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2015 DIGILAW 131 (CAL)

Rina Roy v. State of West Bengal

2015-02-17

DIPANKAR DATTA

body2015
Judgment :- 1. A short legal point arises for decision on this writ petition and, accordingly, this Bench has proceeded to hear the parties finally without calling for affidavits. 2. The relevant question is, whether in the absence of a regular Headmaster in a secondary school but when an Assistant Headmaster is in place, could the senior-most or any other teacher be appointed by the Managing Committee as the teacher-in-charge? 3. The above question has arisen in the fact situation discussed hereafter: The petitioner joined Joynagar Institution for Girls (hereafter the institution) as an Assistant Teacher on January 12, 1993. A process of selection for appointment on the post of Assistant Headmistress having been initiated, the petitioner offered her candidature and upon her selection she was requested to join the post of Assistant Headmistress on or before September 6, 2008, vide letter dated August 25, 2008 issued by the Secretary of the institution. It was further observed therein that the petitioner would be entitled to pay and allowances as per Grants-in-Aid Rules and that her appointment is subject to approval of the District Inspector of Schools (SE), South 24 Parganas (hereafter the DIoS). Selection of the petitioner was the subject matter of challenge in a writ petition [W.P. No. 23701(W) of 2008] at the instance of another teacher of the institution, viz. Mahua Bhattacharya (hereafter Smt. Bhattacharya). Although the writ petition was entertained by a coordinate Bench on December 5, 2008, prayer for interim order restraining appointment on the post of Assistant Headmistress was refused. It appears that while hearing MAT 869 of 2013, being an appeal against the said order dated December 5, 2008, an Hon’ble Division Bench heard the writ petition of Smt. Bhattacharya on merits. Considering the fact that no clear irregularity appeared from the records in regard to the choice made by the selection committee, the writ petition of Smt. Bhattacharya was dismissed. The appeal also stood dismissed by such order, being devoid of merit. During the pendency of the appeal and the writ petition as aforesaid, the petitioner had presented W.P. 10961(W) of 2013, seeking a direction on the DIoS to approve her appointment as Assistant Headmistress, which was pending due to pendency of the writ petition of Smt. Bhattacharya. The appeal also stood dismissed by such order, being devoid of merit. During the pendency of the appeal and the writ petition as aforesaid, the petitioner had presented W.P. 10961(W) of 2013, seeking a direction on the DIoS to approve her appointment as Assistant Headmistress, which was pending due to pendency of the writ petition of Smt. Bhattacharya. By an order dated May 3, 2013, a coordinate Bench had directed the DIoS to approve the appointment of the petitioner on the post of Assistant Headmistress without prejudice to the rights and contentions of the parties in W.P. 23701(W) of 2008. It was pursuant to such order dated May 3, 2013 and on consideration of the order dated July 23, 2013 of the Hon’ble Division Bench that the DIoS passed an order dated October 2, 2013 according approval of appointment of the petitioner on the post of Assistant Headmistress with effect from the date of her joining, i.e. August 27, 2008. Meanwhile, the regular Headmistress of the institution was to retire on February 28, 2013 and on February 24, 2013, the Managing Committee of the institution had resolved to appoint a teacher-in-charge, since the issue regarding the petitioner’s appointment as Assistant Headmistress was sub judice. The Managing Committee, accordingly, appointed Smt. Bandana Chakraborty (Bhattacharya), respondent 7, as the teacher-in-charge. The petitioner had objected to the appointment of the respondent 7 as the teacher-in-charge on the grounds that not only was the respondent 7 junior to her in service, she being the Assistant Headmistress ought to have been appointed as the teacher-in-charge. Since such objection did not yield any result, this writ petition was presented claiming a direction on the authorities of the institution (respondents 5 and 6) to immediately remove the respondent 7 from the post of teacher-in-charge and thereafter to forthwith appoint the petitioner as the teacher-in-charge cum officiating Headmistress of the institution. 4. Mr. Deb Burman, learned advocate for the petitioner, referring to decisions of coordinate Benches of this Court contended that the issue is no longer res integra. Attention of this Bench was invited to the decision in Smt. Kanak Pal v. State of West Bengal and ors., reported in 2002 (1) CAL. 4. Mr. Deb Burman, learned advocate for the petitioner, referring to decisions of coordinate Benches of this Court contended that the issue is no longer res integra. Attention of this Bench was invited to the decision in Smt. Kanak Pal v. State of West Bengal and ors., reported in 2002 (1) CAL. L.T. 370; an unreported decision dated July 28, 2010 in W.P. 5306(W) of 2010 [Srikumar Chatterjee v. State of West Bengal and ors.] and another unreported decision dated February 25, 2013 in W.P. 4127(W) of 2013 [Alauddin v. State of West Bengal and ors.] in support of such submission. According to him, three learned Judges in the decisions referred to above have consistently held that there being no post of teacher-in-charge, it is the Assistant Headmaster/Assistant Headmistress in place who, in the absence of the regular Headmaster/Headmistress of a school, would officiate as the Headmaster/Headmistress, as the case may be, and that none else other than the Assistant Headmaster/Assistant Headmistress should be appointed as the teacher-in-charge. He has, accordingly, prayed for relief claimed in the writ petition. 5. The prayer of the petitioner has been vehemently opposed by Mr. Halder, learned advocate for the respondents 5 and 6. According to him, although the petitioner joined as Assistant Headmistress on August 27, 2008, her appointment was approved as late as on October 2, 2013. Since the selection of the petitioner was sub judice before this Court and her appointment had not been approved, the Managing Committee of the institution had thought it proper not to appoint her as teacher-in-charge but had invited other teachers to offer their candidature. It was submitted by Mr. Halder that there is no law ordaining that if an Assistant Headmaster/Assistant Headmistress is in place, he/she has to be appointed as the teacher-in-charge once there is a vacancy on the post of Headmaster/Headmistress. Reference has been made by him to Government Order dated October 8, 2009, which deals with issues involving the application of ROPA, 2009 in respect of the employees of West Bengal Non-Government Educational Institutions. Reference has been made by him to Government Order dated October 8, 2009, which deals with issues involving the application of ROPA, 2009 in respect of the employees of West Bengal Non-Government Educational Institutions. By inviting this Bench’s attention to paragraph 4(d) thereof, he submitted that appointment of teacher-in-charge is required to be approved by the DIoS concerned and it is liable to be automatically terminated in two situations, i.e. on appointment of a regular Headmaster/ Headmistress on the recommendation of the School Service Commission or reversion of the teacher-in-charge to the post of Assistant Teacher, Assistant Headmaster/Assistant Headmistress, as the case may be. It was further contended on behalf of the respondents 5 and 6 that in appointing the respondent 7 as the teacher-in-charge, there has been no violation of legal provisions. Reliance has also been placed by Mr. Halder on an unreported decision dated August 21, 2014 of a coordinate Bench of this Court in W.P. 15559(W) of 2013 [Abdul Sarif Shaikh v. Jirat Colony High School] wherein it has been held that the decisions in Kanak Pal (supra) and Alauddin (supra) are inapplicable. He, accordingly, prayed for dismissal of the writ petition. 6. Mr. Moniruzzaman, learned advocate for the respondent 7 echoed the submissions of Mr. Halder. 7. This Bench has heard learned advocates for the parties, considered the relevant provisions and perused the decisions cited at the bar. While proceeding to decide the contentious issue involved herein sight cannot be lost of the admitted position that there is no law which ordains that once a vacancy on the post of Headmaster/Headmistress arises, the incumbent on the post of Assistant Headmaster/Assistant Headmistress automatically acquires a right to officiate as the Headmaster/Headmistress; equally, no law authorises the Managing Committee of a school to appoint any teacher as teacher-in-charge other than the Assistant Headmaster/Assistant Headmistress who might be in place. Of course, there are decisions of this Court providing the guiding light. 8. Of course, there are decisions of this Court providing the guiding light. 8. There is no dispute that should there be a vacancy on the post of Headmaster/Headmistress, it becomes absolutely necessary for someone to officiate as Headmaster/Headmistress and one who officiates as such, is regarded as the teacher-in-charge; that the institution is governed by the provisions of the West Bengal Board of Secondary Education Act (hereafter the Act), and the Rules for Management of Non-Government Institutions (Aided and Unaided), 1969 (hereafter the 1969 Rules); that in terms of Rule 28(1)(ib) of the 1969 Rules, the Managing Committee has the power to appoint an Assistant Headmaster/Assistant Headmistress against the vacancy within the sanctioned strength from amongst the approved teachers in accordance with the direction given by the Director of School Education or any officer authorised by him in this behalf; and that the guidelines for appointment of Assistant Headmaster/Assistant Headmistress are embodied in Memo No. 1268-GA dated July 10, 2002, issued by the Director. It has further not been disputed before this Bench that the petitioner’s appointment as Assistant Headmistress in the institution was the result of compliance of the aforesaid guidelines by the authorities and that approval of appointment of the petitioner was delayed by about 5 (five) years because of pendency of the writ petition filed by Smt. Bhattacharya. It would also appear from Government Orders bearing Memo Nos. 1332-Edn.(S) dated December 24, 1966 and 1140-Edn.(S) dated April 30, 1968 that the concept of a school having an Assistant Headmaster/Assistant Headmistress was dependent upon the roll strength of students in a school and that an Assistant Headmaster/Assistant Headmistress was entitled to an additional allowance, later on known as special pay, till they vacate the post either by retirement, resignation, etc. The position regarding fixing up norms for sanction of the post of Assistant Headmaster/Assistant Headmistress has further been reiterated, while altering the roll strength vide Memo No. 671-SE(S) dated May 19, 2004. It would, therefore, follow that once a school is entitled to appoint an Assistant Headmaster/Assistant Headmistress on the basis of its roll strength and initiates process in this behalf, it is bound to follow the guidelines of the Director and any departure might result in non-approval of the appointment of the selected candidate by the DIoS. It would, therefore, follow that once a school is entitled to appoint an Assistant Headmaster/Assistant Headmistress on the basis of its roll strength and initiates process in this behalf, it is bound to follow the guidelines of the Director and any departure might result in non-approval of the appointment of the selected candidate by the DIoS. The qualifications that a teacher aspiring for appointment as Assistant Headmaster/Assistant Headmistress ought to possess are akin to the qualifications to be possessed by a teacher aspiring to be appointed as Headmaster/Headmistress. The importance of the post of Assistant Headmaster/Assistant Headmistress can, therefore, never be undermined. It is open to all the Assistant Teachers of a school qualified to compete to apply for and seek appointment on the post of Assistant Headmaster/Assistant Headmistress. It is a fair and transparent internal process extending equal opportunity to all teachers, similarly placed. On the contrary, there is no existence of a substantive post of teacher-in-charge. In the absence of a regular Headmaster/Headmistress, a teacher-in-charge may be appointed from amongst the willing teachers, having requisite qualification. Memo No. Edn.(B)/IM-25/91, dated August 3, 1991 issued by the Education Department, Government of West Bengal, provides that a qualified Assistant Teacher for appointment as teacher-in-charge of a secondary or higher secondary school in the absence of the Headmaster/Headmistress is one who has the requisite qualifications and experience for appointment as Headmaster/Headmistress of the secondary and/or higher secondary school. No other Government Order governing the process of appointment of a teacher-in-charge has been brought to the notice of this Bench. In such circumstances, if the post of Headmaster/Headmistress falls vacant in a secondary school and such school does not have the service of an Assistant Headmaster/Assistant Headmistress, there is nothing wrong in appointing the senior-most or any other willing teacher having requisite qualifications and experience for appointment on the post of Headmaster/Headmistress, as the teacher-in-charge of the school on condition that he/she would have to revert to his/her parent post of Assistant Teacher as and when the regular Headmaster/Headmistress is selected, appointed and takes charge. There is no prescribed procedure for selecting a teacher-in-charge and the Managing Committee enjoys a wide discretion in such matter. The wider the discretion, the greater is the likelihood of the discretion being misused; this follows from the age old saying that power tends to corrupts, and absolute power corrupts absolutely. There is no prescribed procedure for selecting a teacher-in-charge and the Managing Committee enjoys a wide discretion in such matter. The wider the discretion, the greater is the likelihood of the discretion being misused; this follows from the age old saying that power tends to corrupts, and absolute power corrupts absolutely. However, in the scheme of things where an Assistant Headmaster/Assistant Headmistress is in place (who has been selected and appointed from amongst the teachers of the school based on merit), no law authorises the Managing Committee to appoint somebody else (even if someone senior is available) as the teacher-in-charge, giving preference to his/her seniority. If this position were conceded, a teacher who has duly been selected for appointment on the post of Assistant Headmaster/Assistant Headmistress from amongst other qualified Assistant Teachers on merit could be side-tracked for not maintaining good rapport with the members of the Managing Committee. The appointee may have to work under a teacher, could be a junior teacher, who may have been found inferior in point of inter se merit and thus unsuccessful in his/her attempt to have an appointment on the post of Assistant Headmaster/Assistant Headmistress. Since appointment of a teacher-in-charge would not involve any selection, it could well be a breeding ground of corrupt practices. The law cannot be interpreted in a manner so as to encourage unfair, non-transparent and shady dealings. In the absence of suitable executive instructions on the point, this Court has consistently held in Kanak Pal (supra), Srikumar Chatterjee (supra) and Alauddin (supra) that in the event there is a vacancy on the post of Headmaster/Headmistress but the school has the service of an Assistant Headmaster/Assistant Headmistress, it is the incumbent on such post who should be appointed as the teacher-in-charge if he is so willing. There appears to be no reason not to follow such course even in the present case. 9. That apart, the issue needs to be addressed from the angle of deleterious effect that is likely to ensue if the Assistant Headmaster/Assistant Headmistress is not appointed as the teacher-in-charge, upon a vacancy on the post of Headmaster/Headmistress arising. The post of Assistant Headmaster/Assistant Headmistress is filled up on merit whereas normally the senior-most teacher is called upon to act as teacher-in-charge. The post of Assistant Headmaster/Assistant Headmistress is filled up on merit whereas normally the senior-most teacher is called upon to act as teacher-in-charge. It might well be so that the senior-most teacher having failed to compete with a junior on equal terms, loses out in the race for appointment as Assistant Headmaster/Assistant Headmistress on merit but with the blessings of the Managing Committee steals a march over such incumbent and succeeds in getting an order for acting as the teacher-in-charge. Inter se merit of the teachers is of no worth and it is only seniority that counts. Since law does not permit seniority to have precedence over merit, it would indeed be a disservice to the meritorious if only on the ground of seniority a teacher is allowed to act as teacher-in-charge, although such incumbent had not been found fit and suitable for appointment on the post of Assistant Headmaster/Assistant Headmistress while following the process in terms of the guidelines issued by the Director. 10. According to Mr. Halder, the appointment of the petitioner as an Assistant Headmistress was not approved and, therefore, the respondent 7 was preferred. In the considered view of this Bench, this could hardly afford sufficient reason to deny the petitioner of her rightful claim. Despite the learned Judge not granting any interim order on the prayer of Smt. Bhattacharya, the DIoS had unnecessarily kept the issue of approval of appointment of the petitioner as Assistant Headmistress pending. As has been noticed above, it was only after the writ petition of Smt. Bhattacharya was dismissed along with the appeal by the Hon’ble Division Bench that the DIoS proceeded to approve the appointment. Non-grant of approval of appointment by the DIoS was not due to the fact that there was a legal bar; it was the culpable inaction of the DIoS not to grant the approval on the specious ground that a writ petition was pending. The argument has been urged to be rejected. 11. Reference to paragraph 4(d) of the Government Order dated October 8, 2009 does not advance the cause of the respondents 5 and 6. It lays down that upon the joining of a duly qualified Headmaster/Headmistress in the school in question, the teacher-in-charge would have to revert to the position of Assistant Teacher/Assistant Headmaster, as the case may be. 11. Reference to paragraph 4(d) of the Government Order dated October 8, 2009 does not advance the cause of the respondents 5 and 6. It lays down that upon the joining of a duly qualified Headmaster/Headmistress in the school in question, the teacher-in-charge would have to revert to the position of Assistant Teacher/Assistant Headmaster, as the case may be. What it means is that the teacher-in-charge, who before such assignment was either Assistant Teacher or Assistant Headmaster, has to revert to his substantive post, i.e. either Assistant Teacher or Assistant Headmaster. In effect, this provision recognises that an Assistant Headmaster/Assistant Headmistress could be asked to officiate as the Headmaster/Headmistress, but may have to face benign reversion once the regular appointment on the post of Headmaster/Headmistress is made. 12. The decision in Abdul Sarif Shaikh (supra) did not deal with a similar situation and hence is distinguishable. 13. This Bench, therefore, finds reason to interfere. The decision of the Managing Committee of the institution to appoint the respondent 7 as the teacher-in-charge stands set aside. 14. The petitioner being the Assistant Headmistress of the institution shall immediately be allowed to take over the reins of teacher-in-charge and shall function till such time a regular Headmistress is appointed or she resigns/retires/removed in accordance with law from the post of Assistant Headmistress. 15. The writ petition stands allowed, without costs. Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor. Later: Prayer made by Mr. Halder for stay of operation of the order is considered and refused.