Bijoy Bahadur Singh vs D. Ghosh

Satyabrata Sinha, J.—This application for contempt arises out of an order dated September 11, 1991 in C.R. 130 (W) of 1979 whereby and whereunder a learned Judge of this Court directed the Director of School Education to take immediate steps within a period of four weeks from the date of communication of the order for approval of the appointment of the Petitioner on the grounds indicated therein.

The fact of the matter lies in a very narrow compass.

The Petitioner was initially appointed as teacher-cum-clerk in Lajpat Hindi High School, Primary Section (hereinafter referred to as the said School) by the Managing Committee thereof on July 26, 1967. Allegedly on and from August 1, 1968 he had been asked to perform the duties of a teacher only. His services has been confirmed by the Managing Committee with effect from July 26, 1969 by a letter dated July 15, 1975. He was asked to perform the duties in place of Siaram Pandey who retired from service on April 1, 1976. After he was placed in a permanent vacancy he made several representations to the District Inspector of School, Primary Education, Calcutta for approval of his services but no step was taken thereupon. He filed the aforementioned writ application wherein the order as referred to hereinbefore was passed by Mohitosh Majumder, J. on September 11, 1971. In the said application initially the Calcutta District Primary Council and its ad hoc committee were not a parties but lateron they were so added. No affidavit-in-opposition had been filed by the Respondents in the said writ application. The Director of School Education after the said judgment was passed, directed the District Inspector of Schools, Primary Education, Calcutta to comply with the order of this Court. Whereupon the learned Advocate for the Petitioner was requested to serve a copy of the judgment dated September 11, 1991. The copy of the said judgment was served on the Director of School of Education on March 30, 1992.

This contempt application was filed on June 8, 1992. However, the order of this Court was not carried out. As it was contended that the District Inspector of School, Primary'' Education, had no jurisdiction to approve the services and only the Chairman of the District Primary School, Calcutta can pass such an order, the District Primary Council was directed to be added as a party. An application for recalling of the order dated September 11, 1994 was filed on behalf of the ad hoc committee on June 6, 1995 wherein it was contended that the order had been passed exparte and no opportunity had been given to the said Council.

Mr. Chatterji appearing on behalf of the Petitioner submitted that the application for recalling as also the alleged justification for non-compliance of the order should not be considered in this proceeding and at this stage. The learned Counsel submits that the Bengal (Rural) Primary Education Act, 1930 (hereinafter referred to as the 1930 Act) as also the West Bengal (Urban) Primary Education Act, 1963 (hereinafter referred to as ''the 1963 Act'') are not applicable to the Tools situated in Calcutta. Mr. Chatterji has further drawn my attention to various circulars and submitted on the basis thereof that Managing Committee of the school had the requisite competence, authority and jurisdiction to appoint a teacher.

It was further submitted that there is nothing on records to show that the District Inspector of Schools at the relevant point of time had no power to grant approval.

Mr. Maiti, appearing on behalf of the Council, however, submitted that at the time of alleged appointment of the Petitioner-there was no vacancy in the School and such vavancy arose only on resignation of Sri Siaram Pandey in July 1975. Mr. Maiti submits that the impugned judgment has been passed in ignorance of statute and thus the said order dated September 11, 1991 passed by Mahitosh Majumder, J. should be recalled and the contempt proceedings be dropped. According to Mr. Maiti the procedure of appointment are as follows:

a. A Board shall appoint teachers whether temporarily or substantively only from the panel of qualified teachers for the District forwarded by the Director of Public Instruction West Bengal and in accordance with the direction, if any, given by him.

b. No name shall be forwarded by the Director of Public Instructions, West Bengal for appointment under a Board unless it has been included in the panel of qualified teachers prepared for one District after adequate publicity and in the manner provided in Rule 3B.

c. Rule 3B provides that the Director of Public Instruction West Bengal may with the approval of the State Government set up a Selection Committee in each District to assist him in selecting suitable persons from amongst the candidates for inclusion in the panel of qualified teachers for the District.

d. The selection committee may hold such test including interview as they may deem proper and necessary for the candidates, but it is open to the Selection Committee to call only those amongst the candidates, they may consider suitable. The interview and other test, shall be held at a convenient place or places in the District or with the prior approval of the State Government outside the District.

e. The Selection Committee shall send a list of name of qualified person recommended by them to the Director of public Instructions (West Bengal) who may modify or alter the list. After such modification or alteration, if any, the Director of Public Instruction shall finally prepare a panel of qualified teachers, for the District.

f. This aforementioned rule for appointment of Primary teachers in rural areas had been applied mutatis mutendis to Urban Area including the town of Calcutta by a Notification No. 196-EDN(P) dated the April 28, 1969.

Mr. Maity the learned Counsel appearing on behalf of the Respondent drew my attention to a notification dated July 11, 1989 and submitted that a bare perusal thereof would demonstrate that the provision of 1930 Act and the rules framed thereunder were made mutatis mutandis applicable to the schools situate in Calcutta and thus the school in qeustion also came within the perview of the said Act and the Rules. It was further submitted that the said school was recognised in the year 1964 and in terms of condition of the recognition, the Managing Committee of the school could not have been appointed any other person as the entire control thereof had been taken over by the State. Mr. Maiti would urge that as Rules framed under 1930 Act came into force in the year 1940 and in view of the take over of the control of the school in 1964, the Managing Committee could not have appointed any clerk-cum-teacher as the appointing authority was the State itself. According to the learned Counsel the State had to incur all the expenses including payment of salary of the teachers. It was urged that a distinction lies between a recognised school and a school which is recognised (aided). According to Mr. Maiti the circular letters referred to by the Petitioner are applicable in relation to recognised (aided) schools but not in relation to a recognised school as by reason of such recognition the control of such schools have been taken over and in relation to such schools an Advisory Committee was constituted.

Mr. Maiti would urge the Statutory Rules of 1940 being applicable in relation to the schools situate in Calcutta, the judgment in question cannot be enforced.

The submissions of Mr. Maiti are required to be considered in details in view of the fact that an application for recalling of the order dated September 11, 1991 has been filed in this Court.

Before adverting to the questions involved in this application the relevant provisions of the Act and the rules may be noticed. The Bengal (Rural) Primary Education Act, 1930 was enacted which was applicable to the whole of West Bengal excepting the town of Calcutta or any area which has been or may thereafter be constituted a Municipality under the provision of Bengal Municipal Act, 1932.

The West Bengal (Urban) Primary Education Act, 1963 being Act No. XXVIII of 1963 came into force with effect from July 16, 1963. The said Act was extended to all Municipalities in West Bengal.

The legislature of the West Bengal thereafter enacted West Bengal Primary Education Act, 1973 being West Bengal Act No. XXLIII of 1973 which extends to whole of the West Bengal. By reason of s.105 of the said Act the aforementioned 1930 Act and 1963 Act were repealed.

Section 23 of the 1930 Act provides for the duties of the Board which inter alia are:

(i) to maintain al primary schools under public management in the district, except primary schools maintained by Union Boards under the Control of the Board ;

(ii) subject to the prescribed conditions to appoint and fix and pay the salaries (and allowances) of teachers in primary schools ;

(iii) to grant recognition to schools in accordance with the provisions of Section 54 or to withdraw recognition therefrom,

(iv) to make grants to primary schools under private management;

Section 2(15) defines primary school to mean a school or department of a school giving instructions in primary education either managed by the Board or recognised as a primary school u/s 54.

Section 2(16) defines public management in the following terms ;

Public Management in relation to a primary school means management by the government, or by a District School Board oither directly or through the power of delegation or Union Board, a Union Committee or a Panchnyat all other management shall be deemed to be Private Management.

Section 54 of the said Act empowers the Board to recognise any school subject to fulfilment of the prescribed conditions.

Section 55 empowers the Board to grant aid to any primary school under private management subject to the prescribed conditions. Such schools which were granted such aid were known as aided schools. It is not in dispute that with effect from July 1, 1990 the Board has been substituted by the District Primary School Council.

So far as aided schools are concerned the Board had no control over appointment of teachers. The school in question was an aided school but the same had been recognised by the Board in 19�4. It has been submitted that one of the terms of recognition of the said school was that no unapproved or anv eligible teacher would be appointed. Rules had been framed under the 1960 Act but no rule has been framed under 1963 Act. By a notification bearing No. 739-EDN(P) Cal. dated July 11, 1969 all schools of Calcutta were recognised by the D.I. Schools Primary Education and it was directed that the provisions of the 1930 Act would apply mutatis mutandis to other schools except those under the Management of Calcutta Municipal Corporation.

On or about July 20, 1972 the Government of West Bengal issued a circular letter bearing No. 1472-EDN(P) dated July 20, 1972 which inter alia states as follows:

The Governor is also pleased to direct that in respect of all aided primary (including Junior Basic) Schools in urban areas, the respective Managing Committee of the primary schools will continue to be the appointing authority. The District Inspector of Schools (P.E.) will, however, approve of the appointment of teachers by the local Managing Committee/MunicipalityA ther organisation in case of aided primary schools in urban areas except in the cases of Organiser Teachers and Teachers-in-Position where prior approval of Director of Public Instruction should invariably be taken. The District Insoector of Schools (P.E.) is authorised to approve of the appointment of teacher against all normal vacancies and new quotas of teachers only when sanctioned by Government/Director of Public Instruction, West Bengal.

By another circular letter bearing No. 1614-Edn.(P) dated November 8, 1974 it was directed:

in the circumstances, in partial modification of the G.O. No. 1472-Edn(P), dated 20.7.72,.the Governor is pleased to order that the Advisory Committee of each municipal area (including Calcutta) constituted by Government be empowered to prepare panels of candidates for appointment of teachers (both trained and untrained in recognised Primary and Junior Basic Schools in urban areas. Rules and orders for preparation of panels under the District School Boards will apply mutatis mutandis in this case. The cases of unapproved teachers now working (appointed prior to 1.4.1974) in aided primary and Junior Basic Schools may be considered at the time of preparation of panels. The Managing Committees of recognised (aided Primary and Junior Basic Schools shall appoint teachers from out of the approved panels for the respective municipal areas after the names of candidates are formally communicated by the District Inspectors of Schools (P.E.) to the schools concerned.

The said order was to come into force with effect from July 1, 1975.

However, it appears by an order dated September 16, 1975 the aforementioned circular letter dated November 8, 1974 was directed not to be given effect to upto December 31, 1975 or till the date of approval of the panels prepared by the concerned Advisory Committees whichever is earlier. By another letter dated September 7, 1977 it was directed that the urban Advisory Committee of the District School Boards and Urban shall cease the function with effect from August 30, 1977. It was further directed:

All panels for appointment of primary teachers shall remain inoperative with effect from 30th August, 1977 and no appointment shall be made out of them. Appointments if made from these panels after 30.8.77 shall be deemed to be cancelled.

By another circular letter No. 390-Edn.(P) dated March 22/24, 1979 it was directed:

In continuation of this Department Order No. 481-Edn.(P), dated 12.4.77, on the above subject, the undersigned is directed, by order of the Governor to state that the Governor is pleased to order that since the District Inspectors of School (P.E.), could not prepare panels of qualified candidates for appointment as teachers in aided Primary/Jr. Basic Schools in urban areas, implementation of G.O. No. 1614-Edn.(P) dated 8.11.74 was in effect held up till 30.6.77. The teachers appointed by the Managing Committee of aided Primary/Jr. Basic Schools from 1.1.77 to 30.6.77 may. therefore, be approved by the District Inspectors of Schools (PE) subject to the condition imposed in item (c) of G.O. No. 896-Edn.(P) dated 28.4.78 and fulfilment of other usual conditions.

By another letter bearing No. 896-Edn.(P) dated April 20, 1978 in relation to a point as to:

Whether appointments made in Schools under the Free & Compulsory Primary Education Scheme and also by Managing Committee of Urban aided Primary Schools upto 21.12.76 can now be approved, ''it was stated'' reference may be made to the respective urban Advisory Committee, when set up before disposal of such cases.

By another Memo bearing No. 3031(32)-Sc/P Calcutta, the October 29, 1988, it was directed:

Henceforth the cases of approval of appointment of the teaching and non-teaching staff appointed through the prescribed procedure, including those ''Post-Facto'', of all Pre-basic and Junior Basic Schools in Urban and Rural areas may be considered and disposed of by the District Inspector of Schools (Primary Education), if they are in accordance with the prevailing rules and procedures.

However, if any such case is considered by the respective District authority to require specific attention of the Director, it may be referred to this Directorate for final decision. All concerned may be informed accordingly.

The said recognition was only granted for a period of one year provisionally.

In terms of the said recognition, a Managing Committee was to be constituted under Chapter-8 of the Bengal Education Code, 1931. The said Code, in view of the decision of the Supreme Court of India in Dwerka Nath Tiweri v. State of Bihar and Ors. AIR 1959 S.C. 249 does not have any statutory force. Clause (8) of the said Memorandum only provided that no additional teacher should be appointed without prior approval of the office. It is, therefore, evident that such conditions were imposed only for the purpose of grant of recognition. From the list of unapproved teachers working in normal and additional posts at different schools at Calcutta District, it appears that the Petitioner was appointed as an additional teacher on July 26, 1967.

The school in question even if had appointed the Petitioner without obtaining prior approval, the same was not done in violation of any statutory provisions. The State could have only withdrawn the recognition of such school as no prior approval had not taken. Keeping in view of the subsequent circulars the appointment of the Petitioner cannot be said to have been made in flagrant violation of any mandatory provision of a statute. It is true that by reason of the notification dated July 11,1969 it was directed that the provisions of 1938 Act would apply mutatis mutanois to the schools situate in Calcutta but the said notification ex-facie must be held to be illegal. The 1930 Act in no uncertain terms states that the said Act will not have any application in the town of Calcutta. Without amending the provisions of the said Act the provisions of the Act could not have been made applicable in relation to the schools situate within the town of Calcutta by reason of an executive instruction. Evidently recognition of any such school or grant of aid by the State was not done under any statute. The provisions of 1930 Act and the Rules framed thereunder which were made applicable to schools situate in the town of Calcutta in terms of 1969 Circular remained in the realm of executive instructions.

Mr. Ashok Kumar Maity, has also drawn my attention to the fact that the Circular letter dated November 8, 1974 was given effect to by reason of a Government Order dated May 15, 1978 and an Advisory Committee was constituted for Calcutta District and panel was prepared inviting the names through advertisement and also from the application made by the unapproved teachers by taking their interview. The learned Counsef, submits that the Advisory Committee recommended the case of 1001 candidates who had applied before the Advisory Committee but the Director of School Education (Primary) approved the said panel subject to the conditions laid down in his order dated July 4, 1979 except the cases of a few teachers as mentioned therein.

Mr. Debasish Kargupta, learned Counsel, appearing on behalf of the District Inspector of Schools (P.E.) as also Mr. Maity, learned Counsel, submit that in view of Article 162 of the Constitution of India the State Government has the requisite power to issue executive inst uction. Reliance in this connection has been placed on Banshidhar Misra and Ors. v. State of West Bengal and Ors. 87 C.W.N. 810 , V. Balasubramaniam and Others Vs. Tamil Nadu Housing Board and Others, and Shamkant Narayan Deshpande Vs. Maharashtra Industrial Development Corporation and another, .

Mr. Maiti and Mr. Kargupta, learned Counsels, very fairly admitted that the 1963 Act had no application in relation to Calcutta District Admittedly, 1930 Act had also no application in relation to Calcutta.

It, however, appears from the submission made by Mr. Kargupta, learned Counsel, that the Petitioner had filed an application on April 24, 1978 and November 29, 1978 before the District Inspector of Schools (P.E.), Calcutta but he has not been communicated any result thereof.

There appears to be some dispute as to whether such an application was filed before the Advisory Committee or before the D.I. of Schools (P.E.).

For the purpose of disposal of this writ application it is not necessary to consider the said aspect of the'' matter.

There cannot be any doubt that in terms of Article 162 of the Constitution of India the State Government is entitled to issue an executive instruction in respect of a matter with regard to which the State Legislature has power to make laws. It is also true that the Education is a matter included in the Entry 25 of the Government List III of 7th Schedule of the Constitution of India.

The question which, therefore, arises for consideration is as to whether the aforementioned administrative instructions have the force of law. In the case of B. Misra v. State of West Bengal(Supra) (as his Lordship then was) while taking into consideration of the West Bengal Urban Primary Education Act, 1963, held as follows:

The next question that requires consideration is whether the Govt, is competent to issue the circular dated 26.8.77 as mentioned in annexure ''B'' to the petition. Undoubtedly Article 162 of the Constitution confers powers on the Government to make orders in respect of matter with regard to which the State Legislature has power to make laws. Education is a matter included in entry 25 of the concurrent list II of the 7th Schedule of the Constitution of India. Therefore, Government is competent to issue circular so long as the circular of the Government does not encroach upon any Act made by a competent legislature.

Admittedly the said 1963 Act has no application in relation to the town of Calcutta and thus the question of applying the rules framed thereunder by an executive instruction does not arise.

In the case of Shamkant Narayan Deshpande v. Maharashtra Industrial Development Corporation and Anr. (Supra) the Supreme Court held as follows:

It is well settled that in the absence of a rule or regulation, the authority can prescribe service conditions by executive instruction and this is what was done till the year 1988 and is also sought to be done since 1988 by the impugned resolution.

No exception can be taken to the said legal position. However, in the instant case at the relevant point of time when the Petitioner was appointed by the Managing Committee having the requisite jurisdiction to appoint teacher. There was no relationship of employer and employee between the Petitioner and the State. At the relevant time no statutory order or statutory law governing the condition of service existed. As indicated hereinbefore, the administrative instruction has been issued in terms of the provision of the Education Code which has been held to'' have no force of law.

Any appointment made in violation of an administrative order may be an irregularity but the same is not an illegality so as to render the appointment void abinitio or a nullity and, thus, non est in the eye of law.

Thus the appointment of Petitioner even if Mr. Maiti''s submission are accepted to be correct was at best made in violation of an administrative order and thus the same was not a nullity.

Consequently it must be held that such an appointment has not been made in violation of the mandatory provision of 1930 Act or the mandatory provisions of the rules framed thereunder. The submission of Mr. Maiti to the effect that only because recognition has been granted to the school in question in the year 1964, the same amounts to take over of the control of the said school by the State must be stated to be rejected. In the year 1964 when the provisional recognition was granted to the said School, the 1969 circular did not come into existence. Evidently such recognition has been granted in terms of the provision of the Bengal Education Code. Section 54 of 1930 Act does not if-so-facto State that the control of any School shall stand taken over by the State only by reason of such recognition. The distinction sought to be made by Mr. Maiti that a recognised school stands on a different footing than a recognised (aided) school has also no substance. The provision of Section 54 of the Act provides for grant of recognition of the school only whereas Section 55 thereof speaks of grant of aid. A school may be recognised but no aid may be granted to it. Similarly aid may be granted even to a recognised schools. In the event, submission of Mr. Maiti is accepted the same would result in great anomaly inasmuch as in such cases question of grant of any aid to any recognised school in terms of Section 55 of 1930 Act would not arise at all as by grant of recognition, the control of the school according to Mr. Maiti has been taken over. In such an event, such schools could not have been described as recognised (aided) schools. The schools which are, therefore, described as recognised (aided) school must mean those schools which are both recognised and aided. The extension of the aid granted in relation to a particular school is of not much consequence. In a given case ''aid'' may be granted to the extent of payment of Dearness Allowance, whereas in another case even the entire salary of the teachers may b" paid from the State exchequer. But by reason of such grant of recognition or grant of aid the management and control of the school cannot be taken over unless a notification is issued by the State in exercise \\J its jurisdiction conferred upon it under any Statute. Neither any provisions of any such Statute or any notification issued thereunder in that regard has been brought to my notice. The circular letter dated July 20, 1972 in no uncertain terms state that the Managing Committee of the Primary Sohool would continue to be the appointing authority and such appointment shall, however, be subject to the approval of the District Inspector of Schools Primary Education. 1974 circular also states that the cases of any approved teachers now working (appointed prior to April 1, 1974) may be considered at the time of preparation of Panel. The Petitioner was appointed in the year 1967, albeit as a teacher-cum-clerk but as noticed hereinbefore even in the document filed by Mr. Maiti it has been noted that the Petitioner has been serving freom the said date as an additional teacher therein. In this view of the matter, it is not a case where the Petitioner can be said to have been appointed after 1974.

For the reasons aforementioned, in my opinion, the Respondents have failed to show any cogent ground for recalling of the order dated September 11, 1991. The said order was passed in presence of the Respondents including the Chairman, District Primary School Council. It is not for this Court to consider at this stage whether a copy of the writ application was in fact served upon the Counsel appearing for the Council. The learned Judge in his order dated September 11, 1991 found as of fact that the Petitioner had been discharging the function of the teacher of the school as was evident from the letter of the Secretary of the School dated July 27, 1968. The services of the Petitioner were also confirmed on and from July 26, 1969 as a teacher. He was thereafter appointed against a permanent vacancy with effect from April 1, 1975. The learned Judge further noticed the number of the sanctioned posts in the said school. The Petitioner filed a writ application in the year 1979. The said writ application was disposed of on September 11, 1991.

By reason of subsequent circulars, the State became entitled to grant approval of such appointment as contradistinguished from the conditions for recognition that prior approval had to be obtained in view of the fact that recognition had been granted. Under a non-statutory administrative instruction, a post-facto approval is also possible to be given. Thus, in my considered opinion the learned Judge has the jurisdiction to exercise his discretion both in law as also in equity to issue the necessary directions in terms of his order dated September 11, 1991.

It is also partinent to note that the learned Counsel for the parties have placed before me several orders which have been issued in 1992-93, from a perusal whereof it appears that the District Inspector of Schools (P.E.) had approved the services of some teachers pursuant to the orders of this Court. It is, therefore, not a case where the Respondent had no power to approve the services of a teacher at all. At present the competent authority is the Chairman of the District Primary Council, Calcutta.

It appears that the Government of West Bengal, Education Department, Primary Branch, had issued another circular dated November 26, 1981 which reads thus:

It has been brought to the notice of the Government that in Municipal area where free and compulsory Primary Education Scheme has been introduced under the West Bengal Urban Primary Education Act, 1963, there are some aided and sponsored Primary Schools/Junior Basic Schools/ Pre-basic Schools which are not under the management of the Municipalities concerned. A problem, therefore, arises in taking action on pending cases of appointments of teachers in those schools. After due consideration it has now been decided that the cases of appointment in such aided and sponsored Primary Schools/Junior Basic Schools/ Pre-basic Schools may be disposed of by the District Inspectors of Schools (P) with prior approval of the Director of Primary Education, subject to the following conditions -

i) Only those cases of appointment which have been continuing for more than two years without any thing may be approved ;

ii) The incumbents appointed possess the qualifications prescribed for the post

iii) The appointments were given after observing the normal procedure for recruitment to such posts ;

iv) The appointments were given on observance of teacher-pupil ratio prescribed. All concerned may be informed accordingly.

In fact, the Director of School Education was directed to take immediate steps within a period of 4 weeks from the date of communication of the said order instructed the District Inspector of Schools Primary Education to grant such approval. The District Inspector of School, however, pleaded his inability to do so as in the meantime the Calcutta District Primary School Council has come into existence. Despite the fact that the Calcutta District''s Primary School Council was impleaded as a party, no such direction was issued against it. Does that mean that this Court in exercise of its jurisdiction under Article 215 of the Constitution of India as also the provisions of Sections 11 and 12 of the Contempt of Court''s Act is debarred from issuing any such direction. The answer to the aforementioned questions in my opinion must be rendered in negative. While exercising its contempt jurisdiction this Court can and in a given situation would give such a direction.

In R.M. Ramaul Vs. State of Himachal Pradesh and Others, the Apex Court observed ;

Since there was no specific direction in this behalf in the order, technically, there may be no case for punishment for contempt ; but we make it clear that the promotion for the period from 28.5.1982 to 3.9.1986 should be accompanied by the monetary benefits. If a specific direction is necessary we issue it here and now. The appropriate monetary benefits shall be granted within 2 months from today.

In view of the aforementioned authoritative pronouncement, I hereby direct the Chairman of District Primary School Council to grant approval and treat the Petitioner to be an approved teacher in terms of the aforementioned judgment dated September 11, 1991 at an early date and not later than two months from the date keeping in view the special facts and circumstances of this case and particularly the mental agony suffered by the Petitioner, he is entitled to costs which is quantified at Rs. 5,000 payable by the State. The application is disposed of with the aforementioned directions.