Holding

Only candidates possessing a Junior Basic Training/Primary Teacher Training Certificate qualify as "trained candidates" for primary school teacher posts; B.Ed. degree holders cannot be equated or given extra credit, and the 1971 circular is non‑est under the 1991 Rules.

Summary

The appellants, holders of B.Ed. degrees, applied for primary school teacher posts in West Bengal where the 1991 recruitment rules require a "trained candidate" to possess a Junior Basic Training/Primary Teacher Training Certificate (JBT/PTTC). They were denied marks for training qualification and contended that a 1971 circular allowing B.Ed. holders to be treated as "A" category teachers should override the rules. The High Court initially granted relief, but the Division Bench set aside that order. The Supreme Court examined the interpretation of Rule 2(n), Rule 6(d) and Rule 35 of the 1991 Rules and held that only JBT/PTTC holders qualify as trained candidates; higher academic qualifications like B.Ed. cannot be equated or given extra credit. The Court also ruled that the 1971 circular cannot override the later statutory rules, which repealed earlier provisions. Consequently, the appeal was dismissed.

Issues considered

Whether candidates holding B.Ed. degrees can be equated with candidates holding Junior Basic Training/Primary Teacher Training Certificate for appointment as primary school teachers under the 1991 Rules.
Interpretation and ambit of Rule 2(n) of the Recruitment and Leave of Teachers in Primary Schools in West Bengal Rules, 1991.
Whether the 1971 circular issued by the Director of Public Instructions can override the 1991 recruitment rules.

Legislation cited

West Bengal Primary Education Act, 1973

Subjects

Service lawRecruitmentPrimary school teachersB.Ed qualificationJBT/PTTCRule interpretationCircular vs. statutory rulesWest Bengal education law

Judgment

A DILIP KUMAR GHOSH AND ORS.
v.
CHAIRMAN AND ORS.

SEPTEMBER 12, 2005

B [ARIJIT PASAYAT AND H.K. SEMA, JJ.]

Service Law-Recruitment and Leave of Teachers in Primary Schools in
West Bengal Rules of 1991-Rules 2(n), 6, 9, 35-Recruitment of Primary
C School Teachers in West Bengal-Candidates holding BAIB.Ed-Whether can
be equated with the candidates holding certificate of training for Primary
School-Held, they cannot be equated-Candidates holding degrees need not
be equipped to teach students of primary class-Further held, no credit can
be given to the higher academic qualification.

D Interpretation-Circular issued by Director ofPublic Instructions-Held,
cannot override the recruitment rules operating in the field, hence they are
non-est.

Appellants are B.Ed. Degree holders, applied for the post of Primary
School Teacher. Their candidature were sponsored by the employment
E Officer and their names were forwarded to Chairman, District Primary
School Council for the interview. Trained candidates who possessed
qualification of JBT/PTTC were also sponsored by the District
Employment Exchange along with the candidature of the appellants. The
Appellants though appeared for interview were denied marks against the
F training qualification as they were not holders of Junior Basic Training/
Primary Teachers Training Certificate (JBT/PTTC). Writ petition filed
by appellants was allowed by the Single Judge. On appeal by respondents,
the Division Bench set aside the order of the Single Judge. Before this
Court Appellants contended that Circular issued on 27th July, 1971 by
the Director of Public Instructions in which the teachers in the primary
G schools were considered as 'A' category teachers and therefore holders
of B.Ed. Degree should be preferred, as against the Rule 2(n) of
Recruitm.ent and Leave of Teachers Primary Schools in West Bengal Rules
of 1991.

H 158
DILIP KUMAR GHOSH v. CHAIRMAN 159
Dismissing the.Appeal, the Court A
HELD: 1. The rules of 1991 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 B
proper education to the primary school students in terms of the aims and
objects 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 C
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, candidates like the appellants
who are trained in B.Ed. degree course 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. [166-H; 167-A-CI D
2. Rule 2(n) defined 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) 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 E
reading of Rule 2(n) and Rule 6(d) would make up abundantly clear 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
hi~-er academic qualification like BA/B.Ed shall not be given any credit. p
[167-D-E[

Medical Council of India and Anr. v. State of Rajasthan and Anr., [1996]
7 SCC 731 and P.M. Lata and Anr. v. State of Kera/a and Ors., [2003] 3
SCC 541 and Yogesh Kumar and Ors. v. Government of NCT, Delhi and Ors.,
12003] 3 sec 548, referred to. G
3. The circular of 1971 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. The Appellant's contention
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, H
160 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A repeals all previous rules and orders and therefore after the recruitment
rules came into force in 1991 the circular of 1971 is non-est.
[164-G-H; 165-A-BI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7119 of2003.

B From the Judgment and Order dated 14.12.2001 of the Calcutta High
Court in M.A.T. No. 4285 of 2000.

Vijay Hansaria, Reuzal Hussain, Kanishak Gupta, D. Bharat Kumar
and Abhijit Sengupta, with him for the Appellants.

Tara Chandra Sharma, Ms. Neelam Sharma, Avijit Bhattacharjee, Rana
C Mukherjee, Ms. Indrani and Abhist Kumar for the Respondents.
The Judgment of the Court was delivered by
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
D 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
E 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
F 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
G 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
H to whether the appellants who have obtained B.A./B.Ed./Ph.Ed
DILiP KUMAR GHOSH v. CHAIRMAN [SEMA, J.] 161

degrees can be equated with the candidates who are the holders A
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 B
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 C
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 Government." D
"Rule 6. Qualifications

(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 E
(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); F
(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 G
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 H
162 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A 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 (C) of Rule 9.

(e) A trained candidate belonging to scheduled tribe category
B who have not passed Madhyamik examination or its equivalent shall
· be eligible for appointment as teacher in Primary School."

Rule 9. Selection Procedure

(a) On after the names of the candidates for the posts of teachers are
obtained from the employment exchange, all candidates shall be
c 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 I 00 marks in total as full marks;
D
(ii) the full marks shall be allotted to four different aspects of
the candidate' eligibility in the following manner:-

I. Academic qualification 65 marks

E 2. Training 20 marks

3. Written Marks/Oral Interview 10 marks

4. Co-curricular activity 5 marks

Total I 00 marks
F
(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
G 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;
H
DILIP KUMAR GHOSH v. CHAIRMAN [SEMA, J.) 163
(v) marks obtained in the interviews shall be recorded in the A
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 B
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; c
(D) a certificate of successful participation in !iterating 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; D
Provided that the maximum of such marks to be credited shall
not exceed five.
(vii) 18 (eighteen) marks shall be crediterl for academic
qualification to an eligible candidate belonging to Scheduled Tribe E
category who have required qualification as mentioned in sub-
rule (C) of Rule 6. Awarding of marks for training, interview
and co-curricular activities shall be done in accordance with
clauses (iv), (v) and (vi) respectively.

(c) (i) The total marks obtained by each candidate for academic p
qualification training and co-curricular activities shall be computed in
the mauner 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;
G
(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 (C), 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; H
164 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A (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
B 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 I 0% of such vacancies shall be prepared. The
c 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
D 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
µ!us 10% of such existing vacancies."

Rule 35 of the Rules deals with the repealing provision reads as under:

E "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 (43of1973) has come
F into force.

Provided that appointment of all teachers made with the approval
of th.e Director prior to the framing of these rules, shall be deemed
to have been approved under these rules."

G 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
H higher pay scales because they were teaching for a long time in the institution
DILIP KUMAR GHOSH v. CHAIRMAN [SEMA, J.] 165

without qualification of JBT/PTTC. This argument is not tenable because it A
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 B
teachers training institutes which reads as under:

"Aim and Object : Special.

Knowledge: Formation of scientific idea about child and its
environment, child's demand, child's growth and child's development. C
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.

Ilnd Chapter :- Education cum Evaluation D
Teacher's training syllabus has been classified into four groups:

(A) Professional knowledge.

(B) Professional Expertness, practical knowledge of primary school E
book;

(C) Practical knowledge.

(D) Different stages of primary education.

IIIrd Chapter :- F
(A) Professional knowledge:

(i) Modem concept of primary education and it's problem. Aim
& Syllabus

(ii) Child psychology and child study. G
Syllabus:

(i) development of child:-

·,
(a) Childhood; (b) Boyhood; (c) Adolescence; (d) Early
H
1 66 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A adolescence.

Physical development, mental development, working development,
social development, speaking development.

2. (A) At different stages child's demand, problem and its remedy;
B 3. Leaming - 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, Leaming condition - (a) Inspiration and attention, (b) Repetition
and repeated study. Leaming method - recitation and meaning in total
c or part.

5. Classification of learning - Knowledge learning, data collection
experience gather, idea.

6. Different process of learning method :-
D
(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
E of backwardness and its remedies. Special arrangement for
advanced child.
8. Child Philosophy :- Why child philosophy and why ?

Different process of child philosophy :-
F (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
G principle of education curriculum studies, educational psychology,
development of education in modem 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
H to the teachers who are specifically trained to teach in primary schools. The
DILIP KUMAR GHOSH v. CHAIRMAN [SEMA, J.) 167
rationale behind the framing of this rule is that the JBT/PTTC certificate A
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 B
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 C
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 D
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
that for appointment of a teacher in primary school only the candidates who E
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 F
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. G
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.
H
168 -' SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A (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.

B (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
c 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
D
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
E • present controversy are no more res integra. In the case of Medical Council
of India and Anr. v. State of Rajasthan and 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
F 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.

G Jn the case of P.M Lata and Anr. v. State of Kera/a and Ors. [2003]
3 sec 541 the facts of which are identical to the facts of the case in hand.
Jn 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
H 'pass in TIC' means trained teachers. Instead of selecting holders of TIC
DILIP KUMAR GHOSH v. CHAIRMAN [SEMA, J.] 169
candidate, the candidates holding B.Ed. degree were selected on ground that A
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 B
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 C
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 D
logic and justification in the State prescribing qualification for the
post of primary teachers as only TIC 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."
E
The same view was reiterated in the case of Yogesh Kumar and Ors.
v. Government of NCT, Delhi and 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.
F
V.M. Appeal dismissed.