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2017 DIGILAW 856 (CAL)

Gyan Bharati Vidyapith v. State Of West Bengal

2017-11-09

TAPABRATA CHAKRABORTY

body2017
JUDGMENT : 1. The Court : As common questions of law and fact are involved in both the writ petitions, the same are taken up for analogous hearing. The writ petition being WP No.482 of 2017 [hereinafter referred to as the first petition] has been preferred by the authorities of Gyan Bharati Vidyapith [hereinafter referred to as the said school] challenging an order dated 19th June, 2017 passed by the Ad hoc Committee of the West Bengal Board of Secondary Education [hereinafter referred to as the said Board]. The other writ petition being WP No.517 of 2017 [hereinafter referred to as the second petition] has been preferred by three Assistant Teachers of the said school praying for a direction upon the school authorities to allow them to join the school in compliance of the order dated 19th June, 2017 passed by the Ad hoc Committee of the said Board. 2. Shorn of unnecessary details, the facts are that the school authorities initially passed an order of suspension on 29th July, 2016 against the petitioners in the second petition. The said order of suspension was challenged by a writ petition being WP No.15333 (W) of 2016 on a ground that the order of suspension has not been sent to the competent authority in terms of the Management of Recognised Non-Govt. Institutions (Aided and Unaided) Rules, 1969 [hereinafter referred to as the Management Rules]. The said petition was allowed by an order dated 22nd September, 2016 setting aside the order of suspension. However, leave was granted to the school authorities to proceed in accordance with the provisions of law by passing appropriate orders. Subsequent thereto, the school authorities again issued an order of suspension on 29th November, 2016. The same was forwarded by the school authorities to the said Board in terms of the Management Rules for approval. The said order of suspension was again challenged by the suspended teachers and by an order dated 24th January, 2017 the Court directed the Board to pass an appropriate order, in accordance with law. Pursuant to the said order, an order of disapproval of the suspension order was passed by the President on 28th March, 2017. The said order of suspension was again challenged by the suspended teachers and by an order dated 24th January, 2017 the Court directed the Board to pass an appropriate order, in accordance with law. Pursuant to the said order, an order of disapproval of the suspension order was passed by the President on 28th March, 2017. The said order of disapproval of suspension was challenged by the school authorities on the ground that the Court on an earlier occasion directed the Board to consider but the order has been passed by the President and, as such, the same is not sustainable. The said writ petition being WP No.277 of 2017 was disposed of by an order dated 18th May, 2017 setting aside the order of disapproval of suspension dated 28th March, 2017 and directing the Board duly constituted in accordance with the provisions of the 1963, Act to take a fresh decision in terms of the order dated 24th January, 2017 passed by WP No.1163 of 2016. Pursuant to the said order, a notice was issued to the school authorities to participate in the hearing and in response thereto, the school authorities through their learned advocate issued a letter on 13th June, 2017 stating that the Ad hoc Committee had no jurisdiction to consider the issue of approval/disapproval of order of suspension and that as such participation in the hearing would be useless. Accordingly, the school authorities were not present in the hearing conducted on 19th June, 2017 when the final order was passed. 3. Mr. Mazumdar, learned advocate appearing for the school authorities submits that the impugned order suffers from a jurisdictional error in as much the Court directed the Board to hear the matter and pass appropriate order but the order has been passed by the Ad hoc Committee. 4. He further submits that without replying to the letter 13th June, 2017 issued on behalf of the school raising the issue of jurisdiction, the Ad hoc Committee passed the final order in their absence and as such the said order is violative of the principles of natural justice. Prior to such hearing, the Board also did not forward any notification to the school authorities as regards the competence of the Ad hoc Committee to decide the issue. 5. He further contends that the impugned order devolves into extraneous and non-germane issues. Prior to such hearing, the Board also did not forward any notification to the school authorities as regards the competence of the Ad hoc Committee to decide the issue. 5. He further contends that the impugned order devolves into extraneous and non-germane issues. It is well settled that appointment of a Drawing and Disbursing Office (hereinafter referred to as DDO) in a school does not tantamount to super-session of the Managing Committee. The DDO is conferred only an authority to deal with the financial matters and, as such, the Ad hoc Committee erred in law in observing that the Managing Committee had no locus standi to pass the order of suspension. 6. He further submits that the observation in the impugned order to the effect that the school authorities had suspended the teachers on the basis of ulterior motive is absolutely unfounded and premeditated. 7. Mr. Mitra, learned advocate appearing for the Board submits that by the West Bengal Board of Secondary Education (Amendment) Bill, 2016, a new Section 4A was inserted after Section 4 of the West Bengal Board of Secondary Education Act and by the same the President of the Ad hoc Committee had been authorised to exercise all the powers and functions of the President of the Board and the Ad hoc Committee had been authorised to exercise all the powers and functions of the Board and the Committee constituted by the Board under the Act. By notification dated 29th July, 2016, the Governor appointed “the 29th day of July, 2016”, as the date of effect of the West Bengal Board of Secondary Education (Amendment) Act, 2016 (hereinafter referred to as the Amendment Act of 2016). Subsequent thereto, by a notification dated 30th July, 2016, the Ad hoc Committee was constituted and on the basis thereof Ad hoc Committee was competent to pass the order dated 19th June, 2017. 8. Drawing the attention of this Court to order dated 19th June, 2017, Mr. Mitra submits that the District Inspector of Schools (hereinafter referred as the D.I.) vide memo dated 18th August, 2016 had mentioned that the Managing Committee of the said school is defunct for a long time and for such reason a D.D.O. was appointed and as such, there is no infirmity in the observation to the effect that a defunct Managing Committee has no locus standi to issue the order of suspension. 9. Mr. 9. Mr. Anjan Bhattacharya, learned advocate appearing for the petitioners in the second petition submits that at the time of issuance of the earlier order on 28th March, 2017, the teacher-in-charge of the said school was present at the time of hearing. It would also be explicit from the said order that a person claiming himself as a Principal of the school appeared during the hearing who himself admitted that he is an unapproved teacher. On 28th March, 2017 the school authorities were thus represented and their submissions were taken note of. 10. He further submits that there is no infirmity in the observation in the impugned order to the effect that the Managing Committee is defunct inasmuch as after the alleged election of the Managing Committee of the said school, the Form 4 (MC) was never sent to the office of the D.I. In support of such contention he has drawn the attention of the Court to page 39 of the first petition and to the reply given by the D.I. to an application under the Right to Information Act, 2005, annexed at page 47 of the second petition wherein it has been stated by the D.I. that no such letter at page 39 of the first writ petition was available in the office record. A Managing Committee of a school would be having no authority to function unless a 4 (MC) Form is served upon the competent authority within the time specified in the election regulations and as such there is no infirmity in the observation that the Managing Committee was defunct. 11. Heard the learned advocates appearing for the respective parties and considered the materials on record. 12. The contention of Mr. Majumder that the order impugned dated 19th June, 2017 suffers from a jurisdictional error is not acceptable to this Court in view of the provisions of the Amendment Act of 2016 and the notification towards constitution of the Ad hoc Committee. A perusal of the provisions of Section 4A(2) of the Amendment Act of 2016 clearly reveals that the Ad hoc was authorised to pass the order dated 19th June, 2017. 13. Records reveal that on 28th March, 2017 the teacher-in-charge of the said school attended the hearing. He was asked to produce relevant documents but he failed to do so. A perusal of the provisions of Section 4A(2) of the Amendment Act of 2016 clearly reveals that the Ad hoc was authorised to pass the order dated 19th June, 2017. 13. Records reveal that on 28th March, 2017 the teacher-in-charge of the said school attended the hearing. He was asked to produce relevant documents but he failed to do so. The school authorities were duly intimated that pursuant to the direction of the Court, hearing would be conducted on 19th June, 2017 but they chose not to appear on a purported ground that the Ad hoc Committee had no jurisdiction to hear the matter though they could have appeared and raised the issue of jurisdiction. In such view of the matter, the argument of Mr. Majumder to the effect that the school authorities were not granted any opportunity of hearing is not acceptable to this Court. 14. In answer to the Court’s query as to whether 4 (MC) Form was submitted to the Board through the D.I., no document could be produced by the school authorities. In terms of Rule 12 of the Management Rules, subject to approval of the Executive Committee of the Board, the tenure of a Managing Committee is of three years which can be extended in exceptional circumstances for a maximum period of two years. No document towards such extension also could be produced by the school. Furthermore, it appears that the second suspension order was issued on 29th November, 2016 whereas the charge-sheet was issued on 17th March, 2017, admittedly more than 90 days after issuance of the order of suspension. In terms of Rule 28(9)(vii)(a) of the Management Rules an order of suspension shall automatically stand withdrawn in case proceedings are not drawn within 90 days save and except in exceptional circumstances. No such exceptional circumstances could be established by the school authorities. 15. For the reasons as discussed above, this Court does not find any infirmity in the order dated 19th June, 2017 impugned in the first petition being WP No.482 of 2017 and the said writ petition is, accordingly, dismissed. 16. The second petition being WP No.517 of 2017 is disposed of directing the school authorities to allow the petitioners to join their respective posts within a period of two weeks from the date of communication of this order. There shall be no order as to costs. 17. 16. The second petition being WP No.517 of 2017 is disposed of directing the school authorities to allow the petitioners to join their respective posts within a period of two weeks from the date of communication of this order. There shall be no order as to costs. 17. Urgent certified photocopy of this order, if applied for, be made available to the parties subject to compliance with all requisite formalities.