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2019 DIGILAW 550 (CAL)

Srikanta Hazra v. State of West Bengal

2019-04-30

ABHIJIT GANGOPADHYAY

body2019
JUDGMENT : 1. The petitioner No. 1 in this matter has claimed himself an organiser teacher of Gokulbati Nanibala Smriti Vidyapith (the School, in short, hereafter) in the District of Birbhum and the petitioner No. 2 has claimed himself a non-teaching staff of the School. The main prayer in the writ application is issuance of a writ in the nature of mandamus for setting aside the order passed by the Commissioner of School Education, West Bengal under Memo No. 664/1 (12) LS-IC-LS-283/13 dated 26.08.2014 (order of Commissioner, in short, hereafter) and after setting aside the same, direction on the respondents to give approval to the appointment of the petitioners as Assistant Teacher and as non-teaching staff of the School. 2. The managing committee of the School, the teachers of the School etc. filed as many as eight writ petitions and three applications for contempt at different points of time starting from 1995 to the present writ application. The present application has been filed in the year 2016. 3. For the adjudication of the present writ application, I find on perusal of this writ application with its annexures, that most of the contentions/submissions made in the previous writ applications are not necessary, though pleaded in this writ application, except some material facts which are required to be referred. 4. The order of Commissioner was passed in compliance with the order passed by this Court in W.P. No. 30117 (W) of 2013. 5. The order passed in W.P. No. 30117 (W) of 2013 on 10th April, 2014 set aside the order impugned in W.P. No. 30117 (W) of 2013 which was passed by the District Magistrate, Birbhum rejecting the prayer of the petitioners for approval of their appointment in the said School. 6. This order of the District Magistrate dated 24th July, 2013 was passed following the direction of this Court in a contempt application being CPAN 276 of 2013 (in connection with W.P. No. 15159 (W) of 2005) dated 16th May, 2013 whereby the District Magistrate Birbhum was directed to enquire into the matter (as to approval of organizer teachers etc.) and to find out if writ petitioners therein were working as organizer teachers. 7. 7. The District Magistrate after considering relevant records and after hearing parties passed the order dated 24th June, 2013 operative part of which is as follows: "Therefore, on the basis of the above facts, it is stated that no document found form the school authority or form any other officers from which it can be said that the petitioners were working as organising teacher or non-teaching staff, as the case may be, at the Gokulbati Nanibala Smriti Vidyapith at any time. The documents as submitted by the petitioners or the then Secretary of the Adhoc Managing Committee cannot be considered as genuine documents and thus not authentic. So, the enquiry is completed with the observation that the petitioners were not working at the Gokulbati Nanibala Smriti Vidypith at any point of time". 8. The above order of the District Magistrate was set aside by the order dated 10th April, 2014 in W.P. No. 30117 (W) 2013 on the ground that a report of the District Level Inspection Team (DLIT, in short) dated July 31, 1996 was available on record but it was not considered by the District Magistrate. 9. After setting aside the said order of the District Magistrate, Learned Judge directed the respondent No. 2 of the said writ application (W.P. No. 30117 (W) of 2013) to take a decision afresh in the above matter on the basis of the material facts which may be made available before him by the parties as also in the light of the observation made by passing a reasoned order in accordance with law. The Commissioner of School Education in compliance with the order of this Court passed his order on 26.08.2014 which again has been challenged by the writ petitioners by filing the present writ application. 10. Here I have to make little deviation from the matter being a Court of record. Reason for such deviation will be known soon. 11. High Court is a Court of record. A very short discussion is required as to the expression 'Court of record'. 12. According to Wharton's Law Lexicon a Court of record is : "Record, courts of, those whose judicial acts and proceedings are enrolled on parchment, for a perpetual memorial and testimony; which rolls are called the records of the court, and are of such high and supereminent authority that their truth is not to be called in question. 12. According to Wharton's Law Lexicon a Court of record is : "Record, courts of, those whose judicial acts and proceedings are enrolled on parchment, for a perpetual memorial and testimony; which rolls are called the records of the court, and are of such high and supereminent authority that their truth is not to be called in question. Courts of record are of two classes superior and inferior. Superior courts of record include the House of Lords, the judicial Committee, the court of appeal, the High Court, and a few others. The Mayor's Court of London, the County Courts, Coroner's Courts, and other are inferior courts of record, of which the County Courts are the most important. Every superior Court of record has authority to fine and imprison for contempt of its authority; an inferior court of record can only commit for contempts committed in open court, in facie curiae." 13. According to Jowitt's Dictionary of English Law, (First Edition) a Court of record has been defined as: "A court whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, and which has power to fine and imprison for contempt of its authority." 14. In this respect our Supreme Court in M.M. Thomas versus state of Kerala, (2000) 1 SCC 666 has stated as follows: "The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary." 15. Therefore it is imperative to keep records of a Court of record free of error and as soon as some error comes to the knowledge and notice of a court of record steps are required to be taken. The High Court's power in that regard is plenary." 15. Therefore it is imperative to keep records of a Court of record free of error and as soon as some error comes to the knowledge and notice of a court of record steps are required to be taken. As the Supreme Court has made it clear, as is found from the above judgment that High Court has a duty to itself to keep all its records correctly and in accordance with law, High Court can exercise its power in this regard suo motu and it is not the case that unless an application is made before the High Court in this respect High Court remains powerless. 16. Here, on perusal of the complete record before this Court being the writ application, the affidavit-in-opposition and the affidavit in-reply and the notes of argument filed by the parties I have found that the observation made by the learned Judge in order dated 10th April, 2014 ( in W.P. No. 30117 (W) of 2013) to the effect that one report of the District Level Inspection team dated July 31, 1996 was available on record which was not taken into consideration in the impugned order (i.e. the order of the District Magistrate) is patently erroneous because the report dated July 31, 1996 (at page 82 of the writ application) was not at all a report of District Level Inspection Team (DLIT, in short, hereafter). It was a report of a two-man committee who were the Assistant Inspectors of Schools (Secondary School), working under the District Inspect of Schools (Secondary Education), (D.I in short), Birbhum. (Emphasis mine). 17. This committee report is dated July 31, 1996. This two-man committee was constituted by the D.I. At that material point of time for constitution of a DLIT, a Government order being G.O. No. 553-Edn dated 26.04.1978 was in existence. In terms of the said G.O., DLIT was to be constituted with four persons who were: 1. District Inspector of Schools (SE). 2. A nominee from the Board. 3. A nominee form the Government. 4. A nominee of West Bengal Board of Madrasah Education. 18. Thus the above mentioned two-man committee's report could not be treated as equivalent to DLIT report. District Inspector of Schools (SE). 2. A nominee from the Board. 3. A nominee form the Government. 4. A nominee of West Bengal Board of Madrasah Education. 18. Thus the above mentioned two-man committee's report could not be treated as equivalent to DLIT report. The petitioners' claim that the two-man committee was constituted as per order of Court is not correct and untrue which would be evident from the order dated 18th August, 1995 passed in C.O. No. 13458 (W) of 1995 (at page 77 of the writ application). 19. Therefore, the observation made in the order in W.P. No. 30117 (W) of 2013 that DLIT report dated July 31, 1996 was not considered by the District Magistrate while passing the order dated 24th June, 2013 was not correct. Therefore, to keep the records correctly I declare that the learned Judge, who thought that the report dated 31st July, 1996 was a DLIT report, was not at all a DLIT report. It was a two-man committee report. 20. A report which was not a report of DLIT was of no value in such matters when the committee was not constituted by any order of Court defining the purpose of constituting the committee. The reason for setting aside the District Magistrate's report was erroneous. 21. In fact, by the order of this Court dated 18th August 1995, in Civil Order No. 13458 (W) of 1995 no direction for inspection and no direction for constitution of any committee was given by this Court. From the cause title of the copy of the certified copy of the said order dated 18th August 1995 it is found that a person claiming himself the Secretary of the proposed High School, one person claiming himself Assistant Teacher of the School, two other persons whose designation is not found in the cause title and another person claiming himself as peon of the School filed the said writ application. It is noted that in the said writ application (C.O. No. 13458 (W) of 1995) none of the present writ petitioners were parties. 22. Despite making the record of W.P. No. 30117 (W) of 2013 free of the above error the clock cannot be put back as the Commissioner has passed his order in compliance of the order with error and this order of Commissioner in under challenge in this writ application. 23. 22. Despite making the record of W.P. No. 30117 (W) of 2013 free of the above error the clock cannot be put back as the Commissioner has passed his order in compliance of the order with error and this order of Commissioner in under challenge in this writ application. 23. Now the writ application can be considered on merit. 24. From paragraph 1 to 56 of the writ application the petitioners have described the facts of the previous writ applications and the orders passed by this court therein. In the seven paragraphs from paragraphs 57 to 63 the petitioners have made submissions assailing the impugned order of the Commissioner. These submissions are identical (including the printer's devil) to the seven grounds on which the petition is based. 25. The first submission to assail the order of Commissioner is that the Inspection report was prepared as per direction of the Hon'ble Court. This is not only incorrect but also untrue. The report was never prepared as per direction of the Court; this particular aspect has already been dealt with above. The said two-man committee report speaks about six teachers and two nonteaching staff who have not been named there. This is evident from the document disclosed by the petitioners themselves which is at page 83 of the writ application against serial No. 10 in annexure P-3. Therefore, it is no ground for challenging the order of Commissioners dated 26.08.2014. 26. The second submission and the ground to assail the impugned order is the order of this Court in W.P. No. 30117 (W) of 2013 passed on 10th April, 2014. This order had been passed before the order of the Commissioner was passed. From perusal of the Courts order and the order of the Commissioner I find that the Commissioner has committed no illegality in his order. He has passed a reasoned order. 27. The third submission and ground for assailing the order of Commissioner is that the documents submitted by the petitioners were not considered by the Commissioner. From perusal of the Courts order and the order of the Commissioner I find that the Commissioner has committed no illegality in his order. He has passed a reasoned order. 27. The third submission and ground for assailing the order of Commissioner is that the documents submitted by the petitioners were not considered by the Commissioner. It is clear from the order of the commissioner that the learned advocate of the petitioner submitted the photocopy of the Inspection report dated 31.07.1998, this has been recorded in the order of the Commissioner and the Commissioner has considered the claim of one Sanatan Garai to be the Secretary of the Ad hoc Managing Committee of the School and this claim of Sanatan Garai could not have been decided by the Commissioner without going through the relevant papers and documents. The petitioners have also not specified the documents they submitted before the Commissioner and has not disclosed any document showing receipt of the disclosed documents before the Commissioner and there is no allegation in the writ application that they wanted to show documents or submit documents which was refused by the Commissioner or by his office. Such allegation is not at all acceptable and I reject this submission and allegation. 28. The fourth submission and ground for assailing is repetition that the Inspection report dated 31.07.1996 was done as per the order of the Hon'ble Court. Such allegation is wholly incorrect and untrue. This report was not prepared pursuant to any order of the Court. This is a deliberate untrue statement. Such report cannot have any value in the eye law for deciding the dispute and this was not a DLIT report. The Commissioner has not committed any illegality or has not made any mistake in this respect for which interference by this Court is required with the order of the Commissioner. It has been recorded in the order of Commissioner that as no name was mentioned as to the organizers, it cannot be ascertained that the petitioners were the organizers. Such observations of the Commissioner are fully correct as evident from annexure P-3 of the writ application itself. I reject such submission and ground. 29. The fifth submission and ground for assailing the order of Commissioner is in respect of one Sanatan Garai . Such observations of the Commissioner are fully correct as evident from annexure P-3 of the writ application itself. I reject such submission and ground. 29. The fifth submission and ground for assailing the order of Commissioner is in respect of one Sanatan Garai . I hold that the observation made by the Commissioner in respect of the status of said Sanatan Garai who claimed to be the Secretary of the Ad hoc Managing Committee the School is wholly reasonable and correct. When there was a valid Managing Committee of the Junior High School, it has been correctly decided by the Commissioner that there cannot be two managing Committees at a time in a School. The proposed 'to be up graded section' was not a School, the 'section' was only in the form of a proposal. In fact the petitioners have not been able to deal with this aspect of status of said Sanatan Garai in their writ application and have taken shelter under the submission that no one had questioned about him before. This is no reasoning for defending at all to show the status of said Sanatan Garai and this submission is rejected. 30. The sixth submission and ground to assail the order of Commissioner is that the petitioners are entitled to be appointed as per the Inspection report dated 31st July, 1996 which does not have any basis as, first, the report was not a DLIT report and secondly in this two-man committee report there is no name who were the organizer teachers and non-teaching staff of the proposed up-graded section. Moreover, organiser teachers and staff of a School cannot be given approval of appointment as there is no concept of organiser teachers and staff in School education sector. 31. The last submission and ground is, unless this Court interferes in the matter the petitioner will not get any relief. This Court does not find any merit in the matter for interference. 32. For the reasons as aforesaid I find that the writ petition is devoid of any merit and is liable to be dismissed with costs and the writ petition is dismissed with cost of Rs. 500.00 each on the petitioners. 33. The Registry is directed to place and tag a copy of this judgment and order with the record of W.P. No. 30117 (W) of 2013.