Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 716 (CAL)

Chinmoy Dolui v. Union of India

2016-09-14

C.S.KARNAN

body2016
JUDGMENT : C.S. Karnan, J.: 1. The petitioners submit that they have obtained 50% marks in the Higher Secondary Examination and also obtained the D.El.Ed. training qualification from various recognised Universities by the National Council for Teacher Education. As such the petitioners are eligible under the RTE Act and NCTE Act and also as per the notification issued by the NCTE. The petitioners are also eligible to appear in the written test examination for the appointment to the post of primary teacher without any relaxation under the provisions of Section 23 of the RTE Act, 2009. The petitioners further submit that the RTE Act, came into effect on 01.04.2010, Section 23 of the said Act empowers the NCTE, being the economic body to prescribe the minimum qualification for appointment of teacher at Primary School level. Accordingly, by virtue of notification dated 23.08.2010, the academic body namely NCTE prescribed the qualification for appointment as a teacher in Primary School level, whereby the candidates possessing 50% marks in Higher Secondary Examination and also with two years Diploma in Elementary Education course from NCTE recognised institutes are also entitle as teachers’ for a Primary School level. 2. The petitioners further submit that this RTE Act came into effect with an object to maintain the standard of education between education to teachers and students and thereby the academic body namely National Council for Teacher Education prescribed the qualification for the appointment of teacher in the primary level so that the standard of education is maintained. Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 provides as follows : 23. Qualifications for appointment and terms and conditions of service of teachers.- (1) Any person possessing such minimum qualification, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 provides as follows : 23. Qualifications for appointment and terms and conditions of service of teachers.- (1) Any person possessing such minimum qualification, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. (2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers’ possessing minimum qualifications as laid down under Sub-Section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification: Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under subsection (1), shall acquire such minimum qualifications within a period of five years. (3) The salary and allowances payable to, and the terms and conditions of service of, teacher shall be such as may be prescribed. 4. The petitioners further submit that as per the above mentioned section it clearly revels that if the trained candidates are not available in sufficient numbers in the State Governments, they can make an application before the Central Government and the Central Government if necessary by notification relax the minimum qualification required for appointment as a teacher for such a period not exceeding five years. That in terms of the rules framed under the Right to Free and Compulsory Education Acts, it provides that the Central Government has got the right to grant relaxation for a period of three years out of five years from the date of the commencement of the Act. Thereby the said relaxation was granted in year 2015 for a period of one year by the Central Government. Notwithstanding the fact that the earlier relaxation in favour of the State Government for the period of 2 years and 8 months, thereby the relaxation is not permissible by law, hence, the same was challenged by a Writ Petition No. 16306 (W) of 2015 filed by some interested persons under the guise of Public Litigation and the same is still pending. 5. 5. The petitioners further submit that the Central Government granted the relaxation on the basis of the application made by the State Government on the grounds that there are no sufficient trained candidates in West Bengal, thereby relaxation becomes imperatively necessary to allow the untrained candidates in the Teachers’ Eligibility Test for filling the post of Primary Teacher in Question. The relaxation notification contained certain clauses whereby clause V contained that the State Government and other school management shall ensure that the Teachers not possessing the Minimum Academic and Professional Qualification laid down in the above mentioned notification of the NCTE shall acquire the same within the time limit specify under Sub-Section (2) of Section 23 off the RTE Act in adherence to norms. 6. The petitioners further added that Clause VI provides that the State Government and other School management shall ensure that the teacher, who are appointed under the relaxed qualification norms required the minimum qualification specified in the NCTE notification within a period of two years from the date of appointment. Clause II of the said notification provides that accordance with the Sub-Paragraphs 3 of Paragraphs 5 of the TET guidelines issued by the NCTE by its letter dated 11.02.2011, the following persons shall also be eligible for appearing in the Teachers’ Eligibility Test conducted by the State Government of West Bengal in respect of teachers’ appointment made by the State Government up to 31.03.2016. 7. The petitioners further submit that in view of such a clause of relaxation dated 01.04.2015 the Teachers’ Eligibility Test was held on 11.10.2015 for filling up the post of primary teachers by allowing the non-trained candidates to participate in the Teachers’ Eligibility Test examination and also the trained candidates being allowed to participate in the Teachers’ Eligibility Test examination. The condition precedent is that the relaxation is given to the effect that the appointment is to be made on or before 31.03.2016. But the Government is not in a position to make this appointment by 31.03.2016, thereby after 31.03.2016 the Education Authority cannot take the advantage of the said relaxation which already expired on 31.03.2016. The condition precedent is that the relaxation is given to the effect that the appointment is to be made on or before 31.03.2016. But the Government is not in a position to make this appointment by 31.03.2016, thereby after 31.03.2016 the Education Authority cannot take the advantage of the said relaxation which already expired on 31.03.2016. Further the clause of the relaxation is mandatory one, thereby the Education authority is to comply with that the clause of the relaxation but it is not the fact that some of the clauses will be complied with while some of the clauses will not be complied with by the authorities of the State and thereby taking advantage of the relaxation the appointment will be given to the selected candidates which is beyond the scope of the relaxation. Accordingly, the State Government or other authorities empower to issue the appointment have got no right to give appointment after 31.03.2016, since the gazette notification clearly indicates that the relaxation period valid up to 31.03.2016. 8. The petitioners further submits that the State Government had filed an affidavits in another writ petition filed by one Narayan De and admitted that the candidates were given appointment taking the advantage of relaxation should be upgraded, their training qualification by 31.03.2015 since the time limit as per the provisions of the RTE Act, 2009 is five years for upgrading the qualification from the date of commencement of the Act, as such, inasmuch as the non-trained teachers who were given appointment by taking advantage of the relaxation should ultimately upgrade their qualification by 31.03.2015. Thereby, if the contention of the Government is to that effect then these appointment would not be given taking advantage of the relaxation dated 01.04.2015, as if these appointment is given to a non-trained teacher taking the advantage of relaxation upto 31.03.2016, those non-trained teacher will able to upgrade their qualification at least after two years from the date of their appointment, thereby they would upgrade their qualification by 2018, where the time limit fixed for upgrading the qualification of the untrained teachers is 31.03.2015, inasmuch as taking the statement as furnished by the State Government, the untrained candidates cannot be appointed after 31.03.2016. As such, the educational authorities who are empowered to give these appointments, should have been restrained from giving any appointment for the post of Primary Teacher to any untrained candidate after 31.03.2016. As such, the educational authorities who are empowered to give these appointments, should have been restrained from giving any appointment for the post of Primary Teacher to any untrained candidate after 31.03.2016. 9. The petitioners further added that the respondents are taking steps to declare the result and hold the interview and to give these appointments in favour of the selected candidates after expiry of the relaxation period. Further regarding the extension of relaxation, the writ petition being W.P. No. 16306 (W) of 2015 has been filed which is still pending. Now the new cause of action is commences after 31.03.2016, as such the result cannot be published pertaining to the Teachers’ Eligibility Test dated 11.10.2015. Therefore, the subsequent selection process in order to provide new appointment is not maintainable. 10. On the side of the respondents no opposition was filed. The Highly Competent Counsel Mr. Soumen Kr. Dutta appearing for the petitioners submit that the trained candidates who obtained 50% marks in the Higher Secondary Examination and who are eligible to appear in the written test examination for the post of Primary Teacher, the same was notified on 23.08.2010. The Learned Counsel further submits there are sufficient trained candidates are available through the State of West Bengal. Under the circumstances, the non-trained candidates could not be appointed. In the instant case the respondent have not furnished the factual position that the trained candidates are sufficiently available. Now the respondents are given importance to the non-trained candidates, as such the privileges of the trained candidates have been affected and also discriminated. Under any circumstances the trained candidate and untrained candidate are not equal regarding the possession of educational qualification. The respondents are showing much interest on the untrained candidates to provide appointment them but similar interest not shown as trained candidates. The trained and untrained candidates cannot be treated equally, as such Teachers’ Eligibility Test conducted on 11.10.2015 is not appropriate since the trained candidates are possessing Professional qualification and the untrained candidates have not undergone the two years teachers’ training course, which is the basic requirements for the teachers’ post. The respondents without scrutinizing other training school managements whether sufficient trained candidates are available or not, as such the respondents view is to give more importance to the non-trained candidates which is unfair and prejudicial to the trained candidates. 11. The respondents without scrutinizing other training school managements whether sufficient trained candidates are available or not, as such the respondents view is to give more importance to the non-trained candidates which is unfair and prejudicial to the trained candidates. 11. The Learned Counsel further submits that as per the notification dated is 01.04.2015 the relaxation period is one year that expired on 31.03.2016, therefore the said notification is not in force, as such the entire selection process become null and void. Under the circumstance, the respondents are taking speedy action in order to provide appointments specially to the untrained candidates. In the instant case the respondent shall not given an opportunity and equality to the trained candidates, as such the status of the trained candidates are totally effected when compared with the untrained candidates, therefore the notification dated 01.04.2015 runs against the prime Article 14 and 21 of the Constitution of India. Hence, the Learned Counsel entreats the Court to restrain the respondent from giving any appointment to the post of primary teachers in accordance with the notification. 12. The Learned Counsel Mr. Tapan Kr. Mukherjee appearing for the State submits that the State Government made a representation to the Central Government namely the 2nd respondent herein and sought permission to appoint untrained candidates along with trained candidates who represent a lesser number of trained candidates, therefore in order to fulfil the large vacancies in the State of West Bengal. Therefore relaxation is required and the same is granted by the Central Government as per Section 23 of the RTE Act and Rule 18 of The RTE Rules 2010 framed thereunder. The Ministry of Human Development Department had given notification by way of granting a one year relaxation since the State of West Bengal does not have adequate institutions offering courses or training in Teacher Education. Therefore the notification was issued on 01.04.2015, accordingly the teacher eligibility test was conducted on 11.10.2015 for filling up the post of primary teachers, by allowing the non-trained candidates to participate in the said test in order to fulfil the teaches’ vacancies arising around the State and in order to maintain the standard of education as required by the State. The highly competent counsel further submits that as per the initial notification dated 01.04.2015 a one year relaxation period was granted, the same expired on 31.03.2016. The highly competent counsel further submits that as per the initial notification dated 01.04.2015 a one year relaxation period was granted, the same expired on 31.03.2016. By virtue of the notification, Teachers’ Eligibility Test was conducted on 11.10.2015. Before announcing the result after observing necessary procedures, the Election Commission had announced the West Bengal State General Assembly Election was notified, therefore the notification dated 01.04.2015 could not be operated unless and until the State Election was over. Therefore there is no delay on the part of the State Government, but the delay was caused due to logical reasons. However, the State Government if it should proceed then the notification dated 01.04.2015 will not be effected and no one will be prejudiced. If any legal formality is required regarding further notification the same will be complied with jointly by the Central Government and State Government of West Bengal. 13. As per the notification one of the condition is that the eligible trained candidates shall be appointed initially, thereafter the untrained candidates will be appointed. As of now about 40000 vacancies have a reason across the entire State of West Bengal, therefore the trained candidates will not be effected in their privileges since their strength is about 19000 i.e. much below than 40000 vacancies on hand. Hence, the Learned Counsel entreats the court to dismiss the above writ petition. 14. The Learned Counsel appearing for the Union of Union of India submits that the relaxation period of one year has been granted to the State Government of West Bengal as per Section 23 of the Right of Children to Free and Compulsory Act, 2009 and Rules framed thereunder. Therefore, the permission granted by the Union Government is most appropriate and sustainable under law. Further the Ministry of Human Recourse Development Department had put in force several conditions wherein the trained candidates are protected. 15. The Learned Counsel Ms. Therefore, the permission granted by the Union Government is most appropriate and sustainable under law. Further the Ministry of Human Recourse Development Department had put in force several conditions wherein the trained candidates are protected. 15. The Learned Counsel Ms. Asha G. Gutgutia, appearing for the National Council for Teachers’ Education submits that the 3rd Respondent after observing all legal formalities, then only the State Government was permitted to appoint trained and untrained candidates on observing necessary procedures regarding minimum educational qualification for Teachers’ Eligibility Test for Classes- I to V. It is an admitted fact that the State Government could not execute the appointment procedures of the Primary Teachers within a specified period i.e. within one year which expires on 31.03.2016 due to the State General Assembly Election besides pending cases. Notification was in force for around three months. If the selection process is to proceed further the petitioners rights will not be effected since they have been permitted to participate in the Teachers’ Eligibility Test which was conducted on 11.10.2015. As such, the trained candidates are also under consideration for their appointments. Accordingly ordered. 16. The learned Counsel for the petitioners has filed an affidavit in reply to the affidavit raised by the opposition and filed by the respondents/ State Government, stating that the relaxation period was over on 31.03.2016, as such the State Government has no right to adopt any further process for appointment of untrained candidates for the post of Primary Teachers since the logical view is not sustainable under law, however, the relaxation period has expired. Therefore, the State Government cannot take any further steps in order to publish the results and subsequent process. The highly competent Counsel further submits that one Public Interest Litigation (PIL) in W.P. No. 16306 (W) of 2015 which is still pending before the Hon’ble Division Bench of this Court wherein the relaxation granted by the Centre is challenged. Under these circumstances, the respondents cannot proceed further with the selection process. During the years 2010 and 2012 the available trained candidates amounting to 11000 and the vacancies were 35 thousand as claimed by Ld A.A.G, which is incorrect. Under these circumstances, the respondents cannot proceed further with the selection process. During the years 2010 and 2012 the available trained candidates amounting to 11000 and the vacancies were 35 thousand as claimed by Ld A.A.G, which is incorrect. The intention of the State Government to give more opportunities to the untrained candidates and showing less interest on the trained candidates, this kind of treatment is affecting the status of the trained candidates i.e. affecting the opportunity and competitiveness of the petitioners. 17. The very competent Counsel further submits that the first relaxation has been challenged before the Hon’ble Apex Court of the Country wherein the State Government had openly admitted that during the relevant period i.e. between 2011-2013, the strength of the trained candidates around 20584, out of which 1089 trained candidates were appointed. However, by virtue of the first relaxation, the Teachers’ Eligibility Test examination was fixed on 31.03.2014 for the second time, the same was not conducted since the Election Commission had announced the General Election for Parliament. Now 327 training Institutes are functioning, as such adequate training institutes are operating and 16350 candidates have been trained. As of now about 51495 trained candidates are available across the entire State of West Bengal besides the R.C.I. approved trained candidates, this fact has not been disclosed to the Central Government by the State Government, as such the State Government’s proposal for securing relaxation from the State Government is not fair since the approach of the State is not crystal clear and found with unclean hands. Therefore, the relaxation has been granted by the Central Government which is tantamount to non-application of mind. 18. The learned Counsel further added that the State Government has not furnished a fair statement before the Hon’ble Supreme Court of India in W.P.No.94 of 2012 regarding the strength of the trained candidates. In the year 2012 the State Government had conducted the Teachers’ Eligibility Test wherein 20584 trained candidates had appeared and from them 1089 candidates were selected and 17704 untrained candidates were selected which clearly proved that the State Government had shown much interest and favouritism towards untrained candidates. As per the statement of the State Government about 40000 vacancies are available for the post of Primary Teacher. Now 51495 trained candidates are available beside R.C.I. approved trained candidates, therefore, the untrained candidates need not be considered at this juncture. As per the statement of the State Government about 40000 vacancies are available for the post of Primary Teacher. Now 51495 trained candidates are available beside R.C.I. approved trained candidates, therefore, the untrained candidates need not be considered at this juncture. As per the guidelines in the Teachers’ Eligibility Test, the untrained candidates are not eligible to appear in the above mentioned Teachers’ Eligibility Test. As such the relaxation as granted by the Central Government is not appropriate. The State Government taking diversive stand becomes inconsistent, as of now the relaxation granted by the Central Government is not enforced, therefore the Teachers’ Eligibility Test conducted on 11.10.2015 becomes inappropriate, hence it cannot be proceeded with. Therefore, the very competent Counsel entreats the Court to allow the above writ petition. 19. Per contra, the learned Counsel for the State submits that up to 2013 the strength of the trained candidates was 11601, during the relevant period the vacancies for Primary Teachers was 34599, therefore, sufficient candidates are not available across the State of West Bengal, hence the State Government made a representation to the Central Government under Section 23 (2) of the Right of Children to Free and Compulsory Education Act, 2009 and Rule 18 of The RTE Rules 2010, framed thereunder, the same was scrutinized by the Central Government with relevant documentary proof and granted the relaxation for a period of one year, the said period could not be utilized by the State Government due to the Election Commission Notification for conducting General Election in the State of West Bengal. For selecting the candidates to fulfil about 40000 vacancies the Education Board had conducted the Teachers’ Eligibility Test on 11.10.2015, now the result is ready for announcement. On an earlier occasion the State Government had availed similar relaxation and the same was duly executed, consequently the successful candidates have been appointed who comprise of trained and untrained candidates, as such the petitioners /trained candidate’s fundamental rights and personal rights will not be affected since the process of selection adopted by the State Government is in a proper manner. The highly competent Counsel further submits that in order to improve the educational standard of West Bengal the legal and logical approach of the State Government and the Central Government is the grant of relaxation which is suitable for execution for the welfare of the students and about 40000 candidates will secure appointments. As such both categories of candidates will be benefitted and the State Government can update the educational standard across the entire state of West Bengal. The State Government has never denied an opportunity for such trained candidates and they are being treated equally, hence the highly competent Counsel for the State entreats the Court to dismiss the above writ petition. 20. The learned Counsel appearing for the respondents are adopting the arguments of the learned State Counsel. 21. From the above discussion, the views of this Court is as under: (1) The intention of the State Government to provide free and compulsory education to the poor students as per the mandated of The Act. Therefore, the State Government in order to fulfill about 40000 vacancies across the entire State of West Bengal sought permission under Section 23 (2) of the Right of Children to secure Free and Compulsory Education Act, 2009 and Rules framed thereunder for the second time. Similar permission has been obtained on an earlier occasion and the same was executed after adopting necessary norms and procedures for appointing the candidates. As such the second relaxation period has been granted by the Central Government which will not affect the trained candidates since the State Government can come forward to fulfil the larger vacancies with the strength of a combined force of trained and untrained candidates. (2) The Ministry of Human Resource and Development Department had issued a notification for an extension of relaxation for a period of one year with effect from 01.04.2015 wherein appropriate conditions have been imposed. As per the conditions the trained candidates rights will not be affected. (3) Pursuant to the notification dated 01.04.2015 the State Government has conducted the Teachers’ Eligibility Test on 11.10.2015 wherein the trained candidates have appeared which clearly proved that the all candidates have openly admitted to the notification and participated in the examination and are waiting for the result, as such their privileges will not be affected in any manner if the State Government had strictly followed the notification and selection process. Hence there is no impediment whatsoever on the side of the respondents. (4) The notification dated 01.04.2015 was in force up to 31.03.2016 within the said specified period and the selection process would not be carried out due to the General Election notification being published for the State Assembly Election. Under these circumstances, if this Court permits the respondents in order to complete the selection process, the characteristics and objects of the students will not be jeopardised. (5) As per the serious allegation made by the trained petitioners that if they find any irregularities or illegalities or gross violations in any form whatsoever, lapse or shortcoming in the TET and in selection process which going against the trained candidates welfare, the petitioners are at liberty to file a revision petition against any such violation before this Court. Therefore both parties are not permitted to file an appeal against this order due to the main issue of the students’ welfare and employment of about 40000 teachers which is of paramount important. 22. Considering the facts and circumstances of the case and arguments advanced by the highly competent Counsels on all sides, on perusing the annexed documents, the views of this Court as mentioned above from 1 to 5, the above writ is disposed of accordingly. The interim order has been vacated. 23. There shall be no order as to costs. 24. Urgent Photostat certified copies of this judgment, if applied for, shall be given to the parties as expeditiously as possible.