The Managing Committee, Mahisegeria A.M.A. High vs State of West Bengal and Others

Jyotirmay Bhattacharya, J.—Admittedly, prior permission was granted by the District Inspector of School on 31st March, 2008 to the School Authority to fill up the vacancy of a Non-Teaching Staff in Group ''D'' in the Higher Secondary section of the School with a rider that the appointment will be made as per D.I.S.''s latest recruitment Rules as amended from time to time vide G.O. Nos. 1594-SE(S) dated 26th May, 2005 and 904-SE(S) dated 18th April, 2007. Pursuant to the aforesaid prior permission granted by the concerned District Inspector of School (Secondary Education), Paschim Medinipur, the School Authority of Mahisegeria A.M.A. High Madrasah requested the concerned Employment Exchange for sponsoring the names of the suitable candidates for the said post. The said Employment Exchange sponsored the names of suitable candidates to the School Authority on 1st July, 2008. Subsequently, the School Authority published an advertisement on 26th August, 2008 inviting applications from the eligible candidates for the said post. Interview of the candidates was held on 16th November, 2009. Thereafter a panel was prepared by the selection Committee on 16th November, 2009. The said panel was forwarded to the concerned District Inspector of School on 13th November, 2010.

The District Inspector of School (Secondary Education), Paschim Medinipur, refused to approve the panel as the School Authority did not complete the selection process promptly. Considering the inordinate delay caused by the School Authority in the process of preparation of the panel, the concerned District Inspector of School refused to approve the panel and requested the School Authority to submit the vacancies to the West Bengal Madrasah School Service Commission immediately in view of the West Bengal School Service Commission (Amendment) Act, 1997 which came into effect from 1st January, 2009.

Undisputedly, the West Bengal School Service Commission (Amendment) Act, 1997 came into effect from 1st January, 2009. By virtue of the said amendment, recruitment of all the teaching and non-teaching staff are now required to be made through the West Bengal Madrasah School Service Commission with effect from 1st January, 2009. On reading the provision of the said Act, this Court finds that the said Act has no retrospective effect. As such the said Act cannot stand in the way of filling up the vacancies which were created prior to the commencement of the said Amendment Act by following the old Rules in terms of aforesaid prior permission provided however the selection process was initiated prior to the commencement of the Amendment Act. Since, in the instant case, the advertisement for filling up the said post was issued on 26th August, 2008 prior to the commencement of the Amendment Act, the selection process which was initiated on the basis of the prior permission granted by the concerned District Inspector of School, as aforesaid, should be completed by following the West Bengal School (Control of Expenditure) Act, 2005, which was the law prevailing as on the date of initiation of the process for filling up the said post.

Thus, this Court holds that a candidate on making an application for the said post pursuant to the said advertisement acquired a vested right for being considered for selection in accordance with the Rules as they existed on the date of the advertisement provided however, such candidate satisfies requisite eligibility as per the said advertisement and such vested right cannot be taken away and/or curtailed by amendment of the recruitment Rules which came into force after selection process was initiated under the old Rules. Under such circumstances, this Court, by following a decision of the Three Judges Bench of the Hon''ble Supreme Court in the case of P. Mahendran and others Vs. State of Karnataka and others, , holds that since the Amending Act was not retrospective, it could not adversely affect the right of those candidates who applied for the post as the process of selection had already commenced before the Amendment Act came into force. This Court thus holds that the Amendment Act cannot affect the existing rights of those candidates who were considered for selection as per the rules which were in force as on the date when the advertisement was issued.

Accordingly, this Court holds that the impugned communication made by the District Inspector of School (Secondary Education), Paschim Medinipur, to the Secretary of the said School vide Memo No. 751-S Midnapore dated 23rd April, 2010 being Annexure "P-3" to this writ petition at page 22, stands set aside. The concerned District Inspector of School is, thus, directed to consider the panel for grant of approval thereto as per the recruitment Rules which were in vogue as on the date when the advertisement was issued by the School Authority for filling up the said vacancy on the basis of prior permission granted by the concerned District Inspector of School on 31st January, 2008 as aforesaid. The entire exercise, in this regard, should be completed positively within a period of six weeks from the date of communication of this order. The concerned District Inspector of School is thus directed to intimate his decision to the School Authority immediately thereafter.

Needles to mention here that, in the event, the concerned District Inspector of School takes any decision for not approving the said panel, the said District Inspector of School is required to supply reasons for his conclusion in his said order.

The writ petition is thus allowed.

Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.