P.K. Ray, J.
1. In this writ application, originally the petitioner prayed necessary relief restraining the respondents District Inspector of Schools (SE) Siliguri from cancelling the Memo No. 550/SLG dated 22nd January, 1993 whereby present petitioner's service was approved as Assistant Teacher in Science Group with effect from 1st January, 1993, by the District Inspector of School (SE) Siliguri being Annexure 'G' of this writ application and prayed for necessary direction from this Court for release of salary, allowances and service benefits upon approving service with effect from 2nd April, 1984 as organized staff of the School. The writ petitioner prayed the following reliefs in this writ application:
(a) a writ mandamus should not be issued commanding or directing the respondents not to withdraw or cancel or revoke the letter of approval of appointment of the petitioner in the post of Assistant Teacher in Science-Math. Group in Debigunj Vivekananda Junior High School, Police Station - Kharibari, District Darjeeling by the District Inspector of Schools (SE), Darjeeling vide his office memo No 550-SLG dated 22.1.93, referred to in annexure 'G' to this petition and to immediately make payment of the salary to the Petitioners with effect from 25.1.1993 and thereafter to go on paying the salary regularly and by month to the petitioner;
(b) a further writ of mandamus should be issued directing the Respondents to approve the Petitioner's service in the post of Assistant Teacher in Debigunj Vivekananda Junior High School, Police Station Kharibari. District - Darjeeling with effect from 2.4.1984, since when the petitioner has been working as an organizing Assistant Teacher in the said School, and to pay all arrear salaries to the petitioner with effect from 2.4.1984;
(c) a writ of certiorari should not be issued commanding the Respondents herein to certify and produce the original records, documents and files relating to the Petitioner's service in the post of Organizing Assistant Teacher and/or Assistant Teacher in Debigunj Vivekananda Junior High School, Police Station Kharibari, District - Darjeeling and/or relating to the annexures made to this petition before this Hon'ble Court so that conscionable justice may be done by quashing the same;
(d) to pass an ad-Interim order of Injunction restraining the Respondents and their sub-ordinate Officers, Employees, Agents and Representatives from cancelling, revoking and withdrawing the Memo No. 550-SLG., dated 22.1.1993 issued by the district Inspector of Schools (SE), Darjeeling, referred to in annexure 'G' to thispetition and from disturbing the Petitioner's service in the post of assistant Teacher in Science-Math. Group in Debigunj Vivekananda Junior High School, Post Office Galgalia, Police Station - Kharibari, District - Darjeeling in any manner and of whatsoever nature till disposal of the Rule;
(e) to pass further interim Order directing of commanding the Respondents and their Subordinate Officers, Employees, Agents to immediately make payment of salaries to the petitioner with effect from 25.1.1993 and to go on paying to the petitioner monthly salaries regularly and month by month till disposal of the Rule;
(f) to issue such other or further writ or write, Direction or Directions as to Your Lordships may Seem fit and proper.
2. D.K. Basu, J. by the interim order wanted a report from the District Inspector of Schools (SE) Siliguri hereinafter refer to as concerned District Inspector of Schools to as why the salary was not released from the date of joining of the petitioner that is from 25th January. 1993. Further interim order was passed restraining the respondents from disturbing and/or interfering with the service condition of the writ petitioner and from withdrawing, revising and/or modifying the approval order dated 22nd January. 1993 being annexure 'G' of the writ application. The District Inspector of Schools concerned further was directed to release all arrear, salary and current salary month by month. Since payments were not released as per direction of this Court, contempt application was filed as affirmed on 24th November, 1993. By the order dated 7th June, 1996 concerned District Inspector of Schools was directed to submit the report. Managing Committee of the school submitted an application for vacating the said interim order of this Court and by the order dated 25th June, 1998 matter was directed to be heard along with main hearing of writ petition considering the same as Affidavit-in-Opposition. By the order dated 28th June, 199.6 D.K. Basil, J. issued contempt rule for violation of the interim order of the Court regarding payment of salary against the concerned Officers. D.K. Basu, J. directed the Director of School Education, West Bengal to appears since positive ground was taken by the District Inspector of Schools concerned that due to non-approval of service by the said authority, payments were not made. However, from the order sheet it is found that this contempt application was not finally disposed of, but it is admitted by the petitioner that he got his salary and also was deputed for undergoing the B.Ed. course. The respective parties have filed Affidavit-in opposition and reply thereto.
3. The matter came up for hearing before me when it was found that on issue of regularization of service as organized staff in terms of the prayer of the writ petitioner and as per the earlier direction of Susanta Chatterjee, J. dated 12th December, 1989 passed in writ application C.O. 15704(W) of 1989, a decision was passed and communicated by Memo No. 669/1(6) SE-93 dated Calcutta 31st March, 1993 by the Director of School Education. West Bengal whereby such prayer of the writ petitioner was rejected, only on ground that writ petitioner joined the school in question after the school was inspected by District Level Inspection Team and petitioner was not at all an organized staff to get the benefit as prayed for.
4. Since the petitioner did not challenge the said decision of D.S.E., West Bengal though it is annexed as annexure 'E' in the writ application at page 26, the approval order dated 2nd January, 1993 by the concerned District Inspector of Schools as relied upon as a basis for payments of salary and cause of action praying relief restraining the respondents from causing any disturbance in his service, has no basis legally. In that view of the matter leave was granted to the writ petitioner by the order dated 10.01.2001 to amend writ application and such amendment application was allowed by the order dated 23rd March, 2001. In view of such amendment now the only question to be decided by this Court as to whether the annexure 'E' of the writ application, a decision of the Director of School Education. West Bengal is valid and legal and petitioner would be entitled to get any benefit as organizing staff of the School.
5. In view of the amendment of the writ petition, the following prayers to be decided:
'(bb) A writ in the nature of Mandamus directing the respondents to show cause as to why the impugned order which is annexure 'E' to the writ petition shall not be annexed and set aside.
(bbb) A writ in the natures of Mandamus, commanding the respondent forthwith to withdraw the impugned order which is annexure 'E' to the writ Petition and to approve the appointment of the Petitioner as an Art Teacher of Debiganj Vivekananda Junior High School.
(ee) The impugned order which is annexure 'E' to the writ Petition be quashed and or set aside.
(eee) Make the Rule absolute.'
6. As per direction of this Court, records of this case relating to the decision as reached by the Director of School Education, West Bengal as well as the recognition of the School with effect from 1.1.86, have been placed and the writ petitioner after taking inspection had submitted written notes. From the respective argument of the parties it appears that when the respondents from the records submitted that School was inspected by District Level Inspection Team on 20th January. 1984 and thereafter present petitioner was appointed by the Managing Committee with effect from 2nd April, 1984, the writ petitioner has urged that there was no inspection report dated 20th January, 1984 and school was inspected in the year 1986 and got its recognition after joining of the petitioner. To ascertain the point, which is very vital for granting relief to the petitioner, this Court has considered the records as placed. The relevant records, which has been relied by the writ petitioner himself by annexing in the writ application required to be discussed first before adjudication of the matter.
7. In the writ application, petitioner himself has annexed a document appearing at page 19 being a letter of District Inspector of Schools (SE) Darjeeling under Memo No. 24/Siliguri dated 15th July, 1988 being annexure 'C' of the writ application. Such annexure has been stated in paragraph 10of the original writ application affirmed by the petitioner himself as true to his knowledge. In the paragraph 10. the writ petitioner submitted asfollows:-
'That the said School was inspected on several occasions by the District Inspector of Schools (S.E.), Darjeeling and Assistant Inspector of Schools (S.E.), Darjeeling and they submitted their respective Inspection Reports. The District Inspector of Schools (S.E.), Darjeeling by his Office Memo No. 24/SLG dated 15,7.1988 submitted an Inspection Report to the Director of School Education, West Bengal and a xerox Copy of the same is annexed hereto and marked with letter 'C'. In the said inspection report it was reported that the petitioner was working as Assistant Teacher of the said School with effect from 2.4.1984.
8, Hence, it is clear that petitioner has strongly relied upon this document being letter dated 15th July; 1988 of District Inspector of Schools (SE) Darjeeling as was signed on 2nd July, 1988. The entire letter being relevant is quoted in extenso:
GOVERNMENT OF WEST BENGAL
OFFICE OF THE DISTRICT INSPECTOR OF SCHOOLS
SECONDARY EDUCATION
DARJEEL1NG
Memo No. 24/SLG Date 15.7.88 From : The District Inspector of Schools (S.E.) Darjeeling.
To : The Director of School Education. West Bengal.
Sub : Approval of appointment of staff of newly recognized Jr. High School (Debiganj Vevekananda Jr. High School Po. Galgalia, Dt. Darjeeling, claiming to be an organiser)
Ref : D.S.E. West Bengal Memo No. 594-SC/G Dt. 18.4.88
Sir,
In response to your memo under reference, I beg to furnish thefollowing for your kind information and taking necessary action foryour end.
(1) It is evident from original postal receipts No. 43 date 3.12.74 and No 123 dated 16.3.74 that the school authority applied for inspection to the District Inspector of Schools (SE) Darjeeling and the Board of Secondary Education, West Bengal respectively. The photostat copy of the receipts are enclosed.
(2) Regarding the deposit of Rs. 25/- as a requisite fee to the West Bengal Board of Secondary Education or before 1975 and after 1973 it is learnt that no such fee was deposited for the purpose. It was not a case of up gradation. It was a case of first recognition from Class V.
(3) The copy of the report of the District Level Inspection Team showing the staff present on the date of final inspection leading to recognition of the school is not traceable in the office ofthe undersigned for which the attested copy of the same can not be furnished. However, a copy of the application seeking inspection as well as recognition was submitted to .the office of the District Inspector of Schools (SE) Darjeeling on 5.3.88 showing the particulars of the Managing Committee, the teaching and non-teaching staff enrolment of the School and financial position of the schools available in the office copy of which is enclosed.
It appears from the above noted record and other records available in the school that the following teaching and non-teaching staff were at work at the time of inspection.
(1) Sri Shyamal Kanti Bhattacharjee H.M. B.Sc. B.A. M.A.
(ii) Miss Swapna Chakroborty A.T. B.A.
(iii) Sri Pradip Kr. Sinha Roy A.T. B.A.
(iv) Sri Sushil Kr. Chose Clerk H.S.
(v) Sri Bhupendra Nath Roy Peon Class- VIII.
But at present out of the above noted teaching and non-teaching staff all are working excepting Miss Swapna Chakroborty stated in Sl. No. 2.
Subsequently however organizing committee appointed the following teachers from the dates noted against each of them after inspection made by the District Level Inspection Team.
(i) Smt. Anjali Biswas B.A. 26.3.84
(ii) Sri Salya Ranjan Biswas B.Sc. 28.3.84
(iii) Sri Budhadev Biswas B.Sc. (Bio) 2.4.84.
The copy of the Board's memo regarding recognition of the school is enclosed as required. Copy of appointment letters of all the teaching and non teaching staff of the school with the resolution of the organizing Managing Committee are also enclosed.
4) Approval forms of all the teaching and non-teaching staff with the resolution of the Managing Committee are also enclosed.
District Inspector of Schools (SE)
Darjeeling.
9. Hence, from the letter, which has been affirmed as true to the knowledge of the petitioner, it appears that petitioner was appointed by the Organizing Committee after the inspection was made by the District Level Inspection Team. From the record as filed by the respondents and as was duly inspected by the writ petitioner, a document being a letter of Additional District Inspector of Schools (SE) Siliguri, Darjeeling as issued under Memo No. 44 dated 30th March, 1988 as addressed to the Director of School Education. West Bengal is very relevant which is quoted in extenso:
GOVERNMENT OF WEST BENGAL
OFFICE OF THE ADDLL. DIST. INSPECTOR OF SCHOOL
S.E. SILIGURI
Memo No. 44 Date: 30.3.1988 From : The A.D.I, of School (SE) Siliguri.
To : The D.S.E.W.B.6 Bhabanl Dutta Lane Calcutta 73
Sub : Approval of appointment of Organizer Teaching and non-teaching staff of Deviganj Vevekananda junior High School P.O. : Galgalia, Dist. Darjeeling.
Ref : His Memo No. 1419(17) SC/G Dated 8.9.87
A. With reference to the above subject and quoted above the undersigned begs to forward herewith an application of the Secretary. Debiganj Vevekananda Junior High School for favour of his consideration and taking necessary action.
The Secretary of the School in his petition claims that the School was started functioning with effect from 1.1.69 and prayed that the teaching and non-teaching staff which are in position before the recognition of the School from 1.1.86 be accepted as organize teacher of the school and their appointment should be approved by the office as admissible under rules.
As to the claim that the school was started functioning long before 1975 they have submitted the following documents in support of their claim.
(1) An xerox copy of the application submitted to the honourable Minister-in-Charge of Education on 2.12.74,
(2) A copy of the same petition was submitted to the District Inspector of School (SE) Darjeeling by registered Post. A xerox copy of the carbon receipt No. 43 dated 3.12.74.
(3) They also submitted as application to the West Bengal Board of Secondary Education praying for recognition of the school by registered post. A xerox of the carbon receipt bearing No. 123 dated 16.6.74 is enclosed herewith for ready reference.
(4) Xerox copy of same pages of teacher attendance register which shows that the School was started belong before 1975.
(5) Xerox copies of students attendance register showing the collection fees from the student of different years, which seems to be concrete evidence that school was started during 1969.
(6) Copies of question papers of different years of different classes which are also be accepted evidence that the School was stated in 1969.
(7) Xerox copy of different pages of notice book showing some notices issued in different years.
(8) Some counter foils of fee collection book.
(9) A certificate from the Sabhadhipati Darjeeling Zilla Parisad certifying that School was started in 1969.
(10) A certificate issued by the local M.L.A. shows that the School was started in 1969.
(11) The Sabhadhipati of the Panchayet Samiti and the Pradhan of the Grampanehayet also certified that the School was started in 1969.
The undersigned verified all the above stated documents in original when we visited the School on 15.2.88.
On the basis of the above documents the claim of the Secretary of the School Managing Committee may be accepted that School was started functioning from 1969.
B. The School has not deposited fees of Rs. 25/- to the West Bengal Board of Secondary Education within 1975.
C. The School was Inspected by the District Level Inspecting Team on 20.1.84. The following teaching and non-teaching staff were presenton the date of inspection.
S/No.NamesQualificationDate of joining
in the School
1.Shyamal Kanti BhattacharyaM.A.2.1.19742.Pradip Kr. Singha RoyB.A.22.1.19813.Smt. Swapna Chakroborty
CLERKB.A.2.1.19811.Sushil Kr. GhoshH.S.22.1.1981GROUP 'D'1.Bhupendra Nath RoyClass-VIII22.1.1981
As per teacher attendance register it is found that the following teachers were appointed ,by the Managing Committee after the inspection by the District Level Inspecting Team but before the date of recognition of the School. They also may be accepted as teacher in position as they are working before the date of recognition of this school i.e. from 1.1.86.
'D'S/No. Name Qualificationdate of joining
in the schools1.Smt. Anjali BiswasB.A.26.3.842.Sri Satya Ranjan BiswasB.Sc. (Pur)28.3.843.Sri Buddha Dev BiswasB.Sc. (Bio)2.1.81
The undersigned visited the school on 15.2.88 and on the date of inspection the following teaching and non-teaching staff of the School was present.
Teaching Name with Qualificationdate
of joining1.Sri Shyamal Kanti Bhattacharjee M.A.2.1.742.Sri Pradip Kumar Singha Roy B.A.22.1.813.Smt. Anjali Biswas B.A.26.3.844.Sri Satya Ranjan Biswas B.Sc. (Pure)28.3.845.Sri Buddhadeb Biswas
Non-Teaching : (Clerk) B.Sc. (Bio)2.1.841.Sri Sushil Kr. Ghosh H.S.22.1.81Group 'D'1.Bhupendra Nath Roy Class-VIII22.1.81
On the basis of the available record the undersigned is satisfied that the school was started functioning in 1969.
Hence, the teaching and non-teaching staff those who are in service before the date of recognition may be accepted organizer staff of the School.
The undersigned also enclose a statement showing the names of the teaching and non-teaching staffs worked in the School since 1969 is also submitted herewith.
Sd/-
xxxxx
Addl. District Inspector ofSchool (Sec. Edn.) Siliguri
Darjeeling.
10. From these letters, it is clear which also has not been challenged by the writ petitioner even after inspection, that the School was set up as organizing school long back in the year 1969, that the school was inspected on 20th January, 1984 and that at the time of inspection there were only three teaching staff namely Shymal Kanti Bhattacharya who joined in the school on 2nd January, 1984, Pradip Sinha Roy, joined on 22nd January, 1981 and Smt. Swapna Chakroborty, joined on 2nd January, 1981. From the report, it further appears that subsequent to the inspection that is 20th January, 1984. Managing Committee appointed three more teachers including the present writ petitioner. It further appears from this letter that the recommendation was made for approval of the service of the petitioner irrespective of the fact that he was appointed after inspection of the school by District Level Inspection Team.
11. It appears from the records that by registered deed of gift executed and registered on 5th November. 1979 in the Office of Sub-Registrar, Siliguri, Sri Bhabanapda Sinha, resident of village Debigunj, Post Office--Kharibari, District--Darjeeling donated land measuring 0.22 acres of R.S. Plot No. 195. Khattan No. 125. J.L. No. 37 under Police Station Kharibari, Dist--Darjeeling in favour of Secretary of Vivekananda High School, Debigunj. Subsequently, further 1 acre land was donated by registered deed of gift executed and registered on 2.3.1984 by one Sri Nirapada Aich in favour of the School. It appears from the record further, that by a letter dated 15.4,1990 one Sisir Kr. Kundu. a member of District Level Inspection Team has informed the Secretary, West Bengal Board of Secondary Education that on the date of inspection on 20th January, ,1984 there were only three teaching staff namely Shymal Kanti Bhattacharya. Pradip Sinha Roy and Swapna Chakroborty. In this letter copy of the West Bengal FormNo.1315 in which the statement of staffs were recorded and as was submitted to the concerned District Inspector of Schools on 5th March, 1984, was annexed. From the said West Bengal Form No. 1315 it reveals that inspection was held on 20th January, 1984 and in the teaching staff column there is mentioning of the names of only three teachers namely Shymal Kanti Bhattacharya, who was working as Headmaster for last 12 years on the date of inspection, Mrs. Swapna Chakroborty working for the last 3 years and Pradip Sinha Roy working for the last 3 years. This document was received by the District Inspector of School concerned on 5th March, 1984, Along with this letter, history of the school was annexed giving the details of the names of the teachers who were working on the date of inspection. But in the said inspection report as annexed in the letter of the said member of the District Level Inspection Team nowhere any signature of any member of District Level Inspection Team was appearing. Even, there is no page in this inspection report namely the last page wherein after the remark column being the column for making necessary recommendation, signatures of all the members who inspected the school were required to be made. Hence, in absence of last page of said paper, the said document cannot be said as report of District Level Inspection Team.
12. Further from the report as produced by the West Bengal Board of Secondary Education, it appears that a cyclostyle paper containing two pages with signatures of three members of said District Level Inspection Team has been placed as final inspection report. In the first page of such report at the top, signature of Sahakari Sabhadhipati, Zila Parisad, Darjeeling is appearing but in this report, which is in a cyclostyle paper as cyclostyle on 17th February, 1986, there is ho such mentioning either of the date of inspection or the names of teaching and non-teaching staff who organized the school and who were present on the date of inspection. The said document accordingly is reproduced hereinbelow in extenso:
PROFORMA INSPECTION REPORT IN RESPECT
OF PROPOSED JR/HIGH/SCHOOL,
A. Particulars about the site of the proposed school.
1. Boys/Girl/Co-education : Co-Education2. Name of the Village/Street : Debiganj3. Post Office : Galgalia Behari Dt.DarJeellng4. Anhchal/Town : Binnagui5. Block/Municipality : Kharibari Phansidewa6. Telegraph Office : Galgalia7. Police Station : Kharibari8. Sub-Division : Siliguri9. District : Darjeeling10.Nearest Railway Station : Galgalia11.Urban/Rural : Rural12.Area of the Land : 1 acre13. Wether the land isregisteredin the Nameof the school : Yes14. Wether the land is purchasedor gifted :15. Settlement Book No, :16. Mouza No. : Debiganj17. Khaitan No, : J.L. No. 5718. Plot No. 583 : B. Particulars about the Sponsoring Consiting of nineCommittee : C. Whether the Sponsoring Committee yes.is willing to provide Adequateaccommodation for the proposedschool : D. Particulars about the Building,if any :
1. No. of Rooms/Office rooms& size (a sketch map is to beenclosed) : 6 Rooms with S.I. sheet roof2. Arrangement of sanitation &drinking; Water : Pucca Lahine Separate for Boys& Girls3. Particulars about furnitureand Teaching apparatus : Necessary furniture & teachingaids. E. No. of feeder Primary Schools 18 Primary & Jr. Basic School.from where students are expectedto attend the proposedschool : F.Distance from the nearest recognized Jr. High/High Schools nameand address:-North : Krishna Kanta Jr. HighSchoolEast : Kharibari High SchoolSouth : Behar StateWest : NepalG. Expected No. of Students 400H. Observation and suggestions ofthe members of the District LevelInspection Team: The localities inhabitatedby S/C & S/TCommunities-Strongly uncommanded.I. Recommendations (if notrecommended, please state thereasons Deserving recommendationfor recognition. Signature of the Member of
The District Level Inspection Team.
1. ....
2. .....
3. .....
4. .....
13. The letter dated 4th August, 1989 for Director of School Education, West Bengal as addressed to the Secretary, West Bengal Board of Secondary Education also reveals the fact that the said authority wanted attested true copy of report of District Level Inspection Team showing the details of staff present on the date of final inspection leading to the recognition of the school. From the record as submitted by the learned Advocate of the respondents that is the records of the West Bengal Board of Secondary Education, it appears that the office staff made a note on 1st August, 1990 on the issue as to whether the letter of Sri Susil Chandra Kundu, a member of District Level Inspection Team, Darjeeling being the letter dated 5.4.1990 certifying the presence of some teachers on the date of inspection. In absence of the names of teaching and non-teaching staff who were present on the dale of last inspection in the report of the District Level Inspection Team as placed to the Board would be considered as a valid document for the purpose of giving appointment to the staff concerned as organized staff. Such note sheet was place to Sri Banerjee, President, West Bengal Board of Secondary Education, who by his decision dated 6.8.90 as mentioned in the decision sheet opined that Board had nothing to do in respect of the organizing teachers as the same would be decided by Director of School Education, West Bengal. The relevant portion from decision sheet of the West Bengal Board of Secondary Education namely the correspondences which is relevant for adjudication the writ is quoted hereinbelow:
'Sri Sushil Chandra Kundu, Member, District Level Inspecting Team, Darjeeling under his letter dated 5.4.90 has sent Xerox copies of some papers relating to Debiganj Vivekananda Jr. High School 'Darjeeling a newly recognized Junior High School in two stages from 1.1.86 for the purpose of admitting the teaching and non-teaching of the said school as organizing teachers on the basis of his certificate to the effect that the three teaching and two non-teaching staff of the school mentioned in his letter were found present on the date of inspection i.e. on 20.1.84. He requested the Board to take appropriate step in the matter so that the D.S.E. W.B. may grant approval to the said staff of the school from 1.1.86.
It may be noted here that in compliance with the request of the D.S.E. W.B. a xerox copy of the Inspection Report drawn up by the D.L.I.T. has been sent to D.S.E., W.B. the said report does not disclose the position of the teaching and non-teaching staff of the school.
It is now a matter of consideration as to how the names of the teaching and non-teaching staff can be forwarded to the D.S.E., W.B. for treating their as the organizing staff simply on the basis of the statement of a member of the District Level Inspecting Team made in April, 1990. It appears that the D.I. of Schools (SE) by his Memo No, 44 dated 30.3.88 has exhaustively reported the position of the school including the teaching, and non-teaching staff for disposal of the matter. But that too has been relied upon.
Sri Kundu, certified that Debiganj Vivekananda Jr. High School, Darjeeling had applied to the Board for recognize before 1975. The Register of the Board does not disclose that fact of Sri Sushil Kundu.
In the circumstances stated prepage and above, it is difficult for the Board to take appropriate step at the nature of approval of the teaching and non-teaching staff of the School as organizing staff.
Submitted for orders.
Notes film page 1 may be seen,
President may please decide whether the Board can certify to D.S.E. on the basis of certificate by a member of District Level Inspection Team & ex-member of the Board.
(1) that the school applied for requisition before 1957 when the Register maintained by the Board does not corroborate the fact certified by Sri Kundu.
(2) Forward to D.S.E. again for admitting the teaching and non-teaching staff of the school on the basis of statement received by the District Inspecting Schools after the date of final inspection by the D.L. Inspection Team when the Board already sent a copy of the inspection report by D.L.I.T. which did not disclose any reference of teaching and non-teaching staff.
Sri Kundu has also enclosed a Xerox copy of an inspection report of the Additional District Inspector of School noted Siliguri's No. 44 dtd. 30.3.88 submitted to the D.S.E. in detail regarding the claim of Organizing teacher & staff and the Teacher in position.
It is not understood why Sri Kundu in not taking up the matter of organizing staff of the school with D.S.E. direct and requesting the Board to certify when the D.L.I.T. report does not include them.
Submitted for orders.
Sri Kundu may be told that Board has nothing to do in respect of Organizing teachers. He may take up the matter with the D.S.E through D.I. or with the D.S.E. direct. D.L.I.T. report, if any, may be sent to the D.S.E. if requested by him.'
14. Hence, it is clear from the records that there is no valid report of District Level Inspection Team as would be a proof of organizing staff as on the date of inspection. In the cyclostyle copy, which has been claimed as first inspection report wherein the signature of District Level Inspection Team are appearing, there is no mentioning of any teaching and non-teaching staff and other particulars and accordingly same cannot be relied as a document either in favour of the writ petitioner or against the writ petitioner. From the document, it further appears that as per direction dated 23rd February, 2001 by me directing the District Inspector of Schools concerned to produce the report of District Level Inspection Team, the said Officer by his letter dated 5th March, 2001 requested the Secretary, West Bengal Board of Secondary Education to supply copy of such report. In this letter he was contended that in view of bifurcation of the Office of District Inspector of Schools(SE) Darjeeling and the other District Inspector of Schools (SE) Siliguri, the documents namely the report of District Level Inspection Team is not available either in any of the Offices.
15. Hence, from the documents as placed by the respondent particularly the records of West Bengal Board of Secondary Education leading to therecognition of this school, nowhere it is found about the teaching and non-teaching staff who were present on the date of inspection that is on 20th January, 1984, which has been asserted as the date of inspection by the respondents as well as by the School Authority. One member of the District Level Inspection Team, Mr. Kundu by his letter of the year 1990 has stated the names of three teachers only who were present on the date of inspection but since this letter cannot be considered as a report of District Level Inspection Team, no decision can be reached solely on basis of this letter to conclude that inspection held on 20th January, J984 and writ petitioner joined in the school after that date, unless other cogent evidence to support this letter.
16. Hence, from the documentary evidence, it is clear that no document of District Level Inspection Team has been placed before this Court save and except other documents namely the personal letter of one member of such team, Mr. Kundu a cyclostyle inspection report signed by three members of inspection team but without any date and without any date of inspection and the names of teaching and non-teaching staff who were present on that date from the side of respondents. From the documents and the records of the West Bengal Board of Secondary Education, it appears that West Bengal Board of Secondary Education on the basis of the recommendation of Sabhadhipati, Zila Parisad recognized the school and left the entire matter for decision so far as appointment of organized staff to the Director of School Education, West Bengal. Despite all this thing of the records and inspite of the fact that no report of District Leval Inspection Team in a true sense is appearing from the document, but one fact is very vital namely a document being a letter dated 30th March 1988 issued under Memo No. 44 by Additional District Inspector of School (SE) Siliguri. District Darjeeling addressed to Director of School Education West Bengal. Contents of which relevant for adjudication of this case which speaks that the writ petitioner was appointed by the Organizing Managing Committee after the inspection of District Level Inspection Team when such fact has been echoed by in the letter dated 15th July. 1988 of District Inspector of School (SE) Darjeeling issued under Memo No. 24/SLG addressed to the Director of School Education, West Bengal. This fact has been relied upon by the writ petitioner himself in paragraph 10 upon annexing this document as annexure 'C' at page 19 of the writ application.
17. Writ petitioner by affidavit affirmed this document as true to his, knowledge. Hence, it is clear that writ petitioner himself has admitted the fact in this writ application that he is a post appointee after inspection, was over. The contention of the said letter dated 15th July, 1988 is to this effect;
' Subsequently, however, Organizing Committee appointed the following teachers from the dates noted against each of them after inspection made by the District Level Inspection Team i) Smt. Anjali Biswas- B.A -2.6.84 ii) Sri Satya Ranjan Biswas- B.Sc -20.3.84 iii) Sri Budhadev Biswas-B.Sc. (Bio) 2.4.84.'
18. Since the writ petitioner has admitted a document as true to his knowledge in the present writ application affirming the same on 9th May, 1993, in absence of any other document namely the legal and valid report of District Level Inspection Team and Without going to the question further,this writ application can be decided and disposed of from the very admission of the writ petitioner as made in paragraph 10 and the supporting document of such application being annexure 'C' that is the said letter of District Inspector of School concerned, wherefrom it reveals that writ petitioner was appointed after the inspection of District Level inspection Team. Though the letter of Mr. Kundu. one member of the District Level Inspection Team of the year 1990 cannot be equated as a report of District Level Inspection Team, so far as scrutinizing the names of organizing staff, this can be considered as a supporting document in view of the particular fact situation that petitioner himself in paragraph 10 admitted the contents of letter of District Inspector of Schools concerned as true to his knowledge wherein it has been categorically contended by the said Officer that writ petitioner and two other teachers were appointed after the inspection was completed by the District Level Inspection Team. The letter of Mr. Kundu, one member of the said team accordingly has some value, in adjudicating the writ application. It is now settled legal position that while a suit is decided on the basis of trial on evidence, a writ application is decided on the basis of Affidavit evidence available in the records. The Affidavit of a writ application under the Indian Oath Act has a very vital effect. The value of affirmation in the writ application has been considered by the apex Court in a leading judgment in this field popularly known as Berium Chemical case, reported in : [1967]1SCR898 .
19. Such point has also been discussed by the apex Court on the value of any statement qua the verification of the Affidavit in the case A.K.K. Nambiar v. Union of India and Anr., reported in : [1970]3SCR121 , a judgment of Constitutional Bench, wherein it has been propounded that the genuineness and authencity of allegation would be based on proper verification as made in the Affidavit, It has been further propounded that without any proper verification a well drafted petition or Affidavit would be without any value. In the instant case said judgments are applicable for a conclusion by this Court about the authencity of the document namely the letter of District Inspector of Schools (SE) Darjeeling appearing at annexure 'C' page 19 of the writ application. In such document the writ petitioner's status as an appointee after the District Level Inspection Team has been categorically mentioned, which fact has been affirmed by writ petitioner himself in the Affidavit dated 19th May, 1993 oft writ application as true to his knowledge. Hence, there is no scope to disbelief the contention of the District Inspector of Schools (SE) Darjeeling that writ petitioner is an appointee after the inspection of the School was completed by the District Level Inspection Team on 20th January, 1984. in that view of the matter, since, such document has not been disputed by the writ petitioner himself but on the contrary annexed the same as a supporting document for proper relief by this Court, in absence of any other document, a judgment can be passed relying upon this document/letter of District Inspector of Schools (SE) Darjeeling, which has been relied by the writ petitioner himself as a genuine and authentic document affirming the same as true to his knowledge.
20. Hence, the contention that writ petitioner is a post appointee after inspection being a contention .which is true to his knowledge, no argumentcan be canvassed by the writ petitioner contradicting such orally as vehemently submitted by the learned Advocate of the petitioner that no inspection was held on 20th January, 1984 and that his client was not a post inspection appointee.
21. Furthermore, in the amendment application', writ petitioner never challenged the very contention of the letter appearing as annexure 'C' of the writ application. Hence, the impugned order in this amended writ application being annexure 'E' being the decision dated 20th March, 1990 of Director of School Education under Memo No. 669/1(6) (SE)-93 dated Calcutta, 31st March, 1993 wherein this letter of District Inspector of School (SE) Darjeeling issued under Memo No. 224/SLG dated 15th July, 1988 as signed on 2nd July. 1988 but with a wrong date of reference 8th July, 1998, has been relied upon to reject the prayer for appointment as organizing staff on the basis of the Government Orders and Circulars which speaks that until and unless the teaching and non-teaching staff is an appointee of the pre-inspection stage leading to the recognition of the school, no approval of service by way of absorption would be passed and when such document has been admitted by the writ petitioner himself as true to his knowledge in the writ application as annexure 'C', in my view, the impugned decision annexure 'E' is neither illegal nor a decision of a without jurisdiction as would face the wrath of judicial review by this writ Court. Writ petitioner when accepted a document as true to his knowledge and thereby accepted his status as a post appointee after the inspection of the school by District Level Inspection Team, there is little scope to investigate the matter as to whether he is a pre-appointee or post appointee with reference to the inspection of school from the records of respondents. Since the writ petitioner has no legal right to claim his service as organizing staff, hence, the petitioner cannot pray for regularization of his service when school got its recognition. The concerned school from records as it appears, was organized long hack of joining of present writ petitioner. The word 'Organized Staff means a person who is in the school since the date of its establishment. But meaning of 'Organized Staff vis-a-vis right to be absorbed when school would be recognized, has been relaxed by Government order and circulars prescribing the right of a staff to be absorbed if and only if he is an appointee of pre-inspection date in relating to inspection by District Level Inspection Team leading to recognition of School. Relevant circulars of Government as applicable in this case regarding approval of appointment of organizer teachers and non-teaching staff, is the circular letter under No. 2605(16)-Sc/S dated 20th December, 1984. which is set out in extenso for appreciation of the matter:
Government of West Bengal
Directorate of School Education
6, Bhabani Dutta Lane (Top Floor), Calcutta-73.
No. 2605(1)-SC/S Dated : 20.12.1984. From : The Director of School Education, West Bengal.
To : The District Inspector of Schools (SE)
The undersigned sends herewith the following decision regarding the approval of appointment of teachers and non-teaching employees in the newly recognized and upgraded secondary schools. Approval of appoint-merits should be followed strictly in adherence of the principles laid down in these rules. In case of any complications or difficulties in dealing with the cases relating to the approval of appointment of organizer-teachers, he is requested to refer the matter to his Directorate for a final decision.
It should be remembered that the principles laid down are valid for schools recognized with effect from 1.1.84. Schools which will be recognized with effect from 1985 onwards, current inspection reports will be insisted upon and in no case will claim of teachers not found on inspection be entertained. The special provision made in para 1(iv) will cater to the cases of schools inspected some time back but recognized with effect from 1.1.84 so that genuine teachers-in-position are not discriminated against. Now all cases relating to the approval of appointment of organizer teachers and non teaching employees of the newly recognized high and junior high schools should be disposed of as expeditiously as possible.
It is again reiterated that previous orders of the Directorate communicated vide this Directorate Memo. No, 1036 (16)-Sc/S dated 21.4.82 which was valid for schools recognized with effect from 1.1.82 and 1.1.83 will not apply to schools recognized with effect from 1.1.84 onwards;
Sd/-
Illegible.
Director of School Education.
West Bengal.
Enclosure to 2605(16)-Sc/S dt. 20.12.84.
Approval of appointment of organizer teachers and non-teaching staff of the newly recognized junior high schools and upgraded secondary schools.
(1) Services of the teachers, and non-teaching employees of the newly recognized upgraded 4-Class junior high/X-class high schools & newly recognized junior high schools should be approved as such with effect from the date of recognition /up gradation provided that-
(i) they posses the prescribed minimum educational qualifications as per requirement of the school;
(ii) they have the prescribed age on the date of appointment in the school:
(iii) they were appointed prior to the date of final inspection of the school, made in connection with its recognition;
(iv) In cases of junior high schools, they were in service of the school on the date of final inspection of the school made in connection with its recognition, Cases of the teachers-in-position duly appointed within the admissible strength should be considered provided they were duly appointed by the management of the school, and they rendered a considerable period of service to the school prior to its recognition. If there is any dispute regarding the determination of the actual claims of teachership and non-teachership of the school the matter should be settled up by a subsequent inspection bythe members of the inspecting team. For the final decision in the matter, such cases should be referred to the Directorate. In case of X-class High School the cases of those teachers who were in service on the date of discontinuation of class IX and/ or X but not later than 10.3.79 vide Board's Notification issued in this regard from time to time should be considered.
(v) (a) The School applied for recognition/upgradation in the Board's prescribed form along with the prescribed fees;
or
(b) the school applied for recognition/upgradation prior to 1974 and was duty inspected by the Education Directorate and the report was considered by the Board but the prayer of the school could not be finally disposed of;
or
(c) School was established before 1975 and granted 'Special permission' by the Board to present candidates at the Madhyamik Pariksha (Secondary Examination).
(2) The appointment of teachers and non-teaching employees of Secondary School other than those stated at (v) above, shall be subject to the revised rules or appointment vide secondary Education Directorate's Memo No. 1464 (16)-GA dated 28.8.81.
Sd/-
Illegible
Director of School Education.
West Bengal.
22. Present school as was established in 1979 got its recognition as a 2-class junior high school with effect from 1.1.86 and thereafter as a 4-class junior high school with effect from 1.1.87. Since the school got its recognition as a 2-class junior high school that is only for classes (V) and (VI) with effect from 1.1.86, the Circular Letter of approval of appointment of the organizing staff as would be applicable in this case is the Circular Letter dated 20th December, 1984 aforesaid. In terms of this Circular Letter dated 20th December, 1984 of Director of School Education, West Bengal a positive condition has been set up as follows: -
'Schools which will be recognized with effect from 1985 onwards, current inspection reports will be insisted upon and in no case will claim of teachers not found on inspection be entertained.'
23. From the Circular Letter it further reveals that special provision as laid down in para 1(IV) of enclosure to this circular providing consideration of the case of teachers in position that is the teachers who were not a organized staff from the time of establishment of the school also was directed to be considered subject to the condition that the school must be recognized with effect from 1.1.84. It is further provided that the principles laid down in the said Circular Letter dated 20lh December, 1984 to consider the candidature of teachers in position for approval of their service would not be applicable in respect of those cases when the school would be recognized from 1985 onwards. Hence, the condition as laid down in clausel(III) namely 'they were appointed prior to the date of final inspection of the school, made in connection with its recognition' and the condition in para 1(IV) of the enclosure of the said Circular Letter namely 'in cases of junior high school, they were in service of the school on the date of final inspection of the school made in connection with its recognition' are the specific conditions which are required to be fulfilled by a organizing teacher to claim approval of service on the strength and basis of this Circular Letter. Be it noted herein that at the relevant time when the school got its recognition with effect from 1.1.86 as a 2-class junior high school already Recruitment Rules for appointment of teaching and non-teaching staff of such schools was existing being the Recruitment Procedure issued under Memo No, 1464(16) GA dated 24th August, 1981 and No. 1066(16)GA dated 16th June, 1981 which were the Recruitment Procedure issued by the Director of School Education in exercise of his power in terms of Clauses (I) and (II) of Sub-rule (1) and by Clause (1) of Sub-rule 28 of the Rules for Management of Recognition of Non-Government Institution (Aided and Unaided) .1969 hereinafter refer to as Management Rules. 1969. Hence, the statutory rule for recruitment of teaching and non-teaching staff in the junior and secondary, schools was existing on 1.1.86 when the school got its recognition and in normal procedure the new sanctioned posts of teaching and non-teaching staff were required to be filled up following such Recruitment Procedure namely inviting the names from the local Employment Exchange, Selection of candidates by a proper Selection Committed holding oral interview and thereafter empanelment of the candidates and appointment from the panel. Hence, under the Recruitment Rules as existing at the material time all the unemployed persons registered in the Employment Exchange was allowed to be considered of course as per rotation formula of the Employment Exchange Manual for the post in question as were sanctioned in view of recognition of the school but the Government as well as the Education Department only to grant benefits to the persons concerned namely teaching and non-teaching staff who voluntarily served the school for so many years to give a shape of the school in a school less village made some provisions on excluding the applicability of such Recruitment Procedure and such was clearly stated in the said Circular Letter of 20th December, 1984 as refer to above. Hence, when the general rule of recruitment was given a go by, the special procedure as made to absorb the teaching and non-teaching staff who worked for so many years to establish a school, the clause was rightly mentioned that on the date of inspection such teacher must be there in the school as got its recognition later on. The reason behind incorporation of such rider was so that the Managing Committee of the school cannot exercise nepotism and favouritism in favour of any candidate by giving appointment in the post inspection stage for the purpose of absorption of the candidate in the school in question. Once, a school is finally inspected by the District Level Inspection Team, the recognition is a matter of course and knowing that many unscrupulous Secretary holding the Organizing Managing Committee used to appoint the man on their choice to provide the special benefit of appointment to avoid the Recruitment Procedure as was framed and constituted as per Management Rules, 1969. Hence, the conditions mentioned in para 1(III) and (IV) in the said Circular Letter on 20th December,1984 are required to be followed strictly falling which the purpose to provide job to a special class of organizing staff would be frustrated. Hence, to claim such benefit by the present petitioner, petitioner must satisfy the condition that he was an existing organizing staff of the school and working thereto long prior to the final inspection of the school. Such satisfaction is absent in this writ application rather there is an admission by the petitioner himself relying upon the document of District Inspector Schools (SE) Darjeeling. which speaks that petitioner was a post inspection appointee.
24. Furthermore, the service of the petitioner from post inspection period till this date also has not covered under any statute, hence, petitioner cannot claim any benefit of regularization of service as urged by the learned Advocate of writ petitioner. It is now a settled legal position that a continuous service ipso-facto will not be a ground to regularize this service. Now it is settled legal position that regularization cannot be a mode of appointment, that the High Court has no jurisdiction to issue an order directing regularization of service contrary to mandatory provision of relevant statute and that an appointment made in violation of the Recruitment Rules is illegal and is violative of Articles 14 and 16 of the Constitution of India. Reliance is placed to the judgments of the Division Bench in the case Managing Committee, Dinhata High School v. Ram Chandra Saha and Ors. Reported in 1997(1) CHN 105, in the case DPI, West Bengal and Ors. v. Dr. Asis Pal, reported in 1998(2) CHN 241. These are catena of cases of the apex Court on this point which are relied upon namely the case of Aswani Kumar v. State of Bihar, reported in : (1997)IILLJ856SC , Smt. Arundhati Ajit Pargaankar's case reported in AIR 1995 SC 262. Unfortunately, in the instant case there is no clause for relaxation of the provision to provide the special benefits to the organizing staff namely 'presence on the date of inspection leading to recognition of the school and rendering of considerable period of service prior to such inspection', accordingly such condition cannot be relaxed. Reliance is placed upon the judgment of the apex Court in the case Koshab Ch. Joshi v. Union of India, reported in 1992 Supp (1) SCC 272 wherein though there was a relaxation clause in the recruitment rule but the apex Court held that consultation with the Public Service Commission was a mandatory and accordingly relief was refused. Same view reiterated by the apex Court in the judgment Syed Khalid Razul's case reported in : (1993)ILLJ887SC wherein the apex Court held the condition of recruitment cannot be relaxed even if there is an existence of such clause. Similar view expressed by the apex Court in the case State of Orissa v. Sukanta Mahapatra, reported in : (1993)IILLJ297SC and in the case of Dr. N.A. Haque v. Union of India, reported in : (1993)ILLJ1139SC . In that view of the matter I am sorry to exercise any relaxation clause to grant relief to the petitioner as there is no such relaxation clause even in. the Government circular letter providing absorption of organizing staff. Furthermore, in the instant case it appears that the petitioner has prayed for elevation of his status from un-approve staff to an approve staff when his initial entry is not as per statute. For such elevation of status there must be a device namely any statute, rule as would help the petitioner. In the instant case there is no such rule to regularize the petitioner's service. To approve service it would foul the Government circular letters about absorption of the organizing staff. The reliance is placed to judgment in thecase State of M.P. v. Dharambir, reported in : [1998]3SCR511 for the above principle. Even in a case V.N. Nagarajan v. State of Karnataka, reported in : (1979)IILLJ209SC , the apex Court held that when there is an existence of any rules framed under Article 309 of the Constitution of India, no relaxation is permissible even on exercise of the executive power of the Government issued under Article 162 thereof in contravention of the rule. Since, it is been decided that petitioner is not an organizing staff of the school as was established in the year 1979 in view of his admission being an appointee of the year 1984 and since from his own admission it appears that he was post inspection appointee and thereby is debarred to have the benefit of Circular Letter of absorption and the Recruitment Procedure existing at the material time would be applicable in his case as issued by the Director of School Education, West Bengal being the Recruitment Rules of 1981 which clearly prohibits the petitioner's regularization. It is clearly provided that all appointments to be made by interviewing the candidates who would be sponsored from Employment Exchange and that too after proper selection by the Selection Committee. In view of such petitioner's such service also cannot be regularized as prayed for.
25. Such conditions neither can be exempted nor can be diluted even by the writ Court. Writ Court is bound by the statute and no writ of mandamus can be issued contrary to the statutory provisions. Since, specific condition about such special appointment prior to the inspection of the school has been laid down as condition precedent for approving such type of teaching staff, the writ petitioner cannot claim any benefit on the basis of such circular letter in view of his own admission in annexure 'C' about the letter of District Inspector of School concerned wherein it has been clearly stated that petitioner and other two teachers were appointed after the school was inspected by District Level Inspection Team. In that view of the matter there is no legal right of the: writ petitioner to pray regularization of service with retrospective effect from the date when the school got recognition that is from the year 1987. Since, I have already held that the annexure 'E', the decision of the Director of School Education, West Bengal is not such a decision as would be interfered with by this writ Court, subsequent direction approving the service of the writ petitioner by the District Inspector of School by his Memo No. 550/SLG dated Siliguri 22nd January, 1993 cannot sustain. Such letter is annexed as annexure 'F' of the writ application. By the impugned decision of the Director of School Education, West Bengal being annexure 'E' not only the writ petitioner but the other two teachers namely Smt. Anjali Biswas and Satya Ranjan Biswas identically placed like him faced the same consequence. They were granted leave to appear before the selection board but they did not appear along with the other candidates. The approval of service by the; District Inspector of School, Siliguri approving the service of the writ petitioner with effect from 1.1.93 was itself contrary to the decision of Director of School Education, West Bengal. There was no scope before 'the said Officer to pass such approval order in favour of the petitioner. In the vacating application, opposite parties has annexed a letter of Director of School Education, West Bengal issued under Memo No. 161/1(3) SLG dated 28th March. 1994 where it is stated that the Additional District Inspector of Schools (SE) Siliguri when was in charge of office of the District Inspector of Schools (SE) SiliguriIn utter violation of the decision of Director of School Education, West Bengal accorded approval of service of the writ petitioner and writ petitioner was directed to show cause as to why such approval order would not be withdrawn. Writ petitioner however, got the interim order of this Court about payments of salary on the strength of such illegal order of District Inspector of School (SE) Siliguri, who acted in utter violation of the decision of Director of School Education, West Bengal, a superior authority. The approval order itself was bad in law and the same was a nullity as under the statute, there was no scope before the District Inspector of School concerned to supersede the decision of Director of School Education. West Bengal and he was never empowered to do such, either by any competent Court of law or by any statute. The concerned District Inspector of School who accorded approval accordingly acted not only in excess of his jurisdiction but also in violation of the decision of the Director of School Education, West Bengal and thereby exercised fraud upon statute and his power under statute. He has made himself liable for departmental proceeding, as it is a clear case of misconduct. Be that as it may the authorities are at liberty to proceed with the matter against the said Officer who committed mischief despite existence of the decision of Director of School Education, West Bengal. However, referring said order of approval, which is itself a nullity, the writ petitioner got all the interim order of this Court dated 25th June, 1993 and implemented such by the rigour and taking recourse to a contempt application. The direction was in nature of interim order directing to release salary, arrear and current, until further order of this Court.
26. Initially the writ petitioner did not challenge the decision of direction of Director of School Education, West Bengal being annexure 'E' whereby and whereunder the said authority rejected the prayer for absorption, as the petitioner was not the organizing staff of the School. During subsistence of that order, there was no scope before the District Inspector of School to issue the approval order, which is annexure 'G' of the writ application. But unfortunately the writ petitioner was successful to avail the interim order from this Court passed by O.K. Basu, J. on the writ application and enjoyed all salary and benefits. It is now a settled legal position that interim order of any Court always subject to the final decision. Since by the interim order, the petitioner on the basis of an approval order, which now has been declared by this Court as a nullity, all consequences accordingly will follow. On careful consideration of the entire matter accordingly this Court is quashing and setting aside the decision of approval of the District Inspector of School issued under Memo No. 550/SLG dated 22nd January, 1993 so far as the writ petitioner's case is concerned and is not interfering with the decision of Director of School Education, West Bengal rejecting the paryer to approve the service of the writ petitioner communicated under Memo No. 669/1(6)SE-93 dated Calcutta 31st March. 1993. As a consequence of such, the petitioner must vacate the post, hence, his appointment and approval accordingly is being cancelled forthwith. Now the question is of consequence of such cancellation on salary as enjoyed. It has been settled by the apex Court that wrong and illegal appointment to be cancelled and direction to refund (he salary to be passed. The judgment of the apex Court in the case CM. Singh V. H.P. Krishi Vishva Vidyalaya and Ors., reported in : AIR2000SC3638 and the judgment in the case Manohar v. San/ay Education Society and Ors., reported in : (1999)9SCC118 is relied upon.
27. Considering the fact that due to the interim order, petitioner was getting the salary though his appointment is absolutely illegal and in violation of the Recruitment Rule and procedure, the writ petitioner accordingly has made himself liable for refund of all salaries as has been taken from the public exchequer and accordingly it is directed that writ petitioner must refund the amount to the Government through Office of the District Inspector of Schools (SE) Siliguri within 8 weeks from this date, but without any Interest since the respondents Government Authorities did not take any steps in this writ application to vacate and/or modify the order placing all the relevant papers earlier. Since it is a serious issue namely that one Officer while officiating as District Inspector of School (SE) Siliguri, in violation of the positive decision of the Director of West Bengal refusing the prayer of writ petitioner about approval of his service, approved the service not only in violation of the direction and/or decision of superior authority but without any authority and jurisdiction, it is a fit case for initiation of a departmental proceeding against the said Officer to stop the recurring of such illegalities by the Officers concerned in future. Accordingly Director of School Education, West Bengal is directed to initiate a departmental proceeding in accordance with law against the said Officer, who accorded approval in favour of the petitioner in violation of the positive direction of Director of School Education, West Bengal and to complete such adjudication upon proper hearing to the parties. The writ petitioner will vacate the post forthwith and the School Authorities is directed to appoint a suitable candidate upon proper recommendation of the School Service Commission who is now the Selecting Authority and such steps to be taken to fill up the vacancy within 4 weeks from this date. All interim orders passed by this Court earlier are vacated and the writ application is dismissed without any cost in view of fact of the case. The Registry is directed to sent this judgment to the Director of School Education. West Bengal for necessary compliance of the judgment.
Stay as prayed for is refused.
Let Xerox certified copy of this order, if applied for be given to parties expeditiously.
28. Petition rejected