Judgment:
Pranab Kumar Chattopadhyay, J.
1. This appeal is directed against the order passed by the learned Single Judge of this Court whereby and whereunder the said learned Single Judge directed the Managing Committee of the concerned school to forthwith approach the West Bengal School Service Commission for filling up the post of Headmaster without allowing the said Managing Committee to fill up the said post under the provisions of the previous Recruitment Rules which were in vogue before coming into force of the School Service Commission Act, 1997 and rules framed thereunder.
2. It appears from the available records that after the retirement of the then head of the institution, post of headmaster of the Dayerbazar Vidyamandir in the district of Nadia fell vacant since 1st of December, 1993. The District Inspector of Schools, (SE), Nadia by the Memo bearing No. 642/Gen/SE dated 25th May, 1994 accorded prior permission for filling up the said vacant post of headmaster in the concerned school.
3. On receipt of the aforesaid prior permission dated 25th May, 1994, the school authority made a requisition to the local Employment Exchange for sponsoring the names of the eligible candidates in order to fill up the said vacant post of headmaster and the concerned Employment Exchange sponsored the names of 18 eligible candidates in response to the said request. The said school authority also issued an advertisement in the daily newspaper inviting applications from eligible candidates and as a matter of fact, 11 eligible candidates including the existing Assistant Teachers of the said school with 10 years teaching experience submitted applications in response to the said advertisement. The school authority thereafter constituted a Selection Committee as per the Recruitment Rules prevailing at the point of time and issued interview letters to all the 29 candidates directing them to appear before the Selection Committee on 25th September, 1995.
4. On 22nd September, 1995 a title suit was filed before the learned 3rd Munsif, Krishnanagar, Nadia, being Title Suit No. 142 of 1995 and an application for temporary injunction was also filed in connection with the said title suit. The learned 3rd Munsif, Krishnanagar while considering the aforesaid application for temporary injunction passed an order restraining the Managing Committee from holding interview which was scheduled to be held on 25th September, 1995. However, subsequently, on 1st June, 1998, the said learned Civil Judge, Junior Division, 3rd Court, Krishnanagar, Nadia upon considering the petition filed on behalf of the plaintiff/petitioner allowed withdrawal of the aforesaid title suit.
5. In view of the withdrawal of the said title suit being T.S. No. 142 of 1995, the school authority in order to complete the remaining stage of the pending selection process for recruitment of the headmaster issued interview letters to all the aforesaid 29 eligible candidates and instructed them to appear before the Selection Committee for interview on 16th September, 1999. At this juncture the District Inspector of Schools, (SE), Nadia by the Memo bearing No. 916/ l(1)/Gen/SE dated 8th September, 1999 directed the school authority to stop holding of the interview as scheduled on 16th September, 1999 for the post of headmaster.
6. Challenging the aforesaid decision of the District Inspector of Schools, (SE), Nadia dated 8th September, 1999, one of the candidates for the said post of headmaster moved a writ petition before this Hon'ble Court which was numbered as W.P. No. 1776 (W) of 1999 and a learned Single Judge while entertaining the said writ petition passed an interim order restraining the respondents from giving any effect or further effect to the said Memo bearing No. 916/l(1)/Gen/SE dated 8th September, 1999 issued by the then District Inspector of Schools, (SE), Nadia. Immediately after issuance of the aforesaid interim order passed by this Hon'ble Court, the school authority resumed the pending process of selection for the said post of headmaster and again issued interview letters to all the aforesaid 29 candidates. Ultimately, the duly constituted Selection Committee held interview of all the candidates on 14th January, 2000 and thereafter the said Selection Committee prepared a panel of three candidates.
7. The said panel prepared by the Selection Committee was approved by the Managing Committee of the school in its meeting held on 22nd January, 2000 and thereafter the Secretary of the said school forwarded the said panel to the District Inspector of Schools, (SE), Nadia by the forwarding letter dated 25th January, 2000 together with all the necessary documents and supporting papers in relation to the said selection process for the post of headmaster. Since the District Inspector of Schools, (SE), Nadia was not approving the panel prepared by the Selection Committee for the post of headmaster of the said school, one of the candidates who participated in the selection process for the said post of headmaster moved another writ petition before this Hon'ble Court which was finally disposed of on 31st August, 2001 by a learned Single Judge of this Court whereby and whereunder the District Inspector of Schools, (SE), Nadia was directed to pass an appropriate order in respect of approval of the panel within a period of one month from the date of communication of the said order.
8. By the said order the learned Single Judge of this Court also quashed the Memo bearing No. 916/1(1)/Gen/SE dated 8th September, 1999 issued by the District Inspector of Schools (SE), Nadia whereby and whereunder the said District Inspector of Schools, (SE), Nadia directed the school authority to stop holding of interview for the post of headmaster which was scheduled to be held on 16th September, 1999. Pursuant to the aforesaid order dated 31st August, 2001, the District Inspector of Schools, (SE), Nadia passed an order on 1st November, 2001 directing the school authority to fill up the vacant post of headmaster forthwith in terms of the provisions of the School Service Commission Act, 1997 and rules framed thereunder. The said District Inspector of Schools, (SE), Nadia also mentioned in the said order that the panel prepared earlier by the Selection Committee for filling up the post of headmaster cannot be approved.
9. Thereafter some of the Assistant Teachers alongwith the Assistant headmaster of the said school filed the present writ petition praying for a direction upon the school authority to fill up the vacant post of headmaster through the School Service Commission within the specified time. The learned Single Judge of this Court by the order dated 13th September, 2002 finally-disposed of the said writ petition by directing the Managing Committee of the school to forthwith approach the West Bengal School Service Commission for filling up the post of headmaster. The aforesaid decision of the learned Single Judge has been challenged in the present appeal by the secretary of the Managing Committee of the said school.
10. It has been urged on behalf of the appellant that since the selection process was initiated before the West Bengal School Service Commission Act, 1997 and rules framed thereunder came into force, the learned Single Judge should not have directed and Managing Committee of the concerned school to approach the West Bengal School Service Commission for recommending the name of the suitable candidates for filling up the said post of headmaster in the school.
11. Mr. Bari, the learned Counsel representing the appellant submits that before coming into force of the West Bengal School Service Commission Act, 1997 and rules framed thereunder, the process of selection for the said post of headmaster in the concerned school was started and as a matter of fact excepting some formalities, entire process of selection for the said post of headmaster was completed before the said School Service Commission Act, 1997 came into force. Mr. Bari further submits that due to various difficulties and/or disturbances including initiation of various legal proceedings and issuance of the order by the District Inspector of Schools, (SE), Nadia directing not to hold the interview on the scheduled date, the selection process could not be completed following the earlier Recruitment Rules although the selection process was not only started but a major part of the said selection process for the post of headmaster in respect of the concerned school was duly completed prior to coming into force of the said West Bengal School Service Commission Act, 1997 and Rules framed thereunder.
12. Mr. Bari, learned Counsel of the appellant referred to and relied upon a decision of this Hon'ble Court in the case of Snehansu Jas v. State of West Bengal and Ors. reported in 2001(3) CHN 313 (Paragraph 21) wherein the Division Bench of this Hon'ble Court specifically held as hereunder:
21...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....
13. Mr. Tapan Mukherjee, learned Counsel representing the respondents/ writ petitioners submits that the post of headmaster of the said school should be filled up through the West Bengal School Service Commission in accordance with the existing rules and procedures. Mr. Mukherjee further submits that the selection for the post of headmaster should be made in accordance with the law existing on the date of selection. Mr. Mukherjee referred to and relied on the following decisions in support of his aforesaid arguments:
1) 2002(2) CLJ 110 [Prabhat Kumar Bhattacharyya v. Balai Chand Jana and Ors.] Paragraph 11.
2) : (1997)10SCC264 [Vice Chancellor, University of Allahabad and Ors. v. Anand Prakash Mishra and Ors.] Paragraphs 11 and 12.
14. In our opinion, aforesaid decisions are not at all applicable in the facts of the present case as the issues decided in the aforesaid cases are totally different from the present case. In both the aforesaid cases, process of selection was not initiated prior to the coming into force of the Act.
15. In the case of Vice Chancellor, University of Allahabad and Ors. (supra), it has been specifically recorded that the process of selection was initiated after the Act had come into force (Paragraph 9). In the case of Prabhat Kumar Bhattacharyya (supra), the Division Bench of this Hon'ble Court set aside the whole selection on the ground that the selection proceeded on erroneous basis as the qualification has been varied by the District Inspector of Schools who had no jurisdiction to do so and the Hon'ble Division Bench thereafter directed to undertake fresh selection in accordance with the rules. The aforesaid direction for undertaking fresh selection was given by the Hon'ble Division Bench of this Court while finally deciding the aforesaid appeal on July 5, 2001 when admittedly, West Bengal School Service Commission Act, 1997 has come into force. Therefore, the Division Bench in the aforesaid matter specifically observed that no appointment now can be made for a teacher in the State of West Bengal except on the recommendation of the Service Commission of the concerned region.
16. It is not in dispute that the provisions of the West Bengal School Service Commission Act, 1997 and rules framed thereunder have no retrospective effect and therefore, the process of selection, if initiated prior to coming into force of the West Bengal School Service Commission Act, 1997 and rules framed thereunder, then the said selection process cannot be affected by the provisions of the said Act and rules framed thereunder.
17. In the present case, admittedly, the process of selection for the post of headmaster in the concerned school was started before the West Bengal School Service Commission Act, 1997 has come into force and therefore, following the decision of the Division Bench of this Court in the case of Snehansu Jas (supra), the selection process should be allowed to continue without being affected by the subsequent Act, namely, the West Bengal School Service Commission Act, 1997 since the provisions of the said Act and the rules framed hereunder have no retrospective effect.
18. For the aforementioned reasons, the order passed by the learned Single Judge cannot be sustained and the same is therefore, set aside.
19. Since the post of headmaster is lying vacant for a considerable period and the panel prepared by the Selection committee for the said post of headmaster has already been forwarded to the District Inspector of Schools, (SE), Nadia together with necessary papers and documents, we direct the said District Inspector of Schools, (SE), Nadia to take appropriate decision regarding approval of the said panel prepared by the Selection Committee for the post of headmaster of the concerned school without any further delay but positively within a period of two weeks from the date of communication of this order.
20. This appeal thus stands allowed with the directions mentioned hereinabove. There will be no order as to costs.
21. Let urgent xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
Arunabha Basu, J.
22. I agree.