TMI Blog1999 (8) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... ural) Primary Education Act, 1930. The said writ application was filed on the ground that several irregularities had been committed by the respondents in the conduct of examination. The matter went up to the Apex Court and its decision is reported in (1996) 7 SCC 333 (Paschimbanga Prathamik Sikshak Sikshan Prapta Bhar-O-Sikshak Samiti v. President, West Bengal Primary School Council), keeping in view the gross irregularities committed by the authorities of the Education Department of the State of West Bengal including the Director of School Education in the matter of preparation of pane! in the Districts of West Bengal certain orders were passed. The Apex Court got an enquiry conducted in respect of appointments made in each of the Districts but found that gross illegalities have been committed in the District of Malda and Midnapore; although certain irregularities in other Districts had also been found. But keeping in view the number of candidates involved in the other districts, their Lordships set aside the panel prepared only in respect of the Districts of Malda and Midnapore. The Apex Court in exercise of its jurisdiction under Article 142 of the Constitution of India, directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis. 4. The writ petitioners had also registered their names in the local Employment Exchange. In the year 1973 the State of West Bengal enacted West Bengal Primary Education Act, 1973. The State in exercise of its power conferred upon it under Section 106(1) of the said Act framed Recruitment and Leave Rules in the year 1991 which came into force with effect from 25-10-1991. The validity of the said 1991 Rules had been upheld by a Division Bench of this Court in West Bengal Board of Secondary (sic for Primary) Education v. State of West Bengal, reported in (1997) 1 Cal LJ 165. However, it must be noted that in the said proceedings a learned single Judge of this Court by an interim order directed stay of the operation of the said Rules. In the meantime, another judgment was rendered by another Division Bench in Ratan Kumar Saha v. State of West Bengal reported in (1997) 1 Cal LJ 501 wherein the question as [regards the validity or otherwise of 1991 Rules did not come into question, but it was inter alia directed therein that age bar may be condoned. 5. The learned Single Judge following that decision issued certain directions which are as follows:-- Following the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents supported the judgment of the Division Bench of this Court stating that the findings arrived at by the Division Bench are unassailable. However, as directed by the Apex Court, this Court is bound to consider the matter on merits independent of the judgment in Biman Chandra Karmakar (supra) and, thus, no leave to withdraw the appeals can be granted as we are satisfied that the said plea is mala fide. 10. Before proceeding to consider the matter we must at the outset state that no attempt has been made by Mr. Chatterjee before us to show as to how the judgment of the Apex Court in Paschimbanga Prathamik Sikshak v. W.B. Primary School Council reported in (1966) 7 SCC 333 constitutes a binding precedent and/or how the fact of the said case is applicable in the fact situation of the present case. Mr. Chatterjee even did not make any submission questioning the findings of the Division Bench of this Court and merely sought to withdraw the appeal on the ground that in view of the present legal position, the appellants have lost all their chances of being appointed. Mr. Dey, however, resisted the claim of Mr. Chatterjee on the ground that the attempt on the part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achers and other staff in primary) schools, to transfer any such teacher or other staff from one primary school to another primary school within the jurisdiction of the same Primary School Council and to pay to teachers and other staff salaries and allowances, if any, at such rates as may be fixed by the State Government. Section 106(1) of the Primary Education Act reads thus: 106. Power of State Government to make rules -- (1) The State Government may, after previous publication, make rules for carrying out the purposes of this Act. Recruitment and Leave Rules, 1991 have been made in terms of the said provision. Section 105(1) and (4) of the said Act reads thus:-- .......(1) -- The Bengal (Rural) Primary Education Act, 1930, the West Bengal Urban Primary Education Act, 1963, and the West Bengal (Rural) Primary Education (Temporary Provisions) Act, 1969, are hereby repealed. .......(2)--................................... .......(3)--..................................., .......(4)-- Notwithstanding the repeal of the Bengal (Rural) Primary Education Act, 1930, all rules, orders and notifications made or issued from time to time under the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for sending further names. (b)............................... 19. Rule 9 of the said rules provides for a detailed procedure required to be observed for selection and empanelment of the candidates. We, in this view of this matter, have no other option but to hold that the petitioners having no legal right to be appointed the answer to the aforementioned questions could not be rendered in negative as the directives issued by this learned trial Judge are contrary to the mandatory permissions of the Statutory Rules. Under the Rules, the Employment Exchange was bound to sponsor the names of the trained and un-trained candidates. The vires of the said provision is not in question. It is, therefore not the legal position that only trained candidates could be appointed. At the cost of repetition it may be stated that despite the petitioners being trained candidates, they were not selected. Unsuccessful candidates do not have locus standi to maintain a writ application unless illegalities in the selection process can be pleaded and proved. The learned trial Judge, thus, could not issue any direction which would be contrary to the provisions of the statutory rules. 20. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o hesitation in rejecting the contention raised by appellants that unless all trained candidates are appointed no untrained candidates can be appointed. 23. We, therefore, hold that the decision of the Apex Court in Paschimbanga Prathamik Sikshak Sikshan Prapta Bakar-o-Sikshak Samiti v. President, West Bengal Primary School Council reported in (1996) 7 SCC 333 (sic) as:-- (1) In the instant cases process of recruitment had started after the 1991 rules came into force whereas in the earlier cases process of recruitment had starred in the year 1983; (2) 1991 Rules having come into force, the mandatory provisions thereof must be complied with which was not the case in the fact situation obtaining before the Apex Court. (3) The decision of the Apex Court in Paschimbanga Prathamik Sikshak v. W.B. Primary School Council reported in (1996) 7 SCC 333 is not applicable in the present case inasmuch as in the said decision only a question arose as regard illegalities in the matter of framing of the arose panel when 1930 Act and 1940 Rules where inforce, whereas in the instant case recruitment process had started after the coming into force. 24. Before the Apex Court n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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