There is no requirement to seek permission for the appointment of non-teaching staff in a Government-aided School, and a clear mechanism for dealing with surplus staff in such schools is essential.

JUDGMENT :

SANJIB BANERJEE, J.

Prayer: Appeal filed under Clause 15 of the Letters Patent against the order dated 26.02.2020 in W.P. No. 3939 of 2020.

1. The appeal is directed against a judgment and order dated February 26, 2020 passed on a writ petition filed by the first respondent herein.

2. The respondent School has a sanctioned post of an Office Assistant. Upon such post falling vacant, the appointment process was initiated in and about 2018 and the writ petitioner qualified. However, in accordance with the Rules or pursuant to relevant notifications issued in such regard, the appointment could only be made upon seeking the permission of the District Educational Officer. The respondent School sought permission. No immediate response was forthcoming.

3. The first respondent herein was constrained to institute proceedings under Article 226 of the Constitution in 2019 upon the appellants’ failure to consider the School’s request for the appropriate permission. Such writ petition, W.P. No. 29812 of 2019, was disposed of by this Court with a direction to the respondent authorities in that case to dispose of the request made by the School.

4. Ultimately, the permission was declined and it is such order of December 12, 2019, which was challenged in the present proceedings. In essence, the learned Single Judge held that there was no room for seeking permission for appointment of any non-teaching staff of a Government-aided School. The other ground indicated in the impugned order is that there was no requirement to engage only surplus staff posted at other Government-aided Schools in the District or of the nearby locality, once the post was sanctioned for the relevant School.

5. On behalf of the appellants, it is contended that the post became vacant in 2014 and the exercise to fill up the vacant post was undertaken belatedly in 2018. Such aspect of the matter is utterly irrelevant in the present context.

6. What is of importance is whether an aided School is required to obtain prior permission from any authority to undertake the process of appointment upon a vacancy arising in a sanctioned non-teaching post. The appellants have not been able to indicate any Rule or Notification or the like requiring prior permission to be sought before undertaking the exercise to look for a replacement upon a sanctioned post falling vacant in the non-teaching category.

7. It is possible that there may be surplus staff in other Government-aided Schools in the District or nearby areas. It is equally possible that the Government may require the surplus staff to be deployed at other aided Schools upon vacancies in similar post arising thereat. However, there has to be a mechanism which has to be put in place for such purpose and the process has to be certain. It would not do for the Department to refuse an appointment merely because at the time of appointment, the Department finds surplus staff of similar description in other aided Schools in the District or the locality. The position as to surplus staff ought to exist at the time when the vacancy arose or, at any rate, prior to the process of appointment being initiated. Once the appointment process is undertaken and a person is identified, it may no longer be open to the Department to refuse the appointment and undo the process by citing surplus staff.

8. In such a scenario, the Department may do well to either bring in Rules that would require aided Schools to obtain permission from the relevant District Educational Officer before undertaking an appointment procedure and the District Educational Officer being required to respond to the request within a fixed time, so that the relevant School can fill up the vacancy without undue delay. In the alternative, the relevant District Educational Officer may circulate the description and number of the surplus staff at various levels to all Schools for such Schools to be able to fill up any vacancy that arises from the surplus staff at the relevant post. In the abs