Calcutta High Court (Appellete Side)
Debabrata Gayen & Anr vs The State Of West Bengal & Ors on 11 September, 2024
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WPA 27428 of 2023
Debabrata Gayen & Anr.
Vs.
The State of West Bengal & Ors.
For the writ petitioners :- Mr. Samiran Mondal
Mr. Abhinaba Dan
Mr. Nitish Samanta
Ms. Sreemoyee Datta
For the State :- Mr. B.P. Vaisya
Mr. Gourav Das
For WBBPE :- Mr. Ratul Biswas
Mr. Kaushik Chowdhury
For DPSC 24 Parganas (S) :- Mr. Ranjan Saha
Heard on :- 11.09.2024
Judgment on :- 11.09.2024
Amrita Sinha, J.:-
The petitioners are primary school teachers. They seek promotion in
the post of Head Teacher. The petitioner no.1 and the petitioner no.2 were
transferred to their current school in the district of South 24 Parganas on
20th July, 2021 and 10th October, 2020 respectively.
A notification for preparation of panel of Head Teacher in
accordance with the West Bengal Primary School Teacher Recruitment
Rules, 2016 was published by the South 24 Parganas District Primary
School Council on 4th September, 2023. Applications were invited from
2
eligible in-service Assistant Teachers of the district within 4th September,
2023 and 22nd September, 2023.
The notification mentions that at least five years experience will be
required as Assistant Teacher as on 31st July, 2023 for enlistment of the
name in the Head Teacher promotion panel.
The notification specified that seniority of the teachers will be
determined on the basis of first joining in the district. The Head Teacher
panel was to remain valid for a period of one year from the date of
approval.
The petitioners submit that as they did not complete five years
service in the district of South 24 Parganas, they were not permitted to
apply in terms of the notification dated 4th September, 2023.
The petitioners submit that they are in service since 2014 and they
ought to have been permitted to file their application forms in response to
the subject notification.
In the writ petition the petitioners have averred that because of the
restriction imposed in serial no.2 of the notification dated 4th September,
2023 requiring five years experience as on 31st July, 2023 for enlistment
of the name in the Head Teacher promotion panel, they were denied the
opportunity to apply in terms of the said notification. The petitioners
contend that their seniority since 2014 ought to have been counted.
3
The petitioners challenge the notification dated 4th September, 2023
and submit that the same is totally illegal and in violation of the provision
of law.
Prayer has been made not to give any effect and/or further effect to
the purported selection of Head Teacher in furtherance to the notification
dated 4th September, 2023 without considering the seniority of the
petitioners.
The submission of the petitioners has been opposed by the learned
advocate representing the Council. The Council relies on the notification
of the West Bengal Board of Primary Education being memo no.
230/1991-92
dated 2nd November, 1991 which mentions that in case of
inter district transfer the seniority of the teacher will be counted from the
date of his/her joining the new post in the later district.
It has been submitted that as the petitioners did not complete five
years of service in the district, accordingly, they cannot be considered for
promotion as Head Teacher.
In a report signed by the Chairman of the District Primary School
Council on 2nd July, 2024 it has been disclosed that in case of the Head
Teacher panel of the Sonarpur West Circle, the date of joining of the last
empanelled Assistant Teacher was 1st March, 2006 and in case of
Bhangore Circle, the date of joining of the last empanelled Assistant
Teacher was 13th February, 2017.
Prayer has been made to dismiss the writ petition.
I have heard the submissions made on behalf of both the parties.
The submission of the petitioners that they were restricted from applying
in terms of the notification dated 4th September, 2023 does not appear to
be a proper one.
The writ petition itself was filed on 6th December, 2023 that is long
after expiry of the time period within which the applications ought to have
been filed. Had the petitioners been restricted from filing the application
within the prescribed time period, the petitioners ought to have
approached the Court within the validity period of the notification and not
wait more than two months to approach the Court.
The notification required an Assistant Teacher to have at least five
years experience as on 31st July, 2023 for enlistment of the name in the
Head Teacher promotion panel. The notification did not mention that the
experience as Head Teacher has to be gained only in the district of South
24 Parganas.
The notification clearly mentions that seniority will be determined
on the basis of first joining in the district. The same does not restrict
application to be filed for enlistment.
It could have been that if the application was made by the
petitioners in proper time, their names would have been included in the
bottom of the list because of the seniority clause.
The understanding of the Court is that the notification never
restricted applications to be filed. The petitioners have not averred in the
writ petition that the Council prevented them from filing any application.
Applying for promotion and maintaining seniority for promotion are two
different aspects. They are not dependent upon each other. It is only when
the list of teachers eligible for promotion is prepared that the seniority
clause comes into play. Application for empanelment is sought only to
obtain the willingness of the concerned teacher for seeking promotion. On
promotion as Head Teacher it may be that a teacher is posted at a
different school but not in the same school where he is currently teaching
and this is precisely the reason for obtaining willingness of the teacher.
As the petitioners already had the experience in the post of
Assistant Teacher for more than five years they could have applied in
terms of the said notification. There was no expressed bar on the
petitioners for applying in response to the same. It hardly matters as to
whether the experience of five years in the post of Assistant Teacher is in
a particular district or in more than one district. As long as the teacher
had the experience of serving as Assistant Teacher for five years, he/she
was entitled to apply for promotion as Head Teacher in terms of the
notification dated 4th September, 2023.
It appears that the petitioners misread and misconstrued the terms
and conditions of the notification dated 4th September, 2023 and did not
file the application for consideration of their case for empanelment as
Head Teacher.
In view of the above, no relief can be granted to the petitioners in
the instant case. The writ petition fails and is hereby dismissed.
It goes without saying that it will be open for the petitioners to apply
for promotion as Head Teacher as and when notification is published by
the Council in future.
Urgent certified photocopy of this order, if applied for, be supplied to
the parties expeditiously on compliance of usual legal formalities.
(Amrita Sinha, J.)
