Calcutta High Court (Appellete Side)
Mrinal Kanti Kamar & Ors vs The State Of West Bengal & Ors on 19 May, 2017
Author: I.P. Mukerji
Bench: I.P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
W.P. No. 12615 (W) of 2014
Mrinal Kanti Kamar & Ors.
v.
The State of West Bengal & Ors.
For the petitioners:- Mr. E. Bari
Mr. K. M. Hossain ...Advocates
For the Respondent: Mr. Biswajit De
Mr. Raj Lakshmi Ghatak
...Advocate
Judgement on:- 19th May, 2017
I.P. MUKERJI, J.
On 1st January, 1965, the Harin Khola Dhruba Adiswar Junior School was
granted recognition by the state government. It was upto class IV level. It
appears that from time to time the school was upgraded upto class VIII as a
Junior High School. Finally, in the middle of the 1980's, a body of persons
which I shall call the organising staff, duly appointed by the Managing
Committee of the school, took the decision to start Classes IX and X.
This organising staff comprised of teaching and non-teaching staff. After a lot
of effort at the governmental level and after prosecuting litigations in this court,
the school was upgraded to the level of classes IX and X, as will appear from
the School Education Department's memo 12th May, 2011. It was upgraded to
and recognised as a X-class secondary school provisionally from the academic
session 2011-12. It was with effect from 1st February, 2011 for three years.
Attached to this recognition was the condition that the teaching and non-
teaching staff of the school had to be recruited according to the West Bengal
School Service Commission Act, 1997 as amended from time to time and the
rules made thereunder.
The writ petitioners are all organising staff of the school seeking approval of
their appointments by the respondents, as the teaching and non-teaching staff
of the school.
The contention of the respondents is that the teaching and non-teaching staff
were appointed without consulting the government and without its approval.
After enactment of the West Bengal School service Commission Act, 1997 and
framing of the Rules thereunder, organising teachers cannot be recognised. So
there was no question of approving the appointment of the organising staff of
this school.
Certain definitions contained in the West Bengal Schools (Control of
Expenditure) Act,2005 are very helpful for the purposes of this matter.
A recognized school is defined as follows:
"2(k) "recognized" with its grammatical variations, used with reference to a
school shall mean recognized or deemed to have been recognized under--
(i) The West Bengal Board of Secondary Education Act, 1963, or
(ii) The West Bengal Primary Education Act, 1973 ( West Bengal Act XLII of
1973), or
(iii) The West Bengal Council of Higher Secondary Education Act, 1975, or
(iv) The West Bengal Board of Madrasah Education Act, 1994."
A recognized non government aided school is described as:
"2 (l) a recognized non-Government aided---
(A) Secondary school, or educational institution, or part of department of
such school or institution, imparting instruction in secondary education, or
(B) Higher secondary school, or education institution (other than a college),
or part or department of such school or institution, imparting instruction in
higher secondary education, or
(C) Madrasah, or
(D) Primary Teachers Training Institution; or
Explanation I-- "Aided" with its grammatical variations, used with reference to
a school, shall mean aided by the State Government in the shape of financial
assistance towards the basic pay of the teachers and non-teaching staff of that
school."
School authority is defined in section 2(n) as follows:
"2(n) "School authority", in relation to a school, means the governing body,
managing committee, ad hoc committee, administrator or any other body, by
whatever name it is called, which is charged with the management of the
affairs of the school."
s.4. of the said Act prohibits a school authority to create any teaching or non
teaching post without the previous sanction of the government
Under s.5 of the said Act no school authority shall appoint any teacher or non
teaching staff in contravention of this Act or the West Bengal School Service
Commission Act, 1997 and any such appointee is treated as void.
S.9 gives power to the state government to upgrade an existing school on the
recommendation of the District Level Inspection team.
Explanation I--For the purposes of this section, the expression "upgraded"
means upgradation of a Junior School to a Secondary School, or as the case
may be, from a Secondary School to a Higher Secondary School.
Under section 19A (3)(c) (i) of the West Bengal Board of Secondary Education
Act,1963 the Executive Committee of the Board has the power to recognize
institutions.
The West Bengal School Service Commission Act, 1997 is an important piece of
legislation. "School" is defined in the same manner as in the above 2005 Act
relating to control of expenditure.
S.9 provides that no appointment of a teacher can be made by the Managing
Committee of a school save and except on the recommendation of the regional
school Commission.
Now I come to a most important administrative circular dated 15th February,
2007 with regard to setting up of schools. It is as follows:
"GOVERNMENT OF WEST BENGAL
School Education Department, Secondary Branch
NOTIFICATION
No. 125 SE (S)/ES/S/35-47/2006----15th February, 2007-----WHEREAS the
matters in relation to setting up of Secondary Schools at different places in the
State, at the instance of the School Education Department, has been under
consideration of the State Government for some times past;
AND WHEREAS for selection of location, land or buildings for the purpose of
setting up and operationalizing set up schools, certain guidelines have to be
provided;
AND WHEREAS teachers for the set up schools, have to be appointed only on
recommendation of the West Bengal School Service Commission;
AND WHEREAS non-teaching staff are to be recruited as per the existing rules
framed under the West Bengal Schools (Control of Expenditure) Act, 2005;
AND WHEREAS such schools shall be subject to recognition of the Board or
Council as established under the State Acts, as the case may be;
AND WHEREAS the State Government considers it necessary to order on
Guidelines for the purpose;
It is expedient to issue orders in the matter of set up schools.
ORDER
WHEREAS in some places in the State, there is necessity for setting up of schools in order to cater to the needs of out of children, dropped out children, inaccessibility of nearby schools, lack of absorption capacity of the existing schools and also to cater to the needs of the girls students, students from back ward classes and student from areas with low literacy.
AND WHEREAS there is no Rule on Guidelines for the said purpose; Now, therefore, after careful consideration and notwithstanding anything contained anywhere in any direction to the contrary, the Governor is pleased to decide to set up schools and further pleased to order the following in connection with immediate action by all concerned---
i) That there shall be a District level Visiting Team consisting of three members---one member to be nominated by the Sabhadhipati, Zilla Parishad, one representative of the District Magistrate and the district Inspector of Schools (SE), for inspection of location, land or building for the purpose of proposing selection and establishment of schools. The function of the District Level Visiting Team shall be such as may be directed by the School Education Department;
ii) That on receipt of report from the said Team, the District Magistrate in consultation with the Zilla Parishad shall consider and select location, land, or building and propose set up schools to the School Education Department, having regard to the parameters fixed by the School Education Department for the purpose from time to time;
iii) That the State Government shall have the power to determine norms for deciding the location for set up schools and the number of schools to be set up in a district;
iv) That the decision of the State Government with regard to selection of location, composition of Ad-hoc committee for set up schools and the number of schools to be set up and other related matters in the district, shall be final;
v) That on receipt of proposal from the District Magistrate the School Education Department shall propose an Ad-hoc Committee to the West Bengal Board of Secondary Education/ the West Bengal Council of Higher Secondary Education as the case may be, to approve the Ad-hoc Managing Committee for the set up school. The Managing Committee so approved shall act as per the Management Rules framed under the West Bengal Board of Secondary Education Act, 1963;
vi) That teachers for the set up schools shall be recruited only as per recommendation of the West Bengal School Service Commission as established under the State Act;
vii) That non-teaching staff for the set up schools shall be recruited as per the West Bengal Schools (Recruitment of non-teaching staff) Rules, 2005, as framed under the West Bengal Schools (Control and Expenditure) Act, 2005;
viii) That the staff pattern of the school on recruitment of teaching and non- teaching staff shall be such as determined by the Government from time to time for recruitment in other existing Non-Government aided Schools in the State;
ix) That the set up school so established, under this order shall be subject to recognition by the West Bengal Board of Secondary Education or the West Bengal Council of Higher Secondary Education as the case may be, only on recommendation of the School Education Department.
x) That such school may be established provided necessary provision of funds is made available from the budgetary provision for the Department.
xi) That on the basis of principles as laid down in this order, the State Government, in consistence with the order, shall issue direction to all concerned and fix necessary criteria as and when necessary for the implementation of these orders.
This order shall remain in force until further orders.
By order of the Governor S. MAHAPATRA Joint-Secretary to the Government of West Bengal."
On 25th August, 2005, the district level inspection team made an inspection of the school for the purpose of its upgradation to Class X level. The report of this committee is annexed to the writ petition. In part-C of the report it is stated that there was in existence a Managing Committee of the school duly approved by the board. Their names were also stated in it. It noted that 84 students studied in Class V, In Class VI there were 82 students, in Class VII 85 students and in Class VIII 67 students. In Part G of the report the committee mentioned the names of teaching and non-teaching staff of the school for the unrecognised unit of classes IX and X. It also recorded that those persons served continuously upto the date of its inspection. They opined that Classes IX and X were functional, at page 8 of the report. The District Level Inspection team published its report on 26th August, 2005. On 27th November, 2006, it made a fresh inspection and reaffirmed its earlier findings. After several rounds of litigations the school was upgraded on 12th May, 2011, provisionally for three years from the Session 2011-12 with effect from 1st February, 2011. It appears that the respondents made it clear that the teaching and non-teaching staff would have to be recruited in accordance with the recommendation of the School Service Commission.
The petitioners want the approval of the respondents to their appointment in various posts. The respondents flatly deny this claim. They say that the school was upgraded with effect from 1st February, 2011. Posts became available only after 1st February, 2011. There was no scope of regularising the appointments made before upgradation of the school because those appointments were not legitimate. Recruitment could only be made under the West Bengal School Service Commission Act, 1997 read with Section 5 of the West Bengal School (Control of Expenditure) Act, 2005.
Furthermore, the contention of the respondents is that by a single act, the school was upgraded upto Class VIII. A recognised aided school, cannot have unrecognised classes beyond the recognised limit. A non-government recognised institution either aided or non-aided functions according to the Rules for management of Non-Government Recognised Institutions (Aided and Non-Aided) 1969. Once, the school was recognised, the respondents treated any recruitment to it as public employment which had to follow the procedure for recruitment through the School Service Commission, in accordance with the principles laid down by the Supreme Court in the case of State of Karnataka & Ors. Vs. Uma Devi (3) reported in (2006) 4 SCC 1 and Official Liquidator Vs. Dayanand 7 Ors., reported in (2008) 10 SCC 1. The above points were elucidated by the Commissioner of School Education of West Bengal in his impugned decision dated 7th February, 2014, in compliance with an order dated 31st January, 2011 of Mr. Jusitce Soumitra Pal in the Writ Petition No.10405 (W) of 2011 (Mrinal Kanti Kamar & Ors. Vs. State of West Bengal & Ors.). In this order his lordship directed the Commissioner to consider the representation of the writ petitioners. The representation of these writ petitioners was rejected by the Commissioner citing the above reasons. Hence, they have preferred the instant writ.
AUTHORITIES At this point of time I would like to discuss the authorities on the subject. The first case is Manindra Nath Sinha & Ors. v. The State of West Bengal & Ors. reported in 2006 (2) CLJ (Cal) 489. It is a division bench judgement of our court delivered by Mr. Justice Bhaskar Bhattacharya. Initially the school was recognised upto class-IV by the West Bengal Board of Secondary Education. This was on 1st May, 1994 for three years. The recognition of the school was extended for a further period of three years from 1st May, 1997. The writ petitioners' claimed that they were staff of the school, approval of their appointment and pay for government aided schools teachers from 1st May, 1994. His lordship was of the view that there was no concept of organising teachers or organiser staff. Only the Managing Committee could appoint teachers and staff against permanent vacancies within the sanctioned strength. Nobody had any power under the West Bengal Board of Secondary Act, 1963 and rules framed thereunder to constitute a organising Managing Committee or appoint organiser teachers or other employees before the recognition of the school. In the facts of that case, the constitution of the organising Managing Committee was illegal. Equally, illegal were the appointments of the teachers and staff by it. Accordingly the writ application was dismissed. One year later came another division bench judgement in State of West Bengal & Ors. v. Smritikana Maity & Ors. along with analogous matter reported in 2008 (1) CLJ (Cal) 316. In this case also the school upto of class-V was recognised. Thereafter it was further upgraded. The existing Managing Committee appointed staff for the unrecognised part of the school classes-IX & X. The division bench relied upon the management rules and observed that the Managing Committee had no power to constitute organising staff for classes-IX & X. Hence, those appointments were held to be illegal.
MY ANALYSIS The facts have to be very carefully understood. Only when the facts are correctly appreciated it is possible to apply the law correctly. One little difference in the facts will free the court from being bound by the ratio of a decided case.
Let us see what happened in this case. First, the infrastructure of classes IX and X were set up. We do not know whether a new building was added to the school. Class rooms were designated. They were provided with benches, tables and black boards. Teachers and non-teaching staff were recruited. Classes were started. All this was done by persons constituting a body describing themselves as the organising staff. Now, let us assume that the school upto class-VIII had a Managing Committee. As rightly pointed out by the division bench of our court in State of West Bengal & Ors. v. Smritikana Maity & Ors. reported in 2008 (1) CLJ (Cal) 316 that the Managing Committee of a recognised or aided school had no power to give appointment to teaching and non-teaching staff in the unrecognised part of the school (para 23 of the judgement ). This is only true if at that point of time the newly appointed staff started claiming salary from the government. In this case the organising staff had constituted themselves into a body with the concurrence of the Managing Committee for the purpose of founding and running privately the upper classes of the school.
If the school was neither aided nor recognised and run as a purely private school, it did not need the approval, under Rule-28 of the Management Rules, existing prior to the West Bengal School Service Commission Act, 1997, to appoint any teacher or non-teaching staff. Neither did the management of the school need the recommendation of the School Service Commission to make appointment of teachers.
S.9 of the West Bengal (Control of Expenditure Act),2005 gives power to the State Government to upgrade an existing school. We have seen that in sec 2(m) of the Act school means an aided and recognized school. Therefore in order to make a claim for upgradation, the existing school must be aided and recognized. The school in question was recognized and aided till class VIII after being initially recognized till class IV only. All that the State government needed to upgrade the school further to classes IX and X, was a recommendation from the District Level Inspection team for this purpose. Now, if the said Act of 2005 is so very simplistic with regard to the upgradation of a school, a quagmire of administrative circulars, contrary to its language, intent and purpose need not be considered by this court at all.
Four situations come to my mind:
The first is a school which is recognised and aided upto a certain level, say class VIII. It has a Managing Committee, which is recognised by the authorities. The Managing Committee is desirous of expanding the school by starting classes IX & X. It sets up the infrastructure, but does not appoint any teacher or non-teaching staff. It applies to the government for upgradation. It gets it. Then it applies for sanction of posts of teaching and non-teaching staff, to the government. Then it applies for recommendation of the School Service Commission to fill up the posts. This kind of a process, is conceived by the two division bench judgements of our court in Manindra Nath Sinha & Ors. v. The State of West Bengal & Ors. reported in 2006 (2) CLJ (Cal) 489 and State of West Bengal & Ors. v. Smritikana Maity & Ors. reported in 2008 (1) CLJ (Cal) 316 . Any other mode of recruitment would be illegal.
The second situation will arise when in such a school a group of persons usurp the power of the Managing Committee, constitute themselves as organising staff and start running classes IX & X, without any recognition or aid and without any sanction from the authority or the Managing Committee. This type of organising staff is condemned and has no place in the eye of law, according to the above two authorities.
The third situation is when the government itself is setting up a school in terms of the above circular. The State officials will identify an area for setting up the school, plan its layout and structure, obtain its recognition from the Board. They will set up an ad hoc committee and ask for sanction of the posts of teaching and non teaching staff from the government. Thereafter they will undertake the task of recruitment to these posts on the recommendation of the School Service Commission and the 2005 Act. This case is also covered by the above two judgments.
The fourth situation arises where a school is recognised upto a certain level, say class VIII. The Managing Committee takes no steps for upgradation of the school to classes IX & X. This initiative is taken with the approval of the Managing Committee by another group of persons who set up the necessary infrastructure, organise the teaching and non-teaching staff and start operating the school as a private school. Then they apply for upgradation. In the last case, which is like this case the government must be very careful at the time of upgrading the school. When the higher sections of the school were set up and made functional, they were run as a private institution, seeking upgradation. The school before upgradation had a body of teaching and non- teaching staff. When the government upgraded the school, it did so with its eyes wide open. It knew that the school was staffed. It had the option of saying that since the staff had already been appointed it would not upgrade the school or it would only upgrade the school after the organising staff was discharged. In this case, after upgradation of the school the government cannot say that the teachers and non-teaching staff which have been appointed in the school are all illegal appointees or that the organising staff of the school were illegally constituted. They cannot say that the school should throw out of employment this body of teachers and non-teaching staff who founded the school and start recruiting new persons. That would be very unjust to the persons lawfully organising a school and then seeking upgradation. Upon upgradation of the school the organisers cannot be thrown out of employment and replaced by a new body of persons. Therefore, the government while upgrading the school recognised the number of posts in the school, approved it expressly or impliedly and then upgraded it. It cannot be said in that case on the upgradation of the school there was a vacancy or vacancies in the school to be filled up on the recommendation of the School Service Commission. That is why the state is compelled to regularise certain teaching and non- teaching staff and not regularise the others as observed in a later division bench judgment in State of West Bengal & Ors. v. Husna Banu & Ors. reported in 2010 (4) CHN (CAL) 438.
The last situation was taken note of by this court in the case of Rakhal Chandra Das & Ors. v. The State of West Bengal and Ors. reported in (2013) 4 CLT 330 (HC). The court opined that these appointments were regular and should be legitimised by absorbing those persons into regular service. One of the yardsticks by which it could be ascertained whether the school had a genuine organising committee or not is on the basis of the DLIT report. In this case the two DLIT reports would very decisively show that classes IX and X of the school fell into the last category. The petitioners are teaching and non- teaching staff of the school from the very inception. They were found by the DLIT in two inspections made on 15th September, 2005 and 27th November, 2006, to be working in the school. It is quite well-known that this kind of a teaching and non-teaching staff genuinely constitutes the organising committee of the school and have been previously regularised. This was noted by the Supreme Court in the case of Dhananjoy Karmakar v. State of West Bengal & Ors. reported in 2016 (1) CLJ (SC) 63. The appointments of the writ petitioners can be said to be regular. Since that they were the genuine organising teachers of the school, the state should have recognised their posts while upgrading the school. In fact in this situations the school at its very inception was outside the purview of the West Bengal School Service Commission Act, 1997, in as much as it could not be said that it had any vacancy. If any post has fallen vacant at any later point of time after upgradation of the school to class X it should be filled up in accordance with the said two pieces of legislation of 1997 and 2005.
The respondents were obliged to recognise the teachers and non-teaching staff of the school and approve their appointment.
This writ succeeds. The respondents are directed to approve the appointment of the writ petitioners as teaching and non-teaching staff of the school from the date of upgradation of the school and release all arrears and current service benefits to them within three months of communication of this order. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I.P. MUKERJI, J.)