Haradhan Bhowmick vs State of West Bengal

Amitava Lala, J.

In 1974 school was eastablished and started taking classes upto v. and VI. In 1985 Classes VII and VIII were also started. On February 17, 1987 Sabhadhipati, Howrah Zilla Parishad duly recommended the school along with 32 others to the concerned Minister-in-charge, Education Department for recognition till April 25, 96 when no step was taken. A writ petion being Company No. 5418 (W) of 96 was made. A Bench of this Court was pleased to direct the concerned District Inspector of Schools to make an inspection by the District Level inspection Team within the prescdribed period. On July 10, 1996 inspection was made. On July 8, 1997 Secretary of the Education Department rejected the prayer of recognition in the following grounds:

i) Accommodation of the school is not sufficient;

ii) Appointment of one organising teacher under the Science and Mathematics group was made not in accordance with staff pattern laid down by the Government and the school authority failed to furnish any documentary evidence;

iii) The school authority failed to furnish any documentary evidence to prove that the school has applied prescribed from and fees of Rs. 25/- by 1975 which is pre-requisite condition for first recognition of a school.

On December 8, 1997 by filing a writ petition being W.P. No. 17463 (W) of 1997 the memo was challenged. A Bench of this Court was pleased to direct review that decision within a particular period up on giving opportunity of hearing and by passing a reasoned order. On February 13, 1998 hearing was held by the president of the Board. On March 10, 1998 after hearing the President of the Board was pleased to reject the recommendation on the following grounds:

i) The school did not received any permission for starting a new one from the local authority concerned when it was established;

ii) The school did not apply for recognition in prescribed form with requisite fee of Rs. 25/- to the Board;

iii) Accommodation in only a big hall of the building of the school for running of 4-classes along with the office and girls'' common room is to much insufficient;

iv) Appointment of organising teaching staff specialy under the Science and Mathematics group was not made in strict compliance of the staff pattern of the Junior High School of the State Government West Bengal;

v) No records, registers as regards administration of the school were not available before 1978 and the school did not submit them at the time of hearing also;

vi) The DLMT did not recommend the school for recognition;

On May 18, 1998 the Sabhapati of the concerned panchayat Samity wrote a letter stating that the school should be recognised in view of its need for the public of the said locality.

On October 26, 1998 the Certificate was issued by the public Health Engineering Department, Government of West Bengal stating that there is a tap water connection for supply of drinking water for the students of the school.

On October 27, 1998 a certificate was issued by the Pradhan of the Gram Panchayat stating that the said school has its own land and there are sufficient numbers of teaching and non-teaching staff and the school has separate toilets etc. for both boys and girls.

On October 29, 1998 the Block Development Officer of the concerned Block has issued a memorandum to the District Inspector of Schools stating-that the said School immediately needs recognition. However, again challenging the order, a writ petition being W.P.14104(W) of 1998 was made before this Court.

On April 16, 1999 upon hearing the parties an order was passed by a Judge of this Court giving detailed picture of the dispute. Although the writ petition was dismissed by holding that recruitment of the State for giving recognition has to be fulfilled but Court did not preclude the School authorities from making fresh application for granting recognition upon fulfilling the condition. According to the School authorities, conditions were fulfilled by 21.6.99 and an application was made for the purpose of giving recognition. But since no recognition has been given, the present writ petition was moved.

However, it appears to this Court that it is 4 round of litigation for the purpose of giving recognition of the school upto 4 classes, i.e., junior school standard. So far as the approval of the appointment of the teaching and non-teaching staffs, are concerned I am not interested to go into such prayer at the present moment because the question of giving approval of the respective services will born only upon giving recognition of the institution. Therefore, Court is only inclined to deal with the matter of recognition of the concerned junior high school. The Petitioners contended that taking various fictitious plea cannot be the ground of refusing recognition.

Mr. Asok De learned senior counsel appearing in support of the Petitioners, contended before this Court by citing Brown v. Board of Education (1953) 34 U.S. 483 at 494 that the education is perhaps the most important function of the State and local Governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of education. Such an opportunity, where the State has undertaken to provide it, is a right which must be made available to all on equal terms.

Now-a-days in hearing the matters regarding education I, very often, come across a decision in respect of Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., . The ratio of the judgment is that imparting education is fundamental right but giving recognition to an institution is the right of State authority. Today the question before this Court is how to make a bridge in between these, two principles in the facts and circumstances of this case. In the case of Al-Karim Educational Trust and another Vs. State of Bihar and others, question of withholding recognisition arose and the Supreme Court reacted in the following way. The minor deficiencies if they exist, shall be taken care of by those in charge of the Institution. For taking such further steps, the grant of affiliation need not wait. It is impractical to insist, for a full-proof or absolute adherence to all requirements without regard to their importance or relevance, for the purpose of imparting education, in a practical way, especially because the institution has begun to function, students admitted to the institution have been taken the examination and the fate of a good number of students should not hang in the balance in an unending or overlasting manner. Therefore, the steps for the grant of affiliation to the Institution may now be expedited and the Respondents are to be directed to issue a necessary order without loss of time. He further contended that in an appropriate circumstances Court can pass mandatory order. He cited a judgment of Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Another Vs. K.S. Jagannathan and Another, whereunder I find that there is no doubt that the High Court under Article 226 have the power to issue a writ of mandamus or to pass necessary orders or directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a Rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the polity for implementing which such discretion had been conferred. In all such cases and in any other fit and proper case the High Court can, in the exercise of the jurisdiction under Article 226, issue a writ of mandamusor a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given hand it properly and lawfully exercised its discretion.

11 Recently by a Bench of this Court in W.P. No. 2010 (W) of 2001 duly considered this issue and taken the similar view. It has also reminded that even this Court giving example of passed mandatory orders in numerous occasions in the similar circumstances of Santosh Kumar Chakroborty and Ors. v. The State of West Bengal and Ors. 2000 (1) C.H.N. 695. Ajit Kumar Das v. The W.B.B.S. Education and Ors. 1999 (2) C.H.N. 789.

The Learned Counsel appearing for the Board vertually made three submissions. The Petitioners being organiser teachers have no locus standi to take out the writ petition. The accommodation is insufficient. The Court has no power to pass mandatory order.

So far as locus standi point is concerned, a Dvision Bench of this Court in the case of The Association of Teachers in Anglo Indian School Vs. The Association of Aids of Anglo Indian School in India and others, held that any person who is concerned with the affairs of the School has locus standi to initiate a proceeding under the writ jurisdiction of the Court. The reference have been made in such division Bench on connection with decisions reported in Fertilizer Corporation Kamagar Union Sindri and Ors. v. Union of India and Ors. AIR 1981 S.C. 344 and State of Punjab and Others Vs. Gurdev Singh, .

According to me, concept of locus standi has been thoroughly changed. Now-a-days even an unconnected person, can invoke the writ jurisdiction of the Court for the benefit of public at large. Therefore, rigidity of the question of locus standi should be understood in the factual background. In the instant writ petition two-fold prayers are made by the organising teaching and non-teaching staffs. One is the recognisition of the institution and the other is approval of their respective services. As because I have held at the threshold that unless and until school is recognised the cause of action of approval cannot sustain, I cannot upset the other cause taking the plea of locus standi. Factually out of the teaching and non-teaching staffs, Headmaster of the institution is the first Petitioner, who has right to represent the school. Therefore, the question of locus standi is not so attractive that the main relief can be ignored.

So far as the question of accommodation is concerned, this Court was pleased to appoint Advocates of all the parties including Board and/or State to make an appropriate enquiry and furnish a report. The report of the Special officers never suggested that the accomodation is unsufficient. There is a clear indication in the said report that there is also open land where in future further accommodation can be provided. Therefore, the situation is not such that the recognition is refused then such action will be hit by the ratio of the judgment Alkarim Education Trust and Anr. v. State of Bihar (supra). The Learned Counsel appearing for the Board cited a Division Bench judgment being West Bengal Board of Secondary Education v. Dakhiruddin Khan 2002 (2) C.H.N. 632 to establish that the recognition was refused because of the reason that the adequate infrustructure of. giving recognition of the school was not available. So far as the Supreme Court judgment in Dental Counsel of The Dental Council of India Vs. Subharti K.K.B. Charitable Trust and Another, which was duly considered by the Division Bench was not the precedent by itself since the parties agreed to have certain directions. Therefore, such ratio cannot be applicable in the present case where fourth time the writ jurisdiction of this Court had been invoked upon being refused to get recognition on the ground of infrastructure.

The Learned Counsel appearing for the State cited a decision in West Bengal Board of Secondary Education v. State of West Bengal 1997(2) C.L.J. 165 to establish that the right under Article 226 ordinarily be the legal and fundamental right which has been infringed by the act of the authority. The right of the organising teachers would arise only when the school will be recognised. But before the school is recognised by the authority, the organising teachers cannot have any right. Accordingly, the same cannot be challenged by the organising teachers. It is the Managing Committee of such school who can dispute the decision of the authority if they can establish that inspite of fulfilment of conditions prescribed for recognition of the school, the authority refused such recognition. The Division Bench of this Court also held that the orgniser teachers have no right to seek recognition of the school. A Bench of this Court under an order dated May 7, 2002 also held that the organiser teachers have no right to seek recognition of the school amongst other grounds. I am sorry to say that such argument cannot be acceptable by the Court for the simple reason that the Headmaster of the institution being part of the Managing Committee approached the Court which is one of the factusl aspect along with other legal aspects which have already been discussed.

According to Mr. Saibal Acharyya Learned Counsel appearing for the Board, Section 19(a)(3) of the West Bengal Board of Secondary Education Act says that the subject to any general or special orders of the State Government, provision of this Act and any rule and regulation made therein the Executive Committee shall have the power to grant or refuse recognition to institution and to withdraw recognition granted to the institution after considering the recommendation of the recognition Committee. It is a settled law that the citizen may have a right to establish an educational institution but he has no right to ask for affiliation or grant-in-aid from the state. One can get the affiliation subject to the conditions for such grant of recognition imposed by the State Government in the Statutory rules. No one can have any fundamental right for recognition of any institution or for seeking for the same. The aforesaid principle of law will be reflected in Jhallu Rai''s case 2000 (3) C.L.T. 392. This principle of law will also be reflected from the Nabadwip Chandra Das''s 1998 (1) C.L.J. 141. However, the decision in Jhally Rai''s case passed by the learned single Judge of this Court has been affirmed by the Division Bench of this Court. In a case of Sib Sankar Kundu being MAT 727 of 2001 a Division Bench of this Hon''ble Court passed certain orders on the point of recognition as such the same is no more res Integra. He further submitted that the question of recognition is a matter which is to be read with Arts. 41 and 45 of the Constitution of India conjointly but not separately. The question of granting recognition of any education institution is a matter which is embodied in the Constitution of India under the heading of Directive Principles of State Policy and such Directive Principles as State policy cannot be enforced even on the demand of substantial justice. The Hon''ble Supreme Court may exercise of its jurisdiction conferred upon it under Art. 142 of the Constitution of India. In Dental Counsel of India v. Subhariti K.K.B. Charitable Trusts (supra) the Supreme Court of India held that at present there is tremendous change in social values and environment. Some persons consider nothing wrong in commercialising education. Still, however, private institutions can be permitted to have the educational ''shops'' in the country. Therefore, there are statutory provisions for establishment and administering educational institution without prior permission or approval by the authority concerned.

I am taking into account the respectful submission of the parties in all respects. So far the report furnished by the Special Officers is concerned, it appears to this Court that it is favouring for giving recognition. The only remarks that there is no any big hall or any other room save and except the above mentioned rooms therein. However, it has been recorded therein that in front of the school building there is a vacant land. Therefore, if such facts are taken into consideration on the basis of the ratio of Alkarim Education Trust and Anr. v. State of Bihar (supra), it will be seen that delay in considering the fulfilment of deficiency cannot be a good ground for rejection. So far the question of mandatory order is concerned, it is true to say that importing education is a fundamental right but for not getting recognition. Recognition is the function of the authority upon fulfilment of certain requirements. But. at the same time, the authority unnecessarily cannot delay or refuse on the ground of various deficiency. Deficiency can be fulfilled on the basis of the direction. But deficiency ipso facto cannot be the ground of rejection. In case of deficiency, Board has every right to give sufficient time to remove the deficiency. Board and other, authorities have right to direct the school authorities to fulfil the requirements. Unless and until such deficiency is not fulfilled, recognition can be witheld. But the refusal of a recognition in galore is a wrong message to the people at large. This cannot be done reluctantly as per the sweet will of the governmental authorities. Variable features are to be taken note. A rigid formula cannot be adopted. In the instant case rigidity is such that on four occasions the Petitioners had to file writ petitions. It is to be remembered that in the developing country education is more than the integral part otherwise the development will be delayed. Similarly development of a city or a town may not be equal with the development of a village. Therefore, infrastructure of an institution of a village cannot be equal of a city or a town. It is depending upon various factors. But recognition of school in a very remote place can change the scenario of such locality. It cannot be said that as because the remote village was remote it will be remote for ever. This cannot be the proper answer of the state authority or the Board. In the case of Unnikrishnan v. State of Andhra Pradesh and Ors. (supra) importing education was made fundamental right under part III of the Constitution of India from part IV which is made for the Directive Principles of State Policies. Learned Counsel appearing for the Board missed such ratio of the judgment. Now it is well established that importing education is a fundamental right. Obviously, at a stage such fundamental right lead to a stage of getting recognition of such institution. Therefore, matching the sequences are necessary for the purpose of getting or giving recognition of an institution. These are depending upon various circumstances. The ratio of the Unnikrishnan v. State of Andhra Pradesh and Ors. (supra) case is not that as because giving recognition in the hand of the authority they will very often refuse it.. I find that this is the matter where the harrassment towards the Petitioners can be visualised.

However, the Learned Counsel appearing for the parties being the Special Officers furnished a report by showing that there is no big hall which is the only criteria for completion of infrastructure. Therefore, the School Authorities are directed to build the same within a period of two months from the date of communication of this order and the Board is hereby directed to give recognition of such institution upon varifying such condition of making big hall or room. The President of the Board is empowered to give recognition only upon varying the position within a month from the communication of this report of the school mandatorily and considering the same as emergency. The President of the Board is debarred from taking any other points which has been considered time to time by the Board.

Thus, I dispose of the writ petition with the above orders which will be strictly complied with by the School authority and President of the Board.

There will be no order as to costs.