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2018 DIGILAW 50 (CAL)

Swarnakamal Das v. State of West Bengal

2018-01-08

DIPANKAR DATTA, PROTIK PRAKASH BANERJEE

body2018
JUDGMENT : 1. The appellant is the unsuccessful writ petitioner in W.P. 14222(W) of 2010, which was dismissed by a learned Judge of this Court by judgment and order dated 24th August, 2016. 2. Shorn of unnecessary details, the facts giving rise to presentation of the writ petition are these. By memo dated 29th June, 2004, the Government of West Bengal in the School Education Department had created several additional posts of regular teachers as well as additional posts of part-time (contract basis) teachers in favour of newly upgraded higher secondary schools in different districts during 2004-2005. The list included two additional posts of regular teachers, one in Geography and the other in Education in respect of Kalai Gobardhan High School, Post Office-Kalukhara, District–Purba Medinipur (hereafter the school). The managing committee of the school instead of appointing a teacher on regular basis on the recommendation of the West Bengal School Service Commission, made a clear departure and issued an advertisement inviting applications from interested candidates for appointment on the post of assistant teacher in Geography on contract basis. The writ petitioner/appellant (hereafter the writ petitioner) responded to such advertisement and was ultimately selected for appointment. The offer of appointment dated 2nd September, 2004 issued by the secretary of the managing committee of the school reads as follows: “SUB:-Appointment as a Part-Time Teacher on Contractual Basis for Higher Secondary Section. Dear Sir, In reference to the contractual Agreement dated 29.8.04 I am to inform you that you have been selected as a Part-Time Teacher for teaching Geography in H.S. Section of this school against the sanctioned post of Geography Teacher vide Memo No. 73-SE(HS), dated 29.06.04 on purely temporary basis for a period of one (1) year with effect from the date of your joining on a consolidated pay of Rs. 2,000/- (Rupees two thousand) only per month. Your service may be automatically terminated without notice on completion of the said period of one (1) year or earlier, as provided in the contractual Agreement. You are requested to join the school to discharge your duties within 15 (Fifteen) days from the date of issue of this appointment letter.” 3. Having received the offer, the writ petitioner accepted it and joined the school on 7th September, 2004. Till 2009, he continued in such service upon renewal of his contract and was also paid honorarium for the services rendered by him. Having received the offer, the writ petitioner accepted it and joined the school on 7th September, 2004. Till 2009, he continued in such service upon renewal of his contract and was also paid honorarium for the services rendered by him. On or about 30th December, 2008, the Assistant Inspector of Schools (Secondary Education), Purba Medinipur inspected the school and detected the illegal appointment of the writ petitioner as a part-time teacher of the school although post had been created for being filled up on substantive basis. The secretary of the school was called upon by the assistant inspector to produce the memo authorising the school to appoint a part-time teacher. No such memo having existed, obviously the same could not be produced. This led the District Inspector of Schools (Secondary Education), Purba Medinipur (hereafter the D.I.) to issue a letter dated 23rd March, 2009 calling upon the secretary of the school to submit the post sanctioning memo with necessary papers. Once again, the secretary defaulted, resulting in the salary of the writ petitioner being stopped. In such factual backdrop, the writ petitioner had the occasion to invoke the writ jurisdiction of this Court seeking, inter alia the following relief: “a. A writ in the nature of Mandamus commanding the respondents specifically the respondent no. 3 to secure the service of the petitioner in the post of part time assistant teacher in Geography on contractual basis till he attains the age of 60 years. b. A writ in the nature of mandamus directing the respondents to release the salary of the petitioner forthwith which is withheld since the month of March, 2009. c. A writ in the nature of Mandamus commanding the respondents specially the respondent no. 4 and 5 to allow the petitioner to put his signature in the Daily Attendance Register of teachers forthwith which was stopped from the month of June, 2009. d. A writ in the nature of mandamus commanding the respondents for grant of enhanced honorarium to the petitioner as per Memo dated 23.04.2010 being Annexure P-10 to this writ petition and further commanding the concerned respondents to pay arrear salary to the petitioner forthwith. e. A writ in the nature of prohibition, prohibiting the respondent no. 6 to recommend any name in the school for the post where the petitioner is working since long back.” 4. e. A writ in the nature of prohibition, prohibiting the respondent no. 6 to recommend any name in the school for the post where the petitioner is working since long back.” 4. In support of the claim raised in the writ petition, reliance was placed by the writ petitioner on various circulars issued by the State Government/Director of School Education to the effect that the services of the part-time teachers, who were initially appointed on contract basis for a period of one year, would not be disturbed and that they shall be allowed to continue in service till they attain 60 years of age. 5. The writ petition came up for hearing on 27th July, 2010 before one of us (Dipankar Datta, J.). The order passed on that date is reproduced below for facility of appreciation: “On the assurance given by Mr. Balai Chandra Roy, learned Advocate General for the State of West Bengal that the petitioner having been appointed in terms of clause (ib) of sub-rule (1) of Rule 28 of the Management of Recognised Non-Government Institutions (Aided and unaided) Rules, 1969 and it being the policy of the Government that the part-time Contractual Teachers attached to Government aided Higher Secondary Schools cannot be terminated from service or shall not be released without obtaining the permission of the concerned District Inspector of Schools (SE), his service shall not be affected by reason of any development consequent to recommendation made by the Regional School Service Commission, the interim order passed earlier stands extended. The same shall continue until further orders of this Court. Let affidavit-in-opposition to the writ petition be filed within two weeks from date, reply, if any, thereto shall be filed within a week thereafter. The writ petition shall be listed under the heading “For Final Disposal” in the monthly list of September, 2010.” 6. Reference to clause (ib) in the order dated 27th July, 2010 appears to be a mis-print and parties before us are ad idem that the relevant clause should have been (ic). 7. The writ petition was contested by the State Government as well as the headmaster of the school, who came to be appointed in 2011. 8. Reference to clause (ib) in the order dated 27th July, 2010 appears to be a mis-print and parties before us are ad idem that the relevant clause should have been (ic). 7. The writ petition was contested by the State Government as well as the headmaster of the school, who came to be appointed in 2011. 8. It has, however, been brought to our notice that the Regional School Service Commission had initiated selection process for filling up the post of assistant teacher in Geography on substantive basis after salary of the writ petitioner was stopped and one Sumanta Mondal, a member of the scheduled caste, was appointed which has since been approved with effect from 3rd August, 2010 by the D.I. by memo dated 6th August, 2010. It is, therefore, clear that the post, which in terms of the 100 point roster was required to be filled up by a member of the scheduled caste, had in fact been filled up by appointing the writ petitioner on part-time (contract basis) although he does not claim to belong to such caste. 9. In course of hearing of the appeal, Mr. Sikdar, learned advocate for the writ petitioner/appellant has firstly contended that the writ petitioner should not be held responsible for any illegal act on the part of the school. After all, he had responded to the advertisement and he had absolutely no knowledge that the post was either required to be filled up on substantive basis and not on contract or by a scheduled caste candidate. According to him, the writ petitioner has become the victim of the illegal acts of the secretary of the school and he not being at fault, should not have been penalised. It was further submitted that the writ petitioner had spent the golden years of his life rendering service to the school and if at this distance of time he is denied relief, it would be impossible for him to survive in these hard days. 10. Secondly, Mr. Sikdar submitted that an assurance having been given by the learned Advocate General that the service of the writ petitioner would not be affected by reason of the recommendation of the Regional Commission, the respondents acted illegally and in effect frustrated the assurance given by the learned Advocate General before the Court. 10. Secondly, Mr. Sikdar submitted that an assurance having been given by the learned Advocate General that the service of the writ petitioner would not be affected by reason of the recommendation of the Regional Commission, the respondents acted illegally and in effect frustrated the assurance given by the learned Advocate General before the Court. According to him, the State was bound by the assurance given by the learned Advocate General and any action taken contrary to such assurance should have been nullified by the learned Single Judge. 11. Finally, Mr. Sikdar has placed reliance on the decision of the Supreme Court reported in 2016 (3) CHN (SC) 185 (Md. Zamil Ahmed vs. State of Bihar) to contend that the State cannot dig out the case of the writ petitioner after 5 years of appointment and seek to terminate his service thereby allowing the State to take advantage of its own mistake after passage of a long period of time. 12. We have not considered it necessary to call upon the learned advocates representing the respondents to answer. 13. Section 9 of the West Bengal School Service Commission Act ordains as follows : “Section 9 : Effect of Recommendation of Commission: (1) Notwithstanding anything contained in any other law for the time being in force or in any contract, custom or usage to the contrary, appointments to the posts of Teachers in a school shall be made by the managing committee, by whatever name called, or by the ad-hoc committee, or by the administrator, if any (where there is no managing committee), of that school on the recommendation of the Regional Commission having jurisdiction. (2) Any appointment of a Teacher made on or after the commencement of this Act in contravention of the provisions of this Act shall be invalid and shall have no effect and the Teacher so appointed shall not be a Teacher within the meaning of clause (p) of section 2.” (Underlining for emphasis by us) 14. After the introduction of the Act with effect from 1st November, 1997, amendments were carried out in the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 (hereafter the Management Rules). After the introduction of the Act with effect from 1st November, 1997, amendments were carried out in the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 (hereafter the Management Rules). Upon such amendments being made, Rule 28 of the Management Rules, laying down the powers of the managing committees of the institutions, reads as follows: “28: Powers of Committee–(1) In an aided institution the Committee shall, subject to the provisions of any Grant-in-aid Scheme or Pay Revision Scheme or any order or direction or guide-lines issued by the State Government or the Director in connection therewith and in force for the time being, have the power– (i) to appoint, subject to the provisions sub-rule(1a), teacher on there commendation of the West Bengal Regional School Service Commission within the local limit of the jurisdiction within which it shall exercise its functions under the West Bengal School Service Commission Act, 1997 : Provided that where the Committee is not in operation or existence, and where no Administrator has been appointed, for the reasons of pendency of any legal proceedings the Head of the Institution shall, with the prior approval of the concerned District Inspector of School (Secondary Education), appoint such teacher on behalf of the Committee or the Administrator, as the case may be, and the Committee or the Administrator shall, whenever starts functioning, by an order, ratify such appointment. (ia) to appoint, in accordance with the directions given by the director or in his behalf, teachers and other employees against the leave/lien/deputation vacancies, if available, within the sanctioned strength; (ib) to appoint, in accordance with the direction given by the Director or any officer authorised by him in his behalf, the Assistant Headmaster or the Assistant Headmistress against the vacancy, within the sanctioned strength from amongst the approved teachers. (ic) to appoint, in accordance with the directions given by the director or any officer authorised by him in this behalf, part time teachers on such terms and conditions as may be specified by the Government from time to time for a period of one year within a provision of renewal with a break, against the posts of part time teachers created for the Higher Secondary Section of Higher Secondary Schools. ……………………. …………………………..” 15. Undisputedly, the post of assistant teacher in Geography was sanctioned on 29th June, 2004. ……………………. …………………………..” 15. Undisputedly, the post of assistant teacher in Geography was sanctioned on 29th June, 2004. In terms of Section 9 of the Act read with Rule 28(1)(i) of the Management Rules, the post should have been filled up only on the recommendation of the regional commission having jurisdiction to recommend a suitable candidate. In clear departure of this statutory provision, the managing committee of the school proceeded to issue advertisement seeking to appoint a teacher on part-time (contract) basis. There could be and there is no dispute that the procedure so followed by the managing committee was in the teeth of the statutory provisions. It could be so that the writ petitioner did not have knowledge that the post had been sanctioned for being filled up on substantive basis but that does not entitle him to claim that he should be allowed to continue in service till he attains 60 years of age notwithstanding the illegality touching his appointment. The first contention of Mr. Sikdar, therefore, fails and is rejected. 16. In so far as the second contention of Mr. Sikdar is concerned, to our mind, the learned Advocate General who had represented the State at the time of admission of the writ petition might have been labouring under a mis-conception that the appointment of the writ petitioner was made in terms of Rule 28(1)(ic) of the Management Rules. In order to be a valid appointment in terms of Rule 28(1)(ic), what was required was creation of a post by the State Government to be filled up on part-time basis. If indeed the post was created for such appointment, what was required next is to follow the directions issued by the Director of School Education, or any officer authorised by him, to make the appointment on such terms and conditions, as the case may be. In the present case, neither has any memo been produced showing creation of a post to be filled up on part-time basis nor has any direction of the director been shown laying down the terms and conditions for such appointment. On the contrary, what we find is that a post was sanctioned to be filled up on substantive basis and creation of such post by memo dated 29th June, 2004 was in fact mentioned in the offer of appointment of the writ petitioner. On the contrary, what we find is that a post was sanctioned to be filled up on substantive basis and creation of such post by memo dated 29th June, 2004 was in fact mentioned in the offer of appointment of the writ petitioner. The managing committee was not justified in making appointment of a teacher on part-time (contract) basis on a post sanctioned by the Government to be filled up substantively. The subsequent recommendation made by the regional commission in favour of the said Sumanta Mondal for being appointed on a vacancy reserved for the members of scheduled caste, does not, in our view, amount to breach of the assurance given by the learned Advocate General since such assurance was given not even based on appreciation of the proper factual matrix of the case. 17. What remains is the third contention of Mr. Sikdar. We have looked into the decision of Md. Zamil (supra). In paragraph 14, the Court observed that in view of the peculiar undisputed facts of the case and keeping in mind the totality of the circumstances, the State was not justified in terminating the appellant’s service after he had put in 15 years of service. We perceive the decision as one given in exercise of Article 142 of the Constitution of India rather than a law laid down under Article 141 thereof having binding effect. 18. For the reasons aforesaid, we do not find any ground to interfere with the impugned judgment and order. The appeal fails and accordingly, stands dismissed. The connected application also stands dismissed. 19. Since the managing committee of the school has been instrumental in making an illegal appointment in favour of the writ petitioner and the writ petitioner has spent some years of his life rendering service to the school, he shall not only be at liberty to sue the managing committee of the school for damages but shall also be entitled to salary till the period the said Susanta Mondal was appointed on the basis of the recommendation of the regional commission, subject to verification in this regard by the D.I. If the writ petitioner is not entitled to any benefit of service rendered by him, for the period directed above, a reasoned order shall be passed within eight weeks of receipt of a copy of this order. 20. 20. Urgent photostat certified copy of this order, if applied for, be supplied expeditiously, after complying with all formalities.