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2018 DIGILAW 46 (CAL)

Swarup Pailan v. State of West Bengal

2018-01-08

MIR DARA SHEKO

body2018
JUDGMENT : Upon hearing Mr. Kamalesh Bhattacharya, learned senior Counsel being assisted by Mr. Kazi Sajjad Alam, representing the petitioner, and Ms. Chaitali Bhattacharyya, learned Counsel being assisted by Ms. Tuli Sinha, representing the State respondents, the matter is taken up for delivery of judgment. 2. Mr. Kamalesh Bhattacharya in the tune of the text of the writ petition submitted that the writ petitioner being Graduate in History and also M.A. in History with B.Ed. Training Course was appointed in Bankura Christian Collegiate School as an Assistant Teacher for the post of History under appointment letter dated 12th August, 2005 with retrospective effect from 6th June, 2005 on a consolidated salary of Rs. 700/- only per month subject to absorption in future against vacancy to be occurred in future. Mr. Bhattacharyya with reference to the certificates issued time to time respectively by the Headmaster and the Secretary of that school about devotion and sincerity of the petitioner submitted that despite his ability and efficiency since approval was not being accorded by the concerned District Inspector of Schools, the writ petitioner had to file W.P. 1975(W) of 2010 wherein this Court directed the Inspector to provide approval if the claim was found genuine and the relevant part of order dated 16th July, 2010 of this Court passed in said W.P. 1975(W) of 2010 is set out: "If the petitioner's claim is found to be genuine, necessary steps in accordance with law shall be taken for approval of his service and also for payment of salary. On the other hand, if the claim is not found to be genuine, the District Inspector shall pass a reasoned order and communicate the same to the petitioner." 3. Mr. Bhattacharyya submitted that in the similarly situated cases some other candidates like Bidyut Kr. Biswas, Goutam Dey were absorbed in the same school of course under the order of this Court, but the writ petitioner was deprived of by the respondent-District Inspector of Schools (S.E.), Bankura and the relevant part of the observations of the said District Inspector of Schools rejecting approval, as indicated by Mr. Bhattacharyya is set out: "In this case it is observed the school authority did not follow the procedure for selection of Assistant teacher. The Secretary however conceded of non pursuance of para 4 of G.O. No. 1314(50)-SE (S) dated 17th Sept. Bhattacharyya is set out: "In this case it is observed the school authority did not follow the procedure for selection of Assistant teacher. The Secretary however conceded of non pursuance of para 4 of G.O. No. 1314(50)-SE (S) dated 17th Sept. 2002 and also para 1(a), (b, (c) & (d) respectively of the same G.O On the ground of non-fulfillment of direction as laid down in G.O. No. 1(a), (b), (c) & (d) and para 4, the District Inspector of Schools (S.E), Bankura is not in a position to consider the prayer of the petition. Hence the matter is disposed of. All parties concerned be informed accordingly." 4. Mr. Bhattacharyya inviting attention of this Court to the text of affidavit-in-reply where the writ petitioner also annexed the copy of the judgment of the Division Bench as well as of the Single Bench of this Court over the alleged issue and since by the intervention of this Court the other candidates got ultimately approval to work as Assistant Teacher in the same school, raising point of discrimination prayed for allowing the writ of mandamus, so that, the approval of appointment of the writ petitioner can be favoured by the respondent authority. 5. Ms. Chaitali Bhattacharyya, learned Counsel for the State in the tune of the text of affidavit-in-opposition per contra submitted that the writ petition is liable to be dismissed, since, the writ petitioner did not come with clean hands. Submitted that though the writ petitioner is said to have received the appointment letter dated 12th August, 2005 with retrospective effect from 6th June, 2005 but by his assertion in paragraph 3 of the writ petition it was claimed that he was appointed on 2nd May, 2005. Taking such disparity of dates, Ms. Bhattacharyya tried to impress upon that the petitioner managed to get entry in the school for the post of Assistant Teacher for the history subject in collusion with the school authority and the certificates as issued respectively by the Headmaster and the Secretary were the outcome of such collusion. Further inviting attention to the Special Rules for Management of Secondary School established and run by a Christian Teacher and Missionary Society Board, Ms. Further inviting attention to the Special Rules for Management of Secondary School established and run by a Christian Teacher and Missionary Society Board, Ms. Bhattacharyya submitted that the School Committee obviously would be enjoying the power of appointment and approval of the teaching and nonteaching staff for management of the school, but, said power would be enjoyed subject to Rules and Orders issued time to time by the State Government, as because, financial burden would have to be borne by the State. Supporting the impugned order passed by the District Inspector of Schools(S.E.), Ms. Bhattacharyya inviting attention to the Court to the Memo No. 1314 dated 17th September, 2002 issued by the Government of West Bengal submitted that the impugned order while clearly indicated that there was violation of Rule 1(a)(b) and there was no indication of following any mode of selection process for appointing the writ petitioner against any declared vacancy then declinement of approval as held by the District Inspector of Schools would not be said to be illegal in any manner. 6. Relying upon the case of Brij Mahan Lal v. Union of India and Ors., reported in (2012) 6 SCC 502 specially in paragraph 80 out of paragraphs 78 to 81, Ms. Bhattacharyya submitted that had there been no vacancy at the relevant time of appointment of the writ petitioner, then any right of claim to the post would not be said to have been matured in favour of the writ petitioner, and therefore, when had there been no sanctioned post at the relevant time the entire arrangement to appoint the writ petitioner was ad-hoc in nature and said ad-hoc arrangement could not create any right and obligation in favour of the appointee. Ms. Bhattacharyya also relied upon another case of Union of India v. A.S. Gangoli and Ors., reported in (2007) 6 SCC 196 and invited attention to its paragraph 17 to ventilate the merit of her argument that when similar matters subsequently cropped up and the magnitude of the financial implications was realised, the State would not be prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. 7. 7. Now to reply in turn, the fact, as per claim of the writ petitioner, reveals that the Headmaster, Bankura Christian Collegiate School had issued appointment letter in his favour on 12th August, 2005 appointing him as an Assistant Teacher for the post of History in the said Collegiate School. Although within that letter there was no indication as to why it was made retrospective, but, the letter of appointment goes to show that effect of such arrangement was given on and from 6th June, 2005 as the same Assistant Teacher. The letter further gives impression that by such appointment his consolidated salary was fixed only at Rs. 700/- dis-entitling him to any other allowance and monetary benefit, however, reserving his liberty to get proportionate or casual medical leave in terms of duration of service to be rendered by him. 8. It was also indicated in the said appointment letter that he was at liberty even to resign by giving one month's prior notice, alternatively, in future, if vacancy occurs, and, if management satisfies with his performances and services he would be absorbed as a permanent teaching staff in that institution and his service would be continued under the consideration of Minority Linguistic Educational Institution of the Constitution of India and full scale of pay from the State Government would be borrowed only after his approval. So, in one way the letter is found otherwise silent as to why retrospective effect from 6th June, 2005 was mentioned or whether he was so appointed by undergoing with selection process. Nonetheless, in other way it was made clear in that appointment letter that in any case at the end approval would be necessary. 9. Admittedly, the school, being run by the minority, is fully aided by the Government. Therefore, no doubt can remain that so far as its management is concerned, though it would be governed by the special rules, it would be subject to rules and orders issued from time to time by the State Government or any other authority competent to do so under the provisions of the Act or rules framed therein. Therefore, there may not be any further doubt that before appointment either of teaching or non-teaching staff in such institution, there shall be declaration of vacancy at the beginning followed by proper advertisements. 10. Therefore, there may not be any further doubt that before appointment either of teaching or non-teaching staff in such institution, there shall be declaration of vacancy at the beginning followed by proper advertisements. 10. Rule 1(a) and (b) of the Notification No. 1314 dated September 17, 2002 is set out:- "1(a)All appointments of Teaching Staff including Headmaster/Headmistress/Assistant Headmaster/Assistant Headmistress shall be made after a proper selection process as per permission of the District Inspector of Schools (S.E.) of the concerned district. (b) No appointment in any post will be made if the post is not sanctioned by the authority. All vacancies should be filled up as per reservation rules made by the Government of West Bengal" 11. The aforesaid mode of selection of all kind of teachers shall be made after a proper selection process as per permission of the District Inspector of Schools (SE) of the concerned district as laid down under Rule 1(a) of the said notification. Rule 1(b) is more specific to indicate that "no appointment in any post will be made if the post is not sanctioned by the authority. All vacancy should be filled up as per reservation rules made by the Government of West Bengal." By the impugned order the District Inspector of Schools had rejected the approval of the writ petitioner on two grounds - paragraph 4 of G.O. No. 1314 (supra) was not followed, and, paragraphs 1(a), 1(b), 1(c) and 1(d) respectively also were not followed. 12. Since hereafter I took the opportunity to deal with the merits of the documents and assertions advanced by the writ petitioner, let me set out paragraph 4 of Notification No. 1314 (supra) in entirety:- "(4) Assistant Teacher: In case of Selection of Assistant Teacher a Selection Committee is to be formed with the following members. (i) The Secretary of the School Managing Committee/Administrator of the Institution. (ii) Approved Headmaster/Headmistress/Teacher-in-Charge of the Institution. (iii) President of the School Managing Committee. (iv) Two External Experts in the subject. (v) One Teacher Representative to be nominated by the School Managing Committee. After obtaining prior permission from the Dist. Inspector of Schools advertisement in a State Level Daily Newspaper will have to be published as in Para 2(a). No candidate will be treated eligible if he or she has no valid Registration No. in any Employment Exchange in West Bengal. (v) One Teacher Representative to be nominated by the School Managing Committee. After obtaining prior permission from the Dist. Inspector of Schools advertisement in a State Level Daily Newspaper will have to be published as in Para 2(a). No candidate will be treated eligible if he or she has no valid Registration No. in any Employment Exchange in West Bengal. Screening of applications will be made by the Selection Committee if the number of applicants exceeds 20 per post in the same manner as in Para 2(a). A record of applicants received through advertisement should be preserved and will remain open for verification by the Director of School Education, West Bengal, or his authorised person, if necessary." 13. Therefore, the aforesaid notification and the special rules indicated above have given a composite indication in the case of the Government aided school. In the case on hand it is a Government aided school run by minority, shall have to be guided with the aforesaid rules, regulations or clauses. It is obvious that upon complaint of any statutory violation etc. the writ court will overview the matter it will examine in one hand about genuinity in the text of complaint by making acid test in the perspective of statutory provisions, and on the other hand, will examine as to whether the authority in discharging the act, complained of, whether made any departure or violated the statutory provisions causing miscarriage of justice. Now in the appointment letter itself which was issued by the school authority or received by the writ petitioner on August 12, 2005 wherein retrospective effect was given from June 6, 2005 it suffers from any reasonable indication as to why the retrospective effect was so given. The writ petitioner further in his assertion claimed that he was appointed with effect from May 2, 2005 which is absolutely in derogation to the text of the appointment letter keeping the court into confusion as to on which the court should stand to accept as his alleged date of appointment. Let it take as granted for the sake of argument that sometime in the middle of 2005 the writ petitioner was appointed by the school authority. It was already indicated that by such appointment he was allowed a consolidated salary of Rs. Let it take as granted for the sake of argument that sometime in the middle of 2005 the writ petitioner was appointed by the school authority. It was already indicated that by such appointment he was allowed a consolidated salary of Rs. 700, meaning thereby, he was not provided with the pay-scale which indicates prima facie that he was not selected for appointed against any vacant post for which there was ever any advertisement specifying pay scale. That is why in the appointment letter itself there is indication that the said appoint was temporary in nature and in future if vacancy would occur, subject to satisfaction of his performance and service he would be absorbed. 14. Of course, the writ petitioner has come up with the second round litigation since by previous WP No. 1975(W) of 2010 he got the order of this court by which this court directed the authority that approval of service, appointment and grant of his salary shall be taken in accordance with law if the petitioner's claim would be found as genuine. So, the terms 'in accordance with law' means if the appointment was made dehors the rules and regulations then question of approval of service by such appointment or grant of pay scale would remain beyond reach. It was therefore made clear in said direction of the Court, that if the claim would not be found genuine, the District Inspector of Schools would pass a reasoned order and indicate the same to the writ petitioner resulting which the impugned order was passed. 15. Some instances have been placed on behalf of the writ petitioner and I have gone through the same. In the case of Bidyut Kumar Biswas in WP No. 501(W) of 2011 there was refusal in granting approval to the appointment in favour of said Bidyut Biswas who was working to the Minority Linguistic Educational Institution. Argument was advanced before this court of course with reference to Government Order No. 1314 dated September 17, 2002 (supra). The court in the said writ petition observed and ultimately disposed of the writ petition by passing favourable order and direction which is set out hereinunder:- "Even Rule 7(1) of the special rules gives power upon the School Committee to determine the teachers and non-teaching employees. The court in the said writ petition observed and ultimately disposed of the writ petition by passing favourable order and direction which is set out hereinunder:- "Even Rule 7(1) of the special rules gives power upon the School Committee to determine the teachers and non-teaching employees. Nowhere in the said special rule a condition is attached that an appointment should be made by the Minority Linguistic Educational Institution to the post of a teacher with prior approval of the District Inspector of Schools (S.E). Appointment of a teaching and non-teaching staff is one of the basic ingredients under the Management and administration and those are being immuned from being curtailed under the constitutional mandate. 16. The action of the District Inspector of Schools (S.E) in rejecting the prayer for approval to the appointment of the petitioner was challenged on the plea that the prior permission for creation of the posts was not sustainable and would not be said to be legal and valid. 17. Thus the impugned memo bearing No. 132/1/B/LS dated 24.12.2009 was held not legal and valid and was therefore quashed and set aside. 18. The District Inspector of school was directed accordingly to grant approval to the appointment of the petitioner within six weeks from the date of communication of said order. 19. The said authority was directed to give the actual financial benefit to the petitioner of that case from the date of approval and the same would be calculated by giving a notional benefit from the date of the appointment of the petitioner to the post of Assistant Teacher by the Managing Committee of the Educational Institution. 20. Mr. Bhattacharya also referred to MAT No. 954 of 2015 wherein the case of Bidyut Kumar Biswas was referred to and the Division Bench took the similar view as was taken in the case of Bidyut Kumar Biswas v. State of West Bengal (supra) directing the District Inspector of Schools, Bankura to grant necessary approval to the appointment of the appellant-petitioner like Bidyut Kumar Biswas. To show another similarly situated case the case of Gautam Dey v. State of West Bengal & Ors. in WP. No. 27033(W) of 2014 has been cited by Mr. To show another similarly situated case the case of Gautam Dey v. State of West Bengal & Ors. in WP. No. 27033(W) of 2014 has been cited by Mr. Bhattacharya wherein MAT No. 954 of 2015 vis-a-vis the case of Bidyut Kumar Biswas in WP No. 501(W) of 2011were referred to, and, the court in WP No. 27033(W) of 2014 in the case of Gautam Dey passed the similar direction upon the District Inspector of Schools (SE), Bankura for approval of the appointment holding that the order dated November 12, 2010 would not be sustained in the eye of law. 21. In the case of Bidyut Kr. Biswas (supra) however the relief was granted to its writ petitioner with the observation that in the Special Rules for management of Secondary Schools established and run by the Minority Institutions no condition was attached that an appointment should be made by the minority linguistic educational institution to the post of teacher with prior approval District Inspector of School (S.E.). The preamble of said special rules is set out hereunder:- "Special Rules" for management of Secondary Schools established and run by a Christian Church/Missionary Society (Board)/Religious Society/subsidiary Trust or their successors-in-law in West Bengal. No.641-Edn(S)/8B-3/60 Pt. VII-23rd May 1974.- In exercise of the power conferred by rule 33 of Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969, the Governor, on the application of West Bengal Association of Christian Schools, on behalf of a class of Institutions to which the provision of Article 30 of the Constitution of India applies, is pleased hereby to make the following other rules for the composition, powers and functions of the Managing Committees of such class of Institutions. 22. The text of above preamble, therefore, established that it would be applicable for the minority Educational Institution, be it aided or unaided and not applicable to the schools for which special set of rules have been framed and approved by the Government. This is needless to mention that the salary of the teaching and non-teaching staff of the subject school would have to be granted as per the prescribed scale of pay. Those teaching or non-teaching staff, of course would have to be placed in the institution against sanctioned vacancy. This is needless to mention that the salary of the teaching and non-teaching staff of the subject school would have to be granted as per the prescribed scale of pay. Those teaching or non-teaching staff, of course would have to be placed in the institution against sanctioned vacancy. Clause 7 of the Special Rules (supra) as prescribed is set out:- Powers of the School Committee.- (1) Subject to any rules or orders issued by the State Government or any other authority, competent to do so under the provisions of any Act or rules framed thereunder, the School Committee shall exercise powers in respect of the following matters namely : (a) Appointment of employees (other than Headmaster or Headmistress and Assistant Headmaster or Assistant Headmistress) and to prescribe scales of pay and allowances; Clause 7 sub-clause 2(i) and (iv) are also relevant to set out in the context. Subject to the direction of the State Government, in respect of every aided institution, the School Committee shall have power- (i) to determine the number of teachers and non-teaching employees; (iv) to approve appointment of teachers; 23. The Notification No. 1314 dated 17th September, 2002 issued by the Government of West Bengal School Education Department Secondary Branch may be also relevant for further discussion and most particularly its preamble should be set out:- In exercise of the Power conferred under Rule 33 of the Rules for Management of Recognised Non-Govt. Institutions (Aided & Unaided), 1969 as amended from time to time read with Rule 7(i) of the special Rules for Management of Secondary Schools established and run by a Christian Church Missionary Society (Board), Christian Religious Society, etc. to which the provision of Article 30 of the Constitution of India applies, the Governor is pleased to make rules in terms of Government Order No. 641- Edn.(S) dated 23.05.1974 as amended from time to time for compliance by the above mentioned recognised aided and D.A. getting Non-Govt. Secondary Institutions in connection with recruitment of Teaching & Non-Teaching Staff including Headmaster/Headmistress/Assistant Headmaster/Assistant Headmistress, which the Department of School Education, Government of West Bengal, accepts to have been established and administered by 'Minority'. 1(a) All appointments of Teaching Staff including Headmaster/Headmistress/Assistant Headmaster/Assistant Headmistress shall be made after a proper selection process as per permission of the District Inspector of Schools (S.E.) of the concerned district. 1(a) All appointments of Teaching Staff including Headmaster/Headmistress/Assistant Headmaster/Assistant Headmistress shall be made after a proper selection process as per permission of the District Inspector of Schools (S.E.) of the concerned district. (b)No appointment in any post will be made if the post is not sanctioned by the authority. All vacancies should be filled up as per reservation rules made by the Government of West Bengal. 24. The aforesaid preamble therefore has reference of the same Rule 7 of the Special Rules for Management of the Secondary Schools established by the Minority group to which Article 30 of the Constitution of India would apply, therefore, the relevant provisions of the Special Rules (supra) having been merged within such subsequent Notification No. 1314 dated 17.09.2002 (supra) giving direction for appointment of all teaching staff as available from its Clause 1(a) and (b), and such selection would have to be made by the Selection Committee to be formed as prescribed under Clause 4 of said notification, in the body of the judgment of the cases cited before this Bench are not indicative as to whether those were followed or not within the facts and circumstances of those cases. 25. At the very outset, this court is also not shy to point out that the writ petitions of all those cases are not placed before this court for examining the facts and circumstances of those cases to look eye to eye with the submissions as to whether the case of the present writ petitioner is also standing on the similarly situated facts and circumstances. Of course, the rules laid down for Management of Secondary Education as well as Notification No. 1314 dated September 17, 2002 were taken there into account. Of course, the rules laid down for Management of Secondary Education as well as Notification No. 1314 dated September 17, 2002 were taken there into account. But with due respect, the discussion about applicability of those rules as to whether at the beginning there was prior permission requiring declaration of vacancy or not with regard to sanctioned post, and, whether there was wide advertisement for inviting applications through different channels, or, whether the selection process was as per norms prescribed by the rules was conducted, or not, and, whether through the selection process those petitioners secured position for getting selected or not, those were not available to examine with the fact of the case on hand, so that one can understand clearly that the case of the present writ petitioner is similarly situated with the facts and circumstances of the petitioners of those cases. 26. At this juncture, paragraph 80 from the case of Brij Mohan Lal v. Union of India & Ors. reported in (2012) 6 SCC 502 is set out:- "80. Thus it follows that for a person to have a right to the post, the post itself has to be a permanent post duly sanctioned in the cadre. The person should be permanently appointed to that post. Normally, it is only under these circumstances that such an employee gets a right to the post, but even when a temporary employee is appointed against a permanent post, he could get a right to the post provided he had at least acquired the status of a quasi-permanent employee under the relevant Rules. Where neither the post is sanctioned nor is permanent and, in fact, the entire arrangement is ad hoc or is for an uncertain duration, it cannot create any rights and obligations in favour of the appointees, akin to those of permanent employees." 27. Now examining the present facts in the perspective of the principle enunciated by the apex court there cannot be any doubt that the writ petitioner while was appointed sometimes in the year 2005 he failed to show any document that he was so appointed in accordance with rules against any vacant sanctioned post. Now examining the present facts in the perspective of the principle enunciated by the apex court there cannot be any doubt that the writ petitioner while was appointed sometimes in the year 2005 he failed to show any document that he was so appointed in accordance with rules against any vacant sanctioned post. On the contrary, the document appended to the affidavit in opposition, the copy of the newspaper dated March 4, 2008 shows that to fill up some permanent vacancy of assistant teachers for the Bankura Christian Collegiate School there was advertisement, of which one post of assistant teacher was for History. Therefore, in absence of any document to counter such selection process the court cannot accept the contention that in the year 2005 there was ever any vacant sanctioned post for the post of History against which the writ petitioner was said to have been selected for appointment in accordance with law. On scrutiny of the appointment letter, as the court also has got the opportunity to see the same, it was offered as temporary in nature in lieu of consolidated salary of Rs. 700/- only which ought not to be, had there been any appointment against any permanent vacancy. 28. The question naturally may arise again that dealing with the self-same special rules or notification when this court on earlier occasion or even in appeal the Division Bench directed the Director of School Education for according approval in respect of the appointment in favour of the respective writ petitioners of those cases whether the same would act as res judicata in this case? To answer on the point some relevant portion from paragraph 17 of the case of Union of India v. A.S. Gangoli & Ors. reported in (2007) 6 SCC 196 are set out:- ".........However, when similar matters subsequently crop up and the magnitude of the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgement in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a 'pick and choose' method only to exclude petitioners on account of mala fides or ulterior motives." 29. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a 'pick and choose' method only to exclude petitioners on account of mala fides or ulterior motives." 29. Principle would be, had there been illegality and wrong committed earlier, and if it is detected, then requires rectification instead of recurring same wrong and illegality. 30. Had there been full dealing with the provisions as laid down in paragraph 4 of Notification No. 1314 (supra) as well as paragraph 1(a), 1(b), 1(c) and 1(d) coupled with the provisions of the special rules applicable for the purpose, and, the court in earlier cases would then arrive at the conclusion that permission or approval would not be necessary, in that event, this court obviously might have thought of its binding effect. When the question of binding precedent is coming on the way, the court while considering the facts and circumstances of the case on hand, shall examine as to how far the ratio-decidendi would be applicable in the case on hand. During such examination, the court in the case on hand should take note of the lis and the relevant rules and regulations applicable therein, and after exercising such process if the lis decided in earlier cases be found identical to the lis in terms of the fact of the case then the question of binding precedence could have come in. On the other hand, this Court takes note that the writ petitioner himself did not come with clean hands right from giving his exact date of appointment, and there being no selection procedure in accordance with rule at that relevant time, there being no step of taking any prior permission, there being no sanctioned vacancy for the post for which the writ petitioner claimed appointment since 2005, the financial burden upon the State cannot be mounted by the order of the court. With such observations the cases on which Mr. Bhattacharya tried to impress upon this court are distinguished. In view of above, the case of the writ petitioner being devoid of merit, the writ petition stands dismissed. No order as to costs. Certified photocopy of this order, if applied for, shall be given to the parties.