Calcutta High Court (Appellete Side)
Kadamtala High Madrasah vs State Of West Bengal & Ors on 27 January, 2011
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present:
The Hon'ble Justice Jyotirmay Bhattacharya W. P. No. 11255(W) of 2010 With W. P. No. 11254(W) of 2010 THE MANAGING COMMITTEE, KADAMTALA HIGH MADRASAH Versus STATE OF WEST BENGAL & ORS.
For the Petitioner : Mr. Ekramul Bari
Mr. S. M. Ali
For the State : Mr. Supriyo Bose
Ms. Soma Roy Chowdhury
Judgment On : January 27, 2011.
Re: W.P. No. 11255(W) of 2010
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 2 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."
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 Bengal's 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 3 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.
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 de- reserved post in terms of the earlier prior permission.
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 taken by the School Authority for completing the said selection process prior to commencement of the West Bengal School Service Commission (Amendment) Act, 2008 which came into force on January 1, 2009.
In this context, a question has emerged as to whether the selection process for filing up the said post should be completed by following the West Bengal School Service Commission (Amendment) Act, 2008 or the said selection process should be completed by following the provision contained in West Bengal School (Control of Expenditure) Act, 2005 which was in vogue at the time when the prior permission to fill up the said vacancy was granted by the concerned District Inspector of School on 26th November, 2007. The aforesaid question has emerged as subsequent to the grant of prior permission for filling up the said vacancy by the concerned District Inspector of School, the rules regarding filling up such post was changed by amendment of the West Bengal School Service Commission (Amendment) Act, 2008 which came into effect on 1st January, 2009.
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Earlier divergent views were expressed by different Single Benches of this Hon'ble Court in different cases on the issue relating to selection of a teaching staff in identical situation. Under such circumstances, a reference was made to the Division Bench of this Hon'ble Court for resolution of the conflict as to whether the vacancy which was created in a teaching post prior to the commencement of the West Bengal School Service Commission Act, 1997 can be filled up by following the Rules, which was in vogue at the time of creation of such vacancy in the post notwithstanding change of the selection process introduced by the West Bengal School Service Commission Act, 1997, before initiation of the selection process under the old Rules.
After taking into consideration the several decisions of the Hon'ble Supreme Court including a decision of the Three Judges Bench of the Hon'ble Supreme Court in the case of P. Mahendran vs. State of Karnataka; reported in AIR 1990 SC 405, the Division Bench of this Hon'ble Court in the case of Snehansu Jas vs. State of West Bengal reported in 2001 (2) CLJ 558, held that when selection process has started and meanwhile rules have been amended then that selection process should be allowed to continue without any interruption as the amended Rules had no retrospective operation. The conflicting view of different Single Benches of this Hon'ble Court regarding the time when the selection process actually commences was also resolved by the said Division Bench in the said decision wherein it was held that selection process commences only when the candidates are invited to appear on the basis of names sent by the Employment Exchange on requisition by the Managing Committee for recruitment of the teachers and if that stage has not reached then it will not amount to the commencement of selection process. Their Lordships further held that the selection process is deemed to have commenced if the posts have been advertised and the candidates have been called for interview and meanwhile if the rules are amended then that selection process should be allowed to continue without being affected by the amendment of the Rules unless the Act or the Rules have been amended with a retrospective effect.
In fact, identical views were expressed by the Hon'ble Supreme Court in the case of N.T. Devin Katti vs. Karnataka School Commission reported in (1990) 3 SCC 157 wherein it was held 5 that where the selection process is initiated by issuing an advertisement inviting applications, selection normally should be regulated by the Rules or Orders then prevailing. The Hon'ble Supreme Court held in the said judgment that the vested right of an eligible candidate to participate in the selection process as per the advertisement for the said post cannot be affected by subsequent amendment of the selection Rules. It was further held therein that though a candidate making application for a post pursuant to the advertisement, does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms contained in the said advertisement, he acquires a vested right of being considered for selection in accordance with the Rules as existed as on the date of advertisement. Thus, according to the said decision of the Hon'ble Apex Court, such an eligible candidate who is aspirant for the said post cannot be deprived of that limited right of being considered by amendment of Rules during the pendency of the selection process.
Thus if aforesaid decision of the Hon'ble Apex Court as well as the judgment of the Division Bench of this Hon'ble Court in the case of Snehansu Jas vs. State of West Bengal (Supra) are taken into consideration then this Court has no hesitation to hold that if any vacancy is created in any post prior to the amendment of the recruitment Rules and if the selection process is initiated for filling up the said post by publication of advertisement inviting applications from the eligible candidates then notwithstanding subsequent amendment of the Rules, the selection process which was initiated prior to such amendment of Rules, can be completed by following the Rules which were prevalent as on the date when such selection process was initiated meaning thereby when advertisement was issued inviting the eligible candidates to compete for the said post.
Now a complication has arisen because of the another subsequent Division Bench decision of this Hon'ble court in the case of Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia vs. Archana Ghosh (Saha) & Ors. reported in 2010 (3) CHN (Cal) 940; wherein another Division Bench of this 6 Hon'ble Court, by following three judgments of the Hon'ble Supreme Court, held that the decision of this Court in the case of Snehansu Jas vs. State of West Bengal (Supra), does not operate as binding precedent on the Court:-
i) in the case of Arjun Singh Rathore & ors. vs. B.N. Chaturvedi & Ors.;
reported in (2007) 11 Supreme Court Cases 605;
ii) in the case of Y.V. Rangaiah vs. J. Sreenivasa Rao reported in (1983) 3 SCC 284;
iii) in the case of State of Rajasthan vs. R. Dayal reported in (1997) 10 SCC 419; It was further held therein that selection process should be completed by following Rules which were in vogue as on the date when such vacancy was created, notwithstanding any change which was introduced during the pendency of the selection process.
It is no doubt true that the decisions of the Hon'ble Supreme Court which were relied upon by the subsequent Division Bench in the case of Kalinagar Girls' High School vs. Archana Ghosh (Supra), uniformly held that there is no slightest doubt that the post which fell vacant prior to the amendment Rules, would be governed by the old Rules and not by the new Rules. Since such a view was taken by the Division Bench of this Hon'ble Court in the case of Kalinagar Girls' High School vs. Archana Ghosh (Supra) by relying upon three decisions of the Hon'ble Supreme Court, this Court has very meticulously considered all those three decisions of the Hon'ble Supreme Court. On such consideration, this Court finds that in all those cases, the Hon'ble Supreme Court considered the incidence of recruitment by promotion. In none of those case, incidence of selection by 7 direct recruitment after change of the Rule regarding selection during the pendency of the selection process was under active consideration before the Hon'ble Supreme Court.
Recruitment may be direct or by promotion. In case of direct recruitment the right of the aspiring candidates for being considered for such selection is recognized when an advertisement is issued for filling up the post as per the old Rules provided such aspiring candidates possess requisite eligibility and/or have requisite qualification for applying for the said post; even though they do not have any vested right in such selection. Thus, the aspiring candidates do not enjoy any vested right even to participate in the selection process as per the old Rules, prior to publication of advertisement for the said post. But in case of promotional post the eligible employees in the feeder post have vested right for being considered for recruitment in the promotional post as per the Rules which existed as on the date when a vacancy was created in the promotional post notwithstanding the fact that selection process was initiated after change of selection Rules. As such, even if selection process is not initiated for filling up such promotional post by the concerned Authorities before the recruitment Rules are amended still then the vested right of being considered for selection in the promotional post which the eligible candidates enjoyed as on the date when the vacancy in the promotional post had occurred, cannot be affected merely because of change of recruitment Rules before initiation of selection process for such promotional post. Thus the right of the eligible candidates for being considered for the promotional post cannot be equated at par with the right of aspiring candidates for being considered for the post which are filled up by direct recruitment. Even the Selection Authority does not enjoy any vested right merely because of grant of prior permission by the District Inspector of School as the grant of such prior permission is merely an Administrative Act of the Authority. The only vested right which the School authority enjoys is the right to see that the vacant posts are filled up at an early date so that the functioning of the School is not suffered. The School authority has no vested right so far as the selection process is concerned, though the 8 aspiring candidates can claim such vested right after publication of the advertisement inviting applications for the said post. As such, grant of prior permission itself neither confers any right upon any candidate nor such prior permission confers any right on the management to complete the selection process by following the old Rules even after change of such selection process by subsequent amendment during the pendency of the selection process under the old Rules.
If that be so, then this Court is of the view that the principle which was laid down by the Division Bench of this Hon'ble Court in the case of Snehansu Jas vs. State of West Bengal (Supra) has still its binding effect in case of direct recruitment.
This Court cannot agree with the conclusion arrived at by the subsequent Division Bench of this Hon'ble Court regarding loss of the binding effect of the earlier Division Bench decision in the case of Snehansu Jas vs. State of West Bengal (supra) as none of the decisions of the Hon'ble Supreme Court relying on which such conclusion was arrived at by the subsequent Division Bench in Kalinagar Girls' High School dealt with the incidence of direct recruitment which was essentially different from recruitment by promotion which was under the active consideration before the Hon'ble Supreme Court in those three cases. Even the Division Bench in the subsequent decision did not consider any of the decisions of the Hon'ble Supreme Court which were relied upon by the earlier Division Bench in the case of Snehansu Jas vs. State of West Bengal (Supra). In fact, all those cases of the Hon'ble Supreme Court which was relied upon by the earlier Divisions, dealt with the incidence of direct recruitment.
This Court thus still holds the view that the decision in Snehansu Jas vs. State of West Bengal (Supra) still governs the filed of direct recruitment.
Since two Division Benches of this Hon'ble Court expressed conflicting views on this particular subject, this Court feels that a reference to a Larger Bench is necessary for resolving the conflict in those two decisions of two Division Benches of this Hon'ble Court. Accordingly let this file be placed before the Hon'ble Chief Justice of this Court for reference to a Larger Bench for answering the following questions:-
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i) whether the decision of the Division Bench of this Hon'ble 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?
ii) Whether the law laid down by the earlier Division Bench of this Hon'ble 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?
iii) 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?
Hearing of this writ petition stands adjourned sine die. Liberty is given to the parties to mention the matter after disposal of this Special Bench reference. Re: W.P. No. 11254(W) of 2010 Since an identical question is raised in the instant writ petition, hearing of this writ petition stands adjourned sine die. Let this mater be also placed before this Court for further consideration after the Special Bench reference is decided.
(Jyotirmay Bhattacharya, J.) 10