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2006 DIGILAW 793 (CAL)

KARTIK PANDIT v. STATE OF WEST BENGAL

2006-12-15

DEBASISH KAR GUPTA

body2006
( 1 ) THIS matter has not appeared in today's list as per direction of this Court. ( 2 ) WITH consent of both the parties this matter is taken up today and treating the same as on today's list. ( 3 ) THE petitioner files this application with a prayer to allow him to participate in the interview scheduled to be held on December 17, 2006 to prepare a panel for the post of Clerk in Gazipur Balika Vidyalaya, Village and P. O Gazipur, District - Howrah. The ground for challenge of this writ application are as follows : -In accordance with the provision of sub-section (3) of Section 1 of West Bengal Schools Control of Expenditure Bill, 2005 should come into force at once and the remaining sections should come into force on such date or dates and in such area or areas as the state Government may, by notification, appoint and different dates may be appointed for different sections or for different areas. ( 4 ) ACCORDING to the petitioner the provisions of Section 2 to Section 22 of the aforesaid Act have been given effect to from December 27, 2005 but unless such notification is made available to the public no effect can be given to those provisions. Since the West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005 came into force by virtue of Gazette notification dated December 27, 2005 that cannot be given effect to unless the provisions of Section 2 to Section 22 come into force prior to that date. ( 5 ) THE second submission made on behalf of the petitioner is this, in accordance with the provision of Section 22 of the said Act, Rules may be framed for carrying out the purpose of the Act. The purpose of the said act is to be controlled the expenditure but according to the petitioner there is no nexus of the provisions of Clause (5) (a) of Rule 8 of the said Rule to the aforesaid purpose of the said Act in allowing the candidates sponsored by the employment exchange only to participate in the interview for selection of non-teaching staff of a secondary school. ( 6 ) THE third submission made on behalf of the petitioner is this, section 5 of the said Act does not empower the authority to make a Rule for that purpose. ( 6 ) THE third submission made on behalf of the petitioner is this, section 5 of the said Act does not empower the authority to make a Rule for that purpose. ( 7 ) THE next submission made on behalf of the petitioner is this, in view of the Special Bench judgment in Rabindranath Mahato v. State of west Bengal and Ors. , reported in 2005 (2) CLJ (Cal) 161 all the eligible candidates are entitled to appear in the selection process in the instrumentalities of the stage in the event the name of such eligible candidates are not sponsored by the concerned employment exchange. ( 8 ) APPEARING on behalf of the State-respondent Mr. Saikat Banerjee, learned Advocate, submits that Notification No. 1265 SE (S)-ES/s/1a-3/ 2004 dated October 05, 2005 was published in the Kolkata Gazette extraordinary in October 06, 2005. By virtue of that notification the provisions of Sections 2 to 22 of the said Act have been given effect to in accordance with the provision of sub-section (3) of Section 1 of the said act. In accordance with the provisions of sub-section (1) of Section 5 no school authority shall not appoint any teacher in a school in contravention of the provisions of this Act, or the provisions of the West Bengal School service Commission Act, 1997, or in contravention of any rules, orders, procedures or directions issued thereunder. In accordance with the provisions of sub-section (1) of Section 22 the State Government may, by notification, make rules for carrying out the purposes of the said Act. ( 9 ) IT is further submitted by Mr. Banerjee that by virtue of Notification no. 1594 SE (S) dated December 26,2005 published in Kolkata Gazette extraordinary dated December 27, 2005 the said Rule has been promulgated. In accordance with the provisions of Clause (5) (a) of Rule 8 of the said rule, on receipt of the sanction from the District Inspector of schools, the School authority shall make a requisition to the employment exchange for sponsoring, within 45 days, names of the candidates. Therefore, the candidates sponsored by the employment exchange concerned have the right to appear in the interview for selection of non-teaching staff of a Secondary School. According to Mr. Therefore, the candidates sponsored by the employment exchange concerned have the right to appear in the interview for selection of non-teaching staff of a Secondary School. According to Mr. Banerjee it appears from Clause (5) (b) of Rule 8 of the said rule that in case of non-availability certificate from the employment exchange, the school authority shall, under intimation of the District Inspector of Schools, make an advertisement with complete postal address of the school and other relevant particulars in a daily newspaper having circulation throughout the State. ( 10 ) ACCORDING to Mr. Banerjee the above provision prescribes for the control of expenditure. Therefore, reading the provisions of Sections 5, 12 of the said Act with the provisions of Clauses (5) (a) and (5) (b) of the rule 8 of the said rule this is well established that the above rule has been framed well within the scope and ambit of the said Act. ( 11 ) WITH regard to the applicability of the decision of Rabindranath mahato (supra) Mr. Banerjee submits that the above decision was on the basis of the fact that attention of that bench was not drawn by either of the parties to any statutory rule. ( 12 ) ACCORDING to Mr. Banerjee this matter can be decided without using affidavits on behalf of the State-respondent. ( 13 ) HAVING heard the learned Counsel appearing on behalf of the parties and as also considering the materials-on-record I find that the provisions of Sections 2 to 22 of the said Act have been given effect to by virtue of Notification dated October 06, 2005. I do not find any pleading in support of the submissions made on behalf of the petitioner that the aforesaid notification was not made available to the public on that date or on any subsequent date. ( 14 ) WITH regard to the scope and ambit of permitting the said rule under the provisions of sub-section (1) of Section 22 read with sub-section (2) of Section 5 of the said Act, those provisions are quoted below : - "5. (1) No school authority shall appoint any teacher in a school in contravention of the provisions of this Act, or the provisions of the West Bengal School Service Commission Act, 1997, or any rules, orders, procedures or directions issued thereunder. (1) No school authority shall appoint any teacher in a school in contravention of the provisions of this Act, or the provisions of the West Bengal School Service Commission Act, 1997, or any rules, orders, procedures or directions issued thereunder. (2) No school authority shall appoint any non-teaching staff in a school excepting in the manner as may be prescribed. (3) Any appointment made by a school authority in contravention of sub-section (1) or sub-section (2) shall be void. " "22. (1) The State Government may, by notification make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for any matter, which may be or is required to be prescribed. (3) Every rule made under this section shall, as soon as may be after it is made, be laid before the State Legislature. " For proper adjudication of the question of validity of the said rule, the provisions of Clauses 5 (a) (b) of Rule 8 are quoted below : - "8. (5) (a) On receipt of the sanction from the District Inspector of Schools, the school authority shall make a requisition to the employment exchange for sponsoring, within forty-five days, names of the candidates. (b) In case of receipt of a non-availability certificate from the employment exchange, the school authority shall, under intimation to the District Inspector of Schools, make an advertisement with complete postal address of the school and other relevant particulars in a daily newspaper having circulations throughout the State. " ( 15 ) THE provisions of Clauses (5) (a) (b) of Rule 8 of the said rule provide for sponsoring the name of eligible candidates by the concerned employment exchange. While the provisions of Clause (5) (b) of Rule 8 of the said rule provide for making an advertisement in a daily newspaper only having circulation throughout the State in the event of the receipt of a non-availability certificate from the employment exchange. It goes without saying that the same procedure curtails the expenditure to a great extent in comparison to the procedure of making advertisement in different newspapers, electronics media, etc. It goes without saying that the same procedure curtails the expenditure to a great extent in comparison to the procedure of making advertisement in different newspapers, electronics media, etc. ( 16 ) WITH regard to the submissions made on behalf of the petitioner that Section 5 is not the enabling section to make any Rule by any of subordinate legislations to hold the selection process with the participation of the candidates sponsored by the concerned employment exchange only, i do not agree with the submissions of the learned Advocate appearing on behalf of the petitioner in view of the provisions of Section 22 of the said act. ( 17 ) WITH regard to the applicability of the decision of Rabindranath mahato (supra), I find that the above decision has no manner of application in the instant case. In this regard the relevant portions of the decision of rabindranath Mahato (supra) are quoted below : - "in above view of the matter the reference is answered by holding that following the law laid down by Supreme Court in the case of K. B. N. Visweshwara Rao (supra) and Raj Kumar (supra)by its judgment dated February 12, 2002 given in Abu Taher v. Abdul wahab (supra) (Civil Appeal No. 1203 of 2001) has impliedly overruled the Special Division Bench decision of this Court in debasis Dutta v. State of West Bengal, reported in 1998 (2) CLJ 1 and as a result a person whose name is not sponsored by the employment exchange has a right to participate as a candidate in a selection process initiated by a school governed by 1969 management Rules (framed under West Bengal Board of Secondary education Act, 1963) for recruiting and selecting a person for appointment as a member of the non-teaching staff. The attention of the Bench has not been drawn by either of the parties to any statutory rule which compels it to make a different view. Individual matters may be sent back to the respective Courts having jurisdiction for decision on merit on respective facts involved therein. " ( 18 ) THE above matter was decided on the basis of the fact that there was no statutory rule in field unlike the facts of the instant case. ( 19 ) IN view of the above facts and circumstances as discussed hereinabove. I find no merit in this writ application. " ( 18 ) THE above matter was decided on the basis of the fact that there was no statutory rule in field unlike the facts of the instant case. ( 19 ) IN view of the above facts and circumstances as discussed hereinabove. I find no merit in this writ application. This writ application is thus dismissed. There will be no order as to costs.