The State, as the employer, is entitled to prescribe the qualifications as a condition of eligibility and that judicial review must tread warily in matters of policy.

JUDGMENT :

SOUMEN SEN, J.

1. The appeal is arising out of an order dated 21st November, 2022 at the instance of the para teachers of primary schools.

2. They are aggrieved by the impugned order dated 21st November, 2022 in view of the direction upon the Education Department to take steps for filling up the vacancies of para teachers by reading down the Notification dated 23rd September, 2016 and in permitting the upper primary para teachers to participate in the selection process for the recruitment of para teachers of primary schools.

3. The appellants are aggrieved by the said order as it has affected their rights to participate in the selection process initiated pursuant to the Notification dated 23rd September, 2016. The said notification was issued in terms of Note 7 of Rule 6(3) of the West Bengal Primary School Teachers’ Recruitment Rules 2016, (hereinafter referred to as “Primary Teachers’ Recruitment Rules, 2016”) in which a direction was given by the Hon’ble Governor that during the “forthcoming” recruitment of teacher for primary schools, 10% of the existing vacant posts shall be filled up by the para teachers serving at present in various primary schools across the State.

4. Mr. Ekramul Bari, learned counsel for the appellants has submitted that the Primary Teachers’ Recruitment Rules, 2016 prescribe a selection process for appointment of teachers in primary schools whereas the recruitment for upper primary para teachers are governed by West Bengal School Service Commission (Selection for Appointment to the Post of Teachers for Upper Primary Level of Schools) Rules, 2016, (in short “Upper Primary Level Rules 2016”). In both the Rules there is a provision for earmarking 10% of the total vacant posts for the para teachers without disturbing the 100 points roster as notified by the State Government from time to time.

5. It is submitted that eligibility criteria and honorarium for the post of para teachers of primary and upper primary are different. The educational qualification of primary para teachers is Madhyamik pass or equivalent whereas for upper primary para teachers the qualification is graduate with 300 marks in relevant subject. In the Primary Teachers’ Recruitment Rules, Rule 2(b) mentioned that ‘appointment’ means appointment of teachers of primary schools in accordance with the provision of the Act and Rules made thereafter. Similar provisions exist in the Upper Primary Level Rules 2016. In clause 2(p) it has been clearly stated that vacancy means a vacancy in the post of Teacher for classes of Upper Primary Level.

6. The grievance of the appellants are that if the upper primary teachers are allowed to participate in the 10% vacancies to be notified for primary teachers, it would be discriminatory as the para teachers duly qualified for upper primary level will be doubly benefitted. They are not eligible for participation in the 10% vacancies for para teachers for primary school. There are different qualifications and pay scale. Moreover, 10% reservation for upper primary teachers has been provided in terms of Rule 8(4) of the Upper Primary Level Rules, 2016. The writ petitioners had never challenged the vires, legality and validity of Rule 6, Note 7 of the Primary Teachers’ Recruitment Rules, 2016 issued by the State Government identifying 10% vacancies to be filled up for para-teachers in the primary schools. The writ petitioners being the para-teachers of upper primary school also enjoy similar advantage and they cannot take advantage of reservation in upper primary as well as primary when there is no ambiguity in the Rules and the Notification.

7. Mr. Tapan Kumar Mukherjee, the learned AGP on behalf of the State respondents have contended that the recruitment process was initiated by the West Bengal Board of Primary Education (in short WBBPE) constituted under the West Bengal Board of Primary Education Act