MANIMA SAMANTA (DAS) Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In the writ application, the Petitioner challenged the decision of the Director of School Education, West Bengal, being the outcome of final hearing by the said authority on April 5, 1999, but the said decision was not annexed as no copy was available. Subsequently, by supplementary affidavit, the Petitioner has annexed the decision as communicated under Memo No. 19/1(5) LC dated, Calcutta, the May 21, 1999. By the impugned decision, the prayer of the Petitioner for change of Group was rejected only on the ground that such prayer could not be accepted at this moment as the School Authority requested the District Inspector of Schools concerned to take steps for filling up the vacancy of Language Teacher and in pursuance thereof, selection process was completed whereby one Soma Das stood first in the panel. The Director of School Education, West Bengal passed the impugned decision upon hearing the present Petitioner and Sm. Soma Das, who is Respondent No. 6 in the writ application as well as the School Authority. Hearing was given in view of the direction of this Court as passed in different writ applications filed by the respective parties, namely, the present Petitioner and Sm. Soma Das.

(2.) For effective adjudication of the matter, the School Authority was directed to produce the resolution book and other relevant papers. In pursuance of such, all documents have been placed before this Court. From the documents as produced as well as from the documents annexed in the writ application, it appears that though the Petitioner was an appointee in Physical Education Group with reference to her appointment dated September 5, 1980, but in view of her enhancement of qualification M..A. in Bengali, the Managing Committee agreed to have a transfer of her group from Physical Education to Language Group for two purposes, namely, to fulfill the need of the school in the resultant vacancy of the Language Teacher due to sudden demise of Ruby Seth, incumbent who was holding the post and also to provide higher pay scale to the Petitioner in view of her post graduate qualification. From the resolution book as placed by the Managing Committee, it appears that on December 21, 1.987 the Managing Committee took two decisions in respect of the resultant vacancy of Language Teacher caused due to sudden demise of Ruby Seth, namely (i) to seek prior permission to fill up the vacancy and (ii) to pray to the District Inspector of Schools concerned for changed of Group of Manima Samanta, the present Petitioner to the said vacancy of Language Group and thereby to declare the post of Manima Samanta as vacant for filling up the same by a suitable candidate qualified with Physical Education training. However, in terms of the resolution of the Managing Committee, no prior permission was issued to fill up the vacancy of Language Group as well as for transfer; of the present Petitioner" in the said Group and thereby a declaration for filling up the post of Physical Education Teacher by new incumbent. On the contrary, by Office. Order No. 804/M dated April 16; 1988 the District Inspector of Schools concerned directed to fill up the vacancy of Language Group which was caused due to the demise of Ruby Seth, who was also a Teacher in Language Group and more; precisely a Teacher of Bengali subject by converting the post to Science Group. Such prior permission order dated April 16,1988 as well as the prayer of the, Petitioner for change of Group in the resultant vacancy of Bengali subject was discussed in the meeting of the Managing Committee dated May 3, 1988 and it was resolved unanimously that the District Inspector of Schools concerned would be requested to transfer the Petitioner, holder of the post under Physical Education Group to the post of Assistant Teacher in. Language Group in the vacancy caused due to the death of Ruby Seth and in the resultant vacancy after transfer of the Petitioner, a Physical Education Teacher would be appointed. It was further resolved that in the event such prayer was not allowed, prior permission to fill up the vacancy by considering the vacancy as of Science Group would remain. However, it appears from the Supplementary Affidavit affirmed by the Petitioner on July 22, 2002 that prior permission order dated April 16. 1988 allowing the School Authority to fill up the resultant vacancy of Assistant Teacher in Bengali by converting the same to Science Group was modified by issuance of a modified prior permission order dated June 8, i988 under Memo No. 1259/M allowing the School Authority to till up the resultant vacancy due to death of Ruby Seth (wrongly mentioned as Ghosh) by a candidate qualified with B.A. Hons./ M.A. in Bengali in Language Group. In accordance with such prior permission order to fill up the vacancy by a qualified candidate of B.A. Hons./M.A. in Bengali it was mentioned that the said decision was reached by the District Inspector of Schools concerned in view of the letter of the Secretary dated June 3, 1988. The letter dated June 3, 1988 has been placed before this Court by the School Authority. From the said letter, it appears that the concerned Secretary requested the District Inspector of Schools to absorb the present Petitioner as a Teacher of Language Group in the resultant vacancy caused due to the death of Ruby Seth and thereby to allow the School Authority to fill up the vacancy after transfer of the Petitioner by appointing a candidate who would be qualified to teach Physical Education subject. A draft letter of the Secretary of the Managing Committee as placed by the School Authority be kept on record. However, from the resolution dated May 3, 1988, it appears that the Secretary change or modify the unanimous resolution of the Managing Committee dated May 3, i988. It is now a settled legal position that the Managing Committee is a body corporate and takes decision by its majority view, and nobody can challenge such majority decision unless and until by another meeting the Managing Committee decides by majority decision otherwise. From the resolution dated May 3, 1988, it clearly reflects the view of majority members of the Managing Committee that the resultant vacancy due to demise of Ruby Seth should be filled up by transfer of the Petitioner from Physical Education Group to Language Group and due to such transfer, vacancy as would be caused in Physical Education Group, the same would be filled up by a qualified candidate in terms of the prior permission order as to be issued by the District Inspector of Schools. In the said resolution dated May 3, 1988, it was further resolved that in the event of refusal of such decision, namely, the transfer of the Petitioner from Physical Education Group to Language Group and to fill up the vacancy as would be caused due to such change of the Petitioner by a new incumbent prior otherwise permission order allowing the School authority to fill up the resultant vacancy due to demise of Ruby Seth would be filled up by a Teacher qualified to teach Science subject by change of such Group as of Science Group. Hence, there was no scope for the District Inspector of Schools to modify the prior permission order dated June 8, 1988 by marking the said vacancy as of Language Group which is to be filled up by inviting names from Employment Exchange. The School Authority never wanted such, as it is reflected from the decision of the Managing Committee dated May 3, 1988. Xerox copy of the resolution dated May 3, 1988 as produced by the School Authority be kept on record. In that view of the matter, the prior permission decision as taken to fill up the vacancy by way of inviting names from the Employment Exchange absolutely was an illegal decision, and this point was not noticed and/or looked into by the Director of School Education, West Bengal while deciding the issue. The cumulative effect of the two resolutions of the Managing Committee, one dated December 21, 1987 (Xerox copy of which be kept on record) and the resolution dated May 3, 1988 clearly speaks a volume in favour of the Petitioner for a change from Physical Education Group to Language Group. The District Inspector of Schools without rejecting the same had no jurisdiction to declare that the vacancy would be filled up from second stage on inviting names from the Employment Exchange. From the supplementary affidavit it further appears that by the decision dated October 5, 1988 the District Inspector of Schools concerned rejected the prayer for transfer of the present Petitioner as a Teacher of Language Group from Physical Education Group only on the ground that the Petitioner was appointed for a particular Group. This decision dated October 5, 1988 is annexed in the supplementary affidavit. Hence, it appears from the documents that as per resolution of the Managing Committee dated May 3, 1988 read with the resolution dated December 21, 1987, the District Inspector of Schools was required to decide the issue of transfer of the Petitioner first, and thereafter to decide the question about filling up the vacancy by declaring the nature of vacancy. Unfortunately, it was not done. The District Inspector of Schools concerned in terms of the recruitment rule, which was applicable at the relevant time, that is recruitment rule issued by the Director of Schools Education, West Bengal, under memo No. 1828(17) G.A. dated August 31, 1987, was bound to follow the resolution of the Managing Committee whereby the Managing Committee wanted to fill up the vacancy by a suitable candidate of Language Group, and more particularly by transfer of the Petitioner from Physical Education Group to Language Group as she was qualified with M.A. in Bengali. In the instead case, it appears that Ruby Seth, for whose demise the resultant vacancy occurred, was a Teacher of Language Group in Bengali subject and accordingly it is declared that there was a permanent sanctioned post in terms of the staff pattern for a teacher of Language Group. The District Inspector of Schools in terms of the' Recruitment Rule of 1987 was bound to follow the resolution of the Managing Committee and thereby to allow the transfer of the existing teacher the present Petitioner. Even if same was not possible to be done, the concerned District Inspector of Schools was required to issue necessary direction to fill up the vacancy of teacher of Language Group in Bengali by allowing the present Petitioner to appear in such selection, process as the relevant rule provides that the existing approved teacher would be eligible to apply for appointment in the resultant vacancy. However, the prior permission order dated June 8, 1988 was processed by the School Authority also by inviting the names from the Employment Exchange and without allowing the Petitioner to appear in the said selection process. However, ultimately the Respondent No. 6 was selected as a first candidate in the panel. The present Petitioner approached the writ court praying for necessary direction for transfer of her Group from Physical Education to Language Group, when in G.A. No. 1308 of 1996 read with A.P.O.T. No. 191 of 1996, the, Division Bench by the order dated July 4, 1996 directed the District Inspector of Schools to carry out the impugned order of the learned Trial Judge upon giving a hearing to the Appellant wherein the present Petitioner was the Appellant. The order of the Division Bench reads thus:

(3.) In pursuance of the order of the Division Bench dated July 4, 1996, the matter was heard by the District Inspector of Schools concerned wherein the present Petitioner and the contesting party herein, Sm. Soma Das both were present. It was decided by the District Inspector of Schools on July 31, 1996 that the earlier decision of the district Inspector of Schools dated October 5, 1988 rejecting the prayer of the Petitioner for a change of Group on the ground that there was no such provision became none in view of introduction of such provision under G.O. No. 57 -SE (S) dated January 21, 1995. It was held by him that now the Petitioner's case could be considered in the available vacancy. So far as the panel wherein Sm. Soma Das stood first, the same was not approved as the panel was prepared in violation of the rules. The relevant portion of the decision of the District Inspector of Schools dated July 31, 1996 is quoted below: