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2001 DIGILAW 310 (CAL)

PRASENJIT SENGUPTA v. STATE OF WEST BENGAL

2001-05-25

PRABIR KUMAR SAMANTA

body2001
P. K. SAMANTA, J. ( 1 ) -IN the writ petition question arises for determination is whether the provisions of Rule 4 (e) of the Recruitment Rules Providing Procedure for Recruitment of Teaching and Non-teaching staffs of Secondary Schools as framed by the Director of School will have application upon the enforcement of the West Bengal School Service Commission Act,1997 (hereafter called as the Act of 1997 ). ( 2 ) THE West Bengal Board of Secondary Education Act, 1963 (hereinafter called as Act of 1963) Empowered the State Government to make rules for carrying out the purpose of the said Act. In particular Clause (d) of sub-section (2) of section 45 of the Act of 1963 provided for making rules by the State Government in the matter of composition, Powers and functions of Managing Committees of Institutions. In exercise of such power under section 45 of the said Act of 1963 the State Government framed Management of Recognised Non-government Institution (Aided and Unaided) Rules, 1969 (hereinafter called as the Management Rules ). The said Management Rules conferred power upon the managing committee of an aided Institution to appoint teachers and other employees on permanent basis against permanent vacancies if available within the sanctioned strength of teachers and other employees subject to the provisions of any grant in aid scheme or any revision scheme or any order or direction or guidelines issued by the State Government or the Director in connection therewith. In particular the Rule 28 of the said Management Rules before it's substitution read as under:-Power of Committee- (1) In an aided institution the Committee shall, subject to the provisions of any Grant-in-aid Scheme or Pay Revision Scheme or any order or direction or guidelines issued by the State Government or the Director in connection therewith and in force for the time being, have the power-Old. (1) to appoint teachers and other employees on permanent basis against permanent vacancies, If available, within the sanctioned strength of teachers and other employees, approval for such appointment being thereafter sought for from the director or any other officer authorises by him, ordinarily within a fortnight from the date of decision of the committee; (ii) to appoint teachers and other employees on temporary basis against permanent or temporary vacancies, if available, within the sanctioned strength of teachers and other employees, approval for such appointment being thereafter sought for from the Director or any other officer authorised by him, ordinarily within a week from the date of decision of the Committee; ( 3 ) THE director of School Education in exercise of such power as conferred by sub-rule (1) of Rule 28 issued directions prescribing Procedure for recruitment of teaching and non-teaching staffs of secondary School including Madrasaha ( hereinafter referred to as the Recruitment Rules for convenience ). ( 4 ) THE said Recruitment Rules inter alia provided for the manner and mode of selection for the purpose of recruitment in the posts of both teaching and non-teaching staffs in Institutions and for appointments thereof. In case of any vacancy against any sanctioned post in any recognized and aided school, it required the management of the school to obtain a prior permission from the concerned District Inspector of Schools (Secondary Education) for taking steps for an appointment. On receipt of such prior permission and subject to the provisions of rule 3 (b) of the said Recruitment Rules the school authority as per Rule 4 (a) was required to approach the concerned employment exchange for the candidates for the purpose of selection for the said post. The Rule 4 (b) provided for sponsoring of a list of eligible candidates by the Employment Exchange for being considered by the selection committee of the said institution for the purpose of recruitment in the said post. For the present purpose Rule 4 (e) of the said Recruitment Rules is relevant and is therefore quoted hereunder :-"all DIS. (SE) shall maintain roster to record the names of the qualified eligible approved non-teaching staffs for appointment to the post of teaching and non-teaching staffs and forward upto 3 names of eligible candidates for interview along with the candidates sponsored by the employment exchange. (SE) shall maintain roster to record the names of the qualified eligible approved non-teaching staffs for appointment to the post of teaching and non-teaching staffs and forward upto 3 names of eligible candidates for interview along with the candidates sponsored by the employment exchange. " ( 5 ) THEREFORE, under Rule 4 (e), the non-teaching staffs of Institutions having the requisite qualifications for being appointed in the posts of teaching staffs included in the roster maintained by DIS (SE) concerned for that purpose were also entitled to be considered along with all other eligible candidates sponsored by the concerned employment exchange. Rule 5 of the said Recruitment Rules prescribed the constitution of a Selection Committee in an Institution and the mode of selection. Rule 5 (q) required all the candidates sponsored by the Employment Exchange to appear for interview. Rule 6 (b) empowered the selection committee to assess those candidates and award marks in the manner prescribed therein upon their interview. Rule 6 (j) stipulated that a panel consisting of three candidates in order of merits shall be prepared by the Selection Committee for submission to the Managing Committee on the basis of the total marks awarded to each of the candidates in the manner as provided therein. The other provisions of the said Recruitment Rules which are not relevant for the present purpose provided for approval of the said panel of three selected candidates by the concerned DIS (SE) and appointment thereof from the said approved panel. Rule 7 (a) provided that for the purpose of giving appointment to a staff of another School the appointing authority should see that the candidate has been duly released by the Institution where he/she had been serving. Upon conjoint reading of the aforesaid provisions of the Recruitment Rules it appeared that for the purpose of recruitment in a post of a teaching staff in an Institution, the School authority was required to select three candidates in order of merits in an interview from amongst the candidates sponsored by the Employment Exchange and three other persons referred to by the con-cerned DIS (SE) from the roster maintained by him of the eligible approved non-teaching staffs of Institutions having the requisite qualification for being appointed as a teaching staff of an Institution. Thus, in substance the aforesaid Recruitment Rules provided for consideration of candidature (limited to three only for one post of a teaching staff) of the non-teaching staffs of Institutions having the requisite qualification for being appointed in the post of teaching staff included in the roster maintained, by DIS (SE) concerned as may be sponsored by him for the purpose of selection, along with the candidates sponsored by the concerned Employment Exchange. ( 6 ) IN these state of affairs, West Bengal School Service Commission Act, 1997 came into force with effect from 1. 11. 97. Sub section (1) of section 8 of the said Act of 1997 provided that the manner and scope of selection of persons for appointment to the posts of teachers shall be such as may be prescribed. Again section 9 of the said Act of 1997 provided as under :-Effect of recommendation of Commission- (1) Not withstanding anything contained in any other law for the time being in force or in any contract, custom or usage to the contrary, appointments to the posts of teachers in a school shall be made by the managing committee, by whatever name called, or by the ad-hoc committee, or by the administration, if any (where there is no managing committee), of that school on the recommendation of the Regional Commission having jurisdiction. (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. ( 7 ) SECTION 17 of the said Act of 1997 empowered the State Government to make rules for carrying out the purposes of the said Act and in particular Clause (d) of sub section (2) of section 17 empowered the State Government to make rules laying down the manner and scope of selection of persons for appointment to the posts of teachers under sub section (1) of section 8 of the said Act. In exercise of such power the State Government prescribed the Procedure for Selection of Persons for Appointment to the Post of Teachers of schools by a notification dated 8. 1. 1998 published in the Calcutta Gazette Extra Ordinary on 15. 1. 1998 (here-in-after called as Procedure for Selection ). In exercise of such power the State Government prescribed the Procedure for Selection of Persons for Appointment to the Post of Teachers of schools by a notification dated 8. 1. 1998 published in the Calcutta Gazette Extra Ordinary on 15. 1. 1998 (here-in-after called as Procedure for Selection ). In particular the said Procedure for Selection to the posts of Assistant Teachers in schools provided as under :- (i)Method Recruitment : by selection (direct) in consultation with the West Bengal Regional School Service Commission of concerned region. (ii)Eligibility : citizen of India. (iii)Qualifications : a. Essential bachelor degree from any recognized University. b. Desirable : bachelor of Teaching/bachelor of Education/post Graduate Basic Trading from any University. (iv) Age : minimum 20 years of age as on the 1st day of January of the year of advertisement. Upper age limit of 35 years, relaxable by 5 years for Scheduled caste/scheduled Tribe candidates and 3 years for Backward Class candidates. There shall be no restriction of age in respect of approved teaching and non-teaching staff of school for appearing at an examination for appointment to the above posts. ( 8 ) AFTER the West Bengal School Service Commission Act, 1997 came into force with effect from 1. 11. 97 the Clauses (i) and (ii) of sub Rule (1) of Rule 28 of the said Management Rules were substituted by a notification which were published in the Calcutta Gazette Extraordinary dated 1. 11. 97. ( 8 ) AFTER the West Bengal School Service Commission Act, 1997 came into force with effect from 1. 11. 97 the Clauses (i) and (ii) of sub Rule (1) of Rule 28 of the said Management Rules were substituted by a notification which were published in the Calcutta Gazette Extraordinary dated 1. 11. 97. The substituted Rules read as under :-Power of Committee-New (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 him, such approval being sought for within a fortnight from the date of decision of the committee in this 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; ( 9 ) BY the non-obstanate clause of section 9 of the Act of 1997 it was made clear that all appointments to the posts of teachers in schools shall be by the managing committee on the recommendation of the Regional Commission having jurisdiction. As the Clauses (i) and (ii) of sub-rule (1) of Rule 28 were substituted as above upon enforcement of the said Act of 1997, so all such appointments to the posts of teachers in Institutions were required to be made on the recommendation by the School Service Commission having jurisdiction. Therefore, the procedure for selection of the candidates by the managing committee of an Institution was substituted. The aforesaid Act of 1997 and the procedure for selection as prescribed in exercise of power under the said Act of 1997 replaced the part of selection of candidates by the Managing Committee/selection Committee of an Institution and in its place the School Service Commission having the jurisdiction was entrusted with the power to select candidates as per the procedure prescribed therefor. The Act of 1997 which was passed for the purpose of enabling the Regional School Service Commission to recommend candidates for appointments to the posts of teachers and the Procedures for selection as prescribed in exercise of the power under the said Act of 1997 were all in affirmative languages and created a new jurisdiction upon the Regional School Service Commission and a new procedure for selection therefor. These jurisdiction and the procedures as prescribed under Act of 1997 and no others, therefore, must be followed. This subsequent statute requiring selection to be done in a particular manner for the posts of teachers in Institution substituted the process of selection to the posts of teachers as prescribed by the said Recruitment Rules. ( 10 ) BY such substitution the procedure was laid down for such selection by the Regional School Service Commission in the manner as provided under paragraph 4 of such Procedure for selection which is as under:-"selection of candidates for the post of Teacher/headmaster/headmistress/superintendent of Senior Madrasah shall be made in the following manner :- (a) Written Test 60 Marks (b) Academic qualifications including Professional qualifications 30 Marks (c) Personality Test (interview including oral test for teaching aptitude) 10 Marks 100 Marks ( 11 ) THE said Procedure for selection provided for written test of all candidates and allotment of marks on the basis of academic qualifications and on an interview. Thus, there was complete departure in the process of selection. When there was complete departure in the process of selection, it could not be said that the non-teaching staffs of schools having the requisite qualifications for being appointed to the post of teachers of schools would be treated as a distinct class for the purpose of selection separately by way of interview only and without the written test unless the Statute, rules and directions issued thereunder provided for such differential treatment. Such differential treatment in respect of the non-teaching staffs was also not provided in the said Recruitment Rules. The non-teaching staffs having the requisite qualifications for being appointed to the posts of teachers of schools and included in the roster as maintained by the DIS (SE) were treated at par with all other eligible candidates as sponsored by the concerned local employment exchange. Their candidature were also required to be considered along with all other eligible candidates as sponsored by the employment exchange. Their candidature were also required to be considered along with all other eligible candidates as sponsored by the employment exchange. They were not treated differentially or separately for the purpose of selection. Selections were purely on the basis of merits upon an interview by the selection committee and assessment of educational qualifications. ( 12 ) THEREFORE, no right vested in them for being selected for the purpose of appointments to the posts of teachers under the said Recruitment Rules except for being considered for selection. Such consideration was also limited to three candidates sponsored by DIS (SE) from its roster maintained therefore for each post. Therefore, it cannot also be said that the rights created under Rule 4 (e) of the said Recruitment Rules in favour of the non-teaching staffs would be taken away if the same is not applied particularly when the said Act of 1997 and the Procedure for Selection as framed thereunder did not expressly delete the said provisions of rule 4 (e ). The said Procedure for selection as framed under the provisions of the said Act of 1997 on the other hand entitled all approved teaching and non-teaching staffs of schools to participate in the selection process for being appointed to the posts of teachers of schools without any age restriction. The rights of the non-teaching staffs having the requisite qualifications for being considered for selection for appointments to the posts of teaching staffs were thus fully protected. ( 13 ) THEREFORE, the said Procedure for selection also did not suffer from any vice which would make the same inapplicable to the non-teaching staffs of Schools having the requisite qualifications for being appointed to the post of teachers of Schools. There was clear inconsistency between Rule 4 (e) of the said Recruitment Rules and the Procedure for selection framed under the said Act of 1997. In view of the non-obstanate clause in section 9 of the said Act of 1997 and the clear inconsistency as above, I am of the opinion that the said procedure for Selection as framed under the Act of 1997 abrogated the Rule 4 (e) of the Recruitment Rules. In these views I do not find the applicability of the Supreme Court decisions cited by Mr. Amal Baran Chatterjee, learned Advocate for the petitioners. In these views I do not find the applicability of the Supreme Court decisions cited by Mr. Amal Baran Chatterjee, learned Advocate for the petitioners. The said decisions are reported in AIR 1963 SC 1561 (Municipal Council, Palai v. T. J. Joseph); AIR 1983 SC 852 (Y. V. Rangaiah v. J. Sreenivasa Rao) and AIR 1992 SC 81 (R. S. Raghunath v. State of Karnataka ). Unreported single bench decision of this Court made in W. P. No. 15618 (W) of 2000 as cited on behalf of the petitioners is also not a decision on the issue involved in this writ petition. The same has, therefore, no application in this case. Thus, this writ petition must fail, hence the same is dismissed. Interim order, if any, shall stand vacated petition dismissed.