A.K. Mathur, C.J.
1. This is a reference made by the learned single Judge, on account of conflicting judgment of this Court, to a Division Bench for resolving the conflict. For convenient disposal of this reference few necessary facts may be noticed. That a vacancy to the post of Headmaster arose in Govind Nagar Muslim High School and the school authorities sought prior permission from the District Inspector of School (DIS) for filling the post. The DIS granted permission but it was qualified that the post shall be reserved for Schedule Caste as per roster vacancy vide his memo No. 630S dated 1.10.1992. The school authorities could not recruit the Head Master due to non-availability of the candidate. Therefore they sought for de-reservation of the post on 10th October, 1993 but the DIS again asked them to fill the vacancy as per the roster vacancy by his letter dated 26th July, 1994, The Managing Committee then filed a writ petition being W. P. No. 237 (W) of 2000 (S.K. Manataj Ali and Anr. v. State of West Bengal and Ors.) which was disposed of by an order dated 25th April, 2000 with a directionupon the Secretary, Education Department to treat the writ petition as the representation and to dispose of the same in accordance with law. The Secretary, Education Department in pursuance of this Court's direction held that since it is a single post it cannot be reserved and it was also observed that since the School Services Commission Act, 1997 (hereinafter referred to as the Act of 1997) has come into force, therefore, the post has to be filled up in accordance with the procedure prescribed under the Act of 1997 and directed the DIG to release the prior permission. Aggrieved against this order the present writ petition has been filed.
2. The contention of the Managing Committee was that since a prior permission was granted before coming into force of the Act of 1997 the selection procedure has to be concluded in accordance with the Rules then existing and not in the manner prescribed by the Act of 1997. It was contended that the power of the Managing Committee to make selection and appointment cannot be retrospectively altered or denuded by the Act of 1997. The Act of 1997 came into force w.e.f 1.1.1997. By virtue of this Act all appointments of the teaching staff in secondary school has to be made by the Managing Committee on the recommendation of the Regional School Service Commission. Therefore, the question before the learned single judge was that whether the vacancy is required to be filled up in accordance with the provisions of the Act of 1997 or in accordance with the Rules which existed prior to the coming into force of the Act of 1997. Prior to the Act of 1997 there was a Management Rules, 1969 that governed the field and as per the Management Rules, 1969, the Managing Committee was competent to make selection and appointment in accordance with the direction given by the DIS. However, after coming into force of the Act of 1997, the power to make selection committee stood terminated. Therefore, the question that boils down to is whether the present vacancy, which was in existence prior to coming into force of the Act of 1997, should be filled up according to the Management Rules of 1996 or according to the Act of 1997. The learned single Judge held that mere existence of a vacancy prior to coming into force of the Act of 1997, which is being sought to be filled up after 1997, can only be filled up under the Act of 1997 and not under the procedure prescribed under the Management Rules of 1969. It was observed by the learned single judge that it is true that the Act of 1997 had not been given a retrospective effect, but since the vacancy is sought to be filled up in 1997, the Act of 1997 will be applicable, otherwise it will virtually result in nullification of the Act of 1997. It was observed by the learned single judge that retrospective construction of any Act or rule cannot be applied to divest any accrued rights. However two decisions of the single Benches of this Court took different view i.e the case of Kanaidighi Deshapran Vidyapith v. State of West Bengal reported in 1998(2) CLJ 497 and Salouddin Miah v. State of West Bengal reported in 2000(2) CHN 788. Therefore, the learned single judge has made this reference of larger Bench. In this background the question is that whether the vacancies of earlier years i.e. prior to 1997 when the Act of 1997 has come into force shall be filled in accordance with the Rules of 1969 or according to the Act of 1997.
3. Before we answer this question we want to mention here that though the vacancy in the present case arose in 1992 and prior permission wasgranted by the DIS and direction was given to fill up the vacancy as per the roster vacancy from the Schedule Caste candidates, but somehow the vacancy could not be filled up and ultimately a writ petition was filed before this Court and this Court directed the Secretary, Education Department to dispose of the matter treating the writ as the representation of the petitioner. This was disposed of by the Secretary, Education Department and it was held that since it was a single post and it is de-reserved. However, since that post has not been filled up and it sought to be filled up now that is in the year of 2000 therefore, the Secretary, Education Department observed that the appointment should be made in accordance with the Act of 1997. As such in the present case no accrued right of any one is being sought to be violated. Earlier, the Managing Committee had a power to make recruitment, but by the Act of 1997, the said power has been taken away and the same has been given to the School Service Commission. Simply because at one point of time the Managing Committee had a right to make a selection that does not amount to a vested right in the Managing Committee. It is not a case where selection process has started and it is being sought to be stalled on account of subsequent amendment in the Act. The Managing Committee has no vested right and the vacancy which arose in 1992 a qualified permission was granted by the DIS to fill that vacancy by the management from amongst the Schedule Caste candidates, but that was not acceptable to the management. Therefore, they filed the first writ petition in which direction was given for consideration of their representation and that was ultimately resulted in the order passed by the Secretary, Education Department on 25th April, 2000 and in that he held that since the Act of 1997 has come into force the vacancy shall be filled up in accordance with the said Act. Therefore, no vested right has come to be accrued in favour of the management. It is true that the management has sought permission under the Management Rules, 1969 for filling up the vacancy, but somehow it could not be filled up prior to coming into force of the Act of 1997. It would have been a different matter if the permission was availed of and they had invited candidates for interview. But that is not the case here.
4. It will be relevant to mention here few provisions of the Acts and Rules.
5. The West Bengal School Service Commission Act, 1997 came into force w.e.f. 1.11.1997 (hereinafter referred to as the Act of 1997). Prior to coming into force of the Act of 1997 (there was a recruitment procedure issued by the Director, School Education, W.B. No. 1049/1 (19) GA dated 20.5.93. This was superseded by Memo No. 2066 GA dated 27.10.95., however we are not concerned with them because it is a vacancy of 1992). Management Rules of 1969 were in force, they were framed under West Bengal Board of Secondary Education Act, 1963 (hereinafter referred to as the Act of 1963). After the Act of 1997 came into force the Act of 1963 stood repealed. After coming into force of this Act of 1997 all selection to the post of teachers in West Bengal is governed by this Act This Act provided that how selection is to be made through the School Service Commission. Section 3 empowered the State Government to appoint and constitute by notification Service Selection Boards namely. West Bengal Central School Service Commission and Regional Commissions by the name of West Bengal Regional School Service Commission and the regions were divided like; Eastern, Western,Northern and Southern. Section 7 laid down the functioning of these Regional Commissions and it laid down that notwithstanding anything contained in any other law for the time being in force or any contract, custom or usage to the contrary, the appointment of the teachers in a school shall be made by the Managing Committee whatever may be called by the school on the recommendation of the Regional Commission having the territorial jurisdiction. Therefore, this was having an overriding effect on all other laws which were in free. As mentioned above prior to the coming into force of the Act of 1997 the selection used to be governed by the Rules known as Management Rules, 1969 which laid down detailed procedure that how the Managing Committee shall recruit persons and appoint them. One of the Rule was that prior to commencement of this selection process the Managing Committee shall seek a prior permission of the District Inspector of School, but after coming into force of the Act of 1997 the Management Rules of 1969 automatically stood superseded. Therefore, according to the amended Act, now the procedure is that the appointment shall be made by the Managing Committee of the schools on the recommendation of the Regional Commission.
6. In this background the question that falls for determination is that whether the vacancy which existed prior to the coming into force of the Act of 1997 are necessarily required to be filled up in accordance with the Management Rules of 1969 or not.
7. The answer to this question depends upon whether the process of selection has started prior to the coming into force of the Act of 1997 or not. Simply because a requisition has been sent as per the Rules of 1969 to the District Inspector of Schools seeking a permission to make the selection for the post of teacher--can such selection be said to have commenced? Our answer to this question is in the negative, because seeking permission from the DIS is purely an administrative act and it does not confer any right on any candidate or the management. It is always open for the management that even after seeking permission of filling up posts they may not advertise the post or send a requisition to the Employment Exchange for forwarding names of suitable candidates as required under the Management Rules of 1969. Therefore, it is purely a ministerial act of seeking permission for filling up the vacancy and that does not confer any right whatsoever to anyone be it management or candidate. As per series of decisions which we shall advert to hereinafter. It will appear that as and when the post is advertised and applications are invited from the candidates, then alone it is said that the selection process has commenced. In the present situation in our opinion the selection process shall be deemed to have commenced only after the Managing Committee invites suitable candidates for interview from amongst the persons so recommended by the Employment Exchange for appointment. Similarly, when the post is advertised and candidate are invited to apply for the post then along it will be deemed to have commenced the selection process. Therefore, seeking a permission from the DIS for filling up the vacancy is not decisive of the matter and it does not amount to commencing the process of selection. Though earlier some observation was made by this Court that when the management seeks permission from the DIS for appointment that willamount to commencement of process of selection. It does not appear to be correct position of law, as already observed above it is purely an administrative or ministerial act and that will not be deemed to have commenced the selection process. Since the selection process is not deemed to have commenced, therefore, no one's right is going to be affected.
8. In this connection our attention was invited to a recent decision of the Supreme Court in the case of Rajasthan Public Services Commission v. Chanan Ram reported in : [1998]1SCR1099 . In order to appreciate the ratio laid down in this case, it may be relevant to refer to a few facts of the case. In this case 23 posts of Assistant Directors (Junior) were advertised by the Rajasthan Public Service Commission on 5th November, 1993 and the last date of filing the application was 31st December, 1993, but three days prior, to the last date of receipt of the applications the State of Rajasthan by its communication dated 28th December, 1993 asked the Rajasthan Public Service Commission not to go ahead with the said recruitment as relevant Rules are sought to be amended. The Rajasthan Public Service Commission in view of the communication received from the State of Rajasthan did not proceed with the selection and the selection remain dormant. Thereafter, on 19th April, 1995 the State of Rajasthan amended the Rules under proviso to Article 309 of the Constitution and re-designated the post of Assistant Director to marketing Officer. Thereafter, on 23rd August, 1995 Rajasthan Public Service Commission cancelled the earlier advertisement dated 5th November, 1993 and issued a fresh advertisement on 8th January, 1996 inviting applications from the eligible candidates to be considered for appointment. This fresh advertisement was sought to be challenged by person who had applied for the post in pursuance of the advertisement dated 5th November, 1993. In that context, the learned single Judge dismissed the writ petition. However, the Division Bench allowed the writ petition and held that the old vacancies shall be filled up according to the unamended Rules. Hence the matter reached to the apex Court in this manner. Their Lordships after considering various decisions of the apex Court held that in the facts of the present case that since the post that is the post of Assistant Directors (Junior) does not exist, therefore the Rajasthan Public Service Commission was justified in withdrawing that selection and re-advertising the post in the light of the amended Rules. Their Lordships concluded in the following manner:
'All that he claimed was his right to be considered for recruitment to the advertised post as per the earlier advertisement dated 5th November, 1993 annexure P1 and nothing more. In our view, the aforesaid limited contention also, on the facts of the present case, cannot be of any assistance to the writ petitioner as the earlier selection process itself had become in fructuous and otios on the abolition of the advertised posts, as we have seen earlier. The second point, therefore, will have to be answered in the negative in favour of the appellants and against the respondent writ petitioner.'
9. Therefore, the aforesaid case turns more on the facts rather then on the question of law. Their Lordships have considered all earlier decisions that in : AIR1988SC2068 : : AIR1990SC405 . In all these aforesaid decisions ofthe apex Court the selection process has already started and therefore their Lordships observed that when the selection process has started and meanwhile Rules have been amended then that selection process should be allowed to continue without any interruption and the amended rules will not have retrospective operation.
1O. In the case of B.L. Gupta v. M.C.D. reported in : (1998)9SCC223 similar question arose. In this case as per Rules of 1978 promotion to the post of Assistant Accountant, there were two feeder post one from that of the Senior Clerks with three years experience and the other Junior Clerks with 8 years experience. In that case litigation ensued between junior clerks and senior clerks, but during the pendency of the matter before the High Court, the Corporation amended Rules in 1995 as per the amended Rules 80% of the posts of Assistant Accountant were to be filed up on the basis of seniority and 20% by examination. The High Court directed that the appointment of 79 persons pursuant to the examination which was held in December, 1993 is proper, but the rest of the vacancies had to be filled up as per the 1995 Rules. Then the matter came before the Hon'ble Supreme Court by way of a special leave petition. In that context Their Lordships held that the vacancies which were sought under those Rules and not under the Rules of 1995 and the vacancies had to be filled up according to the Rules of 1978. The Rules of 1995 have been held to be prospective by the High Court, in that context Their Lordships referred to earlier decisions of the apex Court in N.T. Devin Katti v. Karnataka Public Service Commission reported in : (1990)IILLJ456SC ; Y.V. Rangaiah v. J. Sreenivasa Rao reported in : (1983)IILLJ23SC : P. Ganeshwar Rao v. State of A.P. reported in 1988 Supp SCC 740: and A.A. Calton v. Director of Education reported in : (1983)ILLJ502SC held that the vacancy which has accrued prior to the amendment of the Rules would be governed by the old rules and not by the amended rules and therefore their Lordships directed that all the 171 vacancies which were existed in 1978 shall be filed up according to the old rules of 1978.
11. The same view has been taken in the case of Y.V. Rangaiah v. J. Sreenivasa Rao reported in : (1983)IILLJ23SC with reference to Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules which laid down the procedure for appointment by promotion to the post in service. In that context it was observed that when the said rule enjoined upon the appointing authority to prepare panel for selecting promotees year-wise in old vacancies to be filled in by promotion if panel is not prepared at appropriate time the authorities could be directed to prepare such panel and while preparing that panel for earlier years the then existing statutory rules of recruitment should be applied.
12. Similarly in the case of A.A. Calton v. Director of Education reported in : (1983)ILLJ502SC the question was for the recruitment under the U.P. Intermediate Education Act, 1921 by way of direct recruitment, that process of selection commenced by calling applications for the post under the said Act and the entire process was an integrated one. Meanwhile an amendment was made in the Act. In that case it was held that no appointment process should be completed and concluded according to the Act and Rules which were in force.
13. In another case namely P. Ganeshwar Rao v. State of A.P. reported in : AIR1988SC2068 vacancies had been notified by the Public Service Commission for direct recruitment under the then existing recruitment rules which permitted clubbing of temporary vacancies also for the purpose of recruitment and pending the recruitment process rules were amended and only 37.5% of the substantive vacancies could be filled up by direct recruitment. In that context Their Lordship observed that amendment to the recruitment rules will only govern the future vacancies and not with regard to vacancies which are available prior to the amendment, the old rules shall apply.
14. In the case of P. Mahendra v. State of Karnataka reported in : AIR1990SC405 a Three Judge Bench of the Supreme Court had an occasion to deal with Karnataka General Service (Motor Vehicle Branch) (Recruitment) Rules, 1962. Earlier the qualification for the post was Diploma in Automobile Engineering or Mechanical Engineering as a minimum qualification for appointment of a Motor Vehicle Inspector. But meanwhile rules were amended and the diploma holders were made non-eligible but the selection process has been completed and the selected candidates were already recommended for appointment and their appointments would have got fructufied but for the fact that the High Court of Karnataka in the writ petition intervened and issued stay order against such appointment. The apex Court observed that the amended rules did not contain any provision enforcing the amended rules with retrospective effect and since the appointments could not be given in view of the interim order of the High Court but as the rules were amended prospectively therefore the selected candidates shall be governed by the un-amended rules and therefore the appointments were directed to be cleared,
15. In the case of Gopal Krishna Rath v. M.A.A. Baig reported in : AIR1999SC2093 the selection process has already commenced and before last datefor inviting applications, the qualification was changed, it was held by theapex Court that subsequent change of the qualification will not affect theselection process.
16. Therefore, the ratio of these cases is that once the selection process has already started, meanwhile if the rules are amended then in that case selection process should be allowed to continue as per the unamended rules and the amended rules will not affect the selection process which has commenced under the unamended rules.
17. The aforesaid ratio has been followed by a Division Bench of this Court in the case of Abdul Mannan Laskar v. State of West Bengal reported in 2000(1) CHN 435. It referred to its earlier decision in the case of Basudev Bag v. Bhaskar Chandra Kar reported in 1996(1) CLJ 230 and distinguished It. But in two single Bench decisions of this Court namely in the case of Kanaidighi Deshapran Vidyapith v. State of West Bengal reported in 1998(2) CLJ 497 and Salauddin Miah v. State of West Bengal reported in 2000(2) CHN 788 this Court has taken a different view of the matter, to which we shall revert to later.
18. Our attention was also invited to another line of cases of the apex Court in which it was observed that simply because a person has beenselected for appointment has no right to the post and no Mandamus can be Issued to the authorities to make appointment on the basis of the so called select list. In this connection reference may be made to a decision of the Supreme Court in the case of State of Haryana v. Subash Chandra Maruiaha reported in : (1973)IILLJ266SC wherein it was held that when a person is recommended for appointment then it is a inchoat right and it cannot be enforced by a writ of Mandamus except that the action of the State should justify on the touchstone of Article 14 of the Constitution. Following this decision the apex Court in the case of Jai Singh Dalal v. State of Haryana reported in 1993 supp (2) SCC 600 held that if the process of selection for recruitment is not finalised and culminated in the select list, the candidates have no right to appointment. It was observed that the Government is fully competent to stop the recruitment process before candidates are appointed and candidates have no vested right to get the process completed except that the action of the State should justify on the anvil of Article 14 of the Constitution. The same view was reiterated in the case of State of M.P. v. Raghuveer Singh Yadav reported in : (1994)6SCC151 . Therein it was laid down by Their Lordships that the State Government has a power to lay down the recruitment rules and if the recruitment has not resulted any final decision in favour of the candidate then it is always open for the State to stall that selection and no candidate shall have an accrued right. It was observed that the candidate who have appeared for the examination and passed the written examination has only a legitimate expectation to be considered according to the rules then in vogue. Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. No candidate acquired any vested right against the State and the State is entitled to withdraw the notification and issue a fresh notification as per the amended rules. But all these cases pertain to the power of the State. The ratio of these cases is that the State has an unfettered power to recall the recruitment process and no candidate has any vested right to enforce by a writ of Mandamus except that the State action will have to be examined with the touchstone of Article 14 of the Constitution.
19. However, this Court in the case of Basudev Bag v. Bhaskar Chandra Kar (supra) had an occasion to examine similar question. In that case posts were advertised in a local newspaper on 1st June, 1991 for preparation of a panel as per rules existed at that time, meanwhile new rules came into force but interview was held in terms of old Rules and panel was prepared. Subsequently, Rules were amended and in that context Their Lordships took a view that since the selection process has com icnced and culminated in the preparation of panel, therefore, the amended rules will not have an effect on this selection. In the case of Abdul Manan Laskar v. State of West Bengal (supra) their Lordships took into consideration the earlier decision in Basudev Bag v. Bhaskar Chandra Kar (supra) and considered the matter in great detail and held that the right of the candidates for being considered, would have arisen only upon their names being sponsored and/or the issue of advertisement and as prior to the date, the said Act and Rules framed thereunder, came into force, the question of any selection being made in violation thereof did not arise. Therefore, the Division Bench held that the view taken by the learned single Judge that the candidate has a right tobe considered under the old rules and not under the Act of 1997 was overruled.
20. In the case of Narayan Baidya v. DIS (SE) South 24 Parganas reported in (2000) 1 CLT 487(HC) the Division Bench of this Court held that the selection process was not completed by the date the Act came into force because by the order dated 29.9.1997 the learned single Judge of this Court directed holding of fresh interview. Therefore, their Lordships observed that the very fact that the Interview was directed to be held clearly goes to show that the selection process was not complete as admittedly no panel has been prepared, thus the question of approval by the DIS did not arise. In this case a panel was forwarded to the DIS for its approval but the DIS directed that the said post should be filled up on the recommendation of the School Service Commission as the Act of 1997 had meanwhile come into force. This was challenged before the learned single Judge and the learned single Judge dismissed the writ petition and a appeal it was affirmed by the Division Bench. Therefore, in this case also same view was taken that if the selection process is not complete and if the rules have been amended then in that case the selection shall be governed by the Act of 1997 and not in terms of the earlier rules.
21. As against this the learned single Judge in the case of SalauddinMiah v. State of West Bengal (supra) took a different view. In this casevacancy arose and a permission was sought from the DIS to fill up the post. It was also requested to de-reserve the post in accordance with section 6(2)of the West Bengal Schedule Caste and Schedule Tribe (Reservation ofVacancies in Services and Posts) Act, 1976 (hereinafter referred to as theAct of 1976), but on account of inaction on the part of the DIS, the petitionerwas driven to file a writ petition before this Court and it was argued thatthe DIS has no power to de-reserve the post, therefore a direction was givenby the learned single Judge to the Joint Commissioner for Reservation toconsider the matter and pass the order in accordance with law. The JointCommissioner after considering the matter in terms of section 6(2) of theAct of 1976 de-reserved the vacancy and directed the school authorities toapproach the Regional School Service Commission for recruitment. This wasagain challenged before this Court that since the vacancy is of prior to 1997therefore it should be filled up according to the Rules of 1969 and notaccording to the Ruled of 1997. The learned single Judge directed that therecruitment to the post should be made according to the Rules of 1969 andnot according loathe Rules of 1997. The same view was taken in the caseof Kanaidighi Deshapran Vidyapith v. State of West Bengal (supra). Therealso two posts of teacher was vacant on 30th June, 1997 and 31st July,1997 that is before the coming into force of the Act of 1997. Therefore, awrit of Mandamus was sought for a direction to fill these vacancies by themanagement as per the Rules of 1969 and not according to the Rules of1997. Since both these cases were contrary to earlier decision of the DivisionBench of this Court, the learned single Judge made this reference for ouranswer.
22. In view of the law laid down by the apex Court and Division Bench of this Court, we are of the opinion that the selection process will commence only when the candidates are invited to appear on the basis of names sentby the Employment Exchange on requisition by the Managing Committee for recruitment of the teachers and if that stage has not reached then it will not amount to commencement of the selection process. The selection process is deemed to have commenced if the posts have been advertised and candidates have been called for interview and meanwhile if the Rules are amended then that selection process should be allowed to continue without being affected by the amendment of the Rules unless the Acts or Rules have been amended with a retrospective effect. Thus, in this view of the matter, the view taken by the learned single Judge in the case of Kanaidighi Deshapran Vidyapith v. State of West Bengal (supra) and Salauddin Miah v. State of West Bengal (supra) are no more good law.
The reference is accordingly answered. Let all the matter be sent back to the learned single Judge to decide the same in the light of the observations made in this judgment.
G.C. Gupta, J.
I agree.
23. Application allowed