Nilmani Banerjee & Ors vs State Of West Bengal & Ors

The grievance of the writ petitioners is against the present incumbent who is holding the post of Teacher-in-charge of Lodna Mankhamar Vivekananda Vidyamandir, Bankura. The Teacher-in-charge who was serving the school till 13th November, 2018, was the respondent no. 8. On 13th November, 2018, an order was passed holding the appointment of the respondent no. 8, as Teacher-in-charge was made in violation of the 2007 Rules. By the said order, the next senior most teacher of the school who had the requisite educational qualification and teaching experience as per the 2007 Rules was to act as the Teacher-in-charge. The relevant Rules are the West Bengal School Service Commission (Selection of persons for appointment to the Post of Teachers) Rules, 2007.

The writ petitioners are members of the Managing Committee of the school. The writ petitioners' case is that contrary to the appointment of respondent no. 8, as teacher-in-charge, another teacher of the school namely Banasri Mahato, has the requisite qualification under the relevant Rules and should be appointed as Teacher-in-charge of the concerned school.

Learned counsel appearing for the petitioners submits that the respondent no. 8, who was appointed as the Teacher-in-charge by a resolution of the Managing Committee taken on 12th September, 2018, does not have the requisite qualification or the experience as provided under the relevant Rules for being appointed as Teacher-in-charge of the concerned school. Counsel relies on a Notification of the Education Department dated 3rd August, 1991, which provides inter alia that for the purpose of appointment as Teacher-in-charge of a secondary or higher secondary school in the absence of the Headmaster, the qualified Assistant Teacher should be interpreted as one who has the requisite qualifications and experience for appointment as Headmaster of the secondary or Higher secondary school. Counsel relies on the Schedule to the West Bengal School Service Commission Selection of persons for appointment to the Post of Teachers) Rules, 2007, which provides inter alia that the educational qualification including professional qualification for a Headmaster/Headmistress of High/Higher Secondary school/High Madrasah should be 10 years continuous teaching experience in approved service in a Higher Secondary/High School/ High Madrasah etc. Counsel further relies on a Judgment of a Co-ordinate Bench of this Court in W.P. 37202 (W) of 2013 ( Smt. Rina Roy -vs- The State of West Bengal & Ors.). The relevant portion which is set out below:

" 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 Kanark 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."

The above extract was referred to in a subsequent Judgment rendered in W.P. 4092(W) of 2015 ( Manik Kumar Halder -vs- The State of West Bengal & Ors.). In reliance of the above counsel submits that ultimately the respondent no. 8 has only 8 years of teaching experience in a higher secondary school and the previous 5 years of experience was in a junior high school, by reason of which the respondent no. 8 could not have been inducted as the Teacher-in-charge of the school.

Learned counsel appearing for the Ex-President of the Managing Committee being the respondent no. 7, relies on the fact that the respondent no. 8 was made the Teacher-in-charge at a resolution of the Managing Committee held on 12th September, 2018 which was duly approved by the District Inspector of Schools. Learned counsel further submits that the respondent no. 8, was appointed after the other teachers expressed their unwillingness to be considered for the said post. He further submits that petitioner no. 2, acted as Teacher-in-charge in two terms after which the petitioner no. 2 disagreed to continue in such post and another teacher namely Ashis Kumbhakar was appointed to the said post but also resigned in March 2017. Counsel submits that the respondent no. 8 was appointed by reason of the said decision school facing inordinate difficulties due to the absence of Teacher-in-charge overseeing the day to day functioning of the school. Counsel further submits that there are serious allegations of defalcation of fund against the petitioner no. 1, 2 and Banasri Mahato for which the said Banasri Mahato cannot be considered for the post of Teacher-in-charge of the concerned school. It should be mentioned that these allegations have been specially denied by the counsel for the petitioners and it is submitted that the authorities brought against the petitioners have been proved to be false and baseless.

Learned counsel appearing for the State fairly submits that the State will support whichever candidate is selected under a fair procedure and having the requisite educational and professional qualification to the post of Teacher-in-charge and that the State will take expeditious steps to render all necessary support for the same.

Having considered the submissions of counsel for the parties, in the view of this Court, the dispute between the Managing Committee and the petitioners can be resolved by taking recourse to the suggestion made in the Report filed by the Deputy Director of School Education. In paragraph 4 of the said Report as stated above, it has been suggested that the existing Managing Committee may be directed to consider a willing teacher having at least 5 years approved teaching experience along with other qualification of Headmaster/Assistant Headmaster for the post of Teacher-in-charge and that the aforesaid should be done within a period of 15 days. This suggestion made by the Deputy Director appears to be a practical solution to the problem which the school is presently facing and which cannot be allowed to continue for the welfare of the students of the school. There should however be a departure from the five years teaching experience suggested in the said Report since the 1991 Notification makes it clear that for being considered for the post of Teacher-in-charge of a secondary or a higher secondary school in the absence of the Headmaster, the applicant should have the same qualification and experience as would be necessary for being appointed as Headmaster of the said school. This would be further clarified by the Schedule to the 2007 Rules which stipulates 10 years of continuous teaching experience in a higher secondary/High School etc. The decisions rendered in Rina Roy -vs- State of West Bengal & Ors. as well as in Manik Kumar Halder -vs- The State of West Bengal & Ors. make it clear that for being considered for the post of Teacher-in-charge, the person concerned must have requisite qualifications akin to the requirement specified in 2007 Rules.

This Court cannot express any views as to the truth of falsity of the allegations made against the petitioners or the outcome of the criminal proceedings which had been instituted against the petitioners. It is of crucial importance to ensure that the students of the school are not made to suffer the consequences of a continued facing off between the Managing Committee and the respondent no. 8 on one hand and the petitioners on the other. For the benefit of the school there should be an immediate resolution of the matter so that any one of the existing (and willing) teachers of the school can be considered for the post of Teacher-in-charge. Needless to say, in selecting to a candidate, the Managing Committee of the school will be required to take a decision under the relevant Rules within a period of three weeks from date. The entire process should be completed and the person selected should be in a position to resume his/her duties as Teacher-in-charge not later than four weeks from the date of this order. Till the appointment of the Teacher-in-charge is made, the present incumbent being the Sub-inspector of schools will continue to act as Teacher-in-charge so that the day to day functioning of the school is not hampered.

W.P. 19904 (W) of 2018 is disposed of with the above direction.