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CASE NO.: Appeal (civil)  7119 of 2003

PETITIONER: Dilip Kumar Ghosh & Ors.                                                  

RESPONDENT: Chairman & Ors.                                                      

DATE OF JUDGMENT: 12/09/2005

BENCH: ARIJIT PASAYAT & H.K. SEMA

JUDGMENT: J U D G M E N T

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

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Government."

"Rule 6.  Qualifications \026 (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 \026

(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

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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

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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."   

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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;

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       3.Learning \026 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 \026 (a) Inspiration and  attention, (b) Repeatation and repeated study. Learning  method \026 recitation and meaning in total or part.

5. Classification of learning \026 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

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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  Medical Council of India & Anr. Vs. State of Rajasthan & Anr,  [(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.         In the case of P.M.Lata & Anr. Vs State of Kerala & Ors.   [(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

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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.