Smt. Ratna Saha vs The State of West Bengal and Others

Hon''ble Justice Debasish Kar Gupta

This writ application is filed by the petitioner for a direction upon the respondent authority to approve her appointment to the post of Headmistress of Palaspai Anchal Gita Rani Dhara Balika Vidyalaya, P.O. Chak Hyatpur, P.S. Khanakul, Dist-Hooghly (hereinafter referred to as the said school) with effect from May 1, 2002.

The backdrop of the case is as under:

The said school was recognized by the West Bengal Board of Secondary Education with effect from May 1, 1992 under memo no. S/530 dated October 1, 1992. The respondent no. 4 approved the appointment of the petitioner in the post of teacher-in-charge under his memo no. 2063 dated December 30, 1993, amongst other teaching and non-teaching staff of the said school, with effect from the date of recognition of the said school. The respondent no. 4 under his memo no. 2082 dated December 31, 1993 sought for permission to fill up two teaching and one non-teaching post in addition to normal staff strength of the said school as also appointment of the petitioner to the post of Headmistress. The Deputy Director of School Education (GA), West Bengal turned down the above proposal under his memo dated July 11, 1994. According to the petitioner, she became eligible for consideration for appointment to the post of Headmistress of the said school after completion of ten years service in the post of teacher-in-charge of the said school. The petitioner filed an application under article 226 of the constitution of India bearing W.P. No. 8328 (W) of 2002 (in re. Shri Ratna Saha Vs. State of West Bengal & Ors.) and the above writ application was disposed of on July 1, 2002 with a direction upon the respondent no. 3 to take a decision in the matter.

Pending consideration of the above claim of the petitioner a writ application bearing W.P. no. 12314 (w) of 2002 (in re. Anita Pattanayak & Ors. Vs. State of West Bengal & Ors.) was filed by the guardians of some of the students of the said school for restraining the authority from appointing the writ petitioner as Headmistress of the said school, amongst other grounds. By an interim order dated September 17, 2002 passed in the above writ application the authority was restrained from appointing anyone in teaching post of the said school until and unless any one was recommended to be appointed in a teaching post by the School Service Commission.

The respondent no. 3 passed an order in respect of the claim of the petitioner for appointment to the post of Headmistress of the said school under his memo no. 613/1(5)-LC dated December 30, 2002/January 1, 2003 with the following conclusion.

I find according to the current recruitment rules for the post of Headmaster/Headmistress as contained in notification no. 14-SE(S) dated 8-1-98 a Master/;Hons(regular) degree with degree in Bachelor in teaching/Bachelor in Education/Post Graduate Basic Training from any recognized University with 10 years'' continuous teaching experience in approved service in a Higher Secondary/High School recognized by the West Bengal Board of Secondary Education etc. without any restriction on the upper age limit is required.

The petitioner is and M.A in Political Science as well as in Music. Music is being taught in the school as a subject; besides, she had English and Bengali at the degree level. She passed M.A. in Political Science in 1979 and M.A. in Rabindra Sangeet from Rabindra Bharati University in 1983. She passed B. Ed Examination from the University of Calcutta in 1981. She has completed 10 years'' teaching service/experience in a recognized High School on 1-5-2002. Thus, as on this day, she is qualified for being appointed as Headmistress. But in terms of the directions given by Hon''ble Mr. Justice Barin Ghosh in W.P. No. 12314(W) of 2002 dated 17-9-2002, the question of the petitioner''s being appointed as Headmistress of the institution does not an cannot arise. The Hon''ble Mr. Justice directed that until further orders no one should be appointed in teaching post of the institution in question until she has been recognized to be appointed in such teaching post by the School Service Commission.

In the circumstances I regret that I am unable to grant any relief to the petitioner as prayed for in view of the aforesaid order of the Hon''ble Court dated 17-9-2002.

The case is thus disposed of.

All concerned be informed accordingly.

S. Som

Director of School Education

West Bengal

Dated Calcutta,

The 13th December 2002

Memo No. 613/1(5)-10

Dated Calcutta, the 30.12.2002

02.01.03

Subsequently, the writ application of guardians of some of the students of the said school bearing W. P. No. 14312 (W) 2002 was dismissed by an order dated September 16, 2004.

It is submitted by Mr. L. K. Gupta, learned senior counsel appearing on behalf of the petitioner that the claim of the petitioner for appointment in the post of Headmistress of the said school was considered by the respondent no. 3. In compliance of an order dated July 1, 2002 passed in W.P. 8328(W) of 2002, the respondent no. 3 considered the claim of the petitioner and came into conclusion that the petitioner was qualified for being appointed as Headmistress of the said school. But in view of an interim order dated September 17, 2002 passed in W.P. 12314(W) 2002 no relief could be granted to the petitioner by the respondent no. 3. According to him, the above writ application was ultimately dismissed on September 16, 2004. It is submitted by him, that after dismissal of the above writ application, the petitioner was entitled for appointment to the post of Headmistress of the said school in view of the order dated December 30, 2002 / January 2, 2003 passed by the respondent no. 3. It is also submitted by him, that the provisions of the West Bengal School Service Commission Act, 1997 has no manner of the application in the instant case in view of the fact that the appointment of the petitioner to the post of Teacher in-charge of the said school had been approved by the respondent no. 4 with effect from May 1, 1992, i.e. prior to the promulgation of the above Act.

The attention of this court is also drawn towards an order passed under memo No. 614 dated December 24, 2002 by the respondent no. 3 in a similar case for appointment of a Teacher-in-charge of an upgraded High School in the post of Headmistress.

Mr. Gupta relied upon the decision of The State of West Bengal & Ors. Vs. SK. Mustaque Ahmed & Anr., reported in (2011) 2 CAL LT 318.

On the other hand it is submitted by Mr. Mr. Kalimuddin Mondal, learned senior Government Advocate, High Court, Calcutta, that after the promulgation of the West Bengal School Service Commission Act, 1997 the School Service Commission only could select persons for appointment to the post of Teachers in Schools.

I have heard the learned counsel appearing for the respective parties at length and have considered the facts and circumstances of this case carefully. Admittedly, the said school was recognized with effect from May 1, 1992. It is also not in dispute that the appointment of the petitioner in the said school was approved by the respondent authority with effect from May 1, 1992. Prior to promulgation of the West Bengal School Service Commission Act, 1997, one of the eligibility criteria under the Recruitment Rules as contained in notification no. 14-SE(S) dated January 8, 1998 for consideration of the case of a person for appointment to the post of Headmistress, was ten years'' continuous teaching experience in approved service in a Higher Secondary/High School recognized by the West Bengal Board of Secondary Education. Admittedly, the petitioner obtained her ten years'' experience in approved service in the said school on or about May 1, 2002. But in the mean time the West Bengal School Service Commission Act, 1997 came into force with effect from November 1, 1997 pursuant to a notification No. 878-SE(S) dated October 17, 1997 issued in exercise of power conferred by Sub-section (2) of Section 1 of the West Bengal School Service Commission Act, 1997. The provision of Section 7 of the West Bengal School Service Commission Act, 1997 are quoted below:

Notwithstanding anything contained in any other law for the time being in force or in any contract, custom or usage to the contrary, it shall be the duty of the Regional Commission to selectpersons for appointment to the post of Teachers in schools within its territorial jurisdiction.

Therefore, the petitioner obtained requisite qualifications for consideration of her case for appointment to the post of Headmistress after the above provisions of Section 7 of the West Bengal School Service Commission Act, 1997 had came into force. As a result, she was not entitled to be appointed to the post of Headmistress of the said school.

The decision of respondent no. 3 in the case of appointment of one Rekha Sinha as Headmistress of Panch Gram High School, District Murshidabad has no manner of application in the instant case in view of the distinguishable facts and circumstances of that case. In that case Smt. Rakha Sinha obtained requisite qualifications for appointment to the post of Headmistress with effect from December 17, 1988, i.e. prior to the promulgation of the West Bengal School Service Commission Act, 1997. The decision of Sk. Mustaque Ahmed (Supra) also has no manner of application in the instant case. Because the issue involved in the above case was applicability of the provisions of the West Bengal Schools (Control of Expenditure) Act, 2005 in that case.

In view of the discussions and observations made hereinabove this writ application is dismissed.

There will be, however, no order as costs.

Urgent Photostat certified copy of this judgment, if applied for, is given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.