Calcutta High Court (Appellete Side)
Salauddin Mollah vs State Of West Bengal & Ors on 7 July, 2010
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
010 WP 11379 (W) of 2009
Salauddin Mollah v. State of West Bengal & ors.
Mr. A.K. Maity ..For the petitioner.
Ms. Asha G. Gutgutia ..For the State
This writ application is directed against an order passed by the respondent no. 3 under his
memo no. 705 dated April 20, 2009 inclining to take a decision in the matter of approval of a panel prepared for appointment of a non-teaching staff (Additional Clerk) in Ukhura N.N. High School, Burdwan.
The permission was given by the respondent no. 3 on September 18, 2008 to fill up the aforesaid post. Pursuant thereto, the school under reference requested the concerned employment exchange for sponsoring the names of the eligible candidates. The concerned employment exchange sponsored the name of the petitioner along with other eligible candidates on December 31, 2008. On January 7, 2009 an advertisement was passed in "Bartaman", a daily vernacular inviting application from the eligible candidates for the post under reference. An interview took place on February 15, 2009. The petitioner appeared in the interview along with other eligible candidates. A panel was prepared on February 25, 2009 consisting of three selected candidates. The same was sent to the respondent no. 3 for approval. By virtue of the impugned order, the respondent no. 3 informed the respondent no. 6 that the panel could not be approved in view of the instructions given by departmental circular no. 126(20)-SE(S) dated February 4, 2009 of the Government of West Bengal, School Education Department, Secondary Branch.
It is submitted on behalf of the petitioner that the above departmental circular dated February 4, 2009 purported an information with regard to amendment of the West Bengal School Service Commission, Act, 1997 and West Bengal School (Control of Expenditure) Act, 2005 in the matter of appointment of non-teaching staff in secondary schools of West Bengal. According to him, the above amendment was published in the official gazette on January 1, 2009. The date of that amendment was declared subsequently. Thereafter, admittedly the selection process under reference had been initiated before the above amendment took place. According to him, the law prevailing at the time of initiation of the selection process should be followed.
The learned advocate appearing for the petitioner relies upon decisions of Kameshwari Devi (Smt) @ Kaleshwari Devi and others vs. Barhani (Smt) Dead By LRS. and others 2 reported in (1997)10 SCC 273 and Sehanshu Jas vs. State of West Bengal and others reported in (2001) 2 CLJ 558 in support of his submission.
On the other hand, it is submitted by Ms. Asha G. Gutgutia, the learned junior government advocate, High Court, Calcutta that the amendment of the West Bengal School Service Commission Act, 1997 took place on January 1, 2009. But by virtue of a departmental circular issued on July 15, 2008 by the Government of West Bengal, Higher Education Department, Secondary Branch, in all concerned were directed not to initiate any selection process for appointment of non-teaching staff in secondary school in the State. Therefore, in view of the above circular, the initiation of the selection process under reference could not be sustained in law.
I have heard the learned counsels appearing for the respective parties and considered the facts and circumstances of this case. Admittedly, the prior permission to fill up the post under reference was given by the District Inspector of Schools (SE), Burdwan on September 18, 2008. It is also not in dispute that the selection process was initiated on the basis of the above permission. It is also not in dispute that the concerned employment exchange sponsored the names of the eligible candidates on December 31, 2008. Therefore, the selection process under reference had been initiated before the amendment of the West Bengal School Service Commission (amendment) Act, 1997 and West Bengal Schools (Control of Expenditure) Act, 2005. Needless to point out that the West Bengal School Service Commission (amendment) Act, 2008 was published in the official gazette on January 1, 2009. In accordance with the provisions of sub-section (2) of section 1 of the above Act, the amendment came into force from the appointed date notifying in the official gazette subsequently. In view of the above facts of this case, the selection process under reference should have been concluded in accordance with the rules prevailing at the time of initiation of such selection process prior to the aforesaid amendment. Therefore, the departmental circular dated February 4, 2009 mentioned in the impugned order could not be a valid ground for taking steps by the respondent no. 3 in the matter of non-approval of the panel under reference. Since, the selection process under reference was initiated on the basis of the prior permission given by the respondent no. 3, who was the authority to give such prior permission, the departmental circular dated February 4, 2009 had no manner of application in case of non-consideration of the panel under reference by the respondent authority.
3In view of the above, the impugned order is quashed and set aside. The respondent no. 3 is directed to take a decision with regard to the panel under reference in accordance with law within a period of two months from the date of communication of this order.
The writ application is thus disposed of.
There will be no order as to costs.
Urgent certified photostat copy of this order be given to the petitioner, if applied for.
(Debasish Kar Gupta, J.)