Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 113 (CAL)

Kanailal Golder v. State of West Bengal

2002-02-20

Amitava Lala

body2002
Judgment Amitava Lala, J. This case, rests in a very short campus. According to the petitioner, he is entitled to get approval of the appointment as primary teacher under category 'c' with immediate effect like others who were appointed and service benefits are being given from 1st May, 1981. 2. In considering this issue is appropriate, a writ petition was previously moved being W.P. No. 1154(W) of 1999 and by an order dated 6th August, 1999 the Director of School Education was directed to consider the matter afresh in the light of the observations made by the court and to pass an order afresh in accordance with the law within the time prescribed therein. All the points were considered by the Director of School Education under Memorandum 68(L)P dated 17th January, 2001 and the petitioner's service was directed to be treated alike and appointment as a primary teacher under category 'c' was given immediate effect with service benefits from 11 May, 1981. The Chairman of District Primary School Council (24 Paraganas North) duly informed. Surprisingly, the Council raised an objection before the court by saying that they are not bound by the direction of Director of School Education. Therefore, a question arose before the Court as to whether the Council is bound by the order of the Director of School Education or not. In other words, whether the order of the Director of School Education has prevailing effect upon the Councilor not. 3. I have called upon the Director of School Education to furnish a report about factual aspect of the matter before going into such controversy. The Director of School Education, West Bengal furnished a report before the court on 9th October, 2001 taking the similar view with the order impugned herein and supported the contentions of the petitioner. 4. Under such circumstances, the only requirement is to analyse the legal aspect of the matter. Section 60 of the West Bengal Primary Education Act, 1973 has prescribed duties of the Primary School Council. Out of which section 60(1)(k) deals with appointment, transfer, payment of salaries and allowances etc. These are in the hands of the Council. In accordance with section 2(vi) 'Director' means Director of the School Education, West Bengal wherein under section 2(xix) 'Primary School Council' means a Primary School Council established under this Act. Out of which section 60(1)(k) deals with appointment, transfer, payment of salaries and allowances etc. These are in the hands of the Council. In accordance with section 2(vi) 'Director' means Director of the School Education, West Bengal wherein under section 2(xix) 'Primary School Council' means a Primary School Council established under this Act. Under section 2(xxia) 'teacher' means a person who holds a teaching post in a primary school or in a Junior Basic Training Institution on a regular and whole time basis and is paid either wholly or in part from the funds under the control of the State Government through Education Department. Therefore, it appears that the Council is a body formed for the specific purpose under the Act. The duties of the Council is basically confined to a particular section of the Act, i.e. section 60. Qualifications of the teachers are prescribed under the Rules regulating the recruitment and leave of the teachers in primary schools in West Bengal under 768 Edn. (P) dated 22nd November, 1991 in exercise of the power conferred by sub-section (1) of section 106 of the West Bengal Primary Education Act, 1973. Under Rule 6 of such Rule qualifications of the teachers are given. Rule 6(c) says that the decision of the State Government about the question of equivalence for the purpose of the sub-rule (b) shall be final. Sub-rule (b) requires the educational qualifications for the post of the teachers to the extent of School Final or Madhyamik level pass or equivalent or Higher Secondary (Class XI) pass under the West Bengal Board of Secondary Education or equivalent. However, there was a relaxation to the Scheduled Caste candidates upto the level of Class VIII as per the Act prevailing during the tenure of the service of the petitioner. There was also a relaxation in respect of the Scheduled Tribe candidates who have not passed Madhyamik Examination or its equivalent. But their training was also directed to be considered. Therefore, it is necessary to prescribe that the power of the Government in respect of making equivalence for the purpose of giving an appointment to the candidate cannot be avoided or ignored by the Council being the creature of the statute of the State. A Director of School Education is a representative of the State having all powers lying with him. A Director of School Education is a representative of the State having all powers lying with him. If there is any dispute in the Council the matter has to be referred to the Director of School Education. Therefore, the power of the Director of School Education cannot be ignored by the Council. Moreover, in the similarly placed situations, the services were allowed by giving them appointment by the appropriate authority on the earlier occasions. Such regularisations have not been challenged if such services cannot be turned down, the same cannot be made to be illegal as per their own choice. 5. In such circumstances, Court of Law will be guided by the respective provisions to achieve the judicial goal. It appears to this Court that the Court was pleased to order the authority i.e., Director of School Education to render justice. The Director of School Education has done so. Another Government authority being Council being the creature of the statute of the State cannot question such appointment. It appears that if any Council fails to perform the duties it can be superseded by the State under section 59 of the Act. It also appears from section 61 of the Act that the Primary School Board is to file the reports to the Director of School Education in respect of financial movement. Under section 62 the Primary School Council is also obligated to transmit the reports to the Director of the School Education. Therefore, the right of the Primary School Council is not unfettered but subject to verification by the State through the Director of School Education. On the other hand, it is not obligatory upon the Director of School Education to satisfy the test of the Council in respect of any appointment in giving guidelines or test of equivalence but he can independently do so. It is also significant to note that the impugned order has been passed and the report furnished in compliance with the order of the Court. It is further important that there is no change of stand in discharging both the duties as per the order of the Court. 6. Therefore, order of the Court having prevailing effect over and above both the Director and the Council and the authority of the Director having prevailing effect over the Council is bound by the same. 7. It is further important that there is no change of stand in discharging both the duties as per the order of the Court. 6. Therefore, order of the Court having prevailing effect over and above both the Director and the Council and the authority of the Director having prevailing effect over the Council is bound by the same. 7. Therefore, the order impugned stands effective and the Council is bound to comply with the order within a period of one month from the date of communication of this order. Immediately after giving appointment, payment of salaries and service benefits including incremental benefits are to be given for the petitioner month by month. All the arrears from the requisition of the institution from 1st May, 1981 notionally but actually from 19th July, 1990 will be released in favour of the petitioner within a period of three months from the date of communication of this order. If the petitioner retires from the service in the meantime, as I have told from the Bar, he will also be entitled for retrial benefit in addition to the reliefs already granted. 8. Thus, the writ petition stands disposed of. No order is passed as to costs. Let an urgent xeroxed certified copy of this judgment, if applied for, be given to the learned Advocates for the parties within two weeks from the date of putting the requisites. Writ petition disposed of.