Calcutta High Court (Appellete Side)
Jerthan Gayaprasad Vidyapith & Ano vs State Of West Bengal & Ors on 1 December, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Dipankar Datta
W.P. No.17940 (W) of 2009
The Managing Committee of
Jerthan Gayaprasad Vidyapith & ano.
...Petitioners
Versus
State of West Bengal & ors.
... Respondents
For the petitioners : Mr. L.C. Bihani
Mr. Soumen Kumar Dutta
For the State : Mr. Bhudeb Bhattacharya
Ms. Arati Ghosh
For the Council : Mr. Ranajit Chatterjee
Heard on : 25.11.2009
Judgment on : 1.12.2009
By filing the present writ petition dated 21.10.2009, the petitioners being the Managing Committee of Jerthan Gayaprasad Vidyapith (hereafter the institution) and its Secretary have prayed for an order on the State of West Bengal through the School Education Department, the Director of School Education, West Bengal, the District Inspector of Schools (S.E.), Purba Medinipur and the Secretary, West Bengal Council of Higher Secondary Education, being the respondents, to upgrade the institution from a High School to a Higher Secondary School on the basis of an application dated 24.6.2006 within a month from date.
The said institution was granted recognition as a High School by the West Bengal Board of Secondary Education (hereafter the Board), as conveyed vide Memo dated 1.8.2000 of its Secretary. Thereby, permission was given to open Class IX from 1.5.2000 and Class X from 1.5.2001 provisionally for three years subject to fulfillment of conditions enclosed therewith. It, however, does not appear from the petition that recognition granted for the initial period of three years has been extended or not by the Board. Notwithstanding the same, I shall assume that the recognition granted to the institution to function as a High School is operative till date.
The Managing Committee of the institution had applied before the Secretary of the West Bengal Council of Higher Secondary Education (hereafter the Council) on 24.6.2006 for its recognition as a Higher Secondary School (for Classes XI and XII) with relevant particulars, w.e.f 1.7.2006 (page 31 of the petition). No decision however was taken by the respondents on such application. It does not appear from the petition that the petitioners followed up such application by making any sincere effort to have the respondents consider such application except that a request letter was sent by the Sabhadhipati, Purba Medinipur Zilla Parishad to the Hon'ble Minister-in-Charge, Department of Primary and Secondary Education, Government of West Bengal for upgrading the institution to promote higher education in the remotest part of the district. There is, however, no proof that the addressee received the request letter.
In terms of provisions contained in Section 21(2)(a) of the West Bengal Council of Higher Secondary Education Act, 1975 (hereafter the 1975 Act), the Council has the power subject to any general or special order of the State Government, the provisions of the 1975 Act and any rule made thereunder to generally direct, supervise and control Higher Secondary Education and, in particular, the power to grant or refuse recognition to institutions if it thinks fit after considering the recommendation of the Recognition Committee, if any, in accordance with such regulations as may be made in this behalf. Sub-section (3) of Section 21 further confers power on the Council to make regulations in respect of any matter for the proper exercise of its power under the 1975 Act.
In terms thereof, the Council framed regulations titled the West Bengal Council of Higher Secondary Education (Recognition of Institution) Regulations, 1976. It is reiterated in Regulation 3(1) thereof that the Council may grant recognition with permission to present candidates for the public examination instituted by it to educational institutions on fulfillment of conditions specified therein subject to such general or special order as the State Government may issue.
Sub-Regulation (2) of Regulation 3 of the Regulations provides as follows:
"3(2). Unless otherwise specified by the Council an application for recognition for the first time shall be submitted to the Council by the 30th September of the year preceding the year from which recognition is sought for. The number of copies to be submitted and fees to be paid for such application shall be specified by the Council from time to time. These conditions shall not apply to the educational institutions seeking recognition from the academic sessions commencing from July, 1976 or to such institutions as the State Government may recommend."
A bare perusal of the provision extracted above impels me to hold that the application filed by the Managing Committee of the institution was defective. If the Managing Committee intended to have recognition w.e.f. 1.7.2006, the application for recognition ought to have been submitted to the Council by 30.9.2005. Since the institution was not recommended by the State Government as one to which the conditions mentioned in Regulation 3(2) of the Regulations would not apply, the Managing Committee of the institution cannot seek exemption from compliance with such condition. The condition for applying within the prescribed time for having recognition w.e.f. 1.7.2006 not having been complied with, the respondents were under no obligation to consider such application.
In view of the above finding, there is no question of the respondents being directed to consider the application in accordance with the law prevailing at the time the same was submitted.
It is not in dispute that in terms of provisions contained in Section 9(1)(c) of the West Bengal Schools (Control of Expenditure) Act, 2005 (hereafter the 2005 Act), rules titled the West Bengal Schools (upgradation) Rules, 2007 have been framed. A new procedure has been laid down therein which is required to be followed for upgrading schools as defined in clause (m) of Section 2 of the 2005 Act by the Board or the Council, as the case may be.
The law as it stands now requires a decision of the State Government under Rule 3 determining, on the basis of notified directions on school mapping and school planning, the type and number of schools in a district to be upgraded in a year leading to making of budgetary provisions in the budget of the State. Only on receipt of such decision, the concerned District Inspectors of Schools may invite applications for up-gradation of schools within their jurisdiction. The institution is in Purba Medinipur. It has not been shown that the District Inspector of Schools (S.E.), Purba Medinipur has invited any application for up- gradation. Admittedly, the Managing Committee of the institution has not made any application in terms of the Up-gradation Rules. In the absence of (i) a decision of the State Government under Rule 3(1) of the Up-gradation Rules and
(ii) invitation of applications for up-gradation under Rule 4(1) thereof, the Managing Committee of the institution has no right to claim up-gradation of the institution.
There might be several schools applying for up-gradation. An order granting recognition is preceded by an investigation as to whether up-gradation of a particular school or schools is essential or not for promoting higher education. Such investigation has to be made keeping in mind the needs of the local people. Once such investigation bears the need to upgrade would come the question of inspection of particular schools which deserve to be upgraded. Only those who fulfil the requisite conditions are favoured with a recommendation by the Inspecting Team, which is placed before the State Government for consideration. The Government in turn has the power to decide for and against up-gradation. In terms of the Up-gradation Rules, 2007, the Council performs a ministerial act in issuing the order of recognition/up-gradation. By introducing the provisions contained in the Up-gradation Rules which amount to repeal of the earlier provisions for recognition/up-gradation, there has only been a change in the matter of procedure. Such change has not touched a substantive right in existence at the time of framing of the Up-gradation Rules, the necessary intendment whereof is to ensure that schools to be upgraded after it has been introduced are required to go through the various stages prescribed thereby.
Submission of Mr. Bihani, learned Senior Advocate appearing for the petitioners that application having been made in June, 2006 the same ought to be directed to be considered in accordance with the law then prevailing has failed to impress me, firstly because the application dated 24.6.2006 itself was defective, and, secondly because no vested right accrued in favour of the Managing Committee of the institution to have the application considered in terms of the law then prevailing. A distinction has to be made between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon repeal of the procedure for recognition, the former is preserved but not the latter. The Managing Committee has no right to claim that the institution should be up-graded; at best it can claim consideration of its application, which must be a valid and proper one complying with all conditions laid down by law. The application made by it being defective does not at all exist in the eye of law, and no further valid and proper application is pending before the respondents for consideration.
He has referred me the decision of the Apex Court reported in (2006) 12 SCC 46 (Abhishek Kumar vs. State of Haryana). It was held by the Apex Court therein that the rules prevailing on the date of death of the deceased staff would be relevant for deciding an application for appointment on compassionate ground and not the amended rules. The decision is not applicable in the present case since the application made by the Managing Committee is not free from defect and is non-est in the eye of law.
The writ petition is devoid of any merit. It stands dismissed without order for costs.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)