1. Though this case has a long chequered history, but presently it will be suffice to note that the disciplinary proceeding which was initiated by the Managing Committee of the Behala Shyamasundari Vidyapith against the Headmistress of the said school namely the petitioner herein in 1995 has not yet been concluded despite direction was given by the Division Bench of this Hon’ble Court on 5th October, 2005 in APOT No. 346 of 2005 for conclusion of the said proceeding by 31st December, 2005 by a new enquiry officer.
2. The time limit which was so fixed by the Division Bench of this Hon’ble Court for conclusion of the said disciplinary proceeding was subsequently extended by an order passed by the said Division Bench of this Hon’ble Court on 1st March, 2006, whereby a further extension was granted for a period of two months on condition that the school pays the full salary to the concerned teacher. While granting such extension the said Division Bench directed that the enquiry should be conducted under a changed enquiry officer with a further rider that the extension was being made finally. Despite such mandatory direction was passed by the Hon’ble Court, the said disciplinary proceeding was not concluded even within the extended time.
3. Ultimately, on the prayer of the school authority the other Division Bench of this Hon’ble Court further extended the time limit for conclusion of the said proceeding with a direction to conclude the same as expeditiously as possible but within one year from the date of the said order.
4. Since the said order was passed on 20th February, 2008, the authorities concerned were required to conclude the said proceeding by 19th February, 2009. The relevant part of the said order is set out:-
“Now having regard to the fact that there is a lengthy procedure inaugurated by the board in terms of the circular dated 21st June, 1982 wherein the Managing Committee has no hand to complete the departmental proceeding, we are entertaining the application to modify the earlier order by directing that the departmental proceeding to be completed as expeditiously as possible but within one year from this date in terms of the circular letter of the board dated 21st June, 1982 and the Managing Committee and the Board both are directed to take all steps in the matter as expeditiously as possible to complete such departmental proceeding. The Board is accordingly directed to decide the issue of approval of the first stage of departmental proceeding which is still pending before the Board within a month from the date of communication of this order to the Managing Committee of the School. The Managing Committee of the School upon receipt of the board’s approval, if any, is allowed to proceed with the second stage following the said circular letter. Considering that we are allowing prayers (a) and (b) on deleting the word “alternatively” as mentioned in prayer (b).”
5. In fact, the school authority also sought for modification and/or variation of the direction passed by the earlier Division Bench of this Hon’ble Court on 20th February, 2008 regarding payment of full salary to the petitioner which was a condition imposed by the said Division Bench of this Hon’ble Court upon the school authority for extending the time for conclusion of the said disciplinary proceeding. While dealing with the said application of the school authority the Division Bench of this Hon’ble Court refused to consider such prayer of the school authority on the ground of jurisdictional restraint.
6. Their Lordships, however, was pleased to observe that the Managing Committee of the said school would be at liberty to file an appropriate application seeking review of the portion of the order of the earlier Division Bench of this Hon’ble Court whereby the school authorities were directed to pay full salary to the petitioner. Fact remains that the school authority has not filed any application seeking review of the order passed by the earlier Division Bench regarding payment of full salary to the petitioner. As such the said direction became final and is, thus, binding upon the school authorities.
7. The school authorities, however, has not complied with the said direction of the Division Bench of this Hon’ble Court regarding payment of full salary to the petitioner during the pendency of the said disciplinary proceeding. Mr. Chatterjee, learned Advocate for the school authority, however, informs this Court that his clients have paid the full salary to the petitioner for two months only as according to them, as per the direction of the earlier Division Bench of this Hon’ble Court, they were required to pay full salary to the petitioner during the extension period of two months.
8. This Court cannot accept such contention of Mr. Chatterjee as if the said order is considered in its true spirit, then it goes without saying that they were required to pay full salary during the continuation of the said disciplinary proceeding. Even the school authority also interpreted the said order in such manner, and as such the school authorities not only felt the necessity to get the said direction modified by this Court but in fact they did so by filing an application before the subsequent Division Bench, seeking modification of the said order. As such they cannot avoid their liability to pay full salary to the petitioner during the period of her suspension. Mr. Chatterjee informs this Court that the petitioner is being regularly paid her subsistence allowance by his clients till date.
9. The other important fact which is required to be noted here is that the school authority has not applied for any further extension of time for conclusion of the said disciplinary proceeding; though the ultimate time limit which was fixed for conclusion of the said disciplinary proceeding expired on 19th February, 2009. In this context a question has cropped up as to whether the school authority can continue with the said disciplinary proceeding after 19th February, 2009. Mr. Chatterjee, learned Advocate, appearing for the school authority tried to justify his client’s conduct by submitting that his client has concluded the entire exercise which his client was required to do at the first stage of the disciplinary proceeding within the extended time limit fixed by the Division Bench of this Hon’ble Court. He pointed out that after holding an enquiry at the first stage of disciplinary proceeding, his client placed all the materials before the West Bengal Board of Secondary Education for its approval.
10. He further submitted that since the Board has not intimated its decision in this regard to his client, his client could not proceed further. He, thus, contended that his client cannot be blamed for the delay in concluding the disciplinary proceeding as it is the Board which is responsible for the delay and for the default on the part of the Board, his client cannot be restrained from continuing with the said proceeding even beyond the extended time limit fixed by the Hon’ble Appeal Court as aforesaid. The aforesaid submission of Mr. Chatterjee does not appeal to this Court at all as by the order dated 20th February, 2008 the Division Bench of this Hon’ble Court made it clear that both the Managing Committee and the Board were required to take all steps in relation to the said disciplinary proceeding as expeditiously as possible so that the said departmental proceeding is concluded within the said time limit.
11. The Board was directed to decide the issue regarding grant of approval to the first stage of the departmental proceeding within one month from the date of communication of the order and in case the 1st stage of the disciplinary proceeding is approved by the Board, then the Managing Committee of the school upon receipt of the Board’s approval was required to proceed with the second stage of the disciplinary proceeding by following the said circular letter. This part of the Division Bench order makes it abundantly clear that the time limit which was fixed for conclusion of the disciplinary proceeding was not only binding upon the school authority but such direction was also binding upon the Board and both of them were required to complete the said proceeding within the aforesaid time limit fixed by the Division Bench of this Hon’ble Court.
12. In my view, if school authority had any sincere intention to complete the proceeding, then the school authority ought to have approached the Division Bench of this Hon’ble High Court for further extension of time for conclusion of the said proceeding and such step should have been taken by them before expiry of the extended time limit fixed by the Division Bench as aforesaid. The school authority has not taken any such step. This shows that the school authority has no genuine and/or sincere intention to complete the said proceeding; rather the school authority wants to prolong it to an unknown duration to satisfy an invisible evil hand playing behind the screen.
13. Since the said time limit has not been further extended by the Division Bench of this Hon’ble Court and further since this Court is not in a position to extend the said time limit fixed by the Division Bench as in case such extension is granted by this Court then that will amount to alteration and modification of the direction of the Division Bench by a single Judge of this Court which a single Judge of this Court is incompetent to do, as the single Judge cannot sit in appeal over the judgment of the Division Bench. Thus the Court holds that neither the school authority nor the Board can proceed with the said disciplinary proceeding any further after the expiry of the extended time limit. The said disciplinary proceeding has, thus, an unnatural death after the expiry of the extended time limit fixed by the Division Bench of this Hon’ble Court for conclusion of the said disciplinary proceeding.
14. In the facts of the instant case, the disciplinary proceeding stands quashed and consequently the school authorities are directed to permit the petitioner to join the post. The petitioner is thus entitled to get full salary for the period during which she was placed under suspension as such entitlement of the petitioner is recognised in law, irrespective of the conditional order passed by the earlier Division Bench of this Hon’ble Court on 20th February, 2008 regarding payment of full salary to the petitioner. Though the petitioner’s right to join in the said post immediately is recognised by this Court but now it may not be possible for the school authority to allow the petitioner to join immediately as another teacher viz. Mrs. Sanghamitra Mukherjee was appointed as an Headmistress by the school authority in the said school during the period of suspension of the petitioner. Fact remains that the said Mrs. Mukherjee was selected for such appointment through a regular selection process. The District Inspector of Schools on his own reported the said vacancy to the concerned School Service Commission even though no such vacancy in fact did occur as the petitioner is still the Headmistress of the said school.
15. However, the petitioner was ultimately selected for such appointment by the School Service Commission and she was recommended for such appointment to the school authority and the school authority appointed her as Headmistress in the said school. Her appointment was also approved by the District Inspector of Schools and she is acting as the Headmistress in the said school since 2003. This is something strange. This Court is still at a loss to understand as to how the District Inspector of Schools declared the post of Headmistress as vacant and reported the said vacancy to the concerned School Service Commission for filling it up during the period of suspension of the petitioner. It is equally astonishing to note that the District Inspector of Schools even approved the appointment of the subsequent appointee in the said post without considering the effect and/or consequence of suspension of the petitioner. The District Inspector of Schools forgot the basic principle of Service Law regarding suspension of an employee. Suspension is not termination of service. Service of teaching and/or a non-teaching staff is not deemed to be terminated while he or she is kept under suspension. Thus, this Court holds that the District Inspector of Schools was neither justified in declaring the said post as vacant nor the District Inspector of Schools was justified in forwarding the said vacancy to the concerned School Service Commission for filling it up.
16. Furthermore, the concerned District Inspector of Schools cannot plead his ignorance about the pendency of this litigation as not only the District Inspector of School is party to this proceeding but also the suspension allowance is being regularly paid to the petitioner herein by the school authority with the active consent and concurrence of the District Inspector of Schools. Thus since the District Inspector of Schools was responsible for creating such a situation and is also paying salary to the alleged Headmistress and is simultaneously paying suspension allowances to the petitioner for one sanctioned post, he will have to find out the ways and means as to how the subsequent appointee namely Mrs. Mukherjee is to be accommodated in any other vacant post in any other school nearer to the present school where both the petitioner and Mrs. Mukherjee were appointed as Headmistress therein.
17. The District Inspector of Schools is, thus, directed to solve this problem in consultation with the concerned School Service Commission and the subsequent appointee namely Mrs. Mukherjee so that the said subsequent appointee does not feel any inconvenience in continuing her service in a suitable alternative post. The entire exercise, in this regard, should be completed as early as possible but positively within two months from the date of communication of the order and until such arrangement is made, both the school authority as well as the State Government will go on paying all admissible pay and allowances to both of them. Needless to mention here that immediately after an alternative arrangement is made for Mrs. Mukherjee, the petitioner should be allowed to resume her duties as Headmistress in the said school but in any event the concerned authorities cannot deny payment of full pay and allowances to the petitioner during this interim period on a plea that since she is not discharging her duties as Headmistress in the school, she cannot get the regular pay and allowances during this interim period.
18. This order is passed by keeping it in mind that the petitioner is in no way responsible for creating such a situation under which she is unable to resume her duties immediately after quashing of the disciplinary proceeding against her. The school authorities as well as the State respondents are directed to pay full salary and admissible allowances to the petitioner for the current months commencing from June 2011, regularly.
19. They are directed to pay the entire differential amount between her full salary payable to her as per the above direction and the subsistence allowance which were paid to her during the period of her suspension upto May, 2011 positively within four months from the date of this order. Before concluding, this Court feels it necessary to discuss the other part of submission of Mr. Chatterjee, learned Advocate, appearing for the school authority.
20. Though Mr. Chatterjee, learned Advocate, invited this Court to defer the hearing of this writ petition and to join the newly appointed Headmistress namely, Mrs. Mukherjee and the concerned School Service Commission as parties to the proceeding but such prayer was not allowed as the newly appointed Headmistress namely, Mrs. Mukherjee has not come forward praying for her impleadment in this proceeding despite she, not only knew that her appointment was illegal but she was also fully aware of the consequences of such illegal appointment which may ultimately affect her service, as a learned Single Judge of this Hon’ble Court, while disposing of the application filed by the writ petitioner herein questioned the legality of her appointment in the order dated 4th October, 2004.
21. In the said order Mrs. Mukherjee was described as an alleged Headmistress of the school and she was directed to pay the subsistence allowance to the petitioner viz. Suspended Headmistress of the said school. The relevant part of such finding is set out hereunder:-
“How a Headmistress could have been appointed in the school with the erstwhile Headmistress under suspension.”
22. Accordingly, this Court holds that when Mrs. Mukherjee, despite being aware of the consequences of her illegal appointment, has not come forward for her impleadment in this proceeding, she need not be heard. Furthermore, since this Court does not find any illegality on the part of the School Service Commission either in selecting Mrs. Mukherjee as Headmistress or in recommending her for her appointment as Headmistress of the said school, this Court does not find any justification to implead the School Service Commission as party to this proceeding.
23. Accordingly the prayer for addition of School Service Commission is rejected, however, by reposing full trust and confidence upon the School Service Commission which will surely cooperate with the concerned District Inspector of Schools to find out any other alternative vacant post of Headmistress in any other school so that her appointment in the said school is regularised and she does not loose any financial benefit for the period of her service in the present school. The writ petition is, thus, disposed of with the above direction.
24. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.