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2010 DIGILAW 1290 (CAL)

Rupa Jana v. STATE OF WEST BENGAL

2010-10-06

DIPANKAR DATTA

body2010
Judgment : The issues raised in these two petitions are related. The same were heard together and hence shall stand disposed of by this common judgment and order. The petitioner in W.P. 4021 (W) of 2010, Smt. Rupa Jana was appointed as Assistant Teacher in Science in Basanti St. Teresa’s Girls High School (hereafter the school), vide appointment letter dated March 22, 2007 issued by the Secretary thereof. She was placed on probation for two years. However, the managing committee reserved the right to shorten the period of probation in its discretion. There were other terms and conditions accompanying the letter of appointment, which Smt. Jana accepted. Such acceptance was endorsed by her on April 2, 2007, as it appears from the document at page 47 of her petition. Smt. Jana joined the school on April 2, 2007 and started discharging duty as Assistant Teacher. However, vide notice dated February 5, 2009, Smt. Jana was informed as follows : “You have been appointed as Asst. Teacher in our school w.e.f. 2.4.2007 on probation. During the above period your services are not satisfactory hence your services are not required in our school w.e.f. 26.3.2009 (as per clause no.IV of your appointment letter dt. 2.4.2007)”. Smt. Jana by her letter dated February 13, 2009 preferred an appeal before the Senior Daughters of Cross Provincial, 68, Diamond Harbour Road, Kolkata 70023, praying for quashing of the notice of termination of service on the grounds mentioned therein. The appeal was due to be considered on March 24, 2009 at 2.00 p.m. It was at this stage that Smt. Jana preferred a writ petition before this Court being W.P. 3180 (W) of 2009. Noticing that the appeal had been fixed for consideration on March 24, 2009, this Court by order dated March 23, 32009 declined to entertain the writ petition. Smt. Jana was given liberty to present herself before the committee constituted by the Governing Body of the school for hearing. The appeal of the petitioner, however, was rejected. The appellate order was communicated to her by the Secretary of the Governing Body of the school by his letter dated April 8, 2009. Smt. Jana was given liberty to present herself before the committee constituted by the Governing Body of the school for hearing. The appeal of the petitioner, however, was rejected. The appellate order was communicated to her by the Secretary of the Governing Body of the school by his letter dated April 8, 2009. Smt. Jana approached the Director of School Education, West Bengal (hereafter the Director) with a grievance that her service had been illegally terminated by the Governing Body of the school and that the appellate authority had failed and neglected to grant relief to her. The Director put the petitioner and other necessary parties on notice. By an order dated January 6, 2010, the Director declared that termination of Smt. Jana from service is an invalid action of the school. The school was directed to allow Smt. Jana to join and to allot classes as usual. The period of her absence from the school was directed to be treated as ‘on duty’ and salary for the period was directed to be paid to her as an approved permanent teacher of the school. The school did not challenge the order of the Director. In fact, on acceptance of the order of the Director, it called upon Smt. Jana to resume duty. It is the stand of Smt. Jana that on several occasions she had been to the school to rejoin but was prevented from doing so. Feeling aggrieved, W.P. No.4021 (W) of 2010 has been presented by her seeking an order on the school to delete the terms and conditions mentioned in her appointment letter and for direction on the respondents 4 to 6 to allow her join as an approved permanent Assistant Teacher in Science in terms of the order of the Director. On the other hand, the Headmistress of the school has presented W.P. 9543 (W) of 2010 dated May 5, 2010 alleging, inter alia, that Smt. Jana has been gainfully employed as a nurse under the Chief Medical Officer of Health, South 24 Parganas since termination of her service and that the representation that was filed before the Director and the District Inspector of Schools (SE), South 24 Parganas on March 29, 2010 seeking action against her had not been considered and disposed of. Accordingly, a prayer has been made for a direction upon the Director as well as the said District Inspector to take immediate steps to consider and dispose of the said representation taking into account subsequent Memo dated April 19, 2010 issued by the Chief Medical Officer of Health certifying that Smt. Jana is indeed employed as Grade II Staff Nurse under the control of the Block Medical Officer of Health, Mather Dighi Block Primary Health Centre, Canning II. According to Mr. Mukherjee, learned Advocate appearing for the school, Smt. Jana did not disclose before the Director that she had been gainfully employed as a nurse and, therefore, misled the Director into passing an order for payment of salaries for the period during which her service stood terminated. On the contrary, it is the stand of Mr. Dilip Kumar Samanta, learned advocate for Smt. Jana that she had no other alternative but to accept employment as nurse once her service as teacher was terminated by the school authorities most illegally. This Court has heard the rival parties. The contention of Mr. Samanta that the terms and conditions contained in the letter of appointment in view of the order of the Director should be directed to be deleted has failed to impress. In the considered view of this Court, the Director did not intend to observe that all the terms and conditions were invalid. Once Smt. Jana has been directed to be treated as permanent Assistant Teacher, she shall be governed by the terms and conditions of the rules regulating her employment as well as the contractual terms and conditions attached to her appointment letter. The school by accepting the order of the Director and calling upon Smt. Jana to resume duty does appear to have waived its right to challenge the same. In such circumstances, it is too late in the day for Mr. Mukherjee to contend that Smt. Jana would not be taken back in service since she had refused to rejoin on being invited by the school. However, at the same time, the fact that Smt. Jana had been gainfully employed immediately after her service was terminated and has still been in service as staff nurse cannot altogether be ignored. Mukherjee to contend that Smt. Jana would not be taken back in service since she had refused to rejoin on being invited by the school. However, at the same time, the fact that Smt. Jana had been gainfully employed immediately after her service was terminated and has still been in service as staff nurse cannot altogether be ignored. Payment of back wages is directed upon setting aside an order of termination to compensate the appointee for the period he/she was willing to work but was not allowed to work. The Director must have proceeded on the basis that Smt. Jana intended to discharge duty as Assistant Teacher in the school but was prevented from doing so by the school authorities who had illegally terminated her service. Smt. Jana after termination of her service in the school and till the date hearing of these petitions was concluded is in service and is being paid emoluments to which she is entitled. Considering the same, Smt. Jana is definitely not entitled to any arrears of salary during the period she was forced to be ‘off duty’ as a result of termination of her service. She shall not be entitled to any amount for the period referred to above. Mr. Samanta has submitted that the petitioner accepted the offer of appointment as nurse after her service was terminated by the school in order to earn a living. She is interested to rejoin the school as early as possible. It has been ascertained from Mr. Mukherjee that the post of Assistant Teacher in Science which the petitioner was holding has not been filled up yet. In such circumstances, Smt. Jana is granted liberty to rejoin as Assistant Teacher w.e.f. December 1, 2010. The school authorities are directed to allow her to resume duty. She shall be entitled to financial benefits on and from the date she rejoins duty. The period she was ‘off duty’ shall be treated as ‘on duty’ for all other service benefits except financial benefits for reasons disclosed hereinabove. In the event Smt. Jana fails to rejoin the school within seven days from December 1, 2010, she shall lose her right to continue as Assistant Teacher. Needless to observe, if the school does not permit her to rejoin in terms of this order, she shall be at liberty to take steps in accordance with law. In the event Smt. Jana fails to rejoin the school within seven days from December 1, 2010, she shall lose her right to continue as Assistant Teacher. Needless to observe, if the school does not permit her to rejoin in terms of this order, she shall be at liberty to take steps in accordance with law. With the above directions, the writ petitions stand disposed of without order for costs. Photostat copy of this judgment and order shall be retained with the records of W.P. No. 9543 (W) of 2010, duly countersigned by the Assistant Court Officer. Urgent photostat certified copy of this judgment and order, if applied for, shall be given to the applicant as early as possible.