JUDGMENT
S. B. Sinha, J.
1. This appeal is directed against an order dated 27.6.86 passed by a learned single Judge of this court In C.O. No. 8108(W) of 1986 whereby and whereunder the writ application filed by the writ petitioner was dismissed. The writ petitioner/appellant claimed himself to be an Organiser Teacher of Nawada Palundi Jr. High Madrasah (hereinafter referred to as the said Madrasah). The said Madrasah was recognised by the West Bengal Madrasah Education Board on 5.5.82 with effect from 1.1.82 for Class V and VI and from 1.1.83 for class VII and V1I1. The petitioner was found to be working as an Organiser Teacher in the said Madrasah but keeping in view the staff pattern of the said Madrasah with effect from 5.4.80 the petitioner having not been possessed the B.Sc. qualification his service has not been approved in terms of the circular letter issued by the State of West Bengal. The said circular letter being No, 918-Edn(S)/5M-6/92 (P.P.) dated 23rd October, 1992 is to the following effect :
“Upon upgradation of two class Junior Madrasah and four-class Junior High Madrasahs the qualified teaching and non-teaching staff have been appointed by the Madrasah for running of the non-recognised as higher classes, If any, may also be considered as organising staff for approval of their appointment subject to the following conditions :–
(i) The name(s) of such teacher (s) and non teaching staff are recorded In the final Inspection report leading to such upgradation.
(ii) Such staff possessed the prescribed minimum qualifications for their respective posts at the time of initial appointment.
(iii) Such staff were within the prescribed age limit on the date of Initial appointment was existing at that time.
(iv) Appointment of such teaching and non-teaching staff shall be approved in order of seniority (as recorded In the final Inspection report) strictly In conformity with the existing approved staff pattern.”
2. In view of the fact that the petitioner was not a holder of degree in Bio-Science and as the post which was lying vacant was for Bio-Science, the learned trial Judge by reason of the Impugned order rightly held that the Director of School Education has not acted in any Illegal manner,
3. Mr. De, learned counsel, appearing on behalf of the writ petitioner/ appellant however has drawn our attention to the fact that keeping in view the fact that Bio-Science Teacher was not always available, that State of
West Bengal itself issued a circular being No. (sic) dated 5th December, 1987, the relevant portion whereof reads thus :
“2. while considering cases of approval of organiser teachers of such schools as had applied to the West Bengal Board of Secondary Education before 1975 and subsequently recognised/up-graded with effect from 1.1.86 and 1.1.87, one time special relaxation of the provisions specified above may, however, be made, both In case of Junior High Schools to the extent that (for a 2-class Jr. High School, there will be 3 teachers and for a 4-Class Jr. High School, out of 6 teachers, at least one should be Science Teachers (one for pure science and another for Bio-science and such one-time relaxation cannot be cited as a precedent in any other case, provided that the conditions laid down In sub-clause (a), (b), (c) of clause (I), are fulfilled”.
4. The learned counsel for the appellant further has drawn our attention to the circular letter dated 3rd July, 1992 Issued by the Government of West Bengal, Education Department, Secondary Branch, being No. 641-Edn (S)/4n-9/98.
The learned counsel submits that keeping In view the fact that the petitioner has fulfilled the conditions laid down in the aforementioned circular, the service of the petitioner/appellant may be approved.
5. Having heard the learned counsel for the parties, we are of the opinion that it Is not necessary for us to consider the aforementioned submission of Mr. De, learned counsel, for the appellant In view of the fact that this court is not aware as to whether the post Is lying vacant or not. The said circular letter has prospective effect and thereby the petitioner ipso-facto does not acquire any right to be absorbed In the service but having regard to the facts and circumstances of this case we are of the opinion that In the event the State Government Itself has relaxed the rigour in respect of appointment of Assistant Teacher by Issuing subsequent circular letter and In the event the petitioner has been Working In the said Madrasah and fulfil the criteria laid down therefor, the Interest of justice shall be subserved if the case of the petitioner Is considered by the Director of School Education if the same is applicable in the case of the petitioner.
6. We are further of the opinion that it Is for the statutory authority to consider the matter at the first instance as the High Court itself should not adjudge the suitability of the petitioner to be appointed as an Assistant Teacher In the said Madrasah.
7. This aspect of the matter has recently been considered by the apex court in State of West Bengal v. Nuruddin Mullick .
8. For the reasons aforementioned, the Impugned order Is set aside and the matter Is remitted back to the Director of School Education for consideration of the petitioner’s case afresh. Such consideration may be made at an early date and preferable within a period of eight weeks from
the date of communication of the order. This appeal is disposed of with the aforementioned observation.
Urgent xerox certified copy of this order, If applied for, be supplied on priority basis.
S. N. Bhattacharjee, J.
I agree.
9. Appeal Disposed of