JUDGMENT 1. Writ petitioners, being teaching and non-teaching staff or “AMULYA VIDYA BHABAN" Vi ll. and P.O.-Raine. P.S.-Kolaghat, District• Midnapore, W.B., awaiting for recognition of the aforesaid Junior High School established in 1972 and functioning without any interruption since 1975, have challenged and order passed by the President, West Bengal Board of Secondary Education, dated 15th November, 1995, which was communicated by the Secretary, West Bengal Board of Secondary Education and Memo bearing No. S/449 dated 29th November, 1995 which is Annexure 'M' to the writ petition. 2. In the aforesaid impugned order dated 15th November, 1995, President, West Bengal Board of Secondary Education, respondent No.2 rejected the claim of the functionaries of the school for recognition of "AMULYA VIDYA BHABAN" (hereinafter referred to as the said school) by observing, inter alia :- "In pursuance of the Order of the Hon'ble High Court in C.O. No. 14256 (W) of 1994 and in consideration of Memo No. 575-SE(S) dated 13.9.95, I, President, West Bengal Board of Secondary Education, in exercise of powers conferred upon me under Section 28(2) of the West Bengal Board of Secondary Education Act, 1963, as amended, dispose of the matter of proposed recognition of Amulya Vidya Bhaban, Dist.-Midnapore, by rejecting the same on the following grounds :- 1) The school has not applied in the prescribed form with a requisite fee of Rs. 25/- by 1975 to the Board. 2) Teaching and non-teaching staff were appointed not keeping in view of the staff pattern and without observing the existing norms. 3) There are two Secondary/Junior High Schools within the radius of 4/5 k.m. and as such another Junior High School will not be a viable." 3. To consider the claim of the petitioners it is necessary to consider the fact as claimed, that the said school was set up with the aid and assistance of local people who had secured a piece of land by way of Gift in favour of the school measuring about 0.17 acres in plot No. 1964. Mouza-Raine, P.S. -Kolaghat, District-Midnapore. The claim of the petitioner was for recognition of the said Co-educational JUNIOR HIGH SCHOOL for Class-IV & V at the first instance. 4. The petitioners since 1978 have made continuous representations, appeals and memoranda to the appropriate authorities including the respondents for recognition of the said school. Mouza-Raine, P.S. -Kolaghat, District-Midnapore. The claim of the petitioner was for recognition of the said Co-educational JUNIOR HIGH SCHOOL for Class-IV & V at the first instance. 4. The petitioners since 1978 have made continuous representations, appeals and memoranda to the appropriate authorities including the respondents for recognition of the said school. On 19th May, 1979, the Secretary of the said school made a prayer for inspection of the said school to the then Hon'ble Minister of Education (Secondary Education), West Bengal. Sri. Partha De, the then Minister-in-Charge of Education issued necessary directions for holding as inspection with regard to the recognition of the solid schools The order of the Hon'ble Minister-in-Charge was duly communicated to the District Inspector of Schools (Secondary Education), Midnapore, under Memo No. 04/2748/HMS dated 5th August. 1981. 5. Despite the fact that the concerned Minister-in-Charge passed an order on 5th August, 1981 for holding an inspection, as to whether the school can be accorded recognition or not. The said order was carried out by the D.I. of Schools (SE). Midnapore on 11th April, 1984. The D I. of Schools (SE) Midnapore issued an order being Memo No. 1759-S(13) dated 11th April, 1984 informing the petitioner No.1 (Headmaster of the said school) that on the question of recognition there will be an inspection by the District Level Inspecting Team on 25th April, 1984. The said D.I. directed the petitioner No.1 to fill up the form attached with the said memo and to submit the same in triplicate and band over the same to the inspecting team on the date of inspection. In terms of the said direction dated 11th April, 1984, the said school was inspected on 25.4.94 by the District Level Inspecting Team, Midnapore. On 25th April, 1984, the petitioner No.1 being the Headmaster of the said school duly banded over the filled up form in triplicate for recognition to the said inspecting team. 6. From an available information the petitioners came to learn that although the inspection was held on 25th April, 1984 but the report of the inspecting team was sent to the Director of School Education, West Bengal, on 11th April, 1985 i.e. about one year after from the date of inspection. The reason of such delay is unknown to the petitioners Thereafter the petitioner No.1 received a Memo being No 264-8 dated 17th January, 1986 from the D.I. of Schools (SE). The reason of such delay is unknown to the petitioners Thereafter the petitioner No.1 received a Memo being No 264-8 dated 17th January, 1986 from the D.I. of Schools (SE). Midnapore whereby instruction was given to submit necessary papers for recognition of the school within 22nd January, 1986. Such directions were fully complied with by the petitioner No.1 and all necessary papers were submitted before the D. I. of Schools (SE), Midnapore. 7. The D.I. of Schools (SE), Midnapore under Memo No. 1325-S dated 14th May, 1990. Communicated the following to the Headmaster of the said schools :- "In reference to his application dated 10.5.90 to the undersigned this is to inform him that from the records available in this office, it appears that his school was visited by the District Level Visiting Teams on 25.4 84. The school authority did not submit the prescribed fee of Rs. 25.00 to the West Bengal Board of Secondary Education as the application for recognition of the school was forwarded by the Hon'ble Minister-in-Charge of Education (P & E), Government of West Bengal for inspection." 8. The contents of the said letter that the school authority did not submit the prescribed fee of Rs. 25.00 as alleged by the D.I. of Schools (SE), Midnapore does not stand correct. Even assuming that the fee of Rs. 25.00 was not put in by the petitioners even then a direction could have been given to the petitioners to put in the requisite of Rs. 25.00 only. The letter dated 14th May, 1990 as quoted hereinabove indicates that the school was inspected on 25th April, 1984 and no adverse comments for refusal of recognition was recorded in the said letter save and except non-deposit of Rs.25.00 only which could have been easily taken out from the school authorities or from the petitioners. It seems that the authorities, who are in-charge of granting recognition were interested for compliance of the technicalities rather doing the actual Justice. 9. Be that as it may, the result is that inspite of holding the inspection on 25th April, 1984 the said school was not accorded recognition from the appropriate authority. At this stage the petitioner preferred a writ application on 12th August, 1991 before this Hon'ble Court. The grievances of the petitioners were that inspite of fulfilment of all requisites the school in question was not given recognition. At this stage the petitioner preferred a writ application on 12th August, 1991 before this Hon'ble Court. The grievances of the petitioners were that inspite of fulfilment of all requisites the school in question was not given recognition. The writ application came to be registered as Civil Order No. 10017(W) of 1991. 10. Upon a contested hearing, Ajit Kumar Sengupta, J. as he then was, disposed of the writ application on 31st March, 1994 with the following directions :- "The District Inspector of Schools (SE), Tamluk is directed to hold an enquiry and inspection through the District Level Inspection Team. The team shall cause an enquiry into the present set up of the school and submit its report to the Director of School Education, West Bengal within four weeks from the date of communication of this order. Such report of the District Level Inspection Team shall be considered by the Education Department, Government of West Bengal, and the Education Department shall submit their views as well as the recommendations to the West Bengal Board of Secondary Education within four weeks from the date of receipt of the report from the District Level Inspection Team. In the event the recognition is recommended by the Education Department on the basis of the report of the District Level Inspection Team, the Board shall issue necessary order granting recognition to the school within three weeks from the date of receipt of the recommendation of the Government. The Board shall specify the date from which the said recognition will be effective. In the event the school is recognised by the West Bengal Board of Secondary Education, the Director of School Education shall accord approval of the teaching and non-teaching staff from the date of recognition of the school in accordance with law and the District Inspector of Schools (SE) Tamluk, Midnapore shall issue consequential approval letter to the teaching and non-teaching staff of the school. The writ petition is disposed of.” 11. In obedience to the said order dated 31st March, 1994 the D.I. of Schools (SE), Tamluk held an inspection by a surprise visit on 13th June, 1994 through the District Level Inspection Team. 12. The D.I. of Schools (SE) Tamluk under Memo No. 145-S dated 24th June, 1994 sent the report of the inspection to the Director of School Education, West Bengal. 12. The D.I. of Schools (SE) Tamluk under Memo No. 145-S dated 24th June, 1994 sent the report of the inspection to the Director of School Education, West Bengal. The report of the D.I. of Schools is as follows;- “In connection with the above, the undersigned begs to state that in pursuance of the Hon’ble Court’s order dated 3.3.1994 passed by His Lordship Hon’ble Mr. Justice Ajit Kumar Sengupta, Amulya Vidya Bhaban, (a 4-Class unrecognised Jr. High School) was visited on 13.6.94 by Sri Aparesh Bhattacharjee, member of the D.L.I.T. and two Asstt. Inspectors of Schools namely Sri Tapan Dutta, Sri Asim Kr. Pal being authorised by the District Inspector of Schools (Secondary Education), Midnapore along with the undersigned. The report as prepared entirely by the members of the D.L.I.T. is forwarded herewith without any comment of the undersigned at the Hon'ble High Court directed the undersigned to hold an inspection through the D.L.I.T. though the undersigned was present during the whole period of Inspection held on 13.6.1994. 13. Challenging the said Memo No. 145-S dated 24th June, 1994 issued by the D.I. of Schools (SE), Tamluk, the petitioners preferred again a writ application before S.B. SINHA, J. The learned Judge upon hearing all the parties passed an Order to the following effect :- "Heard the learned Counsel for the petitioners, learned Counsel for the State and the learned Counsel for the respondent No. II. The petitioners in this application have, inter alia, prayed for issuance of a writ in the nature of Mandamus directing the respondents to recognise the school in question. Amulya Vidya Bhaban was established in the year 1972. The petitioners have filed an application for recognition of the said school as 'Raine Junior High School'. Keeping in view the facts and circumstances of the one, this application is disposed of with the following direction :- District Inspector of Schools (SE), Tamluk shall cause an inspection to be made by the District Level Inspection Team, Tamluk within two weeks from the date of receipt of a copy of this order and forward the same to the Director of School Education with his comments within one week thereafter. The Director of School Education shall, upon the receipt of the record, forward the same to the Secretary, Education Department with his comments if any. The Director of School Education shall, upon the receipt of the record, forward the same to the Secretary, Education Department with his comments if any. The Secretary, Education Department in his turn shall consider the matter and in the event he finds that the school is fit to be granted recognition forward the records to the West Bengal Board of Secondary Education, which shall pass an appropriate order in accordance with law within four weeks from the date of receipt of the records." 14. Subsequently on 25th August, 1994 the said writ application was mentioned before the learned Judge and upon hearing the parties the learned Judge was pleased to pass the following order: “All the parties state that the, District Inspector of Schools (SE), Tamluk shall cause an inspection to be made by the District Level Inspection Team, Tamluk under his supervision. The order dated 21.8.94 stands modified to the aforementioned order." 15. On receipt of the order of S.B. SINHA, J. dated 22.8.94 and 25.8.94 the D.I. of Schools (SE), Tamluk, District-Midnapore requested the members of the District Level Inspecting Team, Midnapore District to hold an inspection in respect of the said school on the question of recognition. The said instruction was given by the D.I. of Schools (SE), Tamluk, District-Midnapore under Memo No. 1266 S dated 14th September, 1994. 16. Upon receipt of the said letter the D.I. of Schools (SE), Midnapore made a communication to the D.I. of Schools (SE), Tamluk, P.O.-Tamluk, District-Midnapore with regard to the inspection of the said school under Memo No. 4875-S dated 15th September, 1994 to the following effect : "In reference to his above cited memo he may please remind that the said school has already been inspected by the District Level Inspecting Team in his presence on 13.6.94 in compliance with the solemn order passed by His Lordship Hon'ble Mr. Justice Ajit Kumar Sengupta on 31.3.94 in C.O./C.R. No. 10017(W) of 1991 Nabadwip Chandra Das and Others v. State of West Bengal and Others and the inspection report has also been submitted to the Director of School Education through him. As such the District Level Inspection Team feels it that there is no further necessity of causing any inspection of the same school on same ground, the report dated 13.6.94 will stand. The Hon'ble Court may be enlightened of the fact from his end please." 17. As such the District Level Inspection Team feels it that there is no further necessity of causing any inspection of the same school on same ground, the report dated 13.6.94 will stand. The Hon'ble Court may be enlightened of the fact from his end please." 17. Therefore, the position remains that inspite of the order of the learned Judge, the District Level Inspecting Team sat in appeal over the order of S.B. SINHA, J. dated 22nd August, 1994 & 25th August, 1994 and did not hold the enquiry. Without holding the enquiry the District Level Inspecting Team concluded that the report dated 13th June, 1994 will stand. No doubt this amounts to a clear contempt of the orders of S.B. SINHA, J. but the petitioners were advised to challenge the legality of Memo No. 4875-S dated 15th September, 1994 through a fresh writ application. 18. It is stated that under such peculiar situation the petitioners moved a third writ application on 7th December, 1994 before ALTAMAS KABIR, J. challenging the said order dated 15th September, 1994 passed by the D.I. of Schools (SE), Midnapore and Convenor, District Level Inspecting Team, Midnapore. The third writ application came to be registered as C.O. No. 14256(W) of 1994. The entire order of ALTAMAS KABIR, J. is set out hereinbelow:- "Having regard to the fact that there are two contradictory reports submitted by the District Level Inspection Team in connection with grant of recognition to the school in question, it is submitted by Mr. Moloy Kumar Basu, learned Advocate, appearing for the petitioners, that an independent enquiry should be conducted to ascertain the correct position with regard to the running of the school in question. Let this matter stand over till four weeks after the Christmas Vacation. In the meantime, the District Inspector of Schools (SE), Tamluk, is directed to conduct an independent enquiry for the purpose of grant of recognition of the school, which is said to be functioning since 1972, in the presence of the learned Advocates of the respective parties, upon notice to them. Such inspection must be completed within 31st December, 1994, and the report of the said inspection is to be submitted to this Court on the next date of hearing. Such inspection must be completed within 31st December, 1994, and the report of the said inspection is to be submitted to this Court on the next date of hearing. Leave is given to the learned Advocates appearing for the respective parties to communicate this order to the concerned authorities including the District Inspector of Schools, who are directed to act on the basis of such communication." 19. In obedience to the order dated 7th December, 1994 there was an independent enquiry by the learned Advocates of all the parties including Sri Rathindra Nath Majumdar, D.I. of Schools (SE), Tamluk. P.O.-Tamluk, District-Midnapore. The enquiry was held on 28th December, 1994 on the question of recognition of the said school. During the inspection the respective learned Advocates of all the parties were present in the school premises. Upon holding a detailed enquiry in the presence of all the learned Advocates of the parties, the D.I. of Schools (SE), Tamluk submitted a report an 6th January, 1995 as follows :- "After the completion of the total enquiry verification & inspection of the whole affairs, a through discussion on each item as stated above is made with Mr. Santosh Kumar Chatterjee. Learned Advocate for the State Respondents and Mr. Rabilal Maitra, learned Advocate for the West Bengal Board of Secondary Education. A detailed discussion is also held on terms and conditions framed by the West Bengal Board of Secondary Education for the first recognition of a secondary school and justification of financial involvement of Government. During the discussion the aforesaid learned Advocates express their positive views towards first recognition of the school in question. They also express their verbal opinion to the effect that the school in question deserves for first recognition as a 4-Class Junior High School, all the necessary conditions for the purpose have been fulfilled and if such consideration is made the local/people/guardians will be mare benefited from the view of educational aspects. ***** ******* The location of the school is ideal. It has 17 decimal land of its awn and the school authority is trying to purchase nearby lands also. There are feeder Primary Schools. Now. under the above facts and circumstances, I, also hold the same opinion like the other two learned Advocates (learned Advocates of the State & The West Bengal Board of Secondary Education) regarding first recognition of this school." 20. There are feeder Primary Schools. Now. under the above facts and circumstances, I, also hold the same opinion like the other two learned Advocates (learned Advocates of the State & The West Bengal Board of Secondary Education) regarding first recognition of this school." 20. On 5th April, 1995 the aforesaid writ application being C.O. No. 14256 (W) of 1994 came up far hearing before G.R. BHATTACHARJEE, J. in terms of the order dated 7th December, 1994 passed by ALTAMAS KABIR, J. on 5th April, 1995 upon hearing all the parties, G.R. BHATTACHARJEE. J. passed the following order:- “ After hearing the learned Advocates appearing for the parties it is felt that the order dated 2nd March, 1995 needs some modification so as to make the same effective. Accordingly, it is directed that the Memo being No. 4875-S dated 15th September, 1994 issued by the D.I. of Schools (SE), Midnapore is hereby set aside. It is further directed that :- (i) the D.I. of Schools (SE), Tamluk will send the report dated 6th January, 1995 to the Director of Secondary Education, W.B. within one week from the date or communication of this order. (ii) the Director of Secondary Education will forward the same to the Secy., Education Department, W.B. within one week thereafter. (iii) the Secretary, Education Department will submit the said report to the Board along with his comments, if any, within two weeks thereafter. (iv) the respondent No.5 will consider the question of grant or recognition of Amulya Vidya Bhaban (a Class-IV Junior High School) in the light of the said report of the D.I. or Schools (SE), Tamluk within three weeks thereafter. The earlier order dated 28th March, 1995 stands modified accordingly. The writ application is thus disposed of without any order as to costs." 21. As follow up action, D.I. of Schools (SE), Tamluk forwarded all the papers of the Director of School Education, West Bengal by Memo No. 74-S dated 29th May, 1995, Annexure ‘J' to the writ petition, Director of School Education in his turn forwarded the Inspection report of the D.I. of School to the Secretary, Education Dept ,Govt. of W.B by Memo No. 1280-LS dated 17th July, 1995 for necessary action. of W.B by Memo No. 1280-LS dated 17th July, 1995 for necessary action. 22 Pursuant to the order dated 5th April, 1995, passed by this Court, Deputy Secretary to the Government of West Bengal forwarded the relevant papers under Memo No. 575-SC (S) dated 13th September, 1995, Annexure ‘L' to the writ petition to the Secretary, Government of West Bengal, Board of Secondary Education, for taking necessary action in the matter of grant of recognition of AMULYA VIDYA BHABAN, P.O-Raine, Midnapore. 23. Petitioners have challenged the powers and duties of the President for grant of recognition in exercise of the powers conferred under Section 28(2) of the West Bengal Board of Secondary Education Act, 1963, as amended. Petitioners have contended that the President has had no power to reject the claim for recognition of the School. It has been contended that the President, in his order dated 15th November, 1995, did not record the state of emergency prevailing for which the matter was not considered by the Board. The contention of the petitioners cannot be ignored inasmuch as the affidavit-in-opposition is silent at the question whether the President had reported to the Board as soon as possible after rejecting the claim of the petitioner on 15th November, 1995 or whether the decision taken on 15th November, 1995 was duly ratified by the Board in subsequent meeting or otherwise. Admittedly there was no averment as to why the President had exercised the power of the Executive Committee of the Board under Section 28(2) of the said Act. The power contemplated under Section 28(2) of the said Act cannot be assumed in a casual manner or such Board cannot be substituted for a routine exercise If the Court thinks that there was no emergency, as contemplated in the Scheme and in absence of such emergency, the assumption of jurisdiction by the President rejecting the claims for recognition of the School was without authority and sanction of law. 24. I am inclined to quash the impugned order dated Vth November, 1995, inasmuch as by not quashing the impugned order, the petitioners claim for recognition of the school will be frustrated. 25. It can not be overlooked that the act provides, modalities of recognition of Schools. Different committees which included recognition committee are required to be Constituted. 24. I am inclined to quash the impugned order dated Vth November, 1995, inasmuch as by not quashing the impugned order, the petitioners claim for recognition of the school will be frustrated. 25. It can not be overlooked that the act provides, modalities of recognition of Schools. Different committees which included recognition committee are required to be Constituted. Section 19 of the said Act dealt with the recognition committee, Section 19(3) of the said act provides contemplates, inter alia: It shall be duty of the recognition committee to advice the Executive Committee on all matters concerning the recognition of institutions and the Executive Committee shall not accord recognition to any institution except on the recommendation of the recognition committee." 26. Section 19(A) of the said act deals with the Constitution of the Executive Committee and the powers of the Executive Committee Section 19(A)(3) of the said Act provides, inter alia :- "(3) Subject to any general or special orders of the State Government the provisions of this Act and any rules or regulations made thereunder, the Executive Committee shall have the power to; (a) Advise the Board on all matters relating to development or Secretary Education: (b) Take such steps as may be necessary to carry out as directed by the Board, the Policy in accordance with the provisions of this act: (c) Subject to any directions of the State Government in regard to the number location and manner of selection ; (i) Grant or refuse recognition to Institutions and (ii) Withdraw recognitions granted to Institutions after considering the recommendation of the Recognition Committee.” 27. It is not clear from the affidavit-in-opposition whether the President of the Board. while rejecting the application for recognition, had acted inconsonance with the scheme as contemplated in Sections 18 & 19 of the said Act. It is not also clear whether there was any observation of the Recognisation Committee and such observation was considered by the President or the Executive Committee. 28. President in rejecting the claim of the petitioners for recognition of the said school had considered several lapses or irregularities in the applications for recognition. Objection was raised that the school had not applied with the prescribed form of requisite fees of Rs. 25/- only by 1975 to the Board. 28. President in rejecting the claim of the petitioners for recognition of the said school had considered several lapses or irregularities in the applications for recognition. Objection was raised that the school had not applied with the prescribed form of requisite fees of Rs. 25/- only by 1975 to the Board. Unfortunately, neither the Board nor the President of the Board had consider this scheme introduced by the Secretary Education department of Government of West Bengal by Memo No. 1224 Edn. (S) dated 5/9 December, 1987, which contemplated Inter alia :- "The West Bengal Board of Secondary Education is authorised to grant recognition to secondary schools on the recommendation or the State Government under the West Bengal Board of Secondary Education Act, 1963 as amended from time to time. The said Board used to receive formal applications for recognition upto 1975 and had also a prescribed, fee of Rs.26/- for such applications towards the last few years till 1975. The practice of receiving application by the Board was discontinued since 1975 as a huge number of such applications were pending. Since then the said Board has not formally received any further applications and are examining the application already pending with them on recommendation of the State Government.” 29. Admittedly there was no valid subsisting rule with regard to payment of Rs. 25/- only at the time of depositing the application for recognition at the material time. 30. Even if it is considered that the prescribed fees of Rs. 25/- was payable by the petitioner, the authority could ignore such irregularities by directing them to deposit and submit application for recognition along with the fees of Rs. 25/- or subsequently the petitioner could deposit a sum of Rs. 25/- as prescribed fees as supplimentary to the application. 31. This Court does not favour the approach of the functionaries of the Education Department and the public bodies associated with the Education Sector, President of the West Bengal Board of Secondary Education could secure a deposit of such fees of Rs. 25/- from the petitioners who had approached the Board of Secondary Education for such recognition. Unfortunately no such steps were taken by the respondents including the West Bengal Board of Secondary Education. 25/- from the petitioners who had approached the Board of Secondary Education for such recognition. Unfortunately no such steps were taken by the respondents including the West Bengal Board of Secondary Education. If there was any difficulty and or irregularities in the application for recognition, such irregularities could have been detected by the office of the first instance who had received the application or by subsequent Officers who were in office to consider the matter. But this steps were not taken by any of the respondents will the matter was placed before the Board of Secondary Education with all the Inspection Reports and findings of functionaries of the Education Department. 32. So far the 2nd Query/Objection was concerned the school functionaries were required to appoint qualified teachers and that objection can be cured by selecting qualified teachers from amongst the organised teachers who have been rendering service or on such terms of appointment to be considered by the State Government from time to time. The Education Department, State Government is entitled to consider the aspect of qualified teachers but such consideration will come after recognition of the school and not before recognition. Admittedly, the teaching and non-teaching staff are working in the schools since inception as Organiser Teachers and if there are any teachers without the requisite qualification the State Government and competent authority to withhold prevailing system as far as qualified teachers are concerned. 33. So far 3rd Objection is concerned viz. that there are two Secondary/Junior High School within the radius of 4/5 k.m. and as such another Junior High School will not be viable. The 3rd Objection is also not valid inasmuch as it transpires from the report dated 6th January, 1995, submitted by the D.I. of Schools (SE). Tamluk, that the distance of several schools should be considered in the light of the scheme of the Government for Development and Inspection of the Rural Area. In the report, the reporting Officer had disclosed the shortest route of Junior/High/Higher/Junior High Madrasa in the following manner :- Name of School Distance North : Gopalnagar K. Kr. Institution -about 05 k.m. South : Bathanberia Jr. High School -about 04 k.m. East : No school upto the Bank of Rupnarayan River though there are 3 (three) villages in between West : Sulani High School -about 10 k.m. 34. Institution -about 05 k.m. South : Bathanberia Jr. High School -about 04 k.m. East : No school upto the Bank of Rupnarayan River though there are 3 (three) villages in between West : Sulani High School -about 10 k.m. 34. The Board of Secondary Education or the President of the Board raised the aforesaid objection of distance as regards recognition of other High/Junior High Schools within a radius 4/5 k m From the report it will be evident that there is no school upto the Bank of Rupnarayan River though there are three villages in between. 35. It is the duty to State Government to set up schools in the villages and this is the Welfare Scheme of the Stale of West Bengal to let up one school in one village. There is no Statutory Provisions and there could have been no Statutory Provisions that the school has to be set up within and not beyond 4/5 k.m. no existing any School. The requirement of the school is the requirement of the society. Sometime it is reasonable requirement which transforms into a legitimate expectation of the society. In rejecting the claim for recognition the President of the Board has indicated, inter alia, "As there are two Secondary/Junior High School within the radius 4/5 k.m. and as such another Junior High School will not be viable" 36. There can be no debate on the question that the State never establishes any school with a profit motive but because of public welfare, eradication of illiteracy and in the larger interest of the society. In order to eradicate the curse of illiteracy, education is a must and establishment of a school does not depends on the question of profit motive. Setting up of a school and granting of recognition is not the same think like that of establishment of a factory mill or project which is even set up by the State. There can be no compromise with the question of spreading mass education. 37. These things have to be remembered while a public authority discharges its powers in granting recognition or refusing to recognise a school which has its existence since 1972. Therefore, the Supreme Court in the (1) State of Karnataka v. Appa Balu Ingale, 1995 Supplementary (4) Supreme Court Cases 409, 483 and in para 26 observed as follows :- "Poverty, illiteracy and caste system are positive dangers to democracy. Therefore, the Supreme Court in the (1) State of Karnataka v. Appa Balu Ingale, 1995 Supplementary (4) Supreme Court Cases 409, 483 and in para 26 observed as follows :- "Poverty, illiteracy and caste system are positive dangers to democracy. Democracy is essentially a form of society. Political democracy without social democracy cannot last long. Elevation of the less privileged to the level of other sections of society is essential, otherwise democracy would be in danger. Political and economic democracy would be of no avail unless social inequalities are removed." 38. The Supreme Court in the case of (2) Unnikrishnan v. State of Andhra Pradesh, 1993(1) Supreme Court Cases 645 para 197 observed as follows :- "Education has never been commerce in this country. Making it one is opposed to the ethics, tradition and sensibilities of this Nation. The argument to the contrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this country since time immemorial. It has been treated as a religious duty, It has been treated as a charitable activity." 39. It will not be improper if at this juncture Article 41 of the Constitution is being remembered. Constitution makers rightly remembered the value of education for the mass and that is the reason Article 41 of the Constitution has been engrafted in the following manner :- "Art. 41: The State shall, within the limits of its economic capacity and development. make effective provision for securing the right to work to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want." It is true that although the provisions of Article 41 do not fall within the category of fundamental right, violation of which are not amenable to writ jurisdiction but even then the duty of the State under the Directive Principles of State Policy is not only to establish education institutions but also to effectively secure the right to education, by admitting students to the seats available at such institution, by admitting candidates found eligible according to some rational principles. 40. Article 45 of the Constitution have cast a duty upon the State to provide free and compulsory education for all children until they complete the age of 14 years. 40. Article 45 of the Constitution have cast a duty upon the State to provide free and compulsory education for all children until they complete the age of 14 years. Article 45 of the Constitution reads 311 follows :- "Art. 45: The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution for flee and compulsory education for all children until they complete the age of fourteen years." 41 In view of Article 45 of the Constitution. it is the duty of the State of impart compulsory education to the children in the egalitarian socialist society with secularism as its goal In (3) Brown v. Board of Education, (1953)34 US 483 at page 494: 98 Law Ed 8/3 at page 880, Warren, Chief Justice, has held that:- "Education is perhaps the most important function of State and local Governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our society. it is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training and in helping him to adjust normally to his environment. In these days. It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of education. Such an opportunity, where the State has undertaken to provide it, is a right which must be made available to all on equal terms." 42. Public law concerns the law governing relations between the individual and public bodies and relations between different public bodies such as central and local Government. The Courts have developed a body of substantive principles of public law to ensure that public bodies do not exceed or abuse their powers and that they perform their duties. Public law concerns the law governing relations between the individual and public bodies and relations between different public bodies such as central and local Government. The Courts have developed a body of substantive principles of public law to ensure that public bodies do not exceed or abuse their powers and that they perform their duties. Thus, the Courts will review an exercise of power to ensure that the public body :- a. has not made an error of law; b. has considered all relevant factors and not taken into account any irrelevant factors; c. has acted for a purpose expressly or impliedly authorised by statute; d. has not acted in a way that is so unreasonable that no reasonable public body would act in that way; and e. that the public body has observed statutory procedural requirements and the common law principles of natural Justice or procedural fairness. These grounds were summarised by Lord Diplock as illegality, irrationality and procedural impropriety. The said grounds were laid down by Lord Diplock in the case of (4) Council & Civil Service Unions Vs. Minister for the Central Service, (1985 AC 374 at page 410. 43. That is the reason the Supreme Court in the case of (5) TATA CELLULER V. UNION OF INDIA, AIR 1994 SC 651 observed that the: duty of the Court is to confine itself to the question of illegality. Its concern should be:- a. whether a decision making authority exceeded its power; b. committed an error of law; c. committed a breach of the rules of natural Justice; d. reached a decision which no reasonable tribunal would have reached; and e. abused its powers. 44 In (6) R. v. Tower Hamlets London Borough Council, Ex. P. Chetnik Developments Ltd. reported in (1988) 1 All England Reports 961, the House of Lords observed as follows :- "The Court is entitled to investigate the action of the local authority with a view to seeing whether or not they have taken into account matters which they ought not to have taken into account, or, conversely have refused to take into account or neglected to take into account matter which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority had kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again. I think the Court can interfere. The power of the Court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority has contravened the law by acting in excess of the power which Parliament has confided in them." 45 Public authorities may give non-binding advice or guidance such advice may either be directed at a particular individual or may be general designed to apply to a particular area of activity. Earlier authorities restricting the scope of certiorari to determinations having binding effect have gradually been eroded with the evolution of judicial review. The Courts have now moved to a position where such advice may, in appropriate circumstances be reviewable. Advice addressed to an individual which effectively amounts to a decision or determination will be subject to judicial review. 46 Prof H.W. R. Wade in his Administrative Law (6th Edn.) at page 360 observed as follows :- “A public body which blindly rubber stamps its Officers recommendations will therefore be acting unlawfully as already seen in the case of the local board which had power to approve drains but allowed its surveyor to approve straightforward applications, merely reporting the numbers of such cases to the board. Similarly a labour relations board, which had power to determine whether a trade union was supported by a majority of employees, could not validly commission one of its Officers to determine this question find then merely adopt his decision. In both these cases the decision would have been valid had it been taken on a report and recommendation from the Officer which the board genuinely considered before determining the question itself. The same distinction was applied in Cylon to a board which had power to appoint trustees of a mosque. They consulted a Member of Parliament who supplied alist of names including his own all of whom the board appointed. The same distinction was applied in Cylon to a board which had power to appoint trustees of a mosque. They consulted a Member of Parliament who supplied alist of names including his own all of whom the board appointed. It was held that the board had merely adopted a ready made decision by an outsider and that such appointments were void. There can be no legal objection to a public body obtaining advice and consulting suitable persons, but it is vital that it should genuinely, keep the decision in its own hands." 47. Prof. Wade again at page 368 observed as follows with regard to the theory of dictation : "Closely a kin 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 same 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 the wrong authority and the resulting decision in 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. * * * * * * If the Minister's intervention is in fact the effective cause end if the power to act belongs to a body which ought to act independently, the action taken is invalid on the ground of external dictation as well as on the obvious grounds of bad faith or abuse of power." 48. It is extremely clear that the exercise of the power by the President has been made on irrelevant grounds or that regard relevant consideration. The President of the Board has not considered at all the independent report submitted by the D.I. of Schools (SE), Tamluk dated 6th January, 1995. It would be appropriate to quote from D. Smith's Judicial Review of Administrative Action, 4th Edn. The President of the Board has not considered at all the independent report submitted by the D.I. of Schools (SE), Tamluk dated 6th January, 1995. It would be appropriate to quote from D. Smith's Judicial Review of Administrative Action, 4th Edn. and at page 339 D. Smith observed as follows :- “If the exercise of a discretionary power has been influenced by considerations that cannot lawfully be taken into account or by the disregard of relevant considerations, a Court will normally hold that the power has not been validly exercised.” 49. In the case of the (7) Comptroller & Auditor General of India V. K.S. Jagannathan & Anr reported in AIR 1987 SC 537 the Supreme Court in para 20 of the Judgment (at page 546) observed as follows :- "Para 20: There is thus no doubt that the High Courts to India exercising their jurisdiction under Article 226 have the power to issue a writ of Mandamus or a writ in the nature of Mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of Mandamus or a writ in the nature of Mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority and in a proper case in order to prevent injustice resulting to the concerned parties the Court may itself pass an order or give directions which the Government or the public authority, should have passed or given had it properly and lawfully exercised its discretion." This judgment was subsequently followed by the Supreme Court in (8) AIR 1992 SC page 1, Mohan Kumar Singhania v. Union of India and (9) AIR 1993 SC 477 , Indra Sawhney v. Union of India. 50. 50. The decision in Comptroller & Auditor General of India V. K. S. Jagannathan & Another (supra) was followed by a DIVISION BENCH of this Court reported in (10) AIR 1995 Cal 42 . A DIVISION BENCH of this Court after relying on para 20 of the judgment in Comptroller & Auditor General of India v. K.S. Jagannathan & Anr. passed mandatory orders which will be reflected from Paragraphs 17 & 18 of the said DIVISION BENCH JUDGMENT. Paragraphs 17 & 18 of the DIVISION BENCH JUDGMENT are quoted hereinbelow:- "Para 7: Following the aforesaid decision of the Supreme Court, a Division Bench of this Court in (11) Satyendra Nath Mandal Vs. Hindusthan Petroleum Corporation Ltd., 1994 (1) Cal. LT (HC) 184, has directed the Hindusthan Petroleum Corporation Ltd. to offer the writ petitioner (therein) Retail Outlet Dealership (in question) for the reasons discussed therein. It would also appear from the aforesaid decision that a Division Bench of the Patna High Court in C.W.J.C. No.7686 of 1989 with M.J.C. No. 784 of 1991 had also directed the Bharat Petroleum Corporation Ltd. to appoint the second candidate in the merit list as Distributor at Purnea in terms thereof as the first candidate in the merit list was not found to be eligible for the dealership in question. It would further appear therefrom that the Supreme Court was not inclined to interfere with the aforesaid order passed by the Patna High Court. Para 18: In view of the facts and circumstances of the matter discussed above and the decisions hereinbefore referred to, the learned Trial Judge seems to us to have been perfectly justified in directing the State Transport Authority. West Bengal to issue offer letter to the writ petitioner for grant of permanent stage carriage permit for the route in question within four weeks from the date of communication of the order by passing the impugned order dated 30th January, 1994 which order should have been passed by it (S.T.A.) had it properly and lawfully exercised the discretion conferred upon, it by the Statute find nothing to interfere With the impugned order passed by the learned Trial Judge. There seems little substance in the apneal as such." 51. Sometime it is necessary to interfere in the Administrative arena. The Judiciary has a duty to formulate policy for translating the social lists contained in part 4 of the Constitution into reality. There seems little substance in the apneal as such." 51. Sometime it is necessary to interfere in the Administrative arena. The Judiciary has a duty to formulate policy for translating the social lists contained in part 4 of the Constitution into reality. The Apex Court has discharged its obligation to the Society. The Apex Court has formulated invaluable legal precepts which mean judicial commands on various fundamental rights. There precepts are the command of this Court to be strictly followed by the Executive and the Subordinate Courts. As the Doctrine of legitimate expectation is wellfed by such precepts. It is necessary to consider the reasonable and legitimate expectation of the petitioners who have come forward to set up a school to cater the needs of the Society. 52. I think and believe that sometime, it is no matter whether the petitioner or functionaries of the school, have fulfilled all the requirements to have recognition of the school. I think and hold that in the instant matter objection raised in the impugned Memo are all technical irregularities which can be shorted out by regularising in usual manner and as a matter of fact, all the requirements were fulfilled In a Country like ours, after lapse of about 50 years after Independence, Citizens can reasonably expect fruits of the Independence. It is the obligation of the State Functionaries to allow the Citizens to achieve the Constitutional goals. Necessarily, it is the obligation of the State Authority to cater the basic requirement of the Society; education to the door steps of the village people. 53. In such view of the matter I quash the impugned order passed by the President dated 15th November. 1995, which was communicated by the Secretary, under Memo No S/449 dated 29th November, 1995. Annexure ‘M' to the Writ Petition. I direct the West Bengal Board of Secondary Education to grant the recognition of the School for Class-V to Class-VIII from the academic session 1996-97. The provisional upgradation has to be granted upto Class-VIII so that there is no drop out in the school after Class-VIII. School will generate momentum gradually and school will be upgraded. 54. The State Government is entitled to introduce the scheme for absorption of teachers or appointment of teachers according to the prescribed rules and guidelines as amended up-to-date. The provisional upgradation has to be granted upto Class-VIII so that there is no drop out in the school after Class-VIII. School will generate momentum gradually and school will be upgraded. 54. The State Government is entitled to introduce the scheme for absorption of teachers or appointment of teachers according to the prescribed rules and guidelines as amended up-to-date. The State Government is also given liberty to vary the terms of appointment so that the students of the school concerned get the best teachers who would be accountable to the students community. State Government is also entitled to introduce a new pattern in the School Education to upgrade the quality of education by introducing discipline and such other reforms as would be necessary to transform the existing school as Model School. 55. Such exercise has to be completed within 30th September, 1996. 56. It is hopefully expected that by 30th September, 1996, the school will be recognised. 57. The writ petition is disposed of on the above terms. 58. No order as to Costs. Let a plain copy or this order be given to the learned Advocate on usual undertakings, be countersigned by the Assistant Registrar (Court).