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2014 DIGILAW 801 (CAL)

Abdul Sarif Shaikh v. Jirat Colony High School

2014-08-21

DEBASISH KAR GUPTA

body2014
JUDGMENT Debasish Kar Gupta , J. : This writ application is filed by the petitioner challenging the action of the respondent No.1 in assigning the charges of the Office of Teacher-in-charge to the respondent No.6 of the respondent No.1, Jirat Colony High School District Hooghly, (hereinafter referred to as the said school) as communicated to the petitioner by the respondent No.2 by a communication issued under Memo No. 05(SEC)/J.C.H.S.(H.S.) dated January 17, 2013. A show-cause notice was issued by the respondent No.6 to the petitioner under Memo No. 65(SEC)/J.C.H.S.(H.S.) dated May 13, 2013 for explaining the conduct of the petitioner to remain absent from duties on February 20, 2013 in violation of Circular No.254(60) I.S.S. dated February 18, 2013. It is also under challenge in this writ application. The petitioner was appointed as an approved assistant teacher of Jirat Colony High School (respondent No.1). Subsequently, the petitioner was appointed in the post of Assistant Headmaster of the respondent No.1 with effect from July 18, 2007. The above appointment was approved by the respondent No.3 under Memo No.849/1/S.E. dated August 13, 2007 recording his academic qualifications of M.A., B.Ed. in the above memo of approval. Consequent upon the suspension of the Headmaster of respondent No.1 the managing committee of the respondent No.1 directed the petitioner to take over the charges of the Office of Teacher-in-charge with immediate effect in addition to his normal duties until further orders. The above decision was communicated to the petitioner by the respondent No.2 by a communication issued under Memo No. 01(SEC) J.C.H.S.(H.S.) dated January 2, 2014. By virtue of the impugned communication dated January 17, 2012, the petitioner was informed by the respondent No.2 that consequent upon the unwillingness of the petitioner to assume the charges of the Office of Teacher-in-charge of the said school, its managing committee decided to assign the charges of the above office to the respondent No.6, an approved assistant teacher of the said school. By virtue of the impugned communication dated January 17, 2012 the above decision was communicated to the petitioner asking him to show-cause of his above conduct. By virtue of the impugned communication dated January 17, 2012 the above decision was communicated to the petitioner asking him to show-cause of his above conduct. On the basis of the decision of managing committee of the said school, the respondent No.6 issued a show-cause notice dated May 13, 2013 asking the petitioner to explain his conduct of unauthorised absence from his duty on February 20, 2013 in violation of the circular No.254(60)/ISS dated February 18, 2013. It is submitted by Mr. Saharangshu Bhattarcharya, learned Counsel appearing on behalf of the petitioner that there was not existence of the post of Teacher-in-charge of a Non-Government Aided Educational Institutions in accordance with the provisions of the West Bengal Board of Secondary Education Act, 1963 read with the Rules framed thereunder. According to Mr. Bhattarcharya, discharging of the functions of teacher-in-charge of an Aided Non-Government Educational Institution by the Assistant Headmaster of that institution as a stop-gap measure was automatic. It is also submitted by Mr. Bhattarcharya that the impugned action on the part of the Managing Committee of the said school to appoint the respondent No.6, an assistant teacher of the said school, superseding the petitioner was not sustainable in law. It is further submitted by Mr. Bhattarcharya that the notice dated May 13, 2013 was issued by the respondent No.6 without jurisdiction Reliance is placed on the decision of Smt. Kanak Pal Vs. State of West Bengal & Ors. reported in (2002) 1 CAL LT 370 (H.C.) and an unreported judgment dated February 25, 2013 delivered in the matter of Alauddin Vs. The State of West Bengal & Ors (in Re. W. P. No.4127 (W) of 2013). It is submitted by Mr. P.C. Ghosh, appearing on behalf of the respondent Nos.1 and 2 that consequent upon the suspension of Headmaster of the said school, the managing committee decided to assign the charges of the Office of Teacher-in-charge in favour of the petitioner. The petitioner refused to act on the above decision. After expiry of 15 days, the authority of the said school had no other alternative but to direct the respondent No.6 to assume the charges of the Office of Teacher-in-charge of said school to meet the exigency of discharging administrative functions. According to Mr. The petitioner refused to act on the above decision. After expiry of 15 days, the authority of the said school had no other alternative but to direct the respondent No.6 to assume the charges of the Office of Teacher-in-charge of said school to meet the exigency of discharging administrative functions. According to Mr. Ghosh, the functions assigned to the post of an Assistant Headmaster did not include the power to discharge the administrative functions of Headmaster and/or the Teacher-in-charge, as the case may be. It is also submitted by Mr. Ghosh that the decisions cited on behalf of the petitioner were not applicable in this case in view of distinguishable facts and circumstances. It is submitted by Mr. Kamalesh Bhattacharjee, learned Senior Government Advocate, High Court, Calcutta, appearing on behalf of the respondent Nos.3, 4 and 5 that the administrative functions of the Headmaster or Teacher-in-charge, as the case may be, could not be discharged by the Assistant Headmaster automatically. It is also submitted by him that there was an offer to the petitioner to assume the charge of the Office of Teacher-in-charge, as a stop-gap measure, to meet the exigencies arising as a consequence of suspension of Headmaster of said school. The above decision was taken up on the basis of the settled proposition of law as decided in the matter of Smt. Kanak Pal Vs. State of West Bengal & Ors. (supra). According to him, there was no illegality in assigning the charges of the Office of Teacher-in-charge to the respondent No.6 due to the conduct of the petitioner as discussed hereinabove. Mr. Rabilal Moitra, appearing on behalf of the respondent No.6, adopted the submissions made on behalf of the other respondents. I have heard the learned Counsel appearing on behalf of the respective parties at length and I have given my thoughtful consideration to the facts and circumstances of this case. In order to adjudicate the issue involved in this matter. The functions of Headmaster of a Non-Government Aided Educational Institutions with regard to the management and disciplinary action are quoted below:- “HEADMASTER’S FUNCTIONS (As per Revised School Code of Calcutta University) The Headmaster shall prepare the annual list of holidays in consultation with the Committee. The number of holidays shall not exceed that sanctioned from time to time by the University. The Headmaster in consultation with the Secretary may also grant holidays on special occasions. The number of holidays shall not exceed that sanctioned from time to time by the University. The Headmaster in consultation with the Secretary may also grant holidays on special occasions. The conduct of current business of the school, such as arrangements of classes, time-table, examinations, class promotions, selection of candidates for the Matriculation Examination and all matters relating to school discipline and teaching shall be left entirely to the Headmaster, provided that in all cases of rustication or expulsion, the decision of the Headmaster shall require the approval of the Committee. The selection of text-books shall be made by the Headmaster after duly considering the list of books prescribed by the Central Text Book Committee, with approval of the Committee. In all matters where the Headmaster is overruled by the Committee the decision and the reasons of these shall be recorded in the proceedings. In all disciplinary actions of a lighter nature than expulsion or rustication, the Headmaster shall be the final authority, it being open to the Headmaster to report any serious case to the Committee. Orders in rustication and expulsion cases, unless confirmed by the Director of Public Instruction and notified to other schools under his control, shall apply to the school in question only. The Headmaster’s opinion shall be recorded in writing in all cases of appointment, promotion and removal of the members of the teaching staff. There shall be a Council of Teachers in every school of which all teachers shall be entitled to be members. The Headmaster shall consult the Council in all important matters in which he considers consultation if necessary. Note: Re: Calling of the meeting of the Teachers’ Council. The Headmaster is to call a meeting of the Teachers’ Council and no meeting of the Council can be convened by anybody without the consent of the Headmaster, who is to be regarded as ex-officio President of the Council.” It is the settled principle 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. In a case of discharging statutory functions, it is just the other way. In discharging statutory functions, nobody has power to do anything unless those powers are conferred on him by the statute, which creates him. In a case of discharging statutory functions, it is just the other way. In discharging statutory functions, nobody has power to do anything unless those powers are conferred on him by the statute, which creates him. Reference is made to the decision of Moniruddin Bepari vs. Chairman of the Municipal Commissioners, Dacca, reported in 40 CWN 17 (at page 18) and the relevant portion of the above decisions are quoted below: “….. It is fundamental principle 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 the case of a statutory corporation it is just the other way. The corporation has not power to do anything unless those powers are conferred on it by the statute which creates it.” ….. The above proposition of law was repeated and reiterated in the matter of Asian Leather Limited & Anr. vs. Kolkata Municipal Corporation & Ors., reported in 2007(3) CHN 476 and the relevant portions of the above decision 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 it.” After considering the functions attached to the post of “Headmaster of a Non-Government Aided School”, I am of the opinion that the administrative functions attached to the above post could not be performed by an Assistant Headmaster of that institution in course of discharging the functions attached to his post of Assistant Headmaster. Therefore, the petitioner was not automatically entitled to discharge the administrative functions attached to the post of Headmaster of the above school. Though there was no mentioning of the post of Teacher-in-charge in the West Bengal Board of Secondary Education Act, 1963, but appointment of a Teacher-in-charge in absence of Headmaster of a Non-Government Aided Educational Institution from the qualified assistant teachers possessing requisite qualifications and experience for appointment as Headmaster was recognised by order No.Edn./(B)/IM-25/91 dated August 3, 1991. Though there was no mentioning of the post of Teacher-in-charge in the West Bengal Board of Secondary Education Act, 1963, but appointment of a Teacher-in-charge in absence of Headmaster of a Non-Government Aided Educational Institution from the qualified assistant teachers possessing requisite qualifications and experience for appointment as Headmaster was recognised by order No.Edn./(B)/IM-25/91 dated August 3, 1991. It was an executive order to supplement the provisions of West Bengal Board of Secondary Education Act, 1963. The above order is quoted below: “GOVERNMENT OF WEST BENGAL Education Department Budget Branch No. Edn.(B)/IM-25/91 Dated, 3rd August, 1991 From: Shri B. Mantrani, Assistant Secretary to the Govt. of West Bengal. To: Shri P. Ghosh, Accounts Officer. Directorate of Accounts (Education), Howrah District, 13, N.S. Road, Howrah-1 Sub: Admissibility of special pay to an Assistant Teacher appointed as Teacher-in-charge on or after 1.4.81. With reference to his letter No. AO/How/271/91/T 4. dt. 2.8.91 on the above subject the undersigned it directed to say that for the purpose of appointment as Teacher-in-charge of a Secondary or Higher Secondary School in the absence of the Headmaster, the qualified assistant teacher should be interpreted as one who has the requisite qualifications and experience for appointment as Headmaster of the Secondary and/or the Higher Secondary School. Reply to other two points of his letter is implied in the above interpretation. Sd/-Illegible Assistant Secretary” For examining the scope of applicability of the decision of Smt. Kanak Pal (supra) in this case, the relevant portions of the above decision are quoted below: “3. According to me, the post of Assistant Headmaster/Assistant Head Mistress cannot be equal with the post of Assistant Teacher. The post of Assistant Headmaster / Assistant Headmistress is a post in association with the administration vis-à-vis the teaching of the institution like the post of Headmaster/Head-mistress but unlike the post of Assistant Teacher. If the Headmaster/Headmistress absented himself/herself from attending the School due to ill health or for any other contingency then obviously such Assistant Headmaster/Assistant Headmistress will discharge the functions of the Institution on his/her behalf. Therefore, it can be construed on the basis of such illustration that Assistant Headmaster/Assistant Headmistress has a right to run the administration for a temporary period in absence of the Headmaster/Headmistress and for the same such post has been created under the statute. If it is created by the statute then it definitely has some meaning and purpose. Therefore, it can be construed on the basis of such illustration that Assistant Headmaster/Assistant Headmistress has a right to run the administration for a temporary period in absence of the Headmaster/Headmistress and for the same such post has been created under the statute. If it is created by the statute then it definitely has some meaning and purpose. It is a separate identity not only by nomenclature but also by creating a statutory post with a different head under ROPA (Revision of Pay and Allowances). It is also desirable for the sake of administrative exigencies that in absence of Headmaster/Headmistress he/she will run the administration. This has been made for the specific purpose as above. Otherwise the Court would have been flooded with the litigation’s for filling of the post of Teacher-in-charge in absence of the Headmaster/Headmistress. This is a discouragable thing and definitely for such reason a post has been created in the form of hierarchy under the statute by the name of Assistant Headmaster/Assistant Headmistress in between Headmaster/Headmistress and Assistant Teacher. It is true that the Managing Committee has a right to appoint a Teacher-in-Charge for a temporary period till such post is filled up by the regular Headmaster/Headmistress provided that there is no such Assistant Headmaster/Assistant Headmistress for the purpose of officiation till the post of regularly filled up. As and when Assistant Headmaster/Assistant Headmistress is available in an Institution there is no scope of the Managing Committee to take a resolution contrary to the interest of the administration which ultimately affects imparting of education to the students unless very exceptional circumstances arise for which the Assistant Headmaster/Assistant Headmistress is also prevented from officiating as Headmaster/Headmistress.” (Emphasis supplied) The subject matter involved in the above case was the right of Assistant Headmaster to be entrusted with the functions of the Office of Teacher-in-charge in absence of Headmaster as a stop-gap measure. The power of discharging the administrative functions attached to the post of Headmaster by an Assistant Headmaster of that institution automatically and without assuming the charges of the Office of Teacher-in-charge was not the issue involved in the above matter. Therefore, the above decision had no manner of application in this case. The unreported decision of Alauddin (supra) was also not applicable in this case for the distinguishable features of this case. Therefore, the above decision had no manner of application in this case. The unreported decision of Alauddin (supra) was also not applicable in this case for the distinguishable features of this case. It is the settled principles of law that a decision is not an authority for a proposition which did not follow for its consideration. Reliance may be made to the decision of Punjab National Bank Vs. R.L. Vaid reported in AIR 2004 SC 4269 and the relevant portions of the above decisions are quoted below: “. . . . 5. We find that the High Court has merely referred to the decision in R.K. Jain’s case (supra) without even indicating as to applicability of the said decision and as to how it has any relevance to the facts of the case. It would have been proper for the High Court to indicate the reasons and also to spell out clearly as to the applicability of the decision to the facts of the case. There is always peril in treating the words of a judgment as though they are words in a Legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a difference between conclusions in two cases. Disposal of cases by merely placing reliance on a decision is not proper. Precedent should be followed only so far as it marks the path of justice, but you must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and branches, said Lord Denning, while speaking in the matter of applying precedents. The impugned order is certainly vague.” (Emphasis supplied) In view of the aforesaid settled proposition of law I am not inclined to accept the claim of the petitioner that the administrative functions attached to the post of Headmaster of the said school could be discharged by him automatically or without assuming the charges of the Office of Teacher-in-charge as a stop-gap measure. With regard to the show-cause notice dated May 13, 2013, I find that it was issued on the basis of circular No. 254(60)/ISS dated February 18, 2013. With regard to the show-cause notice dated May 13, 2013, I find that it was issued on the basis of circular No. 254(60)/ISS dated February 18, 2013. The validity of the above circular or the applicability of the same in case of absence of the petitioner from his duty on February 20, 2013 has not been challenged in this writ application. Further the decision of the said school in the above matter depends upon the reply of the petitioner. So, it is still open for the petitioner to give reply to the above show-cause notice and to challenge the decision of the authority, if the occasion so arises. Before parting with this file, I am of the opinion that the challenge relating to the impugned decision of appointing the respondent No.6 in the post of Teacher-in-charge was misconceived. There was no refusal on the part of the petitioner to discharge the administrative functions attached to the post of Headmaster. He was of the opinion of possessing power to discharge the above functions automatically in absence of Headmaster. Therefore, after interpretation of the proposition of law as discussed hereinabove, it will be open for the authority of the said school to offer one more chance to the petitioner for taking a decision in the matter of discharging the functions of the Office of Teacher-in-charge in accordance with the law laid down in the matter of Kanak Pal (supra), provided he is eligible for the above post in accordance with the provisions of the order No. Edn.(B)/IM-2591 dated August 3, 1991. Needless to point out that in case of acceptance of the above offer, there cannot be any bar and/or impediment to replace the respondent No.6 by the petitioner in the post of Teacher-in-charge of the said school. This writ application is, thus, disposed of. There will be, however, no order as to costs.