Research › Browse › Judgment

Calcutta High Court · body

1988 DIGILAW 361 (CAL)

Jagannath Mandal v. State of West Bengal

1988-09-06

MAHITOSH MAJUMDAR

body1988
ORDER This writ application is directed against the orders, as contained in Annexures 'C', 'D' and 'E' to the writ petition. The text of the said Annexures 'C', 'D' and 'E' are set out below: Annexure 'C' (relevant part) "As desired by the Hon'ble Minister In charge (Pry. & Secondary) West Bengal, he is requested to postpone the appointments of the teaching and non-teaching staff of his school for the present." Annexure 'D' "In reference to the above, he is informed that all the appointments of the teaching and non-teaching staff of his school were postponed in accordance with instructions conveyed by the P.S. of the Hon'ble Minister in charge (Pry. and Secy. Education) West Bengal. This was communicated to him under office No. 146/G dated 18.1.83 and that order will stand. A reference has been made to the P.S. to the Education Minister (Pry. and Secondary) West Bengal for early disposal of she case with a copy to the D.S.E. West Bengal. This is for his information." Annexure 'E' "The undersigned begs to invite a reference on the subject indicated above and to state that Sri Jagannath Mondal, an unapproved part time clerk in H.S. Section of Murarai A.K. Institution, has preferred to file a court case before the Hon'ble High Court, Calcutta, for the approval of the panel for appointment to the post of 2nd clerk at the said Murarai A.K. Institution. The Hon'ble High Court, Calcutta, has issued an ad interim order of injunction to the effect that the respondent no. 4 should submit the panel dated 3.1.83 prepared for filling up the post of 2nd clerk of the respondent no. 4 Murarai A.K. Institution along with other necessary papers before the respondent no. 3, within two weeks from the date of communication of the order and the respondent no. 3 is directed to consider the grant of approval to the said panel within two weeks thereafter and if the panel is not approved reasons must be given. In the circumstances, as per order of the Hon'ble High Court, Calcutta, the School has submitted the panel to this office for approval. On scrutiny of the papers relating to the approval of the said panel, it is found that the sanction of the post of second clerk from this office vide this office no. In the circumstances, as per order of the Hon'ble High Court, Calcutta, the School has submitted the panel to this office for approval. On scrutiny of the papers relating to the approval of the said panel, it is found that the sanction of the post of second clerk from this office vide this office no. 3116/G dated 25.11.82 was made through inadvertence and as soon as it was detected the School authority was instructed to postpone the interview for recruitment of the post of 2nd clerk. The said information was communicated to the school through special messenger from this office on 3.1.83. As such the panel cannot be approved at this stage. In the circumstances, as the Hon'ble Court has passed order to give reasons if the panel is not approved the undersigned begs to request him to kindly take up the matter to intimate the decision of this office of not according the approval to the panel to the Hon'ble High Court, Calcutta." 2. The petitioner claimed and contended that the appointment of second clerk of the respondent no. 4 cannot be withheld on the ground of the desire and instructions of the Minister. It is also claimed by the petitioner that the sanction given on November 25, 1932 for the post of second clerk of the respondent no. 4 could not be nullified on account of inadvertence and the said ground was never taken and in that view of the matter, the impugned orders a, contained in Annexures 'C', 'D' and 'E' to the petition cannot be sustained. 3. On a careful consideration of the said impugned orders, it appears that the District Inspector of Schools instead of discharging his functions and exercising discretion independently acted on the basis of the instructions conveyed to him by the Private Secretary of the Minister-in-charge of Primary and Secondary Education. 4. It is further submitted on behalf of the petitioner that the Minister-in-Charge concerned under the relevant Act and the Rules framed thereunder has had no authority, competence and power to pass such instructions or to express such desire as is done in the facts and circumstances of this case. 5. This matter was taken, up for hearing for a number of days but could not be decided on the ground that another writ petition being C.R. No. 16704(W) of 1984 was pending and to which Mr. 5. This matter was taken, up for hearing for a number of days but could not be decided on the ground that another writ petition being C.R. No. 16704(W) of 1984 was pending and to which Mr. Sircar in his usual fairness referred. 6. On a careful scrutiny of the facts and circumstances of the case, the basic grievance of the petitioner and objections raised by Mr. Sircar, I am of the view that it is not necessary for this Court to go into the details of the matter by reason of the foundational ground that the Minister-in-charge of Primary and Secondary Education is not competent to impose dictations upon the District Inspector of Schools nor is he capable of post-pointing the appointments of teaching and non-teaching staff. It is well settled that in administrative law, doctrine of dictation abdication and surrender have found a very significant place. During the war time the British Ministers had fallen foul of their exercise of power of dictation. Relevant passage from the 'Administrative Law by H.W R. Wade' at pages 315-316 is helpfully culled below: "Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with some one else or may allow some one else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by tire wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them. In this class might be included the case of the cinema licensing authority which, by requiring films to be approved by the British Board of Film Censors, was held to have surrendered its power of control into unauthorised hands. Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise. The Minister of Housing and Local Government made it a rule to refuse planning permission for gravel working on top-class agricultural land whenever the application was opposed by the Minister of Agriculture. Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise. The Minister of Housing and Local Government made it a rule to refuse planning permission for gravel working on top-class agricultural land whenever the application was opposed by the Minister of Agriculture. The Court held that this was to put the decisive power into the hands of the wrong minister and that a decision so taken must be quashed." 7. Here also, the minister who had no authority or competence to express such desire nor could he issue instructions for the postponement of the appointment of teaching and non-teaching staff did in fact intervene in the matter without any authority of law. That being the position this cannot be accepted on the ground of conferment of powers in the wrong hands. Reference may be made to the judgments of the Supreme Court in State of Punjab v. Suraj Prakash AIR 1963 SC 507 and Pratappur Company Limited v. Cane Commissioner of Behar (1969) 1 SCC 308 . The Minister in fact acted without any authority to impose such dictation in the instant case. 8. In view of the above, the impugned orders contained in Annexure 'C', 'D' and 'E' are set aside, but the respondents are given liberty to proceed in accordance with law in the matter of appointment of Second Clerk of Murarai A.K. Institution. 9. I make it clear that I have not gone into the other aspect of the matter as effectively urged by Mr. Sircar. 10. Both the matters are accordingly disposed of on the aforesaid terms. There will be no order as to costs. Impugned orders set aside.