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2001 DIGILAW 206 (CAL)

Chandrasekhar Pati v. State of West Bengal

2001-04-12

Pranab Kumar Chattopadhyay

body2001
JUDGMENT Pranab Kumar Chattopadhyay, J. Petitioner herein is the teacher-incharge of Dum Dum Sree Arabinda Vidyamandir. The post of Head Master of the said school fell vacant and an advertisement was issued in 'Bartaman Patrika' inviting applications from the eligible candidates for filling up the said vacant post of Head Master of the school. 2. In response to the said advertisement, petitioner submitted an application before the school authorities furnishing relevant particulars in support of his candidature for the said post of Head Master of the school on 6th May, 1997. It should be mentioned here that prior permission for filling up the said post of Head Master was accorded by the appropriate authority by a Memo being No. 289/G dated 3rd April, 1997. In view of the said prior permission the school authorities took steps to fill up the said vacant post of Headmaster of the school in terms of the Recruitment Rules prevailing at that point of time. The Secretary of Dum Dum Sree Arabinda Vidyamandir by a written communication dated 1st September, 1997 asked the petitioner to appear at the interview before the selection committee on 21st September, 1997. The selection committee duly held the interview on 21st September, 1997 and prepared a panel on the same day. The petitioner claimed that he secured first position in the said panel. The aforesaid panel prepared by the selection committee was forwarded to the managing committee of the school and the said managing committee accepted the said panel in its meeting held on 1st October, 1997. It has been contended on behalf of the petitioner that the school authorities though thereafter wanted to submit the said panel in the office of the District Inspector of Schools concerned for obtaining necessary approval of the panel but the office of the District Inspector of Schools concerned refused to accept the said panel from the school authorities. 3. The Government of West Bengal issued a circular in the meantime fixing 30th September, 1997 as the cut off date for submissions of all panel in connection with the appointments of teaching staff of High/Higher Secondary Schools in West Bengal. In view of the said cut off date for submission of the panel fixed by the State Government as 30th September, 1997 office of the District Inspector of Schools concerned refused to accept the panel from the school authorities in the instant case. In view of the said cut off date for submission of the panel fixed by the State Government as 30th September, 1997 office of the District Inspector of Schools concerned refused to accept the panel from the school authorities in the instant case. Petitioner herein filed a writ petition challenging the aforesaid acts of the respondent authority particularly the District Inspector of Schools concerned for non-acceptance of the panel prepared by the school authorities on the ground that the last date of submission of the panel fixed by the circular issued by the Government of West Bengal expired on 30th September, 1997. 4. Learned Counsel for the petitioner submitted that admittedly prior permission was granted by the competent authority to fill up the vacant post of Head Master in the school on or about 3rd April, 1997 and a panel was prepared by the selection committee after holding interview on 21st September, 1997 and thereby the selection process was virtually completed by that time. It has been further contended on behalf of the petitioner that the School Service Commission Act has no manner of application in the present case. West Bengal School Service Commission Act has come into force with effect from 1st November, 1997 pursuant to the notification No.878SE(S)/(S) 1S-4/95 dated 17th October, 1997 and new policy for recruitment of teaching staff has also been circulated by notification No. 14-SE(S)/1S-6/97 dated 8th January, 1998 which was published in the Calcutta Gazette on 15th January, 1998. According to the petitioner, all necessary steps for filling up the said vacant post of Head Master of the school was completed before the West Bengal School Service Commission, Act, 1997 came into force and long before prescribing the procedures for selection of persons for appointment to the post of teachers of schools by issuing necessary notification on 8th January, 1998. 5. Mr. Amal Baran Chatterjee, learned Counsel of the petitioner, referred to a decision of this court reported in 1992 (1) CHN Page 601 (Abdul Karim vs. State of West Bengal & Ors.) wherein learned Single Judge of this court held that West Bengal School Service Commission Act, 1997 and the procedure framed thereunder form a complete code for appointment of teachers under new Act. The learned Judge, accordingly, observed in the said judgment that the actual cut off date for all practical purposes should be construed as 15th January, 1998 when the notification was published in the Calcutta Gazette. 6. Mr. Chatterjee also referred to a decision of the Division Bench of this Hon'ble Court reported in 1996 (1) CLJ Page 230 (Basudeu Bag & Anr. vs. Bhasker Chandra Kar & Ors.). In the said judgment Division Bench had referred to and relied upon the decisions of the Supreme Court reported in AIR 1983 SC 852 (Y. V. Ranga & Ors. vs. J. Sreeniuasa & Anr.), AIR 1983 SC 1143 (A. A. Calton vs. The Director of Education & Anr.) and AIR 1990 SC 405 (P. Mahendran & Ors. vs. State of Karnataka & Ors.) wherein the Apex Court specifically held that vacancy which occurred prior to amended Rules would by governed by the old Rules and not be the amended Rules. 7. In the instant case prior permission was granted for filling up the vacant post of Head Master on 3rd April, 1997. After issuance of the letter of interview to the petitioner and holding the interview of the candidates, a panel was prepared by the selection committee on 21st September, 1997 and the managing committee accepted the said panel on 1st October, 1997 whereas the procedures for selection of persons for appointment to the post of teachers of schools were prescribed by the notification dated 8th January, 1998 and the same was published in Calcutta Gazette on 15th January, 1998. 8. In view of the aforesaid decision of the Division Bench of this court following the decisions of the Supreme Court, Mr. Chatterjee submitted that the panel, which was admittedly prepared before the West Bengal School Service Commission Act, 1997 came into force, could not be cancelled. Mr. Chatterjee also referred to a decision of the Supreme Court reported in AIR 1999 SC 2093 (Gopal Krishna Rath vs. M. A. A Baig) in support of his aforesaid contention. 9. Learned Counsel of the District Inspector of Schools, however, opposed the claims of the petitioner primarily on the grounds that appointment to the post of a Head Master in a recognised non-government school shall be made only on the recommendations of the West Bengal School Service Commission having jurisdiction. 9. Learned Counsel of the District Inspector of Schools, however, opposed the claims of the petitioner primarily on the grounds that appointment to the post of a Head Master in a recognised non-government school shall be made only on the recommendations of the West Bengal School Service Commission having jurisdiction. According to the learned Counsel of the respondent No.3, District Inspector of Schools has not yet received any panel from the school authorities for the post of Head Master and therefore, the question of approving the same could not arise. It was also contended that the present petitioner was neither recruited by the managing committee before commencement of the aforesaid West Bengal School Service Commission Act nor the process of selection was completed before the commencement of the said Act and no panel of Head Master was submitted by the school authorities in the office of the said respondent No.3 till the date of hearing of the writ petition. It was further submitted that the last date of submission of the panel was on or before 30th September, 1997. The District Inspector of Schools had no authority to extend the said time limit for submission of the panel in violation of the circular issued by the Government of West Bengal. 10. Mrs. Sima Sengupta, learned Counsel of the respondent No.3 also referred to and relied upon a decision of the Division Bench of this court reported in 2000 (1) CHN Page 435 (Abdul Mannan Laskar vs. State of W.B. & Ors.) and submitted that appointment cannot be made in violation of the West Bengal School Service Commission Act or Rules framed thereunder as any appointment made in violation of the said Act or Rules cannot be sustained in law. The aforesaid decision virtually supports the case of the petitioner. The relevant portions from paragraphs 9 and 10 of the said decision are quoted here-in-below. "9.*********************************************************** ************************************************************* Although the School Service Commission Act came into force with effect from 17.10.97, the procedure for selection of schools having been made on 8.1.98, it became effective only with effect from that date. The aforesaid decision virtually supports the case of the petitioner. The relevant portions from paragraphs 9 and 10 of the said decision are quoted here-in-below. "9.*********************************************************** ************************************************************* Although the School Service Commission Act came into force with effect from 17.10.97, the procedure for selection of schools having been made on 8.1.98, it became effective only with effect from that date. If prior to 8.1.98 the selection process had been completed the matter would have been different....********************************************************************************************************* It is true that on 27.11.97 when the order impugned was passed by the District Inspector of Schools, the said Act could not have been given effect to as the rules for selection had not been completed but as of to-day no relief as has been prayed for can be granted." "10. In view of the fact that in the instant case the right of the candidates for being considered, could have arisen only upon their names being sponsored and/or the issue of advertisement and as prior to the date, the said Act and the Rules framed thereunder, came into force, the question of any selection being made in violation thereof did not arise. * * * * * * * * * * * * * * * * * * * ************************************************************" 11. In the present case admittedly prior permission was granted for filling up the vacant post of Head Master in the school on 3rd April, 1997 and the interview letter was received by the petitioner on 1st September, 1998. Furthermore, interview of the candidates was held and the panel was prepared on 21st September, 1997 by the selection committee. The managing committee of the school also approved the panel prepared by the selection committee on 1st October, 1997. In the said judgment it was specifically held that if prior to 8.1.98 the selection process had been completed, the matter would have been different. In paragraph 9 of the said judgment it was also mentioned that on 27.11.97 the said Act could not have been given effect to as the Rules for selection had not been completed. 12. In the said judgment it was specifically held that if prior to 8.1.98 the selection process had been completed, the matter would have been different. In paragraph 9 of the said judgment it was also mentioned that on 27.11.97 the said Act could not have been given effect to as the Rules for selection had not been completed. 12. In view of the aforesaid fact, I am inclined to hold that the District Inspector of Schools, namely, the respondent No.3 herein had wrongly refused to accept the panel from the school authorities which was duly prepared by the selection committee on 21st September, 1997 and was accepted by the managing committee on 1st October, 1997, i.e. prior to 8th January, 1998 when the notification was issued prescribing the procedure for appointment to the post of teachers. 13. For the foregoing reasons, I find no merits in the objections raised on behalf of the respondent No.3 herein and the arguments advanced by Mrs. Sengupta on behalf of the said respondent No.3 are rejected accordingly. 14. In the premises, writ petition succeeds. The school authorities are directed to forward the said panel prepared by the selection committee on 21st September, 1997 and accepted by the managing committee of the school on 1st October, 1997 to the District Inspector of Schools concerned within a period of one week from the date of communication of this order. The concerned District Inspector of Schools, namely the respondent No.3 herein, is directed to accept the said panel from the school authorities and to consider the same in accordance with the Recruitment Rules prevailing at the relevant point of time within a period of three weeks thereafter. On getting approval of the panel managing committee of the school shall issue appointment letter to the 1st successful empanelled candidate in terms of the said Recruitment Rules. 15. In the facts and circumstances of the present case, there will be, however, no order as to costs. 16. Xerox certified copy of this order, if applied for, be supplied to the respective parties on urgent basis. Writ petition allowed.