Subhro Kamal Mukherjee, J.@mdashThis is an appeal against order dated August 13, 2008 passed by the Hon''ble Single Judge in W.P. No.
16647 (W) of 2008, inter alia, directing maintenance of status quo, as of that date, in so far as the respondent no. 6 and 7 were concerned, in
connection with an application filed under Article 226 of the Constitution of India (''the writ petition'' in short) by Kamdevnagar Biswanath Balika
Vidyalaya (''the said school'' in short) and the Secretary of the said school.
2. The respondent no. 7 in the said writ petition is the appellant before this Court.
3. Some facts are needed for deciding as to whether the Hon''ble Single Judge rightly exercised his discretion in directing maintenance of status quo
by passing the impugned order.
4. On December 19, 2003, the West Bengal Regional School Service Commission, Western Region, recommended the candidature of the said
respondent no. 7 in the writ petition, who is the appellant before this Court, for appointment in the post of assistant teacher of the said school in
science group. The respondent no. 6, in the said writ petition, namely, Shrimati Soma Roy, is, also, an assistant teacher in the said school in the
language group.
5. On January 12, 2004, the appellant joined in the said post of assistant teacher in the said school. The appellant was approved as an assistant
teacher in the said school with effect from January 12, 2004. The approval was communicated by the Additional District Inspector of Schools
(Secondary Education), Contai Sub-division, District - Purba Medinipur, by memo no. 1331 - C/2 dated March 9, 2004.
6. The appellant applied afresh before the School Service Commission, as the school where she is presently posted is far off from her home.
Therefore, she wanted to avail the opportunity to get an appointment in a nearby school. Her candidature was accepted on January 22, 2008. She
appeared in the written test. She became successful. She was asked to appear for the personality test.
7. The appellant on July 11, 2008 informed the Secretary of the said School that she had passed the School Service Commission examination and,
therefore, requested the said Secretary to issue an experience certificate to her. Very peculiarly the School authorities declined to issue the
experience certificate. It was contended that she did not take ''No Objection Certificate'' from the School authorities before her appearance in the
fresh School Service Commission examination.
8. The School authorities addressed a letter to the Chairman, the West Bengal Central School Service Commission and to the
Chairman/Secretary, the West Bengal Regional School Service Commission, Western Region, for cancellation of the candidature of the said two
assistant teachers.
9. It was contended that the said two assistant teachers withheld material information and furnished false information by not enclosing the employer
certificates along with their applications although such certificate was a mandatory condition laid down in the booklet of the Commission and, also,
in the prescribed form.
10. The School authorities did not stop there. They moved the said writ petition, inter alia, seeking a mandamus on the authorities to take a
decision on the basis of such application of the School authorities. In such writ petition, the impugned ad interim order of injunction in the form of
status quo was passed.
11. We are of the considered opinion that the whole approach of the School authorities is mala fide, callous and heartless. There is no provision
under the West Bengal School Service Commission Act, 1997, and in the West Bengal School Service Commission (Selection of Persons for
Appointment to the Post of Teachers) Rules, 2007, earmarking such requirement towards submission of employer''s certificate to be mandatory
for selection and recommendation of a candidate. Rule 18 of the said Rules of 2006 only provides that the Regional Commission shall not
recommend the name of a person, who, at the time of submission of application or after submission of application, is appointed to the post of a
Teacher in a school or madrasah on the basis of recommendation made by the said Commission and continues his service as such Teacher, but has
not completed three years'' approved service in the said post and who, while in-service, having obtained required degree for being considered for
the post applied for fails to submit before the Regional Commission the requisite document of his approved study leave, or any kind of leave for the
purpose of relevant higher studies, or permission from the appropriate authority for prosecuting the studies for the said degree.
12. The requirement towards submission of the employer''s certificate, as incorporated under Serial no. 21 of the application form for candidate
applied for appointment in the post of assistant teacher, was only to ascertain the date of joining and the name and address of the school where the
applicant was in service, status of service of the applicant and particulars of the teaching subject with copy of approval memorandum and the
length of service. Such requirement towards submission of such employer''s certificate is not a mandatory pre-condition for consideration of the
candidature of in-service candidate inasmuch as the essence of such requirement is simply informative in nature.
13. Rule 18 of the said Rules does not provide that recommendation of the candidate can be withheld or cancelled in the absence of an employer''s
certificate. The said School is an aided institution. It is bound by the provisions of the said Act and the said Rules. The said School cannot decline
to issue an employer''s certificate to an in-service teacher. The in-service school teacher has a legal right to participate in a fresh selection process.
The denial by the School authorities to issue employer''s certificates to this appellant and the respondent no. 6 in the writ petition is wholly mala fide
and illegal.
14. The School cannot force a teacher to teach in the school when he or she gets a better opportunity.
15. By refusing to issue employer''s certificate, the School authorities acted wholly mala fide and the Hon''ble Single Judge did not apply His
Lordship''s discretion properly in passing an interim order in a writ petition of this nature.
16. Therefore, the order impugned stands set aside.
17. The appeal and the connected applications, thus, stand disposed of.
18. We, however, make no order as to costs.
19. Urgent xerox certified copy of this judgment, if applied for, is to be given to the learned advocates for the parties.
Kalidas Mukherjee, J.
I agree.