Calcutta High Court (Appellete Side)
Sri Asis Das vs The State Of West Bengal & Ors on 13 May, 2010
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1 In the High Court at Calcutta Constitutional Writ Jurisdiction Appellate Side Present:
The Hon'ble Mr Justice Jayanta Kumar Biswas W.P.No.22400 (W) of 2007 Sri Asis Das
-vs-
The State of West Bengal & Ors.
Mr Piush Chaturvedi, advocate, for the petitioner. Mr Kumaresh Dalal, advocate, for the state. Mr Taraprasad Halder, advocate, for the council. Ms Asha G. Gutgutia and Mr Mrinal Kanti Sardar, advocates, for the advocate general.
Heard on: May 13, 2010.
Judgment on: May 13, 2010.
The Court: - The petitioner in this art.226 petition dated October 5, 2007 is seeking (1) a mandamus quashing
(a) the order of the authority of Raghunathpur Municipal Managed High School in Raghunathpur of the district Purulia dated September 19, 2007, Annexure P6 at p.42, directing him to hand over charge of the office of the coordinator of Rabindra Mukta Vidyalaya Samsad Study Centre to Akash Mukherjee, the new headmaster of the school, and (b) the notice of the secretary of the management board of the study centre dated September 30, 2007, Annexure P8 at p.45, suspending functioning of the study centre in view of the stalemate created by the petitioner's refusal to hand over charge of the office of the coordinator; and (2) a declaration that cls. (i) and (ii) of reg. 5 of Rabindra Mukta Vidyalaya (conduct of affairs of the Vidyalaya) Regulations, 2003 are ultra vires the Constitution of India.
The Rabindra Mukta Vidyalaya Act, 2001 (hereinafter referred to as "the Act"), enacted by the state legislature, came into force on March 29, 2001 when it was notified in the official gazette. It was enacted with a view to establishing and incorporating an open school (Mukta Vidyalaya) in the state, and providing for matters connected therewith or incindental thereto. The reason for establishing the school was that the state found it necessary to provide distance education at school level to all those who cannot get themselves admitted to any school.
Section 3 of the Act empowers the state government to establish the school to be called Rabindra Mukta Vidyalaya. Section 5 empowers the Vidyalaya to collaborate with agencies and institutions for opening learning-support-centres or study centres for the students of the Vidyalaya and accord approval to such centres. Clause (xiii) of sub-s.(1) of s.5 empowers the Vidyalaya to organise training programmes for the members of the staff of the Vidyalaya, the coordinators, and the teachers of schools, and cl.(a) of the explanation to cl.(xiii) defines the word "coordinator" to 2 mean any person appointed or recognised by the Vidyalaya as coordinator for the purposes of the Act. Clause (xxv) of sub-s.(1) of s.5 empowers the Vidyalaya to make regulations for the conduct of affairs of the Vidyalaya.
In exercise of power conferred by s.3 the state established the school called Rabindra Mukta Vidyalaya. In exercise of power conferred by cl.(xxv) of sub-s.(1) of s.5 the Vidyalaya made the Rabindra Mukta Vidyalaya (conduct of affairs of the Vidyalaya) Regulations, 2003.
Clauses (c), (e) and (g) of reg. 2 define the expressions "coordinator", "parent institution or organisation" and "a voluntary social service organisation" respectively. Coordinator means any person recognised as such by the Vidyalaya as explained in cl.(a) of the explanation to cl.(xiii) of sub-s.(1) of s.5, parent institution or organisation means the school or voluntary social service organisation which is permitted by the Vidyalaya to set up a study centre under it, and a voluntary social service organisation means a non-government organisation engaged in social service activities particularly in school education sector without any profit motive.
Regulation 3 provides that every study centre shall have a management board to be constituted in the manner and for the purposes stated in the regulations following reg.3. Regulation 4 provides that the management board shall consist of the nine categories of members mentioned therein, and that the coordinator for the study centre will be a member of the management board ex officio.
Since the constitutional validity of cls. (i) and (ii) of reg.5 has been challenged, I think it will be appropriate to quote the provisions of reg.5, which reads as follows :
"5. Engagement of Coordinator.
(i) The Managing Committee of the parent institution/organisation shall engage the head of the Institution or a member of the teaching staff as the Coordinator for study centre subject to the approval of the Vidyalaya.
Provided that such engagement shall be of purely temporary nature and the person so engaged will not be recognised as a regular staff of the centre.
(ii) The Coordinator so engaged shall be the head or a member of the teaching staff of the parent institution. In case of V.S.O. the Coordinator must be a person having at least a Bachelor Degree in Arts/Science/Commerce from any recognised University.
(iii) The Coordinator shall be entitled to remuneration at the rate prescribed by the Vidyalaya for the purpose."
3Raghunathpur Municipal Managed Junior High School was a non-government secondary school recognised by the West Bengal Board of Secondary Education under provisions of the West Bengal Board of Secondary Education Act, 1963. Being a school receiving benefits under the grant-in-aid rules of the state government it was to be treated as an aided institute.
In the capacity of the headmaster of the school the petitioner wrote a letter dated June 16, 2000, Annexure P2 at p.32, requesting the director of Rabindra Mukta Vidyalaya to collaborate with the school for opening a study centre for the students of the Vidyalaya. During pendency of the application the school was upgraded to a high school, and in the absence of a duly appointed headmaster, the managing committee appointed the petitioner as the teacher in charge of the high school.
By a letter dated December 3, 2002, Annexure P3 at p.37, the director of Rabindra Mukta Vidyalaya informed the secretary of the high school about the decision of the Vidyalaya to collaborate with the high school for opening a study centre for the students of the Vidyalaya on a temporary basis for two years. It is the case of the parties that accordingly the study centre was opened.
There is nothing to show that the managing committee of the high school engaged the petitioner as the coordinator for the study centre with the approval of the Vidyalaya. But then, it is the petitioner's case that he was working as the coordinator for the study centre. His claim is supported by what the authority of the high school said in its order dated September 19, 2007. By this he was directed to hand over charge of the office of the coordinator for the study centre to the new headmaster of the high school.
The order of the authority of the high school asking the petitioner to hand over charge of the office of the coordinator to the new headmaster of the high school has been assailed by Mr Chaturvedi, counsel for the petitioner, on the following grounds.
There is no age of retirement prescribed for a coordinator for a study centre. The appointment being totally unconnected with the petitioner's appointment as the teacher in charge of the high school, his retirement from the services of the high school could not automatically disentitle him to work as coordinator for the study centre. The management board was for a term 4 of three years and during its term the petitioner could not be ousted from the management board on the ground that he had retired from the services of the parent institute, managed by a separate managing committee constituted under different laws.
The notice of the secretary of the management board suspending functioning of the Vidyalaya on the ground that the petitioner's refusal to hand over charge of the office of the coordinator to the new headmaster of the high school created a stalemate has been assailed by Mr Chaturvedi on the ground that the secretary issued the notice illegally and arbitrarily, especially when the petitioner was ready and willing to work as the coordinator for the study centre.
As to the constitutional validity of cls. (i) and (ii) of reg.5, Mr Chaturvedi has said that the case has been stated in para.19 of the petition.
The case stated in para.19 is this. In the case of a voluntary social service organisation the eligibility criteria is only that the incumbent should be a graduate. While a member of the teaching staff of a parent institute retires on reaching the age of superannuation and hence becomes ineligible to be engaged or retained as a coordinator for the study centre, though he invariably possesses higher qualifications, in case of a study centre run by a voluntary social service organisation, the coordinator, once appointed or engaged, does not lose right to hold the office on reaching any particular age. The provisions of the clauses are violative of art.14 of the Constitution of India.
The questions, therefore, are whether upon retirement from the services of the parent institute the petitioner lost the right to work as the coordinator for the study centre; whether during the term of the management board he could be asked to hand over charge of the office of the coordinator; and whether the provisions of cls. (i) and (ii) of reg.5 of the regulations are ultra vires the provisions of art.14 of the Constitution of India.
After hearing Mr Chaturvedi for the petitioner, Mr Halder for the Vidyalaya, Mr Dalal for the state and Ms. Gutgutia for Mr Advocate General, I am of the view that there is no merit in this petition.
5The provisions of cl.(i) of reg.5 clearly provide that only a member of the teaching staff of a parent institute can be appointed as the coordinator for the study centre by the managing committee of the institute, subject to the approval of the Vidyalaya.
In this case, I find that though the managing committee of the high school did not engage the petitioner, he was working as the coordinator for the study centre; and that the Vidyalaya, paying him remuneration, did not object to his working as such. In fact, the petitioner assumed the office of the coordinator for the study centre for the reason that being the teacher in charge he was the head of the high school. It is not the petitioner's case that he was working as the coordinator for the study centre on any other basis.
Under the provisions only the head of the institute or a member of the teaching staff of the parent institute can be engaged as the coordinator. On the petitioner's retirement from the services of the high school on January 31, 2007 a new headmaster was appointed. Under the circumstances, after January 31, 2007 he was neither the head of the institute nor a member of the teaching staff thereof. Hence he ceased to be eligible to remain in the office of the coordinator for the study centre. This being the position, I find nothing wrong with the order of the authority of the parent institute dated September 19, 2007 asking him to hand over charge of the office of the coordinator for the study centre to the new headmaster of the parent institute.
Although the petitioner ceased to be eligible to work as the coordinator for the study centre, he refused to hand over charge of the office of the coordinator for the study centre to another coordinator engaged by the managing committee of the parent institute, and this led to the notice of the secretary of the management board dated September 30, 2007 suspending functioning of the study centre. Simply because the petitioner was ready and willing to work as coordinator, he could not compel the management board and the parent institute to run the study centre keeping him as the coordinator therefor. In my opinion, the petitioner had no right to find fault with the notice of the secretary of the management board.
True it is that no provision of the regulations specified any age of retirement of a coordinator for a study centre. But that does not make any difference. It has been clearly provided that a coordinator for a study centre will be either the head of the parent institute or a member of 6 the teaching staff thereof chosen by the managing committee of the institute. A coordinator engaged by the managing committee of the parent institute does not acquire a right to remain in office even after he ceases to be a member of the teaching staff of the institute. The head of the institute is also a member of the teaching staff thereof.
No provision of the laws obliges the managing committee to keep a former member of the teaching staff of the parent institute in the office of the coordinator for a study centre on the ground that he was engaged when he was a member of the teaching staff of the institute. It seems to me that the term of the engagement of a coordinator for a study centre is, inter alia, coterminous with the term of the employment of the person as a member of the teaching staff of the parent institute. Under the circumstances, once a person ceases to be a member of the teaching staff of the parent institute for any reason including superannuation, he no longer remains eligible to work as coordinator for the study centre.
The three-year term of the management board has nothing to do with the right of any member thereof to remain a member of the board for the full term. If a member loses eligibility to work as such, he cannot claim a right to remain a member on the ground that at the date he was made a member he was eligible to be a member. It is also important to note that the coordinator for a study centre is made only an ex officio member of the board. It means that whoever holds the office of the coordinator will automatically become a member of the management board. If the coordinator, who must be a member of the teaching staff of the parent institute, ceases to be a member of the teaching staff of the institute, he automatically ceases to be the coordinator for the study centre, and hence to be an ex officio member of the management board.
There is no merit in the contention that in case of a study centre run by a voluntary social service organisation a less qualified person may remain in the office of the coordinator for the study centre upto any age because he is not subject to any provision prescribing an age of retirement from the services of the organisation.
There is no reason to say that a coordinator for a study centre opened by the Vidyalaya in collaboration with a voluntary social service organisation is always a less qualified person or that 7 he is not subject to any provision prescribing an age of retirement from the services of the organisation.
The provisions of cl.(ii) of reg.5 only prescribe the minimum qualification for the post of coordinator for a study centre opened in collaboration with a voluntary social service organisation. It does not necessarily mean that such a coordinator will invariably be a person less qualified than the coordinator for a study centre opened by the Vidyalaya in collaboration with a parent institute such as the one involved in this case. It is evident that a coordinator for a study centre engaged by the managing committee of the organisation will also cease to be eligible to be the coordinator for the study centre once he ceases to be a member of the teaching staff of the institute. In my opinion, there is no reason to say that the provisions of cls. (i) and (ii) of reg.5 are ultra vires the provisions of art.14 of Constitution of India.
Mr Chaturvedi has submitted that the Vidyalaya did not pay the petitioner remuneration for certain period he worked as coordinator for the centre, and that the petitioner does not know how he is to hand over charge of the office of the coordinator for the study centre.
Inspite of notice advocate for the parent institute has chosen to stay away. Mr Halder has submitted on instructions that around Rs.30,000 is due and payable to the petitioner. He has said that the Vidyalaya will pay everything that is payable to the petitioner, and that it will also settle the question of charge handover.
For these reasons, I dismiss the petition. It is hoped that the Vidyalaya shall take immediate steps for paying the petitioner all his dues once the petitioner submits the claim petition giving the details of his claims; and that it shall settle the question of charge handover by the petitioner without any delay. No costs. Certified xerox.
Sb (Jayanta Kumar Biswas, J.)