Calcutta High Court
Shyamal Kr. Jana vs The State Of West Bengal And Ors. on 28 March, 2005
Equivalent citations: (2005)3CALLT325(HC)
JUDGMENT Arun Kumar Mitra, J.
1. In this writ petition the only point of law which is to be decided is:
2. For the purpose of reconstitution of the Managing Committee of a School who is the authority to send a nominee of local Panchayat Samity or how the nomination can be made or the nominated name how can be sent to the School.
3. Here, two persons have been nominated, admittedly one is the petitioner and the other is one Sri Ashis Baran Jana both are nominees of Nandigram II Panchayat Samity sent to Barachira P.B. High School, P.O.-Rankinipur, District-Purba Medinipur for reconstitution of the Managing Committee of the said School.
4. Mr. Bhattacharjee, appearing for the petitioner submits that nomination of Ashis Baran Jana is not valid and proper inasmuch as his nomination has been sent by the Sabhapati in his personal capacity without any meeting or without any resolution.
5. Mr. Bhattacharjee further submits that Panchayat Samity is a statutory body having a common seal and it can be sued in its own name.
6. Mr. Bhattacharjee submits that under Section 124(1)(v) Shiksha, Sanskriti, Tathya--O--Krira Sthavee Samity is there whose function is to look after educational affairs and naturally this Sthayee Samity is the authority to send the nominee of the Panchavat Samity through its Sabhapati.
7. Mr. Bhattacharjee submits that the Sabhapati of the Panchayat Samity has no power to nominate any representative for the purpose of sending his name as nominee of the Panchayat Samity in the School in "Person interested in Education" category.
8. Mr. Bhattacharjee further submits that since that has not been followed, the nomination of Ashis Baran Jana is illegal. In support of his contentions that is whether his client, the petitioner herein was nominated by the said Sthayee Samity, a memo of the Executive Officer, Nandigram II Panchayat Samity being Memo No. 935 dated 30/11/2004 addressed to the Head Master has been annexed as annexure-'P3' to the writ petition.
9. In this memo it has also been written that the name of Sri Shyamal Kr. Jana (Petitioner herein) has been placed instead of the name of Sri Ashis Baran Jana, S/0-Nagendra Nath Jana franchised and sent by Sabhapati, Nandigram II Panchayat Samity through memo No. 558 dated 28/10/2004.
10. In this context Mr. Bhattacharjee further referred to annexure-'P1' which is, a memo issued by the Head Master to the Sabhapati, Nandigram II Panchayat Samity being numbered 615/ H.M. dated 25/08/2004.
11. Mr. Bhattacherjee further submitted that through this memo the Head Master asked for placement of nominee from the Panchayat Samity.
12. Mr. Bhattacherjee further submits that on 28/10/2004 the Sabhapati, Nandigram II Panchayat Samity issued memo No. 558 addressed to the Head Master of the said Barachira P.B. High School. This is annexure-'P2'.
13. Mr. Bhattacharjee relevantly referred to another annexure to the writ petition being annexure-'P5' which is memo No. Mid(E)239/ 05/04/3 dated 18/01/2005 issued by the Assistant Secretary(G), West Bengal Board of Secondary Education addressed to the Executive Officer, Nandigram 11 Panchayat Samity which also relates to placement of the Panchayat nominee and on behalf of the Board through this memo" query has been made as to whether placement has already, been made or not.
14. Mr. Bhattacharjee then refers to annexure-'P6' to the writ petition which is a letter dated 21/02/2005 addressed to Sri Satyendra Nath Pradhan (Teachers' Representative). Assistant Teacher, Barachira P.B. High School. Through this letter the Head Master informed the said Assistant Teacher/Teachers' Representative that a meeting will be held on 28/02/2005 at 10 A.M. in the School office for the election of office bearers of the newly reconstituted Managing Committee of the School and the said Teachers' Representative was requested to be present in the meeting.
15. The last annexure is annexure-'P7' which is a mass petition addressed to the Head Master of the said School for accepting Sri Shyamal Kr. Jana, the petitioner as nominee of the Panchayat Samity.
16. Mr. Bhattacharjee submits that in 1992 Panchayat Act was amended and in section 124(1)(V) one Shiksha. Sanskriti, Tathya--O--Krira Sthayee Samity has been introduced and it is the duty of that Samity to nominate the name of the candidate of the Panchayat Samity who will be placed as 'Person Interested in Education' category in the said School.
17. According to Mr. Bhattacharjee other nomination can't be there and that is why the petitioner has prayed for a writ in the nature of Mandamus commanding the respondent authorities not to give any or further effect to the result of the officer bearer election of the Managing Committee of Barachira P.B. High School.
18. The petitioner has also prayed for a writ in the nature of Certiorari directing the respondents to transmit and/or produce before this Hon'ble Court "all the relevant records of this case so that perusing the same and hearing the parties conscionable justice may be rendered to the petitioner by passing an appropriate order or orders."
19. Appearing for the respondent No. 7 (added) Mr. Dey submits that the position is this; the name of the petitioner Sri Shyamal Kr. Jana has been sent by Shiksha Sthayee Samity as provided in West Bengal Panchayat Samity Administration Rules, 1984, Rule 31. Sub-rule (v). Mr. Dey submits that insofar his candidate Ashis Baran Jana is concerned, the name has been sent by the Sabhapati in his personal capacity and this is waiting for ratification in the next Panchayat Samity meeting. Mr. Dey draws analogy from the provisions of Section 28(2) of West Bengal Board of Secondary Education Act, 1963 where the President of the Board exercises emergency power under this section and his decision is ratified in the subsequent board meeting.
20. Mr. Dey submits that here the nomination of his client is awaiting and is not illegal as yet but the nomination of the petitioner is illegal and invalid.
21. On behalf of the Executive Officer, Panchayat Samity, submission has been made that as per resolution of Shiksha Sanskrit Tathya--O--Krira Samity dated 29/11/2004 the name of Sri Shyamal Kr. Jana has been sent to the School and annexure-'P3' referred to by the learned counsel for the petitioner is the letter of the Executive Officer which establishes the fact that the petitioner's name has been validly nominated.
22. The Submission of the learned counsel for the State is insignificant in this context. The respondent No. 6 supported the nomination of Ashis Baran Jana.
23. Since the entire matter relates to the decision of a particular legal aspect as indicated above, no affidavit has been called for Procedure for holding election for the purpose of reconstitution of the Managing Committee of a Secondary School Clause 21(b) and Clause 22 are relevant which are. quoted herein below:-
"NOMINATION OF LOCAL PANCHAYET SAMITY:
21(b) In the case of an Institution within the jurisdiction of Panchayet, the Head of the Institution or any other person authorised by the District Inspector of Schools or appointed by Executive Committee of the Board under Rule 4(2b)(2c) of the Rules, shall write to the local Panchayet Samity to send the name of a nominee of the local Panchayet Samity who is a Person interested in Education as per Proviso to Rule 6 of the Rules, at least 15(fifteen) days prior to the date of holding election of guardian members on the Committee, by registered post with acknowledgement due, with the request to send the name of a nominee of Local Panchayet Samity within 30 days from the date of election of guardian members on the Committee. In the case non-receipt of the name of a nominee from the Local Panchayet Samity within the said specified period, the matter shall be reported to the Executive Committee of the Board.
DEPARTMENTAL NOMINEE:
22. Within three days of the declaration of results of the election of the Committee, the Head of the Institution or any other person authorised by the District Inspector of Schools or appointed by Executive Committee of the Board under Rule 4(2b)(2c)of the Rules, shall write to the District Inspector of Schools (Secondary Education) for sending the name of a departmental nominee on the Committee to enable him/her to complete constitution or reconstitution of the Committee. Any delay in the placement of a departmental nominee within the period specified under Rule 9(3) of the Rules may be brought to the notice of the Executive Committee of the Board by the Head of the Institution or any other person authorised by the District Inspector of Schools or appointed by the Executive Committee of the Board under Rule 4(2b)(2c) of the Rules."
24. It is also clear that in the West Bengal Panchayat Act, 1973 in Section 2(16) the definition of Panchayat Samiti is there 'Panchayat Samiti' means a Panchayat Samity constituted under Section 94. Section 94 of the West Bengal Panchayat Act provides that for every block the State Government shall constitute a Panchayat Samiti bearing the name of the block and thereafter, in this section it has been stated how the Panchayat Samity will be constituted. In Section 124 Sthayee Samities have been provided and it has been stated that a Panchayat Samiti shall have the following Sthayee Samities, namely:-
[Shiksha, Sanskriti, Tathya--O--Krira] Sthayee Samiti.]
25. It is clear and apparent that this amendment in the Act insofar as this Samiti is concerned came into effect in the year 1992. The Samiti on which Mr. Dey placed reliance being Sthayee Samiti provided in Chapter VIII, Section 31(5) of the West Bengal Panchayat Samiti Administration Rules, 1984. This Sthayee Samiti as provided in Rule 5 will deal with.
(i) Primary Education, (ii) Social Education, (iii) Adult Literacy, (iv) Recreation, (v) Information and mass communication, (vi) Games and Sports, (vii) Youth Services.
This Rule is of 1984.
26. In my view, therefore, the amendment Act which speaks of a Shiksha Sthayee Samiti as referred to by Mr. Bhattacharjee came into effect in 1992 whereas the Sthayee Samiti as referred to in the Rules came into effect in the year 1984. That apart the Samiti provided in the rules is in nowhere connected or involved with Secondary Education. It only speaks of Primary Education and the School is a Secondary School.
27. There is no doubt that here the rule is earlier subordinate legislation whereas the amended Act is subsequent amended original legislation.
28. It may be recorded that I am also unable to agree and differ respectfully with the submissions of Mr. Dey drawing analogy to the emergency power of the President of the Board and the ratification of the President's decision in subsequent meeting inasmuch as Panchayat Act does not give any emergency power to the Sabhapati or the Saha Sabhapati. Naturally, no question of ratification in subsequent meeting does or can arise.
29. In my opinion with respect I am also unable to agree with the submissions of Mr. Dey and I find the nomination of the petitioner is legal and valid nomination by a legal authority. In that view of the matter the writ petition is allowed. The nomination of the petitioner as Nandigram II Panchayat nominee placed in Barachira P.B. High School, P.O.-Rankinipur Dist.-Purba Medinipur is the only valid nomination and the nomination of Sri Ashis Baran Jana can't be said to be valid.
The writ petition is thus disposed of with the above directions.
There will be no order as to costs.