Calcutta High Court (Appellete Side)
Saurav Guha & Ors vs The State Of West Bengal & Ors on 2 December, 2022
Author: Aniruddha Roy
Bench: Aniruddha Roy
Court No. 22 IN THE HIGH COURT AT CALCUTTA
02.12.2022 Constitutional Writ Jurisdiction
(Item No. 33)
Appellate Side
(AB)
W.P.A. 23441 of 2022
Saurav Guha & Ors
VS
The State of West Bengal & Ors.
Mr. Kallol Basu
Nr. Jamiruddin Khan
...... for the petitioners
Ms. Chaitali Bhattacharya
Mr. Kartik Chandra Kapas
.......For the State
Ms. Koyeli Bhattacharyya
.... W.B.B.S.E.
Mr. Chandra Sekhar Banerjee
.... For respondent No. 6
Ms. Sayanti Sengupta .... Respondent No. 8 The petitioners are the elected members of the Managing Committee representing the Guardian Category of Patha Bhavan School (for short, the school).
The collective grievance of the petitioners in this writ petition that, despite there being a free and fair election of the Managing Committee as duly certified by the concerned Election Officer, Annexure P-5 at page 64 to the writ petition, the respondent No. 4 though had appointed the Departmental Nominee in the said Managing Committee, had withdrawn the same by its communication dated October 14, 2022 at page 98 to the writ petition. This was one of the challenges in the writ petition that, the action of the respondent No. 4 in this regard as contended by the petitioners was illegal, wrongful, arbitrary and mala fide. The second fold of challenge 2 in this writ petition was the appointment of Drawing and Disbursing Officer (for short, DDO) for the purpose of Administration and Management of the School, by a communication dated October 17, 2022 at page 102 and October 21, 2022 at page 104 to the writ petition.
Mr. Kallol Basu, learned counsel for the writ petitioners drawing attention of this Court, to the reports of the Election Officer appointment by the erstwhile Managing Committee of the School, in accordance with the procedure laid down, submitted that, from the reports of the Election Officer it would be evident that, it was completely a free and fair election and no grievance was redressed with regard there to at the contemporaneous time in any manner. The respondent No. 4 also after being satisfied, first appointed the Departmental Nominee and then on the basis of certain alleged fake and frivolous complaints lodged with regard to the validity of the Election and its process, such Departmental Nominee was withdrawn without granting any opportunity of hearing or without providing any reason to the present Managing Committee of the School. This is clearly an erroneous and arbitrary exercise of power on the part of the respondent No. 4 to withdraw the Departmental Nominee.
Mr. Kallol Basu, learned counsel then referred to Sub-Rule 3 of Rule 27 of Management of 3 Recognized Non-Government Institutions (Aided and Un-aided) Rules, 1969 (for short, the 1969 Rule) and submitted that, none of the conditions mentioned therein were satisfied while appointing DDO to administer and manage the School in the impugned decisions dated October 17, 2022 and October 21, 2022 at pages 102 and 104 to the writ petition. He submitted that, no Grant-in-aid had /has ever been received by the School from the State. He submitted that, it was only the Dearness Allowance (for short, D.A.) were being provided by the State that too such amount were directly disbursed to the 27 numbers of Teachers of the School and credited at their respective bank account through electronic transfer of fund and no money in this regard were credited to the bank account of the School and as such the question of disbursing any fund on this score by the School in favour of any such Teachers did not and could not arise. He submitted that, since the School did not receive any Grant-in- aid, the provision under Rule 27(3) of the 1969 Rule had no application at all and the decision for appointment of DDO is wholly without jurisdiction, illegal and void. He further submitted that, on a true and proper construction of the said Rule the satisfaction was to be recorded on expressed terms by the respondent No. 4 while appointing DDO. The said two impugned decisions for appointment of DDO did 4 not reflect any such recording of satisfaction. On this score, he submitted that, the decision for appointment of DDO was bad and liable to be set aside.
Mr. Kallol Basu, learned counsel further submitted that, the manner and mode in which the departmental Nominee was withdrawn coupled with the appointment of DDO would amount to an encroachment and imposition of a fetter upon the power, authority and functioning of a validly elected Managing Committee.
He further submitted that, the result of the Election was duly circulated among the candidates in the Election and to the notice and knowledge of the petitioners, there was no objection received by the Teacher-in-charge of the School respondent No. 8, in this regard. The Election result was accepted by all the contesting candidates.
Mr. Kallol Basu, learned counsel in support of the contention that when a DDO is appointed on clear violation of the provisions laid down under Rule 27(3) of the 1969 Rules such appointment is illegal and liable to be set aside. Mr. Basu relied upon a decision of a co-ordinate bench of this Court in the mater of The Managing Committee, Ilsara Surendranath High School Vs. State of West Bengal & Ors. reported at 2011 SCC Online Cal 2002.
Ms. Chaitali Bhattacharya, learned State counsel appearing for respondent Nos. 1, 4 and 5 5 vehemently opposed the submissions of Mr. Basu and submitted that, several irregularities were discovered by the respondent No. 4 from the reports furnished by the Election Officer before him. The respondent No. 4 received complaints in this regard also. She submitted that, the report submitted by the respondent No. 8 Teacher-in-charge to the respondent No. 4 were incomplete and some of the relevant pages of such reports were taken out, as it was discovered from the report submitted by the Election Officer directly to the respondent No. 4.
Ms. Bhattacharya, submitted that funds were disbursed to the School account maintained with the treasury and then the School disbursed the necessary funds in favour of the Teachers. Dearness Allowance was also disbursed in the same manner. She submitted that, even after appointment of DDO the respondent No. 8, the Teacher-in-charge, had withdrawn about a sum of Rs.35,00,000/- without obtaining any permission and consent from the DDO. She further submitted that, upon receiving complaints with regard to the Election and formation of the present Managing Committee, the respondent No. 4 informed the same to the respondent Nos. 2 and 3 and consensus with them appointed DDO considering the interest of the educational institution and to run its administration and management legally and in a 6 proper manner for the interest of the students and the institution.
Ms. Bhattacharya further submitted that, there was no existence of reconstituted Managing Committee even after the Election being held. The necessary Financial Committee also not in existence as a result the compliance of Rule 15 of the 1969 Rule was not made. For the purpose of administration of the affairs DDO was appointed.
Ms. Chaitali Bhattacharya further referring to Rule 8 of the said 1969 Rule submitted this was an ideal fact situation where the respondent Nos. 3 and 4 were also empowered to appoint an Administrator/Adhoc Committee to run the show of the School. She submitted that, it is incorrect contention on the part of the petitioner that either the respondent No. 2 or 3 or the respondent No.4 acted without any authority of law. Ms. Bhattacharya, learned State counsel further submitted the nature of interim order as sought for in this writ petition, if is allowed, the same would amount to granting of final relief in the writ petition, the same is not permissible in law. In the event, the appointment of DDO is set aside or stayed for the time being an administrative vacuum will be created for running the School which is an educational institution and wanted at all.
Ms. Koyeli Bhattacharyya, learned counsel appearing for respondent Nos. 2 & 3 adopted the 7 entire submission of Ms. Chaitali Bhattacharya, learned State counsel as recorded above. In addition she referred to page 21 of the writ petition and submitted that this is a regular feature of causing irregularity and illegality while holding an Election of the said educational institution. The same and identical incident had taken place for the previous Election also and the respondent Board was compelled to stall that Election process and directed them to hold the Election afresh strictly in accordance with law. This time also, she submitted that, identical irregularities and illegality had taken place while conducting Election and forming the alleged elected body of the School. Referring to pages 100, 101 and 101A to the writ petition she submitted that, the Board also informed the school not to hold the Election for the office bearer till further instruction comes from the Board. Despite such restriction being imposed by the Board, the School had held the alleged Election for the office bearer.
Ms. Sayanti Sengupta, learned advocate for the respondent No. 8 Teacher-in-charge referring to page 98 to the writ petition submitted that, there was no allegation or irregularity alleged against her client. She submitted that in so far as the component of Dearness Allowance was concerned payable to the Teachers, such payment was made directly by the State by crediting the respective account of the 8 Teachers directly and there was no involvement of the School any manner. She further submitted that the School did not and does not receive any Grant-in-aid. Referring to pages 64 and 65 to the writ petition she submitted that the election was all along free and fair and no document was issued by the Election Officer to the Teacher-in-charge informing anything to the contrary. Learned advocate for the respondent No. 8 referring to clause 26 of the Election procedure submitted that, the newly elected committee shall be deemed to have assumed charge from the outgoing committee from the date of Election of Office Bearers or from the date of expiry of outgoing committee which is later and the newly elected committee shall start functioning from the said date. In the facts of this case, the newly elected Managing Committee has stared functioning in the same manner and in line with the said Election procedure.
Mr. Chandra Sekhar Banerjee, learned advocate appearing for respondent No. 6, the Election Officer adopted the entire submissions made on behalf of the respondent Nos. 2 and 3 and also the respondent No. 4. In addition, referring to page 64 to the writ petition he submitted that, along with the page 64, the documents at pages 65 and 66 to the writ petition were also submitted by the Election Officer to the Teacher-in-charge on the same day i.e. on the day of Election dated September 11, 2022 but 9 the said documents at pages 65 and 66 to the writ petition were not sent to the respondent Nos. 2 and 3 by the Teacher-in-charge.
In reply, Mr. Kallol Basu learned counsel once again referred to the provisions under Section 27(3) of the 1969 Rules and submitted that, the moment it is demonstrated before a Court of law that, the statutory provisions are not complied with and decision has been taken ex facie in violation thereof, this gives rise to a prima facie case for passing an interim order. He submitted that, the appoint of DDO being an encroachment of the authority of the newly elected body is not permissible in law and the same needs to be stayed at this juncture. Mr. Basu further submitted that, there was no allegation of misappropriation of any fund or mismanagement of the affairs of the school, therefore, the question of appointment of DDO should not have arisen.
After considering the rival contentions of the parties and upon perusal of materials on record this Court at the out set takes note of the fact that challenging the very same Election process and the Election procedure two other writ petitions were filed, inter alia, by an unsuccessful candidate in the Election being WPA 24128 of 2022 and WPA 18866 of 2022. The said writ petitions were admitted, however, no interim order was passed for the reasons recorded in the order dated November 30, 2022. In 10 the said order this Court was, inter alia, of the prima facie view that while exercising its jurisdiction under judicial review, the Court should proceed very slow while adjudicating an Election process. After all an elected body has been declared by virtue of a Election. To dismantle such an elected body, this Court was of the firm view that, it needed to examine several aspects with a limited scope of fact finding authority with a Writ Court.
For the scope of adjudication in this writ petition, this Court first proceed to scrutinize the decision of the respondent No. 4 at pages 102 and 104 to the writ petition under which DDO was appointed.
The relevant provisions namely Rule 27(3) of the 1969 Rules is quoted below:
"Provided that the State Government may, by order in writing,
(a) authorize any other person or persons to operate the accounts of the institution and/or to carry out bank transactions ; or
(b) authorize the Director to appoint an officer under him to operate such accounts and/or to carry out such transactions.
(3) If the District Inspector of Schools (Secondary Education) is satisfied that circumstances exist in which payment of grant-in-
aid through the fund of the institution is not expedient, the District Inspector of Schools (Secondary Education) may authorize an officer under him to draw and disburse the grant-in-aid 11 in such manner as the District Inspector of Schools (Secondary Education) may think fit."
The provisions laid down in the above Rule is very clear that if the District Inspector of Schools (Secondary Education) is satisfied that circumstances exists in which payment of Grant-in-aid through the fund of the institution is not expedient, such District Inspector of Schools may authorize an Officer under him to draw and disburse the Grant-in-aid in such manner as the District Inspector may think fit. This clearly shows that the relevant District Inspector while exercising such jurisdiction, first must come to a finding with reasons by recording its satisfaction that the necessary circumstance exists as mentioned in the said Rule 27(3) of the 1969 Rules for appointment of DDO and the other important factor to be considered whether the School received Grant-in- aid from the State. In the light of the said provision the said two documents at pages 102 and 104 are required to be scrutinized. On a plain reading of the said two documents, it appears to this Court that, no satisfaction with reasons was recorded by the respondent No. 4 while appointing the DDO. Further more, in course of the hearing from the rival contentions raised on behalf of the parties as recorded above, it would further be a question need to be decided whether the School actually received any 12 Grant-in-aid or not. Such question can only be decided after conducting a necessary fact finding enquiry on perusal of all the relevant documents and records which are not before this Court at this stage.
Insofar as, the first prayer, namely, Prayer (a) to the writ petition is concerned regarding challenges to the withdrawal of the Departmental Nominee, to decide this issue affidavits are required to be called for as several factual aspects are required to be considered.
There is no doubt in the mind of this Court that the decisions of the respondent No. 4 for appointment of DDO suffers from legal infirmity as the same was not in strict compliance with the provisions as laid down under Rule 27(3) of the 1969 Rules.
In view of the foregoing reasons and discussions the decision for appointment of DDO by the respondent No. 4 dated October 17, 2022 and October 21, 2022 at pages 102 and 104 to the writ petition stands set aside and quashed.
The respondent No. 4 shall revisit the issue for appointment of DDO at the School upon giving at least seven days prior hearing notice to the petitioners, the respondent Nos. 2 and 3 and respondent No. 8 and then giving them an opportunity of hearing shall pass its reasoned order/decision in strict compliance with Rule 27(3) of the 1969 13 Rules and the other appropriate relevant provisions in accordance with law.
The entire exercise as directed above, shall be carried out and completed by the respondent No. 4 positively within a period of two months from the date of communication of this order and the respondent No. 4 shall then communicate its reasoned order to the petitioner and all other concerned parties within a further period of two weeks from the date of the said reasoned order to be passed.
Till such time the present status shall be maintained in the School and the DDO already appointed shall continue and shall act strictly in accordance with law as an interim measure till the final reasoned decision is taken by the respondent No. 4 on the issue as directed above. After such period the DDO shall file a detailed accounts and financial statement before the respondent No. 4 with a copy to the Teacher-in-charge along with a detail report of the activity of the school during such period.
This interim arrangement is made considering the fact that the Election procedure is also under challenge. However, it is further made clear that the function of the DDO shall continue and shall be restricted till the reasoned order/decision is passed by the respondent No. 4 as directed above and not beyond that.
14
The parties who would be participating in the hearing before the respondent No. 4 shall be at liberty to take whatever points they wish to argue and shall be liberty to rely upon whatever documents and records they want to rely upon before the respondent No. 4.
In so far as prayer (a) in the writ petition is concerned, regarding challenge to the withdrawal of the Departmental Nominee this writ petition shall survive and the same shall be decided upon affidavits. It is further made clear that, in so far as prayer (b) to this writ petition is concerned the writ petition shall not survive any further.
Affidavits-in-opposition shall be filed by the respondents on or before January 5, 2023. Reply, if any thereto, be filed by January 16, 2023.
The writ petition shall appear under the heading "Hearing" along with two connected writ petitions namely WPA 24128 of 2022 and WPA 18866 of 2022 in the monthly combined list of February, 2023 one after another.
(Aniruddha Roy, J.)