Samapti Chatterjee, J. - (1.) The following issues are to be determined in this case:- (i) Whether the petitioners who are possessing B.Ed (Special Education) should be treated as trained candidates in terms of notification dated 13th August, 2012 as well as subsequent amendments for the appointment to the post of Assistant Teacher in any primary school? (ii) Whether it is justified and correct on the part of the respondent authorities to give appointment to the untrained candidates as primary teacher thereby depriving the petitioners who are possessing B.Ed special training qualification in terms of Right Of Children To Free And Compulsory Education Act, 2009? (iii) Whether the B.Ed (Special Education) as recognised by the RCI which is equivalent to B.Ed course recognised by the NCTE should be considered as training qualification of the teachers for teaching Class-I to Class-V students ?
(2.) The petitioners' case in brief is as follows :- Being aggrieved by the action of the respondent authorities as well as the West Bengal Board of Primary Education thus not permitting the petitioners who are possessing B.Ed (Special Education) to participate in the selection process on the basis of the advetisement dated 26th September, 2016 for filling up the post of primary teachers the petitioners filed this present writ petition. The petitioners herein have passed secondary examination from the respective boards. Petitioners also passed Class-XII examination and possess graduation degree obtained from different universities. Thereafter the petitioners completed B.Ed (Special Education) from respective universities. It is also the case of the petitioners that the West Bengal Board of Primary Education is a statutory body constituted under West Bengal Primary Education Act, 1973 and Rules framed and time to time amended thereafter. The National Council for Teacher Training (hereinafter referred to as NCTE) is a body constituted under the National Council for Teacher Education Act, 1993 by the Government of India. The Rehabilitation Council of India (hereinafter referred to as RCI) is a body constituted and/or created under the Rehabilitation Council of India Act, 1992. It is stated that the Secretary of the School Education Department, Government of West Bengal published notification on 13th August, 2012 in the Kolkata Gazette thereby incorporating certain amendments in the West Bengal Primary School Teachers Recruitment Rules, 2001. It is pertinent to point out herein that in the said notification dated 13th August, 2012 it has been mentioned that a person having D.Ed (Special Education) or B.Ed (Special Education) shall after appointment undergo six months programme in Elementary Education recognised by the National Council of Teacher Education; thus, it is apparent that a candidate having B.Ed (Special Education) is eligible to be appointed as primary teacher. It is further stated that in the said notification dated 13th August, 2012 it has been postulated that the candidates having D.Ed (Special Education) or B.Ed (Special Education) shall be given priority and furthermore it has been stated that in case of D.Ed (Special Education) and B.Ed (Special Education) a course recognised by the Rehabilitation Council of India (RCI) only shall be considered. Therefore it is apparent that the candidates having B.Ed (Special Education) is also eligible to be appointed as primary teachers. It is further stated that Section 23 (1) of the Right of Children to Free and Compulsory Education Act, 2009 provides that any person possessing such minimum qualification as laid down by the academic authority authorised by the Central Government by notification shall be eligible for appointment as a teacher. Immediately after commencement of Act, 2009 the academic authority namely NCTE laid down minimum qualification for appointment to the post of teacher. By the notification dated 23rd August, 2010 the NCTE prescribed the minimum qualification which is quoted below :- "NATIONAL COUNCIL FOR TEACHER EDUCATION NOTIFICATION New Delhi, the 23rd August, 2010 F.No.61-03/20/2010/NCTE/ (N & S)-In exercise of the powers conferred by Sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009) and in pursuance of Notification No.S.O. 750 (E) dated 31st March, 2010 issued by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, the National Council for Teacher Education (NCTE) hereby lays down the following minimum qualifications for a person to be eligible for appointment as a teacher in Class I to VIII in a school referred to in clause (n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009 with effect from the date of this Notification :- 1. Minimum Qualifications- (i) Classes-I-V (a) Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002 OR Senior Secondary (or its equivalent) with at least 50 % marks and 4-year Bachelor of Elementary Education (B.El. Ed.) OR Senior Secondary (or its equivalent) with at least 50 % marks and 2-year Diploma in Education (Special Education) AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose (ii) Classes-VI-VIII (a) B.A/B.Sc and 2-year Diploma in Elementary Education (by whatever name known)Or B.A/B.Sc with at least 50% marks and 1 -year Bachelor in Education (B.Ed). OR B.A/B.Sc with at least 45% marks and 1-year Bachelor in Education (B.Ed), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard. OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year B.A/B.Sc. Ed or B.A. Ed/B.Sc. Ed OR B.A/B.Sc with at least 50% arks and 1-year B.Ed (Special Education) AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose." The petitioners participated in the TET 2012 conducted by the West Bengal Board of Primary Education but they were unsuccessful. Subsequently in the year 2014 the West Bengal Board of Primary Education took a decision vide memo no.673/BPE/2015 dated 25.5.2015 that the candidates who did not pass the TET 2012 would be permitted to participate in the TET 2014 but the TET 2014 was not held in the year 2014 and the said TET 2014 was held in the year 2015 and the petitioners were found to be qualified in that TET 2014. The West Bengal Board of Primary Education issued advertisement no.2202/BPE/2016 dated 26.9.2016 thereby inviting applications for filling up the posts of primary teachers but the West Bengal Board of Primary Education has not treated the petitioners as trained candidates. Since the B.Ed (Special Education) was not considered by the Board as training qualification for the appointment to the post of Assistant Tecaher for primary school of Class-I to V therefore, the petitioners made repeated representations before the authority. Since the respondent authority did not pay any heed to the petitioners' representation; the petitioners have been compelled to file the present writ petition. Hence the present writ petition. Submissions of the learned Advocates
(3.) Mr. Bikash Ranjan Bhattacharya, learned senior counsel appearing for the petitioners submitted that originally education was in List II (State List) but with effect from 3rd January, 1997 by the 42nd Constitutional Amendment education was brought under concurrent list (List-III Item No.25) Article 21 (A) for Free And Compulsory Education to All Children aged six to fourteen years is the only qualification framed by the Constitution with effect from 1st January, 2010 by virtue of 86th Constitutional amendment.;