Paritosh Sil v. State of West Bengal — 1983 DIGILAW 127 (CAL)

ORDER This Rule is at the instance of the members and office bearers of the Managing Committee of Sheoraphuli Netaji Balika Vidyalaya Mandir (hereinafter called the school), who have challenged the Government order No. 107IEDN(S) dated the 19th August 1977 and the order of the Director of Secondary Education as communicated by the District Inspector of Schools (SE), Hooghly to the Secretary of the school under Memo No. 3226 dated 28th October, 1978 directing the authorities of the school to allow the respondents Nos. 5 and 6 to rejoin the school as Assistant Teachers and the respondents Nos. 7 and 8 to rejoin their respective posts as Class IV employees in terms of the aforesaid Government order. 2. The petitioner's case is that the respondent Nos. 5 to 7 were never teachers and non-teaching staff of the school that they were never appointed as such and never signed the attendance register and that the question of their rejoining the school does not arise. The respondent No. 8 had been superannuated long ago by the then Administrator of the school. The impugned Government order dated 19.8.77 is illegal as it purports to override the relevant statutory provisions and the jurisdiction of the Appeal Committee constituted under S. 22 of the West Bengal Board of Secondary Education Act, 1963 (hereinafter called the Act). 3. On behalf of the respondents Nos. 5 and 6 an affidavit-in-opposition was affirmed on 30.3.1983. Before that they had applied for vacating the interim order of injunction issued in the Rule and in that application had stated that they were appointed as Assistant Teachers of the school by appointment letters dated 10.7.74 of the then Sub Divisional Officer, Serampore who was the administrator of the school. They further stated that they were not being allowed to work as teachers of the school by the Administrator or the Managing Committee from “around 1976” without any reason whatsoever. So, they made representations of their grievances to the Director of Secondary Education. West Bengal who by his order directed the Managing Committee of the school to allow them to rejoin as Assistant Teachers of the school in terms of the G.O. No. 1071-EDN(S) dated 19.8.77. The school authorities have not paid any salary to the respondents Nos. 5 and 6 nor have they passed any order terminating their services. West Bengal who by his order directed the Managing Committee of the school to allow them to rejoin as Assistant Teachers of the school in terms of the G.O. No. 1071-EDN(S) dated 19.8.77. The school authorities have not paid any salary to the respondents Nos. 5 and 6 nor have they passed any order terminating their services. The same facts have been pleaded in the affidavit-in-opposition in which it has been further stated that they worked as Assistant Teachers of the school till 1974 and used to sign attendance register until the disturbed times of 1976. By a supplementary affidavit they have pleaded that a new Managing Committee of the school name into existence and took charge on and from 26.1.1982 consisting of members and office bearers other than petitioner Nos. 1 to 3 and 6 to 10 and so the petitioners have no locus standi to maintain their application. The impugned Government Order No. 171-EDN(S) dated the 19th August 1977 runs as follows : “Absence Under Duress Government order No. 1071-Edn-(S)/ Dated Calcutta the 19th Aug 1977 IS-19/77 From Sri B.N. Chatterjee, I.A.S. Joint Secretary to the Government of West Bengal. To The Director of Secondary Education, West Bengal. Sub : Absence of teachers and non-teaching employees of recognised non-Govt. Secondary Schools, prevented under duress from attending their school and performing normal duties. In continuation of G.O. No. 1050-Edn(S) dated the 17th August 1977 the undersigned is directed to say that the cases of teachers and other employees who were prevented under duress from attending their schools and performing normal duties have been considered by the Government. After careful consideration of the cases the Government is pleased to direct that : (i) the teachers and other employees who were actually prevented from attending schools or performing their normal duties be immediately allowed to join their duties. They should join their duties in respective Institutions within one month from the date of this order or may, at their option, continue to remain in any alternative employment in any other educational institution within the State; and the period of their absence be reckoned as qualifying for increment as a special case, in relaxation of normal rules. Teachers and other employees concerned should draw pay and allowances as admissible from the date of resumption of duties. A further communication will follow regarding regulation of period of absence. Teachers and other employees concerned should draw pay and allowances as admissible from the date of resumption of duties. A further communication will follow regarding regulation of period of absence. The District Inspector of Schools concerned should be advised to communicate this decision to all Heads of Secondary schools. In case of any difficulty experienced by any employee the matter should be brought to the notice of the District Inspector of Schools, who should immediately report the same to the Director of Secondary Education and take necessary step to implement the decision. If any school fails to implement the decision of the Government the case should be reported to this Department as early as possible. Sd/-B.N. Chatterjee, Joint Secretary, Memo No. 3099(6)/Sc/G Calcutta the 22 Aug 1977 4. The respondent No. 4 District Inspector of Schools (SE), Hooghly in his affidavit-in-opposition affirmed on 12.12.79 has averred that on receiving the representation from the respondents Nos. 5 to 8 who were appointed by the Administrator of School that they were not being allowed to work by the subsequent Administrator and Managing Committee of the School without showing any reason whatsoever, the Director of Secondary Education requested the Managing Committee to allow them to rejoin and such request cannot be said to be unreasonable or illegal. 5. A preliminary point has been raised on behalf of the respondents Nos. 5 and 6 that the petitioner having ceased to be members and office bearers of the Managing Committee of the School since 26.1.1982 they have no locus standi to maintain the writ application. But in may view this contention is not well founded. Admittedly the petitioner No. 4 is the Headmistress of the school and the respondent No. 5 is a member of the existing Managing Committee. It cannot be said that they are mere busybodies having no sufficient interest in the matter raised by the writ application. There have been remarkable developments in the law of lacus standi or standing for remedies of judicial review in recent times. Although in private law the principle that remedies are co-relative with rights can be applied with some strictness, in public law the said principle is inadequate as it loses sight of the dimension of public interest. There have been remarkable developments in the law of lacus standi or standing for remedies of judicial review in recent times. Although in private law the principle that remedies are co-relative with rights can be applied with some strictness, in public law the said principle is inadequate as it loses sight of the dimension of public interest. Leaving aside a mere busybody or crank or other mischief maker interfering with things which do not concern him, the court will not refuse to hear the person who has sufficient interest in the matter to which the writ application relates. The Court has a discretion to decide whom to hear and whom to turn away. The majority decision of the Supreme Court in S.P. Gupta v. Union of India AIR 1982 SC 149 at page 194 (para 22) rules that “any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision” Lord Denning remarked extra judicially that the test of sufficient interest is very elusive and had yet to be worked out by the courts (See the Discipline of Law 1979 Page 113). Later the House of Lords in R. v. In and Revenue Commissioners Exp. National Federation of Self-employed & Small Business Limited (1982) AC 617 has made the testing of the applicant's standing a two stage process. On the application for leave i.e. at the first stage the test is designed to turn away hopeless or meddle some applications only. But when the matter comes to be argued i.e. at the second stage the test is whether the applicant can show a strong enough case on the merits judged in relation to his concern with it. Thus in England the test of standing has evolved to become mainly a test of the merits of the complaint (See Administrative Law by HWR Wade 5th Edition, 1982 at pages 588-89). 6. In the present case although the Government order in question is likely to be eventually held ultra vires the person or persons expected to comply with it, could refuse to do so only at their peril because the school was receiving grants from the State Government Authorities. So the respondents Nos. 6. In the present case although the Government order in question is likely to be eventually held ultra vires the person or persons expected to comply with it, could refuse to do so only at their peril because the school was receiving grants from the State Government Authorities. So the respondents Nos. 4 and 5 or any of them had and has sufficient interest to challenge the said Government order by applying for relief under Article 226 of the Constitution. 7. Coming to the merits it his been submitted on behalf of the petitioners that the impugned government order is ultra vires and as the State government has no authority under the law to issue such order overriding provisions of S. 22(3) of the Act regarding functions of the Appeal Committee and Regulation No. 3 of the Appeal Regulations as to the manner of hearing and deciding appeals by the appeal committee which runs as follows :- “3. A teacher who feels to have been affected adversely by any decision of the Managing Committee by the institution he serves or has served (hereinafter referred to as the applicant) may appeal direct to the appeal committee against such decision in accordance with the provisions of these Regulations". 8. It is further submitted that the West Bengal Board of Secondary Education (hereinafter called the Board) adopted a resolution at its meeting held on 21st June 1969 to protect the legitimate interest of persons prevented under duress from attending school and discharging normal duties. It provides that on report about occurrence of such incident the Board will, besides exercise of its powers by its appeal committee, cause enquiries to be made after giving opportunities to the interested persons and taking suitable measures according to the necessities of each case. It is, therefore, contended that the Board and not tile State Government had authority to deal with the alleged grievances of the respondents Nos. 5 and 6. 9. On the other hand it has been submitted on behalf of the respondents Nos. 5 and 6 that these respondents could not prefer any appeal to the appeal committee as no decision or formal order of the Managing Committee was communicated to them. In this connection, reference has been made not only to the Appeal Regulation No. 3 quoted above but also to the prescribed form of appeal to the appeal committee. 5 and 6 that these respondents could not prefer any appeal to the appeal committee as no decision or formal order of the Managing Committee was communicated to them. In this connection, reference has been made not only to the Appeal Regulation No. 3 quoted above but also to the prescribed form of appeal to the appeal committee. But I find that item Nos. 11 and 12 of the prescribed from are as follows:- “11. Nature of the decision or order complained of whether dismissal, discharge, reduction or withholding of salary (Furnish copy of the order). 12. (a) Whether the grievance is the outcome of any decision of the Managing Committee. (b) If so date of meeting of the committee and date of receipt of orders by the appellant. The relevant decision of the committee should be furnished.” Thus item No. 12 of the proscribed form indicates that there may be a grievance which is not the outcome of any formal decision or order of the Managing Committee. In my view it is not correct to say that a teacher of a recognised school is helpless and cannot appeal to the appeal committee or make a complaint to the Board against an adverse action of the Managing Committee in the absence of a recorded decision or a formal order of the committee communicated to the teacher. 10. The next submission on behalf of the respondents Nos. 5 and 6 is that in view of Rule 28 of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided) 1969 as amended in 1974 the Managing Committee has power to appoint teachers and other employees subject to approval of the Director of Secondary Education (hereinafter called the Director) that the Director can take final decision on representation of a teacher or employee when the Managing Committee does not recommend extension of his services and that the Director can deal with representation of a teacher or employee who is suspended by the Managing Committee. It is argued that it follows from such powers of the Director that he was competent to issue the impugned direction through the District Inspector of Schools to the authorities of the school to comply the Government order dated 19.8.77 which is valid and within competence of the State Government. 11. It is argued that it follows from such powers of the Director that he was competent to issue the impugned direction through the District Inspector of Schools to the authorities of the school to comply the Government order dated 19.8.77 which is valid and within competence of the State Government. 11. Having heard the learned Advocates of the parties I find that the point at issue is whether the Government order dated 19.8.77 is legal and valid or within the limits of power conferred by law. In my view, it is difficult to hold that it is so. Neither the Act nor the statutory rules have conferred power on the State Government to issue general directions to the school authorities as to how teachers or employees prevented by duress from attending the schools and performing their duties are to be protected. No such general directions could be issued by the State Government over the head of the Board and Encroaching upon its field. Section 27(2) of the Act provides that subject to any general or special orders of the State Government the provisions of the Ait and any rule made thereunder, the Board shall have generally the power to direct supervise and control secondary education and in particular the powers enumerated in different clauses thereunder. So the State Government is competent to issue general or special orders to the Board for exercise of its powers. But no provision in the Act or the rules has been placed before this Court on behalf of the respondents which gives express or implied authority to the State Government to issue the impugned Government order. A statutory authority can do only what the statute permits and what is not permitted is forbidden. A statutory power will however be construed as impliedly authorising everything which can fairly be regarded as incidental or consequential to the power itself. The court intervenes only when the thing done goes beyond what can fairly be called incidental or consequential power. In the present case the provisions of Rule 28 of the Rules of Management of Recognised Non-Government Institutions 1969 however liberally construed do not confer express or implied authority on the State Government to issue the impugned government order. The court intervenes only when the thing done goes beyond what can fairly be called incidental or consequential power. In the present case the provisions of Rule 28 of the Rules of Management of Recognised Non-Government Institutions 1969 however liberally construed do not confer express or implied authority on the State Government to issue the impugned government order. It may be mentioned in this connection that the respondent No. 4 the District Inspector of Schools (SE) Hooghly has been constrained to say in his affidavit that the Memo No. 3226 dated 28th October 1978 which has also been challenged in this Rule and which conveys the directions in terms of the government order is a mere request which means that it is not a direction to the school authority. 12. In view of the forgoing discussion I find that the present writ application must substantially succeed. It is declared that the government order No. 1071 EDN(S), dated 19th August 1977 and the direction contained in Memo No. 3226 dated 28th October 1978 of the District Inspector of Schools (SE), Hooghly are ultra vires and not binding on the authorities of the school. The Rule is made absolute to the extent indicated above. There will be no order as to costs. Rule made absolute.