Calcutta High Court (Appellete Side)
Nabinanda Goswami & Ors vs State Of West Bengal & Ors on 18 August, 2020
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Mr. Justice Ravi Krishan Kapur
W.P. NO.20124 (W) of 2014
Nabinanda Goswami & Ors.
-vs-
State Of West Bengal & Ors.
For the petitioners : Mr. Biswaranjan Bhakat
For the respondent no.7 : Mr. Subrata Mukherjee
For the State : Mr. Jaharlal De
Mr. Zakir Hossain
Heard on : 14.01.2020
Judgment on : 18.08.2020
Ravi Krishan Kapur, J.:
1. The petitioners assail the order dated 8 April, 2008 passed by the Director of School Education West Bengal.
2. The petitioners contend that they are the teaching and non-teaching staff of Vivekananda Smriti Mandir and this school has been managed by an "Organizing Managing Committee" since 1971. On 30.11.2006, the school was granted first recognition by the Board of Secondary Education as a class IV (4) Junior High School. In an earlier writ petition (WP 20033 of 2007), this Court had directed the Director of School Education (the respondent no.2) to consider the prayer of the petitioners for approval of their appointments to the staff of the School by the Organizing Managing Committee. It is further alleged the petitioners that they have been working for a long time and that they all have been lawfully appointed according to the then prevailing Recruitment Rules.
3. Counsel on behalf of the respondents support the impugned order and submitted that the same does not warrant any interference whatsoever. He placed strong reliance on Section 9(1) and 9(2) of the West Bengal School Service Commission Act, 1997. He further placed reliance on an unreported decision of the Hon'ble Division Bench of this Court dated 6th July, 2018 passed in MAT 1626 of 2017 (The District Inspector of School, Burdwan vs. Abdul Barik Sk. and Ors.). He submits that the appointment of the petitioners by the Organizing Committee was without authority of law and without any executive instructions. He submitted that the State cannot approve illegal appointments contrary to extant rules.
4. In reply, it was further submitted on behalf of the petitioners that the impugned order had been passed contrary to the directions passed in an earlier writ petition (WP 20033 of 2007). The petitioners further placed strong reliance on the decision reported in Dhananjay Karmakar 2016 (1) CLJ (SC) 63.
5. I have heard the parties and also considered their respective submissions. I have also perused the pleadings and the Notes of Submissions filed on their behalf.
6. At the outset, I note that the impugned order is a reasoned order and has been passed after considering the rival claims of both the parties. There are detailed reasons provided in the impugned order. The Director of School Education (West Bengal) has held that in the instant case appointment of the petitioners at the root was illegal and void ab-initio and contrary to law and in violation of the School Service Commission Act 1997. It was further recorded that in view of the extant laws the claim of the petitioners for regular appointment was unfounded and was made without following prescribed recruitment proceedings and could not be considered. Accordingly, their claims were rejected.
7. The short point for consideration is whether the rejection of claim of the petitioners for regular appointment is in accordance with law or not. In Manindra Nath Sinha and Ors. Vs. State of West Bengal and Ors. reported in (2006) 4 CHN 513 it has been held as follows:
"20. In the present case, according to the existing rules, there is no scope of appointment of an Organizing Managing Committee and even a regularly appointed Managing Committee is not vested the authority to appoint any teacher of non-teaching staff beyond the sanctioned strength; but by way of Government instructions such illegal act is sought to be regularized. Therefore, the facts of the present case are the worse than those involved in the case of R.N. Nanjundappa (supra), where statutory rules were framed to regularize illegal act.
21. We, thus, find that by merely issuing government instructions, illegal acts committed by the Organizing Managing Committee which is a total busybody cannot be regularized in this way. The moment the school is recognized, the Managing Committee is to be constituted in accordance with the Act and the rules framed thereunder and such duly-constituted Managing Committee can alone appoint teachers and non-teaching staff according to the provision contained in Rule 28 of the Management Rules within the sanctioned strength but even there, there is no right conferred upon the duly-
constituted Managing Committee to appoint any staff who before the recognition of the school was appointed by the Organizing Managing Committee and even the guidelines or Circulars do not permit the appointment of any staff before the school is recognized and the sanctioned strength is declared.
22. Therefore, it is clear that initial appointments of the writ petitioners, even if those were really made, were contrary to the rules and any executive instruction issued by the Government cannot approve the illegal appointment contrary to the statutory rules."
8. The aforesaid decision has been consistently followed and has also been approved by the Hon'ble Division Bench of this Court in The District Inspector of Schools (Secondary Education) Burdwan & Ors. vs. Addul Barik Shaikh. & Ors. (unreported decision dated 6 July, 2018 passed in MAT 1626 of 2017). In particular, in paragraph 19 of the said decision, the Hon'ble Division Bench had held as follows:
"Applying the law laid down here, we hold that Manindra Nath Sinha (supra) having been affirmed by the Supreme Court, all Benches of this Court in cases involving similar fact situation are bound to follow the same as a binding precedent and any decision of a learned Judge or Judges, which runs counter to the dicta in Manindra Nath Sinha (supra), Smritikana Maity (supra), Gita Banik and Gopal Singh (supra), is not good law."
9. Following these decisions, I am also of the view that the impugned order does not warrant any interference whatsoever in the facts and circumstances of the instant case. There are adequate and justifiable reasons given in the impugned order. The case of both the parties had been adequately considered in the light of the provisions of Section 9(1) and 9(2) of the 1997 Act and if the root of the appointments of the petitioners was illegal there can be no question of regularization or approval. The Director of School Education West Bengal has arrived at findings that the appointments of the petitioners were made without following the prescribed recruitment procedures.
10. The argument that the impugned order was passed contrary to the earlier directions of this Hon'ble Court is also without merit. There is no illegality or perversity or contravention of any law in the impugned order. The decision relied on by the petitioners reported in Dhananjay Karmakar vs. State of West Bengal and Ors. 2016 (1) CLJ (SC) 63 is distinguishable and inapposite.
11. Accordingly, I am of the view that the petitioners have failed to prove that they had any existing legal right to have their appointments regularized under the provisions of the Act or the Rules framed thereunder.
12. In the aforesaid circumstances, I am of the view that the impugned order does not warrant any interference whatsoever. Accordingly, WP 20124 of 2014 is dismissed. However, there will be no order as to costs.
13. Urgent photostat certified copy, if applied for, should be supplied to the parties upon compliance of all requisite formalities.
(Ravi Krishan Kapur)