Tapas Mukherjee vs State Of West Bengal & Ors.

PROTIK PRAKASH BANERJEE, J.

This writ petition has been instituted inter alia for a direction on the respondent authorities to allow the writ petitioner to join his duties as a Para

Teacher in the school where he was engaged, with consequential benefits.

An advertisement was issued on August 6, 2004 for posts of additional para-teachers by the District Project Officer, Sarva Siksha Mission,

Howrah. For primary schools, the minimum, essential educational qualification advertised for eligibility was “Madhyamik Passed†which means,

passed the secondary level examination conducted by the West Bengal Board of Secondary Education. For Secondary schools, the minimum, essential

educational qualification was “graduate, preferably B.Edâ€. No stream â€" Arts/Humanities, Science or Commerce â€" was mentioned for the

educational qualification. Presumably, this was because of the intention of the powers-that-be, that if children in primary school were to be taught, any

person who had passed the secondary examination was qualified, and for children in secondary schools, any person who had a graduate degree, and

had done a teachers’ training course, would be adequate. At least they could teach children any subject at those levels.

Pursuant thereto, a due process of selection including interview, was held. The selection committee for recruitment of para teacher for the purposes

of teaching in upper primary schools such as in the present case, comprised the Headmaster/ Headmistress of the concerned school, a representative

of the District Inspector of Schools (SE), the Secretary of the School Managing Committee, the President of the VEC/WEC concerned or his/her

representative and an expert nominated by the school managing committee. They all duly approved a panel including four candidates. The fourth

candidate was the petitioner. Admittedly, he held a Master’s Degree in Arts (History) and had done his graduation (with Honours) also in Arts

and therefore, naturally had passed the Madhyamik Examination. Admittedly, this was an approved panel. It has been admitted by the respondent no.

2, who is the villain of the piece, according to the writ petitioner. He admitted it through his memo no.1042 dated July 24, 2012. This memo was

produced before me during the course of hearing by the school authorities.

This is otherwise completely against the interests of the writ petitioner, so I have all the more reason to give credence to this admission. Apparently

the first empaneled candidate was appointed to the post of parateacher on February 27, 2006 but resigned from the post on October 5, 2007. After his

resignation, the second and third empaneled candidates were offered the post, but they expressed in writing their unwillingness to join the post.

Thereafter, the school authorities â€" through their Managing Committee â€" appointed the writ petitioner to the said post by a letter of engagement

dated November 20, 2007. It is the admitted case of the parties that the writ petitioner was appointed as an Additional Para Teacher to teach children

of the upper primary section of the school. I would have thought he was overqualified for it and had the minimum essential qualification to be so

engaged and so teach such students.

The engagement of the writ petitioner was kept in abeyance because of a Memo dated February 6, 2010 passed by the respondent no. 4. This was

purported to be in compliance with an an interim order passed on September 9, 2008 passed in WP No.4437 (W) of 2008 [Shyamal

Chatterjeeâ€"vâ€"State of West Bengal and Others] and the writ petitioner herein was directed to be withdrawn from teaching science subjects till

further order of the Court. The Memo dated February 6, 2010 was stated to be subject to the further orders of this Court in WP No.4437 (W) of

2008. The order, which I have gone through, both directs the appointment of the writ petitioner to be kept in abeyance as also directs the writ

petitioner to withdraw from teaching science subjects till further orders are passed by the court. That means, the writ petitioner was encouraged by

the court to teach subjects other than science, presumably in the public interest of students learning that which they could learn from a para teacher

who held a Master’s Degree in history. This writ petition was ultimately dismissed as withdrawn by an Order dated August 11, 2011 without any

leave being reserved to file afresh. As such in the eye of law the said Shyamal Chatterjee abandoned his case and claim.

However, during the interim period, honorarium was released to the writ petitioner till from September 2008 to March 2010. The school authorities,

in their application being CAN 11978 of 2016 in the earlier writ petition of the writ petitioner, WP No.23839 (W) of 2012 which is being heard

alongwith the present case, has alleged this was because the respondent no. 4 approved the release of such honorarium and this appears from the

Memo dated December 19, 2008 which is Annexure “C†to such application. The writ petitioner in all fairness, undertook to refund his

honorarium of Rs.10,920/- for the months of September and October 9, 2009 onwards, because of what he called was a “judicial objectionâ€​.

Subsequently, however, his salary was not paid. It appears from the Memo dated July 24, 2012 issued by the respondent no. 2 that this was because

the respondent no. 2, of his own, wrote to the school authorities on February 5, 2010 to follow the order dated September 9, 2008 in WP No.4437 (W)

of 2008 which, as aforesaid, was ultimately dismissed as withdrawn on August 8, 2011.

In the meanwhile, admittedly, the respondent no. 1 by a Memo dated July 22, 2010 which has been disclosed by the school authorities in their above

application and their Affidavit-in-Opposition in WP No.22839 (W) of 2012 referred to above, informed all school authorities of the decision of the

respondent no. 1 in Education Department, that all Para Teachers duly engaged previously will continue to be engaged till 60 years of age. There will

be no question of renewal of service.

Since the engagement of the writ petitioner was not terminated, but only kept in abeyance, though it was contractual, subject to further orders of

this Court in WP No.4437 (W) of 2008, I would have thought the engagement however temporary was revived on and after August 11 â€" for what it

was worth. The letter dated February 5, 2010, written by the respondent no. 2, even on the best interpretation required that the school authorities

follow the order dated September 9, 2008 in the writ petition dismissed as withdrawn subsequently. Once that writ petitioner was dismissed as

withdrawn and the claim made therein lost its force, the said letter also was just another piece of paper written by an officious busybody.

By virtue of the Memo dated July 22, 2010 referred to above, the temporary service of the writ petitioner was enlarged and extended to service as

a Para Teacher till he attained the age of 60 years and he was entitled to the benefit of such circular and all it entailed.

However, the school authorities nonetheless refused to pay any honorarium to the writ petitioner. It is the express case of the writ petitioner, that

he was asked to withdraw himself from teaching science subjects but that he continued to teach other subjects and was discharging his duties since

engagement.

Because of this, the writ petitioner instituted WP No.22839 (W) of 2012 seeking inter alia release of his honorarium in connection with such

engagement. At that time, the Learned advocate appearing for the State, made a wrong submission from the Bar as if the appointment of the writ

petitioner was not approved. This, it is clear, cannot be correct, since the writ petitioner as I have found from the records referred to in paragraph 3 of

this judgement, was offered the appointment after due selection process, as the fourth empaneled candidate, from an “Approved Panel†when the

first empaneled candidate resigned after engagement and the second and third empaneled candidates declined in writing to accept the post, Affidavits

were directed to be filed by a coordinate bench on February 14, 2013, but the State, which had taken this point, did not file any Affidavit-in-Opposition.

Only the school authorities did. By not filing any Affidavit-in-Opposition, the State of West Bengal including its officers such as the respondents No.2

and 4 herein, accepted that the appointment of the writ petitioner subsisted and was approved. That is the effect of the said conduct of the respondent

no. 1 and the position in law which has not been disputed.

On November 16, 2016, a coordinate bench, in the said earlier writ petition of this petitioner directed the school authorities (Secretary of the

managing committee) to appear in person and show cause why the bills for honorarium were not forwarded to the present respondent no. 3.

However, at a latter stage of that writ petition, by an order dated December 6, 2016, a coordinate bench directed that the amount of honorarium

(called “Salary†therein) paid to the writ petitioner between September 10, 2008 to March 31, 2010 be refunded to the State exchequer within 24

hours. Thereafter the matter was adjourned from time to time to discover how the respondent no. 4 had approved payment of honorarium to an

additional para teacher whose appointment had been kept in abeyance by the order of the court. What was not brought to the notice of the court, was

that the order of the court keeping the appointment in abeyance had not been in force since the dismissal of the writ petition as withdrawn, though this

was disclosed in the Affidavit-in-Opposition referred to above. It was also not brought to the notice of this court that in view of the facts and the

position of law and the memo dated July 22, 2010 as in paragraph 7, the writ petitioner’s service stood extended without renewal till he attained

the age of 60 years.

The respondent no. 2 herein, however, proceeded in his officious manner, against the interests of the writ petitioner, inter alia by holding hearings

on April 4, 2012 against the decision of the managing committee to continue the writ petitioner as an additional para teacher, which he called ex parte

decision, conveniently forgetting that it was the respondent no. 1, which was his master, and of whom he was a mere employee, by whose decision as

communicated on July 22, 2010 as in paragraph 7, that the writ petitioner’s service had been extended without renewal, ever since the dismissal of

Sri Shyamal Chatterjee’s writ petition on August 11, 2011.

This one-man vendetta against the writ petitioner culminated in the school authorities not allowing the writ petitioner to join his duties leading to the

present writ petition being WP No.2926 (W) of 2018 to be filed.

In the present case on the admitted facts on record, as I have referred to above, the questions which arise are whether the writ petitioner who

holds a Master’s Degree in History (Arts), is entitled to join duties as a para teacher/additional para teacher in a secondary school but teaching

upper primary school students, where he would be teaching science subjects, and whether the respondent no. 2 is entitled to review the suitability of

the writ petitioner, as I had formulated the issues on the basis of the facts, in my order dated June 22, 2018, by which hearing of the writ petitions had

been concluded and judgement had been reserved.

As appears from the facts mentioned above, I find nothing in the advertisement which specified that the appointment of a para teacher or

additional teacher in the concerned school was for teaching science or that the posts were of para teachers or additional para teachers in a science

subject. There is nothing in the advertisement which requires the minimum educational qualification which is essential to be a science graduate. On the

other hand, for teaching in primary school, a mere certificate of passing Madhyamik Examination is sufficient, whereas for secondary school, the

corresponding minimum and essential educational qualification was graduate, and a B.Ed degree was desirable or preferred. Therefore, the allegation

that the appointment of the writ petitioner, who holds a Master’s Degree in History is invalid because he was made to teach science subjects to

upper primary students is preposterous since it is alien to the advertisement which is a binding representation made to the public. It has not been

argued or disclosed that there was any subsequent advertisement or corrigendum making it clear that the advertisement required a qualification of

“science graduateâ€. Therefore, the objection relating to the educational qualification of the writ petitioner is unfounded. Since the authorities had

not themselves challenged it but had piggy-backed on the objection of the said Shyamal Chatterjee, whose writ petition agitating this was dismissed as

withdrawn without liberty to file afresh, and his claim therefore abandoned, the respondent authorities cannot now resurrect this dead horse and

further flog it to death as they have attempted.

Even otherwise, naturally, he who passes Madhyamik examination in West Bengal reads enough science subjects to teach children in an Upper

Primary School as a Para Teacher. At least such appears to be the intention behind advertising for the post of a para teacher with such minimum

qualification. Even in this case, the mark-sheet of the writ petitioner in the Madhyamik examination disclosed in the writ petition, shows that he read

the required science subjects and passed them in the Madhyamik examination. The writ petitioner is not just a graduate but holds a Master’s

Degree in History. The advertisement did not ever say that it was for appointment of “para teachers in scienceâ€. His candidature was approved

and he was engaged as a member of the approved panel.

It is in this context that the thinly veiled challenge to the continuance of the writ petitioner as an additional para teacher, leveled by the respondent

no. 2 his Memo dated July 24, 2012 ought to be seen. The respondent no.2 in his capacity as the District Project Director, Howrah has asked the State

Project Director of the Paschim Banga Sarva Siksha Mission which subject should the writ petitioner teach in science being an Arts Graduate and

what would be the next course of action from his end. He did not have to ask it. He should have simply withdrawn his memo of February 5, 2010

disclosed in the Memo dated July 24, 2012 as referred to in paragraph 3 and paragraph 6. The school authorities, incensed at having to refund the

honorarium naturally opposed the writ petition and acted according to the will of the respondent no. 2, without considering that the post of additional

para teacher was not advertised for ‘science’ subjects and that a holder of a Master’s Degree in History could very well teach science and

any other subject at the Upper Primary School level. The intention behind the government policy was defeated by the obstructionist and meddlesome

attitude of the respondent no. 2, who quite failed to appreciate that teaching science subjects to primary school students is not the same as teaching

undergraduates science subjects in a college.

If it is held that he has the power to review the appointment made strictly in terms of the advertisement referred to in paragraph 3 above on the

touchstone of a criterion not mentioned in the advertisement, then he will be allowed to resile from a representation made to the public by the statutory

authorities, at least eight years after the representation was made, and after third party interests had been created and allowed to achieve finality both

by dismissal of WP No. 4437 (W) of 2008 on abandonment of the claim made therein and also by a fresh decision of the respondent no. 1 as

communicated by the Memo dated July 22, 2010 as in paragraph 7 of this judgement. If the respondent no.2 is allowed to do so, then the writ petitioner

will lose his employment without there being any lawful reason to do so.

He will lose his livelihood. This therefore, affects the livelihood of a citizen and the same will amount to an unlawful deprivation of the writ

petitioner’s right to life with dignity and his livelihood without following procedure established by law and/or due process. This is especially when it

is not the case that the writ petitioner has attained the age of 60 years. He has affirmed that he is 39 years in 2018, and therefore still has 21 years to

go before his engagement ends according to the Memo dated July 22, 2010. Therefore, holding that the respondent no. 2 has any power to review the

appointment made as above, in the facts and circumstances of the case and keeping in mind the terms of the advertisement and the approved panel,

which he cannot be allowed to resile from, after so many years, would amount to violation of Article 21 of the Constitution of India.

The State was represented but did not seek to file any Affidavit-inOpposition in WP No.2926 (W) of 2018 and as aforesaid, despite taking

direction to file Affidavit-in-Opposition did not file it in WP No.23839 (W) of 2012. It has thereby admitted all the allegations of fact in both the writ

petitioners. The respondent no. 2 was a party and was served and the Learned Advocate for the State naturally represents the respondent no. 2, an

employee of the respondent no. 1. It has also therefore admitted the above factual position. No argument was advanced on behalf of the State or its

employees who are parties to both the writ petitions to rebut any of the submissions made by the Learned Advocate for the writ petitioner as to the

effect of such admitted facts. The school authority represented by Mr. Chattopadhyay, however, merely repeated that the Writ Petitioner held a

Master’s Degree in Arts but was appointed in a ‘science panel’ without showing how on the face of the advertisement, it could be called a

‘science panel’. He therefore, could not rebut the arguments of the writ petitioner even on the question of law. It is not for the court to make

out a third case not argued by any of the parties and not available from the records.

Accordingly, I answer the above questions against the respondents and in favour of the writ petitioners. Accordingly, WP No.2926 (W) of 2018 is

allowed and the respondent authorities and each of them will allow the writ petitioner to rejoin duties in the school teaching the upper primary students

all subjects which he is required to do by the school authorities as an additional para teacher. This shall be given effect to within 48 hours from the

date of communication of this order. However, since admittedly he was not working at least since July 24, 2012, when the respondent no. 2 wrote for

clarification as stated in paragraph 3 above, so far as the reliefs prayed for in WP No.23839 (W) of 2012 are concerned, the same is allowed partially,

to the extent that the honorarium paid to the writ petitioner from September 2008 till March 31, 2010, if refunded by the writ petitioner, shall be

restored to him, with simple interest at the rate of 8% per annum and for the period from April 1, 2012 till date, his honorarium for the period during

which the respondents illegally did not allow him to join his duties, alongwith simple interest at the rate of 4% per annum. The state exchequer will

bear the expenses for the entire period. This entire crisis in a para teacher’s life has been created by the precociousness of the respondent no. 2.

The respondent no. 1 is granted liberty, if it so chooses, to recover the entire expenses from the salary of the then respondent no. 2, if it so desires,

after due disciplinary process, if so advised.

The writ petitions are allowed to the extent mentioned above, and CAN 11978 of 2016 connected with WP No.23839 (W) of 2012 is disposed of

accordingly.

There shall be, in the facts and circumstances mentioned above, no order as to costs.