GOPAL SHA Vs. STATE

JUDGEMENT

(1.) Since issues involved are common the writ petitions have been heard analogously. However, the facts in W.P. 15800(W) of 2009 are referred to for the sake of convenience. In this writ petition the petitioners have challenged the notification dated 6th August, 2009 published in a newspaper, which according to them, cancels the selection process initiated in the year 2006. Prayer has been made for a direction upon the authorities of the State including the Director of School Education (Primary), West Bengal and the District Primary School Council, South 24 Parganas (in short the 'Council'), the respondent nos. 2 and 5 respectively, to complete the selection process for the posts of primary school teachers in different districts which had commenced in the year 2006 under the provisions of the West Bengal Primary School Teachers Recruitment Rules, 2001 (for short '2001 Rules') by holding the written test against 10 marks with regard to the candidates already sponsored by the employment exchange and to give employment to the selected candidates against the vacancies notified to be filled up on the basis of such selection. Interim orders have been prayed accordingly.

(2.) The facts in brief are that during 2006 the names of the petitioners were sponsored by the Canning Employment Exchange to the Council for appearing in the selection test for the posts of primary school teachers under the 'non-trained' category. Thereafter, the Council requested the petitioners to submit their bio-data including the academic qualification. Accordingly, the petitioners submitted their respective bio-data along with the testimonials within the time fixed by the Council. Under the 2001 Rules as amended by the notification dated 16th December, 2005, after the names are obtained from the employment exchange and candidates produce the testimonials/certificates for computation of marks, the Council shall compute the marks in terms of Rule 9 of 2001 Rules which speaks of allotment of 65 marks against the academic qualifications for training 22 marks and for co-curricular activities 3 marks ; totalling 90 marks. 10 marks is earmarked for written test. As stated in the petition, after receiving the bio-data, 90 marks test of the petitioners have been completed by the Council and test for 10 marks is yet to be conducted. At the time of initiation of the selection process there were large number of vacancies. According to the petitioners, there were 3000 vacant posts of primary teachers in the district of South 24 Parganas. The employment exchange sponsored the names of the candidates at the ratio of 1:20. At that time, law was - an untrained candidate was to compete along with the other candidates. Though there was no order of injunction against the recruitment process and since remaining part of the selection process was kept in abeyance, the petitioners went to the office of the Chairman South 24 Parganas District Primary School Council when they were intimated that a new process would start by making advertisement for recruitment of primary school teachers. Thereafter, advertisement was published on 6th September, 2009 which is under challenge in the present writ petitions.

(3.) The main points of challenge are that the advertisement is an attempt to abandon the earlier process initiated under the 2001 Rules. Unless statute empowers, the amended Rules cannot be given a retrospective effect. However, amended Rule 6 is an attempt in that direction. Section 106 of the West Bengal Primary Education Act, 1973 (for short '1973 Act) does not empower retrospective operation. So the ongoing process initiated in 2006 cannot be affected. Since as per Rule 8(3) of 2001 Rules, the vacancies existing on date plus vacancies anticipated to arise against the sanctioned strength in course of next twelve months may be taken up as total vacancies while sending the requisition to the employment exchange, vacancies up to 2007 are to be taken into consideration by the Council for filling up the vacancies of primary teachers and those vacancies cannot be covered by the 2009 notification. The submission on behalf of the State that the process was held up due to an interim order in a matter relating to public interest litigation is without basis as there was no such restraint on the recruitment process as evident from paragraph 10 of the of the judgment in Tulsi Bakshi and another v. State of West Bengal and others reported in 2008(4) Cal HN 789 : (2008)1 WBLR (Cal) 765. Moreover, the plea of interim order cannot hold good as the Council had itself called upon the candidates to submit bio-data as evident from annexure P-l to the writ petition (W.P. 15800(W) of 2009). Accordingly, submission is, as the petitioners who had sent their bio-data pursuant to the requisition in the year 2006 form a slot by themselves, the recruitment process remains untouched by the present notification. Therefore, prayer has been made for restraining the respondents from cancelling the selection process initiated in 2006 for the post of primary school teachers in different districts of the State and for filling up the vacancies for which the selection was initiated in the said year.