Sonu Sharma vs State Of West Bengal & Ors.

This is an application under Article 226 of the Constitution of India wherein the writ petitioner is aggrieved by an order dated 19th December, 2018 passed by the District Inspector of Schools (SE), Kolkata (hereinafter referred to as "DI of Schools"), rejecting the prayer of the petitioner for granting her approval in the sanctioned strength of the school so as to enable her to get the benefit of Dearness Allowance.

By an order dated August 29, 2018, this Court had directed the DI of Schools to consider the case of the writ petitioner in accordance with law and to pass a reasoned order in the said matter.

Subsequently, the DI of Schools has passed an order refusing the prayer of the writ petitioner. Extract of the order is annexed below :-

"Going through all the submissions following points are observed :-

1) The Petitioners sought for approval for getting D.A. component released by the Government as per G.O. No. 1691 - SE (S) dated 20.09.2001 for a D.A. getting schools i.e. Govt. Exchequer will be involved if approval is accorded in the form of regular financial allowances from the date of approval. But there are orders of the Schedule Castes and Tribes, Welfare Department issued vide memo no. 1079-L dated 05.05.1976 & Memo No. 346 - TW/EC dated 13.07.1994 wherein it is clearly stated that reservation rules are to be followed. As per submitted papers the reflection of maintaining the roster of appointment following the above guideline has not been found.

2) Form the records submitted for approval it transpires that the School Authority did not follow the recruitment process i.e. proper advertisement for the vacant post, formation of selection committee, preparation of roster and prayer for permission to the D.I./S (S.E.), Kolkata for filling up the vacant post at the time of appointment.

3) It appears that teachers of the school are getting 100% of their Basic pay as D.A. component from the State exchequer and as such all rules and circulars by the Government are to be followed by the School Authority.

Hence it appears that petitioners were appointed by the Managing Committee purely on temporary basis without following the law. It can be said that if an appointment is made by flouting the rules, or if it is in violation of the provision of the rules, or if it is in violation of the provision of the constitution, such appointment cannot be regularised or approved. So no relief can be given to the Petitioners in the light of aforesaid observations at this stage."

Mr. Anjan Bhattacharya, learned Advocate appearing on behalf of the writ petitioner, submits that the case of the petitioner is governed by Memo No.1691-SE(S), dated 20th September, 2001 and the conditions therein for filling up the vacant post within the sanctioned strength in D.A. getting schools are as follows :-

"Govt. in the Education Department has since considered the matter at length and decides to permit the authorities of such D.A. getting schools to fill up the vacant post within the sanctioned strength by placing properly qualified teachers already working in the school for the Secondary/Higher Secondary Section but not in receipt of D.A. from the Govt. on fulfilment of the following conditions:-

(1) Such teachers working beyond the sanctioned strength should be placed whenever any vacancy arises within the sanctioned strength in strict adherence to the norms of the staff pattern in case of Normal Section (V to X). In case of H.S. Section only those teachers who possess Hons./Master degree in the subjects in which the vacancy arises should be considered.

(2) Before placement it is to be confirmed that the teachers to be placed within the sanctioned strength had minimum qualification and was within the prescribed age limit at the time of initial appointment.

(3) The managing committee whenever a vacancy arises will approach the concerned D.I. of Schools for permission order, along with a copy of resolution resolving the placement of concerned teacher along with academic certificates of the incumbent.

If there is more than one teacher of the same academic qualification preference should be given to the seniormost. "

Mr. Anjan Bhattacharya submits that his client had joined the said school in the year 2006 in place of one Rani Sharma who had retired in the year 1989. He relies on the statement of existing unapproved teaching and non-teaching staff pattern issued by the school to prove his case. He further submits that on 13th September, 2008 she was granted permanent appointment in the school as an Assistant Teacher (Hindi) and has been teaching in the said school since then.

Mr. Bhattacharya submits that the order passed by the DI of Schools is bereft of any reasons and his case has been rejected solely on extraneous circumstances not germane to the main issue. He submits that the grounds mentioned in point nos.1, 2 and 3 of the order have no application in the case of a teacher working in a DA getting school not in the receipt of DA and the only conditions that are to be fulfilled are as per Memo No.1691-SE(S). He submits that the petitioner fulfils the three conditions as mentioned in the Memo No.1691-SE(S), and accordingly, the reasons provided in the impugned order cannot take away the petitioner's right for getting sanction and receiving D.A. He further submits that the attempt of the counsel appearing on behalf of the respondent to provide additional reasons, such as the school retracting its position subsequent to the passing of the order of this Court on 29th August, 2018 is hit by the ratio of Shri Mohinder Singh Gill & Anr. Vs. Chief Election Commissioner & Ors., reported in (1978)1 SCC 405.

Per contra, Mr. Sirsanya Bandopadhyay, learned Advocate appearing on behalf of the State, submits that the D.I. of Schools is required to act in terms of Memo No.1691-SE(S) and that is exactly what the D.I. has done in this particular case. He submits that once the school has given a letter requesting the D.I. not to proceed in approval of the petitioner, no option was left with the D.I. of Schools. He further submits that records have not been brought before the D.I. of Schools to indicate that the school authorities had followed the correct recruitment process and therefore the appointment of the petitioner cannot be regularised. He further submits that the resolution approving the writ petitioner to become part of the sanctioned strength has also never been brought on record before the D.I. of Schools.

I have heard counsel appearing on behalf of both the parties.

On a plain perusal of the impugned order one gets the impression that extraneous material and reasons irrelevant to Memo No.1691-SE(S), Kolkata have been penned by the D.I. of Schools. He refers to a Memo No.1079-L, dated 5th May, 1996 and Memo No.346TW/EC, dated 13th July, 1994 with regard to reservation of the scheduled castes and scheduled tribes. Thereafter, he refers to the maintenance of the roaster of appointment with regard to following the guidelines in the above Memos. The D.I. of Schools further goes into the issue of whether the petitioner had been recruited in a proper manner and then goes on to state that the school is required to comply with all the rules and regulations of the government as DA component is granted by the State exchequer.

After commenting on the above different aspects, the ultimate reason given is that the appointment of the petitioner was made purely on temporary basis without following the law and therefore the same is in violation of the provisions of the rules and accordingly the appointment cannot be regularised or approved. As pointed out, these reasons are extraneous and do not fit in to the conditions and terms as laid down in the Memo No.1691-SE(S), Kolkata. The additional reason as advocated by Mr. Bandopadhyay can also not be taken into account as the same is hit by the Supreme Court judgment in the case of Sri Mohinder Singh Gill & Anr. (supra). The relevant paragraph is noted below :-

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16] :

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older."

One more aspect of the matter is required to be looked into, that is, the action of blowing hot and cold by the School authorities. It is to be noted that at the time of hearing of the earlier writ petition, the School authorities were not present inspite of service and today once again they are not present inspite of service. It is further to be noted that the application for approval of the writ petitioner had been sent by the school to the D.I. of Schools in the year 2013 and for five years they did not find any reason to withdraw the said application. Upon the Court passing an order on 29th August, 2018, it seems that the school has made a volte face and by a letter dated September 24, 2018 written to the District Inspector of Schools(SE), Kolkata stated that the proper approval has not been given to the writ petitioner under the rules and regulations of the School and accordingly, the application of the petitioner may be dropped/cancelled.

From the above letter of September 24, 2018, it is clear that the school authorities have chosen to take a diametrically opposite view after a period of five years. It is to be noted that the right of the writ petitioner fructifies if the terms and conditions are met as per Memo No.1691-SE(S) and not otherwise.

In my opinion, the reasons delineated in the impugned order are woefully insufficient and cannot be sustained. Furthermore, the changed stance of the school after a gap of five years raises a huge amount of suspicion and appears to be arbitrary.

In light of the above reasons given, the impugned order dated 19th December, 2018 is quashed and set aside with a direction to the District Inspector of Schools (SE), Kolkata to revisit the issue and grant an opportunity of hearing to the concerned parties. The District Inspector of Schools (SE), Kolkata is directed to act in terms of the relevant Memo being No.1691-SE(S), dated 20th September, 2001 and pass a reasoned order. The District Inspector of Schools (SE), Kolkata must also enquire as to the reasons of the changed stance of the School authorities and in the event no proper reasons are given, the changed stance should be rejected.

The above order should be passed within six weeks from the date of communication of this order. The order to be passed shall be communicated to the petitioner within two weeks thereafter.

With the above direction, the writ petition being WP No. 14 of 2019 is disposed of.

Since no affidavits are called for, the allegations, if any, contained in the writ petition are not deemed to have been admitted by the respondents.

Urgent certified copy of this order, if applied for, be made available to the parties subject to compliance with all necessary formalities.