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High Court Of Calcutta
Altamas Kabir
SALAUDDIN MIAH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 1461 Of 2000
Decided On : 07/20/2000
WEST BENGAL SCHOOL SERVICE COMMISSION ACT, 1997 - SECTION 6(2) - WEST BENGAL SCHEDULED CASTES AND SCHEDULED TRIBES (RESERVATION OF VACANCIES IN SERVICES AND POSTS) ACT, 1976 - SECTION 6(2) - DERESERVATION OF POST - SELECTION PROCESS - APPLICABILITY OF RULES - INTERPRETATION.
Fact of the Case:
The petitioner, a Madrasah, sought to fill a reserved post for an Assistant Teacher in Advanced Arabic. Despite advertising the position and seeking candidates from Employment Exchanges, no suitable candidates were found. The District Inspector of Schools (S.E.) granted prior permission to fill the post through the Employment Exchange from a Scheduled Caste candidate, as per the 100 point roster. However, the Employment Exchanges were unable to sponsor any candidates with the required qualification (Mumtazul Majahethin). The Madrasah then published an advertisement inviting applications from Scheduled Caste candidates, but received no response. The Madrasah applied to the District Inspector of Schools for dereservation of the post, but the request was denied due to the coming into effect of the West Bengal School Service Commission Act, 1997 (1997 Act), which mandated all teacher appointments in Secondary institutions to be made on the recommendation of the School Service Commission.
Finding of the Court:
The Court held that the selection process for the post had commenced prior to the coming into effect of the 1997 Act, and therefore, the recruitment rules as existing at the time of the commencement of the selection process would continue to govern the process. The Court noted that the vacancy had occurred in 1994, prior permission to fill the vacancy was granted in 1997, and the Employment Exchange was notified of the vacancy in the same year. The Court also observed that all the steps taken by the Madrasah to fill the vacancy, including advertising and seeking candidates from Employment Exchanges, were completed before the 1997 Act came into force.
Issues: 1. Whether the selection process for the post of Assistant Teacher in Advanced Arabic was governed by the recruitment rules existing at the time of the commencement of the selection process or by the provisions of the West Bengal School Service Commission Act, 1997? 2. Whether the Madrasah was entitled to apply for dereservation of the post under section 6(2) of the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976?
Ratio Decidendi: 1. The Court held that the selection process for the post had commenced prior to the coming into effect of the 1997 Act, and therefore, the recruitment rules as existing at the time of the commencement of the selection process would continue to govern the process. The Court relied on the principles established in several Supreme Court judgments, including Y. V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors. and P. Mahendran and Ors. v. State of Karnataka and Ors., which held that once a selection process has commenced, it must be concluded in terms of the law and rules as existing at the time of the commencement of the selection process, notwithstanding any subsequent amendments or changes to the rules. 2. The Court held that the Madrasah was entitled to apply for dereservation of the post under section 6(2) of the 1976 Act. The Court noted that the Madrasah had made all reasonable efforts to fill the post from among Scheduled Caste candidates, but no suitable candidates were available. The Court also observed that the Madrasah had applied to the District Inspector of Schools for dereservation of the post, but the request was denied due to the coming into effect of the 1997 Act. The Court held that the provisions of section 6(2) of the 1976 Act were still applicable in this case, as the selection process had commenced prior to the coming into effect of the 1997 Act.
Final Decision: The Court directed the Madrasah to apply to the State Government in its Backward Classes Welfare Department for dereservation of the post, in keeping with the provisions of section 6(2) of the 1976 Act. The Court also directed the State Government to take a pragmatic view in considering the matter and to dispose of the application within one month from the date of receipt. If the prayer of the Madrasah is allowed and the post is dereserved, the Madrasah will then be entitled to apply to the District Inspector of Schools (S.E.) Dakshin Dinajpur, who shall take appropriate steps to ensure that the post is filled up expeditiously.
( 1 ) THE Court : The writ petitioner is the Secretary of Abeshkuri High Madrasah situated at Gangarampur in the district of Dakshin Dinajpur. It appears that on the death of the Assistant Teacher in the Advanced Arabic group on 3rd February, 1994, the said post became vacant and the authorities of the Madrasah applied to the District Inspector of Schools (S. E.), Dakshin Dinajpur, for prior permission to fill up the said post. Such permission was granted by the District Inspector of Schools (S. E.), Dakshin Dinajpur, by his Memo dated 28th April, 1997, with a direction upon the school authorities to fill up the post through the Employment Exchange from a Scheduled Caste candidate, as the vacancy was required to be filed up by a Scheduled Caste candidate as per the 100 point roster. The requisite qualification that a candidate was required to have, as indicated in the prior permission given by the District Inspector of Schools, was Mumtazul Majahethin, M. M. for short, which deals with Islamic Theology.
( 2 ) PURSUANT to the permission given by the District Inspector of Schools, the authorities of the Madrasah applied to the Employment Exchange for sponsoring the names of Scheduled Caste candidates with M. M. qualification for filing up the post, but the local Employment Exchange was unable to sponsor a single name and forwarded the application of the Madrasah to the Special Employment Exchange for Scheduled Castes and Scheduled Tribes, Purta Bhaban, Salt Lake City, for sending the names of eligible candidates to the Madrasah. By its Memo dated 21st June, 1997, the Employment officer, Special Employment Exchange for S. C. /s. T. informed the local Employment Exchange and the Secretary of the Madrasah of his inability to sponsor the names of eligible candidates owing to non-availability of Scheduled Caste candidates having M. M. qualification.
( 3 ) THEREAFTER, the authorities of the Madrasah published an advertisement in the Bengali daily "aajkal" on 16th September, 1997, inviting applications from Scheduled Caste candidates, having M. M. qualification, for filling up the post. No response was, however, received to such advertisement.
( 4 ) THE Managing Committee of the Madrasah thereupon adopted a resolution on 7th October, 1997, requesting the Secretary and Headmaster to apply to the District Inspector of Schools for dereservation of the post and to convert the same from a reserved post to a post to be filled up from general candidates as the students were suffering from 1994 and there was no likelihood of getting a Scheduled Caste candidate, having M. M. qualification, to fill the post.
( 5 ) IN the meantime, considering the need of the students the authorities of the Madrasah appointed one Abdul Wahed, the respondent No. 8 herein, who had the requisite M. M. qualification, as Arabic teacher on a part-time casual basis. According to the writ petitioner the said Abdul Wahed is taking regular Arabic Classes in the Madrasah since his appointment on 27th March, 1996.
( 6 ) ON 18th November, 1998, the writ petitioner applied to the District Inspector of Schools (S. E.), Dakshin Dinajpur, to dereserve the post in the interest of the students of the Madrasah, but it is the petioner's grievance that the said application has not been considered by the District Inspector of Schools on the ground that the West Bengal School Service Commission Act, 1997, had come into effect from 1st November, 1997, and all appointments of teachers in Secondary institutions were required to be made on the recommendation of the School Service Commission after the said date.
( 7 ) APPEARING in support of the writ petition, Mr. Kamalesh Bhattacharya submitted that the stand taken by the District Inspector of Schools was not justified since the selection process had commenced long before the West Bengal School Service Commission Act, 1997, hereinafter referred to as the "1997 Act", came into force. It was urged that when the Madrasa
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