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2007 DIGILAW 413 (CAL)

Kushadwaj Mondal v. STATE OF WEST BENGAL

2007-06-08

JAYANTA KUMAR BISWAS

body2007
Judgment :- (1.) THE four petitioners are aggrieved by the decision of the District Inspector of Schools (SE), Paschim Medinipur dated August 5, 2004 that appointments given to them by the School Committee of Bhuta D.A.V. High School, P.O. Bhuta, District Paschim Medinipur School not be approved, since the School committee appointed them as teachers in the school without following the recruitment rules. That the four petitioners were appointed by the School committee of the School on August 16, 1999, January 3, 2000, November 8, 2002 and November 11, 2002 respectively is not disputed. (2.) IN exercise of powers conferred by the provisions in Section 45 of the West Rengal Board of Secondary Education Act, 1963 the State government made the Management of Recognized Non-Government institutions (Aided and Unaided) Rules, 1969. While Rule 28 thereof provided that subject to the provisions in any grant in aid scheme or pay revision scheme or any order or direction or guidelines issued by the State Government or the director in connection therewith and in force for the time being, the committee of an aided institution would possess the power, inter alia, to appoint the members of teaching and non-teaching staff in the institution, the provisions in Rule 33 provided that nothing contained in those rules would affected the power of the State Government to frame, on the application of any institution or class of institutions to which the provisions of Article 26 or article 30 of the Constitution of India might apply, further or other rules for the composition, powers, functions of the managing committee or committees of such institution or class of institutions. (3.) IN exercise of powers conferred by that Rule 33 of the 1969 rules the State Government made the "special Rules" for the management of secondary Schools established and run by Arya Samaj and/or Gurukul vidyalaya Trust, under the aegis of Arya Pratinidhi Sabha of the State (Representative Body of Arya Samajes in the State), and those rules, notified by Notification No. 404-Edn. (S) dated March 19,1973, were applicable to the institute in which the four petitioners were appointed. (S) dated March 19,1973, were applicable to the institute in which the four petitioners were appointed. In terms of provisions in Rule 7 of those special rules the school committee was empowered to appoint the petitioners observing the rules laid down by the state Government for the purpose, since the appointments were made to posts, salaries including allowances of which were to be paid wholly out of government grants. (4.) THUS, the principal question that arises in the case is whether the government laid down any rules which the institute was required to observe while appointing the petitioners. Needless to say that in the absence of any rules laid down by the Government, the institute was not to observe any order or procedure issued by any other authority. For paying salaries and allowances to the petitioners the Government did not release grants on the ground that the appointments were not approved by the District Inspector of schools. Feeling aggrieved the petitioners moved this Court by filing W. P. No. 2792 (W) of 2003, which was disposed of by order dated April 7, 2004 directing the District Inspector of Schools to give appropriate decision. This is how the impugned decision came to be given. (5.) THE West Bengal School Service Commission Act, 1997 came into force from November 1, 1997. In Section 9 (2) of the Act it was provided that any appointment of a teacher made on or after the commencement of that act in contravention of the provisions thereof would be invalid and would have no effect. A statutory duty was cast on the regional commission by the provisions in Section 7 of the Act to select persons for appointment to the posts of teacher in schools within its territorial jurisdiction. And the schools, meaning the recognized non-government aided institutes, are to appoint the persons selected and recommended by the commission. The provisions in section 17 empowered the State Government to make rules for carrying out the purposes of that Act. It was mentioned in Section 15 that the provisions of that Act would not apply to a school established and administered by a minority whether based on religion or language. (6.) THE Director of School Education, West Bengal issued Order no. 1267 dated November 26,1998 laying down the guidelines for recruitment of members of the staff in institutions run on the basis of special rules. (6.) THE Director of School Education, West Bengal issued Order no. 1267 dated November 26,1998 laying down the guidelines for recruitment of members of the staff in institutions run on the basis of special rules. By subsequent Order No. 1439 (21) dated August 27, 1999, superseding the order No. 1267, he laid down new set of procedures for recruitment and appointment of members of the staff in institutions established and administered by minority. By order dated April 8, 2002 made in W.P. No. 17425 (W) of 1999 (Arya Pratinidhi Sabha and Anr. v. State of West Bengal and Ors.) those orders dated November 26, 1998 and August 27, 1999 were quashed on the ground that the director was not competent to issue the procedure and guidelines to be followed by the institutions governed by the 1973 special rules. Facing with the situation the special secretary, school education department of the State Government issued a Special Order No. 456-SE (S)/10-M-32/2000 dated April 12, 2002 that all appointments to the posts of teacher in the institute should be made on the recommendation of the school Service Commission. (7.) THE case of the respondents is that the third and fourth petitioners were appointed in violation of that order dated April 12, 2002. Counsel for the respondents has relied on the order of the special secretary of the school education department of the State Government No. 1314 dated September 17, 2002 laying down the procedure to be followed by the institutions established and administered by minority while appointing members of the teaching and non-teaching staff in the institute. His contention is that appointments given to the third and fourth petitioners are illegal also on the ground that they were given in contravention of the Government order dated September 17, 2002. The District Inspector of Schools has also referred to these guidelines, procedures, orders in support of his decision that since the institute appointed the petitioners without obtaining any prior permission from him, there was no scope to approve the illegal appointments. (8.) IT seems to me that the District Inspector of Schools was totally wrong. The District Inspector of Schools has also referred to these guidelines, procedures, orders in support of his decision that since the institute appointed the petitioners without obtaining any prior permission from him, there was no scope to approve the illegal appointments. (8.) IT seems to me that the District Inspector of Schools was totally wrong. The guidelines dated November26, 1998 and the procedure dated august 27, 1999 issued by the director of school education were quashed by this Court on the ground that the director did not possess requisite power to direct the institutes governed by the 1973 special rules to observe those guidelines and procedure while appointing members of the staff. The provisions in Rule 7 of the 1973 special rules conferred power on the State Government to lay down rules for appointing members of the staff in the institute to posts, salaries including allowances of which are to be paid wholly or partly out of government grants. (9.) FOR reasons known only to the State Government it never cared to frame any rules or issue any general or special order directing the institute to follow it while appointing members of the staff. The guidelines dated November 26, 1998 and procedure dated August27, 1999, even before April 8, 2002, were of no legal significance, since they were not general or special orders issued or rules laid down by the State Government. The Director of school Education was simply not authorized to issue them. Hence the institute was entitled to proceed on the basis as if they were never in existence. In any case the institute was under no obligation to follow them, and even if the petitioners were appointed in contravention of those guidelines and procedure, the respondents cannot say that the appointments were given illegally. (10.) THE Special Order No. 456 dated April 12, 2002 is just a nullity. It was issued by the State Government in clear contravention of the provisions in Section 15 of the West Bengal School Service Commission Act, 1997. When the statute said that the provisions thereof would not apply to an institute run and administered by a minority, in exercise of its rule making powers or otherwise the State Government was not competent to issue that order dated April 12, 2002. That, in any case, was not a set of rules duly made in exercise of the rule making power. That, in any case, was not a set of rules duly made in exercise of the rule making power. Hence that order was never binding on the institutes named therein, and it cannot be said that appointments given by the institute to the third and fourth petitioners were given in contravention of any existing special or general order. (11.) AS to the procedure dated September 17, 2002 laid down by the state Government I find that have no manner of application either to the institute that appointed the petitioners. The procedure was laid down in exercise of powers conferred on the State Government by the provisions in rule 7 of the "special Rules" for the Management of Secondary Schools established and run by a Christian Church/missionary Society (Board)/ religious Society/subsidiary Trust, or their successors in law, in the State of West Bengal which were notified by a Notification No. 641-Edn (S)/8b-3/69 dated May 23, 1974. Hence it cannot be said that the procedure dated September 17, 2002, even if treated as a general or special order issued by the State Government, was applicable to the present institute that was always and still is governed by the special rules which were notified by Notification no. 404-Edn (S) dated March 19, 1973. For the present institute governed by the 1973 special rules, in fact, neither any special or general order was ever issued by the State Government, nor did it ever lay down any rules in terms of provisions of Rule 7 of the 1973 special rules. (12.) THIS being the clear position that emerges, my irresistible conclusion is that the District Inspector of Schools was wrong in holding that since the petitioners were appointed by the institute without following the existing orders and rules, they were not entitled to get approval to their appointments. As I have already found, for governing appointments to be given by the institutes in terms of provisions in Rule 7 of the 1973 special rules, the State Government neither laid down any rules, nor issued any general or special order except the order dated April 12, 2002 that is a nullity, being issued in clear contravention of the provisions in Section 15 of the west Bengal School Service Commission Act, 1997. 1, therefore, hold that the petitioners were duly appointed by the School Committee that was empowered to appoint them in terms of provisions in Rule 7 of the 1973 special rules. It is not the case of the School Committee that the petitioners were not duly appointed; it rather requested the District Inspector of Schools to approve the appointments. (13.) FOR these reasons, I set aside the impugned order of the District inspector of Schools dated August 5, 2004 and allow this writ petition. I order that within a fortnight from the date of communication of this order the district Inspector of Schools shall approve the appointments given by the institute to the petitioners. Needless to say that requisite Government grants for paying salary and allowances to the petitioners from the date of their respective appointments in the institute shall be released by the respondents within three weeks from the date the appointments are approved. All payments shall be made to the petitioners within a fortnight thereafter. There shall be no order for costs in the case.