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2003 DIGILAW 438 (CAL)

HYDER ALI v. STATE OF WEST BENGAL

2003-08-28

INDIRA BANERJEE

body2003
INDIRA BANERJEE, J. ( 1 ) THIS writ application is directed against the action of the concerned respondents in issuing a notice inviting applications for selection and empanelment for appointment as school teachers in various subjects including Arabic without exhausting the panel of successful candidates for appointment as Arabic Teachers already prepared, which was valid and subsisting. ( 2 ) PURSUANT to a notice issued by the West Bengal Central School service Commission on or about 2000, the petitioner applied for the post of Arabic Teacher in a Bengali Medium School in the Northern Region. ( 3 ) THE petitioner being eligible for the said post was duly allowed to appear for the written test held on 14th October, 2001 for selection to the post of Arabic Teacher as aforesaid. ( 4 ) THE petitioner succeeded in the written test and was duly called for an interview thereafter. The petitioner was duly selected for appointment as Arabic Teacher and his name was empanelled in the third position on or about 29th June, 2002. ( 5 ) IN exercise of powers conferred under Section 18 of the West bengal School Service Commission Act, 1997, the West Bengal School service Commission has framed the West Bengal School Service commission (Procedure of selection of persons for appointment to the posts of Teachers including Headmasters/headmistresses/superintendents of Senior Madrasah in Recognised Non-Government Aided Schools and procedure for Conduct of the Business of the Commission) Regulations, 1998 which are hereinafter referred to as the 1998 Regulations. ( 6 ) THE 1998 Regulations prescribe the procedure for selection of candidates to teaching posts in aided recognized Non-Government Schools including Madrasahs. ( 7 ) REGULATIONS 8 and 9 of the 1998 Regulations are set out hereinbelow for convenience :"8. Preparation of panel for candidates. (1) On the basis of the results of the written examination academic scoring and personality test, all added together, each Regional Commission shall, for each subject, prepare final merit list, that is to say, a panel of candidates found fit for appointment, strictly in order of merit. Each such panel shall include names one and half times the number of the vacancies referred to in regulation 3. There may be different/ separate/subjectwise/language-wise/sex-wise/category-wise sets of panels as may be necessary, based on academic qualifications, for the Higher Secondary, Secondary and Madrasah as may be decided by Central Commission. Each such panel shall include names one and half times the number of the vacancies referred to in regulation 3. There may be different/ separate/subjectwise/language-wise/sex-wise/category-wise sets of panels as may be necessary, based on academic qualifications, for the Higher Secondary, Secondary and Madrasah as may be decided by Central Commission. (2) Each panel prepared shall remain valid for one year from the date of approval of the panel by the Regional Commission for the posts which have already been recorded and which will within the Central Commission thinks it expedient to extend the validity of the panel beyond its normal period for any reasonable cause, the validity of any such panel shall be extended for a further period of one year for the posts which exists or will arise and shall be reported within such extended period of one year but such panel, in any event, shall not remain valid for more than two years. 9. Allotment of Candidates. (1) On receipt of a request from the appropriate authority as may be prescribed in the recruitment rules for appointment in a particular vacancy, the Regional commission shall recommend only one name from the concerned panel for appointment against that vacancy. A copy of the letter recommending the name shall be endorsed to the candidate concerned through registered post with acknowledgement due. (2) The topmost names appearing in the concerned pane! at the material time shall be recommended every time. (3) The area-wise preference of the candidate shall be taken into account as far as possible depending on his/her position in the panel, by the Regional Commission having jurisdiction. (4) If a candidate appointed on the recommendation of the regional Commission is thrown out of employment owing to the vacancy for which he/she was recommended by the Regional commission ceasing to exist, the Commission, may on receipt of such information from the appropriate authority recommend his name or any other vacancy in the same school or any other school. (4) If a candidate appointed on the recommendation of the regional Commission is thrown out of employment owing to the vacancy for which he/she was recommended by the Regional commission ceasing to exist, the Commission, may on receipt of such information from the appropriate authority recommend his name or any other vacancy in the same school or any other school. This regulation shall not be applicable in the case of filling up of short- time vacancies such as deputation vacancy/maternity leave vacancy/ medical leave vacancy/vacancy due to any other leave/vacancy- owing to suspension of lien or for vacancy in the post of Assistant headmaster/assistant Headmistress or vacancy in the death-in- harness category where the procedures as laid down by the State government in the School Education Department shall be followed in the preparation of panels which shall remain valid till they are exhausted for the purposes for which such panels are prepared. (5) If the Managing Commitfee, by whatever named called or the ad-hoc Committee or the Administrator, if any, (where there is no Managing Committee) of any school does not appoint the candidate on the recommendation of the Regional Commission having jurisdiction, the Regional Commission shall not send any other name to that school for filling up that vacancy or any other vacancy in future. On receipt of such information of non-compliance, the regional Commission shall recommend his/her name for any other vacancy in any other school. The fact of such non-compliance shall be brought to the notice of the Central Commission, the School education Department and the Director of School Education, West bengal, by the Regional Commission. " ( 8 ) IN terms of the 1998 Regulations and in particular Regulation 8 thereof the period of validity of a panel is one year and extendable for a further period of one year. ( 9 ) ACCORDING to the petitioner, the panel in which the petitioner was placed in the third position having been approved on 29th June, 2002, the said panel was definitely valid till 28th June, 2003 and further extendable till 28th June, 2004. ( 10 ) THOSE candidates who were placed in the panel in the 1st and 2nd positions respectively have, according to the petitioner, duly been recommended for and in fact been appointed as Arabic Teachers. ( 10 ) THOSE candidates who were placed in the panel in the 1st and 2nd positions respectively have, according to the petitioner, duly been recommended for and in fact been appointed as Arabic Teachers. ( 11 ) ON or about 8th December, 2002 the West Bengal Central School service Commission published another notification inviting applications from eligible candidates for selection inter alia for appointment to vacant posts of teachers of Arabic in aided recognized Non-Government Schools inter alia in the Northern Region and also in vacancies in such schools which were expected to arise in future. A copy of the notification has been produced in Court, ( 12 ) COUNSEL appearing on behalf of the petitioners submits that the said notification on 8th December, 2002 clearly indicates the existence of vacancies in posts of Arabic Teachers in the Northern Region, being the post for which the petitioner had been empanelled. As on date of issuance of the said notification, the panel in which the petitioner's name is included, was valid. ( 13 ) THE first two candidates in the panel having been given appointment, the petitioner had/has a legitimate right to be considered for appointment in the next available vacancy. The respondents Cannot, during the validity of a panel, call for fresh applications without first exhausting that panel. ( 14 ) IN terms of the Rules a panel remains valid for a period of one year and if any vacancies arise during the period of validity of the panel, the names of empanelled candidates should be recommended. ( 15 ) IT is true, that mere empanelment of a candidate may not give any right to an empanelled candidate to be appointed to the post for which he has been selected. The Appointing/recommending Authority cannot, however, altogether ignore a panel of selected candidates or decline to make appointments therefrom at its whims. In this context, reference may be made to the judgment of the Hon'ble Supreme Court in the case of R. S. Mittal v. Union of India reported in 1995 (2) SLR 437 (SC ). ( 16 ) THE empanelled candidate has a legitimate right to be recommended for appointment in accordance with rules if vacancies arise and are reported within the period of the validity of the panel. The respondents cannot act arbitrarily and/or discriminate against empanelled candidates in the matter of making recommendations. ( 16 ) THE empanelled candidate has a legitimate right to be recommended for appointment in accordance with rules if vacancies arise and are reported within the period of the validity of the panel. The respondents cannot act arbitrarily and/or discriminate against empanelled candidates in the matter of making recommendations. An empanelled candidate cannot be denied recommendation for appointment in a vacancy that arises and is reported during the period of validity of the panel without assigning any reason. ( 17 ) IN the case of Prabir Sinha Roy v. Hon'ble Chief Justice reported in 1997 (2) SLR 339 on which reliance has been placed by counsel appearing on behalf of the petitioner. A Kabir, J. following the decision of the Hon'ble Supreme Court in R. S. Mittal's case (supra) held as follows :"39. The same principles has been reiterated in the case of the Secretariat Assistant Successful Examinees Union 1986 (supra), cited by Mr. Sircar. In the said case, it was observed that the State is not expected to act in a leisurely manner and treat the matter of selection for appointment to services casually. 40. In the present case, no justifiable reason is forthcoming as to why appointments were not made from the supplementary panel in respect of vacancies which occurred before the panel lost its validity on 31st December, 1994. The reasons sought to be put forward on behalf of the respondent Nos. 1 and 2 are hardly tenable. As indicated hereinbefore, the supplementary panel was prepared keeping in mind vacancies in the present and in the future, both in the Original and Appellate Sides, and there could be no justification on the part of the authorities, both on the Original and Appellate sides, not to give appointments therefrom in vacancies which occurred prior to 31st December, 1994. 41. Accordingly, since in my view the petitioner had acquired a right to be considered for appointment, I dispose of this application with a direction on the respondents to consider the writ petitioner's claim for appointment to the post of Lower Division Assistant in the vacancies which may have occurred, both in the Original and appellate Sides, prior to 31st December, 1994, strictly in order of merit in the supplementary list. This benefit will be confined to the writ petitioners alone, inasmuch as, only they have come forward to press their claims. This benefit will be confined to the writ petitioners alone, inasmuch as, only they have come forward to press their claims. Such consideration is to be made within two months from the date of communication of this order. " ( 18 ) THE panel, in the instant case, was valid when the notice of december, 2002 was issued. Vacancies having arisen within the period of validity of the panel the respondents should have first exhausted the panel before calling for fresh applications. No reasons are forthcoming for not recommending the petitioner for appointment to a post of Arabic teacher which fell vacant within the period of validity of the panel. ( 19 ) THE writ application is, therefore, allowed. ( 20 ) THE respondents are directed to recommend the name of the petitioner for appointment to any post of Assistant Teacher of Arabic which fell vacant before expiry of the period of validity of the panel. ( 21 ) IT is made clear that the respondents shall not appoint any candidate empanelled pursuant to the aforesaid notice of December, 2002 to any post of Arabic Teacher which fell vacant prior to 28th June, 2003 without first recommending the petitioner for appointment to the post of arabic Teacher in a school within the jurisdiction of the West Bengal Central school Service Commission. If an urgent xerox certified copy of this order, is applied for, the same is to be supplied expeditiously, subject to compliance with all the required formalities.