Mithun Kumar Dolui & Ors vs Mehebul Mondal & Ors
2023 Latest Caselaw 5954 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURISDICTION
                             APPELLATE SIDE


Before :-
The Hon'ble Justice Saugata Bhattacharyya


                               MAT 752 of 2023

                     IA NO. CAN 1 of 2023, CAN 2 of 2023
                     IA No.CAN 3 of 2023, CAN 4 of 2023,
                               CAN 5 of 2023

                        Mithun Kumar Dolui & Ors.
                                      Vs.
                            Mehebul Mondal & Ors.



For the Appellants            : Mr. Subir Sanyal, Ld. Senior Adv.
                               Mr. Piyush Chaturvedi, Adv.
                               Mr. Bhagwat Chowdhuri, Adv.
                               Ms. Priyanka Saha, Adv.



For the Writ Petitioners/     : Mr. Bikash Ranjan Bhattacharyya, Ld. Senior Adv.
Respondents                    Mr. Sudipta Dasgupta, Adv.

Mr. Bikram Banerjee, Adv.

Mr. Ali Ahsan Alamgir, Adv.

Mr. Arka Nandi, Adv.

Mr. Sutirtha Nayek, Adv.

For the WBBPE                 : Mr. L.K. Gupta, Ld. Senior Adv.
                                Mr. Saikat Banerjee, Adv.
                                Mr. Ratul Biswas, Adv.


For the NCTE                  : Mr. Sauvik Nandy, Adv.



Hearing concluded on           : 30.08.2023.



Judgment On                    : 06.09.2023.





Saugata Bhattacharyya, J. :-

1. The issue whether stay would be granted on the order of the Hon'ble

Single Bench dated 3rd November, 2022 read with 9th November, 2022

passed on the writ petition being WPA 20745 of 2022 (Mehebul Mondal &

Ors. Vs. State of West Bengal & Ors.) there has been difference of opinion

expressed by the two Hon'ble Judges of the Division Bench as it appears

from the order dated 28th June, 2023 passed on an intra-Court appeal being

MAT 752 of 2023 resulting in referring the matter to me being 3rd Bench

vide order of the Hon'ble Chief Justice dated 3rd July, 2023 for expressing

third opinion. The intra-Court appeal and stay application have been heard

in presence of the learned advocates representing the parties on the point of

granting stay of operation of the order of the Hon'ble Single Bench.

2. It needs to be kept in mind that the appeal is remaining pending to be

heard by the Hon'ble Division Bench on exchange of affidavits by the parties

as directed vide order dated 28th June, 2023. Therefore appeal is to be

finally decided by the Hon'ble Division Bench.

3. Mr. Subir Sanyal, learned senior advocate representing the appellants

submits that appellants are Teacher Eligibility Test (for short "TET")

qualified candidates under General and Reserved Categories who secured

qualifying marks in TET as fixed by the authority in terms of Guidelines for

conducting TET as circulated vide notification dated 11th February, 2011 by

the National Council for Teacher Education (for short "NCTE"). It is

contended that the right of the appellants having obtained qualifying

percentage of marks in TET (60% for general category candidates and 55%

for reserved category candidates) would be affected in the selection process

for filling up the posts of Primary Teachers in the State of West Bengal

which has been initiated by the West Bengal Board of Primary Education

(hereinafter referred to as "Board") vide notification dated 29 th September,

2022 since zone of consideration would be wider, if prayer of the writ

petitioners/respondents to grant the benefits of rounding off is allowed

thereby fixing 82 (54.67%) as qualifying marks instead of 82.5 (55%).

4. The writ petitioners/respondents participated in TET 2014 and

obtained 82 marks out of 150 which constitutes 54.67% marks which is

0.33 less than the qualifying marks of 82.5 therefore they were found to be

ineligible in terms of qualifying marks fixed by the concerned authority and

as such they were not considered as TET qualified candidates.

5. Since the appeal has not been preferred either by the State of West

Bengal or the Board against the order of the Hon'ble Single Bench and

keeping note of the fact that the Board has already by issuing notice dated

11th November, 2022 given effect to the order of the Hon'ble Single Bench by

fixing 82 marks in TET 2014 as qualifying marks, question has arisen how

the appellants being participants in the recruitment process of 2022 are

affected? In this regard reliance has been placed on the judgment of the

Apex Court reported in (2012) 8 SCC 568 (Registrar, Rajiv Gandhi

University of Health Sciences, Bangalore vs. G. Hemlatha And Others);

paragraphs 5, 8, 10 and 12 in order to contend relaxation of qualifying

marks after granting 5% relaxation which is not provided in the Guidelines

would render injustice to other candidates who secure qualifying marks in

TET thereby affecting rights of the appellants in the present case. On behalf

of the appellants it has been submitted that vide notification dated 11 th

February, 2011 NCTE issued Guidelines for conducting TET, Clause 9

prescribes qualifying marks which has been fixed 60% or more and the

same may be relaxed in favour of persons belonging to SC/ST, OBC,

differently abled persons etc. In terms of Clause 9 of the said Guidelines the

concerned authority of the State of West Bengal has decided to grant 5%

relaxation to the reserved category candidates in TET therefore such

candidates need to obtain 82.5 marks out of total 150. It is contended that

when the rule is clear and unambiguous in interpreting the said rule there

is no scope left open to conclude other way or if the rule does not carry more

than one meaning the prescription of said rule needs to be followed strictly

and there is no scope of further relaxation as per the said rule in order to

extend concession to a particular category of candidates. In the present case

according to the appellants when in terms of the Guidelines reserved

category candidates have already been given relaxation of 5% the same

cannot further be lowered in order to declare the writ

petitioners/respondents TET qualified. Since 82.5 marks constitute 55% of

the total marks the same cannot be reduced to 82 on the plea that 82.5

marks is not achievable considering the pattern of questions and the marks

allotted to each question. If candidates can either be awarded 82 or 83

marks and 83 constitutes more than 55% marks the same needs to be

obtained by the reserved category candidates in order to become TET

qualified since it has been argued on behalf of the appellants that reserved

category candidates have to obtain 55% marks or more.

6. On behalf of the appellants it has further been submitted that

decision has been taken by the State authority to grant 5% relaxation to the

reserved category candidates pursuant to Clause 9 of the Guidelines of

NCTE the same cannot be unsettled subsequently by the NCTE by taking

decision as contained in the letter dated 10th January, 2014 as referred to in

the order of the Hon'ble Single Bench dated 3rd November, 2022. It has been

argued that in terms of section 23(1) of the Right of Children to Free and

Compulsory Education Act, 2009 the Guidelines issued by the NCTE vide

notification dated 11th February, 2011 is statutory in nature which are

binding upon the authorities. It has further been submitted that once

relaxation has been granted by the State authority pursuant to the

Guidelines the same cannot be tinkered with by the NCTE vide letter dated

10th January, 2014.

7. It is also submitted that since the Hon'ble Single Bench vide

impugned order dated 3rd November, 2022 directed the respondent

authorities to allow the writ petitioners/respondents to fill up the form in

the ensuing recruitment process by granting relaxation to the extent of 0.33

marks below the fixed qualifying marks for reserved category candidates the

same is not applicable in case of recruitment process initiated vide

notification dated 29th September, 2022 for filling up the posts of Primary

Teachers since the said selection process cannot be termed as "ensuing

recruitment process". According to the appellants there is no question of

discrimination in the present case since the writ petitioners failed to obtain

qualifying marks in TET 2014 as fixed by the State authorities.

8. In support of contentions of the appellants reliance has been placed

on the judgments - (2011) 8 SCC 108 (Orissa Public Service Commission

And Another vs. Rupashree Chowdhary And Another); (2011) 15 SCC

304 (Bhanu Pratap vs. State of Haryanan And Others); (2015) 13 SCC

668 (West Bengal Joint Entrance Examination Board And Others vs.

Sarit Chakraborty And Others); (2018) 14 SCC 129 (Taniya Malik vs.

Registrar General of the High Court of Delhi), in order to contend that

when the relevant Rules/Guidelines prescribe eligibility criteria by fixing

minimum qualifying marks in an examination for admission in educational

course or in-connection with a recruitment process and if it is found that

such prescription of Rules/Guidelines is clear and unambiguous there is no

scope left open to conclude other way or when Rules do not carry more than

one meaning, such requirement relating to fixation of minimum qualifying

marks cannot be diluted in the guise of granting benefits of rounding off.

9. On behalf of the appellants reliance has also been placed on the

judgment of the Apex Court reported in (2018) 12 SCC 595 (State of Uttar

Pradesh And Others vs. Shiv Kumar Pathak And Others) to address the

issue whether the Guidelines relating to TET issued vide notification dated

11th February, 2011 is binding upon the State or not. In reference to

paragraph 15 of the said judgment notice of this Court has been drawn to

the stand taken on behalf of NCTE before the Apex Court that notification

dated 11th February, 2011 suggesting weightage to TET marks was merely a

Guideline and was not intended to be binding on the States but TET itself

was a mandatory requirement whereas weightage to the marks in TET was

merely a suggestion. Taking note of such stand of NCTE it has been

observed in paragraph 17 that State Government is under obligation to act

as per notification dated 11th February, 2011 and not to act contrary thereto

but with the clarification that notification dated 11 th February, 2011 with

regard to the weightage to be given to the marks obtained in TET is not

mandatory can also be a possible interpretation. Such observation with

regard to binding effect of granting weightage to the marks in TET was made

in the context of the facts narrated in paragraphs 4, 5 and 6 of the said

judgment. However, the Apex Court has held in paragraph 15 and 17 that

qualifying TET is mandatory but the weightage to TET marks is merely a

Guideline which depends upon the acceptance by the State authorities. But

in the present case the Court is not considering whether the weightage to

TET marks to be given in the recruitment process or not which has been

initiated vide notification dated 29th September, 2022 by the Board rather

reserved category candidates are to be considered as TET qualified or not on

obtaining 82 marks out of 150 which is 0.33 marks less than 55% being the

qualifying marks, is under consideration.

10. Per contra Mr. Bikash Ranjan Bhattacharyya, learned senior advocate

representing writ petitioners/respondents at the beginning of his argument

has submitted that since the appeal is pending before the Hon'ble Division

Bench for final adjudication only exercise which needs to be carried out by

this Court is to examine whether the order of the Hon'ble Single Bench

shall remain stayed or not till disposal of the appeal. In furtherance to the

aforesaid submission, it has also been contended on behalf of the writ

petitioners/respondents that it is required to be seen whether balance of

convenience and inconvenience is in favour of staying the order of the

Hon'ble Single Bench or not.

11. A short affidavit affirmed on 29th August, 2023 has been filed today on

behalf of the writ petitioners/respondents in order to demonstrate before

this Court that the West Bengal Central School Service Commission has

fixed 82 as qualifying marks in TET for reserved category candidates.

Therefore, the state cannot act discriminatorily in fixing qualifying marks in

TET for the candidates who are desirous to participate in the selection

process for appointment in the posts of Assistant Teacher in primary school;

there cannot be any distinction amongst candidates standing on the same

footing simply based on facts that some candidates by qualifying TET will

participate in the selection process for being appointed in the secondary

schools and other candidates after qualifying TET will participate in the

selection process for being appointed in primary schools in the backdrop of

facts that question pattern in primary TET and secondary TET is same and

each question is carrying 1 marks, there is no scope of awarding fraction

marks which is less than one.

12. It has also been submitted on behalf of the writ

petitioners/respondents that if qualifying marks is fixed at 82 instead of

82.5 the appellants will not be affected since they have qualified TET, their

candidature will be appraised along with the candidates who obtained 82

marks in TET 2014.

13. Reliance has been placed on an unreported judgment of the Hon'ble

Division Bench dated 15th September, 2015 passed on Special Appeal

Defective No. 607 of 2015 (Ajeet Yadav And 6 Others vs. State of U. P.

and 7 Others) with Special Appeal Defective No. 637 of 2015 (Sitaram And

3 Others vs. State of U. P. And 8 Others) wherein it has been decided that

once NCTE which had formulated the Guidelines has taken a considered

view in regard to the manner in which the pass marks for TET should be

computed, there would be no occasion for this Court to interfere in that

decision. The Hon'ble Division Bench had the occasion to consider the

decision of the NCTE taken on 10th January, 2014 thereby permitting the

authorities to treat the reserved category candidates who secured 82 marks

as TET qualified based on the clarification of CBSE dated 1st October, 2013.

14. On other judgments of the Apex Court relied upon by the appellants

in order to contend that when relevant rules are unambiguous which do not

carry more than one meaning the same shall be interpreted as per the said

meaning irrespective of consequences and if the relevant rules do not permit

rounding off the candidates are not entitled to claim benefit of the same

even to the extent of 0.33 marks. It has been submitted on behalf of the writ

petitioners/respondents that in Rupashree Chowdhary (supra) the Apex

Court was considering granting benefit of rounding off on the anvil of Orissa

Superior Judicial Service and Orissa Judicial Service Rules, 2007. In the

said case it was not found that fraction marks less than one cannot be

awarded and it was not under the scrutiny of the Apex Court that the

qualifying marks fixed by the authority was whether achievable or not.

15. Mr. L. K. Gupta, learned senior advocate representing the Board has

also echoed the stand taken on behalf of the writ petitioners/respondents

that at this stage of the proceeding this Court being the third Court is

required to examine balance of convenience and inconvenience while taking

decision whether the order of the Hon'ble Single Bench shall remain stayed

or not till adjudication of the appeal. Notice of this Court has also been

drawn to the notice dated 11th November, 2022 by which the Board has

already published list of reserved category candidates who secured 82

marks in TET 2014 and in terms of the order of the Hon'ble Single Bench

those candidates have been treated as TET qualified.

16. Mr. Sauvik Nandy, learned advocate representing NCTE has filed an

instruction which is received by e-mail from the concerned authority of

NCTE wherefrom it appears that NCTE has taken its stand that though the

letter dated 10th January, 2014 was issued to the Secretary, Government of

Uttar Pradesh but the same may be considered in deciding qualifying marks

(82 marks) in TET in respect of those States/UTs where the relaxation of 5%

has been extended to the reserved category candidates in determining

qualifying marks.

17. Having considered the submissions made by the learned advocates

representing the parties this Court accepts the contention that at this stage

of the proceeding only exercise which is required to be performed is to weigh

balance of convenience and inconvenience in staying the order passed by

the Hon'ble Single Bench since appeal is to be adjudicated by the Hon'ble

Division Bench on exchange of affidavits. Board has already issued notice

dated 11th November, 2022 and has declared writ petitioners/respondents

being reserved category candidates who secured 82 marks in TET 2014 as

qualified to participate in the recruitment process for filling up the posts of

Assistant Teacher in primary schools. If at this stage order of the Hon'ble

Single Bench is stayed writ petitioners/respondents will not be treated as

eligible candidates since they have obtained 82 marks (not 82.5 marks)

thereby they will be ousted from the selection process. If ultimately appeal

fails and the order of the Hon'ble Single Bench survives writ

petitioners/appellants will not get opportunity to participate in the selection

process which has been initiated in terms of the notification dated 29 th

September, 2022. On the other hand if the writ petitioners/respondents are

treated as TET qualified candidates based on their TET marks, i.e., 82 and

their candidature is considered along with those candidates who secured

82.5 marks and above in TET in that event there is no possibility of losing

opportunity of being considered in the selection process of 2022 so far writ

petitioners/respondents are concerned and ultimately if appeal is allowed by

reversing or modifying the order of the Hon'ble Single Bench, keeping the

same in mind the right of the appellants can be protected by imposing

suitable conditions while refusing to grant stay of operation of the order of

the Hon'ble Single Bench.

18. Since NCTE has already permitted the authorities in the State of Uttar

Pradesh based on clarification of CBSE to fix 82 instead of 82.5 as qualifying

marks in TET for reserved category candidates; in above backdrop of facts

that each question carries 1 marks and there is no scope of awarding

fraction marks which is less than one therefore physically it is impossible to

award 82.5 marks to a candidate, at this interim stage this Court is not

inclined to stay the operation of the order of the Hon'ble Single Bench.

However, if reserved category candidates on obtaining 82 marks in TET

2014 are appointed as primary teachers same shall abide by the result of

the appeal and those candidates shall not claim any equity.

19. In above conspectus I concur with the view expressed by the Hon'ble

Justice Subrata Talukdar, presiding judge of the Division Bench.

20. Urgent photostat certified copy of this order, if applied for, shall be

supplied to the parties expeditiously.

(Saugata Bhattacharyya, J.)