Prasenjit Mondal vs State of West Bengal & Ors

Md. Nizamuddin, J

Heard learned Advocates for the Parties.

The aforesaid Writ Petition has been filed challenging the impugned order dated 24th February, 2019 passed by the District Inspector of Schools, Nadia, being Annexure "P-18" to the Writ Petition requesting the School Authority for re- interview and refusal to grant approval to the Panel of selected candidates including petitioner by the earlier Selection Committee on the ground of not being in order as per the Government Order being Memo No. 1314(50)-SE (s)/4A-35/2002 dated September 17, 2002 existing at the time of selection.

Relevant facts in brief in the instant case are hereunder.

Case of the petitioner according to Mr. Sabyasachi Mukhopadhyay, learned Advocate appearing for the petitioner is that the Don Bosco Higher Secondery School, Krishnanagar,. is a Christian Minority Educational Institution under the aegis and protection of the Article 30 of the Constitution of India and the said School is administered by a founder being the Salesian Province of Calcutta (Northern India) under special set of regulations being the Code of Regulations for Anglo Indian and Other Listed School, 1993, vide Notification No. 877-Edn (S) dated 24.12.1993. It is the case of the petitioner that pursuant to the advertisement dated 29th August, 2008 published in local bengali newspaper "Aaj Kaal", by the School Authority inviting candidates for the post of Assistant Teacher for English, on the basis of prior permission by the District Inspector of Schools (S.E.), he applied for the said post having requisite qualifications as mentioned in the said advertisement. The petitioner was called for the interview by a letter dated 9th September, 2008 which was held on 20th September, 2008. He appeared before the Selection Committee which was formed comprising of five persons by a resolution dated 30th August, 2008 by the Managing Committee of the School. On the basis of said interview, panel of three candidates were prepared by the Selection Committee for the said post and petitioner's position was 2nd in the said panel and the said panel was approved by the Managing Committee of the School by resolution held on 22nd September, 2008. Thereafter, the said panel was forwarded to the District Inspector of Schools (S.E.), Nadia for approval by a letter dated 10th November, 2008. The District Inspector of School in response to the said letter of the School Authority for grant of approval, on 25th November, 2008 asked the School Authority to recast the Selection Committee. By a Memo dated 24th February, 2009, the District Inspector of Schools/respondent no. 4 asked the School Authority for re-interview of the same three candidates of the said panel after formation of proper Selection Committee in terms of Government Order being No. 1314(50)-SE (s)/4A-35/2002 dated September 17, 2002 since the formation of the said Selection Committee was not in accordance with the said Government Order and in compliance of the same School Authority issued letters dated 17/04/2009 asking the same three candidates including Petitioner to participate in the re-interview. Petitioner instead of participating in the said re-interview challenged the same by way of instant Writ Petition on the ground that the District Inspector of Schools/respondent no. 3 has no power of refusal to grant approval to the said panel prepared on the basis of first interview and approved by the Managing Committee of the School since the School is a christian minority institution and his refusal to grant approval amounts to interference in the administration of a minority school enjoying its right under Article 30 of the Constitution of India and petitioner further contends that the said school is not governed by the aforesaid Government Order dated 17th September, 2002 issued by the Government of West Bengal which is a very peculiar stand taken by him since the School Authority itself in its affidavit-in-opposition has conceded that school is governed by the said Government Order.

Legality and validity of the said Government Order dated 17/09/2002 has not been challenged by the petitioner as appears from the grounds as well as prayers made in the Writ Petition. Petitioner further contends that the aforesaid Government Order dated 17/02/2002 has been cancelled by Order No. 1092/ES/S/10M-104/2011 dated 06/06/2012.

Learned Advocate appearing for the petitioner has relied on the following decisions on the proposition that the Government cannot interfere with the administration of minority educational institution enjoying the right under Article 30 of the Constitution of India:

(i) T.M.A. Pai Foundation & Ors. Etc. Etc. -vs- State of Karnataka & Ors. Etc. Etc. - 2002 (8) Supreme 359

(ii) The Secretary, Malankara Syrian Catholic College -vs- T. Jose & Ors. - 2006 (9) Suprme 868

(iii) Bhaskar Sardar -vs- State of West Bengal & Ors. - 2017 (1) CHN 720

(iv) Bidyut Kumar Biswas -vs- State of West Bengal - 2011 (4) CalLT 84

(v) Kushadwaj Mondal -vs- State of West Bengal - 2008 (1) CalLJ 167 Mr. Siddiqui, learned Advocate appearing for the State Respondent Nos. 1, 2 & 3 opposing the Writ Petition contended as follows:

(a) Admittedly the Selection Committee formed for conducting interview for the post of Assistant Teacher in English was not in conformity with the then existing Memo No. 1314(50)-SE(S)/4A-35/2002 dated September 17, 2002 whereby under Serial No. 4 under the heading 'Mode of Selection and Formation of Selection Committee', sub-heading 'Assistant Teacher' the members constituting the Selection Committee for Selection of Assistant Teachers had been prescribed. Amongst others the President of the School Managing Committee is also one of the prescribed members of the Selection Committee but in the instant case the President was not included in the Selection Committee as is reflected from the extract of the meeting of the Managing Committee held on August 30, 2008 being Annexure 'P-8' of the Writ Petition. Therefore, the proper procedure for recruitment of Assistant Teacher was not followed.

(b) The order of the School Education Department, Government of West Bengal dated September 17, 2002 bearing Memo No. 1314(50)-SE(S)/4A-35/2002 was issued in cancellation of all other previous orders of the School Education Directorate in respect of procedure for recruitment of Heads of the Institutions and Teaching and Non-Teaching Staff in Non-Government Secondary Institutions. The said order was issued in exercise of the power conferred under Rule 33 of the Rules for Management of Recognized Non-Government Institutions (Aided & Unaided), 1969 as amended from time to time read with Rule 7 (i) of the Special Rules for Management of Secondary Schools established and run by a Christian Minority Society (Board), Christian Religious Society etc. to which the provision of Article 30 of the Constitution of India applies.

(c) The very first direction as provided in the said order under Serial (1) (a) provides that, "All appointments of Teaching Staff including Headmaster/Headmistress/ Assistant Headmaster/ Assistant Headmistress shall be made after a proper selection process as per permission of the District Inspector of Schools (S.E.) of the concerned district. The words 'proper selection process' and in accordance with the mode are prescribed in the Government order.

(d) That apart the words 'permission of the District Inspector of Schools (S.E.)' leaves no doubt about the important role the District Inspector of Schools has to play in such selection than merely acting as a rubber stamp.

(e) As such, when the panel was forwarded to the District Inspector of Schools for approval he found that the panel was not properly constituted and therefore rightly observed vide Memo dated February 24, 2009 annexed at Page 63 of the writ petition as Annexure 'P-18' thereof that the Selection Committee was not in order and therefore without disturbing the legitimate expectations of the candidates, including the writ petitioner, requested the School Authority to re-interview for the post remaining the same candidates after formation of proper Selection Committee in terms of the aforesaid Government order dated September 17, 2002.

(f) Thus there was no reason for the writ petitioner to have been aggrieved by such decision as he was allowed to participate in the re-interview. The writ petition, therefore, is thoroughly misconceived and liable to be dismissed.

Mr. Abhimanyu Banerjee, learned Advocate appearing for the School authority/respondent Nos. 4 & 5 opposing the Writ Petition has supported the action of the State Respondents and arguments of the State Respondents and in addition has made following submissions:

(a) That the recruitment procedure initiated by the school in the year 2008, in which the Petitioner took part, was governed by the Government Order No. 1314(50)-SE(S)/4A-35/2002 dated 17/09/2002 and such Government Order specifically laid down the procedure that was to be followed for recruiting Assistant Teachers.

(b) Admittedly the Selection committee consisted of (a) Vice President of Selection Committee, (b) Secretary of the Managing School Committee, (c) Teacher representative of the Managing Committee, (d) External expert-I, External expert - II in the first selection process, and President of the School Managing Committee was included in the Selection Committee as would be evident from Annexure "P-8" at Page 46 of the Writ Petition.

(c) It is settled law that any statutory authority who has been granted the power of approving the part of selected candidates has the correlative right of not approving the list of selected candidates provided there is justifiable reason for doing so.

(d) It is pertinent to note that the same candidates were again called for re-interview by the Selection Committee after reconstruction of the Selection Committee following the aforesaid Rules of 2002, but conspicuously, the petitioner did not appear before the Selection Committee for interview held on 21.

2009, even in the absence of any order of stay by the Court.

(e) The said rules of 2002 were superseded by Government Order No. 1092/ES/S10M-104/2011 dated 06/06/2012 and the new rules came into effect from the date of issuance of such Order, however, it has been specifically mentioned in Paragraph No. 17 of such Order that cases initiated earlier in terms of G.O. No. 1314(50)-SE(S)/4A-35/2002 dated 17/09/2002 shall not come under the purview of the new Governmental Order dated 06/06/2012.

(f) Similarly the said Government order of 2012 have now been superseded by the Government Order No. 93-SE/S/10R-14/2013 dated 09/02/2015 published on 11/03/2015, however, it has been also specifically mentioned in Paragraph No. 16 the said Order that cases initiated earlier (in terms of G.O. No. 1314(50)-SE(S)/4A-35/2002 dated 17/09/2002 and in terms of G.O. No. 1092/ES/S10M-104/2011 dated 06/06/2012 shall not come under the purview of the new Government Order No. 93-SE/S/10R-14/2013 dated 09/02/2015.

(g) The School concerned is now governed by the rules of 2015 and bearing in mind the dictum of the Government of West Bengal as elucidated in Paragraph No. 7 of the new rules of 2015 regarding the pupil-teacher ratio, the School has no vacancies for the post of 'Assistant Teacher' as of now because the number of students in the said school has gone down or dwindled drastically in the last few years for dearth of admission.

Considering the submission of the parties and facts as appear on perusal of relevant records, issues involve in this case which require consideration are as follows:

(i) Whether on the facts and in the circumstances of the case Petitioner's stand that Government Order No. 1314(50)-SE(S)/4A-35/2002 dated 17/09/2002 issued by the Government of West Bengal, School Education Department is not applicable to the School in question which is a Christian minority educational institution under Article 30 of the Constitution of India is sustainable in view of the object and scope of the same and also in view of the fact that the school itself has accepted that it is governed by the said Government Order and supports the action of the District Inspector of Schools taken under the said Government Order and in view of the admitted position that the petitioners himself has not challenged the legality and validity of the said Government Order in the instant Writ Petition as appears from grounds and prayers therein?

(ii) Whether action of the District Inspector of School Education (SE) asking the School Authority to comply the formalities of the aforesaid Government Order dated 17/09/2002 existing at the relevant time laying down the procedure of recruitment of Teaching Staff, amounts to interference in administration of Christian Minority Educational Institution?

(iii) Whether on the facts and in the circumstances of the case action on the part of the respondent District Inspector of School Education is justified in not granting approval to the panel of Assistant Teacher for English in which writ petitioner is one of the candidates, on the ground that Selection Committee formed for interview of the candidates for the aforesaid post and the panel prepared was not in accordance with Para 4 of the aforesaid Government Order dated 17/09/2002 i.e. the President of the School Managing Committee was not included in the said Selected Committee and asking the School Authority to hold re-interview of the same empanelled candidates by forming proper Selection Committee in accordance with the aforesaid Government Order dated 17/09/2002 which was prevailing at the relevant time?

(iv) Whether District Inspector of School Education is a mere rubber stamp and power to grant approval to the panel is a mere formality and he is bound to grant approval and has no power of refusal even if the procedure of recruitment is not as per the aforesaid Government Order dated 17/09/2002?

(v) Whether petitioner is entitled to be appointed to the post in question in spite of not participating in the re-interview in which he was specifically invited by the School Authority and in view of the fact that after the re-interview new panel was prepared, approval was granted, appointment was given to the successful candidate whose appointment has not been challenged and at present there is no vacancy in the said school and can the school authority be forced to create the post in case of non existence of vacancy and to give appointment to the petitioner on the basis of a panel which has been cancelled and is not in existence and whether mere empanelment of a candidate confers automatic right of appointment?

For answering all the aforesaid issues I feel it necessary to quote relevant Paras from the said Government Order No. 1314 (50)-SE (S)/4A035/2002 which was prevailing and in force at the time of the aforesaid selection process in case of the petitioner:

"........... In exercise of the Power conferred under Rule 33 of the Rules for Management of Recognised Non-Govt. Institutions (Aided & Unaided), 1696 as amended from time to time read with rule 7 (i) of the Special Rules for Management of Secondary Schools established and run by a Christian Church Missionary Society (Board), Christian Religious Society, etc. to which the provision of Article 30 of the Constitution of Indian applies, the Governor is pleased to make rules in terms of Government Order No. 641-Edn. (S) dated 23.05.1974 as amended from time to time for compliance by the above mentioned recognised aided and D.A. getting Non-Govt. Secondary Institutions in connection with recruitment of Teaching & Non-Teaching

Staff including Headmaster/Headmistress/Assistant Headmaster/Assistant Headmistress, which the Department of School Education, Government of West Bengal, accepts to have been established and administered by 'Minority'.........."

"Directions:

(1) (a) All the appointments of Teaching Staff including Headmaster/Headmistress/Assistant Headmaster/Assistant Headmistress shall be made after a proper selection process as per permission of the District Inspector of School (S.E.) of the concerned district....." "(4) Assistant Teacher:

In case of Selection of Assistant Teacher a Selection committee is to be formed with the following members.

(i) The Secretary of the School Managing Committee / Administrator of the Institution.

(ii) Approved Headmaster/Headmistress/Teacher-in-Charge of the Institution.

(iii) President of the School Managing Committee.

(iv) Two External Experts in the subject.

External Expert should be in approved teacher of a recognised High or Higher Secondary School having 10 Years' Teaching experience or a Principal of a Degree College in relevant subject.

(v) One Teacher Representative to be nominated by the School Managing Committee......."

"In  all  cases  of  Selection  of  Headmaster/

Headmistress/ Assistant Headmaster/ Assistant Headmistress/ Assistant Teacher:

.......A panel of three candidates per post is to be prepared in order of merit and submitted for approval to the concerned District Inspector of Schools (SE) within 15 days from the date of interview along with the resolution of the School Committee. After getting the panel approved by the concerned District Inspector of Schools (SE), the School Committee will issue appointment letter to the person in the first position........"

Paragraph 17 of the aforesaid Government Order No. 1092/ES/S/10M-104/2011 dated 06/06/2012 is as follows:

"17.........................

........This is in cancellation of the earlier

G.O. No. 1314(50)-SE(S) dated 17/09/2002. This order will come into force from the date of issuance of this order. But those cases initiated earlier in terms of G.O. No. 1314(50)-SE(S) dated 17/09/2002 shall not come under the purview of the instant order and those cases will be governed by earlier order under suppression........."

Paragraph 16 of the aforesaid Government Order No. 93-SE/S/10R-14/2013 dated 9th February, 2015 is as follows:

"16.........................

............The  schools  who  have already published advertisement for filling up the vacant posts will submit documents as stated in Clause (1) for receiving post-facto approval from the District Inspector of Schools (SE) and on receiving approval the school will proceeds for recruitment according to this procedure. Panel already submitted by the School Authorities for approval in pursuance to the G.O. No. 1092-ES (S)/10M-104/2011 dated 06/06/2012 and G.O No. 1314 (50)-SE(S)/4A-35/2002 dated 17/09/2002 will remain valid under the purview of the instant order and those cases will be governed by earlier order...."

Considering issues involve and the factual and legal position as discussed above, in my view the writ petition should be dismissed for the reasons hereunder.

On perusal of the aforesaid Government Order dated17/09/2002, I am of the view that it clearly appears that it is applicable to the Non-Government (Aided & Unaided) Secondary School established and run by a Christian Church Missionary Society (Board), Christian Religious Society etc. to which the provision of Article 30 of the Constitution of India applies in connection with recruitment of Teaching & Non-Teaching Staff and the respondent Christian Minority Institution/School and taking into consideration that the school concerned itself has accepted that it is governed by the same and petitioner also has not challenged the legality and validity of the said Government Order as appears from the grounds and prayers made in the Writ Petition. As per Paragraph 4 of the aforesaid order dated17/09/2002, for the post of Assistant Teacher in which petitioner has applied, Selection Committee must consists of the Members one of which is to be the President of the School Managing Committee and no power of delegation has been conferred upon him to allow another person to act in his place and in the instant case it is admitted position as it appears from Annexure 'P-8' & 'P-10' at pages 46 & 49 to 54 of the writ petition that President of the Managing Committee of the School was not a part of the Selection Committee formed for the aforesaid purpose as per the aforesaid Government Order dated 17/09/2002 which was prevailing at the relevant time.

It is also an admitted position that the School Authority has not challenged the aforesaid Government Order. In its affidavit-in-opposition and in course of argument at the time of hearing it has admitted that it is governed by the said Government Order dated 17/09/20025 and it has accepted the order of the District Inspector of School refusing to grant approval to the said panel prepared by the Selection Committee not properly formed in accordance with the aforesaid Government Order and subsequent by the school and has acted upon the order of the District Inspector of Schools for re-interview and has no grievance against applying the provisions of the aforesaid Government Order to it being a Christian Minority School.

It is also an admitted position that the petitioner has not challenged the legality and validity of the Government Order No. 1092/ES/S/10M-104/2011 dated 06/06/2012 paragraph 16 of which specifically says that those cases initiated earlier in terms of G.O. No. 1314 (50)-SE(S) dated 17/09/2002 shall not come under the purview of it and will be governed by the said earlier order under suppression. Similarly Government Order No. 93-SE/S/10R-14/2013 dated 9th February, 2015 paragraph 16 of which also clearly says that those cases initiated under the said Government Order dated 17/09/2002 will not come within its purview and it will be governed by the said earlier order dated 17/09/2002 and legality and validity of the aforesaid subsequent Government Orders have also not been challenged by the petitioner.

It is also matter of record that the petitioner did not appear in re-interview for the said post in spite of being invited to participate in the said interview. On the basis of the said interview successful candidate has been appointed to the said post and at present there is no vacancy in the school for the said post.

All the judgements relied upon by the petitioner is on the proposition that Minority Educational Institutions under Article 30 of the Constitution of India have right to administer its institution independently and no State of interfere in this regard which is well established and undisputed principle but at the same time none of those judgments say that the State Government has no power at all to make any law relating to any affairs of the minority educational institution rather in the aforesaid judgments it has been held that the State Government has power to make law in connection with the affairs of minority educational institution subject to certain limitations. Further in none of the aforesaid decisions relied upon by the petitioner subject matter of challenge was legality or validity of the aforesaid Government Order No. 1314 (50)-SE(S) dated 17/09/2002 or the facts were similar to the instant case.

In my view right to select candidates on merit for the post of Teachers is still in the hands of the Christian Minority Educational Institution and the aforesaid Government Order dated 17/09/2002 does not restrict or interfere with such right of the minority school. The aforesaid Government Order only lays down the procedure i.e. formation of Selection Committee for the purpose of selection of candidates which cannot be called interference with the administration of minority educational institution. It also appears from all the aforesaid judgments relied upon by the petitioner that State Government has the power to make laws to control the mal-administration and regulatory measures for ensuring educational character and standards and maintaining academic excellence by religious minority educational institution.

Considering the discussions made above in my considered opinion the aforesaid Government Order dated 17/09/2002 is applicable to the school in question when the said institution/school itself has not questioned the applicability of the said Government Order and accepted that it is applicable to it. Petitioner's contention that the said Government order is not applicable to his case when the legality, validity and applicability of the said Government Order has not been challenged by him as appears from the grounds and prayers of the writ petition is not sustainable in law. I am of the view that the District Inspector of School Education is justified in not granting approval to the panel in question and asking for re-interview in view of the fact that the Selection Committee was not properly formed by not including the President of the School Managing Committee as per the said Government Order dated 17/09/2002.

In my view District Inspector of School Education is not a mere rubber stamp and it cannot be said that in exercising power of granting approval to a panel he cannot look into any illegality or irregularity or violation of the aforesaid Government Order dated 17/09/2002 and there is no specific bar under the law restricting such power of the District Inspector of School to ignore any illegality or irregularity or violation of the said Government Order.

In view of the fact that further opportunity to the petitioner to participate in the said re-interview was given which he did not avail and on the basis of the re-interview candidate was selected, approval was granted and appointment was given to the candidate for the said post and at present there is no vacancy in the school in the said post question of giving approval to the said panel containing the name of the petitioner and giving appointment to him on the basis of the said panel which is not in existence does not arise apart from the legal position that mere empanelment of a candidate does not confer upon him any automatic right of appointment and the Court cannot force school authority to create a post and give appointment to the petitioner. All interim order passed in the Writ Petition is vacated.

Considering the discussion made above, the Writ Petition W.P. No. 8727 (W) of 2009 is dismissed and there is no order as to cost.

Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.