Back
High Court Of Calcutta
Dipankar Datta, J.
Sri Asoke Sawoo - Appellants
Vs
State Of West Bengal - Respondents
W.P. No. 16383 (W) of 2010 with W.P. No. 16937 (W) of 2010 W.P. No. 17178 (W) of 2010 with W.P. No. 19654 (W) of 2010 W.P. No. 18474 (W) of 2010 with W.P. No. 19652 (W) of 2010
Decided on: Nov 10, 2010
SCHOOLS - RECRUITMENT OF NON-TEACHING STAFF - AMENDMENT OF RULES - APPLICABILITY - WEST BENGAL SCHOOLS (RECRUITMENT OF NON-TEACHING STAFF) RULES, 2005 - WEST BENGAL SCHOOL SERVICE COMMISSION (AMENDMENT) ACT, 2008 - WEST BENGAL SCHOOL SERVICE COMMISSION (SELECTION OF PERSONS FOR APPOINTMENT TO THE POST OF NON-TEACHING STAFF) RULES, 2009 - WHETHER THE AMENDMENT ACT OF 2008 AND THE 2009 RULES WOULD HAVE RETROSPECTIVE EFFECT - WHETHER THE 2005 RULES WOULD SURVIVE FOR THE LIMITED PURPOSE OF CONSIDERATION OF THE PANEL BY THE DISTRICT INSPECTOR FOR APPROVAL IN TERMS OF RULE 24(2) OF THE 2009 RULES.
Fact of the Case:
The petitioners were the Secretary of the Managing Committee of Dhanyakuria High School and the concerned school conducted interviews for recruiting non-teaching staff on various dates. However, the panels could not be prepared due to various reasons. A prayer was submitted on behalf of the school on different dates before the Additional District Inspector of Schools (S.E.) to grant permission to hold fresh interviews. Since no reply was received in response thereto, the petitioners approached the Court by filing these writ petitions.
Finding of the Court:
1. If any vacancy in a post has arisen and the selection process has commenced in accordance with the applicable rules, such process ought to be taken to its logical conclusion in accordance therewith notwithstanding any amendment that might have been introduced in the rules while the process is on. 2. The 2005 Rules stand superseded not by a simple executive action but in furtherance of giving effect to a statutory mandate. 3. The basic question being one related to affectation of one's right vis-a-vis initiation of action to claim Mandamus at the right time, there can be no escape from the conclusion that as and when the 2009 Rules were made operative the right of the Managing Committee to select candidates ceased for all times to come. 4. On the date the writ petition was presented by the petitioner, the Managing Committee of which he is the Secretary had no subsisting right in law to conduct selection. 5. Merely because under the 2005 Rules the Managing Committee of the school had a legally protected right to select a candidate for appointment as non-teaching staff would not clothe the petitioner with any judicially enforceable right to claim that since the selection process had started prior to enactment of the Amendment Act of 2008 to fill up the four posts of non-teaching staff, the process ought to be taken to its logical conclusion in accordance with the 2005 Rules. 6. When the stage had been reached for conducting interviews (of the sponsored candidates and those who offered their candidature by responding to the advertisements published) but the same stood postponed, the right of the Managing Committee to select as well as right of the aspirants for the posts to be considered for appointment was inchoate, since the process could not have proceeded further without the approval of the Additional District Inspector. 7. By the Amendment Act of 2008, the right of the aspirants for the posts is also not curtailed in any manner whatsoever. 8. As and when the posts are advertised by the appropriate Commission in terms of the 2009 Rules, they shall be free to offer their candidature. 9. The petitioners are now asking the Court to undo what the legislature in its wisdom has ordained. That is plainly impermissible. 10. If the aspirants' candidature has not been considered at all or an intermediate stage prior to final selection is reached, the process has to be scrapped and the vacancy filled up in accordance with the Amendment Act of 2008 read with the 2009 Rules to give effect to the will of the people.
Issues: None
Ratio Decidendi: 1. The 2009 Rules have taken effect from July 9, 2009 and the right the Managing Committee possessed as on that date is of paramount importance. 2. It had not finalised selection of candidates by that date. Approval of the District Inspector to proceed further had also not been obtained. 3. If indeed approval had been granted by the Additional District Inspector under Rule 8(8)(b) of the 2005 Rules and a panel prepared in accordance with the rules then existing, the provisions contained in the 2009 Rules regulating selection of candidates for appointment of non- teaching staff may not have affected the process that had already been initiated. 4. Presentation of this petition after supersession of the 2005 Rules thus is fatal for the cause that the petitioner has sought to espouse. 5. Moreover, merely because under the 2005 Rules the Managing Committee of the school had a legally protected right to select a candidate for appointment as non-teaching staff would not clothe the petitioner with any judicially enforceable right to claim that since the selection process had started prior to enactment of the Amendment Act of 2008 to fill up the four posts of non-teaching staff, the process ought to be taken to its logical conclusion in accordance with the 2005 Rules. 6. When the stage had been reached for conducting interviews (of the sponsored candidates and those who offered their candidature by responding to the advertisements published) but the same stood postponed, the right of the Managing Committee to select as well as right of the aspirants for the posts to be considered for appointment was inchoate, since the process could not have proceeded further without the approval of the Additional District Inspector. 7. By the Amendment Act of 2008, the right of the aspirants for the posts is also not curtailed in any manner whatsoever. 8. As and when the posts are advertised by the appropriate Commission in terms of the 2009 Rules, they shall be free to offer their candidature.
Final Decision: The petitions were dismissed without any order as to costs.
1. ALL these writ petitions were heard separately. I propose to dispose of the same by this common judgment and order since the question of law involved therein is the same.
2. THE petitioner in W.P. No. 16383(W) of 2010 is the Secretary of the Managing Committee of Dhanyakuria High School (hereafter the school). Four posts of non-teaching staff in the school were vacant at the material point of time, i.e. one post of librarian, two posts of Group 'C' staff and one post of Group 'D' staff. THE West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005 (hereafter the 2005 Rules) were the applicable statutory rules regulating recruitment to such vacant posts. On approach being made by the school, the Additional District Inspector of Schools (S.E.), Basirhat subdivision, District 24 Parganas (North) (hereafter the Additional District Inspector) accorded prior permission to the school to conduct recruitment process. Advertisements were published in a daily vernacular newspaper inviting eligible candidates to offer their candidature for recruitment to such vacant posts. Requisitions were also sent to the concerned employment exchange to sponsor names of eligible candidates. Number of candidates was sponsored by the Employment Exchange. A good number also responded to the advertisement and offered their candidature. Interviews were arranged by the Managing Committee of the school on December 20, 21, 22 and 23, 2008. However, due to sudden death of a close relative of the petitioner, the interviews were postponed and the same was duly notified to all concerned by publishing a notice in a daily vernacular newspaper. Thereafter, the Additional District Inspector was again approached by the Headmaster of the school on December 24, 2008 for permission to hold interviews in terms of the 2005 Rules. However, he did not respond. Feeling aggrieved by the inaction of the Additional District Inspector, this petition dated September 7, 2009 was presented for a direction upon the Additional District Inspector to permit the Managing Committee of the school to hold the postponed interviews. Mr. Bari, learned advocate for the petitioner contended that the process of selection having commenced in terms of the 2005 Rules, amendments effected in the West Bengal School Service Commission Act, 1997 (hereafter the 1997 Act) w.e.f. January 14, 2009 by the West Bengal School Service Commission (Amendment) Act, 2008 (hereafter the Amendment Act of 2008), thereby empowering the Regional School Service Commissions constituted under the 1997 Act to select candidates for recruitment to vacant non- teaching posts in non-Government aided and unaided schools would have no application since the provisions are not intended to operate retrospectively. He placed reliance on a recent Division Bench decision of this Court dated July 9, 2010 in The Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia v. Archana Ghosh (Saha) and others, reported in (2010) 3 CAL LT 192 (HC), to contend that the vacancies having occurred prior to the amendments effected in the 1997 Act and selection process having commenced by issuance of advertisements inviting applications and requisitioning names of candidates from the employment exchange, the same ought to be filled up in accordance with the rules prevailing at the time the vacancies had actually arisen. When informed that there are decisions of this Court taking a somewhat different view which are equally binding on me, he urged that the decision in Archana Ghosh (supra) being the latest decision on the point, I ought to follow it.
3. THE respondents in W.P. No. 16383(W) of 2010 have not been represented and hence their version was not available to the Court.
4. I have heard Mr. Bari and perused the pleadings. It is the normal rule that if any vacancy in a post has arisen and the selection process has commenced in accordance with the applicable rules, such process ought to be taken to its logical co
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
