Bapi Kandar And Others vs The State Of West Bengal And Others on 27 July, 2018

Calcutta High Court (Appellete Side)

Bapi Kandar And Others vs The State Of West Bengal And Others on 27 July, 2018
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE

The Hon'ble JUSTICE SANJIB BANERJEE

And The Hon'ble JUSTICE ABHIJIT GANGOPADHYAY FMA 1718 OF 2018 (MAT 561 OF 2016)
BAPI KANDAR AND OTHERS

-VERSUS-

THE STATE OF WEST BENGAL AND OTHERS For the Appellants: Mr Bikash Ranjan
Bhattacharya, Sr Adv., Mr Bikram Banerjee, Adv., Mr Sudipta Dasgupta, Adv., Mr Firdaus Samim,
Adv.

For the Board: Mr Lakshmi Gupta, Sr Adv.,

Mr Subir Sanyal, Adv.,
Mr Ratul Biswas, Adv.

For the State: Mr Tapan Kumar Mukherjee, Adv.,

Mr Somnath Naskar, Adv.

For the NCTE: Mr Sauvik Nandy, Adv.

For the Union of India: Mr Swapan Kumar Nandi, Adv.,

Ms Debolina Mall, Adv.

Heard on: July 24, July 25 and July 26, 2018.

Date: July 27, 2018.

SANJIB BANERJEE, J. : -

The propriety of the first Teacher Eligibility Test (TET) conducted in this State is called into
question in the present proceedings. The examination for the year 2012 was held on March 31, 2013.
The appellants assail a judgment and order of February 26, 2016 by which their petition under
Article 226 of the Constitution challenging TET 2012 has been rejected.

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 Bapi Kandar And Others vs The State Of West Bengal And Others on 27 July, 2018

2. TET 2012 was held on March 31, 2013. According to the State, nearly 30 lakh candidates took the
examination. It is also the submission of the State that appointments to more than 17,000 primary
school teachers have been given on the basis of the 2012 TET results. Subsequently, the process of
appointments has been de-linked from TET and passing the TET is now an essential eligibility
criterion for the appointment as a primary teacher.

3. The writ petition was filed towards the end of August, 2013, nearly five months after the TET 2012
was conducted and the appellants participated therein. The appellants claim that the delay in
coming to court was on the ground of collecting information and material, not easily accessible to
TET candidates, relating to the format of the examination, the syllabus and guidelines pertaining
thereto as may have been issued by the National Council for Teacher Education (NCTE). There is no
dispute that the writ petition was filed long prior to the results of TET 2012 being published. Such
results were declared on or about November 22, 2013. Thus, that the writ petitioner-appellants did
not wait for their results nor did they approach the court after being unsuccessful in the
examination. They were in court some five months after the examination, but it was at least three
months prior to the results of the examination being announced.

4. The appellants first place the notification issued by the West Bengal Board of Primary Education
(hereinafter referred to as the said Board) published in October, 2012, The announcement was
intitutled "Appointment Notification for Primary Teachers" and it invited applications for the posts
of Assistant Teachers in government-aided or sponsored primary and junior basic schools under the
District Primary School Council / Primary School Council. The opening line of the notification
prescribed that the rules of TET were indicated in the notification, but a candidate ought to verify
whether he was eligible for the TET from the notified rules available on the government website.

5. The fourth paragraph of the notification detailed the manner of selection.

Clause (a) of such paragraph specified as follows:

"4. Manner of Selection: (a) The Teacher Eligibility Test (TET) shall be held as per
guidelines issued from time to time by the National Council for Teacher Education
and a person who will score 60% or above in the Teacher Eligibility Test (TET)
examination shall be considered as Teacher Eligibility Test (TET) pass provided
relaxation upto 5% marks shall be allowed to the candidates belonging to the
reserved categories ..."

6. Thereafter, paragraph 4 of the notification proceeded to detail the various sections and the marks
allotted for each section. The nature of the questions were also indicated. So much of the notification
is relevant for the present purpose.

7. The appellants then refer to the guidelines for conducting TET issued by the NCTE and forwarded
to all States under cover of a letter dated February 11, 2011. Such guidelines are referred to in
judgments, orders and subsequent notifications as the NCTE TET guidelines of February 11, 2011.
Paragraph 2 of the guidelines in its original form refers to the minimum qualifications laid down by

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the NCTE under Section 23(1) of the Right of Children to Free and Compulsory Education Act,
2009. A copy of such notification is also a part of the guidelines. The avowed purpose for issuing the
guidelines is declared in the third paragraph: that there would be a national standard of teacher
quality in the recruitment process; that the guidelines would induce teacher education institutions
and students at such institutions to improve their performance standards; and, the guidelines could
send a signal to all stakeholders that the government lays sufficient emphasis on teacher quality.
Paragraph 4 of the said guidelines advise that the TET examination be conducted by a suitable
professional body designated by the appropriate government. It also mandates that the TET
examination should be conducted in accordance with the guidelines as spelt out in the subsequent
paragraphs.

8. Paragraph 5 of the said guidelines deals with the eligibility of candidates taking the TET
examination. Paragraphs 6 and 8 of the said guidelines detail the structure and content of the TET.
Paragraph 9 provides that only persons obtaining 60% or more in the TET examination will be
considered as qualified under TET. There is an advisory to governments to give concessions on the
lines of reservation and for TET scores to be given sufficient weightage in the process of recruitment
of teachers.

9. It appears that the State government, by a letter of February 1, 2011, submitted a proposal to the
Union Ministry of Human Resource Development for relaxation of the minimum qualification
norms laid down by the NCTE in its notification of August 25, 2010. In response to such request
from the State government, the Central government issued a notification on June 10, 2011 in
exercise of its authority under Section 23(2) of the Act of 2009, granting certain relaxations
regarding the qualification norms, insofar as they related to teachers for Classes I to VIII. Such
relaxations were to be valid till March 31, 2014 and were subject to several conditions including the
following stipulated as the first condition:

"(i). as specified in the aforementioned (sic,) of the NCTE, the State Government of
West Bengal shall conduct the Teacher Eligibility Test (hereinafter referred to as
TET) in accordance with the Guidelines dated the 11th February, 2011 issued by the
NCTE and only these persons who passed the TET can be considered for
appointment as a teacher in elementary classes;"

10. On July 24, 2012, a notification was published by the School Education Department of the State
amending the West Bengal Primary School Teacher Recruitment Rules, 2001. Rule 9 of the said
Rules of 2001 was substituted and a detailed procedure of selection was incorporated in the Rules.
Amended Rule 9(2) of the said Rules of 2001 proclaims that "the Teacher Eligibility Test (TET) shall
be held as per guidelines issued from time to time by the National Council for Teacher Education ..."
Amended Rule 9(3) of the said Rules of 2001 spells out the manner of TET, where the examination
would be on 100 marks with five sections, each carrying 20 marks. The entirety of Rule 9(3) of the
said Rules of 2001, as amended by the notification of July 24, 2012, was printed as a part of the
notification published in October, 2012 which set the process in motion for TET 2012 to be
ultimately conducted on March 31, 2013.

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11. The appellants submit that in view of the said guidelines of February 11, 2011 and the specific
notification of June 10, 2011 pertaining to this State, TET had to be conducted strictly in accordance
with such guidelines and subject only to the relaxations as permitted by the notification of June 20,
2011 issued by the Central government. In this regard, the appellants refer to amended Rule 9(2) of
the said Rules of 2001 wherein it is acknowledged that TET "shall be held as per guidelines issued
from time to time by the National Council for Teacher Education ..."

12. The appellants also refer to the affidavit filed on behalf of the said Board before the Single Bench.
Paragraph 8 of such affidavit is placed by the appellants for the acknowledgement therein that TET
had to be conducted in accordance with the guidelines prescribed by the NCTE and also for the
admission therein that TET 2012 held in 2013 made a departure from such guidelines.

13. It is pertinent to notice in this context that the Rules of 2001 postulate a mode of examination
that is at variance with the said guidelines of February 11, 2011. The duration of the examination was
curtailed in this State by the said Rules, the total number of marks was proportionately reduced and
at least one aspect of one of the subjects was dropped. However, the petitioners herein cannot be
heard to challenge TET 2012 on such grounds since the mode of conduct of the examination,
including its duration, the number of marks allotted therein and the subjects, were all announced
long prior to the examination being held. If the petitioners had any general grievance that the mode
of conduct of the examination in this State was impermissible, such challenge should have been
launched upon the notification of the examination being published or the Rules of 2001 being
amended in such regard, and, at any rate, prior to the petitioners taking the examination in March,
2013.

14. At the same time, it cannot be missed that the mode of conduct of the examination in this State is
a departure from the said guidelines of February 11, 2011 issued by the NCTE and it may not be
permissible for the State to make such a departure from the guidelines.

15. In other words, the irregularly or illegality in the part of the State in providing for a mode of the
examination which is at variance with the guidelines issued by NCTE is a matter that must not be
missed; but the present appellants' challenge to the propriety of TET 2012 cannot be assessed on
such grounds since the appellants chose to sit for the examination with full knowledge that the mode
of conduct of the examination was at variance with the NCTE guidelines.

16. As to the binding nature of the NCTE guidelines, the appellants refer to a Division Bench
judgment of this court rendered on MAT No.1333 of 2015 (Raja Chatterjee v. State of West Bengal)
in the judgment pronounced on August 31, 2015. The question that fell for consideration before the
Division Bench in that case was whether the duration of TET could be 90 minutes instead of what
had been prescribed in the guidelines of February 11, 2011 by the NCTE. This court clearly held in
such case as follows:

"If the test is to be held as per the guidelines, it follows that the test has to be held as
per the amendments made to the guidelines from time to time, unless the legality of
such amendment has been challenged and has been found ultravires."

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17. As to the duration of the examination, this court held in Raja Chatterjee that "any examination to
be held pursuant to the guidelines dated February 11, 2011 has to provide for duration of 150
minutes and not less than that."

18. The appellants next refer to a judgment reported at 2018 (12) SCC 595 (State of Uttar Pradesh v.
Shiv Kumar Pathak) where the guidelines issued by the NCTE were found to be binding. The first
two sentences from paragraph 17 of the report are of relevance in the present context:

"17. There is no manner of doubt that NCTE, acting as an "academic authority" under
Section 23 of the RTE Act, under the Notification dated 31-3-2010 issued by the
Central Government as well as under Sections 12 and 12-A of the NCTE Act, was
competent to issue Notifications dated 23-8-2010 and 11-2-2011. The State
Government was under obligation to act as per said notifications and not to give
effect any contrary rule ..."

19. In the light of both the Division Bench of this court and the Supreme Court declaring that the
guidelines issued by the NCTE for TET are binding, it is not open to the State to contend to the
contrary or seek to justify TET 2012. But, to repeat, the challenge in this case has to be limited to the
examination itself and not the mode of conduct thereof qua the duration thereof or the total marks
allotted therein.

20. Before the Single Bench, an affidavit was filed by the NCTE. Paragraph 7 of such affidavit clearly
brought out that in the questions set for TET 2012 "several stipulations contained in the NCTE
guidelines have not been adhered to ...". At paragraph 9 of such affidavit it is pointed out that TET
2012 in this State did not question the candidates on pedagogy or on comprehension ability and the
"question paper as framed ... is not in consonance with the TET guidelines given by NCTE ..."

21. The said affidavit filed on behalf of NCTE also contained comments and observations pertaining
to the various subjects covered by TET 2012. On Bengali language, NCTE observed that none of the
specified questions tested the candidates on their proficiency in Bengali as prescribed. In respect of
the English paper, NCTE observed that several of the questions were not related to elements of
language, comprehension or communication. In the mathematics paper, 14 of the questions were
found to be based on algebra, geometry, mensuration, trigonometry and matrix which were
irrelevant at the primary level covering Classes I to V. In the paper pertaining to environmental
studies, NCTE observed that seven of the questions did not conform to the syllabus prescribed at the
primary level and that, in general, the major portion of the prescribed syllabus had been ignored in
setting the questions. In the paper pertaining to child development and pedagogy, NCTE observed
that pedagogy was completely excluded from the question paper.

22. In the light of the aforesaid, it is apparent that TET 2012 was not conducted in accordance with
the binding NCTE guidelines. However, it must also not be lost sight of that TET 2012 was
completed in the year 2013 and was held as an eligibility-cum-appointment test in this State,
pursuant to which nearly 17,000 vacancies at the primary school level have been filled up. These
thousands of teachers have been entrenched in their positions for nearly five years. In addition, TET

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2012 was a huge exercise, particularly since it was for the first time that such eligibility test was
conducted in the State. About 30 lakh candidates appeared in the examination and several crores of
rupees were expended for the conduct of such examination. The massive bandobast that was TET
2012 cannot be overlooked.

23. The principal reason furnished in the judgment and order impugned dated February 26, 2016, to
the effect that the appellants having taken part in the examination were not entitled to challenge the
propriety thereof, cannot be accepted; primarily because the anomalies in the examination could not
have been known to the appellants prior to the examination. More importantly, the appellants did
not wait to discover they had failed before they challenged TET 2012. It is also evident that some
other candidates at TET 2012 also challenged the examination, but the other writ petitions failed
and it does not appear that any appeal was carried by the other sets of writ petitioners or such
appeals were pursued. According to the parties, none of the appeals from the similar orders of
dismissal, if filed, has been disposed of on merits.

24. In dealing with a matter of such proportions, the larger picture must never be forgotten. There
are some 19 or so appellants in this case out of the nearly 30 lakh candidates who took TET 2012
who have stayed back to pursue the challenge. Even though it might not be proper to presume that
the overwhelming majority of the candidates accepted TET 2012 or its validity, what is of
importance is that only an insignificant minority has continued with the challenge.

25. At this stage, if it were to be held that TET 2012 was completely invalid as it did not adhere to the
NCTE guidelines of February 11, 2011, it would cause a serious disruption and it would be opposed
to public interest. For the larger good and so as not to unsettle a position that has obtained for
nearly five years, these appellants may be appropriately compensated or the prejudice that they may
have suffered may be adequately addressed, but the entire system may not be thrown out of gear in
the interest of the greater good.

26. Instead of robustly repelling the challenge, the Board and the State have graciously accepted that
there were irregularities in several questions in respect of the different subjects in TET 2012. The
State has also accepted that directions may be issued by this court to hold any future TET strictly in
accordance with the prevailing NCTE guidelines therefor. The State has also offered to allow the
appellants herein, notwithstanding their possible ineligibility on the ground of age or otherwise, to
take the next available TET and even apply therefor beyond the time prescribed by the notification
already published on May 12, 2017. The State has also offered to waive the fees that the appellants
would have to pay if they were to take the next TET.

27. In the back-drop of the State's stand, the appellants only appeal to the court to allow additional
marks to be allotted at TET 2012 for such of the questions which did not adhere to the NCTE
guidelines so that the additional marks earned by these appellants may make them eligible and be
considered as TET-passed. However, if such course of action were to be adopted by the court, it
would disrupt the entire system for all other candidates would then rightfully claim the additional
marks and seek to clamber over the benchmark eligibility criterion of 60%.

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28. In the circumstances, it is deemed just, fit and convenient to notice that there were serious
irregularities in the conduct of TET 2012, both as to the mode of the examination and as to the
questions set therefor. The State is directed to ensure that future TET examinations are conducted
strictly in accordance with the prevailing NCTE guidelines in such regard. TET 2012 and the results
of TET 2012 are left undisturbed. The appellants are given the option of participating in the first
available TET hereafter, subject to the concessions as indicated by the State and recorded
hereinabove. In addition, the appellants will be entitled to reasonable costs for the proceedings
assessed at Rs.1 lakh which should be paid proportionately to each of the appellants by the West
Bengal Board of Primary Education within a month from date, unless all the appellants specify
otherwise.

29. FMA 1718 of 2018 is disposed of by setting aside the judgment and order impugned and
replacing it by the directions as contained hereinabove.

30. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject
to compliance with all requisite formalities.

(Sanjib Banerjee, J.) I agree.

(Abhijit Gangopadhyay, J.)

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