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High Court Of Calcutta
A. K. MATHUR, GIRISH CHANDRA GUPTA
SNEHANSU JAS - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 449 Of 2000
Decided On : 04/25/2001
SCHOOL SERVICE COMMISSION ACT - APPOINTMENT OF TEACHERS - PROCEDURE - ACT OF 1997 - APPLICABILITY - VACANCIES PRIOR TO ACT - FILLING UP - RULES OF 1969 OR ACT OF 1997 - SELECTION PROCESS - COMMENCEMENT.
Fact of the Case:
A vacancy for the post of Headmaster arose in Govind Nagar Muslim High School. The school authorities sought prior permission from the District Inspector of School (DIS) for filling the post, which was granted but qualified that the post shall be reserved for Schedule Caste as per roster vacancy. The school authorities could not recruit the Head Master due to non-availability of the candidate. Therefore they sought for de-reservation of the post on 10th October, 1993 but the DIS again asked them to fill the vacancy as per the roster vacancy by his letter dated 26th July,1994. The Managing Committee then filed a writ petition which was disposed of with a direction upon the Secretary, Education Department to treat the writ petition as the representation and to dispose of the same in accordance with law. The Secretary, Education Department held that since it is a single post it cannot be reserved and it was also observed that since the School Services Commission Act, 1997 (hereinafter referred to as the Act of 1997) has come into force, therefore, the post has to be filled up in accordance with the procedure prescribed under the Act of 1997 and directed the DIS to release the prior permission. Aggrieved against this order the present writ petition has been filed.
Finding of the Court:
The Court held that the selection process for filling up the vacancy of Headmaster in Govind Nagar Muslim High School, which arose prior to the coming into force of the School Services Commission Act, 1997, shall be governed by the Act of 1997 and not by the Management Rules of 1969, as the selection process had not commenced prior to the coming into force of the Act of 1997. The Court observed that the mere existence of a vacancy prior to the coming into force of the Act of 1997, which is being sought to be filled up after 1997, can only be filled up under the Act of 1997 and not under the procedure prescribed under the Management Rules of 1969. The Court further held that the Managing Committee had no vested right to make the selection and appointment of the Headmaster, as the power to make such selection and appointment was taken away by the Act of 1997 and given to the School Service Commission.
Issues: Whether the vacancy of Headmaster in Govind Nagar Muslim High School, which arose prior to the coming into force of the School Services Commission Act, 1997, shall be filled up in accordance with the Management Rules of 1969 or the Act of 1997.
Ratio Decidendi: The Court relied on the following principles in reaching its decision: * The selection process for filling up a vacancy commences only when the candidates are invited to appear on the basis of names sent by the Employment Exchange on requisition by the Managing Committee for recruitment of the teachers. * If the selection process has not commenced prior to the amendment of the rules or the enactment of a new Act, then the selection process shall be governed by the amended rules or the new Act, unless the Acts or Rules have been amended with a retrospective effect. * The Managing Committee has no vested right to make the selection and appointment of teachers, as this power can be taken away by an Act of the Legislature and given to another body or authority.
Final Decision: The Court answered the reference made by the learned single Judge and held that the selection process for filling up the vacancy of Headmaster in Govind Nagar Muslim High School, which arose prior to the coming into force of the School Services Commission Act, 1997, shall be governed by the Act of 1997 and not by the Management Rules of 1969, as the selection process had not commenced prior to the coming into force of the Act of 1997.
( 1 ) THIS is a reference made by the learned single Judge, on account of conflicting judgment of this Court, to a Division Bench for resolving the conflict. For convenient disposal of this reference few necessary facts may be noticed. That a vacancy to the post of Headmaster arose in Govind Nagar Muslim High School and the school authorities sought prior permission from the District Inspector of School (DIS) for filling the post. The DIS granted permission but it was qualified that the post shall be reserved for Schedule Caste as per roster vacancy vide his memo No. 630s dated 1. 10. 1992. The school authorities could not recruit the Head Master due to non-availability of the candidate. Therefore they sought for de-reservation of the post on 10th October, 1993 but the DIS again asked them to fill the vacancy as per the roster vacancy by his letter dated 26th July,1994. The Managing Committee then filed a writ petition being W. P. No. 237 (W) of 2000 (SK. Manataj Ali and Anr. v. State of West Bengal and Ors.) which was disposed of by an order dated 25th April, 2000 with a direction upon the Secretary, Education Department to treat the writ petition as the representation and to dispose of the same in accordance with law. The Secretary, Education Department in pursuance of this Court's direction held that since it is a single post it cannot be reserved and it was also observed that since the School Services Commission Act, 1997 (hereinafter referred to as the Act of 1997) has come into force, therefore, the post has to be filled up in accordance with the procedure prescribed under the Act of 1997 and directed the DIS to release the prior permission. Aggrieved against this order the present writ petition has been filed.
( 2 ) THE contention of the Managing Committee was that since a prior permission was granted before coming into force of the Act of 1997 the selection procedure has to be concluded in accordance with the Rules then existing and not in the manner prescribed by the Act of 1997. It was contended that the power of the Managing Committee to make selection and appointment cannot be retrospectively altered or denuded by the Act of 1997. The Act of 1997 came into force w. e. f 1. 1. 1997. By virtue of this Act all appointments of the teaching staff in secondary school has to be made by the Managing Committee on the recommendation of the Regional School Service Commission. Therefore, the question before the learned single judge was that whether the vacancy is required to be filled up in accordance with the provisions of the Act of 1997 or in accordance with the Rules which existed prior to the coming into force of the Act of 1997. Prior to the Act of 1997 there was a Management Rules, 1969 that governed the field and as per the Management Rules, 1969, the Managing Committee was competent to make selection and appointment in accordance with the direction given by the DIS. However, after coming into force of the Act of 1997, the power to make selection committee stood terminated. Therefore, the question that boils down to is whether the present vacancy, which was in existence prior to coming into force of the Act of 1997, should be filled up according to the Management Rules of 1996 or according to the Act of 1997. The learned single judge held that mere existence of a vacancy prior to coming into force of the Act of 1997, which is being sought to be filled up after 1997, can only be filled up under the Act of 1997 and not under the procedure prescribed under the Management Rules of 1969. It was observed by the learned single judge that it is true that the Act of 1997 had not been given a retrospective effect, but since the vacancy is sought to be filled up in 1997, the Act of 1997 will be applicable, otherwise it will virtually result in nullification of the Act of 1997. It was observed by the learned single judge that retrospective construction of any Act or rule cannot be applied to divest any accrued
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