Jatindra Mohan Das Gupta vs Sukumar Sen Gupta

P.N. Mookerjee and S.K. Chakravarti, JJ.—This is an appeal at the instance of the Plaintiff. He was a B.A., B.T. of the University of Calcutta. The then Managing Committee of Mekliganj High School, by its letter dated January 15, 1958, appointed the Plaintiff as the Head Master of this institution and the Plaintiff joined his appointment on July 26, 1958. The Defendant No. 2 was the Secretary of the school. On September 26, 1961, the Managing Committee passed a resolution, terminating the Plaintiff''s service and a notice was served on the Plaintiff by the Defendant No. 2 on October 5, 1961, by which he was informed that his services as Head Master would cease after one calendar month from the date of the receipt of the notice. The Plaintiff then filed a suit being Suit No. 26 of 1961 in the Court of the Munsif at Mekliganj challenging the above order of dismissal as illegal, arbitrary and ultra vires on certain grounds to which we will refer hereinafter. The suit was subsequently transferred to the Muasif''s Court at Cooch Behar and re-numbered as O.C. Suit No. 5 of 1962. During the pendency of that suit, the School Committee was superseded by an order of the Board of Secondary Education and the District Inspector of Schools, Cooch Behar, was appointed as the Administrator of the institution. The then District Inspector of Schools Sri N.K. Roy was added as a party to the suit. The trial Court, however, ordered the striking out of the names of the Defendants Nos. 1 to 13, who constituted the Managing Committee and directed the case to proceed ex parte. Before that suit could be disposed of, the order passed by the Board of Secondary Education, superseding the former Managing Committee, was cancelled by it. The Plaintiff, therefore, was compelled to withdraw the suit with liberty to sue afresh and such liberty was granted by the trial Court on August 11, 1962. On August 15, 1962, the instant suit was instituted before the learned Munsif, Mathabhanga and subsequently it was transferred to the Munsif''s Court at Sadar and was tried by the learned Subordinate Judge, Cooch Behar Sadar, who also happened to be the Munsif at Sadar.

The Plaintiff''s allegations were that, with effect from April 1, 1960, the Defendant No. 2 had ceased to be a member of the Managing Committee inasmuch as his son ceased to be a student of the school and he was a member of the Managing Committee as the guardian of his son. The Plaintiff, therefore, avers that whatever took place after April 1, 1960 and specially at the instance of the Defendant No. 2, was absolutely illegal and as such, the constitution of the new Managing Committee or the resolution of the Committee dated September 26, 1961, or the notice of termination of service dated October 5, 1961, were all illegal and void. His further contentions were that he could not be removed without approval of the Board of Secondary Education and that he had also automatically been made permanent.

The suit was contested by the Defendants Nos. 2 to 11 and 13 by one written statement and also by the Defendant No. 15 by another. Their defence was practically the same. They denied the allegations made in the plaint and further contended that the suit was not maintainable for the reliefs claimed and also in terms of the terms of the order, permitting the earlier suit to be withdrawn.

The learned Subordinate Judge, who tried the suit, held that the appointment of the Plaintiff as Head Master was a temporary one and not permanent as claimed by him and further that the suit was maintainable. He also held that the Defendant No. 2, having ceased to be a member of the Managing Committee with effect from April 1, 1960, the impugned resolution and the notice were all bad in law. Accordingly, he held that the Plaintiff''s services were not terminated in accordance with law and he decreed the suit.

An appeal was taken by the contesting Defendants to the Court of the learned District Judge at Cooch, Behar. The learned District Judge held that the suit was maintainable for the relief claimed but that the Defendant No. 2 had not ceased to be a member of the Managing Committee and as such, the impugned resolution and the order, terminating his services, were good in law. He also held that, as the names of the main Defendants were struck of before the order of withdrawal was made the subsequent suit against them would not lie. He, therefore, allowed the appeal and dismissed the suit.

In this appeal by the Plaintiff Mr. Arun Prokash Chatterjee, learned Advocate appearing for the Appellant, contends in the first place that the impugned resolution and the notice, terminating the services of the present Plaintiff, were bad in law. That is his main case. It is necessary to examine this aspect of the matter closely. Admittedly, the Defendant No. 2 was a member of the Managing Committee in his capacity as guardian of his son. Admittedly also, his son ceased to be a student of the school with effect from March 31, 1960. Under the rules, he ceased to be a member. But the Defendant''s contention is that before that date letters were sent to the school concerned appointing the Defendant No. 2 as the local guardian of two boys, namely Ramesh Chandra Roy and Ram Mohan Adhikari by their natural guardians and that, as such, the Defendant No. 2 continued as a member of the Committee. Admittedly, such letters were submitted to the school on February 28 and 29, 1960. The learned Subordinate Judge and the learned District Judge both have held that, according to the relevant rules, the school authority is to register the name, as given by the natural guardian, suggesting the local guardian of his ward. In our view, that is quite correct. It would also appear from Ex. C, the list of guardians, that the name of the Defendant No. 2 was inserted as the local guardian of Ramesh Chandra Roy by the Plaintiff himself.

Mr. Chatterjee very seriously contends that the Defendant No. 2 could not legally be appointed as the local guardian of Ramesh Chandra Roy. This contention actually prevailed with the learned Subordinate Judge, but not with the learned District Judge. Mr. Chatterjee relies on the note to Rule 8 of chap. I of the Revised School Code. The relevant portion of it runs as follows:

In the case of a pupil residing in a distant place from home or if the guardian of such a pupil lives away from home a local guardian should be appointed by the natural guardian of the pupil and the former should be recognised as the authorised guardian of the pupil.

In the case of a pupil living in a school hostel, the superintendent of the hostel or, where there is no superintendent, the head of the school concerned should be regarded as the local guardian of the pupil.

It was contended that so far as Ramesh Chandra Roy is concerned, the provision of this rule do not apply inasmuch as he was living in his own house and as such, the Defendant No. 2 could not be appointed as his guardian. The facts, however, remained that there was an application by the natural guardian, appointing the Defendant No. 2 as local guardian of his boy and that position was accepted by the school and in the Plaintiff''s own handwriting the name of the Defendant No. 2 was entered in the list of guardians for Ramesh Chandra Roy. Under the rules, also the representatives of the guardians are to be appointed with reference to the names standing in the guardians'' list. That guardians'' list was not corrected. In the circumstances, the Defendant No. 2 was properly appointed as a member of the Managing Committee and also as its Secretary. If the Plaintiff was quite aware of the fact at the relevant time that the Defendant No. 2 could not be the guardian of Ramesh Chandra Roy, he should have taken steps to have that name removed.

With regard to Ram Mohan Adhikari, it is stated that he was living in the hostel and as such, the superintendent was to be the guardian. We do not agree. It is for the natural guardian to appoint the local guardian and the second paragraph of the rule, quoted above, would only apply if there is no such nomination by the natural guardian. In the case of Ram Mohan Adhikari, the natural guardian had appointed the Defendant No. 2 as his local guardian. That nomination must prevail over the second paragraph of the rule and he should have been regarded as the local guardian. We agree, therefore, with the learned District Judge that the Defendant No. 2 continued as a member of the Managing Committee having been properly appointed thereto and was also duly appointed as its Secretary.

It has next been contended that the Managing Committee was not reconstituted in accordance with the rules. We do not agree. The revised roll was actually prepared, so to say by the present Plaintiff and he cannot go back on it. The new Managing Committee was appointed in accordance with that roll and in accordance with law. The resolution dated September 26, 1961 and the notice of termination dated October 5, 1961, were therefore legally and validly made.

Mr. Chatterjee has further urged that the Plaintiff could not be removed without approval of the Board (Inspector of Schools) as required by the relevant rule. He relies on Rule 25 of the Revised School Code. It runs as follows:

The Committee shall have the power of appointing and removing teachers, deciding promotion and increments, granting leave and free studentships, managing school funds, framing the annual report, dealing with all schemes of development and such other matters as are brought before them for consideration. Free studentship shall ordinarily be awarded on the recommendation of the Head Master.

In the case of aided schools the powers of the Committee of appointing and removing teachers, deciding promotions and increments shall be exercised, subject to the approval of Inspector or Inspectress of Schools.

Mr. Chatterjee contends that in this case the approval of Inspector concerned was not obtained and as such, the Plaintiff''s services could not be legally terminated.

Admittedly, the school concerned was an aided school, but the question is whether even then the above rule (second part) would be attracted to the instant case.

The term removal implies some sort of stigma. In this particular case there was no removal of the Plaintiff. What had actually happened was that he was not properly qualified to be the Head Master when he was appointed to that post. It is an admitted position that to be the Head Master of a High English School one must be either a Honours graduate or an M.A. and also a B.T. The Plaintiff, as we have already pointed out, is an ordinary graduate with B.T. qualification. It is no doubt a fact that in the letter of appointment his appointment was not specifically shown to be a temporary one. But we cannot expect from the Managing Committee of a school in the mufassil the same standard of streamlined efficiency as can be expected of a big mercantile firm in a city. The terms of the appointment will have to be considered from relevant facts and circumstances. It would appear from Exs. D, E, Q, Q 1, E, G. etc. that the Plaintiff was not originally selected for appointment as Head Master because he did not possess the requisite qualification. He was originally refused the appointment as the Head Master on this ground. Thereafter, by his letter, Ex. E, he prayed to be appointed, stating further that he would acquire the requisite qualification within three years of his appointment. It was because of such an undertaking that the appointment was sanctioned purely on a temporary basis and the Plaintiff was quite aware of the fact that his appointment was purely temporary and was to continue for a period of three years only, within which time he was to acquire the requisite qualification. His appointment letter is dated January 15, 1958 and he joined his appointment on July 26, 1958. He did not acquire the requisite qualification within three years from that date. His appointment was, therefore, legally to come to an end within three years at least from July 26, 1958 and in that sense, the appointment was for that period only if he could not acquire the requisite qualification in the meantime. As he did not do so, his services came to an end and were only formally terminated by the Managing Committee by its resolution. It was a pure and simple case of termination of services and there was no stigma attached either to the resolution or to the notice. In this view of the matter it was not a case of removal and as such, the approval of the District Inspector of Schools was not necessary. His appointment, as we have already shown, was purely temporary.

It may be noted also that the Revised School Code is not a body of statutory rules: vide, Sardar Jaswant Singh Vs. Board of Secondary Education and Others, , Monmatha Nath Naiya v. Secretary, Diamond Harbour H.E. School (1957) 62 C.W.N. 384 and Amarendra Chandra Vs. Narendra Kumar Basu and Others, .

We, accordingly, hold that the Plaintiff''s services were legally and validly terminated by the Managing Committee and the Plaintiff can make no grievance of the fact inasmuch as he did not obtain the requisite qualification for appointment as Head Master within the time stipulated.

The suit, therefore, fails and was rightly dismissed by the learned District Judge. It is not necessary for us to consider as to whether this suit would be maintainable in view of the fact that the names of the member of the Managing Committee were struck off in the first suit before the application for withdrawal with leave to sue afresh was granted in the said suit.

The result, therefore, is that this appeal fails and it is dismissed.

In the special circumstances of this case, each party will bear its own costs all through.