Manik Kumar Halder vs The State of West Bengal and Others

Dipankar Datta, J.—These three writ petitions were heard separately but having regard to the commonality of the subject matter of dispute involved therein, the same are proposed to be disposed of by this judgment and order.

Since hearing of W.P. No. 4092(W) of 2015 concluded before the other writ petitions were heard, the same is taken up for consideration first.

W.P. No. 4092(W) of 2015

The petitioner, holder of M.A., B.T. degrees, is the assistant headmaster of Nabadwip Bakultala High School (Boys''), (hereafter the school). In this writ petition dated February 6, 2015, the petitioner while challenging the appointment of the sixth respondent as the teacher-in-charge of the school has prayed for the following relief:

"Under the circumstances stated above, your petitioner most humbly prays that Your Lordships would graciously be pleased to issue-

a) A writ in the nature of Mandamus commanding the Respondents and/or their men, agents or subordinates to show cause as to why the impugned decision dated January 19, 2015 of the managing committee of Nabadwip Bakultala High School (Boys''), Netaji Subhas Road, Post Office - Nabadwip, District - Nadia thereby illegally selecting and appointing the respondent No. 6 as Teacher in Charge of the said School should not be set aside, cancelled and/or quashed forthwith;

b) A Writ in the nature of mandamus commanding the respondents and/or their men, agents and/or subordinates in office to show cause as to why the illegal selection and appointment of the respondent No. 6 as Teacher in Charge of the said School should not be set aside, quashed and cancelled forthwith;

c) A Writ in the nature of Certiorari directing the respondents and/or their men, agents or subordinates to transmit all relevant records pertaining to this case before The Hon''ble Court so that conscionable justice may be administered after perusing the same;"

Mr. Biswaroop Bhattacharya, learned advocate representing the petitioner relied on several decisions of learned Judges of this Court including two decisions of this Bench to contend that in the event of absence of a headmaster in an aided school governed by the Management of Recognised Non-Government (Aided and Unaided) Institutions Rules, 1969, the assistant headmaster thereof ought to be appointed as the teacher-in-charge so long the post of headmaster is not filled up on permanent basis in terms of the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2007 (hereafter the 2007 Rules), and that the managing committee of an aided school has no authority to bypass the claim of the assistant headmaster and to appoint any other assistant teacher as the teacher-in-charge. He has, accordingly, prayed for an order for quashing of the decision dated January 19, 2015, taken by the managing committee of the school to appoint the sixth respondent as the teacher-in-charge and to consider the petitioner''s candidature for such appointment.

The writ petition has been vehemently opposed by Mr. Dhar, learned senior advocate for the managing committee of the school as well as Mr. Datta, learned senior advocate for the teacher-in-charge in position. Both of them contended that an assistant teacher in order to be appointed as a teacher-in-charge is required to possess all the qualifications that a candidate seeking appointment on the post of headmaster is required to possess and since the petitioner does not possess the qualifications laid down in the 2007 Rules, the managing committee was perfectly justified in selecting and appointing the sixth respondent as the teacher-in-charge.

Mr. Datta raised a further objection pointing to the prayers of the writ petition. According to him, although the petitioner had prayed for setting aside of the decision of the managing committee of the school to appoint the sixth respondent as the teacher-in-charge and to quash such appointment, the petitioner had not prayed for consequential relief of consideration of his candidature for appointment as teacher-in-charge and that in the absence of consequential relief being prayed for, he ought not to be granted relief bearing in mind Section 34 of the Specific Relief Act.

Mr. Datta also objected to maintainability of the writ petition relying on the decisions of the Supreme Court reported in Dr. Umakant Saran Vs. State of Bihar and Others, AIR 1973 SC 964 : (1972) 2 LLJ 580 : (1973) 1 SCC 485 : (1973) 1 SLJ 14 : (1973) 5 UJ 410 and K.H. Siraj Vs. High Court of Kerala and Others, AIR 2006 SC 2339 : (2006) 11 JT 424 : (2006) 6 SCALE 167 : (2006) 6 SCC 395 : (2006) SCC(L&S) 1345 : (2006) 3 SCR 790 Supp : (2007) 1 SLJ 164 : (2006) AIRSCW 3136 : (2006) 4 Supreme 448 . According to him, the writ petition cannot be received by this Bench at all since the petitioner being an ineligible candidate cannot have any grievance in regard to appointment of the sixth respondent as the teacher-in-charge.

In reply, Mr. Bhattacharya claimed that if indeed the qualifications of the petitioner are examined keeping in mind the provisions contained in the 2007 Rules for determination of the point as to whether he possesses the qualifications that are required for appointment on the post of headmaster or not, by the same analogy the sixth respondent is also not qualified to offer himself for appointment on the post of headmaster at present and, therefore, could not have been appointed by the managing committee as teacher-in-charge. It is the specific contention of Mr. Bhattacharya that the sixth respondent may have required academic qualifications but he lacks the requisite teaching experience. He, therefore, contended that if the qualifications for appointment on the post of headmaster as enshrined in the 2007 Rules were fundamental for appointment as a teacher-in-charge, the petitioner could not have been judged by applying a separate yardstick.

Insofar as the cited decisions are concerned, it was submitted that the same have no application. According to him, the petitioner had been the teacher of the sixth respondent at one point of time and it would be a matter of pride for him to work under the sixth respondent, if he were duly qualified to act as the teacher-in-charge. However, working as assistant headmaster under someone not having the required qualifications is bound to result in ignominy for the petitioner and he is definitely a person aggrieved having locus standi to maintain the writ petition.

The issue that is involved in this writ petition has exercised the consideration of this Court on a number of occasions before. Very recently, this Bench had the occasion to consider such issue while deciding W.P. No. 37202(W) of 2013 (Smt. Rina Roy v. The State of West Bengal and Ors.). The question that was formulated while deciding the writ petition of Smt. Rina Roy is as follows:

"2. The relevant question is, whether in the absence of a regular Headmaster in a secondary school but when an Assistant Headmaster is in place, could the senior-most or any other teacher be appointed by the Managing Committee as the teacher-in-charge?"

This Bench, thereafter, proceeded to observe as follows:

"8. There is no dispute that should there be a vacancy on the post of Headmaster/Headmistress, it becomes absolutely necessary for someone to officiate as Headmaster/Headmistress and one who officiates as such, is regarded as the teacher-in-charge; that the institution is governed by the provisions of the West Bengal Board of Secondary Education Act (hereafter the Act), and the Rules for Management of Non-Government Institutions (Aided and Unaided), 1969 (hereafter the 1969 Rules); that in terms of Rule 28(1)(ib) of the 1969 Rules, the Managing Committee has the power to appoint an Assistant Headmaster/Assistant Headmistress against the vacancy within the sanctioned strength from amongst the approved teachers in accordance with the direction given by the Director of School Education or any officer authorised by him in this behalf; and that the guidelines for appointment of Assistant Headmaster/Assistant Headmistress are embodied in Memo. No. 1268-GA dated July 10, 2002, issued by the Director. It has further not been disputed before this Bench that the petitioner''s appointment as Assistant Headmistress in the institution was the result of compliance of the aforesaid guidelines by the authorities and that approval of appointment of the petitioner was delayed by about 5 (five) years because of pendency of the writ petition filed by Smt. Bhattacharya. It would also appear from Government Orders bearing Memo. Nos. 1332-Edn.(S) dated December 24, 1966 and 1140-Edn.(S) dated April 30, 1968 that the concept of a school having an Assistant Headmaster/Assistant Headmistress was dependent upon the roll strength of students in a school and that an Assistant Headmaster/Assistant Headmistress was entitled to an additional allowance, later on known as special pay, till they vacate the post either by retirement, resignation, etc. The position regarding fixing up norms for sanction of the post of Assistant Headmaster/Assistant Headmistress has further been reiterated, while altering the roll strength vide Memo. No. 671-SE(S) dated May 19, 2004. It would, therefore, follow that once a school is entitled to appoint an Assistant Headmaster/Assistant Headmistress on the basis of its roll strength and initiates process in this behalf, it is bound to follow the guidelines of the Director and any departure might result in non-approval of the appointment of the selected candidate by the DIoS. The qualifications that a teacher aspiring for appointment as Assistant Headmaster/Assistant Headmistress ought to possess are akin to the qualifications to be possessed by a teacher aspiring to be appointed as Headmaster/Headmistress. The importance of the post of Assistant Headmaster/Assistant Headmistress can, therefore, never be undermined. It is open to all the Assistant Teachers of a school qualified to compete to apply for and seek appointment on the post of Assistant Headmaster/Assistant Headmistress. It is a fair and transparent internal process extending equal opportunity to all teachers, similarly placed. On the contrary, there is no existence of a substantive post of teacher-in-charge. In the absence of a regular Headmaster/Headmistress, a teacher-in-charge may be appointed from amongst the willing teachers, having requisite qualification. Memo. No. Edn.(B)/IM-25/91, dated August 3, 1991 issued by the Education Department, Government of West Bengal, provides that a qualified Assistant Teacher for appointment as teacher-in-charge of a secondary or higher secondary school in the absence of the Headmaster/Headmistress is one who has the requisite qualifications and experience for appointment as Headmaster/Headmistress of the secondary and/or higher secondary school. No other Government Order governing the process of appointment of a teacher-in-charge has been brought to the notice of this Bench. In such circumstances, if the post of Headmaster/Headmistress falls vacant in a secondary school and such school does not have the service of an Assistant Headmaster/Assistant Headmistress, there is nothing wrong in appointing the senior-most or any other willing teacher having requisite qualifications and experience for appointment on the post of Headmaster/Headmistress, as the teacher-in-charge of the school on condition that he/she would have to revert to his/her parent post of Assistant Teacher as and when the regular Headmaster/Headmistress is selected, appointed and takes charge. There is no prescribed procedure for selecting a teacher-in-charge and the Managing Committee enjoys a wide discretion in such matter. The wider the discretion, the greater is the likelihood of the discretion being misused; this follows from the age old saying that power tends to corrupt, and absolute power corrupts absolutely. However, in the scheme of things where an Assistant Headmaster/Assistant Headmistress is in place (who has been selected and appointed from amongst the teachers of the school based on merit), no law authorises the Managing Committee to appoint somebody else (even if someone senior is available) as the teacher-in-charge, giving preference to his/her seniority. If this position were conceded, a teacher who has duly been selected for appointment on the post of Assistant Headmaster/Assistant Headmistress from amongst other qualified Assistant Teachers on merit could be side-tracked for not maintaining good rapport with the members of the Managing Committee. The appointee may have to work under a teacher, could be a junior teacher, who may have been found inferior in point of inter se merit and thus unsuccessful in his/her attempt to have an appointment on the post of Assistant Headmaster/Assistant Headmistress. Since appointment of a teacher-in-charge would not involve any selection, it could well be a breeding ground of corrupt practices. The law cannot be interpreted in a manner so as to encourage unfair, non-transparent and shady dealings. In the absence of suitable executive instructions on the point, this Court has consistently held in Kanak Pal (supra), Srikumar Chatterjee (supra) and Alauddin (supra) that in the event there is a vacancy on the post of Headmaster/Headmistress but the school has the service of an Assistant Headmaster/Assistant Headmistress, it is the incumbent on such post who should be appointed as the teacher-in-charge if he is so willing. There appears to be no reason not to follow such course even in the present case.

That apart, the issue needs to be addressed from the angle of deleterious effect that is likely to ensue if the Assistant Headmaster/Assistant Headmistress is not appointed as the teacher-in-charge, upon a vacancy on the post of Headmaster/Headmistress arising. The post of Assistant Headmaster/Assistant Headmistress is filled up on merit whereas normally the senior-most teacher is called upon to act as teacher-in-charge. It might well be so that the senior-most teacher having failed to compete with a junior on equal terms, loses out in the race for appointment as Assistant Headmaster/Assistant Headmistress on merit but with the blessings of the Managing Committee steals a march over such incumbent and succeeds in getting an order for acting as the teacher-in-charge. Inter se merit of the teachers is of no worth and it is only seniority that counts. Since law does not permit seniority to have precedence over merit, it would indeed be a disservice to the meritorious if only on the ground of seniority a teacher is allowed to act as teacher-in-charge, although such incumbent had not been found fit and suitable for appointment on the post of Assistant Headmaster/Assistant Headmistress while following the process in terms of the guidelines issued by the Director."

In Smt. Rina Roy (supra), no point had been raised regarding the qualifications possessed by the petitioner and, therefore, this Bench had no occasion to decide the inter se claims of the two teachers based on their qualifications. There is, however, no dispute that regard being had to the essential qualifications for appointment on the post of headmaster in terms of the 2007 Rules, in the present case the petitioner and the sixth respondent are short on educational qualifications and teaching experience respectively. Although the petitioner is the holder of a master degree and has training qualification to his credit, the marks obtained by him at the relevant examinations are short of the requirements specified in the 2007 Rules. In such a situation, this Bench is of the clear view that neither the decision in Rina Roy (supra) nor the previous decisions of this Court would have any application since in none of those cases the question of qualification had assumed significance.

In the further considered view of this Bench, the fact that the petitioner does not have requisite qualifications akin to the requirements specified in the 2007 Rules, disentitles him to lay a claim that he should be appointed teacher-in-charge of the school. The same logic applies to the sixth respondent and since he is short on teaching experience, the managing committee acted illegally and in excess of jurisdiction in appointing him as the teacher-in-charge of the school.

The decision in Umakant Saran (supra) lays down the law that a writ of mandamus is issued when it is shown that the statute imposes legal duty and the aggrieved party has a legal right under the statute to enforce its performance. It was further found that junior employees having minimum teaching experience having been appointed, their appointment could not be questioned at the instance of the senior employees who were not duly qualified, because in order to be regarded as parties aggrieved by the appointment they were required to be qualified for appointment.

Here, the facts are completely different. Not only the petitioner but also the sixth respondent is not qualified to act as the teacher-in-charge, which was not the case in Umakant Saran (supra). The terms and conditions of service of the petitioner do not envisage rendering of service by him under an incumbent holding a higher post, despite being ineligible. In a case of the present nature, the petitioner cannot be told off at the gates by applying the law laid down therein by holding that he is not a person aggrieved owing to his lack of requisite qualifications. It would be a travesty of justice if despite noticing the fact that the sixth respondent and the petitioner are not qualified on the anvil of a particular statutory rule, the petitioner is held to be not a person aggrieved who could maintain the writ petition and declined relief, whereas the sixth respondent is left unscathed. The petitioner can most certainly claim to be an aggrieved person in the sense that he would have to discharge official duty under a person who is not qualified to officiate on the higher post. If this position is conceded by blindly placing reliance on Umakant Saran (supra), it would breed unfairness and arbitrariness in State action while making public employment which would be contrary to the guarantee enshrined in Article 16 of the Constitution.

The said decision has been referred to by the Supreme Court in a subsequent decision reported in K.H. Siraj Vs. High Court of Kerala and Others, AIR 2006 SC 2339 : (2006) 11 JT 424 : (2006) 6 SCALE 167 : (2006) 6 SCC 395 : (2006) SCC(L&S) 1345 : (2006) 3 SCR 790 Supp : (2007) 1 SLJ 164 : (2006) AIRSCW 3136 : (2006) 4 Supreme 448 , but the law on the point has not been elaborately laid down. It is noticeable that in paragraph 68 of the decision, where Umakant Saran (supra) was referred to, certain contingencies were noticed and ultimately the proceedings stood terminated on the ground of estoppel, non-joinder of necessary party and res judicata.

It is settled law that a public interest litigation would not lie in respect of service matters. If indeed an ineligible candidate is appointed on a post and such appointment when challenged by another ineligible candidate in connection with a litigation initiated in private interest is not interfered by a Writ Court on the ground that the unsuccessful petitioning candidate has no locus standi, it might amount to putting premium on dishonesty. In our constitutional scheme, a Court of Writ exercising wide powers of the nature embodied in Article 226 ought to zealously guard any attempt to stultify the rule of law. The concept of locus standi has to be decided keeping in mind the adverse effects and ignominy the petitioner would have to face while acting as assistant headmaster with the sixth respondent, an ineligible junior teacher appointed as teacher-in-charge, above the petitioner''s head. He, therefore, must be held to have the necessary locus standi to maintain this writ petition since terms and conditions of his service are likely to be altered and his interest utterly jeopardised.

These two decisions are, therefore, clearly distinguishable on facts.

The contention of Mr. Datta referring to Section 34 of the Specific Relief Act is equally without merit. There can be no dispute that one cannot obtain an order for appointment by mandamus, because right of appointment is not a fundamental right. It is the claim for consideration of one''s candidature in accordance with the Rules and at par with all candidates who have offered their candidature, which is a fundamental right. Once the decision asking the sixth respondent to officiate is held to be illegal and in excess of jurisdiction, and is set aside, it is axiomatic that all the eligible candidates would have to be reconsidered. Although it has been argued by Mr. Dhar that a couple of teachers in the school are possessing qualifications akin to those required to be possessed for appointment on the post of headmaster, nothing is on record. On the basis of assumption, no order can be passed. Therefore, the conclusion is irresistible that appointing a duly qualified assistant teacher as the teacher-in-charge of the school being the duty of the managing committee, action in that regard has to follow without any delay. Omission to pray for consequential relief, on facts and in the circumstances, can not in the circumstances be regarded as fatal.

That apart, the High Court exercising writ jurisdiction is not bound by the intricacies of civil proceedings and it is settled law that mandamus ought to reach injustice, wherever it is found and technicalities cannot stand in the way. In the exercise of judicial discretion, a Court of Writ while declining to grant the prayers made in the writ petition may mould the relief by passing appropriate directions.

In the present case, there being no dispute on the factual score that the sixth respondent is not qualified for being entrusted with the duty of teacher-in-charge, it would be necessary to direct the managing committee of the school to find out whether any candidate other than the petitioner and the sixth respondent is so qualified or not on the date this writ petition was presented. If any other candidate is available, it would be open to the managing committee to appoint him. Should there be no other qualified candidate, it would be desirable if the managing committee considers it proper to allow the petitioner, the assistant headmaster, to discharge the duties and perform the functions attached to the post of headmaster, without designating him as the teacher-in-charge, so long as a regular headmaster does not assume charge.

The appointment of the sixth respondent as the teacher-in-charge stands set aside. The managing committee is directed to proceed in the light of the observations made above.

With these directions, W.P. No. 4092(W) of 2015 stands disposed of.

There shall be no order as to costs.

W.P. No. 9431(W) of 2014

The petitioner, an approved assistant headmistress of Belda Pravati Balika Vidyalaya (hereafter the school), is aggrieved by the appointment of the sixth respondent as the teacher-in-charge of the school at the instance of the fifth respondent (managing committee).

Despite service of notice together with copy of the writ petition, the sixth respondent has not entered appearance.

Mr. Bari and Mr. Jana, learned advocates for the petitioner and the fifth respondent respectively, were requested to prepare a chart indicating the marks obtained by the petitioner and the sixth respondent at the examinations starting from the secondary level till post-graduation with training qualifications.

It would appear from the chart signed by the secretary of the managing committee of the school that the sixth respondent did not secure 45% marks at the higher secondary level and is, thus, not qualified to be considered for appointment on the post of headmistress in terms of the 2007 Rules. In view of such deficiency, the sixth respondent could not have been considered fit for appointment as teacher-in-charge. On the contrary, the petitioner seems to possess the required academic qualifications and experience for being considered for appointment as headmistress.

In view of the discussions while dealing with W.P. No. 4092(W) of 2015, the petitioner is entitled to succeed.

The appointment of the sixth respondent as the teacher-in-charge of the school stands set aside. The managing committee of the school shall proceed in accordance with law to appoint the petitioner as the teacher-in-charge as early as possible but not later than a fortnight from date of receipt of a copy of this judgment and order.

W.P. No. 9431(W) of 2014 stands allowed, without order for costs.

W.P. No. 3126(W) of 2015

The dispute in this writ petition arises out of appointment given to the fifth respondent as teacher-in-charge of Ausgram High School (hereafter the school), overlooking the claim of the petitioner who is the assistant headmistress thereof. While the marks obtained by the petitioner at various public examinations from the secondary level to the post-graduation level with training qualification have been produced by Mr. Hossain, learned advocate representing her, that of the fifth respondent has been produced by Mr. Bhattacharya, learned advocate.

It appears that the petitioner failed to secure 45% marks at the higher secondary examination as well as at the time of her graduation with honours; on the contrary, the fifth respondent appears to have consistently obtained second division/second class in all the examinations starting from secondary level till post-graduation with training qualification.

The petitioner, in view of such position, is not entitled to offer her candidature for appointment on the post of headmistress and the managing committee of the school did not commit any illegality in appointing the fifth respondent as the teacher-in-charge. Having regard to the discussions concerning W.P. 4092(W) of 2015, there is no merit in the writ petition.

W.P. No. 3126(W) of 2015, accordingly, stands dismissed. There shall be no order as to costs.

Photocopy of this judgment and order, duly countersigned by the Assistant Court Officer, shall be retained with the records of W.P. No. 9431(W) of 2014 and W.P. No. 3126(W) of 2015.

Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefore.