Calcutta High Court (Appellete Side)
Kakali Basu Chatterjee vs The State Of West Bengal & Ors on 30 January, 2018
Author: Dipankar Datta
Bench: Dipankar Datta
1 08 Pg 30.01.2018 C.A.N. 11485 of 2017 in R.V.W. 274 of 2017 with F.M.A. 1678 of 2013 Kakali Basu Chatterjee Vs. The State of West Bengal & Ors.
Mr. D.N. Roy Mr. Biswarup Nandy Mr. R.K. Shah........for the applicant/appellant R.V.W. 274 of 2017 is an application seeking review of the judgment and order dated July 17, 2017 passed by this Bench while dismissing a writ appeal filed by the applicant challenging a judgment and order of a learned judge of this Court dismissing her writ petition.
It appears that the applicant had carried the judgment and order dated July 17, 2017 before the Hon'ble Supreme Court of India by filing an application for special leave to appeal. The order passed by the Hon'ble Supreme Court on November 06, 2017 on such petition reads as follows:
"The learned counsel for the petitioner seeks leave to withdraw this Special Leave Petition so as to approach the High Court seeking the benefit of the Circular dated 27.01.1995, which, according to the petitioner, enables her to claim salary as a Postgraduate teacher, which duty she had been performing for around 15 years.
The Special Leave Petition is, accordingly, dismissed as withdrawn with the above liberty."
It would appear from the aforesaid extract that the applicant, seeking the benefit of circular dated January 27, 1995, sought for liberty to move this Court for laying a claim on salary consequent to rendering of duty as a post-graduate teacher for 15 (fifteen) years. In 2 the judgment and order dated July 17, 2017, this Bench has categorically held that even if the circular dated January 27, 1995 is applicable insofar as the applicant is concerned, she cannot reap its benefit for the reason that the prior permission of the relevant District Inspector of Schools was not obtained before the Managing Committee of the school asked her to teach Science. It was also specifically held that such circular did not survive upon promulgation of the West Bengal School Service Commission Act, 1997 and the West Bengal Schools (Control of Expenditure) Act, 2005. The relevant findings are set out hereinbelow :
" A bare reading of the aforesaid extract would reveal the anxiety of the Government to address the issues arising out of the prevailing situation in the secondary schools. Clause (i) intended to extend benefits of higher scale of pay to approved assistant teachers of non-Government Secondary Schools or Madrasahs who have been taking classes in subjects relevant to their respective higher qualification, though appointed/approved respectively in different group/subject other than the aforesaid teaching subject. Although Mr. Roy has contended that the appellant is covered by clause (i), we are not inclined to accept his submission for the simple reason that as on 27.01.1995, the appellant was not in service. Clause (ii) starts with the words "in future". If at all, the appellant's case is covered by such clause and it lays down the procedure for appointment of a teacher in a subject upon shifting him from the other subject where he was initially appointed and serving as a teacher, bearing in mind the interest of the students of the schools. However, such shifting is hedged by the pre-condition that permission of the concerned District Inspector of Schools has to be obtained. As has been referred to above, there is no document on record to suggest that the DIoS was approached in this case for permission. In the absence of any such approach, question of the DIoS permitting the school to shift the appellant from the Work Education group to the Science group does not and cannot arise.
Therefore, even if we are inclined to the view that G.O. dated 27.01.1995 survived despite promulgation of the 1997 Act and till such date the 2005 Act was promulgated, the appellant is not entitled to reap the benefit of clause (ii). It is axiomatic that the direction of the school to the appellant to take classes in the Science group instead of taking classes in Work Education not being preceded by any 3 permission obtained from the DIoS, her discharge of duties as a Science teacher was absolutely unauthorized and would automatically render the service discharged by her, without being duly appointed on the post of Science teacher, non-est for the purpose of attracting higher scale of pay.
Having held so, we have no hesitation to further hold that G.O. dated 27.01.1995 did not survive once the 1997 Act came into force. Section 9 of the 1997 Act lays down as follows:
"9. (1) Notwithstanding anything contained in any other law for the time being in force or in any contract, custom or usage to the contrary, appointments to the posts of Teachers and non- teaching staff in a school shall be made by the Managing Committee, by whatever name called, or by the ad hoc committee, or by the administrator, if any (where there is no managing committee), of that school on the recommendations of the Regional Commission having jurisdiction.
(2) Any appointment of a Teacher or a non-
teaching staff made on or after the commencement of this Act in contravention of the provisions of this Act shall be invalid and shall have no effect and the teacher or the non-teaching staff so appointed shall not be a Teacher or a non-teaching staff within the meaning of clause (p) or clause (ia) of section 2, as the case may be."
(underlining for emphasis by us) It is, therefore, clear in the light of the aforesaid statutory provision that no teacher can be appointed except on the recommendation of the regional commission having jurisdiction.
It would also be beneficial, at this stage, to note what are contours of the powers of a managing committee of a recognized school. The powers of the managing committee are engrafted in Rule 28 of the Management of Recognized non-Government Institutions (Aided and Unaided) Rules, 1969 (hereafter the Management Rules). Rule 28 of such rules ordain that the managing committee would have the power, inter alia, to appoint teachers on the recommendation of the school service commission having jurisdiction on permanent posts within the sanctioned strength. Such rules also ordain that the managing committee would have power to appoint teachers in accordance with the directions given by the Director of School Education (hereafter the DSE) in this behalf against leave/lien/deputation vacancies, if available within the sanctioned strength, and to appoint, in accordance with the directions given by the DSE or any officer authorized by him in this behalf, part-time teachers on such terms and conditions as may be specified by the Government. However, there is no power conferred by Rule 28 of the Management Rules on the managing committee of a school to appoint a teacher all by its own. Only in case of leave/lien/deputation vacancies and appointment of part-time teachers, such committee may appoint a teacher but invariably 4 in accordance with the directions given by the DSE. Therefore, even in the light of Rule 28 of the Management Rules, the direction of the managing committee of the school to the appellant to take classes in Science cannot be upheld and, accordingly, it is held that she was an is not entitled to higher scale of pay.
Interestingly, the appellant did not move the Court at any time prior to promulgation of the 2005 Act. We are in agreement with the decision of the coordinate Bench in Tarak Chandra Roy (supra) that once such Act was enforced throughout the State of West Bengal, it had an overriding effect and all circulars/orders contrary to the Act would stand nullified on and from the appointed date. We are, therefore, also of the view that for this additional reason, G.O. 27.01.1995 did not survive post promulgation of the 2005 Act and the appellant could not have based her claim on such Government order. The plinth of the appellant's case, thus, crumbles and she is not entitled to any relief.
We may now advert attention to the decisions of the learned single judges referred to by Mr. Roy. While the decision in Ashok Kumar Panda (supra) runs into 20 pages, the decision in Md. Abdul Gaffar (supra) is short, so much so, that no reason was assigned by the learned judge as to why the litigant before His Lordship was entitled to higher scale of pay. The decision not having discussed the relevant provisions, does not deserve consideration. Insofar as the decision in Ashok Kumar Panda (supra) is concerned, we are afraid we cannot persuade ourselves to agree with the reasoning assigned by His Lordship. The learned judge attempted to make a distinction between appointment and transfer. According to His Lordship, it was not a case of a new appointment of an assistant teacher but a case of in-house transfer by the DIoS concerned. The provisions of the 1997 Act, to our mind, were not read correctly by the learned judge. We have no doubt in our mind that at best the said decision is one which turns on its own facts and cannot be considered to have laid down a law which could be binding on other coordinate single benches. Since the propriety of the decision is not the subject matter of our examination, we refrain ourselves from making any further observation except that such decision cannot have any application in the facts of the present case where the permission of the DIoS, as referred to clause (ii) of G.O. 27.01.1995, is lacking......."
Mr. Roy has not been able to show any apparent error in the judgment and order under review.
In that view of the matter, the applicant is not entitled to the benefit of the circular dated January 27, 5 1995. The review application is thoroughly misconceived and the same as well as the application filed in connection therewith (C.A.N. 11485 of 2017) stands dismissed.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously.
(DIPANKAR DATTA,J.) (DEBI PROSAD DEY, J.)