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2016 DIGILAW 208 (CAL)

Bapi Kandar v. State of West Bengal

2016-02-26

DEBANGSU BASAK

body2016
JUDGMENT : Debangsu Basak, J. The writ petitioners have sought cancellation of the Teacher Eligibility Test (TET), 2012 held on March 31, 2013. According to the writ petitioners, the guidelines prescribed by the National Council for Teacher Education (NCTE) are binding on the State authorities. As the State authorities did not conduct TET, 2012 in accordance with the guidelines prescribed by NCTE such examination should be cancelled and a fresh examination should be held strictly in accordance with the guidelines prescribed by NCTE. Learned Senior Advocate for the writ petitioners has contended that, the West Bengal Primary School Teachers Recruitment Rules, 2001 were amended by a Notification dated August 13, 2012. He has referred to the various amendments therein and has submitted that, the State Government has recognized that, TET would be held as per the guidelines issued from time to time by NCTE. The appointment notification for primary teachers also states that, the guidelines issued from time to time by NCTE would apply to TET. NCTE is a statutory body. It has issued a writing dated February 11, 2011 stating that, TET should be conducted by the appropriate Government in accordance with the guidelines framed by NCTE. The guidelines for conducting TET are enclosed to such writing. Such guidelines prescribe the structure and content of TET. It specifies that, the examining body should strictly adhere to the structure and content of TET. Five subjects along with the duration of the examination in respect of five subjects in respect thereof have been specified. Details have been given as to the nature and standard of questions for each paper. These portions of the NCTE guidelines have not been adhered to by the authorities in conducting TET 2012. Reference in this regard is made to the appointment notification which shows that the TET 2012 would be for five subjects with 20 marks each. Although the notification recognizes that TET would be held as per the guidelines issued from time to time by NCTE it proceeds to lay down marks and subjects which are contrary to the guidelines issued by NCTE. It has been pointed out on behalf of the writ petitioners that, the Central Government by Notification dated January 1, 2011 has granted relaxation to the State, subject to the conditions specified therein. It has been pointed out on behalf of the writ petitioners that, the Central Government by Notification dated January 1, 2011 has granted relaxation to the State, subject to the conditions specified therein. One of such conditions is that, the State should conduct TET in accordance with the guidelines dated February 11, 2011 issued by NCTE. The NCTE by a Notification dated August 20, 2010 has fixed the minimum qualification for appointment of teachers for class one to five. One of such minimum qualifications is a pass in TET to be conducted by the appropriate Government in accordance with the guidelines framed by NCTE for such purpose. Consequently, a TET conducted by the State has to be in terms of the guidelines of NCTE. Once a candidate passes TET conducted in accordance with the guidelines of NCTE, such candidate has the opportunity to apply for appointment as a teacher in other States also. It is therefore all the more incumbent on the examining authority to conduct TET in accordance with the guidelines prescribed by NCTE. Passing a TET conducted in terms of the guidelines prescribed by NCTE gives rise to a valuable right in favour of such candidate in the form of entitlement to apply for appointment as a teacher in any State in the country. Learned Senior Advocate for the petitioners has submitted that, NCTE Act being a Central legislation, it has primacy over a legislation of a State. The guidelines issued from time to time by NCTE have statutory flavour. These guidelines are binding on the authority conducting a TET. Guidelines of NCTE have statutory flavour although such guidelines may not have been placed before the Parliament. In support of such contention reliance has been placed on 2003 Volume 12 Supreme Court Cases page 738 (Prohibition & Excise Supdt., A.P. & Ors. v. Toddy Tappers Coop. Society, Marredpally & Ors.), All India Reporter 2015 Supreme Court page 1875 (Kalyani Mathivanan v. K.V. Jeyaraj & Ors.) and 2012 Volume 4 Supreme Court Cases page 578 (Accountant General, State of Madhya Pradesh v. S.K. Dubey & Anr.). Referring to the various provisions of the NCTE Act it has been submitted that, such Act has primacy. Reliance has been placed on the unreported Division Bench judgment of Raja Chatterjee as well as 2015 Volume 6 Supreme Court Cases page 685 (Sudhir N. & Ors. Referring to the various provisions of the NCTE Act it has been submitted that, such Act has primacy. Reliance has been placed on the unreported Division Bench judgment of Raja Chatterjee as well as 2015 Volume 6 Supreme Court Cases page 685 (Sudhir N. & Ors. v. State of Kerala & Ors.) in this regard. On behalf of the respondents it has been submitted that, the proposition that, Central legislation has primacy in the scenario laid down by the Constitution is indisputable. The NCTE guidelines are required to be placed before Parliament. The guidelines concerned in the present proceedings have not been placed before the Parliament. Therefore, the same cannot partake the character of a legislation of the Central Government. Reference in this regard has been made to various provisions of the NCTE Act as well as RTE Act. The State has proceeded on the basis of the appointment notification dated August 20, 2010. The State has taken the guidelines of the NCTE as the model. The State has specified the modifications of the NCTE guidelines in the notification. All candidates have been made aware of the NCTE guidelines. All candidates have been treated equally inasmuch as the TET has been held in accordance with the modified guidelines prescribed by the State. The State has the power to do so. Relying upon 2011 Volume 1 Supreme Court Cases page 150 (Vijendra Kumar Verma v. Public Service Commission, Uttarakhand & Ors.) it has been submitted that, since the petitioners knew the rules of the examination and they having participated therein, they should not be allowed to challenge the same. The vires of the 2001 Rules have not been challenged in the writ petition. Therefore, the steps taken thereunder are also not under challenge. As the guidelines of NCTE are not binding, the examining authority is entitled to modulate the content of the examination papers in accordance with the peculiar need of the examining authority. In the present case, it has been done so. Since the guidelines are not a Central law, they are not binding upon the State. I have considered the rival contentions of the parties and the materials made available on record. The petitioners before me are unsuccessful candidates of the TET, 2012. The authorities had by an advertisement dated October 19, 2012 invited applications for appointment to the post of primary teachers. I have considered the rival contentions of the parties and the materials made available on record. The petitioners before me are unsuccessful candidates of the TET, 2012. The authorities had by an advertisement dated October 19, 2012 invited applications for appointment to the post of primary teachers. The advertisement had stated that a candidate should verify the notified rules available at the specified website. The authorities, prior to such advertisement, had by a notification dated July 24, 2012 published on August 13, 2012 amended Rule 6 of the West Bengal Primary School Teachers Recruitment Rules, 2001. By such notification the authorities had revised the provisions for educational qualification, publication of employment notifications and the procedure of selection. The notified rules were available at the website specified. Some portions of the rules as pointed out on behalf of the petitioners were contrary to those specified by NCTE. Some of the petitioners here had along with others filed another application under Article 226 of the Constitution of India. The petitioners had participated in the selection process. The written examination was held on March 31, 2013. According to the petitioners, they were shocked to find that the guidelines of NCTE have not been followed in the written examination. The petitioners have highlighted the deviations from the NCTE guidelines in relation to the TET, 2012 conducted by the authorities. The factum of deviation is admitted by the authorities. It is contended on their behalf that, the Court need not consider the legality of the deviations as raised by the petitioners, as the petitioners having participated in the selection process unconditionally should not be allowed to question the selection process itself as none of the candidates participating has been discriminated against. The same rules as notified by the advertisement dated October 19, 2012 has been applied for the selection process in respect of all the candidates appearing including the petitioners. In Vijendra Kumar Verma (supra) after noticing the earlier decisions it has been held that, those candidates who have taken part in the selection process knowing fully well the procedure laid down therein are not entitled to question the same. The procedure for TET, 2012 was laid down prior to its commencement. Such procedure may be in deviation of the NCTE regulations. The petitioners knew of the extent and the nature of the deviations prior to the commencement of the selection process. The procedure for TET, 2012 was laid down prior to its commencement. Such procedure may be in deviation of the NCTE regulations. The petitioners knew of the extent and the nature of the deviations prior to the commencement of the selection process. The petitioners had participated in the selection process unconditionally. In view of Vijendra Kumar Verma (supra) they cannot be allowed the question such procedure. It is not the case of the petitioners that, the candidates participating in the selection process have been discriminated against by adopting different set of procedure or rules for different candidates. In fact, it is the case of the petitioners that TET, 2012 being conducted on a different set of yardsticks than those prescribed by the NCTE is bad. In the facts of this case, the petitioners are not entitled to take such a stand in view of Vijendra Kumar Verma (supra). The contention that, the contents of the written examination, its subject and the quantum of marks on which the examination was conducted is contrary to the NCTE guidelines cannot be raised on behalf of the petitioners for the same reasons. The authorities had prior to the initiation of the selection process prescribed the contained subjects and the quantum of marks for the written examination. A candidate appearing in the TET, 2012 was aware of such parameters. The petitioners know of the parameters of the written examination. The affidavit on behalf of the NCTE that the content of the examination was not in accordance with its guidelines does not help the petitioners. It is not the case of the petitioners that the questions put in the examination was beyond the parameters prescribed by the authorities in conducting TET, 2012. The contention of the petitioners is that, the parameters of the written examination in TET, 2012 is contrary to the NCTE guidelines. Such contention is not available to the petitioners by reason of their conduct in participating therein. There is one more ground which persuades one to hold that, the petitioners are not entitled to challenge the selection process. The contention of the petitioners is that, the parameters of the written examination in TET, 2012 is contrary to the NCTE guidelines. Such contention is not available to the petitioners by reason of their conduct in participating therein. There is one more ground which persuades one to hold that, the petitioners are not entitled to challenge the selection process. Six other writ petitions being W.P. No. 5357 (W) of 2015, W.P. No. 5367 (W) of 2015, W.P. No. 5369 (W) of 2015, W.P. No. 5371 (W) of 2015, W.P. No. 5373 (W) of 2015, W.P. No. 5376 (W) of 2015 challenging the same TET, 2012 on almost similar grounds were dismissed by a judgment and order dated January 11, 2016 by a co-ordinate Bench. The petitioners before me are similarly situated and circumstanced as that of the petitioners of the other six writ petitions. In fact some of the writ petitioners before me may be co-petitioners in those writ petitions. In such circumstances, the other points raised by the petitioners need not be taken up for consideration. W.P. No. 25744 (W) of 2013 is dismissed. No order as to costs.