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2018 DIGILAW 221 (CAL)

Bhola Nath Midya v. State of West Bengal

2018-02-06

MIR DARA SHEKO

body2018
JUDGMENT : MIR DARA SHEKO, J. Mr. Chatterjee representing the writ petitioner in canvassing the alleged merit of the case of the writ petitioner submitted that the writ petitioner was appointed as the organising teacher on 17th March, 1980 for upgradation in the school, named and styled as Benali D.C High School, District-Nadia. Submitted, the school authority on 22nd February, 1994 approved said appointment and the inspection team shortly known as D.L.I.T submitted report on 23rd March, 1994. The said school since was upgraded w.e.f 1st February, 2010 the writ petitioner submitted representation on 15th July, 2003 for regularising but no result yielded. Then on 30.11.2009 another representation was made to the Secretary of the school for regularising his service. The similar step was taken on 20.09.2011 for regularising his service. Since no result yielded the writ petitioner filed the instant application in the year 2011 praying for rule of mandamus so that the writ petitioner be allowed to continue his service as the assistant teacher in the subject school and to regularise his service by releasing the salary as would be due to the writ petitioner. 2. During argument, to justify the merit of the case of the writ petitioner Mr. Chatterjee relied upon the case of Mrinal Kanti Karmar v. State of West Bengal decided by this Court on May 19, 2017 which is reported in 2017 (3) CHN (CAL) 652. During course of hearing, of course Mr. Chatterjee was enquired as to whether over the status of organising teacher he came across with any judgment delivered by the Division Bench of this Court, or not, to which Mr. Chatterjee instead of citing any Division Bench judgment or of the Apex Court, relied upon the aforesaid citation. Learned counsel for the state respondents submitted to dismiss the writ petition since the Government would not shoulder burden of any organising teaching or non-teaching staff of aided school who did not enter through selection process against declared vacancy. In this case one private respondent, he being the guardian of student of the school questioning also locus standi of the writ petitioner per contra submitted that the writ petition would be liable to be dismissed. Since the appointment of writ petitioner was not made through any selection process. 3. However though Mr. Chatterjee cited the case of Mrinal Kanti Kamar v. State of West Bengal Mr. Since the appointment of writ petitioner was not made through any selection process. 3. However though Mr. Chatterjee cited the case of Mrinal Kanti Kamar v. State of West Bengal Mr. Chatterjee but he could not specify the case of the writ petitioner by any document that under which category, as analysed by His Lordship in the said case, the petitioner would be falling Paragraphs 24, 25, 26, 27 and 28 from the case of Mrinal Kanti Kamar are set out respectively:— Paragraph 24:- The first is a school which is recognised and aided upto a certain level, say class VIII. It has a Managing Committee, which is recognised by the authorities. The Managing Committee is desirous of expanding the school by starting classes IX & X. It sets up the infrastructure, but does not appoint any teacher or non-teaching staff. It applies to the government for upgradation. It gets it. Then it applies for sanction of posts of teaching and non-teaching staff, to the government. Then it applies for recommendation of the School Service Commission to fill up the posts. This kind of a process, is conceived by the two division bench judgments of our Court in Manindra Nath Sinha v. The State of West Bengal reported in 2006 (2) CLJ (Cal) 489 and State of West Bengal v. Smritikana Maity reported in 2008 (1) CLJ (Cal) 316. Any other mode of recruitment would be illegal. Paragraph 25:- The second situation will arise when in such a school a group of persons usurp the power of the Managing Committee, constitute themselves as organising staff and start running classes IX & X, without any recognition or aid and without any sanction from the authority or the Managing Committee. This type of organising staff is condemned and has no place in the eye of law, according to the above two authorities. Paragraph 26:- The third situation is when the government itself is setting up a school in terms of the above circular. The State officials will identify an area for setting up the school, plan its layout and structure, obtain its recognition from the Board. They will set up an ad hoc committee and ask for sanction of the posts of teaching and non teaching staff from the government. The State officials will identify an area for setting up the school, plan its layout and structure, obtain its recognition from the Board. They will set up an ad hoc committee and ask for sanction of the posts of teaching and non teaching staff from the government. Thereafter they will undertake the task of recruitment to these posts on the recommendations of the School Service Commission and the 2005 Act. This case is also covered by the above two judgments. Paragraph 27:- The fourth situation arises where a school is recognised upto a certain level, say class VIII. The Managing Committee takes no steps for upgradation of the school to classes IX & X. This initiative is taken with the approval of the Managing Committee by another group of persons who set up the necessary infrastructure, organise the teaching and non-teaching staff and start operating the school as a private school. Then they apply for upgradation. Paragraph 28:- In the last case, which is like this case the government must be very careful at the time of upgrading the school. When the higher sections of the school were set up and made functional, they were run as a private institution, seeking upgradation. The school before upgradation had a body of teaching and nonteaching staff. When the government upgraded the school, it did so with its eyes wide open. It knew that the school was staffed. It had the option of saying that since the staff had already been appointed it would not upgrade the school or it would only upgrade the school after the organising staff was discharged. In this case, after upgradation of the school the government cannot say that the teachers and non-teaching staff which have been appointed in the school are all illegal appointees or that the organising staff of the school were illegally constituted. They cannot say that the school should throw out of employment this body of teachers and non-teaching staff who founded the school and start recruitment new persons. That would be very unjust to the persons lawfully organising a school and then seeking upgradation. Upon upgradation of the school the organisers cannot be thrown out of employment and replaced by a new recognised the number of posts in the school, approved it expressly or impliedly and then upgraded it. That would be very unjust to the persons lawfully organising a school and then seeking upgradation. Upon upgradation of the school the organisers cannot be thrown out of employment and replaced by a new recognised the number of posts in the school, approved it expressly or impliedly and then upgraded it. It cannot be said in that case on the upgradation of the school there was a vacancy or vacancies in the school to the filled up on the recommendation of the School Service Commission. 4. By giving the above analysed view the Co-ordinate Bench however accepted the proposition already held by this Court in the case of State of West Bengal v. Husna Banu, Rakhal Chandra Das v. State of West Bengal and also the case of Manindra Nath Sinha v. The State of West Bengal. 5. According to the assertion of the writ petitioner he was allegedly assured that after upgradation from junior high school to high school he would be allowed to join. But grievance was although the school was upgraded by order dated 23rd June, 2010 in terms of notification dated 05.02.2007 the writ petitioner was not allowed to join as regular staff of that school, or by regularising his service so rendered therein before. 6. Be that as it may, it appears from paragraph 9 of the writ petition that he had submitted his first representation on 15th July, 2003 and he thereafter remained without any further action till 30.11.2009 and submitted representation lastly on 20.09.2011 Therefore, the long absence for more than six years from the period from 15.07.2003 till 30.11.2009 would be tantamounting to delay and laches to secure any favourable merit on the lis. 7. The subject school is Government Aided and not a private school. Therefore if the status of an organising teacher is approved under the rule prevalent at that time for the purpose of an appointment and/or regularisation of his service in a Government Aided School, then and then only, his cause of action for the case could have been considerably attended with favour otherwise not. 8. In the appeal preferred by the State of West Bengal & Ors. against Tapan Kumar Das assailing the order dated 2nd March, 2017 delivered by the Co-ordinate Bench in writ petition no. 8. In the appeal preferred by the State of West Bengal & Ors. against Tapan Kumar Das assailing the order dated 2nd March, 2017 delivered by the Co-ordinate Bench in writ petition no. 25186 (W) of 2015 on the issue the Division Bench of this Court formulated the proposition, which is set out hereunder:— “if any teaching or non-teaching staff are appointed de hors the Rule then they would have no status whether they would have been working in the institution prior to or after recognition by the Government, because, any such organizing teaching or non-teaching staff had no approved status for being appointed unless they are appointed through regular selection process against the vacancy.” 9. It is obvious that the school being aided by the Government the subject school would be receiving the grant of financial assistance and, therefore, the rules and notifications as published time to time would be binding upon those Government or Government Aided School. The school committee thereby cannot act dehors the same by making charity with the Government money regularising appointment of any such teaching or non-teaching staff. 10. After discussing the case of Manindra Nath Sinha, taking note of the case of Bhudev Biswas, case of Gourhari Patra State of West Bengal v. Smritikana Maity, State of West Bengal v. Gopal Singh, Aloke Jyoti Maitra and the State of West Bengal, the Division Bench of this Court in appeal being MAT 582 of 2017 State of West Bengal v. Tapan Kumar Das taking note of the settled view on the issue again observed as follows:— “to regularize the process for appointment of teaching and non-teaching in the recognized educational institution, the West Bengal Act, (IV) of 1997 has been enacted with the name of the West Bengal School Service Commission Act, 1997. Apart from Government Circulars as published time to time, not being repugnant to the parent provision, Section 7 of such Act, 1997 specifies the function of regional Commission, whereas Section 8 provides the manner and scope of selection of persons and procedure for conduct of business of Commission and Section 9(1) and sub-section (2) has provided about recommendations of the Commission. The cumulative effect of the above provisions unambiguously have specified that in any recognized institution, be it of fully Government or, Government Aided against the vacancy of teaching or non-teaching staff in the institution there shall be advertisement followed by selection procedure and recommendation for approval of the appointment, failing which any act and action shall be de hors the Rule.” 11. In the said case of State of West Bengal v. Tapan Kumar Das (supra) dealt with by the Division Bench, apart from taking above note, as also held in paragraph nos. 14 and 15, its setting out hereunder would be the just and proper answer on the lis of the instant writ petition, as to why the case of Mrinal Kanti Kamar is distinguishable and the writ petitioner is not entitled to get benefit of the said case of Mrinal Kanti Kamar. Paragraph 14. Even in the Old West Bengal Secondary Education Act, 1963 concept of organizer teacher or organizer staff was also nowhere, meaning thereby it was neither in the Old Act nor in the present Act there was no concept of organizer teaching or non-teaching staff. Even in the new Act there is no saving clause so far as those so called organizer teaching or non-teaching staff for their absorption who were not in the place following selection procedure with a view to fill up the declared vacancy. Meaning thereby, any backdoor appointment had/has no legal sanctity. Therefore either to claim status or to provide status would be simply misnomer. Manindra Nath Sinha and Ors. being aggrieved by the judgment delivered by the Division Bench of this Court on September 6, 2006 preferred Civil Appeal No. 7897 of 2010 before the Supreme Court and upon hearing at length the Supreme Court comprised of three Judges Bench dismissed the appeal, order of which is set out:— “After having considered the submissions advanced at the hands of the learned counsel for the appellants, and also after having heard Mr. Bandopadhaya at great length, we are satisfied, that the impugned order passed by the High Court does not call for any interference by this Court. The instant appeal is accordingly dismissed.” Paragraph 15. Bandopadhaya at great length, we are satisfied, that the impugned order passed by the High Court does not call for any interference by this Court. The instant appeal is accordingly dismissed.” Paragraph 15. Therefore, in view of the above the deciding factors related distinctly with relevant period between the case of Bhudev Biswas and Manindra Nath Sinha as happened further in due course as a consequence of dismissal of civil appeal as stated above the issues regarding organizer teacher or staff in one hand and any appointment de hors the Rule or provision of Act on the other hand would remain abandoned for all time to come. Meaning thereby, in absence of any saving clause so far as the alleged organizer teacher or non-teaching staff, either in the Old Act, 1963, or, in the New Act, nothing can be done, if there appointment are not done maintaining the procedure. 12. Since the instant writ petition is covered by the judgment delivered by the Division Bench of this Court in MAT 582 of 2017 (supra) and, therefore, the writ petitioner being not entitled to get any benefit of the case of Mrinal Kanti Kamar v. State of West Bengal as cited, the writ petition is liable to be dismissed and is dismissed accordingly. 13. No order as to costs. 14. Urgent certified copy be supplied on priority basis if applied for.