Calcutta High Court (Appellete Side)
Sri Asoke Sawoo vs State Of West Bengal & Ors on 10 November, 2010
Author: Dipankar Datta
Bench: Dipankar Datta
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT : HON'BLE JUSTICE DIPANKAR DATTA
W.P. No.16383 (W) of 2009
Sri Asoke Sawoo
Vs
State of West Bengal & ors.
with
W.P. No. 16937 (W) of 2010
Jukhia Kumar Narayan Banimandir
High School and others
Vs
State of West Bengal & ors.
with
W.P. No.17178 (W) of 2010
Andrew's High School (H.S.) and ano.
Vs
State of West Bengal & ors.
with
W.P. No.19654 (W) of 2010
The Managing Committee,
Dhantala High School & anr.
Vs
State of West Bengal & ors.
with
W.P. No. 18474 (W) of 2010
The Managing Committee of
Nirjharini Sarkar Balika Vidyalaya
Vs
State of West Bengal & ors.
with
W.P. No. 19652 (W) of 2010
The Managing Committee of
Khanjapur Union High School
Vs
State of West Bengal & ors.
For the petitioner : Mr. Ekramul Bari
[in W.P. 16383 (W) of 2009] Syed Mansur Ali
Ms. Tanuja Basak
For the petitioner : Mr. Subir Sanyal
2
[in W.P. 16937 (W) of 2010] Mr. Kamal Mishra
For the petitioner : Mr. Saktipada Jana
[in W.P. 17178 (W) of 2010] Mr. Subhrangsu Panda
For the State : Mr. K.J. Yusuf
[in W.P. 17178 (W) of 2010] Mr. Debasis Kar
For the petitioner : Mr. Ekramul Bari
[in W.P. 18474(W) of 2010] Ms. Tanuja Basak
For the State : Mr. Saikat Banerjee
[in W.P. 18474 (W) of 2010] Mrs. Juin Datta (Chakraborty)
Mr. Rajib Pal
For the petitioners : Mr. Ekramul Bari
[in W.P. 19652 (W) of 2010] Mr. K.M. Hossain
&
[in W.P. 19654 (W) of 2010]
For the State : Mr. Haridas Das
[in W.P. 19652 (W) of 2010]
For the State : Mrs. Santi Das
[in W.P. 19654 (W) of 2010] Mr. Amar Mitra
Judgment on : November 10, 2010
1. All these writ petitions were heard separately. I propose to dispose of the
same by this common judgment and order since the question of law
involved therein is the same.
2. The petitioner in W.P. No. 16383(W) of 2010 is the Secretary of the
Managing Committee of Dhanyakuria High School (hereafter the school).
Four posts of non-teaching staff in the school were vacant at the
material point of time, i.e. one post of librarian, two posts of Group 'C'
staff and one post of Group 'D' staff. The West Bengal Schools
(Recruitment of Non-teaching Staff) Rules, 2005 (hereafter the 2005
Rules) were the applicable statutory rules regulating recruitment to
such vacant posts. On approach being made by the school, the
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Additional District Inspector of Schools (S.E.), Basirhat sub-division,
District 24 Parganas (North) (hereafter the Additional District Inspector)
accorded prior permission to the school to conduct recruitment process.
Advertisements were published in a daily vernacular newspaper inviting
eligible candidates to offer their candidature for recruitment to such
vacant posts. Requisitions were also sent to the concerned employment
exchange to sponsor names of eligible candidates. Number of candidates
was sponsored by the Employment Exchange. A good number also
responded to the advertisement and offered their candidature.
Interviews were arranged by the Managing Committee of the school on
December 20, 21, 22 and 23, 2008. However, due to sudden death of a
close relative of the petitioner, the interviews were postponed and the
same was duly notified to all concerned by publishing a notice in a daily
vernacular newspaper. Thereafter, the Additional District Inspector was
again approached by the Headmaster of the school on December 24,
2008 for permission to hold interviews in terms of the 2005 Rules.
However, he did not respond. Feeling aggrieved by the inaction of the
Additional District Inspector, this petition dated September 7, 2009 was
presented for a direction upon the Additional District Inspector to
permit the Managing Committee of the school to hold the postponed
interviews.
3. Mr. Bari, learned advocate for the petitioner contended that the process
of selection having commenced in terms of the 2005 Rules, amendments
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effected in the West Bengal School Service Commission Act, 1997
(hereafter the 1997 Act) w.e.f. January 14, 2009 by the West Bengal
School Service Commission (Amendment) Act, 2008 (hereafter the
Amendment Act of 2008), thereby empowering the Regional School
Service Commissions constituted under the 1997 Act to select
candidates for recruitment to vacant non-teaching posts in non-
Government aided and unaided schools would have no application since
the provisions are not intended to operate retrospectively. He placed
reliance on a recent Division Bench decision of this Court dated July 9,
2010 in The Secretary of the Managing Committee, Kalinagar Girls' High
School, Nadia v. Archana Ghosh (Saha) and others, reported in (2010) 3
CAL LT 192 (HC), to contend that the vacancies having occurred prior to
the amendments effected in the 1997 Act and selection process having
commenced by issuance of advertisements inviting applications and
requisitioning names of candidates from the employment exchange, the
same ought to be filled up in accordance with the rules prevailing at the
time the vacancies had actually arisen. When informed that there are
decisions of this Court taking a somewhat different view which are
equally binding on me, he urged that the decision in Archana Ghosh
(supra) being the latest decision on the point, I ought to follow it.
4. The respondents in W.P. No. 16383(W) of 2010 have not been
represented and hence their version was not available to the Court.
5. I have heard Mr. Bari and perused the pleadings.
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6. It is the normal rule that if any vacancy in a post has arisen and the selection process has commenced in accordance with the applicable rules, such process ought to be taken to its logical conclusion in accordance therewith notwithstanding any amendment that might have been introduced in the rules while the process is on. The position would be different if the amended rules are to operate retrospectively.
7. Insofar as new/fresh recruitment is concerned the decisions in A. A. Calton v. The Director of Education reported in AIR 1983 SC 1143, P. Ganeshwar Rao v. State of Andhra Pradesh reported in AIR 1988 SC 2068, P. Mahendran v. State of Karnataka reported in AIR 1990 SC 405, B.L. Gupta v. M.C.D. reported in (1998) 9 SCC 223, and Gopal Krushna Rath v. M.A.A. Baig reported AIR 1999 SC 2093, are few of the authoritative decisions of the Supreme Court on the point.
8. The decisions in Y. V. Rangaiah v. J. Sreenivasa Rao reported in AIR 1983 SC 852, State of Rajasthan v. R. Dayal reported in (1997) 10 SCC 419, and Arjun Singh Rathore v. B.N. Chaturvedi reported in (2007) 11 SCC 605, on the other hand, are some of the authorities of the Supreme Court laying down the law in respect of appointment on promotion. I have noted that these decisions do not refer to the possible effect of non-commencement of selection process for appointment on promotion under the old rules, but I shall assume it to be the law laid down therein that posts which fell vacant prior to the amended rules would 6 also be governed by the old rules and not the new rules irrespective of whether selection process had commenced or not.
9. It is of relevance to note that none of the aforesaid decisions were rendered on litigations initially instituted by either the employer or the body entrusted to select candidates under the applicable rules. The various Courts were approached by candidates, either empanelled or unsuccessful, and it was on such petitions that law was ultimately declared, as noticed above. Whether who the person aggrieved is (approaching the Court of Writ seeking relief) would be of any effect or not falls for consideration here and I propose to deal with such issue at a later part of this judgment.
10. However, the decision in Archana Ghosh (supra) being the only decision cited before me by Mr. Bari, I consider it proper to note the law laid down therein now.
11. In Archana Ghosh (supra), the respondent/writ petitioner had participated in a selection process for recruitment to the post of Lady Attendant in Kalinagar High School. After the panel was prepared, the Secretary of the Managing Committee (being the appellant) who was also a member of the selection committee refused to forward the same to the concerned District Inspector for approval thereof. The ground on which such refusal was sought to be justified is that the 1997 Act had been amended by the Amendment Act of 2008 and that the task of selecting suitable candidates having been entrusted with the Regional School 7 Service Commission having jurisdiction, selection made by the body of selectors constituted by the Managing Committee of the school was not valid in law. The Court of Writ disposed of the petition with a direction upon the Managing Committee to forward the panel to the District Inspector for his consideration. Feeling aggrieved thereby, the appellant preferred an intra-court writ appeal. While dismissing the said appeal, the Division Bench noted the order passed by the Court of Writ in a previous round of litigation at the instance of one Smt. Rupa Ghosh. She had challenged the same selection process on the ground that the Managing Committee's right to select had ceased on promulgation of the Amendment Act of 2008. On behalf of the appellant it was contended before the Writ Court that the selection process had commenced prior to January 14, 2009 and, therefore, the Amendment Act of 2008 would have no application. While upholding the contention of the appellant, the Court of Writ dismissed the writ petition. In paragraph 34 of its decision the Division Bench expressed surprise why the appellant adopted a contradictory stand before Their Lordships in relation to the same selection process. In course of upholding the impugned order by dismissing the appeal, the Division Bench relied on Y. V. Rangaiah (supra), R. Dayal (supra) and Arjun Singh Rathore (supra) and observed that since the same hold the field, the decisions in Abdul Mannan Laskar v. State of West Bengal reported in 2000 (1) CHN 435 and 8 Snehansu Jas reported in 2001 (2) CLJ 558 would not operate as binding precedent (paragraph 30).
12. It is this decision of the Division Bench in Archana Ghosh (supra) that Mr. Bari urges that I should follow. Normally, I would be bound by the said decision. However, it is noted that the Division Bench refused to follow the earlier Division Bench decisions in Abdul Mannan Laskar (supra) and Snehansu Jas (supra) as binding precedent. I am reminded of the law laid down by the Supreme Court in its decisions in Vijay Laxmi Sadho (Dr.) v. Jagdish reported in (2001) 2 SCC 247 and State of Bihar v. Kalika Kuer reported in (2003) 5 SCC 448.
13. In Vijay Laxmi Sadho (Dr.) (supra), the Supreme Court had the occasion to observe as follows:
"33. As the learned Single Judge was not in agreement with the view expressed in Devilal case it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress than the said course was not followed. It is well settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of 'different arguments' or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs."
(underlining for emphasis by me)
14. The said decision has been followed in Kalika Kuer (supra). The law was reiterated in the following words:
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"......we would like to say that an earlier decision may seem to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the court or more aspects should have been gone into by the court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the later Bench of coordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways -- either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits."
(underlining for emphasis by me)
15. Law laid down in Vijay Laxmi Sadho (Dr.) (supra) and Kalika Kuer (supra) is clear. If a bench feels disinclined to agree with the decision of an earlier bench of coordinate jurisdiction on a question of law, it must, in keeping with principles of judicial propriety and decorum, either follow the decision with which it disagrees or refer the issue for resolution by a larger bench. To accept as a matter of principle that a bench is competent to hold that a decision of an earlier bench of coordinate jurisdiction would not operate on it as a binding precedent would be contrary to the law laid down in the aforesaid two Supreme Court decisions.
16. However, none of these two decisions spell out the course of action to be followed by a single judge of the High Court when his attention is invited to apparently conflicting decisions of two or more Division Benches of the High Court which are equally binding on him. I shall have to look for necessary guidance from authorities since the decisions 10 in Snehansu Jas (supra) and Abdul Mannan Laskar (supra) having been rendered by Division Benches are equally binding on me as precedents.
17. Snehansu Jas (supra) is a decision rendered by a Division Bench of this Court on a reference made by a learned Judge. His Lordship could not agree with the views expressed by two learned Judges in Kanaidighi Deshapran Vidyapith v. State of West Bengal reported in 1998 (2) CLJ 497, and Salauddin Miah v. State of West Bengal reported in 2000 (2) CHN 788. On consideration of various decisions the reference was answered by the Division Bench by ruling that :
".....selection process will commence 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 commencement of the selection process. The selection process is deemed to have commenced if the posts have been advertised and 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 Acts or Rules have been amended with a retrospective effect."
It was further held that law laid down in Kanaidighi Deshapran Vidyapith (supra) and Salauddin Miah (supra) is not good law.
18. At this juncture, having considered the law laid down in Snehansu Jas (supra), I may observe with utmost respect for Their Lordships of the Division Bench which decided Archana Ghosh (supra) that the observation [to the effect that the law declared in Snehansu Jas (supra) does not operate as a binding precedent on it] appears to be unnecessary for a decision on the appeal, since the issue raised therein could have been answered against the appellant (which turned out to be 11 the ultimate result) upon application of the law laid down in Snehansu Jas (supra) itself. The selection process had duly commenced and concluded and that by itself would have clinched the issue in the appeal.
19. The decision in Abdul Mannan Laskar (supra) followed the earlier decision in Narayan Baidya v. District Inspector of Schools (SE), South 24 Parganas reported in 2000 (1) CLT 487 (HC).
20. In Narayan Baidya (supra), interpretation of Section 9 of the 1997 Act came up for consideration before the Division Bench. Prior permission was accorded by the District Inspector to the concerned school to recruit an Assistant Teacher in English on December 9, 1996. On March 17, 1997, interview of 19 candidates was conducted. No panel was prepared. A writ petition was filed. The Court on September 29, 1997 directed the District Inspector to consider the case of the petitioner. The District Inspector passed an order on November 27, 1997 holding that the said post ought to be filled up on the recommendation of the Regional School Service Commission having jurisdiction. The order was questioned by filing a further writ petition. The learned Judge applied Section 9 of the 1997 Act and dismissed it by the order under appeal dated September 18, 1998.
21. The Division Bench considered the decision in Y. V. Rangaiah (supra) and distinguished the same by observing that neither was the Court concerned with a case for promotion nor a case when a person has 12 acquired a vested right to be considered for promotion. The decisions in A. A. Calton (supra) and P. Mahendran (supra) were also considered and distinguished on the ground that the fact situation of the case at hand was different.
22. As a matter of fact, the Division Bench found that the selection process was not complete by January 8, 1998 when the procedure for selection of teachers framed under the 1997 Act became effective. In paragraph 20, it ruled that :
"*****Rule 28 of the Management Rules stands substituted. A substitution may amount to an amendment but the normal rule of interpretation of substitution is that it will have effect as if the same was existing from the beginning. In the instant case, the selection process had not been completed. Had the selection process been completed, the matter might have been different keeping in view the provision of section 8 of the said Act read with the procedure for selection framed by the Governor. Furthermore, both sections 7 and 9 of the said Act contain non-obstante clauses which are of wide amplitude. Keeping in view the provisions of the said Act vis-a-vis the direction issued by the Director of School Education, there cannot be any doubt that in case of conflict the former will prevail".
(underlining for emphasis by me)
23. The Division Bench even after noting that on November 27, 1997 (when the impugned order was passed by the District Inspector) the 1997 Act could not have been given effect, as the rules for selection had not been framed, declined to grant relief.
24. However, the Division Bench while deciding Archana Ghosh (supra) did not specifically notice Narayan Baidya (supra) where Y. V. Rangaiah 13 (supra) as well as A. A. Calton (supra) and P. Mahendran (supra) was distinguished.
25. In paragraph 20 of the decision in Snehansu Jas (supra), the Division Bench's reading of the ratio of the earlier decision in Narayan Baidya (supra) is reflected. It observed thus:
"20.***** Therefore, in this case also same view was taken that if the selection process is not complete and if the rules have been amended then in that case, the selection shall be governed by the Act of 1997 and not in terms of the earlier rules".
(underlining for emphasis by me)
26. In Abdul Mannan Laskar (supra), the Division Bench was considering an appeal against an order allowing a writ petition. The learned single Judge had held that Section 9(2) of the 1997 Act would have no application since the selection process had started long prior to its enforcement. However, while allowing the appeal, the Division Bench held that right of the candidates for being considered could have arisen only after their names were sponsored and/or on issuance of advertisement and as prior to that date the 1997 Act had been enforced, question of selection being made in violation thereof did not arise and the learned single Judge was not right in his decision.
27. There are two other Division Bench decisions of this Court on the point.
One is Basudev Bag v. Bhaskar Chandra Kar reported in 1996 (1) CLJ 230 and the other is an unreported decision dated 14th September, 2010 in M.A.T. No. 343 of 2009 (Contai Kshetra Mohan Vidya Bhaban & ano. v. State of West Bengal & ors.). The latter decision, rendered after I 14 had reserved judgment on W.P. No.16383 (W) of 2010 but before judgments were reserved on the other petitions under consideration, was brought to my notice while I was hearing a separate petition. I consider it appropriate to refer to the said decision here since it supports Mr. Bari's claim.
28. The Division Bench in Basudev Bag (supra) in the facts and circumstances of the appeal held that since selection process had commenced (prior to coming into force of the rules published on 1st August, 1981) with issuance of prior permission by the District Inspector on 14th May, 1981 and advertisement had been published in terms of the existing rules on 1st June, 1981, the learned single Judge did not commit any error in allowing the writ application. However, in the subsequent decisions in Narayan Baidya (supra) and Snehansu Jas (supra) the said decision was noticed and it was ruled that selection process commences from the date candidates who are sponsored in response to requisition sent to the employment exchange and those who offer their candidature in pursuance of advertisement that is published are invited to appear for the interview.
29. The decision in Contai Kshetra Mohan Vidya Bhaban (supra) followed the decision in Archana Ghosh (supra) holding that the issue is no longer res integra. The objection of the learned advocate for the State in respect of applicability of the said decision was rejected without any 15 discussion in detail. But that by itself does not afford me ground to ignore the decision.
30. On a conspectus of the aforementioned 6 (six) Division Bench decisions of this Court, it does appear to me and I say so with utmost respect for the learned Judges comprising the Benches that the law declared on the point is not consistent.
31. In my humble understanding of the aforesaid decisions, the Division Benches have from time to time either laid down the law in wide terms or in a constricted manner. The decision in Bausdev Bag (supra) has been sought to be explained in Narayan Baidya (supra). Abdul Mannan Laskar (supra) has followed the latter decision. Snehansu Jas (supra) does not expressly disagree with Narayan Baidya (supra) and Abdul Mannan Laskar (supra) but answers the reference in a manner that seems to me to be inconsistent with the said decisions. Over a period of time, different tests have been applied. While Snehansu Jas (supra) lays stress on commencement of selection process for non-applicability of the amended rules, the previous two decisions considers completion of selection process to be the test. Archana Ghosh (supra), on the contrary, ruled that the rules existing at the time the concerned vacancy arose ought to be followed for filling up the same. Snehansu Jas (supra) and Abdul Mannan Laskar (supra) though have not been declared per incuriam in Archana Ghosh (supra) but the very observation therein that the same do not operate as binding precedent is sufficient to create 16 confusion in the mind of a learned single Judge. The decision in Contai Kshetra Mohan Vidya Bhaban (supra) has again followed Archana Ghosh (supra). Apart from the decisions in Basudev Bag (supra), Abdul Mannan Laskar (supra) and Contai Kshetra Mohan Vidya Bhaban (supra), each of the Division Benches in Narayan Baidya (supra), Snehansu Jas (supra) and Archana Ghosh (supra) have taken a view which appears to me to be inconsistent with the view taken in a previous decision by a bench of coordinate jurisdiction. A single Judge would thus be hesitant in preferring one to the other, being technically bound by all the decisions of the Division Benches, particularly when it is not the law that amongst several decisions of benches of coordinate jurisdiction on a point of law, the later decision must be preferred to the former [see: Bholanath Karmakar v. Madan Mohan Karmakar, reported in 1987 (2) CLJ 332]. Since all the earlier Division Bench decisions of this Court are not consistent and the views expressed therein do not admit of any reconciliation, but each of them is binding on me, I do feel free to follow that decision which according to me is better in point of law having regard to the dicta in Bholanath Karmakar (supra). I have thus no hesitation in overruling the contention of Mr. Bari that the view expressed in Archana Ghosh (supra) [since accepted by the Division Bench in Contai Kshetra Mohan Vidya Bhaban (supra)] being the recent and later view ought to be followed.
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32. The further contention urged by Mr. Bari that those rules existing on the date the vacancies arose, without anything more, should be the guiding factor for filling up the posts, if accepted, is sure to produce abnormal results. Whether or not a particular post shall be filled up is in the absolute domain of the employer. There may be good reasons for an employer to keep a post vacant. Suppose a vacancy has arisen in 1998 and no process is commenced to fill up a non-promotional post, meant to be filled up only by direct recruitment. No one can seek a Mandamus from the Court of Writ to compel the employer to fill up such post. Now if the employer seeks to fill up the post in 2010 in accordance with amended or new rules for recruitment which have been made operative from say 2008, could any one lawfully claim that the post must be filled up in accordance with the rules that were in existence in 1998 when the vacancy arose? The answer possibly cannot be in the affirmative. No process of selection having commenced, there is no question of any right of consideration having accrued in favour of any candidate. Accepting the contention of Mr. Bari would mean imposing unreasonable fetters on a candidate who may have acquired a right of consideration under the said rules of 2008. That is precisely the reason why Courts have added the rider of 'commencement of selection process' in its decisions while deciding the issues before it, referred to above, suggesting that unless the amending rules are to apply with 18 retrospective effect, the rights of the candidates who have offered their candidature should not be impaired.
33. The position may be entirely different in case of promotion to a vacant post and that is why no stress appears to have been laid on the aspect of 'commencement of selection process' in the decisions referred to in paragraph 8 supra. By amending the rules of recruitment after keeping a promotional post vacant for quite some time, the right of an incumbent in the feeder post to be considered for promotion may be impaired and such incumbent may validly raise a claim that the promotional post was not filled up to deny him promotion and that the amended rules have been framed in a manner so as to exclude him from the zone of consideration. Right to be considered for promotion is included in Article 16 of the Constitution, and the bonafides of the employer would definitely fall for consideration if a challenge is thrown by such aggrieved incumbent against the action of the employer in not filling up the post in accordance with the rules that existed on the date the promotional post fell vacant.
34. In my considered view, appointment to promotional posts and new/fresh appointment cases ought to be dealt with differently and not by applying the same yardstick keeping in mind the varied nature of rights of the aspirants for such posts.
35. The contention of Mr. Bari is misconceived and, accordingly, stands rejected.
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36. There is, however, one important distinction that I have noted above.
None of the aspirants for the respective posts are before me asserting that selection process to fill up the posts having commenced, the 2005 Rules should be followed. The petitioner before me is the Secretary of the Managing Committee of the school. Question here is whether the Managing Committee of the school can claim that the concerned vacancies having arisen before enactment of the Amendment Act of 2008, it has acquired a vested right to select suitable candidates for recruitment to non-teaching posts in terms of the 2005 Rules and that such a right cannot be denied because the recruitment rules have undergone a change, post grant of previous sanction, and relief ought to follow from the Writ Court irrespective of when the petition is presented before the Court.
37. For answering this question as well as the question as to whether delay would disentitle the petitioner to relief, it would be worthwhile to look into the relevant recruitment rules vis-à-vis the facts of the present case. It is no doubt true that provisions contained in the 2005 Rules empowered the Managing Committee to select a suitable candidate and offer him appointment to the post of non-teaching staff. The Managing Committee of the school here was, in fact, permitted by the Additional District Inspector to proceed with the process of recruitment in accordance with the 2005 Rules for filling up the vacant posts. The selection process duly commenced with requisition of names of 20 candidates from the employment exchange as well as publishing advertisement inviting applications. Admittedly, the interviews could not be conducted and were postponed. The prayer dated December 24, 2008 before the Additional District Inspector seeking approval did not yield any positive result. In due course of time the Amendment Act of 2008 became effective from January 14, 2009. The West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Non-teaching Staff) Rules, 2009 (hereafter the 2009 Rules) were introduced w.e.f. July 9, 2009 in supersession of all previous rule, orders, notifications and directions on the subject. It was two months thereafter that the Court received the present petition.
38. With the introduction of the 2009 Rules, the 2005 Rules stood superseded. The effect of such supersession, in my view, would be decisive. I may observe at this stage that in none of the Supreme Court decisions referred to above did the effect of supersession of the previous rule directly fall for consideration. In a way, all the decisions dealing with amendment of rules and not supersession of rules are distinguishable.
39. It has time and again been laid down that there must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can seek a Mandamus.
40. The normal rule that I have adverted to in paragraph 5 (supra) is likely to have application in cases where, by the amendment of the 21 recruitment rules after the selection process has commenced, the eligibility criterion is altered thereby adversely affecting the rights of candidates to be considered in accordance with the criterion that was prevailing at the time they offered their candidature, or where the process of selection has been conducted strictly in accordance with law but the empanelled candidates are sought to be deprived of appointment merely on the ground of amendment of recruitment rules which are not to operate with retrospective effect.
41. However, in my opinion, such rule would not apply in a case where the earlier rules are superseded and a new set of rules are put in place, whereafter a writ petition is filed by the appointing authority to allow it to continue with the process of selection. On the date the petitioner presented this petition before this Court, the 2005 Rules were no longer in force. The Additional District Inspector, no doubt, was under an obligation in terms of Rule 8(8)(b) of the 2005 Rules (so long the 2005 Rules were in force) either to approve or not to approve the prayer of the school to conduct the postponed interviews. He remained inactive, and the Managing Committee also did not choose to enforce its right by initiating appropriate legal action. The 'previous sanction' that was granted by the Additional District Inspector under Rule 8(1)(b) of the 2005 Rules, by efflux of time, must be held to have lapsed w.e.f. the date of supersession of the 2005 Rules. It has to be borne in mind that the 2005 Rules stand superseded not by a simple executive action but 22 in furtherance of giving effect to a statutory mandate. Under the 2009 Rules, which are the applicable rules now, the Additional District Inspector has no role to play since the task of selection of candidates has been entrusted with the Regional School Service Commission having jurisdiction. The basic question being one related to affectation of one's right vis-à-vis initiation of action to claim Mandamus at the right time, there can be no escape from the conclusion that as and when the 2009 Rules were made operative the right of the Managing Committee to select candidates ceased for all times to come. On the date the writ petition was presented by the petitioner, the Managing Committee of which he is the Secretary had no subsisting right in law to conduct selection. Retrospective application of the 2009 Rules does not and cannot arise on facts and in the circumstances. The 2009 Rules have taken effect from July 9, 2009 and the right the Managing Committee possessed as on that date is of paramount importance. It had not finalised selection of candidates by that date. Approval of the District Inspector to proceed further had also not been obtained. If indeed approval had been granted by the Additional District Inspector under Rule 8(8)(b) of the 2005 Rules and a panel prepared in accordance with the rules then existing, the provisions contained in the 2009 Rules regulating selection of candidates for appointment of non- teaching staff may not have affected the process that had already been initiated. Presentation of this petition after supersession of the 2005 23 Rules thus is fatal for the cause that the petitioner has sought to espouse.
42. Moreover, merely because under the 2005 Rules the Managing Committee of the school had a legally protected right to select a candidate for appointment as non-teaching staff would not clothe the petitioner with any judicially enforceable right to claim that since the selection process had started prior to enactment of the Amendment Act of 2008 to fill up the four posts of non-teaching staff, the process ought to be taken to its logical conclusion in accordance with the 2005 Rules. When the stage had been reached for conducting interviews (of the sponsored candidates and those who offered their candidature by responding to the advertisements published) but the same stood postponed, the right of the Managing Committee to select as well as right of the aspirants for the posts to be considered for appointment was inchoate, since the process could not have proceeded further without the approval of the Additional District Inspector. By the Amendment Act of 2008, the right of the aspirants for the posts is also not curtailed in any manner whatsoever. As and when the posts are advertised by the appropriate Commission in terms of the 2009 Rules, they shall be free to offer their candidature. It is noteworthy that by the amendments, the qualifications of the aspirants for the posts have not been altered. What has been altered is the body of selectors. Such an inchoate right cannot be enforced by a writ of Mandamus at the instance of the petitioner 24 who, presently, can only genuinely be interested in recommendation of duly qualified and fit candidates selected by the Regional School Service Commission having jurisdiction for filling up the vacant posts, instead of being aggrieved in not being able to select candidates by reason of supersession of the 2005 Rules.
43. There is one other aspect. The Writ Court's jurisdiction is not to be exercised merely on the making of a legal point. Public interest is of paramount importance and the relief that the Court may grant must be in furtherance of public interest. It was indeed a bitter experience for all concerned that the Managing Committees of a good number of schools had been misusing the power conferred on them to select and appoint non-teaching staff by resorting to nepotism and mal-practices. By and large, selection of teachers made by the different Commissions under the 1997 Act has been found to be in order. It is of course true that in number of cases the Court of Writ has interfered for setting things right, but the general apprehension of merit being sacrificed at the expense of mediocrity by a coterie for achieving their vested interests has diminished substantially. Noticing the trend of misuse of power by the Managing Committees in selecting candidates for appointment who were not sponsored by the Employment Exchanges but permitted to appear at the interview in compliance with orders passed by the Writ Court, a Division Bench of this Court in its judgment dated March 17, 2008 in FMA 768/2007 (Tulsi Roy v. Krishanu Roy & ors.) observed that "it is 25 high time that the State should rethink and set up a Commission for appointment of non-teaching staff in the aided schools of the State or to entrust such duty on the School Service Commission set up for the purpose of appointment of teaching staff. This would, in our view, resolve the controversy once for all." The legislature, whether respecting the said observation or otherwise, it is unknown, has now expressed the will of the people by amending the 1997 Act by the Amendment Act of 2008. The 2009 Rules have also been framed in terms of delegated power. The petitioner is now asking the Court to undo what the legislature in its wisdom has ordained. That is plainly impermissible.
44. The Division Bench in Narayan Baidya (supra), it appears, declined to grant relief in almost similar circumstances. In my humble understanding of the statutory provisions applicable here, it is only when selection of suitable candidates has been made finally by the duly constituted selection committee in terms of the 2005 Rules by preparing a panel of three candidates upon consideration of the candidature of all the aspirants for the post sought to be filled up that the 2005 Rules would survive for the limited purpose of consideration of the panel by the District Inspector for approval in terms of Rule 24(2) of the 2009 Rules. Sub-rule (2) of Rule 24 of the 2009 Rules, in my view, would save selections already made under the 2005 Rules, which are awaiting approval of the District Inspector. If the aspirants' candidature has not been considered at all or an intermediate stage prior to final selection is 26 reached, the process has to be scrapped and the vacancy filled up in accordance with the Amendment Act of 2008 read with the 2009 Rules to give effect to the will of the people.
45. Having considered the petitioner's claim, I am of the view for reasons discussed above and also in the light of the decision in Narayan Baidya (supra) that final selection not having been made as yet, relief in terms of prayer (a) of the petition seeking an order on the Additional District Inspector to permit the school to hold interview in terms of the previous sanction dated July 1, 2008 cannot be granted. W.P. No. 16383(W) of 2010 stands dismissed, without order for costs.
46. In W.P. No. 16937 (W) of 2010, the concerned school conducted interview for recruiting a Group D staff (peon) on December 27, 2009. However, the panel could not be prepared because the nominee of the local panchayat did not submit his individual score-sheet. A prayer was submitted on behalf of the school on July 6, 2010 before the Additional District Inspector of Schools (S.E.) Contai sub-division, Purba Medinipur to grant permission to hold fresh interview. Since no reply was received in response thereto, the petitioners have approached the Court by filing this petition on August 10, 2010. They have prayed for an order on the said Additional District Inspector to allow the prayer for holding fresh interview.
47. So far as the other petitions [W.P. No. 17178 (W) of 2010, W.P. No. 19654 (W) of 2010, W.P. No. 18474 (W) of 2010 and W.P. No. 19652 (W) 27 of 2010] are concerned, the respective petitioners in comparison to the petitioners in W.P. No. 16383 (W) of 2010 and W.P. No. 16937 (W) of 2010 stand on worse footing. They had approached the concerned District Inspectors in terms of Rule 8(1)(b) of the 2005 Rules seeking 'previous sanction' to fill up non-teaching posts, vacancy in respect whereof had occurred before enactment of the Amendment Act of 2008. The District Inspectors did not grant 'previous sanction'. Ultimately the Court has been approached by them on different dates between August 12, 2010 and September 17, 2010.
48. For the reasons I have assigned to dismiss W.P. No. 16383 (W) of 2010, these petitioners do not have any valid subsisting right to claim that the vacancies having arisen before the Amendment Act of 2008 came into existence, the posts ought to be filled up in accordance with the 2005 Rules. These petitions also stand dismissed, without order for costs.
49. Photostat copy of this judgment and order shall be retained with the records of all the other petitions barring W.P. No. 16383 (W) of 2010, duly countersigned by the Assistant Court Officer.
Urgent photostat certified copy of this judgment and order, if applied for, may be furnished expeditiously.
(DIPANKAR DATTA, J.)