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2005 DIGILAW 473 (CAL)

UTTAM KUMAR DAS v. STATE OF WEST BENGAL

2005-07-28

ASHIM KUMAR BANERJEE

body2005
ASHIM KUMAR BANERJEE, J. ( 1 ) THE writ petitioner was an assistant teacher in Midnapore Collegiate School. The vacancy occurred in the post of Headmaster in the said concerned school because of retirement of the then Headmaster in the year 2004. The West Bengal Central School service Commission published an advertisement on July 17, 2004 inviting application for the post of Headmaster. The petitioner duly applied for the said post. However, he was not called for any interview as according to them he did not come within the zone of consideration. The petitioner, however earlier applied for the post of Headmaster in 1999 and he was selected for another school. He did not join the said school because of his father's ailment. ( 2 ) THE petitioner approached this court by way of the present writ petition. Mr. Mihir Chakraborty, learned counsel appearing for the petitioner contended as follows: (i) Under the West Bengal School Service Commission Regulations for the post of Headmaster as well as Assistant teacher written examination is contemplated. In the instant case the School service Commission did not hold any written examination and elected the private respondent for the post of Headmaster in the concemed school without holding any written examination. (ii) The writ petitioner was earlier selected for the said post which he could not avail. Hence, it was presumed that he had the requisite qualification and as such he should have been given an opportunity to compete for the post by participating at the interview. (iii) Since in the Affidavit-in-Opposition filed by the commission the writ petitioner was shown to have obtained 32 marks whereas the last candidate called for the interview obtained 34 marks the writ petitioner should have been allowed to participate at the interview process. ( 3 ) TO elaborate his submission Mr. Chakraborty relied on the School service Commission Act, 1977 and the regulations framed thereunder. Mr. Chakraborty relied on Sections 17 and 18 as well regulation framed under Section 18 which provided written examination. Mr. Chakraborty also drew my attention to the booklet issued in 1999 which stipulated written test for the post of Headmaster. According to him, such written test was in terms of the regulation and as such the School Service commission did not have any authority to do away with written test in 2004 only to avoid healthy competition. According to Mr. Chakraborty also drew my attention to the booklet issued in 1999 which stipulated written test for the post of Headmaster. According to him, such written test was in terms of the regulation and as such the School Service commission did not have any authority to do away with written test in 2004 only to avoid healthy competition. According to Mr. Chakrabotty the test was done away with only to avoid his candidature. He further contended that in case he was allowed to participate at the interview he could have mane the short fall by doing well in the interview. ( 4 ) OPPOSING the application Mr Tapabrata Chakraborty, learned counsel appearing for the council contended that the said Act of 1997 empowered the State to make rules under Section 17 as also to make regulation under Section 18. Under Section 18 the Commission was empowered to make regulation wiih the prics approval of the State goverment and not inconsistent with the provision of the Act. In the matant case, the commission initially framed regulation providing for written test in all categories including the Headmaster and as such in 1999 written examination was held for the post of Headmaster. However, by a subsequent circular issued on February 23, 2001 the State government amended the regulation and provided the marking procedure which did not have any written test for the post of Headmaster. In the instant ease the selection process was conducted strictly in terms of the regulation as amended by notification dated February 23, 2001. The petitioner was duly considered for the said post. However, after scrutiruzing his credentials along with others and after short listing the candidates for interview the writ petitioner could not come within the zone of Considerauon Hence, the petitioner was not allowed to participate at the interview. ( 5 ) I have carefully considered the respective submissions of the parties. I have also carefully considered the decision of the Division Bench dated march 13, 2005 by which the present writ petition was remanded to me for hearing afresh. Mr. Chakraborty relying on the said Division Bench judgment contended that earlier the writ petition was dismissed without calling for affidavits. When the appeal was preferred the Division Bench considered the fact that the regulation 1998 contemplated a written test. Mr. Chakraborty relying on the said Division Bench judgment contended that earlier the writ petition was dismissed without calling for affidavits. When the appeal was preferred the Division Bench considered the fact that the regulation 1998 contemplated a written test. The Bench also observed that there was inconsistency prima facie apparent between the regulation and the notification produced by the learned counsel for the commission. Considering such fact the Division bench recalled the order of dismissal and remanded the matter for hearing afresh upon filing of affidavits. It is true that the Division Bench observed that there was inconsistency between the regulation and the notification. I have considered the matter now on affidavits. The commission in most categorical terms contended in their affidavit that the regulation 1998 had since been amended by doing away with the written test for the post of Headmaster. The marking procedure as prescribed in the notification of 26th February, 2001 would clearly show that there was no written test contemplated in the post of Headmaster. Under Section 18 of the said Act the commission was empowered to frame regulations not inconsistent with the Act. In the definition clause of the Act "teacher" includes "headmaster" and "headmaster" has been defined as head of the teaching staff in the concerned school. In the Act there was no procedure prescribed for selection of teacher. Section 8 provides for manner and scope of selection which stipulates that selection for the post of teacher would be as per prescribed procedure as may be provided by regulation. In terms of Section 18 the commission -was empowered to frame regulation as was done in 1998 which contemplated written test for the post of Headmaster. On 21st February, 2001 by notification issued by the State by virtue of power granted under Section 18 amended the regulation of 1998 wherein written test was done away with for the post of Headmaster. I do not find any inconsistency in the said notification. The present selection was done in terms of regulation 1998 as amended in 2001. The writ petitioner could not come within the zone of consideration as he got 32 where as the last candidate called for interview got 34. I do not find any scope for interference. ( 6 ) THE writ petition thus fails and is hereby dismissed. There would be no order as to costs. Writ disallowed.