Calcutta High Court
Purna Chandra Ghorai And Ors. vs The State Of West Bengal And Ors. on 13 May, 2002
Equivalent citations: (2003)1CALLT496(HC)
Author: P.K. Ray
Bench: Pratap Kumar Ray
JUDGMENT P.K. Ray, J.
1. Heard the learned advocate for all the parties.
2. In this writ application, the petitioners who claim themselves as organising teaching staff of upgraded class IX and X, which has since been recognised by the decision of the West Bengal Board of Secondary Education with effect from 1.5.98, have challenged the decision dated 25.5.2000 passed by the District Inspector of Schools (SE) Tamluk, whereby and whereunder the petitioners prayer for approval of their services with effect from the date of recognition was rejected on different grounds including the grounds that as per the Government Circular No. 117-SE(S) dated 24.2.1995, the conditions as stipulated for according approval of the services of the organiser staff were not at all fulfilled.
3. This writ application has been opposed by filing affidavit-in-opposition by the State respondents. However, this writ application has been supported by the Managing Committee of the school.
4. It is the ease of the writ petitioners that they were appointees of the year 1993 with reference to the upgraded classes IX and X and they are still continuing in the concerned school in question irrespective of its recognition by the West Bengal Board of Secondary Education upon upgrading the classes IX and X with effect from 1.5.98.
5. It has been submitted by the writ petitioners that though their case is not squarely covered in terms of the Government order No. 117-SE(S) dated 24.2.1995 as they did not fulfill the conditions, namely, condition No. 2(ii) but having regard to their long service in the school in question since 1993 till the date of recognition in 1998 i.e. for five years, the upgraded classes were recognised, the equity demands that their services should also be approved.
6. This Court directed the District Inspector of Schools concerned to submit a report on the issue whether the petitioners in fact were the appointee of the year 1993 and are still working in the school in question. The District Inspector of Schools concerned has submitted such report by way of filling the affidavit upon annexing several documents therein.
7. Such affidavit was opposed by the writ petitioners as well as by the Managing Committee of the school by filing several documents to prove the factum of the services of the present petitioners in the school in question as the appointee organiser teaching staff with effect from 1993. Hence, it appears that there is a claim and counter-claim so far as the working of the petitioners in the school in. question as organiser teaching staff even with effect from 1993, is concerned. For effective adjudication of this case, the Memorandum No. 117-SE(S) dated 24.2.1995 is required to be dealt with first. The said Memorandum reads as follows:
"Memorandum Sub: Approval of appointment of the organiser teachers and nonteaching staff in non-Government Secondary Schools newly recognised as four-class Junior High School of newly upgraded to High School by the West Bengal Board of Secondary Education.
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On careful consideration of the question of according approval to the organiser teachers/non-teaching staff of the secondary newly recognised as Four-class Junior High School or newly upgraded to High School by the West Bengal Board of Secondary Education on the recommendation of the State Government, it has since been decided by the State Government in the Education Department that the following principles shall apply in the matter of granting approval to the appointments of organiser-teachers and non-teaching staff of such non-Government secondary schools consequent upon such schools being so recognised/upgraded by the West Bengal Board of Secondary Education on the recommendation of the State Government.
2. Upon first recognition of unrecognised four-class Junior High Schools and upgradation of recognised four-class Junior High Schools to High School, the teaching and non-teaching staff as have been appointed by such schools in conformity with the following conditions for running of the un-recognised classes may be considered as organising staff for approval of their appointments subject to the following conditions:
(i) The appointments of organiser teachers and non-teaching staff of a newly recognised four-class Junior High School shall be approved provided such school had duly applied with the prescribed fees to the West Bengal Board of Secondary Education for its recognition. Evidence to the effect that such application along with the prescribed fees was received by the Board has to be furnished by the concerned school authorities.
(ii) The appointments of only those organiser teachers and non-teaching staff of a newly upgraded High School which was previously already permitted by the West Bengal Board of Secondary Education to send up examines for the Madhyamik Examination (and now upgraded from 4-class Junior High School level to class-X) shall be approved who were serving at the school for the unrecognised units of classes IX and X at the time of dissolution of those units by the West Bengal Board of Secondary Education's Circular No. 1/78 dated 31.1.1978 and have been continuously serving at the school.
(iii) The name(s) of such teacher(s) and non-teaching staff are recorded in the final inspection report leading to such recognition-upgradation.
(iv) Such staff possessed the prescribed minimum qualification for their respective posts on the date of initial appointment as was existing on that date.
(v) Such staff were within the prescribed age-limit on the date of initial appointment as was existing on that date.
(vi) Such teaching non-teaching staff shall be approved in order of seniority (as recorded in the inspection report) strictly conforming to the existing approved staff pattern,
3. It is clarified that the conditions laid down in the Clauses (iii), (iv), (v) and (vi) mentioned above.
4. No exception to the aforesaid norms shall be made in any case without specific prior approval of the State Government.
5. This order issues in suppression of G.O. No. 1224-Edn (S) dated 5.12.87 (substituted on 18.2.89) and G.O. No. 895-Edn (S) dated 30.9.92.
6. This order shall take effect immediately.
7. All concerned should be informed accordingly."
8. From the aforesaid Memorandum, it appears that the State Government took a policy by way of executive decision to accord approval of service to those organiser teaching staff of upgraded classes who were in service prior to 31.1.78 as with effect from that date the special permission as earlier accorded to open class IX and X and allowing permission to send up the candidates from such unapproved classes, were discontinued. Since the Government allowed some schools for the year 1973 to 1978 to upgrade classes IX and X as unapproved classes and thereby allowed the candidates to be sent up as candidates of that school, Government accepted the responsibility very fairly and judiciously with reference to the organiser teaching staff who performed their duties during the relevant years. But Government did not agree to grant such relief to the subsequent appointees i.e. post 31.1.78.
9. Petitioners' case is that though they are not getting any benefit in terms of the Government Circular but claim their right to be considered for absorption in the posts in question on the ground of equity and social justice as they have rendered long services and their appointment should be regularised by way of absorption in the permanent vacancies as created in terms of upgradation of the school.
10. The petitioners accordingly have sought for a writ of Mandamus directing the State respondents to accord approval to the services of the petitioners with retrospective effect from 1.5.98 when upgraded classes got recognition.
11. It is a settled legal position that writ of Mandamus will only lie when the petitioners have a legal right in terms of any statute or Circular and the respondents have corresponding legal duties and obligations to perform such duties. Reliance may be placed to the judgments passed in the cases of M.S. Jain v. State of Haryana, , State of Kerala v. A. Laxmi Kutti and Ors., , State of Uttar Pradesh v. Harish Chandra, , Director of Settlements, Andhra Pradesh and Ors. v. M.R. Apparao and Ors., reported in 2002 SCW 1504.
12. The case of Director of Settlements, Andhra Pradesh (supra) is a judgment passed by three-Judges Bench relying on the earlier views of the Apex Court as passed in the decision reported in Kalyan Singh and Ors. v. State of Uttar Pradesh and Ors., reported in AIR 1962 SC 1183.
13. There is a Constitution Bench decision passed by the Apex Court in the case of Dr. Rai Shivendra Bahadur v. Governing Body of Nalanda College, .
14. Hence, from the settled legal position of the Apex Court, it is clear that writ of Mandamus as prayed for, cannot be passed as there is no statutory legal right as would allow the petitioners' elevation from unapproved staff to a permanent approved staff of the school in question.
15. Since the Government has taken a stand to provide certain benefits to a particular class and petitioners are not identically placed in terms of Memo No. 117-SE(S) dated 24.2.95, the Court cannot pass any direction as prayed for, even on applying the doctrine of equality as has been vehemently thrust upon by the learned advocate appearing for the petitioners. Once there is a statutory circular letter and/or non-statutory executive order, in both the case the Court is required to follow such statutory direction and/or non-statutory executive order when it relates to a policy decision of the Government.
16. However, from the Memorandum No. 117-SE(S) dated 24.2.95 which in fact is a Government order issued by the Secretary to the Government of West Bengal, the applications for approval of the services of organiser teaching and non-teaching staff are being dealt with. The same should be looked into in the present case for effective decision under Clause 1 of the said Memo. It appears from the said Clause 4 that no exception to the aforesaid norms shall be made in any case without specific prior approval of the State Government. Hence, from Clause 4, it appears that the aforesaid memo dated 24.2.95 did not impose any absolute statutory embargo accord approval of service of the present petitioners otherwise surely there would not have been specific provision in Clause 4 that the norms can be changed or varied subject to the approval of the State Government.
17. Hence, there is a scope for consideration of this matter by the State Government itself which can change the norms under special facts and situation of this case. When it is an admitted case of the petitioners that they are not the appointees of post 31.1.78 and they are not covered by the Memo No. 117-SE(S) dated 24.2.95 due to nonfulfillment of the norms laid down therein and on such basis when earlier in a writ proceeding this Court directed the authorities to decide the question by order dated 9.2.2000 passed by Prabir Kumar Samanta, J., it is clear that the Court intended application of Clause 4 i.e. approval of the State Government under special facts and situation of the case. The order of Prabir Kumar Samanta, J., as passed in the earlier writ proceedings was not appealed against and accordingly, it has reached judicial finality.
18. The order dated 9.2.2000 was a contested order wherein all the parties appeared, namely, the State respondents and the school authorities. By the order dated 9.2.2000, considering the facts and particular situation of the case of the petitioners, the Court accordingly directed to the following effect:
"So the same is disposed of with a direction upon the District Inspector of Schools (SE) Tamluk to treat this writ petition as the representation of the petitioners before him and to dispose of the same in accordance with the provisions of law, within a period of three months from the date of communication of this order."
19. Hence, it is clear that the Court being mindful of Memo No. 117-SE(S) dated 24.2.95 and being mindful of the pleading of the petitioners wherein the petitioners, admittedly, pleaded that they were not the appointees covered by Clause 2(ii) of the aforesaid Memo, when passed a direction to the District Inspector of Schools concerned to dispose of the representation, surely the District Inspector of Schools was required to seek for approval of the State Government for modification of the norms concerned as stipulated in that Memo, without doing so the District Inspector of Schools concerned committed illegality by rejecting the prayer of the petitioners. In that view of the matter, the impugned decision of the District Inspector of Schools concerned cannot stand and the same is accordingly set aside and quashed.
20. However, the grant of any relief to the petitioners by this Court is not possible to be made, since it is the State Government who is required to accord necessary approval by changing the norms from case to case and such scope is there under Clause 4 the said Memo dated 24.2.95. Clause 4 is the main guiding clause for adjudication of this matter and accordingly, the same is quoted hereinbelow:
"No exception to the aforesaid norms shall be made in any case without specific prior approval of the State Government."
21. Hence, it appears that when by a Government order the State Government itself has accepted that norms as laid down under Clause 2 could not be changed without the prior approval of the State Government, it clearly is suggestive of that the State Government as also the appropriate authority has power to change norms under certain conditions otherwise there was no question of incorporating Clause 4 in the Government Memo. Hence it is clear that absorption of the organiser staff to some extend by the said Government Circular was made flexible and it is subject to the approval of the State Government when the conditions of the norms as stipulated thereto were not exactly fitting to the case concerned. Once the Government in exercise of its executive power either under Article 162 of the Constitution of India and/or by its administrative decision accepts something and thereby the Government order is issued, the Government is squarely bound to follow that.
22. In the instant case, it appears that the writ petitioners are working since 1993 and it further appears that District Level Inspection Team (DLIT) noted the existence of classes IX and X at the material time when the school was inspected at pre-recognition stage.
23. It has been urged by the learned advocates for the respondents that in the list submitted by the DLIT the names of the petitioners did not appear. Such argument fails because there was no scope of incorporating the names of the petitioners as there was no such column in such proforma of the report. The proforma only provided under Clause (g) to record the names of those organising teaching and non-teaching staff who were in the school in question prior to 31.1.78.
24. Since it is the positive case of the petitioners that they were not working in the school prior to 31.1.78 but they were subsequently appointed with effect from the year 1993 but continued to run unapproved classes IX and X, accordingly, there was no scope to record the names of the petitioners in the DLIT report. To that effect, the reasoning of the District Inspector of Schools concerned refusing to grant approval which is impugned in this writ application, namely, the petitioner's name did not appear in the DLIT report, has no legal basis and foundation.
25. From the DLIT report when it appears that even on 5.8.95, there was existence of classes IX and X, surely, it is to be presumed by this Court that unapproved classes were continuing for a long period. Now the question would be who was running such unapproved classes IX and X. It is the case of the petitioners that being appointed in the year 1993, they were continuing to function as organisers staff of those classes and many students after completion of the classes tests were sent up for Madhyamik Examination from different schools as there was no chance to send up those candidates from the present school as per the Rules issued by the West Bengal Board of Secondary Education,
26. The upgradation of a class is made by considering the viability of those classes from the statistical data, namely, the number of students intake in class IX and number of students who were reading in class VIII. The object of DLIT is to come to a definite conclusion by comparing different datas of past years and to suggest that there was a need for upgradalion of the classes. Hence, it is clear that any report for upgradation and/or any final order of upgradation to classes surely carries the past dates which supported the continuation of such unapproved classes as approved classes. From the air nothing can be done. Upgradation of classes also requires a foundation, namely, necessity and need in the area in question to upgrade the classes and such need can be ascertained by objective verification and subjective determination of the school records and the number of students intake in the unapproved classes of schools in question.
27. Unless and until there is unapproved classes IX and X suo motu, there is no scope to upgrade any school as otherwise there would be a failure of objective and subjective identification of the need by the DLIT. In that view of the matter, this Court is of firm view that the school was rendering such education to students of class IX and X from long before the pre-recognition stage and such fact was accepted by the DLIT. The DLIT consists of one District Inspector of Schools one Government representative and one representative of the Director of School Education. The report of the DLIT has the sanctity to that effect and neither the Government nor the Director of School Education as well as the District Inspector of Schools concerned can deny such report as there was a Government nominee who was a party to such report. The Government is also bound to accept such report. Hence, it is clear that there was existence of classes IX and X. Once there was existence of classes even at the pre-recognition stage, the question would be whether those persons who sacrificed their youth by rendering such education to the students concerned and thereby helped the school for upgradation of the classes would be deprived of the benefits of approval of service. This Court cannot pass any mandate in view of the settled decisions as already discussed but under Clause 4 of the Government Memorandum dated 24.2.95 as referred to above, the State Government of course, is required to perform their duties for absorption of the service of the petitioners by exempting the applicability of the norms as laid down in the Memo dated 24.2.95.
28. Hence, once the Government has accepted to consider those cases by way of approval and since before this Court a factual dispute has been raised whether the petitioners were in fact working in the school, this Court cannot travel into such facts. It is also settled law that the writ Court cannot travel in the facts and determine the status of the parties.
29. In that view, having mindful of the claim of the petitioners, as they were rendering service, it is required to be considered by the State Government and having regard to Clause 4 of the Memo No. 117-SE(E) dated 24.2.95, it is directed that the entire matter now be placed before the State Government who will adjudicate the question of absorption after taking into account all the facts, namely, their past services and their sacrifices to lead the school to have approved classes for IX and X.
30. In that view of the matter upon quashing the said impugned order passed by the District Inspector of Schools (SE) Tamluk, it is directed that the State Government must decide the question of approval of appointment of the petitioners on consideration of the special facts and circumstances of the case and thereby will decide the issue in question regarding their absorption upon giving hearing to the petitioners within six weeks from the date of communication of the order. A reasoned decision is to be passed by the State Government as to whether exception in the aforesaid norms can be made in respect of the present case of the petitioners for absorption as organiser staff in terms of Clause 4 of the said Memo dated 24.2.95. The petitioners would be at liberty to place all the materials and documents before the said authority.
31. Since under the General clauses Act the State Government means the Hon'ble Governor of the State, but the Hon'ble Governor as per the constitutional provisions has a right to delegate his powers under the Rules of Business to anybody. In the instant case, it is submitted by the learned advocates for the parties that the Principal Secretary of the School Education Department, Government of West Bengal is vested with the power of the State Government to deal with such matter, hence it is directed that this matter should be decided by the said authority in terms of the judgment and observations made above. However, the parties are given leave to place their respective documents, as filed before this Court, before the said authority upon exchanging their documents in between themselves. The aforesaid authority will hear the matter after giving opportunity of hearing to all the parties and after serving notice by fixing the particular date of hearing. Such decision should be communicated to the petitioners within four weeks from the date of taking such decision.
32. During such period, till the decision is communicated, there will be an injunction restraining the respondents from taking any steps for filling up the posts as have been permanently sanctioned due to upgradation of classes IX and X. The order of status quo as regards the services of the petitioners will continue.
This writ application is thus allowed. There will however, be no order as to costs.