Calcutta High Court (Appellete Side)

Smt. Kuheli Das & Ors vs The State Of West Bengal & Ors on 2 May, 2023

S/L 62
02.05.2023
Court. No. 12
Sourav
                            WPA 18348 of 2018

                           Smt. Kuheli Das & Ors.
                                     Vs.
                       The State of West Bengal & Ors.

                Mr. Ekramul Bari
                Mr. Syed Mansur Ali
                Ms. Tanuja Basak
                Sk. Imtiaj Uddin
                                                         ... for the petitioners.

                Mr. Pinaki Dhole
                Mr. Avishek Prasad
                                                              ... for the State.


                1.    Both the writ petitioners and the respondent/State

are represented by their respective learned advocates.

2. The instant writ petition is now taken up for hearing.

3. Heard Mr. Bari, learned advocate for the writ

petitioners in support of the writ petition at length

and also heard Mr. Dhole, learned advocate for the

State against the writ petition.

4. The instant writ petition is now taken up for passing

appropriate order.

5. In this writ petition as filed under Article 226 of the

Constitution of India, the writ petitioners have

prayed for cancellation of the order vide no. 580-

SE(L)/SL/5S-68/05 dated 07.06.2018 as passed by

the Principal Secretary, School Education

Department, Government of West Bengal, whereby

and whereunder the request of the present writ

petitioners to grant aid to the Durmuth Chandberia

Adarsha Vidyapith, Village- Chandberia, P.O. Contai

P.S. Marisda, District - Purba Medinipur, Pin- 721401

has been declined.

6. In support of the instant writ petition, Mr. Bari,

learned advocate for the writ petitioners at the very

outset draws attention of this Court to the page no.

56 and page no. 57 of the instant writ petition being

Annexure - P-1 to the writ petition. It is contended

that by an order dated 16.02.1999, recognition was

granted to the aforementioned school as a Class-X

High School with effect from the year 1999 without

any financial assistance and that such recognition

was given on behalf of the West Bengal Board of

Secondary Education who is, however, not a party to

the instant writ petition. Mr. Bari, learned advocate

for the writ petitioners in course of his submission

also draws attention of this Court to the impugned

order itself. It is submitted by Mr. Bari, learned

advocate for the writ petitioners that the logic as

given in the impugned order is not coherent with the

prevailing law of the land and, therefore, the same is

required to the set aside.

7. Placing reliance upon the judgments as passed by this

Hon'ble Court in different writ petitions in between

the same parties, it is contended by Mr. Bari, that in

the said judgments, it has been clearly indicated by

this Hon'ble Court that the Government is obliged to

grant to the aid schools to the extent possible.

Drawing attention to the Annexure - P-5 of the

instant writ petition, it is submitted by Mr. Bari that

while disposing APO No. 293 of 2005 with WP No.

313 of 2005, it has been decided by a Division Bench

of this Court that it is the obligation of the State to

take every possible steps to provide grant-in-aid in

appropriate cases within its financial aids.

8. It is thus argued by Mr. Bari, learned advocate for the

writ petitioners that while passing the impugned

order, the respondent no. 2 being the Principal

Secretary to the respondent no. 1 authority did not at

all consider the parameters for grant-in-aid in favour

of the aforementioned school and on account of such

inaction or non-action on the part of the respondent

authorities, the constitutional mandates as provided

under Article 21 and Article 21A of the Constitution of

India have been violated. Mr. Bari, thus submits

before this Court that the instant writ petition may be

allowed cancelling the impugned order dated

07.06.2018 with a further direction upon the

respondent authorities to grant aid in favour of the

aforementioned school. Mr. Bari in support of his

contention places his reliance upon a reported

decision namely, Jitendra Nath Barman Vs.

State of West Bengal, reported in 2019 SCC

Online Cal 533 : (2019) 3 CHN 93.

9. Mr. Bari, learned advocate for the writ petitioners, in

course of his argument strongly contended that grant

of recognition of a school without financial assistance

is a farce and the same is also violative to right to

education under Article 21A of the Constitution of

India.

10. Per contra, Mr. Dhole, learned advocate for the

respondent/State also places his reliance upon the

impugned order. In course of his submission, Mr.

Dhole, learned advocate for the State/respondent

also draws attention of this Court to the provision of

Section 6 of the West Bengal Schools (Control of

Expenditure) Act, 2005 hereinafter referred to as the

'said Act of 2005' in short. Drawing attention to the

prayer portion of the instant writ petition, it is

contended by Mr. Dhole, that in the instant writ

petition the vires of Section 6 and/or any other

sections of the said Act of 2005 has not been

challenged and in view of such, the present writ

petitioners are debarred from getting the reliefs as

prayed for. Mr. Dhole further submits before this

Court that the impugned order dated 07.06.2018 is in

consonance of Section 6 of the said Act of 2005 and,

therefore, there cannot be any justification to

interfere with the impugned order dated 07.06.2018.

11. In reply Mr. Bari, submits before this Court that the

said Act of 2005 has got no retrospective effect and

since the recognition of the aforementioned school

was granted in the year 1999, the respondent

authorities cannot use the said Act as a shield to deny

the claim of the present writ petitioners.

12. This Court has meticulously gone through the entire

materials as placed before this Court. This Court has

also given its anxious consideration over the

submissions of the learned advocates for the

contending parties. It is undisputed that in the year

1999, recognition was granted in favour of the

aforementioned school, where the present writ

petitioners are working by the West Bengal Board of

Secondary Education and while granting such

recognition, it has been made clear that such

recognition has been granted without any financial

assistance since the Government is the finance grant

authority.

13. After considering the rival submissions of both the

parties, the moot questions cropped up before this

Court as to whether a recognized school is within

their right to receive financial aid from the

Government or not. In order to arrive at a logical

conclusion of the instant case, this Court proposes to

look to the Section 6 of the Said Act of 2005 and the

same is reproduced hereinbelow in verbatim:

"6. Unaided school not to get financial assistance.- No unaided school shall be entitled to get any financial assistance from the State Government."

14. On perusal of the aforesaid Section of the Act of

2005, it reveals to this Court that the legislature in its

own wisdom while enacting the said Act of 2005,

made it clear that no unaided school is entitled to get

any financial assistant from the State Government.

Admittedly in the year 1999, the aforementioned

school was granted recognition but in view of the

provision of Section 6 of the said Act of 2005, the

said school cannot seek grant as of right.

15. In considered view of this Court, the decision as

taken by a Division Bench of this Hon'ble Court while

disposing APO No. 293 of 2005 with WP No. 313 (W)

of 2005 as has been annexed with the mark Annexure

- P-5 is not in favour of the present writ petitioner

since in the said judgment dated 04.05.2007, the

Hon'ble Division Bench expressed the following view:

"At the time of recognition of the State it was made clear that the Scchool was to be treated as un-aided institution. Aided schools are those which receive financial assistance for payment of basic pay to the teacher and non-teaching staff of the school.

              Well appraised of its rights and
              responsibilities,           the      school
              authorities went ahead with their
              programme            of       disseminating
              education          among      the    weaker

segments of the society. It cannot at this stage insist on the State assuming its financial responsibility for imparting education."

16. In course his argument of Mr. Dhole, learned

advocate for the State/respondent places his reliance

upon a judgment dated 007.02.2023 as passed in

FMA 1923 of 2018 (The State of West Bengal

& Ors. Vs. The MNG. Comm., Dakshin

Mahisda Adarsha Siksha Niketan & Ors.). In

the decision of the MNG. Comm., Dakshin

Mahisda Adarsha Siksha Niketan & Ors.

(Supra) a Division Bench of this Hon'ble Court

expressed the following view:

"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)."

17. In considered view of this Court, the reported

decision of Jitendra Nath Barman (Supra) as

cited from the side of the writ petitioners are of no

avail to the present writ petitioners since in the said

reported decision, nowhere it has been stated that an

unaided recognized school is entitled to grant-in-aid

as of right in contravention of Section 6 of the said

Act of 2005. On the contrary, it appears to this Court

that the view taken in the reported decision of the

MNC Comm. (Supra) is squarely applicable to the

case wherein it has been specifically held the

recognized unaided school cannot insist the State to