Calcutta High Court
Namita Chowdhury vs The State Of West Bengal And Ors. on 15 May, 2002
Equivalent citations: (2003)2CALLT63(HC)
Author: P.K. Ray
Bench: Pratap Kumar Ray
JUDGMENT P.K. Ray, J.
1. Heard learned advocates for the parties.
2. In this writ application, the petitioner has challenged the decision dated 1.7.96 of the District Inspector of Schools (SE). Uttar Dinajpur, whereby and whereunder the petitioner's prayer for approval of appointment with effect from 1.1.87 as organising teacher of the concerned school instead of 1.4.91 as granted, was rejected.
3. This writ application has a chequered career. The petitioner moved a writ application praying for approval of service as organising teacher of the concerned school with effect from the date of recognition of the school, that is 1.1.87, being C.O. No. 3908(W) of 1991 which was finally disposed of by the judgment and order dated 5.4.91 by Mahitosh Majumdar, J. which reads as follows:
"There is no dispute that the petitioner is an organising assistant teacher from the inception of the school and the name of the petitioner was duly recorded by the District Level Inspection Team by their report leading to the recognition of the school and as such as per circular dated 20th December, 1984 issued by the Director of School Education, West Bengal, the petitioner is entitled to get her approval as an organising assistant teacher of the said school and as such the Director of School Education, West Bengal may be directed to grant approval to the petitioner's appointment as has been done to other organising teachers of other schools whose name duly appeared in the District Level Inspection Team."
4. From the aforesaid order, it appears that the said writ application was disposed of upon hearing all the parties, namely, the State respondents and the Managing Committee of the school. The Director of School Education, West Bengal, in terms of the aforesaid order, however, accorded approval of appointment of the petitioner as Assistant teacher in Social Science Group in the concerned school with effect from 1.4.91 upon holding, inter alia, as follows:
"I have carefully considered the matter. The circular referred to by the learned advocate was subsequently superseded by other circulars relating to approval of appointment of organising teachers. Although the petitioners does not fulfill all the conditions relating to the approval of an organising teacher, I take a compassionate view of the case having regard to the fact of her continuous service rendered by her and also having regard to the fact that she was within the age limit at the time of her initial appointment and has got the requisite qualification. Hence it is directed that her appointment as an Assistant Teacher in the Social Science Group be accorded with effect from 1.4.1991."
5. On a bare perusal of the decision reached by the Director of School Education, West Bengal, it ex facie appears that such decision was not passed in terms of the order passed by Mahitosh Majumdar, J. (as His Lordship then was) on 5.4.91. However, the petitioner filed a fresh writ application on that point relying upon the judgment of Mahitosh Majumdar, J. as referred to above, when G.R. Bhattacharjee, J. (as His Lordship then was) disposed of the said writ application, being C.O. No. 20999(W) of 1995 by the order dated 13.12.95 directing the District Inspector of Schools concerned to consider the said writ application as a representation of the petitioner. In pursuance thereof, the District Inspector of Schools concerned has passed the impugned decision in this writ application. The reason as assigned rejecting the prayer of the petitioner to have the approval of service with effect from 1.1.87 in the impugned decision, reads as follows:
"The matter is carefully considered and the provisions of G.O. No. 1224-Edn.(S) dated 5.12.87 are also carefully considered. In the said G.O. it has been clearly Instructed that the cases of approval of organiser teachers of such schools as had applied to the West Bengal Board of Secondary Education before 1975 and subsequently recognised/ upgraded with effect from 1.1.86 and 1.1.87 will be taken into consideration. In the instant matter the school does not fall within this purview. Here the Director of School Education has accorded the approval with effect, from 1.4.91 only on compassionate ground. So the claim of the petitioner for approval of her appointment with effect from 1.1.87 as organising teacher can not be considered under any circumstances."
6. It is submitted by the learned advocate for the petitioner that in terms of the circular letter No. 2605(16)-SE/S dated 20,12.84 read with the judgment passed by Mahitosh Majumdar, J. the petitioner became entitled to have the approval of her service with effect from the date of recognition of the school, that is 1.1.87. It is further submitted that the Director of School Education, West Bengal, had no jurisdiction to pass any order on compassionate ground and as a consequence thereof the decision of the District Inspector of Schools concerned rejecting the petitioner's prayer also is illegal and contrary to the judgment as delivered by Mahitosh Majumdar, J. in the earlier writ application.
7. Despite direction no affidavit was filed on behalf of the State respondents opposing the writ application. Direction to file affidavit was given long time back on 4.10.96. However, the learned advocate appearing for the State respondents Mr. Ghosh submits that the impugned decision approving the service of the petitioner with effect from 1.4.91 was passed on consideration of availability of vacancy and accordingly the petitioner is not entitled to get any benefit. However, the learned advocate Mr. Ghosh has frankly conceded that the decision of the Director of School Education, West Bengal, was contrary to the observation passed by Mahitosh Majumdar, J. in his judgment dated 5.4.91.
8. Having regard to the relevant submissions of the parties, the issue of the writ application is now being decided. The issue regarding entitlement of the benefit on approval of service with effect from 1.1.87 reached its finality first time in the writ application as was disposed of by Mahitosh Majumdar, J. The said writ application was disposed of after hearing the learned advocates appearing for the State respondents. Hence, the judgment passed by Mahitosh Majumdar, J. on 5.4.91 reached its finality as no appeal was preferred. From the judgment dated 5.4.91 aforesaid, it appears that in Clause (e) the Court observed that in terms of the circular letter dated 20.12.84, the petitioner was entitled to get her approval as an organizing teacher of the school. Further, it appears that in view of inclusion of the words by this Court earlier "as such", and thereby a direction to the Director of School Education to grant approval to the petitioner's appointment as was given to other organising teachers of other schools, it is clear that the lis between the parties, that is the petitioner qua the State respondents's officers got its seal by the order of Mahitosh Majumdar, J. whereby the right of the petitioner was accepted by the Court and accordingly the Court directed the Director of School Education, West Bengal to adjudicate the matter on the basis of the observations and findings of the Court. It is a settled law that once a judgment reaches its finality nobody can touch such judgment save and except the appeal Court. It is also a settled law that judgment of the High Court of a State is binding upon all the administrative bodies, quasi judicial authorities, tribunals and Courts etc. within that State. Though there is no provision in the Constitution similar to the provision of Article 141 of the Constitution of India whereby the order of the Supreme Court has its binding effect upon all the authorities judicial, quasi judicial and administrative bodies all over India. Reliance in this connection may be placed to the judgment in the case of Shri Baradakanta Mishra v. Shri Bhimsen Dixit, and the judgment of Division Bench of this Court passed in the case Atmaram Kanoria and Ors. v. L.K.R. Prasad and Ors., reported in 1990(1) CLJ 169 (para 11). In the Apex Court judgment, it is held that the judgment of High Court is squarely binding upon all the administrative quasi judicial authorities, Courts and Tribunals of the concerned State. Further, it has been settled by the Apex Court that once a judgment reaches its finality, such judgment cannot be changed/modified by anybody except the higher Court and further it has been held by the Apex Court that even by amendment of rule, a judgment of a Court which reached its finality cannot be made mandatory. Reliance in this connection may be placed to the judgment in the case of Madan Mohan Pathak v. LIC (on bonus issue), , Constitution Bench judgment passed in the case of L.C. Golak Nath and Ors. v. State of Punjab and Anr., as well as view of this Court passed in the case Atmaram Kanoria and Ors. v. L.K.R Prasad and Ors., reported in 1990(1) CLJ 169 (para 15). Having regard to the legal position, accordingly it appears that the judgment of Mahitosh Majumdar, J. dated 5.4.91 was only the guiding factor for adjudication of the petitioner's case before the Director of School Education Department. However, from the decision of the Director of School Education, West Bengal it appears that the said authority passed a decision according approval of the service of the petitioner with effect from 1.4.91 upon holding, interalia, that the circular letter dated 20.12.84 has no applicability as the same was superseded by another circular letter whereby a provision was made that the organising teacher must satisfy another condition, namely, that the school had applied for recognition prior to 1975. It has been further held by the Director of School Education that since that condition was not fulfilled, accordingly the organising teacher got no right to be absorbed, but on compassionate ground her service was approved with effect from 1.4.91. The reason of the Director of School Education; West Bengal granting approval of service of the petitioner with effect from 1.4.91 ex facie is contrary to the views and observations made by Mahitosh Majumdar, J. on 5.4.91 in the judgment. The Director of School Education committed a contempt by passing the said views, particularly holding that the circular letter dated 20.12.84 had no applicability when Mahitosh Majumdar. J. under Clause (e) of the order had held that in terms of the circular letter dated 20.12.84, the petitioner was entitled to get her approval as an organising assistant teacher of the school in question. The Director of School Education had no authority, jurisdiction and power to sit over the judgment passed by this Court. This Court is expressing displeasure on the action of the Director of School Education. West Bengal for assigning such reason which is contrary to the decision which reached its finality by pronouncement of a judgment of this Court, and more particularly when such judgment has passed after a contested hearing in the presence of the State respondents. Furthermore, if the matter is considered not only in the angle of judicial discipline having public element to that effect, namely, that the decision of a Court must be binding to all the parties the matter can be looked into from another angle, namely, from the angle of constructive res judicata. Before Mahitosh Majumdar, J. State respondents did not urge this point that the circular letter dated 20.12.84 was not applicable and the petitioner was not entitled legally to have the approval of her service with effect from 1.1.87 in view of coming into effect of further circular letter dated 5.12.87, whereby and whereunder a new condition was imposed about filing of application for recognition of school before 1975. Once these points were not taken by the State respondents in the earlier writ application all the officers of the State respondents accordingly are bound by the decision as adjudication is conclusive and final not only as to the actual matter determined but as to every matter which the parties might or ought to have litigated. Reliance may be placed to the case Forward Construction Co. and Ors. v. Prabhat Mandal (regd.). Andheri and Ors., , the relevant paragraphs of said report reads thus:-
"20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and subsequently in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force."
9. Constructive res judicata is squarely applicable in so far as the decision making process as was taken by the Director of School Education, West Bengal. It has been held by the Apex Court in a Three Judges Bench judgment in the case of Hope Plantations Ltd. v. Taluk Land Board, Peermade and Anr., that the principle of res judicata is also applicable in a proceeding before the administrative authority as they are bound on public policy of justice. Having regard to the legal principle, it is now absolutely clear that the Director of School Education, West Bengal acted contrary to the judgment of Mahitosh Majumdar, J. In that view of the matter, when G.R. Bhattacharjee, J. by subsequent order dated 13.12.95 directed the District Inspector of Schools concerned to decide the said question, the said authority was required to consider the judgment passed by Mahitosh Majumdar, J. but unfortunately from the impugned decision, it appears that the said authority again relied upon the circular letter dated 5.12.87 which is nothing but violation of the observations and findings made by Mahitosh Majumdar, J. in Clause (e) of the judgment referred to above. The District Inspector of Schools accordingly has committed a contempt so far as his observations as made by referring to the circular letter dated 5.12.87. The petitioner, however, is at liberty to proceed in appropriate proceedings if she wants to proceed against the District Inspector of Schools by filing appropriate application to the effect. However, the District Inspector of Schools concerned solely rested his reasoning by using the words 'compassionate ground', which were used by the Director of School Education, West Bengal, and without having regard to the judgment of this Court passed by Mahitosh Majumdar. J. holding that the petitioner became entitled to be absorbed as organising staff of the school in terms of the circular letter dated 20.12.84, held otherwise and had given priority to the views expressed by the Director of School Education, West Bengal. Such action of the District Inspector of Schools concerned, who is a Government employee and bound by the judgment of Court, cannot be accepted. It is a very sorry state of affairs that herein in the State, some officers holding responsible positions are not following the directions of this Court, which happened in the instant case. Rule of law mandates that all authorities must obey the directions of Court. Hence, having regard to the issue in question, accordingly this Court is satisfied that the impugned decision of the Director of School Education, West Bengal as well as the District Inspector of Schools concerned, both are not sustainable in the eye of law as the same are contrary to the judgment passed by Mahitosh Majumdar, J. whereby the rights of the parties were crystalised by a judgment. Once the rights were crystalised, there was no scope before the said authorities to pass any other decision relying upon any other document, as has been done. The submission of the learned advocate for the State that in view of non-availability of vacancy prior to 1.4.91 and in view of availability of vacancy with effect from 1.4.91, such approval was granted, cannot be accepted. The State respondents did not file any opposition. Furthermore, from the impugned order, it appears that there is no whisper with reference to the contention as made by the learned advocate appearing for the State respondents. It is a settled law that the decision impugned in the writ application is to be considered with reference to the reasoning as made thereto. It has been held by the Apex Court by several judgments that reason as assigned cannot be changed, varied or modified either in the form of affidavit before the Court of law and even by oral submission. Reliance may be placed to paragraph 8 of the case Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors., . Paragraph 8 reads as follows:
"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J, in Gordhandas Bhanji .
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do so. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
"Orders are not like old wine becoming better as they grow older."
10. In view of the settled judgment of the Apex Court, the contention of the learned advocate for the State is rejected. Hence, having regard to all the legal positions, since already observation has been made by the Court in the judgment of Mahitosh Majumdar, J. holding, inter alia, that the petitioner is entitled to be absorbed as organising teacher in terms of the circular letter dated 20.12.84, the judgment reached its finality and crystalised the rights of the parties, the petitioner's name appeared in DLIT report as has been held by Mahitosh Majumdar, J. and petitioner is the only organising staff, this Court without referring the matter back in passing a direction straightway directing the respondents concerned to accord approval of service of the petitioner with effect from 1.1.87 irrespective of availability of any post, and in the event of non-availability of post, by creating a supernumerary post and to release all arrear salaries, allowances and service benefits with retrospective effect from 1.1.87. This order is passed by this Court since under the circular letter dated 20.12.84, right of the organising teachers to have approval of service was granted with effect from the date of recognition of the school. Admittedly, the school got its recognition with effect from 1.1.87. In view of the special facts of the case and the conduct of the respondents in the Education Department, that is the Director of School Education, West Bengal and the District Inspector of Schools concerned, who decided the matter in violation of the judgment of this Court passed by Mahitosh Majumdar, J. it is a fit case wherein a positive mandatory direction is required to be passed by this Court. This Court is not unmindful of the fact that the writ Court will not assume the power and jurisdiction of other authorities, but this Court is also mindful of the fact that despite a judgment passed by this Court when the respondents practically abused the same, for public interest, the respondents now have no further right to hear the matter as they will repeat the same thing. Reliance in this connection may be placed to the judgments in the case of The Comptroller and Auditor General of India, Gian Prakash, New Delhi and Anr. v. K.S. Jagannathan and Anr., , K.I. Shephard and Ors. v. Union of India and Ors., . H.L. Trehan and Ors. v. Union of India and Ors., .
11. Having regard to all the legal position, accordingly this writ application is allowed and the respondents are directed to accord approval of service of the petitioner with effect from 1.1.87 and to release all arrear salaries, allowances and service benefits to the petitioner. Such approval order is to be passed by the District Inspector of Schools concerned within 2 weeks from the date of communication of this order and all arrear salaries and allowances are to be released within two months from the date of communication of this order. The Director of School Education, West Bengal is directed to provide necessary funds to the schools authorities through the District Inspector of Schools concerned for such disbursement and the concerned State respondents are also directed to take all steps so that the funds are reached to the school authorities for disbursement to the petitioner. It is also to be noted that the petitioner is the sole organising teacher of the school in question. Writ application is allowed. No order as to costs.
Urgent xerox certified copy of the order, if applied for, be supplied expeditiously.