w w w . L a w y e r S e r v i c e s . i n



Fakhre Alam & Another v/s State of West Bengal & Others


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    First Miscellaneous Appeal No. 836 of 2015

    Decided On, 08 August 2017

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DIPANKAR DATTA & THE HONOURABLE MR. JUSTICE DEBI PROSAD DEY

    For the Appearing Parties: Himadri Barua, Biswajit Das, Tapan Kr Mukherjee, Somnath Naskar, Kamalesh Bhattacharya, Aniruddha Bhattacharya, Shamim Ahammed, Saugata Bhattacharya, Advocates.



Judgment Text

1. W.P. 7227 (W) of 2008 (Aslam Ali v. The State of West Bengal & ors.) was disposed of by a learned Judge of this Court by an order dated September 23, 2009, reading as follows:

"Let this matter be treated as on day's list. After hearing Mr. Banerjee, Learned Advocate for the petitioner and Mr. Panda, Learned Advocate for the School Authority it appears that the school Authority of Salimiah High School (H.S.), P.O. Kamarhati, District: North 24-Parganas had appointed the petitioner in the post of Headmaster of the said school w.e.f. 02.05.2007 as per rules and the prayer for approval of appointment has already been sent to the District Inspector of Schools (SE), Barrackpore on 27.06.2007.

The school authority is directed to send again all the necessary papers to the District Inspector of Schools (S.E.) Barrackpore for approval of said appointment of the petitioner being the eligible candidate within two weeks and it is needless to mention that the District Inspector of Schools (S.E.) Barrackpore shall approve the appointment of the petitioner to the post of Headmaster of the said school with effect from 02.05.2007 with all financial benefits within a week from the date of receipt of the papers for approval of appointment.

The writ petition is disposed of.

There will be no order as to costs."

2. The aforesaid order was not implemented by the District Inspector of Schools (SE), Barrackpore, 24 Parganas (North) (hereafter the 'DIoS') prompting the writ petitioner (hereafter Aslam Ali) to present a further writ petition [W.P. 1683 (W) of 2013] before another learned Judge of this Court. Upon hearing learned advocates for Aslam Ali and the State, such writ petition was disposed of by an order dated February 21, 2013, reading as follows:

"This writ application is filed by the petitioner for a direction upon the respondent No.3 to approve his appointment in the post of Headmaster of Salimiah High School (H.S.), DistrictNorth 24-Parganas.

Having heard the learned Counsel appearing for the respective parties as also after considering the facts and circumstances of this case, I find that the petitioner was appointed to the post under reference by the Managing Committee of the school under reference. Thereafter the petitioner filed an application under Article 226 of the Constitution of India in the matter of Aslam Ali vs. State of West Bengal & Ors. (In Re: W.P. No.7227 (W) of 2008). The above writ application was disposed of on September 23, 2009 with a direction upon the Managing Committee of the school concerned to send the necessary papers to the respondent No.3 for his approval and the respondent No.3 was directed to grant approval of his appointment to the petitioner.

After perusing the materials on record, I find that in compliance of the above order, the Managing Committee of the school in question sent the necessary papers to the respondent No.3 on May 9, 2012 but no decision is taken by the respondent No.3 in the above matter in spite of a direction upon him.

I direct the respondent No.3 to accord approval of the appointment of the petitioner to the post of Headmaster in terms of the order dated September 23, 2009 within a period of four weeks from the date of communication of this order.

This writ application is, thus, disposed of.

There will be, however, no order as to costs."

3. Pursuant to such order, the DIoS vide memo dated May 8, 2013 conveyed to the Secretary, Salimiah High School (H.S.), P.O. Kamarhati, 24-Parganas (North) to the following effect:

"Sub: Approval of Appointment of Aslam Ali, B.Com, M.A. (persion), B.Ed. to the post of Headmaster of Salimiah High School (H.S.) P.O.-Kamarhati, North 24-Parganas.

Ref: i) Solemn Order passed on 23-09-2009 in W.P. No.7227 (W) of 2008.

ii) Solemn Order passed 21-02-2013 in W.P. No.1683 (W) of 2013.

In reference to the above, the undersigned has to inform him that the approval of appointment of Aslam Ali (Petitioner) as Headmaster of Salimiah High School (H.S.), P.O. Kamarhati, North 24-Parganas is hereby accorded with effect from 02-05- 2007 in compliance with the Hon'ble Court's Order dated 23-09- 2009 and 21-02-2013 in W.P. No.7727 (W) of 2008 and W.P. No.1683 (W) of 2013.

He is, therefore, requested to act accordingly."

4. After approval of appointment of Aslam Ali by the aforesaid order of the DIoS, the order dated September 23, 2009 passed in W.P. 7227 (W) of 2008 was challenged by Fakhre Alam and Md. Shameem Ansari (hereafter the appellants) by presenting an intra-court appeal (MAT 797 of 2014), being the one under consideration by us. Such appeal was presented together with applications for leave to appeal as well as for condonation of delay in preferring such appeal. The appellants claimed that they are approved teaching staff of Salimiah High School (H.S.) and that they had no knowledge of the proceedings initiated before this Court by Aslam Ali. According to them, Aslam Ali had been functioning as the teacher-in-charge of the school for a long time and that he could not have been absorbed as the headmaster of the school. It was further contended by them that the post of headmaster is required to be filled up on the recommendation of the School Service Commission (hereafter the SSC) having jurisdiction and that Aslam Ali not having been recommended by the SSC and also not having requisite qualifications, the order of the learned Judge directing the DIoS to approve the appointment of Aslam Ali as headmaster with effect form May 2, 2007 together with all financial benefits, is absolutely illegal and unsustainable in law.

5. A coordinate Bench by its order dated February 9, 2015 granted the appellants leave to appeal, upon condonation of delay. Directions for making the appeal ready for final hearing were given and the order impugned was directed to remain stayed till the disposal of the appeal. It was also observed that such order of stay would not preclude Aslam Ali to draw his salary as assistant teacher and/or necessary allowance available to a teacher-incharge.

6. The appeal has since been listed before us. We have heard Mr. Barua, learned advocates for the appellants, Mr. Tapan Kumar Mukherjee, learned senior advocate for the State, Mr. Kamalesh Bhattacharya, learned advocate for the school, Mr. Shamim Ahammed, learned advocate for Aslam Ali and Mr. Saugata Bhattacharya, learned advocate for the SSC at some length. Apart from the paper books, we have also considered a supplementary affidavit filed by the appellants and an affidavit of Aslam Ali filed in compliance with our order dated July 18, 2017, whereby we had granted him leave to place on record documents on which he sought to place reliance.

7. Before adverting to the rival contentions, it would be useful to refer to the facts giving rise to presentation of the first writ petition by Aslam Ali.

8. Aslam Ali with five (5) other teachers and two (2) non-teaching staff had allegedly organized Salimiah Junior High School. A junior high school has four (4) classes from Classes V to VIII. The West Bengal Board of Secondary Education (hereafter the Board) granted formal recognition by its order dated April 10, 1997. Salimiah Junior High School thus attained the status of a recognized non-government aided institution. The DIoS by his memo dated April 22, 1999 approved, inter alia, the appointment of Aslam Ali as teacher-incharge (organizing), subject to the condition that he would improve his qualifications within three years. Pertinently, on April 22, 1999, Aslam Ali did not have honours qualification. Such qualification was required to be possessed by an incumbent headmaster. In due course of time, Aslam Ali undertook higher study and was awarded the degree of M.A. (Persian) and the DIoS vide memo Dated December 19, 2000 allowed post- graduate scale of pay in his favour with effect from September 29, 2000.

9. In the meanwhile, the Board by its memo dated September 11, 1998 upgraded Salimiah Junior High School to a High School with effect from May 1, 1998. Permission was granted to open Class-IX from May 1, 1998 and Class-X from May 1, 1999 provisionally for two years subject to fulfilment of the prescribed conditions.

10. By a further memo dated March 14, 2007 the Board granted recognition for imparting higher secondary education in general courses with co-education, resulting in the school being recognized as Salimiah High School (H.S.).

11. According to Aslam Ali, the SSC intending to fill up vacant posts of headmaster of different schools. For such purpose, a booklet had been published which included the vacancy on the post of headmaster in Salimiah High School (H.S.). Noticing the same, the DIoS had raised an objection vide memo dated January 24, 2001 to the effect that the school had a functional headmaster, where after no action was taken to fill up the post.

12. In due course of time, Aslam Ali completed ten (10) years of approved service. On May 2, 2007, a resolution was adopted by the managing committee of Salimiah High School (H.S.) to appoint Aslam Ali on the post of headmaster with effect from May 2, 2007. Accordingly, the secretary was authorized to take steps for obtaining approval of the appointment of Aslam Ali as the headmaster of the school.

13. In pursuance of such resolution, the secretary appointed Aslam Ali on the post of headmaster by his letter dated May 3, 2007, to take effect from May 2, 2007. The DIoS was, thereafter, approached vide letter dated May 4, 2007 for according approval of the appointment of Aslam Ali on the post of headmaster. Similar request was submitted before the Director of School Education, West Bengal (hereafter the DSE) by the secretary by his letter dated June 27, 2007. The DSE, vide memo dated May 26, 2007 advised the DIoS to contact the SSC for disposal of the case.

14. It is in the backdrop of the aforesaid facts and circumstances that Aslam Ali initiated the first round of litigation before this Court, which terminated by reason of the order dated September 23, 2009, impugned before us.

15. Mr. Barua was scathing in his attack of the order dated September 23, 2009. According to him, the same is thoroughly illegal and unsustainable in law. After the advent of the West Bengal School Service Commission Act, 1997 (hereafter the 1997 Act) with effect from November 1, 1997, appointment on the post of headmaster could be made only on the basis of recommendation of the SSC and not otherwise; consequently, the learned Judge committed gross error of jurisdiction in directing approval of appointment in favour of Aslam Ali.

16. Mr. Barua also took exception to the manner of disposal of the writ petition by the learned Judge and commented that there could have been no such urgent reason for disposing of the writ petition despite the same not having been enlisted on September 23, 2009.

17. Mr. Mukherjee supported the appellants and conceded that the State instead of according approval to the appointment of Aslam Ali on the post of headmaster ought to have challenged the order dated September 23, 2009, particularly in view of the fact that the State was not put on notice and had suffered an ex-parte order.

18. Mr. Saugata Bhattacharya was also quite critical of the impugned order. According to him, the SSC was deliberately not arrayed as a respondent in W.P. 7227 (W) of 2008 despite the law that no appointment could be made except on its recommendation.

19. We find from the order dated February 9, 2015 that liberty had been granted to the SSC to apply for impleadment in accordance with law. However, no such application having been made, the SSC has not been formally brought on record as a party respondent. However, having regard to the fact that the SSC has been represented before us, we have recorded the submission advanced in its behalf.

20. Appearing on behalf of Aslam Ali and opposing the appeal, Mr. Ahammed submitted that the appeal itself is not maintainable in the absence of any challenge to the subsequent order dated February 21, 2013 passed in W.P. 1683 (W) of 2013 (being the subsequent writ petition of Aslam Ali). It was further contended by Mr. Ahammed that Aslam Ali had been functioning as the teacherin-charge right from 1997 and having enhanced his qualifications commensurate with the qualifications required to be possessed by an incumbent headmaster, the learned Judge did not commit any error in directing the DIoS to approve his appointment. Next, it was contended that Aslam Ali was approved as the teacher-incharge of Salimiah Junior High School prior to promulgation of the 1997 Act and, therefore, the same would have no application in the present case. The other point of argument was that the appellants did not have the locus standi to challenge the order dated September 23, 2009. Initially, they too did not have the requisite qualifications for appointment on the post of headmaster and after acquiring such qualifications the appeal had been presented. Finally, it was submitted that if approval of appointment of Aslam Ali as headmaster were set aside, there would be no post where Aslam Ali could be accommodated (all other teaching posts in the school having been filled up) and consequently, he would lose his service. It was, accordingly, prayed that the appeal be dismissed.

21. Mr. Kamalesh Bhattacharya appearing for the school fully supported the claim of Aslam Ali and contended that no interference in exercise of our appellate jurisdiction is called for.

22. In reply, Mr. Barua contended that the order granting leave to appeal dated February 9, 2015 had not been challenged by Aslam Ali. Such order was passed only after satisfaction was reached by the coordinate Bench that the appellants were indeed persons aggrieved having the locus standi to present an appeal against the order dated September 23, 2009. That apart, the appellants having been duly appointed as teachers in the school, they are not prepared to accept anyone as headmaster above them who has not been appointed in accordance with law and is nothing but a backdoor entrant.

23. Having heard the parties and noticed the facts giving rise to the present appeal, we are inclined to the view that the order dated September 23, 2009 is such that the same ought not to be retained on the records of this premiere institution. It is these sorts of orders like the impugned order, which does more disservice than service, and makes a mockery of the justice delivery system. The writ petition, which had not even been listed for consideration was considered and disposed of, treating it as on day's list, presumably because learned advocate for Aslam Ali had mentioned it and served a notice on the learned advocate for the school (who incidentally was Aslam Ali's advocate on record in the second round of litigation). The order does not record any reason why the writ petition could not be brought on the list the next day and considered as a listed matter. The learned Judge did not also take the pains to ascertain as to whether the State was put on notice or not and/or also as to whether the extant law permitted approval of appointment of Aslam Ali. Section 9 of the 1997 Act was given a complete go-bye and no reason was assigned as to why the learned Judge was in favour of exercise of discretion in favour of Aslam Ali.

The observation in the order impugned that the school authority had appointed Aslam Ali on the post of headmaster with effect from May 2, 2007 "as per rules" is obviously incorrect inasmuch as there was no recommendation of the SSC in that behalf. It seems, the proceedings were conducted only to obtain an order from the learned Judge behind the back of the State and without making the SSC a party. It is not that Aslam Ali was not aware that the SSC was a necessary party, being the authority having the authority to recommend teachers (including headmasters) for appointment. The plinth on which the order rests being flawed, the consequent direction for approval of appointment of Aslam Ali on the post of headmaster obviously could not have been made.

24. The argument of Mr. Ahammed that the order dated September 23, 2009 has been followed by the subsequent order dated February 21, 2013, which has not been challenged, does not aid Aslam Ali. The foundation of the order dated February 21, 2013 is the previous order dated September 23, 2009. It is found from the memo of the DIoS dated May 8, 2013, extracted supra, that approval of appointment of Aslam Ali on the post of headmaster was accorded with effect from May 2, 2007, inter alia, in compliance with the order dated September 23, 2009 in W.P. 7227 (W) of 2008 and not solely on the basis of the order dated February 21, 2003 in W.P. 1683 (W) of 2013. If the foundation is removed, nothing remains of the superstructure. Should the order dated September 23, 2009 be set aside, nothing further would survive for Aslam Ali to cling on in support of his objection to the maintainability of this appeal.

25. The point of locus standi remains to be addressed now. There can be no dispute that the post of headmaster is one of the most important, if not the most, posts in a school. He is not only the administrative head, but also a father figure for the students in the real sense of the term. The paramount responsibility of guiding the students and imbibing them with values lies on him. If an incumbent headmaster occupies the chair by reason of a tainted exercise, it is anybody's guess as to how the students would shape up in the future. True it is, this appeal is not at the instance of any of the guardians but sight cannot be lost of the fact that an assistant teacher is entitled in law to claim that he should be made to work under a headmaster who is duly qualified and has been appointed as such in accordance with the prevalent law. To the extent that the appellants have been made to discharge their duties and perform their functions under an incumbent headmaster who is not entitled in law to hold on to such post, the appellants do have the locus standi to question the order dated September 23, 2009 without even being under an obligation to question the subsequent order dated February 21, 2003, which is merely one passed for execution of the earlier order.

26. We are conscious that se

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tting aside of the order dated September 23, 2009 might put Aslam Ali in severe trouble if no other teaching post is vacant in Salimiah High School (H.S.). We shall, while disposing of the appeal, keep such fact in mind. 27. The order dated September 23, 2009 being wholly illegal and unsustainable in law, stands set aside. As a consequence of the same, the order approving Aslam Ali's appointment on the post of headmaster shall be of no effect or further effect. Aslam Ali shall also not be entitled to reap the benefit of the subsequent order dated February 21, 2013, which is founded on the order dated September 23, 2009. 28. Aslam Ali shall continue to function as the teacher-in-charge, till such time as indicated hereafter, and shall be entitled to pay and allowances of an assistant teacher and such other extra allowance as may be admissible to a teacher-in-charge. In the event he has enhanced his qualification in a relevant subject i.e. a subject which is taught to the students of Salimiah High School (H.S.), he shall continue to draw post graduate scale of pay; if not, he shall draw his pay and allowances in the graduate scale of pay. Aslam Ali shall step down as the teacher-in-charge of the school, immediately upon appointment of a headmaster of the school by the SSC. In the event of appointment of a regular headmaster, Aslam Ali shall continue to discharge duty on the post of an assistant teacher of the school, which shall be personal to him and such post shall stand abolished on and from date of his retirement. 29. The DIoS shall immediately but not later than three (3) days from date of receipt of a copy of this judgment and order, report the vacancy on the post of headmaster in Salimiah High School (H.S.) to the SSC and the SSC shall take immediate steps to recommend a suitable candidate for appointment on such post. 30. The appeal stands allowed, without any order for costs. Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
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10-10-2014 M/s. K.T. Kubal & Company Versus Mujibur Rehman Haji Israr Alam Siddiqui High Court of Judicature at Bombay
17-09-2014 Mashkoor Alam Versus Amir Bano High Court of Judicature at Allahabad
15-09-2014 Md Anwar Alam Khan & Another Versus Zaibun Nisa & Others High Court of Judicature at Calcutta
08-09-2014 National Insurance Co. Ltd. Through General Manager & Another Versus Alam Ali National Consumer Disputes Redressal Commission NCDRC