- (1.) This appeal has been preferred assailing the judgment and order impugned dated 10th September 2008, passed by the learned Single Bench in disposal of W.P. No.21796 (W) of 2007. The petitioner's contention in his writ petition, he was appointed an Assistant Teacher on 28th January, 1998 in a lien vacancy for one year and subsequently extended up to 10th July, 1999. In order to get appointment in lien vacancy the petitioner had to pass through a selection process upon observing all formalities. While the petitioner was working in the said lien vacancy, the post became permanently vacant since Sri Bikash Chandra Saha left the school on 3rd July, 1999 by submitting his resignation. The petitioner approached the authorities for regularization of his appointment in the said vacancy as the post became permanently vacant. The respondents did not take any step the petitioner was compelled to file a writ petition on 6th July, 1999 which was disposed by the learned Single Judge of this Hon'ble Court. The Hon'ble Single Judge directed the District Inspector of Schools (SE) Birbhum, to consider the representation of the petitioner within a period of four weeks from the date of communication of that order. In spite of that communication, the concerned District Inspector of Schools did not comply with the order. Petitioner filed a contempt application. In the meantime, the concerned District Inspector of Schools preferred an appeal before the Hon'ble Division Bench which was dismissed as infructuous. Thereafter, the concerned District Inspector of Schools asked the petitioner to appear before him on 28th June, 2007 with all documents for the purpose of hearing as per the learned Single Judge's order. After hearing the writ petitioner the District Inspector of Schools by his order dated 2nd July, 2007 rejected the prayer of the petitioner on the ground that upon resignation of the erstwhile teacher the appointment of the petitioner was automatically terminated with effect from 3rd July, 1999 and it was also observed that since 1st November, 1997 the School Service Commission Act has come into effect and since then School Service Commission started its function recording and after holding proper selection process. School Service Commission prepared a panel and recommend for giving appointment to the Assistant Teachers in different schools and as such the claim of the petitioner was held to be unjustified. Being dissatisfied the order impugned passed by the District Inspector of Schools (SE), Birbhum petitioner preferred this writ petition which was dismissed by the learned Trial Court against which this appeal has been preferred.
(2.) The writ petition was dismissed by the learned Single Judge on the ground that appointment in a lien vacancy does not create any permanent right to the post and its continuation depends so long the permanent incumbent to the post did not return back. In the instant case it appears that the permanent teacher against whom the petitioner was appointed in post in question resigned on 3rd July, 1997. Naturally the petitioner's appointment on lien vacancy was terminated with effect from that date. The other ground for which the writ petition was also rejected is that, after 1st November, 1997 since when School Service Commission has come into effect, the School Service Commission has its power an authority to prepare a panel and to recommend the name of the candidate for appointment as Assistant Teacher. Therefore, the concerned District Inspector of Schools is not authorized to give any appointment and/or regularize service of the petitioner in the vacancy that occur due to resignation of the concerned teacher. Learned Judge also came to a conclusion that the decision cited by the learned Advocate for the writ petitioner are delivered on different set of facts which has no manner of the application in the case.
(3.) Mr. Jaharlal De, learned Counsel appearing for West Bengal Regional School Service Commission submits that Section 9 of School Service Commission Act clearly bar any such appointment and/or regularization. It is the School Service Commission to prepare a panel after holding a selection and to recommend the names from the panel for such appointment. According to Mr. De as soon as the erstwhile teacher resigned, the petitioner's appointment on lien vacancy stands terminated with effect from that date. Since the vacancy arose, the School Service Commission is to take appropriate steps. There is no question of appointing the petitioner or regularizing the service in the vacant post.;