Amitava Lala, J. - (1.) This writ petition is made being aggrieved and dissatisfied with an appointment of respondent no. 6 in the post of Head teacher of the concerned institution being junior to the petitioner who is at present working as teacher-in- charge. According to him, he is seniormost teacher of the institution and as per rule relating to appointment of Head teacher of the primary institution, seniority should be counted. The learned Counsel appearing for the petitioner has drawn my attention to the relevant portion of the West Bengal Primary Education Act, 1973 and also the two Rules 18 & 19 of the Recruitment and Leave Rules of primary teachers 1991. According to the petitioner, the post was originally unreserved post and post of the Head teacher being a single cadred post cannot be reserved for any other category. He has made his submission for the reason that his candidature was not considered due to one of such ground that the post which was originally unreserved now become reserved for Scheduled Caste candidates. The petitioner contended that after the empanelment, options are given to choose the available vacancy of the different schools and there is no such option as given to the petitioner as yet. Therefore, the petitioner continued as teacher-in-charge till the last date of his service and retired as the teacher-in-charge. Moreover, from March, 2001, no salary or perquisite has been paid to the petitioner till the date of retirement, therefore, the petitioner will be entitled for reliefs not only for the post of Head teacher as per rules itself but also for releasing the salary as well as pensionary benefit whatever he is entitled after the retirement. The petitioner relied on a judgment reported in 2001 (4) SCC 529 (N.K. Pankajakshan Nair v. P.V. Jayaraj and others ) to establish the provision that statutory Rules cannot be taken away by a suggestion of the executive unless and until Rules are appropriately amended. According to him, since the roster is made for not only in single cadred post but also de hors the rule only on the basis of the administrative direction, the same cannot be available for appointment of any other person junior to him being the category of Scheduled Caste, Scheduled Tribe or other reserved candidate.
(2.) The petitioner further relied upon ( 1995) 2 SCC 745 (R.K. Sabharwal and Ors. v. State of Punjab and others ) which deals with a principle that when the total number of posts are filled by the operation of the roster than the result envisaged by the impugned instruction is achieved. There is no justification to operate contrary to the roster thereafter. The vacancies arising in the cadre, after the initial posts are filled, will cause no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. In case of non-availability, the carry forward point will be available. In the instant case the unreserved candidate was available. Therefore, there was no cause to change the roster.
(3.) Mr. A.P. Sircar, learned Senior Counsel appearing for the Council contended before this court that in the affidavit-in- opposition, the position has been clarified. The petitioner being the general candidate was not available for the posting as per the option, if any. Moreover, option cannot be the right. Therefore, he has hardly any grievance in this respect considering the present position that the petitioner has already been retired from the service and there is no monetary loss whether the petitioner retired as Head teacher or teacher-in- charge. According to me, the relief has sought for the purpose of releasing of the salary from the month of March, 2001 till his retirement and in getting retirement benefit. There cannot be any embargo in the present circumstances. So far as other points are concerned, as a matter of principle I hereby hold with the judgment of the Supreme Court as above that by way of executive direction that the statutory rules cannot be wiped out and the category of vacancy belonged to the roster unnecessarily be changed by any administrative order without the amendment of the rule.;