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2019 DIGILAW 256 (CAL)

Biswajit Bera v. State of West Bengal

2019-02-21

I.P.MUKERJI, MD.NIZAMUDDIN

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JUDGMENT : 1. This is an application for review of the judgment and order dated 20th October, 2009. The school in question was State aided and recognized. 2. Some members of the teaching staff of the School preferred a writ application claiming declaration that they were organizer teachers and claiming regularization of service. 3. Mr. Bhattacharjee drew this courts attention to a circular dated 30th September, 1992 of the Government of West Bengal that upon upgradation of a junior high school, qualified teaching and non-teaching staff appointed by the school for running the unrecognized higher classes could be considered as organizing staff for approval of their appointment. 4. During the validity period of the aforesaid circulars, in 1994, the applicants were appointed as teachers of the school. At this time it was recognized upto class VIII. These teachers were appointed in the unrecognized classes IX and X. On 1st November, 1997 the School Service Commission Act came into force. In 2000 Class IX was recognized by the Commission followed by Class X in 2001. 5. The applicants preferred a writ application claiming the above declarations that they were organizing teachers and entitled to regularization (W.P. 14413(W) of 2002). It was dismissed by a learned Single Judge of this Court on 6th September, 2005. The applicants preferred an appeal before the Division Bench of this Court. Even there, they did not find any success. The Division Bench on 20th October, 2009 dismissed the appeal with the following observations:- "We have considered the rival contentions. We find that all the issues raised by Mr. Pahari were considered by two Division Benches in the cases of Smritikana Maiy (supra) and Gopal Singh(supra). The Division Bench categorically observed that even at the unrecognized Section of a School while appointing teacher the School must follow the required guideline. Moreover, when it receives the State aid, the State is entitled to see that a fair and a transparent process is adopted while appointing teachers. It is also material to see whether at the entry point those teaching staff sere adequately qualified to teach in the upgraded Section, subsequently recognized. Once, a school as a whole or in part is recognized and starts receiving State aid, none can appoint any teaching or non teaching staff without being recommended by the School Service Commission. Section 9 of the School Service Commission Act, 1997 categorically makes it clear. Once, a school as a whole or in part is recognized and starts receiving State aid, none can appoint any teaching or non teaching staff without being recommended by the School Service Commission. Section 9 of the School Service Commission Act, 1997 categorically makes it clear. Even if we consider that since DLIT inspected the School and submitted report featuring names of the appellants, we would find that admittedly they were teachers in position having no right to claim for regularization. Pertinent to note, the School decided to up-grade in 1990 and the appellants joined the School in 1993-94 and they were not parties to the resolution and/or decision to upgrade the school. We do not find any scope of disagreement with the ultimate decision of the two other Division Benches in the cases of Smritikana Maity and Gopal Singh (supra). The appeal fails and is hereby dismissed. There will be no order as to costs." 6. Mr. Bhattacharjee, learned counsel for the applicants seeks review of this order. He argues that the applicants were appointed on the strength of the circular dated 30th September, 1992. There is no dispute whatever that they were bona fide organizer teachers and recognized to be so by the District Level Inspection Team, when the unrecognized part of the school classes IX and X were recognized in 2000 and 2001. Learned counsel argued that when the school was recognized by the Government on the basis of an existing staff pattern the School Service Commission Act does not apply to such a school. When the government recognized the school, it had the obligation to recognize the staff also. Otherwise recognition of the school could result in, as it has been the case here, the existing staff being thrown in to unemployment. The Division Bench had followed two earlier Division Bench decisions of this Court in the cases of Smritikana Maity and Gopal Singh. It proceeded on the solitary principle that after enactment of the School Service Commission Act, 1997 no teacher other than those recommended by the Commission could find employment in School. 7. Mr. Mukherjee for the respondents has tried to justify the judgment of the Division Bench dated 20th October, 2009 by reiterating the reasons given therein. He also makes a submission which we think is more substantial. All the facts, documents, and judgments relied upon by Mr. 7. Mr. Mukherjee for the respondents has tried to justify the judgment of the Division Bench dated 20th October, 2009 by reiterating the reasons given therein. He also makes a submission which we think is more substantial. All the facts, documents, and judgments relied upon by Mr. Bhattacharjee were available at the time the Division Bench pronounced its judgment and order on 20th October, 2009. A coordinate Bench of the same Court cannot reopen that self-same judgment unless grounds exist for review of the same. No such ground had been made out justifying review of the said judgment. This Court could not embark upon the exercise of being an appellate authority over an issue concluded on 20th October, 2009. The remedy if at all was by way of an appeal to the Supreme Court. 8. We fully appreciate and accept that submission. We would only like to add that our attention was drawn by Mr. Bhattacharjee to a decision rendered on 22nd September, 2015 by the Supreme court in Dhananjoy Karmakar Vs. State of West Bengal & Ors. reported in 2016(1) CLJ (SC) 63, where it was held that since the name of the appellants appeared in the report of the DLIT his service was entitled to be regularized. We were also shown a Division Bench Judgment of this Court in Hemprova Sikdar Vs. The State of West Bengal & Ors. reported in 1998 WBLR(Cal) 223, where Mr. Justice S.B. Sinha delivering the judgment of the Division Bench opined "so long the school was unrecognized one, the question of applicability of the recruitment rules would not arise." 9. If the line of argument followed by our Division Bench earlier is to be continued to be followed then in the case of recognition of an existing unrecognized school with privately engaged teaching and non-teaching staff, the school would become recognized but the staff would be thrown out of employment. The standard of the school which is evaluated at the time of its inspection for the purpose of recognition takes into account amongst other things the quality of education being imparted by the school. 10. This in our opinion does not result in a happy state of affairs. We are also of the opinion that the issue needs reconsideration. We are unable to do so because of the reasons given above. 11. 10. This in our opinion does not result in a happy state of affairs. We are also of the opinion that the issue needs reconsideration. We are unable to do so because of the reasons given above. 11. This application for review is dismissed without any order as to costs.