JUDGMENT : Rakesh Tiwari, J. This appeal has been preferred challenging the validity and correctness of the judgment and order dated 11th May, 2015, passed by the Writ Court in W.P. No. 19832(W) of 2009 (Ramprosad Khan and Ors. v. The State of West Bengal and Ors.) on the grounds that the writ petition was itself not maintainable without impleading the appellant Council as a party respondent as it was a necessary and proper party. 2. Sri Ratul Biswas, learned counsel for the appellant Council would argue that the Writ Court in the aforesaid writ petition committed an error in law and in fact in directing the Council to issue appointment letters in favour of the writ petitioners without impleading the Council as a party and also for the reason that there was no material before the Writ Court to hold that the writ petitioners/respondents were empanelled as successful candidates under the exempted category and were denied appointment. It is submitted that the aforesaid finding is bad in law as empanelled candidates were not at all successful candidates. 3. It is argued that the finding of the learned Single Judge in holding that 152 vacancies are still left and were not filled up, is not correct and there is no basis of such finding as total vacancies in the unreserved category of the selection process was vide notification no. R/RT/DPSC(N)/1/99 dated 29th December, 1999 were 446 and 282 vacancies meant for EC(UR) : 95 meant for EC(SC) : 26 meant for EC(ST) : 30 meant for EC(OBC) and 13 meant for EC(PM) and all the vacancies were duly filled up during the validity period of the panel and as such, the writ petitioners/respondents had no right to be appointed as Assistant Teachers in primary schools under the Council. 4. The point germane for decision by the Writ Court was as to whether there was any vacancy in which the writ petitioners, who claim themselves to be empanelled successful candidates, had any right to be appointed by the Chairman. 4. The point germane for decision by the Writ Court was as to whether there was any vacancy in which the writ petitioners, who claim themselves to be empanelled successful candidates, had any right to be appointed by the Chairman. The moot question of law involved before us is that in view of the provisions of the West Bengal Primary Education Act, 1973 (hereinafter referred to as Act of 1973), whether any direction could have been issued by the Writ Court against the Council, which was neither arrayed as a party in the writ petition nor was competent to appoint the writ petitioners. 5. Since the question of law goes to the very route of the dispute, we have heard learned counsel for the appellant and learned counsel for the respondents/writ petitioners and learned counsel for the respondent no. 34, Chairman of the Council in detail. 6. According to learned counsel for the appellant, section 37 of the Act of 1973 provides establishment of district primary school councils by the State Government, bearing the name of the district and for the sub-division of Siliguri, Siliguri Primary School Council. Sub-clause (2) of section 37 lays down as to who would be the members of the district primary school council and that the Chairman shall be appointed by the State Government as the head of the Council. 7. He has brought to our attention sub-clause (3) of section 37 which provides: "A District Primary School Council or, as the case may be, Siliguri Primary School Council shall be a body corporate with perpetual succession and a common seal, shall be entitled to acquire, hold and dispose of property, to enter into contracts and to do all other things necessary for the purpose of this Act, and shall by its corporate name sue or be sued." 8. Learned counsel for the respondents/writ petitioners submits that the Court in the impugned judgment dated 11th May, 2015 has noticed that the Council was represented before it and has observed thus: "Mr. Bhattacharyya, learned counsel appearing for the Council submits that remaining 152 vacancies were not fulfilled. He also submits that the petitioners are exempted category candidates. However, he submits petitioner No. 21, 27 and 30 were given employment but others were not." 9. Bhattacharyya, learned counsel appearing for the Council submits that remaining 152 vacancies were not fulfilled. He also submits that the petitioners are exempted category candidates. However, he submits petitioner No. 21, 27 and 30 were given employment but others were not." 9. According to the counsel for the respondents/writ petitioners, the aforesaid observation of the Court in its judgment clearly indicates that the Council was represented before it and, therefore, it is incorrect to say that Council was not heard by the Writ Court. 10. In rebuttal, Sri Ratul Biswas, learned counsel appearing for the appellant Council submits that the Council was not even arrayed as a party in the writ petition and, therefore, the observations of the Writ Court, quoted above, is contrary to the facts and no direction could have been issued to the Council, as contained in the operative portion of the judgment disposing of the writ petition with direction as follows: "Accordingly this writ petition is disposed of with a direction upon the Council to issue appointment letter in favour of the petitioners who have not crossed 58 years of age within eight weeks from the date of communication of this order. However, the petitioners will not entitled to claim any arrear financial benefits. There would be no order as to costs." 11. It is vehemently argued that the Writ Court would not have issued any direction to the District Primary School Council had this fact been brought to its notice by the counsel for the petitioner and the counsel representing the Chairman that District Primary Council was not a party in the writ petition and on this ground alone, the appeal may be admitted and operation of the impugned order be stayed. 12. Having heard learned counsel for the parties, we find that Chairman has been defined in section 2(iv) of the Act of 1973 as "Chairman means the Chairman of a Primary School Council" and Primary School Council has been defined in section 2(xix) of the Act as under: "Primary School Council means a District Primary School Council established under section 37, and includes the Siliguri Primary School Council referred to in sub-section (2A) of that section and the Calcutta Primary School Council referred to in section 38." 13. It is noticed from the earlier appeal, being M.A.T. 929 of 2012, filed by the Chairman, North 24-Parganas District Primary School Council, amongst others, the following grounds have been taken: "III. For That the Learned Trial Judge ought to have passed an order directing the Appellant council to produce records as to the participation of the Petitioners, but the Learned Trial Judge mere relying on the averments of the Petitioners disposed of the writ application. VI. For That the Learned Trial Judge has not been addresses by the appellant council and thereby the actual state of affairs were not properly placed before the Learned Single Judge and the order under appeal has been delivered." 14. We also find, in paragraph 9 of the affidavit in opposition to the application for stay, filed in this appeal, that stand taken by the respondents/writ petitioners was: "I state that the Learned Advocate of the Chairman of District Primary School Council submitted before the Learned Trial Court that 'Mr. Bhattacharya, Learned Counsel appearing for the council submits that remaining 152 vacancies were not fulfilled. He also submitted that the petitioners are exempted candidates. However, he submitted that petitioner Nos. 21, 27 and 30 were given employment but others were not.' And on the basis of the said submission, the Learned Trial Judge has passed an order and directed to give appointment to the writ petitioners. And till today the Chairman as well as Council did not file any application for recalling of the said order on the ground that the Learned Trial Judge wrongly recorded the fact and the allegation is after thought and contrary to the submission made by the Learned Advocate on behalf of the Chairman as well as District Primary School Council." 15. It is apparent from a bare reading of section 37 and sub-sections (1), (2) and 3 thereof of the Act of 1973, as well as the definition of Chairman and the District Primary School Council, extracted above, that the Chairman and the District Primary School Council are two different, separate and independent identities whereas the Chairman is not empowered to sue or to be sued in the name of corporate body, i.e. the District Primary School Council is having perpetual seal which can sue or can be sued under the Act as a legal entity. 16. 16. From a perusal of the array of the parties in the writ petition it is found that only the Chairman has been made a party and not the District Primary School Council which is a body corporate having a separate legal identity from the Chairman perpetual seal for the object of doing all things necessary for the purpose of the Act and having power to sue or to be sued. It may be that the Chairman is the head of the Council but does not represent the Council in its representative capacity, being a separate body corporate as per section 37 of the Act of 1973. 17. Contention of learned counsel for the respondents/writ petitioners that Sri Kamalesh Bhattacharya, learned counsel appeared for the Chairman as well as the District Primary School Council is, therefore, factually incorrect as Sri Kamalesh Bhattacharya could not have represented the Council under the law, particularly when the District Primary School Council was not even arrayed as a party in the writ petition. In our opinion, the Writ Court while passing the order impugned, mis-directed itself in considering that the Council could be represented by the Chairman and passed the order on such presumption and, therefore, no direction ought to have been issued upon it. 18. For all the reasons stated above, the appeal, being A.S.T. 85 of 2016, is allowed. The order impugned dated 11th May, 2015 is set aside. The stay application is also disposed of. The North 24-Parganas District Primary School Council is to take follow up steps. Re: A.S.T. 73 of 2016. 19. This appeal, which is appearing in the list under serial no. 28, has been preferred by the State of West Bengal and Ors., against the order dated 16th February, 2016 passed in the contempt proceedings, being W.P.C.R.C. No. 444(W) of 2015, arising out of the order dated 11th May, 2015, passed in W.P. 19832(W) of 2009. 20. In this appeal, while considering the delay condonation application, the Court passed the following order: "Heard learned advocates for the parties. Considering the submission made by Mr. Bhattacharya and Mr. Sanyal at length, as we prima facie find that there is some substance in the grounds of appeal and thee should be a justice oriented approach, the delay of 290 days in preferring the appeal is condoned. The application is allowed. Considering the submission made by Mr. Bhattacharya and Mr. Sanyal at length, as we prima facie find that there is some substance in the grounds of appeal and thee should be a justice oriented approach, the delay of 290 days in preferring the appeal is condoned. The application is allowed. Let the appeal be registered, if it is otherwise in form. Let affidavit-in-opposition to the application for stay be filed by 24th March, 2016. Reply, if any, by 8th April, 2016. Let the matter appear under the heading 'Application' on 11th April, 2016. So far as the prayer for interim order is concerned, since we find from the order dated 11th May, 2015 that therein no direction was issued by the Director of School Education, now renamed as the Commissioner of School Education, to give approval and as the upper age limit for appointment of a primary teacher is 40 years, let there be a stay of operation of the order dated 11th May, 2015 passed in W.P. 19832(W) of 2009, as modified by order dated 16th February, 2016 passed in WPCRC 444(W) of 2015, till 29th April, 2016 or until further order, whichever is earlier. Learned advocate on record for the appellants is directed to file certified copy of the order dated 11th May, 2015 within a week from the date of its receipt." 21. On the request of the counsel for the parties this petition is also taken up along with this appeal and appearing on day's list. 22. Since the parent order dated 11th May, 2015 has already been set aside by the judgment delivered in connection with A.S.T. 85 of 2016, this appeal, being A.S.T. 73 of 2016, along with connected application, if any, also stand disposed of. As a consequence, the contempt proceedings, being WPCRC 444(W) of 2015, is also disposed of. 23. There will be no order as to costs. 24. Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.