Biman Chandra Karmakar v. State of West Bengal — 1998 DIGILAW 108 (CAL)

JUDGMENT Sinha, J. : This appeal is directed against an order passed by a learned Single Judge of this Court in various writ applications whereby and whereunder several writ applications had been disposed of directing as follows :– "Following the judgment dated 27.1.97 in F.M.A.T. No. 3168 of 1996 I district the Local Employment Exchange to forward the names of the petitioners if their names have not yet been forwarded for appointment in the post of Primary Teacher as there are at present 497 vacancies under the said post under the Dakshin Dinajpur District Primary School Council and for which requisition has already been made and the Employment Exchange has forwarded now trained and untrained teachers. Petitioners' Darnell should be so forwarded within ten days from the date of the communication of this order by the Employment Exchange and the authority concerned shall consider the case of the petitioner along with other eligible candidates and select them if they are found suitable condoning the age of bar. Such exercise shall be completed within 31st May, 1997 the writ petition and the application are disposed of accordingly no order as to cost." 2. It would appear from the said judgment that apart from the judgment dated 27.1.97 in F.M.A.T. No 3168 of 1996 no other reason have been assigned nor the respective cases of the parties have been discussed. For the purpose of disposal of the appeal, it may not be necessary for us to consider in details the legislative history and the different circular letters issued by the State Government from time to time as the same have been taken into consideration in the decision of the Division Bench of this Court in the case of (1) West Bengal Board of Secondary (sic for Primary) Education v. State of West Bengal & Ors. reported in 1997 (1) CLJ 165 . Suffice it to say that the primary education in the State of West Bengal previously used to be governed by the Bengal (Rural) Primary Education Act, 1930. A Rule was framed under the said Act in the year 1940. Although the West Bengal Primary Education Act, 1973 came into force, various provisions thereof remained inoperative. Rules under 1973 Act was framed in the year 1991. A Rule was framed under the said Act in the year 1940. Although the West Bengal Primary Education Act, 1973 came into force, various provisions thereof remained inoperative. Rules under 1973 Act was framed in the year 1991. A learned Single Judge of this Court in one of the writ applications stayed the operation of the said Rule as a result whereof the recruitment of teachers continued to be governed under the Old Rules. It appears that the State of West Bengal issued a circular letter bearing No. DNES/ Sl. No. 1/1987 dated 23.4.87 whereby and whereunder it was directed that the candidates having experience in adult education non-formal education will get priority for submission for vacancies of untrained teachers provided they possess the minimum qualification and have recorded their above experience in the Employment Exchange. As despite the said circular letter as also the provision in the 1940 Rules for grant of preference in appointment to the trained teacher in the existing vacancies, a large number of posts were filled up from the untrained candidates, Paschimbanga Prathamik Sikshak Shikhan Prapta Bekar O- Sikshak Samiti, West Bengal & Ors. filed a writ application in this Court. The said writ application was allowed. The District School Board filed an appeal against the said order. The judgment of the Division Bench of this Court is reported in (2) 1991 (1) CLJ 479 , District School Board v. Paschimbanga Prathamik Sikshak Samiti. Keeping in view the provision of Rules and particularly Rule 3B(6) of the 1940 Rules the Division Bench of this Court directed as follows :– "In view of the aforesaid statutory Rule 3B, the life of a panel has been fixed for a period of twelve months from the date of its presentation. The Government may extended the period of such panel by a period not exceeding six months. There is no dispute that the period of twelve months expired long ago. It was stated at the Bar that there is no order of the State Government extending the period of the panels. As such, the panels prepared in different district between the year 1983 and 1985 have lost their existence and no direction can be given to make appointments on the basis of those panels after making necessary scrutiny and examination in the light of the direction given by the learned Judge. As such, the panels prepared in different district between the year 1983 and 1985 have lost their existence and no direction can be given to make appointments on the basis of those panels after making necessary scrutiny and examination in the light of the direction given by the learned Judge. Accordingly, taking all the facts and circumstances into consideration, I direct the different District School Boards and the concerned authorities to take immediate steps for preparation of fresh panels in accordance with law and in terms of the Rules referred to above. I further direct that all appointments against the additional posts sanctioned by the State Government from time to time due to enhancement in the roll strength in the existing Schools in different districts be filled up by the trained candidates only. So far as the normal vacancies existing in the Schools are concerned, at least 50% must be filled up by the trained candidates only. In respect of remaining 50% of such vacancies, untrained candidates should be considered along with trained candidates on some rational and reasonable principle." 3. However, in the meantime, another writ application was filed before this Court alleging that the judgment of the Division Bench has not been complied with by the Councils. The said writ application was disposed of by a judgment and order dated 30.3.94. Paschimbanga Prathamik Sikshak Shikhan Prapta Bekar O. Sikshak Samiti & Ors. filed an application for Special Leave to Appeal before the Supreme Court of India. 4. The decision of the Supreme Court which was rendered on 5th December, 1995 has since been reported in 1996(7) SCC 333 . It appears that during the pendency of the aforementioned Civil Appeal the Supreme Court gave various directions as regard legality or otherwise of the panel prepared for appointment of Assistant Teachers in Primary Schools by various District School Boards. The Apex Court directed the respective District Judges to make an enquiry and submit a report before the Apex Court. By subsequent order, such inspection was limited to prepare the panel in the District of Howrah, Purulia and Burdwan. The Apex Court in its final judgment held that the panel for recruitment to the post of Primary School Teachers in the District of Malda and Midnapore was not validly made and therefore the said panel is quashed. By subsequent order, such inspection was limited to prepare the panel in the District of Howrah, Purulia and Burdwan. The Apex Court in its final judgment held that the panel for recruitment to the post of Primary School Teachers in the District of Malda and Midnapore was not validly made and therefore the said panel is quashed. The Apex Court however observed :– "As the applicants, at whose instance the writ petitions were filed in the High Court by their societies, which ultimately gave rise to the present appeals, have been ventilating their legitimate grievances for a number of years it is just and desirable that they should not be debarred from being considered for appointment solely on the ground that they have crossed the age bar provided under the rules, Notifications or Circulars, as the case may be. Needless to say that this direction or our is to be complied with while preparing the initial panels in terms of this order and not subsequent panels. Since the matter is long pending the panels should be prepared within a period of six months from today. Any appointments already made from the panels of the above two districts may be continued on the clear understanding that such appointments shall stand terminated on corresponding appointments being made from the fresh panels unless, of course, such appointees also qualify to be empanelled therein. As regards the other districts concerned we, however, make it clear that the directions given by the High Court in the impugned judgment for being complied with before giving appointment from the panel prepared for the District of Howrah, will also apply to them and in complying with the above directions the respondents shall keep in view the observations and findings or the Special Officers appointed by this Court." 5. It is also admitted that in the meantime, 1991 Rules came into force. A learned Single Judge of this Court stayed the operation of the said Rule. While disposing of the writ application filed by the Organiser Teachers' the learned Judge however held that the said Rule is intra vires but the operation of the said Rule was directed to be stayed unless all the Organiser Teachers were absorved in service. A learned Single Judge of this Court stayed the operation of the said Rule. While disposing of the writ application filed by the Organiser Teachers' the learned Judge however held that the said Rule is intra vires but the operation of the said Rule was directed to be stayed unless all the Organiser Teachers were absorved in service. The West Bengal Board of Primary Education preferred an appeal against the said judgment and a Division Bench of this Court set aside the said judgment and allowed the appeal. The said decision, as noticed hereinbefore, is reported in 1997(1) CLJ 165 . There cannot be any doubt that after the said decision, 1991 Rule which was framed in terms of Section 10(5) of the West Bengal Primary Education Act, 1973 is in force. The respective District Primary School Councils have taken steps to fill up the existing vacancies which are large in number. Some writ applications have been filed by those teachers who although were trained teacher but did not come within the purview of the eligibility clause as contained in Rule 8 of the 1991 Rules. A Division Bench of this Court in the case of (3) Ratan Kumar Saha & Ors. v. State & Ors. (F.M.A.T. No. 3168/96) disposed of on 27.1.97, having taken into consideration the decision of the Apex Court in the case of (4) Paschimbanga Prathamik Sikshak Etc. v. West Bengal Primary School Council reported in 1996(7) SCC 333 and the decision in the case of (5) U.P. State Road Transport Corporation & Anr. v. U. P. Parivahan Nigam Shishukhs Berozgar Sangh & Ors. reported in the Supreme Court Service Rulings Vol. 9 page 68, inter alia directed consideration of age bar while directing that their names should be sponsored by the Employment Exchange. As indicated hereinbefore, the impugned judgment has been passed on the basis of the said decision alone. 6. However, having heard the learned Counsel for the parties we are of the opinion that when valid statutory Rules are in operation, recruitment of Primary teachers must be made by the respective District Primary School Councils who are creature of the statute, in terms of the said Rules. It is well-known that an appointment has to be made in terms of a statutory Rules and an appointment which has been made in violation thereof would be a nullity. It is well-known that an appointment has to be made in terms of a statutory Rules and an appointment which has been made in violation thereof would be a nullity. Reference in this connection may be made to the case reported in (6) 1995 (1) SCC 138 and (7) JT 1996 (2) SC 455. There cannot be any doubt that after framing of 1991 Rules, all the earlier circular letters and orders ceased to operate. In fact, the State Government also in terms of a circular letter dated 13th July, 1996 clarified the position that the aforementioned Directorate circular bearing No. DNES/Sl. No. 1/1987 has become inoperative. 7. From a perusal of the judgment in Ratan Kumar Saha's case (supra) it appears that the same has been rendered without taking into consideration the purport of 1991 Rules. Admittedly Rules 8 & 9 govern the field of recruitment of Primary Teachers. 8. It is now a well-settled principle of law that if a judgment is rendered without taking into consideration the statutory Rule, the same must be held to be passed sub-silentio and not binding upon any subsequent Bench. As in Ratan Kumar Saha's case (supra) the Division Bench of this Court had not taken into consideration the provision of Rules 8 & 9, the said decision must be held to have been passed sub-silentio and is not binding on this Bench. 9. It may be true as has been submitted by the learned Counsel for the appellant that the Apex Court directed that the appointment of teachers apart from the District of Malda and Midnapore should be made in terms of the direction issued by the Division Bench of this Court in the case of Dist. School Board v. Paschimbanga Prathamik Sikshak Samiti & Ors. reported in 1991 (1) CLJ 479 . However as noticed hereinbefore that the direction had been issued keeping in view the fact that the candidates had been litigating for a long time. It however appears that before the Apex Court the effect of Rules 8 & 9 of 1991 Rules had not brought to the notice of it. In view of the changed situation, this Court is bound to take into consideration the provision of the statutory Rules and cannot issue any direction directing recruitment of Assistant Teachers in contravention or in violation of the statutory Rules. In view of the changed situation, this Court is bound to take into consideration the provision of the statutory Rules and cannot issue any direction directing recruitment of Assistant Teachers in contravention or in violation of the statutory Rules. It is not this case of the writ petitioners that the said Rules are ultra vires. In fact as noticed hereinbefore the vires of the said Rule has been upheld by a Division Bench of this Court. 10. The decision of the Apex Court in the case of U. P. State Road Transport Corporation & Anr. v. U. P. Parivahan Nigam Shishukhs Berozgar Sangh & Ors. reported in the Supreme Court Service Ruling Vol. 9 page 68 has no application to the facts and circumstances of this case. 11. In that case the Apex Court in exercise of its jurisdiction under Article 142 of the Constitution of India in the background of that case directed as follows :– "In the background of what has been noted above, we state that the following would be kept in mind while dealing with the claim of trainees to get employment after successful completion of their training. (1) Other things being equal, a trained apprentice should be given preference over direct recruits. (2) For this, a trainee would not be required to get his name sponsored by any Employment Exchange. The decision of this Court in (8) Union of India v. H. Haragopal, AIR 1987 SC 1227 , would permit this. (3) If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the concerned service rule. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given. (4) The concerned training institute would maintain a list of the persons trained year wise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior." 12. This Court however does not have any such powers as the Apex Court has held that any appointment made in violation of the mandatory provision of the rules is Illegal. 13. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior." 12. This Court however does not have any such powers as the Apex Court has held that any appointment made in violation of the mandatory provision of the rules is Illegal. 13. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot issue a direction upon the statutory authority to ignore the mandatory provision of a statute. In fact as Indicated hereinbefore, the law laid down by the Apex Court in various other decisions is just the opposite. 14. In the case of (9) Prafulla Kumar Swain v. Prakash Chandra Misra reported in 1993 Supp (3) SCC 181 the Apex Court was considering the case of seniority of the incumbents. The matter of seniority was governed by the statutory Rules. The Apex Court considered the question as to whether in the fact of that case Rule 1959 or 1984 would apply in respect of gradation list which was under challenge. The Apex Court held :– "Therefore, by the operation of the deeming clause it only enables appointments made under 1959 Rules to be continued under 1984 Rules. Certainly by the repeal of 1959 Rules it cannot mean all those appointments cease. Nor again, the substantive provision of Rule 16, as stated above would govern. Therefore, Rule 24 has no application. Thus, we conclude that the seniority of direct recruits will have to be reckoned only from the date of appointment and not from the date of recruitment. The gradation list which was impugned by the respondent No.1 before the Tribunal was prepared in the pursuance of the order of this Court read with the aforementioned judgment of the Orissa High Court and this is so stated in a letter dated January 4, 1989 written by the Deputy Secretary to the Government of Orissa, Forest, Fisheries and Animal Husbandry Department, Bhubaneshwar to the Principal Chief Conservator of Forest, Orissa, Bbubaneshwar (Annexure-II to the Special Leave Petition in S.L.P. (C) No. 1604 of 1992). That this gradation list had been framed upon the aforesaid basis also does not appear to have been brought to the attention of the Tribunal." 15. That this gradation list had been framed upon the aforesaid basis also does not appear to have been brought to the attention of the Tribunal." 15. For the reason aforementioned, we are of the view that the judgment under appeal could not have been passed only on the basis of the decision in the case of Ratan Kumar Saha's case (supra). There cannot be any doubt whatsoever that the cases of those writ petitioners who would come within with purview of Rule 8 of 1991 Rules and if their names have been sponsored by the Employment Exchange, shall be considered for appointment in accordance with law. Keeping in view the fact that the appointments in various Districts have not been made for a long time, the respective Dist. Primary School Council should see to it that the appointments in the post of Assistant Teachers may be made as expeditiously as possible. All the appeals are disposed of with the aforementioned observation. There will be no order as to costs. Dutta, J. : I agree.