Abdul Quium & Ors vs The State Of West Bengal & Ors.

Rai Chattopadhyay, J. :-

In this writ petition, this Court is concerned with the issue as to whether the respondent authority is justified and has acted rationally, reasonably and within the periphery of law, to decline the writ petitioners’ prayer for grant of approval of service as the teachers and non-teaching staff of the concerned school.

An order of the Commissioner of School Education, Government of West Bengal dated November 21, 2013 is challenged in the instant writ petition. The petitioners have prayed for relief that the said order dated November 21, 2013 be set aside. Also, that the respondent authorities be directed to grant approval of appointment of the petitioners to the concerned school w.e.f, May 28, 2012, that is the date of grant of recognition to the school.

The petitioners have stated that for overall development of a very backward village in District Birbhum, a Class 4 Junior High School, namely Dighuli Malpara Janata Vidyapith was established in the year 1971, on a piece of land gifted by local people. That, the petitioners were appointed in the said school on different dates within the years 1986 to 1994. That the managing committee of the school made application before the West Bengal Board of secondary education for recognition of the school in accordance with law, in the year 1974. However, such recognition of the school has been ultimately granted pursuant to an order of this court, only on May 28, 2012. Therefore, according to the petitioners, they have been engaged in the school in the capacity of teachers and non-teaching employees since the dates much prior to the date of recognition of the state institution. It is for the submitted that all along the school has been run, managed and controlled by the organising managing committee, teachers and non-teaching stuff thereof, including the writ petitioners. After recognition of the school, the school authority sought for approval of service of the organising teachers and non-teaching staff of the school, including the present writ petitioners. The prayer of the school Authority in this regard, communicated to the District inspector of schools, secondary education at Suri, Birbhum, was ultimately forwarded by the said respondent Authority to the commissioner of school education, government of West Bengal/the respondent No.2. The order of the district Inspector of schools dated August 29, 2013, in this regard is necessary to be mentioned in this judgment. The same shall be referred to in due course.

During the entire process, since from the stage of grant of recognition, the school authority had to take rounds of this court, seeking various reliefs from time to time. Ultimately, as per an order passed by this court, directing the respondent/Commissioner of school education, government of West Bengal for time bound disposal of prayer of approval of the petitioners, the said respondent considered such prayer. The resultant order is that impugned in the instant writ petition dated November 21, 2013, by dint of which the respondent No.2 has rejected the prayer for approval of Service of the present writ petitioners. Hence challenging the same the petitioners have filed the instant writ petition.

Mr. Kamalesh Bhattacharya has represented the writ petitioners. He has argued at the threshold the historical recognition of privately established schools. He says that education in West Bengal has historically been imparted not only through government institutions but also through privately established schools. That under the framework of the West Bengal Board of Secondary Education Act, privately established schools were always entitled to seek recognition upon fulfillment of prescribed conditions. Also that the Government circulars and orders have envisaged recognition of such schools, subject to infrastructural and educational requirements. He has referred to the relevant Circulars enumerating conditions to be fulfilled for recognition of a Junior High or High School, procedure for submission of application etc., regarding approval of appointment of teachers and non-teaching employees in the newly recognized junior high schools/ class 4 junior high schools and upgraded secondary schools.

According to the petitioners, once a privately established school obtains recognition it becomes entitled to governmental aid; students cease to pay tuition fees in the aided system; and qualified teaching and non-teaching staff found working during the final inspection are entitled to approval and corresponding financial benefits. Various Government Orders of 1984, 1987, 1988 and 1995 are relied upon to show a consistent policy of granting approval to staff serving in schools at the time of recognition. By relying on all of those Mr. Bhattacharya has submitted that there was no legal prohibition against establishing and running a private school at the relevant point of time. That, such schools were entitled to recognition upon satisfying prescribed conditions and upon recognition, the school entered the aided educational system. Also that the qualified staff serving at the time of final inspection, became entitled to approval with financial benefits.

Mr. Bhattacharya submits that the concerned institution, Dighuli Malapara Janata Vidyapith, is situated in a socially and educationally backward Scheduled Caste-dominated area of Birbhum. The school was established through private initiative to meet local educational needs. That, after prolonged litigation, the school obtained recognition from the West Bengal Board on May 28, 2012, pursuant to orders of the High Court. It is submitted that after recognition, the this Court was approached seeking approval. Pursuant to judicial directions, the respondent/District Inspector of Schools (Secondary Education) Suri, Birbhum considered the matter and by an order dated August 29, 2013, recommended approval of appointment of the teachers and non-teaching staff, with effect from the date of recognition (i.e. May 28, 2012). The writ petitioners have heavily relied on the said order of the DI. Mr. Bhattacharya has emphasized that the competent field authority found the writ petitioners as eligible and recommended for their approval.

The petitioners are aggrieved that despite the DI's recommendation, the Commissioner of School Education/respondent No.2 has rejected the prayer of the petitioner, vide the impugned order dated November 21, 2013. The petitioners argue that the Commissioner's decision is contrary to the established policy and practice governing recognition and approval of staff. The petitioners rely on examples of other similarly situated schools in Birbhum district, including  Diha Hebayet Ali Siksha Niketan Junior High School; and  Podra Md. Hossain Junior High School.

They say in those cases, after recognition, approval of organizing staff was granted with financial benefits. The petitioners therefore invoke Article 14 principles of equality and non-discrimination, contending that they are being treated differently, discriminated in gross violation of the law.

Mr. Bhattacharya has argued that once the school was granted recognition, the qualified organizing teachers and staff who had been serving the institution since prior to recognition of the same were legally entitled to approval and financial benefits, and the respondent/Commissioner's refusal is arbitrary, inconsistent with prescribed norms and past governmental practice and also stands as discriminatory when compared with similarly situated schools. For reasons as above, Mr. Bhattacharya has sought for appropriate relief for the writ petitioners.

Mr. Tapan Kumar Mukherjee, learned AGP has represented the State respondent. The respondents' case is that the petitioners, claiming to be organizing teachers and non-teaching staff of a newly recognized school, have no legal right to approval or regularization under the statutory scheme governing school appointments. Mr. Mukherjee has submitted that the writ petition challenges the order dated November 21, 2013, passed by the Commissioner of School Education rejecting the petitioners' prayer for approval of their appointments. He says that such challenge is untenable because the Commissioner's decision is fully supported by the governing statutory provisions. It is submitted that recognition of a school does not automatically confer approval on existing staff. The State raises no objection as to the fact that the school was recognized by the West Bengal Board of Secondary Education on May 28, 2012. But it has been submitted that recognition only confers legal status on the institution. Also that recognition does not create any automatic right in favour of persons who claim to have been serving the institution before recognition and that approval of staff must independently satisfy the statutory recruitment procedure. Mr. Mukherjee has submitted that any appointment in a school in State must be made through the statutory recruitment mechanism.

Reliance has been placed on the statutes like the Management of Recognized Non-Government Institutions Rules, 1969; the West Bengal School Service Commission Act, 1997; and the West Bengal Schools (Control of Expenditure) Act, 2005. It is submitted that after the School Service Commission Act came into force on November 1, 1997, appointments to teaching posts could only be made through the School Service Commission mechanism. That, any appointment made otherwise is invalid. Also that, no teacher or non-teaching employee can be appointed without compliance with the statutory procedure and governmental approval.

It is submitted that, organizing teachers are not known to any statute. The respondent authority has contended that, neither the West Bengal Board of Secondary Education Act, 1963 nor the Rules framed thereunder recognize any legal category of teachers namely, “organizer teachers”. Therefore, it is submitted that the petitioner’s claim is founded upon a concept not recognized under the statute. That, since the law does not recognize “organizer teachers”, no vested right to approval of service can arise merely because such persons worked in a school before the date of recognition.

The respondents have placed substantial reliance on the judgment of this Court in Manindra Nath Sinha versus State of West Bengal reported in (2006) 4 CHN 543. Mr. Mukherjee, learned AGP has placed reliance on the propositions decided therein that the organizer teachers are not known to the statutory scheme; that the organizer teachers are not entitled to approval; also that, no legal right accrues merely because a person has rendered service in anticipation of future recognition. Mr. Mukherjee has further asserted the fact that the Supreme Court later on has affirmed the position settled in Manindra Nath Sinha (Supra) case. An appeal against the same was dismissed by the Hon’ble Supreme Court. It is, therefore, submitted that as a consequence, the principle that organizer teachers have no enforceable right attains finality, stands affirmed and is binding under Article 141 of the Constitution of India.

A few subsequent Division Bench decisions of this Court have also been referred to by the respondent on the ground that the Court in those cases have followed the same principle, namely;  District Inspector of Schools, Secondary Education, Burdwan Vs. Abdul Barik order dated July 06, 2018, MAT No. 1626 of 2017,  State of West Bengal Vs. Phani Bhusan Mondal order dated September 12, 2017, FMA No. 1165 of 2010,  State of West Bengal Vs. Asad Ali

The respondents would argue that the decisions as above, reiterate that organizer teacher have no right to approval; that appointments of any teacher in an school in West Bengal after promulgation of the Act of 1997 should comply with the School Service Commission framework; that contrary earlier decisions cannot be treated as good law, being inconsistent with the decision in Manindra Nath Sinha (supra).

Mr. Mukherjee by taking into consideration that several Government orders or Executive instructions have been relied on by Mr. Bhattacharya on behalf of the writ petitioners, has contended that the provision of statute and the law settled being as above, no Government order can override the same. It is submitted that, even if, some Government orders or Executive instructions previously contemplated approval of the organizing teacher and non-teaching staff of a school consequent to its recognition by the Government, the law prevents any such Government order to override provisions under statutory enactments. Accordingly, after promulgation of the School Service Commission Act, 1997 and pursuant to its coming into force the earlier Government orders, if any, have lost efficacy to the extent that they were inconsistent with the statutory recruitment mechanism.

The respondents have also relied upon the Right of Children to Free and Compulsory Education Act, 2009 (effective from April 01, 2010) and NCTE Notifications prescribing minimum qualifications for being appointed to the different levels in a school. It is submitted that teachers in elementary schools must satisfy prescribed qualification including TET and training qualifications so far as the petitioners are concerned that admittedly, they did not possess the qualifications mandated by the post 2010 legal regime. Therefore, even on qualification grounds, the present petitioners could not be approved.

Mr. Mukherjee, learned AGP has made out a further point in argument that the prayer of the petitioner, if allowed, would amount to disobedience of the mandates under Articles 14 and 16 of the Constitutions and indulge in backdoor regularization. It is submitted that the petitioners have insisted for a relief which have an effect of bypassing open competition, violating equality in public employment, ignoring reservation and roster requirements. The respondents say that public posts cannot be filled through informal or provide arrangements and later regularized. The respondents have submitted the Commissioner’s reasoning in the impugned order, that vacancies arising upon farce recognition of a school must be filled through the statutory recruitment process that, recruitment must be rooted through the statutory body namely, School Service Commission. The other contention of the respondent is that a Government order dated April 04, 2011 to mandate such procedure in case of appointment of teacher in a school having not been challenged by the petitioners and the same being in vogue, the Commissioner has rightly refused approval of service of the petitioners in the impugned order. It is further submitted that the earlier Government orders of 1995 or 1998 as relied on by the petitioners have ceased to survive much ago pursuant to coming into force of the relevant statutes particularly the School Service Commission Act, 1997 of the West Bengal School (Control of Expenditure) Act, 2005 as the statutes as above have overriding effect as to any Government orders and prevail over inconsistent Executive instructions. Therefore, after promulgation of the enactments as mentioned above, those Executive directions vide the Government order stood eclipsed and have been rendered ineffective. Therefore, it is submitted that reliance by the petitioners on the Government orders issued previous to coming into force of the enactments is only misplaced reliance.

Mr. Mukherjee has summed up his argument that, recognition of a school does not legalize appointments of pre-recognition era of functioning of the institution. After the School Service Commission Act, 1997 and subsequent statutory enactments, the organizer teachers have no statutory enforceable right to approval or to regularization. That, any appointment not made through the prescribed statutory recruitment process is void and incapable of approval by the Government. For these reasons, the State respondent has categorically contended that the present writ petition being devoid of any merit, may be dismissed.

Historically, a large number of educational institutions in West Bengal were established through local initiatives in rural and educationally backward areas where no governmental educational infrastructure existed. Such institutions were founded by members of the local community, managed by organising committees and run with the assistance of organising teachers and non-teaching staff who rendered service for years together without governmental aid or financial support. The statutory scheme under the West Bengal Board of Secondary Education Act, 1963 never prohibited establishment of private educational institutions. On the contrary, the entire recognition framework proceeded on the assumption that institutions could first be established and thereafter seek recognition upon satisfying the prescribed requirements. Recognition was thus not the source of the institution's existence; it was a statutory acknowledgment of an institution already functioning and imparting education.

It is in that background that various Government Orders and executive policies issued from time to time recognised the reality of organising schools and organising staff. The consistent governmental policy prevailing for decades contemplated that at the stage of final inspection and grant of recognition, the competent authority would assess the requirement of teaching and non-teaching personnel and grant approval to eligible organising staff found serving in the institution. Such policy was neither accidental nor isolated. It reflected a conscious recognition by the State that schools established through community participation could not possibly function without teachers and non-teaching employees and that those who had contributed towards establishment of the institution ought not to be ignored once recognition was ultimately granted. Various notifications and executive orders of pre-1997 Act era have been referred to by Mr. Bhattacharya for the petitioner.

The principle of law emerging from the earlier decisions which granted relief was that where an institution had been established and had functioned for years before recognition and where organising teachers possessed requisite qualifications and were found serving the institution at the time of recognition, their cases deserved consideration for approval in accordance with the prevailing policy framework. The underlying principle was founded upon fairness in State action, legitimate expectation, non-arbitrariness and recognition of long-standing service rendered towards a public educational purpose. In this regard, the judgment of Dhrubajyoti Roy versus State of West Bengal reported at 2025 SCC OnLine Cal 6059 may be referred to in which the Court has categorically found that denying the existence of a Managing Committee of a school which has sought for and/or granted recognition and also the corresponding teaching and non-teaching staff, whether by invoking provisions of the 1997 Act, the 2005 Act, any Government notification or judgment, amounts to refusal to acknowledge the ground reality; the consequence of such denial would be to displace the very Managing Committees, teachers and staff who had been instrumental in establishing and operating the school.

The respondents have heavily relied upon the decision in Manindra Nath Sinha (supra) and the subsequent decisions following the same. However, in the opinion of this Court, the said authorities do not conclude the controversy arising in the present case. Judicial precedents are authorities for what they actually decide and not for propositions divorced from their factual context. The ratio of a decision must be understood in the backdrop of the issues which arose for consideration therein. The question in the present case is not whether a person can claim regularisation merely because he worked in anticipation of future employment nor whether appointments made in disregard of an existing statutory recruitment mechanism can subsequently be validated. The present case concerns an institution established in the year 1971, whose application for recognition had been made in the year 1974, where the petitioners were appointed between 1986 and 1994 and where recognition itself came to be granted only on May 28, 2012 after prolonged litigation. The petitioners thus belong to a category of persons who entered service long before the statutory recruitment regimes subsequently relied upon by the respondents came into existence.

The Court is unable to accept the broad proposition advanced by the respondents that the concept of organising teachers is wholly unknown to law and therefore incapable of recognition. Such an argument ignores the historical realities of school education in the State. While the expression "organiser teacher" may not have been expressly defined in a statute, the category itself was repeatedly recognised in executive policies, administrative practice and judicial decisions dealing with newly recognised institutions. Law cannot be interpreted in a manner which denies the existence of a factually and legally recognized category, consistently acknowledged by the State itself over decades.

The submission of the respondents that recognition merely confers legal status upon the institution and does not justify approval of existing staff, appears to be unsustainable in the facts of the present case. If such an argument is accepted, it would lead to an anomalous and irrational consequence. A school which has functioned for decades and has ultimately obtained recognition would, according to the respondents, suddenly be treated as an institution having no teachers and no non-teaching staff on the date of recognition. Such a proposition defies both logic and educational reality. No educational institution can impart instruction, maintain attendance, conduct examinations, preserve records or satisfy inspection requirements without the assistance of teachers and non-teaching personnel. Recognition is granted because the institution has been found to satisfy the educational requirements prescribed by law. The process of recognition itself necessarily proceeds upon an assessment of the existing educational infrastructure, including teaching arrangements. Therefore, the contention that upon recognition a school must be treated as having no teaching or non-teaching staff whatsoever is inherently self-contradictory and contrary to the very basis upon which recognition is granted.

This Court also finds substance in the petitioners' contention that the subsequent statutory enactments relied upon by the respondents cannot be retrospectively applied to extinguish rights and claims which had crystallised much earlier. The West Bengal School Service Commission Act, 1997, the West Bengal Schools (Control of Expenditure) Act, 2005, the Right of Children to Free and Compulsory Education Act, 2009 and the NCTE norms framed thereafter operate prospectively within their respective fields. None of those enactments contain any provision manifesting legislative intention to retrospectively invalidate the engagement of organising teachers appointed years before the enactments came into force, in schools which were already awaiting recognition. The petitioners admittedly entered service between 1986 and 1994. The school's claim for recognition was pending from 1974. Therefore, the rights and liabilities of the parties must be examined with reference to the legal regime prevailing when the institution was established and when the petitioners were engaged, and not by importing standards introduced decades later.

The contention regarding non-possession of TET qualifications or qualifications prescribed under post-2010 norms is found as misconceived. Such qualifications were introduced as part of a subsequent regulatory framework governing future recruitment. The petitioners are not seeking appointment pursuant to a recruitment process initiated after 2010. Their claim arises from service rendered for decades in an institution which had been functioning long before the introduction of those norms. Application of such subsequent requirements to the petitioners would amount to retrospective imposition of eligibility conditions, unknown at the time when they entered service and continued to discharge their duties.

The reliance placed by the respondents upon Articles 14 and 16 of the Constitution also appears to be misplaced. Approval of organising teachers in the peculiar circumstances of newly recognised institutions cannot be equated with impermissible backdoor entry into public service. The petitioners did not secure employment by circumventing an existing statutory recruitment process. They were engaged in a private institution at a point of time when the institution itself was struggling for recognition and when the statutory recruitment machinery, now relied upon by the respondents, was not even in existence. Their claim arises not from an attempt to bypass public recruitment but from their long and continuous contribution towards establishment and maintenance of an educational institution ultimately recognised by the State. Equality under Articles 14 and 16 cannot be invoked to perpetuate arbitrariness or to erase historical realities.

Also noticeable is the recommendation made by the District Inspector of Schools on August 29, 2013. The District Inspector, being the field-level authority directly concerned with educational administration, examined the matter and recommended approval of the petitioners with effect from the date of recognition. The impugned order does not disclose any cogent reason for discarding such recommendation. Administrative discretion must be exercised on relevant considerations. The rejection of the petitioners' claim solely on the basis of a rigid and abstract application of later enactments amounts to failure to consider the peculiar facts of the case and the historical circumstances under which the institution and the petitioners in their present capacity came into existence.

For decades the State consistently followed a policy of considering eligible organising staff for approval upon recognition of schools. The petitioners continued to serve the institution under that legal and administrative environment. The State having encouraged establishment of educational institutions in backward areas and having historically recognised the role of organising staff cannot arbitrarily depart from such policy to the prejudice of persons who altered their position and devoted substantial portions of their lives to the institution. In the circumstances the petitioners would be deprived if no a relief is granted to them on the principles of legitimate expectations.

Viewed from any angle, therefore, the impugned order dated November 21, 2013 cannot be sustained. The Commissioner proceeded on the erroneous premise that the concept of organising teachers was wholly alien to law, that recognition necessarily creates vacancies to be filled afresh through subsequent statutory mechanisms and recruitment procedure in accordance with that. The Commissioner has erroneously held in the said order that subsequent statutory enactments govern persons who entered service long before those enactments were conceived. The reasoning suffers from failure to appreciate the historical evolution of the law relating to newly recognised schools, ignores the distinction between fresh recruitment and approval of existing organising staff, overlooks the recommendation of the District Inspector and results in manifest arbitrariness.

Accordingly, this Court holds that the decisions relied upon by the respondents, including Manindra Nath Sinha (supra) and the subsequent authorities following the same, are distinguishable on facts and do not govern the peculiar factual matrix of the present case. The petitioners' claim is required to be adjudged in the light of the legal and policy framework applicable to organising schools awaiting recognition and not by reference to statutory recruitment regimes introduced subsequently.

For all the aforesaid reasons, the impugned order dated November 21, 2013 is found liable to be set aside and the petitioners have found being eligible as organizing teachers and non-teaching staff, who have been serving the institution from a date prior to its recognition, as entitled to approval of their services with effect from May 28, 2012, that is the date of recognition of the school.

Hence, this writ petition No. WPA 37571 of 2013 is allowed and disposed of with the following directions: -

ii) The petitioners are found entitled for approval of service as organizing teachers and non-teaching staff including Group-D staff of the institution with effect from May 28, 2012.

iii) The petitioners shall be granted notional benefit upon approval of their services with effect from May 28, 2012.

iv) The respondent No. 3/District Inspector of Schools, Secondary Education at Suri, Birbhum is directed to immediately give effect to the fixation of pay scale of the petitioners incorporating the benefits of increment, promotion and/or any other service benefits as allowable to them from the date of approval as above.

Writ petition No. WPA 37571 of 2013 is allowed and disposed of along with applications pending, if any.

Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.