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2004 DIGILAW 404 (CAL)

HEADMASTER v. JAINAL ABEDIN

2004-06-22

ALTAMAS KABIR, ASIT KUMAR BISI

body2004
( 1 ) THIS appeal has been preferred by the Headmaster of Balijole High School in the district of Uttar Dinajpur, pursuant to leave granted by this Court, against the order dated 10. 9. 03 passed by the learned Single Judge in Writ Petition no. 9545 (W) of 2002 filed by the respondent No. 1 in the appeal. ( 2 ) AS will appear from the materials on record, the writ petitioner-respondent no. 1 claims to have been appointed as an organiser assistant teacher in the bio-Science Group in the Shankarpur H. M. U. Junior High Madrasa, also situated in the district of Uttar Dinajpur. It appears that the Madrasa which was an organised madrasa, applied for grant of recognition to the West Bengal Madrasa Education board and pursuant thereto an inspection team visited the Madrasa on 8th March, 2000, but the name of the writ petitioner, who was not present in the school was not recorded by the inspecting team. Subsequently, the West Bengal Madrasa education Board granted recognition to the Madrasa with effect from 1st May, 2000 upto class VIII. After grant of such recognition, the District Inspector of schools (S. E. ). Uttar Dinajpur, approved the appointment of the teachers who were found to be present at the time of inspection but since the petitioner's name did not appear in the inspection report, his service was not approved. ( 3 ) THE petitioner, thereafter, made a representation to the District Inspector of Schools (S. E.), Uttar Dinajpur, for incorporating his name in the report of the inspection team so that his service could also be approved. Inasmuch as, no steps were taken on the basis of such representation, the writ petitioner-respondent no. 1 moved a writ petition, being W. P. No. 3673 (W) of 2001, which was disposed of by a learned Judge of this Court on 22nd March, 2001, with a direction upon the District Inspector of Schools to consider the matter by passing a reasoned order. Pursuant to such order, the District Inspector of Schools (S. E.), Uttar dinajpur, caused an enquiry into the petitioner's claim and came to a finding that although the petitioner was in fact an organiser teacher of the Madrasa in question he had been victimised and his name had not been included in the inspection report of the District Level Inspection Team. On the other hand, in violation of the existing rules, the service of two commerce graduates was approved, although it was necessary for the school to have a bio-science teacher after approval. In his report the District Inspector of Schools observed that a wrong had been perpetrated by the previous District Inspector of Schools who was the Member-Secretary of the District Level Inspection Team and that in connection with several matters, he had been prosecuted under various provisions of the Indian Penal Code relating to cheating and conspiracy. However, the District inspector of Schools expressed his inability to accord approval to the writ petitioner-respondent No. 1 since according to the staff pattern the service of six teaching staff in the Madrasa had been approved. Aggrieved by the said order of the District Inspector of Schools (S. E.), Uttar Dinajpur, the writ petitioner-respondent No. l herein filed another writ petition, being W. P. No. 12905 (W)of 2001, which was taken up for consideration on 13th March, 2002 in the presence of the learned counsel for the State and the District Inspector of Schools concerned. The learned Single Judge observed that the writ petitioner had been made the victim of circumstances and that he himself was not a party to any fraud or sharp practice. Accordingly, the matter was sent to the Director of school Education, West Bengal to decide the matter in the light of the judgment and order passed by the Court. While disposing of the matter, the learned Single judge directed the Director of School Education, West Bengal to take appropriate steps for creation of an additional post to be filled up in the light of the report of the D. I. of Schools. However, in the event such an additional post was available in the district, in that case, priority should be given to the petitioner for appointment therein, since he was a victim of circumstances, by according approval to his service. ( 4 ) SIGNIFICANTLY, the said order of the learned Single Judge was not challenged by any of the parties in appeal. ( 5 ) THE Director of School Education, West Bengal considered the matter and while recording the injustice caused to the writ petitioner-respondent No. 1 observed that no relief could be given to him since in terms of the staff pattern of the Madrasa, no additional post of teacher could be sanctioned. ( 5 ) THE Director of School Education, West Bengal considered the matter and while recording the injustice caused to the writ petitioner-respondent No. 1 observed that no relief could be given to him since in terms of the staff pattern of the Madrasa, no additional post of teacher could be sanctioned. The Director of School Education, West Bengal in his said order dated 18th June, 2002, further observed that he was not in a position to retrench one of the commerce teachers whose services had been approved but that a request would be made to the secretary of the West Bengal Board of Madrasa Education to consider taking appropriate action against the earlier Managing Committee of the Madrasa. ( 6 ) HAVING failed to obtain any relief in terms of the second direction given in the second writ petition filed by him, the writ petitioner-respondent No. l in this appeal filed a third writ application, being W. P. No. 9545 (W) of 2002. The matter was heard in the presence of the respective parties and on 10. 9. 2003 the learned Single Judge held that the order of the Director of School Education, west Bengal was not in conformity with the order passed in W. P. No. 12905 (W)of 2001 on 13th March, 2002, and further observed that there was no reason why the writ petitioner-respondent No. 1 should not be given accommodation in any of the schools where vacancies existed for appointment of assistant teachers with qualification in biological science. In fact, in his order dated 10. 9. 03, the learned Single Judge recorded the names of two schools where such post was available and where no requisition had been made to the School service Commission (Northern Region), Malda, for filling up the vacancies. ( 7 ) THE learned Single Judge thereupon directed that on the basis of the availability of vacancy in the said schools, the D. I. of Schools (S. E.), Uttar Dinajpur, should call upon the Drawing and Disbursing Officer of the schools along with the Headmaster and/or Teacher-in-Charge for the purpose of complying with the direction given by the Court on the basis of the guideline given under Memo No. 126-GA dated 20th January, 1997. The learned Judge directed that the petitioner's service was to be regularised from the date of his joining in the school. The learned Judge directed that the petitioner's service was to be regularised from the date of his joining in the school. The other incidental prayers relating to arrear salaries were to be considered thereafter. ( 8 ) IT may be mentioned that in the Memo No. 126-GA dated 20th January, 1997, referred to by the learned Single Judge, one Santosh Kr. Ghosh who was an approved staff of Joykrishnapur Netaji High School could not join his duties for some unavoidable reasons, and, accordingly, the Director of School Education, west Bengal directed that he should be treated as surplus staff and that arrangements should be made for absorbing him in a suitable vacancy of a neighbouring school on an undertaking from the teacher that he would not claim any arrears prior to the date of joining in the new school. ( 9 ) AS will appear from the records of the instant appeal, treating the writ petitioner-respondent No. 1 on a par with the said Santosh Kr. Ghosh, a direction was given by the District Inspector of Schools (S. E.), Uttar Dinajpur, to the drawing and Disbursing Officer of the Balijole High School on 11th March, 2004, directing him to issue appointment letter to the writ petitioner-respondent no. l in the vacant post in the junior high section. On receipt of the said direction, the Headmaster of the school filed the instant appeal and the application for leave to prefer the same which was duly allowed on 16th June, 2004. Thereafter, an application for stay was taken up for consideration and during hearing of the stay application, on consent of the parties, the appeal itself was taken up for consideration. ( 10 ) APPEARING in support of the appeal and the stay application, Mr. S. Ganguly, learned advocate, submitted that the learned Single Judge had committed a basic error in relying on the Memo No. 126-GA dated 20th January, 1997, issued by the Director of School Education, West Bengal, inasmuch as, the teacher mentioned in the said Memo and the writ petitioner-respondent no. 1 did not stand on the same footing. According to Mr. S. Ganguly, learned advocate, submitted that the learned Single Judge had committed a basic error in relying on the Memo No. 126-GA dated 20th January, 1997, issued by the Director of School Education, West Bengal, inasmuch as, the teacher mentioned in the said Memo and the writ petitioner-respondent no. 1 did not stand on the same footing. According to Mr. Ganguly, the petitioner's services had not been approved in the Madrasa where he had claimed to be functioning as an organiser teacher and that, as a result, by no stretch of imagination could it be said that the writ petitioner-respondent No. 1 was an approved surplus staff who could be appointed in the school of the appellant. Mr. Ganguly urged that, in any event, the school where the writ petitioner-respondent No. 1 was directed to be appointed had not even been heard when the order on the basis of which such direction was issued had been passed by the learned Single Judge. According to Mr. Ganguly, had the school been made a party, it could have been pointed out that the writ petitioner-respondent no. 1 may have been victimised but that did not give him the right to be appointed in the school of the appellant. ( 11 ) MR. Ganguly further submitted that after coming into operation of the west Bengal School Service Commission Act, 1997, with effect from 1st november, 1997, no appointment of assistant teachers could be made in contravention of the procedure laid down in the said Act and that sub-section (2) of section 9 of the said Act specifically provided that any appointment of a teacher made on or after commencement of the Act in contravention of the provisions of the Act would be invalid and would have no effect and the teacher so appointed would not be a teacher within the meaning of clause (p) of section 2. Mr. Ganguly drew our attention to section 2 (p) which defines "teacher" to mean an asstt. teacher or any other person holding a teaching post of a school and recognised as such by the Board or the Council or the Board of Madrasa, as the case may be and includes the Headmaster or the Headmistress. ( 12 ) MR. Mr. Ganguly drew our attention to section 2 (p) which defines "teacher" to mean an asstt. teacher or any other person holding a teaching post of a school and recognised as such by the Board or the Council or the Board of Madrasa, as the case may be and includes the Headmaster or the Headmistress. ( 12 ) MR. Ganguly submitted that since the services of the writ petitioner-respondent No. 1 had not been approved at any stage, the direction given by the learned Single Judge to accord approval after allowing him to join the school of the appellant was contrary to the provisions of the Act and could not, therefore, be sustained. Several decisions were referred to by Mr. Ganguly in support of his various submissions to which we shall advert, if required. ( 13 ) MR. Ganguly submitted that in such circumstances the order of the learned Single Judge was liable to be set aside together with the direction given by the District Inspector of Schools (S. E.), Uttar Dinajpur, directing the drawing and Disbursing Officer of the school to issue letter of appointment in favour of the writ petitioner-respondent No. 1. ( 14 ) ON behalf of the State and the State respondents it has been submitted by Mr. S. Mukherjee, learned Junior Standing Counsel, that the second report of the District Inspector of Schools (S. E.), Uttar Dinajpur, was rather unusual and that the writ petitioner-respondent No. 1 could not really be treated as an organiser teacher since the Madrasa had been founded in 1974 and the petitioner had been given appointment in the year 1995. According to Mr. Mukherjee, in such circumstances it would be wrong to treat the writ petitioner-respondent no. 1 as an organiser teacher at all. ( 15 ) MR. Mukherjee attempted to give a go by to the report filed by the District inspector of Schools (S. E.), Uttar Dinajpur, on 19. 7. 2001 and prayed that the appeal be allowed and the directions given by the learned Single Judge for appointment of the petitioner in either of the two schools referred to in the order of the learned Single Judge, be set aside. ( 16 ) ON behalf of the writ petitioner-respondent No. 1 it has been vehemently contended by Mr. A. Das Adhikari that since the writ petitioner-respondent no. ( 16 ) ON behalf of the writ petitioner-respondent No. 1 it has been vehemently contended by Mr. A. Das Adhikari that since the writ petitioner-respondent no. l had been victimised and was not himself a party to the fraud which was perpetrated by the grant of approval to two commerce teachers in the Madrasa in which his client had been appointed as an organiser teacher in bio-science, the order of the learned Single Judge was fully justified, particularly, in the facts as revealed not only in the report of the District Inspector of Schools (S. E.)referred to above but also in the order passed by the Director of School Education, west Bengal. ( 17 ) MR. Das Adhikari also relied on various decisions and in particular on a memorandum, being No. 705 dated 13th January, 1999, issued by the West bengal Board of Madrasa Education in which the Secretary of the Board had informed the Director of School Education, West Bengal, that the procedure which had been initiated earlier for grant of recognition to a Madrasa prior to the coming into operation of the West Bengal School Service Commission Act, 1997, could not be negated by the provisions of the School Service Commission act, inasmuch as, no fresh appointments were being made by the Managing committee of such Madrasa. But that the process started earlier was being completed by granting approval to the staff of the Madrasa which had been recognised after coming into operation of the Act. Mr. Das Adhikari urged that in the light of the said Memo the question relating to grant of approval to the petitioner's services as an organiser teacher could not be questioned and that the appeal had been filed on a wrong premise in order to deprive the writ petitioner of his just dues in terms of the several orders passed by this court in different writ proceedings. ( 18 ) MR. Das Adhikari had initially attempted to question the locus standi of the appellant but we were convinced after hearing Mr. Ganguly that the school of the appellant had cause to be aggrieved on account of the fact that a teacher, whose services had not been approved, had been foisted on the school. ( 19 ) WHILE we are able to appreciate Mr. Ganguly that the school of the appellant had cause to be aggrieved on account of the fact that a teacher, whose services had not been approved, had been foisted on the school. ( 19 ) WHILE we are able to appreciate Mr. Ganguly's submissions, we must also keep in mind the views expressed by the learned Single Judge in the various writ petitions which had been filed culminating in the instant writ petition. That an injustice had been caused to the writ petitioner-respondent No. l is apparent from the report submitted both by the District Inspector of Schools (S. E.), Uttar Dinajpur, and the Director of School Education, West Bengal, but the manner in which such grievance has been sought to be addressed, appears to us to be erroneous. On consideration of the submissions made on behalf of all the parties, we are of the view that without due approval having been given to the services of the writ petitioner-respondent No. 1, a direction could not have been given to treat him as an approved surplus staff, and, thereafter, to place his services at the disposal of the school of the appellant Headmaster. ( 20 ) AT the same time, we feel that the writ petitioner-respondent No. 1 is entitled to relief in the facts and circumstances of the case. ( 21 ) WE, therefore, dispose of the appeal and the stay application by modifying the order passed by the learned Single Judge, and directing the State and its authorities to act in terms of the direction given on 13th March, 2002 in W. P. No. 12905 (W) of 2001. We direct that an additional post be created in shankarpur M. H. U. Junior High Madrasa, and, thereafter, the services of the petitioner as an organiser teacher be approved in the said additional post. Thereafter, if the petitioner is considered to be approved surplus staff, the authorities will be at liberty to place his services with any of the schools in the district where there is a vacancy for a bio-science teacher and for which no requisition has been sent to the School Service Commission. ( 22 ) THE aforesaid directions are to be complied with and completed within one month from the date of communication of this order. ( 22 ) THE aforesaid directions are to be complied with and completed within one month from the date of communication of this order. ( 23 ) CONSEQUENT upon this judgment, the directions contained in the order of 11th March, 2004, from the District Inspector of Schools (S. E.), Uttar Dinajpur to the Drawing and Disbursing Officer of the Balijole High School, shall stand quashed. ( 24 ) THERE will be no order as to costs. ( 25 ) LET xerox certified copy of the order be given to the learned advocates for the respective parties at an early date, if the same is applied for. Appeal disposed of with direction.