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2012 DIGILAW 819 (CAL)

STATE OF WEST BENGAL v. Md. Hassan

2012-08-30

PRANAB KUMAR CHATTOPADHYAY, TARUN KUMAR DAS

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JUDGMENT In Re : C.A.N. 5031 of 2012 1. The learned Advocate representing the appellants/petitioners has filed informal paper books in relation to the appeal today in Court. The same be kept on record. 2. This appeal has been preferred assailing the judgment and order dated 14th August, 2009 passed by a Learned Judge of this Court whereby and whereunder the said Learned Judge finally disposed of the writ petition on merits by directing the District Inspections of Schools (SE) Hooghly to approve the appointments of the appellants/writ petitioners as teaching and non-teaching staff of the concerned High Madrasah. 3. From the records, we find that the writ petition was filed by eight writ petitioners and out of the said eight writ petitioners, six were appointed as Organising Assistant Teacher and the rest two as Group-D staff by the Organising Managing Committee of the unrecognised Section of the concerned Madrasah. 4. Series of litigations were initiated by the appellants/writ petitioners for approval of their appointments as Organising teaching and non-teaching employees of the Madrasah concerned. 5. The Division Bench presided over by Altamas Kabir-J. (As His Lordship then was) by the judgment and order dated December 22, 2004 considered the claims of the aforesaid writ petitioners and directed the District Inspector of Schools (SE) Hooghly to cause an inspection into the records maintained by the said Madrasah in respect of the Organising Section of Class IX and X. 6. The operative part of the order passed by the aforesaid Division Bench are set out hereunder : “In such circumstances we modify the order passed by the learned single Judge and dispose of the appeal with a direction upon the District Inspector of Schools (SE) Hooghly, to cause an inspection into the records said to have been maintained by the Madrasah in respect of the organised sections of Classes IX and X of the Madrasah whichwould include the Attendance Register, students’ Register, Minutes of the meeting of the Managing Committee, appointment letters issued to the writ petitioners and other contemporaneous correspondence and arrive at a fresh decision with regard to the grant of approval to the services of the writ petitioners as the teaching and non-teaching staff of the upgraded section of the Madrasah. Such an exercise should be completed upon notice to the Madrasah authorities and the Madrasah authorities shall provide authenticated copies of such documents to the District Inspector of Schools (SE) Hooghly, who shall grant receipt therefor to the authorities of the Madrasah, and, thereafter, proceed to dispose of the matter in accordance with law. While making a fresh appraisal of the facts involved, the District Inspector of Schools (SE) Hooghly, will ignore the earlier reports of the inquiries conducted both by him and also by the Director of School Education.” 7. Pursuant to the aforesaid directions of the Division Bench, the records were produced before the District Inspector of Schools (SE) Hooghly for inspection and the District Inspector of Schools (SE) Hooghly most unfortunately expressed doubt about the validity of the records submitted by the school authority in respect of the organising teaching and non-teaching employees of the said Madrasah. 8. The District Inspector of Schools (SE) Hooghly refused to approve the appointment of the writ petitioners and recommended for appointment of teaching staff through School Service Commission and non-teaching staff through employment exchange. 9. The relevant extracts from the report of the District Inspector of Schools (SE) Hooghly as mentioned by the Memo No. 1689/Law dated 30.11. 2005 are set out hereunder : “The records of the petitioners as displayed by the school authority seems to have been prepared by the school authority to the needs of the petitioners as required for approval of appointment. It is seen that these records i.e. teachers’ attendance registers, pupils attendance register are not authenticated by the school authority and the competent authority. So, the validity of the records is a question. As per rules appointment of the upgraded section of the High Madrasah are to be made as per rules and regulations in force but the organizing teaching and non-teaching staff of the upgraded section of the Madrasah are made without following of the recruitment rule in force. Hence, the approval of appointments of the concerned petitioners can not be considered. However, I recommend for appointment of teaching staff through S.S.C. and non-teaching staff through Employment Exchange.” 10. Hence, the approval of appointments of the concerned petitioners can not be considered. However, I recommend for appointment of teaching staff through S.S.C. and non-teaching staff through Employment Exchange.” 10. Going through the aforesaid Memo dated 30th November, 2005, we find that the District Inspector of Schools (SE) Hooghly only expressed an apprehension that the school authority prepared the records to suit the needs of the writ petitioners for the purpose of approval of appointment and on the basis of such apprehension, refused to approve the appointment of the writ petitioners upon holding that the writ petitioners, namely the organizing teaching and non-teaching staff of the up-graded section of the Madrasah were appointed without following the recruitment rules in force. 11. There is no dispute that the Madrasah in question was initially set up as a High Madrasah from class V to X in the year 1974 but the said Madrasah was recognised on 7th June, 1996 as a 4-Class Junior High Madrasah with effect from 1st May 1995. 12. After granting of the aforesaid recommendation, the appointment of the organising teaching and non-teaching staff who were serving the said Madrasah to fulfil the requirements upto Class-VIII were duly approved. The teaching and non-teaching staff of Class IX and X were not approved since Class IX and X were not recognised. The West Bengal Board of Madrasah Education vide Memo No. 1239 dated 12th April,1999 upgraded the aforesaid 4-Class Junior High Madrasah to a High Madrasah with effect from 1st May 1999 for Class-IX and from 1st May, 2000 for Class-X. 13. The appointments of teaching and non-teaching staff of the said High Madrasah who were serving to meet the requirements in respect of classes IX and X were not approved by the competent authority. 14. Therefore, litigations were started and ultimately the Division Bench of this Court presided over Altamas Kabir-J (As His Lordship then was) by the judgment and order dated December 22, 2004 directed the District Inspector of Schools (SE) Hooghly to cause an inspection into the records maintained by the Madrasah in respect of the organised section of classes IX and X and arrived at a fresh decision with regard to the grant of approval to the services of the writ petitioners. 15. 15. The District Inspector of Schools (SE) Hooghly most unfortunately on the basis of apprehension only refused to act on the basis of the records supplied by the school authority. In the event the records were not authenticated by the school authority, the District Inspector of Schools concerned could ask the school authorities to authenticate the records instead of arriving at a conclusion that the school authorities prepared the records to suit the needs of the writ petitioners. 16. It is also to be noted that when the District Inspector of Schools (SE) Hooghly arrived at a finding that the records have been prepared by the school authorities then there was no scope to express any apprehension about the authenticity of the same. 17. The District Inspector of Schools concerned also made an observation that the organised teaching and non-teaching staff of the upgraded section were appointed without following the recruitment rules although nothing has been mentioned by the District Inspector of Schools regarding violation of the conditions of the recruitment rules by the authorities of the Madrasah while appointing the teaching and non-teaching staff of the upgraded section. 18. From the records we find that a writ petition being W.P. 490(W) of 2000 was filed before this Court which was disposed on 12.12.2000 wherein a learned Judge of this Court recorded the statements made by the writ petitioners as hereunder : “It appears from the statements as made in the writ petition as we well as in the list of dates that an inspection was held by District Level Inspection Team as on 22nd May, 1986. Such Inspection Team put their signatures in the Attendance Register wherein the names of the petitioners appeared. On 7th October, 1994 the second inspection was made and again the members of the Inspection Team put their signatures in the Attendance Register whereunder the names of the petitioners also appeared.” 19. In any event, there is no dispute that the organised section of the said High Madrasah in respect of Class IX and X had been functioning before grant of formal recognition and upon being satisfied about the proper functioning of the said organised section, ultimately 4-Class Junior High Madrasah was upgraded in the year 1999 as High Madrasah by the West Bengal Madrasah Education Board. 20. In absence of teaching and non-teaching staff, the aforesaid section could not function properly. 21. 20. In absence of teaching and non-teaching staff, the aforesaid section could not function properly. 21. No one has claimed before the Competent Authority save and except the respondents/writ petitioners for approval of the appointment as teaching and non-teaching staff of the upgraded section of the High Madrasah. 22. Therefore, there is no scope to express any doubt that the respondents/writ petitioners herein did not serve in the High Madrasah as organised teaching and non-teaching staff as otherwise the said upgraded section of the High Madrasah could not function properly. Ultimately being satisfied, the competent authority upgraded the 4-Class Junior Madrasah to a High Madrasah with effect from 1st May, 1999. 23. The District Inspector of Schools concerned also in clear violation of the Memo No. 705 dated 13th January, 1999 issued by the West Bengal Board of Madrasah Education recommended for appointment of teaching staff through School Service Commission and non-teaching staff through Employment Exchange since it has been specifically mentioned in the aforesaid Memo dated 13th January, 1999 that the appointments of organiser teachers and non-teaching staff of the Madrasah cannot be treated as fresh appointment after recognition and, therefore, question of recommending the matter for appointment of teaching staff through School Service Commission cannot and does not arise. 24. For the aforementioned reasons, we are satisfied that the claims of the writ petitioners for approval of their appointments as organising teaching and non-teaching staff of the upgraded section have been rejected by the District Inspector of Schools (SE) Hooghly without any valid reason and appropriate grounds. 25. The District Inspector of Schools (SE), Hooghly should have approved the appointments of the writ petitioners as organising teaching and non-teaching staff of the upgraded section of the High Madrasah since the said writ petitioners fulfilled the required conditions in accordance with law. 26. We find that the learned Single Judge has considered the issues raised in the writ petition in an appropriate manner and strictly in accordance with law. We find no scope to interfere with the findings of the Learned Single Judge. 27. In the aforesaid circumstances, we affirm the impugned judgment and order under appeal passed by the Learned Single Judge and dismiss this appeal without awarding any order as to costs. 28. We find no scope to interfere with the findings of the Learned Single Judge. 27. In the aforesaid circumstances, we affirm the impugned judgment and order under appeal passed by the Learned Single Judge and dismiss this appeal without awarding any order as to costs. 28. Since a considerable time has already passed, we direct the authorities concerned to take necessary steps in compliance with the order passed by the Learned Single Judge without any further delay but positively within a period of four weeks from the date of communication of this order. 29. Let urgent xerox certified copy of this order, if applied for, be supplied to the parties on the usual undertakings. Tarun Kumar Das, J.: I agree.