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2012 DIGILAW 792 (CAL)

Subhrangshu Chakraborty v. STATE OF WEST BENGAL

2012-08-23

HARISH TANDAN

body2012
Judgment Harish Tandon, J. This case has a chequered history. The parties have moved several round of litigation before this court. 2. Shorn of unnecessary details, the brief facts are that the petitioner was appointed as Assistant Teacher in the year 1988 after accorded the approval by the District Inspector of School. Because of the vacancy of the post of Head Teacher, the petitioner was entrusted to work as teacher-in-charge upon granting the necessary approval in the year 1988 itself. Till the year 1991, the Managing Committee appointed one Atul Chandra Roy as Headmaster of the said school. The said Headmaster worked till the year 1997 and thereafter, the petitioner was again appointed as teacher-incharge. The petitioner was allowed to function in such capacity with the approval of the District Inspector of Schools. Subsequently by circular dated March 5, 2001, the State declared that the school which is upgraded to High School from a Junior High, the Headmaster working therein should be approved as a Headmaster of the upgraded High School provided he had a requisite qualification. Subsequently, the publication was made for filling up the vacancy for the post of Headmaster in the said school i.e. Uttar Sankarpur S.C. High School, Uttar Dinajpur where the petitioner was working as a teacher-in-charge. 3. Challenging the aforesaid publication, the petitioner filed the writ petition being W.P. No. 10789 (w) of 2001 seeking a writ of mandamus commanding the respondents, more particularly, the School Service Commission from giving any effect or further effect to the vacancy of declaration of the post, allegedly on the ground, that the petitioner is already appointed to the post of Headmaster in the said school as teacher-in-charge. The said writ petition was dismissed with cost by Barin Ghosh,J. (as His Lordship then was) in holding that the petitioner’s appointment as teacher-in-charge though approved but is not a teaching post as it does not require extra qualification. It is further held that the teacher-in-charge is the stop gap arrangement until the Headmaster takes over so as to look after the administrative function of the school. Ultimately, it was found that because of the promulgation of the West Bengal School Service Commission Act which requires minimum qualification and experience for the Assistant Teacher vis-à-vis the Headmaster or Headmistress which has not been acquired by the petitioner and therefore, has no right to be appointed to the post of Headmaster. Ultimately, it was found that because of the promulgation of the West Bengal School Service Commission Act which requires minimum qualification and experience for the Assistant Teacher vis-à-vis the Headmaster or Headmistress which has not been acquired by the petitioner and therefore, has no right to be appointed to the post of Headmaster. The appeal carried out against the said order being MAT No. 3117 of 2001 was also dismissed. However, the cost so awarded was made easy. 4. At the time when the said mandamus appeal was pending, the petitioner was appointed to the post of a Headmaster in Purgram S.C. High School on recommendation by the School Service Commission which is challenged in the instant writ petition. The Appellate Court duly recorded the aforesaid subsequent events and thereafter, observed that since the petitioner has already been accommodated in another school and he has relinquished his claim in Uttar Sankarpur S.C. High School, the question whether the appellant procured such appointment or not becomes academic. 5. It is undisputed that a vacancy for the post of Headmaster in Purgram S.C. High School was advertised and the petitioner offered his candidature by submitting an application to the School Service Commission and was, thereafter, recommended by the said Commission to Purgram S.C. High School for being appointed to the post of a Headmaster. The private respondents, thereafter, initiated a writ proceeding before this court being W.P No. 21128 (w) of 2006. Challenging the appointment of the petitioner to the post of a Headmaster in Purgram S.C. High School on the ground that the same is procured by practicing fraud and misrepresenting the actual state of affairs. Initially, a point was taken therein that the private respondents being the guardians of the students have no locus standi to challenge the appointment of the petitioner to the post of a Headmaster in Purgram S.C. High School which was accepted by the Hon’ble Single Bench as a consequence whereof the writ petition was dismissed. The said order of dismissal was assailed by the private respondents in intra court appeal (FMA 260 of 2008) which was eventually allowed. The Division Bench held that the petitioner did not have a requisite qualification for being appointed to the post of a Headmaster and such appointment was procured by giving a false declaration. The said order of dismissal was assailed by the private respondents in intra court appeal (FMA 260 of 2008) which was eventually allowed. The Division Bench held that the petitioner did not have a requisite qualification for being appointed to the post of a Headmaster and such appointment was procured by giving a false declaration. In an application, the Division Bench not only declared the said appointment to be illegal but also directed the petitioner to refund the salaries, allowances and other monetary service benefits enjoyed by him by holding the post of a Headmaster of Purgram S.C. High School. 6. According to the petitioner, he has refunded the entire salary which he received while holding the post of Headmaster in Purgram S.C. High School and have reverted back to his original post which he held in Uttar Sankarpur S.C. High School. 7. Subsequently a complaint was made against the reinstatement of the petitioner in Uttar Sankarpur S.C. High School, by the Managing Committee of the said school before the Director of the School Education who upon hearing came to a definite conclusion that the reversion is not permissible and is illegal. By issuing another memo directed the petitioner to refund of the money which he received after the said reversion. The aforesaid memos are challenged in the instant writ petition. The private respondents are, thereafter, was allowed to be added as a party respondent in the instant writ petition. The parties exchanged the affidavits and made elaborate submission in support of their respective stand. The point which emerges for consideration is whether the petitioner retains the lien to the post which he held at Uttar Sankarpur S.C. High School before being appointed to the post at Purgram S.C. High School and is entitled to hold the same upon reversion. 8. Mr. Amal Baran Chatterjee, the learned Advocate appearing for the petitioner challenges the impugned memo by contending that the Managing Committee of the Uttar Sankarpur S.C. High School granted the lien by taking a resolution. He further submits that Rule 13 of the Leave Rules permits the lien to the post held by an employee and the petitioner upon being declared illegal appointees to the post of a Headmaster automatically reverted to his earlier post which he held in Uttar Sankarpur S.C. High School which cannot be said to be illegal. 9. He further submits that Rule 13 of the Leave Rules permits the lien to the post held by an employee and the petitioner upon being declared illegal appointees to the post of a Headmaster automatically reverted to his earlier post which he held in Uttar Sankarpur S.C. High School which cannot be said to be illegal. 9. Lastly he submits that once the school being the appointing authority accepted the petitioner to the said post which he held initially such appointment cannot be said to be illegal by the authorities. 10. The learned Advocate appearing for the respondent Nos. 6,7 & 8 however, submits that Rule 13 of the Leave Rules does not permit the lien to continue indefinitely but restricts such lien for a period of two years. It is further submitted that the petitioner was appointed to the post of a Headmaster in Purgram S.C. High School with effect from 1st May, 2000 without the recommendation of the School Service Commission. But the said appointment was declared on the basis of the judgment delivered by Barin Ghosh,J. in the writ petition initiated by the petitioner which was subsequently affirmed in the intra court appeal. Even, subsequent appointment to the post of a Headmaster in Purgram S.C. High School is also found to be illegal and the joining of petitioner On 8 March, 2008 into the original post held by him in Uttar Sankarpur S.C. High School is also illegal and/or invalid as the lien cannot be attached to the post for a period of more than 2 years. Lastly it is submitted that no interference is required by this court to the decision rendered by the authorities in the impugned memos. 11. Having heard the respective submissions, it is undisputed that the petitioner was appointed to the post of a Headteacher in Purgram S.C. High School On 23 March, 2006 and upon declaration that the said appointment is illegal and outcome of a fraud being committed by the petitioner, the petitioner joined the original post in Uttar Sankarpur S.C. High School on 08.03.2008. The entire gamut of the submission made on behalf of the respondent Nos.6, 7 & 8 (herein after referred to as guardian for short) is that upon appointment to the post of a Headteacher with effect from 1st May, 2000 in Uttar Sankarpur S.C. High School and thereafter, joining to the post of an Assistant Teacher on 08.03.2008 in the said school, there is a gap of more than 7 years and there cannot be any lien to the said post for such a long period. It is not the case of either of the parties that the Leave Rules does not apply in the instant case; rather both the parties have proceeded to argue on the basis thereof. It would be profitable to quote Rule 13 which reads thus: “13. Lien.-(1) A teacher or non-teaching employee of an institution on confirmation in a permanent post shall acquire a lien on the post. (2) Such teacher or non-teaching employee seeking permission to serve in a higher post in another recognised institution or college within West Bengal or to accept other service within West Bengal where teaching experience is essential, may be granted extraordinary leave, referred to in rule 12, without pay for a period, not exceeding two years, with permission to retain lien. (3) The lien shall automatically terminate if such teacher or non-teaching employee- (a) is permanently absorbed in his/her post in the other institution, (b) leaves the post for which the lien was granted , or; (c) does not return after completion of two years, whichever is earlier” 12. On meaningful reading of the aforesaid provision, a teacher or a non-teaching employee of an institution on being confirmed to the permanent post shall have a lien on the said post. On promotion or acceptance of other services within West Bengal where teaching experience is essential, such teacher or non-teaching employee may be granted extraordinary leave referred to in Rule 12 without pay for a period not exceeding 2 years with permission to retain lien which shall automatically terminate if he is either permanently absorbed to the promotional or other post or leaves the post for which the lien was granted or does not return after completion of 2 years. Therefore, the maximum period which can be attributed for such lien would be 2 years subject to the permission for its retention. Therefore, the maximum period which can be attributed for such lien would be 2 years subject to the permission for its retention. The parties have not joined on the issue that such lien without pay cannot be granted by the Managing Committee of the School Authority but have accepted the competence of the School Authority by contending that the lien lapses automatically after 2 years in terms of the leave rules. Proceeding on such premise, it has to be seen whether the petitioner has left the post which he held in Uttar Sankarpur S.C. High School as Assistant Teacher upon being promoted to the post of a Headmaster in the said school or the period would be counted for the purpose of computation of lien from the date of his appointment to the post of a Headmaster in Purgram S.C. High School. 13. Initially, the petitioner challenged the action of the authority in filling up the post of a Headmaster in Uttar Sankarpur S.C. High School where he was appointed as teacher-in-charge and subsequently as Headmaster without the permission and/or recommendation of the School Service Commission. The said writ petition was dismissed wherein it was held that the post of the teacher-in-charge is not a teaching post as it is a stop gap arrangement to look after the administrative function of the school. It was further held that the petitioner was appointed as a teacher-in-charge being the Assistant Teacher and could not be said to be appointed to the post of a Headmaster without the recommendation of the School Service Commission. Therefore, what was held in the said judgment is that the holding of a post as Headmaster by the petitioner without the recommendation of the School Service Commission is invalid and illegal as the teacher-in-charge who could be appointed from Assistant Teacher for administrative functions. The aforesaid order was carried in appeal which came to be disposed of On 17th November, 2008 when the Division Bench while dismissing the said appeal observed that during the pendency of the appeal, the petitioner has been recommended by the School Service Commission for appointment to the post of a Headteacher in Purgram S.C. High School and such appointment is challenged in another proceeding. The petitioner relinquished his claim in the Uttar Sankarpur S.C. High School on his appointment. 14. The petitioner relinquished his claim in the Uttar Sankarpur S.C. High School on his appointment. 14. The guardians by filing a writ petition challenged the appointment of the petitioner to the post of a Headmaster in Purgram S.C. High School on the ground that at the time of applying for such post before the School Service Commission, the petitioner has wrongly given an information that he is working since 01.05.2000. The said appointment was challenged on the further ground that the academic qualification required for appointment to the post of a Headmaster is that the candidate must obtained Master Degree with at least 40% marks both at the Secondary and Higher Secondary Level, 40% marks in Honours Subject in Honours Level or 45% marks at Pass Level and 40% marks at the Post Graduate Level and a Degree in Bachelor of Teaching/Bachelor of Education/Post Graduate Basic Training from any recognised University and ten years continuous teaching experience in approved service in a Higher Secondary School/High School/High Madrasah/Junior High Madrasah/ Junior High School/ Senior Madrasah recognized by the West Bengal Board of Secondary Education, Higher Secondary Education, Board of Madrasah Education on the date of advertisement. However, the relaxation is made to the above criteria of marks to a Headmaster/Headmistress in approved service in Higher Secondary School/ High Madrasah. Admittedly, the petitioner does not have the requisite marks and was, therefore, not eligible to the post of a Headmaster, but by giving a wrong information, he took advantage of the relaxation clause and was appointed on the recommendation of the School Service Commission to the post of a Headmaster in Purgram S.C. High School. The writ petition was initially dismissed on the ground of locus standi of the guardians but the Appellate Court reversed the said judgment and declared that the appointment of the petitioner to the post of a Headmaster in Purgram S.C. High School is illegal and invalid, being an outcome of fraud. Although, the said order is assailed by the petitioner before the Apex Court, but the special writ petition was dismissed. Although, the said order is assailed by the petitioner before the Apex Court, but the special writ petition was dismissed. The Division Bench expressly observed that at the time of filing an application on 22 August, 2005 to the School Service Commission, the petitioner claimed his service status as approved Headmaster of Uttar Sankarpur S.C. High School when he already suffered a judgment delivered by Barin Ghosh,J. ( as his lordship then was) in W.P. No. 10789 (w) of 2001 and as such cannot be said to be holding a post of Headmaster but was only approved an Assistant Teacher of the School in these words: “Now we decide about merit of the case. On the point of fraud it appears that it is a proved fact that the respondent no. 10 himself filed his application on 22nd August, 2005 to the School Service Commission claiming his service status as approved Headmaster of Uttar Sankarpur S.C. High School though prior to filing of such application he suffered a judgment in W.P.No. 10789 (W) of 2001 passed by Barin Ghosh,J. (as His Lordship then was) where his claim was negatived by dismissing the writ application and directing the School Service Commission to fill up the post of Headmaster of Uttar Sankarpur S.C. High School, wherein he was working as Teacher-in-Charge holding substantive post of approved Assistant Teacher. Be it noted that Teacher-in-Charge is not a post, but for administrative purpose a teacher is placed to function as ‘Head of the Institution’ in absence of a Headmaster, which is a sanctioned post. The School Service Commission in their affidavit has prayed for quashing their recommendation by the Court of law to undo the wrong as committed by them unknowingly the judgment of Barin Ghosh,J. (as His Lordship then was). 15. Hence, we are of the view that a clear case of fraud was committed by the respondent no. 10 by filing his application before the School Service Commission to avail the exemption of securing minimum percentage of marks in Master Degree level as well as in Secondary and Higher Secondary level. At the time of filing his application he was only an approved Assistant Teacher of a school and not approved Headmaster of any school to seek said exemption. At the time of filing his application he was only an approved Assistant Teacher of a school and not approved Headmaster of any school to seek said exemption. Due to his contention in the application claiming his service status as approved Headmaster, the Service Commission granted exemption of minimum eligibility criteria of securing minimum percentage of marks in Master Degree level and Secondary and Higher Secondary level and thereby he was recommended. * * * * * * * * * * * * * * * * * * * * * * ” (Emphasis Supplied) 16. What could be logically inferred therefrom is that on the date of recommendation and/or appointment to the post of Headmaster in Purgram S.C. High School, the petitioner was holding a post of approved teacher in Uttar Sankarpur S.C. High School. The judgments of the Division Bench has attained finality and therefore, are binding amongst the parties. Admittedly, the petitioner joined to post of the Headmaster in Purgram S.C. High School on 23 March, 2006 and reverted back to Uttar Sankarpur S.C. High School as Assistant Teacher on 08.03.2008. 17. The Apex Court in case of State of Rajasthan & another vs. S.N. Tiwari & ors. reported in (2009) 4 SCC 700 defines the term lien to have come from the Latin term ‘ligament’ meaning ‘binding’. The meaning of the lien in service law is totally different from the context of contract, common law and equity. The lien connotes the right of a civil servant to hold the post substantively and the lien on the previous post ends if he is appointed to another permanent post on confirmation in these words: “17. It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may not require a formal termination of lien over the previous permanent post. 18. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may not require a formal termination of lien over the previous permanent post. 18. This Court in Ramlal Khurana v. State of Punjab observed that: (SCC p. 102, para 8) “8. … Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed.” 19. The term “lien” comes from the Latin term “ligament” meaning “binding”. The meaning of lien in service law is different from other meanings in the context of contract, common law, equity, etc. The lien of a government employee in service law is the right of the government employee to hold a permanent post substantively to which he has been permanently appointed. (See Triveni Shankar Saxena v. State of U.P.)” 20. In the instant case, Rule 13 of the Leave Rules permits the retention of lien to an earlier post for a maximum period of 2 years subject to the permission being granted by the School Authorities. The school authorities in affidavit-in-opposition as well as the short notes of argument filed in the instant case have contended that retention of lien was granted by the Managing Committee of the said school till 23 March, 2008 for a period of 2 years. It is undisputed that before the said permission expires automatically in terms of Rule 13 of the Leave Rules, the petitioner joined the substantive post which he held before his promotion to the post of a Headmaster in Purgram S.C. High School. The Division Bench has held that the petitioner till the date of his appointment to the post of Headmaster at Purgram S.C. High School was holding the approved post of an Assistant Teacher in Uttar Sankarpur S.C. High School. Therefore, it cannot be said that the petitioner vacates or left the post of Assistant Teacher upon his illegal appointment to the post of a Headmaster in the year 2000. In view of the above decision of the authority by issuing the impugned memo that the petitioner does not hold the lien is contrary to the declaration of status of the petitioner made by the Division Bench of this court. 21. In view of the above decision of the authority by issuing the impugned memo that the petitioner does not hold the lien is contrary to the declaration of status of the petitioner made by the Division Bench of this court. 21. The impugned memos are, therefore, quashed and set aside. The petitioner shall be deemed to be validly appointed to the post of Assistant Teacher in Uttar Sankarpur S.C. High School and shall be entitled to all service benefits attached to the said post on and from 8th March, 2008. 22. The writ petition is thus allowed. 23. However, there shall be no order as to costs.