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2009 DIGILAW 682 (CAL)

School Service Commission v. Prabir Kumar Ghosh

2009-08-31

INDIRA BANERJEE, S.S.NIJJAR

body2009
Judgment : BANERJEE, J (1) This appeal is against a judgment and order dated 29th September, 2003, whereby the learned Single Judge inter alia allowe the writ petition being W. P. No. 17229 (W) of 2001 (Prabir Kr. Ghosh Ors. v. State of West Bengal and Ors) and directed the West Bengal Regional School Service Commission to recommend those of the writ petitioners who had ranked within 66th in the panel for appointment to appropriate schools and further directed the Regional School Service Commission not to advertise vacancies for the posts for which the writ petitioners had been selected, without recommending the writ petitioner for appointment. (2) Before 1st November, 1997, the Managing Committee of a recognized aided non-government school was, in terms of Rule 28 of the Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969, framed in exercise of powers conferred by Section 45(1) and 45(2)(d) of the West Bengal Board of Secondary Education Act, 1963, entitled to appoint teachers, subject to any order or directions or guidelines of the State Government or the Director of School Education, in force for the time being. (3) The West Bengal School Service Commission Act, 1997 came into force with effect from 1st November, 1997. Some of the relevant provisions of the said Act are set out here in below: - "8. Manner and scope of selection of persons and procedure for conduct of business of Commission. - (1) The manner and scope of selection of persons for appointment to the Posts of Teachers shall be such as may be prescribed. (2) The procedure for the conduct of business of the Commission shall be such as may be provided for by regulations. 9. 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 Teachers so appointed shall not be a Teacher within the meaning of clause (p) of Section 2. 10. Protection of Teachers. -Notwithstanding anything contained elsewhere in this Act, the terms and conditions of service of Teachers in the employment of a school immediately before the commencement of this Act shall not be varied to the disadvantage of such Teachers in so far as such terms and conditions relate to the appointment of such Teachers to the posts held by them immediately before the commencement of this Act. 16. Functions of Central Commission. -(1) The Central Commission shall monitor, supervise, control and co-ordinate the activities of the Regional Commission which shall be subordinate to the Central Commission. (2) The Central Commission may call for any record, report or other information from a Regional Commission if, in the opinion of the Central Commission, such record, report or other information is necessary for efficient discharge of its functions, and the Regional Commission shall furnish such record, report or other information to the Central Commission. (3) It shall be the duty of the Central Commission to advise the State Government on such matters as may be referred to it by the State Government. 18. Power to make Regulations. -(1) The Central Commission may, with the previous approval of the State Government, make regulations, not inconsistent with the provisions of this Act or the rules made thereunder, for discharging the functions of the Commission under this Act. 18. Power to make Regulations. -(1) The Central Commission may, with the previous approval of the State Government, make regulations, not inconsistent with the provisions of this Act or the rules made thereunder, for discharging the functions of the Commission under this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters: (a) The terms and conditions of service of the employees of the Commission under Clause (b) of sub-section (3) of Section 6; (b) The procedure for the conduct of business of the Commission under sub-section (2) of Section 8." (4) Section 9 of the West Bengal School Service Commission Act, 1997 provides that notwithstanding anything contained in any other law for the time being in force or in any contract, custom or usage to the contrary, appointment to the posts of teachers in a school would have to be made on the recommendation of the Regional Commission having jurisdiction and any appointment made on or after commencement of the West Bengal School Service Commission Act, 1997 in contravention of the provisions of the Act would be invalid and have no effect. (5) With the enforcement of the West Bengal School Service Commission Act, 1997 on 1st November, 1997, a Central Commission and 4 Regional Commissions were constituted. By amendment of the said Act in 1998, the fifth Regional Commission was constituted. (6) In exercise of power conferred by Section 17 of the said Act, the State Government made the West Bengal School Service Commission Rules, 1997 on 1st November, 1997. Sub-rules (2) and (3) of Rule 7 of the said Rules are as follows: - "7(2) Every school shall report the vacancies as on the date of report and will arise upto the second day of next January to the Regional Commission with a copy to the District Inspector of Schools (Secondary Education) who shall scrutinize the same and forward it to the Regional Commission with or without modifications, as may by necessary, within a month of receipt thereof. In case of delay in receipt of the recommendation of the District Inspector of Schools (Secondary Education), the Commission may take final decision on the basis of the guidelines of the Government without consulting the requisition of the school or the recommendations of the District Inspector of Schools. In case of delay in receipt of the recommendation of the District Inspector of Schools (Secondary Education), the Commission may take final decision on the basis of the guidelines of the Government without consulting the requisition of the school or the recommendations of the District Inspector of Schools. (3) In reporting the vacancies as aforesaid, the school shall follow the 100-point roster as prescribed for direct recruitment by the Department of Scheduled Castes and Tribes Welfare of the State Government and shall indicate the position of each vacancy in the said 100-point roster." (7) On 16th June, 1998, the West Bengal Regional School Service Commission, with approval of the State Government, framed the West Bengal School Service Commission (Procedure for Selection of Persons for Appointment to the Posts of Teachers including Head Teachers, Headmistresses, Superintendents of Madrasahs in Recognised Non-Government Aided Schools and Procedure for Conduct of Business of the Commission) Regulations, 1998. Some of the relevant regulations are extracted here in below: - "3. Information Regarding Vacancies -Each Regional Commission having jurisdiction shall, on the 1st January of each year or as soon as may be thereafter, receive or obtain from Schools, or from the District Inspectors of Schools (Secondary Education) the number of vacancies in approved posts which are then available or are expected to be available for appointment upto the second day of next January and thereafter. In case, such requisition is not available, the vacancy position may be obtained from the Director of School Education, West Bengal, or from the Central Commission. 4. Advertisement in Newspapers. -The Central Commission shall, on receipt of the information about such vacancies either from the Regional Commission or from the Director of School Education for the purpose of selecting persons for appointment to the posts of teachers, advertise vacancies in such posts in leading newspapers of the State, in English and Bengali and in any other languages, if necessary, specifying the qualifications, age as on the 1st January of the year of advertisement, scale of pay (if possible), and other necessary information relating to such posts. (2) The qualifications, age and any other requirements, for selection to the posts of teachers shall be such as may be prescribed by the State Government. (7) Selection of Candidates. (2) The qualifications, age and any other requirements, for selection to the posts of teachers shall be such as may be prescribed by the State Government. (7) Selection of Candidates. - (1)(a) The Secretary of the concerned Regional Commission shall arrange for proper custody, after scrutiny by the Central Commission or by the concerned Regional Commission, as the case may be, of all applications for selection of persons in terms of Section 7 of the Act. Each Regional Commission shall prepare a list of eligible candidates. The Regional Commission shall conduct, under the supervision of the Central Commission, written examinations of all eligible candidates. Such written examinations may consist of one or more papers, as may be decided by the Central Commission. The contents of each papers, total marks, qualifying marks, duration of examination and other ancillary matters may be decided by the Central Commission. (b) The procedure for, and the manner of, conducting the examination by the respective Regional Commission shall be decided by the Central Commission which shall issue separate detailed instructions in this regard. (c) On the basis of the results of such written examination and academic scoring each Regional Commission shall call for the interview of the candidates, not exceeding two and a half times the number of vacancies, depending on the number of successful candidates in the examination. (8) Preparation of Panel for Candidates. -(1) On the basis of the results of the written examination, academic scoring and personality test, all added together, each Regional Commission shall, for each subject, prepare final merit list, that is to say, a panel of candidates found fit for appointment, strictly in order of merit. Each such panel shall include names one and half times the number of the vacancies referred to in regulation. 3. There may be different/separate/subject-wise/language -wise/sex-wise/category-wise sets of panels as may be necessary, based on academic qualifications, for the Higher Secondary, Secondary, and Madrasah as may be decided by the Central Commission. (2) Each panel prepared shall remain valid for one year from the date of approval of the panel by the Regional Commission for the posts which have already been reported and which will within the period of validity of such panel arise and shall be reported. (2) Each panel prepared shall remain valid for one year from the date of approval of the panel by the Regional Commission for the posts which have already been reported and which will within the period of validity of such panel arise and shall be reported. If the Central Commission thinks it expedient to extend the validity of the panel beyond its normal period for any reasonable cause, the validity of any such panel shall be extended for a further period of one year for the posts which exists or will arise and shall be reported within such extended period of one year but such panel, in any event, shall not remain valid for more than two years." (8) Under Rule 7(2) of the Rules, every school is required to report vacancies available on the date of the report as well as vacancies which might arise up to 2nd January of the following year. For example, if on 31st October, 2000, a school were reporting existing vacancies, it would be obliged to report whether any vacancy was likely to arise within 2nd January, 2001, irrespective of whether prior permission to fill up the vacancy had been received or not. Regulation 3 of the Regulations casts an obligation on the Regional School Service Commission to obtain the vacancy position. (9) All vacancies are required to be brought to the notice of the Regional Commission as per law. The vacancies are required to be reported so that in proportion to the vacancies, appropriate number of candidates might be called for the interview and appropriate number of candidates might be empanelled. (10) In 1990, the West Bengal Central School Service Commission published advertisements inviting applications for the post of Assistant Teachers in different subjects including Political Science in Recognized Non-Government Aided Schools and Madrasahs in West Bengal. (11) The West Bengal School Service Commission did not specify the number of vacancies in the advertisement inviting applications. The West Bengal School Service Commission has, however, asserted that the Commission was not obliged in law to declare the total number of vacancies. (12) Pursuant to the aforesaid advertisements, the writ petitioner-respondent Nos.1 to 10, hereinafter collectively referred to as the writ petitioner-respondents, applied for posts of Assistant Teachers of Political Science. The writ petitioners were required to appear for a written examination held on 27th February, 2000. (12) Pursuant to the aforesaid advertisements, the writ petitioner-respondent Nos.1 to 10, hereinafter collectively referred to as the writ petitioner-respondents, applied for posts of Assistant Teachers of Political Science. The writ petitioners were required to appear for a written examination held on 27th February, 2000. The petitioners were successful in the written examination and were thereafter called for an interview. The interviews were held from 12th to 14th September, 2000. (13) On 25th October, 2000, a panel of successful candidates was published. The said panel contained roll numbers of male and female candidates of both the reserved and unreserved categories. The writ petitioner-respondents have stated that the total number of male candidates was 168 and the total number of female candidates 26. (14) The writ petitioner-respondents contend that the very fact that 194 candidates were empanelled shows that there were about 130 available vacancies. As per the Rules and Regulations, the number of candidates empanelled in the list of selected candidates is 1 times the number of available vacancies. The list is commonly referred to as the merit list. (15) The validity of the panel which was published on 25th October, 2000, as aforesaid, expired on 24th October, 2001. It was after the expiry of the panel that the writ petitioner-respondents filed the writ application being W. P. No. 17229 (W) of 2001 in this Court, claiming that the writ petitioner-respondent had ranked within the first seventy two male general category candidates and, therefore, entitled to be recommended for appointment. (16) Several affidavits were filed before the learned Single Judge. In an affidavit filed on behalf of the West Bengal School Service Commission, it is stated that upon receipt of information about the number of vacancies in approved posts of teachers that are already available as on 1st January of each year or are expected to be available up to the 2nd day of January of the following year, posts are advertised in leading Newspapers. Since the District Inspectors did not make the exact vacancy position available, advertisements had to be issued without getting the exact vacancy position. (17) It has also been stated that candidates successful in the written examination not exceeding 2.5 times the number of vacancies are called for interview and thereafter, a panel of selected candidates is prepared. The number of candidates in the panel is 1.5 times the number of vacancies. (17) It has also been stated that candidates successful in the written examination not exceeding 2.5 times the number of vacancies are called for interview and thereafter, a panel of selected candidates is prepared. The number of candidates in the panel is 1.5 times the number of vacancies. (18) By the judgment and order under appeal, the learned Single Judge observed that the Commission knew that the number of candidates called for the interview was not to exceed 2.5 times the available vacancies and the final merit list and/or panel was to consist of candidates numbering 1.5 times the number of vacancies. If 109 general candidates had been empanelled, there had to be 66 vacancies. (19) The learned Single Judge found that all the writ petitioners who had been listed within the first 66 had acquired the right to be recommended for the posts for which they had offered themselves as candidates. The right ought not to be denied by the Commission. (20) The learned Single Judge observed that when 109 candidates had been empanelled a clear representation was made that there existed 66 vacancies. The candidates who ranked within 66th in the panel were sure of getting a recommendation and they could not thus be denied of appointment. (21) Rejecting the contention of the appellants, that no writ petition could be moved after expiry of the panel, the learned Single Judge-observed, and rightly that the petitioners could only have known that the petitioners would not be recommended, after expiry of the period of validity of the panel. The petitioners or at least some of them could even have been recommended on the last day. A writ could thus be filed upon expiry of the panel. (22) Mr. Bikash Ranjan Bhattacharya appearing with Mr. P. S. Bhattacharya submitted that there were only 43 vacancies for male candidates of the general category. (23) Mr. Bhattacharya further submitted that for 43 vacancies, 65 candidates in order of merit ought to have been empanelled. However, the computer agency, which had been entrusted with the job of preparing the panel on the basis of the total scores of candidates, taking into account the number of vacancies, made a mistake and prepared a panel of 109 instead of 65 male candidates. (24) To substantiate the case of the appellants of error in the preparation of the panel, Mr. (24) To substantiate the case of the appellants of error in the preparation of the panel, Mr. Bhattacharya pointed out that all 109 candidates who were issued call letters for the interview were included in the merit list. However, by multiplying 43 with 2.5, the figure would be 107.5, rounded off to 108 and not 109. The writ petitioner respondents contend that about 113/114 candidates had been called for the interview, and not just 109 as submitted by Mr. Bhattacharya. (25) Mr. Bhattacharya argued that the Commission was obliged to advertise vacancies. It is, however, not necessary for the Commission to disclose the exact number of vacancies. Mr. Bhattacharya, however, agreed that the number of candidates called for interview was not to exceed 2.5 times the number of vacancies and the number of candidates empanelled in the merit list was to be 1.5 times the number of vacancies. (26) Mr. Bhattacharya submitted that the Commission made a mistake in not verifying the merit list before publication of the panel on 25th October, 2000. Upon detection of the error in publication of the panel, a revised panel of 65 names, on the basis of the marks secured, was prepared and published. Six of the 10 writ petitioners were empanelled in the revised panel. (27) Mr. Bhattacharya urged three main grounds in support of the appeal. First of all, he submitted that the writ petition was moved after validity of the panel had expired. After expiry of the panel, the writ petitioner-respondents had no subsisting right to be recommended for appointment. (28) Mr. Bhattacharya submitted that the West Bengal School Service Commission/Regional School Service Commission was entitled to rectify its mistake of empanelling excess candidates and revise the panel. There was no illegality and/or irregularity in doing so. (29) Mr. Bhattacharya emphatically argued that in any case, an empanelled candidate had no legal right to claim appointment. A panel could even be cancelled. The authorities were entitled not to fill up all the declared vacancies. (30) In support of his submissions, Mr. Bhattacharya cited the following judgments: - (1) Anil Kr. Biswas and Ors. v. State of West Bengal and Ors., reported in 1985 (1) CLJ 156 . (2) Surinder Singh and Ors. v. State of Punjab and Anr., reported in 1997 (8) SCC 488 . (3) Vinodan T. and Ors. (30) In support of his submissions, Mr. Bhattacharya cited the following judgments: - (1) Anil Kr. Biswas and Ors. v. State of West Bengal and Ors., reported in 1985 (1) CLJ 156 . (2) Surinder Singh and Ors. v. State of Punjab and Anr., reported in 1997 (8) SCC 488 . (3) Vinodan T. and Ors. v. University of Calicut and Ors., reported in AIR 2002 SC 1885 . (4) State of Bihar and Ors. v. Md. Kalimuddin and Ors., reported in 1996 (2) SCC 7 . (5) State of U.P. and Ors. v. Harish Chandra and Ors., reported in 1996 (9) SCC 309 . (31) Mr. Jayanta Mitra appearing on behalf of the respondent-writ petitioners argued that the very fact that a merit list of 109 male candidates of the general category was published shows that the total number of vacancies in that category in Political Science was 72. Admittedly, the number of candidates empanelled in the final merit list is 1 times the number of available vacancies. (32) Mr. Mitra submitted that 72 candidates were entitled to be recommended as per their merit position in the list. The learned Single Judge directed the appellants to recommend the names of candidates who had ranked up to 66th with a view to confine relief to the writ petitioners. The last of the writ petitioners had ranked 66th in order of merit. (33) Mr. Mitra next submitted that the fact that the appellants issued fresh advertisements inviting applications for the Post of Teachers of Political Science, during the period of validity of the panel shows that vacancies were in existence. Candidates should, therefore, have been recommended for those vacancies from the merit list. (34) Mr. Mitra submitted that the appellants had failed to establish the story of technical error on the part of the agency entrusted with computation of data. On the other hand, the appellants had all along relied upon the combined panel. (35) Mr. Mitra next submitted that the respondents had not explained how one Ashok Kr. Saha, whose Roll No. 21200872 and who had ranked 50th in the final merit list, could have been recommended when he ranked below the writ petitioner-respondents. This in itself would show that the total number of vacancies was even more than 72, as otherwise, a person whose name had appeared at Serial No. 81 could not have been recommended under any circumstances. This in itself would show that the total number of vacancies was even more than 72, as otherwise, a person whose name had appeared at Serial No. 81 could not have been recommended under any circumstances. The submission is, however, conjectural. No case of discrimination in the matter of recommending names has been made out in the writ petition. The learned Single Judge has also not arrived at any finding of discrimination. (36) Mr. Mitra referred to the various provisions of the West Bengal School Service Commission Act and the Rules and Regulations framed thereunder and submitted that the Regional School Service Commission was obliged to ascertain the total number of vacancies available or expected to be available up to the 2nd day of January of the following year. (37) Mr. Mitra submitted that the learned Single Judge painstakingly went through the relevant records, affidavits and arrived at the conclusion that 113/114 candidates were interviewed and 109 were empanelled. (38) Mr. Mitra pointed out that the appellants had fabricated an untrue story of mistake in order to cover up their own laches and/or negligence. Mr. Mitra drew the attention of this Court to Memo dated 24th July, 2000 of the Director of School Education, specifically stating that the vacancies likely to occur due to setting up of Junior Schools, upgradation of Junior High Schools to High Schools and High Schools to Higher Secondary Schools was 42. (39) Mr. Mitra also pointed out that the appellants had not notified the cancellation of the panel prepared on 25th October, 2000 or the publication of a new panel. (40) On perusal of the various affidavits filed in these proceedings, it is patently clear that the Regional School Service Commission proceeded to hold the written test, called candidates for interview and prepared a final merit list without declaring the total number of vacancies. (41) Even assuming, as argued by Mr. Bhattacharya, that there was no obligation to declare the number of vacancies, it was still necessary to ascertain the number of vacancies for proceeding with selection of candidates. (42) There may also be substance in the submission that there were more vacancies actually available. The letter dated 24th July, 2000 of the Director of School Education itself shows that there were 42 additional vacancies by reason of sanctioning of new posts consequential to recognition, upgradation, creation of new posts and the like. (42) There may also be substance in the submission that there were more vacancies actually available. The letter dated 24th July, 2000 of the Director of School Education itself shows that there were 42 additional vacancies by reason of sanctioning of new posts consequential to recognition, upgradation, creation of new posts and the like. These vacancies were necessarily in addition to normal vacancies in existing posts, caused by reason of retirement, resignation, death and the like. (43) There can be no doubt that the High Court cannot pass such an order which would in effect tantamount to extension of the validity of the panel. As held in the State of Bihar and Ors. v. Md. Kalimuddin (supra) the Supreme Court held that where validity of the select list had expired, the High Court could not pass such order as would amount to continuance of the list unless the constitutionality of the rule itself was in question. A judgment is, however, a precedent for what is actually decided. The judgment of the Supreme Court, cited by Mr. Bhattacharya, is not to be construed as an authority for the proposition that a writ application could never be filed after expiry of the period of validity of a panel. (44) The main question is whether the writ petitioners as empanelled candidates had any legal right to claim appointment. It is now a well-established proposition of law that an empanelled candidate can, at best, have a right to be considered for appointment, as per his/her turn in the panel. (45) It may, therefore, not be open to the Regional School Service Commission to recommend candidates as per their whims and fancies irrespective of their merit position. For example, the School Service Commission certainly cannot recommend the name of the candidate who ranked 50th, in preference to a candidate of the same category who ranked 49th. (46) The authorities, however, may or may not fill up vacancies. It would perhaps also not be out of place to mention that the writ petitioner-respondents have built up their entire case on the flaws in the case of the respondents. The writ petitioner-respondents have not been able to demonstrate and/or pin point vacancies that were in existence or arose within the period of the validity of the panel but were not filled up. (47) In Vinodan T. and Ors. v. University of Calicut (supra) cited by Mr. The writ petitioner-respondents have not been able to demonstrate and/or pin point vacancies that were in existence or arose within the period of the validity of the panel but were not filled up. (47) In Vinodan T. and Ors. v. University of Calicut (supra) cited by Mr. Bhattacharya the Supreme Court held as follows: -"The principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post is well established by judicial precedent. Even if vacancies exist, it is open to the concerned authority to decide how many appointments should be made. However the selected candidates have a right to compel such authority (i) not to make appointments by travelling outside the list and (ii) to make the selection for appointment strictly in the order the candidates have been placed in the list. This Court has placed two further restrictions on the exercise of power by the appointing authority, namely that the appointments to the vacancies must be made in accordance with the Rules, if any, relating to reservations and also that the appointing authority cannot scrap the panel of selected candidates during the period of its validity, except for well founded reasons." (48) In Surinder Singh and Ors. v. State of Punjab (supra) the Supreme Court held that excess appointments over and above the vacancies advertised was not normally permissible. (49) As held by a Division Bench of this Court in Anil Kr. Biswas and Ors. v. State of West Bengal (supra) cited by Mr. Bhattacharya, an authority making a mistake is entitled to rectify its mistake. (50) In Gujarat State Dy. Executive Engineers Association v. State of Gujarat, reported in 1994 Suppl. (2) SCC 591 the Supreme Court held as follows: - 9."A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that, if any, of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency, the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed, does not appear to be sound." (51) In the instant case too, the vacancies had not properly been worked out. The entire case of the writ petitioner-respondents is based on assumptions, having regard to the loopholes in the case made out by the appellants. The learned Single Judge has also not been able to arrive at a firm finding that vacancies existed. The direction to recommend the writ petitioner-respondents for appointment was not restricted to the vacancies in existence on the date of advertisement or vacancies that had arisen within 2nd January, 2001. In view of the proposition laid down in the judgment of the Supreme Court in Vinodan T. and Ors. v. University of Calicut (supra) the judgment and order under appeal cannot be sustained. (52) It is true that the manner in which the School Service Commission has proceeded cannot be supported. At the same time, the writ petitioner-respondents do not have any right to claim recommendation or appointment by virtue of their selection and empanelment. The learned Single Judge, in our view, erred in allowing the writ petition and directing the appellants to recommend all the writ petitioner-respondents for appointment. The appeal is thus allowed and the judgment and order under appeal is set aside.