Calcutta HC sets aside SSC's creation of 1,600 supernumerary posts of work education, physical education teachers

Kolkata: The Calcutta High Court on Thursday set aside the creation of 1,600 supernumerary posts of work education and physical education assistant teachers by the West Bengal School Service Commission (SSC).

Justice Biswajit Basu set aside a notice of May 2022 for the creation of 1,600 supernumerary posts of work education and physical education assistant teachers and another notice of October 2022 notifying the dates of counselling for filling up the said supernumerary posts to appoint all waitlisted candidates of SLST, 2016 under the two categories.

The petitioners had challenged the legality and validity of the order of the state School Education Department of May 19, 2022, relating to the creation of 1,600 supernumerary posts of assistant teachers -- 750 posts for work education and 850 posts for physical education teachers -- to appoint all waitlisted candidates of the SLST, 2016 under the two categories by the SSC.

Justice Basu said the court is unable to accept the argument of one of the respondents in the petition that the supernumerary posts have been created as a gap-filling measure.

"It is a settled position of law that waiting list cannot be treated as a perpetual reservoir for filling up future vacancies," the court observed.

The court noted that the recruitment panel of SLST 2016 expired on December 11, 2019 long prior to the state cabinet approval on May 5, 2022 of the proposal of the School Education Department to create vacancies in the name of supernumerary posts to accommodate the waitlisted candidates of the said expired panel.

"I am of the opinion that supernumerary posts cannot be created to appoint the waitlisted candidates of 1st SLST, 2016 for work education and physical education," Justice Basu said, summing up arguments forwarded by the petitioners and the respondent authorities.

The court observed that since the vacancies created in the name of supernumerary posts are new vacancies, those are required to be filled up through a new selection process.

It said that the petitioners, being eligible, had participated in the SLST, 2016 but could not qualify; but they are, subject to the age bar, entitled to participate in the next selection process against those new vacancies.

Justice Basu said that since the state decided to exploit the said vacancies to accommodate the waitlisted candidates of the earlier selection test i.e., the SLST, 2016, the petitioners have lost the opportunity.

"The said decision therefore, certainly offends the constitutional schemes of Articles 14 (equal protection of law) and 16 (equal opportunity in public employment for all citizens)," the court said.

The state sought to justify the creation of the supernumerary posts on the ground that the state is obliged to fulfill the constitutional mandate of Article 21-A (right to education) to provide free and compulsory education to all children of the age of six to 14 years.

It also stated that the Right to Education Act, 2009 puts the state under the obligation to provide adequate number of teachers to the schools and as such it has taken a decision to create supernumerary posts to absorb the waitlisted candidates of the SLST 2016 to meet a special exigency.

The state claimed that this being a policy decision, it is not open to judicial review.

"The said justification is not tenable in as much as it is a settled position of law that policy decision is open to judicial review, if it is found to be arbitrary, unconstitutional and in violation of statutory provisions," Justice Basu observed.