Md. Reajul Islam & Ors vs State Of West Bengal & Ors

Shampa Sarkar, J

This writ petition has been filed by three teachers of Moynagodi Elahi Boksh AU High Madrasah (H.S.), Moynagodi, Post Office -Noapara, District - North 24 Parganas.

The only contention of the petitioners is that pursuant to a direction of this court passed by a learned Single Judge dated June 16, 2010 and rejection of an appeal therefrom on October 12, 2012; the services of the petitioners were regularised in the concerned Madrasah in the upgraded section of X class High Madrasah with effect from April 12, 2013.

According to the petitioners as they have been declared to be organiser staff of the concerned Madrasah, by the learned Single Judge in W.P. No. 17459(W) of 2007, the question of regularising them from a future date, i.e. April 12, 2013 was contrary to law. It is further submitted by the petitioners that even the Hon'ble Division Bench of this Court had passed necessary orders that the petitioners should be regularised in accordance with law.

Mr. Bari, learned advocate, appearing on behalf of the petitioners further submits that the law was well settled in this regard, i.e. once a school or Madrasah is upgraded and recognized then the approval of teaching and non-teaching staff should be regularised from the date of recognition of such upgradation of the said Madrasah by the Board.

Mr. Bari, relies on the Memo No. 476 dated April 20, 2007 issued by the West Bengal Board of Madrasah Education which shows that the concerned Madrasah was upgraded from 4 Class Junior High to X Class High Madrasah upon the recognition of the Board with effect from 2007-2008.

The petitioners were purposely excluded from the DLIT report. It is submitted by Mr. Bari that at the time of inspection the names of the petitioners were purposely excluded from the DLIT report. Aggrieved by inaction on the part of the respondents in regularizing the petitioners although they were organizer teachers, the petitioners filed W.P. No.17459 (W) of 2007, before this court.

Mr. Siddiqui, learned advocate, appearing on behalf of the State respondents submits that in the DLIT report prepared on December 15, 2006 the names of the petitioners did not appear and according to the Memo No. 918-Edn.(S) dated 23rd/29th October, 1992 the petitioners were not entitled to be regularised from the date of upgradation. Mr. Siddiqui further submits that in compliance with the order of this Court the services of the petitioners were regularized with effect from April 12, 2013. The only ground for non-granting regularisation of the petitioners from the date of upgradation and recognition of the upgraded Madrasah was that the names of the petitioners did not appear in the DLIT report.

Admittedly, after upgradation of the Madrasah and its recognition the petitioners were not regularised. Being aggrieved by the inaction of the authorities in regularising the petitioners, a writ petition was moved before this Court being W.P. 17459(W) of 2007. The said writ petition came up for consideration before a learned coordinate Bench of this Court. By an order dated June 16, 2010 the said writ petition was disposed of. His Lordship recorded that the petitioners were the organizer teachers and claimed regularisation on the ground that although they were organiser teachers they had not been regularized. Such claim was based on a communication dated April 20, 2007 issued by the Board upgrading and recognizing the Madrasah as a X Class High Madrasah from 2007-2008. The Court also observed that according to the policy of the Government of West Bengal, those organiser teachers who were bonafide employees of the unrecognised part of a school or institution which was undergoing upgradation were to be considered for regular appointment in the said institution. It was further recorded by His Lordship that on perusal of the records, His Lordship did not find any denial to the claim of the petitioner to be bonafide teachers of the Madrasah at the time of upgradation. His Lordship also recorded that the question of irregularity of appointment did not arise in this case inasmuch as, when a Madrasah was recognised and was unaided it would be treated as a private school and the only thing to be looked into at the time of regularisation was whether those teaching staff who were claiming regularization were bonafide teachers or not. With these observations, the writ petition was disposed of with a direction upon the Director of Madrasah Education, West Bengal, to regularise the appointment of the petitioners in accordance with law and within a period of four weeks.

Thus, it is evident from the order passed by His Lordship that the respondents did not raise any objection about the eligibility of the petitioners to be regularised as organiser teachers. The ground taken by the respondents for denying the claim, is that their names did not appear in the DLIT report, but the said ground was available even before His Lordship and could have been made a ground of defence in the earlier proceedings.

The specific case of the petitioners was that they were purposely excluded from the DLIT report.

Aggrieved by the order of the learned Single Judge, the State respondents preferred an appeal which was registered as MAT 1574 of 2010. The said appeal was dismissed and the respondents were directed to comply with the order of the learned Single Judge.

By a communication dated April 12, 2013 issued by the Joint Secretary to the Government of West Bengal, Minority Affairs, Madrasah Education Department, the advocate-on-record was informed that the Government had decided not to file any SLP against the order dated October 12, 2012 before the Hon'ble Apex Court, and the order of this Hon'ble Court should be complied with. Thus, the order of His Lordship dated June 16, 2010 had reached its finality and the eligibility of the petitioners to be treated as organizer teachers was finally decided.

The petitioners were found to be bonafide organiser teachers by His Lordship and upon perusal of the records, His Lordship found that there was no denial of the fact that the petitioners were organiser teachers of the concerned Madrasah.

Admittedly the petitioners have fulfilled the other requirements contained in Memo No. 918-Edn.(S) dated 23rd/29th October, 1992. The plea of the respondents about the ineligibility of the petitioners to be regularised as organiser teachers from the date of upgradation of the Madrasah to X Class High Madrasah, as the petitioners' names were not appearing in the DLIT report is barred by the res-judicate and/or constructive res-judicata.

Section 11 and Explanation IV of the CPC is quoted below. :-

"Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided such Court. .......

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Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."

This ground for denying the claim of the petitioners by the respondents was available when W.P. 17459(W) of 2007 was taken up for final hearing. This point was also not raised in the appeal. Records before His Lordship revealed that there was no denial of the fact that the petitioners were not bonafide organiser teachers of the concerned Madrasah. A co-ordinate Bench of this Court had found that the petitioners were organiser teachers and the point has reached a finality. The order of the learned Single Judge was upheld by the Hon'ble Division Bench and the State respondents chose not to prefer any Special Leave Petition.

The term organiser teacher is used in respect of teachers who are appointed prior to recognition of an institution or when the institution was going through a process of upgradation or recognition. Once the recognition is given then those teachers are regularized as per Government Orders. Once the petitioners have been accepted to be organiser teachers, the natural conclusion is that the petitioners were appointed prior to recognition of the upgraded section or when the Madrasah was going through the process of recognition upon upgradation.

Thus, the question of grant of approval of the services of the petitioners with effect from April 12, 2013 is totally illegal. The said date was the date of the communication of the Joint Secretary of the department informing the advocate-on-record that the department had decided not to prefer an appeal before the Hon'ble Apex Court. There cannot be any logic in fixing the said date as the effective date of approval of the services of the petitioners.

Once it is settled that the petitioners were organiser teachers by this Court upto the stage of appeal, and the concerned department chose not to prefer SLP before the Hon'ble Apex Court, the question of granting regularisation to the petitioners with effect from the date of communication of the decision of the government not to prefer an appeal is arbitrary and unreasonable. The Memo dated July 2, 2013 issued by the Director of Madrasah Education West Bengal is set aside and quashed.

The law in this regard has been settled by this Court in the decision of Namita Chowdhury vs. The State of West Bengal & Ors reported in (2003) 2 CAL LT 63 (HC) wherein it has been held that all employees and/or organiser teachers of a school was entitled to be granted approval of their services with effect from the date of recognition of the said school. The said judgment is applicable in this case. It is also true that if the petitioners' names were not appearing in the DLIT report, then the State respondents should not have at all regularised the petitioners from a subsequent date. Non-appearance of the names of the petitioners in the DLIT report would be a good ground for rejecting the claim of the petitioner for regularization as organizer teachers. The respondents did not take this plea before the learned Single Judge or before the appeal court.

The admitted position is that the petitioners were recognised as organiser teachers by learned Single Judge which was affirmed by the Hon'ble Division Bench also.

The State respondents decided not to prefer any SLP against the orders passed by this Court and the issue has reached a finality in a proceeding between the same parties, litigating under the same title.

With the above observations the writ petition is allowed. The petitioners are entitled to grant of approval of their services with effect from the date of recognition of the High Madrasah as a X Class High Madrasah.

The arrears be paid to the petitioners upon pay fixation. The arrears should be paid in three equal monthly instalments. The first of such instalment shall be paid within January, 2020.

There will be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.