Srikanta Halder vs State Of West Bengal Ors.

Shekhar B. Saraf, J.

This is an application under Article 226 of the Constitution of India wherein the petitioner is aggrieved by an order dated January 10, 2008 passed by

the District Inspector of School (S.E.), Purba Burdwan (hereinafter referred to as the “D.I. of Schoolsâ€). By this order, the said D.I. of Schools,

in compliance with the order passed in W.P. No. 345 of 2017, had passed a reasoned order in relation to a request for granting prior permission for

filling up the post of Group ‘D’ Staff of the Khaja Anwar Sahid Berth High School (H.S.) (hereinafter referred to as “said schoolâ€) 1lying

vacant since March, 2002.

The chronological facts leading to this writ petition are as follows:-

a. A vacancy for the post of a Group ‘D’ staff arose on March 1, 2002 on the superannuation of Sri Ajit Kumar Dhara.

b. The Managing Committee of the school submitted an application on June 19, 2008 to the D.I. of Schools requesting prior permission to appoint a

non-teaching staff (Group D). However, no response was received by the school in response to their prayer.

c. The West Bengal School Service Commission (Recruitment of NonTeaching Staff) Rules, 2005 (hereinafter referred to as “earlier Rulesâ€)

was superseded by the West Bengal School Service Commission (Amendment) Act, 2008 (hereinafter referred to as “Amendment Act of 2008â€)

with effect from January 14, 2009 that introduced a completely new selection procedure for filling up vacancies and the power of the managing

committee to select new candidates was taken away and replaced by the Regional School Service Commissions constituted under the West Bengal

School Services Commission Act, 1997. Subsequent to the amendment in 2008, the Government framed the West Bengal School Service Commission

(selection of persons for Appointment to the post of Non-teaching staff) Rules, 2009 (hereinafter referred to as “The Rules, 2009â€) in

supersession of the earlier Rules, 2005. The Rules, 2009 framed subsequent to the Amendment Act, 2008 took away the power of the managing

committee to recruit persons in non-teaching posts in non-government aided and unaided schools, and, delineated the new manner by which

recruitment would take place going forward.

d. On November 10, 2010, a Co-ordinate Bench of this High Court, dealing with a number of writ petitioners, was called upon to answer a similar

question that has arisen in the present writ petition. His Lordship Justice Dipankar Dutta in Ashoke Sawoo â€"v- State of West Bengal reported in

2011 (2) CHN (CAL) 82 held that “merely because under the 2005 Rules the Managing Committee of the school had a legally protected right to

select a candidate for appointment as nonteaching staff would not clothe the petitioner with any judicially enforceable right to claim that since the

selection process had started prior to enactment of the Amendment Act of 2008 to fill up the four posts of non-teaching staff, the process ought to be

taken to its logical conclusion in accordance with the 2005 Rulesâ€. The essence of the above judgment was that after the supersession of the earlier

Rules, 2005 by the new Rules 2009, the school authorities could not insist on filling up the vacant post as per the earlier Rules, 2005 even though the

selection process had been initiated under the earlier Rules, 2005. I shall elaborate on this judgment in greater detail later.

e. Being aggrieved by this judgment, the petitioner went in appeal and the Division Bench in Asoke Sawoo â€"Vs- The State of West Bengal & Ors.

reported in (2012) 4 Cal LT 393 reversed the above judgment of the single Judge, holding that the selection process should be initiated and completed

under the Rules which were in force when the vacancy in question arose.

f. The State of West Bengal, being aggrieved by this judgment, appealed by way of a Special Leave Petition under Article 136 of the Constitution of

India before the Supreme Court wherein leave was granted and the matter was admitted.

g. In the year 2014, the Head Master of the said school filed a writ petition before this High Court submitting that the said school had requested the

D.I. of Schools for the appointment to the post of Group ‘D’ staff on June 19, 2008, prior to the introduction of the Rules, 2009 and accordingly,

such permission should be granted by the D.I. of Schools in accordance with the earlier Rules, 2005. On January 17, 2014, Hon’ble Justice

Debasish Kar Gupta disposed of the writ petition directing the D.I. of Schools to pass a reasoned order in accordance with the law prevailing at the

material point of time.

h. Pursuant to the said order dated January 17, 2014 the D.I. of Schools issued a memo dated June 2, 2014 stating that in his record he could not find

any application of the school dated June 19, 2008. He accordingly requested the school authorities to submit the prayer for prior permission afresh, as

per prevailing recruitment rules in the event there was any vacancy lying in the school. It may be noted that the school authorities did not make any

fresh prayer for prior permission.

i. The present writ petitioner, who is a Group D staff of the said school since March 1, 1990, filed a writ petition in the year 2017 submitting that the

school authorities had been sitting over the matter and had not taken any steps pursuant to request of the D.I. of Schools as per memo dated June 2,

2014. The matter was heard ex-parte by his Lordship the Hon’ble Justice Arijit Banerjee and on July 27, 2017 his Lordship directed the Head

Master of the said school to submit a fresh application to the D.I. of Schools for prior permission to fill up the vacancies of Group D post. He also

directed the D.I. of Schools to take a reasoned decision and stated that it was expected that the D.I. of Schools shall grant approval of filing up a

vacant post unless there are compelling reason for withholding such permission.

j. The Supreme Court finally decided the appeals filed by the State of West Bengal in the bunch of petitions challenging the judgment passed by the

Division Bench of the Calcutta High Court in Ashoke Sawoo â€" Vs- State of West Bengal & Ors. (Supra). The Division Bench of the Supreme

Court comprising of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit by an order dated December 5, 2017 held that since no vested rights

arise in favour of the candidates merely by the initiation of selection process, the new scheme certainly could be applied to the selection process. The

Supreme Court further held that they were of the view that Division Bench was not justified in interfering with the view taken by the learned Single

Judge. The relevant portion of the order is delineated below:

“Since no vested rights arise in favour of the candidates merely by the initiation of selection process, the new scheme certainly could be applied to

the selection process. The Learned Single Judge of the High Court took this view which has been reversed in the impugned judgment. We are of the

view that Division Bench is not justified in interfering with the view taken by the Learned Single Judge. Accordingly, we set aside the impugned order

and allow these appeals.â€​

k. The impugned order in this writ petition was subsequently passed by the D.I. of Schools (S.E.) Purba Burdwan on January 10, 2018. The relevant

portion is delineated below:-

“Now, a reasoned decision in respect of the application dated 29.08.2017 has to be taken in accordance with law from this end. The West Bengal

School Service Commission (selection of persons for Appointment to the post of Non-Teaching Staff) Rules, 2009 was published vide Notification No.

697-ES/S dated 09/07/2009 in which it is clearly mentioned that â€" “In exercise of the power conferred by clause (d) of Sub-Section (2) read with

sub-section (1) of section 17 of the West Bengal School Service Commission Act, 1997, and in suppression all previous rules, order, notification and

directions of the subject, the Government is pleased hereby to make the following rules regulating the selection of persons for appointment to the post

of non-teaching staffâ€​.

Since the vacancy was reported by the school authority with its resolution dated 28.08.2017 and the same was received by this office accordingly, the

vacancy should be filled in following the West Bengal School Service Commission (selection of persons for appointment to the post of non-teaching

staff) Rules, 2009. All concerned be informed accordingly.â€​

Mr. Syed Shamsul Arefin, Advocate appearing on behalf of the writ petitioner submitted that as an application had been made by the managing

committee of the school before the DI of Schools requesting prior permission to appoint a non-teaching staff prior to coming into effect of the

Amendment Act of 2008, the earlier rules should apply to the petitioner. He further submitted that the orders dated January 17, 2014 and July 27, 2017

had vested the writ petitioner with an accrued right of being selected as per the earlier rules. According to him the Supreme Court order passed on

December 5, 2017 had no application whatsoever in relation to the petitioner as the same would not apply retrospectively and could not impact the writ

petitioner’s accrued right. He further submitted that the order of the Supreme Court was a non speaking order and did not lay down any law

whatsoever. Moreover, since the order was a non speaking order, the doctrine of merger would not apply to the same. He relied on a Supreme Court

judgment in the case of Gangadhara Palo â€"v- Revenue Divisional Officer and Another (Coram: Markandey Katju and Gyan Sudha Misra, JJ.)

reported in (2011) 4 SCC 602 wherein the Supreme Court had held that dismissal of a Special Leave Petition without giving any reasons would not

result in merger of the judgment of the High Court with the order of the Supreme Court.

On the other hand, Mr. Subhabrata Datta, Advocate appearing on behalf of the respondent authorities supported the impugned order basing his

arguments on the Apex Court order passed on December 5, 2017. He submitted that the doctrine of merger clearly applied as the order passed by the

Supreme Court was passed in several civil appeals after admission of the special leave petition in the year 2013. He submitted that the judgment relied

upon by the petitioner in the case of Gangadhara Palo (supra) has no application whatsoever as that judgment related to dismissal of an Special Leave

Petition without any reasons. He submitted that the said judgment in fact states that when the Supreme Court dismisses a Special Leave Petition by

giving some reasons, however meagre (it can be even of just one sentence) there will be a merger of a judgment of the High Court into the order of

the Supreme Court dismissing the special leave petition.

I have heard counsels appearing on behalf of both the parties and have perused the materials on record.

It is noted firstly that it was the Managing Committee which had approached this Court in the year 2014, five years after the new Rules, 2009 came

into force. His Lordship Justice Debasish Kar Gupta had accordingly followed the Division Bench judgment of Ashoke Sawoo â€" Vs- State of West

Bengal & Ors. (supra) that had held that the relevant rule applicable would be the rules prevalent at the time when the vacancies were created (in the

present case the vacancy was created in 2002). Accordingly, His Lordship Justice Debasish Kar Gupta applied the earlier rules in the writ filed by the

Head Master of the school. Thereafter, the school authority chose not to file a fresh application as requested by the D.I. of Schools and the matter

remained stagnant for a period of over three years. This order only gave a right to the said school and not to the petitioner in this writ petition.

It is only subsequently that the petitioner, being a temporary Group D staff of the school, filed a writ petition seeking a direction on the school

authority to comply with the order passed by the D.I. of Schools for filing a fresh application. On a perusal of the order passed in W. P. No. 345 of

2017, it is palpably clear that no vested right accrued to the petitioner because no selection procedure had been initiated at that stage. Justice Arijit

Banerjee disposed of the writ petition No. 345 of 2017 directing the school authority to submit a fresh application and the D.I. of Schools to pass a

reasoned order to grant approval for filling up of a vacant post unless there were compelling reasons for withholding such permission. From a perusal

of the order, it is crystal clear that the order was passed ex-parte and His Lordship had not entered into the merits of the case. The order was passed

on the fact that there had been a vacancy in the school from the year 2002 and the school authority had taken no action to fill up the said vacancy.

The order was clearly intended to merely expedite the process and nothing more.

On a proper appreciation of the facts, it is clear that both the orders passed dated June 2, 2014 and June 17, 2014 were following the principles laid

down in the judgment of the Division Bench of this High Court in Ashoke Sawoo â€"Vs- State of West Bengal & Ors. (supra). However, on the date

of passing of the impugned order on January 10, 2018 the table had been turned by the Supreme Court order passed on December 5, 2017 that

overruled the judgment of the Division Bench and stated that the correct law was the principles propounded by the Learned Single Judge in the case

of Asoke Sawoo â€"Vs- The State of West Bengal reported in 2011 (2) CHN (CAL) 82. The Supreme Court clarified that no vested right arose in

favour of the candidates merely by the initiation of the selection process. The Supreme Court further held that the new scheme would be applicable to

the selection process.

The submissions of Mr. Syed Shamsul Arefin with regard to no retrospective application of the Supreme Court order dated December 5, 2017 are

rejected by me as the order does not specify that it is to be read and applied prospectively. Accordingly, the law propounded by the Supreme Court on

the date of passing of the order automatically becomes applicable to all pending matters in relation to the said law.

The second argument of the petitioner that no merger takes place as the order of the Supreme Court is a non speaking order is clearly without any

merit whatsoever. In the judgment of the Supreme Court in Kunhayammed And Others v. State of Kerala And Another reported in (2000) 6 SCC

359, the Supreme Court on analysis of earlier judgments enunciated elaborately the principles in relations to Doctrine of Merger and the relevant

portion of the judgment is delineated below:

“ 41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order

impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract

the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming

the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined

to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant

leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to

appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of

appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.

(i).....

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible intotwo stages. First stage is upto the disposal of prayer for special leave to

file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.

(iii) Doctrine of merger is not a doctrine of universal or unlimited application. Itwill depend on the nature of jurisdiction exercised by the superior forum

and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior

jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme

Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising

the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to

the latter.

(iv) An order refusing special leave to appeal may be a non-speaking order or aspeaking one. In either case it does not attract the doctrine of merger.

An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not

inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasonsfor refusing the grant of leave, then the order has two implications.

Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution.

Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the

parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the

apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of

the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent

proceedings between the parties,

(vi) Once leave to appeal has been granted and appellate jurisdiction ofSupreme Court has been invoked the order passed in appeal would attract the

doctrine of merger; the order may be of reversal, modification or merely affirmation. “

On a reading of Paragraph 44(ii) and (vi) of the Kunhayammed case (supra) judgment, it is absolutely evident that once a Special Leave Petition is

admitted and converted into an appeal, any order passed in the appeal would attract the Doctrine of merger irrespective of the fact that the order is of

reversal, modification or simpliciter affirmation. In the present case, the order dated December 5, 2017 passed by the Supreme Court was an order

passed after the leave to appeal was granted and Special Leave Petition was converted into an appeal. The Supreme Court did not dismiss the appeal

but allowed the same. Moreover, the order though succinct, is a speaking order, holding that the Division Bench was not justified in interfering with the

view taken by the Learned Single Judge. The Supreme Court further held that since no vested rights arose in favour of the candidates merely by the

initiation of selection process the new scheme certainly could be applied to the selection process. The judgment in Gangadhara Palo (supra) is not a

relevant authority on the point as the same did not deal with a situation wherein the Special Leave Petition had been admitted. The principles

enunciated dealt with the stage of dismissal of a Special Leave Petition at the admission stage without any reasons. In view of the ratio laid down in

the case of Kunhayammed and Others (supra), I am of the view that the doctrine of merger applies in this case and the High Court order of the Single

Judge merges with that of the Supreme Court order dated December 5, 2017. As I have held that the doctrine of merger applies, it becomes

imperative to note in greater detail the law laid down by the Hon’ble Single Judge in Ashok Sawoo (supra) that has the binding force of a

precedent. The relevant paragraphs are reproduced hereinafter:

“32. The further contention urged by Mr. Bari that those rules existing on the date the vacancies arose, without anything more, should be the

guiding factor for filling up the posts, if accepted, is sure to produce abnormal results. Whether or not a particular post shall be filled up is the absolute

domain of the employer. There may be good reasons for an employer to keep a post vacant. Suppose a vacancy has arisen in 1998 and no process is

commenced to fill up a non-promotional post, meant to be filled up only by direct recruitment. No one can seek Mandamus from the court of Writ to

compel the employer to fill up such post. Now if the employer seeks to fill the up the post in 2010 in accordance with amended or new rules for

recruitment which have been made operative from say 2008, could anyone lawfully claim that the post must be filled up in accordance with the rules

that were in existence in 1998 when the vacancy arose ? The answer possibly cannot be in the affirmative. No process of selection having

commenced, there is no question of any right of consideration having accrued in favour of any candidate. Accepting the contention of Mr. Bari would

mean imposing unreasonable fetters on a candidate who may have acquired a right of consideration under the said Rules of 2008. That is precisely the

reason why Courts have added the rider of “commencement of selection process†in the decisions while deciding the issues before it, referred to

above, suggesting that unless the amending rules are to apply with retrospective effect, the rights of the candidates who have offered their candidature

should not be impaired.

With the introduction of the 2009 Rules, the 2005 Rules stood superseded.The effect of such supersession, in my view, would be decisive. I may

observe at this stage that in none of the Supreme Court decisions referred to above did the effect of supersession of the previous rule directly fall for

consideration. In a way, all the decisions dealing with the amendment of rules and not supersession of rules are distinguishable.

It has time and again been laid down that there must be a judiciallyenforceable right as well as a legally protected right before one suffering a legal

grievance can seek a Mandamus.

The Division Bench in Narayan Baidya (supra), it appears, declined to grant relief in almost similar circumstances. In my humble understanding of

the statutory provisions applicable here, it is only when selection of suitable candidates has been made finally by the duly constituted selection

committee in terms of the 2005 Rules by preparing a panel of three candidates upon consideration of the candidature of all the aspirants for the post

sought to be filled up that the 2005 Rules would survive for the limited purpose of consideration of the panel by the District Inspector for approval in

terms of Rule 24(2) of 2009 Rules. Sub-rule(2) of Rule 24 of the 2009 Rules, which are awaiting approval of the District Inspector. If the

aspirants’ candidature has not been considered at all or an intermediate stage prior to final selections is reached, the process has to be scrapped

and the vacancy filled up in accordance with the Amendment Act of 2008 read with the 2009 rules to give effect to the will of the people.

Having considered the petitioner’s claim, I am of the view for reasonsdiscussed above and also in the light of the decision in Narayan Baidya

(supra) that final selection not having been made as yet, relief in terms of prayer (a) of the petition seeking an order of the Additional District

Inspector to permit the school to hold interview in terms of the previous sanction dated July 1, 2008 cannot be granted. W.P. No. 16383(W) of 2010

stands dismissed, without order for costs.â€​

It is to be noted that in a very recent judgment of the Division Bench of this High Court, in Sayeda Begum â€"v- The State of West Bengal &

Ors. (F.M.A. 4142 of 2014) delivered on December 15, 2017, the Division Bench comprising of Justice Dipankar Datta and Shivakant Prasad, JJ.

relied on the Supreme Court judgment dated December 5, 2017 and held as follows:

“6. Even otherwise, mere initiation of the selection process does not result in accrued of any vested right in favour of the candidates and the new

procedure can always be applied . We may refer to the decision of the Supreme Court of very recent origin dated 5th December, 2017 in Civil Appeal

No. 20883 of 2017 [State of West Bengal v. The Managing Committee, Nirjharini S. B. Vidyalaya (H.S.)], wherein it has been held as follows:

“Since no vested rights arise in favour of the candidates merely by the initiation of selection process, the new scheme certainly could be applied to

the selection process. The Learned Single Judge of the High Court took this view which has been reversed in the impugned judgment. We are of the

view that Division Bench is not justified in interfering with the view taken by the Learned Single Judge.â€​

For the foregoing reasons, the appeal stands dismissed. The application for appropriate order and/or stay also stands dismissed.â€​

In light of the above discussions, the principle that emerges is that only when selection of suitable candidates has been made by a committee and is

awaiting approval by the District Inspector, the same would be governed by the 2005 rules and not the Rules, 2009. However, if the aspirant’s

candidature has not been considered at all or the selection is at an intermediate stage, the selection process has to be scrapped and the vacancy has to

be filled in accordance with the amendment to the original rules.

In the present case, where the selection process had not even been initiated and the writ petitioner had obviously not even participated in any

selection process, the petitioner obviously did not have any accrued right at any point of time. Without having an accrued right under the earlier Rules,

the writ petitioner has neither a judicially enforceable right nor a legally protected right, and therefore, cannot seek any mandamus from this Court.

In view of the aforesaid reasons, I see no reason to interfere with the impugned order and dismiss the writ petition without any order as to costs.