A.Inbarajan v. The Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/31/2023 A.Inbarajan VS.

The Union of India and others Mrs. Anjili Nag ... for the petitioner Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the Administration September 25, 2023 [SR] Item No. 4 Admittedly the petitioner has passed class XII examination in the year 2001 and subsequently qualified Junior Basic Training (JBT) in the year 2012. A little prelude to the litigation is adumbrated before we embark our journey on the terrain of the dispute raised by respective litigants concerning eligibility of the petitioner to be appointed to the post of a Primary School Teachers. The Andaman and Nicobar Islands was badly hit by Tsunami in the year 2004 and unfortunately considerable numbers of the Primary School Teachers were missing or lost their life.

There was dearth of the teachers and in order to restore and regulate the education life of the students, the education department took initiative to engage the volunteers for which the students of the Katchal Island will be benefitted. However, a list was prepared on 15.01.2005 containing the name of several volunteers who ventured to impart education to the students and the petitioner was figured in serial no. 4 therein.

During the visit of the Home Minister, a consultative decision was taken with the Lieutenant Governor with regard to such volunteers working as a teacher in the said Island and a conscious decision was sought to be taken to engage them as a Serva Siksha Contract Teachers (SSCT). Several educational helpers or teachers having a higher qualification were also rendering their services in the field of education in the said islands and a decision was taken that they should be paid a fixed rumination per month which would be evident from the several notes and the orders passed from time to time in the year 2005.

The attention is also drawn to the decision of the administration that all qualified candidates working as educational helpers of the Katchal Island will be engaged SSCT after getting an approval from the administration as a special case. It is further pointed out that untrained candidates who have passed class XII examination and engaged in such manner shall tender their willingness to undergo two years JBT course subject to the approval of the NCTE. What appears from the stand taken by the administration that the teachers having class XII qualification must acquire the training as JBT so that they may be considered for appointment as a Primary School Teacher in future.

The birth of the dispute can be visualized from an Order No. 2283 dated 07.07.2017 when the Administration communicated the decision of the Lieutenant Governor in according relaxation in terms of the qualification and age in

exercising of the powers under Rule 5 of the recruitment rules for the post of Primary School Teachers to five applicants which necessarily includes three such candidates having a class XII qualification with JBT.

The said decision led various litigations to reach to the tribunal claiming parity and ultimately were accorded such benefits by appointing then as a Primary School Teachers. The petitioner along with three others candidates moved a tribunal application being OA No. 1524 of 2021 before the Central Administration Tribunal seeking their appointment as a Primary School Teachers.

The said Original Application was disposed of on 21st July, with the finding that the moment the administration has appointed the similarly circumstanced persons to the post of a Primary School Teachers, the case of those applicants including the petitioner should also be consider and directed the competent authority to take a conscious decision on the representation made by them in this regard.

By an order No. 2412 dated 16.12.2022 the Deputy Director of Education (Perl.) disposed of the said representation rejecting the claim of the petitioner on the ground that at the time of the initial appointment under the Serva Siksha Contract Teacher he did not acquire the JBT qualification which was in fact acquired in the year 2012. It is further observed that the petitioner has crossed upper age limit and therefore is not suitable for the post of Primary School Teacher.

The Tribunal by the impugned order extensively quoted the entire decision taken by the authority on 16.12.2022 and without returning an independent finding on the claim raised by the petitioner surreptitiously arrived at the conclusion that since the petitioner was not duly qualified at the time of their initial engagement, therefore is not entitled to claim parity.

However, a point is sought to be raised before us that the authorities have perpetrated an act of discrimination in making a classification within the class by appointing the teachers having higher qualification and sparing the petitioner despite the fact that the minimum educational qualification for the post of the Primary School Teacher is XII pass with JBT qualification. According to the petitioner such classification is unreasonable, irrational and does not indicate any differentia with the other group of persons constituting the said class and, therefore, such act of discrimination violates the provision of Article 14 of the Constitution.

On the other hand, the respondent says that all such candidates who have been appointed initially along with the petitioner had higher educational qualification and it was conscious decision of the administration to appoint them as the Primary School Teachers as the students would be benefitted from their knowledge and there is real distinction between the petitioner and those person having a higher qualification which is permissible under the law.

It is further submitted that there is no absolute fetter in making a classification within the class if it is real and based on a intelligible differentia.

As indicated hereinabove the engagement of the teachers under the Serva Siksha Abhiyan is to tide over the crisis faced by the said island due to Tsunami which not only impaired the normal human life but causes a devastating effect in taking the life of many teachers. Obviously the students cannot wait for tomorrow they need to be addressed today. The administration invited the volunteers having a requisite educational qualification to impart education to those primary school students. Purpose of engaging such volunteers teachers is laudable to meet the deficiency faced during the Tsunami and several notes which are annexed to the writ petition would reveal that conscious decision was taken to accord them a fixed remuneration per month depending upon the qualification which they possess. Even during a meeting held on 14.07.

2005 a resolution was taken that the untrained candidates who have completed plus two / degree may be asked to tender their willingness to undergo two years JBT course for which the necessary action is to be initiated to get approval from NCTE for enhancement of intake to the tune of 15 to 26 for the session 2006-07.

and it is not in dispute that he acquired such qualification having undergone such training in the year 2012. The Order Nos. 2283 dated 07.07.2017 throws a light on the above issue where two educational helpers namely Jeeva Rani and Janaki Devi were appointed as Primary School teachers after specific approval of the Lieutenant Governor in the year 2005. It would further reveal from the said order that five candidates who were kept at par with the aforesaid two persons had a master's degree with B.Ed., whereas they were only having a class XII pass qualification with JBT.

By the said order the relaxation was granted in exercise of power conferred under clause 5 of recruitment rules framed for the purpose of recruitment of Primary School Teachers with the rider that it will not be treated as a precedent for any other requirement under the Directorate of Education. The aforesaid order was passed on 10.07.2017 and such benefit was extended to those candidates who at such point of time stand on same pedestal including petitioner who had the JBT in the year 2012.

A point is sought to be taken by the petitioner that the B.Ed. degree cannot be considered as higher degree more particularly when the recruitment is made to the post of Primary School Teachers for the purpose of imparting education up to Class V. Apex Court in the case of Devesh Sharma vs. Union of India and others (Civil appeal No. 5068 of 2023 decided on 11.08.2023) held that by including a B.Ed. degree as qualification for teachers for primary school

the stand of the government was against the provision of the constitution and the laws.

The Apex Court repelled the contention of the Central Government that B.Ed being the higher qualification and, therefore, shall benefit to primary school students in the following:

"In the present case and in the larger context of the matter, we cannot even see this as a policy decision. But without getting 44 into this argument, even presuming for the sake of argument that the decision taken at the Government level to include B.Ed. as a qualification for teachers at primary level is a policy decision, we must say that this decision is not correct as it is contrary to the purpose of the Act. In fact, it goes against the letter and spirit of the Fundamental Right enshrined in the Constitution under Article 21A. It is against the specific mandate of the Act, which calls for a free, compulsory and meaningful primary education to children. By including B.Ed. as a qualification for teachers for primary school, the Central Government has acted against the provisions of the Constitution and the laws.

The only logic given by the Central Government to include B.Ed. as a qualification is that it is a 'higher qualification'. This we have already seen is not correct." It admits that no ambiguity that the moment statutory Rules fixed the minimum educational qualification, creating a class by treating the higher qualified candidates as a separate class within the homogeneous class has to be pass the muster of equality in public employment enshrined under Article 14 of the Constitution of India. Article 14 provides that the State shall not deny any person equality before law or equal protection of the law within the territory of India.

reasonable, rational and based upon an intelligible differentia.

Ordinarily a person constituting a homogeneous class cannot be sub-divided so as to give more preference to a minuscule proposition of the person having a higher qualification when the minimum educational qualification is fixed under the regulation.

The conglomeration of the person having a higher qualification competing for the post containing the bare minimum educational qualification cannot be perceived to be reasonable based on intelligible differentia. The classification within the class must have a reasonable nexus with the object to be achieved. Had it been a case that a person having higher qualification shall be given a preference in comparison to a person having a lesser qualification when both secured the same marks in the recruitment examination, can be considered as reasonable and rational but for the purpose of an employment by ignoring the minimum educational qualification and putting the standard of higher qualification as the criteria cannot be held to be a reasonable in absence of any amendment brought in the Recruitment Rules.

training course at the initial appointment when the petitioner was also appointed.

The aforesaid power of relaxation was exercised in the year 2017 when admittedly the petitioner had JBT training course and, therefore, the parameter have to be judged on the date when the power of relaxation was exercised and the classification within the homogeneous class i.e.

the candidates having class XII qualification with JBT have been sub-divided with the person having JBT qualification at the time of initial appointment and the JBT qualification acquired subsequently, does not appear to be logical, reasonable and rational.

Furthermore, imparting an education at the elementary level i.e. upto Class V does not require higher standard of educational qualification as the skill and the tool for imparting education to such children can be gained by undergoing with the training programme like the JBT conducted by the NCTE.

We thus do not find the stand of the authorities in denying the petitioner an equal opportunity for being considered along with the aforesaid two persons nor we find any rational in creating or sub-dividing a class within the class is justified. Therefore, the Tribunal ought to have interfered with the speaking order passed by the authority. The order of the Tribunal is set aside. The order No.2412 dated 16th December, 2022 passed by the Deputy Director of Education (Perl) is also set aside. The said

authority is directed to reconsider the case of the petitioner afresh in the light of the observations made hereinabove and it is expected that the said authority would record a proper reasons.

The entire exercise shall be completed within six weeks from the date of communication of this order. With the above observations and directions, the writ petition is thus disposed of. No order as to costs. Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.

( Harish Tandon, J. ) ( Rai Chattopadhyay, J. )