Calcutta High Court (Appellete Side)
Kuntal Samanta & Ors vs State Of West Bengal & Ors on 15 December, 2023
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :-
The Hon'ble Justice Moushumi Bhattacharya
IA No. CAN 1 of 2018 (Old No. CAN 748 of 2018)
CAN 2 of 2018 (Old No. CAN 4708 of 2018)
CAN 6 of 2020
CAN 7 of 2020
CAN 8 of 2021
in
WPA 28890 of 2017
Kuntal Samanta & Ors.
vs
State of West Bengal & Ors..
With
WPA 24309 of 2016
Indrajit Mistry & Anr.
vs
State of West Bengal & Ors.
With
WPA 25892 of 2016
Shri. Uttam Shee & Ors.
vs
State of West Bengal & Ors.
With
WPA 29181 of 2016
Swapan Kumar Sarkar & Ors.
vs
State of West Bengal & Ors.
With
2
WPA 6957 of 2019
Prasanta Das & Ors.
vs
State of West Bengal & Ors.
For the petitioners : Mr. Subir Sanyal, Adv.
Mr. K.M. Hossain, Adv.
Mr. Golam Mostafa, Adv.
Mr. Samirul Sardar, Adv.
For the State : Mr. Tapan Kumar Mukherjee, Adv.
Mr. B.P. Vaisya, Adv.
Mr. Gourav Das, Adv.
Mr. Somnath Naskar, Adv.
For the added : Mr. Soumik Pramanik, Adv.
respondent/Para-Teachers
For the WBCSSC : Dr. Sutanu Kumar Patra, Adv.
Mr. K.K. Bandyopadhyay, Adv.
Ms. Supriya Dubey, Adv.
Last Heard on : 18.10.2023
Delivered on : 15.12.2023
Moushumi Bhattacharya, J.
1. Several categories of persons have filed the present writ petitions
seeking Rule 8(4) of the West Bengal School Service Commission
(Selection for Appointment to the Posts of Teachers for Upper Primary
Level of Schools) Rules, 2016 to be declared ultra vires the Constitution
of India.
2. The petitioners' grievance is that the petitioners have been
excluded from the 10% reservation of the total number of declared
vacancies for the recruitment of "Para Teachers" under the "Sarba
Siksha Mission" of the State. The petitioners pray for a mandamus on
the respondents for grant of 10% reservation to the petitioners in the
selection for Assistant Teachers to Upper Primary Schools in the State
of West Bengal for the year 2016.
3. The petitioners are Special Educators and Samprasaraks.
4. The respondents are the School Education Department of the
Government of West Bengal, the Commissioner of School Education
and the West Bengal Central School Service Commission.
5. The case which the petitioners seek to make out is identical to
all the writ petitions, namely, that Rule 8(4) of the 2016 Rules is
un-constitutional and that the petitioners are entitled to 10%
reservation as given to the Para Teachers. The petitioners say that the
very foundation of the impugned Rule violates Article 14 of the
Constitution since the petitioners are similarly-situated to Para
Teachers and hence the State could not have classified Para Teachers
as a separate group for grant of the 10% reservation. The Court
proposes to pronounce judgment in all the writ petitions as they involve
the same issue.
6. It may be noted that the court passed an interim order on
30.11.2017 permitting the petitioners to participate in the ongoing
selection process and directing the authorities to treat the petitioners
on a similar footing to that of Para Teachers for the 10% reservation.
The interim order was extended on several occasions thereafter and
subsists as on date.
7. Learned counsel appearing for the petitioners urges that the
petitioners are working as Special Educators under the Paschim Banga
Samagra Siksha Mission and have been recorded as trained candidates
with a degree/diploma in B-Ed in Special Education and are eligible for
appointment as Assistant Teachers in Upper Primary Schools in West
Bengal. Counsel submits that additional posts were sanctioned by the
State Government by a Notification dated 21.12.2011 keeping aside
10% seats to be filled up by Para Teachers under the Sarba Siksha
Mission/ Samagra Shiksha Mission. The State Government issued
another Notification on 21.12.2011 amending the West Bengal School
Service Commission (Selection of Person for Appointment to the Posts of
Teachers) Rules, 2007 by inserting Rule 4(3) enabling the State
Government to declare 10% reservation of the total number of posts in
order to provide for adequate representation of candidates from various
categories without disturbing the 100-point roster. Counsel submits
that age relaxation and a maximum of 5 marks for each completed year
of experience was given to Special Educators equal to that of Para
Teachers for the State Level Selection Test (SLST) 2012. Counsel
submits that a few of the Special Educators were also considered for
recruitment against 10% vacancy in the 12th Regional Level Selection
Test (RLST).
8. Counsel says that after submission of online application for the
first SLST, the petitioners came to know about the 2016 Rules and the
earmarking of 10% of the total vacancies only for Para Teachers. It is
submitted that giving the benefit of reservation only to Para Teachers is
unconstitutional since the work done by Special Educators is
distinctive and indispensable to the education system. Counsel
submits that Special Educators deal with children with special needs
and are similarly-placed to Para Teachers in respect of qualifications,
method of recruitment and job-profile. Counsel submits that the
appointing authority for both Special Educators and Para Teachers is
also the same, namely the District Project Officer.
9. Learned counsel appearing for the Special Educators seeks to
make out the same case for the other petitioners namely Samprasarks.
The primary contention is that the Samprasaraks should also be
treated at an equal plane to that of the Para Teachers since the work
profile cannot be demarcated and the petitioners perform distinctive
functions in their respective areas which takes the object of the Sarba
Siksha Mission of the State forward.
10. The learned Advocate General appearing for the State
respondents submits that the State created additional posts for
teachers in accordance with the mandate of The Right of Children to
Free and Compulsory Education Act, 2009 in order to maintain the
correct pupil-teachers ratio as prescribed under the said Act. Additional
posts were created by the State by a Notification dated 21.12.2011
published on 28.12.2011 which provided for 10% reservation for Para
Teachers and Samprasaraks and the recruitment for such vacancies
was completed in 2012.
11. It is submitted that Rule 8(4) of the 2016 Rules does not violate
Articles 14 or 16 of the Constitution since Special Educators and
Samprasaraks cannot claim entitlement for the reservation earmarked
for Para Teachers. Counsel submits that the petitioners cannot be
equated to Para Teachers or claim to be within a single class since Para
Teachers are experienced in classroom teaching. Counsel submits that
the earmarking of 10% for Para Teachers under Rule 8(4) is a policy
decision of the State which has a rational basis, namely, recruitment of
Para Teachers as Assistant Teachers.
12. Learned counsel appearing for the West Bengal Central School
Service Commission adopts the arguments made by the learned
Advocate General.
13. Learned counsel appearing for the Para Teachers relies on an
order passed by this Court on 6.2.2022 in CAN 6657 of 2019 in WP
28890(W) of 2017 whereby Para Teachers were impleaded as party
respondents in WPA 28890 of 2017 and were given liberty to file a
supplementary affidavit and also be heard on the merits of the writ
petition.
14. Counsel submits that the work performed by the Special
Educators and the Samprasaraks is different to that of the Para
Teachers together with the procedure for their recruitment. Counsel
submits that Para Teachers were engaged in schools from 2004 and
were sanctioned work according to designated schools. The Para
Teachers were also sanctioned work according to the specific subjects
in accordance with the staff pattern in respect of distribution groups
and subjects. Counsel submits that as opposed to the mode of
recruitment of Para Teachers, Special Educators do not have any
specific method of selection and are appointed cluster-wise and also
work for different schools. Counsel submits that Para Teachers are
required to undergo training programmes as directed by the Joint
Secretary, School Education Department by the Government order
dated 26.2.2009 with regard to subject-wise orientation training
programmes.
15. Learned counsel appearing for the writ petitioners seeks to bring
a subsequent development on record. During pendency of the present
writ petitions, the State Government issued a Notification dated
18.12.2019 read with Memo No. 12/2019, for treating Sahayak,
Sahayika, Mukhya Sahayak, Mukhya Sahayika of SSKs and
Samprasarak, Samprasarika, Mukhya Samprasarak, Mukhya
Samprasarika of MSKs at par with Para Teachers under the School
Education Department. Counsel submits that the Notification of
18.12.2019 substantiates the claim of the petitioners for 10%
reservation to the posts of Teachers in Upper Primary Levels and the
writ petitions should accordingly be allowed.
16. The controversy in the writ petition revolves around the
legitimacy of the claim of the petitioners that Rule 8(4) of the West
Bengal School Service Commission (Selection for Appointment to the
Post of Teachers for the Upper-Primary Level of Schools) Rules, 2016 is
discriminatory and offends Articles 14 and 16 of the Constitution of
India. The basis of the contention is that the petitioners have been
excluded from the benefit of the 10% reservation in favor of Para
Teachers.
17. The question before the Court is whether the Para-Teachers
were wrongfully put in a separate class excluding the special-educators
/ Samprasaraks coupled with un-intelligible differentia without any
rational nexus to the object of the 2016 Rules.
18. Rule 8(4) was notified on 20.9.2016 by the School Education
Department, Secondary Branch, Government of West Bengal in
exercise of the powers conferred under section 17(1) read with section 8
and 17(2)(d) of the West Bengal School Service Commission Act, 1997.
Rule 8(4) of the 2016 Rules is set out below:
"8. (4) The State Government may, by notification, earmark upto
10% of the total vacant posts with a view to provide adequate
representation of the Para Teachers without disturbing 100 point
roster as maybe notified from time to time. If there is no notification
to earmark the posts or if the posts remain vacant due to non-
availability of suitable candidates, the earmarked posts shall be
filled up as per general procedures as mentioned in these rules
from the qualified eligible candidates."
19. Under the impugned Rule, 10% reservation on a horizontal basis
was made for Para Teachers without disturbing the 100-point roster of
vacancies. By a Notification dated 21.12.2011 published on 28.12.2011
10% of the posts for teachers were to be filled up by Para Teachers,
Sikshabandhus, Sikshamitras, Samprasaraks under the Sarba
Sikhsha Abhiyan in Shishu Shiksha Karmasuchis (SSKs) and
Madhyamik Shiksha Karmasuchis (MSKs) run by the Panchayats and
Rural Development Department. Recruitment for the vacancies which
was published in the Notification of 21.12.2011 was completed in 2012.
20. The sole point of adjudication is whether Rule 8(4) of the 2016
Rules is rendered unconstitutional by exclusion of special educators
and Samprasaraks from the reservation. Promulgation of the
impugned Rules makes it evident that the 10% reservation for
Para-Teachers is a policy decision of the State Government. The validity
of the policy decision however should be tested on the anvil of Articles
14 and 16 of the Constitution; namely whether the petitioners' right to
equality under the laws of the country and in matters of public
employment has been violated by Rule 8(4) of the 2016 Rules. The
grounding of the arguments is that the petitioners are
similarly-situated to the Para-Teachers and hence could not have been
excluded from the benefit of the 10% reservation under the impugned
Rule.
21. Article 14 of the Constitution guarantees equal treatment to all
without discrimination. Article 16 contemplates equality to all citizens
in matters of public employment. The underpinning of the
constitutional guarantees is that no person should face discriminatory
treatment by reason of a State action including in the form of creation of
classes for preferential treatment. The complaint of the petitioners is
that the Government of West Bengal classified Para-Teachers for
preferential treatment excluding the petitioners, disregarding the fact
that the petitioners are similarly-situated to the Para-Teachers.
22. In order to test the correctness of this contention, the factual
position relating to special educators / Samprasaraks as compared to
Para Teachers should hence be seen.
23. The services of Para Teachers was invited by the District Project
Director, SSK, Purba Medinipur by a Memo dated 27.7.2004. Para
Teachers were engaged in designated schools against sanctioned posts
from 2004. Posts were also sanctioned in schools according to specific
subjects. Para Teachers were also appointed with due consideration of
the staff pattern and distribution of subjects in these schools and were
selected by Committees which were formed by the Managing
Committees of the respective schools. The list prepared by the Selection
Committee was sent to the District Sub-Committee of the Sarba Siksha
Abhiyan for final approval.
24. Para teachers were assigned only to one school per Para Teacher
after an interview for that school only.
25. The Memo of the State Project Director, Paschimbanga Rajya
Prarambhik Siksha Unnayan Sanstha, dated 2.1.2006 contains
guidelines for Para Teachers both in the primary and the upper primary
including taking into account the number of working days and
allotment of weekly classes. In terms of a Memo issued by the District
Project Officer being number 737/SSA/510/2006, the number of
working days of Para-Teachers was increased from 4 to 6 days, out of
which 4 were allotted for regular teaching classes and 2 for supervisory
work.
26. Learned counsel appearing for the Para-Teachers has also relied
on Memos to show that the period of engagement of Para-Teachers was
extended till 60 years; Memo No. 1315 dated 20.12.2010. It also
appears that the engagement of Para-Teachers was clearly intended for
classroom teaching for upper primary level i.e. up to Class VIII and the
Para Teachers were also engaged subject wise against sufficient posts,
as stated above for specific work including conduct of examinations,
setting question papers and evaluating the performance of students.
27. The training programme for Para Teachers for taking formal
classes is also under the direction of Joint Secretary, School Education
Department as per a Government Order dated 26.2.2009 which
includes subject-wise orientation in training programmes. The Para
Teachers have to undergo B. Ed and D. Ed training programmes like
regular teachers.
28. Counsel appearing for the petitioners have not shown any
specific procedure for selection / engagement of special educators /
Samprasaraks. The Court was however informed that the petitioners,
particularly the special educators, are appointed cluster-wise and work
for different schools in respect of the particular circle / block level of the
Resource Center and identify and assess every CWSN (Child with
Special Needs).
29. The material placed before the Court makes it clear that the
work-profile of Para Teachers and special teachers / Samprasaraks
cannot be equated or brought under the same category. The affidavit in
opposition as well as the notice filed on behalf of the State respondents
show that while Para Teachers are involved in teaching in recognised,
aided schools (formal Schools under the School Education Department
of the Government of West Bengal) and are directly associated with
classroom teaching including remedial teaching of students who need
special efforts. Siksha Mitras / Siksha Bandhus/ Siksha Sebis do not
teach in recognised, aided schools under the School Education
Department. Siksha Bandhus are engaged by Circle Level Resource
Centers and essentially collect data for organising informal education
and innovative teaching methods.
30. The fact of the petitioners discharging duties which are
essentially different in nature, content and structure from those of Para
Teachers would also be evident from the submissions made by counsel
appearing for the petitioners. Counsel has vehemently urged that the
special educators / Samprasaraks are discharging functions which are
indispensable to differently-abled children / children with special needs.
While there is little doubt of the significance and worth of the role
played by special educators / Samprasaraks, it is also evident that the
work is specialized and in niche-areas and is different from that
performed by the Para-Teachers.
31. The petitioners' entire challenge to Rule 8(4) of the 2016 Rules is
based on the petitioners being deprived of the 10% reservation which
has been granted to Para Teachers. The complaint is based on the
petitioners performing the same work as that of the Para Teachers and
the consequence to the 10% reservation. The Court would have
accepted this argument if the petitioners were found to be
similarly-situated / circumstanced to the Para Teachers in respect of
the work performed. The argument that the petitioners perform work
which is more rigorous in nature or require longer hours is not the
same as the work-content being the same to that of the Para-Teachers.
32. Admittedly, while the Para Teachers are primarily engaged for
classroom teaching with subject orientation akin to regular teachers,
the petitioners (special educators / Samprasaraks) are engaged in a
non-classroom structure and a multiple school module. The petitioner's
work is concentrated to a cluster, namely, area wise allocation
depending on the number of children with special needs in the cluster.
There is also a stated difference in the mechanism for recruitment /
engagement of Para-Teachers and the petitioners which has been
mentioned in the earlier part of this judgment. These vital differences
cannot be discounted in the argument of distinction or intelligible
differentia for the classification of Para Teachers.
33. Any argument on intelligible differentia presumes an overall
homogeneity in the classification. In other words, the persons classified
are presumed to have certain distinctive and shared characteristics
which distinguish those within the class from those outside.
Classifications are made for according special benefits to the class for
the purpose of protecting the persons in the class from discriminatory
application of the laws. The ground rule is that unequals cannot be
treated as equals and vice versa. Hence, the logic is that people who are
similarly-circumstanced cannot be discriminated against and those
who are different should not be treated on an equal plane.
34. The petitioners cannot complain of violation of Articles 14 and
16 of the Constitution since the petitioners do not share the same
characteristics in terms of work-profile coupled with the dissimilarity in
the purpose of recruitment. Rule 8(4) of the 2016 Rules could have been
considered as discriminatory had the petitioners been on the same
plane as that of the Para Teachers in terms of the work performed and
the basis of their respective appointments.
35. It is well-settled that apart from the classification being
supported by intelligible differentia between those inside the group
compared to those who are excluded from the group, the classification
must also have a rational nexus to the object of the statute /
notification. In the present case, the rationale of earmarking 10% of the
seats for Para Teachers in Rule 8(4) is for the stated purpose of
increasing the workforce for classroom teaching and enhancing
efficiency in matters of assessment and evaluation. The object of the
2016 Rules is also to provide an incentive to Para Teachers and ensure
their participation in the recruitment as Assistant Teachers in the
Primary / Upper Primary levels for schools in West Bengal.
36. The principle of reasonable classification was laid down in
National Council for Teacher Education vs. Shri Shyam Shiksha
Prashikshan Sanstha; (2011) 3 SCC 238 wherein it was held that the
principle underlying the charter of equality in Article 14 of the
Constitution means that all persons similarly-circumstanced should be
treated alike as opposed to the same rules being made applicable to all
persons. The Court justified the necessity of classification to achieve the
Constitutional vision of equality. The Supreme Court in Transport and
Dock Workers Union vs. Mumbai Port Trust; (2011) 2 SCC 575 held that
classification is permissible when founded on intelligible differentia
with a reasonable relation to the object sought to be achieved. The
Court cautioned against a dogmatic interpretation of Article 14 and
frowned upon absolute and inflexible concepts as anathema to progress
and change. The decision in Rajneesh Kumar Pandey vs. Union of India;
WP(c) No. 132 of 2016, relied on by the petitioner, only takes the cause
of the petitioner forward to the extent that special educators should be
given recognition and regularisation in their duties. The issue in the
present facts is entirely different as the petitioners do not seek
recognition from the Government but equal treatment to that of Para
Teachers, specifically in the matter of the reservation granted under
Rule 8(4) of the 2016 Rules.
37. The Notification dated 18.12.2019 brought on record by the
petitioners in their supplementary affidavit filed on 11.9.2023, also
discloses a communication dated 20.12.2019from the Mission Director
& Joint Secretary, Govt. of West Bengal to the Additional Executive
Officer, Zilla Parishad and District Nodal Officer, SSK & MSK Cell. By
this communication, Paschimbanga Rajya Shishu Siksha Mission has
been transferred to the School Education Department of the
Government of West Bengal. The petitioners say that the Notifications
were brought into effect during the pendency of the writ petitions and
Sahayaks /Sahayikas and Mukhya Sahayaks/ Mukhya Sahayikas of
SSKs, Samprasaraks/ Samprasarikas and Mukhya Samprasaraks /
Mukhya Samprasarikas of MSKs are now to be treated at par with
Para-Teachers of Paschimbanga Samagra Shiksha Mission under the
School Education Department. The petitioners rely on these
Notifications for appropriate orders in the writ petitions.
38. Both these Notifications however have prospective effect. This
would be evident from the Notifications themselves. The relevant parts
of the Notification dated 18.12.2019 are set out.
"2. The Sahayaks/Sahayikas and Mukhya Sahayaks/Mukhya
Sahayikas of SSKs, Samprasaraks/Saprasarikas and Mukhya
Samprasaraks/Mukhya Samprasarikas of MSKs who are within the
age of 60 years on the date 01.04.2020 shall be required to give their
option in the format annexed herein, by 5 pm of 01/02/2020 to
Mission Director of PBRSSM through the District Nodal Officer,
SSK/MSK of the concerned district, for treating them at par with the
Para Teachers of Paschim Banga Samagra Shiksha Mission under
School Education Department, Govt. of West Bengal and engage
them with similar terms and conditions as that of Para Teachers, to
get similar benefits extended to the Para Teachers.
3. Those Sahayaks/Sahayikas and Mukhya Sahayaks/Mukhya
Sahayikas of SSKs, Samprasaraks/Samprasarikas and Mukhya
Samprasaraks/Mukhya Samprasarikas of MSKs who do not submit
such option as mentioned above in para 2, shall not be considered for
treating them at par with the Para Teachers and not be considered
for any additional benefits and enjoyed by the Para Teachers now or
in future"
39. The Notification dated 18.12.2019 transferred the
administrative control of SSKs and MSKs and the entire Administrative
set up of Paschimbanga Rajya Shishu Shiksha Mission from the
Panchayat and Rural Development Department to the School
Education Department. Sahayaks/Sahayikas and Mukhya Sahayaks/
Mukhya Sahayikas of SSKs, Samprasaraks/ Samprasarikas and
Mukhya Samprasaraks/ Mukhya Samprasarikas of MSKs who were
within the age of 60 years on 1.4.2020 were required to give their
options in the format provided within a designated date and time.
40. The Notification makes it clear that options given by candidates
would make them eligible for engagement on terms and conditions
similar to those of Para Teachers and also entitle them to benefits which
are extended to the Para-Teachers. Paragraph 3 of the said Notification
makes it clear that those who do not submit the option as mentioned in
the preceding paragraph will not be considered for being treated at par
with Para-Teachers or for the additional benefits enjoyed by the
Para-Teachers "... now or in future".
41. The communication dated 20.12.2019 pursuant to the
Notification of 18.12.2019 reiterates the contents of the latter in terms
of the willing Sahayaks/Sahayikas/ Mukhya Sahayaks/ Mukhya
Sahayikas of SSKs and Samprasaraks/ Samprasarikas and Mukhya
Samprasaraks/ Mukhya Samprasarikas of MSKs who are within the
age of 60 years to submit the requisite particulars (also mentioned in
the communication) within 1.2.2020 to the Mission Director through
the District Nodal Officer, SSK and MSK Cell.
42. The communication further reiterates that those who have given
their option will be treated at par with the Para-Teachers of PBSSM
under the School Education Department and get similar benefits as
that of Para-Teachers.
43. The petitioners' contention that these Notifications should be
given retrospective effect and made applicable to the 2016 selection
process is without substance. The Notifications do not suggest that they
would date back to 2016 and consequently re-open the recruitment
process which was completed in 2016. The effect of the Notification
dated 18.12.2019 cannot be used to reverse any event which has
already taken place before the said Notification or regularize any
inaction on the part of those candidates who did not follow the
procedure outlined in the Notifications.
44. The Court accordingly finds the classification of Para Teachers
and the petitioners to be based on intelligible differentia with a rational
nexus to the object of the 2016 Rules. The petitioners have not placed
any material, in fact or in law, to show that the reasonable link /
rational nexus between the classification and the object of the 2016
Rules is broken or is incomplete. The petitioners' entire case hinges on
special educators / Samprasaraks performing work which is similar to
that of Para Teachers. The other emphasis is on the special educators
imparting education to children with special needs and hence
performing work of value. The petitioners also say that the 10%
reservation for Para Teachers was not essential as the State has an
adequate number of teachers in the primary and Upper Primary levels.
45. None of these arguments however form a credible challenge to
the constitutionality of Rule 8(4) of the 2016 Rules. The Court does not
find the impugned Rule either to be arbitrary or unreasonable or
discriminatory. As stated above, the promulgation of the 2016 Rules
including the impugned Rule 8(4) was in the policy-making domain of
the State and a judicial review of such a decision can only succeed if the
policy is found to be violative of the fundamental rights guaranteed
under Part III of the Constitution of India.
46. The challenge to Rule 8(4) of the West Bengal School Service
Commission (Selection for Appointment to the Post of Teachers for the
Upper-Primary Level of Schools) Rules, 2016 is accordingly found to be
without basis. The impugned Rule does not transgress Articles 14 or 16
of the Constitution of India as being illegal, arbitrary or discriminatory.
47. WPA 28890 of 2017, WPA 29181 of 2016, WPA 25892 of 2016,
WPA 24309 of 2016 and WPA 6957 of 2019 are accordingly dismissed.
The interim order dated 30.11.2017 in WPA 28890 of 2017 is vacated.
All connected applications are disposed of. There shall be no order as to
costs.
Urgent photostat certified copies of this judgment, if applied for,
be supplied to the parties upon fulfillment of requisite formalities.
(Moushumi Bhattacharya, J.)
