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2004 DIGILAW 769 (CAL)

ASHIT GHOSH v. DIRECTOR OF SCHOOL EDUCATION

2004-12-15

JYOTIRMAY BHATTACHARYA

body2004
JYOTIRMAY BHATTACHARYA, J. ( 1 ) THE short point which has fallen for consideration in this writ petition is, as to who amongst the Secretary and the Joint Secretary of the Managing committee of a school will be the custodian of the school records, viz. , resolution Book, Notice Book, Pension Book and Service Book of teaching and non-teaching staff, deeds relating to land owned by the school etc. ( 2 ) MR. Sadananda Ganguly, learned Advocate, a'ppearing for the petitioner, pointed out that Rule 27 of the Management Rules specifies as to who will the custodian of the school records. Mr. Ganguly submitted that under the said Rule, the Secretary shall be in charge of the invested funds, title-deeds and other legal documents belonging to the Institution. ( 3 ) THE relevant Rule, viz. , Rule 27 of the Management Rules is set out herein ;-"documents- (1) The Secretary shall be in charge of the invested funds, title- deeds and other legal documents belonging to the Institution. All papers relating to the Institution shall be made available at any time for inspection after due notice by the members of the Committee, or any person authorised by the Board or the Committee or by the Director, auditor or an officer authorised by the Education Department of the state Government. In all Institutions with pucca buildings, all papers, documents and accounts shall be kept in the premises of the Institution. (2) The accounts of the Institution shall be operated jointly by the Secretary and the Joint Secretary. All bank transactions should be over the joint signatures of both the Secretary and the Joint secretary. In the event of a vacancy in either office, the President of the Committee and in the absence of the President any other member of the Committee, authorised by the Committee by a resolution, shall operate the bank account on behalf of the incumbent absent: provided that the State Government may, by order in writing, (a) authorise any other person or persons to operate the accounts of the institution and/or to carry out bank transactions : or (b) authorize the Director to appoint an officer under him to operate such accounts and/or to carry out such transactions. (3) If the District Inspector of Schools (Secondary Education) is satisfied that circumstances exist in which payment of grant-in-aid through the fund of the institution is not expedient, the District Inspector of Schools (Secondary Education) may authorise an Inspector of schools (Secondary Education) may think fit. " ( 4 ) MR. Ganguly by drawing my attention to Rule 25 of the said management Rules, submitted that the duties of the Secretary and the Joint secretary have been specified in the said Rule. Sub-Rule (1) of Rule 25 provides that under the direction of the Committee, the Secretary shall carry on correspondence with the proper authorities on behalf of the Committee. It is also provided therein that the Secretary shall also keep the record of the proceedings of the meetings of the Committee in a book maintained for the purpose. The record of each meeting shall be confirmed at the subsequent meeting. The duties and functions of the Joint Secretary h. as been specified in sub-rule (2) of Rule 25 of the Management Rules which provides that the joint Secretary shall perform such duties as may be assigned to him by the committee and shall also perform the duties of the Secretary in the case of continued absence of the Secretary and during casual vacancy caused by death, resignation or removal of the Secretary. ( 5 ) MR. Ganguly submitted that there is nothing on record to show that any of the functions which the Secretary is required to discharge, has been assigned to the Joint Secretary by the Committee for performance. The other conditions under which the Joint Secretary can discharge the duties of the secretary, as mentioned in sub-rule (2) of Rule 25 of the said Management rules, i. e. , in case of continued absence of the Secretary and during casual vacancy caused by death, resignation or removal of the Secretary, are not attracted here. ( 6 ) THUS, Mr. Ganguly submitted that the Joint Secretary can neither usurp the powers of the Secretary nor stand in the way in discharging his duties in terms of Rule 25 of the said Management Rules. ( 7 ) ACCORDINGLY, Mr. Ganguly submitted that the Joint Secretary who is admittedly holding the documents, viz. ( 6 ) THUS, Mr. Ganguly submitted that the Joint Secretary can neither usurp the powers of the Secretary nor stand in the way in discharging his duties in terms of Rule 25 of the said Management Rules. ( 7 ) ACCORDINGLY, Mr. Ganguly submitted that the Joint Secretary who is admittedly holding the documents, viz. , Resolution Book, Notice Book, Pension book and Service Book of teaching and non-teaching staff, deeds relating to land owned by the school, should hand over those documents to the Secretary of the said school for enabling him to discharge his duties under the Management rules for smooth functioning of the Management of the said school. ( 8 ) MR. Ganguly further submitted that since the Joint Secretary, viz. , the respondent No. 3 herein, has refused to hand over the said documents to the petitioner herein, the instant writ petition has been moved seeking direction upon the said respondent No. 3 herein for handing over those documents to the petitioner who is the Secretary of the newly elected Managing Committee of the said school forthwith. ( 9 ) MR. Bari, learned Advocate, appearing for the respondent No. 3, opposed such prayer of the petitioner on various grounds which are as follows:- firstly, Mr. Bari contended that this writ petition is not maintainable, as neither the majority members are impleaded as petitioners nor any resolution of the Managing Committee whereby the petitioner was empowered to swear and sign this writ petition on behalf of the members of the Managing Committee has been disclosed in this writ petition. Secondly, Mr. Bari contended that for resolving any internal dispute amongst the members of the Managing Committee, writ does not lie. Lastly, Mr. Bari contended that since the Teacher-in-Charge has to look after the day-to-day administration of the school, it is desirable that the documents should be in the custody of the Teacher-in-Charge, viz. , the Joint Secretary. ( 10 ) MR. Bari further contended that the Secretary, being the elected member of the Committee, holding a post for a specific period, cannot be the expectant custodian of the documents. ( 11 ) THUS, Mr. Bari opposed the prayer of the petitioner for handing over those documents to the Secretary, as claimed by the petitioner. ( 12 ) MR. Bari further contended that the Secretary, being the elected member of the Committee, holding a post for a specific period, cannot be the expectant custodian of the documents. ( 11 ) THUS, Mr. Bari opposed the prayer of the petitioner for handing over those documents to the Secretary, as claimed by the petitioner. ( 12 ) MR. Bari, however, informed this Court that the documents are all kept in the school premises in the custody of the respondent No. 3 Mr. Bari further makes it clear that the Secretary may take inspection of any document which he requires at any point of time for smooth functioning of the management of the School. ( 13 ) LET me now consider the contentions of the respective parties, as indicated above. ( 14 ) PLAIN reading of Rule 27 of the said Management Rules, makes it crystal clear that the Secretary shall be in charge of the invested funds, title-deeds and other legal documents belonging to the Institution. Such being the position, the claim of the petitioner, as contained in this writ petition, cannot be denied. Rule 25 of the said Management Rules defines the duties of the Secretary and the Joint Secretary. The said provision makes it clear that under the said Rule, the Secretary will have to keep the records of the proceedings of the meetings of the Committee in a book maintained forthe purpose which is generally called as Minute Book in his custody. In my view, in the absence of those documents, the Secretary cannot discharge his duties as contemplated under Rule 25 of the said Management Rules. ( 15 ) I have already indicated above that there is nothing on record to show that any specified duty which the Secretary is required to discharge, has been assigned to the Joint Secretary by the Committee for its performance. Furthermore, the other conditions under which the Joint secretary can discharge the duties of the Secretary, are not attracted here, as it is nobody's case that the Secretary is absent for a continuous period or any casual vacancy has been created in the post of secretaryship either by death or by resignation or by removal of the Secretary, as the case may be. ( 16 ) IN such view of the matter, I hold that the Joint Secretary, viz. ( 16 ) IN such view of the matter, I hold that the Joint Secretary, viz. , the respondent No. 3 herein, cannot withhold the delivery of such documents, viz. , Resolution Book, Notice Book, Pension Book and Service Book of teaching and non-teaching staff, deeds relating to land owned by the school to the Secretary of the said school. ( 17 ) WITH regard to the objection regarding maintainability of this writ petition, as aforesaid, I hold that in a case of like nature, where the Secretary has come forward to enforce his right, given under the Management Rules itself, against another member of the Managing Committee, no special resolution by the Managing Committee is necessary for empowering the secretary to maintain such an action. I also hold that for similar reasons, the presence of the other members of the Committee in this writ petition is not necessary for enforcement of such right of the petitioner. ( 18 ) HERE, it is not a case, where the Secretary has come forward either to enforce orto defend the decision of the Managing Committee against any stranger in a Court of law. Rather, the Secretary has come forward to enforce his right recognised and/or conferred upon him by the law itself against another member of the said Committee who is illegally withholding the delivery of such documents, resulting obstruction in smooth functioning of the Management of the said school. ( 19 ) IN my opinion, for enforcing such a right which is recognised by the law itself by a member against another defaulting member of the said committee, no such special authorization by the Committee is necessary. ( 20 ) FURTHERMORE, this is not a case, where resolution of a private dispute between two individuals is involved in this writ petition. On the contrary, i repeat again that here, the Secretary has come forward to enforce his right conferred upon him under the statute itself against another defaulting member of the said Committee. In my opinion, the jurisdiction of the Writ Court to entertain such a dispute cannot be excluded under such circumstances. As such, the un-reported decision in the case of South 24-Parganas and Ors. being w. P. No. 12261 (W) of 2003 and the decision in the case of Employees' state Insurance Corporation v. Calcutta Municipal Corporation and Ors. In my opinion, the jurisdiction of the Writ Court to entertain such a dispute cannot be excluded under such circumstances. As such, the un-reported decision in the case of South 24-Parganas and Ors. being w. P. No. 12261 (W) of 2003 and the decision in the case of Employees' state Insurance Corporation v. Calcutta Municipal Corporation and Ors. being w. P. 1094 of 2002, reported in 2002 (4) CHN 74 , as cited by Mr. Bart, have no application in the facts of the instant case. ( 21 ) THUS, I find substance in the submission of Mr. Ganguly. ( 22 ) ACCORDINGLY, the respondent No. 3 herein, is directed to hand over the documents, viz. , Resolution Book, Notice Book, Pension Book and service Book of teaching and non-teaching staff, deeds relating to land owned by the school, to the petitioner herein, who will keep those documents in his custody in the school premises under his lock and key. Such delivery of documents should be made by the Joint Secretary to the Secretary positively within one week from the date of communication of this order. I further make it clearthat all papers relating to the Institution shall be made available by the Secretary at any time for inspection after due notice by the Members of the Committee including the Respondent No. 3 herein or any person authorised by the Board or the Committee or by the Director, Auditor or an officer authorised by the Education Department of the State Government. ( 23 ) THIS application, thus, stands allowed. There will be, however, no order as to costs. Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the requisite formalities.