary Education for primary schools and for upper primary the

candidate must have 50% marks in graduation with 2 year Diploma in

Elementary Education or 1 (one) year B.Ed. However, in both the cases he

must be TET qualified candidate to be conducted by the two different

authorities, one by the Board and other by the School Service Commission

constituted under the WBSSC Act, 1997.

14. The learned AGP has referred to the aforesaid provisions to show

that both the Rules have been framed under different statutes and the

selection and recruitment process are completely different. The

qualifications for the teachers under both the Rules are also different. It is

submitted that by the memorandum dated 2nd July, 2018 the department

has declared consolidated remuneration of the Para Teacher (Primary) and

Para Teacher (Upper Primary). The remuneration for the Para Teachers

Primary and Para Teachers Upper Primary are different.

15. It is submitted that the eligibility criteria of the teacher under

both the Rules are different and so also eligibility criteria for the Para

Teachers Primary and Para Teachers Upper Primary schools. Para teachers

appointed in primary level up to Class IV and also from Class V to Class VIII

are having different pay scale and with different qualifications. It is

submitted that both the Rules contemplate earmarking of 10% vacancies to

fill up by the para teachers for the primary level and upper primary level.

16. In view thereof it cannot be said that the Para Teachers of all

categories irrespective of their qualification shall be treated alike.

17. Mr. Sabyasachi Chatterjee, the learned Advocate appearing on

behalf of the writ petitioner has submitted that all para teachers are to be

treated at par and para teachers form one homogenous group. There cannot

be any classification of para teachers for primary school and upper primary

school. They cannot be treated differently.

18. It is submitted that the para teachers were functioning even

before introduction of the Right to Education Act, 2009 and they were, in

fact, aiding the schools in providing education to the children and to prevent

drop out from the school. They also take care of the drop outs from the

school and now that the Right to Education Act has come into force, it is the

obligation of the State to ensure that up to Class VIII all the children receive

free education. Para Teachers are essentially performing same kind of job

from Class I to VIII irrespective of the gradation of the school where they

were placed or would be placed in the event the vacancies are declared and

accordingly there was no need to create a sub category of Para teachers and

bifurcate into Primary and Upper Primary.

19. In view of the nature of the job and the object for which the rules

have been framed there was no need for any artificial classification of Para

teachers. It is submitted that the view taken by the learned Single Judge

with regard to the Rules 6 Note 7 in the Primary Rules, 2016 was on correct

appreciation of the facts and the object which both the Rules seek to

achieve. It is submitted that it is not impermissible for the court to take

external aid for the purpose of reading down the particular provision in the

event the court is of the view that the said interpretation is necessary for

achieving the object of the Act, and securing the benefit of para teacher.

20. Mr. Chatterjee in this regard has relied upon the decision of the

Hon'ble Supreme Court in Kanai Lal Sur Vs. Paramnidhi Sadhukhan

reported in AIR 1957 SC 907 paragraphs 6 and 7.

21. It is submitted that when it is clear from the object of both the

Rules that the Para Teachers are necessary for primary and upper primary

level and they are to be treated at par.

22. At the outset we must state that the Primary Rules 2016 and the

Upper Primary Rules 2016 have not been challenged in the writ petition. The

challenge was essentially with regard to notification issued by the Hon'ble

Governor dated 23rd September, 2016 by which the State was directed that

during 'forthcoming' recruitment of teachers 10% of the existing vacant

posts shall be filled up by the Para Teachers serving at present in various

primary school in the State. The said Notification was issued under the

Primary Teacher Recruitment Rules, 2016. It was in the nature of

clarification in the form of a direction after taking note of Rules 6 Sub Rule 3

Note 7 of the said Rule. Under the said notification the State was obliged to

initiate immediately recruitment of teachers for primary schools and 10% of

the existing vacant posts shall be filled up by the para teachers serving at

the relevant time in various primary school in the State.

23. The qualification of the para teachers in primary school and

upper primary level are admittedly different. The qualification published

under Sarba Siksha Mission has clearly stated that for a para teachers in

the primary school a candidate should have the qualification of Madhyamik

or equivalent and for upper primary he should be a graduate with 300

marks. The Government as a policy thought that the qualification for para

teachers primary and para teachers upper primary are to be different having

regard to the nature of the job and requirement. The para teachers of

primary would require to take care of students from Class I to Class V. The

Government was of the view that a Madhyamik pass candidate would be

suitable for the said posts whereas for a student from Class V to Class VIII

the candidate must have been a graduate with 300 marks in aggregate.

Remuneration of the para teachers is also different. The processes of

selection are also different.

24. Free and compulsory education for children was a duty cast

upon the Government by the framers of the Constitution. Elementary

education for children in the present context is a Fundamental Rights

enshrined under Article 21A of Part III of the Constitution of India. Every

child (up to 14 years of age) has a Fundamental Right to have 'free' and

'compulsory education'. It implies that it should be a 'meaningful

education'. It is the duty of the State to provide good quality education to

every child. A good teacher is the first assurance of quality education in a

school. Elementary education in India is at two levels. A is the Primary' level

i.e. class I to V, and B is the Senior or upper primary level i.e., classes VI to

VIII.

25. The National Council for Teacher Education is the 'Academic

Authority' authorized by the Central Government under Section 23 of the

Right of Children to Free and Compulsory Education Act, 2009 to prescribe

the minimum qualifications for the teachers who may be appointed to

impart the elementary education from first class to eighth class. Section 23

of the Act is extremely important as it not only provides as to who shall

determine the qualifications of teachers in a primary school, but as to who

can relax these qualifications, and for how long. Under the Primary School

Teachers Recruitment Rules, 2016 for being appointed as a Primary Teacher

the candidate shall possess the minimum educational qualification specified

by the NCTE and the notification relating to eligibility of candidates issued

by the Ministry of Human Resources Development, Department of School

Education and Literacy, Government of India from time to time.

26. The School within the meaning of Section 2(ii)(Ka) as amended by

the Gazette Notification dated 12th October, 2011 means any recognized

school imparting pre-Primary, Primary, Upper Primary, Secondary or senior

Secondary Education or a college imparting senior Secondary Education.

The said notification introduced by way of amendment a new Section after

Section 12, namely, Section 12A which authorized the Council to make

regulations prescribing qualifications of persons for being recruited, inter

alia, to primary and upper primary established, run, aided or recognized by

the Central Government or a State Government or a local or other authority

for the purpose of maintaining standards of education in Schools.

27. Primary school teachers who impart lessons from Class I to Class

IV and are guided under West Bengal Board of Primary Education Act, 1973

and the Rules framed thereunder. The Para Teachers working in Primary

Schools are selected as Primary School Teachers in terms of provisions of

the West Bengal Primary School Teachers Recruitment Rules, 2016 as

amended from time to time, (hereinafter referred to as "Recruitment Rules,

2016") issued in exercise of the power conferred by sub-section (1) and

clause (k) of the sub-section (2) of section 106 read with clause (k) of Section

60 of the West Bengal Primary Education Act, 1973.

28. On 1st April, 2010 the Right of Children to Free and Compulsory

Education Act, 2009 (herein after referred as "RTE Act, 2009") came into

force and section 23 of the said Act provides, inter alia, that any person

possessing such minimum qualifications as laid down by an academic

authority, authorized by the Central Government, by notification shall be

eligible for appointment as a teacher and Section 2(f) of the said Act defines

elementary education from Class I to VIII Class.

29. NCTE by a notification dated 29th July, 2011 has amended the

minimum qualifications of teachers for classes I to V and classes VI to VIII.

The principal notifications with regard to the minimum qualification have

been amended by the said notification.

30. The minimum qualifications for the teachers from Class I to V are:

a) Senior Secondary (or its equivalent) with at least 50% marks and 2-year 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 Educationn (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.EI.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) And

b) 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.

31. The minimum qualification for the teachers from Class VI to VIII

are:

a) Graduation and 2-year Diploma in Elementary Education (by whatever name known) Or Graduation with at least 50% marks and 1-year Bachelor in Education (B.Ed.) Or Graduation with at least 45% marks and 1-year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard.

Or

Senior Secondary (or its equivalent) with at least 50% marks and 4- year Bachelor in Elementary Education (B.EI.Ed.) Or Senior Secondary (or its equivalent) with at least 50% marks and 4- year B.A./B.Sc..Ed. or B.A. Ed/B.Sc.Ed.

Or Graduation with at least 50% marks and 1-year B.Ed. (Special Education) And

b) Pass in Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.

32. It is pertinent to note that the structure and content of TET for

Classes I-V is as follows:

i. Child Development and Pedagogy-30 Marks ii. Language I - 30 Marks iii. Language II-30 Marks iv. Mathematics - 30 Marks v. Environment Studies - 30 Marks The Selection Test of Teachers for Classes I-V is conducted by the

West Bengal Board of Primary Education as per Act, 1973.

33. The Structure and content of TET for Classes VI-VIII is as follows:

       i.       Child Development and Pedagogy- 30 Marks

       ii.      Language I-30 Marks

       iii.     Language II-30 Marks

a. For Mathematics and Science Teacher: 60 MCQs of 1 mark

each.

b. For Social Studies Teacher: for Social Studies - 60 MCQ of 1

mark each.

c. For any other teacher either (a) or (b)

The Selection Test of Teachers for Classes VI-VIII is conducted by the

West Bengal School Service Commission as per provisions of the West

Bengal School Service Commission Act, 1997.

34. In so far as the appointment of the teacher for Upper Primary

Schools, namely for classes from Class VI to Class VIII is concerned the

recruitment is done by the West Bengal School Service Commission (in short

WBSSC) under the West Bengal School Service Commission Act, 1997 (in

short WBSSC Act, 1997) which came into force on and from 01 November

1997. The Para Teachers working in Secondary Schools are selected as

Secondary School Teachers in terms of provisions of Upper Primary Level of

Schools Rules, 2016 issued in exercise of power conferred by sub- section

(1) of section 17 read with section 8 and clause (d) of sub- section (2) section

17 of the WBSSC Act, 1997

35. The qualifications prescribed for recruitment of Primary Teachers

are in line with and in consonance with the qualifications prescribed by the

NCTE. Under both the Rules of 2016 the candidates who were working as

Para Teachers may be considered for appointment as Primary Teachers and

Upper Primary Teacher under the 10% vacancies to be declared in terms of

the provisions of both the rules provided they have the requisite said

minimum qualifications. The eligibility criteria for the Para Teachers of

Primary and Upper Primary are different. The test conducted are by different

authorities. A higher qualification is not necessarily a suitable qualification

for post. The qualification of the para teachers for the upper primary level

may not be a suitable qualification for primary level of classes. There is an

intelligible differentia between the para teachers of primary education and

para teachers of upper primary education.

36. As observed earlier NCTE has prescribed different qualifications

for Primary and Upper Primary Teachers they are having different pay scale.

The method of recruitment is also different.

37. When a particular qualification is laid down in the rules relating

to a distinct classes of candidates the candidates possessing a qualification

higher than that under different rules cannot claim his candidature to be

considered in terms of the other rules which prescribe lower qualification. To

illustrate B.Ed. qualified teachers were kept out from the purview of the

eligibility of the teachers in primary schools as B. Ed. was not considered a

"qualification" for teachers at primary level. In Devesh Sharma v. Union of

India & Ors, 2023 INSC 704 the argument that B.Ed. qualification

candidates are better suited for appointment as teahers in primary schools,

as they have 'higher qualification', and as such they should be appointed as

teachers in all Primary Schools was not accepted. The NCTE in prescribing

the qualification for teachers in primary school and upper primary school

have carefully selected essential qualifications that are required for the

purpose of imparting education of children at primary level and upper

primary level. As observed in Devesh Sharma (supra), "the pedagogy for a

child who has just entered the school in an important consideration. A

child has come to face a 'teacher', so to speak, for the first time in a class

room. It is the beginning of a journey for the child student and therefore

world over great care is taken in laying down proper foundations in these

formative years. Well qualified and trained teacher in elementary school is

an extremely vital aspect. A teacher must be trained to teach students at

'primary level' and this is precisely what the training of Diploma in

elementary education (D.E1. Ed.) does; it trains a person to teach children

at primary level........."

38. In the instant case, we have two distinct rules prescribing

different qualifications made under different statute for a different purpose.

As noticed earlier the qualification and selection process is by different

authorities.

39. The prescription of qualifications for a post is a matter of

recruitment policy. The State as the employer is entitled to prescribe the

qualifications as a condition of eligibility. As observed in Zahoor Ahmad

Rather and Ors. Vs. Sheikh Imtiyaz Ahmad and Ors. reported in

2019(2) SCC 404 "......It is no part of the role or function of judicial review

to expand upon the ambit of the prescribed qualifications. Similarly,

equivalence of a qualification is not a matter which can be determined in

exercise of the power of judicial review. Whether a particular qualification

should or should not be regarded as equivalent is a matter for the state, as

the recruiting authority, to determine........"

40. While prescribing the qualifications for a post, the State, as

employer, may legitimately bear in mind several features including the

nature of the job, the aptitudes requisite for the efficient discharge of duties,

the functionality of a qualification and the content of the course of studies

which leads up to the acquisition of a qualification. The state is entrusted

with the authority to assess the needs of its public services. Exigencies of

administration, it is trite law, fall within the domain of administrative

decision making. The state as a public employer may well take into account

social perspectives that require the creation of job opportunities across the

societal structure. All these are essentially matters of policy. Judicial review

must tread warily."

41. In the impugned order we do not find any reflection of this

distinction. The notification was issued in relation to Primary Schools.

Similar provisions exist for the Upper Primary School with different

qualifications. Both cannot be treated at par by reason of the distinguishing

features mentioned above.

42. Under such circumstances, the impugned order is set aside.

43. The appeal and the Applications are allowed.

44. There shall be no order as to costs.

I agree

(Soumen Sen, J.)

(Uday Kumar, J.)