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2017 DIGILAW 609 (CAL)

Goutam Das Adhikary v. State of West Bengal

2017-07-12

I.P.MUKERJI

body2017
JUDGMENT : 1. Mr. Moitra, learned Senior Advocate, for the petitioners places reliance on an unreported judgment and order passed by this Court in W.P. no. 25186 (W) of 2015 (Tapan Kumar Das & ors. vs. The State of West Bengal & ors.) decided on 2nd March, 2017, where I held that once the District Inspector of Schools had taken a decision, he did not have the power to revoke it. Law did not give him that power. If the decision had to be revoked, proper steps, in accordance with law, had to be taken by the government. Learned counsel supplemented his argument by showing me a judgment of the Supreme Court in the case of State of Punjab & ors. vs. Gurdev Singh, Ashok Kumar) reported in AIR 1991 SC 2219, where Mr. Justice Shetty observed as follows: 6. But none the less the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Concil, (1956) AC 736 at p. 769 Lord Redcliffe observed: “An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.” 7. Apropos to this principle, Prof. Wade states: “the principle must be equally true even where the ‘brand of invalidity’ is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court (see: Administrative Law 6th Ed. P. 352). Prof. Wade sums up these principles: “The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff’s lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the ‘void’ order remains effective and is in reality valid. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff’s lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the ‘void’ order remains effective and is in reality valid. It follows that an order may be void for one purpose nd valid for another, and that it may be void against one person but valid against another.” (Ibid p. 352) 2. These cases become relevant because of the decision of the District Inspector of Schools (SE) Purba Medinipur dated 14th August, 2013 signifying approval to the appointments of four Assistant Teachers of Naikundi Arya Mission Junior High School, Purba Medinipur, the writ petitioners. 3. These appointments were made on the basis that this school was a minority institution and that it had its own autonomy and was not under the purview of the West Bengal School Service Commission Act, 1997. 4. Mr. Moitra, learned senior Advocate, submitted that in another case of this Court (W.P. No. 18709 (W) of 2010 The School Committee, Naikundi Arya Mission Junior High School & ors. vs. The State of West Bengal & ors.) the submission of the petitioners that the school was a minority institution was not controverted by the State and was assumed to be so in the order dated 11th January, 2011 passed therein directing the concerned respondents to grant recognition to the school. 5. On 7th August, 2012, the West Bengal Board of Secondary Education, had given recognition to the school. 6. Therefore, on that basis the decision was taken by the District Inspector of Schools on 14th August, 2013, referred to hereinabove, approving the appointment of four assistant teachers, the writ petitioners. 7. Now, that decision was, all of a sudden, revoked by the District Inspector of Schools on 3rd September, 2013. 8. That order was challenged in a subsequent writ application being W.P. no. 17938 (W) of 2014 (Gautam Das Adhikary & ors. vs. The State of West Bengal & ors.), which was disposed of on 12th March, 2015 by the Hon’ble Mr. Justice Dipankar Datta by setting aside the decision dated 3rd September, 2013 and directing the District Inspector of Schools to take a decision afresh. 17938 (W) of 2014 (Gautam Das Adhikary & ors. vs. The State of West Bengal & ors.), which was disposed of on 12th March, 2015 by the Hon’ble Mr. Justice Dipankar Datta by setting aside the decision dated 3rd September, 2013 and directing the District Inspector of Schools to take a decision afresh. The impugned decision dated 11th May, 2015 has been taken by the said District Inspector of Schools stating that the school could not be treated as a minority institution. The approval of teachers made by the District Inspector of Schools was by mistake. 9. Mr. Mukherjee, learned advocate for the respondents submits that the recognition order dated 7th August, 2012 stated that the school was recognised under the Management of Recognised of Non-Government Institutions (aided – unaided) Rules, 1969, as amended. Hence, it had to be taken that it was not a minority institution. 10. In my opinion, the District Inspector of Schools could not have made this decision. He could not have revoked the earlier decision of the District Inspector of Schools dated 14th August, 2013. He had to refer it to the higher authority or to take leave of the Court to refer it to such authority. The District Inspector of School after making a decision becomes functus officio and no longer retains the power to revoke or review it. Furthermore, the District Inspector of Schools in making the decision dated 14th August, 2013 acted on the basis of an order of this Court dated 11th January, 2011 treating the institution as a minority institution. 11. I do not agree. The Board was directed to recognise the institution. Any comment on whether it was a minority institution or not was not within its domain and is to be ignored. 12. Moreover, at page 41 of the petition, there is a remark endorsed by the District Level Inspecting Team way back on 21st December, 1998 that the school was established in 1984 under the special Rules. All the more reason, the District Inspector of Schools in his impugned order had no jurisdiction to make any finding with regard to the minority status of the school. 13. Therefore, I come to the following conclusions: 14. The impugned order of the District Inspector of Schools (SE) Purba Medinipur dated 11th May, 2015 is set aside. 15. All the more reason, the District Inspector of Schools in his impugned order had no jurisdiction to make any finding with regard to the minority status of the school. 13. Therefore, I come to the following conclusions: 14. The impugned order of the District Inspector of Schools (SE) Purba Medinipur dated 11th May, 2015 is set aside. 15. The respondents are obliged to act in terms of the decision dated 14th August, 2013 of the District Inspector of Schools. 16. The respondents do have a present right to challenge the minority status claimed by the institution or the decision of the District Inspector of Schools dated 14th August, 2013 made on that premises. But in order to do so, the respondents have to initiate proper proceedings upon notice to the petitioners to challenge these decisions. District Inspector of Schools (SE) Purba Medinipur does not have the power or jurisdiction to do so. 17. As long as the decision of the District Inspector of Schools (SE) Purba Medinipur dated 14th August, 2013 stands, the respondents are directed to act in terms thereof by granting appointment to the writ petitioners within eight weeks from the date of communication of this order subject to their aforesaid rights. 18. This writ application is accordingly disposed of. 19. Urgent certified photocopy of this order, if applied for, be given to the parties.