P.K.Ray, J. - (1.) In this writ application, the petitioners, Arya Pratinidhi Sabha, Bengal and its General Secretary have challenged the guidelines for recruitment of teachers, including Headmaster/Headmistress and Assistant Headmaster/Assistant Headmistress of the recognised Non-Government aided Secondary Institutions running on special rules allotted by the appropriate authority and for the secondary institutions which receive D.A. from the respective District Inspector of Schools in the State as issued by the Director of School Education, West Bengal under Memo No. 1267/1(21)/SA dated 26.11.98 being annexure A at page 19 of the writ petition as well as procedure for recruitment of teaching and non-teaching staff including Headmaster/Headmistress/Assistant Headmaster/Assistant Headmistress in non-Government Aided Secondary Schools which Department of School Education, Government of West Bengal accepts to have been established and administered by minority issued by the Director of School Education, West Bengal, under Memo No. 1439(21) dated 28.8.99 being annexure 'SA' at page 16 of the supplementary affidavit to the writ application which was issued in supersession of all previous orders in that regard whereby and whereunder provisions have been made for appointment of teaching staff as well as non-teaching staff so far as schools established and administered by minority as well as schools enjoying special rules.
(2.) It is submitted by the learned advocate for the petitioners that all the schools controlled, maintained and regulated by Arya Pratinidhi Sabha, Bengal and Assam are controlled by special rules in terms of notification No. 404-Edn(S) dated 19.3.73, a notification which was issued by the Hon'ble Governor in exercise of the power conferred upon him under Rule 33 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 (hereinafter referred to as the Management Rules, 1969 for brevity). Relying upon the said notification it is submitted that since the schools under the petitioner No. 1 are controlled and guided under the said special rules in terms of the aforesaid notification (which hereinafter referred to as the notification dated 19.3.73), the guidelines as issued by the Director of School Education, West Bengal regulating the appointment procedures of teaching and non-teaching staff in the schools controlled and managed by the petitioner No. 1 has no applicability. Strong reliance has been placed by the learned advocate of the petitioners to Rule 7 of the said Special Rules contending, inter alia, that the petitioner No. 1 got the authority to appoint employees, both permanent and temporary, salaried or honorary, only subject to any general or special orders issued by the State Government putting an embargo regarding such exercise of the power under Rule 7 of the Special Rules. It is further contended that the Director of School Education, by his communication dated 13.5.86 accepted that the schools controlled and guided by petitioner No. 1 since were enjoying special rules, the procedure for appointment of teaching and non-teaching staff issued by the Director of School Education under Memo No. 1464 dated 28.8.81 has no applicability.
(3.) However, this application has been opposed by the learned advocate for the State respondents without filing any affidavit. It is submitted by the learned advocate for the State respondents that the Director of School Education, West Bengal has the competency to issue such guidelines. It is further contended that the school is not a minority school in view of the observation made in the judgment of the Apex Court wherein the State Government's right for not considering the schools controlled and guided by the petitioner No. 1 as minority schools, was not prejudiced. Reliance has been placed to the judgment of the Apex Court dated 22.7.96 passed in the case of Arya Pratinidhi Sabha & Anr. v. State of West Bengal & Ors., under CMP 25311 of 1998 in Transfer Case (Civil) No. 26 of 1990.;