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2012 Supreme(Cal) 905
IN THE HIGH COURT AT CALCUTTA
Pranab Kumar Chattopadhyay, Tarun Kumar Das, JJ.
Asoke Sawoo – Appellant
Versus
The State of West Bengal & Ors. – Respondents
F.M.A. 995 of 2011
And
The Managing Committee, Nirjharini Sarkar Balika Vidyalay (H.S.) – Appellant
Versus
The State of West Bengal & Ors. – Respondents
F.M.A. 998 of 2011 + C.A.N. 1981 of 2011
And
Motilal Pal – Appellant
Versus
The State of West Bengal & Ors. – Respondents
F.M.A. 999 of 2011 + C.A.N. 1139 of 2011
And
Arun Kumar Ghosh – Appellant
Versus
The State of West Bengal & Ors. – Respondents
F.M.A. 1000 of 2011 + C.A.N. 1138 of 2011
And
Arun Kumar Dutta – Appellant
Versus
The State of West Bengal & Ors. – Respondents
F.M.A. 1001 of 2011 + C.A.N. 1140 of 2011
And
The Managing Committee, Khanjapur Union High School – Appellant
Versus
The State of West Bengal & Ors. – Respondents
F.M.A. 1002 of 2011 + C.A.N. 1355 of 2011
And
Bhabataran Dhara – Appellant
Versus
The State of West Bengal & Ors. – Respondents
F.M.A. 1003 of 2011 + C.A.N. 1141 of 2011
And
The Managing Committee, Dhantala High School – Appellant
Versus
The State of West Bengal & Ors. – Respondents
F.M.A. 1004 of 2011 + C.A.N. 1354 of 2011
And
The Managing Committee, Chak Sahadat High School – Appellant
Versus
The State of West Bengal & Ors. – Respondents
M.A.T. 139 of 2011 + C.A.N. 4173 of 2011
Decided On : October 5, 2012
For the Appellants : Mr. L.K. Gupta, Ekramul Bari, Shamin-ul-Bari, S.M. Ali, K. M. Hossain, Tanuja Basak.
For the School Authority : Mr. Biswaroop Biswas.
For the State in FMA 995/2011 : Mr. Kamalesh Bhattacharyya, Mr. Bidhan Biswas.
For the State in FMA 998/2011, FMA 999/2011, FMA 1001/2011, FMA 1002/2011& MAT 139/2011 : Mr. Tapan Kumar Mukherjee, Mr. Nilotpal Chatterjee.
For the State in FMA 1000/2011 : Mr. Rabindra Narayan Dutta.
The law prevailing on the day of accrual of vacancy will govern the selection or the process of promotion.
Headnote:
SCHOOL RULES - Non-Teaching Staff - Appointment - Applicability of Rules - Amendment of Rules during selection process - Applicability of old or amended Rules - Held, selection process should be initiated and completed under the Rules which were in force when the vacancy arose.
Fact of the Case:
This case concerns the applicability of Rules relating to the appointment of Non-Teaching Staff in High or Higher Secondary Schools in West Bengal. Several writ petitions were filed challenging the decision of the learned Single Judge who held that in view of the West Bengal School Service Commission (Amendment Act, 2008), vacant posts of Non-Teaching Staff should be filled up under the said Act of 2008 and the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Non-Teaching Staff) Rules 2009.
Finding of the Court:
The Court held that the selection process should be initiated and completed under the Rules which were in force when the vacancy in question arose. Accordingly, the vacant posts of Non-Teaching Staff which are subject matter of the present appeals, should be allowed to be filled up under the 2005 Rules which were in force when the respective vacancies in question arose in the Schools concerned.
Issues: 1. Applicability of the West Bengal School Service Commission (Amendment) Act, 2008 and West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Non-Teaching Staff Rules, 2009 in the matter of recruitment to the vacant post of Non-Teaching Staff where the process of selection had already commenced under the provisions of the 2005 Rules. 2. Whether the vacancies are to be filled up in accordance with the earlier Rules which were prevailing at the time when the vacancy arose or under the new Rules or amended Rules.
Ratio Decidendi: 1. The law prevailing on the day of accrual of vacancy will govern the selection or the process of promotion. 2. The selection process should be initiated and completed under the Rules which were in force when the vacancy in question arose.
Final Decision: The Court set aside the impugned judgment and order passed by the learned Single Judge and allowed the appeals as well as the connected stay applications. The Court directed the concerned respondent authorities to complete the selection process for filling up the vacant posts of Non-Teaching Staff which are the subject matter of the present appeals without any further delay and positively within a period of eight weeks from the date of the order.
Pranab Kumar Chattopadhyay, J. – These appeals arise out of a common judgment and order passed by a learned Judge of this Court whereby several writ petitions have been disposed of. We have heard all the appeals analogously alongwith the connected Stay Applications since common questions of law are involved in these appeals.
2. The appellants in these appeals are either the School Authorities or the individuals. The factual and legal issues centre around the applicability of the Rules relating to the appointment to the post of Non-Teaching Staff in High or Higher Secondary Schools in Wes Bengal. While deciding the writ petitions by the judgment and order under appeal, learned Single Judge held that in view of the West Bengal School Service Commission (Amendment Act, 2008 which came into force on 14th January, 2009, vacant posts of Non-Teaching Staf should be filled up under the aforesaid Act of 2008 and the West Bengal School Servic Commission (Selection of Persons for Appointment to the Post of Non-Teaching Staff) Rules 2009.
3. Mr. L. K. Gupta, learned senior counsel of the appellants submitted that the process of selection for filling up the vacant posts of Non-Teaching Staff had commenced in terms of the provisions of West Bengal School (Recruitment of Non-Teaching Staff) Rules, 2005 (hereinafter referred to as the ‘2005’ Rules) and therefore the provisions of the West Benga Schools Service Commission (Amendment) Act, 2008 have no manner of application in the matter of selecting candidates for filling up the vacant posts in question in Aided Non Government Schools.
4. The question which arises for consideration is the applicability of the provisions of the West Bengal School Service Commission (Amendment) Act, 2008 and West Bengal Schoo Service Commission (Selection of Persons for Appointment to the Post of Non-Teaching Staff Rules, 2009 in the matter of recruitment to the vacant post of Non-Teaching Staff where the process of selection had already commenced under the provisions of the 2005 Rules. In othe words, the question is, where a vacancy has arisen and steps have been taken with a view to fill up that vacancy under the Rules which were operative at the time when the vacancy aros and subsequently, those Rules have been replaced by new Rules, whether the vacancies are to be filled up in accordance with the earlier Rules which were prevailing at the time when the vacancy arose or under the new Rules or amended Rules.
5. The basic question regarding the applicability of the amended provisions of any law in respect of filling up of the post has been considered in different cases on the basis of the particular fact-situation and the governing provisions of law.
6. In several cases it has been held that the law prevailing on the day of accrual of vacancy will govern the selection or the process of promotion. In Y.V. Rangaiah & Ors v. J. Sreenivasa Rao & Ors., reported in AIR 1983 SC 852, Hon’ble Apex Court held that transfer or promotion on the basis of year-wise panel was to be made on the basis of the Rules in force on the date of vacancy. Relevant extracts from the aforesaid judgment are se out hereunder : –
“Para-9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion in the post of sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the Zonal
