Kalyanashish Saha vs District Inspector Schools (S.E.), Birbhum and Others

Ashim Kumar Banerjee, J.—By an earlier order dated August 9, 1996 passed by S.P. Banerjee, J., the above two writ petitions were directed to be heard analogously. One Kalyanashish Saha (hereinafter referred to "Kalyanashish") has filed a writ petition being No. 9839(W) of 1995 inter alia challenging the order of the District Inspector of Schools (Secondary Education), Birbhum, directing recasting of the panel. The other writ petition being C.O. No. 6411(W) of 1996 has been filed by one Nayan Chandra Bagdi (hereinafter referred to as "Nayan"), inter alia, praying for recasting of the panel in terms of the said memo of the District Inspector of Schools, Birbhum. Since the subject-matter relates to the same appointment, both these writ petitions were clubbed together and are heard analogously. Laghosa Junior High School in Birbhum District wanted to fill up the post of Assistant Teacher in Life Science from the list sponsored by the Employment Exchange, Bolepur, Birbhum. The interview was held and panel of three candidates was prepared. According to Kalyanashish, he topped the panel whereas Nayan was an unsuccessful candidate. Kalyanashish was awarded marks by the Interview Board for his B.P. Ed. Qualification. According to Nayan, such awarding of marks is illegal in view of a circular dated April 4, 1995 where the Government has directed not to accept such decree equivalent to B.Ed. Decree for appointment of a teacher. According to School Authority, the said circular, although dated April 4, 1995 reached the school much after the interview was held. In fact, the school was informed about such circular by the District Inspector of Schools, Birbhum by a memo dated April 28, 1995 whereas the interview was held on April 20, 1995. Accordingly, the School Authority prepared the panel and sent the same for approval. The District Inspector of Schools instead of approving the said panel sent it back through his memo dated May 31, 1995 asking the School Authority to recast the panel on the basis of the said circular dated April 4, 1995. The said circular of the District Inspector of Schools, Birbhum is, therefore, the crucial factor in both these writ petitions, Kalyanashish wants the same to be quashed but Nayan wants the same to be implemented.

Before taking a decision on this issue it is necessary to examine the subject circular. The relevant portion of the said circular dated April 4, 1995 is set out as follows :

Considering the different aspects in the matter, the State Government in this department has decided not to accept the Bachelor of Physical Education and the Master of Physical Education Degrees as equivalent to B.Ed. Or B.T. Degrees for appointment of teachers including Headmaster/Headmistress and Assistant Headmaster/Assistant Headmistress. However, teacher with B.P. Ed./M.P. Ed. Degree appointed to the post of Physical Education teacher will get the benefit of a trained teacher. Those who are not teachers in physical education will not get increment for B.P. Ed. Degrees.

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This order takes effect from the date of issue which means that the old case cannot be reopened.

From the said circular, it is clear that the Government did not want to give any retrospective effect to the said decision. The reason is obvious, prior to the said circular both the B. Ed. Degree and B.P. Ed. Degree were treated at par and by virtue of such treatment many incumbents got appointments. Hence, it is not possible to give any retrospective effect to such circular. In view of the same, I hold that the said circular has no retrospective effect which is clear from the language of the circular itself.

It is argued by Nayan that the said circular was issued on April 4, 1995 and the interview was held on April 20, 1995. According to Nayan, since no appointment has been given and the panel has not been approved, the said circular should be considered by the School Authority. In support of his contention three decisions have been relied upon on behalf of Nayan.

The first decision cited on behalf of Nayan is a case reported in 1997(2) CLJ 428, Pintu Acharjee vs. State of West Bengal & Ors. In this case, writ petitioner''s added qualification was not recorded in the Local Employment Exchange and as such the selection committee did not consider his added qualification. The Division Bench ultimately dismissed the writ petition on the ground that the writ petitioner without questioning the vires of the special provision of the direction issued by the Director of School Education submitted to the jurisdiction of the selection committee hence he should not be permitted to question the vires of the rule at a later stage. This decision, in the facts and circumstances of this case, in my view, does not help Nayan in any way.

The next decision cited by Nayan is 1998 (1) CLJ 544, Debasish Dutta vs. State of West Bengal & Ors. This is a Special Bench decision which mainly decided the question of sponsoring names by the Employment. Exchange and validity of the same in view of the Supreme Court decision in case of Excise Supreintendent reported in 1996(3) SCC 216. Here the Special Bench was of the view that in cases where recruitment rules provided for preparation of the panel from the list of the sponsored candidates from the Local Employment Exchange, any deviation or departure from the said rulse can only be made by the issuing authority being the Director of School Education himself or the State Government by issuing appropriate order of decision and/or direction or guideline to the said effect. The Special Bench while distinguishing the Supreme Court Judgment was of the view that in case of Excise Superintendent (supra), there was no existing rule with regard to filling up of the vacancy. The Special Bench was also of the view that even the Court should not issue any direction to allow any and /or every person to appear in the interview whose name has not been sponsored by the Employment Exchange. This case, in my view, also does not help Nayan, in view of the fact, that it is nobody''s case that the subject circular should not be followed. The issue is whether the said circular, in the facts and circumstances of this case, has any application.

The last case cited by Nayan is a case reported in 1998 (2) CLJ 359, Abdul Hai vs. State of West Bengal. This is a Single Bench decision on the question that degree from unrecognised University should not be considered. In the instant case, Nayan has failed to show any circular to the effect that the added qualification of Kalyanashish was from an unrecognised institution. Reliance has been placed by Nayan on a circular dated July 16, 1984 where it appears that training in Physical Education and Work Education should not be considered in the post of Headmaster. Here it is a case of appointment of Assistant Teacher. My attention has been drawn to another circular relied on by Nayan dated May 25, 1988 wherein it appears that the Government recognised the degree obtained from Amaravati University for appointment of Assistant Teacher in Physical Education. Reading these two circulars it does not appear that the decree has been obtained from any unrecognised institution. It has been contended on behalf of Nayan that the post was for Life Science Teacher and the degree in Physical Education should not be considered as the same is not required for the said post. I am unable to accept such contention in absence of any Circular to the said effect. Hence, Single Bench decision also does no help Nayan in any event.

Coming back to the issue it now appears that question, which is germane herein is whether the subject circular dated April 4, 1995 communicated to the School Authority by a memo dated April 28, 1995 has any effect for an interview held on April 20, 1995. In my view prior to the holding of the interview requisition was made by the School Authority to the Local Employment Exchange. The selection process started, I am told, prior to April 4, 1995 when the School Authority asked for sponsoring of the names by the Local Employment Exchange. At that relevant point of time the said circular was not issued. Hence, Local Employment Exchange rightly sent up list of sponsored candidates with their respective qualifications as recorded therein for the said post. The relevant date for this purpose is not the date when the interview was held or the panel was prepared or approved. The relevant date is the date when the selection process started. I am prompted to make such observation relying on the Division Bench judgment reported in 1996(1) CLJ 230, Basudev Bag vs. B. Chandra Kar wherein the Division Bench held, inter alia, that such process of selection had started prior to coming into force of the new rules issued before August 1, 1981. The learned Single Judge was right in arriving at a finding that the said rules could not have been given retrospective effect.

Hence, I feel that since the selection process in the instant case started prior to April 4, 1995, the said circular has no application in the instant case. Whether the same has been considered by the School Authority prior to the holding of the interview is of no consequence. In the case of P. Mahendran and others Vs. State of Karnataka and others, the Supreme Court was of the view that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. In the instant case, the subject circular not only did not make it retrospective but also expressly made it clear that the old case would not be opened. In that view, the said circular cannot have any application in a case where the selection process started prior to issuance of the same.

In view of the above. I set aside the impugned order of the District Inspector of Schools, Birbhum, dated May 31, 1995 appearing at page 28 of the writ petition in the case of C.O. No. 9839(W) of 1995, inter alia, asking the School Authority to recast the panel by not awarding marks to Kalyanashish or any other candidate in respect of his or her B. P. Ed. Qualification.

Consequently, I direct the District Inspector of School Education to approve the panel sent by the School Authority earlier without taking into consideration the subject circular No. G.O. 234-AC(S) dated April 4, 1995 if it is otherwise valid and conforms to the rules and regulations made therefor.

Hence, the Writ petition No. 9839(W) of 1995 succeeds. The writ petition being No. 6411(W) of 1996 is dismissed. The District Inspector of Schools (S.E.) Birbhum is directed to accord the approval in accordance with law following the observation made herein and ignoring the said circular dated April 4, 1995, within 4 weeks from the date. In case of refusal on any other ground the District Inspector of Schools should give hearing to the concerned parties and pass a reasoned order and communicate the same within 4 weeks from the date of communication of the order. Xerox certified copy if applied for, will be delivered to the respective parties immediately.