S.B.Sinha, J. - (1.) - This appeal is directed against the judgment and order dated 6.6.90 and order dated 7.1.97 whereby and whereunder the writ petition filed by the writ petitioners was allowed and the same benefit has been extended to the added respondents and has also been directed to give appointment to the writ petitioners and the added respondents. The admitted fact of the matter is that a panel was prepared in the year 1981. The writ petitioners and the added respondents are said to have been empanelled as no appointment was given to them from the said panel for a long time. They filed a writ petition in the year 1988 praying, inter alia, for the following reliefs:- (a) A writ of or in the nature of Mandamus commending the respondents and their men and agents to forbear from giving any or further effect to the purported order as memo No.17 Edn. (P)/55-5-85 dated 10.1.1985 issued by the Respondent No. 1 and Memo No. 23 (120)/P.E. dated 1.2.85 issued by the District Inspector of Schools (P.E.) 24-Parganas inviting the names of the candidates from different employment exchanges for recruitment of Primary School Teachers in different schools in the Urban areas within the District 24-Parganas. (b) A Writ of Mandamus or in the nature thereof directing the respondents to forbear from cancelling or withholding the panel as was duly prepared in the year 1981 wherein your petitioners have been selected as eligible candidates for being absorbed to the posts of primary school teachers so long as the petitioners are not appointed as teachers and so long as the existing panel is not exhausted and also commanding the respondents to fill up all the vacancies by observing the persons in the panel within a reasonable time. (c) Writ of Certiorari commanding the respondents to certify and to transmit all the relevant papers and records in connection with the impugned memo/order No. 17 Edn(p) 55-5-85 dated 10.1.1985 issued by the Respondents No. 1 and Memo No. 23(120)/P.E. dated 1.2.85 passed by the District Inspector of Schools (P.E.) 24- Parganas and relating to Memo No. 384(15000)/P.E. dated 9.12.80 issued by Respondents No. 2 to this Hon'ble Court within such time as this Hon'ble court may deem fit and proper so that conscionable justice may be done by commanding the respondents to cancel, rescind, withdraw and quash the impugned orders.
(2.) The learned Judge by a judgment and order dated 6.6.90 upon following a decision of a learned Single Judge in the case of Asoka Roy & Ors. v. State of West Bengal & Ors, reported in Calcutta Law Times 1989(2) HC 139 held that the petitioners should be appointed. In Asoka Roy's case it was directed as follows: "In my view it is sheer that those candidates who have been empanelled in 1981 should deprived of the opportunity of having an employment within a course of one year or maximum one-and-a-half year for no fault of theirs and a fresh panel would be prepared. There is no dispute of the fact this panel was prepared in 1981 and the steps for preparation of a fresh panel were taken only in 1985 after a lapse of four years. This itself indicates that the respondents themselves kept the panel alive for pretty longer than one-and-a-half years in utter violation of the said Rule 3E and thought of fresh panel only in 1985. Further by their own act of giving appointment in 1988 to Bhaskar Goon, a candidate of 1981 panel, the submission of the State that the panel exhausted in force by virtue of Rule 3E has no force at all. For the ends of justice it is necessary to strike down the limitation of 12 months and further extension of 6 months from the amended Rule 3E of the Notification dated 8th February, 1974 when the State itself is not following the time-limit prescribed in the said Rule and whimsically giving appointments on pick and choose basis from the old panel of 1981 much beyond its life and which according to the State Authorities themselves is no more valid. Even candidates were appointed from outside the panel. The action of the State respondents in exercising this executive power in the facts of this particular case offends the right of equality and is violative of Article 14 of the Constitution."
(3.) In the writ petition the appellant was not initially impleaded as a party. However, from the order of the court it appears that the appellant was impleaded as a party on a later date. Paper Book was filed. In the meantime, the West Bengal Rule of Primary Education was repealed and replaced by the West Bengal Primary Education Act, 1973. The State of West Bengal in exercise of its power under section 105 of the 1973 Act framed rule in the year 1991. The District Primary School Council was constituted by the State Government. Pursuant to the order, in furtherance of the provisions of 1973 and 1991 Rules, the Recruitment and Leaves Rules were framed, in terms thereof, Rules 8 and 9 of Recruitment and Leave Rules lay down the procedure in what manner the recruitments have to be done. It is now well settled that in terms of Rule 3E of the Bengal Primary Education Rules, 1940 the life of the panel was one year with a power to the State of extend the same for a further period of two years. A Division Bench of this court comprising the Hon'ble N.P. Singh, C.J. and Tarun Chatterjee, J. in Jitendra Nath Chatterjee's case reported in (1990)II CLJ 1, inter alia, held that in view of Rule 3 the life of the panel would not have been extended. The learned judges held that after expiry of the said panel no direction could be issued for appointment from the said panel. Asoka Roy (supra), therefore, stood overruled by the necessary implication of the Division Bench of this court.;