Calcutta High Court (Appellete Side)
Managing Committee Of Rishipur High ... vs The State Of West Bengal & Ors on 26 September, 2011
Author: Aniruddha Bose
Bench: Aniruddha Bose
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Form No. J(2)
IN THE HIGH COURT OF CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE ANIRUDDHA BOSE
W. P. No. 8261(W) of 2003
With
CAN No. 3202 of 2010
MANAGING COMMITTEE OF RISHIPUR HIGH SCHOOL
V.
THE STATE OF WEST BENGAL & ORS.
Advocates for the Petitioner: Dr. Indrajit Mondal
Mr. Amit Banerjee
Advocates for the Respondent
No. 4: Mr. Kashi Kanta Moitra (Sr. Adv.)
Mr. Jayanta Banerjee
Mr. Rabindra Nath Pal
Judgment On: 26.9.2011
ANIRUDDHA BOSE, J.:-
1. The dispute in this writ petition is over approval of appointment of the respondent no. 4 in the post of an Assistant teacher in Rishipur High School. This institution appears to be an aided school affiliated to the West Bengal Board of Secondary Education. The writ petitioners before me claim to be the managing committee of the said school as well as its secretary, president and headmaster. They challenge the validity of a memorandum issued on 3 April 2003 by the 2 District Inspector of Schools Secondary Education, Malda by which approval of appointment of the respondent no. 4 has been given in the vacant post of an assistant teacher in physical education with effect from 01.1.2003. This memorandum reads:-
"In obedience to the order of the Hon'ble Justice Mr. N.K. Mitra of the High Court of Calcutta in terms of the order dtd. 29.12.99 in W.P. No. 31106(W)/97 approval of appointment of Sri Sushanta Kumar Mandal, B.Sc. is accorded as Asstt. Teacher of Rishipur High School w.e.f. 1.1.2003 in the vacant post of Physical Education on condition that he will make himself qualified by going through Physical Education training (Full Course) within 3(three) years from the date of resuming his duties as approved teacher."
2. The respondent no. 4 had earlier filed a writ petition being AST No. 513 of 1997, (which was subsequently registered as W.P. 31106(W) of 1997) before this Court seeking regularisation for appointment as an Assistant Teacher in the concerned post. This writ petition was disposed of by an Hon'ble Single Judge of this Court on 29 December 1997 with the following direction:-
"Considering the urgency of the matter, Rule 27 of the Writ Rules is dispensed with.
The learned Advocate for the petitioner is directed to serve copy of the application upon the learned Advocate Mr./Ms. Tulsi Das Maity for the State and the learned L.R. is directed to regularise such appointment on behalf of the State.
Having heard the learned Advocates for the parties and considering the facts and circumstances of the case and also the annexures to the 3 writ application, the concerned District Inspector of Schools (S.E.) is directed to give necessary approval to the petitioner's appointment as an Assistant Teacher in the concerned post in the school in question without any delay, but in any case, positively within eight weeks from the date of communication of this order and without raising any question thereby. I, however, make it clear that if the petitioner does not have the requisite qualification for being absorved as an Assistant Teacher in the school in question, he will not be entitled to have any claim in the matter. It is also an admitted position that the petitioner is working in the school in question without any remuneration for considerable period and, as such, after approving the petitioner's appointment, his salaries as Assistant Teacher of the school should be paid by the concerned respondent also within four months from the date of giving such approval.
The writ application is disposed of as above without any order as to costs."
3. The said order was duly communicated to the educational authorities as well as the school administration. Thereafter the District Inspector of Schools conducted an enquiry and in his report, he observed that he had checked the attendance register of teachers since 1993 and the name and signature of the respondent no. 4 could not be traced out and no resolution was sent regarding appointment and approval of the managing committee in favour of the respondent no. 4. He appears to have had enquired from other individuals the knowledge about the appointment of the respondent no. 4 and concluded:-
"Going through the facts and circumstances of the case I am convinced that Susanta Kumar Mandal was never appointed as Asstt. Teacher of 4 the school and he never served the Institution as Asstt. Teacher. The total matter is a prepared one which may be termed as 'Got up case'. I felt the pulse of the teachers, taught of the school, Guardians & village people. They are perturbed and highly dissatisfied for such an incident, polluting the environment of the School."(quoted vertabim).
There was, accordingly, no order or approval of his appointment.
4. Thereafter, the respondent no. 4 had initiated a contempt proceeding alleging willful disobedience of the order passed on 29 December 1997. The school authorities were required to disclose the status of the Court case in which the writ petitioner had claimed approval of appointment as assistant teacher in Bio-science. The school authorities in response referred to the aforesaid report of the District Inspector of Schools broadly repeating the finding therein and they further disclosed that there was no post of assistant teacher in Bio-science in the said school. The vacancy list was submitted and thereafter the memorandum dated 3 April 2003 was issued.
5. Appearing for the petitioners, Dr. Indrajit Mondal, learned Counsel submitted that the respondent no. 4 was never appointed to the said school and approval to the post was given by the concerned officer on the threat of contempt. Further submission of Dr. Mondal has been that the writ petitioner was not qualified for the said post which was created in the year 2001. A new post for assistant teacher in Bio-science was created in the year 2002 and for filling up of vacancies in both these posts, the recommendation of School Service 5 Commission was essential as by that time, the West Bengal School Service Commission Act had become operational. He questioned the direction for regularisation relying on the judgment of the Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors. reported in 2006(4) SCC 1. His further submission is that it is the managing committee who is the appointing authority of an assistant teacher and without proper appointment, the question of approval of appointment could not arise. In the case of the said respondent, he argued that no appointment was given. He has also referred to a decision of a Division Bench of this Court in the case of Headmistress, Garifa Arati Academy for Girls Vs. Gita Banik reported in 2008(1) CLJ (Cal) 453. In that case, it has been held by a Division Bench of this Court in the case of that after coming into operation of the West Bengal School Service Commission Act, 1997, direction for regularization cannot be given under the earlier circulars holding the field. The other authority on which Dr. Mondal relied upon is another Division Bench judgment of this Court in the case of Manik Chandra Das Vs. State of West Bengal & Ors. reported in 2009(2) CLJ (Cal) 473. In this case also a similar view was taken.
6. The case of the petitioners is that upon coming into operation of the West Bengal School Service Commission Act 1997, earlier circulars issued under Rule 28 of the Management Rules 1969 could not be given effect to. Upon the School Service Commission Act 1997 becoming operational the Management Rules 1969 was also amended and appointment to teaching posts was made conditional 6 upon recommendation of the School Service Commission. As regards the memorandum issued directing approval of appointment, submission of the petitioners is that this was done only on the threat of contempt.
7. So far as this writ petition is concerned, no affidavit-in-opposition has been filed on behalf of the State respondents. The writ petition has been contested by the respondent no. 4 and appearing on his behalf, Mr. Kashi Kanta Moitra learned Senior Counsel submitted that so far as the judgment of this Court delivered in 29 December 1997 is concerned, since none of the parties have appealed against this judgment and no review of this judgment having been applied for, the decision has attained finality as between the parties. His submission on this count is that as it has been held in the judgment that it is the admitted position that the petitioner is working in the school in question, it was not open to the District Inspector of Schools to go into that question at all, and this finding cannot be questioned in this proceeding also. Referring to the judgment of the Supreme Court in the case of Madan Mohan Pathak Vs. Union of India (AIR 1978 SC 803), he argued that the petitioner had a vested right to seek enforcement of his rights accrued by virtue of the judgment of this Court in W.P. No. 31106(W) of 1997.
8. His further submission is that the only question which the District Inspector of Schools could further enquire into was whether the. respondent no. 4 had the requisite qualification for being absorbed as an assistant teacher in the school in question.
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9. The case of the respondent no.4 is that the petitioners were trying to re- open the whole issue finally concluded by this Court in W.P. No. 31106(W) of 1997 and further examination of the issues decided in the said judgment would constitute sitting in appeal over a judgment of a coordinate bench of this Court and this was not permissible. Referring to the decisions of this Court in the cases of State of West Bengal Vs. Anil Chandra Chaudhury reported in 2000(1) CLJ 39 and Lakshmi Kanta Vs. State of West Bengal reported in 2000(2) CHN 880, he argued that a judgment, even if erroneous, cannot be tested by any of the parties to that proceeding in a collateral proceeding after the judgment attains finality between the parties. On the question of regularisation, he referred to a decision of this Court in the case of Samir Kumar Naskar Vs. Director of School Education & Ors. reported in 2006(1) CLJ (Cal) 110. In this judgment it has been held:-
"The petitioner was otherwise eligible to be regularised in language group by virtue of the State circular dated April 2, 1993. He was entitled to be regularised from the day when others were regularised and hence the School Service Commission coming into force after 1997 cannot create any impediment for the writ petitioner as such. Similarly if the State wants him to be a physical education teacher on the basis of the provisional approval dated August 7, 1995 the State must give him appropriate opportunity to get himself trained as such. In any event, the writ petitioner at this stage in my view cannot be shown the exit door having no fault of him."8
10. In this matter, the petitioners are also seeking to make out a case that they were not served with the copy of the petition in W.P. No. 31106(W) of 1997 before moving the same on 29 December 1997 and that writ petition was disposed of without giving them opportunity of being heard. But it is not in dispute that the order was served upon the school management. They chose not to prefer any appeal against the said order nor any review was applied for. In the light of these facts, in my opinion it would not be open to them to question the legality of the judgment through administrative measures. Thus, the petitioners cannot take a stand questioning the decision of the educational authorities to the extent such decision has been taken for compliance of a judgment of this Court.
11. In the judgement delivered in W.P. No. 31106(W) of 1997, there is a finding that the petitioner therein had been working for a considerable period of time. This finding goes unchallenged before any judicial forum. In the case of Uma Devi (supra), regularization has not been held to be an absolute prohibition. In this decision, it has been held:-
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Naryanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the 9 light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
12. I am also not impressed with the argument of the petitioners that the impugned memorandum was issued in the threat of contempt. If a contempt petition is brought to ensure compliance of an order of the court and such order is eventually complied with, then such act of compliance cannot be challenged solely on the ground that such act was undertaken because a contempt action was brought to seek enforcement of the order. The proper course for a party who feels aggrieved by the original order would be to challenge it before a higher forum. The two authorities cited on this point on behalf of the petitioners are not applicable in the facts of the present case. So far as the finding given in the decision of this Court in W.P. No. 31106(W) of 1997 is concerned, such finding has reached finality as between the parties. In view of the judgement of the Supreme Court in the case of Madan Mohan Pathak (supra), the respondent 10 no.4 is entitled to enforce his rights on the basis of or accruing from such finding. Subsequent enactment of the West Bengal School Service Commission Act would not alter this position.
13. The right of the respondent no.4 however shall remain confined to the finding and directions given in the said judgement. In his writ petition, he had staked his claim on the basis of his appointment as a bio science teacher. In the decision delivered on 29 December 1997, direction was given to accord approval in the concerned post only. Thus the claim of the respondent no. 4 shall remain confined to such post only, provided he has the requisite qualification for the said post and there was vacancy as per the prescribed staff pattern.
14. In the impugned memorandum however, I do not find the question as to whether the writ petitioner was qualified or not for the post in question has been examined. Nor did the District Inspector of Schools in his report made in the year 1998 examine that question. A specific point has been taken by the writ petitioners that the respondent no.4 did not have requisite qualification for being appointed in the post in question.
15. In the light of these facts I dispose of this writ petition with a direction upon the Director of School Education to examine the question as to whether there was any vacancy in the post of bio-science on 29 December 1997 and if there was such vacancy, whether the respondent no. 4 had the qualification which was required at that point of time for being appointed to the said post. In the event the answer to both the questions are in the affirmative, appropriate 11 steps shall be taken to ensure approval of appointment of the respondent no. 4 in such post. In the event it is found that on 29 December 1997, being the date on which the writ petition of the respondent no. 4 was disposed of, there was a vacancy in the post of an assistant teacher in bio-science in the said school but the post was filled up subsequently during pendency of litigations between the parties, then the case of the respondent no. 4 would be dealt with for the post of assistant teacher in physical education, because he should not be made to suffer for delay in the adjudicatory process. But if it is found that on that date there was no vacancy in the said post, then the direction for approval would not be considered to be for compliance of the order of the Court and if such approval is found to have been directed contrary to the recruitment rule prevalent on 29 December 1997, then such direction for approval shall stand invalidated. The Director of School Education shall undertake this exercise within a period of eight weeks from the date of communication of this order.
16. There are two connected applications for addition of party and for vacating the interim order. As I am disposing of the main writ petition these applications also shall stand disposed of. The respondent no.4 has prayed for ad hoc salary in a separate application. In view of the order passed in the main writ petition the said application shall also stand disposed of and salary shall be paid to the respondent no. 4 if he is found eligible for the said post.
17. There shall however be no order as to costs.
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18. Urgent Photostat certified copy of this judgment be given to the parties if applied for with necessary formalities as expeditiously as possible.
(ANIRUDDHA BOSE, J.) Later:
Prayer is made on behalf of the petitioner for stay of operation of this judgment. Such prayer is considered and refused.
(ANIRUDDHA BOSE, J.)