Manimala Dutta vs State of West Bengal

M.H.S. Ansari, J.—The instant writ application is filed, inter alia, praying for directions as under:

A writ of Mandamus or in the nature of Mandamus thereby quashing/rescinding/setting aside the order of the Respondent No. 3 as per letter Memo No. 93/I-LS dated 16.3.98 being annexure ''J'' to this application;

A writ of Mandamus or in the Nature of Mandamus commanding the Respondent No. 3 to consider and approve the panel of the Assistant Teacher under Work Education propared and submitted finally by the School Authority looking into the interest and requirement of the Schooi and according to approved project ''Tailoring and Needle Work'' for Baranagar Mayapith Narisiksha Ashram by Respondent No. 4.

The D.I.S.(SE) granted prior permission for preparation of panel for certain posts to be filed up in Baranagar Mayapith Narisiksha Ashram High School by his Memo No. 12/G dated January 4, 1997.

We are concerned in the instant case with regard to the posts of Assistant Teacher in the un-reserved category. In the said prior permission dated January 4, 1997, the qualification prescribed was:

Female candidate graduate with P.G.B.T. or its equivalent.

On the request of the school authorities (Annex. ''C''), the D.I.S. (SE) by his memo dated August 6, 1997, modified the previous memo dated January 4, 1997, and described the qualifications as under:

A female candidate having Graduate with full course of Work Education training to follow 2nd stage of Latest recruitment rules.

The school authorities requested the employment exchange to sponsor lady candidates for the said post having Lady Brabourne Diploma with three (3) years training certificate.

The candidates sponsored by the employment exchange were interviewed and a panel was propared. The panel was sent for approval to the D.I.S. (SE).

The Petitioner filed W.P. No. 24518(W) of 1997 which was disposed of by an order dated November 18, 1997, directing the D.I. of Schools to consider the panel and dispose of the same in accordance with the law within the time framed therein.

Another writ application being W.P. No. 24392(W) of 1997 was filed by one of the candidates whose name had not been included in the panel. The Petitioner herein was private Respondent No. 7 in that writ petition.

W.P. No. 24392(W) of 1997 was disposed of by an order dated November 25, 1997. It was observed therein that the D.I. of Schools (SE) found that the list propared by the school deserved recasting and, therefore, the panel was sent down to the management for recasting the panel. In the order dated November 25, 1997, it has been further observed as under:

Since the preparation of the panel has not been made final, it is for the school authority as well as the District Inspector of Schools to take further action with regard to the posts likely to be filled up and the candidates to be selected for the post of Assistant Teacher;

Looking to the interest of the school and also to avoid further litigation, the earlier order passed by the Court would be deamed to be marged with this order.

The D.I. of Schools (SE) by his Memo dated March 26, 1998, and in compliance with the order of Court dated November 25, 1997, passed the following order;

With reference to the above, the undersigned has to inform him that in compliance with the order of Hon''ble High Court dated 25.11.1997 passed by His Lordship Hon''ble Mr. Justice Basudeva Panigrahi he was requested to re-cast the panel for Asstt. Teacher in Work Education as per marks awarded by the selection committee. But it is a matter of regret that he did not re-cast the panel as per marks awarded by the selection committee instead he had simply sent the previous panel. After scrutiny of the papers it is observed that the panel in question will undertake a change in the petition if assessment is done on the basis of qualification prescribed in to with their 1) Smt. Tapati Sinha 2) Bijoya Barik 3) Monimala Dutta.

The school authorities by the said order dated March 26, 1998, of D.I. of Schools (SE) were requested to recast the panel as per marks obtained by the candidates and submit the same for approval.

This order dated March 26, 1998, being Annex. ''J'' to the writ application has been impugned in the instant writ application.

It is the contention of the Petitioner that the school in question has been working under an approved project and the qualification for such project under Work Education requires teachers having the qualification of ''Tailoring and Needle Work''. According to the Petitioners, Lady Brabourne Diploma of three years practical training certificate is the requisite qualification for assistant teacher in Work Education. It is further contended that because of such requirement, the D.I. of Schools (SE) on the request of the school authorities modified the provious permission. The employment exchange, however, has sponsored candidates possessing qualifications of B.A. Hons., M.A. B.Ed, in Work Education along with the candidates who have B.A. with Lady Brabourne Diploma. The selection committee, it was contended has prepared a panel of candidates having B.A. with Lady Brabourne Diploma as that is the requirement of the school. Though the other candidates having B.A. Hons., M.A. and B.Ed. qualifications were sponsored, they have been allotted higher marks for their educational qualification, they were not considered by the selection committee as suitable for the job. It is, therefore, contended that such persons who do not have Lady Brabourne Diploma cannot be considered to be placed in the panel merely because of their higher educational qualifications. The recasting of the panel by the D.I.S. (SE), in those circumstances solely on the marks allotted to other candidates by the selection committee based on higher educational qualifications is improper and illegal, it was contended. The short point for consideration is whether only candidates such as the Petitioner having the qualification of B.A. with Lady Brabourna Diploma can be considered for the post of Assistant Teacher in Work Education.

An affidavit-in-opposition has been filed on behalf of the Respondent No. 5, the school authority. It is stated that the school in question was upgraded from Junior High School to Secondary School and it was also approved that the institution shall conduct course in Needle Work and Fruit Preservation. The same was subsequently revised and the institution was required to conduct Tailoring and Needle Work. Reference has been made to the prior permission granted by the D.I.S. (SE) in his Memo No. 12/G dated January 6, 1997, and its modification at the request of the institution. According to the school authorities, the said modification was necessary as the approved scheme of the institution is Tailoring and Needle Work and, therefore, the essential qualification is Lady Brabourne Diploma. Reliance has been placed upon the Memo No. 772-Edn(s) dated July 8, 1974, which clarifies the requisite qualifications for Work Education Group. It is admitted by the school authorities that it prepared a panel only out of those candidates having Lady Brabourne Dipioma for the post of Assistant Teacher in Work Education, though other candidates who appeared before the Selection Board have various qualifications/subject qualifications in P.G.B.T./B.Ed/B.T. in Work Education and get higher marks for their said qualification.

Affidavit-in-opposition has also been filed by private Respondent No. 6, Smt. Tapati Sinha. It is stated that she is fully qualified and eligible for the post of Assistant Teacher in Work Education. She appeared before the Selection Committee with all necessary testimonials and was interviewed. It is further alleged that she Raj Narayan Dutta, the then Secretary of the institution in question is the father of the writ Petitioner, Smt. Manimala Dutta who pressurised the Managing Committee to prepare another pable only with candidates who pessessed Lady Brabourne Diploma in Needle Work which was allegedly forwarded to the D.I. of Schools. The candidates having B.A., B.Ed, with P.G.B.T. Work Education as a method subject from the recognised University cannot be disqualified or excluded. They being eligible for the selection to the said post of Assistant Teacher. The action of the school -authorities of considering only pass graduate with Lady Brabourne Diploma was with a view to include the writ Petitioner in the panel in violation of all norms of fair play and justice. Such action, it was contended, it is violative of Articles 14, 16, 21 and 300A of the Constitution. Various other averments have been made in the said affidavit-in-opposition.

Keeping in view of the question that arises for consideration in the instant application, it is not necessary to deal with the other contentions and various allegations raised.

The reliance by the Petitioner as also by the school authorities upon the Education Department Memo No. 772-Edn(S) dated July 8, 1974, in my view, cannot be constued in the manner it has been sought to be contended. By the said memo No. 772-Edn(S) dated July 8, 1974, the qualifications which are treated as equivalent have been specified. The said circular cannot be read as or construed to mean that the only qualification for eligibility for the Work Education group is Lady Brabourne Diploma. By using the expression ''equivalent'', the position has been clarified by the said Memo to mean that the Lady Brabourne Diploma would be equivalent to the requisite training qualification. The prescribed qualification for the post of Assistant Teacher in Work Education is graduate with P.G.B.T. The D.I.S. (SE) in his prior permission had accordingly stated the qualification as noticed supra that is Graduate with P.G.B.T. or its equivalent. The school authorities sought clarification thereof and the same was clarified by the second memo.

The qualifications for the respective posts in various subjects are as prescribed by the Rules, Circulars and Memos issued either by the Government or the Directorate of Education. The circular upon which reliance has been placed only gives the equivalent qualification that is Lady Brabourne Diploma. While providing equivalent qualification, those with the prescribed qualifications cannot be said to be either ineligible or unqualified. It can only mean that the equivalent qualification is also an eligible qualification. In other words, candidates possessing the prescribed qualifications or the equivalent qualifications are all eligible. Being eligible all such candidates are required to be considered for the post in question.

In the instant case, candidates with the prescribed qualification as also the equivalent qualification were sponsored by the Employment Exchange. The school authorities, however, have excluded from consideration all these candidates who had higher qualifications which are the prescribed qualification and only prepared a panel of these candidates who were having the equivalent qualification. Such action in my view is neither proper nor valid nor conforms to the procedure prescribed in the Recruitment Rules.

I also cannot accede to the submissions that the institution in question requires, assistant teachers having graduate with Lady Brabourne Diploma alone. When the eligibility criteria prescribes the qualification for the post, it is not for the school authorities to take it upon themselves to exclude persons from consideration if they otherwise fulfill the eligibility criteria having the qualification as prescribed. The D.I.S. (SE) is also not the authority that, can prescribe whatever qualification he deems fit for the post. The qulification as noticed supra are prescribed by the Directorate of Education.

In such circumstances, the action of the school authorities in excluding the candidates having the prescribed qualification viz., B.A. Hons., M.A., P.G.B.T., B.Ed., B.T. cannot be said to be valid or proper. Such action has denied to the candidates the right to be considered for the post in question, even though they are eligible for the post in question. The action of the school authorities is, therefore, arbitrary and discriminatory.

I, therefore, find no merit in the writ application and the same is accordingly dismissed.

Urgent xerox certified copy of this order be supplied to the Learned Counsel appearing for the parties, if the same is applied for.

Application dismissed.