Judgment Satyabrata Sinha, J. 1. The aforementioned 3 appeals being inter related were taken up for hearing together and are being disposed of by this common Judgement. 2. F.M.A.T. No. 542 of 1992 and F.M.A.T No. 957 of 1992 arise out of a judgement and order dated 27th and 28th January, 1992 passed by a learned single Judge of this Court in Civil Rule No. 1333(W)/95 whereby and whereunder the said learned Court allowed in part a writ petition filed by Sri Ram Chandra Saha, appellant (hereinafter referred to as the writ petitioner) in F.M.A.T. No. 957 of 1992. 3. F.M.A.T. No. 3342 of 1992 arises out of an order dated 15.9.92 passed by Paritosh Mukherjee, J. in Civil Order No. 17044(W) of 1992. 4. The Managing Committee of Dinhata High School has filed F.M.A.T. No. 542/92 against a portion of the said judgement. 5. The fact of the matter is as follows on 6th June, 1986 the writ petitioner was appointed as Head Clerk of Dinhata High School (hereinafter referred to as the said School) on a temporary basis. On the basis of his application alone on 1st January, 1967 he was appointed as an Assistant Teacher. The offer of appointment is contained in Annexure 'A' to the writ application. At the relevant time the qualification of the writ petitioner was only B.Com. 6. The writ petitioner was directed to act as an Assistant Head Master on purely a temporary basis till a permanent Head Master is appointed. However, on 2nd August, 1975 the Secretary, Ad-hoc Committee of the school appointed the writ petitioner as an Assistant Head Master of the school in terms of the resolution of the Ad-hoc Committee subject to approval of the Director of the Public Instruction. The District Inspector of Schools, Secondary Education, Cooch Behar, by an order dated 9th August, 1975 approved his appointment as Head Master subject to the following conditions:(i) The approval is given subject to the issuance of clarification by the Director of Public Instruction, West Bengal in regard to the eligibility of selection by the Ad-hoc Committee. The District Inspector of Schools, Secondary Education, Cooch Behar, by an order dated 9th August, 1975 approved his appointment as Head Master subject to the following conditions:(i) The approval is given subject to the issuance of clarification by the Director of Public Instruction, West Bengal in regard to the eligibility of selection by the Ad-hoc Committee. (ii) The approval shall be withdrawn if the same is not found justified by the education directorate: (iii) The appointee should furnish the written undertaking on the following :"I know that my approval as Assistant Head Master, Dinhata High School has been given by the District Inspector of Schools (Secondary Education), Cooch Behar on a temporary basis subject to issuing of clarification by the Education Directorate and in case if the same is not found justified, I shall be liable to be reverted to my original post of Assistant Teacher of the School without raising any objection." 7. Allegedly, however, the District Inspector of Schools withdrew the said approval upon obtaining a clarification from the D.P.I. allegedly on the ground that the writ petitioner did not hold requisite qualification and thus was not entitled to the scale of pay admissible to the Honours graduate. 8. On 10th June, 1976 the writ petitioner filed a writ application which was marked as Civil Rule No. 6215(W) of 1976 questioning the said order dated 28th February, 1976. The said writ petition was dismissed by an order dated 13th February, 1980. The writ petitioner, however, thereafter took admission in the Kalyani University in M.Sc. Education allegedly without obtaining permission from the school and obtaining leave on medical ground and continued his studies therein and obtained a degree in M.Sc. Education in 1978. On 31st July, 1982 the permanent Head Master of the said school Sri K. P. Saha retired. A question arose as to whether the petitioner can be allowed to take charge of the post of the Head Master. The petitioner, however, ultimately was given charge of the post of Head Master. 9. The writ petitioner applied for grant of his approval to the post of Head Master but no such approval was granted. Thereafter steps were taken up for filling up of the post of the Head Master and pursuant thereto an advertisement was issued. 10. The petitioner, however, ultimately was given charge of the post of Head Master. 9. The writ petitioner applied for grant of his approval to the post of Head Master but no such approval was granted. Thereafter steps were taken up for filling up of the post of the Head Master and pursuant thereto an advertisement was issued. 10. The writ petitioner filed a writ application on 15th May 1989 questioning an order of suspension and charge-sheet dated 24.4.89 on the ground that he collected huge amount of money from the students by way of donation and did not deposit the same in the school account. The said writ petition was disposed of with liberty to the petitioner to prefer an appeal before the appeal committee of the Board and appeal was preferred by the petitioner which was marked as appeal No. 33 of 1989 but the said appeal was dismissed. The writ petitioner filed another writ application being C. O. No. 12771(W)' of 1989 and by an order dated 12th September, 1989 a learned single Judge of this Court passed the following order : "The Respondents are entitled to proceed with the proceedings after giving hearing to the petitioner but the Respondents will not take any penal measure against the petitioner without the leave of the Court. The petitioner will be given subsistence allowance as per law." 11. Another writ application was filed questioning the order of the appeal committee on the Original Side of this Court which was marked as Matter No. 475/90. 12. On 14th November, 1991 the said petition was disposed of directing the Managing Committee of the said School to complete the disciplinary proceedings within three months upon supplying the copies and documents asked for enabling the petitioner to show cause against the charges levelled against him. The learned Judge also framed a time schedule. It was also directed that in the event the proceeding was not completed within the aforementioned period, the order of suspension shall stand revoked and he would be allowed to resume his duties to the post of Head Master (officiating). In the mean while on 1st August, 1990 one Akhil Chandra Saha was appointed as Teacher in-charge. It was also directed that in the event the proceeding was not completed within the aforementioned period, the order of suspension shall stand revoked and he would be allowed to resume his duties to the post of Head Master (officiating). In the mean while on 1st August, 1990 one Akhil Chandra Saha was appointed as Teacher in-charge. It is stated that although all the relevant documents were supplied to the petitioner, he initiated a contempt proceeding allegedly on the ground that the disciplinary proceedings were not completed within the period as indicated in the order dated 14th February, 1991. An affidavit-in-opposition was filed wherein the order passed by this Court dated 12th September, 1991 was brought to the notice of the learned Judge and by an order dated 11th December, 1991 it was directed :"I am of the prima facie view that Mr. Sarkar shall furnish a list of document said to be not supplied by Mr. Santosh Chatterjee by Friday next. Mr. Chatterjee after proper inspection of the school record shall sit with Mr. Sarkar 2 days after reopening of the Court after Christmas vacation and thereafter the matter shall be placed for hearing. In the mean time authority shall pay the petitioner's subsistence allowance at the admissible rate for the period he has not been paid within 2 weeks from the date without prejudice to the rights and contention of the parties. Such payment, if not already made, shall be transmitted to the petitioner by an account payee cheque drawn in favour of the petitioner. Both Mr. Sarkar and Mr. Chatterjee do not have any objection to this order passed today." 13. According to the Managing Committee, the petitioner, thus, continued to remain under order of suspension. However, in the meanwhile by an order dated 27th/28th January, 1992 the impugned judgment was passed. 14. The learned trial Judge, inter alia, held : (1) The post of Head Master is not a promotion post but a selection post. (2) The writ petitioner cannot be directed to be absorbed without following the Recruitment Rules. (3) The learned Judge, however, directed constitution of the selection committee in the manner laid down therein consisting of the Additional District Magistrate, the Principal, Thakur Panchanan Girls' College, Principal, Nagendra Basic Training College, Secretary, Dinhata High School. 15. (2) The writ petitioner cannot be directed to be absorbed without following the Recruitment Rules. (3) The learned Judge, however, directed constitution of the selection committee in the manner laid down therein consisting of the Additional District Magistrate, the Principal, Thakur Panchanan Girls' College, Principal, Nagendra Basic Training College, Secretary, Dinhata High School. 15. The writ petitioner preferred an appeal from that portion of the judgement whereby the learned trial Judge rejected his prayer for absorption whereas the Managing Committee preferred the appeal from the portion of the judgement whereby a special selection committee was constituted. 16. By an order dated 26th May, 1992 a Bench comprising of N.P. Singh, C. J. (as his Lordship then was) and Tarun Chatterjee, J. passed an interim order directing that during the pendency of the appeal steps should be taken for appointment to the post of Head Master of the school in accordance with the Recruitment Rules in force. However, no appointment letter would be issued to the selected person. It was also directed that the writ petitioner shall also be entitled to apply for the said post and to appear before the said Committee without prejudice to his right and contention in the appeal. 17. On 15th November, 1992 interview for selection was held by the Selection Committee in terms of the Recruitment Rules and a panel was prepared. The petitioner's name did not find place in the said panel. 18. The District Inspector of Schools, Cooch Behar issued a Memorandum to the Secretary of the Managing Committee of the School asking for clarification before approval of the panel was granted in terms of his letter dated 4th November, 1993. 19. It appears that on 25th February, 1993 the petitioner again filed a writ application before this Court and obtained an ex parte order staying operation of the order dated 4th February, 1993 issued by the District Inspector of Schools for recasting of the panel in terms of the interview dated 15th November, 1992. 20. Thereafter an application for further order and/or appropriate direction from this Court was made by the School authority for the purpose of the issuing appointment letter to the candidates selected for appointment to the post of Head Master of the school pursuant to the interview dated 15th November, 1992. 21. 20. Thereafter an application for further order and/or appropriate direction from this Court was made by the School authority for the purpose of the issuing appointment letter to the candidates selected for appointment to the post of Head Master of the school pursuant to the interview dated 15th November, 1992. 21. A Bench comprising of U.C. Banerjee and S. P. Rajkhowa, JJ, allowed the said application upon direction to the District Inspector of Schools to consider the panel and if he is otherwise satisfied that the panel was prepared in accordance with the law he would approve the same and appointment be made on the basis thereof. It was, however, stated that such appointment shall be without prejudice to the rights and contentions of the parties in the appeal. 22. By an order dated 21st April, 1994 the District Inspector of Schools in terms of the said order approved the panel holding that Sri Anil Kumar Debnath would be the first empanelled candidate, inter alia, on the ground that the first empanelled candidate did not fulfil the requisite qualification. He, however, directed that in the event Sri Anil Kumar Debnath failed to join the school, the second empanelled candidate will join to the post. The said order dated 21st April, 1994 is contained in Annexure 'K' to the application dated 29.11.1995 filed by the petitioner. 23. On 23rd April, 1994 Sri Anil Kumar Debnath was appointed as Head Master and admittedly, he has been functioning in the said post since then. However, an application for recalling the order dated 11th March, 1994 was filed and by an order dated 14th July, 1994 a Bench comprising of U.C. Banerjee and S.N. Mallick, JJ., recalled the order dated 11th March, 1994 directing the maintenance of the status quo as on date as regards the functioning of the Head Master of the school. Another application for modification and/or clarification of the order dated 14th July, 1994 was filed by the petitioner before the said Bench but by an order dated 23rd March, 1995 their Lordships released the matter and directed that the same be placed before an appropriate Bench. In the mean time some members of the Managing Committee filed an application for addition of parties which is contained in Annexure 'V' to the application dated 29.11.95. 24. In the mean time some members of the Managing Committee filed an application for addition of parties which is contained in Annexure 'V' to the application dated 29.11.95. 24. Both the aforementioned applications came up before a Bench comprising of Mukul Gopal Mukherjee and Arun Kumar Dutta, JJ. and their Lordships allowed the application for addition of parties filed by Sri Monotosh Chakraborty, Sri Bimal Kumar Sen, Sri Jagadish Chandra Basak, Sri Bimal Kumar Roy and Sri Anil Kumar Debnath and further directed that status quo be maintained as regards functioning of the said School. The writ petitioner moved the Hon'ble Supreme Court of India against the said order by filing a special leave petition and by an order dated 4th September, 1995 the said application was dismissed with the following observations : "Special leave petition is dismissed. It is open to the petitioner to pursue any application, already filed, or to file any fresh application which is relevant for the purpose for which the matter has been ordered by the High Court to be placed before an appropriate Bench." 25. Mr. Kashikanta Moitra, the learned Senior Counsel, appearing on behalf of the writ petitioner-appellant in FMAT No. 957/92 and Respondent No. 1 in F.M.A.T. No. 542/92, inter alia, submitted that although the petitioner at all material times had been working as Assistant Headmaster and having taken over charge as officiating Headmaster, he was entitled to be absorbed in terms of various circular letters issued by the West Bengal Board of Secondary Education. It was submitted that from the very beginning the attitude of the District Inspector of Schools was to oust the petitioner inasmuch as in his order granting prior permission he laid down the qualification that the candidates must have 10 years' teaching experience and a degree of M.A. in English. Other teachers when protested, he modified the same by including various other educational qualification but did not include M. Sc. Education which degree was held by the writ petitioner and thus, made him ineligible for the post. The second writ application, according to Mr. Other teachers when protested, he modified the same by including various other educational qualification but did not include M. Sc. Education which degree was held by the writ petitioner and thus, made him ineligible for the post. The second writ application, according to Mr. Moitra, had to be filed as the petitioner claimed that he ought to have been regularised having the requisite qualification and in C. R. 1333(W)/of 1985 wherein an interim order was passed by B. P. Banerjee, J. in terms of the prayers 'E' & 'F' thereof which reads thus : "(E) An ad interim order of injunction be made restraining respondents 4 & 5 and/or their agents and/or successors and/or servants from giving effect to the impugned order of the District Inspector of Schools (SE), Cooch Behar dated 3.8.84 (Copy being annexure-R) in so far as same relates to the purported prior permission for the recruitment of Headmaster of the Dinhata High School (Item A in office Memo No. 131/ GenIDHIH dated 3.8.1984) as modified by an order of the\District Inspector of Schools (SE), Cooch Behar dated 6.9.1984 and to the order of the Administrator of the School dated 25.9.1984 and to pay to the petitioner his pay and usual allowances in the Scale of the Headmaster in terms of the Govt. Order No. 1128/1(15)GA dated 18.7.1975(Copy being Annexure-K) along with part-time allowance and Rural Allowance. (F) An interim order of injunction restraining the Respondents from interferring with any way of disturbing the petitioner in continuing in his office as Headmaster of the School, and in discharging of function of his office as such." 26. No appeal was preferred from the said order. The learned Counsel submitted that in terms of circular letter dated 16.7.1980 read with rule 28(7) of 1969 Rules the petitioner became entitled to be regularised in the post of Headmaster. 27. The learned Counsel submitted that the Managing Committee in its appeal did not question that part of the order whereby and whereunder the petitioner was directed to continue as a Head Master nor the appeal court in terms of its order dated 26th May, 1992 stayed that part of the order. 28. It was submitted that despite the aforementioned order no prior permission as is mandatorily required under the Recruitment Rules was obtained but the Managing Committee straight way issued an advertisement which was illegal. 28. It was submitted that despite the aforementioned order no prior permission as is mandatorily required under the Recruitment Rules was obtained but the Managing Committee straight way issued an advertisement which was illegal. The learned Counsel further submitted that although Anil Kumar Debnath was appointed pursuant to the order dated 11th March, 1994, the said order having been recalled all selection procedures must be held to be a nullity. It was further submitted that the District Inspector of Schools passed an order allowing the petitioner to join as Head Master and the said order was never questioned. It was further submitted that as the District Inspector of Schools in terms of his letter dated 4.4.1993 inter alia, questioned the qualification of the candidate whose name appeared at Serial No. 1 and further asked for certain clarification and the said order having not been questioned, the said authority had no jurisdiction to approve the panel. According to the learned Counsel, the District Inspector of Schools had no jurisdiction to recast the panel nor in doing so any hearing was given. 29. Our attention was further drawn to the effect that even by a letter dated 5.4.1993 the District Inspector of Schools issued a reminder to the Secretary, inter alia, stating that unless those clarifications were obtained, panel cannot be approved and thus when order dated 11.3.1994 was passed by U.C. Banerjee and S. P. Rajkhowa JJ. there was no panel and thus the question of appointing Sri Anil Kumar Debnath from the said panel did not arise particularly in view of the fact that by an order dated 14.7.1994 the aforementioned order dated 11.3.1994 was recalled, inter alia, on the ground that the Managing Committee was guilty of the suppression of facts. 30. Mr. Moitra further submitted that in view of the order passed by Supreme Court of India, another application has been filed before this court which in terms of this Court's order is to be considered along with the appeal. Mr. Moitra submitted that in view of the aforementioned circular letter dated 16.7.1980 the petitioner was entitled to be absorbed and in support of his aforementioned contention the learned Counsel has relied on a decision in Manju Devi vs. Director of Public Instruction & Ors. reported in 78 CWN 952. Mr. Moitra submitted that in view of the aforementioned circular letter dated 16.7.1980 the petitioner was entitled to be absorbed and in support of his aforementioned contention the learned Counsel has relied on a decision in Manju Devi vs. Director of Public Instruction & Ors. reported in 78 CWN 952. It was further submitted that any order passed in violation of the interim order passed by this Court is a nullity. The learned Counsel further contended that in view of the fact that the respondents are statutory authorities, they cannot take any steps which is not provided for under the statutes and reliance in this connection has been placed in State of Mizoram vs. Biahchhawna reported in 1995(1)SCC 156. As regards the petitioner's absorption, he relied on in Jacob M. Puthuparambil & Ors. vs. Kerala Water Authority and Ors. reported in AIR 1990 SC 2228 . The learned Counsel further submitted that a Selection Committee has no inherent right. He, therefore, submitted that the appointment of Sri Anil Kr. Debnath was illegal and, thus, the petitioner should be allowed to continue to hold the post of the Headmaster, as appointment as a Headmaster was not questioned by the Managing Committee and in fact accepted by it, it was further submitted that the District Inspector of Schools being a delegate in terms of Rules, he has only power to approve the panel and in case he expresses his disagreement in doing so he can refer the matter only to the Director of School Education. 31. Mr. Amal Baran Chatterjee, appearing on behalf of the State inter alia, submitted that the petitioner has no right to be absorbed and in support of his aforementioned contention reliance has been placed on The State of Orissa vs. Madan Gopal Rungta reported in AIR 1952 SC 12 ; B.N. Nagarajan and Ors. vs. State of Karnatalw & Ors. reported, in AIR 1979 SC 1676 ; J & K Public Service Commission vs. Dr. Narinder Mohan & Ors. reported in AIR 1994 SC 1808 ; State of Haryana & Ors. vs. Piara Singh & Ors. Reported in AIR 1992 SC 2130 and Ram Saran Shastry vs. State of West Bengal & Ors. Reported in 1995 (1) CHN 419 . reported, in AIR 1979 SC 1676 ; J & K Public Service Commission vs. Dr. Narinder Mohan & Ors. reported in AIR 1994 SC 1808 ; State of Haryana & Ors. vs. Piara Singh & Ors. Reported in AIR 1992 SC 2130 and Ram Saran Shastry vs. State of West Bengal & Ors. Reported in 1995 (1) CHN 419 . It was submitted that the learned trial Judge ought not to have directed constitution of special Selection Committee as there exists elaborated provisions therefor in the Recruitment Rules itself. 32. The learned Counsel appearing on behalf of the Managing Committee, submitted that keeping in view the interim orders passed by this Court from time to time the Managing Committee has to pay the salary of Head Master to two persons. 33. Mr. Dipak Banerjee, appearing on behalf of the added parties, submitted that Sri Anil Kumar Debnath was appointed on 23.4.1994 pursuant to the order of this Court. According to the learned Counsel, as order of status quo was passed by two Division Benches of this Court, the question of the petitioner's continuing as Head Master does not arise. The learned Counsel drew our attention to the order of the Supreme Court of India dated 4.9.1995 and submitted that from a perusal thereof it would appear that the petitioner was not entitled to file any further application for continuing to hold the post of the Head Master which he did on 29.11.1995. The learned Counsel submitted that keeping in view the fact that the petitioner was appointed as an Assistant Teacher with effect from 1.1.1967 he having not been holding a degree of B.Com (Honours) was not entitled to selection grade scale of pay and in this connection our attention has been drawn to a circular letter dated 9.12.1986. It was further submitted that in any event from the facts it would appear that the writ petitioner was not approved as a regular Assistant Head Master and thus the question of his appointment as an officiating Head Master did not arise. The learned counsel submitted that in any event the petitioner cannot be absorbed and in support of his aforementioned contention reliance has been placed on Gouri Deb vs. Maya Sarkar & Ors. reported in 91 CWN 953 and an unreported decision in Ms. Mamata Bose vs. District Inspector of School, Secondary Education & Ors. The learned counsel submitted that in any event the petitioner cannot be absorbed and in support of his aforementioned contention reliance has been placed on Gouri Deb vs. Maya Sarkar & Ors. reported in 91 CWN 953 and an unreported decision in Ms. Mamata Bose vs. District Inspector of School, Secondary Education & Ors. Being C.O. No. 7965 (W) of 1984 and which is said to have been affirmed by the appeal court. The learned Counsel further relied on the decisions of Supreme Court of India in J. & K. Public Service Commission & Ors. vs. Dr. Narinder Mohan & Ors. reported in 1994 (2) SCC 630 , Dr. M. A. Haque and Ors. vs. Union of India & Ors. reported in 1993 (2) SCC 213 : 1993(2) SLR. 1, Dr. Arundhati Ajit Pargaonkar, vs. State of Maharashtra & Ors. reported in 1995 SC 962 and Ashok Kumar Chatterjee vs. State of West Bengal & Ors. reported in 1995 (2) CLJ 255. 34. The basic fact of the matter being not in dispute, the questions which arise for consideration in these appeals are as follows: 1. Whether the writ petitioner was entitled to be absorbed in the post of Head Master in terms of the circular letter dated 10.7.1980 as he had continued in the post of officiating Head Master for a period of more than 2 years ? 2. Whether in view of the subsequent orders passed by this Court the appointment of Sri Anil Kumar Debnath is illegal? Re : Question No. 1. 35. It is not disputed that the school in question is a recognised aided school. Such recognised aided schools are governed under the provisions of West Bengal Board of Secondary Education Act, 1963. In terms of the said Act, Rules for Management of Recognised Non-government Institutions Aided and Unaided 1969 was framed. An institution has been defined in Rule 2B thereof as an institution recognised under West Bengal Board of Secondary Education. Rule 2B of the said Rules provides for the powers of the Managing Committee in term where of the committee of an aided institution can exercise such powers subject to the provisions of any grant in-aid scheme or pay Revisions Scheme or any order or directions or guidelines issued by the State Government or the Director in connection therewith and in force for the time being. The power to appoint teaching and non-teaching staff would depend upon the strength sanctioned for that purpose. An approval for such appointment is required to be sought for from the Director or any other officer authorised by him. 36. Sub-rule (7) of Rule 28 which is material for the purpose of these appeals, reads thus "In all case of appointment, both permanent and temporary, the committee shall issue letters of appointment specifying the terms and conditions of such appointment. In the case of a permanent appointment, a teacher or an employee appointed on probations shall be confirmed on the expiry of the period of probation unless an order to the contrary is issued at least six weeks before the date on which confirmation normally falls due. In the case of an appointment on temporary basis against a permanent post the teacher or the employee so appointed shall be confirmed on completion of two years' continuous satisfactory service in the Institution: Provided that no appointment shall be made in a vacancy if it is not against a sanctioned post, permanent or temporary." 37. In exercise of his powers conferred upon him by clauses (i) and (ii) of sub-rule (1) and clause (1) of sub-rule (4) of rule 28 of the said Rules the Director of School Education issued certain directions as regards appointment of teaching and non-teaching staff. The said directions came into force with effect from 29th August, 1987. 38. It is not disputed that the said Recruitment Rules having statutory force are mandatory in nature. 39. The learned trial Judge had held that the post of the Head Master is a selection post. The Recruitment Rules provide for a detailed procedure as to how a selection of a Head Master shall be made; the essential requirements, inter alia, being: (1) prior permission of the District Inspector of Schools, (2) advertisement and notification of vacancy to the- Employment Exchange in terms of the said Rules, (3) selection by a Selection Committee constituted for that purpose, (4) approval of the panel prepared by the selection committee, (5) approval of the District Inspector of Schools of such panel, (6) appointment of the teacher from such approved panel by the Managing Committee, and (7) approval of the appointment by the District Inspector of Schools. 40. 40. This Court at this juncture need not go into the question as regards the validity and otherwise of the appointment of the writ petitioner in the post of Assistant Head Master and/or his qualification in relation thereto as it is admitted that the petitioner merely took over charge of the post of Head Master on retirement of its permanent incumbent. From the letter dated 27.7.1982 issued by the District Inspector of Schools, Cooch Behar as contained in Annexure 'G' to the application it appears that the Head Master was requested to hand over the charge of the school to the petitioner. By an order dated 27.7.1982 the petitioner was permitted to take charge on production of authentic record by virtue of which he can claim to be approved as Assistant Head Master of the school. 41. It appears that pursuant to a resolution dated 28.7.1982 two members of the Managing Committee and the petitioner went to the office of the District Inspector of Schools for obtaining clarification and the petitioner was allowed to take over charge of the school on the basis of the opinion of the Government Pleader dated 31.7.1982. 42. A question has arisen as to whether the said opinion was binding on the concerned parties in the event if it be held that the writ petitioner was not qualified to hold the post of approved Assistant Head Master. In our opinion, it is not necessary to go into the question as admittedly the petitioner was asked to officiate in the post of Head Master. He was not appointed in terms of the Recruitment Rules. Re was not selected upon consideration of the cases of other eligible candidates. The Circular Letter No. 536-Edn. (Estt.)/9A-9/80 dt. 16.7.1980 on the basis whereof the petitioner raised his claim speaks of appointment against permanent post. The material portion of the said circular letter reads thus: "The undersigned is directed to say that there are recognised schools both aided and unaided, where teachers and non-teaching staff were appointed against permanent posts and have been serving for consecutive two years on salaries and allowances as per grants-in-aid Rules. It has been represented to the Government that the appointments of such employees have not yet been approved. It has been represented to the Government that the appointments of such employees have not yet been approved. The Government after careful consideration have been pleased to decide that the appointments of teachers and other non-teaching employees serving against permanently sanctioned posts for consecutive two years and enjoying salaries and allowances as per grants-in-aid Rules should be immediately approved. 43. The said circular letter, in my opinion, speaks of appointment in a regular manner and not appointment as an In-charge. . 44. In any event the said circular letter must be held to have lost its force after coming into force of the statutory rules. As noticed hereinafter it was the contention of Mr. Moitra himself that an appointment without following the mandatory provisions of the Recruitment Rules would be bad. In that view of the matter it is not necessary to discuss the matter in details. Suffice it to point out that in Ashok Kumar Chatterjee vs. State of West Bengal reported in 1995 (2) CLJ 255 this Court upon taking into consideration some of the aforementioned decisions held that no appointment can be made by way of regularization of services in violation of any statutory provisions of the Recruitment Rules. 45. In the matter of Madhusudan Pal vs. State of West Bengal and Ors. reported in 1995(2) Cal LT (CRN) page 302, I have again taking into consideration, inter alia, the decisions of Jacob M. Puthuparambil & Ors. vs. Kereala Water Authority and Ors. reported in AIR 1990 SC 2228 ; Madhyamik Siksha Parishad, U.P. vs. Anil Kumar Mishra and Ors. reported in AIR 1994 SC 1638 ; State of Jammu & Kashmir vs. Dr. Narindra Mohan reported in 1994 (2) SCC 630 and other cases held : "It is now well settled by reasons of the various decisions of the Supreme Court that regulation (sic for regularisation) can be a mode of service when rules are framed in terms of proviso appended to Art. 309 of the Constitution of India. The State is bound to comply with the said rules while granting appointment. The State is also bound to comply with the provisions of Arts. 14 and 16 of the Constitution of India. The appointments of the petitioners ex-facie being wholly illegal and without jurisdiction were void ab-initio and they, pursuant thereto, did not derive any legal right whatsoever to continue in service. The State is also bound to comply with the provisions of Arts. 14 and 16 of the Constitution of India. The appointments of the petitioners ex-facie being wholly illegal and without jurisdiction were void ab-initio and they, pursuant thereto, did not derive any legal right whatsoever to continue in service. They have, thus, acquired no right whatsoever to get their services regularised. In fact, in absence of any statute or statutory rules appointment by regularisations unknown to service jurisprudence." 46. In Ram Saran Shastry vs. State of West Bengal & Ors. reported in 1995 (1) CHN page 419 I have also held that any teacher appointed de hors the rule does not derive any legal right to continue in the said post. 47. Jakob's case (supra) was distinguished by the Supreme Court in the subsequent cases as in the aforementioned cases there existed statutory rule for regularisation being rule No.9 of the Kerala State and Subordinate Services Rule. 48. In Court Deb vs. Maya Sarkar reported in 91 CWN 935 this Court clearly held that in terms of rule 28 of 1969 Rules there does not exist any automatic and deemed provision for confirmation. It was held that the power of the committee under rule 28(1)(i) to appoint teachers and other employees on permanent basis has been made subject. to the conditions : (i) The appointment letter to be made in accordance with the directions given by the Director; (ii) The appointment on permanent basis are to be made within the sanctioned strength; and (iii) Approval of appointment would be thereafter sought fi'om the Director or any other officer authorised by him. 49. By reason of the Recruitment Rules such power has been delegated to the District Inspector of Schools, Secondary Education. 50. Yet recently in Dr. Arundhati Ajit Pargaonkar vs. State of Maharashtra & Ors. reported in AIR 1995 SC 962 the Supreme Court, inter alia, held that a continuous service by itself do not give rise to the claim of regularisation. This aspect of the matter has recently been considered in great details by this Bench in the Registrar, North Bengal University vs. Sri Biplab Roy (FMAT No. 159 of 1993) disposed of on 22.1.96 wherein this Court considered a large number of decisions including the decisions cited by Mr. Banerjee. This aspect of the matter has recently been considered in great details by this Bench in the Registrar, North Bengal University vs. Sri Biplab Roy (FMAT No. 159 of 1993) disposed of on 22.1.96 wherein this Court considered a large number of decisions including the decisions cited by Mr. Banerjee. The decision of Manju Debi's case (78 CWN page 952) upon which reliance has been placed by Mr. Moitra has no application to the facts of this present case. In that case the court was concerned with constructions of sub-rules (1) and (7) of rule 28 and, inter alia, held that upon harmonised construction, sub-rule (7) must be held to be applicable in case of appointments of teacher both permanent and temporary and approval or disapproval of the Director of such appointment must be given within the time limit fixed for confirmation of such appointment. 51. In our opinion, therefore, the learned trial Judge was correct in holding that the petitioner was not entitled to be absorbed in the services in terms of the said purported circular letter dated 18.7.1980. Re: Question-2 52. The main objection, as noticed hereinbefore, of Mr. Moitra is that advertisement was issued although no prior permission of the District Inspector of Schools for such appointment was obtained. 53. It is not in dispute that qualification for appointment in the post of Head Master is prescribed by a circular letter. 54. The 1969 Rules or the directions issued by the Director of School Education do not provide for any qualification therefor. In terms of the said circular, evidently the petitioner was entitled to be considered for appointment. 55. The aforementioned position was clearly conceded to by the respondent and in fact the learned trial Judge in his impugned judgment has also directed that the petitioner should also be considered along with other eligible candidates. The Division Bench of this Court in its order dated 26th May, 1992 also directed that the case of the petitioner be considered along with other eligible candidates. The Division Bench of this Court in its order dated 26th May, 1992 also directed that the case of the petitioner be considered along with other eligible candidates. In that view of the matter in my considered opinion, it was not necessary for the Managing Committee 'of the School to obtain any further prior permission from the District Inspector of Schools as the second prior permission granted by him would be deemed to have stood modified by reason of the order passed by the learned trial Judge in view of the fact that the qualification for holding the post of Head Master is M.A. or M.sc. and, thus, the petitioner could not have been excluded from being considered. In any event admittedly the petitioner submitted himself to the jurisdiction of the Selection Committee pursuant to the said advertisement. He, therefore, took a chance of being selected. It is now well settled principles of law that he, who took a chance by submitting to the jurisdiction of the concerned authority, cannot subsequently challenge its jurisdiction. This aspect of the matter has recently been considered by this Bench in Rabindra Nath Shome vs. Subrendu Bhattacharjee & Ors. (FMA 1144 of 1992) disposed of on 2nd February, 1996 wherein this Court relied upon and referred to a decision of the Bombay High Court in Gandhinagar Motor Transport Society vs. State of Bombay reported in AIR 1954 Born 202 at page 203 and a decision of Sohan Singh vs. The General Manager, Ordnance Factory, Khamaria, Jabalpur & Ors. reported in AIR 1981 SC 1862 . Reference in this connection may also be made to Arun Kumar Jain vs. State of Bihar reported in 1995 (2) BLJ R 821. The petitioner, therefore, is estopped and precluded from questioning the said order. 56. So far as Mr. Moitra's objection to the effect that the District Inspector of Schools had sought for certain clarification from Managing Committee of the school in terms of his letter dated 4th February, 1993 is concerned; suffice it to say that the petitioner himself questioned the same by filing a writ application on the Original Side of this Court and obtained an interim order staying recasting of the panel in terms of the interview held on 15th November, 1992. 57. 57. It may also be noticed that the Managing Committee sought for a clarification from this Court and this Court by an order dated 11.3.1994 granted permission to make appointment upon approval of the panel subject to the result of the appeal. In terms of the said order the District Inspector of Schools passed a detailed order after giving an opportunity of hearing to all concerned which is contained in Annexure 'X' to the affidavit in-opposition filed on behalf of the Managing Committee in FMAT No. 542/ 92. From a perusal of the said order it appears that the writ petitioner did not appear before the District Inspector of Schools on one pretext or the other. The District Inspector of Schools rightly observed in his order dated 21.4.1994 that an institution like the said school with 1,700 students cannot be run without the Head of the Institution and the papers and records were sufficient to arrive at a decision for consideration of the panel. The District Inspector of Schools further observed that the matter cannot be deferred for killing the time only and creating complication in the matter. He upon a detailed consideration held : " It appears from security and examination of records at the school level and in the office file of the D.I. of Schools (S.E.). Cooch Behar that Sri Saha the petitioner, was appointed Asstt. Headmaster of the school w.e.f 10.10.74 and his service was approved by the then D.I of Schools (S.E.), Cooch Behar but subsequently the said approval of appointment as Asstt. Headmaster was withdrawn since he was not duly qualified for the post at that time. The essential qualification of an Asstt. Headmaster was graduate with Honours/ M.A., B.T., B.Ed. but Sri Saha was a trained commerce Graduate. It is to mention here that a second class commerce Graduate teacher prior to 1.1.66 was entitled to get benefit of the scale of Honours Graduate only. It is a' fact that he obtained Post-graduate decree in the year 1979. But no approval in the post of Asstt. Headmaster was accorded subsequently. Hence, the Selection Committee did not give him marks for his experience as Asstt. Headmaster. All the extra curricular certificates produced by Sri R.C. Saha before the Selection Committee have been examined and the undersigned is of opinion that no marks should be awarded on the basis of the said certificates. Headmaster was accorded subsequently. Hence, the Selection Committee did not give him marks for his experience as Asstt. Headmaster. All the extra curricular certificates produced by Sri R.C. Saha before the Selection Committee have been examined and the undersigned is of opinion that no marks should be awarded on the basis of the said certificates. So, the Selection Committee has done the thing as per rule." 58. He arrived at a finding that even if the petitioner is given mark as desired by him, he would not come to the picture as regards preparation of the panel. 59. He excluded the first name, namely Sri Subhash Chandra on the ground that he did not have the requisite qualification of 10 years' experience. He, therefore, held a panel consisting of two persons, namely Sri Anil Kumar Debnath, M.Sc. B.Ed: and Sri Sudip Goswami, M.Sc. B.Ed. should be constituted. 60. Pursuant to the aforementioned order Sri Debnath was appointed on 23.4.1994 and the order recalling the application was filed on 14th July, 1994 but even in the said order it was observed: "The order dated 11th March, 1994, as passed by this Court, itself envisages the existence of a panel and it was on the basis thereof the District Inspector of Schools (S.E), Cooch Behar, was directed to consider the panel, which, however, was not the exact state of affairs, as existed, more so, to say the least, there was some amount of suppression of material facts. This Court normally would not have probably dealt with the matter in the manner as is being presently dealt with by reason of the fact that the District Inspector of Schools (S.E.), Cooch Behar, has already dealt with the matter in extenso with reasons. But the factum of displacement of the first person in the panel without there being any proper hearing given to him is a sufficient ground for recalling the earlier order dated 11th March, 1994." 61. Unfortunately the order dated 21.4.1994 passed by the District Inspector of Schools which was annexed by the writ petitioner himself in his affidavit-in-opposition to the Managing Committee's application for further orders was not brought to the Bench's notice. It was, therefore, not a case where there did not exist any panel. Unfortunately the order dated 21.4.1994 passed by the District Inspector of Schools which was annexed by the writ petitioner himself in his affidavit-in-opposition to the Managing Committee's application for further orders was not brought to the Bench's notice. It was, therefore, not a case where there did not exist any panel. In fact it is admitted that in terms of this Court's order of stay dated 26th May, 1992 advertisement had been issued and the selection committee took interview of all the candidates including the petitioner and the managing committee sent a panel to the District Inspector of Schools for his approval wherein the name of the writ petitioner did not find place. 62. The very fact that even according to the writ petitioner, the District Inspector of Schools earlier sought for certain clarification in terms of his letter elated 4th February, 1993 goes to show that such a panel was existing and he himself questioned the said order dated 4th February, 1993 by filing a writ application on the Original Side of this Court and obtained an interim order of stay on 25th February, 1993. Thus, in view of the aforementioned order, the clarification• sought for or the objection raised by the District Inspector of Schools dated 4th February, 1993 was no longer in force nor the same was required to be considered. On this ground alone Mr. Moitra's submission to the effect that the District Inspector of Schools cannot recast the panel must be rejected. A panel is required to be obtained by the District Inspector of Schools with a view to enable the said authority to consider as to whether the panel has been prepared in terms of the Recruitment Rules or not as one of the candidates did not have the requisite qualification for such appointment, and, then his name, has rightly been excluded and the name of the second person, namely, Sri Anil Kumar Debnath was considered as at serial no. 1 thereof. It is not a case of disapproval of the whole panel. 63. Recruitment Rules have a statutory force. This Court in exercise of its jurisdiction under Art. 226 of the Constitution of India cannot issue any direction which would be contrary to and inconsistent with the statutory rules. 1 thereof. It is not a case of disapproval of the whole panel. 63. Recruitment Rules have a statutory force. This Court in exercise of its jurisdiction under Art. 226 of the Constitution of India cannot issue any direction which would be contrary to and inconsistent with the statutory rules. It is now well known that while exercising its power of judicial reviev•; this Court will not divest judicial functionary from exercising its jurisdiction under a statute nor can it ask some other authority to perform his duties. That part of the judgment of the learned trial Judge, therefore, whereby and whereunder a selection committee was constituted must be held to be bad in law, and thus, cannot be sustained. Reference in this connection may be made to U.P. Sales Tax Service Association vs. Taxation Bar Association, Agra & Ors. reported in AIR 1996 SC 98 . 64. It is, however, true that the petitioner worked in the said school in terms of the order passed by the District Inspector of Schools. In our opinion, interest of justice will be sub-served if the petitioner is allowed to draw the salary in the scale of Headmaster which he admittedly had been drawing prior to April 1994 when Sri Anil Kumar Debnath was appointed whereafter he would be paid his salary as an Assistant Head Master, which he had been getting prior to his appointment as officiating Headmaster. Before parting with this case we may observe that we have not applied our mind as regards the allegation against the petitioner as to whether the departmental proceedings are still pending against him and other questions if any, are also left open for a decision in appropriate proceedings. So far as the FMAT No. 3342/92 is concerned, it appears that the said appeal was preferred against an order dated 15th September, 1992 passed by Paritosh Mukherjee, in one of the writ applications filed by the writ petitioner, inter alia, on the ground that on the said date the said learned Judge has no determination. Keeping in view the fact that thereafter the writ petition filed by the writ petitioner being 1333(W) of 1992 has been disposed of and an appeal arising out of the said judgment is also being disposed of, in our opinion it is not necessary to pass any separate order on the aforementioned question. Keeping in view the fact that thereafter the writ petition filed by the writ petitioner being 1333(W) of 1992 has been disposed of and an appeal arising out of the said judgment is also being disposed of, in our opinion it is not necessary to pass any separate order on the aforementioned question. If the writ petition is still pending, the same may proceed in accordance with the law. We have, however, recorded that we are not entertaining this appeal also in view of the fact that no stay has been passed therein. The said appeal is, therefore, disposed of with the aforementioned observations. 65. For the reasons aforementioned, the appeal filed by the writ petitioner being No. FMAT 957/92 is dismissed and FMAT 542/92 is allowed but in the facts and circumstances of this case there will be no order as to costs. S.N. Chakrabarty, J. I agree. FMAT 957 of 1992 dismissed. FMAT 542 of 1992 allowed.