Calcutta High Court (Appellete Side)
Prabir Kumar Mitra & Anr vs The State Of West Bengal & Ors on 9 December, 2014
Author: Dipankar Datta
Bench: Subhro Kamal Mukherjee, Nishita Mhatre, Dipankar Datta
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W. P. No. 31299 (W) OF 2014
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Prabir Kumar Mitra & Anr.
-vs.-
The State of West Bengal & Ors.
Mr. D. N. Roy Mr. Ganapati Chaudhury.
....For the Petitioner.
Mr. Joytosh Majumder Ms. Sulagna Bhattacharya.
.....For the Respondent No.1.
The first petitioner is the Secretary of the Managing Committee, Badartala High School (H.S.) (hereafter the said school), while the second petitioner is the teacher-in-charge thereof.
The present roll strength of the said school is approximately 1640 and it is entitled to recruit 2 (two) Group-D staff. In fact, 2 (two) posts of Group-D staff have been sanctioned by the Government for the said school of which one is vacant since October 1, 2006 and the other is also to fall vacant in the near future. The West Bengal Schools (Recruitment of Non-teaching Staff) Rules, 2005 2 (hereafter the 2005 Rules) were the applicable rules regulating the procedure for appointment of non-teaching staff on the material date, i.e. October 1, 2006. In terms thereof, the managing committee of a recognized non-Government school had the authority to conduct the process of selection for filling up a non-teaching post upon obtaining a prior permission from the concerned District Inspector of Schools (hereafter the District Inspector). It appears that the petitioners had been writing to the District Inspector for issuance of permission to fill up the vacant post of Group-D staff but since prior permission was not granted, this writ petition dated November 25, 2014 has been presented seeking a direction on the District Inspector to accord prior permission to fill up the non-teaching post of Group-D staff lying vacant since October 1, 2006 on the basis of the prayer contained in a letter dated June 26, 2007, followed by a reminder dated August 6, 2014.
Mr. Roy, learned advocate appearing for the petitioners contended that notwithstanding the introduction of the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Non-Teaching Staff) Rules, 2009 (hereafter the 2009 Rules), the petitioners are not obliged to appoint a candidate recommended by the School Service Commission and are entitled to recruit a non-teaching staff to fill up the vacant Group-D post on the authority of the Division Bench decision of this Court reported in 2012 (3) CLJ (Cal) 482 [Asoke Sawoo -vs.- The State of West Bengal & Ors.]. Specific reliance has been placed on paragraph 51 of the decision reading as follows:
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" .............Following the decisions of the Supreme Court mentioned hereinbefore we hold that the selection process should be initiated and completed under the Rules which were in force when the vacancy in question arose."
Mr. Majumder, learned Assistant Additional Government Pleader opposes the writ petition. According to him, the decision of the Supreme Court reported in (2007) 11 SCC 522 (Marripati Nagaraja -vs.- Government of Andhra Pradesh) was not considered by the Division Bench, wherein it was held as follows :
"14. It is now a well-settled principle of law that the Rules which would be applicable for selecting the candidates would be the one which were prevailing at the time of the notification for inviting applications for recruitment. ..............."
Perusal of the decision in Asoke Sawoo (supra) does not reveal that any of the parties invited the attention of the Division Bench to the decision in Maripatti Nagaraja (supra).
The decision in Ashoke Sawoo (supra) is a complete answer to the grievance voiced by the petitioners. Since the vacancy in question arose prior to introduction of the 2009 Rules, Mr. Roy is justified in his contention that the District Inspector ought to be directed to issue the prior permission.
However, it cannot also be lost sight of that while delivering the decision in Asoke Sawoo (supra), the Division Bench did not have the benefit of considering the decision in Marripati Nagaraja (supra).
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To my mind, although the issue raised in this writ petition is squarely covered by the decision in Asoke Sawoo (supra), such decision was rendered by the Division Bench relying on decisions of the Supreme Court in cases concerning promotional appointments and not direct recruitment (first appointment) in service. Marripati Nagaraja (supra) is a decision in a matter concerning direct recruitment and has to be considered an authority on the point, which was binding even on the Division Bench.
Since the decision in Asoke Sawoo (supra) proceeds to lay down the law that for filling up a vacancy by direct recruitment it would be the rules that were prevailing as on date the vacancy arose and not the rules prevailing on the date selection process to fill up such vacancy commenced by issuance of advertisement, which seems to be not in sync with the law recognized in the decision in Marripati Nagaraja (supra), propriety and decency demand placement of the writ petition before the Hon'ble the Chief Justice for appropriate order. I may place on record that similar issue has been referred to the larger Bench of Hon'ble Subhro Kamal Mukherjee, Hon'ble Nishita Mhatre and Hon'ble Harish Tandon, JJ. on a reference made by Hon'ble Jyotirmay Bhattacharya, J., which is pending for decision.
Accordingly, while ordering the writ petition to be placed before the Hon'ble the Chief Justice, I pass an interim order as follows. The School Service Commission shall be at liberty to include the subject vacancy in the next 5 Regional Level Selection Test (I have been informed that it would commence shortly), but no recommendation shall be made in regard to such vacancy for appointment without obtaining the leave of the relevant Court.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) 6