DEBI PRASAD BAGARIA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The facts of this case as set out in the petition are as follows :-- The petitioners are the President and Secretary respectively of the Managing Committee of Savitri Pathashala, a pri- mary school situated at No. 5/D, Mukla-ram Babu Street. Calcutta-7 (hereinafter referred to as the said School). The peti-tioners state that since 1933 prominent members of the Marwari Community in Calcutta made and collected donations from various persons from time to time for, inter alia, to take charge of, maintain, manage and improve a Girls' School known as the Savitri Pathshala together with its properties and to take the control of or establish any other schools for Girls elsewhere as might bo considered necessary or desirable and to spread education among and to promote the religious, moral and intellectual advancement of high caste Up-country Hindu Girls ond particularly Marwari Girls belonging to Sat Grihastha as. that is to say, respectable families professing the Sanatan Hindu and Jain religion. The petitioners state that with some prominent members of the Marwari Community, i.e., Rai Bahadur Hozarimull Dudwe-wall, Rai Bahadur Badri Das Goenka, Rai Bahadur Ramdev Chokhani. Rai Bahadur Ramji Das Bajoria, Sri Gobar-dhan Das Shroff. Sri Ram Kumar Jhun-jhunwala and Sri Suraimull Jalan constituted themselves trustees for carrying out the said purposes. The petitioners state that on 24th Apr. 1970. Savitri Educational, and Charitable Trust was executed and Mohanlal Jalan, Hari Krishna Jhajheria since deceased and Par-meshwar Lal Kedia were and except Hari Krishna Jhajharia. along with others still are the trustees of the said Savitri Educational and Charitable Trust. The petitioners state that the ob-iects and purposes of the Trust as declared in the said Trust Deed are, inter alia, that the trustees would continue to allow the said Savitri Pathshala to be run in accordance with the obiect of the said Trust. The petitioners state that the said Savitri Pathshala have two sections, primary and secondary. Pursuant to the direction given by the respondent No. 3 a separate Managing Committee of Savitri Pathshala (Prima'ry Section) in May, 1979, was constituted with two elected Guardians' representatives. two elected teachers' representatives and two members nominated by the Savitri Educational and Charitable Trust with the Head of the Institution as ex-officio member. Reports of the said constitution of the Managing Committee were duly, submitted to the respondent No, 3 and approval lor the said constituted Managing Committed was sought for from the respondent No. 3 but it is alleged that the petitioners are not aware of what has happened to the fate of said prav-ers seeking approval of the said Managing Committee. After the said constitution of the Managing Committee, the members held office bearers election and started functioning for the well being of the said institution. Thereafter Sri Biren Mishra. Dy. Inspector of Schools attached to the office of the respondent No. 3 visited the said primary section of the school several months ago and enquired about the constitution of the Managing Committee and also of the procedure for holding election. At the time of the said enquiry by the said Dy. Inspector of Schools the Head Teacher explained everything to him in details and relevant papers and/or records were also shown to the satisfaction of the said Dy. Inspector of Schools. The petitioners state that thereafter the Managing Committee held several meetings and took some important decisions in the management of the said primary section of the school and started functioning for the better and well being of the said primary school. The teachers and staff also got their respective D.A. from the respondent No. 1. The petitioners state that one Mr. Biren Mishra, a Sub-Inspector of Schools attached to the office of the respondent No. 3 visited the school without prior intimation to the petitioners and without consulting the petitioners and/or the Managing Committee arbitrarily fixed the pay scale of the teachers of the said school. The petitioners state that the petitioner's school is an unaided primary school and the teachers and some non-teaching staff of the said school receive only D.A. from the Government of West Bengal. The petitioners state that the petitioners did not accept the said pay scale fixed arbitrarily by the said Sub-Inspector of Schools and the Managing Committee of the said School fixed the pay scales of the teaching and non-teaching staff of the schools which is higher than the pay scale fixed by the said Sub-Inspector of Schools and started paying them accordingly. The petitioners state that the said Sub-Inspector of Schools visited the school immediately following the day of payment of salary fixed by the Managing Committee of the school and became very much annoyed after having learnt that the Managing Committee of the said school did not accept the pay scale fixed by him arbitrarily and without iurisdic-tion and asked the Head Teacher to increase the salary of Mr. Darp Naravan Rai, a teacher of the school. Inasmuch as according to the petitioners the said Sub-Inspector of Schools had no iurisdiction and/or authority under the law to order for the increase of salary of a particular teacher, the Managing Committee did not comply with his said order. It is alleged that Darp Narayan Rai was a teacher in the secondary section of Sa-vitri Pathshala and due to his misbehaviour with a student, he was dismissed from the said Secondary Section but out of compassion and on humanitarian ground, the said Darp Narayan Rai was appointed as a teacher in the primary section. It is alleged that on the 18th May, 1980. the Head Teacher of the school convened a meeting of the teachers of the said school and in the said meeting requested the teachers to make the ensuing annual function of the said school, a success. At the said meeting, the said Darp Narayan Rai passed highly defamatory and objectionable remark at Smt. Dhan Kumari Karmacharyya, a lady teacher of the said school who is also a teachers' representative on the Managing Committee of the said school. The said Darp Narayan Rai also attempted to assault the said lady teacher but fortunately the said attempt was foiled by the clerks of the said school and of special class. Immediately after the said incident Darp Narayan Rai was placed under suspension by the Head Teacher of the school. It is alleged that after said suspension, the said Darp Narayan Rai started bearing grudge upon the petitioners and went to the office of the respondent No. 3 and made some baseless and unfounded allegations against the Managing Committee of the said school. It is alleged that on the day following the day of making such representation and baseless and unfounded allegations against the management of the school, the said Sub-Inspector of School, Mr. Biren Mishra visited the said school and made certain enquiries and showed unusual interest in the affairs of Darpa Narayan Rai. It is stated that certain correspondence passed between the said. Sub-Inspector Mr. Biren Mishra and the Head Teacher of the school re- garding the said Daroa Naravan Rat. It is alleged that in. the afternoon of 10th July, 1980, the petitioner No. 2 who is the Secretary of the Managing Committee of the school, received a Notice from the respondent No. 4 informing that the respondent No. 4 had been appointed as Administrator of the aforesaid school and that he would take possession and charge of the school at 9 A.M. on the 11th July. 1980. A copy of the said notice issued to the petitioner No. 2 by the respondent No. 4 is annexed to the petition. Thereafter the petitioner No. 2 by his letter dated July 11, 1980 informed the respondent No. 4 that the petitioner No. 2 did not receive any order of supersession of the Managing Committee of the school and also the appointment of the Administrator of the said school. The petitioner No. 2 also stated in the said letter that the Head of the institution was having no power and/or authority to hand over charge to the respondent No. 4 because the Head Teacher was not in charge of the Management of the said school and the petitioner No. 2 stated that the respondent No. 4 could not have any occasion to take over charge from the Head of the institution, In the said letter the peti-ioner No. 2 requested the respondent No. 4 to send a copy of the primary education memo No. 1656/1(4)S.C./P dt. 20/21st May 1980 immediately. A copy of the said letter is annexed to the petition. It is alleged that no reply has been received as yet. It is alleged that on the 11th July 1980, the respondent No. 4 purportedly took over charge of the school from the Head Teacher of the said School and the petitioner No. 2 sent a letter to the Head Teacher stating that the Head. Teacher had no authority and/or power to hand over charge of the school on behalf of the Secretary of the school and it was stated in the said letter that the action of the Head Teacher in purportedly handing over charge of the school to the respondent No. 4 was unauthorised, illegal, void ab initio and prejudicial to the interest of the school. The petitioner No. 2 also asked for an explanation from the said Head Teacher for his said unauthorised and illegal conduct. A copy of the said letter dated July 11, 1980. issued by the petitioner No. 2 is annexed to the petition. It is alleged that no reply has been received as yet. It is alieged that at the said purported hand- ing over and taking over charge of the school by the respondent No. 4. the said Darpa Narayan Rai, the suspended teacher was present in the school premises and he brought out school registers and several papers and documents of tha school from the almirah and produced the same before the respondent No. 4. It is further alleged that the Head Teacher also handed over the keys of the almirah of the said school to Sri Darpa Naravan Rai who opened the said almirah and brought out the said records and/or registers of the school. It is stated that on 17th July, 1980. the petitioner No. 1 wrote a letter to the respondent No. 2. In the said letter the petitioner No. 1 stated that on the 10th July, 1980, the petitioner No. 2 who is Secretary of the school received a letter bearing No. 1 ADM dt. 8-7-80 written by the Dv. Assistant Inspector of School (S.E.) Calcutta. It was also stated by the petitioner No. 1 that in his said letter, the said Dy. Asstt. Inspector of School has referred to the Directorate of Primary Education Memo No. 1656/1 (4) S.C./P dt. 20/21st May, 1980 but neither the petitioner No. 1 nor the petitioner No. 2 received any such memo or a copy thereof. In the said letter the petitioner No. 1 also stated that the Managing Committee of the said school was duly constituted and reports and/or information with regard to the said constitution of the Managing Committee was submitted to the authorities concerned. In the said letter the petitioner No. 1 stated that the purported supersession of the Managing Committee and the appointment of Administrator in the said school was illegal unauthorised and against the principles of natural justice. The petitioner No. 1 also stated that no notice and/or hearing was given to the petitioner before passing of the said purported order of said supersession and appointment of Administrator. In the said letter, the petitioner No. 1 requested the respondent No. 2 to send the said memo bearing No. 1658/1(4) S.C./P dt. 20/21st May 1980 and a copy of the report of the respondent No. 3. A copy of the said letter is annexed to the petition. It is alleged that neither the documents asked for have been supplied nor any reply has been received as yet. The petitioners state that the clerk of the said school has supplied them with a copy of the said order of supersession and the appointment of Administrator in the said school and from the said copy, the petitioners learnt that the respondent No. 2 in exercise of powers under Order No. 750/EDN dt. 21st Oct. 1970, responded the Managing Committee (sic) said school and appointed respondent No. 4 as the Administrator of the said primary school with immediate effect. It was further stated in the said memo, that it appears, from the report of the respondent No. 3 that the present Managing Committee of the said school was not properly functioning and steps taken for reconstitution of the committee in May 19, 1970 suffered from gross procedural defects. A copy of the said memo is annexed to the petition.

(2.) The petitioners challenge the said order No. 750-EDN (1) dated 21-10-70 on various grounds.

(3.) An affidavit-in-opposition has been affirmed in this rase by one Netai Ban-erjee on behalf of the respondents Nes. 1, 2, 3 and 4, which states inter alia as follows: It is stated that the primary school named Savitri Pathshala was accorded recognition in 1964 with effect from 1-1-64. Renewal of recognition has been accorded and till today the school is a recognised one. The teachers are being paid Government B.A. only from the Government. After introduction of Free Education Scheme in 1974. the school authority did not come under the scheme. To run the school the school auth-orily collects fee from the public @ Rupees 10 per Class I to IV and Rs. 12 for Class V only. Besides tuition fees the school authority charges session fee @ Rs. 20 a year per capita. Up to June 1978 the primary school had been functioning in the same building and same time with the High School. At that time the school accounts were being maintained with Secondary section. Since July 1978 the primary section has been detached with its accounts and other activities as the Secondary section of the school has been taken over by the Government It is admitted that a committee was formed but it is stated that It was not formed as per rules. Managing Committee of a primary school is formed as per Government Order No. 750-EDN. (P) dated the 21st October. 1970. An existing Managing Committee may also apply for special constitution as per part 10 of the above noted Government order. There has been no approved Managing Committee of the School. The Trust Body was not granted special constitution so the committee constituted by the Trust Body is not regular and valid. Moreover the formalities for constitution of Managing Committee were not observed. It is stated that at the time oi inspection of the school it was found by the Deputy Inspector of School, that the Managing Committee ef the Savitri Pathshala 'Primary Section' suffered from gross procedural irregularities as such the said Managing Committee was not functioning properly. The Government in their Memo No, 381-EDN (P) dated 14-5-1986 desired that in the interest of school Sri P. M. Mediya. Deputy Inspector of School Calcutta be appointed the Administrator of the school. The Director of Primary Education by office Memo No. OP-3P-78 dated 20th, 21st May 1980 appointed him as Administrator of the said Primary School. It is denied that the said school (primary section) was functioning properly as alleged or at all. It is stated that the Managing Committee was not functioning properly as it was not formed in accordance with law. It is slated that the teachers were not getting salary regularly and at par with the scale prescribed for the primary teachers by the Government. It is stated that if the trust body agreed to come under the scheme of free education the feathers might not have suffered. It is stated that Sri Biren Mishra, Deputy Assistant Inspector ef Schools. Calcutta visited the school as it is under his jurisdiction. He has the right to request the authority to way the teachers as per rules to see whether the standard of education is maintained. Accordingly he had got iurisdictional authority to advise the management to fix up the pay of teachers as per rules. It is stated that in terms of Government Order No. 1366-Edn (P) dated the 28th Nov. 1977 it was decided that each D.A. getting school should pay their teachers as per scale laid down for the teachers of fully aided schools, It is denied that the Managing Committee of the school fixed the pay of the teacher as per Rules as alleged or at all. It is also denied that the Sub-Inspector of School fixed the pay of the teacher arbitrarily as alleged. It is stated that the Managing Committee pay the teacher as ner their wishes and they do not fellow the Rules laid down by the Government to pay the salary of the teacher o'f the primarv section. It is stated that the Deputy Inspector of School did not accept the payment of teachers fixed by the Managing Committee because it was found that the salary had been fixed arbitrarily. It is further stated that the Deputy Assistant Inspector of Schools has power and jurisdiction to suggest the payment of the teachers in accordance with the Rules if it is found that the salary has been fixed arbitrarily. It is stated that the Deputy Assistant Inspector of Schools did not order but requested the Committee to eradicate irregularity. It is a part of his duty to advise the Managing Committee to follow the departmental orders and rules. It is stated that the respondent No. 4 had been appointed administrator and he wanted to have possession of the charge of the school on 11th July 1980 at 9 a.m. with prior intimation. It is also stated that the Administrator of the School intimated the committee regarding taking over the charge. As such it is denied that the Managing Committee did not receive any order of appointment as alleged or at all. It is further stated that the Secretary and the Head Teacher had beeh sent copies of the appointment of the Administrator by the Director of Primarv Education West Bengal bv Memo No. 1656/1(4) S.C./P dated 20-5-1980. It is stated that at the time of taking over charge of the school by the Administrator four persons including the President of the un-approved committee were present and they did not object to taking over the charge by the Administrator. It is stated that Shri Darpa Narayan Rai helped the Hnad Teacher regarding taking over the charge of the school by the Administrator, It is stated that the Head Teacher told the Administrator that he received a letter in time regarding appointment of the Administrator and informed the same to the President and Secretary of the School (Primary) accordingly. Tt is also stated that they received a letter of supersession of the Managing Committee. In the said letter it was specifically mentioned that there were procedural defects in the constitution of the Managing Committee. On request of Mr. Bagaria the Director of Primary Education again sent a letter bearing Memo No, 2425/13 S.C.P./P dated 24th July 1980 along with a copy of the fetter 1656/14 S.C./p dated 20-5-80. During inspection it was found that the voters' list was approved by the Head Teacher only. The Head Teacher has no power as per rules to (sic) list. The intention of the (sic) behind appointment of Administrator was that the Administra tor will regularise the administration of the school and reconstitute the Managing Committee as per rules. It is stated that excepting the petitioners Nos. 1 and 2 there is none who is in the man agement of the school. It is stated that no recognised institution can be left to the charge of two persons only. As such the appointment of an Administrator was found necessary specially as the petitioner No. 1 Mr. Bagaria is neither a guardian nor a member of the Trust Body. It is denied that the said order of supersession arid the appointment of the Administrator in the said school is with out iurisdiction and without authority of law and illegal as alleged or at all. It is stated that as per Government Order No. 800-Edn (P) dated the 5th June 1974, the D.P.I, is empowered to supersede any Managing Committee if he thinks that the management of the school is not satisfactory and is also empowered to appoint Administrator or Ad-hoc Com mittee for the school. It is stated that the enquiry was made by the Deputy Assistant Inspector of School, Calcutta in presence of Mr. Bagaria and the Head Teacher and the report was written in their presence. The Head Teacher of the school and Mr. Bagaria know the report of the Deputy Inspector of Schools (Pri mary) Calcutta. It is stated that the Committee did not get approval from the appropriate authority as such the said managing committee cannot func tion in accordance with law. It is stated that there was sufficient material for passing the said order of supersession and appointment of Administrator when the Managing Committee was not func tioning properly in accordance with law. It is denied that the appointment of Ad ministrator and the order of supersession was made at the instance and machina tion of Mr. Darpa Narayan Rai as alleg ed. It is stated that the respondent had acted independently and not mechani cally in passing the said order of super session and appointment of Administra tor which have already been stated in the foregoing paragraphs of this affida vit.