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2017 DIGILAW 664 (CAL)

Kazi Gholam Murtaza Kamal v. State of West Bengal

2017-08-04

DEBI PROSAD DEY

body2017
JUDGMENT : 1. In spite of service of successive notices, none appeared on behalf of the respondents. Let the affidavit of service be kept with the record. 2. The petitioners are duly qualified to be appointed as teaching and non-teaching staff in High School and they were duly appointed as organizing teaching and non-teaching staff of Ampara Junior High Madrasah (hereinafter referred to as the ‘Madrasah’) under police station-Etahar, District-Uttar Dinajpur. Since the academic year of 2008 the said Madrasah was established and for smooth running of Madrasah duly qualified teaching and non-teaching staff i.e. the petitioners were duly appointed by the Managing Committee of the Madrasah. 3. Ultimately, the West Bengal Board of Madrasah Education by a letter being memo no. 5047-A dated 22.02.2011 granted recognition to the Madrasah as Junior High Madrasah from academic sessions of 2010-11. 4. The petitioners being organizing teaching and non-teaching staff approached the respondent no. 3 for the approval of their service as organizing teaching and non-teaching staff but nothing has been done by respondent no. 3. The petitioners thereafter served a notice upon respondents no.2 and 3 through their learned Advocate requesting them to do the needful. Being aggrieved by such inaction of the respondents, the petitioners filed a writ petition being WP no. 12764(W) of 2014, wherein His Lordship Hon’ble Justice Debashis Kar Gupta was pleased to direct the respondent no. 3 to pass a reasoned order in accordance with law on the representation filed by the petitioners for approval of their appointment as teaching and non-teaching staff of the Madrasah. 5. Respondent no. 3 however issued a letter dated 4th August, 2014 whereby and where under it was informed to the petitioners that no permission has been accorded by the said authority for regularization of the service of the petitioners. The petitioners thereafter again moved the Hon’ble High Court at Calcutta by filing writ petition no. 24846(W) of 2014. His Lordship Hon’ble Justice Sudip Ahluwalia directed respondent no.3 to pass fresh order specifying the rules and orders under which the applications of the petitioners were barred or liable to be rejected after giving an opportunity of hearing to the petitioners. Finally, the District Inspector of School communicated the reasoned order dated 25th April, 2016 to the writ petitioners stating inter-alia: “W.P. No. 24846(W) of 2014………….. The Madrasah Recognized by the West Bengal Board of Madrasah Education Vide Memo no. Finally, the District Inspector of School communicated the reasoned order dated 25th April, 2016 to the writ petitioners stating inter-alia: “W.P. No. 24846(W) of 2014………….. The Madrasah Recognized by the West Bengal Board of Madrasah Education Vide Memo no. 5047 – A dated 22.2.2011 as New Set up Jr. High Madrasah. As per Notification by the Govt. of West Bengal in terms of G.O No.-125-SE(S)/FS/S/35-47/2006 dated 15.2.2007 ‘AND WHEREAS teachers for the Set up Schools, have to be appointed only on recommendation of the West Bengal School Service Commission’. ‘AND WHEREAS non-teaching staff are to be recruited as per the existing rules under the West Bengal Schools (Control of Expenditure) Act, 2005’. The undersigned verified the relevant papers and documents of the Madrasah and as per rules and orders the approval of Service as organizing teaching and non-teaching staff of the Ampara Jr. High Madrasah cannot be considered and thus matter is disposed of.” 6. Being aggrieved and dissatisfied with such order this writ petition has been filed by the petitioners for issuance of an order directing respondent no. 3 for approval of the service of the petitioners as teaching and non-teaching staff of Ampara Junior High Madrasah, District-Uttar Dinajpur and for setting aside the order impugned dated 4th August, 2014 passed by respondent no.3. 7. Learned Advocate appearing on behalf of the petitioners contended that the District Inspector of School (Secondary Education), Uttar Dinajpur did not consider the memo No. 705 dated 13th January, 1999 while passing such order and thereby has not only violated the directions given by the Government of West Bengal but also has acted contrary to the law enunciated by the High Court at Calcutta. In support of his contention learned Advocate for the petitioner has also relied on a decision of our High Court delivered by learned Single Judge in writ petition no. 19811(W) of 2011. 8. Learned Single Judge in such decision has directed the respondents to approve the existing managing committee of the school and to sanction teaching and non-teaching staff therein to accommodate the writ petitioners, who were working as organizing teaching and non-teaching staff of such school. 9. Memo no. 19811(W) of 2011. 8. Learned Single Judge in such decision has directed the respondents to approve the existing managing committee of the school and to sanction teaching and non-teaching staff therein to accommodate the writ petitioners, who were working as organizing teaching and non-teaching staff of such school. 9. Memo no. 5047-A dated 22nd February, 2011 is the sanction order for the recognition of new set up for the Ampara Junior High Madrasah wherein some conditions were stipulated by the West Bengal Board of Madrasah Education in respect of the functions of such Madrasah. The conditions may be reproduced below: “1. The Madrasah Authority should seek approval of Adhoc Managing committee formed for the purpose of new set up of the said Madrasah from the West Bengal Board of Madrasah Education. The Adhoc Managing Committee so approved shall act as per the rules of Management of recognized non-Government Madrasahs (aided and unaided) Rules, 2002 formed under the West Bengal Board of Madrasah Education Act 1994 with subsequent modification. If any from time to time for one year Managing Committee should be reconstituted as per rules of Management of recognized non-Government Madrasah (aided and unaided) Rules 2002 within this period. 2. The teachers of new set up Madrasahs should be appointed by the Managing Committee only on the recommendation of West Bengal Madrasah Service Commission for selection of teachers in Madrasahs. 3. The appointment of non-teaching staff shall be made in accordance with Government’s acts and rules in force. 4. The recruitment of teaching and non-teaching staff should be made as per staff pattern of Jr. High Madrasah determined and prescribed by the Government from time to time in this regard.” 10. It is, therefore, apparent from the aforesaid conditions that the teachers of new set up Madrasah should be appointed by the managing committee only on the recommendation of West Bengal Madrasah Service Commission and the recruitment of non-teaching staff should be made as per staff pattern of junior high Madrasah determined and prescribed by the Government from time to time in this regard. 11. Therefore, specific conditions have been given by the West Bengal Board of Madrasah Education with regard to the appointment of teaching and non-teaching staff in respect of the Madrasah. Such sanction order of the conditions stipulated in such sanction order was/were never challenged by the petition. 12. 11. Therefore, specific conditions have been given by the West Bengal Board of Madrasah Education with regard to the appointment of teaching and non-teaching staff in respect of the Madrasah. Such sanction order of the conditions stipulated in such sanction order was/were never challenged by the petition. 12. The District Inspector of Schools (SE) Uttar Dinajpur while rejecting the prayer of the petitioners has specifically mentioned that the teachers for the set up schools have to be appointed only on recommendation of the West Bengal School Service Commission and non-teaching members of staff are to be recruited as per the existing rules under the West Bengal Schools (Control of Expenditure) Act 2005. 13. Learned Single Judge while disposing writ petition no. 19811(W) of 2011 has discussed the following decisions: i. Manindra Nath Sinha & Ors. Vs. The State of West Bengal & Ors. 2006(2) CLJ (Cal) 489. ii. State of West Bengal & Ors. Vs. Smritikana Maity & Ors. Reported in 2008 (1) CLJ(Cal) 316. iii. Headmistress, Garifa Arati Academy for Girls’ Vs. Smt. Gita Banik & Ors. 2008 (1) CLJ (Cal) 453. 14. It has been consistently held by our High Court in the aforesaid decisions that after coming into force of the West Bengal School Service Commission Act, 1997 no teacher could be appointed into any school without being recommended by the West Bengal School Service Commission. It has further been held that the Court could not recognize any organizing managing committee or organizing teacher. Applying the ratio in the case of State of Karnataka Vs. Uma Devi reported in 2006 (4) SCC 1 , it has been held that such persons were illegally appointed employees and had no right to seek. However, learned Judge has also referred another unreported Division Bench judgment namely State of West Bengal and Ors. Vs. Md. Hasan and Ors., wherein it has been specifically held that in terms of memo no. 705 dated 13th January, 1999 issued by the Secretary of the Education Department the appointments of organized teachers and non-teaching staff of Madrasah were treated as fresh appointment after recognition and therefore question for recommending the matter for appointment of teaching staff through School Service Commission cannot and does not arise. 705 dated 13th January, 1999 issued by the Secretary of the Education Department the appointments of organized teachers and non-teaching staff of Madrasah were treated as fresh appointment after recognition and therefore question for recommending the matter for appointment of teaching staff through School Service Commission cannot and does not arise. Accordingly, the concerned authority was directed to approve the appointments of the writ petitioners of such writ application as organizing teaching and non-teaching staff of the upgraded section of high madrasah. 15. Learned Advocate for the petitioners contended that in view of the aforesaid judgment of the Division Bench the prayer of the petitioners ought to be allowed. secondly, the petitioners had had legitimate expectation of being absorbed in Ampara Junior High Madrasah and accordingly their prayer for absorption ought to be allowed. 16. Nothing has been produced before this Court to show that rules of business of the Government of West Bengal framed in terms of Article 166 of the Constitution of India permits the Secretary, West Bengal Board of Madrasah Education to issue such memo no. 705 dated 13th January, 1999. On the contrary the said memo being no. 705 dated 13th January, 1999 appears to be a letter requesting the Director of School Education, West Bengal to issue appropriate instructions. In absence of any authority, such memo no. 705 dated 13.01.1999 cannot be interpreted to be the mandate of the Government of West Bengal in respect of approval of appointment of organizing teachers and non-teaching staff of Madrasah even after coming into force of School Service Commission Act and the West Bengal Schools (Control of Expenditure) Act, 2005. Secondly, the question of legitimate expectation has been dealt with by our High Court in the afore mentioned decisions. The decision of Manindra Nath Sinha & Ors. Vs. The State of West Bengal & Ors. 2006(2) CLJ (Cal) 489 has been upheld in Civil appeal no. 7897 of 2010 by the Hon’ble Supreme Court of India. The doctrine of Merger accordingly comes into play and it may safely be stated that the reasons assigned in Manindra Nath Sinha & Ors. Vs. The State of West Bengal (Supra) have been accepted and affirmed by the Supreme Court of India. 7897 of 2010 by the Hon’ble Supreme Court of India. The doctrine of Merger accordingly comes into play and it may safely be stated that the reasons assigned in Manindra Nath Sinha & Ors. Vs. The State of West Bengal (Supra) have been accepted and affirmed by the Supreme Court of India. In that view of this case the District Inspector of Schools (S.E.) Uttar Dinajpur was justified in holding that organizing teaching and non-teaching staff of the Madrasah are not entitled to be absorbed in the said Madrasah after having recognition from the State of West Bengal. I do not find any illegality in the reasoned order passed by respondent no.3 in terms of the order passed by the High Court in writ petition no. 24846(W) of 2014. 17. The petitioners have not acquired any right to be appointed as teaching and non-teaching staff of Ampara Jr. High Madrasah after such recognition by the State and it is incumbent upon the Managing Committee to recruit teaching and non-teaching staff of such Ampara Jr. High Madrasah in terms of the rules and orders as mentioned in the order of the District Inspector of School (Secondary Education) Uttar Dinajpur. The writ petition being void of merit is dismissed. No order as to costs.