Calcutta High Court (Appellete Side)
(Uttam Kumar Ghosh & Bharati Mondal vs West Bengal Organizer Primary ... on 8 December, 2017
Author: Dipankar Datta
Bench: Sahidullah Munshi, Dipankar Datta
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Sahidullah Munshi
CAN 11579 of 2016
(Uttam Kumar Ghosh & Bharati Mondal......Applicants)
+
CAN 12020 of 2016
(Naba Parjay West Bengal Primary Organizer Teachers' Association
.....Applicant)
+
CAN 57 of 2017
(Aminur Mondal & 140 others.........Applicants)
+
CAN 573 of 2017
(Md. Habibullah & 54 others...... Applicants)
+
CAN 610 of 2017
(Sk. Mannan Ali & 2 others......Applicants)
+
CAN 665 of 2017
(Nabaparjay West Bengal Primary Organizer Teachers' Association & its
Secretary.....Applicants)
+
CAN 738 of 2017
(West Bengal Organiser Primary Teachers' Association & 7 others.....Applicants)
+
CAN 1200 of 2017
(Nowsad Ali & 35 others.....Applicants)
2
+
CAN 1699 of 2017
(Asim Kumar Das.......Applicant)
+
CAN 1802 of 2017
(Sangathak-O-Parathamik Sikshak Akata Sangha, & The Secretary.....Applicants)
+
CAN 1902 of 2017
(Rekha Barai (Mallick) & 27 others.....Applicants)
+
CAN 2027 of 2017
(Susanta Kumar Panja & 40 others.....Applicants)
+
CAN 2423 of 2017
(Kartick Chandra Roy & 29 others......Applicants)
in
FMA 294 of 2005
The Chairman, Ad-hoc Committee
v.
West Bengal Organizer Primary Teachers' Association & ors.
For the applicants : Mr. Ashok Kumar Banerjee,
Mr. Bikash Ranjan Bhattacharya,
Mr. Kalyan Bandyopadhyay,
Sk. Oli Mohammad,
Mr. Smarajit Sen,
Mr. Santi Ranjan Das,
Mr. Kshetra Prasad Mukhopadhyay,
Md. Salahuddin,
Mr. Anirban Ghosh,
Sk. Nizamuddin,
Mr. Biswaroop Bhattacharya,
Mr. Saugato Bhattacharya,
Mr. Saurav Bhagat,
Mr. S. Chatterjee,
Mr. Gautam Dey,
3
Mr. Anupam Das,
Ms. Rituparna Sengupta,
Mr. Subrata Mukherjee,
Mr. Sobhan Majumder,
For the State : Mr. Abhrotosh Majumder,
Mr. T.M. Siddique,
Mr. Bhaskar Prasad Vaisya,
Mr. Suman Dey,
Mr. Nilotpal Chatterjee.
Hearing concluded on : September 14, 2017
Judgment on : December 8, 2017
DIPANKAR DATTA, J. :
1. The Hon'ble Supreme Court of India (hereafter the SCI) by an order dated October 6, 2016 (which we propose to reproduce in its entirety at a later part of this judgment) disposed of several interim applications (I.A.s) presented before it [in connection with two disposed of civil appeals] with certain directions. The said order dated October 6, 2016 required a Division Bench of this Court to look into all the orders passed by the SCI from time to time on the subject and to pass appropriate order(s) preferably within January 31, 2017. By this common judgment and order, we shall decide the point(s) that the SCI required by the said order to be adjudicated as well as the applications listed above which were presented thereafter.
4
2. A conspectus of the facts leading to the order dated October 6, 2016 of the SCI, in some detail, seems to be indispensable for the present exercise.
3. The West Bengal Organizer Primary Teachers Association (hereafter the petitioning association) and two officer bearers thereof [Shri Sajani Kanta Naskar, General Secretary (hereafter Sajani Kanta) and Jasimuddin Ahmed, President (hereafter Jasimuddin)] (hereafter the writ petitioners, wherever referred to collectively) had invoked the writ jurisdiction of this Court by presenting a writ petition, registered as W.P. 15632 (W) of 1998 (hereafter the said writ petition). They sought to espouse the cause of several organizer teacher members of the petitioning association who were aggrieved by the failure, neglect and/or inaction of the District Primary School Councils of Burdwan, Murshidabad, Malda, Nadia, Birbhum, Hooghly, Purulia, North Dinajpur, Bankura, South 24-Parganas, North 24-Parganas, Howrah and Jalpaiguri, in not permitting such members to appear in interviews in connection with recruitment of primary teachers in schools within the jurisdiction of such councils. The prayers in the said writ petition read as follows:
"i) to act in accordance with law;
ii) to allow the organiser teachers members of the petitioner No. 1 as named in Annexure "A" hereto to appear in the Interview for being considered along with other candidates for appointment as Primary Teacher; B) A writ in the nature of certiorari calling upon the respondents to produce all the relevant records of this case before your Lordship so that on perusing the same conscienable (sic conscionable) justice may be done by and between the parties;
C) A writ in the nature of Prohibition restraining the respondents Chairman of the District Primary School Council not to hold interview for appointment of Primary teacher in their respective District, without allowing the organiser-teachers-members of petitioner No. 1 association to appear in such interview;5
D) Rule Nisi in terms of prayer (A), (B) and (C) above and to make the Rule absolute if no or insufficient causes are being shown."
4. The said writ petition was moved on August 31, 1998 before a learned Judge of this Court. The writ petition was heard-in part and adjourned till September 1, 1998. Upon hearing the parties, His Lordship was pleased to pass the following interim order on September 1, 1998:
"Let this matter appear before the appropriate Bench 4 weeks after Puja Vacation. In the meantime, respondents shall file Affidavit-in-opposition within 2 weeks after Puja Vacation, reply thereto, if any, within 2 Weeks thereafter.
Without prejudice to the rights and contentions of the parties, there will be an interim order as follows :-
It is submitted by the Learned Lawyers for all the districts excepting South and North 24-Parganas that no date of interview has been fixed. So question of passing any interim order affecting their client does not arise. More so, in the Annexure 'A' to the writ petition there is candidate who falls within the aforesaid districts.
Accordingly, the writ petition should not be entertained at all. Mr. Banerjee, Learned Advocate for the petitioners has drawn my attention to the paragraph 17 of the petition that he has given the Annexure 'A' as one of such relevant list. He has also prayed for leave to file a further chart covering all districts. Accordingly, his client has prepared a supplimentary (sic supplementary) affidavit enclosing the other charts. Leave is granted to file such Supplementary Affidavit. As no date of interview has been fixed so far as other districts are concerned the Learned Advocate- on-record of other districts shall give a notice as and when the date of interview will be fixed, to the learned Advocate-on-record to the writ petitioners who then will be at liberty to make an application for relief in the pending matters. So far as other districts viz., South and North 24-Parganas are concerned. Learned Lawyers submit that interview are going to be completed. In fact, in the District of North 24-Parganas, panel has already been prepared and that panel is under challenge in this Court and a proceeding is pending.
In that view of the matter, there will be no interim order as aforesaid relating to districts of North 24-Parganas where the interview has taken place. In any event, if any date is fixed for taking future interview, then similar notice should be given by the Learned Lawyer on record for the respondent to the Learned Lawyer on record to the writ petitioners and the writ petitioners in that event will be at liberty to make an application for interim relief at that time. So far as the District of South 24-Parganas is concerned, the respective candidates would be at liberty to make an application before the 6 concerned Primary District School Council stating all facts and eligibility conforming to the decisions rendered by the Division Bench of this Court reported in 1991 CLJ 165. The said council shall scrutinise their claims and if it finds that their claims are justified and comes within the purview of the aforesaid decisions as well as the Supreme Court decision on this subject, then their cases shall be considered along with other eligible candidates."
5. We have also found from the records several other applications at the instance of the writ petitioners. CAN Nos. 427 of 2002, 428 of 2002, 517 of 2002, 518 of 2002 and CAN 9976 of 2002 titled "application for appropriate order upon taking into consideration of the subsequent events" were listed before the self-same learned Judge since the writ petition had been heard-in-part by His Lordship. The prayer in all these applications was for deletion of names of the specified number of members from the chart marked as an annexure to a supplementary affidavit filed in the writ proceedings. By an order dated April 8, 2002, all the applications were allowed and it was directed that the "names of these persons are deleted from the Chart given in the supplementary affidavit filed in the instant writ petition". The persons who were excluded by such order were granted liberty to initiate separate proceedings, if they were so advised. Further, by an order of even date passed by the learned Judge on CAN 1432 of 2002, "names mentioned in the supplementary affidavit concerning the District of Murshidabad" were deleted as prayed for with similar liberty to the persons excluded as above. CAN 9976 of 2002 was allowed by an order dated January 17, 2003 directing that the "persons mentioned in this application be deleted from the array of parties" and "any benefit which might have been derived" in terms of earlier orders of His Lordship "be struck out and should not be extended even if its is extended that would be cancelled and set aside". We have also found CAN 7 953 of 2002 (an application for amendment of the cause title of the said writ petition). The same was allowed by an order dated April 8, 2002 directing that "amendment to the cause title of the writ petition be effected in accordance with schedule mentioned in the application itself". In the schedule, what appears is this : "The words 'Ad-hoc Committee' occurring after the word "Chairman in the description of each of the respondents nos. 5 to 17 in the cause title of the main writ petition be deleted."
6. During the pendency of the said writ petition, two more applications for addition of parties were filed viz. CAN 298 of 2003 [at the instance of the writ petitioners] and CAN 1673 of 2003 [at the instance of one Ashutosh Paria (hereafter Ashutosh) and one Md. Mannan Ali (hereafter Mannan)].
7. In Annexure-A to the said writ petition (from pages 22 to 77), we found names of 507 persons. They, according to the writ petitioners, were organizer teachers and members of the petitioning association. CAN 298 of 2003 included particulars of teachers of 8 districts who, allegedly, were not included in Annexure-A to the writ petition due to inadvertence. Thus, by filing CAN 298 of 2003, particulars of several other teachers were sought to be included on the ground that they too were members of the petitioning association. Consequently, it was prayed as follows:
"a) by granting leave to your petitioners add the names of the left out members-organiser Primary teachers of the eight (8) District as given in the eight charts annexed hereto, in the chart of members already annexed to supplimentary (sic) supplementary affidavit to the main writ petition filed in the instant matter.
And
b) Any further order or orders as to Your Lordships may deem fit and proper."8
8. Ashutosh and Mannan, in CAN 1673 of 2003, claimed that Sajani Kanta and Jasimuddin had ceased to be the Secretary and the President of the petitioning association and that in their place they had been elected as President and Secretary respectively. In such circumstances, it was prayed in CAN 1673 of 2003 as follows:
"In the aforesaid facts and circumstances it is most humbly and respectfully prayed that your Lordships would be graciously pleased to allow this application and to add the applicants as Writ Petitioner Nos. 2 and 3 in the said Writ Application being W.P.No. 15632 (W) of 1998 and to pass direction for amendment of Cause Title of Writ Petition and/or to pass such order/orders as to Your Lordships may deem fit and proper."
(underlining for emphasis by us)
9. CAN 298 of 2003 and CAN 1673 of 2003 were listed for consideration before the said learned Judge on October 31, 2003. The order passed on that date records as follows:
"The applicants in CAN No. 298 of 2003 and CAN No. 1673 of 2003, being represented by Mr. Ashok Banerjee, learned Senior Counsel and Mr. Kamalesh Bhattacharjee, learned Counsel, respectively, are added as petitioners, without prejudice to the rights and contentions of the parties. It is made clear that the claims and contentions of the applicants would be decided and adjudicated separately and if it is found that they do not have any case or claim in this case, then their names shall be struck out from the array of the petitioners.
Order 1 Rule 10 of the Code of Civil Procedure, read with Rule 53 of the Writ Rules enable the Court to add or to strike out any person at any stage of the proceeding. Therefore, there will be no harm to add the aforesaid applicants as party petitioners for the time being.
Accordingly, the applicants in both the applications shall jointly prepare a cause title, mentioning their names, along with the existing petitioners. However, the names of the aforesaid applicants should be written in red ink, in order to identify these persons separately.
The writ petition shall be heard fortnight hence. Meanwhile, amendment in the cause title shall be incorporated. A copy of the writ petition shall be 9 supplied by the Advocate-on-record of the petitioner to the Advocate-on- record of Mr. Kamalesh Bhattacharjee, on usual terms."
(underlining for emphasis by us)
10. We looked into the records of the said writ petition and did not find in the array of writ petitioners the names of Ashutosh and Mannan substituted in place of Sajani Kanta and Jasimuddin. What we found was an order dated November 14, 2003, which is quoted below:
"Leave is given to file supplementary affidavit to Mr. Banerjee's clients and copy of the same shall be supplied to all the parties including the added respondents. Parties will be entitled to deal with the same, if so adviced, by another affidavit-of-rejoinder.
The matter is adjourned for a fortnight. In terms of the earlier order the Cause Title in red ink has been shown. Let this Cause Title be treated as part of the Original writ petition. Copies of the amended Cause Title have been served upon the parties."
11. Upon vigorous search, we could find 'the cause title in red ink' to be part of the said writ petition. It appears on perusal thereof that based on the order dated October 31, 2003 allowing CAN 298 of 2003, persons whose names appeared against sl. nos. 4 to 231 had been impleaded as additional petitioners. Ashutosh and Mannan were also impleaded as additional petitioners (petitioner nos. 232 and 233) upon CAN 1673 of 2003 being allowed. We noticed that the names of the added parties were type-written in red and not written 'in red ink'.
12. We may record at the risk of repetition that by filing CAN 1673 of 2003, Ashutosh and Mannan had prayed for impleadment as petitioners 2 and 3 in place of Sajani Kanta and Jasimuddin and not as additional petitioners as projected in 'the cause title in red ink'. No objection was raised by any of the parties in regard to preparation of such 'cause title' and once the same was taken on record, it 10 became a part of the said writ petition in terms of the order dated November 14, 2003.
13. The said writ petition came to be disposed of by the learned Judge by judgment and order dated July 22, 2004. Relevant portions from the said judgment read as follows:
"By this writ application the petitioners prayed for getting a chance to participate in the selection process along with other eligible candidates who were and are sought to be invited in accordance with the present recruitment rules.
The petitioners have annexed a chart enlisting their members organizing teachers in all over West Bengal indicating specifically the district wise membership. During pendency of these applications some of the teachers opted to go out from this litigation and to file separate application to enforce their claims. At the same time a new group of teachers came and claim themselves to be members of the writ petitioner No.1. Their additions were allowed by an appropriate order of this Court, of course they raised serious objection against their addition contending they were not members of the writ petitioner NO.1. In my view member or no member of the organizing primary teachers in view of the aforesaid Division Bench judgment are entitled to get relief as it has been prayed in the writ petition. I think if their claim and contention is examined along with other original writ petitioners then the possibility of multiplicity of judicial proceedings can certainly be avoided. The effect of the Division Bench Judgment appears to benefit all the organizing teachers likewise members of the first writ petitioners, therefore, on that ground I cannot non-suit the added respondents. Having heard the respective contention of the learned Counsels and considering the materials of the writ petition I think the issues involved at the present moment have now become non-issue. As by the interim order passed by the Court on 1st September 1998 the case has been decided almost finally. At the ad interim stage by the aforesaid order I directed the District Primary Council concerned who were holding interview to consider the cases of the members of the writ petitioners No.1 as has been indicated in the list annexed to the writ petition and to allow them to participate in the selection process pursuant to the division Bench Judgment. The Councils shall scrutinize their claims and if they found that their claims are justified and do come within the purview of the aforesaid decision then their cases shall be considered along with other eligible candidates. Subsequently similar order was passed in relation to other District Primary School Councils. I am told by the learned Counsel that the aforesaid order have been carried out and they allowed some of the members of the writ petitioner No.1 to participate in the selection process.11
The aforesaid interim orders were not appealed against and I think they have reached its finality. Therefore, I confirm orders passed previously. I direct all the District Primary School Councils to consider the application which might be made by each of the members of the writ petitioner No.1 who are on records in the writ proceedings and also by the clients of Mr. Kamalesh Bhattacharjee and to allow them to participate in the selection process which might be taken in future, provided of course their claim of organizing teacher must be scrutinized. Meaning thereby, it has to be examined whether they are still running their respective primary organizing schools and further they did not get any chance previously to participate in the selection process.
Therefore, the respective Primary District Councils concerned shall invite in writing to each of the members of the writ petitioner No.1 and whose names have not been struck out from this writ proceeding and the Clients of Mr. Bhattacharya, to enable them to apply stating their eligibility. It is made clear sponsoring their names from the employment exchange is not required in view of the Division Judgment as above.
A point was taken by the contesting respondents that the writ petition is bad for non-joinder of causes of action and have not paid sufficient court fees. I think this point is meritless as the action have been brought for and on behalf of large number of organizing teachers and by their Associations. This action is permissible under the law as their grievances are identical under Order 1 Rule 1 of the Code of Civil Procedure read with Rule 53 of Writ Rules.
However each of the added respondents shall pay separate Court fees as leviable on the writ petition on the date of passing order adding them as parties, since they get relief at per with the petitioners. Thus the application is disposed of accordingly, without awarding any order as to costs.
The petitioners have been fighting for a long time in this matter and their rights have to some extent, accrued on the strength of the Division Bench judgment as above. Therefore, the maximum age limit is relaxed to the extent of 50 years as on date and beyond 50 years none of the petitioners who is otherwise eligible in terms of this judgment and order will be entitled to apply."
14. The Chairman of the Ad hoc Committee, North 24-Parganas District Primary School Council carried the aforesaid judgment and order in appeal, registered as MAT 1909 of 2004. A Division Bench of this Court presided over by the Hon'ble the Chief Justice by judgment and order dated May 3, 2006 partly set aside the judgment and order under appeal. It was, inter alia, observed upon acceptance of 12 the submission on behalf of the appellant that "there cannot be any duty on the part of the District Councils to locate each and every organizer teacher and to give notice to him and invite him for competing with the other candidates". It was, accordingly, held that "it would be enough for the District Councils to publish in a paper its intentions to fill up the posts so that an opportunity becomes available for the organizing teachers to apply" in terms of the earlier Division Bench decision reported in 1997(1) CLJ 165 (West Bengal Board of Secondary Education v. State of West Bengal) for being considered. It was also observed that "selection and the procedure thereof shall be in terms of the rules applicable, meaning thereby they would be required to produce some evidence that they are organizing teachers in genuine schools which is in existence". In so far as relaxation of age upto 50 years is concerned, the Division Bench recorded that no reason for such direction was discernible. In the view of the Division Bench, the learned Judge had no jurisdiction to issue such direction and accordingly, did not uphold the same.
15. Feeling aggrieved thereby, the writ petitioners challenged the appellate judgment and order dated May 3, 2006 of the Division Bench before the SCI by filing SLP (C) 1525 of 2006.
16. An independent special leave petition [SLP (C) 14897/2008], challenging the self-
same appellate judgment and order, was presented by Mannan and Ashutosh before the SCI. Although in CAN 1673 of 2003 referred to above Mannan and Ashutosh had claimed that they had replaced Sajani Kanta and Jasimuddin as Secretary/President of the petitioning association, such association, Sajni Kanta 13 and Jasimuddin were impleaded as respondents 2, 3 and 4 in such special leave petition.
17. The aforesaid special leave petitions came up for consideration before a Bench of two learned Judges of the SCI on February 2, 2011. Upon hearing learned advocates for the parties, the delay in filing of the special leave petition of Mannan and Ashutosh was condoned. The SCI thereafter proceeded to hear the parties on the merits of the special leave petitions and disposed of the same by the following order:
"In course of hearing of these two special leave petitions, Mr. Bhaskar P. Gupta, senior advocate appearing for respondent Nos. 2 and 3 in SLP (C) No.15253/2006 and for respondent Nos. 5 and 6 in SLP (C) No.14897/2008, stated that in case the members of the petitioner Association and the petitioners in the other SLP make applications in response to any current advertisements or advertisements that may be issued in future under Rule 8 of the West Bengal Primary School Teachers Recruitment Rules, 2001 for appointment as Primary School Teachers, their applications will be considered, along with all other eligible candidates, in accordance with the provisions of the aforesaid Rules.
The offer made by Mr. Gupta is not of much help to the petitioners because by an amendment introduced in the Rules, an age limit is prescribed and all the petitioners have by now become overage. They are, for that reason, no longer eligible to apply for appointment as Primary School Teachers. Having regard to the fact that this litigation is going on for the past over 25 years and further having regard to the fact that during this period the West Bengal Primary School Teachers Recruitment Rules were framed in the year 2001 and were subjected to amendments in May and July, 2009, by which the upper age limit of 40 years is prescribed for appointment as Primary School Teachers, we deem it just and proper to direct that in case of the 1257 members of the West Bengal Organizer Primary Teachers Association [petitioner No.1 in SLP (C) No. 15253/2006] and in case of all those persons who were parties before the High Court in Writ Petition No. 15632 (W) of 1998, the upper age limit shall be reckoned with reference to September 14, 1995 [the date on which this Court passed orders in SLP (C) No. 3594/1995 from which the claim of the petitioners emanate]. In other words, in case the 1257 members of the petitioner Association and those persons who were parties before the High Court in the aforementioned writ petition satisfy the age criterion as on September 14, 1995, their applications shall be duly 14 considered in terms of the other eligibility criteria prescribed under the Rules as they stand on date.
In case any applicant claims relaxation of age on the basis of this order, it will be open to the concerned authorities to satisfy themselves as to whether the concerned applicant was a party before the High Court in the aforementioned writ petition with reference to the application of impleadment made before the High Court on which orders were passed on October 31, 2003. It is further made clear that if a formal order of impleadment was not made in case of anyone for non-payment of court fee, as directed by the High Court, that shall not be taken into account to reject his/her claim for relaxation of age.
The special leave petitions are disposed of with the aforesaid observations and directions.
All pending applications for impleadment are rejected."
(underlining and bold font for emphasis by us)
18. After disposal of the special leave petitions by the order dated February 2, 2011, extracted (supra), a couple of contempt petitions were filed by Mannan and Ashutosh, as well as by the writ petitioners. Certain interlocutory applications were filed by the aggrieved parties being I.A. No.15 in SLP (C) 14897/2008 and I.A. Nos.13 and 16 of 2013. After hearing I.A. Nos. 13 and 16 of 2013 on May 9, 2013, a Bench of two learned Judges of the SCI passed the following order:
"We have heard Mr. Shanti Bhushan, learned senior counsel for the applicants in I.A. No. 16, Mr. A.K. Ganguli, learned senior counsel for the applicants in I.A. No. 13 and Mr. Jaideep Gupta, learned senior counsel for the West Bengal Board of Primary Education (for short 'the Board'). This order shall apply to 1257 members of the West Bengal Organizer Primary Teachers' Association (for short 'the Association') who were the writ petitioners before the High Court in the Writ Petition. On 2.2.2011, this Court disposed of the Special Leave Petitions filed by the Association and others. Inter alia, in that order, this Court observed as follows:
' ***** (not reproduced since it has been extracted above' The above order has not been complied with in its letter and spirit necessitating diverse applications being filed by the parties. By these applications, it is prayed that the respondents may be directed to take urgent steps for appointment of applicants as Primary School Teachers as per West Bengal Primary School Teachers Recruitment Rules, 2001 (for 15 short '2001 Rules') as amended by Notification dated 19.5.2009 and the order dated 2.2.2011 passed by this Court.
Mr. Jaideep Gupta, learned senior counsel for the Board, however, submitted that on coming into force of the Right of Children to Free and Compulsory Education Act, 2009 (for short 'RTE Act') that prescribes the eligibility of appointment of Primary School Teachers, concerned 1257 members of the Association were not eligible.
We find that the Central Government in exercise of its power under sub- section (2) of Section 23 of the RTE Act has granted relaxation to the State Government of West Bengal in respect of the minimum teacher qualification norms notified by the National Council for Teacher Education (NCTE) on 25th August, 2010 under RTE Act insofar as they refer to classes I-VIII, as under:
(a) 2-year Diploma in Elementary Education (by whatever name known) for appointment of a teacher in classes I-V; and
(b) 1-year Bachelors in Education (B.Ed.) for appointment of a teacher in classes VI to VIII.
In light of the above relaxation, in our considered view, the Board has to consider the eligibility of 1257 members of the Association who were writ petitioners before the High Court in the manner already indicated in the order dated 02.02.2011 passed by this Court.
We find from the available material that the School Education Department of the Government of West Bengal has undertaken to direct the Board by making application forms available at every District Primary School Council office and publish fresh advertisement in two widely circulated newspapers in the State. The School Education Department has also undertaken to direct the Board to extend the date of submission of application forms so that no candidate covered by the order of this Court dated 02.02.2011 is inconvenienced.
Having regard to the above undertaking, the order passed by this Court, on 2.2.2011 and the Notification dated 1.6.2011 issued by the Central Government under sub-section (2) of Section 23 of the RTE Act, we direct the Board as under:
(i) The Board shall publish fresh advertisement calling upon applications from the concerned candidates as early as possible and in no case later than by 25.5.2013;
(ii) The Board shall make application forms available at every District Primary School Council office;
(iii) The eligibility of the 1257 candidates, who were the writ petitioners before the High Court and in respect of those the order dated 2.2.2011 came to be passed, shall be seen in accord with 2001 Rules for appointment as Primary School Teachers as modified by Notification No. 268.-SE(P)/10M-06/2009 dated 19.5.2009, Notification dated 23rd August, 2010 issued by the National Council for Teacher Education under RTE Act and the 16 Notification norms notified by the NCTE in Notification dated 25th August, 2010 have been relaxed.
The entire exercise of selection process pursuant to the advertisement, which is to be issued by the Board before 25.5.2013, shall be completed by July 15, 2013.
I.A. Nos. 13 of 2013 in SLP (C) No. 15253 of 2006 and I.A. No. 16 of 2013 in SLP (C) No. 14897 of 2008 stand disposed of."
(underlining for emphasis by us)
19. By an order dated September 6, 2013, I.A. No.1 of 2013 in I.A No.13 in SLP (C) 15253/2006 and I.A. No.1 of 2013 in I.A. No.16 in SLP (C) 14897/2008 were not pressed and were, accordingly, dismissed in view of an advertisement dated August 24, 2013 issued by the State of West Bengal.
20. Thereafter I.A. No.2/2015 had been filed by the writ petitioners in I.A. No.13/2013 in SLP (C) 15253/2006. The said application together with I.A. No.17 in SLP(C) 14897/2008 came up for consideration before a Bench of three learned Judges of the SCI on April 16, 2015. Upon hearing the parties, the following order was made:
"The applicants shall give the following details along with an affidavit, with regard to the organizer teachers who claim right to be appointed as primary teachers in pursuance of order passed by this Court dated 2nd February, 2011, in SLP(C)No.15253 of 2006 and connected matter.
1. The name and address of the organizer teacher and the date on which he became the member of the Association concerned before the High Court.
2. Number of the petition wherein association was the petitioner.
3. Date of birth of the teacher concerned.
4. The school in which he worked as an organizer teacher and the period of work.
5. The evidence to show that the said teacher had become member of the Association before the petition was filed in the High Court. The afore-stated details shall be furnished by the learned counsel for the applicant to the learned counsel appearing for the State of West Bengal Board of Primary Education within two weeks from today.17
The information provided by the learned counsel for the applicant shall be verified by Respondent-Board and they shall file its response within two weeks thereafter.
List the matters on 12th May, 2015, at 3.00 p.m. as part-heard."
(underlining and bold font for emphasis by us)
21. Such order was followed by an order dated September 22, 2015, reading as follows:
"List these applications on 2nd December, 2015, at 2.00 p.m., so as to enable the Verification Committee consisting of (i) Mr. Arnab Roy, IAS, (ii) Mr. Manik Bhattacharya, President, West Bengal Board of Primary Education and (iii) Mr. S.S. Imam, Joint Secretary, School Education Department, Government of West Bengal, to examine the eligibility of the persons whose names have been handed over to the Committee by the West Bengal Organizers Primary Teachers Association and other persons who consider themselves to be eligible in terms of order dated 2nd February, 2011, as modified by order dated 9th May, 2013."
22. The subsequent order dated December 2, 2015 contained the following directions:
"List these applications on 28th January, 2016 at 2.00 p.m. so as to enable the Verification Committee appointed by our order dated 22nd September, 2015 to submit a list so as to give the following details in a tabular form with regard to 1257 candidates:-
1. The name and address of the organizer teacher and the date on which he became the member of the Association concerned before the High Court.
2. Number of the petition wherein the Association was the petitioner.
3. Date of birth of the teacher concerned.
4. The school in which he worked as an organizer teacher and the period of work.
5. The evidence to show that the said teacher had become a member of the Association before the petition was filed in the High Court.
6. Whether the candidate was qualified as on 14th September, 1995 to be a teacher.
The details so submitted will also show in the table as to whether (i) any one from them has expired, (ii) crossed the age limit or (iii) not qualified as stated in the order dated 16th April, 2015.
The case of 5616 teachers who claim to be petitioners before the High Court shall be considered on the next date of hearing.
18The Verification Committee shall not entertain any new application henceforth."
(underlining for emphasis by us)
23. While directing listing of the matter on April 7, 2016, the same Bench on January 28, 2016 made the following order:
"The case has peculiar facts and circumstances.
In pursuance of order dated 2nd December, 2015, the verification Committee has verified the details with regard to 1257 Organizing Teachers and has come to its final conclusion that out of 1257, 203 Organizing Teachers, who were parties in the petitions filed before the Calcutta High Court, are below the age of 60 years as on today and they are also qualified to become teachers as per Rules which were in force as on 14th September, 1995. Names of those 203 Organizing Teachers have been given in the list at Annexure R-6 to the Report of the Verification Committee constituted in terms of the order dated 2nd December, 2015. The Report has been handed over to us in Court today, which is taken on record.
The said Organizing Teachers shall submit relevant documents concerning their age and their qualification, to the Verification Committee within four weeks from today and after verification thereof in presence of the concerned Organizing Teachers, the Verification Committee shall come to a final conclusion with regard to veracity of the certificates and thereafter shall recommend the names of the qualifying Organized Teachers to the State within four weeks thereafter. Upon receipt of the said list, the State shall give appointment to the persons recommended by the Verification Committee within four weeks from the date of receipt of the list. It has been submitted by the learned counsel appearing for some of the Organizing Teachers, who are not within the list of afore-stated 203 persons, that they are also eligible for appointment but because of some mistake their names have not been included in the list.
It if is so, it would be open to them to approach the Verification Committee on or before 29th February, 2016, so as to show that they are duly qualified as other Organizing Teachers as per Rules in force as on 14th September, 1995 and they are below the age of 60 years as on today. We are sure that as and when such an application is made, the Verification Committee will look into their grievance and take appropriate action as soon as possible, preferably within six weeks thereafter.
So far as other 5616 Organizing Teachers (as per the list furnished by Mr. Amarjit Singh Bedi, the learned counsel), who claim to be parties before the High Court in Writ Petition No.15632 of 1998, are concerned, it has been submitted that all relevant details with regard to their qualification and age, details of which are to be examined by the Verification Committee, have already been given to the learned counsel appearing for the respondent-19
State. The verification details shall be put in a tabular form, as per order dated 2nd December, 2015.
The afore-said material shall be placed before this Court within eight weeks from today.
List these matters on 7th April, 2016, at 2.00 p.m."
(underlining and bold font for emphasis by us)
24. Alleging contempt of the order dated January 28, 2016, the writ petitioners instituted proceedings registered as Contempt Petition (C) No.406 of 2016 before the SCI. Such petition along with I.A. Nos. 2/2015 and 3/2015 in I.A. No.13/2013 in SLP (C) 15253/2006 together with a host of interlocutory applications (I.A. Nos. 17 and 18 of 2014, etc.) in I.A. No.23/2015, I.A Nos. 26 and 27, etc. came up for consideration on August 10, 2016 before the same Bench of the SCI. While directing issue of notice to the alleged contemnors, all the matters were directed to be listed on August 31, 2016.
25. All the matters were posted for hearing on August 31, 2016, when the following order was passed:
"The senior learned counsel appearing for the State of West Bengal has submitted that in pursuance of the earlier order of this Court dated 28.01.2016, an advertisement had been published and in pursuance of the said advertisement, out of 203 candidates, 182 candidates had appeared before the Verification Committee. Out of the said 182 candidates, 13 candidates had crossed the age limit of 60 years and it was found that 169 candidates were found to be eligible for the appointment. The Report regarding the said 169 candidates is being scrutinized at present and needful shall be done in due course.
So far as 21 candidates, who could not remain present before the Verification Committee, they may remain present before the Verification Committee on 5.9.2016 at 11.00 A.M. at the same place which has been notified in the advertisement along with the requisite information which has been called for through the Public Notice dated 18.08.2016, which was published on 20.08.2016.
Stand over to 22.09.2016 at 3.00 P.M."20
26. The last order, relevant for our purpose, was passed by the Bench on October 6, 2016 referred to in paragraph 1 (supra). We reproduce it in its entirety hereinbelow:
"We have heard the learned counsel for the parties at length. Upon hearing the concerned counsel and upon perusal of the relevant record and the orders passed by this Court from time to time, we had passed the following order on 28th January, 2016:
'In pursuance of order dated 2nd December, 2015, the verification Committee has verified the details with regard to 1257 Organizing Teachers and has come to its final conclusion that out of 1257, 203 Organizing Teachers, who were parties in the petitions filed before the Calcutta High Court, are below the age of 60 years as on today and they are also qualified to become teachers as per Rules which were in force as on 14th September, 1995. Names of those 203 Organizing Teachers have been given in the list at Annexure R-6 to the Report of the Verification Committee constituted in terms of the order dated 2nd December, 2015. The report has been handed over to us in Court today, which is taken on record.
The said Organizing Teachers shall submit relevant documents concerning their age and their qualification, to the Verification Committee within four weeks from today and after verification thereof in presence of the concerned Organizing Teachers, the Verification Committee shall come to a final conclusion with regard to veracity of the certificates and thereafter shall recommend the names of the qualifying Organized Teachers to the State within four weeks thereafter. Upon receipt of the said list, the State shall give appointment to the persons recommended by the Verification Committee within four weeks from the date of receipt of the list.' We direct that the 173 candidates, as referred to in our order dated 28.1.2016 passed in I.A. Nos. 2 & 3 of 2015 in I.A. No.13/2013 in SLP(C) No.15253/2006, shall be appointed as Primary Teachers with effect from 1.10.2016 and their appointment letters shall be given to them before 31st October, 2016.
In our order dated 28.1.2016, we had observed that:
'It has been submitted by the learned counsel appearing for some of the Organizing Teachers, who are not within the list of afore-stated 203 persons, that they are also eligible for appointment but because of some mistake their names have not been included in the list.
If it is so, it would be open to them to approach the Verification Committee on or before 29th February, 2016, so as to show that they are duly qualified as other Organizing Teachers as per Rules in force as on 14th September, 1995 and they are below the age of 60 years as on today. We are sure that as and when such an application is 21 made, the Verification Committee will look into their grievance and take appropriate action as soon as possible, preferably within six weeks thereafter.
So far as other 5616 Organizing Teachers (as per the list furnished by Mr. Amarjit Singh Bedi, the learned counsel), who claim to be parties before the High Court in Writ Petition No.15632 of 1998, are concerned, it has been submitted that all relevant details with regard to their qualification and age, details of which are tobe examined by the Verification Committee, have already been given to the learned counsel appearing for the respondent-State. The verification details shall be put in a tabular form, as per order dated 2nd December, 2015.' As far as the aforesaid observations are concerned, the details which must have been prepared by the Verification Committee, shall be placed in a tabular form and shall be placed before the Calcutta High Court. We are sure the High Court shall look into the same and pass an appropriate order in pursuance of the directions given as afore-stated as well as other orders passed by this Court.
If the afore-stated exercise has not been done so far, the same shall be finished as soon as possible, preferably before 31st October, 2016. If any matter with regard to similar petition on the subject matter of this litigation is pending before the High Court, it would be open to the High Court to decide the same in accordance with law on its merits and after taking into account all the order passed by this Court from time to time. We are sure that High Court will look into such matter/matters and dispose of the same as soon as possible, preferably before 31st January, 2017. All pending matters on the subject with this Court shall be transmitted to the High Court as soon as possible along with copies of all orders passed so that the High Court can do the needful.
We request the Hon'ble Chief Justice of the Calcutta High Court to place all these matters before a Division Bench so that a final decision can be taken by the High Court and further time, with regard to filing of appeal/appeals can be avoided.
All the applications are disposed of as they have been transmitted to the Calcutta High Court and the contempt petition stands discharged. We clarify that this order has been passed in the peculiar facts of these matters, therefore, this order shall not be treated as precedent."
27. By an order dated December 15, 2016, the Hon'ble the Acting Chief Justice assigned F.M.A. 294 of 2005 (disposed of) and a host of other pending writ appeals and writ petitions to be dealt with by the regular Division Bench. By another order dated January 6, 2017, the Hon'ble the Acting Chief Justice 22 directed that the 103 writ petitions mentioned therein be heard along with F.M.A. 294 of 2005. A subsequent administrative order of the Hon'ble the Acting Chief Justice dated May 8, 2017, passed in circumstances to be narrated hereafter, directed us to consider and decide all the applications and the writ petitions referred to therein.
28. Since the SCI desired a decision preferably by January 31, 2017 but the same could not be adhered to, we owe an explanation therefor to keep matters straight.
29. We had commenced hearing on January 13, 2017. The order of the SCI dated October 6, 2016 was perused. Having regard to the nature of grievance raised by the aggrieved organizer teachers and the in-depth scrutiny that had to be conducted, it was felt difficult to give the final decision by January 31, 2017. While adjourning hearing till January 24, 2017, all the parties were requested to cooperate to facilitate expeditious decision in terms of the desire of the SCI. Directions were issued so that the report of the Verification Committee could be placed before us. Since none had appeared for the State, Mr. Abhratosh Majumdar, the learned Government Pleader was called upon by us to render proper assistance. On January 24, 2017, Mr. Majumdar prayed for time on the ground that a review of the order dated October 6, 2016 had been applied for by the State. Hearing was, accordingly, adjourned till February 6, 2017. However, hearing could not commence even on February 6, 2017. Time was prayed for on behalf of the State citing that the review petition before the SCI was marked defective on the ground that it was not accompanied by the relevant special leave petition. Recording that it was for the State to explore ways and means for 23 obtaining copy of the special leave petition and to remove the defect, and that no further prayer for adjournment would be entertained, hearing was adjourned till February 27, 2017. On that date, we were informed of certain directions having been made by the SCI on February 17, 2017 on a contempt application that had been moved, despite pendency of the review petition. An order had been made by the SCI requiring compliance of the order dated October 6, 2016 by the State subject to the final outcome of the review petition. Mr. Majumder having prayed for two weeks' time, we directed placement of the report of the Verification Committee on March 14, 2017 without prejudice to the rights of the State in the pending review petition. On March 14, 2017, an undated report of the Verification Committee was placed before us by Mr. Majumder. It was noted from the report that none of the 5616 candidates, who were considered, had produced evidence to show their educational qualifications. This finding in the report apparently was at variance with the observation in the order of the SCI dated January 28, 2016 to the effect that all relevant details with regard to qualification and age had been made over to the learned counsel for the respondent-State before the SCI. While adjourning hearing till March 20, 2017, the State was directed to file an affidavit and place on record whatever materials had been handed over to its learned counsel in course of hearing before the SCI on January 28, 2016. Other parties were also granted liberty to file affidavit(s), if so advised. It was also observed that the cases of the other candidates would be considered after our deliberation on the aspect of acceptability of the Verification Committee's report filed on that day. Effective hearing commenced on March 20, 24 2017 and continued on April 5, 2017. Liberty to take exception to the report of the Verification Committee had been granted to the 5616 candidates by order dated March 20, 2017. Such exception not having been filed, prayer for extension of time was made on April 5, 2017. As a last chance, extension was allowed and all the matters were directed to be listed on May 3, 2017. Soon thereafter, there was a change of roster for which the two of us got separated. One of us (Sahidullah Munshi, J.) was given the determination to hear suits. Since we had already commenced hearing, it was considered necessary that the matters should be dealt with in the manner as desired by the SCI by us. For the reasons recorded in an order dated May 3, 2017 of the Regular Bench taking up 'Education' matters, a fresh administrative order dated May 8, 2017 of the Hon'ble the Acting Chief Justice followed whereafter hearing resumed on June 16, 2017. The parties addressed us on June 29, July 10 and 21, August 17 and September 14, 2017 i.e. dates on which we could assemble after carving out time from our respective regular determination. The volume of papers that had to be meticulously looked into inevitably resulted in devoting more time than usual so that a quietus, at this end, could be given to a long standing dispute between the organizer teachers and the official respondents. It would, therefore, appear that the inability to decide the issues by January 31, 2017, as desired by the SCI, was entirely due to circumstances beyond our control.
30. In the last couple of months, we have dealt with quite a few writ petitions. While some have been dismissed for default, others have either been dismissed on merits, or affidavits have been called for prior to giving decision on its merits or 25 released from the list on the ground that the same were not even presented before October 6, 2016. Insofar as the present applications are concerned, we have heard learned advocates representing the respective parties at length. All the claims of organizer primary teachers, who feel left out from the process of verification as directed by the SCI, as raised in these applications, shall be dealt with by this common judgment and order.
31. The scope of inquiry, in view of our reading of the orders of the SCI dated February 2, 2011 (the parent order disposing of the special leave petitions), May 9, 2013, April 16, 2015, December 2, 2015, January 28, 2016 and October 6, 2016 (the last order), is limited. Prior to formulating the points of inquiry, we may observe that the essence of all the orders read together is that not a single genuine organizer teacher who was a party to the said writ petition, either as a member of the petitioning association or individually, and is otherwise eligible for appointment as a primary teacher, should be deprived. The SCI having identified 1257 members of the petitioning association as parties to the said writ petition and that their cases ought to be considered in the manner as directed, there can hardly be any scope for debate in respect of the number of teachers who were represented by the petitioning association before this Court and individual teachers who were parties eo nomine. However, certain other groups have also claimed that they were parties to the said writ petition and, therefore, such claims too require due consideration and decision in deference to the orders of the SCI. We shall waste no further time to so consider and decide, but would 26 preface our discussion mindful of what the SCI required from the organizer teachers and how they reacted.
32. By its order dated April 16, 2015, the SCI clearly required an affidavit to be filed containing details in respect of "(i) the name and address of the organizer teacher and the date on which he became the member of the Association concerned before the High Court; (ii) number of the petition wherein association was the petitioner; (iii) date of birth of the teacher concerned; (iv) the school in which he worked as an organizer teacher and the period of work; and (v) the evidence to show that the said teacher had become member of the Association before the petition was filed in the High Court". Furnishing of details in respect of the aforesaid 5 (five) points, in a tabular form, was reiterated by the order dated December 2, 2015. Insofar as the 5616 candidates are concerned, they were also required by the order dated January 28, 2016 to furnish details in a tabular form as directed by the earlier order dated December 2, 2015. What stands out is that each organizer teacher claiming appointment was required to furnish, inter alia, evidence that he/she was a member of the petitioning association prior to August 24, 1998.
33. We may now summarize below what, in our perception, are the points of inquiry:
1. Whether the said 5616 candidates/organizer teachers were parties to the said writ petition?
2. Whether 5616 candidates/organizer teachers represented before the SCI by Mr. Amarjit Singh Bedi, learned counsel possess the requisite qualifications for being appointed as organizer teachers?27
3. Whether 1054 candidates (the figure is arrived at upon subtraction of 203 from 1257 candidates identified by the SCI to be petitioners in the said writ petition) are also eligible to be appointed as primary teachers?
4. Whether any candidate/organizer teacher who has not filed an affidavit annexing thereto evidence of being a member of the petitioning association prior to presentation of the said writ petition on August 24, 1998, entitled to any consideration of his candidature for appointment as primary teacher?
5. Whether the other candidates/organizer teachers who have filed independent writ appeals/writ petitions/interlocutory applications, entitled to be appointed as primary teachers?
34. First, we shall take up the claims of the 5616 candidates/organizer teachers.
35. Mr. Majumdar was called upon by us to place the report of the Verification Committee which had, in terms of the order of the SCI, looked into the particulars furnished by Mr. Amarjit Singh Bedi in respect of the 5616 candidates/organizer teachers. In compliance therewith, an undated report was placed before us. It appears on perusal of such report that none of the 5616 candidates/organizer teachers was found eligible for appointment as a primary teacher. The ground assigned for not considering all of them to be eligible, is common i.e. none of them had furnished their educational qualifications as on September 14, 1995 (the cut-off date in terms of the order of the SCI dated February 2, 2011). It was contended by Mr. Majumdar, by referring to orders dated December 2, 2015, January 28, 2016 and October 6, 2016 that the 5616 28 candidates/organizer teachers were required to give details of their educational qualifications so as to enable the Verification Committee assess their eligibility for appointment on the posts of primary teachers as on September 14, 1995; but for the reasons best known to them, they withheld their educational qualifications.
36. On perusal of the report, we found the submission of Mr. Majumdar to be correct.
37. Mr. Kalyan Kumar Bandopadhayay, learned senior advocate representing the said 5616 candidates/organizer teachers could not deny that there had been a serious error on their part in not furnishing their educational qualifications for consideration of their respective candidature. However, Mr. Bandopadhayay made an emotional appeal and implored for giving one further opportunity to the said 5616 candidates/organizer teachers to indicate in a chart their educational qualifications as on September 14, 1995 to enable the Verification Committee decide on their future, one way or the other.
38. Such submission was vehemently opposed by Mr. Majumdar. According to him, it was sort of a one-time opportunity extended by the SCI in extraordinary circumstances to the said 5616 candidates/organizer teachers to disclose their particulars so that the Verification Committee could discharge its duty as per the judicial mandate but having failed and neglected to do so, he contended that the said 5616 candidates/organizer teachers were not entitled to any mercy.
39. While we were deliberating whether the said 5616 candidates/organizer teachers should be given an opportunity as prayed for by Mr. Bandopadhayay, it was contended before us by Mr. Majumdar that even if the said 5616 29 candidates/organizer teachers had furnished particulars of their educational qualifications, they would otherwise not qualify for being considered for appointment as primary teachers. He invited our attention to the order passed by the SCI on February 2, 2011 and thereafter to the other orders dated May 9, 2013, April 16, 2015, December 2, 2015, January 28, 2016 and October 6, 2016. According to him, the SCI intended to grant relief only to those organizer teachers who were parties to the said writ petition and not to anyone else. Referring to the application for addition of party filed by Ashutosh and Mannan (CAN 1673 of 2003), it was submitted that in-fighting between two rival groups of the petitioning association is clearly discernible and there has been concerted attempts, with ulterior motive, to project candidates as organizer teachers and as members of the petitioning association so as to derive advantage of the benevolence showered by the SCI as a one-time measure. It was also contended that the SCI never recognized the said 5616 candidates/organizer teachers as members of the petitioning association and the same would clearly be evident from the order dated December 2, 2015.
40. This led to the advent of Mr. Bikash Ranjan Bhattacharya, learned senior advocate for the said 5616 candidates/organizer teachers. He submitted that in view of the orders dated January 28, 2016 and October 6, 2016, it would be clear that the scope of scrutiny by this Court was limited to find out as to whether the said 5616 candidates/organizer teachers were qualified to be appointed as primary teachers as on September 14, 1995, nothing more nothing less; accordingly, this Court may not examine the point as to whether the said 5616 30 candidates/organizer teachers, as members of the petitioning association, were parties to the said writ petition.
41. The submission of Mr. Majumdar appears to us to be sound. The said writ petition no doubt was presented to espouse the cause of the members of the petitioning association and not any individual grievance of Sajani Kanta or Jasimuddin. Annexure 'A' to the said writ petition contained the list of 507 members and it was initially claimed that they were the members of the petitioning association. By filing several applications from time to time, the writ petitioners claimed that certain members had been inadvertently left out while some were erroneously included whose names were required to be deleted. All such applications were disposed of, but there can be no gainsaying that the SCI having identified 1257 organizer teachers as members of the petitioning association by the order dated February 2, 2011 (whereby the special leave petitions were disposed of) as well as by the subsequent clarificatory order dated May 9, 2013, the question of reopening and re-examining the question as to how many organizer teachers were indeed the members of the petitioning association as on August 24, 1998 i.e. the date of presentation of the said writ petition, may not arise for our consideration. For all intents and purposes, the no. 1257 stands crystallized. So far as the writ petitioners are concerned, they are precluded from claiming that anyone else other than the said 1257 organizer teachers is a member of the petitioning association.
42. Let us now examine how far the claim of Ashutosh and Mannan that 5616 candidates/organizer teachers had also been included in the array of parties by 31 reason of the order dated October 31, 2003 of the learned Judge while disposing of applications for addition of parties (CAN 298 of 2003 and CAN 1673 of 2003) is acceptable. The specific allegation in CAN 1673 of 2003 was that Sajani Kanta and Jasimuddin had ceased to be the Secretary and the President of the petitioning association and, therefore, it was claimed that they should be replaced by Mannan and Ashutosh. If the learned Judge had allowed such prayer, Sajani Kanta and Jasimuddin (who were petitioners 2 and 3) should have been replaced by Mannan and Ashutosh as the substituted petitioners 2 and 3 and such amendment would have been shown in the cause title. However, since such an order was not passed, no such amendment is found. On the contrary, what we find is that Mannan and Ashutosh were included as petitioners in addition to, inter alia, Sajani Kanta and Jasimuddin and the applicants in CAN 298 of 2003. In CAN 1673 of 2003, Mannan and Ashutosh did not claim any relief that the other organizer teachers (any left out members of the petitioning association) should also be considered to be the members of the petitioning association. In fact, in the application the particulars of the left out members had not been given by them. Such particulars may have been given in the affidavit-in- reply filed to the affidavit-in-opposition of the writ petitioners to CAN 1673 of 2002 but without any specific order of the learned Judge that the members whose names were included in the list annexed to the affidavit-in-reply are also members of the petitioning association and were inadvertently left out, we cannot treat them to be the members of the petitioning association as on date the said writ petition was presented i.e. August 24, 1998.
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43. We may have to, at this stage, refer to the order dated October 31, 2003 passed by the learned Judge once again to finally decide as to whether the said 5616 candidates/organizer teachers could be considered members of the petitioning association and also as to whether they were made parties to the said writ petition or not. The said order has been extracted above. It refers to a 'cause title' showing the added petitioners in red ink. We have noted the contents of such 'cause title' hereinabove. The said 'cause title' is presumed to have been jointly prepared by the parties, as required by the order dated October 31, 2003, and the same having been accepted by the learned Judge and directed to be treated as part of the said writ petition, it is not open to the said 5616 candidates/organizer teachers to contend that since Ashutosh and Mannan had been impleaded as added petitioners they could represent the causes of the said 5616 candidates/organizer teachers too. The learned Judge having decided the said writ petition considering the fact that the petitioning association was representing 507 teachers mentioned in Annexure A to the said writ petition plus the added petitioners (nos.4 to 233 pursuant to the order dated October 31, 2003) together with addition, alteration and deletion prayed for by the writ petitioners, and Ashutosh and Mannan having only prayed in CAN 1673 of 2003 that they should be impleaded in place of Sajani Kanta and Jasimuddin as petitioners 2 and 3 which did not, in fact, materialize, and inter alia all four i.e. Sajani Kanta, Jasimuddin, Ashutosh and Mannan having been shown as petitioners in the said writ petition, we are unable to hold that the petitioning 33 association was representing the cause of the said 5616 candidates/organizer teachers before the learned Judge.
44. A point has been raised in the written notes of argument filed by Mr. Gautam Dey, learned advocate-on-record for the said 5616 candidates/organizer teachers that they were not required to be impleaded in the writ petition eo nomine, and that the said writ petition was not instituted for the benefit of Sajani Kanta and Jasimuddin eo nomine or even the added writ petitioners or added respondents, but as an action which was "prayed for on behalf of a large number of organizing teachers and by their Association."
45. There can be no quarrel with regard to the proposition that if the memorandum so permits, a society registered under the Societies Registration Act may, through its President/Secretary/authorized representative, as the case may be, institute proceedings in a court of law for the benefit of all the members of the society and if an order is passed granting the relief that is claimed, all the members of the society would be entitled to reap its benefit. However, that does not mean that any person who is not a member of the society on the date the proceeding is instituted can claim at a subsequent stage that he is also to be extended such benefit on the ground that he too is a member of the society. If any dispute arises as to whether he is a member of the society or not, such dispute has to be resolved first before the benefit can be extended to him.
46. Here, we repeat, the petitioning association initially espoused the cause of 507 members. Applications were filed in numbers seeking addition, alteration and deletion of names of members. Such applications created division amongst the 34 members of the petitioning association resulting in formation of a new association i.e. Naba Parjaya West Bengal Primary Organizer Teachers' Association (hereafter the Naba Parjaya WBPOTA). The said 5616 candidates/organizer teachers in order to reap the benefit of the orders passed by the SCI from time to time were required to satisfy us, at the least, in terms of the orders dated April 16, 2015 and December 2, 2015, that they were members of the petitioning association on August 24, 1998, when the said writ petition came to be presented. No evidence as required in terms of clause 5 of the tabular form was placed on affidavit or otherwise. Mere pleading, without any evidence, would not suffice. Law is well settled that in a writ proceeding when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter affidavit, as the case may be, the Court will not entertain the point. If any authority is required, one may refer to the decision of the Supreme Court in Bharat Singh v. State of Haryana (AIR 1988 SC 2181). It is indeed surprising as to why Ashutosh and Mannan, if they were really aggrieved, did not in course of hearing of the writ petition before the learned Judge or in course of hearing of the appeal before the Division Bench bring it to the notice of the concerned Benches that persons who had a legitimate grievance to espouse had been left out. Rather curiously, Ashutosh and Mannan despite having been impleaded as additional petitioners 35 in the said writ petition never cared to represent their cases before the Division Bench and the appeal was allowed to be contested, inter alia, by Sajani Kanta and Jasimuddin. The contention that Ashutosh and Mannan were unaware of an appeal having been carried from the judgment and order dated July 22, 2004 is difficult to accept, considering that they claimed to be the President and the Secretary of the petitioning association. Surely, they would not have allowed imposters to defend the appeal much to the detriment and prejudice of the genuine members of the petitioning association.
47. Be that as it may, the original writ petitioners have not accepted the said 5616 candidates/organizer teachers as members of the petitioning association. If indeed the said 5616 candidates/organizer teachers were members of the petitioning association, they ought to have placed before us some evidence of having been enlisted as members of the petitioning association prior to August 24, 1998 when the said writ petition was presented. No such evidence is available in the records. We are, therefore, of the considered opinion that the said 5616 candidates/organizer teachers cannot be regarded as members of the petitioning association as on August 24, 1998 for the purpose of extending relief as granted by the SCI to the other members for whom the said writ petition was presented.
48. That apart, the order dated April 6, 2015 required the details to be furnished by all the organizer teachers on affidavits. We have been informed by Mr. Majumdar, which has not been disputed on behalf of the 5616 candidates/organizer teachers, that no such affidavit as required by the said order was filed by any one of them.
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49. In view of our aforesaid findings, the said 5616 candidates/organizer teachers are not entitled to consideration of their claims by the Verification Committee even if we were minded to grant them one further opportunity to furnish particulars of their educational qualifications.
50. Interestingly, there is another set of written notes of arguments filed on behalf of Naba Parjaya WBPOTA represented by Golam Mostafa, Assistant Secretary. On perusal thereof we find that Naba Parjaya WBPOTA was formed by almost all the members of the petitioning association and was registered as a society on December 18, 2008 with Mohammad Bilal as the Joint Secretary and Ashutosh as the President thereof. It is, therefore, clear as crystal that the members of Naba Parjaya WBPOTA, which came into existence on December 18, 2008, could not have claimed any benefit flowing from the orders of the SCI, in particular the original order dated February 2, 2011 whereby the special leave petitions were finally disposed of, inter alia, with the direction that 1257 members of the petitioning association and those who were parties to the said writ petition would be entitled to consideration.
51. We, thus, answer point 1 in paragraph 33 (supra) in the negative. Point 2 of the same paragraph is rendered irrelevant having regard to our answer to point 1. We, thus, refrain from answering it.
52. Our answer to points 4 and 5 in paragraph 33 (supra) would also be in the negative for the reasons that follow while we deal with the other applications, one after the other.
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53. CAN 11579 of 2016, presented on December 7, 2016, is an application filed by Uttam Kumar Ghosh and Bharati Mandal. The applicants claim that they were applicants in I.A. 25 of 2016 filed before the SCI along with large number of members of the petitioning association and seeks consideration of their claims as organizer teachers. There is no averment in the application as to whether the applicants as well as the other organizer teachers, whom they seek to represent (included in Annexure-2), were members of the petitioning association when the said writ petition was presented or whether they were subsequently impleaded as additional petitioners thereto or not. In view thereof, we are of the considered opinion that these applicants have no right to claim the benefit of the orders passed by the SCI. CAN 11579 of 2016, accordingly, stands dismissed.
54. CAN 12020 of 2016, presented on December 14, 2016, is an application at the instance of Naba Parjay West Bengal Primary Organiser Teachers' Association, represented by its Assistant Secretary, Golam Mostafa Gazi. The prayer is for an order on the respondents to comply with the order dated October 6, 2016 passed by the SCI. It is pleaded in paragraph 7 of the application that various associations including the 'Association of your applicant' had challenged the order of the Division Bench before the SCI by filing SLP No. 14897 of 2008 whereupon the order dated October 6, 2016 was passed. The applicant did not carry the decision of the Division Bench dated May 3, 2006 in appeal before the SCI and, therefore, there appears to be a mis-statement in paragraph 7. In any event, filing of this application by Golam Mostafa Gazi is questioned in CAN 665 of 2017 by Mannan. In view of our decision that relief granted by the SCI cannot 38 be extended to organizer teachers who were neither members of the petitioning association nor parties to the said writ petition, members of a new association cannot claim any relief. CAN 12020 of 2016 is, accordingly, dismissed.
55. CAN 57 of 2017, presented on January 4, 2017, is an application at the instance of 141 applicants hailing from the district of Dakshin Dinajpur. The applicants have averred that they had filed an application for impleadment before the SCI and that the said application was disposed of "since the original Special Leave Petition was already disposed of". Neither the number of the application nor the date of its disposal is mentioned in the application. These applicants have also not pleaded as to whether on the date of presentation of the said writ petition they were members of the petitioning association. For the reasons assigned above while dismissing CAN 11579 of 2016, we dismiss this application too.
56. CAN 573 of 2017, presented on January 18, 2017, is an application at the instance of 55 applicants, hailing from different districts of Bengal namely Burdwan, Murshidabad and Nadia. They claim to be members of the West Bengal Organizer Primary Teachers Association (Rural & Urban). The pleading reveals the existence of a fourth association of organizer primary teachers. The registration certificate of this association has not been annexed to the application. It is also not clear from the application as to whether the applicants were members of the petitioning association on August 24, 1998, when the said writ petition was presented. For the same reasons as assigned above, this application does not merit any consideration and, accordingly, stands dismissed. 39
57. CAN 610 of 2017, presented on January 19, 2017, is an application filed by Mannan, Nabaparjay West Bengal Primary Organizer Teachers Association and its Secretary seeking leave to add a member of the Verification Committee as a respondent; to direct the Verification Committee to submit a report containing the names of the said 5616 candidates; to issue letter of appointments to the said 5616 candidates who are found to be eligible by the Verification Committee, with effect from October 1, 2016, and an ad interim order directing the respondent no.4/State to keep 5616 posts of primary school teachers vacant till disposal of the application. We have already observed that no relief can be granted to the members of the Nabaparjay West Bengal Primary Organizer Teachers Association. Question of directing the Verification Committee to consider their claims afresh also does not arise, on facts in the circumstances. CAN 610 of 2017 is also dismissed.
58. CAN 665 of 2017, presented on January 20, 2017, is again an application at the instance of Nabaparjay West Bengal Primary Organizer Teachers Association and its Secretary, represented by Mannan. Contents of the said application reveal that a prayer has been made therein to dismiss CAN 12020 of 2016 filed by Golam Mostafa Gazi. We need not examine the point raised in this application, since CAN 12020 of 2016 has already been dismissed. Suffice it to record that this application bears testimony to the fact that even within Nabaparjay WBPOTA, there is a sharp division amongst the members and with ulterior motive, parties have approached this Court to try their luck and somehow derive undue advantage of the order(s) of the SCI which were confined to a specific class 40 as mentioned in the order dated February 2, 2011. CAN 665 of 2017, accordingly, is dismissed.
59. We now take up CAN 738 of 2017 for decision. Presented on January 25, 2017, it is at the instance of 8 applicants. The affidavit accompanying the application is affirmed by Mohammad Billal, claiming to be the Secretary, West Bengal Primary Organizer Teachers Association of Hooghly district. The other applicants are individuals who are representing various organizer primary teachers' associations. This application seeks an order for transmission of the records from the SCI to this Court and for direction on the respondents to act in terms of the order of the SCI. The prayer in the said application reads as follows:
"In the premises your applicants most humbly pray that Your Lordship may be graciously pleased to pass an order for transmitting all the records/orders from the Hon'ble Supreme Court of India to the Hon'ble High Court at Calcutta as mentioned in Annexure 'A' if not already done and to place the same before the Division Bench so that decision can be taken by the Hon'ble High Court and further time with regard to filing of appeal/appeals can be avoided and also regularize the appointment in respect of the candidates whose name have wrongly been stated and who have received the appointment letters but it is impossible for them to join there where they have been given posting (penal) and also who have received call letter but no appointment letter has been given and also appointment should be given to all those left out candidates considering the relevant records of the Hon'ble Courts and to pass such other or further order or orders as to Your Lordship may deem fit and proper."
60. Mr. Banerjee, learned senior advocate representing these applicants contended that despite full disclosure of the credentials of the organizer teachers whom they represent before the Verification Committee, their claims have been rejected without undertaking the exercise of verification in their presence as required by the order of the SCI dated May 9, 2013. According to him, availing the liberty 41 granted by the SCI by order dated January 28, 2016 a fresh approach was made before the Verification Committee but unfortunately the grievances of these applicants have not been taken care of.
61. This application has again been opposed by Mr. Majumdar by referring to the fact of non-submission of any affidavit, which was made a pre-condition for consideration of claims of organizer teachers by the Verification Committee vide the order of the SCI dated April 16, 2015.
62. That the organizer teachers on whose behalf this application has been pressed had not submitted the required affidavits has not been disputed by Mr. Banerjee. This does not leave anything further to be decided by us. Non-filing of the affidavits amounts to neglect and/or failure on the part of these applicants to abide by the pre-condition set by the SCI for having the claims of the concerned organizer teachers considered by the Verification Committee. We are afraid, the applicants cannot be granted any relief by us. CAN 738 of 2017 is, accordingly, dismissed.
63. CAN 1200 of 2017, presented on February 3, 2017, is an application for addition of party at the instance of 36 applicants, while CAN 1902 of 2017, presented on February 28, 2017, is an application for addition of party at the instance of 28 applicants. For the same reason as above, these applications for addition of party also stand dismissed.
64. CAN 1699 of 2017, presented on February 22, 2017, is an application at the instance of one Asim Kumar Das. It is an application for addition of party. Considering the fact that the SCI had directed disposal of all matters pending as on October 6, 2016 and had earlier rejected applications for impleadment by order 42 dated February 2, 2011, there is no scope for any further addition of a party either as a petitioner or a respondent. CAN 1699 of 2017 is, accordingly, dismissed.
65. CAN 1802 of 2017, presented on February 24, 2017, is an application at the instance of Sangathak-o-Prathamik Sikshak Akata Sangha, Paschim Banga represented by its Secretary. Although the prayer is for expeditious hearing of the matter in pursuance of the order of the SCI, we are shocked as to how this registered society can at all intervene and pray for any relief. That apart, the organizer teachers whom this association represents have not given the date of joining of the teacher members in the respective schools as organizer teachers. The application is thoroughly misconceived and, accordingly, stands dismissed.
66. CAN 2027 of 2017, presented on March 3, 2017, is an application for addition of party at the instance of 41 applicants. For the reason assigned for dismissing CAN 1699 of 2017, this application for addition of party stands dismissed.
67. CAN 2423 of 2017, presented on March 15, 2017, is another application for addition of party at the instance of 30 applicants, hailing from the districts of Hooghly, Bankura, Birbhum, South 24 Parganas, Purba Medinipur and Burdwan. They also claim to be members of the West Bengal Organizer Primary Teacher Association (Rural & Urban). For the same reasons as assigned above for dismissing CAN 573 of 2017, we dismiss this application too.
68. In the final analysis, we hold that none of the applicants including the 5616 candidates/organizer teachers is entitled to any relief flowing from the orders of the SCI. The matters stand disposed of at this end.
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69. CAN 4292 of 2017 was presented on April 28, 2017. It is an application at the instance of the writ petitioners seeking direction on the Verification Committee to submit a report. This application would require us to answer point no.3 as formulated in paragraph 33 (supra) and shall be considered separately in view of our order dated November 2, 2017, passed subsequent to reserving judgment on these applications.
70. Since the main controversy is centered around the point as to who were impleaded as petitioners in terms of the order dated October 31, 2003 and who were the teacher members the petitioning association represented in course of proceedings before the writ court, the appellate court as well as SCI, the cause title that was filed in course of proceedings before the learned single Judge is a very important document, which ought to be preserved in the safe custody of the Registrar General till such time the issue decided by this judgment and order attains finality. The Assistant Court Officer shall personally hand over a copy of the amended cause title with names of the added parties printed in red to the Registrar General.
Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) SAHIDULLAH MUNSHI, J. :
I agree.
(SAHIDULLAH MUNSHI, J.)