Milan Sk. vs State Of West Bengal & Ors.

The writ petitioner has challenged the order at Annexure P-6. From the writ petition it appears that he claims on Annexure P-7 under which a

mandate was imposed on teachers including librarians to improve their qualifications for getting higher scale of pay under paragraph 12 of the memo

dated February 12, 1999 The writ petitioner had improved his qualifications in 2011 after having been appointed in a sanctioned post in 2009. From

paragraph 4 of the writ petition it appears that the writ petitioner was appointed and his appointment was approved. Paragraph 5 shows that at the

time of appointment, his qualification was that of a holder of certificate in library science, but subsequently he improved his qualification to that of a

Bachellor of Library Science which is relevant to the subject in respect of which he was appointed.

When the writ petitioner applied for an endorsement of the higher qualification and approval of his appointment with such endorsement of acquisition

of higher qualification, the third respondent passed the following order on January 25, 2016, which is at Annexure P-6 to the present petition. Such

letter/order is required to be quoted to approved the manner in which the respondent no.3 took his decision:

“Sub : Regarding prayer for permission of approval with higher degree (BLIS) infavour of Milan Sk, Librarian of Shah Jalali Barkatia High

Madrasah (HS). Ref:Madrasah’s letter videno.46/15 dt. 30.06.2015 With reference to the subject noted above the undersigned has to inform him

that Milan Sk., Librarian of the Madrasah whose qualification is B.A, CLS, as per approval of appointment which was issued from this end vide memo

no. 1167/g. dt. 21.12.2012 After that, he enhanced his qualification ‘BLIS’ degree from Netaji Subhas Open University. This l ibrarian

concerned prayed for another approval where his qualification will be written as BLIS. The said matter is not accepted from this end.â€​

There are so many ways in which the order is fatally flawed that it would make this judgment and order an epic if I were to list all of them. First,

when a representation is made for something to which the writ petitioner says he is entitled in law it is not open to a creature of statute to say that he

does not accept it. He may either allow or reject the representation or prayer; he has not been given the jurisdiction to choose not to accept it. He

must entertain it if only to dismiss.

Here, the third respondent has laconically said that he is not accepting the prayer of the petitioner. Secondly, assuming that the said order of the

respondent no. 3 is a rejection couched in unfortunate terms even then no reason is apparent on the face of the said rejection/non-acceptance of the

prayer of the petitioner. The respondent no.3 has not assigned any reason why he has refused/rejected such prayer. It is trite that when third

respondent passes an order affecting the service of the writ petitioner and endorsement of his qualifications sought under that which has force of law

he must comply with the basic principles of natural justice, which includes giving reasons for an order.

The right to a speaking order is guaranteed to the writ petitioner a part of the basic principles of natural justice. Failure to comply with this the results

in violation of those principles and thus of Article 14 of the Constitution of India. Such violation of a right guaranteed under Part III of the Constitution

of India amounts to rendering the decision making process a nullity. Consequently, the order impugned is also a nullity.

Mr. Yasin Ali, learned advocate appearing for the State strenuously submits that neither the notification at Annexure P-7 nor the memorandum at

Annexure P-8 are applicable to the present case and in fact the case of the petitioner for recording all higher qualifications could only be done had the

petitioner pleaded in the writ petition that he improved his qualifications after getting approval from the managing committee of the Madrasah. Mr. Ali

further submits that paragraphs 6 and 7 of the writ petition clearly show that the approval was subsequent to the writ petitioner acquiring his enhanced

qualification. He further submits that paragraph 8 of the writ petition is an admission that the order dated January 25, 2016 as in Annexure P-6 is a

reasoned order. The writ petition has alleged as follows:

“Your petitioner states that after communication of the resolution dated 26.06.2016 in favour of the District Inspector of School (S.E.) North 24

Parganas, the Respondent no.3 passed a reasoned order on 25.01.2016 being Memo No. 66/1(1)/g. The reasoned order dated 25.01.2016 passed by

the District Inspector of School (S.E.) North 24 Parganas without considering the facts of the petitioner and also without considering the rules and

regulations. It is also sated herein thatâ€​

While, Mr. Ali is perfectly correct in saying that paragraph 8 is an admission that there is a reasoned order, I do not think that the writ petitioner ever

instructed his lawyer that an order without reason can be called a reasoned order. In the unfortunate times when we line a writ petitioner/litigant has

very little control over what his learned lawyer drafts. In blind faith he affirms the affidavit on an assurance that what the lawyer has drafted will

result in a favourable order.

As a Court which sits in the real world instead of an ivory tower in the cloud city of Baspin, I must take notice of the fact that even affidavits are

drafted by lawyer according to their knowledge and litigants are made to affirm the same and sign the jurat even if the lawyer’s clerk has caused

that which is an information derived from some one as if it was true to the deponent’s knowledge. I, therefore, cannot blame the writ petitioner for

the shoddy drafting by his drafting advocate or the fact that an otherwise meritorious case was of but compromised by the learned advocate for his

faulty draft.

While sitting in the Writ Court, I am required to do justice, not to correct grammar or be like a village school master. I cannot afford to go by the form

rather than on the substance. The order is unreasoned on its face. No mischief caused by the learned drafting advocate can miraculously breath

reasons into it. So far as Mr. Ali’s contentions that the writ petitioner is not entitled to have the qualifications endorsed, are concerned, since the

respondent no. 3 has not assigned any reason why it cannot be done, this cannot be improved by submissions from the Bar. In other words, where no

fact or reason is apparent from the order impugned the learned advocate cannot by his submissions be allowed to supply such reasons which must be

in the nature of facts of the case on record or admitted.

Accordingly, I am afraid I cannot accede to the submissions of Mr. Ali. As a result despite shoddy drafting of the writ petition, it succeeds. The

impugned order as in Annexure P-6 is quashed, set aside and cancelled. The respondent no.3 shall consider the matter afresh and take a decision and

supply reasons for his decision in respect of the prayer made by the writ petitioner. The entire process must be completed within a period of six weeks

from date of communication of the order.

The respondent no.3 shall give an opportunity of being heard to the writ petitioner, Madrasah authorities as also representative from the office of the

Director of Madrasahs who shall assist the respondent no.3 by placing relevant circulars and rules and the law for recording of improvement of

qualification. The decision thus, taken by the third respondent shall be communicated to the petitioner within seven days from taking of the decision

and logical conclusion thereto shall be given by the respondents. The writ petition is allowed accordingly to the above extent. There shall be no order

as to costs.