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Tripura High Court · body

2020 DIGILAW 9 (TRI)

Subrata Karmakar v. State of Tripura

2020-01-13

AKIL ABDUL HAMID KURESHI, ARINDAM LODH

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JUDGMENT : Akil Abdul Hamid Kureshi, C.J. 1. Petitioner has challenged the vires of Recruitment Rules for the post of Headmaster and Assistant Headmaster/Headmistress promulgated by the State Government vide notification dated 31.10.2006. 2. Brief facts are as under: Petitioner has the qualification of M. Sc (Mathematics). He is also physically handicapped candidate. Tripura Public Service Commission (T.P.S.C. for short) had issued advertisement on 31.12.2013 inviting applications for 48 temporary posts of Assistant Headmasters/Assistant Headmistresses in the Higher Secondary Schools of the State Government and 87 temporary posts of Headmasters/Headmistresses in such schools. Educational qualifications prescribed were Masters/Honours degree in respective subject with minimum 45% marks from any recognized University and BT/B.Ed. from any recognized University or T.Ed from specified Universities. Experience for the post in question which is at the centre of the controversy, was as under: "Experience for both the posts:- (i) At least 07(seven) years regular teaching experience in any Government/Government aided High/Higher Secondary Schools. If adequate number of ST/SC candidates with requisite experience are not available, relaxation for a maximum period of 2(two) years in experience criterion shall be allowed to the ST/SC candidates" 3. The petitioner possesses the education qualification. He also had more than 13 years of experience, out of which 12 years was from a recognized unaided School, the remaining experience was from an aided School. The petitioner, therefore, applied for the post in question. The respondents published a notification dated 18.05.2015 in which the posts for physically handicapped candidates were kept vacant on the ground that there was no suitable/eligible candidate available. The petitioner has, therefore, challenged the said notification to the extent of the above mentioned declaration. In this context the petitioner has also challenged a portion of Headmaster/Headmistress, High Schools/Inspector of Schools Recruitment Rules, 2006(hereinafter to be referred to as the Recruitment Rules) which prescribes the experience for the posts in question. 4. The Government of Tripura has promulgated the said rules under notification dated 31.10.2006. These rules contained a schedule which prescribes the age limit, qualifications in other matters relating to the posts in question. Item No. 7 of the schedule pertains to education and other qualifications required for direct recruitment and reads as under: “7. Education and other qualifications required for direct recruitment :- a) Educational qualification. i) Master Degree/Honours Degree in any subject securing at least 45% marks from any recognized University with academic good records. Item No. 7 of the schedule pertains to education and other qualifications required for direct recruitment and reads as under: “7. Education and other qualifications required for direct recruitment :- a) Educational qualification. i) Master Degree/Honours Degree in any subject securing at least 45% marks from any recognized University with academic good records. A relaxation of 5% marks shall be allowed to the ST/SC candidates. (ii) B.T/B.Ed. from any recognized University/T.Ed(6 months abridge course certified by Tripura University/CETE from IGNOU (6 months certificate course). b) Experience. (i) At least 7(seven) years regular teaching experience in any Government/ Government aided High/ Higher Secondary Schools. If adequate number of ST/SC candidates with requisite experience are not available, relaxation for a maximum period of 2(two) years in experience criterion shall be allowed to the ST/SC candidates. (ii) Knowledge of Bengali or Kak-Barak.” 5. Learned counsel for the petitioner submitted that the prescription of seven years regular teaching experience only from Government or Government aided schools contained in the said rule is wholly arbitrary. He contended that excluding the experience of a candidate gained by him from unaided but recognized school is an irrational condition. No rationale is pointed out to exclude the experience of such a candidate. Counsel referred to the decision of the Supreme Court in a case of Dr. Asim Kumar Bose Vrs. Union of India and others; reported in (1983) 1 SCC 345 in which the teaching experience of a candidate from part-time employment was also recognized. He also referred to a decision of Division Bench of this Court in case of Bimal Kumar Chanda Vrs. Dr. Ratna Roy and Ors.; reported in (2015) 1 TLR 676 in which also the experience from part-time employment was recognized. 6. On the other hand, learned counsel for the respondents submitted that the advertisement specified the experience requirement which was in consonance with the statutory rules. The petitioner was not qualified as per such requirement. He was, therefore, not considered for the post in question. They also defended the vires of the Rule. 7. Short question to be considered is whether the relevant rule prescribing the experience for appointment to the post in question is unconstitutional. We may recall the Recruitment Rules prescribe educational and experience qualifications required for the post in question. We are not concerned with the educational qualifications prescribed. They also defended the vires of the Rule. 7. Short question to be considered is whether the relevant rule prescribing the experience for appointment to the post in question is unconstitutional. We may recall the Recruitment Rules prescribe educational and experience qualifications required for the post in question. We are not concerned with the educational qualifications prescribed. Insofar as experience is concerned the rule prescribes at least seven years of regular teaching experience in any Government/Government aided high/higher secondary schools. In essence thus the experience required for the post in question is a minimum seven years of teaching experience from Government or aided school. This rule thus excludes the experience of a candidate gained while working as a teacher in a non-aided school. In other words, the rule confines the zone of selection of Headmasters/Assistant Headmasters to those teachers who have or are working in Government or Government aided schools. If a teacher has more than seven years of working experience while teaching in an unaided school, by virtue of this provision he would be declared as ineligible. 8. In our opinion, this distinction made by the Rule is wholly irrational and arbitrary. At the outset we may notice that the Recruiting Rules are framed in exercise of subordinate legislation. Under the circumstances such legislation does not enjoy the same degree of immunity from challenge to its vires as in case of the law framed by the Union or the State legislature. A subordinate legislation, is open to challenge on the ground that the same is in breach of any of the fundamental rights or often constitutional provisions or is beyond the power of the legislature. It can also be challenged on the ground that it is ultra vires the powers vested in the subordinate legislation or is unreasonable or arbitrary. We may also record that the Supreme Court in case of Shayara Bano Vrs. Union of India and Others (Ministry of women and Child Development Secretary and others) reported in (2017)9 SCC 1 has also recognized an additional ground for challenge even to a law framed by the Union or the State legislature namely that the same is manifestly arbitrary. 9. With this background, we may revert back to the provision under consideration. The prescription of certain length of experience before a candidate can be considered for the post of Headmaster or Assistant Headmaster, cannot be objected. 9. With this background, we may revert back to the provision under consideration. The prescription of certain length of experience before a candidate can be considered for the post of Headmaster or Assistant Headmaster, cannot be objected. However, the question in the present case is the source of such experience. As per the rule only that experience which a candidate has gained out of his engagement as a teacher in Government or aided school which would satisfy such requirement. Any length of service as a teacher in unaided school would not count towards the experience requirement. In our opinion there is no distinction in the work putting by a teacher in either aided or unaided school. The reasons and the background under which a school may be aided or unaided could be many. In a given case or self finance school may refuse to apply and receive aid from the Government. In yet another case, the school may be desirous of receiving government aid but the government on account of its limited resources or its policy, may not even able to include the school in the grant-in-aid scheme. Whether the school in which a teacher is working on regular basis, receives aid or does not receive aid, cannot be a factor which in any manner can have any bearing on his experience for the purpose of his candidature for the post of Headmaster/Assistant Headmaster. As long as the school in which he is employed is a recognized school, the same would be subjected to same scrutiny and regulatory controls by the State school board. The level of educational standards required to be maintained in both set of schools i.e. recognized aid school and a recognized unaided school therefore, would be identical. There is therefore, no warrant to presume that the efficiency, quality of work or work performance of a teacher teaching in an aid school would in any manner be better than one who is teaching in an unaided school. This distinction, therefore, drawn by the State legislature is wholly unwarranted and would not stand the test of Article 14 of the Constitution of India. All teachers for the purpose of teaching experience whether working in an aided or unaided school form a homogenous class. There cannot be a further sub classification between teachers working in aided and those working in unaided schools. 10. All teachers for the purpose of teaching experience whether working in an aided or unaided school form a homogenous class. There cannot be a further sub classification between teachers working in aided and those working in unaided schools. 10. It is by now well settled starting from the Constitution Bench judgment of the Supreme Court in case of Budhan Choudhry and others; reported in AIR 1955 SC 191 that Article 14 prohibits class legislation but not reasonable classification. However, in order to be reasonable, the same must satisfy the twin conditions of the legislature prescribing a differentia which distinguishes a group of persons or things from the rest and which differentia has a reasonable nexus to the purpose sought to be achieved by the legislation. In the present case, we do not discern any rationale differentia which can be said to be reasonable. The relevant portion of the rule is, therefore, clearly ultra vires Article 14 of the Constitution. It is, therefore, declared that for the post in question the experience gained by a candidate from regular teaching in any Government or aided or unaided recognized school will be included. 11. Coming to the relief that can be granted to the petitioner in view of such conclusion, we may recall that the advertisement was issued in the year 2014. The petitioner himself applied though as per the Recruitment Rules he was not qualified. Many other candidates who may be qualified on the basis of the declaration that we have made just now, would have been persuaded not to apply. The petitioner, therefore, cannot seek the direction that he must be selected and appointed to the post in question pursuant to the advertisement in question. Instead, the petitioner can only get a declaration that in the future whenever the State of Tripura/T.P.S.C. undertake the exercise for filling up the posts in question, the petitioner shall be considered as eligible. It is clarified that since this petition was pending since 2015, if any such advertisement is issued hereafter, the petitioner shall be granted age relaxation for the period from the date of filing of the petition till today. 12. With these directions petition is disposed of. Pending application(s), if any, also stands disposed of.