Joydeb Roy vs Kakali Mondal and Others

Debasish Kar Gupta, J.—1. This appeal is directed against a judgment dated May 19, 2011, passed in the matter of Kakali Mondal v. Joydeb Roy & Ors. (In re: WP No. 12307 (W) of 2009) directing the District Project Officer, Krishnagar, to approve the engagement of the respondent No. 1/writ petitioner to the post of para teacher in Huda Digambarpur Primary School (hereinafter referred to as the said school) within three weeks from the date of communication of the above judgment.

According to the appellant, applications were invited under advertisement bearing No. 553/SSA dated June 10, 2004, from the eligible candidates for engagement of 1328 numbers of additional para teachers in primary schools in the District of Nadia, amongst other vacancies. Pursuant to the above advertisement, nine candidates including the appellant and the respondent No. 1 (a female candidate) participated in the selection process for engagement in the said school, District-Nadia. The appellant and the respondent No. 1 submitted their respective applications for consideration of their candidatures for engagement in the post of Additional Para Teacher in the said school, Gobindapur Gram Panchayat-II, Krishnagar.

After consideration of the candidatures of the aforesaid candidates, the Village Education Committee concern prepared a merit list dated August 16, 2004, of the aforesaid candidates in order of merit. The name of one Nasiruddin Mondal appeared in serial No. 1 (obtaining 52.60% marks), that of the appellant in serial No. 2 (obtaining 45.00% marks) and that of the respondent No. 1 against serial No. 7 (obtaining 41.51% marks) in the above merit list. The District Project Officer, Sarba Shiksha Adhikarik, Krishnagar, Nadia (respondent No. 4) approved the names of the aforesaid Nasisuddin Mondal and Joydeb Roy (serial No. 1 and 2 of the merit list respectively) for engagement as additional para teachers in respect of two vacancies of the said school. The appellant joined in the above school on September 9, 2004. The respondent No. 1 filed an application under Article 226 of the Constitution of India assailing the aforesaid engagement of the appellant on the ground that the decision of engaging the appellant in the post of additional para teacher was taken violating the policy of maintaining reservation of 50% posts for "women teachers" under Sarba Shiksha Avijan.

The affidavit-in-opposition filed by the respondent No. 4. It was stated in paragraph No. 16 the same that there was an undesirable mistake in approving the panel for engagement of additional para teacher in the said school maintaining district wise reservation of 50% of vacancies for female candidates instead of maintaining such reservation school wise. And as a result of which the aforesaid names of Nasiruddin Mondal and that of the appellant were approved for engagement against the vacancies under reference ignoring the candidatures of the respondent No. 1 under the "women teachers" category.

Considering the facts and circumstances, the impugned judgment was delivered. Hence this appeal.

According to Mr. Debabrata Saha Roy, 50% reservation for "women teachers" should be maintained district wise under the framework of Sarba Shiksha Avijan. Drawing our attention towards a communication issued from the State Project Director of the added respondent No. 6 under Memo No. 154/(20)/Ped/PBRPSUS dated February 20, 2004, it is submitted that a district wise indicative figure for engagement of additional para teachers was enclosed to the above communication. From the above communication it transpires that the total number of vacancy for engagement of additional para teachers in primary schools in the District of Nadia (according to DISE ''2002-03'') 1328. Taking into consideration reservation of 50% of the aforesaid vacancies district wise, the names of Nasiruddin Mondal and the appellant were approved by the respondent No. 4.

Our attention has also been drawn to the advertisement dated June 10, 2004, to submit that the last sentence of the above advertisement speaks of maintaining of 50% reservation for "women teachers" for the vacancies under reference in respect of the district as a whole.

It is also submitted by Mr. Saha Roy that the State Government adopted a policy for continuation of the engagement of an additional para teachers till attaining the age of 60 years. The petitioner had been discharging his functioning at that point of time as a consequent of renewal of his engagement from time to time. According to him, the claim of the respondent No. 1 for engagement in the post of additional para teacher in the said school under the category of "women teachers" cannot be sustained in law due to the simple reason of maintaining such reservation district wise.

It is also submitted by Mr. Saha Roy at the time of passing the impugned order, the learned single Judge took into consideration the submissions made by Mr. Sayan De, learned advocate appearing for the respondent Nos. 4, 6 and 7, that the engagement of the appellant expired on September 15, 2010. According to Mr. Saha Roy, the engagement of the appellant was further extended from October 12, 2010 to October 11, 2011 (at page 115).

In reply it is submitted by Mr. Sayan De, learned advocate appearing for the respondent Nos. 4, 6 and 7, that under the programme of Sarba Shiksha Avijan, the States have been allowed to formulate context specific guidelines within the above overall framework for implementation of Sarba Shiksha Avijan. According to him, the practice of at least 50% "women teachers" will be strictly followed. According to Mr. De, guidelines for engagement of additional para teachers at primary level at least 50% of the additional para teachers must be "women teachers". According to above guidelines, the District Sarba Shiksha Avijan Committee is the authority to approve the engagement of para teachers and the VEC/WEC/SDC are the appointing authority of the aforesaid additional para teachers.

Our attention has also been drawn towards the provision of consideration of the question of extension of contract with earlier para teacher by the respective VEC/WEC/SDC, as the case may be. It is also submitted by Mr. De that the respondent No. 4 instructed all the Additional District Inspector of Schools, Nadia, amongst others by a communication issued under Memo No. 589/SSA dated June 17, 2004, directing preparation of school wise registers separately for primary schools for considering the prayer for engagement of additional para teachers in different primary schools in the district. On the basis of the aforesaid documents, it is submitted by Mr. De that there was unintentional departure from the guidelines mentioned hereinabove, due to the mistake cropped up while considering the merit list prepared by Village Education Committee concern for appointment of additional para teachers in the said school.

We have heard the learned counsels appearing for the respective parties and we have considered the facts and circumstances of this case on the basis of the materials on record as also the relevant records produced before us on behalf of the respondent Nos. 4, 6 and 7. After perusal of the above materials on record we are of the opinion that under the framework for implementation of programme of Sarba Shiksha Avijan, the practice of at least 50% "women teachers" should be strictly followed. The State authorities under the Sarba Shiksha Avijan programme have been allowed to formulate context specific guidelines within the above overall framework. The guidelines for engagement of additional para teachers on primary level have been framed by the General Council in its meeting dated January 20, 2004, paragraphs A and B deals with principle of allotment of primary teachers and appointing authority respectively which are quoted below:

"GUIDELINES FOR THE ENGAGEMENT OF ADDITIONAL PARA-TEACHERS AT PRIMARY LEVEL.

The principles of engagement at primary level: A decision was taken in the General Council meeting held on 20th January, 2004 to engage additional teachers on a contractual basis. This decision is expected to not only provide relief to the lakhs of students in primary schools (mainly in rural areas) but also improve the quality of learning by making the pupil-teacher ratio more favourable. This will be a huge exercise and a number of issues need to be sorted out such as the principle on the basis of which teachers will be allotted to schools, qualifications, appointing authority, period of contract and terms of reference of teachers. The following item-wise guidelines may be considered:--

A. Principle of allotment of primary teachers:

i) The position of all teachers in all schools across the districts should be frozen as on 1st February 2004 i.e. further allotment of additional para-teachers recruited to the schools will depend on the teachers in place as on 1st February ''04.

ii) All schools in West Bengal to be made two-teacher schools or else they will not be entitled to get any additional para-teacher. In other words one-teacher schools will not be entitled to an additional para-teacher.

iii) A list of two teacher schools should be prepared and those with an enrolment of greater than 80 should be given one para-teacher.

iv) The two teacher with pupil enrolment greater than 150 should be given two extra para-teachers.

v) If there are posts in hand even after the above teachers have been allotted then in rural areas an additional teacher will be engaged in a school where there are at least three teachers and PTR is greater than 55.

vi) If there are still posts in hand even after the above teachers have been allotted then in urban areas an additional para-teacher will be engaged in a school where there are at least three teachers and PTR is greater than 60.

vii) At least 50% of teachers recruited have to be women teachers.

B. Appointing authority:

� The approving authority will be the District SSA Committee and the appointing authority will be the VEC/WEC/SDC. This is because the VEC/WEC/SDC is best placed to assess the schools'' needs and accordingly will be most competent to appoint the required para-teacher.

� This will be in harmony with the spirit of decentralization and community participation in the process of engagement of para-teachers.

� Teachers will be appointed on a one-year contract which will be signed between the Village Education Committee and the teacher.

� After one year, the VEC/WEC/SDC will review the situation in terms of the eligibility of the school to have a para-teacher as per the guidelines mentioned above. If the schools still qualifies for a para-teacher the earlier para-teacher may be considered for the extension of the contract."

Having considered the Clause A above, we are of the opinion that the above guidelines speak of maintaining reservation of 50% vacancies of additional para teachers for "women teachers" in the primary schools of the State. According to Clause B of the aforesaid guidelines, Village Education Committee is the selection committee for preparation of merit list of the eligible candidates for such engagement as also to consider the question of extension of contract of the earlier para teachers in this case.

After obtaining informations from the respective districts with regard to the number of primary school teachers in the primary schools in different districts in the State the respondent No. 5 directed all the District Project Officers under Sarba Shiksha Avijan to take steps for engagement of additional para teacher in primary schools enclosing indicative figure for such engagement (according to DISE ''2002-03''). The number of engagement of additional para teachers has been fixed at 1328. Accordingly, the panels should have been approved by the respondent No. 4 for engagement of additional para teachers in different primary schools in the district of Nadia maintaining 50% reservation for "women teachers", amongst others.

After considering the merit list prepared by the Village Education Committee, we find that a panel of nine selected candidates has been prepared. The respondent No. 4 approved a panel containing the names of two selected candidates, namely, Nasiruddin Mondal and Joydeb Roy (the appellant). Though the name of the respondent No. 1 (writ petitioner) appeared against serial No. 7 of the merit list as the only female candidate.

It transpires from the communications that the primary schools were directed to maintain a register containing all informations with regard to the existing primary teachers and to send such information to the authority. Therefore, the approving authority was in position to apply mind at the time of recommendation as to whether the name of "male additional para teacher" and/or "female additional para teacher" to fill up single vacancy.

It will not be out of context to observe that in view of the guidelines prepared in the context of the framework of Sarba Shiksha Avijan, preparation of two panels is desirable in respect of male selected candidates and female candidates respectively to enable the approving authority to apply its mind in case of recommendation of the name/names of the selected candidates maintaining 50% reservation for the "women teachers".

We do not find substance in the submissions made by Mr. Saha Roy that in view of the advertisement dated June 10, 2014, the reservation of 50% vacancies should be maintained for "women teachers" district wise, rather it should be maintained school wise for all the districts as discussed hereinabove. In the event any procedural error took place in maintaining male teacher and female teacher ratio in a particular case according to the guidelines discussed hereinabove, the same should not be allowed to be perpetuated in course of judicial review of an error of the above nature.

We further find no substance in the submission made by Mr. Saha Roy that by operation of the circular dated July 22, 2010, the right has been accrued in favour of the appellant to continue with his engagement as additional para teacher of the said school till attaining the age of 60 years. The above circular comes into force when the writ application challenging the propriety of selection of the appellant has been pending. Once the writ application succeeds, the engagement of the appellant is liable to be discontinued adhering to the doctrine of "pendente lite".

Therefore, there was no infirmity of the learned single Judge to arrive at a conclusion that the above panel was erroneous and the approval of the name of the appellant as second empanelled candidate could not be sustained in accordance with the guidelines framed by the Central Council under the framework for implementation of Sarba Shiksha Avijan.

In view of the discussions and observations made hereinabove, this appeal stands dismissed.

There will be, however, no order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.

Md. Mumtaz Khan, J.—I agree.