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The Bengal Districts Act, 1836 ]
The Constitution Of India 1949
Cricket Association Of Bengal & ... vs State Of West Bengal & Ors on 24 March, 1971

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Calcutta High Court
West Bengal Primary Organiser ... vs The State Of West Bengal And Ors. on 7 July, 2006
Equivalent citations: (2007) 1 CALLT 96 HC
Author: J Bhattacharya
Bench: J Bhattacharya



JUDGMENT
 

Jyotirmay Bhattacharya, J.

1. The petitioner No. 1, a registered Association of Primary Organiser Teachers of West Bengal alongwith its General Secretary and President filed this writ petition claiming different reliefs against different set of respondents in this writ petition.

2. The reliefs which are prayed for by the petitioners against the respondent Nos. 7 and 8, are as follows:

A) A writ in the nature of Mandamus calling upon the respondent authorities:

i) to act in accordance with law;

ii) to cancel, recall, withdraw notification of the District Project Officer, "Sarva Sikshya Abhiyan", South 24-Parganas bearing No. DPEP & SSA/South 24-Parganas dated illegible being annexure 'p/8' hereto;

B) A writ in the nature of Certiorari calling upon the respondents to produce and/or cause to be produced all the relevant records of this case so that on perusing the same justice may be done between the parties by quashing the impugned notification of the District Project Officer, "Sarva Sikshya Abhiyan", South 24-Parganas bearing No. DPEP & SSA/South 24-Parganas dated illegible being annexure 'p/8' hereto and the actions taken so far on the basis of that notification;

C) A writ in the nature of Prohibition, restraining the respondent authorities and their sub ordinate officers from acting and/or proceeding in any manner whatsoever including from appointing/engaging "Para Teachers" in Primary Schools on the basis of the said notification of the District Project Officer, "Sarva Sikshya Abhiyan", South 24-Parganas bearing Memo No. DPEP & SSA/South 24-Parganas dated illegible being annexure 'p/8' hereto;

3. The reliefs which are prayed for by the petitioners against the South 24-Parganas District Primary School Council in the said writ petition are as follows:

A) A writ in the nature of Mandamus calling upon the respondent authorities:

iii) to act and/or proceed to fill up vacancies in Primary Schools under South 24-Parganas District Primary School Council in accordance with the procedure provided under the Recruitment Rules framed under the West Bengal Primary Education Act, 1973;

iv) to start proceeding for filling up 590 vacant post of Primary Teachers as were directed to be kept vacant by the Division Bench of this Hon'ble Court by Order dated 20.7.1999 passed in MAT No. 1758 of 1999, as per Rules and calling the organiser Primary Teachers as per the direction given by the Judgment dated 22.7.2004 passed by this Hon'ble Court in W.P.No. 15632(W) of 1998.

4. Since different reliefs have been claimed against different set of respondents, this Court proposes to deal with the petitioners' different claims against different respondents separately.

5. Let me first of all consider the petitioners' claim with regard to the reliefs which are prayed for against the respondent Nos.7 and 8 as indicated hereinabove.

6. The petitioners claim those reliefs by challenging the legality and/or validity of the notification issued by the District Project Officer, Sarva Sikshya Abhiyan, South 24-Parganas being annexure 'P-8' to this writ petition whereby the modalities for selection and/or engagement of 2127 Para Teachers at the primary level and 2969 additional Para Teachers at the secondary level in different schools in the District of South 24-Parganas, were notified.

7. Mr. Sen, learned Advocate, appearing for the petitioners submitted that if Para Teachers are appointed in the Primary Schools under the said Scheme of Sarva Sikshya Abhiyan, then the implementation of the right of the Organiser Primary Teachers in the State, to be considered for appointment in the regular vacant posts in different primary schools in the State along with other eligible candidates which was recognised by the Division Bench decision of this Court in the case of West Bengal Board of Secondary Education v. State of West Bengal and Ors. reported in 1997 (1) CLJ 165 para 257 will be a remote impossibility. By placing strong reliance on paragraph 257 of the said decision, Mr. Sen submitted that not only their right to be considered was recognised by the Division Bench of this Hon'ble Court in the said decision but the Director of School Education was also directed to considered the desirability of relaxation of the age bar in suitable cases if it is permissible in law.

8. For convenience of understanding, paragraph 257 of the said Division Bench Judgment which the petitioners claim to be their sheet anchor of their rights, is set out hereunder:

257. However, there cannot be any doubt that the cases of those organiser primary teachers and in fact the cases of all teachers working in privately managed schools should be considered along with other eligible candidates keeping in view the fact that they had been working for a long time. The Director of School Education shall consider the desirability of relaxation of the age bar in suitable cases if it is permissible in law.

9. Mr. Sen further contended that if the existing vacancies in different primary schools are allowed to be filled up by the Para Teachers under Sarva Sikshya Abhiyan Scheme, then the members of the petitioner No. 1 will be deprived of an opportunity for participating in the selection process for the posts of Primary Teachers in different schools under district 24-Parganas (South).

10. Mr. Sen further pointed out that even the eligibility criteria for engagement of Para Teachers is different from the eligibility criteria for the posts of primary teachers under the Rules framed under Sections 66(1) and 66(2) of the West Bengal Primary Education Act, 1973.

11. Mr. Sen further pointed out from the annexure 'P-8' to this writ petition that the condition of service of the Para-Teachers and the mode of selection of the Para Teachers are completely different from the condition of service of the primary teachers and the mode of selection of such primary teachers in the approved primary schools in West Bengal. As such, Mr. Sen contended that the vacant posts for the primary schools cannot be filled up by Para Teachers by following the modalities as fixed in the impugned notification being annexure 'P-8' to this writ petition.

12. Mr. Sen also pointed out from another Judgment passed by a learned single Judge of this Court on 13th May, 2005 in W.P. No. 21406(W) of 2005 being annexure 'R-2' to the affidavit-in-reply to the affidavit-in-opposition of the respondent Nos. 5 and 6 wherein it was held that Para Teachers cannot be appointed under Sarva Sikshya Abhiyan by the District Project Officer in the existing schools by following the procedure prescribed for such appointment inasmuch as such procedure is contrary and/or inconsistent with the selection procedure which is prescribed under the relevant Rules framed under West Bengal Primary Education Act, 1973 for appointment of the teachers at the primary level.

13. Mr. Sen also pointed out from another Judgment of a learned single Judge of this Court passed on 22nd July, 2004 in W.P. No. 15632(W) of 1998 being annexure 'P-7' to this writ petition at page 98 wherein the learned single Judge of this Court, after taking into consideration the long period which the petitioners spent for their cause and also by taking note of the fact that the rights of the organiser teachers was protected by the decision of the Division Bench as above, relaxed the maximum age limit of the members of the petitioner No. 1 to the extent of 50 years.

14. By referring to the said Judgment, Mr. Sen submitted that the members of the petitioner No. 1 who are within 50 years of age cannot be excluded from the selection process for the post of primary teacher in different schools in South 24-Parganas.

15. Mr. Sen further pointed out from annexure 'P-8' to this writ petition that the maximum age limit for the Para Teacher was fixed at 45 years as on 30th June, 2004 in the said notification. Thus, the said notification which is inconsistent with the Judgment and/or order passed by the learned single Judge of this Court in W.P. No. 15632(W) of 1998 cannot be given any effect to.

16. Under such circumstances, Mr. Sen submitted that the notification issued by the District Project Officer, South 24-Parganas being annexure 'P-8' to this writ petition cannot be retained on record.

17. Mr. Mukherjee, learned Senior Advocate, appearing for the respondent Nos. 7 and 8, explained the object of introduction of the said Scheme by the Central Government in details. Mr. Mukherjee submitted that Article 21A of the Constitution of India casts a duty upon the State to provide free and compulsory education, to all children of the age of 6 to 14 years in such manner as the State may, by law determine.

18. Mr. Mukherjee submitted that to fulfil the said object, the Central Government has formulated a Scheme known as Sarva Sikshya Abhiyan to provide necessary fund to the State not only for appointment of Para Teachers on contractual basis for a temporary period but also for setting up proper infrastructure in the schools, for construction of school building for accommodating more students therein, motivating the guardians to send their children to the schools for their education, distribution of mid-day-meals etc., so that literacy at the age of 6 to 14 years can be achieved for all children in India within the said age group.

19. Mr. Mukherjee pointed out from paragraph 14 of his clients' affidavit-in-opposition as well as from the Scheme itself that no provision has been made under the said Scheme for giving any appointment to any Para Teacher on permanent basis. The said Scheme provides that Para Teacher will be engaged for a temporary period so long as the regular vacancies of primary teachers in the approved schools in West Bengal are not filled up by following the relevant Rules and/or procedure prescribed under the Statute.

20. The notification dated 9th March, 2005 which was issued by the Government of West Bengal being annexure 'P-1' to the application for vacating interim order at page 24 thereof was also brought to the notice of this Court to show that such engagement of Para Teachers will be given against the temporary vacancies and such Para Teachers shall not be treated for any purpose as "teachers" within the meaning of "teacher" under the West Bengal Primary Education Act, 1973 and the Rules framed thereunder. It is also specifically mentioned in the said notification that such vacancies shall not affect the normal strength of the school.

21. Mr. Mukherjee submitted that the Sarva Sikshya Abhiyan Scheme is entirely funded by the Central Government.

22. Mr. Mukherjee further contended that the regular vacancies which are required to be filled up by the concerned authority as per the provisions of the Rules framed under the West Bengal Primary Education Act, 1973, cannot be filled up under the Sarva Sikshya Abhiyan.

23. Mr. Mukherjee pointed out that the modalities of appointment, the conditions of service, eligibility criteria, appointing authority, the source of fund are entirely different from each other under the West Bengal Primary Education Act and Sarva Sikshya Abhiyan. That apart, in paragraph 14 of the affidavit-in-opposition, the said respondent has also made it clear that whenever regular appointment will be given to the vacant post by the concerned authority as per the provision of the said Act and the Rules framed thereunder, the Para Teachers will be withdrawn immediately.

24. Thus, Mr. Mukherjee submitted that there is no possibility of conflict in implementation of the said Scheme, so far as giving engagement of Para Teacher in approved primary school is concerned with the process for giving appointment of regular primary teachers in the vacant posts in the primary schools as pointed out by Mr. Sen by following the extant rules under the West Bengal Primary Education Act, 1973.

25. Mr. Mukherjee, thus, prayed for rejection of this writ petition, so far as the reliefs which were claimed by the petitioners against the respondent Nos.7 and 8 are concerned.

26. Mr. Gupta, learned senior Advocate, appearing for the respondent Nos. 5 and 6, submitted in addition to the submission of Mr. Mukherjee as recorded hereinabove that the petitioners cannot maintain this writ petition so far as the reliefs which the petitioners have claimed against the respondent Nos.7 and 8 are concerned without challenging the legality of the Scheme and/or the guidelines issued by the Central Government for implementation thereof. Mr. Gupta contended that no one can conceive of such a situation that the scheme and the guidelines will remain operative but those schemes will not be allowed to be implemented.

27. Mr. Gupta thus, submitted that no relief can be granted to the petitioners even with regard to the prayers as contained in prayers (A)(i) and (ii), (B) and (C) in the writ petition.

28. With regard to the reliefs which the petitioners claim against the respondent Nos. 5 and 6 are concerned, Mr. Gupta further submitted that his client, viz., South 24-Parganas District Primary School Council has been taking up steps at regular interval for filling up the vacant posts of primary teachers in different schools in the district. Mr. Gupta in his usual fairness submitted before this Court that his client will not deny the opportunity of participating in the selection process for the vacant posts of primary teachers in the district to any of the members of the petitioner No. 1 subject to satisfaction of the eligibility criteria for the concerned post.

29. Mr. Gupta further submitted dhat his client will follow the directions of the Division Bench of this Court which were passed on 3rd May, 2006 in F.M.A No. 294 of 2005 being annexure 'R-1', to the affidavit-in-reply of the petitioners, in the process of selection of primary teachers.

30. Mr. Gupta further pointed out from the said decision that since the age relaxation which was granted by the learned single Judge in the Judgment passed on 22nd July, 2004 in W.P. No.l5632(W) of 1998 being annexure 'P-7' to this writ petition at page 98 was not maintained in the Division Bench decision of this Hon'ble Court being annexure 'R-1' to the affidavit-in-reply, the Council cannot allow the members of the petitioner No. 1 to participate in the selection process by relaxing the age bar.

31. Heard the learned Advocates of the parties. Considered the materials on record.

Re: Reliefs claimed against the Respondent Nos. 5 & 6:

32. The petitioners' right of participation in the selection process for appointment to the posts of primary teachers along with the other eligible candidates was recognised by the Division Bench decision of this Court in the case of West Bengal Board of Secondary Education v. State of West Bengal (supra). Mr. Gupta also made it clear that his clients will allow the members of the petitioner No. 1 to participate in the selection process whenever such selection process will be initiated for the concerned post, subject to satisfaction of their eligibility criteria.

33. The Division Bench of this Hon'ble Court held in the said decision that Rule 3D which was substituted in the extant Rules vide notification dated 11.9.1980 is intra vires. In view of the said decision, this Court can safely conclude that the members of the petitioner No. 1 cannot claim any right of appointment in any school as Organiser Teacher at the time of grant of recognition to such school.

34. In such view of the matter, this Court simply directs the respondent Nos. 5 and 6 to allow the members of the petitioner No. 1 to participate in the selection process, if they apply for the same, subject to fulfilment of the eligibility criteria. In view of the subsequent Division Bench decision passed on 3rd May, 2006 in MAT No. 2909 of 2004 being annexure 'R-1' to the affidavit-in-reply at page 25, this Court cannot direct the Council to allow the members of the petitioner No. 1 to participate in the selection process for the said post by relaxing the age bar up to 50 years in terms of the order passed by the learned single Judge of this Court on 22nd July, 2004 in W.P. No. 15632(W) of 1998 which was not maintained in the appeal as aforesaid.

Re: Reliefs claimed against the Respondent No. 7:

35. This Court holds that the petitioners cannot maintain their challenge with regard to the validity and/or legality of the notification being annexure 'P-8' to this writ perition without challenging the parent Scheme and guidelines issued by the Central Government pursuant to which the said notification was issued.

36. This Court, thus, holds that on this score alone, the reliefs which were prayed for by the petitioners against the respondent Nos. 7 and 8 can be refused by holding that the writ petition is not maintainable so far as the reliefs which are claimed by the petitioners concerning the notification being annexure 'P-8' to this writ petition are concerned.

37. That apart, on examination of the Scheme, viz., Sarva Sikshya Abhiyan Scheme and the guidelines issued for implementation thereof by the Central Government as well as the notification issued by the Slate Government as referred to above, this Court has come to the conclusion that there cannot be any chance of conflict in the implementation of the Scheme under Sarva Sikshya Abhiyan for engagement of Para Teachers with the implementation of the selection process for appointment primary teachers by the concerned authority under the relevant statute and/or the Rules framed thereunder, inasmuch as this Court does find any provision in the said Scheme which is overlapping on the other.

38. The Sarva Sikshya Abhiyan Scheme was formulated only to provide engagement of Para Teacher on temporary basis which will continue until the vacant posts of teachers are filled up by the concerned authority by following the relevant statute and the rules framed thereunder. The life of the said Scheme is time bound. As such there is no scope of giving any permanent appointment of any Para Teacher in this regular vacant posts of teachers within the meaning of "teacher" under the West Bengal Primary Education Act, 1973.

39. Thus, the engagement of Para Teacher is purely made on a stopgap basis to provide teachers in primary schools so long as appointment to the regular post is not given by the concerned authority.

40. The respondent No. 7 in his affidavit has also made it clear that the Para Teachers will be withdrawn as soon as the appointment will be given to the primary teachers on regular basis.

41. In such view of the matter, 1 cannot accept the submission of the petitioners to the effect that in fact the vacant posts of primary teachers are being filled up by appointment of the Para Teachers in the primary schools.

42. On consideration of the materials on record and the submissions made by the learned Counsel of the respective parties, this Court holds that the object of providing free education to the children between age group 6 to 14 years as provided under Article 21A of the Constitution of India will be frustrated if implementation of the project is obstructed.

43. This Court cannot be unmindful about the object of implementation of the said Scheme which was introduced to provide free education to the children and not for securing service to the teachers. Keeping in mind, the said object of the Scheme read with Article 21A of the Constitution of India, this Court holds that the interest of the organiser teacher cannot be given precedence over the children's education.

44. The Judgment of the learned single Judge of this Court being annexure 'P-7' to this writ petition which was cited by Mr. Sen has been admittedly stayed in appeal which is evident from annexure 'P' to the application for vacating interim order at pages 14 to 23.

45. That apart, I find that the subject-matter of challenge in the said writ petition is completely different from the present one. In the said writ petition, the petitioners therein prayed for implementation of the Sarva Sikshya Abhiyan Scheme, whereas the petitioners herein opposed implementation of the Scheme. Since there is no identity of facts in both these writ petitions, the decision which was given in the said writ: petition in a different context, cannot be a guiding factor for deciding the dispute involved in this writ petition.

46. Furthermore, the legality and/or validity of the Scheme and/or the guidelines were not under challenge in the said writ petition. Judgment delivered on an issue not raised in pleading, but decided though not argued by the Counsel, cannot have any binding effect.

47. Under such circumstances, the prayer for quashing of the notification being annexure 'P-8' to this writ petition cannot be allowed.

48. Before parting with, this Court also feels it necessary to record that admittedly the primary schools where the Organiser Teachers are working have not yet been approved and/or sanctioned by the Government. It is also an admitted fact that the respondent No. 7 has not taken any step to engage any Para Teacher in any of the schools where the petitioners are working.

49. In such view of the matter, the petitioners in any way cannot be affected if the Para Teachers are engaged in the other approved and/or sanctioned primary schools in the district.

The writ petition, thus, succeeds in part.

The interim order passed earlier, thus, stands vacated.

Urgent xerox certified copy of this Judgment, if applied for, be given to the parties, as expeditiously as possible.