Shrabani Mondal (Pal) vs State of West Bengal

The backdrop of reference has already been

elucidated by my Ld. brothers, Talukdar and Dara

Sheko, JJ. in their separate Judgments. I would

therefore, pen down my own thoughts on the point

as it does pass my mind that the Reference before

us in this Special Bench turns on a pure

interpretation of the statutory provisions and rules

holding the field on the subject issue.

On the one hand, is Section 2 (11) of the West

Bengal Regulation of Recruitment in State

Government Establishments of Public

undertakings, Statutory Bodies, Government

Companies and Authorities Act, 1999 (hereinafter

referred to as the 1999 Act) and, on the other, is

the Recruitment Rules 2001 (hereinafter referred to

as 2001 Rules).

The appellant lays claim to the post of primary

school teacher on the foundation that West Bengal

Primary Council (hereinafter referred to as Council

as defined in Rule 2(e) of the Rules 2001) is beyond

the ambit of the provisions of 1999 Act, as such

State Government or its instrumentality the

''council'' has no power, authority, or jurisdiction to

exclude he being, an ex-census worker, from

selection to the post under the "Exempted

Category" as defined in Section 2(5) of the 1999 Act

in relation to persons who may fall within the zone

of consideration of such "Exempted Category". The

definition reads:-

Section 2(5) :- "exempted category" means the category of persons seeking any job, declared by the State Government to be exempted category under Section 3 .

This contention of appellant is opposed by the

State Counsel on the ground of ineligibility i.e. of not conforming to conditions laid down in

notification dated 21st August 2002 issued by the

Government under the 1999 Act clarifying the

nomenclature of "Ex-census Employees" thus:-

"Clause 4 Ex-Census Employees:-

Ex-Census employees who worked in connection with 1981 Census Operation and who had put in at least six months'' continuous service under the Director of Census Operations, West Bengal.

Ex-Census Enumerators/Supervisors of 1981 Census Operations and 1991 Census Operations holding authentic "Experience Certificate" issued by the Directorate of Census Operations, West Bengal or any other competent authority duly authorized by the said Directorate.

Persons holding ''Discharge Certificate'' only shall not be considered for inclusion in the "Exempted Categories" since certificates granted by certain officials in some cases do not conform to the census frame-work communicated by the Directorate of Census Operations, West Bengal.

Clause 5.

Election Job workers/Enumerators:-

Election job workers and Enumerators as were engaged in the job during the revision/preparation of electoral rolls by the Home (C& E) Department between 1979 and 1st June, 2000 and who had put in a total of at least 240 days''(two hundred forty days) work during the said period.

This supersedes all earlier Circulars and Executive Orders issued from time to time, by the Government of West Bengal in the Labour Department relating to employment of persons belong to the Exempted Categories".

It stands to reason that either of the above

noted provisions were not intended to contradict each other. Starting with the subsequent

notification of the 2001 Rules, the same were

intended to deal with a specific category of

recruitments, viz. that of Primary School Teachers.

A careful reading of the 2001 Rules does not

demonstrate any violence either intended or,

unintended, to be caused to the accepted canons of

reservation as laid down in the statute, viz. the

1999 Act.

Simply put, even in law, as a stream cannot

rise above its source, the 2001 Rules merely seek

to fine tune the several aspects of reservation in

relation to different categories, extent of quotas,

definitions of eligible categories and the like. Upon

a conjoint consideration of the 1999 Act and the

2001 Rules it does not appear that the two could

function in mutually exclusive jurisdictional fields.

Therefore, as correctly appreciated by Brothers

Talukdar and Dara Sheko, JJ., the Reference to the

Special Bench focusing on the ''definition'' of

''exempted category'' cannot be split up to apply

differently, respectively under the 2001 Rules and

the 1999 Act connected to recruitment under a

common employer, viz. the State.

Applying the well-known canons of

interpretation to the issue under Reference

apparently covered by two legislations in the field

of recruitment, a seeming inconsistency between

the two Legislations, guiding principles as have

been laid down by the Apex Court may be applied

in the instant case.

First, it would be appropriate to consider

whether the two provisions are repugnant or not.

Question of repugnancy would arise only in the

cases where both the pieces of legislation deal with

the same matter but not where they deal with

separate and distinct matters, though of a cognate

and allied character. To the doctrine of

occupied/overlapping field, resulting in

repugnancy, the principle of incidental

encroachment would be an exception.

Secondly, even if various provisions of the two

legislations are fragmented, then it would still lead

to the same result and their pith and substance

would still be traceable to the same source.

Furthermore, the constitutionality of the

impugned Act is not to be determined by the degree of invasion into the domain assigned to the other

Legislature but by the pith and substance as

stated above. The true nature and character of the

legislation is to be analyzed to find out whether the

matter falls within the domain of the enacting

Legislature. Any incidental or ancillary

encroachment on a forbidden field does not affect

the competence of the legislature to make the

impugned law.

On this anvil, we shall now examine the

provisions of a self-contained scheme under the

Act, dealing with all the situations arising there

from and the Rules to see that whether they are in

conflict with the State legislation or not. The lis in

the instant case is that can the ''Board'' and

''Council'' as defined in Rule 2(d) and 2(e) of 2001

Rules can co-exist and operate without conflict.

It is not an impossibility for the Court to

reconcile the two statutes, in contrast to

invalidation of the subordinate legislation which

may cause serious legal consequences as the

council being a successor to the office of the Board

is beyond the ambit and scope of opportunity of

1999 Act.

Accepting the argument of the appellant

would certainly frustrate the very object of the

subordinate law, particularly when both the

legislations can peacefully operate together. To us,

there appears to be no direct conflict between the

provisions, viz. reading of provisions of the State

legislation and 2001 Rules, as both these laws

operate in their respective spheres.

It is settled position of law that provision of a

subordinate legislation is to be read within and not

beyond the scope, intent and object of the similar

provision of the main Act, i.e. Rule always

supplements the Act. Therefore, the Act of 1999 in

the instant case, being a special Act regulating

recruitment in State service, would prevail over the

similar provision legislated in Rules particularly, in

view of Section 12 of the 1999 Act. This would also

be in consonance with the provisions of

notifications dated 21st August 2002 with regard to

the persons of exempted categories. Even the

amendment to 2001 Rules in 2009 is silent in this

regard and hence it can be safely said that

legislators were conscious of this fact and have in

their wisdom so provided in the Act and Rule

accordingly, to interpret its context in which it has been legislated and what was the object of the

legislation, is to be conscious to the mind of the

legislator. For this purpose the Act and the Rules,

at the first instance are required to be given a

harmonious construction and thereafter in

fragment so as to bring out the scheme in its

crystal form without distortion of the provisions

and their meaning.

Reading the provision ''Board'', ''Council'' in the

2001 Rules with the eyes of the legislators and

stepping into their shoes to have an inkling of the

object in their mind for such legislation, the court

on perusal of the definition of ''Board'' and ''Council''

under the 2001 Rules finds that there is no

inconsistency.

It is clear enough at the first instance that the

two definitions operate in separate and distinct spheres though legislated under the provisions of

the same statute, having a distinct object and role

to play.

For all the reasons above, the judgment

rendered by the Division Bench in the case of

Director of Employment, Government of West

Bengal vs. Nadia District School Council & Others

is not good law. The reference is accordingly

answered in affirmative.

Subrata Talukdar, J.:

I have had the privilege of reading the judgment of

my Ld. Brother, Mir Dara Sheko, J. While respectfully

concurring with the reasoning and, the conclusion, placed

by my Ld. Brother answering the Reference in the

affirmative, I take this opportunity to add a few lines of my

own.

The Reference before the Hon''ble Special Bench

relates to the ''definition'' (emphasis supplied) of ''exempted category'' as appearing in a State legislation to

be applicable qua a State conceived subordinate

legislation. The first is the West Bengal Regulation of

Recruitment in State Government Establishments and

Establishments of Public Undertakings, Statutory Bodies

and Government Companies and Local Authorities Act,

1999 (for short the 1999 Act) while, the notified rule of the

School Education Department, Primary Branch, is the

West Bengal Primary School Teachers Recruitment Rules,

2001, as amended in 2009 (for short the 2001 Rules).

Without elaborating on the settled legal position that

a species of subordinate legislation can only supplement

and, not supplant a statutory enactment by attempting to

define exempted category separately when, such definition

already exists in the Special Act which is the genus, viz.

the 1999 Act, this Court must emphasise the point that

the selection procedure for appointing primary teachers by

providing, inter alia, for percentage of vacancies against

special categories as well as the modalities of recruitment

by the "Appointing Authority'' under the 2001 Rules, cannot be confused with the ''definition'' of ''exempted category''

under the parent 1999 Act.

As correctly noticed by the Hon''ble Division Bench In

Re: Shrabani Mondal (Pal) vs. State of West Bengal &

Ors . vide its judgment and order dated 7th of January,

2011 in MAT 1179 of 2010 with CAN 7949 of 2010, the

1999 Act specially regulates recruitment in State

Government establishments which are defined to mean

public undertakings, statutory bodies, Government

Companies and local authorities thereby, ushering within

its fold even recruitment by a Primary School Council or

Board, even if independently tasked to execute

appointments under the 2001 Rules but, not beyond the

provisions of the parent statute.

This Court must further notice that the 1999 Act

makes categorical mention, vide Section 12 thereof, for

exemption by way of a notification any Appointing

Authority from all or any of the provisions of the 1999 Act

in respect of any category of posts as may be specified in

such notification. It stands to reason therefore that barring the Notification of the Labour Department

published on 21st August, 2002 (for short the 2002

Notification) declaring categories of persons as exempted

categories for the purpose of the 1999 Act, there is no

mention of any exemption under Section 12 of the 1999

Act to recruitment under/by the Primary School

Council/Board.

To the further mind of this Court, neither the 2001

Rules, as amended in 2009, laying down the selection

procedure, provides for a savings clause exempting the

1999 Act as clarified by the 2002 Notification from

applying to the appointment of primary teachers. Quite

otherwise, the 2001 Rules, as amended in 2009, provide

for preserving the percentage of vacancies in favour of

different categories of candidates including "other

exempted category as may be specified", in other words, as

specified under the 1999 Act.

Finally, this Court must address the findings of the

Hon''ble Division Bench dated 28th July, 2009, In Re:

Director of Employment, Government of West Bengal vs. Nadia District School Council & Ors. (MAT 1053 of

2007) reported in 2009 (4) CHN 442. To the best of the

understanding of this Court, the finding of the Hon''ble

Division Bench in 2009 (4) CHN 442 (supra) that the

Primary School Council has been set up under a special

rule making exercise and, not being the successor-in-office

to the Board is therefore outside the purview of Section

2(11) of the 1999 Act, does not, with great respect,

address the controlling opening lines of S.2 which

stipulate as follows: "unless the context (emphasis

supplied) otherwise requires".

Again, to the best of the understanding of this Court,

no different context is made out qua the Primary School

Council under the 2001 Rules, as amended in 2009, apart

from executing the selection/appointing procedure of

teachers as envisaged by law. Therefore, the Primary

School Council while seeking to perform its obligations

under the 2001 Rules (supra) is required to play its role in

the same context as the Board defined under Section 2(11)

of the 1999 Act.

This Court is accordingly of the view that the Hon''ble

Division Bench In Re: 2009 (4) CHN 442 while placing

emphasis on the special rule making exercise behind

constitution of the Primary School Councils, failed to

appreciate the context in which the power conferred on the

Councils could be exercised. Since both, under the Board

or, its successor-in-office, viz. the Council, the context did

not change and, it is nobody''s case that either the Council

or the Board stood exempted by operation of Section 12 of

the 1999 Act, the impact of the 1999 Act on the 2001

Rules cannot be read down.

With reference to the above noted discussion reliance

may be usefully placed on the observations of the Hon''ble

Apex Court In Re: Reserve Bank of India vs. Peerless

General Finance and Investment Co. Ltd. & Ors .

reported in 1987 (1) SCC 424 at Paragraph 33 thereof,

which reads as follows:-

"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the court construed the expression ''Prize Chit'' in Srinivasa and we find no reason to depart from the court''s construction."

To quote, "in law context is everything".

For the above reasons I concur with the conclusion of

my Ld. Brother, Mir Dara Sheko, J., answering the

Reference in the affirmative.

Mir Dara Sheko, J. :

The reference arose amidst hearing of the

Mandamus Appeal before the Division Bench,

preferred by the appellant/writ petitioner who was

unsuccessful in getting appointment to the post of

primary school teacher. He claims to be an eligible

candidate under "Exempted Category."

Learned Counsel for the appellant/writ petitioner

submits that Section 2(11) of the West Bengal

Regulation of Recruitment in State Government

Establishments of public undertakings, statutory

bodies, Government Companies and Authorities

Act, 1999(No. 14 of 1999), (referred to hereafter as

Act of 1999), does not cover the West Bengal

Primary Education Council hereinafter referred to

as "Council"; that since "Council" being a mere

successor-in-office of the "Board" the Act of 1999

has no application in regard to an employment

under the "Council".

It is further submitted that the Government or the

"Council" cannot take recourse to the Notification

dated 21st August, 2002 issued in exercise of the

power conferred under the Act 1999 to exclude the

candidature of the appellant, who was eligible to get

appointment under "Exempted category" being an

"ex census" worker.

In support of his aforesaid contentions learned

Counsel for the appellant/ writ petitioner relied

upon the judgment delivered in appeal by an earlier

Division Bench of this Court reported in (2009) 4

Calcutta High Court Notes at 422 of Director of

Employment, Government of West Bengal Vs. Nadia

District School Council & Ors. It is lastly submitted

that law is well settled that a special law legislated

by the parliament having received the assent of the

president would prevail over a general law on the

subject, therefore, the West Bengal Primary

Teachers Act, 1973 having received Presidential assent then the General Act of 1999 would not

apply, hence the candidature of the appellant was

liable to be considered in accordance with

provisions of the Special Act and Recruitment Rules

2001(hereinafter referred to as RR, 2001).

The contention of the Learned Counsel for the

appellant is opposed by the State. It is submitted

that impugned certificate dated May 13, 2010

certifying performance of duties related to the work

done by the appellant only in the first phase of

census 2001, he therefore, is not eligible as he does

not fulfill the conditions laid down in Clause 5 of

Notification no. 301-Emp/1 M-10/2000 dated

August 21, 2002 issued under the Act, 1999.

It is further stated that the said Act 1999 would be

very much applicable to operate in the field, since

except notification dated August 21, 2002 no other

notification was ever issued by the Government to

extend the zone of consideration for the Ex-census workers to any other census operation after 1991.

It is also reiterated that the "Council" did not also

consider candidature of any candidate for

appointment, who was engaged in the census

operation after 1991.

I have also taken note of the Notification No. 240-

EMP/IR-5/2000 dated 2nd August 2001 issued by

the Government of West Bengal Labour Department

prescribing 100-point roster earmarking therein

posts reserved for all reserved categories including

"Exempted categories" in exercise of the powers

conferred by Section 14 read with Section 3(b) and

13 of the Act 1999. Clause (4) and (5) of the

aforesaid Notification. The mode of collection of

names of candidates belonging to "Exempted

category" in clause (4) and (5) are set out

hereunder:-

Clause (4):- All appointing authorities should obtain names from Exempted Category Cell under the Directorate of Employment, West Bengal, to full up the vacancies meant for Exempted Category Candidates in the above roster except the cases of Employment on compassionate ground, Viz death-in- harness and premature retirement due to permanent incapacitation.

Clause (5):- The relevant Notification issued by the Finance Deptt. Relaxing upper age limits for SC/ST/BC persons with disabilities, ex-servicemen and Exempted Category Candidates may be kept in view while calling for names from the sponsoring agencies concerned and at the time of offering employment.

To make the selection procedure absolutely

transparent, three Judges Bench of the Supreme

Court in the case of Excise Superintendent

Malkapatnam Vs. K. B. N. Visweshwara Rao & Ors.

reported in (1996) 6 Supreme Court Cases 216 on

which Learned Counsel for the State relied, held in

paragraph 6 as follows:-

Paragraph 6:- We are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprive of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly accordingly to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates.

From Notification dated 21st August, 2002

aforesaid, the nomenclature of "Ex-census

Employees" have been clarified thus:-

"Clause 4

Ex-Census Employees:-

Ex-Census employees who worked in connection with 1981 Census Operation and who had put in at least six months'' continuous service under the Director of Census Operations, West Bengal.

Ex-Census Enumerators/Supervisors of 1981 Census Operations and 1991 Census Operations holding authentic "Experience Certificate" issued by the Directorate of Census Operations, West Bengal or any other competent authority duly authorized by the said Directorate.

Persons holding ''Discharge Certificate'' only shall not be considered for inclusion in the "Exempted Categories" since certificates granted by certain officials in some cases do not conform to the census frame-work communicated by the Directorate of Census Operations, West Bengal.

Clause 5.

Election Job workers/Enumerators:-

Election job workers and Enumerators as were engaged in the job during the revision/preparation of electoral rolls by the Home (C& E) Department between 1979 and 1st June, 2000 and who had put in a total of at least 240 days''(two hundred forty days) work during the said period.

This supersedes all earlier Circulars and Executive Orders issued from time to time, by the Government of West Bengal in the Labour Department relating to employment of persons belong to the Exempted Categories". General procedure has been laid down following

Clause 7 and in cases of Ex-census employees, as

well as electing workers and enumerating the

relevant provisions are set out:-

Clause 7:-The Director of Employment, West Bengal, will maintain the list of eligible persons belonging to the exempted category of land losers as enrolled in the Exempted Category Cell along with the lists of eligible persons included in other exempted categories.

Ex-Census Employees:- The Director of Employment, West Bengal, will maintain the list of eligible persons of this category on the basis of enrolment in the Exempted Category Cell of the Directorate of Employment.

Election Job Workers & Enumerators:- The Home (C&E) Department will forward the names of eligible Election Job Workers and Enumerators, who have put at least 240 days'' (Two hundred forty days) work upto 1st June, 2000, to the Director of Employment, West Bengal for enrolment in the Exempted Category under the Directorate of Employment. The Director of Employment, West Bengal, will maintain a list of eligible persons of this category as enrolled in the Exempted Category Cell of the Directorate of Employment.

The Division Bench in dealing with the instant

MAT No. 1179 of 2010 with CAN 7949 of 2010 did

not subscribe the view of earlier Division Bench

held in the case of Director of Employment

Government of West Bengal Vs. Nadia District School

Council & Ors. (supra) assigning following reasons:-

(a) The Recruitment Rules are silent as regard definition of the "Exempted Category" which is provided in the Act, 1999. Therefore in the case on hand the Act, 1999 is applicable.

(b) Whereas the earlier Division Bench in the case of Nadia District School Council (supra) held that the Act 1999 would not be applicable to the West Bengal Primary Education Council since the council was successor-in-office of the "Board" and such council would not come within definitions of either "Corporation" or "Society" and thereby such council was not a creature of statute.

In view of the above and since the later Division

Bench could not accept the view of the former

Division Bench in regard to applicability of Act

1999 reference is made for seeking clarification on

the following lis:-

(c) "Whether the definition of "exempted category" as given in Section 2(5) of the West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory bodies and Government Companies and Local Authorities Act, 1999 applies to the process of recruitment of primary teachers under the West Bengal Primary Teachers Recruitments Rules, 2001 as amended up to date".

There is no doubt but to observe beyond

ambiguity that the Governor, in exercise the power

conferred under sub-section (1) and Clause (k) of

sub-section (2) of Section 106 read with Clause (k)

of sub-section (I) of Section 60 of the West Bengal Primary Education Act, 1973 was pleased to make

the West Bengal Primary School Teachers

Recruitment Rule 2001(hereafter referred to as R.R.

2001) providing mode of recruitment of primary

teachers in primary schools under the "Council".

These rules were made in cancellation of previous

rules framed under Notification no. 768-Edn(P)

dated 22nd November, 1991.

The terms "Board" and "Council" have been

defined under Clause 2(d) and 2 (e ) of said R.R.

2001 read:-

(d) Clause 2(d):- "Board" means the West Bengal of Primary Education established under the Act;

(e)

(f) Clause 2(e):- Council means a primary School Council established under the Act;

It is noticed that the concerned advertisement for

selection of the primary school teachers was

published on 18th March, 2010 while the "Council"

came into existence to operate the field. Therefore, it would not be correct to say that new provisions

which came with its provisions would apply.

The "Board" and the "Council" have separate

identity to exercise powers envisaged in the Act and

Rules thereunder, for which they have been created

as subscribed by notification issued from time to

time. It would, therefore be a wrong perception to

read "Council" as successor-in-office of the "Board",

or, alternatively the "Board" as predecessor-in-office

of the "Council", for the reason that it has no

support from the statute itself. Accordingly, the

view of earlier Division Bench in the case of Nadia

District Primary School Council & Ors. that the

"Council" cannot be interchanged by "Board" as

both are the creature having independent purpose

under the same statute.

Needless to say that interpretation of any

provision of a statute is to be held in consonance of

the Act and Rules framed thereunder, provided there is no repugnancy between the provision of

statute and its related rules, or, the Notifications

published from time to time having received assent

either of the President or of the Governor of the

State. The Act 1999 having received the assent of

the Governor would prevail over a state rule or

notification on the same subject, and would apply

to all posts in State Government establishments

and other establishments as mentioned in Section

1(4) of the Act, 1999.

It appears from Rule 9(c) R R 2001 that though

preparation of a separate panel to fill up the

reserved vacancies from the candidate belonging to

"Exempted Category" and others with the

provision(s) were laid down but it is silent as to who

are the candidates under "Exempted Category".

Therefore, the court has to fall back to the

provisions of the Act of 1999 and its subsequent

notifications.

I accordingly find that District Primary School

Council is the creature of the statute to act within

its power envisaged by the Act and rules framed

thereunder satisfying the conditions of sub-section

(4) of Section (1) of the Act, 1999 so far as its

applicability to the case is concerned.

Sub-Section (4) of Section 1 of the Act, 1999 is set

out:-

It shall apply to all posts in State Government establishments and establishments of public undertakings, statutory bodies, Government Companies and local authorities, other than the posts which are required to be filled up either on the recommendations of-

(a) the Public Service Commission, West Bengal, or

(b) the West Bengal College Service Commission constituted under the West Bengal College Service Commission Act, 1978, or

(c) the West Bengal Regional School Service Commission constituted under the West Bengal School Service Commission Act, 1997, in respect of any of the regions referred to in sub- section (2) of section 2 of the said Act, or

(d) any Municipal Service Commission constituted under any law for the time being in force, or

(e) the Co-operative Service Commission constituted under the West Bengal Co-operative Societies Act, 1983,

or by promotion, or by absorption of person declared surplus by the State Government or by absorption of such categories of casual workers and other workers as the State Government may be notification specify form time to tome or by person included in the exempted category. 18. Before entering further into discussion, I

consider the definition of "Exempted Category" laid

down in Section 2(5) and the definition of

"Statutory Body" under Section 2(11), read with

Section 3(a) of the Act 1999 as to the persons who

would come within the zone of such consideration

of "Exempted Category".

Section 2(5) :- "exempted category" means the category of persons seeking any job, declared by the State Government to be exempted category under Section 3 .

Section 2(11) :- "statutory body" means any board, corporation, or society not being a local authority, set up under any law for the time being in force and the affairs of which are controlled by the State Government.

Section 3(a) :-Exempted category- The State Government may, from time to time declare any class or category of persons to be exempted category for the purpose of the Act.

From reading of Section 2 sub-section (11) of

the Act, 1999 it can be safely held that any board,

corporation or society set up under any law are

inclusive within the definition of "Statutory Body"

provided those are controlled by or under the

authority of the State Government. Hence, the

District Primary School Council, controlled by the State Government can be considered, as a

"Corporation" within the definition of "Statutory

Body", since all its transitional provisions regarding

existence of Primary School Council are subject

matter of Chapter XIII of the West Bengal Primary

Education Act, 1973.

Whether the appellant/writ petitioner of the

case would be eligible or not for appointment as

"Ex-census worker", is the lis to be determined by

the appropriate Bench hearing the appeal?

Taking note of the provisions of Act 1999 and

the R.R. 2001 and all subsequent notifications

under reference I find no repugnancy anywhere in

the provisions so laid down in the West Bengal

Primary Education Act, 1973, or, in the Act 1999,

or, in the R.R. 2001 and its subsequent

Amendments made by Notification No.301-EMP/IM-

10 2000 dated 21st August, 2002 as well as

notification no. 268-SE(P)/10M-06/2009 dated 19.05.2009. Rather the Act 1999 provides that it

shall apply to all posts as mandated under Section

1 sub-section (4) of the Act, 1999. Therefore the

"Council" meant for primary schools cannot be said

to have been set up "under the rule making

process, as was wrongly held by earlier Division

Bench in the case of Nadia District School Councils

& Ors. (supra) and therefore the said view cannot

be subscribed. The "Board" and "Council" are the

creatures of the same statute to act independently

in accordance with the provisions of Act and Rules.

In view of above the point of reference is

answered in the affirmative i.e. the provisions of the

Act 1999 and subsequent notifications issued in

exercise of power under such Act are applicable in

the instant Mandamus appeal, and the decision of

earlier Division Bench held in the case of Director of

Employment, Government of West Bengal Vs. Nadia

District School Council and Ors. is not to be followed for answering the issue involved in the said

Mandamus appeal.

As a consequence of answering to the reference

the stay application being CAN 7949 of 2010 is also

disposed of. With such expression of opinion upon

the point of law let the case be now placed before

the referral Division Bench of this Court for final

adjudication and ultimate decision in the

Mandamus appeal.