Swarnajit Basu & Ors. vs Union Of India & Ors.

The aforesaid two applications have been filed for addition of parties in the pending writ petition. The applicants in the aforesaid applications claim to

be similarly placed as the applicants in CAN 1 of 2021.

The Court, by order dated 19th February, 2021, was pleased to allow CAN 1 of 2021 by adding the applicants therein as party respondents in the writ

petition.

In the same line, the aforesaid applications for addition of parties stand allowed. The applicants in CAN 2 of 2021 and CAN 3 of 2021 are added as

party respondent in the present writ application.

CAN 2 of 2021 and CAN 3 of 2021 accordingly stand disposed of.

Learned advocate for the petitioners is directed to amend the cause title of the writ petition accordingly and serve a copy of the writ petition upon the

learned advocate appearing on behalf of the added respondents.

CAN 4 of 2022

The present interlocutory application has been filed by the writ petitioners praying for an order restraining the West Bengal Board of Primary

Education (herein after referred to as the ‘Board’ for the sake of brevity) from publishing any panel or merit list or recommending or recruiting

the candidates having B.Ed qualification for filling up 738 vacancies of Assistant Teachers in primary schools under various District Primary School

Councils.

The writ petition originates from the recruitment notification dated 23rd December, 2020 published by the Board for filling up the vacant 16,500 posts

of Primary Schools Teachers from candidates possessing inter alia B.Ed qualification.

In the writ petition the petitioners prayed for a declaration that B.Ed qualification is not equivalent to two-year diploma in elementary education and

thus inclusion of B.Ed training qualification in the

recruitment notification dated 23rd December, 2020 is illegal, arbitrary, unjust, discriminatory and in violation of Article 14 of the Constitution.

Prayer has also been made for not giving effect and/or further effect to the requirement of possessing B.Ed qualification for recruitment of Assistant

Teachers in primary schools pursuant to the recruitment notification dated 23rd December, 2020.

Prayers for passing interim order were also made in the writ petition.

The petitioners were prompted to file the interlocutory application after getting knowledge of the judgment delivered by the Hon’ble Division

Bench of the

High Court of Rajasthan on 25th November, 2021 in D.B. Civil Writ Petition No. 1853 of 2021 along with a bunch of other writ petitions wherein the

Hon’ble Division Bench was pleased to set aside the impugned notification of NCTE dated 28th June, 2018.

By the notification dated 28th June, 2018, NCTE, in exercise of powers conferred by sub-Section 1 of Section 3 of Right of Children to Free and

Compulsory Education Act, 2009 and in pursuance of the notification issued by the Department of School Education and Literacy, made certain

amendments in the NCTE notification dated 23rd August, 2010. By the said amended notification, candidates possessing graduation degrees with at

least 50% marks and Bachelor of Education were considered eligible for being appointed as primary school teachers.

The said amended notification also laid down that candidates who acquired the qualification of B.Ed from any NCTE recognized institution shall be

considered for appointment as teacher in classes I to V provided, the person so appointed as teacher shall mandatorily undergo a six-month Bridge

Course in Elementary Education recognized by NCTE, within two years of appointment as primary teacher.

According to the petitioners, appointment of primary school teachers should be from candidates possessing D.El.Ed and not B.Ed qualification.

The petitioners submit that as the notification dated 23rd June, 2018 has been set aside by one of the High Courts of the country, the said notification

cannot be subsequently relied upon by the respondents for recruitment of primary school teachers.

In support of the aforesaid contention the petitioners have relied upon the judgment delivered by the Hon’ble Supreme Court in the matter of

Kusum Ingots and Alloys Ltd. â€"vs- Union of India & Anr. reported in (2004) 6 SCC 254 paragraphs 1, 2, 3, 19-23, wherein the Court held that an

order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final, keeping in view the provisions

contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India, subject of course to the

applicability of the Act.

The petitioner has also relied upon an unreported judgment delivered by the Hon’ble Division Bench of the High Court at Madras on 16th October,

2014 in WA No. 56 of 2011 (Union of India â€"vs- Textile Technical Tradesmen Association & Ors.) wherein the Court held that the Union Territory

was not justified in issuing notification by invoking provision which was not in existence on the day the notification was issued. The notification in

question was set aside by the Andhra Pradesh High Court and the same was sought to be applied by the Union Territory of Puducherry.

At this stage, it is the primary contention of the petitioners, that as the notification dated 28th June, 2018 has been set aside by one of the High Courts

of this country, no effect can be given to the same till the order passed by the Hon’ble High Court is set aside/modified/varied by a superior

forum.

It has further been submitted that no effect can be given to the said notification even in respect of future recruitment process as long as the order of

the Hon’ble Rajasthan High Court holds the field.

The submissions of the petitioners have been vehemently opposed by the respondents. It has been submitted that the petitioners being participants in a

recruitment process cannot file writ petition praying for fixing the eligibility criteria of a competitive examination. The power of fixing the eligibility

criteria lies with the examination conducting body and the examinees do not have a say in the matter. The process of recruitment started in 2020 and

the same ought not to be interfered with at this stage. Prayer for interim order made by the petitioners was not allowed by the Court at the initial stage

and accordingly no order ought to be passed stalling the process when the same is nearing completion. Rights of third parties who have already been

appointed or who may be appointed and not impleaded as parties in the instant writ petition may be infringed if any order is passed without giving them

an opportunity of hearing.

It has been submitted that the order passed by the Hon’ble Rajasthan High Court does not have a binding effect in the State of West Bengal. The

balance of convenience and inconvenience does not favour grant of the interim order as prayed for by the petitioners.

Reliance has been placed on the judgment delivered by the Hon’ble Supreme Court on 18th November, 2020 in Civil Appeal No. 3707 of 2020

(Ram Saran Maurya & Ors. â€"vs- State of UP & Ors.) reported in 2020 SCC Online SC 939 wherein the Hon’ble Supreme Court held that

B.Ed candidates were rightly allowed to participate in the selection process for appointment of primary school teachers.

It has been submitted that any order passed at this stage interfering with the recruitment process will amount to grant of final relief without giving

opportunity to the parties to file their pleadings.

I have heard and considered the submissions made on behalf of all the parties.

From the order sheets of the writ petition it appears that the writ petition was taken up for consideration and heard extensively by the Court on several

dates, however the interim order prayed for by the petitioners, though not categorically refused, was not passed in their favour. The recruitment

process continued unhindered on and from the publication of the recruitment notice on 23rd December, 2020. Admittedly, the writ petition was heard

extensively on several occasions by different Benches of this Court but at no point of time the petitioners were successful in obtaining an interim order

in their favour.

Presently, out of the 16,500 notified vacant seats only 738 seats are left to be filled up. The said 738 seats have been earmarked and kept vacant for

being filled up by candidates who filed their applications offline pursuant to specific order(s) passed by this Court. The aforesaid vacancies are not

new vacancies and no new recruitment process has been initiated for filling up the same. The vacancies are being filled up in accordance with the

existing recruitment notification dated 23rd December, 2020.

At this stage, if the prayer of the petitioners for grant of interim order is allowed and candidates possessing B.Ed qualification are debarred from

participating in the recruitment process, then the same will amount to changing the rules of the game at the stage of its conclusion. A different

yardstick ought not to be applied for filling up only 738 seats out of the total 16,500 vacancies. The same will amount to unreasonable discrimination,

contrary to provision of Article 14 of the Constitution.

There may be many candidates who have been given the benefit of their B.Ed qualification. The same benefit cannot suddenly be taken away or

restricted in respect of the prospective candidates seeking appointment in the balance 738 vacancies arising out of the same recruitment notification.

The Recruitment Rules ought to apply uniformly in respect of all candidates who applied either online or offline pursuant to the recruitment notice and

the eligibility criteria ought not to be changed when the recruitment process is nearing completion.

The position and status of the petitioners on the date of publication of the recruitment notice and on the present date is the same. Only change in the

meantime is passing of the order by the Hon’ble Division Bench of the Rajasthan High Court quashing the impugned notification dated 28th June,

2018. The Hon’ble Supreme Court in Ram Saran Maurya (supra) upheld the decision of NCTE enabling B.Ed candidates to participate in the

recruitment process of primary school teachers.

The order passed by the Hon’ble Supreme Court, being the law of the land, has to be accepted by this Court instead of relying upon the order

passed by the Rajasthan High Court.

No new factual change has arisen warranting interference by the Court, at this stage. Passing any order at this stage will unsettle many events which

may have, by now, been settled by and between the parties.

It is an admitted fact that as on date the petitioners are ineligible to participate in the recruitment process. Whether the petitioners herein will ultimately

succeed in the instant writ petition is a different question altogether, but at this stage, interfering with the recruitment process, at the instance of

ineligible candidates, in my opinion, will not be proper. The same is bound to have adverse effect on candidates in whose favour certain right may have

been accrued and who are not parties to the instant writ petition and have not been heard as yet.

Affidavits in the writ petition have not been exchanged. Passing any order in the matter, at this stage, without giving an opportunity of hearing to all the

respondents to place their case by way of affidavits will amount to violation of the principles of natural justice and audi alteram partem. No further

injustice will be caused to the petitioners if order is not passed in their favour at this stage, but passing any order against the successful candidates will

cause serious prejudice to them leading to evil and civil consequences.

As regards passing any restraint order in respect of future recruitment process does not arise at this stage. The same will be considered as and when

occasion so arises.

As direction has not been passed as yet for filing affidavit in opposition to the main writ petition, the Court thinks it fit to direct the respondents,

including the added respondents, to file affidavit in opposition within a period of three weeks, reply, if any, be filed within ten days thereafter. The

matter shall be treated as ready for hearing immediately after completion of affidavits.

Liberty to mention.

CAN 4 of 2022 stands disposed of.

Urgent certified photocopy of this order, if applied for, be supplied to the parties on compliance of usual legal formalities.