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2018 DIGILAW 19 (CAL)

Ruposhree Ganguli v. State of West Bengal

2018-01-04

MIR DARA SHEKO

body2018
JUDGMENT : Affidavit of service filed today be kept on record. Further hearing is concluded by giving opportunity to Mr. Kamalesh Bhattacharya, learned counsel representing the writ petitioner, Ruposhree Ganguli once again, Dr. Madhusudan Saha Roy, learned counsel representing the respondent nos. 2 to 5 and Mr. Manna, learned counsel representing the State respondent and the matter is taken up for delivery of judgment. 1. Mr. Bhattacharya in ventilating the grievance of the writ petitioner at the very inception submitted that the writ petitioner may be apologized for non-incorporation of the relevant documents with the main writ petition for want of proper instruction, which subsequently have been annexed with the affidavit-in-reply to meet the points taken out in the affidavit-in-opposition. 2. Mr. Bhattacharya submitted that the writ petitioner admittedly was appointed in Harishchandrapur Junior High School within the district of Malda in English subject. Further submitted that as the writ petitioner had no B.Ed. training, she submitted application in Vidyasagar Teachers’ Training College, Malda in the prescribed form duly forwarded by the Headmaster and countersigned by the District Inspector of Schools (SE) and after depositing the requisite fees for the first semester, she continued her training course under said college, which was affiliate under the University of Gour Banga, Malda. 3. The grievance is that before examination of first semester when the college sent the documents for registration of the candidature under the University, the registration was declined by the University of Gour Banga on the plea that the writ petitioner did not fulfill the criteria of having 50% marks in graduate course, as prescribed by the National Council for Teacher Education, shortly known as NCTE. 4. Mr. Bhattacharya argued that had there been any grievance as against the candidature, objection could have been raised by the college before admission in the B.Ed. course. Therefore, while the candidate was allowed to be admitted and she was allowed to continue her classes in first semester, then before examination of the first semester, the declinement by the University deprived the petitioner of her educational right in also violation of principle of natural justice. 5. During course of argument Mr. Bhattacharya invited attention of this Court to the non-eligibility list as well as the eligibility list for the year 2016 published by the University of Gour Banga, wherein the name of the writ petitioner was available in the eligibility list. 5. During course of argument Mr. Bhattacharya invited attention of this Court to the non-eligibility list as well as the eligibility list for the year 2016 published by the University of Gour Banga, wherein the name of the writ petitioner was available in the eligibility list. Argued further that as per rules and regulation for admission in B.Ed. course published under the West Bengal University of Teachers’ Training Education Planning and Administration, shortly known as WBUTTEPA, the writ petitioner despite having more than 50% marks in Honours degree, the University illegally declined registration of the candidature of the writ petitioner. That apart, Mr. Bhattacharya invited attention to the text made out in paragraph 11 of the affidavit-in-reply expressing the grievance for discrimination, which according to him, was in violation of Article 14 of the Constitution of India. 6. Mr. Manna, learned counsel representing the State however fairly submitted that if law permits, then any relief can be attributed to the writ petitioner, but by virtue of developing the case through affidavit-in-reply, the writ petitioner cannot expect any relief if in the writ petition the assertions are in want of coupled with documents. 7. Dr. Madhusudan Saha Roy, learned counsel representing the University in the tune of the text of the affidavit-in-opposition restricted his submission pursuant to the circular no. 456(14)-Edn(U)/1U-23/12 dated 11th May, 2012 issued by the Government of West Bengal, Higher Education Department, University Branch informing all concerned that to get admission in B.Ed. course, 50% marks in graduation would be required and that training course would have to be taken only through Open and Distance Learning, shortly known as ODL mode, which would be applicable for in-service untrained primary or secondary teachers. 8. Dr. Saha Roy submitted that since the University would be guided by the rules framed by the NCTE so far as the eligibility is concerned, the University being the affiliated body can not go beyond the prescribed rules. According to him, since the writ petitioner was not having 50% marks in graduation as per NCTE guidelines and since she had taken admission in regular course and not through ODL mode, the declinement for registration of candidature of the writ petitioner to continue in B.Ed. course, was not illegal and therefore, the writ petition is liable to be dismissed. 9. Dr. course, was not illegal and therefore, the writ petition is liable to be dismissed. 9. Dr. Saha Roy also took a plea about maintainability of the writ petition, since NCTE is not made as necessary party to the writ proceeding. 10. At the very outset the question raised by Mr. Saha Roy regarding making NCTE as party should be answered. It is obvious that although the provisions of the Code of Civil Procedure are not applied readily in adjudication of the writ petition, but the principles of the Code of Civil Procedure mutatis mutandis are applicable as far as would be practicable. Taking a que there from this Court observes that amongst the respondents- parties some may be necessary parties and some may be proper parties. In absence of necessary party the matter cannot be adjudicated, meaning thereby the proceeding must suffer for not adding necessary party. But for non-joinder of proper party the proceeding may not suffer. Therefore, though the University is guided by NCTE rules, which are placed before the Court and the matter is under adjudication upon hearing learned counsel for the parties and the rule prescribed by NCTE is now supposed to be interpreted by the Court, the question of addition of NCTE as party to the proceeding, who might have been a proper party with a remote chance is held immaterial and therefore, for non-addition of NCTE as party in this proceeding, the writ petition shall not suffer because no relief has been sought for against NCTE 11. Since Mr. Saha Roy restricted his submission virtually upon the eligibility criteria prescribed by NCTE and circular dated 28th November, 2014 issued by the West Bengal Higher Education Department, let me set out the same which is captioned as follows: “3.2 eligibility: Candidates with at least fifty percent marks either in the Bachelor'’ Degree and/or in the Master'’ Degree in Sciences/Social Services/Humanity, Bachelor'’ in Engineering or Technology with specialization in Science and Mathematics with 55% marks or any other qualification equivalent thereto, are eligible for admission to the programme.” Since the aforesaid text has been repeated along with guideline in the circular no. 456 (supra), relevant portion there from is also set out: “In continuation of this Department’s letter no. 234(14)-Edn(U) dated 16.03.2012 and enclosing memo no. 456 (supra), relevant portion there from is also set out: “In continuation of this Department’s letter no. 234(14)-Edn(U) dated 16.03.2012 and enclosing memo no. 232-SE(Pry)/PTTI-7/2011 dated 16.03.2012 received from the Principal Secretary, School Education Department, I am directed to inform you that the guidelines as mentioned in para 8 of NCTE (Regulations Norms and Procedure) Second Amendment Regulations, 2010 are applicable only in the case of getting B.Ed. Degree under Open and Distance Learning (ODL) mode as per conditions laid down below: Graduation or Post-Graduation with fifty percent marks. Provided that the requirement of 50% marks shall not apply to persons appointed as teachers prior to the commencement of the NCTE (Regulations Norms and Procedure) Second Amendment Regulations, 2010.” 12. To counter the aforesaid text, Mr. Bhattacharya relied upon the uniform curriculum structure in two years B.Ed. course in West Bengal under WBUTTEPA, following NCTE Rules 2014, of which the eligibility criteria under clause 4 as appended to the affidavit-in-reply as annexure R/3, the second and sixth dotted part there from are set out: “Candidates with at least 50% marks either in the Bachelor’s Degree (General) or in the Master’s Degree in school subjects are eligible to apply.” “For candidates with less than 50% marks in the honours degree, the total marks of pass and Honours subjects will be considered. If it becomes 50% or more, that score will be entered in Graduation (General) row.” The aforesaid text of the curriculum structure stands in the same line framed by the NCTE. 13. This is an admitted situation, since there is no opposition to that effect, that the writ petitioner was having Bachelor’s degree with Honours in English. She was appointed in the school under reference for the subject English. She had submitted the application in the prescribed form appending her marks obtained in Bachelor’s degree and said application was duly forwarded by the Headmaster of the School after obtaining countersignature from the District Inspector of Schools (SE). The status of the application at least goes to show that to undergo with the B.Ed. training the school authority as well as the Higher Secondary Education department had no objection, rather approved the act of undergoing with the regular training course of B.Ed. through Vidyasagar Teachers’ Training College under the University within the district of Malda. The status of the application at least goes to show that to undergo with the B.Ed. training the school authority as well as the Higher Secondary Education department had no objection, rather approved the act of undergoing with the regular training course of B.Ed. through Vidyasagar Teachers’ Training College under the University within the district of Malda. This is also admitted position that the writ petitioner had continued her classes of first semester according to the training curriculum from the said college. 14. The dispute arose while registration of the candidature of the writ petitioner was declined by the University on the plea that the writ petitioner had no eligibility criteria. According to the University, as it is apprised by Dr. Saha Roy that in the Bachelor’s Degree course the writ petitioner did not obtain 50% marks and training was not undergone through ODL mode. 15. It is obvious that to obtain Bachelor’s degree there are two modes to pass out, one as Honours and the other as simply pass graduate. If a student having taken admission in Bachelor’s degree with Honours and could not secure qualifying Honours marks but otherwise cleared with the pass marks, then he/she would be declared a pass graduate. Again if a student having taken admission in pass course without any Honours and obtained more than 50% marks, but less than 60%, he/she will be declared as pass candidate with distinction, otherwise if the student gets less than 50% marks, then he/she will be declared as a passcourse graduate. If a candidate takes admission in degree course with Honours but ultimately even fails in Honours subject but secures qualifying marks in pass subjects, can such a candidate be declared as passed candidate? Alternatively, if a student secures Honours marks even more than 50% but fails in pass subjects, can such a candidate be declared as Honours Graduate? Answer in both the cases certainly shall be ‘no’ and ‘no’. In such perception if a candidate takes admission in Degree course with Honours and ultimately secures more than 50% marks in Honours, but could not secure 50% marks in pass subjects, though the candidate passed out well in pass subjects, then what would be the benchmark to determine the status of such a student? In such perception if a candidate takes admission in Degree course with Honours and ultimately secures more than 50% marks in Honours, but could not secure 50% marks in pass subjects, though the candidate passed out well in pass subjects, then what would be the benchmark to determine the status of such a student? In view of interpretation made above, such candidate shall be declared as Honours Graduate entitling him to be honoured with Bachelor’s degree having obtained more than 50% marks. In that case percentage of the marks obtained in pass subjects will be immaterial. Therefore, if a student having secured 50% marks in Honours subject but could not secure more than 50% marks in pass subjects, he cannot be said that he is a graduate having obtained less than 50% marks in Honours subject or a graduate having obtained less than 50% marks. Because such a candidate shall be accepted as an Honours graduate having obtained 50% marks in his Honours subject. 16. Now taking the text quoted above prescribed by NCTE, where the candidate is supposed to have at least 50% marks either in Bachelor’s degree or etc. The WBUTTEPA not in derogation of such NCTE guidelines also formulated the eligibility criteria. From the quoted provision it can be seen that the candidate ought to have got at least 50% marks either in Bachelor’s Degree (General) or in the Master’s degree in school subjects, and, in other clause it appears that the candidate if gets less than 50% marks in Honours degree, but passed out in all subjects, then the total marks of pass and Honours will be considered to assess whether obtaining of 50% marks in average is fulfilling or not. 17. In view of above discussion, there can not be any doubt that while the petitioner had secured more than 50% marks in Honours course and passed out in other subjects that she was having Bachelor’s degree having more than 50% marks and thereby the same itself would qualify her the eligibility criteria prescribed by NCTE, vis-à-vis the circular dated 11th May, 2012 (supra) or of the WBUTTEPA. 18. Now looking to the mark-sheet appended to the prescribed form which was forwarded by the Headmaster of the School after being countersigned by the District Inspector of Schools (SE), out of total marks 800, the writ petitioner obtained 403. 18. Now looking to the mark-sheet appended to the prescribed form which was forwarded by the Headmaster of the School after being countersigned by the District Inspector of Schools (SE), out of total marks 800, the writ petitioner obtained 403. A copy of the mark-sheet as handed over during course of hearing is retained with the record. Therefore, it appears that the writ petitioner secured more than 50% marks in Honours subject and in other subjects the writ petitioner had passed out. Therefore, the marks obtained by the writ petitioner as was appended with the application submitted before the College, was wrongly interpreted by the University and as a result thereof, the act of declining registration of the candidature of the writ petitioner was an act in the nature of arbitrariness, which was illegal and in utter violation of the rules framed by NCTE as well as the circular issued by the Government of West Bengal, specially because the term “Graduation” has been interpreted in details above in exercise of usual common sense. 19. Now, as regard the other part of guidelines embodied in circular no. 456 dated 11th May, 2012 (supra) that in-service untrained teachers would have to get B.Ed. degree only (emphasis supplied) through ODL mode. Purpose of such direction is also apparent from last paragraph of the circular so that the normal activities of the school may not be disturbed. The circular providing some guidelines like present one is supposed to be followed as far as it would be possible, so that, the business of the school may not be affected. But any circular bearing any direction in violation of right to education should not be accepted as mandatory in all case. In other way such direction should not be followed in such manner so that an act if it is possible to be done, is made impossible due to existence to any such undoing direction. Because it may depend upon the infrastructural condition of the Institution, if any one teacher is so permitted to take and complete such B.Ed. course. In the case on hand the Headmaster of the school has recommended, so that the schoolteacher may take training and obviously the training would benefit the school and the students at large in the long run. Such recommendation of the Headmaster has been countersigned again by none else than the District Inspector of Schools (SE). course. In the case on hand the Headmaster of the school has recommended, so that the schoolteacher may take training and obviously the training would benefit the school and the students at large in the long run. Such recommendation of the Headmaster has been countersigned again by none else than the District Inspector of Schools (SE). Therefore, the facts and circumstances of the case can be well accepted as a special case considered by the school authority and it’s higher authority, so that B.Ed. training can be concluded by the writ petitioner through Vidyasagar Teachers’ Training College affiliated under the University of Gour Banga. Therefore, the guideline of the State about taking the training course only through ODL mode can be relaxed as it has been relaxed in this case. 20. Apart from the merit discussed above, the complaint of discrimination in case of another candidate Priya Roy has not been dealt with by the respondent. However, since the case of the writ petitioner gets success on merit, the Court refrains from dealing with the complaint of discrimination, specially because the respondent-University did not deal with the text of paragraph 11 of affidavit-in-reply of the writ petitioner. Be that as it may, on merit this Court observes that the writ petitioner has been made worst sufferer at least mentally for compelling her to come before the Court to overcome the hurdle and ultimately, she succeeds. 21. Therefore, the writ petition stands allowed. The interim order as was passed by this Court giving interim relief, shall be merged with the final result of the writ petition with direction upon the University as well as the College authority to take all incidental steps including registration of the candidate, so that the result of the writ petitioner in respective semesters should be published immediately and there may not be any further sufferance. No order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.