JUDGMENT Amitava Lala, J. The writ petitioner made this application mainly for the purpose of issuance of writ of Mandamus commanding the respondents not to give effect or further effect of the School Service Commission Act in regard to the appointment of teachers against the sanctioned posts in a school known as Deucha Courangini High School amongst other reliefs. 2. It appears that by an Office Memo No. DS(A) S.D./2870 (14) Recog/97, dated 17th September, 1997 as issued by the Secretary, West Bengal Council of Higher Secondary Education and received on 24th September, 1997, the petitioner came to know that the school was provisionally recognised for introduction of H.S. General Stream Courses w.e.f 1997-98 academic session for two years on certain terms and conditions prescribed therein. One of the conditions therein is that duly qualified teachers of Political Science, Economics and Education should be recruited against sanctioned posts vide G.O. No. 212-SE (H.S.), dated 16th September, 1997. 3. The petitioner contended that the concerned District Inspector of Schools, Birbhum directed to submit the panel of Assistant Teachers for approval of appointment within 30th September, 1997. 4. The petitioner contended that unless the vacancy is declared by the respondent Nos. 4 and 5 upon the application made by the Managing Committee, the Managing Committee cannot ask the Employment Exchange to sponsor the names of the duly qualified candidates for selection in the post of teachers against the sanctioned posts and as such the time fixed by the District Inspector of Schools is not enough to accord approval of appointment of teachers. 5. Ultimately the Managing Committee of the School held a meeting on 4th October, 1997 and adopted a resolution to the effect that the petitioner being President of the School Committee shall make a representation for extension of time till 31st December, 1997 to give appointment of the teachers against the sanctioned post as the School Service Commission is being introduced with effect from 1st November, 1997. 6. Such extension was sought for from the concerned District Inspector of Schools (S.E.) but not considered when a writ petition being W.P. No. 22541 (W) of 1997 was moved before this Hon'ble Court and upon hearing the parties writ petition was disposed of with a direction upon the said District Inspector of Schools (S.E.) to consider the cause of the same. 7. 7. The said District Inspector of Schools (S.E.) proceeded in compliance of the order of the High Court but ultimately opined that the School Service Commission has been formed with effect from 1st November, 1997 by the School Education Department, West Bengal vide Notification No. 878-SE (S), dated 17th October, 1997 and new policy for recruitment of teaching staff has also been formed vide Notification No. 14-SE (S), dated 8th January, 1998. Under these circumstances, the School Authority was directed to approach the Commission under Memo of Director of School Education, West Bengal being No. 232 (21) GA, dated 10th March, 1998 which has already been served to the School vide Memo No. 341 (379)/9, dated 3rd April, 1998 for appointment of teaching staffs. 8. The petitioner states that even no recruitment can be made from the empanelled candidates of School Service Commission since till this date no panel of recruitment of teaching staff has been prepared. The result of the written test examination of such candidates have been published by the School Service Commission only on 6th August, 1998 and final selection through oral or practical test has not yet been made. 9. It is complained that the student, who got admission in Higher Secondary General Stream Course for 1997-98 Session is seriously suffering from persuasion of studies and the renewal of the provisional recognition would tremble the balance. 10. It is to be noted, in the circumstances, that three posts were sanctioned as far back as on 16th September, 1997 before promulgamation of School Service Commission Act. Accordingly a prayer was made for extending the time to recruit three (3) Assistant Teachers. Now, being no other alternative the writ jurisdiction of this Court is invoked for the purpose of the relief as prayed above. 11. In support of such contentions Mr. Partha Dutta, learned Senior Counsel appearing with Mr. Pradip Kumar Sen and Mr. Dilip Kumar Roy Chowdhury, learned Counsels submitted that under the similar circumstances this High Court as well as Supreme Court held affirmatively in support of the petitioner's case, therefore, coming of the School Service Commission will not be an embargo as to the question of giving the appointment or for extending the time for giving such appointment. 12. Mr. Dilip Kumar Roy Chowdhury, learned Counsels submitted that under the similar circumstances this High Court as well as Supreme Court held affirmatively in support of the petitioner's case, therefore, coming of the School Service Commission will not be an embargo as to the question of giving the appointment or for extending the time for giving such appointment. 12. Mr. Dutta, first of all relied upon a Single Bench Judgment of this Court reported in 1998 (2) CLJ 365 (Lalin Kumar Mahato vs. State of West Bengal & Ors.) wherein it was held that the processing for selecting an Assistant Teacher available under the previous Recruitment Rules were in force therefore such new rule coming into force cannot have any retrospective effect in respect of processing for selecting Assistant Teachers accordingly. 13. He further relied upon AIR 1983 SC 852 (Y.V. Rangaiah & Ors. vs. J. Srinivisa Rao & Ors.) at 855 being paragraph 9 therein and contended that the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the new rules. He further relied upon the judgment reported in 1996 (1) CLJ 230 (Basudeb Bag & Anr,. vs. Bhaskar Chandra Kar & Ors.) to establish that as and when the process of selection has started prior to coming into force of the new rules, the said new rules cannot have been given retrospective effect. 14. In the premises, this Court keenly entered into the scope and ambit of the School Service Commission Act, 1997 (West Bengal Act IV of 1997). 14. In the premises, this Court keenly entered into the scope and ambit of the School Service Commission Act, 1997 (West Bengal Act IV of 1997). Section 2 clause (n) gives definition of School as follows : ‘(n) "School" means a recognised non-Government aided- (i) secondary school, or educational institution, or part or department of such school or institution, imparting instruction in a secondary education, or (ii) higher secondary school, or educational institution (other than a college), or part or department of such school or institution, imparting instruction in higher secondary education, or (iii) Madrasah, and includes a sponsored school.’ Section 2 clause (p) prescribes the meaning of the teacher as follows : ‘(p) "Teacher" means an Assistant Teacher or any other person, holding a teaching post of a school and recognised as such by the Board or the Councilor the Board of Madrasah, as the case may be, and includes the Headmaster or the Headmistress.’ Section 8(1) of the Act is as follows : "8(1) The manner and scope of selection of persons for appointment to the posts of Teachers shall be such as may be prescribed." Sub-section (2) of section 9 of the Act speaks as follows : "(2) Any appointment of a Teacher made on or after the commencement of this Act in contravention of the provisions of this Act shall be invalid and shall have no effect and the Teacher so appointed shall not be a Teacher within the meaning of clause (p) of section 2." Section 10 of the Act says : "Notwithstanding anything contained elsewhere in this Act, the terms and conditions of service, of Teachers in the employment of a school immediately before the commencement of this Act shall not be varied to the disadvantage of such Teachers in so far as such terms and conditions relate to the appointment of such Teachers to the posts held by them immediately before the commencement of this Act." But I found there is no provision for appointment of teaching staffs under new Act. 15. Therefore meaning of commencement as provided in section 9(2) of the Act is made only to invalidate the appointment under old Act but not for appointment under new Act. 15. Therefore meaning of commencement as provided in section 9(2) of the Act is made only to invalidate the appointment under old Act but not for appointment under new Act. The provision under section 8(1) of the new Act speaks that the manner and scope of selection of persons for appointment to the posts of teachers shall be such as may be prescribed. 16. Therefore, prima facie, I am of the view that there is vacuum. Invalidity of the appointment by this date i.e. 11th November, 1997, cannot automatically validate the appointment under new Act. In the premises, I called upon Ms. Sukla Kabir (Sinha), learned Counsel appearing for the State when she submitted that there was no selection process initiated prior to the date of commencement of the Act i.e. on 1st November, 1997. The petitioner has simply sought for an extension of time. Hence the cause of action cannot be said to arise prior to effective date. 17. Thereafter I called upon Mr. Shovan Lal Hazra, learned Senior Counsel appearing with Mr. Goutam Som, Advocate led by Mr. Balai Chandra Ray, learned Senior Counsel on behalf of the West Bengal School Service Commission when he reiterated about the applicability of the sections 7, 8 and 9 of the West Bengal School Service Commission Act, 1997. He contended from the date of its application i.e. on 1st November, 1997 this is the only existing mode of recruitment in service and the earlier mode is forbidden. He also contended that by a Notification being No. 900-SE(S)/10R-1/97, dated 22nd October, 1997 as notified on 1st November, 1997 issued by the Secretary of the Government of West Bengal, School Education Department (Secondary Branch). He also contended that by a Notification being No. 900-SE(S)/10R-1/97, dated 22nd October, 1997 as notified on 1st November, 1997 issued by the Secretary of the Government of West Bengal, School Education Department (Secondary Branch). Clauses (I) and (II) of sub-rule (1) of Rule 28 was amended accordingly : "(I) to appoint on the recommendation of the West Bengal Regional School Service Commission in respect of the region concerned, teachers on permanent or temporary basis against permanent or temporary vacancies, if and when available, within the sanctioned strength of teachers and on approval by the Director or any officer authorised by him, such approval being sought for within a fortnight from the date of decision of the Committee in the behalf; (II) to appoint non-teaching employees on permanent or temporary basis against permanent or temporary vacancies, if and when available, within the sanctioned strength of non-teaching employees and on approval by the Director or any officer authorised by him, such approval being sought for within a fortnight from the date of decision of the Committee in this behalf." 18. He further contended by another notification earlier thereto being No. 863-SE(S)/1S-4/97, dated 3rd October, 1997 issued by the authority similarly. Rule 7 by incorporating sub-rules (1) & (2) therein accordingly : "7. (1) The State Government in the School Education Department shall lay down the procedure for recruitment of teacher, Headmaster and Headmistress, including, inter alia, the essential and/or desirable educational and other qualifications, age, experience and other requirements; (2) Every school shall report the vacancies as on the date of report and as will arise upto the second day of next January to the Regional Commission with a copy to the District Inspector of Schools (Secondary Education) who shall scrutinise the same and forward to the Regional Commission with or without modifications. As may be necessary, within a month of receipt thereof. In case of delay in receipt of the recommendation of the District Inspector of Schools (Secondary Education), the Commission may take final decision on the basis of the guidelines of the Government without consulting the requisition of the school or the recommendations of the District Inspector of Schools." 19. Mr. As may be necessary, within a month of receipt thereof. In case of delay in receipt of the recommendation of the District Inspector of Schools (Secondary Education), the Commission may take final decision on the basis of the guidelines of the Government without consulting the requisition of the school or the recommendations of the District Inspector of Schools." 19. Mr. Hazra further contended that rule incorporating procedure of appointment was introduced by a further Notification being No. 14-SE (S)/1S-6/97, dated 8th January, 1998 issued by the appropriate authority by laying down procedure for appointment as notified on 15th January, 1998. 20. At this juncture Mr. Dutta joined issue therein by saying that is to whether the commencement of the West Bengal School Service Commission Act, 1997 will be operative from 1st November, 1997 before framing the procedure of recruitment or from the date of laying down procedure dated 8th January, 1998 as notified on 15th January, 1998, is a subject matter of consideration herein. 21. Mr. Hazra, firstly relied upon paragraphs 16 and 17 of a judgment reported in 1997 (4) SCC 647 (Union of India vs. C. Ramaswamy & Ors.) to show that the Supreme Court held that the effect of a rule being substituted by new rule clearly is that the old rule, which stands substituted, can under no circumstances have any application at least from the date when it ceased to exist. 22. He reiterated along with the State that no vacancy was reported before the Act coming into force. Therefore, selection process was not initiated prior to West Bengal School Service Commission Act, 1997 coming into force. Mere application for extension of time for selection cannot be said to be a selection process happened prior to the Act coming into force so that the selection can be governed by the old rule. Therefore, the Court may direct immediate filling up the vacancy accordingly so far the teachers in respect of the subjects like Economics and Political Science but filling up post of Assistant Teacher in Physical Education can be taken care of subsequently. 23. I have carefully considered the arguments advanced by the contesting parties. Under almost similar circumstances I have considered the date of the commencement of the Arbitration and Conciliation Act, 1996. 23. I have carefully considered the arguments advanced by the contesting parties. Under almost similar circumstances I have considered the date of the commencement of the Arbitration and Conciliation Act, 1996. In a case being A.P. No. 1 of 1998/A.C. No. 24 of 1998 (The Food Corporation of India vs. Sri Dilip Kumar Dutta) such question arise. Two sections being section 85 and section 21 of such Act were very important for the purpose of taking into consideration about the commencement. It appears therein that the provisions of the old Arbitration Act shall apply in relation to arbitral proceedings which commenced before this Act came into force i.e. 25.1.1996 under the repealing section i.e. section 85 of the Act when, on the other hand, under section 21 of the new Act the commencement of the arbitral proceedings under new Act will be on the date on which a request for that dispute to be referred to arbitration is received by the respondent. In the premises a date of doing an act 'undone' cannot be held good for doing an work as 'done' automatically. 24. Therefore, there is a vacuum in respect of date of commencement in between the two sections so also in respect of the West Bengal School Service Commission Act, 1997. By the effective date of 1st November, 1997 effect of the appointment of teachers under old Act can be invalidated but cannot give rise to the valid appointment till the date of procedure of appointment coming into force as on 8th January, 1998. Therefore the Act coming into force and the procedure forming thereunder making a complete code of appointment of teachers under new Act. Therefore the actual cut off date for all practical purposes should be construed as 15th January, 1998 when procedure for recruitment was notified. 25. That apart, according to me, date of cause of action is the date for the purpose of commencement of the Act. If the cause of action arose prior to the date of School Service Commission coming into force then that cause of action cannot be covered by the new Act. Under this context further explanation is needed as to the cause of action. Here the cause of action means arising of vacancies and the existence of process in connection thereto. If the cause of action arose prior to the date of School Service Commission coming into force then that cause of action cannot be covered by the new Act. Under this context further explanation is needed as to the cause of action. Here the cause of action means arising of vacancies and the existence of process in connection thereto. Now the question arose as to whether any vacancy arose prior to the School Service Commission coming into force. The answer is affirmative. Therefore, the only dispute is whether any process was initiated prior to coming into force of the School Service Commission Act. 26. According to me, asking for time to fill up the vacancy is an initiation of process specially in the context when the time period is very marginal as given by the authority i.e. for about 6 days from the date of knowledge. 27. Under such circumstances, filling up the vacancies and the process in all formed cause of action for the purpose of filling up the vacancy arose prior to the effective date as such cannot be covered by the new Act. In the premises, I have no other alternative but to hold that applicability of the School Service Commission cannot be an embargo in appointing teachers in the instant case under the then prevailing Act, rules and procedure. 28. In the premises, the application is allowed. The School Authorities are entitled to fill up the vacancies in accordance with the then prevailing Act, rules and procedure and apply for appropriate approval by the concerned District Inspector of Schools. A process should be made expeditiously by the petitioner for the sake of education. 29. This writ petition is thus disposed of. 30. No order is passed as to costs. Writ application allowed.