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Sri Jitendra Nath Barman & Others v/s The State of West Bengal & Others


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    FMA. No. 1136 of 2017

    Decided On, 17 April 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE I. P. MUKERJI & THE HONOURABLE MR. JUSTICE MD. NIZAMUDDIN

    For the Appearing Parties: Kamalesh Bhattacharya, Razaul Hossain, Parvez Hossain, Santanu Kumar Mitra, Subhabrata Datta, Debashis Sarkar, Advocates.



Judgment Text

I.P. Mukerji, J.

The point involved in this appeal is very short.

The issue is: When a school is recognized as a junior high school by the Board of Secondary Education can it claim a special consideration to receive aid or grant from the government?

There is a primary school in P.O. - Paschim Monoharpur in Uttar Dinajpur, by the name of Lakshman Chandra Jogneswar 4-Class Junior High School. It was established in 1975.

Since then, it has been seeking recognition and financial aid from the government.

An application for recognition of the school was made on 4th September, 2003, to the Board. The district level inspection team held an inspection on 16th September, 2003 and on 18th September, 2003. The State Government expressed its views on the report on 4th December, 2003 under Section 19(3) of the West Bengal Board of Secondary Education Act, 1963. The recognition committee constituted by the Board declined to recognize the school. On 22nd April, 2004, the Board considering this issue in obedience to an order dated 22nd March, 2002 passed by this Court in a writ application [WP No. 2283(W) of 2002], rejected the application of the school for recognition.

Another writ was preferred on behalf of the school in this Court [WP No. 9141(W) of 2004] asking for recognition. This writ application succeeded. On 3rd June, 2013 this Court set aside the decision dated 22nd April, 2004. On 22nd July, 2013 the district level inspection team made another inspection and on the same day submitted its report. Even then, very easily, the recognition did not come. Contempt proceedings had to be taken out by the school against the respondents. Finally, a decision dated 27th August, 2013 was taken by the Board to recognize the school as a 4-Class Junior High School (Class V - Class VIII) with Bengali as first language with effect from 1st January, 2013, provisionally for one year without any financial assistance subject to the following conditions. These conditions are set out hereunder:

"1. That the school authority shall never claim any financial assistance from the State Government.

2. That the school authority shall implement the prescribed pay scales and allowances for the teaching and non-teaching staff of the school.

3. That the school authority shall provide retirement benefits to the teaching and non teaching staff of the school as per Death-cum-Retirement Benefit scheme.

4. That the Managing Committee of the School shall be constituted with at least three guardian members, three elected teacher members and one non-teaching staff member.

5. That the school authority shall not enhance tuition fees charges without prior permission of the competent authority.

6. That the school shall not charge any capitation fee or its equivalent by any means.

7. That the recruitment of teachers shall be done in accordance with transparent, merit-based criteria, as laid down in the relevant Govt. Rules/Govt. Orders and information thereof shall be made available to the State Govt., if necessary.

8. That the funds raised by the school authority, the fees collected and income from any other source, shall not be utilized for any other purpose than the welfare of the school and benefit of education of the students and the teaching and non-teaching staff of the school.

9. That any type of change in the ownership of the school or handing over of property or management of the school or changing/ amending the character of the Parent Body shall not be done without prior notice to the State Govt.

10. That service of teaching and non-teaching staff shall not be terminated without giving opportunity of being heard by the Competent Authority and without observing due disciplinary proceedings.

11. That the service condition of the teaching and non- teaching staff including provisions of security of service, disciplinary proceedings and procedure for appeal shall be guided by the directions laid down in the Government Rules/Orders and submitted to the State Government in the School Education Department.

12. Violation of all or any of the declarations as in para nos. 1 to 11 in this Affidavit shall constitute sufficient reason for withdrawal of "No Objection Certificate, or upgradation / affiliation, as the case may be.

13. The school shall abide by procedure and Rules and legal provisions that may be promulgated in this regard.

14. The school authority should meet up the deficiency within one year either the provisional recognition may be withdrawn after one year."

The above recognition is granted subject to fulfilment of the conditions mentioned herewith.

A report of fulfilment of conditions as per attached sheet should be forwarded to the Board within one year and a copy of such report should be forwarded to the School Education Deptt., Director of School Education, W.B. and the District Inspector of Schools (SE) concerned.

The existing Organising Committee is permitted to function upto 28.02.2014 and Administrator/Adhoc Committee, if appointed by the Board, shall also continue to function upto 28.02.2014. The question of extension of recognition will be considered on receipt of the above report. The conditions to this recognition are to be strictly complied with. In default, the Board reserves the right to cancel or withdraw recognition.

You are requested to acknowledge receipt of this letter and to return the enclosed Form No. 83 duly filled in by return of post positively. The name of the school has been recorded as :-

LAKSHMAN CHANDRA JAGESWAR 4-CLASS JR. HIGH SCHOOL" A third writ [WP No.32821(W) of 2013] was filed by the Managing Committee of the school asking for aid from the government together with recognition. On 5th December, 2016 this writ was dismissed by this Court on the ground that the school had approached them without satisfying the government that it fulfilled the fourteen conditions. The fundamental error committed by the learned Judge was to make an assumption that upon fulfilment of the conditions the Board or State had promised aid. In fact, the first condition was that the school would never ask for aid from the respondents. Observing this condition would tantamount to accepting the dismissal of the writ application. Asking the school to comply with those conditions would immediately mean withdrawal of the writ petition, the primary purpose of which was to get an order after granting financial assistance.

Look at the onerous conditions that were sought to be imposed. The school was to maintain the prescribed pay-scales and allowances for teaching and non-teaching staff. It was to provide retirement benefits to them according to the Death-cum-Retirement Benefit scheme of the government. It could not increase the tuition fees without the permission of the competent authority. It could not charge any capitation fee or its equivalent. The income from the school could not be utilized for any purpose other than for the benefit of the school and the education of the students and for the benefit of the teaching and non-teaching staff. The school could not change hands or transfer its property or even change its management without notice to the State government. The teaching and non-teaching staff could not be removed without being heard by the competent authority and without initiation of disciplinary proceedings laid down in the government Rules, circulars, orders etc. This compliance had to be made within one year from the date of issuance of the letter of the Secretary, West Bengal Board of Secondary Education to the Secretary of the school, otherwise the recognition of the school would be cancelled.

We were not apprised by learned Counsel as to whether this provisionable recognition is continuing or has been cancelled.

The West Bengal Board of Secondary Education is like an organ of the State. While recognizing the school the Board straightaway proclaimed that it would never ask for financial assistance from the State. This initial stipulation is most unconscionable, unreasonable and shows highhanded attitude. How could the Board, while granting recognition fetter the hands of the school from seeking financial aid? How could the Board pre- determine that at no point of time the school would be entitled to receive financial aid from the State?

It was understandable if after providing financial assistance the State imposed the conditions that it did for management and running of the school. Without providing any financial assistance making such stipulations that would tantamount to controlling absolutely the finances of the school, the terms and conditions of service of the members of the teaching and non-teaching staff, the mode of utilization of its funds, the restrictions on such utilization and so on are indeed very draconian, unreasonable and unjust.

The school has been inspected, on more than one occasion by district level inspection teams. These visits were for the purpose of certifying whether the school was fit for recognition. Now it is absolutely plain that the factors that have been taken into account for recognizing a school are more or less the same as those taken into account for providing financial aid. The only exception is that for providing financial aid the financial resources of the school are also taken into account. Otherwise, the considerations are the same, existence and maintenance of a proper infrastructure, facilities, staff pattern, quality of education to be imparted and so on. Once a school has been recognized its expectation to be provided financial aid by the State is most legitimate an

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d ought to have been favourably considered by the State. But, instead of considering the expectation of the school favourably, these fourteen conditions have been imposed while recognizing the school. The result of this would be that the school is unlikely to get any financial aid at any point of time. In those circumstances, in my opinion, the school is entitled to financial aid, as a consequence of its recognition subject to its following the said fourteen conditions, except the one debarring the school from asking for financial assistance. We direct accordingly. The amount of financial aid or the terms and conditions of providing the same are left to the State. We direct the State to take a decision in the matter within eight weeks of communication of this order. The impugned judgment and order dated 5th December, 2016 is set aside. This appeal is allowed to the above extent. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree, Md. Nizamuddin, J.
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