Research › Search › Judgment

Calcutta High Court · body

2005 DIGILAW 191 (CAL)

RABINDRA NATH JATI v. STATE OF WEST BENGAL

2005-03-18

J.K.BISWAS

body2005
J. K. BISWAS ( 1 ) THE petitioner is aggrieved by the decision of the District Primary school Council, Howrah, dated January 11th, 2005 rejecting his candidature for lack of training qualification. He was considered for appointment as primary teacher. ( 2 ) ONCE the council rejected his candidature, he decided to challenge the vires of the relevant rule, i. e. Rule 6 (2) of the Primary Teachers' recruitment Rules, 2001, which prescribes the training qualification for appointment as primary teacher. ( 3 ) ADVOCATE for the council raises the question of maintainability of the writ petition on the ground that after participating in the selection process initiated and conducted on the basis of the Primary Teachers' Recruitment rules, 2001, the petitioner is not entitled to challenge the vires of any provision thereof. I acknowledge the force of his submission. ( 4 ) THE admitted position is that according to the rules name of the petitioner was forwarded by the employment exchange. Again, in compliance with provisions of the rules he duly submitted his bio-data; after considering his bio-data, the council found that he was not eligible to be called for interview. ( 5 ) HAVING lost his chance midway, he. turned around and decided to challenge the vires of the recruitment rules. I agree with Advocate for the council that on this ground alone the writ petition should be dismissed, and that the petitioner should not be permitted to challenge the vires of any provision of the rules after he submitted himself to the rules and took the chance for his recruitment, selection and appointment. ( 6 ) ALTHOUGH I am of the view that the writ petition should be dismissed on the ground that it is not maintainable for the reasons stated before, i think, this is a case where I should decide the issues argued before me on merits. The reason why I think so is that if I am wrong in my view regarding maintainability, then the petitioner would be entitled to get a decision from this Court on merits. ( 7 ) ADVOCATE forthe petitioner first argues that provisions of Rule 6 (2)of the rules are ultra vires provisions of Section 106 of the West Bengal primary Education Act, 1973. ( 7 ) ADVOCATE forthe petitioner first argues that provisions of Rule 6 (2)of the rules are ultra vires provisions of Section 106 of the West Bengal primary Education Act, 1973. He submits that while under provisions of section 106 the State Government is competent to prescribe the requisite rules for appointing the primary teachers, rules for prescribing the qualifications for such appointment cannot, however, be made by it. He then refers me to provisions of Section 60 (k) of the Act, and comments that even assuming that on the basis of power conferred by this provision the state Government would possess the requisite power to frame the rules for appointing teachers in primary schools, it would not possess the power to prescribe the qualifications and the other methods of recruitment for such appointment. ( 8 ) I am sorry that I am unable to agree with him. Power has been given to the State Government to frame rules for carrying out the purposes of the Act. Power has also been given to it to make rules for appointment of primary teachers. In my view, it will be an absurd proposition to say that such powers though will enable it to make rules for appointment, will not empower it to prescribe the requisite qualifications for the appointment. In my considered view, the State Government possesses the requisite power not only to frame rules for making appointment of primary teachers, but also for prescribing the requisite qualifications for recruiting, selecting and making appointment. ( 9 ) ADVOCATE for the petitioner then argues that provisions of Rule 6 (2) of the rules are ultra vires Articles 14 and 16 of the Constitution of india, on the ground that they make hostile discrimination between the candidates who seek employment on compassionate ground and those who seek employment against reservation. Anticipating that Advocate for the respondents would be relying on a Single Bench decision of this Court given in Chittaranjan Barman v. State of West Bengal and Ors. , 2004 (2) CLJ 333 (Cat.), he has commented on it by saying that it was dealing with a challenge by ex-service men. Anticipating that Advocate for the respondents would be relying on a Single Bench decision of this Court given in Chittaranjan Barman v. State of West Bengal and Ors. , 2004 (2) CLJ 333 (Cat.), he has commented on it by saying that it was dealing with a challenge by ex-service men. ( 10 ) I think, Advocate for the council is right when he says that the ratio of the Single Bench decision in the case of Chittaranjan Barman does apply also to this case for the same reasons that warrranted rejection of the contention of discrimination in that case. He also relies on an unreported single Bench decision dated January 11th, 2005 by Jyotirmay Bhattacharya, j. given in Amitava Das v. State of West Bengal and Ors. , W. P. No. 21413 (W) of 2004. This was a case regarding ex-census candidate, and the petitioner also belongs to the same category. Advocate for the petitioner comments that in the case of Amitava Das the points now argued before me were not argued. I do not see any force in the submission. ( 11 ) IN my view, provisions of Rule 6 (2) do not make any discrimination as alleged by the petitioner. He has compared his case with a candidate seeking compassionate appointment. According to the rules, a candidate seeking appointment on compassionate ground may be considered even if he does not have the training qualification for appointment as primary teacher. As is known, appointment on compassionate ground is made by making an exception to the ordinary recruitment rules. The very purpose of compassionate appointment entitles the candidate to claim and the authorities to treat, the case on a footing which will be definitely different from the one on which other categories of candidates are considered for appointment. ( 12 ) THE candidates are generally classified into two categories general and reserved category. While for appointment the general category candidates must fulfil all the requirements of the rules, reserved category candidates are ordinarily granted certain benefits by way of relaxation articles 14 and 16 of the Constitution of India do not entitle the reserved category candidates to seek any particular relaxation for the purpose of recruitment, selection and appointment. While for appointment the general category candidates must fulfil all the requirements of the rules, reserved category candidates are ordinarily granted certain benefits by way of relaxation articles 14 and 16 of the Constitution of India do not entitle the reserved category candidates to seek any particular relaxation for the purpose of recruitment, selection and appointment. It is for the State to decide what kind of relaxation is to be given for the purpose of giving employment to the reserved category candidates for ensuring adequate representation of such category in the service under the State. ( 13 ) EVEN otherwise candidates seeking appointment on compassionate ground form a separate class. A candidate belonging to any reserved category, like the petitioner, is not entitled to allege discrimination by saying that benefits given to candidates seeking compassionate appointment have not been given to him. The proposition is not, in my view, based on any sound logic. ( 14 ) THE last argument of Advocate for the petitioner is that in any case, the training qualification cannot be said to be mandatory for appointment of primary teacher by the council. He refers me to the proviso to sub-rule 5 of Rule 6, and comments that the provisions made in the rules for giving extra marks to a trained candidate make it clear that the training qualification prescribed by sub-rule 2 of Rule 6 would not be a mandatory requirement for appointment. I regret that I am unable to agree with him. ( 15 ) HE has cited to me the authorities in Khub Chand and Ors. v. State of Rajasthan and Ors. AIR 1967 SC 1074 , and State of Haryana v. Raghubir dayal, 1995 (1) SC 133. There is no dispute regarding the proposition of law explained in the authorities that whether a particular provision is mandatory or directory is not to be determined by any word employed in it, but it is to be determined only in the context of the relevant rules and other provisions of the legislation. ( 16 ) TO my mind, the authorities cited to me are of no assistance in this case, as there is no dispute regarding the meaning of the language. I have no doubt in my mind that the provisions of extra marks have been made only for the purpose of clarifying the situation mentioned in sub-rule 5 of Rule 6. ( 16 ) TO my mind, the authorities cited to me are of no assistance in this case, as there is no dispute regarding the meaning of the language. I have no doubt in my mind that the provisions of extra marks have been made only for the purpose of clarifying the situation mentioned in sub-rule 5 of Rule 6. The purpose of the proviso is not to control the main provision. Provisions of sub-rule 2 of Rule 6 leave no doubt whatsoever that the training qualification is a mandatory qualification. For these reasons I do not find any merit in the writ petition, and hence I dismiss it. There will be no order for costs in it. Urgent certified xerox copy of this judgment and order shall be supplied to the parties, if applied for.