Mathur, C.J. - (1.) This is an appeal directed against the order passed by the learned Single Judge dated 11th January, 2000 whereby the learned Single Judge has allowed the writ petition and directed the Employment Exchange to make a separate panel of ex-census employees under exempted category for the purpose of interview and relax the age in the light of the judgment in Ratan Kumar Saha & Ors. v. State of West Bengal & Ors. reported in 1997 (1) CLJ 501.
(2.) Aggrieved against this order, the present appeal has been filed by the state-respondents. The brief facts which are necessary for disposal of the present appeal are that the petitioners filed the above writ petition before this Court who are ex-census employees and claimed benefit of exempted category. The grievance of the writ petitioners were that they are being deprived from being appointed in the primary school though persons similarly placed had already obtained appointment. It was contended by Hie learned Counsel before the learned Single Judge that the names of the ex-census employees are under exempted category and their names should be forwarded by the Employment Exchange and their age bar should not come in their way and the same should be relaxed as ex-census employee. The State Government by its notification issued a circular dated 30th November, 1993 directing that 30% of the post of primary school teacher should be filled up from the exempted category, i.e., ex-census personnel, ex-job workers (Election) personnel, members of martyrs families, members of the employees died-in-harness, etc. Therefore, the petitioners claimed this benefit and approached this Court for redressal of their grievance and the learned Single Judge allowed the writ petition by referring to an earlier Division Bench Judgment of this High Court and directed that the incumbent should make their application before the concerned Employment Exchange and the Employment Exchange shall forward their names under the exempted category of ex-census employee for interview and as far as second question with regard to age is concerned, the same is covered, by the Division Bench Judgment of this High Court in Ratun Kumar Saha & Ors. v. State of West Bengal & Ors. reported in 1997 (1) CLJ 501, whereby the Division Bench has directed the Chairman of the Council to consider the case of such persons sympathetically considering the position that there is no fault of the petitioners in this respect. Aggrieved against this order, the present appeal has been preferred. A similar question came up before the Division Bench in an identical situation where the trial Judge had passed a similar order as that of the present one, therein the Division Bench of this Court after considering the matter set aside the same in M. A. T. No. 392 of 2000 by its order dated 18th July, 2000 by referring to the earlier judgment of the Division Bench in the case of Biman Chandra Karmakar v. State of West Bengal reported in 1999 (2) CHN 289. It was held that so long the statutory rules are in force for recruitment to the post no other executive instruction can be given contrary to that. It was observed in Biman Chandra Karmakar's case (ibid):- "It is no longer permissible for any person to contend that any appointment can be made or a Court can direct appointment of a person, de hors, the mandatory provisions of the Statutory Rules. If the Statutory Rules operate in the field of recruitment such rules must strictly be adhered to and the authorities concerned are necessarily bound thereby. Any action on their part in appointing a teacher in deviation of departure from the said rules or in violation thereof would render the appointment a nullity. This aspect of the matter is squarely covered by several Supreme Court decisions in Dr. Arundhuti Ajit Pargaonkar v. State of Maharashtra & Ors. reported in AIR 1995 SC 962; E. Ramkrishnan & Ors. v. State of Kerala & Ors. reported in 1996 (10) SCC 565 ; R.N. Nenjudeppa v. T. Thimmiah reported in 1972 (2) SCR 799 ; B.N. Nagranjm & Ors. v. State of Karnataka reported in 1979 (3) SCR 937 ; Srinivas Reddy v. State of A.P. & Ors., JT 1994 (6) SC 476 ; Lalan Kumar Singh v. State of Bihar & Ors. reported in 1995(2) PLJR 309, upheld in Aswini Kumar v. State of Bihar reported in 7 1997 (2) SCC 1 : AIR 1997 SC 1628 ; State of Orissa v. Dr. Prari Mohan Mishra reported in AIR 1995 SC 974 ; J. K. Public Service Commission & Ors. v. Dr. Narendra Mohan & Ors. reported in 1994 (2) SCC 630. Suffice it to State that this aspect of the matter is also covered by the several Division Bench decisions and Full Bench decisions of this Court. Reference in this connection may be made to (12) Director of Public Instructions of W. B. & Ors. v. Dr. Ashis Pal & Ors. reported in 1998 (2) CHLN 241 ; Ziaul Islam v. State of West Bengal & Ors. reported in 1998 (1) CHN (HC) 509 ; and a Full Bench Decision of this Court in Debasish Dutta v. State of W. B reported in 1998 (2) CLJ 1, apart front the decision in West Bengal Board of Primary Education v. State reported in 1997 (1) CLJ 165." The learned Division Bench held that there is no provision for condonation of age bar in the rules, therefore, the Court cannot in exercise of extraordinary jurisdiction issue any such direction contrary to the statutory rules and in an identical situation set aside the order of the learned Single Judge. The learned Counsel for the respondent invited our attention to the earlier judgment passed by the same learned Single Judge (Amitava Lala) in the case of Tapan Kumar Mondal v. State of West Bengal & Ors. reported in 2000(1) CHN 833. It appears that the attention of the learned Single Judge was not invited to the decision reported in Biman Chandra Karmakar v. State of West Bengal (supra), and the learned Single Judge again passed the same order as in the impugned case. Be that as it may, facts remains that the Division Bench has already taken a view in Biman Chandra Karmakar v. State of West Bengal (supra), that no administrative instruction can be issued contrary to Recruitment & Leave Rules, 1991 framed under Section 106 of the West Bengal Primary Education Act, 1973. Therefore, the learned Single Judge was not correct in issuing the direction to the authorities to forward the name of such petitioners as ex-census employees and to consider sympathetically for grant of relaxation in age. The learned Counsel for the respondent invited our attention to the decision of the Supreme Court in Bir Bajrang Kumar v. State of Bihar, AIR 1987 SC 1345, and submitted that inconsistent order should not be passed by co-ordinating bench of same Court. In the present case, we are only following the decision given by the Division Bench in the case of M.A.T. No. 392 of 2000, therefore, there was no question of passing inconsistent order, on the contrary it appears that the learned Single Judge's attention was not invited to the Division Bench Judgment wherein in an identical situation a similar contention as in the above matter has been overruled by the Division Bench. This appears to be a serious lapse on the part of the Counsel who appeared before the learned Single Judge that they have not invited the attention of the learned Single Judge to the Division Bench Judgment in M.A.T. No. 392 of 2000. Therefore, the view taken by the learned Single Judge in the case of Tapan Kumar Mondal State of West Bengal (supra), and in the impugned order is in per curiam. Hence, the appeal is allowed and the order passed by the learned Single Judge is set aside with no order as to costs. Mitra, J. : I agree.;