Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 213 (CAL)

Manik Chandra Das v. STATE OF WEST BENGAL

2009-03-12

PRANAB KUMAR DEB, PRATAP KUMAR RAY

body2009
Judgment : RAY, J. (1) Heard the learned Advocate appearing for the appellant. None appears on behalf of the State respondents to oppose this appeal. (2) Challenging the judgment and order dated 20th December, 2005 passed by the learned trial Judge in W. P. No. 17711 (W) of 2005, this appeal has been preferred by the writ petitioner. The impugned judgment under appeal reads such:- "20.12.05 W. P. No. 17711 (W) of 2005 The petitioner herein has prayed for a direction upon the respondent authorities for issuing appointment to the said petitioner as Assistant Teacher in a School considering the post graduate qualification of the said petitioner. Undisputedly, the post of Assistant Teacher can be filled up in a school only on the basis of the recommendation of the School Service Commission. The name of the petitioner has not been recommended by the School Service Commission as the petitioner never appeared at the Selection Test conducted by the School Service Commission. Until and unless the name of the petitioner is recommended by the School Service Commission for appointment as Assistant Teacher in a School, the District Inspector of Schools (S.E.), Murshidabad has no authority to issue any letter of appointment in favour of the petitioner. For the aforementioned reasons, I do not find any merit in this writ petition and the same is accordingly dismissed with no order as to costs." (3) In the writ application, the writ petitioner/appellant prayed for absorption to the post of Assistant Teacher in Bengali or in Social Science Group in the concerned School where he is working as non-teaching staff. Prayers read such:-"(a) Writ in the nature of Mandamus commanding the respondents to set aside and/or quash the Memo being No. 576/CC dated 31.10.2002 issued by the District Inspector of Schools (S.E.), Murshidabad whereby referred the Memo No.533/ WBRSSC/NR/2001/CC-NT-138 dated 30.9.2002 of the Regional School Service Commission, Northern Region and after set aside, and/or quashing the same direct the respondents to consider the case of the petitioner for his absorption to the post of Assistant Teacher in Bengali or in Social Science Group or in any other subject providing additional post, if required in Shekhalipore High School, P.S.- Lalgola, District : Murshidabad forthwith; (b) Writ in the nature of Certiorari commanding the respondents to produce all the relevant records relating to this case before the Honble Court so that conscionable justice may render to the petitioner; (c) Writ in the nature of Prohibition prohibiting the respondents from giving any appointment to any one in the post of Assistant Teacher in Shekhalipore High School, Lalgola, Murshidabad as well as in any other School in the District of Murshidabad without considering the case of the petitioner; (d) Rule NISI in terms of Prayer (a), (b) and (c) above; (e) An interim order of injunction restraining the respondents from giving appointment to any one in the post of Assistant Teacher in the District of Murshidabad till the disposal of this application; (f) Ad-interim order of injunction in terms of Prayer (e) above; (g) To pass such other or further order or orders as to Your Lordship may deem fit and proper." (4) It is the pleading of the writ petitioner that after joining the service as non-teaching staff in the concerned School he acquired the qualification which is the minimum eligibility qualification of any Assistant Teacher of a Secondary School in terms of the Circular letter issued by the Director of School Education, West Bengal dated 20th May, 1993 vide office Memo, issued in exercise of the power conferred upon him under Rule 28 of the Rules of Management of Recognised Non-Government Institution (Aided and Unaided) Rules, 1969, hereinafter for brevity referred to as the Management Rules, 1969. He accrued right in terms of Clause 4(e) of the said direction issued by the Director of School Education, West Bengal to remain as an enlisted candidate in the records as kept by the District Inspector of Schools concerned for forwarding his name as eligible candidate to appear in the interview along with other sponsored candidates of the Employment Exchange in the teaching post of the concerned School. It was the case of the petitioner that his name was enlisted accordingly but his name was not sponsored in the vacancy of teaching post in the concerned School which became vacant some time in the year 2001. Earlier a writ petition, being W. P. No.920(W) of 2001, was moved by the writ petitioner on the said grievance which was disposed of on 20th August, 2001 by Amitava Lala, J., as His Lordship then was, directing the District Inspector of Schools concerned to incorporate his name in the roster irrespective of coming into effect of the School Service Commission Act and further directed that in the event of any vacancy in the particular institution where the writ petitioner is working as non-teaching staff, priority of appointment should be given to the writ petitioner in the same School having regard to the valuable service as rendered by the writ petitioner as non-teaching staff. On the basis of the said order, as nothing has been done, the present application was moved, being W.P. No.17711(W) of 2005, seeking a direction for his absorption in the concerned vacancy of the teaching post. The writ petitioner approached the District Inspector of Schools concerned to implement the judgment of Amitava Lala, J. who, however, answered directing hjm to appear in the examination as to be conducted by the School Service Commission in terms of the School Service Commission Act. This letter is also annexed in the writ application, being the letter dated 31st October, 2002. (5) Mr. This letter is also annexed in the writ application, being the letter dated 31st October, 2002. (5) Mr. Sanyal, learned Advocate, appearing for the appellant submitted before us that since in terms of the recruitment procedure issued by the Director of School Education, West Bengal in exercise of the power of Rule 28 of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided) 1969, being a direction dated 20th May, 1993, had vested a right to the writ petitioner for his appearance in the interview along with the other eligible candidates sponsored from Employment Exchange for the concerned teaching post, he should be given such opportunity by directing the School Service Commission to consider his candidature on condoning his age bar. Mr. Sanyal, learned Advocate, has frankly submitted that after coming into effect of the School Service Commission Act whereby and whereunder the appointment of the teaching post in different Schools are now being centrally controlled by holding examination on advertising the vacancy position of particular region consisting of different districts, any candidate in terms of such advertisement may appear and there is no scope for selection of candidature of the present writ petitioner by the School Committee by constituting the Selection Committee in terms of the earlier Office Memo issued by the Director of School Education, West Bengal, but as a right was subsisting in favour of the non-teaching staff who was duly recognised by the Education Department in a particular School, the writ petitioner should get the benefit of age relaxation for his appearance in any teaching post on the basis of his qualification before the School Service Commission. Having regard to such statement, the following points emerge for our decision :- (1) Whether after coming into effect of the School Service Commission Act, 1997 with effect from 1st November, 1998 and the procedure for selection of persons for appointment to the posts of teachers of a School published in the Calcutta Gazettee Extraordinary dated 15th January, 1998 prescribing procedure for appointment of a candidate in the teaching post by selecting him through School Service Commission, there is any scope for implementation of the order passed by Amitava Lala, J. in the earlier writ application moved by the writ petitioner which is the basis of the present writ application. (2) What is the effect of the present Rule for selection of teachers in terms of the West Bengal Service (Selection of Persons for Appointment to the Teachers) Rules, 2007 wherein scope for consideration of application of non-teaching staff in approved service by extending the age limit to the maximum of 55 years has been provided and the relief, if any, could be granted to the writ petitioner. (6) So far as the point No.(1) is concerned, we have to discuss the history of appointment procedures of teaching staff of a School. The appointment procedure of teaching staff of recognised Non-Government Secondary Schools including Madrasah of secondary type and senior Madrasah was being followed in terms of the direction issued by the Director of School Education, West Bengal in exercise of the power under Rule 28 of the Management Rules, 1969 prior to coming into effect of School Service Commission Act. Earlier the Managing Committee of the School in terms of Rule 28 of the said Management Rules, 1969 got the power to appoint a candidate in the teaching post subject to the direction issued by the Director of School Education, West Bengal or the State Government. Rule 28 of the said Rules got its amendment in view of coming into effect of School Service Commission Act, 1997 wherein the provision of appointment of teaching staff in a particular School which earlier was entrusted to the Managing Committee following the direction issued by the Director of School Education, West Bengal got a change in view of the School Service Commission Act and the procedure for selection of persons for appointment to the posts of teachers in School. State of West Bengal has been divided in different regions and in different regions there are respective regional Service Commission who was entrusted with the duty to prepare the central panel in respect of the vacancies as to be notified by different District Inspector of Schools concerned having respective offices in particular region. As per School Service Commission Act and the said procedure, vacancies are declared by advertisement in the daily Newspapers having wide publication and there is no necessity of any sponsorship of any candidate from Employment Exchange. As per School Service Commission Act and the said procedure, vacancies are declared by advertisement in the daily Newspapers having wide publication and there is no necessity of any sponsorship of any candidate from Employment Exchange. Candidates duly qualified including approved non-teaching staff are eligible to appear in the interview subject to fulfilment of academic qualification and age limit in terms of the procedures for selection of persons for the posts of teachers of the School as framed and constituted by the School Service Commission Act. Office Memo of 1993 issued by the Director of School Education, West Bengal was a procedure limited with reference to appointment of teaching staff of a particular School by the particular Managing Committee of said School following the Constitution of Selection Committee, preparation of panel by them and thereafter approval of the panel by Managing Committee and the District Inspector of Schools concerned. This system was changed and as a result, Rule 28 of the Management Rules, 1969 also was amended by incorporating the word "Managing Committee would be entitled to appoint a candidate in the teaching post whose name would be recommended by the School Service Commission." Since School Service Commission Act came into effect in the year 1997, the Circular letter issued by the Director of School Education, West Bengal in exercise of the power under Rule 28 of the Management Rules, 1969 had no effect which was categorically specified in Section 9 of the School Service Commission Act. Section 9 of the said Act reads such:-"Effect of recommendation of Commission.-(1) 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." (7) Section 9 starts in non-obstante clause that 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 to be made by recommendation of School Service Commission and specific provision made that all appointments in contravention of the provision of the School Service Commission Act would be invalid and would have no effect. Besides such, Rule 28 of the Management Rules, 1969 suffered amendment by incorporation of the word "without recommendation of the School Service Commission, Managing Committee would not be entitled to appoint any candidate." This amendment came into effect from the year 1997. Since Rule 28 of the said Management Rules, 1969 was amended, earlier circular letter issued by the Director of School Education, West Bengal in exercise of the power under Rule 28 at pre-amendment stage became ineffective and as such the Office Memo. of the year 1993 issued by Director of School Education as relied upon, got no effect. Clause 4(e) as has been relied upon in terms of the Office Memo. of the year 1993 issued by the Director of School Education, West Bengal breathed its last since School Service Commission Act came into effect and Rule 28 of the Management Rules, 1969 amended by incorporating the word "Managing Committee would be entitled to appoint a teaching staff only on the basis of the recommendation of the School Service Commission". (8) Having regard to such legal position, we are of the view that there was no effective force in the said recruitment direction issued by the Director of School Education, West Bengal in the year 1993 dated 20th May, 1993. (8) Having regard to such legal position, we are of the view that there was no effective force in the said recruitment direction issued by the Director of School Education, West Bengal in the year 1993 dated 20th May, 1993. Clause 4(e) of the direction issued by the Director of School Education, West Bengal reads such:-"(e) DIS.(SE) shall maintain a roster to record the names of the qualified eligible approved non-teaching staff for appointment to the post of teaching and non-teaching staff and forward the names of 3 eligible candidates for interview along with the candidates sponsored by Employment Exchange." (9) Under Clause 4(a) thereof, only sponsored candidates from the Employment Exchange were eligible to appear for teaching post and as relief was granted to nonteaching staff to appear in the interview along with them irrespective of the fact that they are not sponsored from Employment Exchange, under Clause 4(e) only right was given to the non-teaching staff prior to amendment of Rule 28 of the Management Rules, 1969, to appear in the interview along with the sponsored candidates. Earlier the selection process was confined only with the sponsored candidates of Employment Exchange and that too with reference to the particular vacancy of a particular School which was required to be made by following the panel of candidates prepared by the Selection Committee as was constituted by particular School Managing Committee in terms of the direction issued by the Director of School Education, West Bengal. Clause 4(a) and Clause 4(b) read such:-"4(a) On receipt of the prior permission, the school authorities shall approach the local Employment Exchange for sponsoring the names of the candidates upto Honours Graduate level and National Employment Exchange for post Graduates candidates, according to prior permission within 7 days. (b) Employment Exchange shall mention in the list, the qualification, date of birth, date of registration etc. of the candidates. Names shall be sponsored within 45 days, in case of general candidates and 60 days in case of S.C. and S.T. candidates. If names are not sponsored within the time limit mentioned above, the schoolauthorities shall approach the D.I.S. (SE) for permission for advertisement in State level daily newspaper. No permission of D.I.S. (SE) for advertisement will be necessary in case of receipt of non-availability certificate from the Employment Exchange. If names are not sponsored within the time limit mentioned above, the schoolauthorities shall approach the D.I.S. (SE) for permission for advertisement in State level daily newspaper. No permission of D.I.S. (SE) for advertisement will be necessary in case of receipt of non-availability certificate from the Employment Exchange. In the advertisement, name and full address of the institution shall be mentioned irrespective of whether the vacancy is permanent or temporary." (10) The writ petitioners right by application of aforesaid provision of Directors Guideline never was a right of absorption as has been submitted in the pleading of the writ application. The writ petitioner simply got a right earlier for his appearance in the interview along with other sponsored candidates for selection in a teaching post in the School and the right as recognised under the said Clause 4(e) of the said direction, a right for appearance in the interview along with other candidates, has not been disturbed even after coming into effect of the School Service Commission Act and the procedure for selection of teaching post under the said Act for the reason that under the provision of the School Service Commission Act and the procedure thereof for selection of the teaching post, a candidate need not to be a sponsored candidate from the Employment Exchange to consider his candidature for the said post, but a candidate in terms of the advertisement, irrespective of the Employment Exchange registration, may appear subject to fulfilment of his academic qualification for the post in question. Hence, at the present moment, in view of the School Service Commission Act and its procedure, there is no necessity to refer any particular non-teaching staff for consideration of his candidature in a teaching post as in terms of open advertisement, as is done by the School Service Commission, a non-teaching staff duly qualified for a teaching post is legally entitled to appear in the interview subject to fulfilment of his academic qualification, age limit, written test as prescribed. Hence, we are of the view that the writ petitioner has no legal right to file the writ application seeking any absorption in the manner as prayed for. Point No.(1) is answered accordingly. (11) So far as the point No.(2) is concerned about relief, we have to consider the issue in the angle of present rule. Hence, we are of the view that the writ petitioner has no legal right to file the writ application seeking any absorption in the manner as prayed for. Point No.(1) is answered accordingly. (11) So far as the point No.(2) is concerned about relief, we have to consider the issue in the angle of present rule. It appears that at the present moment The West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2007 is existing in the field by which maximum age of 55 years for appointment to the post of teacher who are holding the approved non-teaching post of a School or Madrasah has been prescribed. Rule 4 of the said Rules provides as follows:-"4. Names of post, qualification and age. -(1) The name of the post, and its qualification shall, subject to Rule 5, be such as specified respectively in Columns (2) and (3) of Schedule I : Provided that a person having the desirable qualification mentioned in Column (2) against the posts mentioned in SI. Nos. 4, 5 and 6 of Column (1) of Schedule-l shall, if qualified in written examination, get preference over the candidate, who has qualified in written examination but has no desirable qualification. (2) The age-limit for the post referred to in Column (2) shall be such as specified in Column (4) of Schedule I. Provided that the person who is already in service on the approved post of Teacher or non-teaching staff of any School or Madrasah may apply for the post of Assistant Teacher with maximum age of 55 years as on 1st January of the year of advertisement." (12) Admittedly the writ petitioner has not crossed the age of 55 years as the writ petitioner was aged 27 years on 7th September, 2005. Having regard to the said change of statutory provision by extending the maximum age limit from 37 years to 55 years, we are of the view that the writ petitioner would be entitled to avail opportunities in terms of the statutory provision as prescribed. Considering all aspect of the matter, we are not finding any merit in the writ application. The writ application accordingly stands dismissed with the findings and observation above and we are not interfering with the impugned judgment under appeal for the reasons as advanced by us. The appeal, accordingly, stands dismissed.