GOUR MOHAN MANNA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Having heard the learned advocates for the parties. It appears that a question of maintainability as has been raised by the learned advocate for the respondents to be dealt without going to the merits of the matter.

(2.) This writ application has been filed by the organising teaching and non-teaching staff of classes IX and X, which are unapproved classes relating to an approved Junior High School. The impugned decision in this writ application is the decision passed by the West Bengal Board of Secondary Education rejecting the prayer of upgradation of the school as filed by the Managing Committee of the Junior High School in terms of the circular letters of the Government. The Managing Committee of the school has not come forward challenging the decision whereby upgradation of the school to the High School was rejected. Under section 19A(3)(c) of the West Bengal Board of Secondary Education Act, 1963 (hereinafter referred to as 'the said Act') the Executive Committee of the West Bengal Board of Secondary Education was vested with the power to grant or refuse recognition to Institutions subject to the direction of the State Government in regard to the number, location and manner of selection. The Education Department of the Government of West Bengal under G.O. No. 553 Edn.(S) dated Calcutta the 26th April, 1978 formulated the procedures for consideration of such application as would be filed by the Managing Committee of the school. Under the condition for recognition of school vide Government Notification No. 263 Edn.(A)/11D-1/75 dated 6th February, 1975 the Managing Committee of the school is required to file the application either for recognition of the school or for upgradation of the classes to make a Junior High School to a High School. The teaching and non-teaching staff of a school either approved or unapproved by any stretch of imagination cannot be said as Managing Committee of the school. The writ petitioners herein, the unapproved teaching and non-teaching staff were appointed by the Managing Committee of the school as alleged in the writ application for taking classes of unapproved classes IX and X. Hence, the petitioners admittedly are the appointees under the Managing Committee whereas the Managing Committee is the sole authority to manage the affairs of the school. The impugned decision also was passed on the basis of the application praying upgradation of the school as filed by the Managing Committee of the school. Under the circular letters as referred to, the Managing Committee only, who can be aggrieved when there is refusal to grant recognition either on upgraded classes or other sections as the case may be. The present petitioners admittedly have claimed their status as organizing staff of the school for upgraded section. The present petitioners at the present moment has no legal right on the issue about recognition of unapproved classes. It is true that once the recognition order is passed granting such in favour of the school authority, the petitioners may apply for consideration of their cases for regularisation of service in terms of the circular letters of absorption upon fulfillment of the requirements as made thereto. Hence from the circular letters of the absorption it is clear that the writ petitioners' interest praying absorption would be matured in the event the school is recognised. After being recognition of the school, the writ petitioners are being vested with a legal right for consideration of their cases. Prior to such, the writ petitioners have no legal right to challenge regarding the issue and management of the affairs of the Managing Committee as well as to challenge the decision passed by the West Bengal Board of Secondary Education refusing to grant recognition of classes IX and X. Under the statutory provisions and the Government circular letters, which provides that the Managing Committee is the only authority to file the application, the impugned decision accordingly cannot be assailable by the petitioners as they have no locus standi. The Division Bench of this Court considered this point about locus standi of organizing primary school teachers in the case of West Bengal Board of Secondary Education v. State of West Bengal, reported in 1997(1) CLJ 165 wherein at para 202 it is held that the organizing teaching staff had no locus standi to move this Court challenging the order rejecting the recognition of a school or upgraded classes. Under the Primary School Code regarding recognition of a school organised privately, the rule is identical which provides that the organising Managing Committee should file application for recognition of primary school. The same position is regarding the application praying recognition of secondary school as well as recognition of upgradation classes of a Junior High School. Setting up of classes and/or seeking additional posts for classes and/or opening of new section in the school in question all are within the domain of the affairs of the Managing Committee. Even the approved teaching and non-teaching staff can not agitate anything on such issue far to say about unapproved organising staff. The learned advocate for the petitioners, however, has relied on two judgments of this Court to satisfy the point of maintainability of this writ application. One passed by the single Bench of this Court in the case of Santosh Kumar Chakroborty & Ors. v. The State of West Bengal & Ors., reported in 2001(1) CHN 695 and another judgment of a Division Bench passed in the case of Nabadwip Chandra Das & Ors. v. The West Bengal Board of Secondary Education & Ors., reported in 1998(1) CLJ 141.

(3.) It is submitted by the learned advocate for the petitioners that both the said two cases were moved by the Headmaster and other organising teaching and non-teaching staff and as such this writ application is also maintainable. On simple perusal of the judgment as referred to by the learned advocate for the petitioners it appears that this question, namely, locus standi of organising teaching and non-teaching staff to move the writ application was not at all argued before this Court in the aforesaid two cases and accordingly there was no adjudication of this point in the aforesaid two judgments. Hence those two judgments as referred to has no binding precedent before this Court with reference to the answer of question of maintainability as raised by the respondents. Furthermore, from the judgments it appears that there was no argument advanced on the question of maintainability and also there was no decision reached by the Court in the aforesaid two judgments on this point. Hence applying the settled law those judgments cannot be said as ratio decidendi on the point as now being considered. It is a settled law that the judgment is the ratio on the point about question of the law as decided on identical facts. It also a settled law that even a change of word on factual matrix can change the decision making process. Reliance may be placed in the judgment passed by Apex Court in the case Regional Manager v. Pawan Kr. Dubey, reported in AIR 1976 SC 1766, which also has been referred to in the recent case Chandra Prakash Shahi v. State of U.P. & Ors., reported in AIR 2000 SC 1706. Hence, having regard to the settled law, I am of the view, that the aforesaid two judgments Nabadwip Chandra Das & Ors. (supra) and Santosh Kumar Chakraborty & Ors. (supra) as referred to by the learned advocate for the petitioners would not be the answer on the point as raised herein. Having regard to the statutory provisions and the Government Circular letters, which provides that application for recognition and/or upgradation is required to be filed by the Managing Committee of the school, it is the Managing Committee, who may be aggrieved in the event of refusal to such.