Dilip
Kumar Ghosh & Ors Vs. Chairman & Ors [2005] Insc 480 (12 September 2005)
Arijit
Pasayat & H.K. Sema H.K.Sema,J
This
appeal preferred by the appellants is against the judgment of the Division
Bench dated 14.12.2001 passed by the Calcutta High Court in MAT No.4285/2000
whereby the appeal filed by the respondents herein was allowed by setting aside
the order of the learned Single Judge.
Briefly
stated, the facts are as follows:
The
appellants are the holders of B.Ed. Degree. They applied for the post of
Primary School Teacher in the District of Nadia, West Bengal.
Pursuant
to the advertisement for filling up the post of Primary School Teachers, their candidature
were sponsored by the Employment Officer and their names were forwarded to
Chairman, District Primary School Council for the interview. The trained
candidates who possessed qualification JBT/PTTC who were also sponsored by the
District Employment Exchange were forwarded along with the candidature of the
appellants. The appellants along with other trained teacher candidates were
directed to appear for written test to be held on 18.7.1999. However, they were
denied awarding marks against the training qualification as they were not
holders of Junior Basic Training/Primary Teachers Training Certificate
(JBT/PTTC).
Aggrieved
thereby, the appellants filed a writ petition which was allowed by the learned
Single Judge. On appeal being preferred by the respondents herein, the Division
Bench set aside the order of the learned Single Judge and the writ petition was
dismissed, hence, this appeal by special leave.
(a)
The whole controversy revolves around for determination is as to whether the
appellants who have obtained B.A./B.Ed./Ph.Ed degrees can be equated with the
candidates who are the holders of Junior Basic Training/Primary Teacher
Training Certificate for the purpose of appointment to the post of Primary
School Teacher under the Rules.
(b)
What is the true and correct interpretation and ambit of Rule 2(n) of the
Recruitment and Leave of Teachers in Primary Schools in West Bengal Rules of
1991(hereinafter referred to as the 'rules').
In
order to address the aforesaid two issues, it is necessary to have a quick
survey of the provisions of rules relevant for the present purpose.
It is
significant to note that Rules were framed for Recruitment and Leave of
Teachers in Primary Schools in West Bengal.
"Rule
2(n) defines 'Trained Candidate' means a candidate who has obtained a Junior
Basic Training/Primary Teacher Training Certificate or equivalent issued under
the authority of the Director or any other officer empowered in this behalf by
the Government." "Rule 6. Qualifications (a) No person shall be
appointed by the Council as a teacher unless he satisfied the conditions:
(i) that
he is a citizen of India; and
(ii) that
he is not below 18 years of age and above 40 years of age; and
(iii) that
he possesses the minimum educational qualification as mentioned in sub-rule
(b);
(b)
The required educational qualifications for the post of teacher shall be-
(i)
School Final/Madhyamik pass or equivalent, or;
(ii)
Higher Secondary (XI-Class) pass under the West Bengal Board of Secondary
Education or equivalent.
(c)
The decision of the State Government on the question of equivalence for the
purpose of sub-rule (b) shall be final.
(d) No
extra credit shall be given for higher academic qualification at the time of
selection of a teacher; (emphasis supplied).
Provided
that a trained candidate shall be given extra credit in the manner prescribed
under sub-rule ) of Rule 9.
(e) A
trained candidate belonging to schedule tribe category who have not passed Madhyamik
examination or its equivalent shall be eligible for appointment as teacher in
Primary School." Rule 9. Selection Procedure
(a) On
after the names of the candidates for the posts of teachers are obtained from
the employment exchange, all candidates shall be communicated in writing to
produce testimonials certificates for computation of their marks in the score
sheets prepared for the purpose of such selection.
(b)
Credit shall be given and computed in the following manner:
(i) there
shall be 100 marks in total as full marks;
(ii) the
full marks shall be allotted to four different aspects of the candidate'
eligibility in the following manner:-
1. Academic
qualification 65 marks
2.
Training 20 marks
3.
Written Marks/Oral Interview 10 marks
4.
Co-curricular activity 5 marks --------------------- Total 100 marks
--------------------
(iii) the
percentage of marks to the total full marks obtained by the candidate in School
Final/Madhyamik/Higher Secondary (XI Class) shall be computed as percentage of
64 and recorded in the score sheet, and if a candidate has passed two of the
above public examinations, the better result only shall be computed.
(iv)
the percentage of marks to the total full marks obtained in Junior Basic
Training Certificate Examination or equivalent shall be computed as percentage
of 20(twenty) and recorded in the score sheet;
(v) marks
obtained in the interviews shall be recorded in the score sheet;
(vi)
In awarding marks for co-curricular activities one mark shall be credited for
each of the certificate mentioned below:-
(A) a
candidate that he/she has represented the district in State level games,
sports, issued by district level sports authority;
(B) a
certificate that he/she has shown excellence in cultural activities
representing the district in State level competitions issued by district level
authority;
(C) minimum
'A' certificate of Natinal Cadet Corps;
(D) a
certificate of successful participation in literating the illiterates by a
district level officer;
(E) a
diploma/certificate in Music/Arts and Craft on completion of a course of at
lease one year's duration from any University/recognized Government
institutions;
Provided
that the maximum of such marks to be credited shall not exceed five.
vii)
18 (eighteen) marks shall be credited for academic qualification to an eligible
candidate belonging to Scheduled Tribe category who have required qualification
as mentioned in sub-rule ) of Rule 6. Awarding of marks for training, interview
and co-curricular activities shall be done in accordance with clauses (iv), (v)
and (vi) respectively.
(c) (i)
The total marks obtained by each candidate for academic qualification training
and co-curricular activities shall be computed in the manner prescribed in
clauses (iii), (iv) and (vi), and a list of names of all candidates of each
category, namely, Scheduled Caste, Scheduled Tribe, physically handicapped and
others shall be prepared in descending order of total marks obtained by them;
(ii)The
Staff Selection Committee in its meeting shall finalise the total number of
candidates from the top of the lists mentioned in clause (i) of sub-rule ), to
be called for interview. The number of candidates to be called for interview
shall be five times the number of vacancy unless the total number of candidates
is insufficient for the same;
(iii)
The candidate selected for interview shall be intimated the date, time and
place for their interview.
(d)
After the interview all the scores shall be recorded and the marks obtained by
a candidate shall be added up and the name of candidates shall be arranged
according to marks obtained in a descending order;
(e)
After the process as laid down in sub-rule (b) is complete, the Selection
Committee shall arrange the names serially down from the top of the list. A
panel of such number of candidates as there are vacancies plus 10% of such
vacancies shall be prepared. The reservation for Scheduled Castes, Scheduled
Tribes and physically handicapped persons shall have to be strictly maintained
in the panel. The panel shall show separately names of Scheduled Tribe,
Scheduled Caste, Physically handicapped and other eligible candidates.
(f)
Thereafter the panel thus prepared shall be placed in the meeting of the
Council for passing and the total number of eligible candidates included in the
panel shall be the same as the number of vacancies plus 10% of such existing
vacancies." Rule 35 of the Rules deals with the repealing provision reads
as under:
"All
rules and orders made under the Bengal (Rural) Primary Education Act, 1930 and
the West Bengal Urban Primary Education Act, 1963 and the West Bengal (Rural)
Primary Education (Temporary Provisions) Act, 1969 regarding appointment of
teachers, contrary to the provisions of these rules are hereby repealed in the
districts where the West Bengal Primary Education Act, 1973 (43 of 1973) has
come into force.
Provided
that appointment of all teachers made with the approval of the Director prior
to the framing of these rules, shall be deemed to have been approved under
these rules." At this stage, we may dispose of the argument of Mr.Vijay Hansaria
learned senior counsel for the appellants. It is his say that the Circular issued
on 27th July, 1971 by the Director of Public
Instructions in which the teachers in the primary schools were considered as
'A' category teachers. It is clear that the aforesaid circular was issued
permitting the incumbents to draw higher pay scales because they were teaching
for a long time in the institution without qualification of JBT/PTTC. This
argument is not tenable because it is well settled principle of law that
circular cannot override the rules occupying the field. This apart, Rule 35 of
the rules, as referred to above, repeals all previous rules and orders and
therefore after the recruitment rules came into force in 1991 the circular of
1971 relied on by the counsel is non est.
We may
also refer the syllabus and courses of studies of the primary teachers training
institutes which reads as under:
"Aim
and Object : Special.
Knowledge:
Formation of scientific idea about child and it's environment, child's demand,
child's growth and child's development.
View
Point and mentality: To be affectional and sympathetic towards the child and to
grow interest on child study.
To
grow mentality on the role of education.
IInd Chapter
:- Education cum Evaluation Teacher's training syllabus has been classified
into four groups:
(A)
Professional knowledge.
(B)Professional
Expertness, practical knowledge of primary school book;
(C)
Practical knowledge.
(D)
Different stages of primary education.
IIIrd Chapter
:-
A)
Professional knowledge:
i)
Modern concept of primary education and it's problem. Aim & Syllabus
ii)
Child psychology and child study.
Syllabus:
i) development
of child:-
a)
Childhood;
b)
Boyhood;
c)
Adolescence;
d)
Early adolescence.
Physical
development, mental development, working development, social development,
speaking development.
2.(A)
At different stages child's demand, problem and it's remedy;
3.Learning
what is learning? Value of learning in human life.
(a)
Initial experience.
(b)
Preservation of experience,
(c)
Review of experience,
(d) marked
off memory.
4.
Learning condition
(a)
Inspiration and attention,
(b) Repeatation
and repeated study. Learning method recitation and meaning in total or part.
5.
Classification of learning Knowledge learning, data collection experience gather,
idea.
6.
Different process of learning method :-
(a) learning
through copy,
(b) learning
through endeavour, learning through under changeable process.
7.
Classification of Students:-
(a) advanced
child,
(b) general
child,
(c) backward
child, cause of backwardness and its remedies. Special arrangement for advanced
child.
8.
Child Philosophy :- Why child philosophy and why ? Different process of child philosophy
:-
(a)
Observation,
(b)
Child/s surroundings (home, school and society) Explanations"
In B.Ed
curriculum such subjects like child psychology is not found. On the other hand,
curriculum is of generic nature deals with subjects like the principle of
education curriculum studies, educational psychology, development of education
in modern India, social organization and instructional
methods etc.
The
rules, as noticed above, were framed primarily for recruitment of teachers for
primary school and the rules were designed to give an incentive to the teachers
who are specifically trained to teach in primary schools. The rationale behind
the framing of this rule is that the JBT/PTTC certificate trained teachers
should be appointed so that they can impart proper education to the primary
school students in terms of the aims and object with a trained hand. The rules
purposely laid an emphasis that all the candidates for teachers in primary
schools who possessed JBT/PTTC should be appointed for the development of the
child. The primary education is upto 4th standard. There is a middle education
and then secondary and higher secondary education. For teaching in the primary
school, therefore, one must know the child psychology and development of a
child at tender age. As already noticed, the candidates like the appellants who
are trained in B.Ed degree are not necessarily to be equipped to teach the
students of primary class. They are not trained and equipped to understand the
psychology of a child of tender age.
It is
in this context, Rule 2(n), Rule 6 and Rule 9 are to be read in conjunction.
Rule
2(n) defines trained candidate. The term 'trained candidate' if read and
understood in the context of appointment of teachers in the primary school,
would mean a candidate who possessed JBT/PTTC. Rule 6(d) as quoted above
expressly put a prohibition that no extra credit shall be given to higher
academic qualification for the purpose of selection of a teacher. A conjoint
reading of Rule 2(n) and Rule 6(d) would make up abundantly clear that for
appointment of a teacher in primary school only the candidates who possessed
the academic qualification prescribed under the rules JBT/PTTC shall be
considered and the candidates like the appellants who possessed higher academic
qualification like BA/B.Ed shall not be given any credit.
What emerges
from the above interpretation of rules, curriculum, syllabus for appointment of
teachers in primary schools are these:
"(i)
In the case of the Junior Basic Training and Primary Teachers Training
Certificate the emphasis is on the development of child. The Primary Education
is upto IV standard. Thereafter there is middle education and then the
secondary and higher secondary education. But in the primary school one has to
study the psychology and development of child at tender age. The person who is
trained in B.Ed. Degree may not necessarily be equipped to teach a student of
primary class because he is not equipped to understand psychology of a child at
that early stage.
(ii)This
is only peculiar to the curriculum of the Junior Basic Training Course and
Primary Teachers Training Certificate Course. Therefore, looking to the
curriculum one can appreciate the distinction between the two courses and same
policy is reflected in Rules framed by the State in exercise of its statutory
power.
(iii)To
accept a proposition that a candidate who holds a B.Ed. Degree, that is, higher
degree cannot be deprived appointment to the post of primary school teacher
would negate the aims and objects of the rules for the purpose for which it is
framed.
(iv)These
rules were framed primarily for recruitment of the teachers for primary schools
and in that context the Rules were designed to give a credit to the candidates
who are specifically trained to teach in primary schools. The idea behind the
framing of these rules was that the Junior Basic Training and Primary Teachers
Training Certificate trained teachers should be appointed so that they can
impart proper education to the child of tender age who require expert and
tending hand.
(v)There
is prohibition contained in Rule 6(d) that no extra credit shall be given for
higher qualification." Having said so, we are also of the view that the decision
involving present controversy are no more res integra. In the case of [(1996) 7
SCC 731] that the Division Bench of this Court considered an identical question
with regard to the registration as medical practitioner of the Medical Council
Act of 1956. This Court held that the qualification of MBBS is a condition
precedent for a candidate being registered in State Medical Register maintained
by the State board. In that case the 2nd respondent though possessed M.Sc.
(Bio- Chemistry) which was the higher qualification included in the schedule
but this Court held unless the 2nd respondent have qualified in medicine he is
not eligible to register as a medical practitioner.
[(2003)
3 SCC 541] the facts of which are identical to the facts of the case in hand.
In that case also the posts were advertised for recruitment to the post of
lower primary/upper primary teachers in Govt. Schools. The qualifications
prescribed for the post in the advertisement published in official gazette
notification was 'pass in TTC' means trained teachers. Instead of selecting
holders of TTC candidate, the candidates holding B.Ed. degree were selected on
ground that B.Ed is higher qualification then TTC. This Court held that in
terms of the advertisement B.Ed degree holders were not eligible for selection.
This Court further held that fixation of qualification for a particular post is
a matter of recruitment policy.
This
Court held at SCC page 546:- "We find absolutely no force in the argument
advanced by the respondents that B.Ed. qualification is a higher qualification
then TTC and therefore, the B.Ed. candidates should be held to be eligible to
compete for the post. On behalf of the applicants, it is pointed out before us
that Trained Teacher's Certificate is given to teachers specially trained to
teach small children in primary classes whereas for B.Ed. degree, the training
imparted is to teach students of classes above primary.
B.Ed.
degree holders, therefore, cannot necessarily be held to be holding
qualification suitable for appointment as teachers in primary schools. Whether
for a particular post, the source of recruitment should be from the candidates
with TTC qualification or B.Ed. qualification, is a matter of recruitment
policy. We find sufficient logic and justification in the State prescribing
qualification for the post of primary teachers as only TTC and not B.Ed.
Whether
B.Ed. qualification can also be prescribed for primary teachers is a question
to be considered by the authorities concerned but we cannot consider B.Ed.
candidates, for the present vacancies advertised. as eligible." The same
view was reiterated in the case of Yogesh Kumar & Ors. vs. Government of
NCT, Delhi & Ors. [(2003) 3 SCC 548].
For
the reasons afore stated, we find no merit in this appeal. The same is
accordingly dismissed with no order as to costs.
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