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1998 DIGILAW 153 (CAL)

Sudip Chakraborty v. State of West Bengal

1998-03-30

DIBYENDU BHUSAN DUTTA, SATYABRATA SINHA

body1998
JUDGMENT : - The abolition of Pre-Basic School by reason of the Impugned order whether attracts Article 14 read with Article 45 of the Constitution of India or not is the question Involves In these two appeals. In respect or self-same school, namely, Debiswari Sishu Niketan two writ applications have been filed one by the school authority and another by the guardians. The said school admittedly was a Pre-Basic School. Allegedly pursuant to or in furtherance of the recommendation of Kothari Commission, the State of West Bengal in terms of its letter dated 29.6/7.7.92 addressed to the Director of School Education (P.E.), West Bengal stated : "The undersigned is directed to say that with a view to maintaining uniform system of education of the Primary Level It has been tentatively decided that all the Pre-Basic Schools in the State should be abolished at the earliest. The teachers of the existing Pre-Basic Schools may be transferred to the nearby Primary Schools, where necessary, against suitable vacancies. The Metrons and the Group 'D' employees may be absorbed in neighboring Secondary Schools or other similar Institutions. The District Inspector or Schools (P.E.) will implement the scheme gradually after prior constitution with the concerned District Primary School Council. He is, therefore, requested to prepare a scheme on the above line and submit the same to this Department Immediately for a final decision in the matter. 2. The aforementioned order was questioned by the writ petitioners, inter alia, on the ground that thereby the fundamental right of the students would be violated. During the pendency of the writ application, another order dated 22.4.93 was issued by the District Primary School Council. Hooghly, which reads thus:- "In compliance with the above Government Orders, it is ordered that- 1. The Pre-Basic Schools of this District will be abolished with effect from 1st May, 1993. 2. The existing teaching staff of those schools will be transferred to the neighboring Jr. Basic/Primary Schools under the control of the Council. Individual transfer order as per proposal and recommendation of the District Inspector of Schools (P.E.), Hooghly will be issued by the Council with intimation to all concerned. 3. 2. The existing teaching staff of those schools will be transferred to the neighboring Jr. Basic/Primary Schools under the control of the Council. Individual transfer order as per proposal and recommendation of the District Inspector of Schools (P.E.), Hooghly will be issued by the Council with intimation to all concerned. 3. Pending absorption of the Metrons and the Group 'D' employees 18th neighboring Secondary Schools or other similar institutions, the services of those staff be placed at the disposal of the attached Junior Basic Schools of the abolished Pre Basic Schools or neighbouring Primary Schools. Individual order to this effect is issued and communicated to all concerned. The monthly salary of those staff will be drawn by the concerned Sub-Inspector of Schools on the basis of the monthly returns to be submitted by the authority of the said schools until further order. 4. The authority of the attached Junior Basic Schools of the abolished Pre- Basic Schools will act as the custodian of the records and the movable and Immovable properties of the schools thus abolished till the final settlement is made in the matters. 5. All concerned is Informed accordingly.” 3. Mr. Basu, learned Counsel appearing on behalf of the school authority and Mr. J.K. Mitra, learned Counsel appearing on behalf of the Guardian, Inter alia, submit that the aforementioned decisions is clearly contrary to the decision of the Apex Court on the case reported In (1) 1992(3) SCC 666 and (2) Unni Krishnan J.P. v. Andhra Pradesh & Ors. reported In AIR 1993 SC 2178 The learned Counsels submits that the action on the part of the concerned respondent must be held to be wholly arbitrary, inasmuch as, by reason thereof the pupils who are within the age group of 3 to 5 years would be debarred from having any education. It was however submitted that in any event the Hooghly District Primary School Council has no jurisdiction to pass the Impugned order inasmuch as admittedly Pre- Basic Schools do not come within the purview of the West Bengal Primary Education Act. 4 Mr. Bhattacharjee, learned Counsel appearing on behalf of the State of the other hand submits that it is true that the school was established in the year, 1956. According to the learned Counsel, the State has adopted a policy decision that the primary schools would admits students being aged 5 years and above. 4 Mr. Bhattacharjee, learned Counsel appearing on behalf of the State of the other hand submits that it is true that the school was established in the year, 1956. According to the learned Counsel, the State has adopted a policy decision that the primary schools would admits students being aged 5 years and above. The aforementioned decision, according to Mr. Bhattacharjee, learned Counsel, had been taken to maintain uniformity la education. The learned Counsel however submits that so far as the order of abolition of the school is concerned, the teaching and non teaching staff are not in any way affected thereby as they arc being provided alternative job. The learned Counsel submits that the education is included in the concurrent list of the 7th Schedule of the Constitution of India and it is open to the State to adopt a policy, decision and thus this Court la exercise of Its jurisdiction under Article 226 of the Constitution of India should not interfere therewith and reliance In this connection has been placed on the decision In the case of (3) State of U.P. v. U.P. University Colleges Pensioners' Association reported in AIR 1994 SC 2311 . 5. It is not disputed that Pre-Basic Education does not come within the purview of the West Bengal Primary Education Act, 1973 or the Rules framed thereunder. In terms of the Rules framed under 1973 Act, a Primary Education has within its ambit Included Junior Basic Education. Pre-Basic Education, therefore, does not come within the purview of the Primary Education Act. 6. In this view or the matter, West Bengal Primary Education Act, 1973 and the Rules framed thereunder will have no application and consequently the Chairman, Hooghly Dist. Primary, School Council bas no jurisdiction to pass the Impugned order. So far as the order dated 29.6/7.7.92 passed by the State of West Bengal is concerned, such a decision In our opinion, does contrary to the decisions of the Supreme Court of India In the case reported in 1992(3) SCC 666 and Unni Krishnan J.P. v. State of A.P. reported in AIR 1993 SC 2178 . So far as the order dated 29.6/7.7.92 passed by the State of West Bengal is concerned, such a decision In our opinion, does contrary to the decisions of the Supreme Court of India In the case reported in 1992(3) SCC 666 and Unni Krishnan J.P. v. State of A.P. reported in AIR 1993 SC 2178 . In Unni Krishnan J.P., case (supra) the Apex Court clearly held that it is the duty, of the State to Impart free education to the children upto the age of 14 years, the requirement of Article 45 or tile Constitution of India having been Interpreted by the Apex Court in Unni Krishnan on J.P.'s case (supra) we are of the view that the decision taken by the State to abolish the existing Pre-Basic Schools must be held to be unconstitutional. In the case of State of U.P. v U.P. University College, Pensioners' Assocn. reported in AIR 1994 SC 2311 upon which Mr. Bhattacharjee. learned Counsel, bas placed strong reliance, the Apex Court was considering the question of formation of policy by the State in respect of retrial benefits. The Apex Court. Inter alia, held that no objection could be raised to the computation of pension on the basis of last pay drawn at the age of 58 years. It is true that in a given case the Court may interfere with the policy matter in exercise of its power under Article 226 of the Constitution of India unless the same is held to be unconstitutional. In the Instant case, the policy decision of the State is not only defective one but the same is unconstitutional and thus, in our opinion, the power of review can be exercised by this Court. For the reasons aforementioned, both the appeals arc allowed and the Impugned orders are quashed. Dutta, J.: I agree.