ANSAR ALAM Vs. THE STATE

JUDGEMENT

(1.) - In this writ petition this Court at the point of threshold of consideration is faced with a ticklish point of law as to whether after coming into force of West Bengal Service Commission Act, 1997 the writ petitioner can come in aid of relief prayed for as canvassed in the writ petition. This Court initially restricted itself on sole consideration on the moot point because the point appears to be of some interest and the decision of it appears to be imperative. It appears that the said Act being known as West Bengal School Commission Act, 1997 (West Bengal Act IV of 1997) has been published in Calcutta Gazette Extraordinary on 1.4.1997 and in terms of the notification issued, the Act has come into force on and from Ist Nov., 1997.

(2.) The case of the writ petitioner is that there were certain vacancies which were there in respect of the concerned institution namely Madrasa and at the time of hearing, this Court has been intimated that there are three vacancies existing which are required to be filled up. There are multiple prayers contained in the writ petition and so far as first prayer is concerned it is necessary for obtaining permission so that the managing committee can fill up the said post and proper accord of approval can be taken from the concerned authority. Now from the promulgation and/or coming into force of the Act and the crucial date being 1.11.1997 the entire modalities of procedure seem to have been changed. Mr. Chatterjee's contention is that vacancies appeared and/or existed as on Ist May, 1996 that is prior to the date of coming into force of the connected Act that is Ist Nov., 1997. According to Mr. Chatterjee the said Act in terms of the known canons of statutory construction cannot be given with retrospective effect and/or operation. In support of the same much reliance has been made on the decision of the Apex Court in the case of Y.V. Rangaiah Vs. J. Sreenivasa Rao and State of A.P. J. Sreenivasa Rao , reported in AIR 1983 SC 852 and a reference of this Court was drawn particularly to paragraph 9 and much stress has been made by Mr. Chatterjee with regard to cryptic line contained in the said judgment and according to Mr. Chatterjee the said line is vibrant with germane implication namely the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. This Court is also aware and familiar with the well-known proposition of consideration of statute that all laws which are of civil in nature are supposed to be prospective and not retrospective unless a contradictory intention is shown therein. In the cited case so far as the facts are concerned, it is with regard to the promotion of certain candidates who were working at the relevant date as lower division clerks in certain department of the State Govt. of Andhra Pradesh and a panel of promotee candidates were prepared at a point of time when the rules were not amended. Thereafter the rules came into force and the Supreme Court said that at the relevant point of time when the vacancies occurred the old rules should apply. There is no quarrel with regard to the said proposition. The distinguishing feature from this case is that in the cited case persons are already in employment and they are in promotional channel. At the time of accrual of the vacancies there were relevant rules in terms of which their promotional orders were determined and during the currency of the same, it was sought to be altered because of the amended rules. Therefore, the cause of action in the cited case is about the claim of promotion as on the date as per the rules in the service. Here in this case the school concerned named Madrasah has come forward with a prayer that the panel should be prepared in accordance with the previous modalities. The modalities appear to have been given a go by after promulgation of the West Bengal Service Commission Act, 1997 and the object of the said Act is amplified in the preamble to the said Act it appears that here the cause of action is not promotion but appointment with regard to persons who are to be brought in within the pale of service. A reference may be made in this context to Sec. 9(2) of the Act which inter alia contains that an appointment of a teacher made on or after the commencement of this Act in contravention of the provisions of this Act shall be invalid and shall have no effect and the teacher so appointed shall not be a teacher within the meaning of clause (p) of Sec. 2. In terms of the said provisions as enumerated under Sec. 9(2) and after scanning of the said provision, it appears that an appointment of a teacher if be made after the commencement of the Act namely after 1.11.1997 in contravention of the provisions of the same shall be invalid and it shall be deemed to be non est in the eye of the statute and the teacher so appointed shall not be regarded as a teacher within the meaning of Sec. 2(p) of the Act. Here, appointment is not yet a fait accompli only the process is as a culmination of which if an appointment is given not in terms of the modalities of the West Bengal Act 4 of 1997 such teacher so appointed shall not have the legal status of Sec. 2(p) of the Act and any appointment given will be deemed as non est in the eye of law. It has been laid in no unambiguous terms in Sec. 9(2) that if any teacher is appointed after commencement of this Act in contravention of the provisions of the same the result and effect will be that the appointment shall be vitiated by intrinsic element of invalidity. As such, the entire scenario of the proposition which has been sought to be applied for or invoked on legal matrix stands on an altogether different footing. Here this Court is not concerned with the application of the invocation of the principle of retrospectivity of a statute and prospectively of the same it is concerned with interpretation of Sec. 9(2) of West Bengal Act 4 of 1997. Therefore, this Court is of the view that if the appointment is sought to be given after 1.11.1997 then such person cannot be clothed with the legal locus standi of Sec. 2(p) of the definition clause of West Bengal Act 4 of 1997. As such, the promulgation of the Act followed by coming into force of the same stands in the way of the institution namely the connected Madrasah to come forward to this Court to get such prayers as it appears that it is very difficult to over take the obstacles created by the Act. Therefore, on an interpretation of Sec. 9(2) of the Act, this Court feels that the application cannot be entertained in the eye of law because of its interpretation given in terms of Sec. 9(2) as in terms of its letter and spirit where the Court is not required to salvage the question of prospectively or retrospectivity of a legislation which is purely of academic interest having semblance of resemblance to the facts and controversies in the present cited case.

(3.) Subject to above, the writ petition is liable to be dismissed.