JUDGMENT
The Court
1. The writ petitioner is the Secretary of Abeshkuri High Madrasah situated at Gangarampur in the district of Dakshin Dlnajpur. It appears that on the death of the Assistant Teacher in the Advanced Arabic group on 3rd February. 1994, the said post became vacant and the authorities of the Madrasah applied to the District Inspector of Schools (S.E.). Dakshin Dinajpur, for prior permission to fill up the said post. Such permission was granted by the District Inspector of Schools (S.E.), Dakshin Dlnajpur, by his Memo dated 28th April, 1997, with a direction upon the school authorities to fill up the post through the Employment Exchange from a Scheduled Caste candidate, as the vacancy was required to be filed up by a Scheduled Caste candidate as per the 100 point roster. The requisite qualification that a candidate was required to have, as indicated in the prior permission given by the District Inspector of Schools, was Mumtazul Majahethin, M.M. for short, which deals with Islamic Theology.
2. Pursuant to the permission given by the District Inspector of Schools, the authorities of the Madrasah applied to the Employment Exchange for sponsoring the names of Scheduled Caste candidates with M.M. qualification for filing up the post, but the local Employment Exchange was unable to sponsor a single name and forwarded the application of the Madrasah to the Special Employment Exchange for Scheduled Castes and Scheduled Tribes. Purta Bhaban, Salt Lake City, for sending the names of eligible candidates to the Madrasah. By its Memo dated 21st June, 1997, the Employment officer, Special Employment Exchange for S.C./S.T. informed the local Employment Exchange and the Secretary of the Madrasah of his inability to sponsor the names of eligible candidates owing to nonavailability of Scheduled Caste candidates having M.M. qualification.
3. Thereafter, the authorities of the Madrasah published an advertisement in the Bengali daily “Aajkal” on 16th September, 1997. Inviting applications from Scheduled Caste candidates, having M.M. qualification, for filling up the post. No response was, however, received to such advertisement.
4. The Managing Committee of the Madrasah thereupon adopted a resolution on 7lh October, 1997, requesting the Secretary and Headmaster to apply to the District Inspector of Schools for dereservation of the post and to convert the same from a reserved post to a post to be filled up from general candidates as the students were suffering from 1994 and there was no likelihood of getting a Scheduled Caste candidate, having M.M. qualification, to fill the post.
5. In the meantime, considering the need of the students the authorities of the Madrasah appointed one Abdul Wahed, the respondent No. 8 herein, who had the requisite M.M. qualification, as Arabic teacher on a part-time casual basis. According to the writ petitioner the said Abdul Wahed is taking regular Arabic Classes in the Madrasah since his appointment on 27th March, 1996.
6. On 18th November. 1998, the writ petitioner applied to the District Inspector of Schools (S.E.), Dakshln Dinajpur, to dereserve the post in the Interest of the students of the Madrasah, but it is the petioner’s grievance that the said application has not been considered by the District Inspector of Schools on the ground that the West Bengal School Service Commission Act, 1997. had come Into effect from 1st November, 1997, and all appointments of teachers in Secondary Institutions were required to be made on the recommendation of the School Service Commission after the said date.
7. Appearing in support of the writ petition, Mr. Kamalesh Bhattacharya submitted that the stand taken by the District Inspector of Schools was not Justified since the selection process had commenced long before the West Bengal School Service Commission Act, 1997, hereinafter referred to as the “1997 Act”, came into force. It was urged that when the Madrasah had applied for dereservation of the post the District Inspector of Schools should have taken steps in keeping with section 6(2) of The West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976, instead of taking the plea that he was no longer competent to do so, since the 1997 Act had come into force in the meantime.
8. Mr. Bhattacharya submitted that because of the inaction on the part of the District Inspector of Schools in terms of section 6(2) of the aforesaid Act, Abdul Wahed moved a writ application, being W.P. No 1759[W) of 1999, which was disposed of on 16th July, 1999. with a direction upon the Joint Commissioner for Reservation and Ex-offlcio Joint Secretary, Scheduled Castes and Scheduled Tribes Welfare Department, the respondent No. 4 herein, to consider and dispose of the matter within two weeks from the date of communication of the order in accoordance with law and to communicate his decision to the District Inspector of Schools who was also directed to give appropriate directions and/or give appropriate prior permission to the Madrasah for filling up the post in accordance with law.
9. It was submitted that pursuant to the aforesaid order the matter was heard by the Joint Commissioner for Reservation on several days, and, ultimately, by his order dated 5th April, 2000, he rejected the prayer made on behalf of the Madrasah for dereservatlon of the post on account of the coming Into operation of the 1997 Act and observed that the school authorities should approach the concerned Regional School Service Commission for a candidate from the right community to fill up the vacancy. In case the concerned School Service Commission was unable to sponsor such candidate and issue a non-availability certificate to that effect, the school authorities could then apply afresh for dereservatlon of the post.
10. Mr. Bhattacharya submitted that the Joint Commissioner for Reservation was wrong in proceeding on the basis that the 1997 Act applied to the case of the petitioner’s Madrasah, Mr. Bhattacharya pointed out that the vacancy had occurred on 3rd February. 1994. Prior permission to fill up the vacancy was given by the District Inspector of Schools (S.E.), Dakshin Dlnajpur, on 28th April, 1997 and the Employment Exchange was notified of such vacancy on 7th May, 1997. The Employment Exchange expressed Its Inability to sponsor the name of a suitable candidate on 9th August, 1997. The vancancy was then advertised on I6th September, 1997, in Aajkal.
11. Mr. Bhattacharya urged that all the above steps had been taken prior to the coming Into effect of the 1997 Act on 1st November, 1997 and the selection process having commenced with the prior permission given to the school to fill up the vacancy, the recruitment rules as existing on the date when such prior permission had been given, would continue to govern the process of recruitment. Accordingly, the prayer made by the authorities of the Madrasah for deservatlon of the post, should have been considered under section 6(2) of the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacanles in Services and Posts) Act, 1976.
12. In support of his submissions. Mr. Bhattacharya firstly referred to a Bench decision of this Court in the case of Basudeb Bag v. Bhaskar Chandra Kar & Ors. (1996 (1) CLJ 230) wherein it was, Inter alia, held that since the vacancies had arisen prior to change of the recruitment procedure, the selection process should continue under the old Rules.
13. Mr. Bhattacharjee submitted that while rendering the aforesaid decision, the Division Bench had occasion to consider two judgments of the Hon’ble Supreme Court, namely, 1} Y.V. Rangateh & Ors. v. J. Sreenfvasa Rao & Ors. and 2) P. Mahendran & Ors. v. State of Karnataka & Ors. .
14. Mr. Bhattacharjee submitted that in the first of the two cases the Hon’ble Supreme Court was considering the effect of the amendment of the Andhra Pradesh Registration and Subordinate Service Rules on the vacancies which had arisen prior to such amendment. Under the old rules a panel had to be prepared every year in September. The Hon’ble Supreme Court held that if such panel had been prepared in 1976, the petitioners would not have been deprived of their right to be considered for promotion. The Supreme Court emphasised further that vacancies which had occurred prior to the amended rules would be governed by the old rules and not by the amended rules.
15. Mr. Bhattacharjee pointed out that in the second case the Hon’ble Supreme Court was considering a case involving commencement of the process of selection vls-a-vis amendment of the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962 with prospective effect. In the said context it was observed as follows :-
“It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either Interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary Intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary Intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.”
16. Mr. Bhattacharjee submitted that the Hon’ble Supreme Court noted the fact that under the Recruitment Rules as well as under the advertisement dates 6-10-1983 Issued by the Public Service Commission, holders of Diploma in Mechanical Engineering were eligible for appointment to the post of Motor Vehicles Inspector alongwith holders of diploma in Automobile Engineering. On receipt of applications, the Commission commenced Interview but before the selection process could be completed, the recruitment rules were amended in 1987, in such background, the Hon’ble Supreme Court observed that since the process of selection had commenced and could not be completed on account of Interim orders passed by the Karnataka High Court, the appellant’s right to selection and appointment could not be defeated by subsequent amendment of the Rules.
17. Mr. Bhattacharya submitted that in passing the aforesaid Judgment the Hon’ble Supreme Court relied on Its earlier Judgment in the case of A.A. Calton v. The Director of Education & Ors. which was an appeal from a Judgment of the Allahabad High Court dismissing the writ petition filed by the appellant wherein he had challenged the validity of the appointment of one Mr, A.P. Joseph as Principal of the Ranikhet Intermediate College, Ranlkhet, which was a minority institution enjoying the protection of Article 30 of the Constitution. Mr. Bhattacharjee submitted that in the said case the Hon’ble Supreme Court was considering the effect of amendment of the recruitment rules for selection of the principal of an Intermediate College. In the said case also it was held, Inter alia, that while it was true that the amendment took away the power of the Director of Education to make an appointment under section 16-F(4) of the U.P. Intermediate Education Act, 1921. It did not do so with retrospective effect, and as a result the amendment could not have any effect on proceedings for selection and recruitment which had already been commenced.
18. Mr. Bhattacharya also relied on a single Bench decision of this Court In the case of The Managing Committee, Kanatdight Deshapmn Vidyapith v. The State of West Bengal & Ors. (1998 (2) CLJ Page 496) where the learned Judge was of the view that since the posts in question had fallen vacant and the Managing Committee had sought permission to fill up the vacancies prior to the commencement of the West Bengal School Service Commission Act, 1997, the process of recruitment would have to continue in accordance with the Rules then existing.
19. Mr. Bhaltacharya submitted that a departure was made from the aforesaid view by a Division Bench of this Court in the case of Narayan Baldya v. District Inspector of Schools (S.E.), South 24 parganas, & Ors. (2000(1) CLT Page 487. HC) while considering the effect of section 9 of the 1997 Act. Mr. Bhattacharjee submitted that in the said case prior permission had been given on 9th December, 1996 and an interview was also held on 17th March, 1997. but no panel was prepared. On a writ appllcallon being filed, a learned Judge of this Court on 29th September, 1997. directed a fresh Interview to be held. However, on 27lh November, 1997, the District Inspector of Schools passed an order that the said post would have to be filled on the recommendation of the School Service Commission since the west Bengal School service Commission Act. 1997, had come into operation from 1st November, 1997. A writ petition filed against the said decision of the District Inspector of Schools was dismissed on 18th September, 1998. An appeal was preferred against the said order, being M.A.T. No. 3466 of 1998.
20. Mr. Bhattacharya submitted that in the appeal the Division Bench, after observing that there could not be any doubt that the selection process starts from the date of grant of prior permission, keeping in view the fact that in other cases the same will begin from the date when an advertisement therefrom is made, held that since Rule 28 of the Rules for the Management of Recognised Non-Government Institutions (Aided and Unaided), 1969, had been substituted, it would be deemed that it would have effect as if the same was existing from the beginning. On such consideration, it was observed further that as the selection process was not complete and no panel had been prepared, the question of approval thereof by the District Inspector of Schools did not arise.
21. Mr. Bhattacharya submitted that the aforesaid view was reiterated by the Division Bench in the case of Abdul Mannan laskar v. State of West Bengal (2000 (1) CHN. Page 436). In the said case it was observed that in view of the fact that since the right of the candidates for being considered could have arise only upon their names being sponsored and/or the issue of advertisement and as prior to that date, the 1997 Act and the Rules framed thereunder had come Into force, the question of any selection being made in violation thereof, did not arise.
22. Mr. Bhaltacharya submitted that the said two cases were not in conformity with the views expressed by the Hon’ble Supreme Court in Y.V. Rangaiah’s case and in P. Maliendran’s case, as also in the case of A.A. Calton, which had been noticed both in Basudev Bag’s case and thereafter in Narayan Batdya’s case and in the case of Abdul Manntm Laskar.
23. Mr. Bhattacharya urged that having regard to the views expressed by the Hon’ble Supreme Court in the above-mentioned cases, the decision of the Joint Commissioner for Reservation was erroneous and could not be sustained.
24. Appearing for the State, Mr, Arabinda Chatterjee submitted that having regard to the later Bench decisions of this Court in Narayan Baidya’s case and in Abdul Mannan Laskar’s case, the school had no legal right which it could seek to enforce in the writ proceedings.
25. Referring to the Bench decision in Abdul Mannan Laskar’s case, Mr. Chatterjee submitted that it had been observed therein that the right of the candidates to be considered could have arisen only upon their names being sponsored and/or issue of advertisement. It was urged that in the present case neither had any names been sponsored nor had anybody applied to fill up the post prior to the coming into operation of the West Bengal School Service Commission Act, 1997.
26. Mr. Chalterjee also submitted that, although, earlier there was provision for dereservatlon of posts, with the coming Into force of the aforesaid Act, the same stood abrogated and would no longer be acted upon.
27. Mr. Chatterjee urged that the subject matter of the writ petition related mainly to dereservatlon, and, as a consequence, all the various decisions cited by Mr. Bhattacharya were not really of any assistance to the writ petitioner’s case and the writ petition was liable to be dismissed.
28. From the various decisions cited what emerges is that while the Hon’ble Supreme Court was of the view that once the selection process starts the same has to be concluded in terms of the law and rules as existing at the time of commencement of the selection process, this Court has expressed divergent views at different times and the Division Hench has indicated that not only should the selection process be commenced, but it must also be concluded before the recruitment rules are amended, as otherwise, the amended rules would intervene.
29. In Narayan Batdya’s case what was sought to be emphasised was the substitution of Rule 28 of the 1969 Management Rules. The Division Bench distinguished the earlier views expressed in Basmlui’ Bag’s case relying on the views expressed by the Hon’ble Supreme Court in Rangaiah’s case, P. Mahendran’s case and A.A. Calton’s case. It was held that since Rule 28 had not been amended but substituted, the substituted provisions must be deemed to have been engrafted in the original Rules, thereby giving retrospective effect to the substituted provisions so as to make the same applicable even before the West Bengal School Service Commission Act, 1997, came Into force.
30. In Abdul Mannan Laskar’s case the Division Bench proceeded on the basis that, although. Initially prior permission had been given by the District Inspector of Schools (S.E.) South 24 Parganas to fill up the post of Assistant Teacher on 20th September. 1993, no selection was made on that basts and a fresh permission was granted on or about 12.11.97/27.10.98 when the West Bengal School Service Commission Act had already come Into force. Pursuant thereto, an advertisement had also been published Inviting applications for filling up the vacancy on 2nd December, 1998. Thereafter, a panel was prepared and sent to the District Inspector of Schools on 12th February. 1999, for approval.
31. In the said background, the Division Bench observed that since the right of the candidates for being considered could have arisen only upon their names being sponsored and/or the Issue of advertisement and since prior thereto the aforesaid Act had come into operation, the recruitment process to fill up the vacancy would be governed by the said Act.
32. Inspite of taking a contrary view in Narayan Batdya’s case and in Abdul Mannan Laskar’s case from that expressed in Basudcu Bag’s case, the Division Bench noted that the selection process starts from the date of grant of prior permission or from the date an advertisement therefrom is made. It was also observed that since the selection process had not been completed, that earlier rules relating to recruitment would no longer apply and would stand supplanted by the provisions of the 1997 Act.
33. The views expressed in the said two decisions appear to be at variance with those expressed by the Hon’ble Supreme Court in Y.V. Rarigaiah’s case. P. Mahendran’s case and in the case of A.A. Calton. The common thread which runs through the said Judgments of the Supreme Court is that once a process of selection is commenced, the rules as existing at the time of commencement of the proceedings will govern such process to its end, notwithstanding that the same may have been amended and varied in the meantime. In fact, the views expressed in P. Mahendran’s case was followed by the Hon’ble Supreme Court recently in the case of Gopal Krushna Rath v. M.A.A. Batg & Ors. . A harmonious construction will have to be given to the views expressed by the Hon’ble Supreme Court and this Court.
34. If, therefore, as observed in Narayan Baldya’s case, the selection process commenced when prior permission was granted by the District Inspector of Schools, then having regard to the views expressed by the Hon’ble Supreme Court, the said process would be governed by the rules as existing when such permission was granted and not by the provisions of the 1997 Act by which such process was altered.
35. Apart from the above, the authorities of the Madrasah had no control over the fact that the particular vacancy, which was required to be filled up by a teacher having Mumtazul Majahethin qualification, was a reserved post in keeping with the 100 point roster and that no candlated was available to fill up same for about six years. Since the recruitment process began with grant of prior permission by the District Inspector of Schools on 28th April, 1997, the same would be governed by the rules as existing on that date. The issue for consideration in this case does not Involve the sponsoring of names for filling up the vacancy, since the Employment Exchanges had expressed their Inability to sponsor a candidate having the requisite qualification, but the question Involving the prayer made on behalf of the Madrasah to the District Inspector of Schools to dereserve the post in accordance with section 6(2) of the 1976 Act which reads as follows :-
“Dereservation of reserved vacancy-
(1) …..
(2) Notwithstanding anything contained in subsection (1), If, in the public Interest, it is necessary to fill up any vacancy as aforesaid remaining unfilled on account of non-avallablllty of a qualified Scheduled Caste or Scheduled Tribe candidate, as the case may be, the appointing authority shall refer the vacancy to the State Government for dereservation. Upon such reference the State Government may, if it is satisfied that it is necessary or expedient so to do, by order, dereserve the vacancy, subject to the condition that the reservation against the vacancy so dereserved shall be carried forward against the subsequent unreserved vacancy.”
36. The authorities of the Madrasah had duly applied to the District Inspector of Schools For taking steps to dereserve the post, but because of Inaction on the part of the said authority, a writ application was moved and the Joint Commissioner for Reservation was directed to consider the matter. The Joint Commissioner for Reservation, after considering the provisions of section 6(2) of the 1976 Act. was of the view that the power to de-reserve the vacancy vests solely on the State Government and the school authorities ought to have applied to the State Government in that behalf, instead of approaching the District Inspector of Schools, who did not have such authority, for appointment of a Central candidate against the reserved quota.
So far so good.
37. The problem begins with the further observation made by the Joint Commissioner for Reservation that the school authorities should approach the concerned Regional School Service Commission for a candidate from the right community to fill up the vacancy. If the recruitment rules as existing when prior permission was given are to apply to the facts of this case, then it is not for the Commission to make any recommendation to fill up the vacancy, but for the District Inspector of Schools to allow the authorities of the Madrasah to advertise and invite applications from eligible candidate to fill up the vacancy.
38. The views expressed by the Joint Commissioner for Reservation that it is the State Government which is competent to dereserve the post and that the school authorities, as the appointing authority, should have approached the Government for such deservatlon, is in conformity with the provisions of section 6(2) of the 1976 Act.
39. Having regard to the submissions made on behalf of the respective parties and the materials on record, leave is given to the authorities of the Madrasah to apply to the State Government in Its Backward Classes Welfare Department for dereservation of the post, in keeping with the provisions of section 6(2) of the 1976 Act, and if such application is made, the State Government is directed to take a pragmatic view in considering the matter to avoid unnecessary hardship to the Madrasah and Its students, within one month from the date of recellpt of such application, after giving the authorities of the Madrasah and the respondent No. 8 a reasonable opportunity of being heard and producing relevant documents and keeping in mind the inability of the Employment Exchanges. Including the Special Employment Exchange, to sponsor the name of a single candidate for filling up the vacancy.
40. If the prayer of the Madrasah and its authorities is allowed and the post in question is dereserved, the authorities of the Madrasah will then be entitled to apply to the District Inspector of Schools (S.E.). Dakshln Dlnajpur, who shall take appropriate steps to ensure that the post is filled up expeditlously.
The writ application is thus disposed of.
There will be no order as to costs.
All parties to act on a signed copy of the operative portion of this judgment on the usual undertaking.
41. Application disposed of