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2005 DIGILAW 529 (CAL)

BANDANA GHOSH v. STATE OF WEST BENGAL

2005-08-16

PRATAP KUMAR RAY

body2005
Pratap Kumar Ray ( 1 ) IN the instant case, it is the grievance of the petitioner that the post of headmistress which fell vacant prior to the coming into effect of the West bengal School Service Commission Act, was duly notified to the. concerned district Inspector of Schools for according necessary permission in terms of the recruitment rules issued by the Director of School Education on exercise of his power under Rule 28 of the Management of Recognised Non-Government institutions (Aided and Unaided) Rules, 1969 (hereinafter for brevity referred to as the Management Rules 1969), but the District Inspector of Schools concerned kept mum overthe issue and thereby has infringed the right of the petitioner for consideration in the post. ( 2 ) UNDER said Rule 28, the Director of School Education, West Bengal was empowered to issue recruitment rules and following that, recruitment rule was issued by him vide Memo No. 2066-G. A. dated 27. 10. 1995, effective from 1. 12. 95, which was superseded and cancelled in view of subsequent amendment of Rule 28 of the Management Rules, 1969 with effect from 20. 8. 1991, which provides, inter alia, that without any recommendation of the School Service Commission in terms of. the West Bengal School Service commission Act, no Managing Committee would be entitled to give any appointment in any teaching and non-teaching post, including the post of headmaster and Headmistress. The relevant amended rule provides to this effect:-"28. Powers 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. (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 by him, such approval being sought for within a fortnight from the date of decision of the Committee in this behalf. " ( 3 ) WEST Bengal School Service Commission Act came into effect from 1. 11. " ( 3 ) WEST Bengal School Service Commission Act came into effect from 1. 11. 97 and Section 9 of the said Act provides that all appointment of teaching and non-teaching staff of the secondary and higher secondary schools would be controlled and managed by the School Service Commission by inviting applications from the eligible candidates. Post of Headmaster or headmistress is also falling under the said category, and accordingly School service Commission got the right to select candidates in view of coming into effect of the School Service Commission Act, and the relevant provision of section 9 read with the amended provision of Rule 28. Hence, there was no scope for giving any effect to the recruitment rule issued by the Director of school Education as was existing prior to the coming into effect of the West bengal School Service Commission Act. Section 9 of the said Act reads thus :-9. Effect of recommendation of Commission- (i) Notwithstanding 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 administrator, 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. ( 4 ) MERE declaration of a vacancy by the school authority in terms of the erstwhile recruitment rules which has been superseded and cancelled in view of the amended provision, aforesaid, did not empower any teaching and non-teaching staff either of that school or, another school with any right for consideration of his or her candidature following the recruitment rules issued by the Director of School Education. Declaration of a vacancy and seeking prior permission is within the domain of the Managing Committee of the school vis-a-vis the District Inspector of Schools concerned so far as his action to accord such permission. Declaration of a vacancy and seeking prior permission is within the domain of the Managing Committee of the school vis-a-vis the District Inspector of Schools concerned so far as his action to accord such permission. No teaching and non-teaching staff aspiring for the post of Headmaster or Headmistress attached with the concerned school has any legal right to compel the authorities concerned, namely, the director of School Education, West Bengal or his delegate District Inspector of Schools to accord such prior permission. There was no infringement and/ or violation of the petitioner's right in that respect. At the present moment since already there is existence of the West Bengal School Service commission Act, and the Management Rules, 1969 has been amended accordingly providing appointment of teaching and non-teaching staff including headmaster Headmistress of school in terms of the recommendation of the school Service Commission, there is no scope of giving any effect of the repealed provision. Furthermore, it is a settled law that a Writ of Mandamus could be issued if and only if there is any violation of legal right of the citizen concerned and there is lack of performance of any duty and obligation on the part of the respondents to that effect under a statute. Even under the old recruitment rules issued by the Director of School Education, West Bengal no right was given to any candidate aspiring for the post to seek for prior permission. As already mentioned, it was within the domain of the Managing committee of the school to declare such vacancy and within the field of administrative action of the District Inspector of Schools concerned to accord necessary prior permission. A candidate is only entitled to exercise his right in a contingency when after according of prior permission names are asked for and in pursuance thereof interview letter is sent to him. In the instant case, it appears that even according of prior permission got no maturity, and the District Inspector of Schools did not accord prior permission. Relying upon the judgments of the Apex Court about issuance of Writ of Mandamus providing contingency of legal right of the petitioner vis-a-vis legal duty and obligation on the part of the respondents as reflected in the case of manosubrata Jain v. State of Haryana, reported in AIR 1977 SC 276 , State of Kerala v. A. Laxmimurti and Ors. Relying upon the judgments of the Apex Court about issuance of Writ of Mandamus providing contingency of legal right of the petitioner vis-a-vis legal duty and obligation on the part of the respondents as reflected in the case of manosubrata Jain v. State of Haryana, reported in AIR 1977 SC 276 , State of Kerala v. A. Laxmimurti and Ors. , reported in AIR 1987 SC 331 , State of u. P. v. Harish Chandra, reported in AIR 1996 SC 2173 and the decision in the case of Director of Settlement, Andhra Pradesh and Ors. v. M. R. Appa rao, reported in 2002 (4) SCC 638, this Court is of the view that as the petitioner has no legal right to seek Writ of Mandamus in terms of prayers (a) and (b) and there was no legal responsibility or liability on the part of the district Inspector of Schools concerned to accord prior permission, the writ application is not maintainable and no Writ of Mandamus could be issued. ( 5 ) IN that view of the matter, the writ application stands dismissed. ( 6 ) BEFORE parting with the matter, this Court is not unmindful of the fact that there is no Headmistress in the concerned school for a considerable period. Having regard to such State of affairs, the School Service Commission is directed to recommend name of a suitable candidate for the post of headmistress within 6 months from this date and the Managing Committee is directed to issue appointment letter in favour of the recommended candidate of the School Service Commission.