Calcutta High Court
Acharya Ramendra Sundar Primary ... vs State Of West Bengal And Ors. on 9 February, 2005
Equivalent citations: 2005(3)ESC2157
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
JUDGMENT Jyotirmay Bhattacharya, J.
1. This writ petition is directed against an order passed by the President of the West Bengal Board of Primary Education on 7th June, 2004 appearing at page 98 of this writ petition by which the petitioners' prayer for grant of recognition to the proposed Primary Teachers' Training Institute (hereinafter referred to as the P.T.T.I.), was refused on three fold grounds; firstly, oh the ground that the proposed P.T.T.I. has no land building of its own, secondly on the ground that the applicant does not fulfil the required conditions for grant of recognition, and thirdly, on the ground that the recognition Committee constituted under the Act, did not recommend the name of the proposed P.T.T.I. for such grant.
2. Mr. Asish Sanyal, learned Advocate, appearing for the petitioners, challenged the legality and/or validity of the said order, firstly, on the ground that the said order is a nullity, as the same was passed by an authority who is not authorised to pas such an order under the provision of the West Bengal Primary Education Act, 1973:
3. By referring to General Rules appearing at page 57 of this writ petition, particularly, with reference to paragraph 7 thereof, Mr. Sanyal submitted that under the said Rules, the Board is required to consider the report of the inspection team and subject to the fulfilment of the provisions of the Act and Regulations, the Board shall either recognise the Institute with or without conditions or refuse the recognition thereof. Thus, according to Mr. Sanyal, recognition can be granted either with or without conditions or it can be refused by the Board. Under the provisions of the said Rules no one else excepting the Board can refuse the grant of such recognition.
4. By referring to Section 2 (c) of the Regulation for Curriculum, Syllabus and the Course of Studies appearing at page 31 of this writ petition, Mr. Sanyal submitted that "Board" means the West Bengal Board of Primary Education established under the said Act. Therefore, Mr. Sanyal submitted that the Board within the meaning of the said Act can only decide as to whether an application for recognition can be granted or refused.
5. But here in the instant case, it appears that the President of the Board, instead of the Board itself, has taken the decision for refusing the petitioners' prayer for such grant. Accordingly, Mr. Sanyal submitted that the order impugned is a nullity, as the said order was passed by an authority who has not been vested with the power to deal with such an application.
6. The second phase of submission of Mr. Sanyal related to the validity and sufficiency of the reasons assigned in the order impugned in support of rejection of the petitioners' prayer for grant of recognition.
7. Mr. Sanyal submitted that none of the grounds as mentioned in the order impugned is good, legal and sufficient.
8. Firstly, Mr. Sanyal submitted that the President of the Board travelled beyond the scope of the concerned Rules and the notified conditions to be fulfilled for such grant, by refusing to grant such recognition on the ground that the proposed P.T.T.I. has no land and building of its own, though such a consideration is completely extraneous for the said purpose.
9 By referring to the "Condition to be fulfilled by an Institution/Foundation/Society/Trust/ Body Seeking Recognition to AP.T.T.I." as published by the Board appearing at page 46 of this writ petition, Mr. Sanyal submitted that under the scheme it is not necessary that the proposed P.T.T.I. should hold land and buildings on the date of the application. On the contrary, what is required under the said conditions is that the sponsors must be able to ensure that they have adequate land and buildings and other infrastructure (Laboratory, Library etc.) for establishment of the proposed P.T.T.I. and it is only after the grant of such recognition, the applicant is required to provide to the proposed P.T.T.I. land and building of its own or acquired on at least 99 years lease basis and to vest the title of said land and buildings in the Governing Body or the competent authority of the institute by Registering Deed. It is also provided therein that the Governing Body is to be formed after the grant of such recognition.
10. By referring to the Tile Deed appearing at page 67 of this writ petition, Mr. Sanyal pointed out that the applicant, viz, the petitioner No. 2 herein acquired land by purchase for establishment of the said P.T.T.I. Mr. Sanyal further submitted that the applicant ensured the compliance of the other requisite conditions for grant of such recognition to the said P.T.T.I. by producing his capabilities to satisfy the requisite conditions.
11. Accordingly Mr. Sanyal submitted that rejection of the petitioner's application on the ground, as aforesaid, is contrary to notified conditions for such grant as mentioned at page 16 of this writ petition.
12. With regard to the other ground of rejection, i.e. "they also do not fulfil the required condition for grant of recognition". Mr. Sanyal submitted that the said ground is absolutely vague and indefinite, as it does not define any particular condition which has not been fulfilled by the writ petitioners. Accordingly, on that Score also, the ground of rejection is vague and indefinite.
13. With regard to the third ground of rejection, i.e. for not recommending the name of the proposed P.T.T.I. by the Recognition Committee it was submitted by Mr. Sanyal that the said ground is also vague and indefinite, as the reason for not recommending name by the Recognition Committee is not apparent from the records. Mr, Sanyal further pointed out that even under the conditions for grant of recognition, recommendation of the name by a Recognition Committee, is not made a pre-condition for grant of such recognition by the Board.
14. A point of discriminatory treatment which the petitioners received from the concerned authority in the process of consideration of the petitioners' application for such grant, has also been elaborated by Mr. Sanyal on the ground that various other institution received provisional recognition though they do not either fulfil the requisite conditions or hold either any land or buildings of their own on the date of the application, but still then the petitioners are very unfortunate in this regard as, in spite of fulfilling better conditions than the others, the petitioner's application was rejected.
15. Thus, Mr. Sanyal submitted that the order impugned is illegal and should be quashed.
16. Mrs. Mitra, learned Advocate, appearing for the Board, opposed such prayer of the petitioners and supported the order impugned.
17. Mrs. Mitra submitted that the point of jurisdiction of the authority who passed the order impugned, has not been taken in this writ petition. Mrs. Mitra, however, fairly submitted that any question of law pertaining to jurisdiction of the authority to pass an order can be taken at any stage, provided it is a pure question of law.
18. Mrs. Mitra, however, contended that the President of the Board is not incompetent to pass such an order. By referring to Section 20 (2) of the West Bengal Primary Education Act, Mrs. Mitra submitted that the President may, in any emergency, exercise any of the powers of the Board provided, however, that he shall not act contrary to any decision of the Board and shall within one month report to the Board, the action take by him together with the reasons therefor.
19. Thus, by referring to the said provision, Mrs. Mitra submitted that the President has been empowered to exercise any of the powers of the Board in emergency and as such, the order which was passed by the President in emergency cannot be declared as nullity.
20. Mrs. Mitra further contended that since admittedly the proposed P.T.T.I. did not hold any land, and/or building as on the date of submission of. such application, the order of rejection cannot, be held to be unjustified, Mrs. Mitra, however, frankly confessed that the conditions for grant of recognition, as mentioned at page 46 of this writ petition are not in conformity with the said extent Regulations.
22. Mrs. Mitra further submitted that the conditions for grant of recognition appearing at page 46 of this writ petition to the extent of its inconsistency with the Regulation cannot override the provisions contained in the Regulation because of the simple reason that the Regulation unlike the conditions contained in the brochure, has the force of law. As such, when the conditions, as provided in the Regulation admittedly are not satisfied, the petitioners cannot claim recognition under the said Regulations.
23. Thus, Mrs. Mitra submitted that the order impugned is absolutely a legal order which cannot be interfered with in its writ petition.
24. Heard the learned Advocates of the respective parties and considered the materials on record.
25. Let me now consider first the submission of Mr. Sanyal with regard to the jurisdiction infirmities in the order impugned.
26. On consideration of the General Rules appearing at page 57 of this writ petition in paragraph 7 thereof, it appears to me that the Board was only authorised either to grant recognition with or without conditions or refuse such recognition to any applicant. Board has been defined in the Regulations appearing at page 31 of this writ petition whereform I find that the "Board" means "the West Bengal Board of Primary Education established under the said Act."
27. The composition of the Board is provided under Section 4 of the West Bengal Primary Education Act, 1973 which runs as follows :--
"4. Composition of the Board.--The Board shall consist of the following members :--
(a) President to be appointed by the State Government, (aa) the Director, ex-officio,
(b) the President of the West Bengal Board of Secondary Education, ex-officio,
(c) two teachers of Primary Teachers Training Institute of whom one shall be the head of one such Institute elected in the prescribed manner by the teachers of Primary Teachers' Training Institute from among themselves,
(d)twelve teachers of Primary School of whom four shall be elected from each Division in the prescribed manner by the members of the Primary School Councils, who are representatives of Primary School teachers in the Primary School Councils of the concerned Divisions.
(e) two teachers of Primary Schools elected in the prescribed manner by the members of the Calcutta Primary School Council, who are representatives of Primary School Teachers in the Calcutta Primary School Council,
(f) one person elected in the prescribed manner by the Councillors of Calcutta Municipal Corporation from amongst themselves.
(g) three persons, one from the each Division, elected in the prescribed manner by the Councillors of the municipal areas of the concerned Division from amongst themselves,
(h) three persons one from each Division, elected in the prescribed manner by the members of the Zilla Parishads and the Mahakuma Parishad of the concerned Division from amongst themselves.
(i) six persons from amongst the members of the West Bengal Legislative Assembly elected in the prescribed manner by the members of the Assembly,
(j) seventeen persons interested in education nominated by the State Government of whom at least --
(i) four shall be woman,
(ii) one shall be a member of the Anglo-Indian community,
(iii) one shall be a member of a Scheduled Caste,
(iv) one shall be a member of a Scheduled Tribe,
(v) one shall be a member of any of the linguistic minority communities in the State other than Nepali,
(vi) one shall be a Nepali inhabitant of the hill areas,
(vii) one shall be a College or University teacher,
(viii) two shall be teachers of secondary schools,
(ix) three shall be Chairman of Primary School Councils,
(x) two persons as whom--
(a) one shall be from the employees of the Board within the meaning of Section 17 and
(b) one shall be from the members of the staff (other than officers) within the meaning of Section 56."
Thus, it appears that apart from the President there are so many members in the Board. Rather it may be put in other words that the composition of the Board will be complete when it consists of all the members, as indicated in Section 4 thereof.
28. Apparently, it appears from the order impugned at page 98 of this writ petition and the Board has not passed the said order. On the contrary, it is apparent from the said order that the President himself after consideration of the necessary papers submitted by the applicant, the inspection report and observation of the Recognition Committee, rejected the prayer of the petitioner No. 2 for grant of recognition in favour of the proposed P.T.T.I. Thus, apparently on the fact of it, the order impugned is illegal and without jurisdiction, as the same was passed by the President of the Board who is not the authority for passing such order.
29. Let me now consider the effect of Section 20 (2) of the said Act which authorises the President to exercise the power of the Board in emergency.
30. According to Mrs. Mitra the order impugned cannot be described as without jurisdiction, as the President exercised his power in emergency. I have scrutinised the affidavits of the respective parties including the order impugned very carefully. Nothing is apparent on the face of the order impugned to indicate the emergent circumstances under which the President had to pass the said order. It is settled law that in case of emergency, the authority can pass such an order, but in any event the emergent circumstances under which the President passed such an order must be apparent from the order impugned itself. The order impugned is totally silent, as to under what emergent circumstances, the President exercised such power.
31. That apart, even in case of exercise of the power by the President in emergency, it is mandatory on the part of the President to refer the matter to the Board for ratification within one month from the date of taking such decision by the President. But nothing is coming forward to show that the President ever reported his decision to the Board within the statutory period for ratification of his action.
32. Accordingly, I hold that the order impugned appearing at page 98 to this writ petition which was passed by the President of the Board is absolutely without jurisdiction.
33. With regard to the second phase of submission of Mr. Sanyal, I find substance in the submission of Mr. Sanyal to the effect that under the conditions to be fulfilled by the applicant for such recognition appearing at page 46 of this writ petition, the proposed P.T.T.I. is not required to hold any land and building either on ownership basis or on the basis of lease on the date of submission of such application for grant of recognition. According to Mr. Sanyal, the requirement is that the sponsor must be able to ensure that they have adequate land and buildings of their own either on ownership basis or on the basis of lease for 99 years and other infrastructure to provide the required land and buildings to the proposed P.T.T.I. with a further assurance that the sponsorer would vest the Title of said land and building in the Governing Body or the competent authority of the institute by Registered Deed after its recognition.
34. It is true that the aforesaid submission of Mr. Sanyal has sub-stance in the light of the Conditions to be fulfilled by the applicant for such recognition appearing at page 46 of this writ petition, but still then it is equally true that the Conditions contained in the Regulation, as it is rightly pointed out Mrs. Mitra that Regulation having the force of law will override the Conditions at page 46 of this writ petition which are merely in the nature of administrative instructions having no force of law.
35. But, when by publication of the said condition in the brochure, the Board induced the applicants to invest money for establishment of the proposed P.T.T.I. the authority concerned cannot refuse to grant recognition to such institute on the ground of non-fulfilment of the Conditions of the Regulation which is contrary to the scheme, as contained in the Conditions appearing at page 46 of this writ petition.
36. The General Rules appearing at page 57 of this writ petition provides for grant of provisional recognition. The General Rules further makes a provision for grant of provisional recognition with condition. Thus, in view of the said scheme, in my view, the Board is authorised to give even conditional provisional recognition subject to fulfilment of certain lacking requisites.
37. However, I do not find any substance in the submission of Mr. Sanyal regarding the ground of discrimination in view of the fact that it is now settled law of the land that the authority cannot be compelled to commit repeated wrong because of commission of one wrong by the concerned authority.
38. Under these facts and circumstances, I hold that the order impugned appearing at page 98 of this writ petition is illegal as the same was passed by an authority having no jurisdiction. Accordingly, the order impugned appearing at page 98 of this writ petition cannot be sustained and thus stands quashed.
39. The Board being the authority under the said Act, is thus hereby directed to consider the application of the petitioners regarding grant of recognition to the proposed of P.T.T.I. in the light of the observation as made hereinabove, positively within a period of one months from the date of communication of this order.
40. I make it clear that the Board will consider the petitioners' application for such grant in the light of the Condition for such grant published in the Brochure, as appearing at page 46 of this writ petition, as the petitioners were induced to invest for establishment of (he P.T.T.I. by the said publication. If necessary the Conditions contained in the Regulations may be relaxed by the authority concerned in the facts of the present case without, however, creating any procedure in this regard.
41. I also make it clear that reasonable opportunity of hearing should be granted to the petitioners by the Board at the time of consideration of the petitioners' said application for grant of recognition. It is also made clear that the time so framed for such consideration is mandatory.
42. The application is, thus allowed, without any order as to costs. Urgent Xerox certified copy of this order. If applied for, be given to the parties, as expeditiously as possible, upon compliance with the requisite formalities.