Gouri Deb v. Maya Sarkar — 1986 DIGILAW 417 (CAL)

JUDGMENT 1. THE appellant, Sm. Gouri Deb, as an Assistant teacher of Girls' High School, District - Jalpaiguri. According to her, on some occasions she had discharged the duties of Head Mistress of the said School. She was an added respondent in Civil Rule no. 6447 (W) of 1982 obtained by Sm. Maya Sarkar (the respondent no. 1 herein. Op 10th October, 1983, the Hon'ble Mr. Justice G. N. Roy had disposed of the said Civil Rule. The learned Single Judge, inter-alia, directed the respondents to treat the writ petitioner, Sm. Maya Sarkar, as the Head Mistress of the aforesaid School subject to the decision in the title suit brought by the present appellant. The respondents to the said Civil Rule were directed to pay the writ petitioner her salaries from the date of her appointment as the Head mistress of the said School. 2. IN the year 1980, the then Managing Committee of the said School had issued advertisement inviting application for the post of Head mistress of the said School. The appellant was one of the applicants for the said post. The respondent no. 1. Sm. Maya Sarkar, who was then working in a school in the Midnapore District was one of the applicants. The Managing Committee of the said school had selected the respondent no. 1, Sm. Maya Sarkar and on 27th August, 1980 had issued a letter appointing her as the Head Mistress of the school. On 16th September, 1980, Sm. Maya sarkar had joined as the Head mistres of Jateswar Girls' School. . Induce, 1981 the school was upgraded from a Junior High School to a High School. The then Managing Committee of the school had sought from ' District. Inspector of School (S E.) approval to the said appointment of Sm. Maya Sarkar as the head Mistress of the School. The appellant, Sm. Gouri Deb had instituted O. C. Slue No. 103 of 1980. in the court of. the 'munsif, ' Alipurduar challenging inter-alia the said. appointment of Sm. Maya Sarkar as the Head Mistress of the said school. 3. ON 8th June 1982, Sm. Maya sarkar moved an application under article 226 of the Constitution of India inter-alia with the prayer that the respondents to the said application be commanded to dispose of the matter of approval to her appointment as the Head Mistress of the. Maya Sarkar as the Head Mistress of the said school. 3. ON 8th June 1982, Sm. Maya sarkar moved an application under article 226 of the Constitution of India inter-alia with the prayer that the respondents to the said application be commanded to dispose of the matter of approval to her appointment as the Head Mistress of the. said School and her service from September 18, 1980. Under an interim order passed by this Court, the petitioner, Sm. Maya Sarkar, had received from the State respondents, her salary and other dues as the Head Mistress of the said School. 4. IN his judgment under appeal the learned trial judge has inter-alia held that the petitioner, Sm. Maya Sarkar, having served for more than two years against the permanent post of Head Mistress in terms of sub-rule (7) of rule 28 of the rules of management of recognised non-Government Institutions (Aided and Unaided),1969 she had been automatically confirmed as the Head Mistress of the school. The learned judge, however, held that the appointment as Head Mistress under sub-rules (1) and (3) of Rule 28 of the Rules of Management was subject to approval of the Director or any other person authorised by him. But such approval cannot be delayed beyond the period of two years because after expiry of two years a teacher is to be deemed to have been confirmed. After the teacher is confirmed, there could be no occasion to disapproved his or her appointment. The learned trial judge referred to the order dated list October, 1982 of the District inspector of Schools, Japlaiguri to the effect that the petitioner should not be approved as the Head Mistress because the school had been upgraded from the junior high school at the relevant date. The District inspector of Schools had also referred to an enquiry held by the Assistant district Inspector of Schools from which it allegedly transpired that the selection was not fair and free from motive. The learned trial judge however recorded that in view of sub-rule (2) of Rule 28 of the said Rules of Management in case of disapproval of the petitioner's appointment, the District Inspector of Schools was to refer the case to the Director. The learned trial judge however recorded that in view of sub-rule (2) of Rule 28 of the said Rules of Management in case of disapproval of the petitioner's appointment, the District Inspector of Schools was to refer the case to the Director. The learned advocate who appeared far the State had however submitted that he did not receive any instruction as to whether or not the Director had passed any order regarding approval of the petitioner's service. The learned trial judge however found for the reasons mentioned already, that after her confirmation, her service could no longer be disapproved. The learned trial judge however directed that t' writ petitioner Sm. Maya Sarkar is to be treated as the Head Mistress subject to the decision by the civil court in the suit brought by the added respondent (the present appellant)sm. Gouri Deb challenging the selection. Mr. A. P. Chatterjee, learned Standing "counsel, who has appeared on behalf of the appellant, Sm. Gouri Deb, has submitted that the learned trial judge had wrongly interpreted the sub-rules (1. (2) and (7) of Rule 28 of the Rules of Management by holding that after expiry of two years from the date of appointment against a permanent vacancy, the Director of Secondary Education or any other officer authorised by him has no further power to disapprove the appointment of a teaching or non-teaching staff in an aided school. Mr. Chatterjee has submitted that while the Rule 28 (7) has expressly provided for automatic or deemed confirmation, after expiry of two years from the date of temporary appointment against a permanent vacancy, none of the sub-rules of Rule 28 lays down that after confirmation the Director or any other officer authorised cannot refuse to grant approval to the said appointment. 5. HAVING given our anxious consideration, we hold that there is no provision under Rule 28 or any other Rule in the Rules of Management for Non-Government Institutions (Aided and Unaided), 1969 for automatic or deemed provision. Power of the Committee under Rule 28 (1) (i) to appoint teachers and other employees on permanent basis has been made subject to two conditions. The appointments are to be made in accordance with the directions given by the Director. Secondly, the appointments on permanent basis are to be made within the sanctioned strength. Power of the Committee under Rule 28 (1) (i) to appoint teachers and other employees on permanent basis has been made subject to two conditions. The appointments are to be made in accordance with the directions given by the Director. Secondly, the appointments on permanent basis are to be made within the sanctioned strength. Thirdly, approval of appointment would be thereafter sought for from the Director or any other officer authorised by him ordinarily within a fortnight from the date of the decision of the Committee. The expression 'ordinarily' denotes 'usually' or 'generally' but not 'invariably'. Under the last part of Rule 28 (l) (i) of the rules of Management after making an appointment in accordance with the directions given, it is the Committee which has to seek for or apply to within a fortnight to the Director or any other officer authorised for according approval to such appointment. Sub-rule (2) of Rule 28 of the said Rules of Management does not lay down any time limit within which the officer authorised by the Director has to decide whether such appointment should be approved or in case he does not approve the case is to be referred to the Director for final decision. Although the sub-rule (2) of Rule' 28 does not prescribe any fixed period of time within which order of approval or disapproval of appointment is to be made and communicated, the officer authorised in this behalf must act fairly and within a reasonable period of. time. He cannot arbitrarily keep the matter of approval of an appointment pending for a unreasonably long period of time. If the duty imposed under sub-rule (2) of Rule 28 is not discharged within a reasonable time by a Writ of Mandamus the officer authorised may be commanded to dispose of the said matter of approval of appointment in accordance with law. 6. THERE is nothing any of the sub-rules including sub-rule (7) of rule 28 depriving either the Director or the officer authorised by him all power to approve or disapprove an appointment after expiry of period of two years from the date of an appointment against permanent vacancy. Once the period of two years from the date of such appointment against vacancy elapses, the Committee could no longer treat him as a probationer. The Committee has no longer power to terminate the appointment except in accordance with the rules. Once the period of two years from the date of such appointment against vacancy elapses, the Committee could no longer treat him as a probationer. The Committee has no longer power to terminate the appointment except in accordance with the rules. Thus, the power of a deemed confirmation under sub-rule (7) of Rule 28 would be to put an end to the period of probation but even if the appointment is no longer on probation, the Director or person authorised by him still retains power to decide whether or not his appointment ought to be approved or not. . Although Rule 28 does not contain any provision for deemed or automatic approval of appointment of a teaching or non-teaching staff made by the Managing Committee of a school, in particular facts the court may hold that by reason of its own conduct the approving authority was estopped from withholding or refusing approval. In case more than two years had expired from the date of the appointment and the appointee by operation of law had become already confirmed in his or her post and the authority had impliedly or expressly held out a representation that such appointment would be approved, the approving authority cannot be allowed to resile from its said promise and to disapprove the appointment. 7. COMING to the facts of this case, we find that as early as August. 1980 Sm. Maya Sarkar, the respondent no. 1, had joined as the Head mistress of the Jateswar Girls' School and she has become already confirmed in her post. Under orders of this court the State respondent had paid her salary and other' dues as the Head Mistress of the said school. The District Inspector of Schools was unable to approve her appointment and therefore, under Rule 28 (2)he was bound to refer her case to the Director. The trial court 'recorded that the learned advocate who appeared for the State had submitted before him. that no instruction had been received as to whether or not the; Director had passed any order regarding approval of. . the petitioner's service. There was no interim order upon the Director of, Secondary Education from giving his decision as to. whether or not the service of Sm. Maya sarkar ought to be approved. Therefore, it-would be inequitable to further keep open the question as to whether her service ought to be approved or not. . the petitioner's service. There was no interim order upon the Director of, Secondary Education from giving his decision as to. whether or not the service of Sm. Maya sarkar ought to be approved. Therefore, it-would be inequitable to further keep open the question as to whether her service ought to be approved or not. Even if. the service of Sm. Maya. Sarkar was disapproved, the appellant cannot claim that she. should be automatically appointed as the head Mistress of the School. In case of the approval of the service of S. Sarkar, steps have to be taken over again for appointment of the Head Mistress of. the School. Thereafter, although we do not agree with all the reason given by the trial court, we do not propose to interfere with its judgment. There will be no order as to costs. Let the certified copy of this order, if applied for be granted immediately. Appeal dismissed.