Kalyan Deb vs The Director of School Education, Government of W. Bengal and Others

P.D. Desai, C.J.—The appellant is taken up for hearing by treating It as included in the day''s cause list. The appellant is the Writ Petitioner. It appears that in August, 1980 he was appointed as a temporary part time office employee in the respondent school. On January 5, 1987 the West Bengal Board of Secondary Education sanctioned a Class-IV post for the establishment of the school. Pursuant thereto names of eligible candidates appear to have been called for from the Employment Exchange. The appellant was one of the candidates sponsored by the Employment Exchange. On September 6, 1987 an interview was held by the selection committee and in the panel which was prepared consisting of three candidates he was placed in the first position. Be it stated at this stage that the appellant has passed the Higher Secondary Examination and having continued to serve the school as part time office employee since 1980 he has also acquired experience in office work. The panel prepared by the selection committee was approved by Managing Committee on September 9, 1987. The panel was thereafter forwarded to the District Inspector of Schools (S. E.), Burdwan (Respondent No. 2) but the panel did not receive the approval of the said respondent on the ground that the appellant was above 35 years of age and as such not eligible to be appointed in a Class--IV post. This decision was communicated by the second respondent to the Secretary of the respondent school on November 19, 1987. The Managing Committee of the school passed a resolution on November 22, 1987 to the effect that in view of the high qualification and experience of the appellant a relaxation was required to be made in the condition prescribing the maximum age of recruitment in his case and that he should be offered the appointment in the Class-IV post. Upon a reference made to the second respondent on December 1, 1987, in light of the aforesaid decision of the Managing Committee the said respondent informed the Secretary of the School on January 21, 1988 that the panel could not still be approved in view of the fact that the appellant was over-age.

The Employment Officer, S. R. E. E., Asansol was meanwhile approached by the Secretary of the respondent school and he wrote back saying that as per Government of West Bengal Education Directorate Memo No. 2544 (750) dated June 20, 1981 age relaxation is permissible in the case of a candidate who is highly qualified and experienced and that in view of the qualification and experience of the appellant, relaxation in age was required to be made in his case.

The matter appears to have been ultimately referred to the Director of School Education, West Bengal, who informed the second respondent by his Memo dated February 15, 1989 that "Higher Secondary Passed" should not be considered higher qualification in the post of Class-IV staff and as such no relaxation could be made in the case of the appellant.

The appellant thereupon moved the Writ Petition out of which the present appeal arises. The Trial Court rejected the Writ Petition after having recorded the folloiwng order :

Having gone through the materials on record and considering the fact that passing of any interim order will virtually dispose of the Writ petition in favour of the petitioner, this Court is not inclined to interfere in this petition.

Hence the present appeal.

Now, in the first instance, we are unable to appreciate how the Writ Petition could have been thrown out on the mere ground that passing of an interim order would result in allowing the Writ Petition in favour of the appellant. Even if the Trial Court was not inclined to grant any interim relief it was still necessary to adjudicate the point in dispute, namely, whether the appellant was entitled to claim appointment on the basis of his selection by virtue of Government Orders providing for relaxation of age upon fulfilment of certain conditions. The mind of the Trial Court does not appear to have been applied to this aspect of the matter. Therefore, the order requires to be set aside and it is accordingly set aside.

The question then is as to whether the matter should be remanded to the Trial Court or should be decided by us after going into the merits of the dispute. Having regard to the fact that the selection of the petitioner was made as far back as September 6, 1987 and that his fate is hanging in the balance since then, we have thought it expedient in the interest of justice to dispose of the matter at the appeal stage.

Our attention has been drawn to Office Memorandum dated August 29, 1987 issued by the Director of School Education, West Bengal, in exercise of the power conferred on him by clauses (i) and (ii) of Sub-rule (1) and clause (i) of Sub-rule (28) of Rules for Management of Recognised Non -Government Institutions (Aided and Unaided), 1969, as amended from time to time, which contains certain directions issued for compliance by the recognised Non-Government Secondary Schools. The said Memorandum cancelled all previous orders of the Directorate regarding the procedures for recruitment of teaching and non-teaching staff of Non-Govt. Secondary Schools. The material part of the said Memorandum is para 3 and clause (a) thereof, in so far as it is relevant for the purposes of the present case, reads as follows :

3(a) The upper ate limit for entry into the service for a teacher or a non-teaching staff should be 35 years. The age limit is relaxable upto 40 years, for an experienced and highly qualified candidate, by the Director of School Education.

It is thus apparent that the power of relaxation of upper age limit has been vested in the Director of school Education provided a person above 35 years but below 40 years of age is "an experienced and highly qualified candidate". In the present case we are concerned with a candidate seeking employment in a Class IV post. The condition with regard to experience must be regarded as having been satisfied by reason of the fact that the appellant was serving as a part time office employee since August, 1980. He has passed Higher Secondary Examination, paragraph 9(b) of the Memo aforesaid provided that minimum qualification for Clerk is S.F./H.S. and minimum qualification for Class TV Staff is Class VIII pass or its equivalent. The question, therefore, is whether the applicant who possesses the educational qualification which would make him eligible for appointment in the post of Clerk can be regarded as "highly qualified" for appointment in Class IV post. On this point we derive no assistance from the order of the Director of School Education which merely states that a candidate who has passed Higher Secondary Examination may not be considered as highly qualified for the post of Class IV staff. We also do not know whether any standard, norms or guidelines have been adopted or prescribed by the State Government or by the Directorate of Education to determine as to who can be considered as highly qualified in the context of appointment in Class-IV post. In the absence of any material on this point and for want of an executive interpretation of the relevant paragraph in the Memorandum, we derive no assistance in arriving at a final decision.

Having regard to the forgoing facts and circumstances we are of the opinion that this is a fit and proper case in which the Director of School Education should be asked to reconsider the matter by applying his mind afresh in light of the observations hereinabove made and to pass a reasoned order after affording to the appellant and to the School Management an opportunity of being heard. Order accordingly. The Director will comply with this order within a period of eight weeks from date and place the reasoned order passed by him on the record of the case on or before January 15, 1991.

Let this matter be listed on January 20, 1991. Meanwhile Status Quo as regards the Class-IV post in question shall be maintained by all the parties.

If an application for a duly authenticated xerox copy of the order is made to the Deputy Registrar (Court), Appellate Side; by the learned Advocates on record for the parties or any of them, such copy shall be delivered to them/him on the payment of requisite charges provided an application is also simultaneously made for a certified copy and an undertaking is given that delivery of the certified copy will be taken on deposit of requisites when available.

The learned Advocate on record of the appellant will obtain a xerox copy of this order on the above terms and will produce the same before the School Authorities and also before the Director of School Education to secure due compliance thereof.

Ruma Pal, J.

I agree.

Appeal and application disposed of.