Judgment:
G.C. De. J.
1. In this writ petition, the petitioners have challenged the legality of the order dated 29.4.98 passed by the Executive Committee of the West Bengal Board of Secondary Education in compliance with an order dated 20.8.97 of this Court in W.P. 13457(W)/97. The order of the Executive Committee was communicated by the Secretary of the Board on the basis of a Registered letter dated 22.7.98. In fact this is the Third Writ Petition.
2. The case has a chequered history. The petitioner No. 1 is the Managing Committee of Darwa Gandhi Smriti Junior High School (hereinafter referred to as 'the school' for brevity) situated in Ward No. 13 of Cental Municipality, Midnapore. The School was established on 10.1.72 with class Vand VI and -subsequently from 2.1.75 class VII and VIII were a also started. The school has its own building on 39.5 decimals ofland, supporting materials as well teaching and non-teaching staff, sufficient students and a moderate fund. It applied to the Secretary, West Bengal Board of Secondary Education seeking its recognition as a 4-class junior High School in 1974 with prescribed fees. The name of the school was enlisted denoting 'C'-category in the list of schools prepared by the Board for the purpose of inspection by the District Level Inspection Team. The District Level Inspection Team duly inspected the school on 27.11.91 and filed a report to the Executive Committee of the Board which turned down the prayer for recognition.
3. First writ petition was moved praying for recognition of the school and by an order dated 29.7.93 in C.O. 9274fWl/93 the District Inspector of School was directed to submit a report to this Court by 24.9.93. After thesubmission of this report the writ petition was finally disposed of by on order dated 22.4.94 directing the Board to grant recognition of the school.
4. Since the order dated 22.4.94 was not complied with a contempt application was moved and in the said C.O. No. 9274(W)/93 an order was passed on 4.4.95 directing the Secretary (Education Department) of the State Government to take a decision on the basis of the re-commendation by the District Level Inspection Team as well as the report of the Director of School Education along with other materials within two months. The State Government recommended and forwarded the papers to the Board for taking final decision on the basis of a letter dated 31.8.95. The Board in its turn rejected the prayer on the grounds that only 73 out of 162 students were present on the date of inspection on 27.11.91. that a Junior High School was not viable with such a small number of students, that other schools were there at a distance of 3 to 5 Km. and that the teaching and non-teaching staff were appointed without observing the existing Rules and Norms for recruitment. The matter was placed before this Court once again and by an order dated 3.4.96 a fresh direction was issued for due consideration of alt the reports afresh by the State Government and also by Board. The State Government by a letter dated 19.6.96 directed the Board to reconsider the matter afresh on the basis of the second Inspection Report and not to reject the question of grant of recognition on the ground that they have already rejected it earlier on the basis of the first inspection report. The Board again passed an order and it was placed before the Court when by an order dated 16.1.97 the Application for contempt of Court was disposed of giving liberty to the petitioner to challenge the said order of the Board in a separate writ petition as it gave rise to a fresh cause of action.
5. A second writ petition was filed and after hearing both sides the writ petition being W.P. 13457(W) of 1997 was disposed of by an order dated 20.8.97 by which the Board was again directed to consider the representation of the petitioner on the basis of the views, recommendations of the District Inspector of School concerned and the report of the Secretary. Department of Education, State of West Bengal dated 13.6.96 and after giving opportunity to the petitioner of being heard and also keeping in mind the decision of the Apex Court in the case of Unnikrtshnan v. State of A.P. reported in : [1993]1SCR594 . Liberty was also given to the petitioner to file a representation and to adduce evidence in support of their contentions. Four months' time was granted to the Board for the purpose and for giving a speaking order.
6. The Secretary of the Board by his letter dated 22nd July. 1998 conveyed the decision of the Executive Committee dated 29.4.98 to the Secretary of the School. In the said letter, the finding of the Executive Committee is reproduced. It is to be seen from the findings of the Executive Committee that the prayer for recognition was turned down mainly on the ground that organisation Committee of the petitioners' school did not gave preference to the aspirants/applicants having bright/good academic records for the purpose of recruitment of teachers. Of course, the previous findings of the District Level Committee as regards standard of the class room, paucity of students and presence of other schools in the vicinity were also taken Into consideration but no further conclusion was given, excepting afinding that provision for eduication of children of the locality have been made by recognising other schools.
7. In this present writ petition, the said letter dated 22nd July, 98 (annexure-J to the writ petition) has been challenged and prayer has been made for issuing a mandate of giving recognition to the school aa prayed for. The respondents filed Affidavit-in-Opposition and the petitioners filed a reply.
8. In course of hearing, the learned counsel for the petitioner first of all challenged the circular letter No. 553-Edn. (S) dated 26.4.78 Issued by the Secondary Branch of the Education Department of the Government of West Bengal in which the norms as regards recognition of the Secondary Schools In West Bengal were outlined. Tt is argued that the said Circular letter was struck down by the Division Bench of this Court in the case of State of West Bengal & Ors. v. Abdul Quddus & Ors. reported in AIR 2000. Calcutta 73 mainly on the ground that the said Circular letter does not satisfy the requirement of Article 162 of the Constitution of India, and II was also observed in the said judgment that the Circular letter was not authenticated in terms of clause (3) of Article 162 of the Constitution of India. So. it was argued that the findings of the Executive Committee dated 29.4.98 are liable to be set aside on this score alone. The teamed counsel for the respondents however, did not make any comment on the above ciled decision, but it was argued that the Board after taking into consideration all the aspects rejected the prayer for recognition.
9. No. material has been produced to show that the said circular letter dated 26.4.78 was issued by the State in exercise of its power conferred upon ft under Article 162 or it was authenticated under Article 166(3) of the Constitution o!' India. So. placing reliance on the above cited decision of the Division Bench of this Court il can be said that the Board should not follow the said circular in the matter of recognition of a school unless it satisfies the constitutional requirements.
10. The question then came for consideration as to what course of action should be taken in such cases by the Board. The learned counsel for the petitioners handed over a copy of an unreported decision of a Division Bench of this Court presided over by the Chief Justice Ashok Kumar Mathur in M.A.T. 322/2000, in connection with non-availability of norms in the matter of up gradation of schools, in which the view was taken as follows:
'..... However before parting with the matter we make it clear that since the State Government has not laid down any policy for up gradation of the school; the State Government should lay down categorical policy for up gradation of the school that what should be the required norms for up gradation, so that this kind of uncertainty may not be there in deciding the matters.'
11. In view of the legal position and the circumstances herein above explained It is felt that before framing of norms by the State Government under Article 162 of the Constitution of India, ihe Board should not keep the question of recognition of the schools pending and a fair system is required to be followed in this regard. In the above cited decision of State of W.B. and Abdul Quddus it is pointed out that in the circular letter dated26.4.78 merely establishment of school has been discouraged, but It does not provide for any consequence in relation to any school which might have been started without obtaining any permission from the Government or the Board. The petitioner school however was established long before the said circular letter and In similar situation the Board had granted recognition to other schools. There is nothing in the impugned order of the Board that the petitioner school does not fulfil the required criteria. The order itself indicates that the Board did not take into consideration the recommendation of the State Government and the report of the District Level Inspection Team or the report of the District Inspector of the School. It is also not specifically clarified as to how the School did not follow the norms of recruitment of the teachers in the year 1972 and what would be the fate of the teachers worked since that period, specially when their cases were recommended by the State Government and the Board has no financial liability in this regard. Even the order does not disclose that the Board gave any opportunity to the petitioners to file fresh representation or to adduce further evidence. It further appears that the Board did not pass a speaking order taking into consideration all the points indicated in the order dated 20.8.97 in W.P No. 13457(W)/97. The Board is a State within the meaning of Article 12 of the Constitution of India and as such, it must act justly and fairly, and not arbitrarily as was done in this case. The impugned order is accordingly set aside and a fresh direction is issued.
12. So in disposing of this writ petition the writ petitioner is given liberty to submit a fresh representation to the Board within four weeks from the date of communication of this order. The Board is directed to dispose of the said representation afresh, by passing a reasoned order within four months from the date of filing of such fresh representation after giving an opportunity to the petitioner to be heard and in the light of the observations herein above made.
There will be no order as to costs.
Learned counsel for the parties are given liberty to take down gist of this order for communication and compliance.
xerox certified copy of this order if applied for urgently, will be supplied expeditiously on usual terms.
13. Petition disposed of