Shyamapada Sarkar vs West Bengal Board of Secondary Education

Paritosh K. Mukherjee, J.—In the present writ petition a dispute has arisen regarding the claim of the writ Petitioner Shyamapada Sarkar and Bhupendra Nath Mondal, the Respondent No. 5, for the post of permanent Headmaster of Tentulia High School, in the district of Murshidabad.

Earlier, on three occasions this matter came up to this Hon''ble Court and the earlier decisions of the Appeal Committee had been interfered with by Mahitosh Majumdar J. by His lordship''s judgment and order dated February 24, 1988, whereby His lordship had disposed of the Civil Order No. 13113 (W) of 1986 (Shyamapada Sarkar and Ors. v. West Bengal Board of Secondary Education and Ors. ) by setting aside the order of the Appeal Committee and giving liberty to the Appeal Committee to embark upon the adjudication of the appeal on merits. His lordship further directed the Appeal Committee to give ample opportunity to the Petitioner and the other parties for hearing and to produce all evidence, both oral and documentary, in support of the stand taken by the Petitioners before this Hon''ble Court and pass ''a reasoned order''.

Pursuant to the aforesaid direction, the Appeal Committee of the West Bengal Board of Secondary Education held its meeting on May 13, 1988, and passed a decision, thereby allowed the appeal and reinstated the Appellant, Bhupendra Nath Mondal, as permanent Headmaster of the Tentulia High School (hereinafter referred to as the said School) by reverting the writ Petitioner, Shyamapada Sarkar, from the said post, which has been impugned in the instant writ petition.

This writ petition was admitted by Mahitosh Majumdar J. and thereafter came up for hearing before me on July 9, 1990, and thereafter, heard on several days before me in the presence of the learned Advocate for the Petitioner and the learned Advocates for the Managing Committee and the Respondent No. 5.

During the hearing of this writ petition an application for transposition of the name of the Petitioner No. 4, Pasupati Mondal, has been made by the writ Petitioner, who died on May 1, 1990, and an application for addition of party was also filed for being added Brindaban Mondal as Respondent who has been elected, as Secretary of the new Managing Committee, has been filed and the applications have been allowed on July 25, 1990, and the writ petition has been further taken up for hearing, in the presence of the aforesaid parties.

It is to be noted that as the writ Petitioner and the private Respondent No. 5 are fighting with each other, presumably, there is no appearance on behalf of the West Bengal Board of Secondary Education.

Mr. Biswanath Bajpayee, learned Advocate appearing on behalf of the writ Petitioner Shyamapada Sarkar, has placed the following facts for consideration of this Court.

Bhupendra Nath Mondal, the Respondent No. 5, was appointed by the Managing Committee of the said School as one of the Assistant Teachers on February 10, 1965.

One Mr. P.K. Saha, the then Headmaster of Tentulia High School, having resigned from the post on July 21, 1973, and the resignation having been accepted, the School authorities had taken decision for appointing Bhupendra Nath Mondal, Respondent No. 5, as officiating Headmaster for a period. of six months with effect from January 7, 1974. Thereafter, the Managing Committee decided to appoint a ''qualified Headmaster'' for the School and the said meeting was attended by Bhupendra Nath Mondal, the Respondent No. 5, as Teacher-in-Charge, and the same would be evident from Annex. ''B'' to the instant writ petition.

The Managing Committee decided not to extend the term of officiating Headmaster Bhupendra Nath Mondal, the Respondent No. 5, for any further period, which would be evident from Annex. ''C'' to the writ petition.

To remove dispute regarding appointment of regular Headmaster in the said School, the District Inspector of Schools, being the Respondent No. 4, had appointed a ''Sub-Committee'' consisting of the local M.L.A. and five other members of the locality including Bhupendra Nath Mondal, being the Respondent No. 5, and the said Committee decided in favour of appointing a ''qualified Headmaster'' for the said school and not to extend further term of officiating Headmaster, namely, Bhupendra Nath Mondal, which would be evident from Annex, ''D'' to the writ petition.

In such circumstances, the Respondent No. 5 filed a Title Suit No. 268 of 1975 in the Court of the learned Munsif, Lalbagh, for declaration and injunction restraining the School authorities from appointing a new Headmaster. Thereafter, on August 12, 1975, on the basis of advertisement and selection made on Sri Majumdar was appointed Headmaster and he joined the School on August 16, 1975, but left the School on September 1, 1975, by tendering resignation.

The School authorities again decided to advertise for appointment of a qualified Headmaster in the Amrita Bazar Patrika dated December 11, 1975. The Managing Committee considering the applications received and after interview decided to appoint the writ Petitioner. Shyamapada Sarkar, as the regular Headmaster of the School, which is Annex. ''E'' to the writ petition.

Copy of the said resolution has been annexed as Annex. ''E'' and the copy of the charge report received by Shyamapada Sarkar, the writ Petitioner, as incoming Headmaster of the School with effect from January 4, 1976, has been annexed as Annex. ''F'' to the present writ petition.

Thereafter, the Managing Committee confirmed the appointment of the writ Petitioner as the permanent Headmaster, which is Annex. ''G'' to the writ petition.

The District Inspector of Schools (S.E.), Murshidabad, thereafter, had approved the appointment of the writ Petitioner as Headmaster, which has been annexed as Annex. ''H'' to the writ petition.

In the meantime, the earlier suit instituted by Bhupendra Nath Mondal, the Respondent No. 5, being Title Suit No. 268 of 1975, was dismissed by the learned Munsif for non-prosecution. According to the writ Petitioner all the authorities came to the conclusion that the matter was finally settled once for all.

After seven years an appeal has been preferred by the Respondent No. 5, before the Appeal Committee of the West Bengal Board of Secondary Education, presumably u/s 22 of the West Bengal Board of Secondary Education Act, 1963, and the said appeal came up for hearing in the presence of Bhupendra Nath Mondal, the Respondent No. 5, and the Secretary of the School Committee.

According to the writ Petitioner, at the hearing on August 20, 1983, a joint application was prepared and got signed under duress, by the Petitioner and the Secretary and by the said application the Respondent No. 5, an assistant teacher, was accepted as Headmaster and the Petitioner Shyamapada Sarkar was directed to act as ''assistant Headmaster''.

Shyamapada Sarkar, the present writ Petitioner, accordingly moved a writ petition and obtained Civil Rule No. 11364 (W) of 1983 and also filed connected Appeal being F.M.A.T. 3444 of 1983 before this Hon''ble Court and on November 24, 1983, this Hon''ble, Court directed the Appeal Committee of the West Bengal^ Board of Secondary Education to dispose of the application for reviewand also directed maintenance of status qua which would be evident from Annex. ''H'' to the present writ petition.

Thereafter, curiously enough, the Appeal Committee took a peculiar decision and came to the conclusion that the Appeal Committee had no power to review its own order by the decision dated January 14, 1984, Presumably, the Appeal Committee took the view that the Appeal Committee being a ''personal designata'', not ''a Court'', had no such power to review unless such power had been expressly given by the Statute, namely, the provisions of the West Bengal Broad of Secondary Education Act, 1963.

Be that as it may, the Petitioner had to move against that decision of the Appeal Committee in a separate writ petition on December 10, 1985, and this time Suhas Chandra, Sen J, by His lordship''s order dated December 10, 1985, directed aht Appeal Committee to comply with the earlier directions of this Hon''ble Court which would be evident from Annex. ''J'' to the present writ petition.

This time also the Appeal Committee-dismissed the application on April 29, 1986, holding, inter alia, that there was no duress in procuring the consent order before the Appeal Committee under threat and/or coercion and, accordingly, disposed of the appeal which would be evident from. Annex. ''K'' to the writ petition.

For the third time, the present writ Petitioner, Shyamapada Sarkar, had moved against the said decision of the Appeal. Committee which was disposed of by Mahitosh Majumdar J, by His lordship''s judgment and order dated February 24, 1988, as indicated hereinabove.

This time, the Appeal Committee decided that grave injustice had been done to Bhupendra Nath Mondal, the Respondent No. 5, as he was appointed the Officiating Headmaster of the said School and the writ Petitioner''s appointment as Headmaster of the said School and the writ Petitioner''s appointment as Headmaster of the said School by the Managing Committee was amounted to demotion of Bhupendra Nath Mondal, the Respondent No. 5, and accordingly, directed reinstatement of Bhupendra Nath Mondal, which has been impugned in the instant writ petition for the third time.

It will be necessary for us to set out the relevant observations of the Appeal Committee from the said order, which has been impugned as Annex. ''M'' of the writ petition. It appears from the said order dated May 13, 1988, the Appeal Committee came to the following conclusions:

(a) The case of the Appellant Bhupendra Nath Mondal was that he was appointed as Assistant Teacher with effect from February 10, 1965, and Officiating Headmaster from January 29, 1973. He also claimed to have been appointed as Headmaster of the said School with effect from January 7, 1974. His grievance was that there was a reduction in rank from the post of Headmaster with effect from July 13, 1975. Shyamapada Sarkar (writ Petitioner herein) was appointed as Headmaster and his service has been confirmed with effect from January 1976.

(b) The appeal was first disposed of on the basis of a joint petition. Subsequently, the joint petition was challenged by Shyamapada Sarkar, the writ Petitioner, on the ground that it was obtained under duress. The matter went up to the Hon''ble High Court. The Hon''ble High Court had directed the Appeal Committee to decide the matter ''on merits'' after giving the parties an opportunity of being heard.

(c) Bhupendra Nath Mondal, the Respondent No. 5, was appointed an officiating Headmaster by a resolution of the Managing Committee dated January 31, 1974, for a period of six months. The Appeal Committee has noted the resolution dated January 3, 1974, of the "Managing Committee which has been filed before the said Committee. It appeared before the Appeal Committee from the said resolution of the Managing Committee that the Managing Committee decided to appoint the Appellant Bhupendra Nath Mondal a permanent Headmaster of the said School and it was decided that until he got himself trained in B. Ed, he should be appointed initially for a period of six months and which was directed to be extended thereafter.

(d) It was further noted by the Appeal Committee that the Managing Committee had taken the decision that the appointment of Bhupendra Nath Mondal ''as officiating Headmaster'' should be extended upto July 7, 1974.

(e) According to the Appeal Committee, from the aforesaid resolution the intention of the Managing Committee was made clear and, according to the Appeal Committee, it was unanimously resolved to appoint Bhupendra Nath Mondal as.permanent Headmaster of the School, but as he was not trained at the time of taking the said decision it was decided that he should be initially appointed for a period of six months and to be extended from time to time in order to enable him to get necessary training.

(f) The Appeal Committee also noted that the initial appointment was upto July 7, 1974, arid in spite of the said resolution the Managing Committee took a decision on May 17, 1975. It was also noted by the Appeal Committee the initial appointment as officiating Head-master of the said School was upto July 7, 1975, only and the District Inspector of Schools was requested to take steps in the said regard.

(g) The Appeal Committee also noted that the appointment was although initially for six months it was subject to extension of term for six months.

(h) The Appeal Committee also had taken note of the letter of the District Inspector of Schools dated June 21, 1975, which had been filed before the said Appeal Committee, wherein the District Inspector of Schools had expressed his opinion that it would be irregular to dispose of the service of the Appellant from the present post in view of the previous resolution of the Managing Committee in which it was decided to absorb the Appellant Bhupendra Nath Mondal, permanently. The District Inspector of Schools also informed the School that the proposal of the School to appoint as Headmaster could not be accepted by him.

(i) In such circumstances, the Appeal Committee took the decision that the Respondents Managing Committee should not have advertised for the post of appointment of a qualified Headmaster and, accordingly, came to the conclusion that the entire thing was done, in an irregular manner, to advertise for the post and to appoint Shyamapada Sarkar (the writ Petitioner herein) as permanent Headmaster.

In conclusion, the Appeal Committee had allowed the appeal and reinstated Bhupendra nath Mondal for the post of officiating Headmaster with effect from the date of reduction in rank without taking into consideration the material fact that the present writ Petitioner Shyamapada Sarkar not only had been appointed as permanent Headmaster after due advertisement, but he has been functioning as Headmaster with effect from January 4, 1976, continuously and without any break. As such, this Court sitting in this Constitutional Writ Jurisdiction has been called upon to express opinion as to the validity or legality of the aforesaid decision of the Appeal Committee. As this Court has no power of reapprising evidence and unless this Court comes to the conclusion that the orders of the Appeal Committee suffer from perversity, it is not open for this Court to interfere with such decision of the Appeal Committee.

I have gone through the earlier decisions of the Appeal Committee and the present impugned decision of the Appeal Committee and I have no hesitation to come to the conclusion that the Appeal Committee from the very beginning was moving in a partisan spirit in favour of the Respondent No. 5, and accordingly, the decision of the Appeal Committee in my view is perverse and is not based on any material.

Further, I am of the view that the Appeal Committee has not approached the appeal from proper angle and has not noted the broad facts that the present writ Petitioner having been appointed as ''permanent Headmaster'' on the basis of the due advertisement in the newspaper and, after due selection, has been discharging his duties as Headmaster with effect from January 4, 1976, continuously and without any break, and the Respondent No. 5 was merely appointed as Assistant Teacher and was directed ''to officiate'' as Headmaster only for six months by the Managing Committee and the period was not extended further by the then members of the Managing Committee.

At the final hearing of the writ petition when this Court enquired about the present functioning of the Headmaster and the Respondent No. 5, all the parties have informed this Court that- the writ Petitioner has been functioning and discharging his duties as Headmaster and the Respondent No. 5 has been functioning as merely an Assistant Teacher with effect from January 4, 1976.

Accordingly, I am of the view that gross injustice has been done by the Appeal Committee by reinstating the Appellant (being Respondent No. 5 herein) and the Appeal Committee has committed abuse of power by granting such reinstatement, without looking into the relevant material that the service of the writ Petitioner as Headmaster cannot be said to have been evaporated by the purported decision of the Appeal Committee.

In the result, I am of the View that the decision of the Appeal Committee is liable to be set aside and is hereby set aside by issue of a appropriate writ in the nature of certiorari, and the Respondents and each one of them are restrained by a writ in the nature of mandamus not to interfere with the functioning of the Petitioner as Headmaster of Tentulia High School.

This judgment, however, will not take away the right of the Respondent No. 5 to get appropriate appointment in nereby school of the locality as the Respondent No. 5 in the meantime has duly qualified himself for being appointed as Headmaster in any of aided schools under the Respondents.

The Respondents are, further, directed to consider the candidature of the Respondent No. 5 for being appointed as Headmaster in nearby School, without observing any other formality and interview and in accordance with, law.

The writ petition is allowed, as above.

There will be no order as to costs.

On the undertaking to observe all formalities, let a xerox copy of this order be given to the learned Advocates for the parties.