Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Swami Sadananda on 22 September, 2011
Author: K. J. Sengupta
Bench: Kalyan Jyoti Sengupta
1
In The High Court At Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Kalyan Jyoti Sengupta
And
The Hon'ble Justice Syamal Kanti Chakrabarti
F.M.A. 490 of 2011
M.A.T. 567 of 2010
C.A.N.9554 of 2010
State of West Bengal & ors.
Vs.
Swami Sadananda, Secretary, Sri Ramkrishna Ashram Junior Basic School &
ors.
For the Appellants: Mr. Tarun Roy,
Ms. Manisha Mukherjee,
Mr. Manash Ghosh,
Mr. Arijit Banerjee.
For the Respondent
No.1: Mr. Asok De,
Mr. Himadri Barua.
Judgment on: 22.09.2011.
K.J. Sengupta, J:-
The above appeal is directed against the judgment and order of the learned
Single Judge dated 24th December, 2009 passed in Writ Petition No. 13117 (W) of
2007. By the judgment and order impugned the learned Trial Judge directed to
approve the members of the Staff who have already been appointed against the
sanctioned post.
2
The short fact of this case leading to filing the writ petition and preferring
appeal is as follows:-
The first respondent is the Secretary of Sri Ramkrishna Ashram Junior
Basic School P.O. Nimpith Ashram, Joynagar in the District of South 24
Parganas. The said Sri Ramkrishna Ashram, Nimpith is the registered society,
and within its object clause of the bylaws of the society the said Ashram has
established several schools at remote villages of Sundarban area for educating
children belonging to Scheduled Caste, Scheduled Tribes community and also
other backward classes. This area is widely known to be the most backward area
as such this avowed scheme for imparting free education to this section of people
has been adopted by this society which the Government has not been able to do
so. The society therefore has established 11 schools with all required facilities in
the locality of South 24 Parganas in remote places of Sundarban area. One of the
schools is Ramkrishna Ashram Junior Basic School at Nimpith. This school has
been established not only to impart the general education but also to educate
them in practical education for reformation of the society and to build the future
generation as a responsible citizen who can do the social work also. The said
school at all material times had and still has been run by the said society which
is described and recognized as religious institution within the meaning of Articles
26 and 29 of the Constitution of India. The said Junior Basic School was
established long time back. The society has got its own rules and regulations
with power to appoint teacher to run the administration of the said school. The
said Junior Basic School has been sanctioned by the then Director of Public
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Instruction, Government of West Bengal under G.O. No.845-SC/P(ii) dated 12th
September, 1963 and at all material times the same has been run smoothly since
then under the management of its parent body Sri Ramkrishna Ashram, Nimpith
enjoying Special Rules vide Memo No.918-Edn.(S) dated 21st September, 1990.
There were 9 sanctioned posts in the said school and all the 9 staffs were
appointed by the management of the said school.
Subsequently, after recognition of the said school, 5 out of 9 approved
teachers were transferred to elsewhere for their own interest during the period of
1986 to 1988. In view of the vacancy having arisen the Managing Committee of
the school duly appointed 5 new teachers and thereafter School Authorities
sought for approval of appointment unsuccessfully. Several representations have
been made for approval of the school. The said Junior Basic School is a Class -
X unit with roll strength of 657, and nine (9) teaching staff are still working in the
said school and out of 9 teachers only one approved teacher is serving. When no
decision was taken with regard to the approval of appointment as above, the
respondent No.1 on behalf of the said society filed a writ petition in this Court
and prayed for amongst other granting approval. The said writ petition was
disposed of by a learned Single Judge by an order dated 9th May, 2004 directing
the Director of School Education (Primary) to consider and dispose of the
representation. Thereafter, pursuant to the said order dated 18th May, 2005
Director of School Education (Primary) considered the representation and
rejected prayer for approval of the appointment observing that under the Special
Rule the society had no power to fill up the vacant posts. Challenging the said
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order another writ petition has been filed and the same is still pending. During
pendency of the said writ petition the Secretary made representation to the
Secretary of Education Department to grant approval of appointment of 9
teachers and to release their arrears and current salaries. In response to the said
representation dated 25th May, 2006 the Joint Secretary, by letter dated 26th
November, 2006 informed the respondent herein that according to Section 60
sub-section (i), Clause f, k, (kk) of West Bengal Primary Education Act 1973, the
Primary School Council, South 24 Parganas has been empowered to grant
recognition, pay salary of teachers of Pre-Primary School and the respondent
No.1 was advised to approach the Primary School Council concerned for getting
recognition as a separate Primary School and informed that as this school was
granted recognition by D.P.I. on 2nd May, 1967. The D.P.I. is to recommend the
name for granting recognition to South 24 Parganas District Primary School
Council. The said communication of the Joint Secretary was replied to by another
representation dated 2nd December, 2006. On receipt of the representation, Joint
Secretary, Department of School Education, respondent No.1A in the writ petition
enquired the petitioner whether prior permission was taken from District School
Board before giving appointment of 9 teachers of the said school and how Special
Rules would be applicable to the Primary School while there is no provision of
Special Rule in West Bengal Primary Education Act. On receipt of the said letter
dated 8th January, 2007 the petitioner contended that the said school was
recognized prior to West Bengal Primary School Act, 1973 came into force as
such recognition was not required under the said Act. While recognizing this
5
school earlier the Government has permitted the management of the said school
by the society itself, accordingly granted approval to the appointment of teacher
and releases all salaries without any dispute. Ultimately no approval to the
appointment has been granted. The respondent-writ petitioner made formal
demand of justice through their learned lawyers. The Chairman, South 24
Parganas District Primary School accordingly refused to grant approval to the
appointment by letter dated 14th May 2007 on the ground mentioned therein.
Being aggrieved by and dissatisfied with the said communication dated 28th
November 2006 and 14th May, 2007 of the respondent No.5 the above writ
petition was filed.
It appears basically the case of the writ petitioner-respondent is that since
this institution is run by religious institution a Special Rule has been framed to
enable them to manage and run school and by virtue of such Rule the
appointment of teachers to the said Junior Basic School was made and in spite of
appointment being made to the vacant sanctioned post approval was not
accorded.
The case of the appellant before the learned Trial Judge was that the writ
petitioner had no power, authority to appoint the vacant post of the teachers of
the Junior High School and it can only be done by the District Primary School
Council. Therefore, question of approval to the appointment does not and cannot
arise since the appointment is illegal. The Special Rule applies to the Secondary
Schools not the primary ones.
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Mr. Tarun Kumar Roy learned Senior Advocate, appearing for the appellant
contends that the learned Trial Judge ought not to have granted relief in the
subsequent writ petition when identical issues are pending for adjudication in
the prior writ petition wherein challenge is made to the decision of the Director of
Primary Education rejecting the prayer for approval to the appointment of the
teachers. Until and unless the said order is set aside by the Court and present
writ petition should not have been heard.
We are of the view that this portion of his submission has correctly been
dealt with by the learned Trial Judge as basic issue in both the matters is
whether the appointment made by the management of the said Ramkrishna
Ashram should be approved or not. Under the law one can file more than one
proceeding raising identical point on fact and law even later proceeding can be
heard out finally, unless and until stay of hearing of the same is granted by the
Court by applying the principle of Section 10 of the Civil Procedure Code as there
is no bar to hear the later proceeding by the Court. Only legal implication is that
the issue or controversy decided in the later proceeding will operate as res
judicata in the first proceeding. Besides the learned Trial Judge has rightly held
the Joint Secretary who is the almost highest authority has taken stand
identical to that of Chairman, Primary School Council. This gives rise separate
cause of action. As the issue is identical whether earlier writ petition was heard
or not is immaterial. Hence, the contention of Mr. Roy on this aspect is not
tenable in law.
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Now on merit he contends that the Special Rule empowering the Ashram to
appoint teaching and non-teaching staff does not apply to any institution lower
than the Secondary Institution.
He contends that it will appear from Section 1 of the Rule that the same
will be applicable to all junior high, high and higher secondary schools specified
in the schedule. In the schedule instant basic school is not a scheduled
institution. Therefore, the power of appointment to the teachers is not applicable
to this Managing Committee under the said Rules.
He also contends that said rule was framed in exercise of power conferred
under Rule 33 for management of Recognized Government and Non- Government
Institutions (Aided and Unaided) Rules, 1969. The said Rule 1969 was framed
under the appropriate provision of the West Bengal Secondary Education Act,
1963. Under these circumstances, the said Rule cannot be made applicable to
any institution below the Secondary Junior High School or High School.
According to him, in view of the commencement of the West Bengal
Primary Education Act, 1973 it is the District Primary School Council who is to
make appointment in any post of teacher of Primary institution.
The learned Trial Judge, therefore, has misconstrued the said Rule and its
provision and has wrongly applied the law while directing to grant approval.
Mr. De, learned Senior Counsel appearing for the respondent-writ
petitioner submits that the West Bengal Primary Education Act, 1973 has no
manner of application and there is no need to obtain recognition afresh since the
recognition was granted prior to the said Act came into force. In 1969 under
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Section 54 of the West Bengal (Rural) Primary Education Act, 1930 the
recognition was granted and since then the salaries have been released to all the
9 teachers appointed by the management of the said Ashram granting approval.
Thereafter, the said Act was repealed by the West Bengal Primary Education Act,
1973. In the present Act there is no provision for granting recognition to any
school. Even the management of the present school has not been taken over by
District Primary School. The recognition granted earlier has not been withdrawn.
He has also drawn our attention to the provision of the West Bengal
General Clauses Act to contend that if any previous Act is repealed by the
subsequent Act unless different intention appears then earlier provision will
continue to remain in force.
He further contends that the Supreme Court in the decision of Bramchari
Sidheswar Shai v. State of West Bengal and Ors. reported in AIR 1995 SC 2089
has recognized that persons belonging to or owing allegiance to Ramkrishna
Mission or Ramkrishna Math belong to religious denomination within Hindu
religion or section thereof as would entitle them to claim fundamental rights
conferred under Article 26. Therefore, by virtue of Article 26 Clause (a) of
Constitution of India this society has constitutional right to run and manage its
own institution irrespective of the Special Rule being granted. This case has got
the approval of later decision of Supreme Court reported in (2002) 8 SCC 481 in
case of T.M.A. Pai Foundation and ors. v. State of Karnataka and others.
9
We have considered contention and rival contention of the parties. A survey
as to status of this Mission is necessary to address to the issue, in view of the
Supreme Court judgment.
The Supreme Court in the former case in paragraph 52 has clearly held as
follows:-
"52. For the said reasons, we hold that persons
belonging to or owing their allegiance to Ramkrishna
Mission or Ramkrishna Math belong to a religious
denomination within Hindu religion or a section thereof
as would entitle them to claim the fundamental rights
conferred on either of them under Article 26 of the
Constitution of India and answer Point-2, accordingly, in
the affirmative."
In paragraph 53 of the same report it is held as follows:-
"53. Since we have held while dealing with Point-2
which arose for our reconsideration that the persons
belonging to or owing allegiance to Ramkrishna Mission
or Ramkrishna Math as followers of Ramkrishna, form a
religious denomination in Hindu religion, as a necessary
concomitant thereof, we have to hold that they have a
fundamental right of establishing and maintaining
10
institutions for a charitable purpose under Article 26(a)
of the Constitution of India, subject, of course, to public
order, morality and health envisaged in that very
Article."
It appears that Primary School Council under Section 60 of Act 1973
amongst other, is to set up new Primary School and further to grant recognition
to Primary Schools with or without conditions or to withdraw recognition and to
grant financial aid to any such Primary School or to withdraw such aid in such
manner as may be prescribed. It is also the duty of the Council to release fund
for payment of salaries to the teaching and non-teaching staff of the Primary
Schools. It thus appears the said Act by itself does not disturb at all functioning
of school earlier recognized.
In our considered view fresh recognition or for that matter the approval to
the Junior Basic School of the writ petitioner herein is not required, since
recognition of the school was accorded under the Bengal (Rural) Primary
Education Act, 1930. Therefore, by virtue of sub-section 3 of Section 105 of the
Act 1973 the said school is deemed to have been recognized under the present
Act. Effect of repealing of the earlier Act has also been explained in Section 105
sub-section 4 so far as this institution is concerned. The said sub-section 4 of
Section 105 reads as follows:-
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"Notwithstanding the repealing of the Bengal
(Rural) Primary Education Act, 1930, all rules, orders
and notifications made or issued from time to time under
the said Act applicable to the District School Board and
continue in force immediately before such repeal shall
continue in force in so far as they are not in consistent
with the provisions of this Act, until they are repealed or
amended."
The aforesaid provision has to be read in conjunction with Section 8 and 8A of
Bengal General Clauses Act, 1899.
Section 8 Clause (c) is set out hereunder:-
"Section 8. Effect of repeal:- Where this Act, or
any Bengal Act, or West Bengal Act made after the
Commencement of this Act, repeals any enactment
thereto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not -
....................................................
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or 12
(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed."
It has been rightly urged by Mr. De, learned counsel that in view of combined reading of the aforesaid provisions the recognition of school under the repealed Act allowing the management of the writ petitioner-respondent No.1 to run its affairs is not taken away by Act 1973. We think that the learned Trial Judge has correctly recorded that the District Primary School Council did not withdraw the recognition even after commencement of the 1973 Act, on the contrary the financial aid continued to be supplied without any interruption.
It is true as appropriately submitted by Mr. Roy the Special Rule for management of the schools of Sri Ramkrishna Ashram was framed in exercise of the power conferred by Rule 33 of the Management Rules Recognized Government and Non-Government Institution (Aided and Unaided) Rules, 1969 which has its origin from West Bengal Secondary Education Act, 1963 as the said Management Rule has been framed under Section 45. It is also correct to suggest that any Rule framed under the aforesaid Act obviously relatable to the schools above the primary institutions. But Rule 4 of Special Rule as mentioned above provides for composition of Managing Committee of the branch institution including Primary,Basic and Pre Basic Schools other than Secondary Schools run by the Ashram. The said Rule 4 though inappropriate in the context of the said 13 Rule 33 of the Management Rules which meant for Secondary Institution but the intention of the Government is very clear that the management of the Primary Basic and Pre Basic Schools other than the Secondary School have been left with the writ petitioner-society.
It is contended by Mr. Roy that there is no provision for making any Rule relating to the Management of this Primary School by the writ petitioner itself under the provisions of West Bengal Primary Education Act 1973. In this context we have examined the rule making power given under Section 106 of the Act 1973. In sub-section (3) of Section 106 in its Clause (v) the State Government has been empowered to frame Rules in other matters which are not classified in Clauses (a) to (u). According to us when in the Special Rules there has been mention of the composition of management the State Government is quite competent to make similar rule specifically for the institutions of this organization other than secondary institutions. Indeed, the State Government is cognizant of the aforesaid legal position and that would be reflected from an order passed by learned Single Judge of this Court on 21st March, 1994 in C.O. No.4196 (W) of 1993. In the said order (at page 99 of the paper book) the learned Trial Judge has been pleased to direct the Director of School Education (Primary), West Bengal, District Inspector of Schools (Primary), South 24 Parganas and also the Chairman of District Primary School Council, South 24-Parganas to approve upgradation and extension of the Special Rules to the upgraded Primary School and the existing organizing teaching and non teaching staff of the said school. 14
There is yet another aspect of the matter that no Act or Rules can be read in derogation of the constitutional provision namely Article 26 of the Constitution of India. The Act 1973 has to be read and be applied subject to the said Article. By virtue of Article 13 Clause (2) of the Constitution of India the aforesaid rights cannot be taken away by Act 1973. We therefore appropriately quote the Article 13 Clause (2):-
"Article 13 Clause (2)- The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void."
Under Article 26 Clause (2) of the Constitution of India read with judgment of the Supreme Court (AIR 1995 SC 2089) writ petitioner Society has fundamental right of establishing and maintaining institution for a charitable purpose. We are of the view that imparting free primary education is one of best charitable purpose.
Withholding of the approval to the appointment made by the respondent No.1 in the vacant post according to us denial of granting aid. 15
On discussion as above, we are of the view that the stand taken by the State Government as well as the District School Council, South 24 Parganas are absolutely prohibited by the constitutional mandate and contrary to the stand earlier taken on various occasions.
We, therefore, think that the learned Trial Judge has granted the appropriate relief.
In order to avoid future complication we think the State Government shall consider to frame separate Special Rules for the Primary Schools under wings and branches of the writ petitioner No.1 so that avowed constitutional guarantee through this institution as recognized by the Supreme Court, are fulfilled as it has already been done in case of the secondary schools.
We, therefore, do not find any reason to interfere with the judgment and order of the learned Trial Judge. The appeal is therefore dismissed. There will be no order as to costs.
(K. J. Sengupta, J.) I agree.
(Syamal Kanti Chakrabarti, J.)