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2002 DIGILAW 282 (CAL)

Ashim Kumar Sarma v. State of W. B.

2002-04-26

SUBHRO KAMAL MUKHERJEE

body2002
JUDGMENT : - Subhro Kamal Mukherjee, J.: In this application under Article 226 of the Constitution of India (writ petition in short) the moot question for consideration is whether there should be reservation of 50% vacancies for untrained candidates for appointment in the post of Primary School Teachers in terms of the Rules Regulating the Recruitment and Leave of Teachers in Primary Schools in West Bengal, 1991. In other words, it is submitted by the petitioners, who are untrained candidates for the post of Primary School Teachers, that there should be a separate panel for untrained candidates. 2. Mr. Sadananda Ganguly, learned Advocate, appearing for the petitioners, strenuously argued that there has been an admission on the part of the respondents to the extent that the District Primary School Council, Jalpaiguri prepared panels both for trained and untrained candidates and that the said panels were submitted before the ad hoc committee of the said Council. Mr. Ganguly highlighted the statements made in paragraph 11, at page 37, of the writ petition and submitted that such allegations have not been controverted by the respondents by filing affidavit-in-opposition. Mr. Ganguly relied upon the decision in the case of District School Board, Midnapore and Ors. vs. Paschimbanga Prathamik Sikshak Shikhan Prapta Bekar-O-Sikshak Samiti, West Bengal and Ors., reported in 1991(1) CLJ 479 . In the said decision a Division Bench of this court while considering the Rules framed under West Bengal (Rural) Primary Education Act, 1930, inter alia, observed that in respect of 50% of the normal vacancies, the appointing authorities have to consider the claim of trained candidates vis-a-vis untrained candidates on the basis of some rational and reasonable principles. It was not possible for the Court to conceive all eventualities especially in connection with the appointments, but, by way of illustration, if in respect of a post which was within remaining 50% of the normal vacancies in a school, the choice was to be made between a trained and untrained candidate, if the untrained candidate has better educational qualification or experience then he should be preferred. On the other hand, other qualifications being equal between a trained and untrained candidate, the trained candidate should be preferred subject to any binding order in respect of reservation of posts for candidates belonging to special category. There is no complete bar to the appointment of untrained teachers. Mr. On the other hand, other qualifications being equal between a trained and untrained candidate, the trained candidate should be preferred subject to any binding order in respect of reservation of posts for candidates belonging to special category. There is no complete bar to the appointment of untrained teachers. Mr. Ganguly has drawn my attention to paragraph 20 of the said judgment where the Division Bench observed so far as normal vacancies existing in the Schools are concerned, at least 50% must be filled up by trained candidates only. In respect of remaining 50% of such vacancies, untrained candidates should be considered along with trained candidates on some rational and reasonable principle.' 3. Mr. Rabilal Maitra, learned Government Pleader, appearing for the respondents, however, contradicted the submissions of Mr. Ganguly and submitted that under the Rules of 1991 there is no provision for preparation of a separate panel for the untrained candidates. Mr. Maitra has drawn my attention to the order passed by the Director of School Education, West Bengal dated October 19,2001 where it has been stated that the writ petitioners could not secure minimum marks in each category of the empanelled candidates and that they were not selected as such. In the said order of the Director of School Education a chart has been set out to show that the writ petitioners did not secure qualifying marks for their empanelment in the panel for appointment. The said chart is available at page 59 of the writ petition, which runs as under: Category Lowest mark in the panel Highest marks of the candidate of the High Court cases. Unreserved 51.88 46.05 Sch. Caste 42.93 41.37 O.B.C. 49.79 40.04 Sch. Tribe 38.49 37.18 Physically Handicapped 46.53 34.15 4. Therefore, in this case I am to consider the scope and purport of Rules 8 and 9 of the said Rules of 1991 for deciding as to whether it was incumbent on the part of the authorities to prepare a separate panel for the untrained candidates. 5. Rule 8 provides for calling for the names from the Employment Exchange and the said Rule runs as under: "8. 5. Rule 8 provides for calling for the names from the Employment Exchange and the said Rule runs as under: "8. Calling for the names from the Employment Exchange.- (a) The number of vacancies as determined under Rule 4, except in case the vacancies mentioned in sub-rule (a) and sub-rule (b) of Rule 14 and the vacancies to be filled by inter-council transfer under the provisions of subsection (k) of section 19 of the Act, shall be intimated by the Council to the concerned Employment Exchange. For the purpose of preparation of panel for eligible candidates, the Employment Exchange shall be requested to send names of candidates, both trained and untrained, who have requisite qualifications and in order of seniority of registration, and the list Of candidates so prepared shall comprise of at least 50% of trained candidates unless the number of registered trained candidates at the concerned Employment Exchange is sufficient to comprise of the 50% of the names in the list: Provided that in case of non-availability of sufficient number of candidates belonging to the Scheduled Castes and the Scheduled Tribes in the Employment Exchange of the concerned revenue district, a reference shall be made by the council to the Special Employment Exchange for the Scheduled Castes/Scheduled Tribes at the State Level for sending further names. (b) The letter to the Employment Exchange mentioned in sub-rule (a) shall contain, among other matters: (i) the required minimum qualifications of candidates: (ii) the reservation quota for Scheduled Castes and Scheduled Tribes candidates and Physically Handicapped candidates; and (iii) the number of vacancies to be filled up. (c) The total number of vacancies existing on the 31st December of a calendar year shall be treated as the number of vacancies for that year." 6. Rule 9 of the said Rules provides for the selection procedure. The relevant Rule, which is required to be specially taken note for deciding this case is Rule 9 (c) (i), which runs as under: "(c) (i) The total marks obtained by each candidate for academic qualification, training and co-curricular activities shall be computed in the manner prescribed in clauses (iii), (iv) and (vi), and a list of names of all candidates of each category, namely, Scheduled Caste, Scheduled Tribe, Physically Handicapped and others shall be prepared in descending order of total marks obtained by them." 7. My reading of the said Rules 8 and 9 is that there is no scope for preparation of separate panel for untrained candidates as contended by the petitioners. The candidates have been categorised under different heads, namely, Scheduled Caste, Scheduled Tribe, Physically Handicapped and others. There is no scope for preparing separate panels for trained and untrained candidates. In the reported decision of District School Board, Midnapore and Ors. (supra) it is only noticed that there was no complete bar to the appointment of untrained candidates. It was, further, observed that if the choice was to be made between a trained and untrained candidate, if the untrained candidate has better educational qualification or experience then he should be preferred and, on the other hand, other qualifications being equal between a trained and untrained candidate, the trained candidate should be preferred subject to any binding order in respect of reservation of posts for candidates belonging to special category .Untrained candidates, in my view, do not belong to a special category. 8. A Full Bench of the Bombay High Court, speaking through Sir John Beaumont, Chief Justice, in the case of Emperor vs. Somabhai Gouindbhai, reported in 40 Bombay Law Reporter 1082, observed "A Judge, construing an Act of Parliament, is not a mere automaton whose only duty is to give out what he considers to be the primary meaning of the language used. A Judge must always consider the effect of any construction which he is asked to put on an Act of Parliament, and if he comes to the conclusion that a particular construction leads to a result which he considers irrational or unfair, he is entitled, and indeed bound, to assume that the legislature did not intend such a construction to be adopted, and to try to find some more rational meaning to which the words are sensible." 9. The Apex court in the case of Budhan Singh and Anr. vs. Nabi Bux and Anr., reported in (1970) 2 SCR 10 , observed "In other words as observed by Crawford in his book on Statutory Constructions the entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. vs. Nabi Bux and Anr., reported in (1970) 2 SCR 10 , observed "In other words as observed by Crawford in his book on Statutory Constructions the entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the law-makers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent." 10. The acceptance of the contentions of the petitioners would lead to a ruinous result inasmuch as even if trained and better qualified candidates are available, they are to be excluded to accommodate untrained and less qualified persons, which could not be the intention of the authorities. I do not think that the authorities concerned conceived such situation at the time of the framing of the said Rules of 1991. 11. Accordingly, I do not find any merit in the writ petition, which is dismissed. 12. There will be no order as to costs. 13. Let xerox certified copy of this order, if applied for, be supplied to the parties expeditiously. Writ petition dismissed.