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2004 DIGILAW 469 (CAL)

CHITTA RANJAN BARMAN v. STATE OF WEST BENGAL

2004-07-14

JYOTIRMAY BHATTACHARYA

body2004
JYOTIRMAY BHATTACHARYA, J. ( 1 ) THE judgment of the Court was as follows : the petitioners are all ex-servicemen. After completion of the tenure of their service in Armed Forces, the petitioners were given combined certificates of discharge and recommendation for civil and/or public employment along with Ex-servicemen's Identity Cards. ( 2 ) THE Chairman of District Primary School Council, Cooch-behar by the office Memorandium No. 2833/is-3 (V) dated 12th September, 2002, requested the Secretary, Zilla Sainik Board, Jalpaiguri to sponsor the names of the eligible candidates to the office of the Chairman, District Primary School Council, Cooch-behar for the purpose of recruitment of 25 Assistant Teachers reserved for ex-servicemen out of the total available vacancies of 496 in primary and junior basic schools under the said Council. ( 3 ) THE following are the prescribed essential qualification for the general candidates including ex-servicemen : 1. Madhyamik Pariksha or its equivalent examination passed and 2. Primary Teachers' Training or its equivalent examination passed. ( 4 ) THOUGH the names of the petitioners were sponsored for the said 25 posts reserved for ex-servicemen as aforesaid but they were all excluded from the zone of consideration as none of the petitioners had either primary teachers' training or its equivalent qualification. All of them, however, passed madhyamik Pariksha (Secondary Examination ). ( 5 ) THE grievance of the petitioners is against some of the provisions of the West Bengal Primary School Teachars Recruitment Rules, 2001 (hereinafter referred to as the said Rules) which allegedly introduced a discriminatory treatment against the petitioners. ( 6 ) WITH regard to the provision as contained in Rule 6 (3) of the said rules, it was contended on behalf of the petitioners that the State Government acted illegally by not granting similar relaxation of qualification eligibility to the ex-servicemen, as was given to the candidates seeking appointment on compassionate ground against the vacancies prescribed under Rule 8 (2) (b) Thus, the contention of the petitioners was that since the relaxation with regard to the training qualification was given to the persons seeking appointment on compassionate ground, the State Government should have given similar relaxation in qualification to the ex-servicemen. In other words, the petitioners claimed that by treating the ex-servicemen at par with the other regular candidates, the purpose of reservation of certain posts for the ex-servicemen practically becomes illusory as the ex-servicemen who served the nation in the defence in their young age cannot compete with the youngsters after several years of their service. ( 7 ) ACCORDING to the petitioners, the ex-servicemen should be treated at par with the candidates seeking appointment on compassionate ground and similar protection which was extended to the candidates seeking appointment on compassionate ground should have been granted to the ex-servicemen who sacrificed their most valuable part of their lives for protecting the nation. ( 8 ) MR. Talukdar, learned Advocate appearing for the petitioners by referring to Articles 14 and 16 of the Constitution of India submitted that the principles of equality had not been followed by not granting similar relaxation of educational qualification eligibility to the ex-servicemen as was granted to the candidates seeking appointment on compassionate ground. ( 9 ) IN support of such submission, Mr. Talukdar referred to the decision of the Hon'ble Supreme Court in the case of State of Orissa v. Mohd. Yunus reported in 1994 Supp. (2) SCC 55 wherein it was held that the fixation of the general standard marks prescribed for the general candidates would undoubtedly be a handicap to the ex-service personnel who are made to compete with youngsters after several years of service put in the defence service. It was also observed by the Hon'ble Supreme Court in the said decision that unless certain relaxation is given to the ex-servicemen the purpose of reservation of posts for the ex-servicemen will become illusory as the ex-servicemen who served the nation in defence for such a long time may not come on a par with the general candidates. ( 10 ) MR. Talukdar also by relying upon another decision of the Hon'ble supreme Court in the case of Ajit Singh (II) v. State of Punjab reported in 1999 (7) SCC 209 submitted that the effect of reservation of a post as laid down in the said decision has not been considered by the State Government at the time of framing of the Rule. Mr. Talukdar drew my attention to paragraph-40 of the said decisions which runs as follows :"40. Mr. Talukdar drew my attention to paragraph-40 of the said decisions which runs as follows :"40. It must be noted that whenever a reserved candidate goes for recruitment at the initial level (say Level 1), he is not going through the normal process of selection which is applied to a general candidate but get appointment to a post reserved for his group. That is what is meant by "reservation". That is the effect of "reservation". ( 11 ) THUS, Mr. Talukdar submitted that when a post has been reserved for the ex-servicemen, some kind of relaxation or concession should have been provided to the ex-servicemen under the Rules so that they need not compete with the other general candidates who were competing for the said post in the normal process of selection. ( 12 ) MR. Talukdar also relied upon another decision of the Hon'ble supreme Court in the case of Indra Sawhney v. Union of India reported in air 1993 SC 477 to impress upon this Court that the petitioners are also entitled to similar type of relaxation with regard to the educational qualification as was extended to the persons seeking appointment on compassionate ground under Article 16 (4) and (4a) of the Constitution of India. ( 13 ) MR. Talukdar by referring to another decision of the Hon'ble Supreme court reported in the case of Indra Sawhney v. Union of India reported in 2000 (1) SCC 168 submitted that rule of equality is the basic feature of the constitution and any legislation or executive action violating the basic feature or the basic structure of the Constitution would be unconstitutional. ( 14 ) THUS, according to Mr. Talukdar, since the State Government while making the said Rules did not follow the rule of equality by not giving similar type of relaxation to the petitioners as was extended to the candidates seeking appointment on compassionate ground, the basic feature and the basic structure of the Constitution as enshrined in the Rule of equality under articles 14 and 16 (1) of the Constitution of India had not been followed in the instant case. ( 15 ) WITH regard to the other challenge of the petitioners regarding the constitutional validity of Rule 9 (8) of the said Rules, it was submitted by Mr. ( 15 ) WITH regard to the other challenge of the petitioners regarding the constitutional validity of Rule 9 (8) of the said Rules, it was submitted by Mr. Talukdar that the provision for filling up the vacancies by the candidates belonging to the general categories in case of non-availability of suitable qualified ex-servicemen in respect of the reserved post, is vlolative of the provision of Article 16 (4b) of the Constitution of India and as such Mr. Talukdar submitted that the said provision for filling up the reserved posts by candidates from general categories in case of non-availability of suitable qualified ex- servicemen should be declared as ultra vires. ( 16 ) IN support of his said submission Mr. Talukdar relied upon a decision in the case of State of Punjab v. G. S. Gill reported in 1997 (6) SCC 129 , wherein the Hon'ble Supreme Court held that when the candidates, for filling up the reserved posts, are not available, the said posts should be carried forward for three years in the manner as provided under Article 16 (4b) of the constitution of India. ( 17 ) ACCORDINGLY, Mr. Talukdar submitted that instead of making a provision for filling up the reserved posts for ex-servicemen by candidates from general category in case of non-availability of suitable qualified person from the ex-servicemen, the State Government should have provided a Rule for carrying forward the said vacancies for the subsequent selection process as provided under Article 16 (4b) of the Constitution of India. It was further contended that since the provision which was made in the proviso to the said rule 9 (8), for filling up the vacancies in the reserved posts by general category, is violative of provisions of Article 16 (4b) of the Constitution of India, the said provision should be declared as ultra vires. ( 18 ) MR. Amalesh Roy, learned Advocate appearing for the respondent no. 3, viz. The Chairman, Cooch-behar District Primary School Council, submitted that the provision contained in Rule 6 (3) and the proviso to Rule 9 (8) of the said Rules are intra vires, as those were not framed in violation of the rule of equality as enshrined in Articles 14 and 16 of the Constitution of india. Mr. 3, viz. The Chairman, Cooch-behar District Primary School Council, submitted that the provision contained in Rule 6 (3) and the proviso to Rule 9 (8) of the said Rules are intra vires, as those were not framed in violation of the rule of equality as enshrined in Articles 14 and 16 of the Constitution of india. Mr. Roy submitted that the eligibility criteria which has been laid down under the said Rules for the concerned post is uniformly applicable to all the candidates excepting the candidates who are seeking appointment on compassionate ground. It is contended by Mr. Roy that the person seeking appointment on compassionate ground cannot be treated at par with the other candidate including the ex-servicemen as in the case of the candidates seeking appointment on compassionate ground certain relaxation was given for providing service to the dependent of a teacher who died in harness in order to tide over the financial crisis in the family. While the ex-servicernen being pensioners are all financially well off and in fact they are seeking reemployment after completing full terms of their service. As such, the ex-servicemen cannot be treated at par with the person seeking appointment on compassionate ground. Thus, according to Mr. Roy, inequal treatment has not been provided underthe said Rules amongst the equals. The inequal treatment amongst the unequals, based on reasonable classification is permissible. As such, the inequal treatment which is provided in Rule 6 (3) is not violative of either Article 14 or 16 (1) of the Constitution of India. ( 19 ) WITH regard to the constitutional validity of Rule 9 (8) of the said rules, Mr. Roy submitted that Article 16 (4a) of the Constitution of India refers to the provision whereby the State was authorized to make certain provisions for reservation for the backward classes, scheduled castes and scheduled tribes and how those posts will be filled up in the event of non-availibility of suitable candidates in a particular selection process that has been provided under Article 16 (4b) of the Constitution of India. ( 20 ) BY referring to the proviso to the Rule (8) of the said Rules, mr. ( 20 ) BY referring to the proviso to the Rule (8) of the said Rules, mr. Roy submitted that underthe said proviso, it was provided that in case of non-availability of suitable qualified ex-servicemen candidates belonging to general, scheduled castes, scheduled tribes and backward classes, the said vacancies of ex-servicemen category shall be filled up by non ex-servicemen candidates belonging to general, scheduled castes, scheduled tribes and other backward classes respectively. Thus, the said provision provides that in caes of non-availability of the qualified ex-servicemen, the same will be filled up by general categories but by maintaining the ratio of reservation amongst the general scheduled castes, scheduled tribes and backward classes. ( 21 ) MR. Roy also referred to the following decisions of the Hon'ble supreme Court to show that equality of law is only available to the equals, thus, it follows that equal treatment should be made to the equals but that does not prohibit inequal treatment amongst the unequals : (i) 1989 (4) SLR 486 (Ram Sukh v. State of Rajasthan), (ii) AIR 1953 SC 91 (Ameerunnissa v. Mahboob Begum) and (iii) 1995 (1) SCC 104 (D. C. Bhatia v. Union of India ). ( 22 ) MR. Roy further submitted that the object of this Rule is to give appointment of the teachers for impartirig education to the students at the primary level. As such, the State Government felt that the untrained teachers are no substitute for the trained teachers as the primary school teachers play a very important role in developing a child's personality in the formative years. Mr. Roy further submitted that when a better qualification has been prescribed for teaching the students of such tender age, it cannot be said that the said prescription is unreasonable. ( 23 ) THE learned Government Pleader, appearing on behalf of the State also supported the submission of Mr. Roy and submitted that Rule 6 (3) and the proviso to Rule 9 (8) of the said Rules were not framed in violation of the basic structure of the Constitution and as such the same are intra vires. ( 24 ) MR. Bikash Ranjan Bhattacharjee, learned Senior Advocate, appearing for the added respondents, also submitted in the same tune. Mr. Bhattacharjee submitted that ex-servicemen cannot be treated at par with the persons seeking appointment on compassionate ground. Mr. ( 24 ) MR. Bikash Ranjan Bhattacharjee, learned Senior Advocate, appearing for the added respondents, also submitted in the same tune. Mr. Bhattacharjee submitted that ex-servicemen cannot be treated at par with the persons seeking appointment on compassionate ground. Mr. Bhattacharjee submitted that the decision which was relied upon by Mr. Talukdar in the case of State of Orissa v. Mohd. Yunus (supra) cannot come to the help of the petitioners as even in the said decision the Hon'ble Supreme court instead of striking out the said Rule on the ground of violation of Article 16 (4) simply recommended for modification of the concerned service rules for giving certain relaxation to the ex-servicemen. Thus, Mr. Bhattacharjee submitted that in any event the validity of Rules cannot be challenged for not granting such relaxation to the ex-servicemen being the pensioners seeking re-employment who form a different class from that of the class belonging to the candidates seeking employment on compassionate ground. ( 25 ) IN addition to the above, Mr. Bhattacharjee further submitted that since the petitioners themselves participated in the process of such selection, they cannot maintain this application for challenging the. vires of the said rule. Thus, Mr. Bhattacharjee challenged the maintainability of the application itself. ( 26 ) LET me now consider the submissions of the learned Advocates of the respective parties. It appears that in the said Recruitment Rules of 2001, the State Government has made a provision for recruitment of primary teachers by fixing eligibility uniformly for all the candidates excepting for the candidates seeking appointment on compassionate ground, as they deserve some sympathy on account of their financial exigencies. The purpose of making provision for giving appointment to the family members of a person who died in harness, is only to provide employment to a dependent of the deceased teacher so that the family of the deceased teacher can tide over the financial crisis. The consideration for giving appointment in such a case is to give financial support to the family members of a teacher who died in harness, particularly when the family of the said deceased teacher is in financial hardship. The ex-servicemen, in my opinion, cannot claim similar treatment as they do not belong to the same class. The ex-servicemen, who are all pensioners, are in fact seeking re-employment. The ex-servicemen, in my opinion, cannot claim similar treatment as they do not belong to the same class. The ex-servicemen, who are all pensioners, are in fact seeking re-employment. As such, they cannot be treated at par with the candidates seeking employment on compassionate ground. ( 27 ) THUS, I do not find any violation of principle of equality as enshrined in Articles 14 and 16 (1) of the Constitution of India for providing certain concession and relaxation for the candidates seeking appointment on compassionate ground. ( 28 ) THE ultimate object of recruitment is to impart education to the students in their tender age. Imparting education can be provided more efficiently by the trained teachers than the untrained teachers. As such, it is desirable that the students of such tender age should be taught by the trained teachers. Keeping in mind the said object, the trained candidates were invited for the said post. The qualification prescribed for the said post is uniformly applicable to all the candidates excepting the candidates seeking appointment on compassionate ground who belong to a different class altogether. As such, by not giving concession to the ex-servicemen, the principle of equality has not infringed as the ex-servicemen belong to a different class altogether as they are seeking re-employment after retirement. Keeping in view the ultimate object of such recruitment, I hold that the trained teachers are always preferable then the untrained teachers and as such no illegality has been committed by the State by limiting the appointment of untrained teachers by giving limited relaxation with regard to qualification eligibility to the candidates seeking appointment on compassionate ground. ( 29 ) WITH regard to the other challenge of the petitioners, regarding the constitutional validity of the proviso to Rule 9 (8) of the said Rules, I find that articles 16 (4), (4a) and (4b) of the Constitution of India are simply enabling provision which authorise the State to make certain special provision with regard to recruitment in service for the protection of backward classes, scheduled castes and scheduled tribes. Thus, if certain protections are given in this regard to the said classes of person legislation will not be void on account of inequal treatment, but that does not mean that if no such protection is given by the State authority, the legislation will be void and/or invalid. Thus, if certain protections are given in this regard to the said classes of person legislation will not be void on account of inequal treatment, but that does not mean that if no such protection is given by the State authority, the legislation will be void and/or invalid. I find a marked difference in the language used in Article 16 (1) on the one hand and Articles 16 (4), (4a) and (4b) on the other hand. Article 16 (1) imposes a positive duty upon the State, but there is no directive or command in Articles 16 (4) and (4a) of the Constitution of India. Both Articles 16 (4) and (4a) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provision vesting a discretion in the State for making provision for reservation for a particular section of people. Neither Article 16 (4) nor Article 16 (4a) confers power coupled with duty. As such even if no concession is given to the petitioners as claimed by them under the recruitment rules, such rules cannot be declared as ultra vires. In this regard reliance may be made to the decision of the Hon'ble Supreme court in the case of Ajit Singh (II) v. State of Punjab (supra ). ( 30 ) ARTICLE 16 (1) no doubt imposes a positive duty upon the State but still then I do not find that any infringement of the said provision of equality of opportunity in the matter of Public employment in the extant Rule has been made inasmuch as eligibility criterion has been laid down in the said Rules uniformly for all the candidates including the ex-servicemen. However, certain relaxation was given to the candidates seeking employment in died-in-harness category by making a reasonable classification which is permissible within the frame of the Constitution of India. ( 31 ) NO doubt, it has been held in the case of Indra Sawheny v. Union of India reported in AIR 1993 SC 477 that reservation of service as well as grant of concession can be made and/or provided in favour of physically handicapped, army personnel, freedom fighter and their dependents, project affected persons etc. ( 31 ) NO doubt, it has been held in the case of Indra Sawheny v. Union of India reported in AIR 1993 SC 477 that reservation of service as well as grant of concession can be made and/or provided in favour of physically handicapped, army personnel, freedom fighter and their dependents, project affected persons etc. and if any reservation is made in this regard that will not hit by clause (2) of Article 16 of the Constitution, but that does not mean that if any concession is not given to these categories of persons in the public employment, the Recruitment Rules will become void. In fact, grant of concession and/or reservation for these categories of persons are within the discretionary power of the State. The State cannot be compelled to do so by issuance of a mandate by Court. ( 32 ) THE carry forward Rule under the purview of Article 16 (4b) of the constitution of India which was explained in the case of State of Punjab v. G. S. Gill (supra), has no application in the facts of the instant case firstly for the reason that carry forward Rule is applicable to the scheduled castes and scheduled tribes candidates and not to any other candidates. Plain reading of Article 16 (4b) of the Constitution of India suggests that Article 16 (4b) is applicable to the candidates named in Article 16 (4a ). Thus, the ex-servicemen by virtue of mere reservation of certain posts for them, cannot claim extension of the same benefit to them. That apart, under the scheme of the instant Rule, in case of non-availability of suitable candidate from the reserved posts a provision has been made for filling up the post of reserved candidates by general candidates by maintaining the ratio of reservation from the scheduled castes and scheduled tribes candidates and as such if these vacant posts which were reserved for scheduled castes and scheduled tribes within the posts earmarked for ex-servicemen are filled up by scheduled castes and scheduled tribes candidates, there cannot be any violation of the provision. of Article 16 (4b) of the Constitution of India as in such case nothing will be left out for carrying forward forthe subsequent years. of Article 16 (4b) of the Constitution of India as in such case nothing will be left out for carrying forward forthe subsequent years. As I have indicated above that since the provision contained in Article 16 (4b) of the Constitution of India is merely an enabling provision vesting a discretion with the State, the proviso to Rule 9 (8) cannot be declared as ultra vires for not following the Rule of carry forward as contemplated in Article 16 (4b ). ( 33 ) THE other decision which has been cited by Mr. Talukdar in the case of Sfafe orissa v. Mohd. Yunus (supra), I find that in the said decision the Hon'ble Supreme Court instead of striking out the concerned recruitment rules, simply recommended for certain suitable amendment in the said Rules for giving certain concession to the ex-servicemen. Thus, the said decision also cannot come to any help to the petitioners in support of their submission. ( 34 ) SINCE admittedly, in the instant case, none of the petitioners possesses the training qualification, the petitioners cannot be allowed to compete for the said post. As such, I find no illegality on the part of the respondents in excluding the petitioners from the zone of consideration. It is, however, made clear that in the event of non-availability of the suitable qualified persons from the ex-servicemen, the said vacancies can be filled up from the general categories by maintaining the ratio as provided in the proviso to Rule 9 (8) of the said Rules. ( 35 ) THUS, I do not find that any legislative and/or authoritative incompetency with the Rule framing authority in framing of such Rules. I also do not find that the said Rules infringe the basic structure of the constitution of India. As such the said Rules are intra vires. ( 36 ) WITH regard to the question maintainability of this application, as raised by Mr. Bhattacharjee, I find substance in the said submission of mr. Bhattacharjee, as the petitioners who themselves participated in the selection process cannot challenge the vires of the rules of recruitment after being unsuccessful in the process of such selection. As such, by relying upon the decision of the Hon'ble Supreme Court in the case of Om Prakash shukla v. Akhilesh Kumar Shukla reported in 1986 (supp.) SCC 285,i hold that the application is also not maintainable in law. As such, by relying upon the decision of the Hon'ble Supreme Court in the case of Om Prakash shukla v. Akhilesh Kumar Shukla reported in 1986 (supp.) SCC 285,i hold that the application is also not maintainable in law. ( 37 ) ACCORDINGLY, I find no merit in this application. Thus, the application stands rejected. ( 38 ) THERE will be, however, no order as to costs. ( 39 ) ALL interim orders passed in this matter earlier shall stand discharged. ( 40 ) THE learned Advocate for the petitioners prays for stay of the operation of this order. Such prayer for stay is considered and rejected. Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the requisite formalities.