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2007 DIGILAW 428 (CAL)

TAPAN KUMAR BAIRAGYA v. STATE OF WEST BENGAL

2007-06-15

JAYANTA KUMAR BISWAS

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( 1 ) THE Court: This writ petition dated Deqember 22nd, 2006 has been taken out by three persons. They alleged that though in terms of order of this Court dated July 14th, 1997 made in CO No. 15058 (W) of 1993 (Nemai Chandra Pan and Ors. v. State of West Bengal and Ors.), they were entitled to participate in the selection process initiated by the authorities of Nadanghat Rampuria High School, Burdwan, the authorities of the institute and the School Service Commission did not permit them to participate in the selection process initiated for appointing members of the teaching staff in the institute. ( 2 ) THE order dated July 14th, 1997 made in the petitioners' previous writ petition is set out below: "petitioners at certain point of time during 7th November, 1983 to May 1986 had rendered service in the school as Assistant teachers. Petitioners' claim is that when the school concerned appointed four teachers, they were not absorbed. Appointment in all the schools under the State is to be considered on the basis of settled prescribed rules. Petitioners have not made out any case whether they were applicants at the time of selection of teachers in the school. Be that as it may, since 1986 till date petitioners are not working in the school and therefore, petitioners' claim cannot be considered by the Managing Committee or by the competent authorities. As petitioners have rendered service for three years, i think that if any future vacancies arise, the School Managing committee will allow petitioners to submit application in response to the notice inviting application for filling up the post of such vacancies. If such vacancy is declared by the competent authorities and if the petitioners submit any application against notice issued by the Managing Committee, petitioners will be given opportunity to appear before the Selection Board. When the petitioners will be allowed to appear before the Selection Board along with the other candidates, petitioners shall be given some concessions and weightage for their service rendered during the period 1983 to 1986. If any vacancy is created within five years and if such concession is given to the petitioners in that event petitioners shall be allowed to appear before the Selection Board and their higher age limit shall be relaxed. This will not create any precedent. The writ penition is disposed of on the above terms. If any vacancy is created within five years and if such concession is given to the petitioners in that event petitioners shall be allowed to appear before the Selection Board and their higher age limit shall be relaxed. This will not create any precedent. The writ penition is disposed of on the above terms. There will be no order as to costs. " ( 3 ) THE short question for decision is whether at the date the petitioners took out this writ petition they were entitled to participate in the selection process sought to be initiated by the school service commission for selecting and recommending candidates for appointment as teacher in the institute that had sent the requisite vacancy report to the commission through the district inspector of schools concerned. In ternis of the provisions of the West Bengal School service Commission Act, 1997 the institute was under the statutory obligation to send the vacancy report through the district inspector of schools and the commission was empowered to select and recommend candidates for appointment as teacher in the institute. The provisions of the statute cast an obligation on the institute to appoint teachers only by giving appointment to the persons selected and recommended by the school service commission. The school service commission on receipt of the vacancy report published advertisement inviting applications from eligible candidates, and hence if the petitioners or any one of them was eligible, he was free to apply for taking the test. The petitioners, however, claim that even if not eligible they were entitled to participate in the selection process in view of the order dated july 14th 1997. ( 4 ) I am unable to accept the case of the petitioners. If at all, they were entitled to get certain benefits on the strength of the order dated july 14th, 1997, had the managing committee of the institute initiated any recruitment process within the period mentioned in the order for appointing any member of the teaching staff in the institute. It is the case of the petitioners that though the managing committee initiated the recruitment process, it did not give them any benefit of the order. It is the case of the petitioners that though the managing committee initiated the recruitment process, it did not give them any benefit of the order. Their counsel has submitted that the managing committee sent report to the school service commission regarding vacancies which had arisen before the year 2002, and hence the school service commission ought to have given the petitioners the benefits of the order dated July 14th, 1997. His further contention is that with respect to vacancies which had arisen before the West Bengal School Service Commission act, 1997 came into force, the managing committee of the institute was to initiate the recruitment process, and that in such recruitment process the petitioners were to get the opportunity of participating in terms of the order dated July 14th, 1997. ( 5 ) I do not find any merit in the argument. After the West Bengal school Service Commission Act, 1997 came into force, there was no scope for anyone to appoint any teacher in any secondary school recognized by the West Bengal Board of Secondary Education in terms of provisions of the West Bengal Board of Secondary Education Act, 1963. The recognised secondary schools are governed by the management of Recognised Non-Government Institutions (Aided and unaided) Rules, 1969. Provisions of those rules conferred power on the managing committee to appoint members of the teaching and non teaching staff in the institute. After the 1997 Act came into force the managing committee lost the power to appoint any teacher in any recognised aided or unaided school in the state. ( 6 ) I do not see on what basis the petitioners contend that the managing committee was under an obligation to initiate recruitment process for appointing teachers in the institute against the vacancies which had arisen before the 1997 Act came into force. That Act came into force from November 1st, 1997. If regarding any vacancy that had existed before that date the managing committee of the institute did not initiate any recruitment process, I do not see how at this distance of time it can be contended by the petitioners that they were entitled to participate in the selection process. They never had any right to call upon the managing committee of the institute to initiate any recruitment process. They never had any right to call upon the managing committee of the institute to initiate any recruitment process. Their right, if any, that flowed from the order dated july 14th, 1997 was only to participate in the selection process, if initiated by the managing committee of the institute. That was never done, and hence there is no reason now to say that in the selection process initiated by the school service commission they should be permitted to participate, even if they are not eligible. ( 7 ) FOR these reasons, I find no merit in the writ petition. It is accordingly dismissed. As a result, nothing remains to be decided in the application (GA No. 665 of 2007) taken out by the petitioners for extension of interim order. That application shall be deemed to be disposed of. There shall be no order for costs in the case. Urgent certified xerox copy of this order shall be supplied to the parties, if applied for, within three days from the date of receipt of the file by the section concerned. Petition dismissed .