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2010 DIGILAW 210 (CAL)

Teacher-In-Charge v. STATE OF WEST BENGAL

2010-02-26

I.P.MUKERJI

body2010
JUDGMENT I.P.MUKERJI, J. 1. THE length of pendency of this writ application together with non implementation of the order passed by the director of School Education West Bengal dated 12.10.1999/ 13.10.1999 passed pursuant to the Division Bench judgment of this court in MAT No. 2746 of 1997 dated 08.08., have given rise to some rights in favour of the writ petitioner which were otherwise not available. I do not understand why this order dated 12.10.1999/13.10.1999 was not carried out although there was no stay of the order in this writ application. The school involved in this matter is Scots Mission Girls High School, Kurseong, Darjeeling. (for short the school) . This school is aided by the Government of West Bengal. In 1997 it was in the process of recruiting a Head Mistress for the school. It prepared a panel. By virtue of that panel the present Teacher-in-Charge being the writ petitioner No.1 would have been appointed the Head Mistress. 2. A writ was preferred by an interested person by the name of Indira Thapa being the respondent No.5. That writ petition was numbered W.P. No. 12520 (W) of 1997. She alleged that there was irregularity in the preparation of this panel, for the reason of inadequate publication and lack of proper notice of the selection process. On 8th August 1997 that writ application was disposed of by this court with an order that the respondent No. 5 would be considered for appointment. An appeal was preferred from that order by the writ petitioners herein being MAT No. 2746 of 1997 before the Division Bench of this court. This appeal was disposed of by a judgment and order dated 4th March 1999 asking the director of School Education to reconsider the matter. During the course of hearing of this writ application the memorandum of appeal in that appeal was placed before me. I have examined it. I find that the appeal was confined to the issue of advertisement and adequate notice and some peripheral issues. The director of School Education passed an order dated 12.10.1999/ 13.10.1999. This is an extremely well reasoned order, although it is the subject matter of challenge in this writ application. I have examined it. I find that the appeal was confined to the issue of advertisement and adequate notice and some peripheral issues. The director of School Education passed an order dated 12.10.1999/ 13.10.1999. This is an extremely well reasoned order, although it is the subject matter of challenge in this writ application. For very compelling reasons disclosed in that order the Director of School Education has come to the conclusion that the selection committee which prepared the panel was not properly constituted and the notification of recruitment was not proper. It directed the school authority to prepare a fresh panel after constituting a fresh selection committee. If the facts stood as they were on 12th October 1999 I would have not interfered with this order at all. But for reasons best known to the Government of West Bengal this order was not implemented, although there was no stay whatsoever of its implementation. 3. AS this order has not been implemented, the present petitioner No.1 has continued to operate as Teacher-in-Charge of the school for more than 10 years, functioning defacto like the Head Mistress. No affidavit in opposition has been filed by the state respondent. The aspirant for this post Indira Thapa being the respondent No. 5 has filed an affidavit and has been represented by counsel at the hearing. At the hearing the state has not even appeared. 4. A new point has been taken which was not even urged at any stage before hearing of the writ application. The learned counsel for the writ petitioner has produced a declaration of the National Commission for Minority Educational Institutions Government of India dated 4th June, 2009 that the school managed by the church of North India Trust Association, New Delhi is a minority educational institution within the meaning of the National Commission for Minority Educational Institutions Act 2004. It is said that by virtue of this declaration or notification the school has acquired the power to constitute its own selection committee with whosoever it likes and recommend any name it feels like to be Head Mistress. The director of School Education has no say in the matter. It is this declaration that the school is a minority institution which has given rise to considerable difficulties in this matter. The director of School Education has no say in the matter. It is this declaration that the school is a minority institution which has given rise to considerable difficulties in this matter. There is no doubt that this school was not recognised in the list missionary societies, religious societies, churches etc, under the West Bengal Government notification No. 641 dated 23rd May, 1974 prescribing special rules of management of these institutions, shown to me by Mr. Dey. Now, after the above declaration of the school as a minority educational institution by the above Central Government statutory instrument, rights arising from such declaration have to be considered. In Board of Secondary Education and Teachers Training vs Jt. Director of Public Instructions, Sagar and others, (1998)8 SCC 555 , N. Ammad vs Manager, Emjay High School and others, (1998)6 SCC 674 cited by Mr. Basu, learned counsel for the petitioner the Supreme Court has said that a minority institution has a right of administering its own affairs, including making appointments of teachers Head Mistress etc., without interference from the Government. This right according to the aforesaid decisions were founded on Article 30 of the Constitution of India. The above two decisions have been cited by the learned counsel for the petitioner. In Board of Secondary Education case (supra) the Supreme Court said: 3. The decisions of this Court make it clear that in the matter of appointment of the Principal, the management of a minority educational institution has a choice. It has been held that one of the incidents of the right to administer a minority educational institution is the selection of the Principal. Any rules which take away this right of the management have been held to be interfering with the right guaranteed by Article 30 of the Constitution. In this case, both Julius Prasad selected by the management and the third respondent are qualified and eligible for appointment as Principal according to rules. The question is whether the management is not entitled to select a person of their choice. The decisions of this Court including the decision in State of Kerala v. Very Rev. Mother Provincial and Ahmedabad St. Xaviers College Society v. State of Gujarat make it clear that this right of the minority educational institution cannot be taken away by any rules or regulations or by any enactment made by the State. The decisions of this Court including the decision in State of Kerala v. Very Rev. Mother Provincial and Ahmedabad St. Xaviers College Society v. State of Gujarat make it clear that this right of the minority educational institution cannot be taken away by any rules or regulations or by any enactment made by the State. We are, therefore, of the opinion that the High Court was not right in holding otherwise. The State has undoubtedly the power to regulate the affairs of the minority educational institutions also in the interest of discipline and excellence. But in that process, the aforesaid right of the management cannot be taken away, even if the Government is giving hundred per cent grant. We need not go into any other question in this appeal. In N. Ammad case the same court has held : 18. Selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. The Headmaster is the key post in the running of the school. He is the hub on which all the spokes of the school are set around whom they rotate to generate result. A school is personified through its Headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution, an efficient and honest Headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years. 24. If management of the school is not given very wide freedom to choose the personnel for holding such a key post, subject of course to the restrictions regarding qualifications to be prescribed by the State, the right to administer the school would get much diminished. 28. Thus the managements right to choose a qualified person as the Headmaster of the School is well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental right enshrined in the aforesaid article and would hence be void. Any such statutory or executive fiat would be violative of the fundamental right enshrined in the aforesaid article and would hence be void. But here, the vacancy was sought to be filled up in the year 1999 when this school was not recognised as a minority institution. Therefore, Mr. Kashi Nath Dey, learned counsel for the respondent cited B.L. Gupta and another vs M.C.D., reported in (1998)9 SCC 223 which said that vacancies have to be filled up according to the rules which were in force at the time of the vacancy. Paragraph 9 of that judgment the Supreme Court has held the following : 9. When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr. Mehta to a decision of this Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission. In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah v. J. Sreenivasa Rao, P. Ganeshwar Rao v. State of A.P. and A.A. Calton v. Director of Education it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules.. And of course, if applications are to be invited from the public, wide publicity should be given to the selection process by suitable advertisements as held in Excise Superintendent Malkapatnam, Krishna District, A.P. vs. K.B.N. Visweshwara Rao and others, (1996)6 SCC 216 cited by Mr. Dey. This question of minority status or minority right of the constitution was not before this court during the stage of the earlier writ application or in appeal. I further note that this case is a little different from B.L. Gupta and another vs M.C.D., reported in (1998)9 SCC 223 , because the declaration of 4th June 2009 is not to be taken as a new rule of recruitment. In the application of rules the retrospective or prospective nature of the rule becomes critical. I further note that this case is a little different from B.L. Gupta and another vs M.C.D., reported in (1998)9 SCC 223 , because the declaration of 4th June 2009 is not to be taken as a new rule of recruitment. In the application of rules the retrospective or prospective nature of the rule becomes critical. It is true that in this case the vacancy arose when there was no declaration that the institution was a minority institution. But nevertheless it is declared a minority institution now. Therefore, it has been conferred rights under Article 30 of the Constitution. Therefore, to entertain this rather pedantic view that this vacancy should be filled up according to the rules in force in 1999 and no such subsequent development should be taken into account would be wrong. Further, the above two decisions of the Supreme Court cited by the petitioners counsel, were concerned with rival equally qualified and eligible candidates for the post of Principal/ Headmaster, one approved by the school and the other by the government. The Supreme Court said that the school had the say. But it has clarified in the Board of Secondary Education case (supra) that The State has undoubtedly the power to regulate the affairs of the minority educational institutions also in the interest of discipline and excellence. Therefore, absence of proper publicity of the selection process or an improperly constituted selection committee can be a ground for intervention of the Director of School Education, in my opinion. However, in the circumstances, I direct the director of School Education to revise his order dated 12.10.99/13.10.99 in accordance with the above declaration of the Government of India dated 4th June, 2009, considering the above cases referred to by me in this judgment and also keeping in view my observations, by giving a hearing of all necessary parties and by a reasoned order within a period of 12 weeks from the date of communication of this judgment and order. Urgent certified photocopy of this judgment and order, if applied for, to be provided upon complying with all formalities.