CHANDI PRASAD MANDAL Vs. STATE OF W B

JUDGEMENT

(1.) Heard the learned Advocates appearing for the parties.

(2.) In the instant case, it is the grievance of the petitioner, who was a candidate appeared in the interview for Group 'D' post in the secondary school, managed and controlled by the Chandernagore Municipality on the point that desire completion of process of selection the panel has not been approved by the District Inspector of Schools concerned. The petitioner prayed for writ of mandamus commanding the District Inspector of Schools concerned to approve the panel. This writ application has been opposed by the State respondents by filling an affidavit through the District Inspector of Schools concerned, contending, inter alia, that under the Recruitment Rules issued by the Director of School Education, West Bengal vide Memo No. 2066-G.A. dated 27th October, 1995 which has applicability with reference to all appointments of teaching and non-teaching staff of the school managed and controlled by the Chandernagore Municipality in view of their Rules namely, Chandernagore Municipal Corporation (Education Committee) Rules, 1995, the Chandernagore Municipality has no jurisdiction and power to advertise the post in the daily Newspaper as under the prior permission accorded to fill up the vacancy of the Group 'D' staff in the concerned school, only sponsored candidates of the Employment Exchange were eligible to appear. It has been further contended that though the Employment Exchange referred the names of 20 candidates, Chandernagore Municipality inviting application through paper advertisement allowed other 48 candidates in such selection test and thereby out of 68 candidates a panel was prepared and for that reason panel was not approved as it was done on total breach of the Recruitment Rules dated 27th October, 1995 issued by the Director of School Education, West Bengal. Chandernagore Municipality, however, has supported the case of the petitioner by contending, inter alia, that the Supreme Court since observed in the case Excise Superintendent Malkapatnam, Krishna District A.P. v. K.B.N. Visweshwara Rao & Ors., reported in (1996)6 SCC 216 that under the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 since there was no restriction for paper advertisement inviting names of the candidates from another source than the Employment Exchange, the decision of the Chandernagore Municipality was legal and justified to allow the 48 candidates who applied in terms of the paper advertisement. Having regard to the rival contention of the parties, very short questions are involved in this case as to whether there was any breach of the Recruitment Rules dated 27th October, 1995 issued by the Director of School Education, West Bengal and also whether the Chandernagore Municipality got the jurisdiction to advertise the post in the daily newspaper when there is a total embargo in the Recruitment rules issued by the Director of School Education, West Bengal to this effect that until and unless the Employment Exchange refuses to refer the name of any candidate, no newspaper advertisement inviting names of the candidates could be made, those are the points for adjudication herein. Admitted facts in this writ application are to this effect. There was a vacancy of Group 'D' post in a secondary school maintained and managed by the Chandernagore Municipal Corporation. It is an admitted position also that the Chandernagore Municipal Corporation (Education Committee) Rules, 1995 adopted the recruitment procedure of teaching and non-teaching staff as issued by the Director of School Education, West Bengal in exercise of his power in terms of the Rule 28 of the Rules of Management of Recognized Non-Government Institution (Aided and Unaided) Rules, 1969 (hereinafter for brevity referred to Management Rules, 1969). It is also an admitted position that such power under Rule 28 authorizing the Director of School Education, West Bengal to frame necessary recruitment regulations for appointment of teaching and non-teaching staff of the Schools covered by the Management Rules, 1969 and/or the school which have adopted such recruitment procedure by their separate regulation, got its authority under Section 45 of the West Bengal Board of Secondary Education Act, 1963. The Chandernagore Municipal Corporation hereinafter referred to as the concerned Corporation adopted the Recruitment Rules issued by the Director of School Education, West Bengal for processing the recruitment of all teaching and non-teaching staff of different municipal schools under their control. The said Corporation through the concerned school under his management sought prior permission to fill up the vacancy in terms of the Recruitment Rules dated 27th October, 1995 issued by the Director of School Education, West Bengal before the District Inspector of Schools (SE) Hooghly, who in turn accorded prior permission to fill up the post of Group 'D', reserved for Scheduled Caste, by specifying in the prior permission that the names to be called for from the concerned Employment Exchange only in terms of the Recruitment Rules dated 27th October, 1995 aforesaid. The school management invited names from the concerned Employment Exchange, who sponsored 20 candidates belonging to Scheduled Caste community for such selection. But the said Corporation, however, invited names from the general public by advertising the post in the daily newspaper and in pursuance thereof, 48 candidates applied for the said post. Out of total 68 candidates, 20 from the Employment Exchange and 48 in terms of the advertisement, the Interview Committee prepared a panel of three candidates wherein names of the present petitioner appeared as first position of the panel who admittedly was not a sponsored candidate from the Employment Exchange but a candidate appeared in terms of the newspaper advertisement of the said Corporation. The District Inspector of Schools concerned raised an objection regarding preparation of panel on the ground that in total breach of Recruitment Rules of Director of School Education West Bengal, the names of 48 candidates were considered, who applied in terms of the newspaper advertisement though there is a total embargo of such newspaper advertisement until and unless the Employment Exchange certifies that there is no eligible candidate who would be sponsored for the said post. Further on the ground that there was a long delay of submission of the panel about six months, which was also in breach of the Rule issued by the Director of School Education, West Bengal. On the aforesaid admitted factual matrix now the point to be decided.

(3.) As already referred to that the Chandernagore Municipal Corporation following their procedure in terms of the concerned Act of which the Corporation was set up formulated a rule for management and control of the municipal schools under their management, which is named as Chandernagore Municipal Corporation (Education Committee) Rules, 1995. Rules 10 to 12 of the said Rule relates to management.of the school as well as recruitment process. Rule 12 of the said Rule, 1995 of Municipal Corporation provides that all appointments of teaching and non-teaching staff of the municipal schools would be made following the Recruitment Rules prescribed by the Director of School Education, West Bengal from time to time. The Rule 12 reads thus : "12. Subject to the provision of Chandernagore Municipal Corporation Act of 1990 (West Bengal Act XXXII of 1990) the Corporation on the recommendation of the committee, may appoint teachers for Municipal Schools as per Recruitment Rules of Director of Schools Education, West Bengal issued from time to time. All recruitments will be made in terms of Recruitment rules prescribed by the Director of School Education, West Bengal from time to time."