Judgment:
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE PRESENT: The Hon’ble Mr.Justice Subrata Talukdar W.P.1267 of 2013 Santosh Kumar Pandey -vs.State of West Bengal & ORS.For the Petitioner : Mr.Anjan Bhattacharya For the State : Mr.Joytosh Majumdar (Addl.
Asst.
Adv.General) Mr.Rezanul Hossain Respondent Nos.4, 5 & 6 : Mr.Partha Sarathi Deb Barman Heard on : 21/03/2016 & 01/07/2016 Judgement on : 21/12/2016 Subrata Talukdar, J.: In this writ petition the petitioner claims approval to a permanent post in the School in issue namely, Balkrishna Vithal Nath Vidyalaya represented by the respondent Nos.4, 5 and 6 to the writ petition.
The petitioner is aggrieved by the Memo impugned of the District Inspector of Schools (Secondary Education) (for short DI (SE).Kolkata dated 8th November, 2013 rejecting his prayer.
The DI (SE).while rejecting the prayer of the petitioner for approval by an elaborate order, has raised several issues.
First, the appointment of the petitioner as an Assistant Teacher (for short AT) to the School is questionable.
The petitioner has been unable to produce a contemporaneous letter of appointment of the date on which he claims to have been appointed, viz.
1st August, 2001.
The petitioner has, instead, relied upon a suspect letter of the Teacher-in-Charge (for short TIC) of the School dated 15th May, 2012 appointing him as an AT with B.Co.qualification, 11 years after his claimed appointment.
The DI (SE) has therefore doubted the valid appointment of the petitioner at all to the School.
Second, the DI(SE) has opined that the Managing Committee (MC) of the School did not have any authority to, assuming but not admitting for the sake of argument that the appointment of the petitioner is valid, to appoint the petitioner without taking prior permission from the DI (SE).Therefore, the initial appointment of the petitioner lacking any legal foundation, the petitioner cannot subsequently claim approval.
Third, the petitioner is not the seniormost teacher in the Commerce stream.
There is another teacher by the name of Pradip Kumar Tiwari with B.Co.qualification, who is the seniormost unapproved teacher and therefore fiRs.eligible to claim approval.
Fourth, the petitioner has claimed that the School engaged his services in the Work Education Group.
However, the petitioner lacks any of the qualifications necessary for discharging the duties of AT in the Work Education Group.
Fifth, the petitioner is not eligible to claim application of the Government Order (GO) dated 23rd November, 1994 on the ground that the alternative subject which the petitioner claims to be teaching in the School namely, Book Keeping is taught as an additional subject and was introduced only in the year 2011.
The additional subject has been further redefined as optional elective subject by the West Bengal Board of Secondary Education.
Therefore, in respect of the optional elective subject of Book Keeping, no permanent post stood sanctioned in the School.
Sixth, the DI (SE) came to the conclusion that the provisions of the GO No.1691 dated 20th September, 2001 also do not apply to the appointment of the petitioner.
According to the said GO dated 20th September, 2001, the MC of the School should take permission from the DI (SE) before appointing ATs and, among similarly circumstanced ATs, the seniormost must be considered for approval.
Since, the initial appointment of the petitioner did not follow a legally ratified procedure, such appointment cannot be recognized for approval in the eyes of law.
Seventh, the DI (SE) relied upon the comments of the TIC of the School to the effect that the School is facing an acute shortage of funds and, having regard to the present roll strength of the School, there is no scope for approving the appointment of the petitioner.
Sr.Anjan Bhattacharya, Ld.
Counsel for the petitioner argues that the DI (SE) failed to consider an important point to the effect that the MC of the School adopted a resolution on 5th February, 2002 by which the proposal to appoint the petitioner as AT was accepted.
Sr.Bhattacharya points out that pursuant to the order of an Hon’ble Single Bench on 20th September, 2007 in WP890of 2007, the DI (SE) directed the petitioner as well as the School Authority to forward the relevant papers for taking a decision qua the approval of the writ petitioner.
Although, on 8th of February, 2008 the DI (SE) took a hearing of both the petitioner and the School, no papers were submitted by the School surrounding the appointment of the petitioner.
Sr.Bhattacharya argues that thereafter, after a delay of 4 yeaRs.on 8th of August, 2012 the School placed the relevant papers before the DI (SE).Subsequently by further order dated 2nd August, 2013 in WP22175W) of 2012, this Hon’ble Court was pleased to direct the DI (SE) to approve the appointment of the petitioner having regard to the law prevailing at the material point of time.
The DI (SE) was further directed to communicate reasons to the petitioner in the event he comes to the conclusion that the petitioner is not entitled to approval.
Pursuant to the direction of the Hon’ble Court dated 2nd August, 2013 (supra).the DI (SE) has issued the impugned order dated 8th November, 2013.
Sr.Bhattacharya, in support of the claim of the petitioner relies upon another order of the DI (SE) dated 2nd August, 2012 by which the prayer for approval of a similarly circumstanced teaching staff namely, one Sunil Kumar Rai was granted.
Sr.Bhattacharya questions the conclusion of the DI (SE) to the effect that the petitioner never claimed to be appointed to the Work Education Group by the School.
Sr.Bhattacharya asserts the fact that Book Keeping is taught as an elective optional subject in the School and, the said subject has been taught in the School since 1992-93.
Even the petitioner appeared in the West Bengal Board of Secondary Education examination in 1994 with Book Keeping as an additional subject.
With reference to the argument that one Pradip Kumar Tiwari is the seniormost teacher having B.Co.qualification, Sr.Bhattacharya refers to the several documents of the School contemporaneous to the appointment of the writ petitioner in 2001 from which it is demonstrated that the petitioner discharged duties as the seniormost teacher in the Commerce stream and, his name figured in the School diary.
In support of his above noted submission, Sr.Bhattacharya relies upon an unreported decision of this Court in WP254of 2016 dated 28th May, 2016 In Re: Sunita Singh versus State of West Bengal & Ors.Relying on the above noted decision Sr.Bhattacharya submits that this Court was pleased to, inter alia, hold that the DI (SE) failed to consider the impact of the GO dated 20th September, 2001.
Accordingly, the approval of the petitioner in WP254of 2016 was directed to be considered in the light of the observations of this Court in its order dated 20th May, 2016.
Appearing for the State-respondents, Sr.Joyotosh Majumdar, Ld.
Assistant Additional Advocate General submits that both under GO No.1691 dated 20th September, 2001 and GO No.1267 dated 26th November, 1998, the School is mandated to obtain the permission of the DI (SE) before filling up a short term vacancy.
Sr.Majumdar argues that in the facts of the present case the procedure of legally appointing the petitioner was not followed.
Sr.Majumdar reiterates the point that if the initial appointment is a nullity, no approval can be subsequently granted.
Relying on the decision of the Hon’ble Apex Court reported in 2011 (3) SCC436In Re: State of Orissa & Anr, versus Mamata Mohanty, Sr.Majumdar argues that there can be no recruitment without an advertisement in aid of such recruitment.
Further relying upon the GO No.1267 dated 26th November, 1998 Sr.Majumdar submits that there is no material on record to demonstrate that the MC of the School followed the guidelines of the said GO No.1267 prior to filling up the short term vacancies in the School, inclusive of the writ petitioner.
Asserting that the initial appointment of the petitioner is backdoor, Sr.Majumdar submits that the conditions specified in the GO No.1691 have not been satisfied in the facts of the present case.
However, according to Sr.Majumdar, since the School is a DA getting School, the Memo No.1267 shall apply.
Sr.Majumdar also relies upon the settled judicial position that there can be no appointment de hors the rules.
Appearing for the respondents/School Authority, Sr.Partha Sarathi Deb Barman, Ld.
Counsel argues that there is no perversity in the order impugned dated 8th November, 2013.
The principles of natural justice have been fully complied with by the DI (SE) prior to refusing the claim of the petitioner to approval.
Sr.Deb Barman asserts that the petitioner can only claim approval if there exists a sanctioned strength.
The vacant posts of teaching and non-teaching staff can only be filled up from out of such sanctioned strength.
Sr.Deb Barman points out that there is no vacancy for appointing a B.Co.qualified teacher to the School in issue.
Since, the initial appointment of the petitioner was bad, no subsequent relief by way of approval can be granted in his favour.
Having heard the parties and considering the materials placed, this Court is required to notice the following:A) That the petitioner claims to be appointed as a temporary teacher in a permanent vacancy left behind by one Sr.Chinta Haran Saha.
B) That by a resolution of the MC of the School in issue dated 5th January, 2002, the petitioner was recommended for permanent appointment to the post of AT in respect of the vacancy caused by the retirement of the teachers noted against each of their respective names.
Admittedly, the petitioner was appointed to the permanent vacancy left behind by the said Chinta Haran Saha.
C) That the fiRs.judicial direction in WP890of 2007 empowered the petitioner to knock on the doors of the DI (SE) vide the order of the Hon’ble Single Bench dated 20th September, 2007.
Pursuant to such order dated 20th September, 2007, the DI (SE) took steps to carry out such order.
However, the School Authority failed to furnish complete documents at the material point of time, viz.
2007 to the DI (SE).thereby compelling the DI (SE) to call upon the School to place its relevant papers for arriving at a decision as directed by this Hon’ble Court.
D) Admittedly, the School Authority placed the papers in August, 2012, i.e.nearly after 4 years of the fiRs.direction issued by this Court on 20th September, 2007.
This Court notices that the documents furnished by the School have been attested by the School Authority in 2012.
Therefore, since the documents were submitted by the School in 2012 and attested by the then TIC, on the face of the record this Court is of the view that it would be wrong to summarily dismiss, without examining the claim of the petitioner, that he was appointed against the permanent vacancy left behind by the said Chinta Haran Saha in 2001 and thereafter considered for approval in 2002 following a resolution of the MC.
E) This Court must further notice that the petitioner has consistently claimed to be a teacher in Book Keeping.
This Court cannot lose sight of the documents attached to the writ petition showing Book Keeping as an elective optional subject in the School right from 1994.
Even in his notes of submissions to the DI (SE) in WP22175(W) of 2012 pursuant to the solemn order of the Hon’ble Single Bench dated 2nd August, 2013, the petitioner has claimed to be a teacher in the Book Keeping subject which was described as an additional subject.
Therefore, this Court also finds it worth examining the findings of the DI (SE) vide his order impugned dated 8th November, 2013 that the petitioner described himself as a Work Education Teacher.
F) This Court must also notice the GO dated 20th September, 2001 which, inter alia, provides as follows:“In terms (d) of section 15 of School Service Commission Act, 1997 it has been stipulated selection of Teachers for the School, in receipt of D.A.from the Govt.
will not be made by School service commission.
Consequently, the Director of School Education in terms of his Memo No.1736 (21) – GA dated 01.10.99 had issued a guidelines for selection of teachers against Govt.
sanctioned posts in D.A.getting schools.
Authorities of some D.A.getting schools have approached the Govt.
in the Education Department to fill up the vacant posts against sanctioned strength of such D.A.getting schools by placing the teachers working beyond the Govt.
sanctioned strength since for nonconsideration of their candidature at the time of filling teachers are being deprived.
Govt.
in the education Department has since considered the matter at length and decides to permit the authorities of such D.A.getting schools to fill up the vacant post within the sanctioned strength by placing properly qualified teachers already working in the school for the secondary/higher secondary section but not in receipt of D.A.from the Govt.
on fulfilment of the following conditions:(1) Such teachers working beyond the sanctioned strength should be placed wherever any vacancy arises within the sanctioned strength in strict adherence to the norms of the staff pattern in case of Normal Section (V to Z).In case of H.S.section only those teachers who possess Hons./Master Degree in the subject in which the vacancy arises should be considered.
(2) Before placement it is to be confirmed that the teachers to be placed within the sanctioned strength had minimum qualification and was within the prescribed age limit at the time of initial appointment.
(3) The Managing Committee whenever a vacancy arises will approach in the concerned D.I.of schools for permission order, alongwith a copy of resolution resolving the placement of concerned teacher alongwith academic certificates of the incumbent.
If there is more than one teacher of the academic qualification preference should be given to the seniormost.” G) For the reasons discussed In Re: Sunita Singh versus State of West Bengal & ORS.(supra) this Court is of the view that the petitioner cannot be held to be accountable for any delay by the School in placing the necessary papers for consideration before the DI (SE) after a gap nearly 4 yeaRs.Again, for the reasons discussed In Re: Sunita Singh (supra).this Court is of the further view that the DI (SE) ought to have appreciated in proper perspective the application of GO dated 20th September, 2001 to the facts of the present case.
H) This Court must also notice that the DI (SE) founded his order impugned dated 18th November, 2013 on the point of the initial appointment of the petitioner being suspect.
However, this Court finds that the DI (SE) ought to have taken notice of the fact that the petitioner claimed appointment against the permanent vacancy left behind by the retirement of one Chinta Haran Saha and, from the records of the School appears to be teaching the elective subject of Book Keeping.
This Court is also of the view that the DI (SE) ought to have taken notice of the sanctioned strength of the School in issue in the light of the Memo dated 20th September, 2001 prior to refusing approval to the petitioner.
With reference to the above noted discussion useful reference may be made to the observations of In Re: West Glamorgan County Council versus Rafferty & ORS.reported in 1987 (1) AER1005 The relevant note reads as follows:“The court was not precluded from holding that a public authority’s decision was void for unreasonableness merely because there were factors on both sides of the question.
If the weight of factors against a decision ought to be recognised by a reasonable council, properly aware of its duties and poweRs.as being overwhelming then that decision could not be upheld if challenged.
Although the court would exercise restraint before interfering with a decision of an elected authority made according to its lawful procedure, the court would require a council, as a reasonable authority, to recognise any breach of legal duty for what it was and to give due weight to that breach and the consequences thereof in arriving at a decision affected by the breach.” Useful reference also may be made in this regard to In Re: Tata Cellular versus Union of India reported in 1994 (6) SCC651 The relevant passage reads as follows:“Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness.
Such an unfairness is set right by judicial review.” In the backdrop of the above discussion this Court is of the considered view that with the passage of years and change in the management of the School, not only the School delayed in presenting its records before the DI (SE).but, the true nature of the records qua the petitioner were never correctly represented before the DI (SE).thereby preventing the DI (SE) from coming to a just conclusion in the matter.
Therefore, this Court, notwithstanding the long struggle of the petitioner to claim his reliefs through bona fide litigation, in order to do complete justice directs the DI (SE).Kolkata to conduct detailed field enquiries for extracting the necessary facts.
For carrying out the above directed field enquiries the DI (SE) shall nominate a competent official of his choice, who shall be entitled to visit the School and, besides consulting the records, be also entitled to speak with the staff and students as well as any other person considered necessary.
Both the School management and the petitioner shall offer all cooperation in the enquiry.
The DI (SE).on the basis of the enquiry report submitted to him and, as and when necessary, by calling for additional facts relevant to clarify the existing facts, shall, also after giving an opportunity of hearing to the School and the petitioner, independently but, keeping in view the observations of this Court as recorded above, arrive at a just conclusion which shall then be communicated to the parties.
The above noted exercise shall be completed within a period of 3 months from the date of communication of this order.
In view of the above directed exercise the order impugned of the DI (SE) dated 8th November, 2013 shall remain permanently stayed.
WP1267of 2013 stands accordingly disposed of.
There will be, however, no order as to costs.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)