Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs The Mng Comm on 7 February, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice T. S. Sivagnanam
and
The Hon'ble Justice Hiranmay Bhattacharyya
FMA 1923 of 2018
The State of West Bengal & ors.
vs.
The MNG Comm., Dakshin Mahisda Adarsha Siksha Niketan &
ors.
For the Appellants : Mr. Tapan Kumar Mukherjee,
learned Senior Advocate
Mr. Pinaki Dhole
Mr. Abhishek Prasad
.......advocates
For the Respondents : Mr. Swagata Datta
.........advocate
For the WBBSE : Mr. Santanu Kr. Mitra .........advocate
Heard on : 13.01.2023
Judgment on : 07.02.2023
Hiranmay Bhattacharyya, J.:-
1. This appeal is at the instance of the State of West Bengal and is
directed against an order dated 09.03.2017 passed by a learned
Single Judge in WP 28791 (W) of 2014. By the impugned order the
learned Single Judge after setting aside the order of the Assistant
Secretary, Finance Department dated 26.09.2014 directed the said
authority to take a reasoned decision as to whether financial
assistance should be given to the school.
2. The facts giving rise to this appeal in a nut shell are as follows:-
3. West Bengal Board of Secondary Education (for short "the Board")
granted recognition to Dakshin Mahisda Adarsha Siksha Niketan
(for short "the school") as a four class junior high school.
Challenging the order of the learned Single Judge dismissing the
writ petition being WP No. 19342 (W) of 2010 wherein the order of
the authority refusing grant-in-aid was challenged, the managing
committee of the school preferred an appeal and the Hon'ble
Division Bench granted liberty to the school to apply afresh before
the concerned authority. Pursuant to such liberty, the Secretary of
the School applied before the Principal Secretary, School Education
Department praying for grant in aid in favour of the school. Such
prayer was rejected by the Secretary, School Education
Department by an order dated 03.06.2013 which was again
challenged by the Managing Committee of the school as well as its
teaching and non-teaching staff in WP 22339 (W) of 2013. The
learned Single Judge by an order dated 26.11.2013 directed the
Finance Secretary to take a fresh decision upon giving an
opportunity of hearing to the writ petitioner. Pursuant to the said
order dated 26.11.2013 passed in WP 22339 (W) of 2013, the
Assistant Secretary, Finance Department by an order dated
26.09.2014 rejected the said application. The said order of the
Assistant Secretary dated 26.09.2014 was challenged by the
managing committee of the school in the present writ petition being
WP 28791 (W) of 2014 and the learned Single Judge by the
impugned order after setting aside the said decision dated
26.09.2014 directed the said authority to pass a reasoned decision
as to whether financial assistance should be given to the school.
4. Being aggrieved against the order dated 09.03.2017 passed in WP
28791 (W) of 2014 this appeal has been preferred.
5. Mr. Mukherjee, learned Additional Government Pleader appearing
for the State submitted that the Government is not bound to grant
aid to all recognized institutions. In support of such submission he
referred to the order passed by a Hon'ble Single Judge on
20.05.2005 in WP no. 2184 of 2004. He further drew the attention
of this Court to the order of the Hon'ble Division Bench of this
Court in MAT 871 of 2011 passed on 15.03.2013 wherein the
Hon'ble Division Bench held that grant in aid cannot be claimed as
a matter of right and it is for the State Government to take a
decision. He submitted that the Assistant Secretary of the Finance
Department after taking into consideration all aspects has
observed that the State Government is not in position to take an
additional burden of paying the salary of teaching and non-
teaching staff of the school. He also submitted that the learned
Single Judge did not take into consideration the aforesaid facts
while passing the impugned order.
6. Mr. Datta learned advocate representing the respondent school
submitted that pursuant to the liberty granted by the Hon'ble
Division Bench in MAT 871 of 2011 the managing committee of the
said school submitted a representation before the Principal
Secretary, School Education Department stating that it is difficult
to run the school without grant in aid and the staffs are rendering
their services without financial benefits. He further submitted that
since the school was recognized, State is duty bound to grant
financial assistance. He, thus, submitted that the learned Single
Judge was perfectly justified in setting aside the order dated of the
Assistant Secretary, Finance Department dated 26.09.2014 and for
reconsideration of the matter. He also relied upon a decision of the
Hon'ble Supreme Court of India in the Special Leave to appeal
(Civil No. 27804 of 2019) in the case of Prabir Kumar Ghosh vs.
State of West Bengal and Ors. passed on 06.05.2022 in support of
his contention.
7. Heard the learned advocates for the parties and perused the
materials placed.
8. Challenging the action of the Board in not granting recognition to
the school, the managing committee of the school filed a writ
petition being WP No. 2184 of 2004. The said writ petition was
disposed of by an order dated 20.05.2005 directing the appropriate
authority of the Board to take a decision on the application of the
petitioner for recognition of the school after giving opportunity of
hearing to the petitioner and other concerned persons. The Hon'ble
Single Judge was, however, pleased to hold that aid and
recognition are different issues and the Government is not bound
to grant aid to all recognized institutions. It was further held
therein that an application for aid is to be considered on its own
merits having regard to all relevant factors including the financial
capacity of the government to take on the additional burden of
aiding the school.
9. Thereafter, the executive committee of the Board unanimously
resolved that the school be granted recognition as a four class
junior high school without finance. The order dated 20.05.2005
passed in WP No. 2184 of 2004 was not challenged by the writ
petitioner school before the higher forum and therefore, the
findings recorded therein attained finality. That apart the said
order was given effect to by the State by granting recognition to the
school as a four class junior high school. Such recognition was,
however, without finance.
10. The order of recognition of the school as a four class junior high
school without finance is not the subject matter of challenge in this
writ petition. The order granting recognition without financial aid
was accepted by the petitioner and the petitioners have also enjoyed
the benefits of the order of such recognition and is, therefore,
estopped from contending that the State is bound to grant financial
assistance to the petitioner institution. That apart the learned
Single Judge relied upon an unreported decision of another learned
Single Judge in WP 13249(W) of 2013 (Md. Aktaruzzaman & Ors. vs.
State of West Bengal & Ors.) decided on November 28, 2013 wherein
it was held that recommendation without financial aid is really
unsustainable. The said finding is, however, contrary to the finding
of the learned Single Judge in the order dated 20.05.2005 in WP
2184 of 2004 wherein it was observed that Government is not
bound to grant aid to all recognized institutions. The aforesaid
observation of the learned Single Judge in the order passed in the
case of Aktaruzzaman (supra) is also contrary to the observation of
the Hon'ble Division Bench in its order dated 15.03.2013 in MAT
871 of 2011 wherein it was observed that grant in aid cannot be
claimed as a matter of right. The issue of grant of recognition
without financial aid was not the subject matter of the writ petition
from which the instant appeal arose. The said issue being already a
settled issue inter parties has already attained finality. Such settled
position could not have been unsettled by placing reliance upon the
decision of Aktaruzzaman (supra).
11. The Assistant Secretary of the Finance Department in its order
dated 26.09.2014 rightly took note of the aforesaid observations of
the Hon'ble Single Judge of this Court in the order dated
20.05.2005 in WP No. 2184 of 2014; the observation of the Hon'ble
Division Bench in the order dated 15.03.2013 in MAT 871 of 2011;
the financial aspect that the State Government is not in a position
to take on the additional burden of the teaching and non-teaching
staff of the school and that at the time of granting recognition it was
made clear that the school was being recognized without financial
assistance. The said respondent authority also took note of the
prevailing rules that the appointment to the government aided
schools are to be made pursuant to the recommendation of the
School Service Commission followed by due recruitment procedure
and if a person is appointed in a recognized aided institution
without being recommended and by the concerned Regional School
Service Commission then such appointment would be violative of
the legislative mandate contained in Section 9 of the West Bengal
School Service Commission Act, 1997.
12. The petitioner nos. 3 to 8 herein who are the respondent nos. 3 to 8
in this appeal claimed to be the teaching staffs of the school. The
writ petitioner nos. 9 and 10 who have been impleaded as
respondent nos. 9 and 10 in this appeal claimed to be the non-
teaching staffs of the school. Though the said writ
petitioners/respondents herein claimed to be performing their
duties as teaching and non teaching staffs respectively but they
have not disclosed the date when they were appointed and the
manner how they have been appointed in the said school. The
petitioners have prayed for according approval of their appointment
in the said school and for granting financial assistance to the
school. It does not appear from the order passed by the Finance
Department as well as from the writ petition that documents in
support of their appointment have been produced either before the
concerned respondent authority or before the writ court. The
Assistant Secretary, Finance Department rightly took note of the
decision of the constitution bench of the Hon'ble Supreme Court of
India in the case of Secretary, State of Karnataka & ors. vs. Umadevi
& ors. reported at (2006) 4 SCC 1 while arriving at the finding that
the teaching and non-teaching staffs of the school do not have any
legal right to be regularized in service if their appointment was not
in accordance with the recruitment rules. The writ petitioner being
the teaching and non-teaching staffs of the school also could not
satisfy this Court that they were appointed against sanctioned posts
by following the rules governing the recruitment in such school. The
petitioners failed to demonstrate even before this Court that they
have a right to claim approval of their service. The writ petitioners/
respondents herein have claimed financial assistance from the
government on the ground that they are rendering service for the
benefit of the students. Since the petitioners have failed to make
out any case for approval of appointment, the State Government
cannot be fastened with the burden of paying the salary of teaching
and non- teaching staff of the school.
13. The petitioners did not plead the basic facts in support of their
claim for approval of their appointment. In view thereof, the Hon'ble
Judge of the writ court could not have passed any direction upon
the respondent authority to examine the matter and to arrive at a
positive finding in the manner as directed in the impugned order.
14. After going through the said decision of the Principal Secretary of
the Finance Department this Court finds that cogent reasons have
been assigned in support of the ultimate conclusion. After going
through the order of the Principal Secretary dated 26 th November,
2014, this Court is of the considered view that there is no infirmity
in the decision making process warranting interference by the writ
Court in exercise of the powers of judicial review. The order of the
Hon'ble Single Judge is liable to be quashed.
15. The issue involved in order of the Hon'ble Supreme Court in the
case of Prabir Kumar Ghosh (supra) was with regard to approval of
the appointments of the writ petitioners therein on the basis of a
factual finding that the engagement of the writ petitioners cannot be
said to be illegal. The said decision is being distinguishable on facts
is, therefore, not applicable to the facts of the case on hand.
16. For all the reasons as aforesaid this Court, therefore, holds that the
impugned order suffers from infirmity and the same is accordingly
set aside and quashed. The appeal stands allowed. The writ petition
thus, stands dismissed. Consequently, the order of the Assistant
Secretary, Finance Department, Government of West Bengal dated
26.09.2014 stands restored.
17. There shall be, however, no order as to costs.
18. Urgent photostat certified copy of this judgment be given to the
parties upon compliance of all formalities.
I agree.
(T.S. Sivagnanam, J.) (Hiranmay Bhattacharyya, J.)
