Calcutta High Court (Appellete Side)
Sanghamitra Bhattacharya vs Sudeshna Kar & Ors on 11 May, 2022
MAT 612/2022 Page 1 of 37
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
M.A.T. 612 OF 2022
With
CAN 1 OF 2022
Sanghamitra Bhattacharya
Vs.
Sudeshna Kar & Ors.
Appearance:
For the Appellant : Mr. Kalyan Bandopadhyay, Adv.
Mr. Jayotosh Mujumdar, Adv.
Mr. Arjun Roy Mukherjee, Adv.
Mr. Sougata Mitra, Adv.
Mr. Rameshwar Sinha, Adv.
For the Petitioners : Mr. Abhratosh Majumdar, Adv.
Mr. Shubra Prakash Lahiri, Adv.
Mr. Kausheyo Roy, Adv.
MAT 612/2022 Page 2 of 37
For the WBCSSC : Mr. Sutanu Kumar Patra, Adv.
Ms. Supriya Dubey, Adv.
For the State : Mr. Supriya Chattopadhyay, Adv.
Mr. Sabyasachi Mondal, Adv.
Judgment On : 11.05.2022
Harish Tandon, J.:
The present appeal is directed against a judgment and order dated
31st March, 2022 passed by the Single Bench in WPA 2133 of 2022 whereby
and whereunder the appellant was directed not to discharge duties and
functions as Assistant Headmistress of Kamala Vidyamandir High School for
Girls (HS) nor shall sign any papers and documents including the
attendance register in such capacity in the said school. The order impugned
runs thus:-
"The fundamental question involved in this matter is how
one Assistant Headmistress can be transferred from one school
to another school as Assistant Headmistress.
The school does not require any Assistant Headmistress as
has been shown before me by the learned advocate for the
petitioners and it was supported by the Managing Committee of
the Kamala Vidyamandir High School for Girls (H.S) that the
school has now 355 students. An Assistant Headmistress can be
appointed if the students strength of the school is above 750
and not below that. Therefore, the school need not have any
MAT 612/2022 Page 3 of 37
Assistant Headmistress and the Central School Service
Commission is directed to post the Respondent No.8 as an
assistant teacher in any other school by giving her pay
protection which is to be looked into by the Commissioner of
School Education as she was once selected as Assistant
Headmistress of a school. The Respondent no.8 being the said
Assistant Headmistress from today shall not be the Assistant
Headmistress of Kamala Vidyamandir High School for Girls (H.S)
and she shall not sign any papers or documents including
attendance register as the Assistant Headmistress of the school
or as the Teacher-in-Charge of the school from today.
With this observation and direction this writ application is
allowed."
It appears from the impugned order that apart from the restrain
having created upon the appellant in discharging duties as Assistant
Headmistress or the Teacher-in-Charge, the West Bengal Central School
Service Commission was also directed to post the appellant as Assistant
Teacher in any other school with pay protection. Therefore, the pivotal issue
involved in the instant appeal is whether the writ court can pass an order
demoting the appellant to the post inferior to the post which she held
without following and/or keeping adherence to the statutory Rules or end
provisions of law applicable thereto.
Indubitably, the appellant was appointed as Assistant Teacher in
Garden Reach Nutbehari Das Girls High School on November 3, 1997 which
was duly approved by the DI of Schools (S.E) on 4th February, 1998.
Subsequently, the post of the Assistant Headmistress was duly sanctioned
vide Memo No. 4G-633/80 dated 6th September, 2010 by the then Director
of School Education, West Bengal. Pursuant to the sanction of the said
post, the Selection Committee was constituted and the process of selection
was initiated for filling up the said sanction post of Assistant Headmistress.
The appellant offered her candidature for such post and passed all the tier
of examination conducted by the Selection Committee and the D.I. of
Schools (S.E.), Kolkata approved the panel and appointed the appellant in
such post. Initially, the said appointment was for a period of two years
which was confirmed on 11th September, 2013. Subsequently, the appellant
was transferred from the said school to Sumatinagar Sarat Kumari High
School (HS) on administrative grounds. Since the said school where such
transfer was made is situated at a distant place i.e., Sagar, the appellant
challenged the said order by filing a writ petition being WP 10053 (W) of
2019 before this Court. The primary ground for challenge was that the
order of transfer depicted that the transfer is made at transferee school as
Assistant Teacher though she held the post of the Assistant Headmistress
which is impermissible. The further challenge was made that the transferee
school is at the distant place and she has to commute more than 215 km for
her residence being a patient suffering from various ailments.
At the time of argument, the reliance was placed upon a notification
dated March 12, 2018 issued by the School Education Department,
Secondary Branch, Government of West Bengal which postulates that the
transfer shall only be effected against the sanction post and the post to
which the transfer is recommended shall be of the same category of pay and
medium of instructions as the teacher held.
So far as the first ground of challenge was concerned, the writ court
noticed that subsequently a corrigendum was issued on March 8, 2019 by
the West Bengal Board of Secondary Education as well as the West Bengal
Central School Service Commission correcting the designation of the
appellant in supersession of the earlier order of transfer. So far as the
second ground of challenge was concerned, the Court did not find such
ground to be tenable and directed the appellant to join the transferred post
as Assistant Headmistress immediately and liberty was granted to the
appellant to make a representation before the Commissioner of School
Education raising her difficulties on account of illness and also to regularise
the period of her absence between the order of transfer and the date of
joining.
This said order was carried by way of intra-Court appeal before the
Division Bench in MAT No. 1077 of 2019. The order of the writ court was
modified to the extent that the moment liberty is granted to the appellant to
make representation to the Commissioner of School Education, it is
expected that the said authority would consider the said representation
within the stipulated time after giving an opportunity of hearing to the
appellant, if necessary; but till the final decision is taken on such
representation, the order of transfer should not be insisted upon.
Pursuant to the said order, the Commissioner of School Education,
West Bengal considered and passed the order on 24.10.2019 with
categorical finding that the order of transfer was made on administrative
ground as per the instruction issued by the School Education Department.
The said authority was of considered opinion that in view of Clause 7 of the
Notification dated 12.3.2018, the Commissioner of School Education is
authorised to deal with any dispute arising in the process of effecting such
transfer i.e., to tackle with the administrative difficulties in implementing
the Government order but not a case where the difficulties are faced by the
appellant on personal ground and, therefore, he is not competent to grant
any relief. However, the liberty was given to the appellant to approach the
School Education Department for consideration of her prayer to transfer the
appellant to school in North Kolkata instead of South 24-parganas on
administrative ground. Liberty was further granted to the appellant to
approach the competent authority for addressing her grievance pertaining to
her absence as a special leave.
In terms of the said order, the president of the West Bengal Board of
Secondary Education issued a further transfer order dated 17th December,
2009 transferring the appellant from Garden Reach Nutbehari Das Girls
High School to Sailandra Sarkar vidyalaya but subsequently this transfer
order was cancelled and by an order dated 18th December, 2019 the
appellant was transferred to the present school i.e., Kamala Vidyamandir
High School for Girls, Kolkata as Assistant Headmistress. It further appears
that the Central School Commission also recommended the transfer of the
appellant to the said school which would be evident from the documents
annexed to the application for stay. In compliance of the order of transfer
the appellant joined the present school on 2nd January, 2022 and is a still
posted therein.
In the meantime, the Joint Secretary to the Government of West
Bengal informed the appellant that her absence has been regularised by the
Governor by treating the same as spent on duty. The President of the
School vide letter dated 31st December, 2020 directed the appellant to act as
a Teacher-in-Charge w.e.f, 1st January, 2021 as the Headmistress of the
said school is due to retire on the next date. The said order was duly
approved by DI of Schools (S.E), Kolkata. It appears from the pleading that
several allegations and non-cooperation were levelled against the appellant
and the matter reached to the Board and the competent authority directed
the president to call a meeting to resolve such dispute in order to maintain
congenial atmosphere in the school. Thereafter, the private respondents
herein filed a writ petition WPA 2133 of 2022 not only challenging the order
of transfer dated December 18, 2019 but also seeking a mandamus directing
the respondent authorities to take a necessary disciplinary action on the
basis of the complaint lodged against her. By the impugned order, the said
writ petition has been disposed of which is challenged in the instant appeal.
Mr. Kalyan Bandopadhyay, Learned Senior Advocate appearing for the
appellant challenged the impugned order primarily on the ground that the
writ court cannot usurp the power of the authorities and inflict the penalties
neither contemplated in the relevant Rules nor even prayed for in the
instant writ petition. He further submits that the West Bengal Board of
Secondary Education (appointment, confirmation, conduct and discipline of
teachers and non-teaching staff) Rules, 2018 (hereinafter referred to as
"Disciplinary Rules" for the sake of convenience) which came into effect on
8th March, 2018 contains the exhaustive provisions pertaining to a
disciplinary proceeding against the teachers and non-teaching staff as well
as the penalties to be imposed in the event, the article of charges are proved.
He vociferously submits that the penalties contemplated under the said
Rules does not provide for demotion and, therefore, any penalty which is de
hors the said provisions of law cannot be imposed by the writ court. He
further submits that the transfer was effected on an administrative ground
and not on the basis of an application filed by the appellant and, therefore,
the other Rules pertaining to general transfer has no manner of application.
He arduously submitted that the impugned order is unsustainable as the
writ court has travelled beyond the conceivable restraint self-imposed by the
courts in exercise of powers under Article 226 of the Constitution.
According to him, the writ court cannot sit as a court of appeal over the
views of the competent authority and substitute its own view treating itself
to be such competent authority and placed reliance upon a judgment of the
Supreme Court in case of State of W.B. and Ors. -vs- Manas Kumar
Chakraborty and Ors. reported in (2003) 2 SCC 604. Mr. Bandopadhyay
further submits that though the power to issue writs of mandamus under
Article 226 of the Constitution of India is wide enough to reach as even the
injustice is done which is distinct from the power of prerogative writs issued
by the English Courts because of the unique expression "nature" used
therein as held in Secretary, Cannanore District Muslim Education
Association, Karimbam vs. State of Kerala and Ors., reported in (2010)
6 SCC 373 but the court should not substitute itself in place of an authority
as it would tantamount to transgression or usurpation of competence as
held in Manohar Lal (Dead) by Lrs. Vs. Ugrasen (Dead) By Lrs. and Ors.
reported in (2013) 5 SCC 453. By relying upon a judgment of the Apex
Court in case of State of Kerala and Ors. vs. Kandath Distilleries,
reported in (2013) 6 SCC 573. Mr. Bandopadhyay, the learned Senior
Advocate submits that though the High Court is not powerless to deal with
the particular situation but while dispensing the justice should not break or
bent the law as it would amount to transgression of its power and overreach
the domain of an authority. On the same proposition that the High Court
should not have taken over the function of the authorities, Mr.
Bandopadhyay, learned Senior Advocate relies upon the another judgment
of the Supreme Court in case of D.N. Jeevaraj vs. Chief Secretary,
Government of Karnataka and Ors., reported in (2016) 2 SCC 653. Mr.
Bandopadhyay is very much vocal in his submission and attacked the
finding returned by the Single Bench in relegating the appellant from the
post of the Assistant Headmistress to the Assistant Teacher with pay
protection, in contending that the Single Bench has, in fact, introduced the
concept of reduction in rank solely by protecting the scale of pay which
cannot be termed as an equivalent post and relied upon a decision of the
Supreme Court in case of Vice-Chancellor, L.N. Mithila University vs.
Dayanand Jha, reported in (1986) 3 SCC 7 and Tejshree Ghag and Ors.
Vs. Prakash Parashuram Patil and Ors., reported in (2007) 6 SCC 220.
Mr. Bandopadhyay, thus, submits that the court cannot inflict any
punishment, not contemplated in the disciplinary Rules nor can substitute
itself with the competent authority upon whom, the power is conferred
under the statutory Rules nor can pass an order not contemplated therein
in exercise of the powers conferred under Article 226 of the Constitution of
India. In addition to the aforesaid submission, Mr. Bandopadhyay, the
learned Senior Advocate further submits that there was no dispute over the
appointment of the appellant upon transfer to the post of Assistant
Headmistress but the real cause behind the filing of the writ petition by the
teaching and non-teaching staff of the said school is when the head of the
institution entrusted upon the appellant to act as a Teacher-in-Charge
which is obviously temporary in nature as they thought that one amongst
them shall lose the opportunity to act in such capacity.
Mr. Majumdar, the learned Senior Counsel appearing for the private
respondents submits that there is no impediment on the part of the teaching
and non-teaching staff of the school to maintain a writ petition challenging
an order which is per se illegal. He further submits that the plea of locus
has been considered liberally with an avowed object to remedy the legalities
and/or the injustice perpetuated by the authority and placed reliance upon
a judgment of the Full Court of this court in case of Prabhat Pan and ors.
vs. State of West Bengal and Ors., reported in AIR 2015 Calcutta 112.
Mr. Majumdar, learned Senior advocate further submits that Section 10C of
the West Bengal School Service Commission Act, 1997 provides for a
transfer on twin grounds, firstly, in the interest of the education and
secondly, in the interest of public but such transfer from one school to
another should be made against the sanctioned post. He further relied upon
a Memo dated 10th July, 2002 issued by the School Education Department,
Government of West in support of his contention that the post of Assistant
Headmaster/ Assistant Headmistress can only be filled up by the Managing
Committee/ad-hoc Committee/ Administrator from amongst the sanctioned
strength of a teaching staff subject, however, to the prior permission of the
D.I. of Schools (SE) against the sanctioned post. According to him, the
Headmaster/ Headmistress cannot be appointed in high/high madrasah
unless the roll strength exceeds 750 or above for three consecutive years
and for Higher Secondary Institutions including Madrasah with Higher
Secondary Courses unless the roll strength exceeds 1000 or above for three
consecutive years. He, thus, submits that the total strength of the students
in the said school is far below the bench mark and, therefore, such
appointment is contrary to the Memo dated 19th May, 2004. To conclude,
Mr. Majumdar, the learned senior advocate submits that in view of the
aforesaid Memos it is evident that there cannot be an appointment to the
post of Assistant Headmistress in the said school because of the roll
strength nor such appointment can be made upon transfer as there was no
sanctioned post of the Assistant Headmistress. He further submits that
there is a different modalities of effecting transfer and if the transfer is made
on an application at the behest of the teacher, such transfer is to be routed
through a set procedure and not in the fashion as has been done in the
instant case.
Mr. Sutanu Patra, learned advocate appearing for the Central School
Service Commission submits that the transfer was made on an
administrative ground envisaged under Section 10C of the West Bengal
School Service Commission Act and, therefore, the other provision relating
to a general transfer on an application by the teacher is inapplicable. He
further submits that there is no impediment on the part of the Central
School Service Commission in recommending the transfer and the moment
sanction is granted by the competent authority it led to a transfer against
the sanctioned post.
The learned advocate appearing for the State has virtually echoed the
submission of the appellant and the Central School Service Commission. It
is submitted that the writ court cannot pass an order de hors the statutory
Rules and the provisions of law nor can issue a writ of mandamus
commanding the competent authorities to act contrary to law.
On the conspectus of the pleadings, submissions and the arguments
advanced at the bar, we find two primary questions involved in the instant
appeal, firstly, whether the recommendation of the West Bengal Central
School Services Commission and approval by the D.I. of Schools (HS)
proposing a transfer of an Assistant Headmistress is legally sustainable if
the same is not against a sanctioned post, secondly, whether the writ court
can usurp the power of the authorities under the relevant Rules and pass an
order inflicting the punishment which is not contemplated in the
disciplinary Rules or whether the court can impose a punishment de hors
the procedures and norms provided in the statutory Rules substituting itself
with the disciplinary authority by ignoring the aforesaid procedures.
Question No.1
Before we proceed to determine the aforesaid question, a little prelude
to the laws enacted and made applicable within the State of West Bengal
concerning the education, its policies and the regulation are required to be
recapitulated. West Bengal Secondary Education Act, 1950 and West Bengal
Secondary Education (Temporary Provisions) Act, 1954 which were
occupying the field for nearly a decade were subsequently repealed upon
promulgation of West Bengal Board of Secondary Education Act, 1963 which
received the assent of the Governor and published in the extraordinary
Gazette on 28th February, 1963. Apart from the constitution of a Board,
Committees and their respective functions of its constituents, Section 45
thereof empowers the State Government to make Rules in relation to a
diverse fields of education for its sustenance, development and permission
as well as appointment, determination of scale of pay and other benefits and
emoluments including the terms and conditions of the service as
exhaustively provided therein. By virtue of the said Rule making power,
more particularly, to sponsor recognition and the control and management
of the various educational institutions, Management of Sponsored
Institutions (Secondary Rules, 1972) was framed imbibing within itself the
constitution of the committees and their duties, powers and the roles. The
said Rule further provides the duties and responsibilities of the various
authorities and the manner of their appointment so that a healthy and
congenial atmosphere can be created in the educational sector.
Subsequently, the West Bengal School Service Commission Act, 1997 was
enacted to provide for the constitution of the Regional School Service
Commission and Central School Service Commission in West Bengal for
diverse matters connected therewith and incidentally thereto. Section 2 (p)
of the said Act defines "Teacher" as follows:
"Teacher means an Assistant Teacher or any other person,
holding a teaching post of a school and recognized as such by
the Board or the Council as the case may be, and includes the
Headmaster or the Headmistress but shall not include the
Assistant Headmaster or the Assistant Headmistress or the
Teacher holding a post against short-term vacancy caused by
deputation, leave or lien."
From the bare look of the said definition clause Assistant Headmaster
or the Assistant Headmistress or the teacher holding a post against short-
term vacancy caused by deputation, leave or lien are excluded from the
purview of the said definition. However, the said Act has undergone a sea
change for various amendments having brought from time to time to which
we are not concerned with in relation to a subject dispute except the
amendments which have been brought in relation to a general transfer and
the transfer on special grounds. Section 10B was introduced by way of an
amendment having brought in the year 2013 providing an opportunity to an
eligible teacher to apply for transfer and the Central commission to
recommend such transfer in the same category of vacant post on such
conditions as may be prescribed. Section 10C which is harped upon by the
respective parties and appears to have some relevance empowers the State
Education Department of the State Government to direct the commission to
make recommendation for placing any teacher including Assistant
Headmaster or any non-teaching staff including the librarian from one
school to another school against any sanctioned posts on twin grounds,
firstly in the interest of education and secondly in the interest of public. The
later amended provision is an exception to Section 10B and gives somewhat
unbridled powers to the State Government through the School Education
Department to issue direction upon the commission for transfer of any
teacher including the Assistant Headmasters/Assistant Headmistress
against any sanctioned posts having necessitated by the interest of
education or public. The said provision is not dependant upon the choice of
the teacher nor required any application to be taken for transfer but such
power is vested upon the State Government to direct the commission to
recommend the transfer on those specified grounds.
Though the definition of a teacher in West Bengal School Service
Commission Act, 1997 excludes the Assistant Headmasters/Assistant
Headmistress but by virtue of a subsequent amendment having brought
such definition has been expanded and encompasses within itself the
Assistant Headmaster or Assistant Headmistress. We do not delve to go
deep into the matter on the legislative competence of the State in
incorporating something in departing from the parent Act nor any of the
parties appearing before us have taken such plea. The undisputed facts
discerned from the said amended provision, namely, Section 10C conveys
the manifest intention of the legislature that the State Government through
its School Education Department is empowered to transfer the Assistant
Headmasters/Assistant Headmistress on the ground envisaged therein and
direct the Commission to make recommendation. Though a plea was feebly
taken before us that the order of the School Education Department
transferring the appellant was issued first followed by the recommendation
of the Central School Service Commission but we do not find any
discrepancies in this regard as the language employed in the said Section is
plain, unambiguous and clear that the State Government through the
School Education Department may issue direction upon the commission to
recommend such transfer which necessarily implies that the
recommendation would follow the mandate of the State through such
department. Be that as it may even when the said amendment has not been
brought within the said Act of 1997, the guideline vide Memo No. 1628-
G.A./OM-18/2001 dated 10th July, 2002 was issued by the School
Education Department, Government of West Bengal for recruitment of the
Assistant Headmasters/Assistant Headmistress of the recognised aided non-
Government Secondary Schools/Higher Secondary Schools, Government
Sponsored Schools and all types of recognized and aided Madrasah.
Paragraph 2 of the said guidelines manifestly created an obligation on
the Headmaster or the Headmistress or Teacher-in-Charge upon receiving
the prior permission from the Dist. Inspector of Schools (SE) to fill up the
post of Assistant Headmasters/Assistant Headmistress to notify and collect
the applications from the approved and willing teacher(s) of his/her
Institution, who had the requisite qualifications enumerated therein.
Paragraph 3 thereof contemplates the permission of the Selection
Committee with its constituents and the exhaustive provisions concerning
the suitability of the candidates for such posts subsequently, by Memo No.
671-SE(S)/ 1A-1/2004 dated 19th May, 2004 was issued by the School
Education Department, Secondary Branch, Government of West Bengal
indicating the necessity of appointment of the Assistant
Headmasters/Assistant Headmistressin high school/high madrasah and
Higher Secondary School and/or Higher Secondary Madrasah where the roll
strength exceeds 700 or above and 1000 or above respectively for three
consecutive years. It was further indicated that the creation of such posts
in any School shall have to be approved by Director of School Education
which has been re-designated as the commissioner of School Education.
It is, thus, apparent from the aforesaid the provisions that initially
the Assistant Headmasters/Assistant Headmistress were excluded from the
purview of the definition assigned to teacher in West Bengal School Service
Commission Act, 1997 but by subsequent Rules the intention is manifest
that the aforesaid Rules have been extended to such posts within the
category of the teacher. The aforesaid impression gets further impetus from
the West Bengal Board of Secondary Education (Appointment, Confirmation,
Conduct and Discipline of teacher and non-teaching staff) Rules, 2018 while
defining the "misconduct" under Rule 2(m) thereof. The note appended
thereto in relation to teacher includes Assistant Headmaster or Assistant
Headmistress. Thus, it is beyond cavil of doubts that the said displinary
Rules concerning the teacher or non-teaching staff is also applicable to the
Assistant Headmasters/Assistant Headmistress though not coming within
the strict meaning of the teacher under the relevant Act. The conjoint
reading of the aforesaid provisions as enumerated hereinabove leaves no
ambiguity that the Assistant Headmasters/Assistant Headmistress can be
appointed in a school from the willing teachers of the said institution
provided the post is sanctioned by the competent authority subject,
however, to the fulfilment of the eligibility criterion enshrined therein.
Section 10C of the Act of 1997 brought subsequently conveys the manifest
intention of the legislature that such category of persons can be transferred
to any other school in the interest of the education and/or public against
the sanctioned post.
The Memo dated 19th May, 2004 creates an embargo in appointment
to such post depending upon the roll strength of the students as well as the
creation of such post in any educational institutions. It is no longer res
integra that the authorities cannot act de hors the statutory provisions nor
can effect the transfer in contravention thereto. The harmonious reading of
the provisions contained in the Act, Rules and the memo issued from time to
time by the competent authority exposes the legislative intention that
though the transfer can be effected from one school to another but against
the sanctioned post and therefore, any order of transfer which contravenes
the statutory provisions or the mandate of law, if challenged, should not
receive the sanction of the court or its blessing solely on the ground of locus.
The powers of the writ court cannot be understood to give sanction to the
action of the statutory authorities but to bring within the precincts of law.
Whenever, the injustice is found, such injustice cannot get away solely on
the ground of locus.
In the instant case, it is not in dispute that there was no sanctioned
post of the Assistant Headmistress in Kamala Vidyamandir High School for
Girls (HS) and, therefore, such transfer is contrary to Section 10C of the
West Bengal School Service Commission Act, 1997. The Memo dated 19th
May, 2004 is expressed in the sense that such posts cannot be created nor
any appointment can be made if the roll strength as indicated therein is
absymally low. It appears from the pleading that the roll strength of the
school is absymally low nor there is any document is coming before us that
the commissioner of the School Education has sanctioned and approved the
post of the Assistant Headmasters previously. If the law requires such
transfer to any sanctioned posts, merely by issuing an order of transfer such
post cannot be presumed to have been created and/or approved by the
commissioner of School Education being the competent authority in this
regard. We, thus, have no hesitation to hold that order of transfer issued in
favour of the appellant is per se illegal and contrary to the provision of the
law and is, therefore, quashed and set aside. The question no.1 is answered
accordingly.
Question No.2
The aforesaid question was necessitated because of the nature of the
impugned order passed by the Single Bench directing the authority to post
the appellant as assistant teacher in any other school keeping the pay
protection as she was one selected as the Assistant Headmistress of the
school. It is nobody's case; rather it has been admitted by the respective
counsels that the mode of selection and the nature of duties and functions
of the respective posts are distinct and different. It would be evident from
the Memo dated 10th July, 2002 that the post of Assistant
Headmasters/Assistant Headmistress is separate and independant post and
not akin or equivalent to the post of assistant teacher. The modalities of the
selection to such post is also distinct for the simple reason that such post
can only be filled up on an application of the approved and willing teachers
of the institutions who are graduates with honours including a special
honours or holding master degree with 2 years course having 5 years
teaching experience in a Junior High School/Secondary Institution. The
expression "approved" has been clarified to mean having service in an
educational institution recognized by West Bengal Board of Secondary
Education/ West Bengal Council of Higher Secondary Education including
the West Bengal Madrasah Education Board which received sanction from
the D.I. of Schools (SE) of the concerned district. It is further indicated that
apart from the said qualification, the said approved teacher must hold the
regular B.T. /B.Ed./P.G.B.T. Degree/ Diploma Certificate such qualification
having included therein make such post distinct and different from the post
of the assistant teacher. It is apparent from the said Memo dated 10th July,
2002 that the approved teachers having such requisite qualification are
entitled to be posted as Assistant Headmasters/Assistant Headmistress in
the educational institutions. The mode of the selection is also indicated
therein which leads to an inevitable conclusion that such post is not
equated with the post of the assistant teacher; rather the assistant teachers
who showed their willingness for the post of Assistant Headmasters/
Assistant Headmistress can only be appointed to such post provided they
fulfil the eligibility criterion and found successful in the selection process.
The duties and responsibilities of the Assistant Headmasters/Assistant
Headmistress is evidently different from the duties and responsibilities of
the assistant teacher which is evident from Rule 23 (B) of the Management
of Sponsored Institutions (Secondary) Rules, 1972. It would be apposite to
quote the aforesaid provision which runs thus:
"23B. Powers and duties of Assistant Headmasters/Assistant
Headmistress of an institution.- (1) The Assistant Headmaster or the
Assistant Headmistress of an institution, subject to any order of the
Government or the Director of School Education or the Board or the
District Inspector of Schools (Secondary Education) of the district or
the Additional District Inspector of Schools (Secondary Education) of
the concerned Sub-Division, shall, with the approval of the Head of
Institution, perform the following functions and discharge the
following duties:-
(a) To maintain daily class routine and provisional routine, if
required;
(b) To prepare routine for examination in the institution;
(c) To conduct the continuous comprehensive evaluation of
students;
(d) To maintain progress reports of students;
(e) To hold parent-teacher meetings;
(f) To prepare reports on drop out of students and take remedial
measures for checking drop out;
(g) To conduct remedial teaching for the slow learners;
(h) To assist the Head of Institution to monitor as to whether
Assistant Teachers are taking classes as per syllabus and
curriculum;
(i) To follow the provision of law relating to the right to
education as laid down in the Right of Children to Free and
Compulsory Education Act, 2009 in respect of elementary
education, if the institution imparts elementary education;
(j) To obey any other general or specific order of the Government
or the Director of School Education or the Board or the
District Inspector of Schools (Secondary Education) of the
district or the Additional District Inspector of Schools
(Secondary Education) of the concerned Sub-Division, or the
Head of Institution in the interest of education;
(k) To officiate in the post of Headmaster or Headmistress during
the temporary vacancy in the post of Headmaster or
Headmistress.
(2) The head of institution shall perform the duties as referred in
clause (1), in absence of Assistant Headmasters/Assistant
Headmistress in an institution."
It is evident from the aforesaid Rule that the powers and duties of the
Assistant Headmasters/Assistant Headmistress in an institution is to
oversee the daily management of the functioning of the school and remedial
measures to be taken in this regard and in absence of the Headmaster or
Headmistress may officiate during such interregnum period to such post.
The aforesaid disclosure leads to an inescapable conclusion that the post of
the Assistant Headmasters/Assistant Headmistress is occupying the field in
between the assistant teacher and the headmaster. The mode of selection
the powers and duties as well as the scale of pay being different it invites an
apparent distinction with the post of the assistant teacher which appears to
us to be an independent post. Though it is contended that it is a
promotional post as it had an independent source of appointment but from
paragraph 2 of the said Memo dated 10th July, 2002 the position appears to
be different. The post of Assistant Headmasters/Assistant Headmistress
can only be filled up on an application of the approved and willing teachers
of the said institutions which obviously leads to an inference that such
teachers are holding a post of assistant teacher in the said educational
institution.
Such being the conclusion whether the writ court in exercise of power
or judicial review can usurp the duties, functions and the powers of the
statutory authority and/or bypassing the statutory Rules can inflict the
punishment de hors such statutory Rules. In other words, whether the writ
court can issue a writ of mandamus in such manner which impliedly
overrides the statutory provisions in so called artificial pursuit of imparting
justice.
The power of the writ court to issue a writ of mandamus can trace its
origin from the common law remedy based on the royal authority. It was
widely used by the courts in England in the public law domain to prevent
injustice in the form of a prerogative writ. After the adaptation of the
Constitution of India, there has been a several discourses at various corners
including the court whether the power of the court to issue writ of
mandamus is akin and /or somewhat similar to the powers enjoined by the
courts in England in prerogative writs. In Secretary, Cannanore District
Muslim Educational Association (supra), the Apex Court has succinctly
narrated the distinction and the nature of the writs issued by the Indian
Courts under the Constitution to be somewhat different and wide in its
nature in the following paragraphs:
35. In Dwarka Nath v. Ito a three-Judge Bench of this Court
commenting on the High Court's jurisdiction under Article 226
opined that this article is deliberately couched in comprehensive
language so that it confers wide power on the High Court to
"reach injustice wherever it is found". Delivering the judgment
Justice Subba Rao (as His Lordship then was) held that the
Constitution designedly used such wide language in describing
the nature of the power. The learned Judge further held that
the High Court can issue writs in the nature of prerogative writs
as understood in England; but the learned Judge added that the
scope of these writs in India has been widened by the use of the
expression "nature".
36. The learned Judge in Dwarka Nath made it very clear that
the said expression does not equate the writs that can be issued
in India with those in England but only draws an analogy from
them. The learned Judge then clarifies the entire position as
follows:
"4. ... It enables the High Courts to mould the reliefs the
meet the peculiar and complicated requirements of this
country. Any attempt to equate the scope of the power of
the High Court under Article 226 of the Constitution with
that of the English courts to issue prerogative writs is to
introduce the unnecessary procedural restrictions grown
over the years in a comparatively small country like
England with a unitary form of Government to a vast
country like India functioning under a federal structure.
Such a construction defeats the purpose of the article
itself."
37. The same view was also expressed subsequently by this
Court in J. R. Raghupathy v. State of A.P Speaking for the
Bench, Justice A.P. Sen, after an exhaustive analysis of the
trend of Administrative Law in England, gave His Lordship's
opinion in para 29 at p. 1697 thus:
"30. Much of the above discussion is of little or
academic interest as the jurisdiction of the High Court to
grant an appropriate writ, direction or order under Article
226 of the Constitution is not subject to the archaic
constraints on which prerogative writs were issued in
England. Most of the cases in which the English courts
had earlier enunciated their limited power to pass on the
legality of the exercise of the prerogative were decided at a
time when the courts took a generally rather
circumscribed view of their ability to review ministerial
statutory discretion. The decision of the House of Lords in
Padfield case marks the emergence of the interventionist
judicial altitude that has characterised many recent
judgments."
38. In the Constitution Bench judgment of this Court in LIC v.
Escorts Ltd. This Court expressed the same opinion that in
constitutional and Administrative Law, law in India forged ahead of
the law in England (SCC p.344, para 101).
39. This Court has also tgaken a very broad view of the writ of
mandamus in several decisions. In Comptroller and Auditor General
of India v. K.S. Jagannathan a three-Judge Bench of this Court
referred to Halsbury's Laws of England, 4th Edn., Vol. I, para 89 to
illustrate the range of this remedy and quoted with approval the
following passage from Halsbury about the efficacy of mandamus:
"89. Nature of mandamus.- is to remedy defects of justice;
and accordingly it will issue, to the end that justice may
be done, in all cases where there is a specific legal right
and no specific legal remedy, for enforcing that right; and
it may issue in cases where, although there is an
alternative legal remedy, yet that mode of redress is less
convenient, beneficial and effectual."
"20. ... and in a proper case, in order to prevent injustice
resulting to the parties concerned, the court may itself
pass an order or give directions which the Government or
the public authority should have passed or given had it
properly and lawfully exercised its discretion."
40. In a subsequent judgment also in Andi Mukta Sadguru Shree
Muktajee Vandas Swamii Suvarna Jayanti Mahotsav Smarak Trust v.
V.R. Rudani this Court examined the development of the law of
mandamus and held as under:
"22. .. mandamus cannot be denied on the ground that the
duty to be enforced is not imposed by the statute.
Commenting on the development of this law, Professor de
Smith states: "To be enforceable by mandamus a public
duty does not necessarily have to be one imposed by
statute. It may be sufficient for the duty to have been
imposed by charter, common law, custom or even contract.'
We share this view. The judicial control over the fast
expanding maze of bodies affecting the rights of the people
should not be out into watertight compartment. It should
remain flexible to meet the requirements of variable
circumstances. Mandamus is a very wide remedy which
must be easily available 'to reach injustice wherever it is
found.' Technicalities should not come in the way of
granting that relief under Article 226. We, therefore,
reject the contention urged for the appellants on the
maintainability of the writ petition."
41. The facts of this case clearly show that the appellant is
entitled to get the sanction of holding higher secondary classes. In
fact the Government committed itself to give the appellant the said
facility. The Government's said order could not be implemented in
view of the court proceedings. Before the procedural wrangle in the
court could be cleared, came the change of policy. So it cannot be
denied that the appellant has a right or at least a legitimate
expectation to get the permission to hold higher secondary classes.
It is discerned from the aforesaid report that the courts in India
enjoins wide power and grants wide remedy to reach injustice wherever it is
found and the technicalities if pitted against the justice should not come in
the way of granting relief while exercising the power of judicial review. Even
a writ court can pass an order or give directions which the government or
the public authority should have passed if exercised lawfully. In our
opinion, the aforesaid judgment has given a clear indication that the writ
court should not be a mute spectator nor should at on the ipse dixit of the
statutory authority but shall exercise such power if the injustice is evident
and the authority have not acted lawfully and in consonance with the law.
The power of the writ court cannot be brindled if the injustice is patent from
the action of the statutory authority and grant reliefs to the aggrieved person
who has been subject to such injustice.
The question still begging an answer whether the writ court can usurp
the power of the authority in a case where the authority have not exercised
the discretion nor have an occasion to deal with it. The aforesaid judgment
is to be understood in such perspective where the order of the statutory or
the public authority is exercised causing injustice to the citizenry and not
when such authority had no occasion to deal with it and the writ court
substituting itself in the place of such authority and passed the final order
inflicting the punishment.
Even in a case where the selection in a post is a very sensitive one and
the Government must have on necessarily highest confidence the
deployment to such posts is susceptible to be interfered with in exercise of
judicial review. The Apex Court in case of State of W.B and Ors. Vs. Manas
Kumar Chakraborty and Ors. (supra) held that the writ court should not
sit in appeal over the decision of the appointing authority in such sensitive
matters nor should substitute a view as a constituted authority in the
following :
" 17. The learned Senior Counsel for the first respondent
then contended that if a person moves to a post of grater
prestige, duties and responsibilities, honour or status, as
compared to the previous post held, then that movement, even if
lateral, would amount to promotion, even if both the posts carry
the same scale of pay. Learned counsel relied upon the case of
Meera Massey (Dr) v. Dr. S.R. Mehrotra and Vice-chancellor, L.N.
Mithila University v. Dayanand Jha to support the contention
urged. Even if the contention is accepted, the fact remains that
the second respondent was promoted by the Composite order
dated 23-5-2001 to the substantive rank of DGP and
simultaneously posted as DG & IGP. We see no illegality in this.
Secondly, there is no dispute that the post of DG &IGP is a
selection post like the other DGPs. The post of DG & IGP being a
post of very sensitive nature can only be filled by an incumbent
in whom the state Government must necessarily have the highest
confidence. We are, therefore unable to accept the contention of
the respondent that deployment of an incumbent in such a post
can go only by seniority. Merit in the nature of past record, the
credibility and confidence which one is able to command with
the Government of the State must play a predominant role in
selection of an incumbent to such a post. ; in the opinion of the
appointing authority, the second respondent was the most
suitable one. It is not open to the courts to sit in appeal over the
view taken by the appointing authority in such a case of
substitute its own view for that of the duly constituted
authority. The administrative tribunal, as a matter of
comparison of merit, was inclined to hold that the second
respondent was by far the better and more meritorious
candidate. The High Court has skirted this question and
declined to decide this issue. Since we are of the view that there
was no legal ineligibility in the second respondent to hold the
post of DG & IGP, we must necessarily accept the comparative
assessment of merit by the first appellant State of West Bengal
and give credence to its own choice, of a suitable incumbent for
being posted as such.".
In case of Manohar Lal (Dead) By Lrs. (supra), the Hon'ble Chief
Minister himself allotted the land when he lacks such authority. It is held
that when the statute requires a particular authority to discharge such
function, the allotment by the Hon'ble Chief Minister substituting himself as
such statutory authority amounts to transgression and/or usurpation of the
power of competence in these words:
"14. The Hon'ble Chief Minister passed the allotment letter
himself mentioning the plot numbers of the land, as it was the
authority himself which is impermissible in law. The Chief
Minister could not take upon himself the task of the Authority.
It tantamount to transgression/usurpation of competence. While
deciding a representation/petition, an authority or court may
issue direction to the person concerned to consider the
grievance. However, it is not permissible to pass the order by
the superior authority/court itself."
The enlightening observation in this regard can be profitably taken
note of from a judgment of the Supreme Court in the case of State of Kerala
and Ors. vs. Kandath Distilleries (supra) where it is held that when the
legislatures have conferred the powers upon an authority such power should
be exercised by such authority and not by the Court. The writ court is not
concerned with the decision but certainly with the decision making process.
It is relevant to quote the relevant excerpts from the said report which runs
thus:
"30. The legislature when confers a discretionary power on
an authority, it has to be exercised by it in its discretion, the
decision ought to be that of the authority concerned and not
that of the court. The court would not interfere with or probe
into the merits of the decision made by an authority in exercise
of its discretion. The court cannot impede the exercise of
discretion of authority acting under the statute by issuance of a
writ of mandamus. A writ of mandamus can be issued in favour
of an applicant who established a legal right in himself and is
issued against an authority which has a legal duty to perform,
but has failed and/or neglected to do so, but such a legal duty
should emanate either in discharge of the public duty or
operation of law. We have found that there is no legal duty cast
on the commissioner or the state Government exercising powers
under Section 14 of the Act read with Rule 4 of the 1975 Rules
to grant the licence applied for. The High Court, in our view,
cannot direct the State Government to part with its exclusive
privilege. At best, it can direct consideration of an application
for licence. If the high Court feels, in spite of its direction, the
application has not been properly considered or arbitrarily
rejected, the High Court is not powerless to deal with such a
situation that does not mean that the High Court can bend or
break the law. Granting liquor licence is not like granting
licence to drive a cab or parking a vehicle or issuing a
municipal licence to set up a grocery or a fruit shop. Before
issuing a writ of mandamus, the High Court should have, at the
back of its mind, the legislative scheme, its object and purpose,
the subject-matter, the evil sought to be remedied, the State's
exclusive privilege, etc. and not to be carried away by the
idiosyncrasies or the ipse dixit of an officer who authored the
order challenged. Majesty of law is to be upheld not by bending
or breaking the law but by strengthening the law".
In case of D.N Jeevaraj (supra), the Apex Court held that when the
powers and discretions are conferred upon the authority under the statute
such power and discretion is required to be exercised first and the court
should not take over the function of such statutory authority in the guise
of writ of mandamus in these words:
" 41. This Court has repeatedly held that where discretion
is required to be exercised by a statutory authority, it must be
pr4emitted to do so. It is not for the courts to take over the
discretion available to a statutory authority and render a
decision. In the present case, the High Court has virtually taken
over the function of BDA by requiring it to take action against
Sadananda Gowda and Jeevaraj. Clause 10 of the lease-cum-
sale agreement gives discretion to BDA to take action against
the lessee in the event of a default in payment of rent or
committing breach of the conditions of the lease-cum-sale
agreement or the provisions of law. This will, of course, require
a notice being given to the alleged defaulter followed by a
hearing and then a decision in the matter. By taking over the
functions of BDA in this regard, the High Court has given a
complete go by to the procedural requirements and has
mandated a particular course of action to be taken by BDA. It is
quite possible that if BDA is allowed to exercise its discretion it
may not necessarily direct forfeiture of the lease but that was
sought to be pre-empted by the direction given by the High Court
which, in our opinion, acted beyond its jurisdiction in this
regard."
The support to this aforesaid proposition can further be lent from the
constitutional Bench decision of the Supreme Court in case of Mafatlal
Industries Ltd. and Ors. vs. Union of India and Ors., reported in (1997)
5 SCC 536 wherein it is held that the power under Article 226 of the
Constitution should be exercised within the regime of law and never
intended to abrogate. The writ court can neither override the law nor pass a
writ of mandamus in ignorance thereof. Any order which overrides the law
or in clear violation thereof would tantamount to transgression of the powers
which the legislature never intended. The following observations from the
aforesaid report shall be useful in this regard which runs thus:
"108 (x). By virtue of sub-section (3) to Section 11-B of the
Central Excises and Salt Act, as amended by the aforesaid
Amendment Act, and by virtue of the provisions contained in sub-
section (3) of Section 27 of the Customs Act, 1962, as amended
by the said Amendment Act, all claims for refund (excepting
those which arise as a result of declaration of unconstitutionality
of a provision whereunder the levy was created) have to be
preferred and adjudicated only under the provisions of the
respective enactments. No suit for refund of duty is maintainable
in that behalf. So far as the jurisdiction of the High Courts under
Article 226 of the Constitution -or of this Court under Article 32
- is concerned, it remains unaffected by the provisions of the Act.
Even so, the Court would, while exercising the jurisdiction under
the said articles, have due regard to the legislative intent
manifested by the provisions of the Act. The writ petition would
naturally be considered and disposed of in the light of and in
accordance with the provisions of Section 11-B. This is for the
reason that the power under Article 226 has to be exercised to
effectuate the regime of law and not for abrogating it. Even while
acting in exercise of the said constitutional power, the High
Court cannot ignore the law nor can lit override it. The power
under Article 226 is conceived to serve the ends of law and not to
transgress them."
From the aforesaid reports, the law as expounded is that though the
power of the writ court under Article 226 of the Constitution is wide or even
wider than the power enjoined by the courts in England in prerogative writs
yet there has been a self-imposed restraint and should be exercised within
the contour of law. Ordinarily, the writ court does not enjoin the legislative
powers but the primary object is to uphold the law by interpreting the
legislations under the well-known canon of interpretations of law. Such
power cannot be exercised to bend or break the law but to uphold the same
inconsonance therewith. It is one thing to say that ordinarily the writ court
does not loath with the legislative powers of competence but it is absolutely
different when the writ court test the legitimacy of the law being in
conformity with the constitutional ethos and its provisions and passes
through the test of reasonability (wednesbury principle). The writ court
while exercising its power in pursuit of justice should be careful and
cautious in not causing injustice to the other while rendering justice. The
balance is required to be maintained as the same is never intended to be one
way traffic. The moment of Court finds that there is a statutory Rule in
place which requires a thing to be done in a particular manner, the Court
while rendering justice should not ignore such statutory provisions and pass
an order to create a wreck in a statutory machination having a larger impact
of injustice on the other.
The disciplinary Rules, 2018 having enacted in exercise of the Rule
making powers reserved in the parent act contains an exhausted provision
pertaining to a disciplinary action to be taken against the teacher including
the Assistant Headmaster or Assistant Headmistress. Rule 5 thereof
imbibed within itself the procedure and the modalities of initiating the
disciplinary proceeding and Rule 9 thereof contained the different form of
penalties to be inflicted in the event the allegation is found to be correct. No
person should be condemned nor penalised without affording an
opportunity to defend. The adherence to the principles of natural justice
before the imposition of the penalty is the hallmark of the constitutional
ethos and any transgression and/or denial of such opportunity entail the
decision/order illegal and impermissible.
As indicated above, the writ court discharges his solemn duties to
uphold the law and render justice in accordance with law and not to break
or bend it. The penalty which is not contemplated in the said disciplinary
Rule cannot be imposed in exercise of so-called plenary jurisdiction which
has a different concept and cannot be assumed to show wide or even wider
power to overreach the provision of law. The penalty imposed in relegating
the appellant to the post of assistant teacher is not contemplated under
Rule 9 of the disciplinary Rules and, therefore, such order cannot be legally
sustainable. Furthermore, the writ court cannot assume the jurisdiction of
the disciplinary authority and proceed in violation of the statutory
provisions by inflicting the penalties not contemplated in the statutory
Rules. Therefore, the impugned order cannot be sustained and is hereby
quashed and set aside.
Since this Court has found that the order of transfer is bad-in-law and
has quashed on the grounds stated hereinabove, the competent authority is
directed to take a decision afresh and if decided to transfer the appellant
from a school where she is posted to any other school, such order of transfer
should be strictly in terms of Section 10C of the Act of 1997 and in terms of
Memo dated 10th July, 2002. Since the appellant has already joined the
school where she has been transferred and is discharging the function as
such she may be directed to revert back to her original school within two
weeks from date. It goes without saying that the appellant was not at fault
when the order of transfer was issued and, therefore, all the benefits which
she received at the transferred post shall not be taken back nor shall be
recovered at any point of time. With this observation, the appeal is hereby
allowed and all connected applications pending of this day are accordingly
disposed of.
Urgent photostat certified copies of this judgment, if applied for, be
made available to the parties subject to compliance with requisite
formalities.
I agree. (Harish Tandon, J.)
(Rabindranath Samanta, J.)
