Calcutta High Court (Appellete Side)
Smt. Roshni Chatterjee Sarkar vs State Of West Bengal & Ors on 15 November, 2016
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
1
15.11.2016
5
KD
W.P. 24776(W) of 2015
Smt. Roshni Chatterjee Sarkar
-vs-
State of West Bengal & Ors.
Ms. Amrita Sinha,
Ms. Madhurima Sarkar,
Mr. Saptarshi Chakraborty
... for the Petitioner
Mr. Ayan Banerjee,
Ms. Debasree Dhamali
... for the Respondent No. 4
Ms. Chatali Bhattacharyya, Ms. Sukla Das Chandra ... for the State Despite direction for filing affidavit which was extended but no affidavit-in- opposition has yet been filed by the State authority.
Pursuant to an advertisement published in the local Newspaper on 08.11.2011, the petitioner offered her candidature and applied for the post of Assistant Teacher in History in the Lee Collins High School (H.S.) and appeared before the Selection Committee of the School on 27.01.2012 for an interview. The petitioner was selected for the said post of Assistant Teacher in History in the school and by a letter dated 29.2.2012 the respondent no. 4 appointed the petitioner in the said post and she joined the school in the said post on 12.3.2012 and since then she has been performing her duties as a Teacher.
Since after the joining to the said post, the petitioner has been pursuing the office of the respondent no. 4 for obtaining the approval of her appointment in the aforesaid post from the office of the respondent no. 3 and she was assured 2 that the approval would be given by the Government in due course. The petitioner repeatedly requested the respondent no. 4 to take steps for approval of her appointment so that she gets the salary and all other service benefits from the date of her joining as a Teacher. By her letters dated 30.1.2015, 16.02.2015 and 31.03.2015, the petitioner expressed all her anxiety and plight to the Secretary of the School.
After a prolonged silence, the Secretary of the school, by a detailed letter dated 24.03.2015, narrated the entire fact situation regarding the appointments made by the school including the petitioner with the following facts :
(a) By a letter dated 14.12.2010, the Headmaster of the school submitted relevant papers and documents for filling up 12 (twelve) vacancies of teaching and non-teaching staff of the school in terms of the resolution of the Managing Committee of the school and prayed for permission from the Respondent no. 3.
(b) After a rigorous persuasion for considerable period of time in the office of the Respondent no. 3, the prior permission to fill up the aforesaid vacancies was not granted by the Respondent no. 3 in favour of the school. Expressing the difficulties, the authorities of the school sent a letter dated 19.9.2011 to the Respondent no. 3, seeking his immediate action regarding grant of prior permission for filling up the aforesaid vacancies in the school within a fortnight.
(c) Since the request in the form of the letter dated 19.9.2011 yielded no result, by another letter dated 17.10.2011, the authorities of the 3 school withdrew all their requests and applications for prior permission for filling up the vacant posts in the school as the school is an integrated Higher Secondary School having classes from I to XII and in terms of Section 26 of the Right of Children to Free and Compulsory Education Act, 2009, the School Authority is under a statutory obligation to ensure that the vacancies for the teaching staff of the institution more than 10% of the total sanctioned strength are not kept vacant for indefinite period.
(d) Thereafter, the school started selection process by publishing advertisements in the Newspapers being 'Aajkal' dated 08.11.2011 and 09.11.2011 inviting applications from the candidates for interview. After the interview was completed, the selection committee prepared the panel of selected candidates for each of the posts and the same was approved by the Managing Committee of the school.
(e) The approval of appointments made in the posts as aforesaid were not made by the Respondent no. 3 for months together and facing such a situation, the authorities of the school by a detailed letter dated 09.5.2012 requested the Respondent no. 3 to approve the appointments made by the school in the vacant posts of both Teaching and Non-Teaching Staff.
(f) Meanwhile, Sri Prasanta Das, one unsuccessful candidate in the selection process for the post in Geography, moved a writ petition before this Hon'ble Court challenging the appointment of Sri Abhishek 4 Ghosh in the said post on the ground of violation of the Notification No. 641-Edn(S) dated 23.5.1974 framing Special Rules for Minority Education Institutions ("The Special Rules" for short) and Notification regarding the Recruitment Rules of the Minority Educational Institutions being G.O. 1314(50)-SE(S)4A-35/2002 dated 17.9.2002 ('the Recruitment Rules' for short) being W.P. 549 of 2012. The said writ petition was disposed of by the Hon'ble High Court by order dated 17.7.2012 by directing the concerned District Inspector of Schools to consider the legality of the appointment of Sri Abhishek Ghosh in the post in question and to give a reasonable opportunity of hearing to the School Authority, the writ petitioner and the respondent no. 6, Sri Abhishek Ghosh before taking the ultimate decision in this regard and a reasoned order should be passed in support of his ultimate conclusion within eight weeks from the date of communication of the order. The concerned authority was also directed to intimate its decision to the petitioner, the School Authority and the respondent no. 6 within two weeks thereafter.
(g) In compliance of the aforesaid order of Hon'ble Court, by a detailed order bearing Memo No. 54 Law dated 20th March, 2013 the Respondent no. 3 referred to the decision of the Hon'ble Supreme Court in this regard and relied on the two decisions of National Commission for Minority Educational Institutions ('NCMEI' for short) where inspite of the allegation of violation of the Recruitment Rules of 5 2002, NCMEI the right of those school was upheld to appoint teaching and non-teaching staff and the same were ultimately approved by the Government and recorded reasons viz., (1) in the instant case 2002 Recruitment Rules of 2002 will govern the instant case and the 2012 Rules would not be applicable; (2) the two orders passed by the NCMEI where with regard to the appointment in sanctioned posts; (3) the instant case involves policy of the Government regarding Minority Educational Institutions and (4) the Recruitment Rules of 2002 have been violated. The Respondent no. 3 on one hand disposed of the matter and on the other hand transmitted the entire matter to the Commissioner of School Education for perusal and taking appropriate action.
(h) The school authorities heavily relying on two similar situations were the concerned Department of the Government did not grant prior permission to two Christian Minority Education Institutions inspite of their request for the same, the proceedings were initiated by those two educational institutions before the NCMEI and the NCMEI by orders dated 28.10.2010 held that selection and appointment of teachers made by the respective schools were in order, as the schools had their right of appointing teaching and non-teaching staff with the only condition that the candidates selected should have in their credit the minimum qualification prescribed by the authority and refusal to accord approval and by refusing to approve, the approving authorities 6 had gone beyond the judicial frontier of their authority and appeared to have made over attempt to interfere with the administration of minority of educational institution and directed the government to accord approval of the appointments and also held that the reservation rules were not applicable to those schools. Subsequently, the Assistant Secretary of the government issued directions to the Director of School Education to comply with the orders passed by the Chairman of the NCMEI.
(i) However, Sri Abhishek Ghosh filed a writ petition in the Hon'ble High Court challenging the said order dated 20.3.2013 passed by the respondent no. 3 and the said writ petition being W.P. 21501(W) of 2013 was heard and disposed of by the Hon'ble High Court by order dated 26.7.2013 by directing the respondent no. 3 to take a decision by passing a reasoned order ad was sitting tight over the matter, Sri Abhishek Ghosh filed another writ petition being W.P. 35586(W) of 2013 challenging the inaction of the respondent no. 3 in the matter Since the respondent no. 3 did not act according to the order dated 26.7.2013 passed by the Hon'ble High Court as mentioned hereinabove and by order dated 23.12.2013, the Hon'ble High Court directed the respondent no. 3 to approve the appointment of Sri Abhishek Ghosh in the post of Assistant Teacher in Geography w.e.f. 12.3.2012 and pay all the salafy and service benefits from that date within a period of six weeks from the date of communication of the 7 order and in the respondent no. 3 has approved the appointment of Sri Abhishek Ghosh in the said post. The school has also sent the requisition for his salary and all service benefits to the office of the District Inspector of Schools (SE), Kolkata in terms of the order passed by the Hon'ble High Court at Calcutta.
The petitioner made a representation to the respondent no. 3 on 31.03.2015 stating that the petitioner has the requisite qualification in respect of the post where she has been appointed and in such situation, the issues relating to prior permission between the school, a Minority Educational Institution under Article 30 of the Constitution of India and the government cannot stand in the way of approval of appointment in view of the law declared by the Hon'ble Supreme Court of India in case of TMA Pai Foundation Vs. Union of India (2002) 8 SCC 481, as decided in the case of Sri Abhishek Ghosh. Moreover, the Government has also granted approval of appointments given by the Minority Educational Institutions under Article 30 of the Constitution of India without prior permission of the Government in terms of the orders passed by the National Commission for Minority Education Institutions (NCMEI). The petitioner was appointed on the said day as of Sri Abhishek Ghosh, the selection process right from the beginning was the same in both cases and they are similarly situated and circumstanced in all respect and requested the respondent no. 3 in all respect and requested the respondent no. 3 to consider her case and grant approval to her appointment in the post of Assistant Teacher in History from the date of her appointment, i.e. 12.3.2012 and to release salary and all service 8 benefits from the date of appointment but the respondent no. 3 maintained a stoic silence which constrained the petitioner to approach this Hon'ble Court by filing a writ petition being W.P. 9670(W) of 2015. By order dated 05.05.2015, a Single Bench of this Hon'ble Court disposed of the said writ petition by directing the respondent no. 3 to consider the representation of the petitioner by eight weeks from the date of communication of the order after giving an opportunity of hearing to the petitioner.
In pursuance thereof, the respondent no. 3 by a common order dated 27.8.2015, refused to grant approval of appointment of the petitioner in the said school as an Assistant Teacher on the ground that the said school did not take prior permission in terms of G.O. 1314(50)-SE(S)4A-35/2002 dated 17.9.2002 before the selection process which order is under challenge before this Court on the context that the similar ground of rejection was set aside by this Hon'ble Court in case of another co-teacher viz., Abhishek Ghosh, who was appointed with the petitioner and similarly circumstanced whose appointment was approved by the respondent no. 3 with all service benefits.
Since the petitioner having requisite qualification for the post of teacher was appointed the government cannot stand in the way of approval of appointment made by the school, a Minority Educational Institution under Article 30 of the Constitution of India the respondent no. 3 cannot refuse to approve the appointment of the petitioner on the ground of no prior permission in view of Constitution Bench decision of the Hon'ble Supreme Court in case of TMA Pai Foundation Vs. State of Karnataka (2002) 8 SCC 481, inasmuch as he is 9 similarly circumstanced with that of Sri Abhishek Ghosh who was accorded approval for the teacher.
It is contended that the rights of the school as a Minority Educational Institution within the meaning of Article 30 of the Constitution of India are Constitutional Rights which have been recognized by framing the Special Rules and ultimately by framing the 2012 Rules with a view to eradicate the problems faced by such Institutions in making appointments of their own by framing parameters but abolishing the system of taking prior permission.
In the context above, this Court is of the considered view that issue relating to prior permission in view of proposition of law laid in the case of TMA Pai Foundation (Supra) is no more open for the District Inspector of School to turn down the prayer of the petitioner to accord approval.
This fact can also not be lost sight of that the petitioner was appointed on the same day along with one Abhishek Ghosh who appointment has been approved by the respondent no. 3 and the petitioner is similarly circumstanced.
It is pertinent to take note of the fact that the District Inspector of Schools (SE), Kolkata by his order dated 27.8.2015 decided the representation of as many as nine teaching staff including the petitioner and one non teaching staff in different writ petitions to the effect that their appointment cannot be approved in terms of G.O. 1214(50)-SE(S) and 1092/ES/S/2014 because the appointments were made without taking any prior permission from District Inspector of School (SE), Kolkata and without submission of the panel to DI/S(SE), Kolkata. 10
According to respondent no. 4, School is a Minority Educational Institution established under Article 30(1) of the Constitution of India and is governed by the Special Rules. The School is being run and managed by the Methodist Church in India, Bengal Regional Conference. It is further pointed out that the School Authority sought for prior permission on 14.12.2010 and 17.9.2011 from the District Inspector of Schools (SE), Kolkata but the same was not accorded to the said School. Being constrained, the said School withdrew all their requests for prior permission by letter dated 17.10.2011 and conducted a selection process following the principles laid down by the Constitution Bench of eleven Judges of the Hon'ble Supreme Court of India in the case of TMA Pai Foundation (supra) and made the appointments in the vacant sanctioned posts of teaching and non- teaching staff by complying with all formalities of the 2002 Recruitment Rules in the selection process. By letter dated 09.5.2012, the authorities of the said School submitted the panel of selected candidates for approval of the District Inspector of School (SE), Kolkata. The said School is having 26 sanctioned posts of teaching staff including Higher Secondary Section and 5 non-teaching staff (2 clerks and 3 Group-D staff). Due to passage of time, the four posts of non- teaching staff (2 clerk and 2 Group-D staff) and fifteen posts of teaching staff fell vacant. At present, 12 approved teaching staff are working in the School including Sri Abhishek Ghosh.
The Hon'ble Supreme Court in case of Pramati Educational & Cultural Trust v. Union of India reported in (2014) 8 Supreme Court cases I held that the Right to Education Act, 2009 is not applicable to the Minority Educational Institution 11 established under Article 30(1) of the Constitution of India. Accordingly, the respondent no. 4 School also advocated to allow the writ petition by setting aside the order impugned dated 27.8.2015 passed by the District Inspector of Schools (SE), Kolkata and by directing him to approve the appointment of the petitioner from the date of her joining from 12.3.2012.
I have also respectfully considered the decision in case of SECY. MALANKARA SYRIAN CATHOLIC COLLEGE v. T. JOSE AND OTHERS reported in (2007)1 Supreme Court Cases 386 wherein it has been held-
"All laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, of abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions."
In case of Pramati Educational & Cultural Trust v. Union of India (supra) the Hon'ble Apex Court has observed in paragraph 54 thus-
"Under Article 30(1) of the Constitution, all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Religious and linguistic minorities, therefore, have a special constitutional right to establish and administer educational schools of their choice and this Court has repeatedly held that the State has no power to interfere with the administration of minority institutions and can make only regulatory measures and has no 12 power to force admission of students from amongst non-minority communities, particularly in minority schools, so as to affect the minority character of the institutions."
Thus, in the context of the above discussion and dwelling on the clenched position of law by the Hon'ble Supreme Court in the above cited decisions, this Court is of the view that the respondent no. 3 passed the impugned order dated 27.8.2015 vide Annexure-P6 violating the principles of law laid in Articles 14, 19, 21 and 30 of Constitution of India because the District Inspector of Schools (SE), Kolkata cannot deny approval of appointment of nine teaching and one non- teaching staff including the present petitioner merely for the reason that the selection process maintained by the respondent no. 4 School was without prior permission of its authority.
Therefore, I quash the order impugned as being devoid of merit and direct the respondent no. 3 District Inspector of Schools (SE), Kolkata to approve the appointment of the petitioner w.e.f. from 12.3.2012 in the post of Assistant Teacher in History in the respondent no. 4 School within four weeks from the date of communication of this order and to make payment of salary, allowances and all other service benefits to the petitioner W.E.F. 12.3.2012.
With the above direction, this writ petition is disposed of, however, without any order as to costs.
Urgent certified photocopy of this Judgement and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. 13 ( Samapti Chatterjee, J. )