JUDGMENT 1. JOINT Secretary. Govt., of West Bengal Education Department, Primary Branch, to the Director of Primary Education, West Bengal new Secretariat Building, Calcutta; which has been annexed as annexure B to the writ application as well as the order of the Deputy Secretary to the Government of West Bengal, to the Director of primary Education, West Bengal dated 20/22.6.79 annexed as annexure D to the. writ application on the ground inter alia that those two government orders are not in accordance with the provisions of the West Bengal Urban Primary Education Act, 1963 and the rules framed thereunder and also on the ground that the consequential order of reinstatement as made by the order dated 22.6.79 is illegal, arbitrary and bad inasmuch as the respondents nos. 7 to 9" do not come within the purview of politically victimised teachers 2. THE facts as appear from the writ application are as follows. The petitioner no. 1, it has been stated, is the founder Secretary of B. D. Adarsha Prathamik Vidyalaya at Kaachrapara established, in 1966 This school is a Hindi medium Class- IV school under the Kanchrapara Municipality The petitioner no. 2, chand Bali, is a guardian of his ward dilip Kumar Bali and he is interested in the proper running, management as well as imparting of instruction to the pupils reading in the school. It has been stated that the respondents, nos. 7 to 9 i.e. B. G. Sharma, T. N. Singh and Sindulu Rani Dutta were appointed as assistant Teachers in this school. Those I assistant Teachers absented themselves; from their duties without taking any leave on and from April 6, 1971 Related letters were addressed to them to their duties but none of these teachers did join their duties in the school nor did they apply for leave or took any leave from the school. The managing committee of the school at its meeting held on 16.7.71 terminated the services of these three teachers. The resolution that was adopted at the said meeting is on the following terms: "resolved that the services of the following teachers who have been absenting from duty without any authority since 6.4.71 viz. The managing committee of the school at its meeting held on 16.7.71 terminated the services of these three teachers. The resolution that was adopted at the said meeting is on the following terms: "resolved that the services of the following teachers who have been absenting from duty without any authority since 6.4.71 viz. (1) S. Bhajagobinda Sharma (2) Sri Tribhuwan Nath Singh (3) Smt. D. R. Dutta and who have neither joined as yet nor assigned any reason against such legal action inspite of registered letter dated 23.4.71 having been issued to each of them and also duty acknowledged by them and whose whereabouts are not also traceable up to date and for whose long absence the work of the school had been suffering and who could not be called upon to reply to the charges in absence of their present whereabouts are terminated with immediate effect and the arrangement made the Headmaster appointing new teacher in replacement on a temporary measures for the greater interest of the school is ratified. Be it further resolved that District inspector of Schools, 24-Parganas be supplied with a copy of the above resolution for his approval. " This resolution was duly forwarded to the District Inspector of Schools, primary Education, 24-Parganas (respondent no. 4). The respondent no. 4 duly approval to the said resolution on 9.6.73 in the following terms: "in reference, to the above the undersigned has to inform that the resolution passed by the managing committee of the school dated 16.7.72 is hereby accepted. In view of the above, now qualified tends may be recruited in place of them, if necessary. Sd/-III egible. Dist. Inspector of Schools (Pry) S4 Parganas. 3. THE aforesaid communication made by respondent no. 4 has been set out in para. 7 of the writ application. It has keen stated in the writ application that on August 26, 1977 a Circular No. 926-Edn (P) /sp-56/72 has been issued to the director of Primary Education, West bengal whereby it has been stated that, the primary/junior Basic school teachers who were actually prevented under duress or due to political disturbances from attending their schools or performing their normal duties should be allowed to join their duties. It has also been stated therein that the teachers should join their duties in their respective institution within one month from the date of the order or may at their option, continue to remain in any alternative employment in any other educational institution within the State. Teachers of District School Boards may join their Schools of original posting or any other primary school under the school board of the same district with the approval of the District Inspector of school. It has been further stated that where the period of absence is over 12 months the absence may be treated to have been condoned by government in view of ex exceptional circumstances of the cases in terms of statutory rules framed under notification no. 1453 (P) dated the 8th Sept. 1973. It is also stated therein that the period of their absence will count towards increment as a special case and the period of absence be treated as extra ordinary leave without pay. It has been stated that taking advantage of this circular the respondents nos. 7 to 9 were trying to attend the school and to sign the attendance register on and from July 14, 1977. It has also been submitted that their cases have not been enquired into by the District Inspector of Schools (Primary) 24 Pargaras (respondent no. 4) till recently. It has been stated further that the Sub-Inspector of schools, Bijpur in her report submitted on 23.5.78 stated that she could not decide if they were politically victimised primary teachers in the strict sense of the term. It has also been stated that from the enquiry report of the Assistant inspector of Schools, Primary Education, 24-Parganas and the connected memo No. 240-E dated 23.5.78 the District inspector of Schools (Primary Education), 24-Parganas (respondent no. 4)expressed his view that the cases of respondent nos. 7 to 9 could not come within the purview of the aforesaid circular as they were not victimised teachers and prevented from entering into the school to attend their duties under the duress because of their involvement in criminal cases. 4)expressed his view that the cases of respondent nos. 7 to 9 could not come within the purview of the aforesaid circular as they were not victimised teachers and prevented from entering into the school to attend their duties under the duress because of their involvement in criminal cases. However, on 20/22.6.79 an order being No. 903-Edn (P)/2p-39/77 has been issued by the Deputy Secretary to the Govt, of West Bengal stating that the Government examined the case of the three teachers of B. D. Adarsha Prathamik Vidyalaya and they have come to the decision that these teachers were politically victimised and they were forcibly prevented from attending the school from 6.4.71. It was, therefore, ordered that the above three teachers be reinstated in their original place of appointment in terms of G. O. No. 928-Edn. (P) dated 26.8.77 with immediate effect. It was further directed that three supernumerary posts of teachers be created in the said school to accommodate these three teachers and these three supernumerary posts should be abolished as soon as these three posts of teachers fall vacant in the said school. These two government orders have been assailed in this writ application on the grounds inter alia that the purported government order dated 26.8.77 was not in accordance with the provisions of the West Bengal urban Primary Education Act and the rules framed thereunder and as such the said Govt, order should be struck down and secondly it has been pleaded that the cases of these three teachers do not fall within the purview of the aforesaid government order and as such the order dated 20/22.6.79 directing for reinstatement of these three teachers are wholly illegal and unwarranted and hence these orders should be set aside, quashed and cancelled. 4. THE instant Rule was issued and an interim order was made on 31.7.79 by A. K. Mookerji, J. The interim order was to the effect that the respondents were restrained from giving effect to the impugned order till a fortnight from that date with liberty to apply for extension of the period on the same application upon notice to the respondents. This interim order was however extended but it appears that on 10.8.81 on the application made on behalf of respondents nos. 7 to 9 after hearing the parties an older was made to the effect that the respondents nos. This interim order was however extended but it appears that on 10.8.81 on the application made on behalf of respondents nos. 7 to 9 after hearing the parties an older was made to the effect that the respondents nos. 7, 8 and 9 who, it is learnt, are working in the school as Assistant Teachers for a long time and in view of the fact that the government is willing to pay them directly their emoluments such payments should be made to those respondents by respondents no. 4, the D. I. of Schools (Primary education) 24-Parganas and such payment would abide by the decision to be made in this Rule. This order however was modified on 12.8.81 to this extent that the payment that will be made will be subject to the condition that if the petitioners succeed in the Rule respondents nos. 7 to 9 shall return the said sum of money to respondent no. 4. Two affidavits in opposition one on behalf of respondent nos. 7 and 8 and another on behalf of respondent no. 9 have been filed. In these affidavit-in-Opposition it has been stated that the criminal cases that have been started against the respondents ultimately did not succeed. It has also been stated that the respondents nos. 7 to 9 were politically victimised and they were prevented from discharging their duties as Assistant Teachers in the school. It has also been stated that in view of the Govt. order dated 26.8.77 the petitioners have started working in the school and have signed attendance register. It has also been submitted that the order that has been made for their reinstatement by the government order is quite in accordance with law as well as in accordance with the circular which declares the policy of the government and as such this application is of no substance. It has also been submitted that there was no founder Secretary of the school and petitioner no. 2 who claims to be the guardian of his ward is no longer a guardian and as such this application is not maintainable at their instance. It has also been submitted that there was no founder Secretary of the school and petitioner no. 2 who claims to be the guardian of his ward is no longer a guardian and as such this application is not maintainable at their instance. It has been further submitted in this writ application that reinstatement of those three teachers by creating three supernumerary posts in the said school does not in any way interfere with the working of any of the teachers in this school and as such this court should not interfere in this matter. An affidavit in opposition also has been sworn by Shri netai Bandopadhaya, Sub Inspector of schools attached to the primary Education directorate, Government of West Bengal on 11.12.80. It has been stated in para 3 of the said affidavit that there is no provision of founder Secretary in the constitution of the Managing committee of a primary school under the existing rule. The managing committee of the school has not been approved by the competent authority and the said un-approval managing committee iras also cultivated the tenure normally enjoyed by an approved committee. It has also been stated that petitioner no. 2 a mere guardian cannot intervene in any way in the management of the school without being properly elected as a member of the managing committee. In para. 4 of the said affidavit it has been stated that the action of the unapproved managing committee has no legal force rendering the same and the subsequent actions invalid- It has been stated in para 7 that the govt. notification dated 26.8.77 was issued regarding instatement of the politically victimised teachers in primary schools and in accordance with that order, the order of reinstatement dated 25.5.79 was made. After this order has been made the cases of these three respondents nos. 7 to 9 have been duly considered by the government. it is also stated that the competent authority has taken the final decision as per rules and the Govt. notification and the said decision has in no way created any slightest difficulty to the existing approved staff of tine school or in their service conditions. 5. MR. 7 to 9 have been duly considered by the government. it is also stated that the competent authority has taken the final decision as per rules and the Govt. notification and the said decision has in no way created any slightest difficulty to the existing approved staff of tine school or in their service conditions. 5. MR. Paritosh Mukherjee, learned Advocate appearing on behalf of the petitioners, has submitted in the first place that the government order issued on 26.8.77 is not in accordance with the provisions of the west Bengal Urban Primary Education Act, 1963 and the rules framed thereunder and as such the same cannot be enforced. It has been next submitted by Mr. Mukherjee that since these three teachers i.e. respondents nos. 7 to 9 have not been politically victimised nor they have been prevented from joining their duties under duress but their services were terminated in accordance with the provisions of the Act as they absented themselves from duty without taking any authorised leave from the school. Their cases do not fall within the purview of the circular. There is provision for appeal if these teachers felt aggrieved against the order of termination made by the managing committee and they could have availed of that opportunity. But they did not do so. Moreover, the resolution terminating their services was duly forwarded to the District Inspector of Schools (Primary Education) 24 Parganas (respondent no. 4) who duly approved of the same and also approved of the appointment of teachers in their places which fell vacant. In these circumstances the government circular referred to hereinbefore cannot be applicable to their cases as their cases do not in any way fall within the province of the circular, viz, they were not politically victimised nor they were prevented from discharging their duties as asset teacher has therefore been submitted that the govt., order dated 20/22-6-79 should be sea aside. 6. MR. Arun Prakash Chatterjee, learned standing Counsel appearing on behalf of respondents nos. 7 and 8 has submitted in the first place that the petitioners have no locus standi to maintain this application in this forum inasmuch as there is no founder secretary in an urban primary school Secondly the petitioner no. 2 who claims to be a guardian of his ward can no longer remain a guardian as his ward has in the meantime passed out of the school. 2 who claims to be a guardian of his ward can no longer remain a guardian as his ward has in the meantime passed out of the school. In such circumstances it has been submitted that this application at the instance of, these two petitioners who are not aggrieved persons is not maintainable. It has been further submitted that the petitioner no. 2 being a mere guardian cannot say anything about the appointment of a teacher as it is a government school and the entire money is paid by the govt. It has been submitted in this connection that the in co-hate and vague right of the petitioner cannot interfere with the substantial rights of the respondents nos. 7 and 8. Mr. Chatterjee further submitted that the government order is in the nature of an administrative order which the Govt., is competent to make in the interest of administration and court shall not question such an administrative order not interfere with it.) Mr. Gupta learned Addl. Advocate general has submitted that the application is not maintainable as no right or interest of the petitioners have been affected by the impugned government circular and also the impugned government order of reinstatement. It has been next submitted by Mr. Gupta that the Circular of August 1977 declares a policy which the government is quite competent to do and the court should not interfere and decide upon whether the policy that has been declared by the government is good or bad or whether it should have been made in a different way. It has been submitted further that it is the exclusive privilege of the government in exercise of its executive power to frame and declare a policy which it thinks best for the interest of administration. It has been lastly submitted by Mr. Gupta that the impugned government order directing reinstatement of three politically victimised teachers cannot be questioned on the ground that they are contrary to the provisions of the Act inasmuch as this order of reinstatement has been made after considering the case of these three teachers in the light of the circular issued by the government in August 1977. There is no infirmity in the order which necessitates interference by this court. 7. THE simple rather the sole question which falls for decision in this Rule is whether the Govt. There is no infirmity in the order which necessitates interference by this court. 7. THE simple rather the sole question which falls for decision in this Rule is whether the Govt. circular that has been issued under the signature of the Joint Secretary, govt. of West Bengal dated 26.8.77 is a legal and valid circular and secondly whether the government order dated 20y 22-6-79 issued by the Deputy Secretary to the govt. West Bengal, to the Director of Primary education directing reinstatement of those three teachers viz. competent. Before discussing the merits of these two questions it is pertinent to consider first the preliminary objection that has been raised as to the maintainability of this application. It has been stated in the petition that the petitioner no. 1 is the founder Secretary of this school viz. B. D. Adarsha Prathamik Vidyalaya and he has a right to see that affairs of the school are being properly managed and education to the students are imparted in a proper manner. It has also been stated that the petitioner no. 2 as guardian of his ward has every right to see that affairs of the school are properly managed and the education of the pupils of the school is not disturbed in any manner whatsoever. To this it has been submitted on behalf of the respondents that since the school has now-become a Government school the question of any founder secretary does not arise and secondly the petitioner no. 2 who claims to be the guardian of his ward who was a student of the school could no longer remain a guardian as his ward was no get a student of the school. It has, therefore, been submitted that none of these petitioners are affected or aggrieved persons which entitled them to maintain this writ application in this forum. This objection, in my opinion, is devoid of any substance inasmuch as a school in a particular locality whether it is being run or managed properly or not it is for the guardians and members of the locality to see and to take interest. This objection, in my opinion, is devoid of any substance inasmuch as a school in a particular locality whether it is being run or managed properly or not it is for the guardians and members of the locality to see and to take interest. In other words, the question that has been raised in this writ application is that the education will not be properly imparted or the reinstatement of teachers cannot be made properly can be agitated by any guardian or any person in the locality interested in education since it is a public interest litigation. It has been pronounced try the Supreme Court in AIR 1977 SC 888 (State of M. P. vs. Ram Raghubir Pro sad)at page 893, para 17 that the real party in many litigating battle under Art, 226 of the constitution is the community whose processes participation is alien to the adversary system inherited from an individualistic legal culture. The Judges are the guardians of that silent sector until our system of procedure is restructured. This view has been reiterated in two successive pronouncements of the Supreme Court reported in AIR 1982 SC 149 and AIR 1982 SC 1473 . Moreover in the case of Sanatan roy vs. Dum Dum Municipality reported in 1979 (1) CLJ 489 at page 497 to which 1 was a party it has been held that a person who is not a rate payer but a resident of the municipality and whose name is included in (the electoral roll of that municipality is competent to challenge a resolution adopted at a meeting of the municipality by the commissioners accepting the offer of certain) person to lease out town hall for holding cinema shows. It has been held as follows; "a petitioner who seeks to file an application under Art. 226 of the Constitution should 'ordinarily' be one who has a personal or individual right in the subject matter of the petition. A personal right need not be in respect of a proprietory interest, it can also relate to an interest of a trustee. That apart in exceptional cases as the expression "ordinarily' indicates a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietory or even fiduciary interest in the subject matter thereof. That apart in exceptional cases as the expression "ordinarily' indicates a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietory or even fiduciary interest in the subject matter thereof. " Considering all these decisions I am constrained to hold that this instant application which is in the nature of a public interest litigation is maintainable at the instance of the two petitioners. 8. THE next question that requires consideration is whether the Govt. is competent to issue the circular dated 23.8.77 as mentioned in annexure B to the petition. Undoubtedly Article 182 of the Constitution confers powers on the government to make orders in respect of matters with regard to which the state Legislature has power to make laws. Education is a matter included in entry 25 of the concurrent list III of the 7th schedule of the Constitution of India. Therefore Government is competent to issue circular so long as the circular of the Government does not encroach upon any Act made by a competent legislature. In this case nothing has been shown that the impugned circular has encroached upon the provisions of any act made by the State legislature. It has been correctly submitted by the learned Additional Advocate General that it is quite within the province of the government to determine policy and to make orders in exercise of its executive power. The Court will not interfere with the determination of such policy unless and until any executive order encroaches upon or is made contrary to the provision of the Act made by the state legislature or unless and until such a determination of policy infringes upon arbitrarily the rights of a party, either the same is a constitutional right or a statutory right. In this case no such thing occurs. Therefore, the argument that has been made by Mr. Mukherjee that this circular has been made contrary to the provisions of this Act, in my opinion, is of no substance because it has not been shown that any of the provisions of the West Bengal Urban Primary Education Act, 1963 has been interfered with. This argument of the petitioner cannot be sustained. The next question that requires to be considered is whether the order of reinstatement of the three teachers viz. respondents nos. This argument of the petitioner cannot be sustained. The next question that requires to be considered is whether the order of reinstatement of the three teachers viz. respondents nos. 7 to 9 as made by the order dated 20/22-6-79 is a legal, valid and proper order. There is no dispute that the respondents nos. 7 to 9 were appointed as Assistant Teachers in this school. There is also no dispute that their services were terminated by a resolution adapted by the managing committal of the school at its meeting held on 16-7-71 and the same was forwarded to the respondent no. 4 the District Inspector of Schools (Primary Education) who duly approved of the same and also approved of the appointment of teachers in the vacancies caused by termination of services of these three teachers. The said vacant posts have also been filled up by making appointments. The question is whether these three teachers can, in these circumstances, be said to be politically victimised and prevented from attending the school as Assistant Teachers and discharging their duties. The government circular dated 26-8-77 was issued under the caption "absence of teachers of recognised primary and junior basic schools who were prevented under duress from attending their schools and performing normal duties. " Para. 2 (a) also specifically provides that primary junior basic school teachers who were actually prevented under duress or due to political disturbances from attending their schools. Therefore, to come under the purview of this circular or government order this three respondents had to satisfy that they were prevented under duress or due to political disturbances from attending the school and discharging and performing their normal duties. In the face of the resolution adopted by the managing committee of the school terminating the services of, these three teachers, i.e., respondents nos. 7 to 9 and the same being approved duly in accordance with the provisions of the Urban Primary Education Act 1963 and the rules framed thereunder by the authorities concerned viz. the District Inspector of Schools (Primary Education) (respondent no. 4) I do not find that there is any question to be considered that these teachers were prevented from discharging their duties under duress and they were prevented from performing their duties by political disturbances The board fact remains which cannot be lost sight of viz. the District Inspector of Schools (Primary Education) (respondent no. 4) I do not find that there is any question to be considered that these teachers were prevented from discharging their duties under duress and they were prevented from performing their duties by political disturbances The board fact remains which cannot be lost sight of viz. that these three teachers' services were terminated by a resolution of the managing committee in July 1971 and that resolution was duly approved by the District Inspector of Schools (Primary Education) respondent no. 4. It is for these reasons the assistant Inspector of Schools as well as the District Inspector of Schools did not say, rather refused to say, that these cases fall under the category of teachers prevented under duress from attending their schools and performing their normal duties. Unless and until these teachers came within the purview of the government order dated 26.8.77 any determination made by the Government or by a subordinate authority of the Government cannot be said to be a legal, valid and proper determination. Considering all the facts and circumstances of the case it is crystal clear before this court that these three teachers, i.e., respondents nos. 7 to 9 were discharged from service on the ground of their long absence from their duties without taking any authorised leave from the authorities concerned. In such cases there is not room for inferring that they have Boeing prevented under duress from attending their school and performing normal duties or as has been stated in annexure 'd' that they have been politically victimised. In these circumstances after giving my anxious considerations in this matter I am constrained to hold that the order dated 20/22-6-77 issued under Government order no. 903-Edn (P)/2p-39f77 is not a valid, legal and proper order and as such the said order cannot be maintained under any circumstances. 9. IT has been urged by the learned additional Advocate General that the resolution that has been adopted by the managing committee cannot be given effect to as the managing committee was a totally unauthorised committee having not been duly approved as required under rules framed under the West Bengal urban Primary Education Act, 1963. 9. IT has been urged by the learned additional Advocate General that the resolution that has been adopted by the managing committee cannot be given effect to as the managing committee was a totally unauthorised committee having not been duly approved as required under rules framed under the West Bengal urban Primary Education Act, 1963. This argument, however, in my view, also cannot be sustained because rule 6 of the rules prescribes the procedure for constitution of the managing committee and it also prescribes in rule 6 that the committee as soon as constituted shall seek and obtain approval of the District Inspector of Schools or District Inspectress of Schools. If the District inspector or District Inspectress disapproves or does not approve of the committee the same shall be communicated in writing and against that order of disapproval there is an appeal to the Director of Public Instruction, West Bengal and the decision of the D. P. I. shall be final. It has also been provided that if the committee is disapproved then the committee shall be reconstituted. Rule 7 also provides that if the Director is not satisfied with the management he can supersede the committee. There is nothing to show before this Court that this committee was ever disapproved as required under rule 6 unless and until there is neither approval nor disapproval the committee constituted or reconstituted can function. If it is, an unapproved committee the Director of Pubic instruction could have taken steps for supersession of the committee as provided under rule 7 of the rules. These are matters not required to be decided by me in this case as such decision is not called for in deciding the instant writ application. It is only pertinent to observe in this connection that whether the resolution that was adopted in July 1971 by the then managing committee terminating the services of these three teachers on the ground of their unauthorised absence from the school without taking any leave is competent or not is a matter outside the scope of this application and as such it will not be just and proper to decide that question now when several years have passed by. Be that as it may, I have already held that the respondents nos. Be that as it may, I have already held that the respondents nos. 7 to 9 whose services have been terminated by a resolution of the managing committee in July 1971 cannot be considered under any circumstances to be persons who have been politically victimised or who have been prevented from discharging their normal duties as Assistant teachers of the School by pressure. 10. FOR the reasons aforesaid this Rule succeeds and is made absolute. Let a writ of mandamus issue commanding the respondents to forbear from giving effect to the order dated 20/22-6-79 as mentioned in annexure D to the petition. 11. LET a writ of certiorari be also issued directing the respondents to quash, cancel and set aside the impugned order dated 20/22-6-79 as mentioned in annexure D to the petition. 12. THE respondents nos. 7 to 9 are hereby directed to refund the money received by them on account of their emoluments to respondent no. 4. The operation of this order is stayed for two weeks but this will not enable the teachers to join to their duties in the school. There will be no order for costs in this rule. Rule made absolute.