Calcutta High Court (Appellete Side)
Md. Rabiul Alam vs State Of West Bengal & Ors on 29 March, 2011
Author: Harish Tandon
Bench: Harish Tandon
1
Sl/ 29.3.11 W.P. 13532 (W) of 2002
4
ac
Md. Rabiul Alam
-vs-
State of West Bengal & Ors
Mr. Biswaroop Bhattacharya
Mr. Golam Mohiuddin ... For Petitioner
Mr. Subir Sanyal
Ms. Sumita Sen ... For Respondent No. 4
Mr. Tulsidas Maity Mr. P.K. Ghosh ... For State The writ petitioner has impugned the order dated 15th July 1997, passed by the District Inspector of Schools (Primary Education), Birbhum, whereby and whereunder an application for appointment on com- passionate ground was rejected.
Mr. Sanyal, learned Advocate for the respondent no. 4, raises a preliminary objection that the writ application is not maintainable in absence of the District Primary School Council being not arrayed as a party in this writ petition. According to him, though the Chairman of the District Primary School Council has been made a party but the District Primary School Council itself has not been made a party. He places reliance upon Section 37 (3) of the West Bengal Primary Education Act, 1973 to contend that the District Primary School Council is a body corporate and can only sue and/or be sued in its name and seal. He further submits that Section 3 Sub 2 section (2) of the West Bengal Board of Secondary Education Act also contains a similar provision, as contained under Section 37 (3) of the West Bengal Primary Education Act, 1973, and relies upon a W.P. 13532 (W) of 2002 judgment of the Division Bench, in the case of Sailendra Nath Ghosh and Ors -vs- The Appeal Committee of the Bengal Board of Secondary Education and Ors., reported in 1975 (2) CLJ 399, to the principle that in absence of a necessary party, the Council in the instant case, the proceeding must fail.
Mr. Bhattacharya, learned Advocate appearing for the writ petitioner, submits that the Chairman is the executive head of the District Primary School Council and once he has been made a party in a proceeding, the instant writ application shall not fail on the ground of non impleadment of the District Primary School Council as a party respondent. He places reliance on a judgement of the Hon'ble Apex Court in the case of the Chief Conservator of Forests, Government of A.P. -vs- Collector and Ors., reported in (2003) 3 SCC 472, to contend that in case of mis-description of party, the Court may, at any stage of the proceeding, permit the writ petitioner to make necessary correction in the cause title so that the party can be correctly described. He strenuously argues that the Council is very much there as a party through the Chairman, and as such, such defect cannot be said to be so fetal so as to render the writ 3 petition liable to be dismissed on such ground.
Having considered the respective submissions, it appears that prior to filing of the instant writ application, the petitioner filed a writ petition, being C.O. 16936 (W) of 1995, which was disposed of by directing the District Inspector of Schools (Primary Education), Suri, Birbhum, to dispose of the representation filed by the writ petitioner by passing a W.P. 13532 (W) of 2002 reasoned order within the stipulated date. Pursuant to the said order, the District Inspector of Schools (Primary Education), passed the impugned order rejecting the representation of the writ petitioner. While rejecting the said representation, the District Inspector of Schools (Primary Education), requested the Chairman, District Primary School Council, Birbhum do the needful in terms of the observation made in the said order. It further appears that copy of the said impugned order was also served upon the Chairman, District Primary School Council, Birbhum.
There is no quarrel as to the proposition that the District Primary School Council is a body corporate and can sue and/or can be sued in such name and seal. Even if it is accepted that the writ petitioner has claimed no relief against the District Primary School Council, it cannot be said that the said Council is not a proper party. This Court feels that presence of the District Primary 4 School Council is very much necessary in order to effectuate complete adjudication in the instant writ application.
Thus, in order to do complete justice amongst the parties, the writ petitioner is directed to add District Primary School Council, Suri, Birbhum as a party respondent to this writ petition.
Since Mr. Sanyal is appearing for the respondent no. 4, the District Primary School Council, Suri, Birbhum, there is no impediment on his part to appear on behalf of the added respondent as well. The writ petitioner is, therefore, directed to serve a copy of the W.P. 13532 (W) of 2002 writ application upon Mr. Sanyal.
Mr. Sanyal shall be at liberty to file affidavit- in-opposition on behalf of the added respondent within three weeks from date and reply thereto, if any, be filed within a week thereafter.
Let this matter appear after four weeks as 'For Orders'.
(Harish Tandon, J.)