http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

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;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

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.