SK. JAHANGGIR ALAM Vs. STATE AND ORS.

JUDGEMENT

(1.) :- Heard the learned Advocate for the parties. In the instant case, it is the grievance of the petitioner that though there is a vacancy of Assistant Teacher and the petitioner has the qualification for consideration of his candidature in respect of the said post while the petitioner is holding the post of approved clerk in the school in question, the District Inspector of Schools concerned as yet has not sponsored his name to the School Service Commission for such consideration. Under the School Service Commission Act, 1997 as well as the procedures for selection by such Commission, there is no rule by which any approved clerk's. case could be considered similarly to the consideration as earlier made by the school authority in terms of Rule 4 (e) of the the Recruitment Rules of 1995, issued by the Director of School Education, West Bengal as was effective prior to coming into effect of said School Service Commission Act with Procedure thereto. In absence of any rule and procedure this Court cannot pass any writ of Mandamus commanding the District Inspector of Schools concerned to recommend the name of the petitioner to the School Service Commission as the same would be nothing but commanding a person to do something not provided in the law. It is a settled law that writ of mandamus would lie only when the petitioner has a legal right under the Statute and the respondent failed to perform duties as per statute. In the instant case, the petitioner has no legal right to claim consideration of his case along with others by School Service Commission as under the present Act and the rule framed for selection of Assistant teachers by introducing the School Service Commission Act there is no scope for consideration of the name of any approved clerk being recommended by the District Inspector of Schools concerned. Furthermore, there is also no logic for recommendation of the name by the District Inspector of Schools concerned for consideration of the case of the petitioner, since under the said School Service Commission Act and procedures, the applications are invited from the qualified person who appear in the selection test which is conducted by the School Service Commission under the procedure of School Service Commission. Even there is no necessity of refereeing the name from Employment Exchange and any person qualified, may apply in terms of invitation of School Commission. The relevant provision for selection of candidature by the School Service Commission reads thus:

(2.) In view of such provision, there is no scope to refer the name of the petitioner. As soon as School Service Commission Act came into effect and a regulation was framed for selection of Assistant Teachers, the earlier rule issued by the Director of School Education, West Bengal being Rule 1995 automatically ceased to have an effect and as a consequence thereof names of approved clerks eligible for the post of Assistant Teacher as maintained by the office of the District Inspector of School concerned under the said Recruitment Rule of Director of School Education, 1995, also automatically ceased its all force. In that view of the matter, the judgment as relied upon by petitioner annexed at page 19 of the writ application with due respect to the learned Judge who passed the judgment, this court is not inclined to follow the same since the relevant provision of school Service Commission Act was not at all placed for decision by the said court. In that view of the matter, the judgment as relied upon by the petitioner is a judgment per incuriam and is not binding upon this court. Reliance may be placed to some English cases on theory of per incuriam as enunciated by the Courts, Young Vs. Bristol Aeroplace Co., Ltd. reported in (1944) 2 All England Reporter 293 at page 300, wherein the Court held: