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Judgment
Satyabrata Sinha, J.—Both the apeals being interrelated were taken up for hearing together and are being disposed of by this common judgment.
F.M.A.T. No. 3608/91 arises out of judgment dated June 20, 1991 passed by M. Mazumder, J. whereas F.M.A.T. No. 2709/94 arises out of an order dated August 11, 1994 passed by S.K. Mukherjee J. in CO. No. 11070 (W)/89 filed by Sanghamitra Ghosh (De) (hereinafter referred to as Ghosh) who was the writ Petitioner in CO. No. 12833 (W) 91. She has also filed a cross-objection as against a portion of the judgment dated June 20, 1991 which has been marked as C.O.T. No. 813 of 1992.
The question which arises for consideration in this application is as to whether the writ Petitioner Sanghamitra Ghosh (De) or the Respondent No. ''6'' was to be appointed as an organiser assistant teacher in bio-science in Uttar Jhaparda Saradamoni Balika Vidyalaya which is a 4-Class Junior High School (hereinafter referred to as the ''said School'').
Ashoke Jana (hereinafter referred to as ''Jana") was allegedly appointed as organiser assistant teacher in the said school in Bio-Science by the Managing Committee on January 2, 1981. An inspection was held as regards the said School''s application for recognition by the District level inspection team on September 18, 1981 wherein name of the Respondent No. 6 appeared. The school authorities allegedly submitted the requisite information in form No. 1315 to the District Inspector of School. Secondary Education, Howrah wherein also the name of Respondent No. 6 figured. The writ Petitioner Ghosh was appointed as assistant teacher on May 5, 1983. The school in question was recognised by the Board as 2-Class Junior High School with effect from January 1, 1984 and as 4-Class Junior High School with effect from January 1, 1985.
On August 29, 1984 one Smt. Santi Sudha Das, Additional D.I. of School allegedly paid a visit to the school and reported that the writ Petitioner was an unapproved teacher having been appointed in place of Respondent No. 6 who allegedly left the school before the same was recognised on November 29, 1984. The Secretary of the Managing Committee sent the name of the writ Petitioner for approval of her services as an assistant teacher to the District Inspector of School.
On November 5, 1985 the District Inspector of Schools, however, submitted a report, from a perusal whereof it would appear that the writ Petitioner was appointed on May 5, 1983 after Jana-Respondent No. 6 had left the school. The Petitioner filed a representation before District Inspector of Schools for her approval as an assistant teacher. As despite a reminder dated November 14, 1988 her service was not approved, she demanded justice by a letter dated July 28, 1989.
On August 21, 1989 the writ Petitioner moved a writ application before this Court and Susanta Chatterjee J. passed an interim order. The matter was heard by another learned Judge of this Court which was concluded on March 27, 1990 but the judgment was delivered on August 11, 1994. In the meantime the Respondent No. 6-Jana also moved a writ application on April 29, 1990 wherein a Rule was issued. The said writ petition was marked as C.R. No. 4742(W) of 1990. In the said writ application Jana prayed for approval of his appointment as an organiser teacher which was disposed of with a direction upon the Director of School Education to dispose of his representation by giving a personal hearing and by passing a reasoned order. In the said, writ application ''Ghosh'' was not made a party. As the said order was implemented, another writ application was filed by Jana-Respondent No. 6, which was marked as Civil rule No. 4742(W)/90 wherein by an order dated November 13, 1990 the said application was disposed of with a direction upon the District Inspector of School, Secondary Education, Howrah to act in terms of order dated July 21, 1990 passed by the Director of School Education.
In the said writ application, an application for recalling was filed before K.M. Yusuf, J. However, the said application was dismissed for default. In the meantime by an order dated July 27, 1990 the Director of School Education approved the appointment of Jana as organiser teacher in Bio-Science on the ground that his name appeared in the inspection report dated September 18, 1981.
On December 26, 1990 the appointment of Jana as organiser teacher was approved by the District Inspector of Schools with effect from August 1, 1990. Thereafter the present writ application was filed by Ghosh questioning the said order passed by the Director of School Education and by reason of the impugned order dated September 26, 1991 Mahitosh Majumder J. directed that the services of Ghosh may be approved as an assistant teacher in the said School and she may be paid her salary, if necessary by creating a supernumerary post. However, his lordship did not interfere with the appointment of Jana.
As in the aforementioned writ applications, the Petitioner''s prayer for approval was allowed the present appeals had been filed.
Mr. A.P. Chatterjee, the Learned Counsel appearing on behalf of the Appellants, inter alia, submitted that the question of approval of services of organiser teacher is governed by the circular letter dated December 20, 1984 and December 5,9, 1987. The Learned Counsel submits that in terms of the aforementioned circulars only those persons who were on the roll of the school on the date of first inspection thereof by the District Level Committee were entitled to be approved as organiser teachers and other teachers who were appointed thereafter being teachers-in-position must be appointed in terms of the recruitment rules which came into force from 1981. In this connection our attention has been drawn to the inspection book for the purpose of showing that Jana had been working on the said date. The Learned Counsel contends that as Ghosh did not comply with the mandatory requirements of law, the question of creation of a supernumerary post does not arise in as much as the number of the teachers to be appointed in a school is fixed by the State and thus, the High Court, cannot direct increase in the number of the teachers. A teacher cannot be appointed outside the cadre i.e. beyond the strength of service.
Mr. D.K. Banerjee appearing on behalf of the Respondent No. 6 submitted that as Jana had been working at the relevant time, his service have rightly been approved.
Mr. Saradindu Samanta, the Learned Counsel appearing on behalf of Ghosh who is Respondent No. 1 in aforementioned appeals as also the cross-objector inter alia submitted that the Appellant has no locus standi to question judgments under the appeal. According to the Learned Counsel, CO. No. 11070(W)/ 89 having been allowed by this Court by a judgment dated August 11, 1994 in terms whereof the Respondent of the said writ application also directed to make payment of financial dues on the basis of such appointment after adjustment of accounts already received by her, the same was final and binding and no order contrary thereto or inconsistent therewith could be passed. It was submitted that in terms of the provision of West Bengal Board of Secondary Education Act, the life of the ad-hoc Committee cannot be more than six years and thus, on that around the appeals at the instance of the ad-hoc Committee are not maintainable. It was further submitted that in view of the circular letter dated November 8, 1975 the school in question being a girls'' school, no male teacher could be appointed. The Learned Counsel further submitted that the Director of School Education failed to take into consideration the report dated August 29, 1984 passed by Smt. Santi Sudha Das as also the recommendations of the Managing Committee of the school and the certificate dated August 2, 1985 issued by the Headmistress of the School. The Learned Counsel submitted that Jana obtained an order dated January 9, 1991 in CO. No. 12833 (W) of 1991 behind the back of his client and when an inspection was sought to be made by the Learned Counsel, the records were found to be not traceable and in this situation Ghosh had to file a separate writ application. The Learned Counsel had further drawn our attention to the judgment of Mahitosh Majumder, J. and submitted that from a perusal thereof it would appear that as Jana had left the school and in his place Ghosh was appointed and further the impugned order having been passed by the Director of School without giving an opportunity of hearing to the writ Petitioner, the same cannot be sustained whereas another learned single Judge in terms of his judgment dated August 18, 1984 passed in Civil Order 11070(W)/ 89 directed the authorities to make payment of her financial dues on the basis of such appointment after adjustment of accounts already received by the writ Petitioner. It is stated that as up-til now the said judgments have not been complied with, a contempt proceeding is pending. Our attention was drawn further to the fact that a division bench of this Court in these appeals appointed Sri Rabilal Maitra an Advocate of this Court as Special Officer for filing a report as to the exact state of affairs as regards acquittance rolls and all the relevant school records relating to the continuance of service of Ghosh and Jana. In his report the Learned Special Officer stated that Jana was allowed to join the school on and from August 1, 1990 on the verbal instruction of the President and his services were approved by the District Inspector of Schools in terms of his Memo dated December 26, 1990. As per the said report of the Special Officer, Sri Jana was appointed as an assistant teacher. As per the statement of the Headmistress of the said school he had resigned from his services on January 2, 1983 when the school was not recognised.
It is not disputed that the school in question is a girls'' school. It is also not disputed that it is a recognised aided school and thus being governed under provision of the West Bengal Board of Secondary Education Act and the Rules framed thereunder.
On November 8, 1975, the Director of Public Instruction, West Bengal directed the District Inspector of Schools that in a Girls'' School the male teachers should not be ordinarily approved and they can be appointed in such a school in exceptional circumstances on a purely temporary basis with the prior approval of the Director of Public Instruction, West Bengal subject to the conditions that they should be replaced by qualified lady teachers as soon as possible. However, those male teachers who were appointed upto March 31, 1966 but not later than January 1, 1975 should be retained permanently after considering each case individually on its own merit by the Director of Public Instruction, West Bengal.
It is not in dispute that the functions and duties of the Director of Public Instruction are now being performed by the Director of School Education.
The Director of School Education in exercise of his power under the 1969 Rules issued certain directions as regards the recruitment of teaching and non-teaching staff known as the Recruitment Rules 1981. The said rules were repealed and replaced in the year 1989 which in turn was repealed in the year 1993.
Despite the said rules, on Decemner 20, 1984 a decision of the Director of School Education was communicated to the District Inspector of School laying down the principles in relation to the school recognised with effect from January 1, 1994. It also made provisions for approval of the teachers in position.
The directions contained therein read as follows:
Approval of appointment of organiser teachers and non-teaching staff of the newly recognised junior high schools and upgraded secondary schools.
(1) Services of the teachers and non-teaching employees of the newly recognised upgraded 4-class junior high/X-class high schools and newly recognised junior high schools should be approved as such with effect from the date of recognition/upgradation provided that
(i) ''they possess the prescribed minium educational qualifications as per requirement of the school;
(ii) they have the prescribed age on the date of appointment in the school;
(iii) they were appointed prior to the date of final inspection of the school, made in connection with its recognition ;
(iv) in cases of Junior High Schools, they were in service of the school on the date of final inspection of the school made in connection with its recognition. Cases of the teacher-in-position duly appointed within the admissible strength should be considered provided they were duly appointed by the management of the school, and they rendered a considerable period of service to the school prior to its recognition. If there is any dispute regarding the determination of the actual claims of teachership and non-teachership of the school the matter should be settled up by a subsequent inspection by the members of the inspecting team. For a final decision in the matter, such cases should be referred to the Directorate. In case of X-class High Schools the cases of those teachers who were in service on the date of discontinuation of Class IX and/or X but not later than 10.3.79 vide Board''s Notification issued in this regard from time to time should be considered.''
Another circular letter dated December 5,9, 1987 was issued by the Secretary to the Government of West Bengal to the Director of School Education as regards appointment of organiser teachers and non-teaching staff in Secondary Schools, recognised by the West Bengal Board of Secondary Education & Madrasas which is to the following effect:
Under this circumstances the following principles are reiterated for strict adherence in the matter of granting approval to the appointment of teaching and non-teaching staff in a non-Govt. aided Secondary School recognised by the West Bengal Board of Secondary Education on being granted such recognition (1) the existing teaching and non-teaching staff of a unrecognised Junior High School which applied to the said Board before 1875 in due process may be approved for appointment as organiser teacher or non-teaching staff upon the school being recognised by the said Board provided (a) such teaching or non-teaching staff has the required educational and age qualifications at the time of appointment, (b) they were present and were recommended to be so present during the authorised inspection based on which such institution was granted recognition by the said Board and (c) that there will be only six teachers in a 4-Class Jr. High School including one with academic qualifications to teach BioScience and another to teach Pure-Science. It should be noted that if such qualified teaching staff was not available during the said inspection these 1/ 2 posts will remain vacant for being appointed through the normal process.
(2) The qualified staff of a recognised Jr. High School which was granted special permission oy the said Board to sent up candidates for Madhyamik/ School Final Examinations may also be provided for appointment as organiser teacher or non-teaching staff consequent upon the schools being upgraded to a high school provided that: (a) the names of such teachers or non-teaching staff were recorded in the inspection report leading to such recognition, (b) such teaching or non-teaching staff possess prescribed qualification for the posts including academic and age qualifications at the time of initial appointment, (c) such staff were appointed by said school on of before 10.3.1979 and (d) that such staff teaching and non-teaching conform to the staff pattern of a high school as laid down in G.O. No. 772-Edn(S) dated 8.7.74.
(3) It is once again pointed out that there will be no organiser teacher or non-teaching staff for a school, although recognised by the said Board, but not having furnished application to the said board in due process before 1975. All teaching and non-teaching staff of such schools will be appointed in accordance with the employment policy of the State Govt. and procedure laid down by the Director of School Education, West Bengal in this regard.
It is also laid down that similar principles will be applicable for recruitment of teaching and non-teaching staff for junior and High Madrasahs in West Bengal mutatis mutandis.''
The 1984 circular, therefore, clearly lays down the guidelines as to how services of an organiser teacher and teacher in position would be approved in Junior High Schools. Ghosh, thus having been appointed on November 8, 1983 cannot be said to be an organiser teacher as the school was recognised on January 1, 1994, Ghosh being a teacher in position could not have been approved as she did not render a considerable period of service to the school prior to its recognition. It is also doubtful as to whether Jana can also be said to be an organiser teacher in view of the 1987 circular aforementioned.
The said Rule further provides that in case of any dispute regarding the actual claims of teachership and non-teachership of the school, the matter should be settled up by the School Inspector and by the members of the subsequent team for a final decision. Such cases should be referred to the Directorate. In the judgment passed in CO. No. 12833(W)/91, the order of the Directorate of the School Education has been quoted in extenso wherefrom it appears that the Director of School Education came to the conclusion that Jana had been working in the said school since 1981 and at the time of inspection although he worked for eight months, his case had not been approved whereas Smt. Jhana Banerjee who worked only for six months had been approved. The Director of School Education further found that Jana signed the Attendance Register upto December 24, 1982 but he was not allowed to enter the school subsequently and considering the fact that another organiser teacher junior to him was approved, the Director of School Education directed to approved his services with effect from August 1, 1990 after verification of all relevant records relating to qualification and age. As indicated before, subsequently District Inspector of School also approved the services of Jana.
The order of the Dirtector of School Education impugned in the writ petition was passed in terms of Order of S. Chatterjee, J. but Ghosh was not a party therein. The Learned Judge came to the conclusion that although the name of Jana figured at SI. No. 5 of the Inspection report but he had left the school. The Learned Judge held that Ghosh has never been given an opportunity of hearing and thus, her right was adversely affected. However, the Learned Judge took into consideration the fact that Jana had also teen working for sometime and thus, he should not be disturbed. The other Learned Judge, in his judgment, dated August 11, 1994 in CO. 11070(W) of 1989 apart from referring to the circulars did not assign any reason whatsoever.
In our opinion, in the facts and circumstances of the case, the order of the Director of School Education ought to have been tested in the light of the aforementioned circulars.
From the fact of the matter as noticed hereinbefore, it is evident that the question as to whether Jana or Ghosh should be approved or not essentially depends upon determination of question of fact. Admittedly Jana had worked in the said school for some time. It is also admitted that be it voluntary absence or resignation or the action on the part of the school authorities, he did not work as a teacher in the said school for a long time. It has to be borne in mind that even the authorities of the school sought for approval of the services of Ghosh and not of Jana and Ghosh was appointed in the post allegedly vacated by Jana.
Unfortunately, the Director of School Education in his impugned order did not consider the materials on record and jumped to the conclusion that Jana had been prevented by the School Authorities from joining the School. It is also to be noted that no final inspection of the School was held as per the contention of the Appellant. Whether such an inspection was held or not is essentially a question of fact. Moreover, consequence of non-holding of such inspection, if any, must also be taken into consideration as the said circulars refer to the position of teachers only at the time of final Inspection.
There does not appear to be any basis for such an assertion that Jana was prevented by the school authorities, which may, in our opinion, has to be decided in the light of the report of the Special Officer appointed by this Court albeit on the basis of the records.
The relationship between the school and the Jana at the relevant time was not governed by statutory rule. His services, therefore, were not protected by any statutory role. If he had resigned or his services had been terminated for any reason whatsoever, the question of his services being approved as an organiser teacher or otherwise would not arise inasmuch as he was not an employee of the school either on the date of grant of such recognition.
The Director of School Education also appeared to have failed to take into consideration the relevant fact that according to Ghosh, she had been appointed and asked to join the school in question in place of Jana which necessarily implies that Jana had not been in service at the relevant time.
Before the Learned Judge Director of School Education was not represented. Admittedly the school in question was established in the year 1974. Jana joined the school much thereafter. The question thus, which may arise for consideration is as to whether a teacher who had joined the school much after its establishment can at all be termed as an organiser teacher or not. The work ''organiser'' has a definite connotation. In relation to the Primary Schools, the State had come out with circulars stating as to who would be considered to be the organiser teacher and who would be the teacher-in-position. It is also pertinent to note that in the circulars in question which have been referred to hereinbefore the State had used two different terminologies namely, organiser teacher and teacher-in-position.
The question as to who would be the organiser teacher and who would be the teacher in position, remain unanswered as the counsels appearing on behalf of the parties could not throw any light in this regard. Applicability of the circulars issued by the State as regards the approval of the teachers would depend upon the question as to whether the concerned teacher fulfilled the criteria laid down therein or not; the first of them being as to whether he is an organiser teacher.
If Jana was not an organiser teacher and merely a reacher in position like Ghosh, the same consideration would weigh as regards his approval in terms of the aforementioned circular letter as in the case of Ghosh.
The Director of School Education in exercise of his power conferred upon him under the 1969 Rules issued directions as regards recruitment of teaching and non-teaching staff in a recognised aided and unaided school. Such directions admittedly are statutory in nature. In the event a teacher does not fulfil the conditions of obtaining approval as regards his services being either in the capacity of an organiser teacher or teacher in position, the recruitment rules have to be followed.
After coming into force the said recruitment rules, the 1975 circular has ceased to have any effect whatsoever and in this view of the matter the submission of Mr. Samanta to the effect that Jana being a male teacher, could not have been considered for appointment in a girls'' school cannot be accepted inasmuch as there does not exist any such restriction in the recruitment rules. It goes without saying that the statutory rules will prevail over the executive instruction.
It is disturbing to note that Ghosh filed two writ applications in relation to the self-same subject matter. Mohitosh majumder J. did not disturb approval of his service whereas S.K. Mukherjee, J. directed the approval of Ghosh. The said orders, therefore, are contradictory to and incolsistent with each other.
The submission of Mr. Chatterjee to the effect that a bare perusal of the aforementioned circular would show that posts of teachers are limited and in that view of the matter, the question of creation of any supernumery post does not arise, appears to be correct. This Court in exercise of its power under Article 226 of the Constitution of India cannot normally direct creation of such supernumery posts. In terms of the recruitment rules posts are required to be sanctioned and in the event vacancies in teaching and non-teaching staff are required to be filled up, the procedure laid down in the said recruitment rules are required to be strictly complied with.
As these aspects of the matter had not been considered, we are of the view, that interest of justice will be sub-served if the order passed by the Director of School Education and consequently the approval granted in favour of Jana as well as the directions of the Learned Judge to approve the services of Ghosh if necessary by creating supernumery posts are also set aside and the matter is remitted to the Director of School Education for consideration of the matter afresh. In this view of the matter, the judgments under appeal cannot be sustained. It is true as was submitted by Mr. Samanta that Ghosh had been working in the school for some time but it is now well known that mere prolonged or continuance service does not mean permanence. An appointment de hors the rules is a nullity.
The District School Board, 24-Parganas (North & South) and Ors. v. Dukhiram Sarder and Ors.1991(2) Cal. H.C.N. 355, upon which strong reliance has been placed by Mr. Samanta the fact of the matter was totally different. In that case the teacher in question was appointed on the instruction of the Minister in a vacant sanctioned post. The questions which were raised in these appeals were not raised in the said decision.
Headmistress, Dubrajpur Girls'' High School and Ors. v. Pradip Kumar Mitra 1991(2) Cal. H.C.N. 355 cannot be said to be no longer a good law in view of the recent decision of the Supreme Court of India. Reference in this connection may be made to Jammu & Kashmir Public Service Commission and Ors. v. Dr. Narinder Mohan and Ors. 1993(2) C L.J. 240; J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., ; Dr M.A. Haque and Others Vs. Union of India (UOI) and Others, and Ashok Kumar Chatterjee v. State of West Bengal and Ors. 1995 S.C. 962. This matter has also been considered in Managing committee, Dinhata High School v. Sri Ram Chandra Saha and Ors. It is interesting to note that A.K. Chakraborty, J. who was a party in Headmistress, Dubrajpur Girls'' High School''s case, in a recent decision in Samir Bagchi v. State of West Bengal and Ors. 1995(2) C.L.J. 255 refused to follow similar earlier decision in view of the decision of the Supreme Court of India in Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra and Ors. 1996 L.l.C 156. Reference in this connection may also be made to Calcutta District Primary School Council and Anr. v. Smt. Anuva Roy (Chakrabarty) disposed of on April 17, 1996.
Moreover, when the posts are limited and which have been sanctioned upon taking into consideration various relevant factors including teacher-student ratio and other relevant factors, the question of imposing the services of other some persons in the school in violation of such statute rules would not arise.
However, it is stated at the bar that 2 posts are lying vacant. If this be the position, we have no doubt in our mind that the Director of School Education shall take all steps to fill up the said posts in accordance with law after considering the cases of both Ghosh and Jana strictly in accordance with law and in the light of the observations made hereinbefore after giving an opportunity of hearing to all concerned including the school authorities.
We may further observe that in the event, the Director of School Education finds that the services of neither Ghosh nor Jana can be approved in terms of the aforementioned circular letters, he would take steps to fill up the said posts in terms of the recruitment rules. However, in such an event, keeping in view the peculiar facts and circumstances of this case, Director of School Education shall direct the District Inspector of Schools, Secondary Education as well as the school authorities to consider the cases of both Ghosh and Jana together will all other eligible candidates and in the event both or any of them are/is selected, their age bar, if any, shall be condoned.
We, however, do not agree with the contention of Mr. Samanta that the Appellant had no locus standi to maintain these appeals.
The aforementioned appeals and the cross-objections are, therefore, disposed of with the aforementioned direction and observations but in the facts and circumstances of this case there will be no order as to costs.
Xerox certified copy if applied for be supplied on priority basis.
Application disposed of with direction.
Satya Narayan Chakrabarty, J.
0 I agree.