Jayanta Kumar Biswas, J. - (1.) The petitioner has challenged the whole West Bengal Primary School Teachers Recruitment Rules, 2001. In course of argument counsel submits that the challenge is actually to r. 8 of those rules, not to the whole rules.
(2.) Counsel argues that provisions in r. 8 are liable to be struck down on the ground that they are contrary to-the apex court decision in Excise Superintendent Malkapatnam v. K.B.N. Visweshwara Rao and Ors., (1996) 6 SCC 216 , and the five judge bench decision of this court in Sri Rabindra Nath Mahato v. State of West Bengal & Ors., 2005 (2) CLJ (Cal) 161 . His argument is that the previous apex court decision in Union of India & Ors. v. N. Hargopal & Ors., (1987) 3 SCC 308 was overruled by the decision given in the case of Excise Superintendent, Malkapatnam. His contention is that in the five judge bench decision of this court it was held that even if the statutory recruitment rules confined the source of eligible candidates for a post only to the employment exchanges, the employer would be under the obligation. to publish employment notice inviting applications from all eligible candidates from the open market.
(3.) On the basis of those authorities he advances his argument that in the instant case the provisions in the rule providing that the district primary school councils established under the West Bengal Primary Education Act, 1973 will be under the obligation to obtain names of eligible candidates only from the employment exchanges being contrary to the apex court decision and the five judge bench decision of this court, are liable to be struck down. His argument is that the petitioner, being eligible in every respect, is entitled to participate in the selection process, since Article 16 of the constitution guaranteed his fundamental right to be treated equally with other eligible candidates for employment opportunity in the council:;