Asim Kumar Mondal vs The State Of West Bengal & Ors
2023 Latest Caselaw 5345 Cal

Court No.22             IN THE HIGH COURT AT CALCUTTA
21.8.2023                Constitutional Writ Jurisdiction
                                Appellate Side
(Item No. 4)

(AB)                         W.P.A. 6042 of 2019

                             Asim Kumar Mondal
                                      VS
                        The State of West Bengal & Ors.

                        Mr. Indradeep Pal
                        Mr. Sougata Pal
                        Mr. M. F. Rahaman
                                          .... For the petitioner
                        Mr. Tapan Kumar Mukherjee
                        Mr. Pinaki Bhattacharyya
                                    .... For respondent Nos. 1 to 5

Mr. Rajnil Mukherjee

This is a hearing matter upon affidavits.

The petitioner has a checkered history of

travelling to this Court in its Constitutional Writ

jurisdiction at least thrice. This is the third writ

litigation by the petitioner.

The petitioner claimed to have been appointed

as an Organizing Teacher for subject Geography at

Khenaibanda Gorakshanath Vidyamandir, District

- Purba Burdwan (for short, the school). The

petitioner claimed approval as an Organizing

Teacher. Initially in the second writ petition the

claim of the petitioner was allowed. The State carried

out an appeal being F.M.A. 804 of 2017. The appeal

was allowed by the Hon'ble Division Bench by its

order dated December 6, 2017. The relevant

observation of the Hon'ble Division Bench is quoted

below:

"Instead of remanding the matter to the trial court we feel that the ends of justice will be sub-served if the entire matter is referred to the Principal Secretary, School Education Department, Government of West Bengal, who shall adjudicate the issues involved in the writ petition, after considering the evidence, hearing the parties and by a reasoned order within three months of communication of this order. We order accordingly.

If the fourth respondent is able to prove before the Principal Secretary that regular classes were held in classes IX and X with an organizing staff of which the said respondent was regularly or irregularly appointed a member, the Principal Secretary shall direct the District Inspector of Schools to approve the appointment of the said respondent as directed by the learned Judge of the Court below. The school will produce all the records as requisitioned by the fourth respondent at the time of hearing before the Principal Secretary. If it is unable to produce them, then the Principal Secretary, Government of West Bengal will draw an adverse inference against the school, in favour of the petitioner.

The impugned judgment and order dated 1st July 2015 is set aside.

The appeal is allowed to the above extent." Pursuant to the above direction of the Hon'ble

Division Bench, Annexure P-7 at page 69 to the writ

petition the respondent No. 4 passed its impugned

order dated October 31, 2018, Annexure P-9 at page

79 to the writ petition. The same is impugned through

this writ petition.

Mr. Indradeep Pal, learned counsel for the

petitioner referring to the said impugned order

submitted that, the appointment of the petitioner at

the school as an Organizing Teacher whether legal or

illegal could not have been gone into by the

respondent No. 4 in view of the specific finding made

by the Hon'ble Division Bench. It was the duty of the

respondent No. 4 to carry out the hearing and pass its

reasoned order in the strict compliance of the

direction of the Division Bench. The Hon'ble Division

Bench directed that, in the event, the School authority

failed to produce the relevant records before the

respondent No. 4 then, the respondent No. 4 would

have to draw an adverse inference against the School,

in favour of the petitioner. Learned counsel then

submitted that, the School authority was duly present

and represented before the respondent No. 4 on the

relevant day when the hearing took place. He

submitted that, the School authority had produced all

the relevant documents including the original

attendance register and on scrutiny of all those

records it was found that, the petitioner was a regular

Organizing Teacher but neither the participation of

the School authority nor the production of records by

the School authority was at all considered by the

respondent No. 4 while conducting the hearing and

passing the impugned order. He submitted that, on

this score alone the impugned order suffers from

gross perversity and is liable to be set aside.

Mr. Rajnil Mukherjee, learned counsel

appearing for respondent Nos. 6 and 7 draws

attention of this Court to the averments made in the

affidavit-in-opposition filed by respondent No. 7

affirmed on July 18, 2023, the relevant averments are

re-produced and quoted below:

"4. xxxxxxxxxxxxxx xxxxxxxxxxxxxx

(vii) That thereafter State has preferred an Appeal being F.M.A. No. 804 of 2017 challenging the order of the Hon'ble Single Bench for setting aside the order. Hearing the parties their Lordships the Hon'ble Justice I.P. Mukherjee and Hon'ble Justice Mumtaz Khan has passed an order on 06/12/2017 and directed to the Principal Secretary, School Education Department to Adjudicate the issue involved in the instant Writ Petition, after considering the evidence, hearing the parties and by reasoned order within three months of communication of this order. Hon'ble Court further directed that, if fourth respondent i.e. petitioner is able to prove before the Principle Secretary that, regular classes were held in class IX and X with an Organizing Staff of which the said respondent was regular or irregular appointed member, Principle Secretary shall direct District Inspector of Schools to approve appointment of the said respondent i.e. petitioner as directed by the Learned Single Judge of the Court below. In the said order the Hon'ble Division Bench specifically directed to consider the evidences induced by petitioner and School

Authority. Though the order had not been complied by State Authority.

(viii) That thereafter the Principal Secretary of the School Education Department issued a notice of hearing in favour of the Head Master of the School in compliance of the order passed by the Hon'ble High Court at Calcutta. Headmaster of the School was duly present on the date of hearing. Finally on 31/10/2018 the Secretary has passed the impugned order in order Secretary did not bother to consider original documents/evidences produced by the Head Master of the School at the time of hearing."

submitted that, the records produced before the

respondent No. 4 including the original attendance

registrar of the School for the Organizing Teacher of

the relevant point of time would demonstrate that

petitioner was a regular attending Teacher at the

Organizing Section of the School. It would also

appear from the record that the petitioner was present

on July 9, 1999 when the District Level Inspection

Team (DLIT) inspected the School and prepared the

report.

In the light of the above submissions, Mr.

Mukherjee, learned counsel for the respondent Nos. 6

and 7 submitted that, the impugned order suffers

from gross perversity and was passed in violation of

the specific direction of the Hon'ble Division Bench.

The same cannot sustain.

Mr. Pinaki Bhattacharyya, learned counsel

appearing for respondent Nos. 1, 2, 4 and 5 referring

to the said impugned order submitted that, while

considering the issue at the hearing the respondent

No. 4 duly considered all the material facts and the

records produced by the petitioner. Upon scrutiny of

such materials the respondent No. 4 came to a

specific finding that, the appointment of the petitioner

was totally an illegal appointment without following

the due process of recruitment rules as provided

under the law prevailing at the relevant point of time.

He submits that, once a Teacher is appointed illegally,

the question of approval does not arise. He also

submits that, law is well settled. Learned State

counsel further submits that, the impugned order was

passed in due compliance of the direction of the

Hon'ble Division Bench.

After considering the rival submissions of the

parties and after considering the materials on record,

this Court first reiterates the principle and jurisdiction

of this Court in exercise of its power under judicial

review, that while exercising the power of judicial

review under Article 226 of the Constitution of India a

constitutional Court has a very limited jurisdiction to

assess the impugned order. The Constitutional Court

will only scrutinize the decision making process of the

hearing authority and if there is any glaring perversity

on the face of the impugned order.

Keeping the settled position of law as

discussed above, this Court proceeds to scrutiny the

said impugned order dated October 31, 2018,

Annexure P-9 at page 79 to the writ petition. On a

close scrutiny of the said impugned order, it appears

to this Court that, the impugned order would show

that the School Authority was not present and as

such there was no occasion for the respondent No. 4

to consider the materials to be produced by the School

authority.

Considering the case made out in the writ

petition and the submissions made on behalf of the

writ petitioner and considering the stand taken by the

School authority in its affidavit-in-opposition on oath

as quoted above, that the School authority was duly

represented, the School has duly produced all the

relevant materials and documents before the

respondent No. 4 including the original attendance

register showing attendance of the petitioner as an

Organizing Teacher, nothing is reflected on the face of

the impugned order.

Considering the issue involved in the writ

petition and considering the specific direction of the

Hon'ble Division Bench as quoted above, the

impugned order dated October 31, 2018, Annexure

P-9 at page 79 to the writ petition stands set aside

and quashed.

To sub-serve justice the respondent No. 4 shall

revisit the issue on the basis of the materials already

made available before it and upon issuing prior

hearing notice of at least seven days to the petitioner

and the respondent Nos. 6 and 7 and then after

granting an opportunity of hearing to them and/or

their duly authorized representatives shall pass the

reasoned order in strict compliance of the direction of

the Hon'ble Division Bench as quoted above from the

order dated December 6, 2017 in accordance with

law.

The entire exercise as directed above, shall be

carried out and completed by the respondent No. 4

positively within a period of four weeks from the date

of communication of this order and then the

respondent No. 4 shall communicate its reasoned

order to the petitioner and respondent Nos. 6 and 7

positively within a period of two weeks from the date

of the reasoned order to be passed.

It is made clear that, this Court has not gone

into the merits of the claim of the petitioner in any

manner whatsoever and the petitioner and the

respondent Nos. 6 and 7 shall be free to urge

whatever point they wish to urge before the

respondent No. 4 but the same shall be confined to

the extent of the direction made by the Hon'ble

Division Bench.

It is made clear that, this order shall not create

any equity or right in favour of the petitioner if, the

petitioner is not eligible to receive his claim in

compliance of the direction made by the Hon'ble

Division Bench as referred to above.

On the above terms, this writ petition being

WPA 6042 of 2019 stands allowed.

There shall, however, be no order as to costs.

Urgent certified photo copy of this order, if

applied for, be supplied to the parties expeditiously on

compliance of usual legal formalities.

(Aniruddha Roy, J.)