Shekhar B. Saraf, J. - (1.) This is an application under Article 226 of the Constitution of India wherein the petitioner is aggrieved by an order dated January 10, 2008 passed by the District Inspector of School (S.E.), Purba Burdwan (hereinafter referred to as the "D.I. of Schools"). By this order, the said D.I. of Schools, in compliance with the order passed in W.P. No. 345 of 2017, had passed a reasoned order in relation to a request for granting prior permission for filling up the post of Group 'D' Staff of the Khaja Anwar Sahid Berth High School (H.S.) (hereinafter referred to as "said school") 1lying vacant since March, 2002.
(2.) The chronological facts leading to this writ petition are as follows:- a. A vacancy for the post of a Group 'D' staff arose on March 1, 2002 on the superannuation of Sri Ajit Kumar Dhara. b. The Managing Committee of the school submitted an application on June 19, 2008 to the D.I. of Schools requesting prior permission to appoint a non-teaching staff (Group D). However, no response was received by the school in response to their prayer. c. The West Bengal School Service Commission (Recruitment of NonTeaching Staff) Rules, 2005 (hereinafter referred to as "earlier Rules") was superseded by the West Bengal School Service Commission (Amendment) Act, 2008 (hereinafter referred to as "Amendment Act of 2008") with effect from January 14, 2009 that introduced a completely new selection procedure for filling up vacancies and the power of the managing committee to select new candidates was taken away and replaced by the Regional School Service Commissions constituted under the West Bengal School Services Commission Act, 1997. Subsequent to the amendment in 2008, the Government framed the West Bengal School Service Commission (selection of persons for Appointment to the post of Non-teaching staff) Rules, 2009 (hereinafter referred to as "The Rules, 2009") in supersession of the earlier Rules, 2005. The Rules, 2009 framed subsequent to the Amendment Act, 2008 took away the power of the managing committee to recruit persons in non-teaching posts in non-government aided and unaided schools, and, delineated the new manner by which recruitment would take place going forward. d. On November 10, 2010, a Co-ordinate Bench of this High Court, dealing with a number of writ petitioners, was called upon to answer a similar question that has arisen in the present writ petition. His Lordship Justice Dipankar Dutta in Ashoke Sawoo v- State of West Bengal, 2011 2 CalHN 82 held that "merely because under the 2005 Rules the Managing Committee of the school had a legally protected right to select a candidate for appointment as nonteaching staff would not clothe the petitioner with any judicially enforceable right to claim that since the selection process had started prior to enactment of the Amendment Act of 2008 to fill up the four posts of non-teaching staff, the process ought to be taken to its logical conclusion in accordance with the 2005 Rules". The essence of the above judgment was that after the supersession of the earlier Rules, 2005 by the new Rules 2009, the school authorities could not insist on filling up the vacant post as per the earlier Rules, 2005 even though the selection process had been initiated under the earlier Rules, 2005. I shall elaborate on this judgment in greater detail later. e. Being aggrieved by this judgment, the petitioner went in appeal and the Division Bench in Asoke Sawoo Vs- The State of West Bengal & Ors., 2012 4 CalLT 393 reversed the above judgment of the single Judge, holding that the selection process should be initiated and completed under the Rules which were in force when the vacancy in question arose. f. The State of West Bengal, being aggrieved by this judgment, appealed by way of a Special Leave Petition under Article 136 of the Constitution of India before the Supreme Court wherein leave was granted and the matter was admitted. g. In the year 2014, the Head Master of the said school filed a writ petition before this High Court submitting that the said school had requested the D.I. of Schools for the appointment to the post of Group 'D' staff on June 19, 2008, prior to the introduction of the Rules, 2009 and accordingly, such permission should be granted by the D.I. of Schools in accordance with the earlier Rules, 2005. On January 17, 2014, Hon'ble Justice Debasish Kar Gupta disposed of the writ petition directing the D.I. of Schools to pass a reasoned order in accordance with the law prevailing at the material point of time. h. Pursuant to the said order dated January 17, 2014 the D.I. of Schools issued a memo dated June 2, 2014 stating that in his record he could not find any application of the school dated June 19, 2008. He accordingly requested the school authorities to submit the prayer for prior permission afresh, as per prevailing recruitment rules in the event there was any vacancy lying in the school. It may be noted that the school authorities did not make any fresh prayer for prior permission. i. The present writ petitioner, who is a Group D staff of the said school since March 1, 1990, filed a writ petition in the year 2017 submitting that the school authorities had been sitting over the matter and had not taken any steps pursuant to request of the D.I. of Schools as per memo dated June 2, 2014. The matter was heard ex-parte by his Lordship the Hon'ble Justice Arijit Banerjee and on July 27, 2017 his Lordship directed the Head Master of the said school to submit a fresh application to the D.I. of Schools for prior permission to fill up the vacancies of Group D post. He also directed the D.I. of Schools to take a reasoned decision and stated that it was expected that the D.I. of Schools shall grant approval of filing up a vacant post unless there are compelling reason for withholding such permission. j. The Supreme Court finally decided the appeals filed by the State of West Bengal in the bunch of petitions challenging the judgment passed by the Division Bench of the Calcutta High Court in Ashoke Sawoo Vs- State of West Bengal & Ors. . The Division Bench of the Supreme Court comprising of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit by an order dated December 5, 2017 held that since no vested rights arise in favour of the candidates merely by the initiation of selection process, the new scheme certainly could be applied to the selection process. The Supreme Court further held that they were of the view that Division Bench was not justified in interfering with the view taken by the learned Single Judge. The relevant portion of the order is delineated below: "Since no vested rights arise in favour of the candidates merely by the initiation of selection process, the new scheme certainly could be applied to the selection process. The Learned Single Judge of the High Court took this view which has been reversed in the impugned judgment. We are of the view that Division Bench is not justified in interfering with the view taken by the Learned Single Judge. Accordingly, we set aside the impugned order and allow these appeals." k. The impugned order in this writ petition was subsequently passed by the D.I. of Schools (S.E.) Purba Burdwan on January 10, 2018. The relevant portion is delineated below:- "Now, a reasoned decision in respect of the application dated 29.08.2017 has to be taken in accordance with law from this end. The West Bengal School Service Commission (selection of persons for Appointment to the post of Non-Teaching Staff) Rules, 2009 was published vide Notification No. 697-ES/S dated 09/07/2009 in which it is clearly mentioned that "In exercise of the power conferred by clause (d) of Sub-Section (2) read with sub-section (1) of section 17 of the West Bengal School Service Commission Act, 1997, and in suppression all previous rules, order, notification and directions of the subject, the Government is pleased hereby to make the following rules regulating the selection of persons for appointment to the post of non-teaching staff". Since the vacancy was reported by the school authority with its resolution dated 28.08.2017 and the same was received by this office accordingly, the vacancy should be filled in following the West Bengal School Service Commission (selection of persons for appointment to the post of non-teaching staff) Rules, 2009. All concerned be informed accordingly."
(3.) Mr. Syed Shamsul Arefin, Advocate appearing on behalf of the writ petitioner submitted that as an application had been made by the managing committee of the school before the DI of Schools requesting prior permission to appoint a non-teaching staff prior to coming into effect of the Amendment Act of 2008, the earlier rules should apply to the petitioner. He further submitted that the orders dated January 17, 2014 and July 27, 2017 had vested the writ petitioner with an accrued right of being selected as per the earlier rules. According to him the Supreme Court order passed on December 5, 2017 had no application whatsoever in relation to the petitioner as the same would not apply retrospectively and could not impact the writ petitioner's accrued right. He further submitted that the order of the Supreme Court was a non speaking order and did not lay down any law whatsoever. Moreover, since the order was a non speaking order, the doctrine of merger would not apply to the same. He relied on a Supreme Court judgment in the case of Gangadhara Palo v- Revenue Divisional Officer and Another, 2011 4 SCC 602 (Coram: Markandey Katju and Gyan Sudha Misra, JJ.) wherein the Supreme Court had held that dismissal of a Special Leave Petition without giving any reasons would not result in merger of the judgment of the High Court with the order of the Supreme Court.;