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HIGH COURT OF CALCUTTA
JYOTIRMAY BHATTACHARYA, J.
Managing Committee - Appellant
Versus
State of West Bengal - Respondent
W. P. No. 11255(W) of 2010 With W. P. No. 11254(W) of 2010
Decided on : Jan 27, 2011
DIRECT RECRUITMENT - WEST BENGAL SCHOOL SERVICE COMMISSION (AMENDMENT) ACT, 2008 - SELECTION PROCESS - APPLICABILITY OF RULES - PRIOR PERMISSION - VESTED RIGHT - VACANCY CREATED PRIOR TO AMENDMENT - SELECTION PROCESS INITIATED - COMPLETION OF SELECTION PROCESS - RULES PREVAILING ON DATE OF INITIATION OF SELECTION PROCESS - BINDING EFFECT OF EARLIER DIVISION BENCH DECISION IN SNEHANSU JAS VS. STATE OF WEST BENGAL (2001) 2 CLJ 558 (CAL) - APPLICABILITY IN CASE OF DIRECT RECRUITMENT - CONFLICTING VIEWS OF DIVISION BENCHES - REFERENCE TO LARGER BENCH.
Fact of the Case:
The School Authority was granted prior permission by the District Inspector of School to fill up a Group D Staff post in the up-graded Class X High Madrasah. However, the selection process was not initiated. Subsequently, the reservation policy was lifted, and the School Authority requested the District Inspector of School to de-reserve the post. The District Inspector of School did not issue any fresh prior permission for filling up the post by a candidate from the General category. Instead, the School Authority was asked to submit the vacancy statement as unreserved to the office for onward transmission to the West Bengal Madrasah Service Commission. The School Authority challenged this decision, seeking permission from the Court to complete the selection process for the de-reserved post in terms of the earlier prior permission.
Finding of the Court:
The Court held that the selection process for filling up the post should be completed by following the West Bengal School Service Commission (Amendment) Act, 2008, which came into force on January 1, 2009, as the selection process had not commenced prior to the commencement of the Act. The Court further held that the decision of the Division Bench of the Calcutta High Court in the case of Snehansu Jas vs. State of West Bengal (2001) 2 CLJ 558 (Cal) was still binding in the field of direct recruitment and that the grant of prior permission alone did not create any vested right in the Management to complete the selection process by following the Rules existed as on the date of creation of such vacancy.
Issues: 1. Whether the selection process for filling up the post should be completed by following the West Bengal School Service Commission (Amendment) Act, 2008 or the West Bengal School (Control of Expenditure) Act, 2005? 2. Whether the decision of the Division Bench of the Calcutta High Court in the case of Snehansu Jas vs. State of West Bengal (2001) 2 CLJ 558 (Cal) still operates as a binding precedent in the field of direct recruitment? 3. Whether the grant of prior permission alone can create any vested right in the Management to complete the selection process by following the Rules existed as on the date of creation of such vacancy?
Ratio Decidendi: 1. The selection process for filling up the post should be completed by following the West Bengal School Service Commission (Amendment) Act, 2008, as the selection process had not commenced prior to the commencement of the Act. 2. The decision of the Division Bench of the Calcutta High Court in the case of Snehansu Jas vs. State of West Bengal (2001) 2 CLJ 558 (Cal) still operates as a binding precedent in the field of direct recruitment. 3. The grant of prior permission alone does not create any vested right in the Management to complete the selection process by following the Rules existed as on the date of creation of such vacancy.
Final Decision: The Court referred the following questions to a Larger Bench for answering: 1. Whether the decision of the Division Bench of the Calcutta High Court in the case of Kalinagar Girls High School, Nadia, vs. Archana Ghosh; reported in 2010 (3) CHN (Cal) 940 can be accepted as a law operating in the field of direct recruitment where the recruitment rules were changed after creation of vacancy notwithstanding the fact that the advertisement for the said post in terms of the prior permission, had not been issued before change in the selection Rules was introduced? 2. Whether the law laid down by the earlier Division Bench of the Calcutta High Court in the case of Snehansu Jas vs. State of West Bengal; reported in 2001 Vol.2 CLJ 558 (Cal), can still be accepted as a law operating in the field of direct recruitment? 3. Whether grant of prior permission alone can create any vested right in the Management to complete the selection process by following the Rules existed as on the date of creation of such vacancy notwithstanding a change was introduced in the selection Rule before publication of advertisement for the vacant post under the old Rules?
1. ADMITTEDLY prior permission for recruitment to the post of Group D Staff in the up-graded Class X High Madrasah was accorded by the District Inspector of School (Secondary Education), Cooch Beher, vide WBBNEDN/S Memo No. 451 dated 18th April, 2006, permitting the School authority of Kadamtala High Madrasah to select a suitable candidate for the said post, in the manner prescribed in the said prior permission which is as follows: Qualification: Class VIII pass. As per 100-point roster, the post is reserved for S.C. candidates (1st post). It was indicated therein that the said recruitment must be made through the Employment Exchange and as per existing Government Order being G.O. No.1594-SE(S) dated 26th December, 2005 and G.O. No. 904-SE(S) dated 18th July, 2007.
2. IN spite of grant of such prior permission by the concerned District Inspector of School, the School Authority did not take any step to initiate selection process for filling up the said post from the Schedule Caste candidates. Subsequently, by another circular issued by the Government under MED Government of West Bengals Memo No.1465-MD/2007 dated 12th October, 2007 the reservation policy as per 100-point roster was lifted. As such the School Authorities submitted papers to the concerned District Inspector of School for de-reservation of the said post. Even after de-reservation of the said post, the concerned District Inspector of School neither issued any fresh prior permission for filling up the said post by a candidate from the General category nor modified the earlier prior permission in the light of the subsequent circulars issued for de-reservation of the said post authorizing the School authority to complete the selection process with the candidates from the General category. As the prior permission which was issued in April 2006 became ineffective after the vacant post was de-reserved in 2007, selection process could not have been initiated after 12th October, 2007 on the basis of such prior permission which was issued for a reserved post. As such the School authority, in my view, cannot claim any right to complete the said selection process by following the old Rules. Even initiation of any selection process by the School authority was not possible after 12th October, 2007 when the said post was de-reserved as admittedly, there was no prior permission for filling up the vacancy by any candidate from General category. Instead of permitting the School Authorities to complete the selection process for filing up the said vacancy by a candidate belonging to General category either by modifying the earlier prior permission dated 26th November, 2007 or by issuance of a fresh prior permission for such de-reserved post, the District Inspector of School (Secondary Education), Cooch Beher, issued another notice under Memo No. 04/Gen/Tuf dated 8th January, 2010 whereby the School Authority was requested to submit the vacancy statement as unreserved to the office, at the earliest, for onward transmission of the same to the West Bengal Madrasah Service Commission.
3. THE School Authority felt aggrieved as the School Authority was not permitted to complete the selection process for the said de-reserved post in terms of the earlier prior permission dated 26th November, 2007. Hence the School Authorities have come before this Court with this writ petition seeking permission from this Court for completing the selection process for the said dereserved post in terms of the earlier prior permission.
4. BEFORE entering into the merit of the writ petition, this Court wants to keep it on record that apart from the issuance of the prior permission by the said District Inspector of School on 26th November, 2007 which was followed by a request made by the School Authority to the concerned District Inspector of School for authorizing the School Authority to complete the said process for filling up the said de-reserved post from suitable candidates, no further step was take
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