Calcutta High Court
Sri Nikhil Chandra Pal And Ors. vs The West Bengal Board Of Secondary ... on 15 May, 2003
Equivalent citations: (2003)3CALLT261(HC)
Author: J.K. Biswas
Bench: Ashok Kumar Mathur, Jayanta Kumar Biswas
JUDGMENT J.K. Biswas, J.
1. This Letters Patent appeal is against the judgment and order dated 23rd April 2000 passed in Writ Petition No. 543 of 2002. The writ petition was filed by the four appellants. By the impugned judgment and order the learned single Judge was pleased to dismiss it.
2. While hearing the application for interim order, we took up the hearing of the appeal itself, by treating it as on the day's list by consent of the parties.
3. The writ petition was filed challenging a decision dated 29th January 2002 given by the Director of School Education, West Bengal (in short "D.S.E."). The decision of the D.S.E. was that the appellants were not entitled to get approval of their appointment as organizer teachers of "Thiba Anchal High School" (hereinafter referred to as "the school") situated at Pose Office: Bhatra, District: Birbhum of the State of West Bengal.
4. The relevant portion of the decision of the D.S.E. is quoted below:-
"Heard the parties. Consider the submission including the representation of the petitioners. Perused all papers including the report of the District Inspector of Schools dated 29-1-99 as were placed before me. It appears that Thiba Anchal Jr. High School was not permitted to run un-recognised units of Class IX and X by the West Bengal Board of Secondary Education to send up candidates for Madhyamik Examination. It appears from the Resolution Book of the Managing Committee that there was no existence of classes IX and X in the said School at the point of time. It reveals that the Secretary and the Head of the Institution did not mention the name of the petitioner in the column of the format of the Inspection Report. West Bengal Board of Secondary Education in terms of its Circular No. 12/78 dated 31-12-78 has disallowed all the Schools to send up candidates in the Madhyamik Examination. It means that the petitioners were so called engaged by the School authority at a time when the said School had no permission to send up candidates in the Madhyamik Examination and naturally the School had no authority to open un-recognized units of classes IX and X. In such case, the appointment of petitioners can not be claimed to be the organizing staff and their services cannot be approved since the names of the petitioners do not appear in the Resolution Book of the Managing Committee of the School, on other records and documents of the school and in the report of the District Inspector of School and in the final inspection report leading to up-gradation of the School."
5. With effect from 1st May 1991 the school was recognized by the West Bengal Board of Secondary Education (in short "Board") as a four class Junior High School. On 14th May 1998 The District Level Inspection Team (in short "D.L.I.T.") inspected it for the purpose of this up-gradation to a High School. In its report dated 21st May 1998 the D.L.I.T. mentioned that class IX and X were not there in the school. The Education Department of the State Government by a letter dated 24th July 1998 recommended its up-gradation. Thereupon, the Board upgraded it to a High School, and granted its permission to open class IX from 1st May 1988, and Class X from 1st May 1999. By the concerned letter dated 7th August 1998, the Board also granted it permission to admit students in Class IX within 31st August 1998. One of the conditions of the up-gradation was that the appointment of teachers for classes IX and X should be made according to the staff pattern prescribed by the D.S.E.
6. After its up-gradation the appellants raised a claim that classes IX and X of the school were actually started in the year 1993; and on being appointed by its Managing Committee, all of them joined the service on 9th July 1993 for teaching the students of the newly opened classes IX and X. They alleged that the District Inspector of Schools (in short "D.I.") did not mention their names in the D.L.I.T. report as organizer teachers, although on the date of inspection they were present in the school. The school authority denied that the appellants were organizer teachers of the school. Its case was that class IX of the school was started only after the Board by its letter dated 7th August 1998 communicated its decision to up-grade the school and none of the appellants were ever appointed in the school in any capacity.
7. On 10th Decemberl998 the appellants approached this Court by filing a writ petition [No. 882(W) of 1998]. By an order dated 23rd December 1998, passed in it the D.I. was directed to submit a report about the position of teaching and non-teaching members of the staff working in the school. The D.I. complied with the order by submitting his report dates 29th January 1999. He stated that the teaching and non teaching staff of the school was comprised of those persons whose names were mentioned in the D.L.I.T. report. Finally this writ petition was disposed of by an order dated 15th March, 2001; by it, the D.S.E. directed to take a decision by treating the said writ petition and a connected application filed therein, as the appellants' representation. The D.S.E. gave his decision dated 29th January 2002.
8. Challenging the decision given by the D.S.E. on 29th January 2002 the writ petition (out of which this appeal has arisen) was filed. The appellants' case in the writ petition was that (a) in the facts and circumstances of the case, the D.S.E, should have held that the appellants were organiser teachers of the school; (b) in terms of Circular No. 2605 dated 20th December, 1984 (as amended on 5th December, 1987, 8th September, 1988, and in the year 1992) they were entitled to get approval of their appointment as organiser teachers of the school; and the D.S.E., while rejecting their claim, completely overlooked the provisions of this Circular.
9. The learned single Judge was pleased to reject the writ petition by the following order:--
"This is a writ petition challenging an order dated January 29, 2001 passed by the Director of School Education, Government of West Bengal, rejecting the claim of the writ petitioner for approval as an alleged organizing teacher of the School concerned, The Director of School Education after hearing all concerned has come to a finding of fact that the petitioner was not an organizing teacher.
It appears that the School concerned without any authority started classes 9 and 10 and the Managing Committee without following the due process of law appointed the petitioner as a teacher to teach students in classes 9 and 10. As such, the petitioner cannot be termed as an organizing teacher. In my view, the Director of School Education committed no jurisdictional error which calls for interference by this Court under Article 226 of the Constitution of India.
Accordingly, the writ petition is dismissed. However, no order is passed as to costs.
All parties are to act on the signed copy of the minutes of this order on the usual undertaking."
10. Before us, the learned counsel for the appellants has raised the following contentions: (a) in the facts and circumstances of the case, the D.S.E. should have held that the appellants had worked as organizer teachers of the school prior to its up-gradation with effect from 1st May 1998, and as such they were entitled to get approval of their appointment on the basis of the Government orders on the subject; (b) since by working for several years as organizer teachers the appellants acquired an equitable right, for approval of their appointment in the up-gradation school, the D.S.E,. should have referred the matter to the State Government in terms of Clause 4 of the Government order No. 117 dated 24th February 1995; and (c) the judgment and order passed by the learned single Judge is non speaking and unreasoned. He has relied on the Supreme Court's decision in the case of Arun Kumar Rout and Ors. v. State of Bihar and Ors., Babita Prasad and Ors. v. State of Bihar and Ors., 1993 (suppl 3) SCC 268 and on the scope of the Government order dated 24th February 1995, he has relied on an un-reported single Bench decision of this Court dated 13th May, 2002 given in writ petition No. 8288(W) of 2000 (Purna Chandra Ghorai and Ors. v. The State of West Bengal and Ors.). The learned counsel appearing for the respondents has strongly disputed the correctness of the contentions raised by the learned counsel for the appellants.
11. After hearing the learned counsel for the parties and considering the materials on record, and the decisions relied on by the learned counsel for the appellants, we find that there is absolutely no merit in the present appeal, and there is no reason to interfere with the Impugned judgment and order.
12. Admittedly, the D.L.I.T. did not mention in its report that the appellants were organizer teachers of the school. The school authority stated that the appellants were not organizer teachers of the school. The D.I. also said the same thing. The substance of the appellants' case before the D.S.E. was that the report of the D.L.I.T. and D.I., and the records produced by the school, all were false. It is therefore clear that the question whether the appellants were organizer teachers of the school turned out to be highly disputed question of fact before the D.S.E.
13. No provision of the West Bengal Board of Secondary Education Act, 1963, or the Rules framed thereunder, empowers the D.S.E., or casts a statutory duty on him, to act as an adjudicating forum or agency for giving a decision on a disputed question of fact. For the purpose of taking a decision regarding approval of appointment, he is required to make the necessary enquiry on the basis of the admitted official records and documents. He makes the limited enquiry only for satisfying himself that the approval sought or claimed conforms to the prevalent Government orders. Not being a judicial or quasi judicial authority, he cannot undertake a fact finding enquiry. As he does not hold a trial, he has no power to give a finding on a disputed question of fact. A Court order directing him to consider some representation and give his decision, does not and cannot confer such a power on him. Such a power can be given to him only by a competent forum or authority. As on date, no such power has been given to him.
14. Judging from the above noted existing position of law, we are unable to accept the contention that, in the facts and circumstances of this case, the D.S.E. should have held that the appellants were organizer teachers of the school. In our opinion, no duty was cast on the D.S.E. to give a finding as to, between the authorities and the appellants, which side was speaking the truth. He was required to consider the appellants' claim on the basis of the official records and documents produced by the authorities. We have seen that by examining the official records and documents, like the D.L.I.T. report, the report of the D.I., and the school records, the D.S.E. found that the appellants were not organizer teachers of the school. Hence we do not find any infirmity in his decision.
15. Regarding approval of appointment of the organizing staff in newly upgraded recognized school, on 30th September 1992 the Government order No 895 was issued to supersede the previous Circulars and Orders. This was again superseded by the Government Order No. 117 dated 24th February, 1995, The appellants claim benefit of Clause 4 of this order and for the same they have relied on the single Bench decision in the case of Puma Chandra Ghorai & Ors. (supra). Suffice it to say that the Government order dated 24th February 1995 applies only to those persons who are found to be organizing staff of a newly upgraded recognized school, and the appellants, having been found to be not the organizer teachers of the school, are not entitled to any benefit under this Government orders. Besides, this Clause 4 (which reads: "4. No exception to the aforesaid norms shall be made in any case without specific prior approval of the State Government.") evidently does not confer any benefit on the organizing staff. It rather; puts a prohibition on the authority. Therefore the single Bench decision has no application to this case. On the facts of this case, the principles laid down in the cited Supreme Court decisions are also are of no help to the appellants. We find that on the writ petition the appellants were not entitled to any relief. Hence we find no ground to interfere with the impugned judgment and order.
For the foregoing reasons we find no merit in this appeal; and accordingly it is hereby dismissed. The application having become infructuous, stands disposed of as such. There will be no order as to costs.
A.K. Mathur, C.J.
I agree.