STATE OF WEST BENGAL Vs. MOSTAFIZER RAHAMAN

JUDGEMENT

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

(2.) CHALLENGING the judgment and order dated 2nd April, 2003 passed in W. P. No. 7399 (W) of 2000 by the learned Trial Judge whereby and whereunder the learned Trial Judge directed the District Inspector of schools and the school authority concerned to regularise the appointment of the writ petitioner on the strength of selection as made by the School service Commission with reference to leave vacancy being a short term vacancy wherein the writ petitioner was a candidate and selected, by quashing and setting aside the impugned order dated 8th December, 1999 whereby the writ petitioner was directed not to serve the school any further beyond 11th November, 1999 as he was an appointee on a lien vacancy which expired on 11th November, 1999, this appeal has been preferred by the State respondents as appellants. It is an admitted position that the writ petitioner initially was appointed on lien vacancy of Shri Jayanta Kr. Roy, permanent Assistant Teacher for the period 1st October, 1999 to 11th november, 1999. It was the case of the writ petitioner in the writ application that before expiry of such tenure of short term vacancy, the incumbent shri Jayanta Kr. Roy, the permanent appointee therein who was on lien, resigned and, as such, the writ petitioner continued to work. It was the case made out by the writ petitioner that as his selection for appointment in the said lien vacancy was made by the School Service Commission following the procedure laid down to fill up such vacancy whereby the lien vacancy was duly notified to different Notice Boards in terms of the statute, his appointment for all practical purposes should be considered as appointment in a permanent vacancy and, as such, as and when the short term vacancy became a permanent vacancy due to resignation of Shri jayanta Kr. Roy, he accrued a right to hold the post permanently. The learned Trial Judge was convinced with such argument and held that as the appointment in the lien vacancy was made following the procedure to fill up short term vacancy by the School Service Commission, in all purposes it to be considered as selection by regular method and accordingly the writ petitioner should be regularised.

(3.) LEARNED Advocate for the appellants submits that the two procedures, namely, filling up the short term vacancy by the School Service commission and filling up a permanent vacancy by said Commission are completely different. It is contended that for filling up the permanent vacancy Regularisation No. 1 dated 16th June, 1998 which is called as west Bengal School Service Commission (Procedure for Selection of persons for Appointment to the Posts of Teachers including Headmasters/ headmistresses/superintendents of Senior Madrasahs in recognised Non-Government Aided Schools and Procedure for Conduct of Business of the Commission) Regulations,1998 provides that there should be declaration of vacancies by adding the vacancies of different schools under different Districts by Regional School Service Commission and it requires to be advertised in the Daily Newspapers of State wide vide publication inviting applications from the eligible candidates for their appearance in selection test which consists of written examination and thereafter oral interview by the School Service Commission. It is further contended that the School Service Commission in exercise of power conferred by subsection (1) of Section 8 read with sub-section (1) and in particular Clause (d) of sub-section (2) of sub-section (17) of the School Service Commission act, 1997 and sub-rule (1) of Rule 7 of the West Bengal School Service commission Rules, 1997 framed a procedure for Selection of Persons for Appointment to the Posts of Teachers of the Schools recognised by the West Bengal Council of Higher Secondary Education or the West bengal Board of Madrasah Educatipn which provides the basic essential qualification for Assistant Teacher and also provides the selection procedure by allotting different marks under different heads under Clause (4) under different heads, namely, written test 60 marks, academic qualification including professional qualification 30 marks and personality test (interview including oral test for teaching aptitude) 10 marks, in total 100 marks. For short term vacancy it is the submission of the learned advocate for the appellants that the recruitment procedure is completely different which is guided by Memo No. 600 SE (S) dated 18th August, 1998 issued by the School Education Department, Secondary Branch, government of West Bengal issued in the name of the Hon'ble Governor in exercise of the power conferred by Procedure 8 of the said Procedure for selection of teachers which provides that for short term vacancy and/ or leave vacancy the Managing Committee will invite the applications through Public Notice Board of the concerned school, concerned office of the District Inspector of Schools (Secondary Education), Block development Officer, Sub-Divisional Officer, District Magistrate, Chairman of the Municipality, Commissioner of the Corporation, Savapati of panchayat Samity, Savadhipati of Zilla Parishad, Regional School Service commission and the Central School Service Commission with the particulars as mentioned thereto, namely, eligibility qualification, age etc. and thereafter on receipt of the application the Managing Committee will process the same and thereby will send a short list of five candidates. It is submitted that in processing the application to make it a panel of five candidates the Managing Committee will consider the marks of academic qualification including professional qualification as set out in the table therein of the said circular allotting 20 marks for academic and professional qualifications and will interview the candidates for which five marks allotted. By selection in this way the name to be forwarded to the School service Commission who thereafter will recommend the name for filling up the short term vacancy. It is accordingly submitted referring the aforesaid two procedures that selection of the procedure to fill up the short term vacancy is not identical to procedure for selection of a teacher for appointment in a permanent, vacancy which the learned Trial Judge failed to appreciate properly.