Manju (Sarkar) Mitra vs District Inspector of Schools

Satyabrata Sinha, J.—In this application the Petitioner prays for issuance of a writ in the nature of Mandamus directing the Respondent to approve her service as an Assistant teacher in the Barrackpore Girls School The Petitioner was appointed by the Secretary of the Barrackpore Girls'' School on March 5, 1977 on temporary basis with effect from March 8, 1977 on a partly monthly allowance of Rs. 30, subject to approval of the District Inspector of Schools.

Mr. Chatterji, learned Advocate appearing for the Petitioner, submits that keeping in view the policy decision adopted by the State of West Bengal as reflected in the Circular letter dated March 22, 1979 as contained in Annexure ''C to the writ application, it would appear that the Petitioner has a right of absorption in view of the fact that she was legally appointed by the Managing Committee. The Learned Counsel states that at the relevant time the Managing Committee of the Primary School situated in or around the areas was entitled to appoint assistant teacher, but for that matter, the approval of the District Inspector of Schools was required to be obtained. The Learned Counsel with reference to the said circular dated March 24, 1979 contained in Annexure ''C to the writ application, submits that in view of the fact that in the relevant time no panel had been prepared, the Petitioner had a subsisting right for appointment.

My attention was further drawn to the affidavit-in-reply filed by the Petitioner to the affidavit-in-opposition filed by the State wherein it is categorically stated that several other assistant teachers who are similarly situated have been absorbed. The Respondents, on the other hand, in the affidavit-in-opposition has stated thus -That the Petitioner was appointed by the school authorities allegedly on March 8, 1977, without the knowledge and information of the Respondent Authorities concerned. The school code provides that no appointment of additional teacher or dismissal of existing teacher is permissible without the prior permission of the Respondent authority concerned which is a condition precedent for approval of a teacher in a school. The alleged appointment of the Petitioner is in violation of the above rules.

b) The G.O. No. 390-Edn(P) dated 22/24.3.1979 referred to in the said petition clearly states condition precedents for appointment of a teacher in a recognised school, namely:

(i) Prior permission of the department must be obtained ;

(ii) Teacher-pupil ratio should justify such appointment ; ; (iii) There must be valid Managing Committee at the material time ;

(iv) Appointment in additional post shall only be made on the basis of additional quota of teachers sanctioned by the government from time to time depending upon its financial condition ; The alleged appointment of the Petitioner did not comply with any of the conditions stated above.

c) Further G.O. No. 1447-Edn(P), dated September 5, 1973 specifically requires training certificate before a candidate can be considered for an additional post of teacher. In G.O. No. 390-Edn.(P) dated 22/ 24.3.1979 it has been clearly prescribed that the instructions laid down in the said G.O. will not be applicable to the new quota of teachers sanctioned from the year 1977-78 and normal vacancies occurring from July 1, 1977.

d) In the light of above prescriptions of law the Petitioner''s appointment need to be justified. The Petitioner claims to have been working in the school since March 8, 1977 ; and at the time of her alleged appointment there did not occur any normal vacancy in the said school. Moreover, no vacancy against the additional quota sanctioned prior to 1977-78 was available at the time of alleged appointment. As such relief claimed by the Petitioner in terms of G.O. No. 390-Edn.(P), dated 22/24.3.1979 can not be granted to the Petitioner.

e) The G.O. 197-Edn.(P), dated February 7, 1979 provides that in terms of G.O. 421-Edn.(P) dated March 27, 1978, it was decided that all primary school teachers should be appointed from the candidates whose names were sponsored by District Employment Exchange. In the present case the Petitioner''s name has not been sponsored by the District Employment Exchange.

f) Panel of names is prepared by the District Inspector of Schools on the advice and decision of the Urban Advisory Committee only; and the Urban Advisory Committee suggests the names sponsored by the Employment Exchange and no other. Hence, the Petitioner''s case for empanelment is beyond question.

g) In terms of G.O. 649-Edn.(P), dated April 27, 1974 free education for boys from Class-I to Class-IV has been introduced in all primary and basic schools in Urban areas and entire cost is borne by the Government and as such it is considered necessary that the Government should have adequate control over the private and aided primary schools in all respects including appointment. The Petitioner''s case shall also be considered in the light of above terms.

It has been submitted that the Petitioner''s appointment was wholly unauthorised. It is further stated that the school Authority had never sent any information about the resolution passed by the Managing Committee recommending her case for appointment.

It is not disputed that the Petitioner was appointed without following the procedures prescribed under the law. The Petitioner, as would appear from the offer of appointment, was appointed on a temporary basis on a partly monthly allowance. The Petitioner, therefore, was not also appointed as a full-fledged assistant teacher. However, the Petitioner appears to be continuing in service. The question which has been raised by Mr. Chatterji that the Petitioner has a subsisting legal right has been answered by the Division Bench of this Court in F.M.A.T. No. 3594 of 1990 The Chairman, Ad Hoc Committee Vs. Jitendra Nath Chatterjee and Others, wherein this Court held -Rules have been framed in exercise or the power under Sub-section (2) of Section 66 of the Bengal (Rural) Primary Education Act, 1930. Rule 3D as it originally stood was as follows:

Notwithstanding anything contained in Rule 3, Rule 3A or Rule 3B, but subject to the provision of Rule 30, a qualified person serving as organizer-teacher in a Primary School, ever since that school was established, may be appointed, with the prior approval of the Director of Public Instruction, West Bengal, as an assistant teacher or the school at the time it is granted recognition.

In view of the aforesaid statutory Rule 3D, a qualified person serving as Organizer-Teacher in a Primary School, ever since that School was established, could be appointed, with the prior approval of the Director of Public Instruction, West Bengal, as an Assistant Teacher of the School at the time of recognition granted to such school.

It was brought to our notice that the aforesaid Rule 3D was substituted by another Rule 3D by a Notification dated September 11, 1980 issued in exercise of the power under Sub-section (2) of Section 66 of the Bengal (Rural) Primary Education Act, 1930. The amendment aforesaid is as follows 3D. Notwithstanding anything contained in Rule 3; Rule 3A or Rule 3B, but subject to the provisions of Rule 3C, a ward of a primary teacher who dies in harness may be appointed, with the approval of the Director of Public Instruction, West Bengal, as an assistant teacher against regular vacancy irrespective of whether the available vacancy is to be reserved for trained or untrained candidates, provided that he/she fulfils the minimum qualifications for such appointment. In view of the amendment and substitution of Rule 3D by the aforesaid Notification dated September 11, 1980, now there is no provision enabling the authorities concerned to appoint a qualified person serving as an Organizer-Teacher in a Primary School as an Assistant Teacher of the School at the time the recognition is granted.

The Petitioner was not an Organizing teacher, it cannot be disputed that the status of an organizing teacher in a Primary school has been kept at a higher pedestal than the ordinary teacher. The Petitioner has, thus, in terms of the statutory rule does not have an existing legal right. Moreover, it is not disputed that the appointment of a teacher imparting education in a primary school can be done only by the District Primary Council. In the North 24-Parganas the District Primary Council has come into being in the year 1991. The State, thus, has no right of appointment at all. The question of giving effect to the Circular issued by the State, thus, at this stage does not arise.

Mr. Chatterji''s contention that the Petitioner has a subsisting legal right for being absorbed in service cannot thus be accepted. The second submission of the Petitioner that she has been discriminated against as the persons similarly situated cannot also be accepted. No particulars of their appointments stating under what circumstances their services have been absorbed, have been stated in the affidavit-in-opposition. Assuming that the Petitioner was similarly situated to those persons whose names-have been disclosed in the affidavit-in-reply for the first time by the Petitioner, in view of the Division Bench decision of this Court in Jitendra Nath Chatterji''s case (Supra) it must be held that absorption of such person was also illegal. It is now a well settled principle of law that the ground of discrimination is not available to a person who has no legal right inasmuch as in Article 14 of the Constitution of India provides for equality before law and calls protection before the law. If an illegality has been committed by an authority, no other person by invoking Article 14 of the Constitution of India can get any benefit thereof as it is well known that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot, by an order, direct perpetuation of that illegality. For the reasons aforementioned no relief can be granted to the Petitioner in this application. Keeping in view the facts and circumstances of the case it is directed that the case of the Petitioner can be considered for an appointment as and when any vacancy comes into being, together with the case of all other eligible candidates and in terms of the Recruitment Rules. However, the age bar of the Petitioner, if any, should be condoned keeping in view that she had been working since 1977. The writ application is, thus, disposed of, but without any order as to costs.