KANAK PAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The Court : This writ petition is made by the writ petitioner for the purpose of getting an appropriate order to act as Teacher in-charge in the concerned School until the post of regular Head Mistress of the School is filled up. At present, the petitioner is working as Assistant Headmistress of the Institution. She is vastly experienced in her long tenure of service in different schools. The petitioner and the respondent No. 8 were applied for the post of Assistant Headmistress when the West Bengal School Service Commission (Southern Region) Calcutta selected the petitioner to work as an Assistant Headmistress of the School as per the satisfaction of her candidature. The respondent No. 8 moved a writ petition which was ultimately dismissed by this Court by an order dated 22nd November, 1999. During the tenure of the service of the petitioner when the present Headmistress was about to retire, the Managing Committee took a resolution and forwarded the name of the respondent No. 8 to appoint her as Teacher-in-Charge instead of forwarding the name of the petitioner who is working as Assistant Headmistress for such post till the same is filled up by a regular candidate. Being aggrieved thereby and dissatisfied by such action on the part of the Managing Committee of the Government Aided Institution the writ jurisdiction of the Court has been invoked.

(2.) Initially an interim order was passed by this Court on 31st July, 2001. The Secretary of the Institution made an application for vacating such order under G.A. No. 3094 of 2001 which was also taken into account at the time of bearing of the writ petition as a defence against the claim of the writ petitioner to come to a final conclusion in respect of the matter in question. It appears from the annexure to such application that the Managing Committee took a resolution on 14th July, 2001 by holding that Managing Committee was free to elect the senior most teacher or the Assistant Headmistress in the post of Teacher-in-Charge till a suitable candidate was appointed in that clear vacancy as per prescribed Rules framed by the Government. It further appears that three members of the Managing Committee took the point that Assistant Headmistress should automatically take over the charge of Headmistress who will proceed on retirement when remaining eight members stated that senior most teacher of the School will be appointed as Teacher-in-Charge. However, ultimately the three members opposed this and abstained from using their voting rights when remaining members extended their participation. As a result whereof it came out that Senior Most Teacher of the School who served for more than thirty one years be selected to take over the charge from the Headmistress to act as Teacher-in-charge of the School after 31st July, 2001. The School Authority also relied upon a dictated order passed by a Division Bench of this Court dated 13th April, 1999 being a part and parcel of such application making an annexure therein. There, I find that the Division Bench of this Court held that appointment of Teacher-in-Charge is not governed by the recruitment rules. The School Authority categorically stated in the application that the Assistant Headmistress has no right to be Teacher-in-Charge of the School and the post of Teacher-in-Charge is not over and above the post of Assistant Headmistress. As such the post of Teacher-in-Charge is an officiating post in respect of administrative affair of the School and the Managing Committee has the right to appoint Teacher-in-Charge of the School till the time of appointment of Headmistress.

(3.) According to me, the post of Assistant Headmaster Assistant Head Mistress cannot be equal with the post of Assistant Teacher. The post of Assistant Headmaster / Assistant Headmistress is a post in association with the administration vis-a-vis the teaching of the institution like the post of Headmaster/Headmistress but unlike the post of Assistant Teacher. If the Headmaster/Headmistress absented himself/herself from attending the School due to ill health or for any other contingency then obviously such Assistant Headmaster / Assistant Headmistress will discharge the functions of the Institution on his/her behalf. Therefore, it can be construed on the basis of such illustration that Assistant Headmaster / Assistant Headmistress has a right to run the administration for a temporary period in absence of the Headmaster/Headmistress and for the same such post has been created under the statute. If it is created by the statute then it definitely has some meaning and purpose. It is a separate identity not only by nomenclature but also by creating a statutory post with a different head under ROPA (Revision of Pay and Allowances). It is also desirable for the sake of administrative exigencies that in absence of Headmaster / Headmistress he / she will run the administration. This has been made for the specific purpose as above. Otherwise the Court would have been flooded with the litigation's for filling of the post of Teacher-in-Charge in absence of the Headmaster / Headmistress. This is a discouragable thing and definitely for such reason a post has been created in the form of hierarchy under the statute by the name of Assistant Headmaster / Assistant Headmistress in between Headmaster / Headmistress and Assistant Teacher. It is true that the Managing Committee has a right to appoint a Teacher-in-Charge for a temporary period till such post is filled up by the regular Headmaster / Headmistress provided that there is no such Assistant Headmaster / Assistant Headmistress for the purpose of officiation till the post is regularly filled up. As and when Assistant Headmaster / Assistant Headmistress is available in an Institution there is no scope of the Managing Committee to take a resolution contrary to the interest of the administration which ultimately affects imparting of education to the students unless very exceptional circumstances arise for which the Assistant Headmaster / Assistant Headmistress is also prevented from officiating as Headmaster / Headmistress. This is not such case that an infight was continued in between two teachers when claim of one has been upheld by the administration and vated by the Court of Law by negating the claim of other. Respondent No. 8 cannot have any right whatsoever. He had rightly advised not to contest the post for which she is not entitled. However, the stand of the School Authority as against the petitioner on the basis of the Managing Committee resolution cannot be sustainable because the situation of appointing a Teacher-in-Charge in absence of the Headmistress does not arise when there is a regular Assistant Headmistress available to officiate such post till the regular vacancy is filled up in accordance with law. As the appointment in the post of Teacher-in-Charge cannot create any equity in his or her favour to obtain a post of Headmaster/Headmistress, similarly when Assistant Headmaster / Assistant Headmistress is appointed for a temporary period till the post is filled up by a regular process of law he or she cannot create any equality in his/her favour. We overcome various situations which were prevailing prior to coming of School Service Commission Acts and Rules. In those periods several administrative orders or filling up the vacuum by which a long tenure of service as Assistant Headmaster / Assistant Headmistress or as Teacher-in-Charge could have made equitable ground for the purpose of regularisation of Headmaster/Headmistress. But the situation is not the same or similar at present. Now, the regular posts are to be filled up by W.B. School Service Commission Act, Rules & Procedure prescribed therein through the Commission and any person under the panel will be appointed in any of the Institutions who is not necessarily the person in the Institution fighting for the cause of appointment in the post.