Shri Subhendu Ghosh vs Md. Kajem Ali

Ashim Kumar Banerjee, J.—Dayanagar Junior High School in the district of Murshidabad was recognized as a "new set up school" by the West Bengal Board of Secondary Education by an order dated February 6, 2001. On July 23, 2001 the Respondents herein filed a writ petition, inter alia, praying for regularization of their appointments as organizing staff in the concerned school. The learned single Judge by judgment and order dated July 23, 2001 disposed of the said writ petition ex-parte by directing the District Inspector of School to send a DLIT Team for inspection within a period of four weeks and submit their report to the Director of School Education. The Education Department in turn was directed to consider the same and send it for ultimate consideration of the Board on the issue of recognition. The order was recalled at the instance of the Respondents/writ Petitioners on August 27, 2001. His Lordship passed a fresh order directing the DLIT Team to inspect the school and submit their report to the District Inspector of School who would take a decision on the issue of approval of the Respondents/writ Petitioners. The writ petition was disposed of. The said order was also passed ex-parte. It further appears that the said order was duly communicated to the District Inspector. The District inspector accordingly sent a SLIT team who submitted their report on October 19, 2001. The Respondents/writ Petitioners were, however, not regularized.

A contempt application was moved alleging noncompliance of the order dated August 27, 2001 against the then District Inspector of Schools. His Lordship issued Rule of Contempt which was heard and disposed of by judgment and order dated September 15, 2004 impugned in this appeal.

Prior to disposal of the contempt proceeding His Lordship also appointed an Advocate of this Court as Special Officer to inspect the school and submit a report.

On perusal of the judgment and order under appeal it appears that His Lordship was of the view that once the DLIT Team inspected the school and found the Respondents working therein the District Inspector should have taken steps for their regularization. Having not done so he violated the order of the Court and as such held him guilty of contempt of Court. By the impugned order His Lordship also observed that the disposal of the contempt application would not "prejudice the cause of implementation of the order in the light of the judgment and order passed by this Court preferably within a period of one month from the date of communication of this order".

DLIT Team is the abbreviated form of District Level Inspection team. Such team is sent for the purpose of inspecting unrecognized schools for granting recognition. In the instant case admittedly the school was granted recognition as a "new set up school" meaning thereby the school was to be set up with new teaching and non-teaching staff. The school was granted recognition in 2001. By that time the School Service Commission act was already in force. Hence, all the teaching staff were to be appointed only with the recommendation of the School Service Commission. There was no occasion for the school to appoint the Respondents as teachers/non-teaching staff nor the DLIT Team was entitled to recommend them for regularization. There was no scope for the DLIT Team to visit a school which had already been recognized. Even if the District Inspector of School in terms of the order of His Lordship sent the DLIT Team for inspection such inspection and/or the report was superfluous in view of the non-obstanti provision of 9 of the West Bengal School Service Commission Act, 1997 so far teaching staff are concerned. It bars appointment of any person as teaching staff in any recognized school save and except with the recommendation of the School Service Commission. Similarly, His Lordship erred in appointing a Special Officer to inspect the school. With deepest regard we have for the learned single Judge, we are of the view that the entire exercise from the day of passing of the order disposing of the writ petition by His Lordship was of no consequence as the writ petition itself was not maintainable. His Lordship initially disposed of the writ petition ex-parte, probably on the misapprehension that the Petitioners prayed for consideration of their prayer for recognition of the school. The same was recalled at the instance of the Petitioner ex-parte and a fresh order was passed on August 23, 2001. We are of the view that the said order was erroneous as it did not have any support of law. Even if we accept the contention of the Respondents that they were engaged by the school authority to teach the students or serve the school as non-teaching staff there is no law which could entitle them to ask for regularization. In any event, the District Inspector of School rightly contended as such and no act of contempt was committed by the Appellant.

Delay in filing the appeal is condoned. The appeal succeeds. The order under appeal dated September 15, 2004 is quashed and set aside.

All applications in the appeal are consequently disposed of.

There would be no order as to costs.

Urgent xerox certified copy could be given to the parties, if applied for.

Surinder Singh Nijjar, C.J.

I agree.