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2000 DIGILAW 458 (CAL)

MANTAJ ALI AND ANR v. STATE OF WEST BENGAL

2000-09-06

MAHEMMAD HABEEB SHAMS ANSARI

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M. H. S. ANSARI, J. ( 1 ) THE facts giving rise to the instant petition are that the consequent upon the vacancy in the post of Headmaster of Gobindanagar Muslim High School, the school authority sought for prior permission from the D. I. of Schools who granted the same but providing therein that the post shall be reserved for Scheduled Caste as per roster of vacancy vide his Memo. No 630-S dated 1. 10. 1992. The school authority could not recruit Headmaster due to non-availability of candidate and, therefore, they sought for dereservation of the post on 18. 10. 93. In reply to the said prayer, the D. I. of Schools again asked the school authority to fill in the vacancy with the SC candidate only vide his letter No. 940-S dated 26. 7. 94. The Managing Committee filed a writ petition being W. P. No. 237 (W) of 2000 which was disposed of by an order dated 25th April, 2000 with a direction upon the Secretary, Education Department to treat the writ petition as the representation and to dispose of the same in accordance with the law. ( 2 ) IN compliance with the said order dated 25. 4. 2000, the Secretary passed order dated 16. 6. 2000 being annexure 'r' while upholding the contention of the school authorities that a single cadre post cannot be reserved, however, held that after the coming into the force of the School Service Commission Act, the post has to be filled up in accordance with the procedures prescribed thereunder and directed the DI of Schools to release the prior permission accordingly. ( 3 ) AGGRIEVED by the said orders, the instant writ application has been filed. It is the contention of the petitioners, office bearers of the Managing Committee of the institution, that the prior permission having been granted before the coming into force of the School Service Commission Act, the selection process has to be concluded in accordance with the rules then existing and not in the manner prescribed by the School Service Commission Act, 1997. It was further contended that the right of the Managing Committee to make the appointment cannot be retrospectively altered or affected by the School Service Commission Act, 1997. It was further contended that the right of the Managing Committee to make the appointment cannot be retrospectively altered or affected by the School Service Commission Act, 1997. ( 4 ) LEARNED counsel for the petitioner relied upon the judgments of the Supreme Court in Y. V. Bangaiah v. J. Sreenivasa Rao, reported in AIR (1983) SC 852, A. A. Catton v. Director of Education, reported in AIR 1983 SC 1143 as also upon the judgment of a learned single Judge in W. P. No. 1461 (W) of 2000, Salluddin Mian v. State of West Bengal and Ors. [ (2000)3 Cal LT 518 (HC)] ( 5 ) THE School Service Commission Act, 1997 came into effect from 15. 1. 1998. In terms whereof, the appointment of teaching staff in Secondary schools is to be made from out of the candidate recommended by the Regional School Service Commission. ( 6 ) THE question that arises for consideration is whether the vacancy that existed prior to the coming into force of the said Act, 1997 whether the same requires to be filled up in accordance with the rules as existed prior thereto. In other words, the point for consideration is whether the vacancy is required to be filled up in accordance with the provisions of the School Service Commission Act, 1997 and the procedures prescribed thereunder or whether the said vacancy is required to be filled up in accordance with the rules that existed prior to the coming into force of the said Act, 1997. ( 7 ) AS noticed supra, the vacancy in the instant case arose in 1992 and prior permission for filling up the said vacancy was granted by the DI of Schools vide his Memo. No. 630/s dated 1. 10. 92. The said post could not be filled up for the reasons noticed supra. Nor any candidate was called for the interview. In terms of the prior permission granted by the DI of Schools, the post was reserved for SC. By the impugned order dated 16. 6. 2000, it has been observed that the single cadre post cannot be reserved and directions have been issued to the DI of Schools concerned for releasing prior permission for filling up the post through the School Service Commission. By the impugned order dated 16. 6. 2000, it has been observed that the single cadre post cannot be reserved and directions have been issued to the DI of Schools concerned for releasing prior permission for filling up the post through the School Service Commission. ( 8 ) IT must also be stated here that Rule 28 (1) (i) of the Management Rules, 1969 conferred power upon the Managing Committee of an aided institution to appoint in accordance with the directions given by the Director in that behalf teachers on temporary or permanent basis against temporary/permanent vacancy. However, separate recruitment rules prescribe the procedure for making the selection. The said rules envisaged that the vacancy in the post of teaching staff is to be notified to the concerned DI of Schools whereupon a prior permission was granted by the DI of Schools to the school authorities to fill up the said post prescribing therein inter alia, the nature of vacancy and the educational qualifications of candidates. The school authorities upon receipt of prior permission were then required to requisition names from the employment exchange or by inviting applications through local Newspapers depending upon the terms of prior permission. ( 9 ) AFTER candidates were sponsored or applications were received in Pursuance of publication in newspapers, a Selection Committee was required to be constituted comprising of members as prescribed. The selection committee was required to award marks in the manner prescribed by rules and to interview candidates. A panel was required to be prepared and after the Selection Committee, a penal was prepared by it in order of merit which was required to be approved by the Managing Committee. Thereafter, the same was required to be forwarded to the DI of Schools concerned for his approval. After the panel being approved, the Managing Committee had the power to offer the appointment to the candidate placed at serial No. 1 of the said approved panel and upon his declining to the second and thereafter to the third candidate in the said panel. The validity of the panel was for a period of one year from the date of approval. The validity of the panel was for a period of one year from the date of approval. ( 10 ) THE said Rule 28 (1) (i) was amended by substitution with the effect from May 11, 1997, the substitution was to the effect that the appointment of the teaching staff by the Managing Committee would be on the recommendation of the West Bengal Regional School Service Commission in respect of the region concerned. ( 11 ) IT will thus be noticed that even prior to the coming into force of the School Service Commission Act, 1997, the Rule 28 (1) (i) conferring power on the Managing Committee to make appointment was amended. ( 12 ) THE School Service Commission Act, 1997 is prospective in nature admits of no doubt. The question, however, in the light of the reliefs claimed is whether the retrospective application is being given to the said Act, 1997 in respect of a vacancy that existed prior to the coming into force of the Act. ( 13 ) IT must be kept in mind that the rule against retrospective construction is not applicable to a statute merely because a part of the requisites for its action is drawn from a time antecedent to its passing A statute is, therefore, not retrospective merely because it applies also to those to whom pre-enactment rules were applicable if the enactment has operation from the date of its coming into force and not from an anterior date. ( 14 ) MERE existence of a vacancy prior to the coming into force of the Act, 1997 and which is now required to be filled up, in my respectful view, the same can be filled up only in terms of the provisions contained under the said Act, 1997 and the procedures prescribed thereunder. It can be said that the Act, 1997 is being given a retrospective seperation in respect of the vacancy which had existed prior to the coming into force of the said Act. Any such contention, in my view, may result in virtual nullification of the Act, 1997. ( 15 ) RULE against retrospective construction of an Act/rules has been applied where any "vested rights" or "accrued rights" have been impaired or affected. The preponderance of judicial opinion is that in the absence of express words or necessary implication, Act/amending Act or rules is not construed to effect existing rights. ( 15 ) RULE against retrospective construction of an Act/rules has been applied where any "vested rights" or "accrued rights" have been impaired or affected. The preponderance of judicial opinion is that in the absence of express words or necessary implication, Act/amending Act or rules is not construed to effect existing rights. ( 16 ) IN the instant case, it must be borne in mind that the validity of the Act or the amended rule is not in question. The only question is whether the petitioners are entitled to the filling up of the vacancy in the port of Headmaster which existed prior to the coming into force of the Act, 1997, and whether the same has to be filled up in accordance with the rules in vogue when the post fell vacant. ( 17 ) IN Rajasthan Public Service Commission v. Chanan Ram, reported in 1998 Lab. IC 2131, a similar question was considered. The Supreme Court in that case was called upon to consider the correctness of the judgment of the Division Bench of Rajasthan whereby directions had been issued by that Court to proceed with the recruitment process pursuant to the advertisement published on 31st December, 1993 for recruitment to 23 posts of Assistant Directors. After the expiry of the last date fixed for inviting applications from eligible candidates for appointment to the advertised post, the State of Rajasthan amended the Service Rules on 19th April, 1995 whereupon the earlier advertisement was withdrawn and a fresh advertisement was issued on 8th January, 1996 inviting applications for being considered to be appointed to the posts of Marketing Officers under the amended rules as by the said amended rule the erstwhile posts of Assistant Directors ceased to exist. The contention before the Court was that the writ petitioner who had earlier applied pursuant to the first advertisement was entitled to be considered in accordance with the rules then existing for filling up those vacancies and the amended rules of 1995 could not be pressed in service and those vacancies had to be filled up as per the earlier unamended service rules. The Division Bench of Rajasthan High Court declared that for old vacancies the amended rules could not be pressed in service and they had to be filled up pursuant to the earlier existing rules during the time when these vacancies occurred in the said service. The Division Bench of Rajasthan High Court declared that for old vacancies the amended rules could not be pressed in service and they had to be filled up pursuant to the earlier existing rules during the time when these vacancies occurred in the said service. The Supreme Court reversed the said judgment for the reason that the action of the State in intercepting the earlier recruitment process initiated by the first advertisement was not arbitrary as the rules themselves had got amended. In the said judgment of the Supreme Court, its earlier judgments have been noticed and explained, some of those judgments referred to by the Supreme Court and as explained and/or distinguished need to be stated in view of their relevance for the purpose of the present enquiry. ( 18 ) THE case of Y. V. Bangaiah v. J. Shri Nivas Rao, AIR 1983 SC 852 was distinguished on the ground that it was a case of promotion and not direct recruitment to the advertised post. Secondly, on the ground that the rules in that case cast a statutory obligation on the part of the appointing authority to prepare panel of eligible candidates year-wise in connection with the vacancies then existed. ( 19 ) THE case of A. A. Catton v. Director of Education, AIR 1983 SC 1143 : 1983 (3) SCC 33 was distinguished and explained. In that case, it was noticed that the selection process was completed and fructified. There was an earlier order of High Court in the proceedings between contesting parties whereby the High Court had remanded direct recruitment proceedings for being reconsidered by the Director and in view of the said order of the High Court which had become final between the parties, it could not be said subsequently that the Director could not undertake the exercise of appointment by way of recruitment as the Act had got amended in the meantime. ( 20 ) P. Ganeswar Rao v. State of A. P. , reported in AIR 1988 SC 2068 , it was pointed out by the Supreme Court that the Court in that case held that if the recruitment rules underwent amendment prior to actually filling up of the advertised post, the amended rules would apply and it is only because of the wording as found to have been employed in the amended provisions that the aforesaid decision was rendered. ( 21 ) P. Mahendra v. State of Karnataka, AIR, 1990 SC 405 was distinguished on the ground that in that case it was found as a matter of fact that the earlier selection process when the amended rules were holding the field have got completed. ( 22 ) REFERENCE in that respect was also made to the judgment of the Supreme Court in State of Haryana v. Subhas Ch. Marwaha, AIR 1973 SC 2216 wherein it was laid down that when the special process of recruitment had not been finalised and culminated into select list, the candidates did not have any right to appointment. The recruitment process, it was observed, could be stopped by the Government at any time before a candidate has been appointed. A candidate has no vested right to get the process completed and at the most the Government could be required to justify its action on the touch stone of Article 14 of the Constitution. ( 23 ) IN State of M. P. v. Raghubir Singh, Yadav, 1994 (6) SCC 151 , the question for consideration before Court was whether the State could change a qualification for the recruitment during the process of recruitment which had not resulted into any final decision in favour of any candidate. The Court upheld the power of the State to prescribe qualification for recruitment and to proceed with the recruitment afresh. It was held that this was not a case of any accrued right. The candidates had only legitimate expectation to be considered according to the rules then in vogue. The Government was entitled to conduct selection in accordance with the changed rules and make final recruitment. ( 24 ) IN the case of J. and K. Public Service Commission v. Dr. Narender Mohan, 1994 (2) SCC 630 , it was observed that the process of the selection against existing and anticipated vacancies does not create any right to be appointed to the post which can be enforced by a Mandamus. ( 25 ) IN the light of the aforesaid judgments mere existence of a vacancy would not confer any right which can be enforced by mandamus either by a candidate or the Managing Committee to have the post filled up in accordance with the rules then in vogue. By virtue of the amendment to Rule 28 (1) (i) of the Management Rules with the effect from 1. 11. By virtue of the amendment to Rule 28 (1) (i) of the Management Rules with the effect from 1. 11. 97 the Managing Committee is denuded of the power to make any appointment except on the recommendation of the Regional School Service Commission. The Managing Committee being a creature of statute has to act in conformity with the Act and the rules prescribed thereunder for filling up the posts power for which has been conferred upon it by the rules. ( 26 ) FOR the very same reasons, even grant of prior permission without anything further cannot confer right either upon the Managing Committee or any candidate or any petitioner to seek a mandamus to fill up the post in terms of the then rules invogue. ( 27 ) WHERE, however, pursuant to the prior permission names have been sponsored by the employment exchange or candidates have applied pursuant to the advertisement inviting such application, the right of such candidates would require consideration in the light of the rules existing at the time when the names were sponsored by the employment exchange or the candidates applied pursuant to the advertisement. The relief claimed in such writ applications by candidates would have to be considered in the light of the alleged accrued right of the candidate and to the extent the same has been impaired or affected adversely by the Act of 1997 and the procedures prescribed thereunder. ( 28 ) THIS High Court has considered the matter in Basudev Bag v. Bhaskar Chandra Kar, 1996 (1) CLJ 230. The Division Bench of the facts of that case which are to the effect that the advertisement had been made in local newspaper on 1. 6. 1981 before the amended rules came into force and as interview was held in terms thereof, held, that the subsequent rules dated 1. 8. 1981 could not have been given a retrospective effect. ( 29 ) A Division Bench in Narayan Baidya v. D. I. of Schools (SE), being M. A. T. No. 3466 of 1998 disposed of on 14. 10. 99 [ (2000)1 Cal LT 487 (HC)] as also another Division Bench in the case of Abdul Mannan Laskar v. State of West Bengal and Ors. , 2000 (1) CHN 436 has considered somewhat similar question. 10. 99 [ (2000)1 Cal LT 487 (HC)] as also another Division Bench in the case of Abdul Mannan Laskar v. State of West Bengal and Ors. , 2000 (1) CHN 436 has considered somewhat similar question. ( 30 ) HOWEVER, a learned single Judge in the Managing Committee, Kanaidighi Deshapran Vidyapith v. State of West Bengal and Ors. , 1998 (2) CLJ 497 held that since the post had fallen vacant and the Managing Committee had sought permission to fill up the vacancies prior to the commencement of the West Bengal School Service Commission Act, 1997, the process of recruitment would have to continue in accordance with the rules then existing. In that case, the learned Judge held that in terms of section 2 of the Act, the same shall come into force from the date of publication in the official gazette which was published on 15. 1. 98. ( 31 ) ANOTHER learned single Judge in W. P. No. 1461 (W) of 2000 (Salluddin Main v. State of West Bengal and Ors.) has noticed the Division Bench judgments of this High Court and disposed of the writ application with a direction that the authorities of the Madrasah will be entitled to apply to the DI of Schools who shall take appropriate steps to ensure that the post is filled up expeditiously. There are, however, certain observations in the judgment to the effect that since the recruitment process began with the grant of prior permission by the DI of Schools on 28th April, 1997, the same would be governed by the rules as existing on that date. ( 32 ) IN the light of the above apparent conflict in the judgments of this High Court, I am respectfully of the view that the matter requires consideration by a Division Bench of resolve the same. For the aforesaid reasons, let the instant matter be placed before His Lordship the Chief Justice, for such appropriate orders as to His Lordship may seem appropriate.