Syed Rahatul Karim vs The State of West Bengal and Others

Dipankar Datta, J.—An order of the District Inspector of Schools (SE), Barrackpur, 24 Parganas (hereafter the DIoS) dated July 16, 2014, refusing to accord approval and thereby acknowledge the petitioner as Headmaster of Shalidaha High School (hereafter the said school) owing to his lack of requisite experience (deficient approved service in the feeder post) is under challenge in this writ petition. Such order was passed by the DIoS upon consideration of the petitioner�s claim in compliance with an order dated March 12, 2014 passed by a coordinate Bench while disposing of his earlier writ petition [W.P. 16365(W) of 2001].

The facts leading to the impugned order passed by the DIoS, may be noted first.

By a letter dated December 31, 1982, the Secretary of the Organizing Committee of Shalidaha Jr. High School offered appointment to the petitioner as headmaster with a direction to report for duty on January 3, 1982. At the material time, it (the school) was yet to receive recognition from the West Bengal Board of Secondary Education (hereafter the Board). However, the Secretary of the Organizing Committee had been informed by the Secretary of the Board (vide memo dated May 27, 1998) the decision of its President to grant recognition to the school provisionally for the period upto May 1, 2001 as a 4-class junior high school with co-education w.e.f. May 1, 1998. Close on the heels thereof, the school was upgraded as a high school and such up-gradation was communicated by the Secretary of the Board vide memo dated June 6, 2000.

At the time of the petitioner�s initial appointment, he was a Science graduate. In 1993, the petitioner obtained Master�s Degree in History from Burdwan University. He also obtained the B.Ed. Degree in the year 1995. Since upgradation of the said school, it is the petitioner�s admitted case that he has been continuing as the teacher-in-charge.

The West Bengal Central School Service Commission (hereafter the Central Commission) in the year 2001 had invited applications for appointment as headmasters in secondary and higher secondary schools all over the State, where vacancies existed. Insofar as the list of vacancies existing in schools in the district of North 24 Parganas is concerned, the vacancy on the post of headmaster of the said school was also included. Feeling aggrieved thereby, the petitioner had approached this Court with the writ petition referred to above seeking, inter alia, the following relief:

�(a) A writ of or in the nature of Mandamus commanding the respondents to treat the petitioner as Headmaster of Shalidaha High School, P.O. Shalidaha District � North 24-Parganas and to accord necessary approval to the petitioner as Headmaster of the school;

(b) A writ of or in the nature of Mandamus commanding the respondents to forthwith revoke, cancel, rescind and withdraw the advertisement for filling up the post of Headmaster of Shalidaha High School, P.O. Shalidaha, District � North 24-Parganas and to act in accordance with law;

(c) A writ of or in the nature of Mandamus commanding the respondents to forbear from treating the post of Headmaster of Shalidaha High School, P.O. Shalidaha, District � North 24-Parganas, as vacant and to act in accordance with law.

(d) A writ of or in the nature of Certiorari directing the respondents to send up to this Hon''ble Court all records of the case including the advertisement for filling up the post of Headmaster of Shalidaha High School, P.O. Shalidaha, District � North 24-Parganas for doing conscionable justice.****�

Relying on Government orders dated March 5, 2001 and September 21, 2005, the petitioner rested his claim. It was contended on behalf of the petitioner that since he lacked the essential qualification for being appointed as headmaster after the junior high school had been upgraded to a high school, he was required to continue to act as teacher-in-charge for five years from the date of upgradation and during such period of five years, he would have to acquire the requisite qualification; in case of acquisition of the requisite qualification, the initial deficiency would stand removed and he would be entitled to have his service approved as headmaster of the upgraded high school.

In W.P. 16365(W) of 2001, the State of West Bengal, the DIoS, the Central Commission, the Regional School Service Commission (Southern Region) and the Board were respondents. Surprisingly, the said school and/or the Secretary/President of the Managing Committee were not made respondents. When the writ petition came up for consideration on March 12, 2014 before a coordinate Bench, heavy reliance was placed on behalf of the petitioner on a Division Bench decision of this Court reported in Smt. Shila Ghosh Vs. State of West Bengal and Others--> . According to learned advocate representing the petitioner, the facts in Shila Ghosh (supra) were identical to the case of the petitioner and, therefore, it was prayed that similar benefit as granted by the Division Bench in favour of the appellant before it be granted to the petitioner.

On behalf of the State, learned advocate contended that the petitioner�s case should be directed to be considered by the Central Commission.

Upon hearing the parties, the coordinate Bench proceeded to pass, inter alia, the following order:

�Heard the learned counsel appearing for the parties. It is not in dispute that the writ petitioner is an organizing teacher and he was working since 1983 with the approval of the competent authority. He was also appointed as Teacher-in-charge on permanent basis. Although he was appointed and approved as Teacher-in-charge, in fact, he is working as Headmaster for a long time. It appears that in similar such circumstances the Hon''ble Division Bench allowed the benefit in favour of the petitioner directing the competent authority to approve him as Headmaster of the school. It is also held that the provisions of School Service Commission have no manner of application in approving the appointment of the petitioner to the post of Headmaster of the school since in terms of the circular dated 20th December, 1984, appointment of the appellant, as Headmistress of the concerned school, should have been approved as such.

In my view the ratio of the judgment squarely applies in the instant case. Accordingly the concerned District Inspector of Schools (SE), Barrackpore, is directed to take appropriate decision referring the judgment delivered in case of Shila Ghosh (Supra). The District Inspector of Schools is also directed to dispose of the matter in favour of the petitioner within six weeks from the date of communication of this order upon giving an opportunity of hearing to the petitioner and/or his authorized representative. The concerned D.I. is also directed to pass a reasoned order and to communicate the same to the writ petitioner within two weeks from the date of passing such order.

This writ petition is, thus, disposed of.�

The order impugned in this writ petition is the product of compliance with this order of the coordinate Bench.

It would now be worthwhile to note what the DIoS observed while declining the prayer of the petitioner. The DIoS noted that the (unrecognized) school upon being recognized as a 4-class junior high school with effect from May 1, 1998, the petitioner�s service was approved as an assistant teacher with effect from May 1, 1998. I may at once record that the DIoS has erred in so observing, inasmuch as memo dated August 4, 1998 [produced by Mr. Chatterjee, learned senior advocate for the sixth respondent (the said school)] reveals that approval to the appointment of the petitioner was accorded as a teacher-in-charge. The DIoS further observed that the minimum essential qualification is regular Honours with B.T./B.Ed/P.G.B.T. and 10 years� approved and continuous teaching experience in a secondary school recognised by the Board or by the West Bengal Council of Higher Secondary Education (hereafter the Council). According to the DIoS, the petitioner did not have 10 years� continuous and approved service and thus lacked the essential teaching experience at the time the junior high school was upgraded as a high school; and such deficiency was also not removed five years post upgradation. In view of such deficiency, the DIoS regretted her inability to accept the petitioner�s claim. Regarding the decision of the Division Bench in Shila Ghosh (supra), the DIoS observed that such decision was the subject matter of challenge in a special leave petition before the Supreme Court and the order dated September 4, 2012 passed by the Supreme Court makes it clear that the decision in Shila Ghosh (supra) shall not be treated to be a precedent.

The claim of the petitioner was espoused by Mr. Moitra, learned senior advocate in his own inimitable elegant style. Referring to the order of the coordinate Bench dated March 12, 2014, it was contended that the DIoS acted beyond jurisdiction in not following the said order which required her to approve the service of the petitioner as headmaster bearing in mind the decision in Shila Ghosh (supra). My attention was drawn to that part of the order of the coordinate Bench where it was observed that the ratio of the decision in Shila Ghosh (supra) squarely applied in the case of the petitioner too. There being no appeal against the order of the coordinate Bench, Mr. Moitra contended that such order was binding on the DIoS. The DIoS, it was further contended, was under an obligation to accord approval and instead of bypassing the decision in Shila Ghosh (supra) on the plea of the observation of the Supreme Court, ought to have referred the matter to the Government if at all it was felt that the order of the Supreme Court was an impediment for acknowledging the petitioner as the headmaster of the said school. It was also contended relying on several Supreme Court decisions that the decision of the Division Bench in Shila Ghosh (supra) did not have the effect of being merged in the order of the Supreme Court since the Supreme Court had not granted leave to appeal and, therefore, the decision in Shila Ghosh (supra) is the relevant law and the ratio thereof not only binds the DIoS but also this Bench. To trace the meaning of �precedent�, various other decisions of the Supreme Court were cited. Finally, it was urged that having regard to the continuous service put in by the petitioner since upgradation of the said school as its teacher-in-charge, a humanitarian approach ought to be adopted and the DIoS directed to acknowledge the petitioner as the headmaster of the said school right from the date it was upgraded and to approve his appointment as such.

The writ petition was vehemently opposed by Mr. Chatterjee. First, he contended that the said school was not a party to the earlier writ petition and hence is not bound by the order of the coordinate Bench. According to him, it is open to the school to advance the plea that this Bench is not bound by such order to the extent it has erred in recording facts and findings correctly. It was pointed out that the finding of the coordinate Bench that the petitioner �was working since 1983 with the approval of the competent authority� is absolutely wrong; approval is accorded by the DIoS only after an appointment is legally made and in this case the petitioner came to be appointed by the Organizing Committee without the prior permission of the DIoS and, thus, question of approval of the competent authority did not and could not arise. Next, referring to Memo dated May 17, 2004 issued by the DIoS approving the service of the petitioner as an assistant teacher upon the school being upgraded to a high school, it was contended that the petitioner did not at any point of time challenge the same by amending his writ petition which was pending at that point of time. The petitioner, therefore, accepted the position that his appointment had been approved as an assistant teacher but represented wrongly before the coordinate Bench that he had been appointed as teacher-in-charge on permanent basis. It was based on such misrepresentation that the petitioner obtained an order from the coordinate Bench to the effect that the ratio of the decision in Shila Ghosh (supra) squarely applies in this case, although the facts therein were entirely different, without even arraying the said school or its secretary/president as respondent. According to Mr. Chatterjee, the petitioner did not have 10 years� continuous and approved teaching experience on May 17, 2004 and the DIoS was, therefore, right in approving his service as an assistant teacher; hence, the petitioner�s claim for approval was rightly turned down by the DIoS on the ground that there was a deficiency in fulfilment of essential criterion i.e. experience.

It was also contended by Mr. Chatterjee that the facts in Shila Ghosh (supra) are substantially at variance with the facts before this Bench and, therefore, the ratio, if any, in Shila Ghosh (supra) is not applicable in the case of the petitioner. It was shown that the appellant before the Division Bench was clamouring for approval of appointment as headmistress of a junior high school and not a high school as in the present case. According to him, for inappropriate assistance, the coordinate Bench was disabled in correctly assessing the factual position in the proper perspective and consequently wrong findings have been returned which ought to be discarded in deciding this writ petition.

Referring to the order of the Supreme Court, it was submitted by Mr. Chatterjee that it was the duty of the parties to bring it to the notice of the coordinate Bench the observation of the Supreme Court on the special leave petition filed by the State of West Bengal while challenging the decision of the Division Bench in Shila Ghosh (supra). He lamented that had the said school been arrayed as a respondent, the same could have been brought to the notice of the coordinate Bench and unnecessary litigation avoided. Since the said school was not a party to the earlier writ petition, the order of the coordinate Bench would not stand in the way of the said school opposing the petitioner�s claim on merits and, accordingly, it was prayed that the writ petition be dismissed.

Since the State was not being represented, I had called upon Mr. Majumder, learned Govt. Pleader who was perchance present in Court to represent it. He responded by submitting that the order of the Supreme Court to the effect that �It shall not be treated as a precedent� refers to the decision of the Division Bench under challenge, and not the order of the Supreme Court itself. According to him, the Supreme Court had declined to grant special leave to appeal suggesting thereby that the case did not involve a substantial question of law of general importance; however, the Supreme Court was conscious that refusal to grant leave could leave room for a misunderstanding of its order as giving a stamp of approval to the order of the Division Bench and hence it was observed that the decision in Shila Ghosh (supra) would not be made applicable in any future case. He also urged that the DIoS, having been aware of such order of the Supreme Court (which was not placed before the coordinate Bench), could not have turned a blind eye to it.

Various decisions of the Supreme Court were cited by Mr. Majumder to highlight that the precedential value of a binding decision is eroded if a superior court declares that the order under challenge before it is not to be treated as a precedent.

On the merits of the writ petition, Mr. Majumder adopted the submissions of Mr. Chatterjee that the petitioner because of lack of requisite teaching experience was not entitled to any relief and prayed for its dismissal.

Mr. Moitra sought for some time to respond to the arguments of Mr. Chatterjee and Mr. Majumder. While reserving judgment on the writ petition, I granted opportunity to the petitioner to file his written note of arguments dealing with all the points raised by the learned advocates for the respondents. Such written note having been filed, the same has duly been considered.

It appears therefrom that the following points have been urged:

�1. The pronoun �It� in the last paragraph of the order of the Supreme Court is referable not to the order of the Division Bench under challenge but to the order of the Supreme Court itself;

Since the special leave petition was dismissed without granting leave to appeal, meaning thereby that the Supreme Court did not consider it fit and proper to grant leave, the order of the Division Bench retains full force within the territorial limits of this High Court and is binding on this Bench too;

The Supreme Court made it abundantly clear that the reasons given by it for dismissing the special leave petition and also findings are not binding on any authority;

Documentary evidence generated since the time the said school was recognized would reveal that the petitioner has been acknowledged as the teacher-in-charge for all purposes including his service book and, therefore, the contention of Mr. Chatterjee that the petitioner misrepresented facts before the coordinate Bench is without any basis; and

No appeal having been preferred against the order of the coordinate Bench dated March 12, 2014, it is too late in the day for the respondents to contend that the finding of the coordinate Bench is not binding on the DIoS.�

The parties have been heard at length.

Since the facts more or less are not in dispute, I did not consider it necessary to invite the respondents to file counter affidavits.

What is required to be observed first is that the doctrine of finality of decisions ought to be respected, irrespective of consequences. The coordinate Bench had passed the order dated March 12, 2014 while disposing of the earlier writ petition of the petitioner in which, inter alia, the State and the DIoS were respondents. No appeal having been preferred against such order, the same attained finality and became binding on the DIoS. The order of the Supreme Court dated September 4, 2012 on the special leave petition filed by the State against the decision in Shila Ghosh (supra) had come into existence on the date the earlier writ petition of the petitioner was disposed of. The DIoS was free to place such order of the Supreme Court through its advocate before the coordinate Bench. Not having placed such order of the Supreme Court and having suffered a finding that the ratio of the decision in Shila Ghosh (supra) squarely applies in the case of the petitioner, the order impugned in this writ petition declining the prayer of the petitioner relying on the order of the Supreme Court may have been indefensible, but for a glaring omission of the petitioner for which he himself has to be blamed. That the said school and its secretary/president were not parties to the earlier writ petition opens up the entire issue for being argued by the said school and any submission in defence of the impugned order by the said school has to be given due respect too. While it is no longer open to the State and the DIoS to find flaws in the order of the coordinate Bench, it is of course open to the said school to urge that the petitioner is not entitled to relief on the basis of the submissions made by Mr. Chatterjee. I shall, therefore, proceed to examine as to whether on the basis of the legal provisions that were prevailing at the time of first approval dated August 4, 1998 and the second approval dated May 17, 2004, the petitioner deserves an order for approval of his appointment as headmaster of the said school.

With the introduction of the West Bengal School Service Commission Act 1997, there has been a sea change in the procedure for appointment of teachers including headmasters. However, there has been no change insofar as the criterion of experience is concerned. In order to be appointed as the headmaster of a junior high school, a teacher must have 5 years� teaching experience while it is 10 years� for appointment as headmaster of a secondary school. However, such experience has to be gained by continuous and approved service in a school recognized by the Board/Council.

Memo dated August 4, 1998 issued by the DIoS does reveal that the appointment of the petitioner was approved with effect from May 1, 1998 as the teacher-in-charge of the newly recognized junior high school. Since the petitioner did not have teaching experience of 5 years� arising out of continuous and approved service, the DIoS had no other option but to approve his appointment as teacher-in-charge instead of headmaster of the junior high school. Such order was not challenged by the petitioner at any point of time. The consequence is that the petitioner was never acknowledged to be the headmaster of the junior high school.

As has been noted above, the school was upgraded from a junior high school to a secondary school vide memo dated June 6, 2000 but with effect from May 1, 2000. On the date of upgradation, the petitioner had 2 years� teaching experience arising out of continuous and approved service in a recognized school. Even on May 17, 2004 when the petitioner�s appointment in the said school on upgradation was approved as an assistant teacher, he had nearly 6 years� teaching experience. He, therefore, fell short of requisite teaching experience of 10 years� arising out of continuous and approved service.

The situation that has arisen in the present case i.e. whether or not to accord approval to the petitioner�s appointment as headmaster, is not governed by statutory rules; the gap is sought to be filled up by executive instructions being Government order no. 302 School Education (Madhyamik), dated March 5, 2001 and Government order no. 1218-School Education (Secondary), dated September 21, 2005. Such Government orders are in vernacular and the translated version thereof read as follows:

�Letter No: 302 School Education (Madhyamik)

Dated: Calcutta, 5.3.2001

To: Director of School Education, Govt. of West Bengal

Sub: Guidelines regarding appointment of Teacher-in-Charge of Primary School to the Post of Head Master of Secondary School.

Pursuant to the directions of the concerned authority, in connection with the subject matter of the letter being G.A. No. 148 dated 18.1.2001 A.D. last of the Director of School Education, this is to inform that the post of the Teacher-in-Charge of Primary School is separate and temporary. However, in the Government Order, the qualifications have been mentioned specifically for the post of Head Master.

Any such primary school wherein the Head Master has the required qualifications and if that Head Master has the qualifications and experience required for the Head Master of High School � then, in that case if the Primary School is converted to a High School, then that Head Master, referred hereinabove, shall be considered as the Head Master of the newly converted High School. If the qualifications and experience of that Head Master does not match with the qualifications and experience required for the Head Master of High School, then he will remain in charge of the High School as the Teacher-in-Charge. If he is able to make up the deficit within three years, then he will be given approval for the post of Head Master, subject to the consent of the District Inspector of Schools (Sec. Education).�

And

�No. 1218-School Education (Secondary) Dated: 21.9.2005

To: Director of School Education, Government of West Bengal.

Subject: Guidelines regarding appointment of Teacher-in-Charge of Primary School to the post of Head Master of Secondary School.

Pursuant to the directions of the concerned authority, the portion of the Government Order No. 302 School Education (Secondary) dated 5th March, 2001 published by the Secondary Education Department, that has been amended is given hereunder.

If a Primary School is converted to a Higher Secondary School and if the Head Master or Head Mistress of that school does not have the qualifications and experience required for the post of Head Master or Mistress of that newly converted High School, then he/she will remain as the Teacher-in-Charge of the High School. If he/she is able to make up the deficit within a period of five years then he/she will be approved as the Head Master/Head Mistress of the High School subject to the approval of the District Inspector of Schools (Secondary Education).

The other conditions of the earlier order remain unchanged.�

The said Government orders read together would reveal that the petitioner had 5 years� time from May 1, 2000 to fulfil the essential eligibility qualifications. The petitioner could not have gained 10 years� teaching experience arising out of continuous and approved service prior to April 30, 2008 and, therefore, the relief as claimed in his earlier writ petition, extracted supra, could not have been granted. It is axiomatic that the right to relief ordinarily relates back to the date of presentation of the writ petition and on the date the earlier writ petition was presented, the petitioner lacked the requisite experience to hold the post of headmaster of the said school. The coordinate Bench, it seems, was persuaded to direct the DIoS to take appropriate decision upon considering the decision in Shila Ghosh (supra) and to dispose of the matter in his favour upon granting opportunity of hearing obviously because of lack of appropriate assistance. Be that as it may, the said school not being a party in the earlier round of litigation is entitled to assert that any observation made by the coordinate Bench is not binding on it and therefore, the claim of the petitioner has to be decided independent of any finding given by it.

I have perused the decision in Shila Ghosh (supra). In the light of the submissions advanced by Mr. Chatterjee, I am ad idem with Mr. Chatterjee that the facts in Shila Ghosh (supra) were not identical to the facts at hand. It is settled law that an additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. I am, therefore, of the considered opinion that the petitioner can derive no advantage from the observation of the coordinate Bench that the ratio of the decision in Shila Ghosh (supra) squarely applies in the instant case. This is apart from acceptance of the contention of Mr. Chatterjee and Mr. Majumder that the decision in Shila Ghosh (supra) should not be relied on as precedent in view of the order of the Supreme Court dated September 4, 2012. I am afraid, I cannot agree with Mr. Moitra that the pronoun �It� is referable to reasons given by the Supreme Court for not entertaining the special leave petition and not to the order of the Division Bench under challenge. A pronoun usually follows a noun and if the order of the Supreme Court is read in its entirety, it does not leave me in any kind of doubt that although the Supreme Court declined to interfere with grant of relief in favour of the respondent before it but made it clear that the decision of the Division Bench would not be a precedent for future cases, meaning thereby that future cases, even though similar, would have to be decided on its own merits without being influenced by the precedential value, if any, of the decision in Shila Ghosh (supra).

The claim of the petitioner is distinct having no similarity with any other decided case which has been brought to my notice and has been decided bearing in mind the Government orders referred to above.

The order of the DIoS does not merit interference not because of the reasons assigned therein but for the foregoing reasons.

In the result, I hold that the petitioner is not entitled to any relief and the writ petition stands dismissed. There shall be no order as to costs.

Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.