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2019 DIGILAW 701 (CAL)

Ratan Kumar Mitra v. State of West Bengal

2019-07-09

I.P.MUKERJI, MD NIZAMUDDIN

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JUDGMENT : I.P. Mukerji, J. In government school service at the secondary level there is a system of retaining lien on a particular post. It happens in this way. If an employee has an opportunity to serve in an authorized higher post, he is granted extraordinary leave not exceeding a stipulated period. In this stipulated period he retains a lien over the original post. He has to come back within that period. This lien is lost if "he leaves" that authorized post or does not "return" after the stipulated period. 2. The Government of West Bengal recognized this lien with regard to the teaching and non-teaching service in recognized teaching institutions. It made and published a notification, 79-Edns dated 28th January, 1994. It is in the following terms: "13 Lien: (1) A teacher or non-teaching employee of an institution on confirmation in a permanent post shall acquire a lien on the post. (2) Such teacher or non-teaching employee seeking permission to serve in a higher post in another recognized institution or college within West Bengal or to accept other service within the West Bengal where teaching experience is essential, may be granted extraordinary leave, referred to in rule 12, without pay for a period, not exceeding two years, with permission to retain lien. (3) The lien shall automatically terminate if such teacher or non-teaching employee- (a) is permanently absorbed in his/her post in the other institution, (b) leaves the post for which the lien was granted, or (c) does not return after completion of two years, whichever is earlier." 3. From 20th July, 1983. the appellant was an assistant teacher in Baduria Dilip Kumar Memorial Institution (first school). His appointment was approved by the respondent on 7th November, 1984. From 1st April, 2004 he got and availed of the job of the head master in Chhoto Sehara High School (second school). The government approved this and allowed him to retain a lien on his original post for the period of 1st April. 2004 till 31st March, 2006. On 13th April, 2005 he left this school and became head master of Kharampur High School (third school). The office of the District Inspector of Schools granted the appellant permission or approval to rejoin the first school. On 29th March, 2006, he resigned from that post and once again joined the first school. Thereafter more than three years passed. On 13th April, 2005 he left this school and became head master of Kharampur High School (third school). The office of the District Inspector of Schools granted the appellant permission or approval to rejoin the first school. On 29th March, 2006, he resigned from that post and once again joined the first school. Thereafter more than three years passed. The appellant functioned as assistant teacher in the original school drawing his pay and availing of all other benefits. 4. On 30th July, 2009, it occurred to the District Inspector of Schools (SE), North 24 Parganas that as early as 3rd April, 2007 the West Bengal School Service Commission had written to his office that the approval given by the District Inspector to the continuance of employment of the appellant in the first school was not in accordance with law as he left the second school before the lien period of two years and joined the third school and that no pay should be released to him. On that day, the District Inspector of Schools wrote to the Additional District Inspector to take appropriate action in the matter. Learned counsel are ad idem that the approval of 13th March, 2006 was withdrawn on 30th July, 2009. 5. What is most startling in this case is that in a writ application preferred by the appellant (WP No.19167(W) of 2009), an interim order was made, staying the action taken by the letter dated 30th July, 2009. This interim order had the effect of virtually allowing the writ, at the motion stage. By its operation the appellant continued teaching in the original school till his retirement on 31st March, 2018, drawing pay and availing of all benefits. 6. The principal relief’s sought in the writ were as follows: (a) In terms of Circular No. S/218 dated 26th April, 1990 of West Bengal Board of Secondary Education a teacher of a recognized secondary school may be allowed by the Managing Committee of the school to be retained on lien for a period not exceeding two years (at a time not more than one year). Hence it is clear that the petitioner was granted leave on lien for two years (i.e. from 01.04.2004 to 29.03.2006) at a time in violation of circular No. S/218 dated 26th April, 1990 of West Bengal Board of Secondary Education. Hence it is clear that the petitioner was granted leave on lien for two years (i.e. from 01.04.2004 to 29.03.2006) at a time in violation of circular No. S/218 dated 26th April, 1990 of West Bengal Board of Secondary Education. (b) In terms of Rule 13(3) of Management of recognized Non-Government Institution (aided and un-aided) Rules, 1969 as amended vide Government Order No. 79-Edn(s) dated 28th January, 1994 of School Education Department (Secondary Branch) the lien shall automatically terminate if such teacher or non-teaching employee. (a) is permanently absorbed in his/her post in the other institution. (b) leaves the post for which the lien was granted on. (c) does not return after completion of two years, whichever is earlier. 7. The writ was finally disposed of by Mr. Justice Basak on 4th August, 2016. His lordship, inter alia, came to the following conclusions: "The petitioner had left the post of Headmaster of such Chhoto Sehara High School on April 12, 2005. Therefore, the petitioner comes within Clause 13 (3) (b) of the notification dated January 28, 1994......................However, the issue in the present case is, whether the lien existing in favour of the petitioner to extinguish by his conduct in terms of Clause 13 (3) (b) of the notification dated January 28, 1994 or not. Such issue has to be answered in favour of the State Service Commission. In such circumstances, the action of the petitioner is in rejoining the original school is bad. The petitioner will refund all emoluments received by him as a teacher on rejoining the original school within a period of six weeks from date to the State authorities." 8. On 13th April, 2005 admittedly the appellant had left the second school. This was within the lien period. He returned to the original school after serving the third school. This was approved by the District Inspector of Schools. The rule governing lien is very clear in its terms that it would automatically terminate if the employee "leaves the post for which the lien was granted or does not return after completion of two years whichever is earlier" (Rule 13(3)(b) and (c)). The District Inspector had no jurisdiction to approve this return to the first school by the appellant because by leaving the second school within the lien period, the appellant according to the said rule had forfeited his lien. The District Inspector had no jurisdiction to approve this return to the first school by the appellant because by leaving the second school within the lien period, the appellant according to the said rule had forfeited his lien. The District Inspector of Schools acted beyond his authority and power. That extension was nonest in the eye of law. Moreover as will appear from the communication dated 30th July, 2009, the West Bengal Regional School Service Commission had discovered this irregularity. By its letter dated 3rd April, 2007 and 29th September, 2008, it asked the District Inspector of Schools to reverse its decision. It was only after the letter dated 30th July, 2009 that the District Inspector of Schools woke up and instructed the Additional District Inspector to withdraw the approval. It is common ground that this was done on 30th July, 2009 itself. 9. We are of the view that for these reasons above, the finding of the learned judge that "the lien was extinguished" is absolutely in order. 10. If the law was properly applied at least from 30th July, 2009 the appellant should have been relieved of his post in the first school or if he continued to teach irregularly, his salary and allowances ought to have been stopped. 11. This court had its role to play. As we observed earlier by the interim order the writ was virtually finally allowed. The appellant continued to work and draw his pay and other allowances till his retirement after 31st March, 2018. There is no doubt that the service of the appellant in the first school after relinquishment of lien was absolutely unauthorized. The fact remains that the District Inspector of Schools had authorized his joining the original post officially. If that be the case the appellant cannot be said to be an interloper in the school. He duly applied before the District Inspector of Schools to approve his resumption of service in the original post. If the latter acted irregularly, even if the appellant had connived with him in his appointment, he is not supposed to know or be blamed for an irregular official act. 12. For these reasons, we are not minded to reverse the benefit which the appellant got by virtue of the said interim order. The respondents had the remedy of challenging the interim order in appeal. 12. For these reasons, we are not minded to reverse the benefit which the appellant got by virtue of the said interim order. The respondents had the remedy of challenging the interim order in appeal. They availed of the appellant's service and paid him salary and allowances in terms of the interim order passed by this court in the writ. When the appellant taught in the school and received pay on the basis of a valid order of the court, there was no justification to order recovery of the same by the impugned final judgment and order. We accordingly set aside that part of the order. 13. However, for the purpose of pension the length of service of the appellant shall be calculated, taking the date of his separation from the original school as 30th July, 2009. He shall be granted all retiral benefits, including pension if he is so entitled to on this length of service. 14. This appeal is disposed of by modifying the impugned judgment and order dated 4th August, 2016 in the manner stated above. 15. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree