AI Structured Summary
Not yet generated for this judgment
Judgment
In spite of service of successive notices, none appeared on behalf of the
respondents. Let the affidavit of service be kept with the record.
The petitioners are duly qualified to be appointed as teaching and non-
teaching staff in High School and they were duly appointed as
organizing teaching and non-teaching staff of Ampara Junior High
Madrasah (hereinafter referred to as the ''Madrasah'') under police station- Etahar, District- Uttar Dinajpur. Since the academic year of
2008 the said Madrasah was established and for smooth running of
Madrasah duly qualified teaching and non-teaching staff i.e. the
petitioners were duly appointed by the Managing Committee of the
Madrasah. 3. Ultimately, the West Bengal Board of Madrasah Education by a letter
being memo no. 5047-A dated 22.02.2011 granted recognition to the
Madrasah as Junior High Madrasah from academic sessions of 2010-
11.
The petitioners being organizing teaching and non-teaching staff
approached the respondent no. 3 for the approval of their service as
organizing teaching and non-teaching staff but nothing has been done
by respondent no. 3. The petitioners thereafter served a notice upon
respondents no.2 and 3 through their learned Advocate requesting them
to do the needful. Being aggrieved by such inaction of the respondents,
the petitioners filed a writ petition being WP no. 12764(W) of 2014,
wherein His Lordship Hon''ble Justice Debashis Kar Gupta was pleased
to direct the respondent no. 3 to pass a reasoned order in accordance
with law on the representation filed by the petitioners for approval of
their appointment as teaching and non-teaching staff of the Madrasah.
Respondent no. 3 however issued a letter dated 4th August, 2014
whereby and where under it was informed to the petitioners that no
permission has been accorded by the said authority for regularization of the service of the petitioners. The petitioners thereafter again moved
the Hon''ble High Court at Calcutta by filing writ petition no. 24846(W)
of 2014. His Lordship Hon''ble Justice Sudip Ahluwalia directed
respondent no.3 to pass fresh order specifying the rules and orders
under which the applications of the petitioners were barred or liable to
be rejected after giving an opportunity of hearing to the petitioners.
Finally, the District Inspector of School communicated the reasoned
order dated 25th April, 2016 to the writ petitioners stating inter-alia:
"W.P. No. 24846(W) of 2014..............
The Madrasah Recognized by the West Bengal Board of Madrasah
Education Vide Memo no. 5047 - A dated 22.2.2011 as New Set up
Jr. High Madrasah. As per Notification by the Govt. of West Bengal
in terms of G.O No.- 125-SE(S)/FS/S/35-47/2006 dated 15.2.2007
''AND WHEREAS teachers for the Set up Schools, have to be
appointed only on recommendation of the West Bengal School
Service Commission''. '' AND WHEREAS non-teaching staff are to be
recruited as per the existing rules under the West Bengal Schools
(Control of Expenditure) Act, 2005''. The undersigned verified the
relevant papers and documents of the Madrasah and as per rules
and orders the approval of Service as organizing teaching and non-
teaching staff of the Ampara Jr. High Madrasah cannot be
considered and thus matter is disposed of."
Being aggrieved and dissatisfied with such order this writ petition has
been filed by the petitioners for issuance of an order directing
respondent no. 3 for approval of the service of the petitioners as
teaching and non-teaching staff of Ampara Junior High Madrasah,
District- Uttar Dinajpur and for setting aside the order impugned dated
4th August, 2014 passed by respondent no.3.
Learned Advocate appearing on behalf of the petitioners contended that
the District Inspector of School(Secondary Education), Uttar Dinajpur
did not consider the memo No. 705 dated 13th January, 1999 while
passing such order and thereby has not only violated the directions
given by the Government of West Bengal but also has acted contrary to
the law enunciated by the High Court at Calcutta. In support of his
contention learned Advocate for the petitioner has also relied on a
decision of our High Court delivered by learned Single Judge in writ
petition no. 19811(W) of 2011.
Learned Single Judge in such decision has directed the respondents to
approve the existing managing committee of the school and to sanction
teaching and non-teaching staff therein to accommodate the writ petitioners, who were working as organizing teaching and non-teaching
staff of such school.
Memo no. 5047-A dated 22nd February, 2011 is the sanction order for
the recognition of new set up for the Ampara Junior High Madrasah
wherein some conditions were stipulated by the West Bengal Board of
Madrasah Education in respect of the functions of such Madrasah. The
conditions may be reproduced below:
"1. The Madrasah Authority should seek approval of Adhoc Managing
committee formed for the purpose of new set up of the said Madrasah from
the West Bengal Board of Madrasah Education. The Adhoc Managing
Committee so approved shall act as per the rules of Management of
recognized non-Government Madrasahs (aided and unaided) Rules, 2002
formed under the West Bengal Board of Madrasah Education Act 1994
with subsequent modification. If any from time to time for one year
Managing Committee should be reconstituted as per rules of Management
of recognized non -Government Madrasah (aided and unaided) Rules 2002
within this period.
The teachers of new set up Madrasahs should be appointed by the
Managing Committee only on the recommendation of West Bengal
Madrasah Service Commission for selection of teachers in Madrasahs.
The appointment of non- teaching staff shall be made in accordance with
Government''s acts and rules in force.
The recruitment of teaching and non-teaching staff should be made as
per staff pattern of Jr. High Madrasah determined and prescribed by the
Government from time to time in this regard."
It is, therefore, apparent from the aforesaid conditions that the
teachers of new set up Madrasah should be appointed by the managing
committee only on the recommendation of West Bengal Madrasah
Service Commission and the recruitment of non-teaching staff should
be made as per staff pattern of junior high Madrasah determined and
prescribed by the Government from time to time in this regard.
Therefore, specific conditions have been given by the West Bengal
Board of Madrasah Education with regard to the appointment of
teaching and non-teaching staff in respect of the Madrasah. Such
sanction order of the conditions stipulated in such sanction order
was/were never challenged by the petition.
The District Inspector of Schools (SE) Uttar Dinajpur while rejecting
the prayer of the petitioners has specifically mentioned that the teachers
for the set up schools have to be appointed only on recommendation of
the West Bengal School Service Commission and non-teaching members
of staff are to be recruited as per the existing rules under the West
Bengal Schools (Control of Expenditure) Act 2005.
Learned Single Judge while disposing writ petition no. 19811(W) of
2011 has discussed the following decisions:
i. Manindra Nath Sinha & Ors. Vs. The State of West Bengal & Ors.
2006(2) CLJ (Cal) 489.
ii. State of West Bengal & Ors. Vs. Smritikana Maity & Ors. Reported in
2008 (1) CLJ(Cal) 316.
iii. Headmistress, Garifa Arati Academy for Girls'' Vs. Smt. Gita Banik &
Ors. 2008 (1) CLJ (Cal) 453.
It has been consistently held by our High Court in the aforesaid
decisions that after coming into force of the West Bengal School Service
Commission Act, 1997 no teacher could be appointed into any school
without being recommended by the West Bengal School Service
Commission. It has further been held that the Court could not
recognize any organizing managing committee or organizing teacher.
Applying the ratio in the case of State of Karnataka Vs. Uma Devi
reported in 2006 (4) SCC 1, it has been held that such persons were
illegally appointed employees and had no right to seek. However,
learned Judge has also referred another unreported Division Bench
judgment namely State of West Bengal and Ors. Vs. Md. Hasan and
Ors., wherein it has been specifically held that in terms of memo no.
705 dated 13th January, 1999 issued by the Secretary of the Education
Department the appointments of organized teachers and non-teaching
staff of Madrasah were treated as fresh appointment after recognition
and therefore question for recommending the matter for appointment of
teaching staff through School Service Commission cannot and does not arise. Accordingly, the concerned authority was directed to approve the
appointments of the writ petitioners of such writ application as
organizing teaching and non-teaching staff of the upgraded section of
high madrasah.
Learned Advocate for the petitioners contended that in view of the
aforesaid judgment of the Division Bench the prayer of the petitioners
ought to be allowed. secondly, the petitioners had had legitimate
expectation of being absorbed in Ampara Junior High Madrasah and
accordingly their prayer for absorption ought to be allowed.
Nothing has been produced before this Court to show that rules of
business of the Government of West Bengal framed in terms of Article
166 of the Constitution of India permits the Secretary, West Bengal
Board of Madrasah Education to issue such memo no. 705 dated 13th
January, 1999. On the contrary the said memo being no. 705 dated
13th January, 1999 appears to be a letter requesting the Director of
School Education, West Bengal to issue appropriate instructions. In
absence of any authority, such memo no. 705 dated 13.01.1999 cannot
be interpreted to be the mandate of the Government of West Bengal in
respect of approval of appointment of organizing teachers and non-
teaching staff of Madrasah even after coming into force of School Service
Commission Act and the West Bengal Schools (Control of Expenditure)
Act, 2005. Secondly, the question of legitimate expectation has been
dealt with by our High Court in the afore mentioned decisions. The decision of Manindra Nath Sinha & Ors. Vs. The State of West Bengal &
Ors. 2006(2) CLJ (Cal) 489 has been upheld in Civil appeal no. 7897 of
2010 by the Hon''ble Supreme Court of India. The doctrine of Merger
accordingly comes into play and it may safely be stated that the reasons
assigned in Manindra Nath Sinha & Ors. Vs. The State of West Bengal(
Supra) have been accepted and affirmed by the Supreme Court of India.
In that view of this case the District Inspector of Schools (S.E.) Uttar
Dinajpur was justified in holding that organizing teaching and non-
teaching staff of the Madrasah are not entitled to be absorbed in the
said Madrasah after having recognition from the State of West Bengal. I
do not find any illegality in the reasoned order passed by respondent
no.3 in terms of the order passed by the High Court in writ petition no.
24846(W) of 2014.
The petitioners have not acquired any right to be appointed as
teaching and non-teaching staff of Ampara Jr. High Madrasah after
such recognition by the State and it is incumbent upon the Managing
Committee to recruit teaching and non-teaching staff of such Ampara
Jr. High Madrasah in terms of the rules and orders as mentioned in the
order of the District Inspector of School (Secondary Education) Uttar
Dinajpur.
The writ petition being void of merit is dismissed.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to
the parties as expeditiously as possible