SNEHANSU JAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is a reference made by the learned single Judge, on account of conflicting judgment of this Court, to a Division Bench for resolving the conflict. For convenient disposal of this reference few necessary facts may be noticed. That a vacancy to the post of Headmaster arose in Govind Nagar Muslim High School and the school authorities sought prior permission from the District Inspector of School (DIS) for filling the post. The DIS granted permission but it was qualified that the post shall be reserved for Schedule Caste as per roster vacancy vide his memo No. 630S dated 1.10.1992. The school authorities could not recruit the Head Master due to non-availability of the candidate. Therefore they sought for de-reservation of the post on 10th October, 1993 but the DIS again asked them to fill the vacancy as per the roster vacancy by his letter dated 26th July,1994. The Managing Committee then filed a writ petition being W. P. No. 237 (W) of 2000 (SK. Manataj Ali & Anr. v. State of West Bengal & Ors.) which was disposed of by an order dated 25th April, 2000 with a direction upon the Secretary, Education Department to treat the writ petition as the representation and to dispose of the same in accordance with law. The Secretary, Education Department in pursuance of this Court's direction held that since it is a single post it cannot be reserved and it was also observed that since the School Services Commission Act, 1997 (hereinafter referred to as the Act of 1997) has come into force, therefore, the post has to be filled up in accordance with the procedure prescribed under the Act of 1997 and directed the DIS to release the prior permission. Aggrieved against this order the present writ petition has been filed.

(2.) The contention of the Managing Committee was that since a prior permission was granted before coming into force of the Act of 1997 the selection procedure has to be concluded in accordance with the Rules then existing and not in the manner prescribed by the Act of 1997. It was contended that the power of the Managing Committee to make selection and appointment cannot be retrospectively altered or denuded by the Act of 1997. The Act of 1997 came into force w.e.f 1.1.1997. By virtue of this Act all appointments of the teaching staff in secondary school has to be made by the Managing Committee on the recommendation of the Regional School Service Commission. Therefore, the question before the learned single judge was that whether the vacancy is required to be filled up in accordance with the provisions of the Act of 1997 or in accordance with the Rules which existed prior to the coming into force of the Act of 1997. Prior to the Act of 1997 there was a Management Rules, 1969 that governed the field and as per the Management Rules, 1969, the Managing Committee was competent to make selection and appointment in accordance with the direction given by the DIS. However, after coming into force of the Act of 1997, the power to make selection committee stood terminated. Therefore, the question that boils down to is whether the present vacancy, which was in existence prior to coming into force of the Act of 1997, should be filled up according to the Management Rules of 1996 or according to the Act of 1997. The learned single judge held that mere existence of a vacancy prior to coming into force of the Act of 1997, which is being sought to be filled up after 1997, can only be filled up under the Act of 1997 and not under the procedure prescribed under the Management Rules of 1969. It was observed by the learned single judge that it is true that the Act of 1997 had not been given a retrospective effect, but since the vacancy is sought to be filled up in 1997, the Act of 1997 will be applicable, otherwise it will virtually result in nullification of the Act of 1997. It was observed by the learned single judge that retrospective construction of any Act or rule cannot be applied to divest any accrued rights. However two decisions of the single Benches of this Court took different view i.e the case of 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. Therefore, the learned single judge has made this reference of larger Bench. In this background the question is that whether the vacancies of earlier years i.e. prior to 1997 when the Act of 1997 has come into force shall be filled in accordance with the Rules of 1969 or according to the Act of 1997.

(3.) Before we answer this question we want to mention here that though the vacancy in the present case arose in 1992 and prior permission was granted by the DIS and direction was given to fill up the vacancy as per the roster vacancy from the Schedule Caste candidates, but somehow the vacancy could not be filled up and ultimately a writ petition was filed before this Court and this Court directed the Secretary, Education Department to dispose of the matter treating the writ as the representation of the petitioner. This was disposed of by the Secretary, Education Department and it was held that since it was a single post and it is de-reserved. However, since that post has not been filled up and it sought to be filled up now that is in the year of 2000 therefore, the Secretary, Education Department observed that the appointment should be made in accordance with the Act of 1997. As such in the present case no accrued right of any one is being sought to be violated. Earlier, the Managing Committee had a power to make recruitment, but by the Act of 1997, the said power has been taken away and the same has been given to the School Service Commission. Simply because at one point of time the Managing Committee had a right to make a selection that does not amount to a vested right in the Managing Committee. It is not a case where selection process has started and it is being sought to be stalled on account of subsequent amendment in the Act. The Managing Committee has no vested right and the vacancy which arose in 1992 a qualified permission was granted by the Dis to fill that vacancy by the management from amongst the Schedule Caste candidates, but that was not acceptable to the management. Therefore, they filed the first writ petition in which direction was given for consideration of their representation and that was ultimately resulted in the order passed by the Secretary, Education Department on 25th April, 2000 and in that he held that since the Act of 1997 has come into force the vacancy shall be filled up in accordance with the said Act. Therefore, no vested right has come to be accrued in favour of the management. It is true that the management has sought permission under the Management Rules, 1969 for filling up the vacancy, but somehow it could not be filled up prior to coming into force of the Act of 1997. It would have been a different matter if the permission was availed of and they had invited candidates for interview. But that is not the case here.