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2017 DIGILAW 685 (CAL)

Mainuddin Sarkar v. State of West Bengal

2017-08-16

ARIJIT BANERJEE

body2017
JUDGMENT : 1. This litigation has a chequered history. Briefly stated, the case of the petitioner is as follows:- 2. The Santoshpur Public Junior High Madrasah (in short the ‘said Madrasah’) was started in the year 1975. The petitioner passed BA examination from Calcutta University in 1982 and passed a one year condensed honours course from Rabindra Bharati University in 1986. He claims to have been appointed as an Assistant Teacher of the said Madrasah in February, 1988 pursuant to a resolution of the then Managing Committee and claims to have taught Bengali and History in the said Madrasah. He claims to have signed the attendance register regularly and also claims to have acted as examiner of answer scripts of students of the said Madrasah. 3. On 14 September, 1995 the said Madrasah was inspected by the District Level Inspection Team (in short ‘DLIT’) headed by the ADI of Schools (SE), South 24 Parganas. In April, 1996 the said Madrasah was granted recognition and six teachers except the petitioner were appointed and approved by the Madrasah Board. 4. With the grievance that he was wrongfully not appointed as a regular teacher although he had been serving as an organizer teacher, only to make way for the daughter of the then MLA who was a member of the DLIT, the petitioner approached this Court by filing CO 20352 (W) of 1996. The said writ petition was disposed of by Ashim Kumar Banerjee (As His Lordship then was) by an order dated 3 November, 2000. The operative portion of the said order reads as follows:- “Accordingly, I direct the Director of School Education (W.B) being the respondent No. 2 to consider the representation of the writ petitioner. Writ petitioner is given liberty to file further representation within two weeks from date. After receiving the representation, the Director of School Education (WB) will give notice to the concerned parties including the School Authority as well as the new appointed teacher and will dispose of the said representation after giving sufficient opportunity of being heard to the concerned parties including the writ petitioner. The Director of School Education (WB) will communicate his order with reasoning to the writ petitioner within 4 weeks from the date of receipt of the representation. The Director of School Education (WB) will communicate his order with reasoning to the writ petitioner within 4 weeks from the date of receipt of the representation. In case, the Director of School Education (WB) finds that the writ petitioner’s complaint is correct, in that event he would find modus operandi with regard to the absorption of the writ petitioner without disturbing the new appointed teacher who has since been appointed in place and stead of writ petitioner. This part of the order is passed in view of the fact that the new incumbent has not been made a party to the writ petition and as such I do not want to disturb the status quo as on today.” 5. Pursuant to the said order the petitioner made fresh representation dated 14 November, 2000 to the Director of School Education, West Bengal who after keeping the same pending for a long time, ultimately passed an order dated 4 January, 2002 rejecting the claim of the petitioner. 6. Challenging the order of the Director of School Education, the petitioner moved WP No. 3298(W) of 2002 in this Court. The said writ petition was disposed of by Arun Kumar Mitra, J. (as His Lordship then was), by a judgment and order dated 9 December, 2005, the operative portion whereof reads as follows:- “On consideration of all the documents on record and on consideration of the affidavits, in my view the Director has not gone into the facts for which Hon’ble Justice Banerjee remanded the matter to him. I, therefore, set aside the order of the Director of School education communicated through Memo No. 6/1(5) I.C. dated 04.01.2002 and direct the Director to consider the claim of the petitioner afresh especially going into the facts on the following points:- (1) Whether the District Level Inspection Team inspected in the year 1995 only or at any other point of time earlier or subsequent to that. (2) Whether the Attendance Register has been tampered or manufactured or not. (3) Whether the petitioner was actually in the roll and allegation that Nayela Sultana being the daughter of the local MLA was inducted in place of the petitioner or not. (4) Whether the affidavit affirmed by respondent nos. 9 and 10 has got veracity in their statements or not. (5) Whether only for the purpose of recognition the name of Nayela Sultana was included or not. (4) Whether the affidavit affirmed by respondent nos. 9 and 10 has got veracity in their statements or not. (5) Whether only for the purpose of recognition the name of Nayela Sultana was included or not. (6) Whether the petitioner was assured that he would be absorbed in additional post or not. I also direct that if the Director finds from records that at any point of time the petitioner acted as organiser teacher of the said Junior High Madrasah, the Director will see that the petitioner can be provided in an additional post on ingress of roll strength, if any and the Director will approve the appointment of the petitioner as organiser teacher in the additional post of the said Madrasah, if he so found.” 7. Since the Director of School Education did not comply with the said order passed by this Court, on 6 May 2006 the petitioner moved a contempt application being CPAN No. 644 of 2006 wherein Rule was issued and the application was renumbered as WPCRC 28208 (W) of 2016. According to the petitioner, on 14 March, 2007 the Director of School Education was personally present in Court pursuant to the Court’s order and the matter was fixed on 28 March, 2007. On 14 March, 2007 itself the Director of School Education took up hearing of the matter without any notice to the petitioner who was thus not given any opportunity of hearing. On 20 March, 2007 the Director of School Education passed an order rejecting the petitioner’s representation holding that no relief could be granted to the petitioner. 8. The said order of the Director of School Education was challenged by the petitioner by filing WP 30612(W) of 2008 in this Court. The said writ petition was disposed of by Sanjib Banerjee, J. by a judgment and order dated 5 September, 2013, the operative portion whereof reads as follows:- “In view of the order dated November 03, 2000, the State cannot deny the petitioner on the ground that an additional post has to be created if the petitioner is accommodated. Paragraph 18(b) of the affidavit filed by the State and as noticed in the order of November 3, 2000, precludes the state from taking such stand. Paragraph 18(b) of the affidavit filed by the State and as noticed in the order of November 3, 2000, precludes the state from taking such stand. The order on the second petition, which sets down six grounds for consideration of the petitioner’s representation, required the DSE to hear the petitioner on such issues and decide the matter. The petitioner claims that the petitioner was neither heard nor informed of any hearing and the State has not been able to produce any document to establish otherwise. It is evident that the order dated December 09, 2005 was not complied with. Nothing else need to be looked at once it appears that there was a direction of Court that a decision be made upon hearing the petitioner and the petitioner was not heard prior to the decision being rendered. The order impugned rejecting the petitioner’s representation passed by the Director of Madrasah Education on March 20, 2007 is set aside and quashed. The petitioner is restored to the status as prevailing prior to the order being made. The petitioner’s case will now be considered by the Director of Madrasah Education strictly in accordance with the order dated December 09, 2005 and by affording the petitioner reasonable opportunity of hearing by issuing a notice informing the petitioner of the date of hearing at least seven days prior thereto. The Director of Madrasah Education will be governed by the six specific areas of consideration as indicated in the order of December 09, 2005 and the State will be precluded from objecting to the creation of an additional post in view of the stand of the State as recorded in the order dated November 03, 2000. The entire exercise should be completed by the Director of Madrasah Education within a period of two months from date.” 9. Subsequently, the Director of School Education passed the order dated 8 May, 2014 which is under challenge in the present writ application. 10. In the aforesaid factual background Mr. Sanyal, Learned Counsel for the petitioner submitted that although the prayer of the petitioner in the writ petition for regularization as organizer teacher in the additional post at the concerned Madrasah has become infructuous by reason of the petitioner attaining the age of superannuation during the pendency of the writ petition, financial compensation should be granted to the petitioner. Sanyal, Learned Counsel for the petitioner submitted that although the prayer of the petitioner in the writ petition for regularization as organizer teacher in the additional post at the concerned Madrasah has become infructuous by reason of the petitioner attaining the age of superannuation during the pendency of the writ petition, financial compensation should be granted to the petitioner. The petitioner has filed application being CAN 1798 of 2017 claiming such compensation. Learned Counsel submitted that the petitioner has been embroiled in the litigation before this Court since 1996. Four writ applications were filed by the petitioner for adjudication of the petitioner’s claim and there were no laches on his part. Appointment was wrongly refused to the petitioner and the petitioner spent 22 years in the litigation to get justice. The Government Officials were totally negligent and when the Court directed them to decide the matter, they took an inordinately long time to do so. By their negligence and failure to carry out their statutory duty efficiently, the officers of the State have infringed the petitioner’s fundamental right under Article 21 of the Constitution of India. This amounts to a constitutional tort and the petitioner should be compensated for the same. 11. Learned Counsel for the State submitted that the petitioner has not established any legal right for being regularized as organizer teacher. There is no infringement of any established right and hence, the question of the State having committed a constitutional tort does not arise. The petitioner has not been able to establish that his name was wrongly excluded from the DLIT report. 12. Learned Counsel for the State further submitted that damages by way of compensation cannot be awarded in the writ jurisdiction of this Court. For that the petitioner has to approach the Civil Forum. However, in any event, in the facts of the present case, there was no negligence on the part of the State and hence, no question of compensating the petitioner can thus arise. If the petitioner has spent 22 years trying to establish a right which he does not have in law, the State cannot be blamed for the same. 13. I have considered the rival contentions of the parties. No question of granting the prayers in the writ petition arises any further as the same have become infructuous upon the petitioner reaching the age of superannuation on 31 January, 2017. 13. I have considered the rival contentions of the parties. No question of granting the prayers in the writ petition arises any further as the same have become infructuous upon the petitioner reaching the age of superannuation on 31 January, 2017. It is true that in the course of hearing I had observed that the Court will consider if any other relief can be granted to the petitioner, but on a careful consideration of the facts and circumstances of the case, and the applicable law, I am afraid I cannot grant any relief to the petitioner in this proceeding. 14. The concept of constitutional tort appears to be on a nascent stage in so far Indian jurisprudence is concerned. Not that it is unknown to Indian law but the principle has not been applied by the Indian Courts very often. In MCD vs. Uphaar Tragedy Victims Association, (2011) 14 SCC 481 , the Apex Court went into the concept of negligence or breach of duty to take care in the tort law as against breach of duty in discharging statutory duty in public law with reference to developments in different jurisdictions. It was observed that the archaic principle of State immunity that was based on the assumption of the State being efficient, sincere and dignified was giving way to protection of liberty, equality and rule of law. Applying the test of proximity of relationship, reasonable foreseeability and justness of claim, liability of a public authority could be fixed. After noticing development of law in various other countries, it was observed by the Hon’ble Apex Court at paragraphs 109 to 112 of the reported judgment as follows:- “109. Need for a comprehensive legislation dealing with tortious liability of the State and its instrumentalities has been highlighted by this Court and the academic world on various occasions and it is high time that we develop a sophisticated jurisprudence of public law liability. Due to lack of legislation, the courts dealing with the cases of tortious claim against the State and its officials are not following a uniform pattern while deciding those claims, and this at times leads to undesirable consequence and arbitrary fixation of compensation amount. 110. The Government of India on the recommendations of the First Law Commission introduced two Bills on the government liability in torts in the years 1965-1967 in the Lok Sabha but those Bills lapsed. 110. The Government of India on the recommendations of the First Law Commission introduced two Bills on the government liability in torts in the years 1965-1967 in the Lok Sabha but those Bills lapsed. In Kasturi Lal case, this Court has highlighted the need for a comprehensive legislation which was reiterated by this Court in various subsequent decisions as well. 111. Public authorities are now made liable in damages in UK under the Human Rights Act, 1998. Section 6 of the Human Rights Act, 1998 makes a public authority liable for damages if it is found to have committed breach of human rights. The Court of Appeal in England in Anufrijeva v. Southwark London Borough Council, 2004 QB 1124 , attempted to answer certain important questions as to how damages should be awarded for breach of human rights and how should damages be assessed. Further, such claims are also dealt by Ombudsmen created by various statutes: they are independent and impartial officials, who investigate complaints of the citizens in cases of maladministration. Experience shows that majority of the Ombudsmen’s recommendations are complied with in practice, though they are not enforceable in Courts. The European Court of justice has developed a sophisticated jurisprudence concerning liability in damages regarding liability of public bodies for the loss caused by administrative acts. 112. We have highlighted all these facts only to indicate that rapid changes are taking place all over the world to uphold the rights of the citizens against the wrong committed by statutory authorities and local bodies. Despite the concern shown by this Court, it is unfortunate that no legislation has been enacted to deal with such situations. We hope and trust that utmost attention would be given by the legislature for bringing in appropriate legislation to deal with claims in public law for violation of fundamental rights guaranteed to the citizens, at the hands of the State and its officials.” 15. In Nilabati Behera (Smt.) Alias Lalita Behera (Through the Supreme Court Legal Aid Committee)-vs.-State of Orissa, (1993) 2 SCC 746 , the Apex Court observed that enforcement of constitutional rights and grant of redress embraces award of compensation as part of legal consequences of the contravention of constitutional rights. In Nilabati Behera (Smt.) Alias Lalita Behera (Through the Supreme Court Legal Aid Committee)-vs.-State of Orissa, (1993) 2 SCC 746 , the Apex Court observed that enforcement of constitutional rights and grant of redress embraces award of compensation as part of legal consequences of the contravention of constitutional rights. Award of compensation in a proceeding under Article 32 by the Apex Court or under Article 226 by the High Court is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. The Apex Court further observed that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for infringement and protection of such rights and such a claim based on strict liability made by resorting to a constitutional remedy provided for the infringement of a fundamental right is distinct from and in addition to the remedy in private law for damages for tort resulting from the contravention of a fundamental right. The defence of sovereign immunity being inapplicable and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available to the State when a citizen pursues a constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers and for enforcement of the fundamental right as claimed by resorting to the remedy in public law by recourse to Articles 32 and 226 of the Constitution of India. In this connection, the Apex Court referred to its earlier decision in the case of Rudul Sah-vs.-State of Bihar (1983) 4 SCC 141 . 16. The above principle of awarding damages in public law would be applicable only when the State or a public authority has clearly acted in breach of a citizen’s established fundamental right and when such person has no other redress in law. In the present case, the petitioner has not been able to establish any legal right that has been infringed. The above principle of awarding damages in public law would be applicable only when the State or a public authority has clearly acted in breach of a citizen’s established fundamental right and when such person has no other redress in law. In the present case, the petitioner has not been able to establish any legal right that has been infringed. I would have understood if the petitioner had been able to establish his right to be regularized as an organizer teacher. In such a case, one may have considered if there was inordinate delay in adjudicating the petitioner’s claim resulting in depriving the petitioner of the fruits of the prolonged litigation. The order impugned in the writ petition is a detailed order supported by reasons and has been passed after giving full opportunity of hearing to the petitioner. After a careful consideration of the petitioner’s prayer the Director of Madrasah Education rejected the petitioner’s prayer. Hence, I am in agreement with learned Counsel for the State that the petitioner has not been able to establish any legal right for breach of which the Writ Court may consider awarding damages to the petitioner. 17. I am not inclined to interfere with the order of the Director of Madrasah Education which is impugned in the writ petition as there is no apparent infirmity in the said order. It is well-established that the Writ Court is concerned with the decision making process and not with the merits of the decision taken by a public authority. The order impugned is a well-considered order and there does not appear to be anything arbitrary or perverse about the same. The order has been passed in full compliance with the principles of natural justice. 18. In view of the aforesaid, I am unable to grant any relief to the petitioner. However, the observations made herein are only for the purpose of deciding the instant proceeding. If the petitioner approaches a Civil Forum challenging the order of the Director of Madrasah Education and/or claiming damages against the respondent herein, such proceeding may be decided in accordance with law without taking into consideration the observations made in this judgment and order. 19. WP NO. 28310 (W) of 2014 and CAN NO. 1798 of 2017 are accordingly disposed of. 20. 19. WP NO. 28310 (W) of 2014 and CAN NO. 1798 of 2017 are accordingly disposed of. 20. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.