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1996 DIGILAW 19 (CAL)

Basudeb Bag v. Bhaskar Chandra Kar

1996-01-15

SATYA NARAYAN CHAKRABORTY, SATYABRATA SINHA

body1996
JUDGMENT The judgment of the Court was as follows :–– Sinha, J: This appeal is directed against a judgment and order passed by S. K. Sen, J., dated 12.9.94 passed in C. R. No. 11949 (W) of 1983, whereby and whereunder the said learned Judge allowed the writ application filed by the writ petitioners questioning the memos dated 2.9.82 and 21.10.82 issued by the District Inspector of Schools, whereby and whereunder he had cancelled a panel prepared by the Managing Committee of the school. 2. The fact of the matter lies in a very narrow compass. 3. The father of the writ petitioner No.1, Narayan Chandra Kar was a Class IV employee. He used to work as drinking water supplier cum night guard. He retired on April 1, 1991. The writ petitioner No.1 had been performing his duties on ad hoc basis. Another employee, namely, one Bhajahari Ruidas was working as Sweeper as also locking and unlocking the gates of the school. He died on 2.3.81, whose duties were being performed by the petitioner No.2 on ad hoc basis. Two Class IV vacancies arose in the said school. The Managing Committee by a memo No. 47 dated 8.5.81 sought for permission to fill up the said two posts. Such permission was granted by the competent authority on 14.5.81 and an advertisement was issued in a local newspaper in terms of the rules as was existing on 1.6.81 and interview was held on 22.5.81. However, in the meanwhile, the Director of School Education, West Bengal, in purported exercise of his power conferred upon him by Clauses (i) and (ii) of sub-rule (1) and by Clause (i) of sub-rule (4) of Rule 28 of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided) 1969, in supersession of his earlier guideless issued guidelines for compliance by recognised Non-Government secondary schools. The said rules contained the procedures as regards the appointment of teaching and non-teaching staff. There appears to be a dispute at the Bar as to whether the Rules as were existing prior to the said Rules of 1981, which was published in the Official Gazette on 1.8.81 contained any guideline as regards appointment of non-teaching staff but keeping in view the order proposed to be passed, we do not intend to dilate on the aforementioned subject. 4. 4. The District Inspector of Schools, however, by an order dated 2.9.82 rejected the panel sent to him by the Managing Committee of the School, which, as noticed hereinbefore, was prepared in terms of the earlier rules allegedly on the ground that the procedures for such selection of Class IV staff had not been followed. He granted a fresh permission on 21.10.92 and again an interview was held on 17.8.93 and the said panel was approved on 29.9.83. The writ petitioners/respondents questioned the said second panel and it is accepted at the Bar that an interim order was passed directing the District Inspector of Schools not to give approval to the second/panel. 5. The learned Trial Judge upon taking into consideration the respective contentions of the parties, inter alia, held that keeping in view the fact that advertisement had been made in a local newspaper on 1.6.81, before the amended rules came into force, and as interview was also held in terms thereof, the subsequent rules dated 1.8.81 could not have been given a retrospective effect. It may be noticed that in terms of the amended rules the Managing Committee of the school was required to notify the vacancies before the Employment Exchange and the Employment Exchange was required to sponsor the names of concerned candidates. 6. This appeal appears to have been filed at the instance of the appellants who were not made parties in the writ application on or about 17.11.94. A Division Bench of this Court, however, by an order dated 22.11.95 allowed the application filed by the appellants for condonation of delay under Section 5 of the Limitation Act, and directed expeditious hearing of this appeal. 7. Mr. Chatterji appearing on behalf of the appellants submitted that keeping in view the fact that the District Inspector of Schools had cancelled the first panel and further in view of the fact that a second panel was formed in which the appellants topped the list, the learned trial Judge erred in allowing the writ application. According to the learned Counsel, keeping in view the facts and circumstances of this case, it was obligatory on the part of the District Inspector of Schools to grant approval to the second panel in view of the fact that the said rule was framed before the interview was held. 8. According to the learned Counsel, keeping in view the facts and circumstances of this case, it was obligatory on the part of the District Inspector of Schools to grant approval to the second panel in view of the fact that the said rule was framed before the interview was held. 8. Learned Counsel appearing on behalf of the writ petitioners/respondents as also the Headmaster of the school, however, submitted that the rules published in the Gazette dated 1.8.81 did not reach the school, nor was circulated by the District Inspector of Schools, as a result whereof interview was held on 22.5.82. No exception was taken by the District Inspector of Schools to the preparation of the panel and he merely rejected the same only on the technical ground that the guideline issued by the Director of School Education dated 1.8.81 was not followed in letter and spirit. 9. In our considered opinion, the question raised in this appeal may be disposed of on a short point. It is admitted that vacancies arose much prior to 8.3.81. It is also not in dispute that prior permission had been granted on 14.5.81 and an advertisement in a local newspaper was made on 1.6.81. The guidelines have been issued by the Director of School Education in exercise of his powers conferred upon him under the rules. It is true as has been contended by Mr. Chatterji that the said guidelines have been issued in supersession of the earlier guidelines, but nothing has been pointed out before us that the first panel was constituted in violation of any mandatory provision of the guidelines issued by the said authority. In fact, as noticed hereinbefore, there appears to be some dispute at the Bar as to whether the said guidelines had any application in relation to appointment of Class TV employees, or not. Be that as it may, the guideline issued by the Director of School Education, even if taken into consideration, clearly goes to show that several steps are required to be taken by the Managing Committee of the school as also the District Inspector of Schools as regards filling up of vacant post of teaching and non-teaching staff in an aided school. Grant of prior permission by the District Inspector of Schools plays an important role, inasmuch as, in absence of such permission neither any advertisement can be made nor the names of eligible candidates can be asked for from the concerned Employment Exchange. We are, having regard to the facts and circumstances of this case, of the opinion that keeping in view the fact that prior permission was granted by the District Inspector of Schools on 14.5.81 and advertisement was made in terms of the existing rules on 1.6.81, the process of selection had already started. In (1) Y. V. Ranga & Ors. v. J. Sreenivasa Rao reported in AIR 1983 SC 852 the Apex Court has clearly held that vacancies which occurred prior to amended rules would be governed by the old rules and not by the amended rules. However, it may be noticed that in the aforementioned decision, the fact involved was that a panel was required to be prepared every year. The Apex Court yet again in the case of (2) A. A. Calton v. The Director of Education & Anr. reported in AIR 1983 SC 1143 , observed :–– "But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. It did not have any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned Counsel for the appellant that the law as amended by the U. P. Act 26 of 1975 should have been followed in the present case." 10. The aforementioned two decisions of the Supreme Court of India has been followed by the Apex Court in the case of (3) P. Mahendran & Ors v. State of Karnataka & Ors. reported in AIR 1990 SC 405 , wherein the Supreme Court clearly held that as the process of selection had commenced in 1983 which had to be completed in accordance with law as it stood at the commencement of the selection, the said selection could not be held to be illegal. Keeping in view the aforementioned binding decision of the Supreme Court of India, we have no other option but to hold that as the process of selection had started prior to coming into force of the new rules, which, as indicated hereinbefore, was published on 1.8.81, the learned Judge was right in arriving at a finding that the said rules could not have been given retrospective effect. In all fairness to Mr. Chatterji however, we may note the decision of the Supreme Court of India in the case of (4) Ashok Kumar Sharma & Anr. v. Chander Shekher & Anr. reported in 1993 Supp. (2) SCC 611. The said decision was rendered in an absolutely different situation. The question which arose for consideration was as to whether an applicant who did not have the requisite qualification on the date of filing of the application could have been refused to be considered for appointment although on the date of interview he acquired such qualification. The aforementioned decision was rendered upon interpretation of Rule 37 of the Jammu & Kashmir Public Service Commission Business Rules. It may, however, be noticed that R. N. Sahai, J., took a contrary view. 11. The aforementioned decision was rendered upon interpretation of Rule 37 of the Jammu & Kashmir Public Service Commission Business Rules. It may, however, be noticed that R. N. Sahai, J., took a contrary view. 11. In this case, however, we are not concerned as to whether acquisition of a qualification at a subsequent stage was directory or mandatory in the context of Rule 37 of the Jammu & Kashmir Public Service Commission Business Rules, or not, inasmuch as, as noticed hereinbefore, in this case we are only concerned with the question as to whether the process of selection started prior to coming into force of the rules published on 1.8.81. Furthermore, in the instant case, we are satisfied that as the first panel was cancelled only on a technical ground and not on the violation of the mandatory provisions of the recruitment rules or for violation of the provisions of Articles 14 and 16 of the Constitution of India, and, thus, the learned Trial Judge cannot be said to have committed any error in allowing the Writ Application. Before we part with this case, we may also observe that despite the fact that the appellants were aware of the pendency of the Writ Application in view of the fact that no appointment letter was issued in their favour pursuant to the interim order passed by this Court, and despite the fact that the matter had been pending for a long time, they filed the Writ Application on 25.11.94. 12. For the reasons aforementioned, there is no merit in this appeal, which is dismissed, but in the facts and circumstances of this case, there will be no order as to costs. Mr. Chatterji prays for stay of operation of this order. However, keeping in view the fact that this decision has been rendered in the light of the decisions of the Supreme Court of India, we refuse to stay the operation of the judgment, as has been prayed for. Chakraborty, J.: I agree.