1. Bunch of writ applications including the present one have been filed either by the organizing teachers or by the managing committee of the organizing school for issuing the writ of summons commanding the respondent authorities to act in terms of the direction made in the Division Bench judgment dated 12th December 1996 of this court in case of West Bengal Board of Secondary Education v. State of West Bengal & Ors. reported in 1997(1) CLJ 165.
2. Providing education to the tender children is one of the fundamental duty casted upon the State/Government under the Constitution of India. Even prior to the existence of the Constitution of India providing education at the primary level was one of the paramount consideration before the sovereign which led the sovereign to enact Bengal Local Self Government Act of 1885. However, the provision relating to primary education was taken away from the said act of 1885 and came to be vested upon enacting the Bengal (Rural) Primary Education Act 1930.
3. Prior to such enactment even thereafter several private organized primary schools mushroomed throughout the state which were established and organized by the educated persons of that locality. Several schools were established with the help of the local affluent people who were generous enough to give their land to the noble cause of providing education to the tender children of the locality with the help of the educated persons. To run such institutions smoothly managing committee was constituted which includes the local influential persons along with teachers who were rendering their services to take the tender children of the localities.
4. Section 54 of the Bengal (Rural) Primary Education Act 1930 provides recognition of the primary school by the District School Board subject to the prescribed conditions. For such purposes recognition rules were framed in exercise of the power conferred under section 66 of the said Bengal (Rural) Primary Education Act 1930. Thus, the schools which were privately managed through the Managing Committee was given recognition by the District School Board in terms of the said recognition rules.
5. Although the schools which were set up by the organizer teachers and was managed through a Managing Committee were recognized under the said recognition rules but the appointment of the organizer teachers were not approved. Although the recruitment rules of 1940 was enacted on 25th July 1940 but the right of the organizer teacher for being appointed with prior approval of the Director of the Public Instruction, West Bengal was established by introduction of Rule 3D of the Recruitment Rules which was framed in exercise of power under section 66 of the said Bengal (Rural) Primary Education Act 1930.
6. The original Rule 3D of the said Recruitment Rule of 1940 recognizes such schools which were set up by private management and also to absorb the teachers who were working in the said school since its inception meaning thereby as organizer teacher.
7. The said old Rule 3D was subsequently amended and the right which was conferred upon the organizer teacher of the recognized school was taken away upon insertion of new Rule 3D.
Prior to the insertion of new Rule 3D several government circulars were issued by which the government invites applications of the private managed schools for their recognition and the absorption of the organizer teacher.
8. Several litigations were filed before this court challenging various actions of the respondent authorities and the bunch of such litigations came up in appeal before the division Bench in the case of West Bengal Board of Secondary Education v. State of West Bengal reported in 1997(1) CLJ 165.
9. The Division Bench categorize the different cases in six categories for its decision namely :
(a) organized primary schools were never granted recognition
(b) primary schools were granted recognition but organizer teachers were not appointed. In some cases even interview was held long ago
(c) primary schools were granted recognition but organizer teachers attached to such schools were not appointed but outsiders were appointed in those schools by the concerned Ad-hoc Committees of the respective District School Board/Council
(d) organized primary schools run by the organizer primary teachers for a long time, subsequently, the said schools were selected by the erstwhile Ad-hoc Committees School Board/Council for recognition and appointment was given to persons other than organizer teachers i.e. a new set of teachers
(e) schools organized before 1978, inspection held but not yet recognized
(f) where trained primary teachers were not appointed by the concerned District School Boards/Council, though schools set up by the trained organizer teachers were accorded recognition.
10. The Division Bench while deciding the cases as categorized in six categories as stated above held :
“260. However there cannot be any doubt whatsoever that in view of our findings aforementioned in cases where schools had been recognized prior to coming into force of New Rule 3D, the organizer teachers had derived a right to be considered for appointment, and thus they having acquired such a right were entitled to be considered in terms of the circular letters existing at the relevant time and as such writ petitioners, thus, had been deprived of their right for a long time, the respective District Primary School Councils are hereby directed to consider those cases and consider their cases for appointment in terms of Old Rule 3D and the circulars existing at the relevant point of time and if thy were suitably qualified therefor. If in any such case interview has already been held, appointment may be made on the basis of such interview.
261. In case there are any cases where primary schools were granted recognition but, the organizer teachers were not given appointment or absorbed but subsequently such recognition of schools were withdrawn, in those cases also the writ petitions would stand allowed subject to the observations made hereinbefore inasmuch as even in those cases on the date of recognition, the concerned candidates had a right to be considered for appointment and once they were entitled to appointment in terms of Old Rule 3D, the right vested in them could not have been taken away by de-recognition of the said school subsequently. We have, however, not able to follow as to how after recognition of the schools, outsiders could be granted appointment as has been alleged in some cases. On recognition of the school, it does not come within the purview of the scheme of ‘Public Management’ as there was no such provision under the 1930 Act. The director of Primary School Education is hereby directed to hold an enquiry in this regard and take appropriate action in the manner.”
11. However, it has been noticed by the Division Bench that the organizer teachers who are working in a privately managed school should be considered along with the eligible candidates keeping in view the fact that they had been working for a long time and to ameliorate such situation it was held :
“258. Furthermore, in view of the admitted position that the state is yet to frame a scheme in terms of Chapter XI of the 1973 Act and as further, the scheme under 1973 Act is to be given its full effect, the concerned authorities of the state, in our opinion, should consider the desirability of taking over the management as many schools as possible in exercise of its power under section 98 of 1973 Act so that not only the student studying in the schools may feel secure but the state would be in a position to provide employment to a large number of teachers working therein. Such an action on the part of the state would ameliorate the difficulties which are faced by thousands of teachers working in different primary schools in rural and urban areas and who might have a reasonable chance of being appointed in a school under public management.”
12. In these bunch of writ petitions the writ petitioners have sought for issuance of mandamus directing the state to frame a scheme in terms of Chapter 11 of the West Bengal Primary Education Act 1973. More precisely in exercise of its power under section 98 of the said Act.
13. It would be pertinent to mention in this regard that by West Bengal Act XLVII of 1980 section 98 of the West Bengal Primary Education Act 1973 is omitted.
14. Prior to deletion/omission of section 98 of the West Bengal Primary Education Act 1973 the government while considering the said judgment of the Division Bench dated 24.12.96 delivered in case of West Bengal Board of Secondary Education (supra) issued a government circular no. 257-SE(Pry) dated 31st March 1997 which reads thus :
GOVERNMENT OF WEST BENGAL
15. School Education Department Primary Branch Bikash Bhavan, Salt Lake, Calcutta – 700 091 No. 257-SE (Pry) Calcutta, the 31st March, 1997
From : Shri Nikhilesh Das, IAS Secretary to the Govt. of West Bengal
To : The Director of School Education, West Bengal The undersigned is directed to say that our efforts to set up new primary schools were not successful in the past few years due to several litigations in Courts. The cases have since been settled with pronouncement of the judgment/order in the Division Bench case no. FMAT 2096 of 1996 with other FMATs on 24.12.1996 and the government is now in a position to set up new primary schools in the state, which was long overdue and which is now essential in order to allow enrolment of several thousands of eligible eager children of the age-group 5-9 years in primary schools, apart from increasing the capacity of the existing primary schools through augmentation of their teaching strength.
2. The undersigned is accordingly directed by order of the Governor to say that the Governor is pleased :
(a) to allow the competent authorities to set up 1000 new primary schools in the districts including urban areas of Calcutta/District/DGHC as shown under column (a) of the Annexure. However, 88 schools earmarked for urban areas will be mainly utilized for setting up of schools for linguistic minorities and the district-wise break up of these 88 schools will be intimated latter. The detailed guidelines for selecting of sites etc. for setting up these 1000 primary schools are being issued shortly
(b) to sanction creation of a total of 3000 posts of primary school teachers in the scale of pay of Rs. 1040-25-1215-30-1485-35-1590-40-1670-50- 1920/- at the rate of 3 teachers for each school as shown under column
(b) of the Annexure
(c) to sanction creation of 750 additional posts of primary teachers in the aforesaid scale of pay for the primary schools located in 128 ITDP Blocks of this state with break-up as shown under column (c) of the Annexure
(d) to sanction creation of further 1500 additional posts of primary teachers in the aforesaid scale of pay for the primary schools located in the remaining areas of the state with break-up as shown under column
(d) of the Annexure
3. The District Primary School Council, Siliguri Mahakuma Primary School Council or the Darjeeling School Board under the guidance of Darjeeling Gorkha Hill Council, as the case may be, shall proceed to set up new primary schools accordingly.
4. Release of additional posts as in column (d) of Annexure is subject to the condition that the District Primary School Councils of Dakshin Dinajpur, Midnapur, Murshidabad and Nadia shall not fill up these additional posts till they fill up their existing vacancies and thereafter get clearance from the government in this regard.
5. The charge on this account will be met from the following heads of account in the current financial year’s budget :
(a) 2202-General Educatin-01-Elementary Education-800-Other expenditure-State plan (Annual Plan & 8th Plan)-01-free and compulsory primary education (U)-(a) establishment of primary schools-teacher & non-teacher cost 31-Grants-in-aid contributions towards salaries-09-Grants-in-aid/Contributions (SCP)
(b) 2282-01-796-Tribal Areas Sub-Plan State Plan (AP & 8th Plan)-
1-Free and Compulsory Primary Education (U)-(ii) establishment of Primary Schools-teacher and non-teacher cost (MNP)-31- Grants-in-aid/Contributions.
6. This order issues with the concurrence of the Finance Department vide their UO NO. Group-B-265 dated 5.2.97
7. Accountant General, West Bengal and All District Treasury Officers are being informed.
16. Subsequently the government issued another government order no. 394- SE(Pry)/10M-44/96 dated 3rd June 1997 and framed a guideline for due implementation of the earlier government order dated 31st March 1997. Again by another government order no. 539-SE(Pry) dated 4th August 1997 issued in compliance with the direction given in the judgment dated 24.12.1996 by the Division Bench of this court in case of West Bengal Board of Secondary Education (supra) the director of the School Education was directed to follow the guidelines enunciated in the aforesaid Division Bench judgment which reads thus :
“1. In cases where schools had been recognised prior to the coming into force of new rule 3D that is before the date of the relevant notification no. 731-Edn(P) dt. 11.9.80, the organiser teachers who had been working in those schools and were eligible for appointment as per provisions of old Rule 3D may submit application to the respective Primary School Councils, who are to consider their cases for appointment in terms of old Rule 3D and the circulars existing at the relevant point of time and if they were suitable qualified therefor.
The onus of providing with supporting documents the claim that the applicant had been serving in the organised school, ever since the school was established, which was granted recognition before the new rule 3D came into force, shall lie with the applicant himself. At the same time, the applicant must satisfy the Primary School council concerned that he was entitled to be appointed as a Primary School Teacher in terms of Rule and circulars existing at the relevant point of time and also that they were suitably qualified therefor.
17. In this connection, the GO No. 721-Edn.(P) dt. 6.7.1971 laying down the minimum educational qualifications and also the standard teacher- pupil ration (1:40) in the particular school may be referred to. For the sake of convenience, the relevant sentences are reproduced below :-
“In supersession of all previous orders on the subject mentioned above the undersigned is directed by order of the Governor to state that the Governor is pleased to order that the Higher Secondary Examination or School final Examination passed organiser teacher working in a primary school prior to the recognition ma be appointed as teacher in the school provided appointment of such teacher is admissible on the basis of the standard teacher-pupil ratio (1:40) I the particular school. Appointment of organiser teachers will be made with the approval of the Director of Public Instruction, West Bengal. Such teachers will draw pay as ‘B’ category teachers.
This order is applicable to Primary Schools situated in both rural and urban areas”
2. In cases where primary schools wee granted recognition, but the organiser teachers were not given appointment or absorbed, and subsequently such recognition of schools were withdrawn in those cases such teachers may submit applications to the respective District Primary School Councils claiming relief under the relevant direction of the Hon’ble Division Bench, with supporting documents that they had been working in such schools, since their inception, which were granted recognition and such recognition was withdrawn subsequently. Such petitioner shall also prove that he was eligible to be appointed as a primary teacher in terms of the circulars existing at the relevant point of time.”
18. By the aforesaid government orders, the cases of the different organizing schools recognized or unrecognized or the recognition subsequently withdrawn/cancelled were considered in compliance of the judgment of the aforesaid Division Bench. The functions of the legislature executive and judiciary is demarcated under the Constitution. Supersession of powers though not recognized in its absolute rigidity but the Constitution has demarcated the functions of the various organs of the Constitution. No organ can usurp the function assigned to other. It is nothing but the sentinel of democracy. It is also true that the power exercised by the legislature and executive is subject to the judicial review but there must be self-imposed discipline of judicial restraint. The Constitution does not permit the court to direct or advice the executives in the matter of policy or to sermonize quo any matter which under the Constitution lies within the sphere of legislature or executive provided of course those authorities do not transgress their constitutional limitation or statutory power. It has been held in case of Municipal Committee, Patiala v. Model Town Residents Assn. reported in (2007) 8 SCC 669 as follows :
“30. The court cannot usurp the functions assigned to the legislative bodies under the Constitution and even indirectly require the legislature to exercise its power of law-making in a particular manner. The court cannot assume to itself a supervisory role for the law-making power of the legislature under the provisions of the Constitution. The High Court must ensure that while exercising its jurisdiction which is supervisory in nature it should not overstep the well-recognised bounds of its own jurisdiction.”
19. What is sought to be achieved by the petitioner in these bunch of writ petitions is in effect a direction upon the state to frame the scheme as has been suggested by the Division Bench in the order rendered in case of West Bengal Board of Secondary Education (supra). Power to legislate is an exclusive domain of the legislature. Even the Division Bench in the judgment did not issue the writ of mandamus directing the state government to frame the scheme under the West Bengal Primary Education Act 1973. It was only a suggestive order as framing a scheme or not to frame a scheme, is within the exclusive domain of the legislature.
20. The three-judges Bench of the apex court in case of Asif Hameed & Ors. vs. State of J & K & Ors. reported in 1989 Supp. (2) SCC 364 observed that the court should not direct or advise the executive in matters of policy which lies within the sphere of the legislature or executive provided those authorities do not transgress their constitutional limits or statutory powers in following words :
“17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint.
18. Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles1 observed as under:
“All power is, in Madison's phrase, “of an encroaching nature”.
Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.... Rigorous observance of the difference between limits of power and wise exercise of power — between questions of authority and questions of prudence — requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the executive branch do.”
19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an Appellate Authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.”
21. Similar view was expressed by the Division Bench of Andhra Pradesh High Court in case of A. P Dalit Mahasabha vs. Govt. of Andhra Pradesh & Ors. reported in AIR 1999 AP 208in following words :
“13. However, it is required to notice that even according to the petitioner in this writ petition the entire land in question is Government land. There is a specific averment to such an extent in the affidavit filed in support of the writ petition.
14. But the matter would not end there, as the petitioner attacks the validity of the decision of the Government, in parting away its land in favour of ISB on various other grounds. The memorandum of understanding dated 6-9-1998 itself is impugned in this writ petition.”
22. It has been held by the supreme Court in case of State of Karnataka v. State of AP reported in (2000) 9 SCC 572 that the court cannot issue mandamus to frame scheme under the Act when the power to frame scheme is a legislature character. When there is a substantial element of discretion vested with the legislature, a direction cannot possibly be granted so as to compel the authority to exercise the power to frame the scheme.
23. Thus I do not find any merit of the writ petitions and the same is hereby dismissed.
24. In view of the finding made hereinabove, the other writ petitions being WP No. 7936(w) of 2005, WP No. 11695 (w) of 2004, WP No. 11694 (w) of 2004, WP No. 7935 (w) of 2005, WP No. 11882 (w) of 2004, WP No. 13370 (w) of 2004, WP No. 13369 (w) of 2004, WP No. 7940 (w) of 2005, WP No. 12519 (w) of 2004, WP No. 19640 (w) of 2004, WP No. 19637 (w) of 2004, WP No. 19369 (w) of 2004, WP No. 11462 (w) of 2004, WP No. 7808 (w) of 2005, WP No. 16487 (w) of 2001, WP No. 16490 (w) of 2001, WP No. 16491 (w) of 2001, WP No. 9556 (w) of 2005, WP No.9786 (w) of 2005, WP No. 8261 (w) of 2005, WP No. 8260 (w) of 2005, WP No. 8262 (w) of 2005, WP No. 23933 (w) of 2005, WP No. 7809 (w) of 2005, WP No. 11461 (w) of 2004, WP No. 12214 (w) of 2004, WP No. 7812 (w) of 2005, WP No. 12364 (w) of 2004, WP No. 12213 (w) of 2004, WP No. 12206 (w) of 2002, WP No. 12205 (w) of 2002, WP No. 11881 (w) of 2004, WP No. 7804 (w) of 2005, WP No. 11510 (w) of 2002, WP No. 12207 (w) of 2002, WP No. 7124 (w) of 2009, WP No. 32629 (w) of 2008, WP No. 32627 (w) of 2008, WP No. 11513 (w) of 2002, WP No. 11509 (w) of 2002, WP No. 12209 (w) of 2002, WP No. 11514 (w) of 2002, WP No. 11508 (w) of 2002, WP No. 11512 (w) of 2002, WP No. 12210 (w) of 2002, WP No. 11511 (w) of 2002, WP No. 8630 (w) of 2001, WP No. 31730 (w) of 2008, WP No. 7213 (w) of 2009, WP No. 7939 (w) of 2005, WP No. 7938 (w) of 2005, WP No. 9558 (w) of 2005, WP No. 7937 (w) of 2005, WP No. 12520 (w) of 2004 are also dismissed.
25. However, there shall be no order as to costs.
26. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.