Pratap Kumar Ray, J. - (1.) :- Heard the learned Advocate for the parties. In the instant case, it is the grievance of the petitioner that though there is a vacancy of Assistant Teacher and the petitioner has the qualification for consideration of his candidature in respect of the said post while the petitioner is holding the post of approved clerk in the school in question, the District Inspector of Schools concerned as yet has not sponsored his name to the School Service Commission for such consideration. Under the School Service Commission Act, 1997 as well as the procedures for selection by such Commission, there is no rule by which any approved clerk's. case could be considered similarly to the consideration as earlier made by the school authority in terms of Rule 4 (e) of the the Recruitment Rules of 1995, issued by the Director of School Education, West Bengal as was effective prior to coming into effect of said School Service Commission Act with Procedure thereto. In absence of any rule and procedure this Court cannot pass any writ of Mandamus commanding the District Inspector of Schools concerned to recommend the name of the petitioner to the School Service Commission as the same would be nothing but commanding a person to do something not provided in the law. It is a settled law that writ of mandamus would lie only when the petitioner has a legal right under the Statute and the respondent failed to perform duties as per statute. In the instant case, the petitioner has no legal right to claim consideration of his case along with others by School Service Commission as under the present Act and the rule framed for selection of Assistant teachers by introducing the School Service Commission Act there is no scope for consideration of the name of any approved clerk being recommended by the District Inspector of Schools concerned. Furthermore, there is also no logic for recommendation of the name by the District Inspector of Schools concerned for consideration of the case of the petitioner, since under the said School Service Commission Act and procedures, the applications are invited from the qualified person who appear in the selection test which is conducted by the School Service Commission under the procedure of School Service Commission. Even there is no necessity of refereeing the name from Employment Exchange and any person qualified, may apply in terms of invitation of School Commission. The relevant provision for selection of candidature by the School Service Commission reads thus: "(1) These regulations may be called the West Bengal School Service Commission (Procedure for Selection of Persons for Appointment to the Posts of Teachers including Head Master/Head Mistresses/Superintendents of Senior Madrasahs in recognised non- Government Aided Schools and Procedure for Conduct of Business of the Commission) Regulation, 1998." The relevant provisions from the said Regulation, Viz., Clauses 4, 5 and 6 reads thus: "4. Advertisement in newspapers - The Central Commission shall, on receipt of the information about such vacancies either from the Regional Commission or from the Director of School Education for the purpose of selecting persons for appointment to the posts teachers, advertise vacancies in such posts in leading newspapers of the State, in English and Bengali and in any other languages, if necessary, specifying the qualifications, age as on the 1st January of the year of advertisement, scale of pay (if possible), and other necessary information relating to such posts. (2) The qualifications, age and any other requirements, for selection in the posts of teachers shall be such as may be prescribed by the State Government. 5. Form of application - (1) The for of application for selection of persons for appointment to the post of teachers shall be such as may be determined by the Central Commission and may be saleable. The Central Commission may, in its discretion, also publish in the newspapers such format, as may be decided by it. (2) The price of the form of application shall be such as may be fixed by the Central Commission. 6. Submission of applications- Every application must reach the office of the Central Commission or such concerned Regional Commission as may be decided by the Central Commission within such time as may be fixed in the advertisement by the Central Commission and shall he accompanied by an account payee bank draft, drawn on a bank for such amount as may be fixed by the Central Commission, payable to the Central School Service Commission Fund in Calcutta as may be specified in the advertisement. The Secretary of the Central Commission shall arrange for proper realisation of all such bank draft, into its fund. The sharing of the amount of the bank drafts between the Central Commission and each Regional Commission shall be in such manner as may be decided by the Central Commission."
(2.) In view of such provision, there is no scope to refer the name of the petitioner. As soon as School Service Commission Act came into effect and a regulation was framed for selection of Assistant Teachers, the earlier rule issued by the Director of School Education, West Bengal being Rule 1995 automatically ceased to have an effect and as a consequence thereof names of approved clerks eligible for the post of Assistant Teacher as maintained by the office of the District Inspector of School concerned under the said Recruitment Rule of Director of School Education, 1995, also automatically ceased its all force. In that view of the matter, the judgment as relied upon by petitioner annexed at page 19 of the writ application with due respect to the learned Judge who passed the judgment, this court is not inclined to follow the same since the relevant provision of school Service Commission Act was not at all placed for decision by the said court. In that view of the matter, the judgment as relied upon by the petitioner is a judgment per incuriam and is not binding upon this court. Reliance may be placed to some English cases on theory of per incuriam as enunciated by the Courts, Young v. Bristol Aeroplace Co., Ltd. reported in (1944) 2 All England Reporter 293 at page 300, wherein the Court held: "Where the court has construed a statute or a rule having the force of a statute, its decision stands on the same footing as any other decision on a question of law. But where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court right properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts. Two classes of decisions per incuriam fall outside the scope of our enquiry namely (i) those where the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covers the case before it-in such a case a subsequent court must decide which of the two decisions it ought to follow; and (ii) those where it has acted in ignorance of a decision of the House of Lords which covers the point-in such a case a subsequent court is bound by the decision of the House of Lords." The observation of Moore v. Hewitt, reported in (1947) 2 All Englanad Reporter 270 and Penny v. Nicholas, reported in (1950)2 All England Reporter 89 is on the same line. The apex Court has considered those judgments as well as the other judgments passed by Indian Courts in the case of A.R. Antulay v. R.S. Nayak & Anr., reported in (1988) 2 SCC, 602, a judgment "Per Incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. Morelle v. Wakeling. Also see State of Orissa v. Titaghur Paper Milals Co. Ltd . We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong." In Moore (supra), Lord Goddard, C.J. at page 272A of said report held to this effect: "The attention of the Court was never called to Highes v. Wavertee (1), and the court, therefore, acted per incuriam. It was Young v. Bristol Aeroplace Co., Ltd. (4), that the Court of Appeal is bound by its own judgments with certain exceptions is where the court given a decision per incuriam because the provisions of a statute or the authority of a case have not beer brought to their attention." In Penny (supra), Lord Goddard, C.J. at page 91H and 92A of the said report held to this effect: "It has been laid down by the Court of Young v. Bristol Aeroplace Co., Ltd. (4) that where material cases or sections of statutes were not cited to the court in a case, the court need not follow the decision if those cases or enactments might have influenced it had they been cited." The Apex Court also considered this aspect in the case State of U.P. & Anr. v. Synthetics And Chemicals Ltd. & Anr., reported in (1991) 4 SCC 139. In paragraph 40 of the said report, the court observed thus: 'Incuria' literally means 'carelessness', In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority." The parameters to test the pre incuiriam principle also has been laid down in the case of Fuerst Day Lawason Ltd. v. Jindal Exports Ltd., reported in 2001 (6) SCC 356. Having regard to such test of per incuriam and applying such in the judgment as relied upon passed in W.P. 21182 (W) of 2000 by M.H. Ansari, J. this court holds that in the said judgment since the effect of School Service Commission Act and repeal of the recruitment rules, issued by the Director of School Education, West Bengal, neither was placed for decision by the said court nor was at all considered and adjudicated, the same judgment cannot be considered as a binding precedent to this court despite of the fact that this court is also exercising the co-ordinate jurisdiction. In that view of the matter, since the writ petitioner has no legal right under the new Act of West Bengal School Service Commission Act 1997 and the regulation framed thereto for selection of the assistant teacher, this writ petition is dismissed. There will be no order as to costs. Petition dismissed. ;