Calcutta High Court (Appellete Side)
Girls' High School vs Archana Ghosh (Saha) & Ors on 9 July, 2010
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Md. Abdul Ghani
M.A.T. 592 of 2010
With
C.A.N. 4147 of 2010
The Secretary of the Managing Committee, Kalinagar
Girls' High School, Nadia
Versus
Archana Ghosh (Saha) & Ors.
For the Appellant : Mr. Kashi Kanta Moitra
Mr. Muktakesh Das
For the Respondent No. 5 : Mr. L. K. Gupta
Mr. Biswarup Biswas
For the Respondent No.
1/Writ Petitioner : Mr. Ekramul Bari
Ms. Suman Sehanabis
Heard On: 21.06.2010 & 30.06.2010
2
Judgment On: 09.07.2010.
PRANAB KUMAR CHATTOPADHYAY, J.
The principal question that arises for our consideration in this appeal is whether the Group 'D' post of Lady Attendant in Kalinagar Girls' High School should be filled up by the West Bengal School Service Commission following the provisions of the West Bengal School Service Commission (Amendment) Act, 2008 which came into force on January 1, 2009 or the said vacancy should be filled up following the pre-existing statutory procedures. In other words, the real issue to be decided in the present appeal is whether the vacant post of Group 'D' staff in the concerned school should be filled up following the statutory procedure which was in vogue prior to the commencement of the said West Bengal School Service Commission (Amendment) Act, 2008.
The facts which gave rise to this appeal are briefly stated hereinafter:
The Group 'D' post of Lady Attendant fell vacant in the concerned school on 31st May, 2006. The concerned District Inspector of Schools granted prior permission for filling up the said Group 'D' post of Lady Attendant on 25th September, 2007. After the issuance of the aforesaid prior permission, the school authority sent requisition to the Employment Exchange for 3 sponsoring the names of the eligible candidates and the concerned Employment Exchange also in response to such request forwarded a list sponsoring the names of 35 candidates on March 27, 2008. In the said list of 35 sponsored candidates the name of the respondent No. 1/writ petitioner was not included. After the grant of prior permission by the District Inspector of Schools concerned in the year 2007 and sponsoring of 35 names by the Employment Exchange in the year 2008, no further steps were taken for filling up the said vacant Group 'D' post of Lady Attendant during the subsequent couple of months. However, on 31st January, 2009 an advertisement was issued in the newspaper inviting applications from the eligible candidates for filling up the said vacancy. In response to the said advertisement, several candidates including the respondent No. 1/writ petitioner herein submitted applications and the Managing Committee of the school asked those candidates including the said respondent No. 1 to appear at the interview which was fixed in the month of August, 2009.
The respondent No. 1/writ petitioner herein, however, filed a writ petition alleging inaction on the part of the Managing Committee of the Kalinagar Girls' High School for non-submission of the panel of selected candidates in respect of the non-teaching Group 'D' post of Lady Attendant to the District Inspector of Schools (SE), Nadia for its approval. According to the appellant, 4 no panel for filling up the said Group 'D' post of Lady Attendant in the concerned school was prepared and, therefore, the Managing Committee of the said school had no occasion to forward any panel and/or papers in relation to the said selection to the District Inspector of Schools (SE), Nadia.
The aforesaid writ petition filed by the respondent No. 1 herein was ultimately disposed of on merits by the judgment and order under appeal passed by a learned Judge of this Court whereby and whereunder the school authority was directed to forward the panel prepared by the Selection Committee for filling up the said Group 'D' post of Lady Attendant to the District Inspector of Schools concerned.
Challenging the aforesaid direction passed by the learned Single Judge of this court, Secretary of the Managing Committee of the said school filed the present appeal and the connected Stay Application. We have heard the learned Counsel of the respective parties in connection with the aforesaid appeal as well as the connected Stay Application.
By consent of the learned Counsel of the respective parties, both the appeal and the connected Stay Application were heard together.5
Mr. Kashi Kanta Moitra, learned Senior Counsel representing the appellant submitted that the members of the Managing Committee of the said school had no knowledge of the amended provisions of the West Bengal School Service Commission Act initially and only after publication of the advertisement came to know about the amended provisions of the said Act wherein it has been made clear that any appointment of a teacher or a non-teaching staff made on or after commencement of the said Act in contravention of the provisions of the said Act shall be invalid and the teacher or the non-teaching staff so appointed shall not be a teacher or a non- teaching staff. Mr. Moitra further submitted that by the impugned judgment and order under appeal passed by the learned Single Judge, the Managing Committee of the school was directed to forward the panel if the same is otherwise permissible. According to Mr. Moitra, since no panel was ever forwarded, question of forwarding the same in terms of the judgment and order under appeal cannot and does not arise.
It has also been submitted by the learned Senior Counsel of the appellant that under the mistaken notion of law, after a lapse of about two years from the date of granting prior permission by the District Inspector of Schools concerned to fill up the post in question, an advertisement was published in the newspaper inviting 6 applications for filling up the said Group 'D' post of Lady Attendant on the understanding that the Managing Committee of the school had the power to recruit when under the amended provisions of the West Bengal School Service Commission (Amendment) Act, 2008, such power was taken away from the hands of the Managing Committee of the school. According to Mr. Moitra, entire exercise by the Managing Committee of the concerned school for filling up the post in question was fully violative of the amended provisions of the West Bengal School Service Commission Act and the West Bengal School Education Expenditure Act.
Mr. Moitra further submitted that no step could be taken by the Managing Committee of the said school for selection and appointment to the vacant Group 'D' post of Lady Attendant after commencement of the West Bengal School Service Commission (Amendment) Act, 2008. Mr. Moitra also submitted that in terms of the amended provisions of the West Bengal School Service Commission (Amendment) Act, 2008 and the West Bengal Schools (Control of Expenditure) Act, 2008, Managing Committee had no right to select or prepare any panel for filling up any teaching or non-teaching post.
The West Bengal School (Recruitment of Non-teaching Staff) Rules, 2005 was framed by the Government of West Bengal under the 7 West Bengal Schools (Control of Expenditure) Act, 2005 laying down the procedure, inter- alia of the method of recruitment for appointment of non-teaching staff in the schools. By the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Non-Teaching Staff) Rules, 2009 which was published on 9th July, 2009, the authority for selection of persons for appointment of non-teaching staff in a school was vested in the School Service Commission. The details of the procedure for the mode of selection was laid down in the Rule of 2009 to give effect to the amendment in the West Bengal School Service Commission Act, 1997 as amended in 2009 with effect from 1st January, 2009.
Thus, the authority for selection of candidates for appointment in a non-teaching post in a school became vested in the School Service Commission with effect from 1st January, 2009. Prior to that date, the method of recruitment including selection was governed by the 2005 Rules referred to above under which the concerned school itself was the selecting authority.
It is not in dispute that the vacancy arose on 31st May, 2006 and the prior permission was granted by the District Inspector of Schools (SE), Nadia for filling up the said vacancy on 25th September, 2007. The Employment Exchange also forwarded the names of the eligible candidates on 27th March, 2008. 8
Referring to the aforesaid undisputed facts, Mr. L.K. Gupta, learned Senior counsel of the respondent-Headmistress submitted that in the present case, not only the vacancy arose and prior permission was granted by the District Inspector of Schools concerned before commencement of the West Bengal School Service Commission (Amendment) Act, 2008 but also the concerned Employment Exchange had forwarded the list of eligible candidates before commencement of the said Amendment Act, 2008.
It is, however, not in dispute that the advertisement was issued by the Managing Committee of the concerned school inviting applications from the eligible candidates on 31st January, 2009 i.e. after commencement of the said Amendment Act and the interview was also held by the Selection Committee after commencement of the said Amendment Act, 2008. It is now, therefore, to be decided whether the selection process in question should be allowed to be completed as per the provisions of the earlier Recruitment Rules of 2005 or such process of selection should be cancelled in view of commencement of the West Bengal School Service Commission (Amendment) Act, 2008 and Rules, 2009.
Mr. Ekramul Bari, learned Counsel representing the respondent No. 1/writ petitioner raised a preliminary objection regarding maintainability of the appeal at the instance of the Secretary of 9 the Managing Committee of the school since the said Secretary participated in the selection process.
Mr. L. K. Gupta, learned Senior counsel representing the respondent-Headmistress submitted that all the members of the Selection Committee including the appellant Secretary separately awarded individual marks to each of the candidates although the said Secretary refused to prepare the final score sheet as well as the panel and thus, withdrew himself from the selection process at a subsequent stage. Mr. Gupta also submitted that the panel was prepared by the other three members of the Selection Committee on that very day and a copy of the said panel dated 23rd August, 2009 has been annexed with the affidavit-in-opposition filed by the said respondent-Headmistress in connection with the Stay Application.
Both Mr. Bari, learned Counsel of the respondent No. 1/writ petitioner and Mr. L. K. Gupta, learned Senior Counsel representing the respondent-Headmistress submitted before this court that the Managing Committee had adopted a resolution for filling up the Group 'D' post of Lady Attendant in the concerned school on 7th May, 2008 to which the Secretary of the Managing Committee of the concerned school was a party. Subsequently, the said Secretary of the Managing Committee namely, the appellant 10 herein participated in the meeting of the Managing Committee held on 14th January, 2009 wherein also a specific resolution was adopted by the said Managing Committee for filling up the Group 'D' post of Lady Attendant in the concerned school.
We also find from the records that one, Smt. Rupa Ghosh filed a writ petition being W.P. No. 17841 (W) of 2009 challenging the selection made by the authorities of Kalinagar Girls' High School for filling up the said vacant Group 'D' post of Lady Attendant wherein the learned Counsel of the present appellant took a specific stand that the provisions of the West Bengal School Service Commission (Amendment) Act, 2008 have no manner of application.
Mr. L. K. Gupta, learned Senior Counsel of the respondent- Headmistress referred to the order dated 16th November, 2009 passed in the said writ petition being W.P. No. 17841 (W) of 2009. The said order dated 16th November, 2009 is set out hereunder:
"The selection made by the authorities of Kalinagar Girls' High School for filling up a vacant post of Lady Attendant (unreserved) is challenged primarily on the ground that after promulgation of the West Bengal School Service Commission (Amendment) Act, 2009, the Regional School Service Commission having jurisdiction only has the authority to select and not the Managing Committee.
Mr. Biswas, learned counsel representing the school submits that prior permission for filling up the post in question was issued by the District Inspector of Schools (SE), Nadia on 25.9.07 pursuant whereto names of candidates were requisitioned from the Employment Exchange on 27.3.08. It is only due to unavoidable reasons that the interview could not be conducted earlier and was ultimately conducted on 23.8.09. He 11 further submits that the recent amendments would have no application in case of filling up of a vacancy for which prior permission was issued in terms of the Recruitment Rules existing at that point of time.
The submissions of Mr. Biswas have substance. The amendments to the West Bengal School Service Commission Act, 1997 are prospective and would have no application in respect of filling up of a vacancy which arose in 2007 and steps were taken for such purpose in accordance with the Rules then existing. It is settled law that once the process of selection is commenced by way of calling of names of eligible candidates from the Employment Exchange, the Rules that were prevailing on that date have to be followed and not the amended Rules that may have been brought into force subsequently.
The writ petition is devoid of merit and the same stands dismissed. There will be no order for costs."
Mr. Kashi Kanta Moitra, learned Senior Counsel of the appellant, however, submitted that the prior permission granted by the District Inspector of Schools concerned in the year 2007 in respect of the vacant Group 'D' post of Lady Attendant did not clothe the respondent No. 1/writ petitioner with any right to be considered for filling up the said vacant post nor any step can be taken by the Managing Committee of the school for filling up the said vacant post in view of the provisions of the West Bengal School Service Commission (Amendment) Act, 2008 and the amendment of the West Bengal School Education Expenditure Act which came into force on January 1, 2009. Mr. Moitra further submitted that legal right of the respondent No. 1, if any, would flow from her application made on the basis of the advertisement published in the newspaper on 31st January, 2009 and from the date of the interview held on August 23, 2009.
12
It has also been submitted by the learned Senior Counsel of the appellant that the respondent No. 1/writ petitioner cannot rely upon the date of the prior permission granted by the District Inspector of Schools concerned for filling up the post in question since the same would not confer any right on the respondent No. 1 to be considered at all for the reason that the Employment Exchange did not sponsor the name of the said respondent No. 1/writ petitioner. Referring to the decision of the Supreme Court in the case of Excise Superintendent, Malkapatnam, Krishna District, A.P. vs. K.B.N. Visweshwara Rao & Ors. reported in (1996) 6 SCC 216, Mr. Moitra submitted that the selection cannot be restricted only to the Employment Exchange sponsored candidates and, therefore, the date of publication in the newspaper should be the relevant date for consideration in the present case specially when the respondent No. 1/writ petitioner applied for the post in question pursuant to the advertisement published in the newspaper after commencement of the West Bengal School Service Commission (Amendment) Act, 2008.
It has been argued on behalf of the appellant that the selection process in the present case for filling up the vacant Group 'D' post in question starts when the vacancy was advertised and the candidates were called for interview. Therefore, according to the learned Senior Counsel of the appellant, the selection 13 process in the present case should be regulated by the statute namely, the West Bengal School Service Commission (Amendment) Act, 2008 and Rules, 2009 which came into operation with effect from 1st January, 2009 since the vacancy was advertised and the candidates were called for interview after the commencement of the aforesaid Amendment Act, 2008 and Rules, 2009.
Mr. Moitra, learned Senior Counsel of the appellant referred to and relied on the following decisions in support of his aforesaid arguments:
1) 2001 (2) C.L.J. 558 [Snehansu Jas vs.
State of West Bengal & Ors.]
2) 2000 (1) C.H.N. 435 [Abdul Mannan
Laskar vs. State of West Bengal &
Ors.]
It is now, therefore, to be decided whether the vacancies existing prior to the commencement of the West Bengal School Service Commission (Amendment) Act, 2008 should be filled up by following the pre-existing statutory procedures or in terms of the amended provisions as specifically mentioned in the West Bengal School Service Commission (Amendment) Act, 2008 and Rules, 2009.
Mr. L. K. Gupta, learned Senior Counsel representing the respondent-Headmistress however, submitted that in the present 14 case since the post of Lady Attendant in the concerned school fell vacant prior to the commencement of the West Bengal School Service Commission (Amendment) Act, 2008 and Rules, 2009, the said vacancy should be filled in accordance with law and procedure existing as on the date when the vacancy arose i.e. under the earlier Recruitment Rules of 2005 and not by the subsequent amended provisions of the West Bengal School Service Commission Act and Rules.
Mr. Gupta referred to and relied on a decision of the Supreme Court in the case of Arjun Singh Rathore vs. B.N. Chaturvedi & Ors. reported in (2007) 11 SCC 605 wherein the earlier decisions of the Supreme Court in Y.V. Rangaiah & Ors. vs. J. Sreenivasa Rao & Ors. reported in (1983) 3 SCC 284 and State of Rajasthan vs. R. Dayal & Ors. reported in (1997) 10 SCC 419 have been followed.
In the case of Y.V. Rangaiah & Ors. (Supra), Supreme Court held:
"9.................................But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."15
In State of Rajasthan vs. R. Dayal & Ors. (Supra), Supreme Court held:
"8.................................This court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules.
Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in accordance with law existing as on the date when the vacancies arose."
In the case of Arjun Singh Rathore vs. B.N. Chaturvedi & Ors. (Supra), Supreme Court following the aforesaid earlier judgments in Y.V. Rangaiah & Ors. (Supra) and State of Rajasthan vs. R. Dayal & Ors. (Supra) held that the date on which the vacancies arise will be relevant to decide whether the original Rules or the amended Rules will govern the selection. The following extract from the aforesaid judgment in the case of Arjun Singh Rathore vs. B.N. Chaturvedi & Ors. (Supra) is quoted:
"6.................................We are therefore of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled in under the Rules of 1988 and as per the procedure laid down therein....................."
In view of the clear pronouncement of law by the Supreme Court in the aforesaid judgments, decisions of this Court in 16 Snehansu Jas (Supra) and Abdul Mannan Laskar (Supra) do not operate as binding precedent on this court.
Under Article 141 of the Constitution of India, law declared by the Supreme Court shall be binding on all Courts within the territory of India. Therefore, judgment of the Supreme Court on a specific issue must be accepted as a settled judicial principle on the issue. Accordingly, the ratio laid down by the Supreme Court in the case of Arjun Singh Rathore (Supra) following the earlier decisions in Y.V. Rangaiah & Ors. (Supra) and State of Rajasthan vs. R. Dayal & Ors. (Supra) holds the field in the present case. Since the vacancy in the Group 'D' post of Lady Attendant in the concerned school arose on 31st May, 2006 i.e. prior to the commencement of the West Bengal School Service Commission (Amendment) Act, 2008, the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Non-Teaching Staff) Rules, 2009 and the West Bengal Schools (Control of Expenditure) (Amendment) Act, 2008, by applying the aforesaid ratio settled by the Supreme Court in Y.V. Rangaiah & Ors. (Supra), State of Rajasthan vs. R. Dayal & Ors. (Supra) and Arjun Singh Rathore (Supra) the selection in question should be governed by the 2005 Rules which were in force when the said vacancy arose and, therefore, the school authority itself being the selecting authority will fill up the aforesaid Group 'D' post of Lady 17 Attendant in the manner laid down in the West Bengal School (Recruitment of Non-teaching Staff) Rules, 2005.
In the present case, undisputedly, the post of Group 'D' (Lady Attendant) fell vacant, prior permission was also granted by the District Inspector of Schools concerned for filling up the said post and the names of the eligible candidates were sponsored by the Employment Exchange before commencement of the aforesaid West Bengal School Service Commission (Amendment) Act, 2008, the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Non-Teaching Staff) Rules, 2009 and the West Bengal Schools (Control of Expenditure) (Amendment) Act, 2008. Therefore, under the 2005 Rules, Managing Committee of the school should now forward the panel prepared by the Selection Committee to the District Inspector of Schools (SE), Nadia for obtaining necessary approval and the District Inspector of Schools concerned should also act on the basis thereof.
The appellant herein, namely the Secretary of the Managing Committee of the Kalinagar Girls' High School took the correct stand in the earlier writ petition being W.P. No. 17841 (W) of 2009 filed at the instance of one Smt. Rupa Ghosh that the amended provisions of the West Bengal School Service Commission Act and Rules framed thereunder would have no application in the case of 18 filling up the vacant Group 'D' post of Lady Attendant in the concerned school. We fail to understand why the said Secretary of the Managing Committee of the school took a contradictory stand in the present case in relation to the same selection process. The stand taken by the said Secretary in the present appeal is contrary to the law laid down by the Supreme Court in Y.V. Rangaiah & Ors. (Supra), State of Rajasthan vs. R. Dayal & Ors. (Supra) and Arjun Singh Rathore (Supra).
From the available records we find that all the members of the Selection Committee including the appellant herein signed on the Attendance Sheet on the date of interview and all the members of the Selection Committee including the appellant-Secretary separately awarded individual marks to each of the candidates. The appellant herein, however, for the reasons best known to him, refused to sign the panel although rest of the members of the Selection Committee namely, the Headmistress of the school, External Expert and Municipal nominee prepared and signed the said panel which has been annexed with the affidavit-in-opposition filed by the respondent No. 5 and marked with the letter 'R-5'.
The aforesaid panel, therefore, should be forwarded to the District Inspector of Schools (SE), Nadia so that appropriate 19 decision can be taken by the said District Inspector of Schools for approving the same.
In view of the aforesaid factual and legal position, selection process impugned in the present appeal should be allowed to be completed under the 2005 Rules which were in force when the vacancy in question arose in the concerned school and the appeal is liable to be dismissed.
Accordingly, the appeal as well as the connected Stay Application stand dismissed as we do not find any merit in the same.
Since a considerable period has already lapsed due to the illegal stand taken by the appellant-Secretary herein, we direct the school authority to forward the aforesaid panel being Annexure 'R-5' to the affidavit-in-opposition filed on behalf of the respondent No. 5 herein to the District Inspector of Schools (SE), Nadia without any further delay but positively within a period of one week from the date of communication of this order. The District Inspector of Schools (SE), Nadia is also directed to take appropriate decision with regard to approval of the panel within a period of two weeks from the date of submission of the said panel by the school authority.
20Needless to mention that the school authority will issue the formal letter of appointment to the selected candidate from the approved panel within a week from the date of receiving the said approved panel from the District Inspector of Schools (SE), Nadia. In the facts of the present case, there will be, however, no order as to costs.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] MD. ABDUL GHANI, J.
I agree.
[MD. ABDUL GHANI, J.]