RINA DAY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In the instant case the writ petitioner has challenged the decision dated 18th March, 1997 passed by the Secretary, Department of School Education, Government of West Bengal being Annexure 'M' page 36 of the writ application whereby and whereunder the contentions of the writ petitioner namely, the post of Headmistress of a school being a single cadre post was not possible to be reserved and the contention that the District Inspector of Schools (S.E.), Cooch Bihar had the right to cancel, modify and vary the reservation process by deserving the posts, were rejected by the said Authority. The fact of the writ application not in dispute. A post of Headmistress was buying vacant. The District Inspector of Schools (S.E.) Cooch Bihar hereinafter referred to as the 'District Inspector of Schools' concerned following the roster rule reserved the said post for scheduled caste candidate and accorded permission in favour of the school authority to fill up the said vacancy by the decision dated 13th December, 1991. The school authority, however, took a resolution on 17.9.91 to change the said vacancy as reserved for scheduled caste candidate to a general candidate and had referred the matter to the District Inspector of Schools concerned, who in turn by the decision dated 18th January, 1992 dereserved the vacancy and directed to fill up the vacancy by general candidates upon observing that the next vacancy (teaching) must be filled up by scheduled caste candidate. In pursuance of such decision, the school authority advertised the post in the newspaper seeking the names from general candidates and simultaneously invited the names from the National Employment Exchange. The panel was prepared following the recruitment rule with such candidates of general category wherein the writ petitioner stood first in the panel. However, second candidate of the panel though he was not a candidate belonging to the scheduled caste community challenged such selection upon questioning the entire panel and the decision of the District Inspector of Schools concerned contending, inter alia, that the District Inspector of Schools had no power and jurisdiction to dereserve a vacancy, which was marked for scheduled caste candidates. This writ petition was numbered as C.O. No. 1359 (W) of 1993. The writ petitioner also moved another writ petition being C.O. No. 368 (W) of 1993 praying necessary directions to the District Inspector of Schools concerned to accord approval of the panel. Both the matters were taken up together and by the judgment dated 21st November, 1996 S.K. Sen, J. (as His Lordship then was) disposed of the matters directing the Secretary, Education Department, Government of West Bengal to decide the grievances of the present writ petitioner as well as the second candidate of the panel. In terms of such direction of this Court, the impugned decision of this writ application was passed by the Secretary, Education Department, Government of West Bengal whereby and whereunder it has been held that the post of Headmistress since not a single cadre post, the same can be tagged with the other teaching post for maintaining the roster rule upon relying the Government Memo issued under Memo No. 40/TW/EC Cal. dated 22nd January, 1991. By the impugned decision it is further held that the District Inspector of Schools had no power to dereserve the vacancy. Hence, the entire panel was cancelled challenging such the present writ application.

(2.) The only question for decision lies as to whether the post of Headmaster or Headmistress is a single cadre post or not. The writ petitioner has placed a judgment of the Division Bench of this Court passed in F.M.A.T No. 642 of 1996 on 4.6.96 by the Bench comprising of S.B. Sinha, J. (as His Lordship then was) and S.N. Chakraborty, J. (as His Lordship then was). Relying upon the said judgment of the Division Bench, it is contended that since there is a decision of the Division Bench of this Court declaring that the post of Headmaster of a school cannot be reserved, the impugned decision of the writ application is not sustainable. Furthermore, it is submitted that a judgment of the Division Bench is binding to a Single Bench of this Court and in the event of any contrary view by this Single Bench, the matter should be referred to a Larger Bench for adjudication. The writ petitioner further submitted the judgments of the Apex Court reported in (Dr. Chakradhar Paswan v. State of Bihar, 1988 AIR(SC) 959, ; Post Graduate Institute of Medical Education and Research v. Faculty Associate, 1988 4 SCC 1, and S.R. Murthy v. State of Karnataka,1999 4 SCT and others, to contend that a single cadre post cannot be reserved. There is no doubt about the legal proposition as settled by the Apex Court. A single Judge cadre post cannot be reserved but the question is whether the post of Headmaster of Headmistress of school is a single cadre post or not. The answer goes in the negative in view of positive Memorandum issued by the Government being Memorandum No. 40-TW/EC Cal. dated 22nd January, 1991 issued by the Scheduled Caste and Scheduled Tribes Welfare Department, Government of West Bengal, which speaks as follows :-

(3.) The post of Headmaster, the post of Assistant Headmaster and the posts of Assistant Teachers in any school shall be grouped together to constitute the teaching category, while all the other posts (including the post of Librarian) in the said school shall constitute a separate Group under the non-teaching category.