- (1.) In the instant case, it is the grievance of the petitioner that the post of Headmistress which fell vacant prior to the coming into effect of the West Bengal School Service Commission Act, was duly notified to the.concerned District Inspector of Schools for according necessary permission in terms of the recruitment rules issued by the Director of School Education on exercise of his power under Rule 28 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 (hereinafter for brevity referred to as the Management Rules 1969), but the District Inspector of Schools concerned kept mum overthe issue and thereby has infringed the right of the petitioner for consideration in the post.
(2.) Under said Rule 28, the Director of School Education, West Bengal was empowered to issue recruitment rules and following that, recruitment rule was issued by him vide Memo No.2066-G.A. dated 27.10.1995, effective from 1.12. 95, which was superseded and cancelled in view of subsequent amendment of Rule 28 of the Management Rules, 1969 with effect from 20.8.1991, which provides, inter alia, that without any recommendation of the School Service Commission in terms of.the West Bengal School Service Commission Act, no Managing Committee would be entitled to give any appointment in any teaching and non-teaching post, including the post of Headmaster and Headmistress. The relevant amended rule provides to this effect:- "28. Powers of Committee-(1) In an aided institution the Committee shall, subject to the provisions of any Grant-in-aid Scheme or Pay Revision Scheme or any order or direction or guidelines issued by the State Government or the Director in connection therewith and in force for the time being, have the power. (i) to appoint on the recommendation of the West Bengal Regional School Service Commission in respect of the region concerned, teachers on permanent or temporary basis against permanent or temporary vacancies, if and when available, within the sanctioned strength of teachers and on approval by the Director or any officer authorised by him, such approval being sought for within a fortnight from the date of decision of the Committee in this behalf."
(3.) West Bengal School Service Commission Act came into effect from 1.11.97 and Section 9 of the said Act provides that all appointment of teaching and non-teaching staff of the secondary and higher secondary schools would be controlled and managed by the School Service Commission by inviting applications from the eligible candidates. Post of Headmaster or Headmistress is also falling under the said category, and accordingly School Service Commission got the right to select candidates in view of coming into effect of the School Service Commission Act, and the relevant provision of Section 9 read with the amended provision of Rule 28. Hence, there was no scope for giving any effect to the recruitment rule issued by the Director of School Education as was existing prior to the coming into effect of the West Bengal School Service Commission Act. Section 9 of the said Act reads thus :- 9. Effect of recommendation of Commission-(i) Notwithstanding anything contained in any other law for the time being in force or in any contract, custom or usage to the contrary, appointments to the posts of Teachers in a school shall be made by the managing committee, by whatever name called, or by the ad hoc committee, or by the administrator, if any (where there is no managing committee), of that school on the recommendation of the Regional Commission having jurisdiction. (2) Any appointment of a Teacher made on or after the commencement of this Act in contravention of the provisions of this Act shall be invalid and shall have no effect and the Teacher so appointed shall not be a Teacher within the meaning of clause (p) of Section 2.;