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2013 DIGILAW 512 (CAL)

Abhishek Ghosh v. State of West Bengal

2013-07-26

DEBASISH KAR GUPTA

body2013
JUDGMENT 1. Affidavit-of-service filed on behalf of the petitioner in Court today be kept with the record. 2. This writ petition is directed against an order passed by the respondent no. 3 under Memo No. 54 Law dated March 20, 2013. The above order was passed in compliance of a direction given in the matter of Prasanta Kumar Das Vs. State of West Bengal & Ors. (In Re : W.P.No. 549(W) of 2012) for considering the matter. By virtue of the impugned order though the District Inspector formed an opinion, he forwarded the matter to the respondent no. 1 through the respondent no. 2 for his final decision. 3. Having heard the learned counsel appearing for the respective parties as also after considering the facts and circumstances of this case I find that the matter relates to approval of a panel for appointment of an Assistant Teacher of Lee Collins High School (H.S.), District-Kolkata. The above educational institution is a minority institution enjoying that status under the provision of Article 30 of the Constitution of India. 4. By virtue of the impugned order the respondent no. 3 came to a conclusion that the selection process including the approval of the panel under reference should be completed in accordance with the provisions of G.O. No. 1314-SE(S) dated September 17, 2002 which was enforced at the material point of time. But after considering the judgment of the Hon’ble Supreme Court of India and the order of the National Council for Minority Educational Institution he relegated the matter to the respondent no. 1 through the respondent no. 2. 5. After considering the aforesaid Government Order No. 1314-SE(S) dated September 17, 2002 I find that the authority to take a decision in the above matter is the respondent no. 3. The above Government Order was issued in exercise of the power conferred under Rule 33 of the Rules of Management of Recognised Non-Government Institution (Aided and Unaided), 1969 read with Rule 7(1) of the Special Rules of Management of Secondary Schools Establishment and Run by Christian Church Missionary Society (Board), Christian Religious Society Etc. to which the provisions of Article 30 of the Constitution of India applies. Therefore, the above provisions has a statutory flavour in it. Once the respondent no. to which the provisions of Article 30 of the Constitution of India applies. Therefore, the above provisions has a statutory flavour in it. Once the respondent no. 3 is authorised to take a decision in the above matter he is the final authority at the first instance to arrive at the final conclusion. In the event, he wants any opinion from an expert he may do so but he cannot be forward to the higher authority for taking a decision at the first instance. In that event, the higher authority will be compelled to act without jurisdiction. This proposition has been settled in the matter of Maniruddin Bepari Vs. The Chairman of the Municipal Commissioners, Dacca reported in 40 CWN 17. The above proposition has been repeated and reiterated in the matter of Asian Leather Vs. Calcutta Municipal Corporation reported in 2007(3) CHN 476 and the relevant portions of the above decisions are quoted below:- “12. At this juncture, it will be profitable to refer to the well-known proposition of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in case of a statutory corporation, it is just the other way. The Corporation has no power to do anything unless those powers are conferred on it by the statutes, which creates its. (See. Manimuddin Bepari Vs. Chairman of the Municipal Commissioner, Dacca, reported in 40 CWN 17)” 6. In view of the above, the decision, if any, is taken by a statutory authority at the first instance other than the respondent no. 3 it will be without jurisdiction. Since no final decision has yet been arrived at, I direct the respondent no. 3 to take a decision in the above matter finally by passing a reasoned order within a period of two months from the date of communication of this order and in that event if he requires any expert opinion he may obtain such opinion. 7. The respondent no. 3 is directed to communicate the above decision to all concerned including the petitioner within two weeks thereafter. 8. The writ petition, is, thus, disposed of. 9. However, there will be no order as to costs. 10. Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.