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2019 DIGILAW 946 (CAL)

Asit Ranjan Gayen v. State of West Bengal

2019-11-25

PROTIK PRAKASH BANERJEE

body2019
JUDGMENT : PROTIK PRAKASH BANERJEE, J. 1. This writ petition instituted before this Court under Article 226 of the Constitution of India by a number of Organiser Assistant Teachers challenges an order dated July 16, 2015 passed by the Joint Secretary, Government of West Bengal, School Education Department. The impugned order was passed purportedly consequent to the directions given by the Hon'ble Supreme Court of India in Civil Appeal No. 7900 of 2010, Asit Ranjan Gayen and Others vs. State of West Bengal and Others to the Secretary, School Education for considering the case of the writ petitioners herein and pass a reasoned order to this effect after according a personal hearing to the respective parties. The Hon'ble Supreme Court also recorded that the Division Bench of this Court had not considered an important aspect of this matter, to which I will advert to, shortly. By the impugned order the writ petitioners were denied regularization of their services in the aforesaid school. The writ petitioners, therefore, approached this Court praying that the said order be set aside and in addition thereto, directions be passed to the effect that the services of the said school be regularised and approval is to be accorded to their respective appointments. 2. The case made out by the writ petitioners may be summarized thus: “(a) That Aloke Kendra High School (in short “the school”) initially recognized as a Junior High School under the West Bengal Board of Secondary Education was upgraded to a High School with effect from January 01, 1999 by a Memo dated July 14, 2000 pursuant to an order dated September 2, 1998 passed by this Court in C.O. No. 1248 (W) of 1993. (b) That the writ petitioners were duly appointed by the Managing Committee to the school as Assistant Teachers for different subjects much before its up gradation. (c) That the writ petitioners possess sufficient educational qualifications requisite for their posts. (d) That all but two of the writ petitioners, who have since crossed the age of superannuation had been discharging their duties as organizing teachers by teaching the students of the school since their appointment. (c) That the writ petitioners possess sufficient educational qualifications requisite for their posts. (d) That all but two of the writ petitioners, who have since crossed the age of superannuation had been discharging their duties as organizing teachers by teaching the students of the school since their appointment. (e) When the school was upgraded to a High School in terms of Memo No. 242/SSE/2000 dated July 14, 2000, the services of the writ petitioners were not approved by the concerned authority even though they were duly appointed by the Managing Committee of the School as per the relevant rules much before the up gradation of the school. (f) In the past, the writ petitioners along with another non-teaching staff of the school filed a writ application being W.P. No. 21556 (W) of 2000 before this Court which was heard and disposed of by a coordinate bench comprising His Lordship the Hon'ble Justice M.H.S. Ansari (as His Lordship then was) by a judgment dated December 07, 2001. While disposing of such writ application, directions were issued upon the Director of School Education, West Bengal to consider the case of the writ petitioners for approval of their appointment in accordance with law with an observation that the claim of the writ petitioners deserved to be considered. (g) Upon considering the matter, the Director of School Education approved the services of the non-teaching staff but such approval was denied to the writ petitioners by its order dated December 7, 2001. The order opined that since the writ petitioners were not appointed under the provisions of the West Bengal School Service Commission Act, 1997 (in short “the Act of 1997”) their services cannot be approved after the up gradation has been allowed to the school under the Act of 1997 which came into force with effect from November 1, 1997. (h) Consequently, the writ petitioners filed a contempt application being W.P.C.R.C No. 7039 of 2002 before this Court seeking a contempt rule to be issued against the Director of School Education for alleged violation of the direction and order passed in W.P. No. 21556 (W) of 2000. (h) Consequently, the writ petitioners filed a contempt application being W.P.C.R.C No. 7039 of 2002 before this Court seeking a contempt rule to be issued against the Director of School Education for alleged violation of the direction and order passed in W.P. No. 21556 (W) of 2000. The contempt application was heard and disposed of by his Lordship Justice M.H.S. Ansari (as he then was) with an observation that the order passed by the Director of School Education gives rise to a fresh cause of action to the writ petitioners to avail the remedy of judicial review by an appropriate writ petition. (i) In view of that, the writ petitioners filed a writ petition being W.P. No. 4706 (W) of 2003 challenging the order dated December 7, 2001 passed by the Director of School Education. The Hon'ble Justice Maharaj Sinha (as he then was) disposed of the writ petition by a judgment dated December 11, 2003 wherein the impugned order was set aside. In its judgment, the coordinate bench observed that the Act of 1997 nowhere bars approval of the services of organising teachers attached to schools upgraded in terms of the Act of 1997. It was noted that a similar situation arose in respect of W.P. No. 8480 (W) of 1998, Ashok Kr. Dutta and Others vs. State of West Bengal and Others where approval was granted in respect to the services of organising teachers even after the Act of 1997 came into force. Ultimately, the coordinate bench issued directions to the respondent no. 3 therein to accord approval to the services of the writ petitioners with effect from the date of upgradation of the said school. (j) The respondents preferred an appeal against this judgment dated December 11, 2003 which came to be allowed by a Division bench of this Court in M.A.T. 1204 of 2004 (F.M.A. No. 869 of 2004). In its judgment delivered on September 20, 2007, the Division Bench noted the provisions under section 9 of the Act of 1997 and upheld the contention that the said provision lays down a blanket prohibition upon appointments to the posts of teachers in a school falling under the Act of 1997 otherwise than upon a recommendation of the regional commission having jurisdiction to the managing committee of the respective school. It was further observed that since the appointments of the writ petitioners were made at a time when no validly constituted managing committee existed, the appointment must be held to be illegal. It is interesting to note that the judgment of the Division Bench made reference to the decision of the Hon'ble Supreme Court of India in Secretary, State of Karnataka and Others vs. Uma Devi and Others, (2006) 4 SCC 1 wherein the Hon'ble Apex Court had made it very clear that appointments made without following due process or the rules for appointment do not confer any right on the appointees and that the Court cannot direct their absorption or regularization or reengagement or making them permanent. In this context, the following paragraphs from the judgment of the Hon'ble Division Bench becomes relevant and therefore has been extracted and set-out below: “In the present case, recognition was granted on 1st January, 1999, i.e. after the School Service Commission Act came into operation with effect from 1st November, 1997. Section 9 of the said Act stipulates that notwithstanding anything contained in any other law for the time being in force in any contract, custom or usage to the contrary, appointments to the posts of the teachers in a school shall be made by the managing committee of that school on the recommendation of the Regional Commission having jurisdiction and any appointment of a teacher made on or after the commencement of the Act in contravention of the provisions of the Act shall be invalid and shall no effect. In the present case, it is the admitted position that appointments were given at a point of time when the school (Classes IX and X) was not recognized by the Board. Until and unless the school is recognized, there cannot be any validly constituted managing committee. It is the admitted position that appointments were given to the petitioners at a point of time when there was no validly constituted managing committee and such appointments must be held to be illegal appointments. Mr. De, the learned Advocate appearing for the respondent Nos.1 to 6/writ petitioners submits before this Court that two appeals being F.M.A No 94 of 2006 and M.A.T No. 428 of 2007 were disposed of by this Court on 14th September, 2007. Mr. De, the learned Advocate appearing for the respondent Nos.1 to 6/writ petitioners submits before this Court that two appeals being F.M.A No 94 of 2006 and M.A.T No. 428 of 2007 were disposed of by this Court on 14th September, 2007. Since an extensive argument was made by him in the said two appeals, the present appeal may be disposed of in the light of the observations made in the said judgment delivered by this Court on 14th September, 2007. The said two appeals were preferred by the State of West Bengal challenging the order passed by the learned Single Judge directing the concerned authority, namely, the District Inspector of Schools concerned to regularize the services of the writ petitioner, who claim themselves to be the organizing staff of classes IX and X of the concerned school. This Court relying upon the judgment of the Hon'ble Apex Court reported in Secretary, State of Karnataka and Others vs. Uma Devi and Others, (2006) 4 SCC 1 as also the number of judgments of this Court, allowed the appeals, as aforesaid and set aside the impugned order by which direction was given for according approval to the appointments of the organizing teachers. In the case of Uma Devi (supra), the Hon'ble Apex Court having considered the various judgments of the Hon'ble Supreme Court as also of other High Courts, observed that appointments made without following due process or the rules for appointment do not confer any right on the appointees and that the court cannot direct their absorption or regularization or reengagement or making them permanent. In the present case, we find sufficient merit in the submission of Mr. Banerjee, the learned Advocated of the appellants. Since all the points raised by the respondent's/writ petitioners were discussed elaborately in our earlier judgments in F.M.A No. 94 of 2006 and M.A.T No. 428 of 2007 delivered on 14th September, 2008, we do not find it necessary to repeat the same. Accordingly, we allow the present appeal in terms in the earlier judgment of this Court dated 14th September, 2007 as referred to above and set aside the impugned order passed by the learned Single Judge. Accordingly, we allow the present appeal in terms in the earlier judgment of this Court dated 14th September, 2007 as referred to above and set aside the impugned order passed by the learned Single Judge. The writ petition also stands dismissed.” (k) Aggrieved, the writ petitioners preferred a Special Leave Petition before the Hon'ble Supreme Court of India in Civil Appeal No. 7900 of 2010, which was heard and disposed of by an order of the Hon'ble Apex Court, dated February 19, 2015. In its order, the Hon'ble Court directed the respondent authorities to consider the case of the writ petitioners including for regularization of service of those who were still in service in the said school in terms of section 10 of the Act of 1997 and to pass a reasoned order to that effect after giving a personal hearing to the parties. At the same time, the Hon'ble Apex Court made certain observations in that matter which is deemed pertinent to the disposal of the case in hand and therefore such relevant paragraphs have been extracted and reproduced herein below: Civil Appeal Nos. 7898-7899 of 2010: “Heard Mr. Kalyan Bandopadhyay, learned Senior counsel appearing for the State of West Bengal and learned counsel appearing for the respondents. We do not find any merit in the Appeals filed by the State of West Bengal and others. Hence, the Civil Appeals are dismissed. Interlocutory Application for impleadment as party respondent is also dismissed.” Civil Appeal No. 7900/2010: “We have heard learned counsel appearing for the parties. It appears that in this matter the appellants have come before this Court by filing this Appeal on the ground that although their School has been given recognition yet it has not been accorded approval to the teachers or considered their rights by the Authorities. The services of the teachers/ appellants were not regularized. In view of that, they are suffering for such a long time. It has also been stated that most of the Teachers had already worked for such a long time have retired without getting the benefits although they have served the School since 1970. It appears that in this matter subsequent thereto, the West Bengal School Service Commission Act, 1997 came into operation and it has been specifically stated under Section 10 of the said Act which has been pointed out to us by Mr. It appears that in this matter subsequent thereto, the West Bengal School Service Commission Act, 1997 came into operation and it has been specifically stated under Section 10 of the said Act which has been pointed out to us by Mr. Kailash Vasdev, learned Senior counsel appearing in support of this Appeal that the rights of the protection of the teachers have been given under the said Section of the Act and the services of the teachers in the School before the commencement of the Act shall not be varied to the disadvantage towards them. We have considered the said section but it appears to us that since no steps have been taken by the Authorities, it would be proper for us to direct the Secretary, School Education to consider the case of the appellants herein including for regularization of their services in the school in question after giving personal hearing to the representatives of the School and also to the appellants herein and/or their representatives. The said Authority is directed to pass a reasoned order in the matter. We must state in the matter that the State Authorities must consider the case of the Appellants. We only keep on record that the Order so passed by the High Court does not consider this aspect of the matter in question. We, therefore, pass a time frame to meet out i.e. reasoned order shall be passed by the Authority within a period of three months from the date of communication of this order. In view of that, we pass this order and also direct the State Authorities that without being influenced by the orders so passed by the High Court, shall pass a reasoned order in the matter within the aforesaid period. The Appeal is disposed of in the afore-stated terms.” Civil Appeal No. 7901 of 2010: “As it appears to us that the grievance of the appellants in this matter challenging the Order so passed by the High Court without regularising the appellants on the ground that the cases of the appellants were hit by the judgment in Secretary, State of Karnataka and Others vs. Uma Devi and Others, (2006) 4 SCC 1 . However, we have heard learned counsel on the facts of the case in question. However, we have heard learned counsel on the facts of the case in question. It appears that the appointments which have been made by the Managing Committee in the matter in respect of the school in question who has worked for such a long time in the school, their appointments have not been regularized. It appears to us that the West Bengal School Service Commission Act, 1997 came into force in the matter after recognition of the school. It was a case of the State that no teacher can be appointed except in accordance with the provisions of the Act. However, we have specifically gone through the facts of this case as it appears to us that the school was originally a Junior High School recognised with effect from 1-1-1969. Thereafter, the said school was upgraded to class IX High School with effect from 1-5-1999 and thereafter to Class X High School with effect from 1-5-2000. Admittedly, the appellants joined the school before the up gradation and recognition as Class X High School (Classes IX and X). The appellants, in fact, were appointed, as it appears from the facts of the case, in such School by the Managing Committee of the Junior High School as at that point of time was Class IX and X previously recognized by the Authorities. Meaning thereby, the West Bengal Board of Secondary Education subsequent thereto, it appears to us that the said School was upgraded and was duly recognized by the State Secondary Education Board. In view of that, it appears to us that the appellants since working for such a long time in the said School, their cases should be considered by the Authorities in the light of the provisions of law taking into consideration the West Bengal School Service Commission Act, 1997 and in our opinion at the time of such consideration, it would be the pleasure of the State Authorities to find out whether the appellants who have filed this appeal before us are still with the School or not. We, however, make it clear that the State Authorities without being influenced with the Orders so passed by the High Court on the basis of Judgment reported in 2006 (4) SCC 1 shall deal with the matter and pass a reasoned order in the matter in accordance with law after giving personal hearing to the appellants herein. We, however, make it clear that the State Authorities without being influenced with the Orders so passed by the High Court on the basis of Judgment reported in 2006 (4) SCC 1 shall deal with the matter and pass a reasoned order in the matter in accordance with law after giving personal hearing to the appellants herein. If they find that the appellants were working in the School, in that case, they shall consider the case of the appellants sympathetically. The Appeal is disposed of in the afore-stated terms.” C.A. No. 7902/2010: “Heard learned counsel appearing for the parties. We do not think that there is any reason to interfere with the impugned Order so passed by the High Court of Calcutta. Hence, the Civil Appeal is dismissed. Needless to say that the interim order passed on 11-7-2008 shall stand vacated.” 3. It is on the basis of these judgments and orders of the Hon'ble Supreme Court, while being fully alive the position of law declared by the Hon'ble Division Bench of this Court, which has not been interfered with by the Apex Court that the petitioners before me have come up before this Court. They are dissatisfied by the impugned order passed by the respondent authorities, but only to the extent that the respondent authority, even while purporting to act in terms of the directions of the Apex Court, have actually subverted the intention of the Apex Court by its directions which actually interpret the statutory provisions and the statute applicable, the cases of the petitioners, while making it clear that the Division Bench did not consider an important aspect of the case as recorded by it in paragraph 2(k) above. 4. On behalf of the writ petitioners, Mr. Chatterjee, Senior counsel starts by emphasising upon the meaning of the term “teacher” as defined under the Act of 1997. He contends that the definition of the term “teacher” as laid down under sub-section (p) of section 2 of the Act of 1997 includes a person holding a teaching post of a school and recognised as such by the Board. Chatterjee, Senior counsel starts by emphasising upon the meaning of the term “teacher” as defined under the Act of 1997. He contends that the definition of the term “teacher” as laid down under sub-section (p) of section 2 of the Act of 1997 includes a person holding a teaching post of a school and recognised as such by the Board. I believe that for the sake of convenience, the said provision needs to be quoted as below:- “2(p) “Teacher” means an Assistant Teacher or any other person, holding a teaching post of a school and recognised as such by the Board or the Council or the Board of Madrasah, as the case may be, and includes the Headmaster or the Headmistress.” 5. According Mr. Chatterjee, the writ petitioners were appointed at a time when the Act of 1997 was not in operation and therefore, it is necessary to ascertain the process of appointment as it existed prior to the coming into force of the Act of 1997. Admittedly, appointments to the writ petitioners were given in 1972 under Rule 28 of the Management Rules which empowered the Managing Committee of a school to, inter alia, appoint teachers on permanent basis against permanent vacancies available within the sanctioned strength of teachers in that school teachers and also made provisions for seeking approval to such teachers appointed against such vacancy from the Director of School Education or any other person authorised by him. These rules had been framed and were in operation in 1972 when the Act of 1997 was at least 25 years distant. I shall refer to these rules, hereinafter, as “the said 1969 Rules.” The said rules owe their legitimacy to section 45 of the West Bengal Board of Secondary Education Act, 1963 which provided that for the State Government was competent to make rules for carrying out the purposes of the 1963 Act. I shall refer to these rules, hereinafter, as “the said 1969 Rules.” The said rules owe their legitimacy to section 45 of the West Bengal Board of Secondary Education Act, 1963 which provided that for the State Government was competent to make rules for carrying out the purposes of the 1963 Act. For a proper understanding of the matter as it existed under the said 1969 Rules, before the mechanism provided under the Act of 1997, it is deemed necessary to set-out the said rule as it stood prior to the coming into operation of the Act of 1997, herein-below: “Rule 28: Power of the 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 guidelines issued by the State Government or the Director in connection therewith and in force for the time being, have the power:- (i) to appoint teachers and other employees on permanent basis against permanent, if available, within the sanctioned strength of teachers and other employees, approval for appointment being thereafter sought for from the Director or any other officer authorised by him, ordinarily within a fortnight from the date of decision of the committee. (ii) to appoint teachers and other employees on temporary basis against permanent or temporary vacancies, if available, within the sanctioned strength of teachers and other employees, approval for such appointment being thereafter sought for from the Director or any other officer authorised by him, ordinarily within a week from the date of decision of the committee.” 6. Therefore, the submission of the writ petitioners is that their appointments have to be tested on the anvil of the said 1969 Rules. If viewed from this angle, the writ petitioners submit, that their appointments given were made validly in accordance with law as it existed prior to the coming into operation of the Act of 1997 and as such the validity of the said appointments cannot be challenged at this stage. Mr. Chatterjee argues that in the present case the concerned school was upgraded to a High School with effect from January 01, 1999 after coming into operation of the Act of 1997. Mr. Chatterjee argues that in the present case the concerned school was upgraded to a High School with effect from January 01, 1999 after coming into operation of the Act of 1997. He goes on to submit that once the school was upgraded and brought within the purview of the Act of 1997, the respondent-authorities were left to deal only with the issue of according approval to the appointments of the writ petitioners but not to revisit their appointments in terms of the Act of 1997 which would mean a retrospective operation of the said Act of 1997 from 1972. Also, since the necessary papers for according approval to the services of the writ petitioners were duly submitted to the Respondent No. 4 being the District Inspector of Schools (S.E.) Midnapore, the approval of the respondent authorities must have necessarily followed. Therefore, the question substantially in issue relates not to the appointment of the writ petitioners but rather to according approval to such appointment. It is also submitted that since the application of section 9 of the Act of 1997 is restricted to the question of appointment, there is nothing in the statute to prohibit the necessary approval that is to be given to the appointments of the writ petitioners. 7. The provisions contained under section 9 of the Act of 1997 happens to be the bone of contention between both the parties and it is on the basis of the interpretation which is to be allowed to the said provision that the benefits and entitlements of the parties can be ascertained. At the outset, it is deemed necessary to extract and set-out the said provision as it exists in the statute book. It says: “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.” 8. Mr. Chatterjee also assailed the impugned order relying upon section 10 of the Act of 1997 which, it would be remembered, the Apex Court had pleased to hold was an aspect of the matter of which the Division Bench had lost sight. He argued that when the matter was taken up for deliberation by the respondent-authorities in accordance with the directions passed by the Hon'ble Supreme Court of India, as laid down above, no emphasis was placed upon the provisions contained in section 10 of the Act of 1997 despite specific reference being made by the Hon'ble Apex Court in this regard and therefore, on this ground the impugned order is liable to be set aside. In order to understand the full purport of section 10 and its applicability to the circumstances before us, it is deemed necessary to set-out the said provision, as it stands, herein-below: “10. Protection of Teachers:- Notwithstanding anything contained elsewhere in this Act, the terms and conditions of service of Teachers in the employment of a school immediately before the commencement of this Act shall not be varied to the disadvantage of such Teachers in so far as such terms and conditions relate to the appointment of such Teachers to the posts held by them immediately before the commencement of this Act.” 9. This means, according to Mr. Chatterjee, that the petitioners, who had been duly appointed as “teachers” under the 1969 Rules were entitled to protection of the terms and conditions of their service notwithstanding any contained elsewhere in the 1997 Act. This aspect of the matter which had escaped the notice of the Division Bench in the earlier round was also not considered by the statutory authority in the order impugned. 10. Finally, Mr. Chatterjee assails the validity of the impugned order by emphasising that the Respondent No. 2 at the time of passing the impugned order went clearly beyond its authority which was carved out by the Hon'ble Apex Court from the apparent rigours of the law at the time of delegating the matter to it. 10. Finally, Mr. Chatterjee assails the validity of the impugned order by emphasising that the Respondent No. 2 at the time of passing the impugned order went clearly beyond its authority which was carved out by the Hon'ble Apex Court from the apparent rigours of the law at the time of delegating the matter to it. It was submitted that the respondent no. 2 exceeded the delegation when it embarked upon the task of determining the status of the writ petitioners as the same was never challenged before the Hon'ble Supreme Court of India or the Hon'ble Division Bench of this Court. According to the writ petitioner, the directions simply allowed the respondent no. 2 to ascertain whether or not on a sympathetic consideration of the matter on account of long services rendered by the writ petitioners to the school and in the backdrop of the provisions contained under section 10 of the Act of 1997, regularization could be accorded to the services of the writ petitioners as teachers of the school. 11. In conclusion, the writ petitioners also submitted that in similar circumstances benefit of regularization has been allowed to organizer teachers who were appointed in a similar manner as that of the writ petitioners prior to the coming into force of the Act of 1997. These appear as Annexure “P-4” to the writ petition ranging from pages 44 to 50. Therefore, as a necessary corollary, any denial of the said benefit of regularization to the writ petitioners would result into grave injustice against them and thus, in the course of the arguments a specific plea was even raised by the writ petitioners to allow the said benefits to the writ petitioners. 12. This application has been opposed by the respondent authorities by filing an affidavit-in-opposition. A preliminary objection that was taken by the respondents as to the maintainability of the writ application on the ground that the writ petitioners are not entitled to any right to be absorbed or made permanent in service on the ground of continuance in service. According to the respondent authorities, after the coming into force of the Act of 1997, all appointments to the post of teachers must only be made upon the recommendation of the West Bengal School Service Commission and in accordance with the procedure for appointment prescribed under the Act of 1997. 13. According to the respondent authorities, after the coming into force of the Act of 1997, all appointments to the post of teachers must only be made upon the recommendation of the West Bengal School Service Commission and in accordance with the procedure for appointment prescribed under the Act of 1997. 13. In their Affidavit-in-Opposition, the respondent authorities support the impugned order dated July 16, 2015 passed by the Secretary, School Education Department claiming that in view of the said order, the petitioner could not allege any appointment or approval thereto. A specific challenge has been made on behalf of the respondent-authorities upon the legality of the appointment process through which the writ petitioners were appointed contending that the appointment was made beyond the sanctioned strength of teachers in the school. Hence, the exercise of the powers of appointment by the Managing Committee was not within the due process envisaged under the provisions of Rule 28 of the 1969 Rules, as aforesaid, and as such no regularization can be allowed to the services of the writ petitioners. 14. In his submission, however, Mr. Siddiqui, learned Counsel for the respondent- authorities made a sweeping statement that any appointment letter issued by the Managing Committee for appointment of an organiser teacher is not valid in the eyes of the law. It is submitted that the Parent Act being the Act of 1963 or the relevant rules there under do not envisage any appointment of an organizer teacher as the terms have not at all been referred to in either the Parent Act or rules made there under. This deliberate omission, he submits, cannot therefore be filled by issuing circulars or orders under executive authority by way of which such appointments have been time and again approved. If the initial appointment is illegal according to the Parent Act and the rules made there under, the Government by issuing subsequent notification cannot approve or regularize such appointments which were other illegal in nature. It is, therefore, submitted that no appointment of organizing teaching staff made by the Managing Committee could be regularized after the Act of 1997 has come into operation except under the procedure envisaged under section 9 of the Act of 1997. 15. It is, therefore, submitted that no appointment of organizing teaching staff made by the Managing Committee could be regularized after the Act of 1997 has come into operation except under the procedure envisaged under section 9 of the Act of 1997. 15. In support of this argument the respondent authorities have sought to rely upon a decision of a Division Bench of this Court in Manindra Nath Sinha and Others vs. State of West Bengal and Others, (2006) 4 CHN 513 . Observing that the appellants in that case do not possess any existing legal rights to have their appointment regularized the following was explicitly noted: “16. In our view, in the Parent Act, namely, the West Bengal Board of Secondary Education Act, 1963 and rules framed thereunder to achieve the object of the said Act, there is no provision for appointment of any Organizing Managing Committee or organizer-teacher nor is there any authority conferred upon such Organizing Managing Committee to appoint any teacher or employee before the recognition of the school and conferment of the prescribed sanction strength under the Act and the Joint Secretary of the Education Department by issuing certain circulars cannot lay down the guidelines for approval of any teacher or employee illegally appointed by the so-called Organizing Managing Committee. If the initial appointment is illegal according to the Parent Act and the rules, the Government by issuing notification through its Joint Secretary cannot approve or regularize such illegal appointments. 20. In the present case, according to the existing rules, there is no scope of appointment of an Organizing Managing Committee and even a regularly appointed Managing Committee is not vested the authority to appoint any teacher or non-teaching staff beyond the sanctioned strength; but by way of Government instructions such illegal act is sought to be regularized. Therefore, the facts of the present case are the worse than those involved in the case of R.N. Nanjundappa (supra), where statutory rules were framed to regularize illegal act. 21. We, thus, find that by merely issuing Government instructions, illegal acts committed by the Organizing Managing Committee which is a total busybody cannot be regularized in this way. Therefore, the facts of the present case are the worse than those involved in the case of R.N. Nanjundappa (supra), where statutory rules were framed to regularize illegal act. 21. We, thus, find that by merely issuing Government instructions, illegal acts committed by the Organizing Managing Committee which is a total busybody cannot be regularized in this way. The moment the school is recognized, the Managing Committee is to be constituted in accordance with the Act and the rules framed there under and such duly- constituted Managing Committee can alone appoint teachers and non-teaching staff according to the provision contained in Rule 28 of the Management Rules within the sanctioned strength but even there, there is no right conferred upon the duly-constituted Managing Committee to appoint any staff who before the recognition of the school was appointed by the Organizing Managing Committee and even the guidelines or circulars did not permit the appointment of any staff before the school is recognized and the sanctioned strength is declared. 22. Therefore, it is clear that initial appointments of the writ petitioners, even if those were really made, were contrary to the rules and any executive instruction issued by the Government cannot approve the illegal appointment contrary to the statutory rules. 23. As regards the applicability of the doctrine of promissory estoppel raised by Mr. Deb we are of the view that if the appointment itself is de hors the existing statutory enactments, there is no question of applicability of the doctrine of promissory estoppel. According to the Parent Act, namely, the West Bengal Board of Secondary Education Act, 1963 and the rules framed there under, there is no provision of appointment of organizer-teacher by a so-called Organizing Managing Committee before a school has been recognized by the Board. There is no statutory provision for giving appointment to the so-called organizer- staff after a school is recognized by the Board. According to the present law, a Managing Committee is to be duly constituted and such duly-constituted Managing Committee alone will appoint teachers and non-teaching staff by complying with the requirements of the Management rules. In the case before us, such formalities were admittedly not complied with. The decision of the Supreme Court in the case of Motilal Padampat Sugar Mills Ltd. (supra), relied upon by Mr. In the case before us, such formalities were admittedly not complied with. The decision of the Supreme Court in the case of Motilal Padampat Sugar Mills Ltd. (supra), relied upon by Mr. Dev rather lays down that the doctrine of promissory estoppel is not applicable against the Government if it is under the obligation or liability to act differently by operation of law. In a subsequent decision of the Supreme Court in the case of Bangalore Development Authority vs. R. Hanumania, AIR 2005 SC 3631 , it has been clearly held that the principle of promissory estoppel cannot be invoked to permit or condone a breach of law or to compel the Government to do an act prohibited by law. It was pointed out in that case, that in the absence of any statutory provision enabling the Bangalore Development Authority to reconvey the land acquired to implement scheme for framing of sites and allotment thereof, the Authority could not be directed to reconvey a part of the land merely because it had earlier promised to do so. We, thus, find no substance in the contention of Mr. Dev on the question of invocation of the principle of promissory estoppel in the facts of the present case.” 16. As against this, the writ petitioners in their reply to the said affidavit- in-opposition filed by the respondent-authorities have contended that the impugned order was highly influenced by the judgment of the Division Bench despite specific interdiction by the Hon'ble Supreme Court of India not to do so. Therefore, the question to be decided by this Court is whether the writ petitioners were appointed by the then Managing Committee of the school as organizer teacher and if such appointments were duly made, whether such appointment can be directed to be approved or regularised in according with the existing statutory provisions and the framework laid down under the Act of 1997. 17. The real problem is whether the petitioners were duly appointed by a Managing Committee within the sanctioned strength as required under Rule 28 of the 1969 Rules. It is this that the Division Bench from whose order the special leave petition was entertained by the Apex Court was observed to have lost sight of - but the statutory authority in this case, contrary to the submissions made by Mr. Chatterjee, has not lost sight of it. It is this that the Division Bench from whose order the special leave petition was entertained by the Apex Court was observed to have lost sight of - but the statutory authority in this case, contrary to the submissions made by Mr. Chatterjee, has not lost sight of it. True it is that purported appointments were made by an organizing managing committee in 1972 in respect of the petitioners but the appointment was made of the petitioners as organizing teachers and non- teaching staff of the upgraded Class X, that is to say, high school, when the school had not been recognized as a High School. Therefore, it had no "organizing managing committee" which the 1969 Rules or their parent Act, being the West Bengal Board of Secondary Education Act, 1963 (hereinafter “the said parent Act”) recognized nor were they appointed within the sanctioned strength. It is an admitted position that the school was a junior high school when the petitioners were appointed as organizing teachers and non-teaching staff in the upgraded Class X, in anticipation of the school being recognized as a High School. Such recognition admittedly came only in July 14, 2000 with effect from January 1, 1999, when the Act of 1997 had come into force. Thus, as the statutory authority whose order has been impugned, rightly concluded, that these persons were not 'teachers' within the meaning of Section 10 of the Act of 1997, being appointed by a committee which the parent Act or the 1969 Rules did not recognize for a High School in 1972 and because they were appointed outside the sanctioned strength. 18. Once it is found, as in paragraph 17 above, that the aspect of which the Division Bench had lost sight of, as observed by the Apex Court, was considered by the Secretary of the School Education Department by his order dated July 16, 2015 and after giving the parties a reasonable opportunity of being heard, had rendered a reasoned decision rejecting the claims of the writ petitioners, all the points raised by Mr. Chatterjee about the niceties of the decision of the Apex Court, fail, because at best the writ petitioners had earned a right to be considered for approval of their appointments if they had been duly appointed as teachers and non-teaching staff in 1972 and this aspect of the matter was to be considered, since Section 10 of the Act of 1997 would come into play for the teachers, and if these conditions were found to be existing, only then were they to be sympathetically considered for regularization, without reference to Uma Devi (supra). In the instant case, as held by me in paragraph 17, once it was held that there was no duly recognized Managing Committee for the High School in 1972, but only for a Junior High School, within the meaning of Rule 28 of the 1969 Rules and the Parent Act, in terms of the decisions of this Court, inter alia Manindra Sinha (supra) which is yet to be set aside by the Hon'ble Supreme Court, and also the decision in the case of Alok Jyoti Maitra vs. State of West Bengal and Others, (2004) 1 CHN 297 , in the same vein, the law applicable to the present case is clear and does not allow regularization of the writ petitioners or any of them even on the most sympathetic treatment and consideration. In this case, even after considering the cases of the writ petitioners with sympathy, the Secretary found that under law he could not grant them the relief of regularization. So the only question left is whether on the face of the said decision, it can be called perverse, without jurisdiction, or in some way in violation of any right of the petitioner under Part III, except by way of reasonable restriction. Since the petitioners are looking for regularization of their appointments under the “State”, that is to say, public employment, their rights in this regard under Part III are subject to the reasonable restriction of being in the manner prescribed by statute and statutory rules. As demonstrated in paragraph 17 of this judgment, they were not appointed in the manner prescribed or by any authority having jurisdiction under Rule 28 of the 1963 Rules or the said Parent Act. As demonstrated in paragraph 17 of this judgment, they were not appointed in the manner prescribed or by any authority having jurisdiction under Rule 28 of the 1963 Rules or the said Parent Act. Therefore, none of their rights under Part III could be said to have been violated in any manner which is actionable, by the order dated July 16, 2015. The said order does not appear to be perverse, nor outside the jurisdiction as submitted by Mr. Chatterjee. The analysis of whether the petitioners were duly appointed in 1972 and were thus "teachers" within the meaning of Section 2(p) of the Act of 1997 in order to get the protection of Section 10 of the said Act of 1997 was necessitated by the Apex Court having expressly observed that this was an aspect of which the Division Bench had lost sight of, while relegating the matter to the Secretary for consideration. Therefore, it cannot be said that the Secretary, while acting as a delegate, had exceeded his jurisdiction. I find nothing in the decision making process of the Secretary demonstrated in the order dated July 16, 2015 as would let me interfere with it under Article 226 of the Constitution of India. 19. Accordingly the writ petition is dismissed. However, in the circumstances, there shall be no order as to costs.