(1.) All the writ petitioners are organizer teachers who are presently serving in a school under the grant-in-aid scheme of the Government of West Bengal. The school is a fully aided school. The petitioners have challenged an order passed by the Commissioner of School Education dated 19th July, 2019 by which the petitioners' claim of approval of appointment was rejected. The petitioners had sought for being made permanent teachers in sanctioned vacant posts in the concerned school. Learned counsel for the petitioners submits that the impugned order of the Commissioner was passed pursuant to a direction dated 9th June, 2014 passed by a learned Judge of this court by which liberty had been granted to "the respondent authority" to pass an order in the matter of the petitioners' approval of appointment. By the said order, an earlier order dated 28th March, 2014 of the Commissioner of School Education, rejecting the prayer of the petitioner was set aside. The points raised by learned counsel are primarily three-fold. First, that the petitioners were approved by a Memo dated 10th August, 2012 recording the approval of appointment of teaching and non-teaching staff of the concerned school. The approval of appointment was made by the District Inspector of Schools, Secondary Education, Murshidabad. Counsel submits that despite such approval, the petitioners' salary was stopped from March 2014 onwards by the DI upon the instructions of the Commissioner. Second, the order dated 9th June, 2014 had specifically directed the Commissioner to give a hearing to the petitioners which was not complied with by the Commissioner and third, despite a direction passed by a learned Judge of the court on 26th August, 2015 to disburse the arrear salaries of the petitioners from the month of filing of the writ petition i.e. June 2015 onwards, no such steps were taken by the concerned authority. It is also submitted that on the date of passing of the impugned order, the Commissioner did not have the power to reject the prayer of the petitioners for being appointed as permanent teachers in vacant sanctioned posts under the West Bengal Board of Secondary Education (appointment, confirmation, conduct and discipline of teachers and non- teaching staff) Rules, 2018. Counsel submits that under these Rules, the appropriate authority is the Board of Secondary Education and not the Commissioner.
(2.) Learned counsel for the State relies on the specific statements made in the impugned order which shows that the petitioners were called for hearing in compliance with the order passed by the court on 9th June, 2014, on various occasions between September 2014 to June 2019. However, despite being given repeated opportunities for being represented, none of the petitioners appeared before the Commissioner and letters were issued by the advocate of the petitioners requesting the Commissioner to first disburse the petitioners' salary and then commence the hearing. Counsel submits that the petitioners, being organizing teachers, cannot claim approval of appointment unless there are vacant sanctioned posts in the school and further that the impugned order does not indicate any of the grounds which a court may consider for review of such order. It is also submitted that the direction for release of the petitioners' salary was conditional upon no final order being passed in W.P. 12142(W) of 2014 in which the order dated 9th June, 2014 was passed directing the concerned authority to consider the case of the petitioners.
(3.) On hearing learned counsel for the parties, the first issue which strikes this court is that at least ten dates were fixed by the Commissioner from 8th September, 2014 to 4th June, 2019 for hearing the petitioners pursuant to the direction of the court dated 9th June, 2014. The impugned order records that despite the petitioners being intimated vide Office Memos before each of the dates fixed for hearing, none of the petitioners were present on any of such dates. It is further recorded that the only communication received on behalf of the petitioners were letters from the concerned advocate stating that the petitioners' salary be disbursed first and then the petitioners be invited for the hearing. A letter dated 26th August, 2014 from the petitioners' advocate also threatened contempt proceedings. The fact of the petitioners choosing not to attend any of the hearing is relevant in the light of the order dated 9th June, 2014. The relevant portion of this order is set out below:- "The cancellation of the approval of appointment of the petitioners relates to their livelihood; or in other words, the right to live of the petitioners is affected adversely without giving them any opportunity. In view of the above admitted fact, this order cannot be sustained in law on the ground of violation of the principles of natural justice. The impugned order is, therefore, quashed and set aside. Liberty is granted to the respondent authority to pass necessary order in the matter, if necessary, in accordance with law as observed hereinabove." From the above, it is clear that the main ground for directing the authority to pass necessary orders, was by reason of the fact that the petitioners were not given a hearing before the earlier order was passed by the Commissioner on 28th March, 2014. It is also relevant that the order of another learned Judge dated 26th August, 2015 directing that the petitioners be paid their arrear salaries from June 2015 was made conditional upon no final order being passed in the writ petition. It would further appear from the order dated 26th August, 2015 that the petitioners did not bring the fact of the petitioners being called for hearing by the Commissioner on at least six days for a hearing before the said order was passed by the court. Therefore, the petitioners' advocate taking the ground of non- payment of salaries and making attendance of the petitioners conditional upon disbursing of salaries cannot be sustained.