Full Judgment Text
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PETITIONER:
STATE IF WEST BENGAL AND OTHERS
Vs.
RESPONDENT:
NURUDDIN MALLIK AND OTHERS
DATE OF JUDGMENT: 18/09/1998
BENCH:
K.Venkataswami, A.P.Misra
JUDGMENT:
Leave granted.
These appeals are directed against the judgments and
orders dated 9th February, 1994 and 29th August 1995 by
which the High Court directed the appellant-authorities to
grant approval to the teaching and non-teaching staff
including the Head Master (Mohd. Nuruddin Mallick) in the
respective posts held by them in a Madrasah known as
Bishalaxmipur Pune Saha Mastania Junior High Madrasah.
The present case is one of such unfortunate tug of
war between the Management of an Educational Institution and
the statutory authorities. Such situations are gradually
rolling into spate of litigations crumbling the very base of
the educational environment. It is either on account of
factionalism within the management, each faction when in
power trying to pour in his men contrary to the norms fixed
or sometimes on account of authorities deliberately pulling
the strings of the management for strafing reasons delaying
the legitimate conferment of rights of the teachers, staff
or the institution. Education is the foundation of the
prosperity of any country, it shapes its future by
inculcating discipline, culture and the spirit into the
youth. If the very foundation of education is involved in
long drawn out litigation, the very hope and aspiration of
the youth for the future is lost. Every contribution by any
person entrusted with such noble service may be teacher,
management or staff, whether Govt. functionaries or
statutory authorities has to render service with dedication
and with the sole objective to render service to the nation
and in doing so eliminate, if any, strafing conflicts to
reach the objective in accordance with law. Any action by
all such has to be shunned and an atmosphere to be created
which is conducive to the healthy atmosphere. for the
students. With this now we proceed to examine this case.
For establishing either Junior or High Madrasah
which consists of four levels of classes, namely, class V to
VIII as well as High Madrasah which have two levels, namely,
classes IX & X, the sanction of the State Govt./West Bengal
Madrasah Board is necessary. The appellants are State of
West Bengal, the President and the Secretary of West Bengal
Madrasah Education Board, renamed as West Bengal Board of
Madrasah Education. The case set up by the appellants is
that the staff pattern as well as the required
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qualifications of teaching and non-teaching staff of
Madrasahs are prescribed from time to time. The circulars
also lay down conditions under which a Madrasah may be
permitted to open additional class units or sections. The
staff pattern for additional class units when approved are
also prescribed. Where a Junior High Madrasah is upgraded
as a High Madrasah, no fresh approval is required for
teachers whose appointments have already been approved by
the Board as teachers of the Junior High Madrasah. The
Bishalaxmipur Pune Shah Mastania Junior High Madrasah (for
short ’said Madrasah’) was recognised by the Board with
effect from 1st January, 1971 as Junior High Madrasah
(Classes V to Vii). The staff pattern originally approved
was six teaching (including Head Master ) and two
non-teaching staff. Opening of additional class units were
approved from time to time and by 1981 posts of three
additional teachers and one additional non-teaching staff
had been sanctioned. As a result, the Junior High Madrasah
had the approval for a total of nine teaching (including
Head Master) and three non-teaching staff. The said
Madrasah opened classes IX & X without any approval/sanction
for the same. It appears that the Board from time to time
granted ad hoc special permissions for the Class X students
to appear at the school final examinations. In 1981, the
writ petitions being C.R. No. 2391 (W) of 1981 and C.R.No.
14594 (W) of 1981 were filed by Mohd. Nuruddin Mullick for
an order directing the authorities to recognise the said
Madrasah as a High Madrasah (i.e.Classes V to X). In these
writ petitions orders were made from time to time granting
permissions for the students of class X to appear in the
school final examinations. The said C.R.No. 2391 (W) of
1981 was finally disposed of by the Division Bench of the
High Court by an order dated 19.11.1986. The Division Bench
directed the respondents in the Writ Petition viz.,
appellants herein to consider the case of the Madrasah for
upgradation to High Madrasah. There were contempt
proceedings following the order dated 19.10.91 was passed by
the Division Bench of the High Court, which directed the
authorities to grant recognition to the said Madrasah as a
High Madrasah. The said order dated 11.10.91 was modified
on 7.7.92 so as to direct that the recognition should be
with effect from 1980. These orders have since been
complied with and the Madrasah has been recognised as a High
Madrasah with effect from 1980. The issue involved in the
present appeal arises out of the facts subsequent to the
recognition of the said madrasah as a High Madrasah.
In terms of the prescribed rules, a High Madrasah
consisting of six class units (i.e.classes V to X with one
class at each level) is entitled to appoint twelve teaching
(including Head Master) and three non-teaching staff.
Considering the fact that three additional teachers and one
additional non-teaching staff had already been approved for
the Junior High Madrasah, i.e., classes V to XIII the ticket
staff pattern for the upgraded High Madrasah became fifteen
teaching and four non-teaching staff. Since nine teaching
staff and three non-teaching staff had already been approved
for classes V to VIII what was required to be permitted was
approval to an additional six teaching and one additional
non teaching staff.
On 6.8.92, the management of the said Madrasah
forwarded to the appellant authorities a list of 31 staff
members consisting of 24 teaching and 7 non-teaching staff
for approval. relevant information with regard to this
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request for approval was required both by the District
Inspector of schools (DIS) as well as by the Board. Without
waiting for the disposal of the application for approval, a
writ petition was moved by Shri Nuruddin Mullick on
11.11.92, being C.O.No. 12099 of 1992, praying for orders
directing the authorities to approve the said list of 31
staff.
During the pendency of the said Writ Petition, an
order was made directing the District Inspector of Schools
to submit a report. On 25.11.92, such report was submitted
by the Assistant Inspector of Schools under directions of
the District Inspector of Schools, which disclosed that many
of the teaching staff did not have the requisite
qualifications. Since this was not a report by the District
Inspector of Schools as ordered earlier by the Court, fresh
orders were passed on 18.12.92 and 23.12.92 for the District
Inspector of Schools himself to submit the report. On
6.1.93 a fresh report was submitted by the District
Inspector of Schools from which also it appears that the
Madrasah was not entitled to approval for 31 teaching and
non-teaching staff as applied for.
On 12.1.94 the learned Single Judge after hearing
the Writ Application directed the authorities to grant
approval of 31 teaching and non teaching staff. It was also
directed that the Head Master (Shri Nurudding Mallick) would
be entitled to get his salary in the pay scale of Head
Master with effect from 1.1.80.
Three appeals were preferred against the said
judgment dated 12.1.94 of the learned single Judge :
i. FMAT No. 337 of 1994 by Shri Nuruddin
Mallick & Ors.
ii. Appeal No. 386 of 1994 by added respondents
being teachers who claimed to have worked
but whose names had not been included in the
list of 31; and
iii. FMAT No. 799 of 1994 on behalf of the State.
In the present appeals, we are not concerned with
the aforesaid appeal No. 386 of 1994. An application for
stay filed on 3.2.94 in FMAT 337 of 1994 (being the appeal
filed by Shri Nuruddin Mallick) came up for hearing on
9.2.94 and the Division Bench of the High Court proceeded to
pass and order directing the Board to approve the services
of the teachers and non-teaching staff, as directed by the
learned single Judge, within a period of one month and
further directed release of all salaries within a period of
two months from the date of submission of the grant-in-aid
form to the authority concerned. The order dated 9.2.94 then
went on to provide as follows :
"After passing of this order, nothing
remains to be decided in the appeal. Accordingly,
the appeal is treated as on the day’s list and
both the appeal and the application are disposed
of as above."
The further case is that the appellants in FMAT No.
337 of 1994 were not aggrieved parties but at their instance
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the Division Bench was pleased to affirm the order of the
learned Single Judge. Moreover, the contentions of the State
authorities against the order of the learned Single Judge
dated 12.1.94 were not considered and their appeal remained
pending without any decision. Strangely the hearing of the
stay application was in fact treated as the hearing of the
main appeal at the instance of a party who was not aggrieved
by the order of the learned Single Judge.
The above order was followed by a contempt
application being C.R.No. 398 of 1994 for non-compliance
thereof. The contempt application was disposed of by an
order dated 1.7.94 wherein it was directed that the approval
should be issued provisionally without prejudice to the
rights and contentions of the parties and subject to further
orders of the Court. The State authorities were given
liberty to file a proper application within two weeks.
The State authorites thereupon issued orders for
provisional approval and filed an application for recalling
the order dated 9.2.94. The said application, amongst
others, was disposed of by the impugned judgment dated
29.8.95.
So far as the approval of 31 teachers and
non-teaching staff, as desired by respondent Madrasah
through its letter dated 6th August, 1992, can only be
considered by the competent authority in accordance with the
prescribed rules and on fulfillment of the criteria as laid
down under the rules or concerned circulars. The submission
on the face of it is that the prayer for approval was for a
number fat in excess of the permitted staff pattern.
Further, the submission is that the report of the Assistant
Inspector of schools dated 25th November, 1992 on which
reliance was placed by the learned Trial Judge, reveals that
the teachers do not possess the requisite qualifications.
Similar is the position of the subsequent report of the
District Inspector of Schools. The grievance of the
appellants is that these reports were not even referred to
or considered in the impugned judgment. Further, the Court
has also not examined, whether the request for approval
complies with the prescribed rules and the permissible staff
pattern or not including the qualifications of the teachers.
According to the submissions of learned senior counsel for
the appellant, Mr. Dipankar P. Gupta, the High Madrasah is
presently entitled to approval of six additional teachers
and one non teaching staff. The already approved nine
teachers and three non teaching staff who are included in he
list of 31, do not require any further approval. The rest
of list containing twelve numbers cannot be approved unless
it is shown that they possess requisite qualification and
satisfy the justification of such number of post as per
staff pattern. It is submitted that the appellants are
ready and willing to give approval to further six teaching
and one non teaching staff as per rules subject to their
fulfillment of educational qualifications and other criteria
as laid down in the rules.
On the other hand, the case of the respondents is
that the Bishalaxmipur Pune Shah Mostania Junior High
Madrasah was recognised by the West Bengal Madrasah
Education Board (hereinafter referred to as ’Board’) w.e.f.
1st January 1971 with classes from V to VIII. As its
enrolment increased in all classed, three additional posts
of teachers were sanctioned to it, raising the total
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sanctioned strength of teaching staff to nine including Head
Master and three non-teaching staff including one clerk.
As there was no High Madrasah within a radius of 30
miles, i.e., 48 kms., from that place, the then management
applied for its upgradation to a X-class High Madrasah with
effect from 1.1.1976 leading to inspection of the said
Madarsah by the authorities concerned on 17.9.1976 and
11.7.1980 who, in turn, recommended for its recognition as a
High Madrasah. But no order granting its such recognition
was issued by the authority.
As the said Madrasah was maintaining class - X since
1976, it was all along granted special permission by the
Madrasah Education Board form 1976 to 1980 for sending its
students as regular candidates for High Madrasah final
examination.
On refusal by the Madrasah Education Board to send
its candidates as before for appearing at the said
examination in 1981, the said Madrash was constrained to
move the High Court and obtained permission for the same for
the period from 1982 to 1986. Thereafter, again on refusal
of the High Court, the management of the said Madrasah moved
this Court whereupon this Court granted permission for the
said examination held in 1987 and 1989.
Thereafter, the said Madrasah has been regularly
sending up its candidates since 1990 onwards. However, as
the authority did not consider the case of upgradation of
the said Madrasah the management moved the High Court of
Calcutta whereupon it, inter alia, directed for keeping one
quota vacant as was allotted to the said Board by the State
Government for the year 1980-81 till the question of
recognition as High Madrasah is considered by the authority.
Thereafter, series of cases including contempt proceedings
went on before the learned Single Judge and the Division
Bench of the High Court. Then the Division Bench on 19th
November, 1986 directed the appellants to consider the case
of recognition of High Madrasah within three months in the
light of the recommendations in the years 1980, 1984 and
1986. Since the appellants did not pass any order of
recognition, the appellants moved initially the contempt
proceedings, which was rejected by the High Court, and
ultimately this Court passed the following order :
"Special leave is granted. We have heard
the appeal. This appeal is filed against the
order of the High Court dated 7.12.1988 by which
it refused to take any action against the
respondent for not complying with the writ issued
by the High Court in Appeal from Original Order
No. 839 of 1986. The complaint of Mr. A.K.
Sen learned counsel for the appellants is that
the order dated 19.11.86 passed by the High Court
which had become final had not been complied with
by the respondents. The High Court has disposed
of the matter by observing.
"Contempt matter is between the Court and
the alleged contemner respondents ........ For
the aforesaid reasons, we are not inclined to
exercise our discretion in initiating a
proceeding and accordingly we reject this
application."
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The High Court, on remand, directed the appellants
to grant recognition within a period of two months, failing
which the contemners should appear on 20th December, 1991
for passing necessary orders for imprisonment and fine.
Thereafter, the appellants granted provisional recognition
to the respondents for two years by order dated 10th
December, 1991.
Further, so far as the facts, as aforesaid,
submitted by learned counsel for the respondents were only
to show the mala fide of the appellants is not giving
recognition as high Madrasah to the respondents-institution
for which respondents have initiated various proceedings and
ultimately obtained the said orders. This was emphasised
more to show the mala fide attitude of the appellant
authorities which it seems, was the foundation of the
argument before the High Court resulting into the impugned
orders. The controversy now in this case, to which we are
concerned, is regarding the approval of teaching and
non-teaching staff of the said Madrasah. As aforesaid,
submission for the appellants is except which is the subject
matter of challenge in the appeal arising out of SLP No.
28178 of 1995.
Since in terms of the order dated 9th February,
1994, the concerned authorities did not issue any order of
approval of the teaching and non teaching staff of the said
Madrasah a contempt proceeding was drawn against the
appellants. On 1st July, 1994 the Division Bench in the
said proceeding directed to accord provisional approval to
the teachers concerned by Tuesday next, subject to further
orders without prejudice to the rights and contentions of
the parties. Thereafter, provisional approval was given to
16 teaching and 3 non teaching staff. Subsequently, the
appellants made an application dated 19th July, 1994 for the
modification and for review of the order dated 9th February,
1994.
It is not in dispute that the Division Bench of the
Calcutta High Court, while deciding application in FMAT No.
337/94, also decided the appeal, that is to say, FMAT No.
337/94 which is evidenced from the following order few
teachers the other teachers do not prima facie posses the
requisite qualification as per rules which requires scrutiny
and adjudication by the concerned authority. In terms of
the conditions laid down in the provisional recognition, the
school authorities had to reconstitute the managing
committee according to the rules. The Trial Judge directed
the secretary of the Madrasah Board to accord approval of
the election of members of the category of guardians and
also directed the District Inspector of Schools to forward a
copy of the report to the said Board for giving its approval
in favour of the said 31 persons (24 teachers and 7
non-teaching staff) preferably within one month from
forwarding of the report. Being aggrieved by the said
order, an appeal was preferred before the Division Bench of
Calcutta High Court in FMAT No. 337 of 1994.
The Division Bench as aforesaid, passed an order on
9th February, 1994 directing the Board to give approval to
the service of teaching and nonteaching staff of the said
Madrasah within one month from the date in respect of whom
recommendation had already been made and also directed to
submit the grant-in-aid application for release of all
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salaries within two months. It is this order dated 9th
February, 1994, as aforesaid,
"After passing of this order nothing
remains to becided in the appeal. Accordingly,
the appeal is treated as on day’s list and both
the appeal and the application are disposed of as
above."
The submission by learned senior counsel for the
respondents Ms. Indira Jaisingh, is that the appellant
authorities are deliberately delaying to give recognition to
the teaching and non teaching staff through they have all
the required materials with them. Further, the information
sought by the appellants through the letter of District
Inspector of Schools dated 21st Sept. , 1992 and of the
Secretary of the Board of the same date, are such, which are
available with respondents and the other from respondents’
earlier letter dated 6th August, 1992 where qualification of
all the teachers are mentioned and from other inspection
reports of the appellants. It was faintly submitted that the
delay is deliberately caused, as was caused in the case of
recognition of the said institution as High Madrasah with
mala fide. Hence, it was submitted that the High Court had
rightly directed the respondents to grant recognition of the
teaching and non teaching staff.
Learned counsel further submitted that the only
question to be adjudicated is whether the number of teaching
staff and their qualifications are, as required by the staff
pattern for the High Madrasah, with reference to the
relevant rules and circlers. It is submitted that this
Court may itself examine on the material on record which
would show that the respondents satisfy both the conditions.
Learned counsel for the appellants on the other hand
strongly repelling this, submitted that the figures of
students shown by the respondents are inflated to qualify
for more teachers and this inspection and scrutiny has yet
to be done by the authorities including the verification of
qualifications of the teachers. Learned counsel for the
respondents then submitted that let the appellants accept
the figures found by their own inspections and decide the
issue in question. Even this was repelled by the learned
counsel for the appellants by submitting that in the two
inspections made by the Assistant District Inspector of
school and District Inspector of School, which is also
submitted by the learned counsel for the respondents on one
occasion the school was closed and on the other it was when
High School examination was going on, which would not give
correct picture. Students found giving examination for the
High School in the increased number, cannot be construed as
the strength of students in class Xth, as in the
examination, large number of failed students also appeared,
who under the relevant rules cannot be enrolled as regular
students.
Submissions were also made by the learned senior
counsel for both the sides with regard to the ininum
qualification of the teachers in questioon with reference to
rules and circulars but we do not propose to advert to those
for the reason we are recording hereunder.
It is not in dispute, in this case, that after the
management sent its letter dated 6th August, 1992 for the
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approval of its 31 staff, viz both teaching and non teaching
staff, both the District Inspector of School and the
Secretary of Board sought for certain information through
their letters dated 21th Sept., 1992. Instead of sending
any reply, the management filed the writ petition in the
High Court, leading to passing of the impugned orders.
Thus, till this date the appellant authorities have yet not
exercised their discretion. Submission for the respondents
was that this Court itself should examine and decide the
question in issue based on the material on records to set at
rest the long standing issue. We have no hesitation to
decline such a suggestion. The Courts can either direct the
statutory authorities, where it is not exercising its
discretion, by mandamus to exercise its discretion or when
exercised to see whether it has been validly exercised. It
would be inappropriate for the Court to substitute itself
for the statutory authorities to decide the matter.
In the impugned order, the High Court committed many
manifest errors and was swayed by what preceded the present
question, viz., inordinate delay in the recognition of High
Madrasah. That chapter was a closed chapter after granting
recognition as High Madrasah. Reference or the background
what precedes the present issue may have relevance but to
conclude on the said background without adverting to the
question in issue cannot be sustained.
On the perusal of the impugned order, we do not find
that any consideration was given in the impugned orders on
the issue in question. This apart, the High Court disposed
of the main appeal on the date not fixed for the same, while
disposing of the application. It seems that in the
background of the anxiety of the management, in view of the
various proceedings undertaken including contempt
proceedings for implementing the learned Single Judge’s
order, the court, instead of adverting to the question in
issue, concentrated more to see the said 31 persons be
approved within the specified time. As we have held above,
without the statutory authority applying its mind for their
approval and the impugned order not adjudicating the issue
in question how the impugned orders could be sustained. The
remote suggestion by the learned counsel for the respondents
of the mala fide also cannot stand as we do not find, by
firstly, any such allegation on record nor any such person
by name has been impleaded as a party.
Finally, we accept the suggestion of the learned
senior counsel for the respondents that in case the matter
is to be decided by the authorities instead of leaving this
matter for parties to go to the High Court again after such
adjudication, if so advised, this matter be kept pending in
this Court os that the matter may be finally decided here
instead of the matter taking long circular route again.
Accordingly, we direct the concerned authorities to
decide the aforesaid question raised by making any
inspections, as it deem fit and proper, after giving due
opportunity to the management, decide the matter within four
months and place its decision before this Court within three
weeks thereafter, after giving copy of the same to the
management.
Let thus case be usted after the aforesaid period
for final disposal.
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