22.04.2025 Sl No.26 Court No.8 (gc) MAT 1422 of 2024 CAN 1 of 2024 CAN 2 of 2024 State of West Bengal & Ors. Vs. Sahara Parvin & Ors. Mr. Md. T.M. Siddiqui, Ld. A.G.P. Mr. Suddhadev Adak … for the Appellants. Mr. Milan Ch. Bhattacharjee, Sr. Adv., Ms. Sulagna Bhattacharya …for the Respondent No.1/ Writ Petitioner. Mr. Arjun Roy Mukherjee, Ms. Saheli Mukherjee …for the Respondent No.7/ P.B.S.S.M. Re: CAN 1 of 2024 1. There is a delay of 34 days in filing the memorandum of appeal. 2. We are satisfied with the explanation offered for not being able to the file the appeal within the period of limitation. The delay of 34 days in filing the memorandum of appeal is hereby condoned. 3. Accordingly, the application for condonation of delay is allowed and disposed of. Re: MAT 1422 of 2024 CAN 2 of 2024 4. The State is the appellant. The State appellants are aggrieved by an order passed by the learned Single Judge on 16th April, 2024 in which the writ petitioner/respondent 2 no.1 has questioned the legality of the order passed by the District Project Officer (now re- designated as District Education Officer), Malda on 16th December, 2013 in deference to the order dated 20th September, 2013 passed by a Coordinate Bench in MAT 813 of 2012 whereby the District Project Officer (in short “DPO”) refused to accord approval to the panel as re-casted in terms of the order dated 13th September, 2011 passed in WPA No.16735(W) of 2009 by taking recourse to the ban imposed by the School Education Department, Government of West Bengal vide its memo no.376-SE(P) dated 9th June, 2010 in giving new engagement in the posts of Para Teacher. 5. Mr. Md. T.M. Siddiqui, learned A.G.P. has submitted that by reason of coming into force the Right of Children to Free and Compulsory Education Act, 2009 (in short “2009 Act”) on and from 1st April, 2010, the DPO in refusing to accord approval to the panel is justified. It is submitted that merely because the writ petitioner had featured in the selection list that had culminated in the panel, no vested right has accrued in favour of the writ petitioner. It is submitted that the legislature thought it fit and proper to have the 3 qualifications for Para Teachers laid down in the 2009 Act. The learned Single Judge has failed to appreciate that by reason of 2009 Act, the panel that was prepared or re-casted could not have been implemented. 6. Mr. Arjun Roy Mukherjee, learned Counsel appearing on behalf of the Paschim Banga Sarva Shiksha Mission has supported the appellant. It is submitted that prior to the 2009 Act, on the basis of the scheme formulated by the Central Government and the State Government for imparting best education to the children between 6 and 14 years, tenure based appointment was made which, however, has now been discontinued by 2009 Act. 7. Our attention is drawn to the Government Circular being Memo No.376-SE(Pry) dated 9th June, 2010 issued by the School Education Department that in partial modification of the earlier Memorandum No.273SE (P) / PBRPSUS / ADMN /9 / 04-05 dated 23.04.2010 for the Para Teacher the following benefits have been extended:- i) No other allowance will be admissible to the Para Teachers, Siksha Bandhus, VRPs and other 4 associated with PBSSM and the Contractual Teachers except the enhancement @ 5% of the remuneration, at every interval of 3 years, after the enhancement done as on 01-06-2010. ii) These persons will remain engaged till they attain 60 years of age, and the State Government will bear the expenditure if the Government of India stops funding the PBSSM Project before their cessation of engagement attaining 60 years of age. 8. However, in clause 2 it is stated that “no new engagement of Para Teacher or any other category of employees can be made after issue of this order”. 9. Mr. Arjun Roy Mukherjee has submitted that the decision not to appoint the present writ petitioner as Para Teacher is duly supported by Memo dated 9th June, 2010 clause 2 which debars no new engagement. The question arises whether the appointment of the petitioner was to be considered as new engagement. It is undoubted that the Madrasah started the selection process with 5 the approval of the DPO and on 27th July, 2007, the DPO, Malda has issued the guidelines to be followed for inclusion of the names of the candidates fulfilling the criteria laid down in the said order. On the basis of the aforesaid, the panel is required to be prepared. The school authorities made an advertisement on 27th January, 2009 for engagement of Para Teacher in Nayantuli Mohanandapur High Madrasha and he was empanelled as the first candidate in the list prepared by the school. The said list was sent for approval to the DPO. However, in the meantime the dispute arose as to school instead of sending the panel as it stood altered, the position of the candidates and the second paneled candidate was recommended for the said post. This has resulted in series of litigations. 10. Ultimately, in a writ petition filed by the writ petitioner in WPA 16735(W) of 2009, a learned Single Judge directed the Managing Committee of the School to take a resolution and prepare a fresh panel as per merit list prepared by the concerned Coordinator and sent the same before the DPO for approval. The DPO was directed to grant approval of the 6 receipt of the said communication. In an appeal being MAT 813 of 2012 preferred by the DPO, Malda, the order of the learned Single Judge was modified only to the extent of deleting the following direction:- “The District Project Officer on receipt of the same will grant approval. The Managing Committee is directed to complete the process within a period of 10 days from the date of communication of this order by a letter to be issued by the learned Advocate on record for the petitioner and the District Project Officer is to grant approval within a period of fortnight from the date of submission of such panel.” 11. The aforesaid direction was substituted by the following order:- “The District Project Officer on receipt of the fresh panel shall consider the same in accordance with law and pass an appropriate order.” 12. The said appeal was disposed of on 20th September, 2013. 13. It does not appear from the pleadings or the arguments that it was argued either before the learned Single Judge or before the Hon’ble Division Bench that by reason of the 2009 Act, it is not possible to give effect to the panel. The DPO instead of taking into 7 consideration the re-casted panel relied upon the School Education Department Circular dated 9th June, 2010 which plea was available to the present writ petitioner as also the PBSSM in the earlier proceedings in throwing a challenge to the re-casted panel. Moreover, it appears that the said Circular was issued presumably in view of coming into force of the 2009 Act on and from 1st April, 2010. In the instant case, the selection process commenced in the year 2007 and culminated much before the said Act had come into operation. 14. In view thereof, the bar of School Education Department cannot have any manner of application in deciding the approval of the re- casted panel. The Memo dated 9th June, 2010 of the School Education Department can only be held to be prospective and not retrospective. A panel which has been finalized has to be given effect to within the validity of the panel in the event the entire panel is revoked by the authority concerned on good cause shown. It cannot be done at the ipse dixit of the authority concerned. 8 15. On such consideration, we do not find any reason to interfere with the order passed by the learned Single Judge. 16. The appeal fails. 17. The direction of the learned Single Judge in Paragraph 36 of the order shall be completed by the District Project Officer (now re- designated as District Education Officer) within four weeks from the date of communication of this order. 18. Accordingly, the appeal and the application are disposed of with the aforesaid direction. 19. However, there shall be no order as to costs. 20. Urgent Photostat certified copy of this order, if applied for, be given to the parties upon compliance of all necessary formalities. (Soumen Sen, J.) (Smita Das De, J.)