Harish Tandon, J
The present appeal is directed against a judgment and order dated 31st March, 2022 passed by the Single Bench in WPA 2133 of 2022 whereby and
whereunder the appellant was directed not to discharge duties and functions as Assistant Headmistress of Kamala Vidyamandir High School for Girls
(HS) nor shall sign any papers and documents including the attendance register in such capacity in the said school. The order impugned runs thus:-
“The fundamental question involved in this matter is how one Assistant Headmistress can be transferred from one school to another
school as Assistant Headmistress.
The school does not require any Assistant Headmistress as has been shown before me by the learned advocate for the petitioners and it was
supported by the Managing Committee of the Kamala Vidyamandir High School for Girls (H.S) that the school has now 355 students. An
Assistant Headmistress can be appointed if the students strength of the school is above 750 and not below that. Therefore, the school need
not have any Assistant Headmistress and the Central School Service Commission is directed to post the Respondent No.8 as an assistant
teacher in any other school by giving her pay protection which is to be looked into by the Commissioner of School Education as she was once
selected as Assistant Headmistress of a school. The Respondent no.8 being the said Assistant Headmistress from today shall not be the
Assistant Headmistress of Kamala Vidyamandir High School for Girls (H.S) and she shall not sign any papers or documents including
attendance register as the Assistant Headmistress of the school or as the Teacher-in-Charge of the school from today.
With this observation and direction this writ application is allowed.â€
It appears from the impugned order that apart from the restrain having created upon the appellant in discharging duties as Assistant Headmistress or
the Teacher-in-Charge, the West Bengal Central School Service Commission was also directed to post the appellant as Assistant Teacher in any other
school with pay protection. Therefore, the pivotal issue involved in the instant appeal is whether the writ court can pass an order demoting the
appellant to the post inferior to the post which she held without following and/or keeping adherence to the statutory Rules or end provisions of law
applicable thereto.
Indubitably, the appellant was appointed as Assistant Teacher in Garden Reach Nutbehari Das Girls High School on November 3, 1997 which was
duly approved by the DI of Schools (S.E) on 4th February, 1998.
Subsequently, the post of the Assistant Headmistress was duly sanctioned vide Memo No. 4G-633/80 dated 6th September, 2010 by the then Director
of School Education, West Bengal. Pursuant to the sanction of the said post, the Selection Committee was constituted and the process of selection
was initiated for filling up the said sanction post of Assistant Headmistress. The appellant offered her candidature for such post and passed all the tier
of examination conducted by the Selection Committee and the D.I. of Schools (S.E.), Kolkata approved the panel and appointed the appellant in such
post. Initially, the said appointment was for a period of two years which was confirmed on 11th September, 2013. Subsequently, the appellant was
transferred from the said school to Sumatinagar Sarat Kumari High School (HS) on administrative grounds. Since the said school where such transfer
was made is situated at a distant place i.e., Sagar, the appellant challenged the said order by filing a writ petition being WP 10053 (W) of 2019 before
this Court. The primary ground for challenge was that the order of transfer depicted that the transfer is made at transferee school as Assistant
Teacher though she held the post of the Assistant Headmistress which is impermissible. The further challenge was made that the transferee school is
at the distant place and she has to commute more than 215 km for her residence being a patient suffering from various ailments.
At the time of argument, the reliance was placed upon a notification dated March 12, 2018 issued by the School Education Department, Secondary
Branch, Government of West Bengal which postulates that the transfer shall only be effected against the sanction post and the post to which the
transfer is recommended shall be of the same category of pay and medium of instructions as the teacher held.
So far as the first ground of challenge was concerned, the writ court noticed that subsequently a corrigendum was issued on March 8, 2019 by the
West Bengal Board of Secondary Education as well as the West Bengal Central School Service Commission correcting the designation of the
appellant in supersession of the earlier order of transfer. So far as the second ground of challenge was concerned, the Court did not find such ground
to be tenable and directed the appellant to join the transferred post as Assistant Headmistress immediately and liberty was granted to the appellant to
make a representation before the Commissioner of School Education raising her difficulties on account of illness and also to regularise the period of
her absence between the order of transfer and the date of joining.
This said order was carried by way of intra-Court appeal before the Division Bench in MAT No. 1077 of 2019. The order of the writ court was
modified to the extent that the moment liberty is granted to the appellant to make representation to the Commissioner of School Education, it is
expected that the said authority would consider the said representation within the stipulated time after giving an opportunity of hearing to the appellant,
if necessary; but till the final decision is taken on such representation, the order of transfer should not be insisted upon.
Pursuant to the said order, the Commissioner of School Education, West Bengal considered and passed the order on 24.10.2019 with categorical
finding that the order of transfer was made on administrative ground as per the instruction issued by the School Education Department. The said
authority was of considered opinion that in view of Clause 7 of the Notification dated 12.3.2018, the Commissioner of School Education is authorised
to deal with any dispute arising in the process of effecting such transfer i.e., to tackle with the administrative difficulties in implementing the
Government order but not a case where the difficulties are faced by the appellant on personal ground and, therefore, he is not competent to grant any
relief. However, the liberty was given to the appellant to approach the School Education Department for consideration of her prayer to transfer the
appellant to school in North Kolkata instead of South 24-parganas on administrative ground. Liberty was further granted to the appellant to approach
the competent authority for addressing her grievance pertaining to her absence as a special leave.
In terms of the said order, the president of the West Bengal Board of Secondary Education issued a further transfer order dated 17th December, 2009
transferring the appellant from Garden Reach Nutbehari Das Girls High School to Sailandra Sarkar vidyalaya but subsequently this transfer order was
cancelled and by an order dated 18th December, 2019 the appellant was transferred to the present school i.e., Kamala Vidyamandir High School for
Girls, Kolkata as Assistant Headmistress. It further appears that the Central School Commission also recommended the transfer of the appellant to the
said school which would be evident from the documents annexed to the application for stay. In compliance of the order of transfer the appellant joined
the present school on 2nd January, 2022 and is a still posted therein.
In the meantime, the Joint Secretary to the Government of West Bengal informed the appellant that her absence has been regularised by the Governor
by treating the same as spent on duty. The President of the School vide letter dated 31st December, 2020 directed the appellant to act as a Teacher-
in-Charge w.e.f, 1st January, 2021 as the Headmistress of the said school is due to retire on the next date. The said order was duly approved by DI of
Schools (S.E), Kolkata. It appears from the pleading that several allegations and non-cooperation were levelled against the appellant and the matter
reached to the Board and the competent authority directed the president to call a meeting to resolve such dispute in order to maintain congenial
atmosphere in the school. Thereafter, the private respondents herein filed a writ petition WPA 2133 of 2022 not only challenging the order of transfer
dated December 18, 2019 but also seeking a mandamus directing the respondent authorities to take a necessary disciplinary action on the basis of the
complaint lodged against her. By the impugned order, the said writ petition has been disposed of which is challenged in the instant appeal.
Mr. Kalyan Bandopadhyay, Learned Senior Advocate appearing for the appellant challenged the impugned order primarily on the ground that the writ
court cannot usurp the power of the authorities and inflict the penalties neither contemplated in the relevant Rules nor even prayed for in the instant
writ petition. He further submits that the West Bengal Board of Secondary Education (appointment, confirmation, conduct and discipline of teachers
and non-teaching staff) Rules, 2018 (hereinafter referred to as “Disciplinary Rules†for the sake of convenience) which came into effect on 8th
March, 2018 contains the exhaustive provisions pertaining to a disciplinary proceeding against the teachers and non-teaching staff as well as the
penalties to be imposed in the event, the article of charges are proved. He vociferously submits that the penalties contemplated under the said Rules
does not provide for demotion and, therefore, any penalty which is de hors the said provisions of law cannot be imposed by the writ court. He further
submits that the transfer was effected on an administrative ground and not on the basis of an application filed by the appellant and, therefore, the other
Rules pertaining to general transfer has no manner of application. He arduously submitted that the impugned order is unsustainable as the writ court
has travelled beyond the conceivable restraint self-imposed by the courts in exercise of powers under Article 226 of the Constitution. According to
him, the writ court cannot sit as a court of appeal over the views of the competent authority and substitute its own view treating itself to be such
competent authority and placed reliance upon a judgment of the Supreme Court in case of State of W.B. and Ors. â€"vs- Manas Kumar Chakraborty
and Ors. reported in (2003) 2 SCC 604. Mr. Bandopadhyay further submits that though the power to issue writs of mandamus under Article 226 of
the Constitution of India is wide enough to reach as even the injustice is done which is distinct from the power of prerogative writs issued by the
English Courts because of the unique expression “nature†used therein as held in Secretary, Cannanore District Muslim Education Association,
Karimbam vs. State of Kerala and Ors., reported in (2010) 6 SCC 373 but the court should not substitute itself in place of an authority as it would
tantamount to transgression or usurpation of competence as held in Manohar Lal (Dead) by Lrs. Vs. Ugrasen (Dead) By Lrs. and Ors. reported in
(2013) 5 SCC 453. By relying upon a judgment of the Apex Court in case of State of Kerala and Ors. vs. Kandath Distilleries, reported in (2013) 6
SCC 573. Mr. Bandopadhyay, the learned Senior Advocate submits that though the High Court is not powerless to deal with the particular situation
but while dispensing the justice should not break or bent the law as it would amount to transgression of its power and overreach the domain of an
authority. On the same proposition that the High Court should not have taken over the function of the authorities, Mr. Bandopadhyay, learned Senior
Advocate relies upon the another judgment of the Supreme Court in case of D.N. Jeevaraj vs. Chief Secretary, Government of Karnataka and Ors.,
reported in (2016) 2 SCC 653. Mr. Bandopadhyay is very much vocal in his submission and attacked the finding returned by the Single Bench in
relegating the appellant from the post of the Assistant Headmistress to the Assistant Teacher with pay protection, in contending that the Single Bench
has, in fact, introduced the concept of reduction in rank solely by protecting the scale of pay which cannot be termed as an equivalent post and relied
upon a decision of the Supreme Court in case of Vice-Chancellor, L.N. Mithila University vs. Dayanand Jha, reported in (1986) 3 SCC 7 and Tejshree
Ghag and Ors. Vs. Prakash Parashuram Patil and Ors., reported in (2007) 6 SCC 220.
Mr. Bandopadhyay, thus, submits that the court cannot inflict any punishment, not contemplated in the disciplinary Rules nor can substitute itself with
the competent authority upon whom, the power is conferred under the statutory Rules nor can pass an order not contemplated therein in exercise of
the powers conferred under Article 226 of the Constitution of India. In addition to the aforesaid submission, Mr. Bandopadhyay, the learned Senior
Advocate further submits that there was no dispute over the appointment of the appellant upon transfer to the post of Assistant Headmistress but the
real cause behind the filing of the writ petition by the teaching and non-teaching staff of the said school is when the head of the institution entrusted
upon the appellant to act as a Teacher-in-Charge which is obviously temporary in nature as they thought that one amongst them shall lose the
opportunity to act in such capacity.
Mr. Majumdar, the learned Senior Counsel appearing for the private respondents submits that there is no impediment on the part of the teaching and
non-teaching staff of the school to maintain a writ petition challenging an order which is per se illegal. He further submits that the plea of locus has
been considered liberally with an avowed object to remedy the legalities and/or the injustice perpetuated by the authority and placed reliance upon a
judgment of the Full Court of this court in case of Prabhat Pan and ors. vs. State of West Bengal and Ors., reported in AIR 2015 Calcutta 112. Mr.
Majumdar, learned Senior advocate further submits that Section 10C of the West Bengal School Service Commission Act, 1997 provides for a
transfer on twin grounds, firstly, in the interest of the education and secondly, in the interest of public but such transfer from one school to another
should be made against the sanctioned post. He further relied upon a Memo dated 10th July, 2002 issued by the School Education Department,
Government of West in support of his contention that the post of Assistant Headmaster/ Assistant Headmistress can only be filled up by the Managing
Committee/ad-hoc Committee/ Administrator from amongst the sanctioned strength of a teaching staff subject, however, to the prior permission of the
D.I. of Schools (SE) against the sanctioned post. According to him, the Headmaster/ Headmistress cannot be appointed in high/high madrasah unless
the roll strength exceeds 750 or above for three consecutive years and for Higher Secondary Institutions including Madrasah with Higher Secondary
Courses unless the roll strength exceeds 1000 or above for three consecutive years. He, thus, submits that the total strength of the students in the said
school is far below the bench mark and, therefore, such appointment is contrary to the Memo dated 19th May, 2004. To conclude, Mr. Majumdar, the
learned senior advocate submits that in view of the aforesaid Memos it is evident that there cannot be an appointment to the post of Assistant
Headmistress in the said school because of the roll strength nor such appointment can be made upon transfer as there was no sanctioned post of the
Assistant Headmistress. He further submits that there is a different modalities of effecting transfer and if the transfer is made on an application at the
behest of the teacher, such transfer is to be routed through a set procedure and not in the fashion as has been done in the instant case.
Mr. Sutanu Patra, learned advocate appearing for the Central School Service Commission submits that the transfer was made on an administrative
ground envisaged under Section 10C of the West Bengal School Service Commission Act and, therefore, the other provision relating to a general
transfer on an application by the teacher is inapplicable. He further submits that there is no impediment on the part of the Central School Service
Commission in recommending the transfer and the moment sanction is granted by the competent authority it led to a transfer against the sanctioned
post.
The learned advocate appearing for the State has virtually echoed the submission of the appellant and the Central School Service Commission. It is
submitted that the writ court cannot pass an order de hors the statutory Rules and the provisions of law nor can issue a writ of mandamus
commanding the competent authorities to act contrary to law.
On the conspectus of the pleadings, submissions and the arguments advanced at the bar, we find two primary questions involved in the instant appeal,
firstly, whether the recommendation of the West Bengal Central School Services Commission and approval by the D.I. of Schools (HS) proposing a
transfer of an Assistant Headmistress is legally sustainable if the same is not against a sanctioned post, secondly, whether the writ court can usurp the
power of the authorities under the relevant Rules and pass an order inflicting the punishment which is not contemplated in the disciplinary Rules or
whether the court can impose a punishment de hors the procedures and norms provided in the statutory Rules substituting itself with the disciplinary
authority by ignoring the aforesaid procedures.
Question No.1
Before we proceed to determine the aforesaid question, a little prelude to the laws enacted and made applicable within the State of West Bengal
concerning the education, its policies and the regulation are required to be recapitulated. West Bengal Secondary Education Act, 1950 and West
Bengal Secondary Education (Temporary Provisions) Act, 1954 which were occupying the field for nearly a decade were subsequently repealed upon
promulgation of West Bengal Board of Secondary Education Act, 1963 which received the assent of the Governor and published in the extraordinary
Gazette on 28th February, 1963. Apart from the constitution of a Board, Committees and their respective functions of its constituents, Section 45
thereof empowers the State Government to make Rules in relation to a diverse fields of education for its sustenance, development and permission as
well as appointment, determination of scale of pay and other benefits and emoluments including the terms and conditions of the service as exhaustively
provided therein. By virtue of the said Rule making power, more particularly, to sponsor recognition and the control and management of the various
educational institutions, Management of Sponsored Institutions (Secondary Rules, 1972) was framed imbibing within itself the constitution of the
committees and their duties, powers and the roles. The said Rule further provides the duties and responsibilities of the various authorities and the
manner of their appointment so that a healthy and congenial atmosphere can be created in the educational sector. Subsequently, the West Bengal
School Service Commission Act, 1997 was enacted to provide for the constitution of the Regional School Service Commission and Central School
Service Commission in West Bengal for diverse matters connected therewith and incidentally thereto. Section 2 (p) of the said Act defines
“Teacher†as follows:
“Teacher means an Assistant Teacher or any other person, holding a teaching post of a school and recognized as such by the Board or
the Council as the case may be, and includes the Headmaster or the Headmistress but shall not include the Assistant Headmaster or the
Assistant Headmistress or the Teacher holding a post against short-term vacancy caused by deputation, leave or lien.â€
From the bare look of the said definition clause Assistant Headmaster or the Assistant Headmistress or the teacher holding a post against short-term
vacancy caused by deputation, leave or lien are excluded from the purview of the said definition. However, the said Act has undergone a sea change
for various amendments having brought from time to time to which we are not concerned with in relation to a subject dispute except the amendments
which have been brought in relation to a general transfer and the transfer on special grounds. Section 10B was introduced by way of an amendment
having brought in the year 2013 providing an opportunity to an eligible teacher to apply for transfer and the Central commission to recommend such
transfer in the same category of vacant post on such conditions as may be prescribed. Section 10C which is harped upon by the respective parties and
appears to have some relevance empowers the State Education Department of the State Government to direct the commission to make
recommendation for placing any teacher including Assistant Headmaster or any non-teaching staff including the librarian from one school to another
school against any sanctioned posts on twin grounds, firstly in the interest of education and secondly in the interest of public. The later amended
provision is an exception to Section 10B and gives somewhat unbridled powers to the State Government through the School Education Department to
issue direction upon the commission for transfer of any teacher including the Assistant Headmasters/Assistant Headmistress against any sanctioned
posts having necessitated by the interest of education or public. The said provision is not dependant upon the choice of the teacher nor required any
application to be taken for transfer but such power is vested upon the State Government to direct the commission to recommend the transfer on those
specified grounds.
Though the definition of a teacher in West Bengal School Service Commission Act, 1997 excludes the Assistant Headmasters/Assistant Headmistress
but by virtue of a subsequent amendment having brought such definition has been expanded and encompasses within itself the Assistant Headmaster
or Assistant Headmistress. We do not delve to go deep into the matter on the legislative competence of the State in incorporating something in
departing from the parent Act nor any of the parties appearing before us have taken such plea. The undisputed facts discerned from the said amended
provision, namely, Section 10C conveys the manifest intention of the legislature that the State Government through its School Education Department is
empowered to transfer the Assistant Headmasters/Assistant Headmistress on the ground envisaged therein and direct the Commission to make
recommendation. Though a plea was feebly taken before us that the order of the School Education Department transferring the appellant was issued
first followed by the recommendation of the Central School Service Commission but we do not find any discrepancies in this regard as the language
employed in the said Section is plain, unambiguous and clear that the State Government through the School Education Department may issue direction
upon the commission to recommend such transfer which necessarily implies that the recommendation would follow the mandate of the State through
such department. Be that as it may even when the said amendment has not been brought within the said Act of 1997, the guideline vide Memo No.
1628-G.A./OM-18/2001 dated 10th July, 2002 was issued by the School Education Department, Government of West Bengal for recruitment of the
Assistant Headmasters/Assistant Headmistress of the recognised aided non-Government Secondary Schools/Higher Secondary Schools, Government
Sponsored Schools and all types of recognized and aided Madrasah.
Paragraph 2 of the said guidelines manifestly created an obligation on the Headmaster or the Headmistress or Teacher-in-Charge upon receiving the
prior permission from the Dist. Inspector of Schools (SE) to fill up the post of Assistant Headmasters/Assistant Headmistress to notify and collect the
applications from the approved and willing teacher(s) of his/her Institution, who had the requisite qualifications enumerated therein.
Paragraph 3 thereof contemplates the permission of the Selection Committee with its constituents and the exhaustive provisions concerning the
suitability of the candidates for such posts subsequently, by Memo No. 671-SE(S)/ 1A-1/2004 dated 19th May, 2004 was issued by the School
Education Department, Secondary Branch, Government of West Bengal indicating the necessity of appointment of the Assistant
Headmasters/Assistant Headmistressin high school/high madrasah and Higher Secondary School and/or Higher Secondary Madrasah where the roll
strength exceeds 700 or above and 1000 or above respectively for three consecutive years. It was further indicated that the creation of such posts in
any School shall have to be approved by Director of School Education which has been re-designated as the commissioner of School Education.
It is, thus, apparent from the aforesaid the provisions that initially the Assistant Headmasters/Assistant Headmistress were excluded from the purview
of the definition assigned to teacher in West Bengal School Service Commission Act, 1997 but by subsequent Rules the intention is manifest that the
aforesaid Rules have been extended to such posts within the category of the teacher. The aforesaid impression gets further impetus from the West
Bengal Board of Secondary Education (Appointment, Confirmation, Conduct and Discipline of teacher and non-teaching staff) Rules, 2018 while
defining the “misconduct†under Rule 2(m) thereof. The note appended thereto in relation to teacher includes Assistant Headmaster or Assistant
Headmistress. Thus, it is beyond cavil of doubts that the said displinary Rules concerning the teacher or non-teaching staff is also applicable to the
Assistant Headmasters/Assistant Headmistress though not coming within the strict meaning of the teacher under the relevant Act. The conjoint
reading of the aforesaid provisions as enumerated hereinabove leaves no ambiguity that the Assistant Headmasters/Assistant Headmistress can be
appointed in a school from the willing teachers of the said institution provided the post is sanctioned by the competent authority subject, however, to
the fulfilment of the eligibility criterion enshrined therein. Section 10C of the Act of 1997 brought subsequently conveys the manifest intention of the
legislature that such category of persons can be transferred to any other school in the interest of the education and/or public against the sanctioned
post.
The Memo dated 19th May, 2004 creates an embargo in appointment to such post depending upon the roll strength of the students as well as the
creation of such post in any educational institutions. It is no longer res integra that the authorities cannot act de hors the statutory provisions nor can
effect the transfer in contravention thereto. The harmonious reading of the provisions contained in the Act, Rules and the memo issued from time to
time by the competent authority exposes the legislative intention that though the transfer can be effected from one school to another but against the
sanctioned post and therefore, any order of transfer which contravenes the statutory provisions or the mandate of law, if challenged, should not
receive the sanction of the court or its blessing solely on the ground of locus. The powers of the writ court cannot be understood to give sanction to
the action of the statutory authorities but to bring within the precincts of law. Whenever, the injustice is found, such injustice cannot get away solely on
the ground of locus.
In the instant case, it is not in dispute that there was no sanctioned post of the Assistant Headmistress in Kamala Vidyamandir High School for Girls
(HS) and, therefore, such transfer is contrary to Section 10C of the West Bengal School Service Commission Act, 1997. The Memo dated 19th May,
2004 is expressed in the sense that such posts cannot be created nor any appointment can be made if the roll strength as indicated therein is absymally
low. It appears from the pleading that the roll strength of the school is absymally low nor there is any document is coming before us that the
commissioner of the School Education has sanctioned and approved the post of the Assistant Headmasters previously. If the law requires such
transfer to any sanctioned posts, merely by issuing an order of transfer such post cannot be presumed to have been created and/or approved by the
commissioner of School Education being the competent authority in this regard. We, thus, have no hesitation to hold that order of transfer issued in
favour of the appellant is per se illegal and contrary to the provision of the law and is, therefore, quashed and set aside. The question no.1 is answered
accordingly.
Question No.2
The aforesaid question was necessitated because of the nature of the impugned order passed by the Single Bench directing the authority to post the
appellant as assistant teacher in any other school keeping the pay protection as she was one selected as the Assistant Headmistress of the school. It is
nobody’s case; rather it has been admitted by the respective counsels that the mode of selection and the nature of duties and functions of the
respective posts are distinct and different. It would be evident from the Memo dated 10th July, 2002 that the post of Assistant Headmasters/Assistant
Headmistress is separate and independant post and not akin or equivalent to the post of assistant teacher. The modalities of the selection to such post
is also distinct for the simple reason that such post can only be filled up on an application of the approved and willing teachers of the institutions who
are graduates with honours including a special honours or holding master degree with 2 years course having 5 years teaching experience in a Junior
High School/Secondary Institution. The expression “approved†has been clarified to mean having service in an educational institution recognized
by West Bengal Board of Secondary Education/ West Bengal Council of Higher Secondary Education including the West Bengal Madrasah Education
Board which received sanction from the D.I. of Schools (SE) of the concerned district. It is further indicated that apart from the said qualification, the
said approved teacher must hold the regular B.T. /B.Ed./P.G.B.T. Degree/ Diploma Certificate such qualification having included therein make such
post distinct and different from the post of the assistant teacher. It is apparent from the said Memo dated 10th July, 2002 that the approved teachers
having such requisite qualification are entitled to be posted as Assistant Headmasters/Assistant Headmistress in the educational institutions. The mode
of the selection is also indicated therein which leads to an inevitable conclusion that such post is not equated with the post of the assistant teacher;
rather the assistant teachers who showed their willingness for the post of Assistant Headmasters/ Assistant Headmistress can only be appointed to
such post provided they fulfil the eligibility criterion and found successful in the selection process. The duties and responsibilities of the Assistant
Headmasters/Assistant Headmistress is evidently different from the duties and responsibilities of the assistant teacher which is evident from Rule 23
(B) of the Management of Sponsored Institutions (Secondary) Rules, 1972. It would be apposite to quote the aforesaid provision which runs thus:
“23B. Powers and duties of Assistant Headmasters/Assistant Headmistress of an institution.- (1) The Assistant Headmaster or the
Assistant Headmistress of an institution, subject to any order of the Government or the Director of School Education or the Board or the
District Inspector of Schools (Secondary Education) of the district or the Additional District Inspector of Schools (Secondary Education) of
the concerned Sub-Division, shall, with the approval of the Head of Institution, perform the following functions and discharge the following
duties:-
(a) To maintain daily class routine and provisional routine, if required;
(b) To prepare routine for examination in the institution;
(c) To conduct the continuous comprehensive evaluation of students;
(d) To maintain progress reports of students;
(e) To hold parent-teacher meetings;
(f) To prepare reports on drop out of students and take remedial measures for checking drop out;
(g) To conduct remedial teaching for the slow learners;
(h) To assist the Head of Institution to monitor as to whether Assistant Teachers are taking classes as per syllabus and curriculum;
(i) To follow the provision of law relating to the right to education as laid down in the Right of Children to Free and Compulsory Education
Act, 2009 in respect of elementary education, if the institution imparts elementary education;
(j) To obey any other general or specific order of the Government or the Director of School Education or the Board or the District Inspector
of Schools (Secondary Education) of the district or the Additional District Inspector of Schools (Secondary Education) of the concerned Sub-
Division, or the Head of Institution in the interest of education;
(k) To officiate in the post of Headmaster or Headmistress during the temporary vacancy in the post of Headmaster or
(2) The head of institution shall perform the duties as referred in clause (1), in absence of Assistant Headmasters/Assistant Headmistress in
an institution.â€
It is evident from the aforesaid Rule that the powers and duties of the Assistant Headmasters/Assistant Headmistress in an institution is to oversee the
daily management of the functioning of the school and remedial measures to be taken in this regard and in absence of the Headmaster or
Headmistress may officiate during such interregnum period to such post. The aforesaid disclosure leads to an inescapable conclusion that the post of
the Assistant Headmasters/Assistant Headmistress is occupying the field in between the assistant teacher and the headmaster. The mode of selection
the powers and duties as well as the scale of pay being different it invites an apparent distinction with the post of the assistant teacher which appears
to us to be an independent post. Though it is contended that it is a promotional post as it had an independent source of appointment but from paragraph
2 of the said Memo dated 10th July, 2002 the position appears to be different. The post of Assistant Headmasters/Assistant Headmistress can only be
filled up on an application of the approved and willing teachers of the said institutions which obviously leads to an inference that such teachers are
holding a post of assistant teacher in the said educational institution.
Such being the conclusion whether the writ court in exercise of power or judicial review can usurp the duties, functions and the powers of the
statutory authority and/or bypassing the statutory Rules can inflict the punishment de hors such statutory Rules. In other words, whether the writ court
can issue a writ of mandamus in such manner which impliedly overrides the statutory provisions in so called artificial pursuit of imparting justice.
The power of the writ court to issue a writ of mandamus can trace its origin from the common law remedy based on the royal authority. It was widely
used by the courts in England in the public law domain to prevent injustice in the form of a prerogative writ. After the adaptation of the Constitution of
India, there has been a several discourses at various corners including the court whether the power of the court to issue writ of mandamus is akin and
/or somewhat similar to the powers enjoined by the courts in England in prerogative writs. In Secretary, Cannanore District Muslim Educational
Association (supra), the Apex Court has succinctly narrated the distinction and the nature of the writs issued by the Indian Courts under the
Constitution to be somewhat different and wide in its nature in the following paragraphs:
35. In Dwarka Nath v. Ito a three-Judge Bench of this Court commenting on the High Court’s jurisdiction under Article 226 opined that
this article is deliberately couched in comprehensive language so that it confers wide power on the High Court to “reach injustice
wherever it is foundâ€. Delivering the judgment Justice Subba Rao (as His Lordship then was) held that the Constitution designedly used
such wide language in describing the nature of the power. The learned Judge further held that the High Court can issue writs in the nature
of prerogative writs as understood in England; but the learned Judge added that the scope of these writs in India has been widened by the
use of the expression “natureâ€.
36. The learned Judge in Dwarka Nath made it very clear that the said expression does not equate the writs that can be issued in India with
those in England but only draws an analogy from them. The learned Judge then clarifies the entire position as follows:
“4. ... It enables the High Courts to mould the reliefs the meet the peculiar and complicated requirements of this country. Any attempt to
equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative
writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a
unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of
the article itself.â€
37. The same view was also expressed subsequently by this Court in J. R. Raghupathy v. State of A.P Speaking for the Bench, Justice A.P.
Sen, after an exhaustive analysis of the trend of Administrative Law in England, gave His Lordship’s opinion in para 29 at p. 1697
thus:
“30. Much of the above discussion is of little or academic interest as the jurisdiction of the High Court to grant an appropriate writ,
direction or order under Article 226 of the Constitution is not subject to the archaic constraints on which prerogative writs were issued in
England. Most of the cases in which the English courts had earlier enunciated their limited power to pass on the legality of the exercise of
the prerogative were decided at a time when the courts took a generally rather circumscribed view of their ability to review ministerial
statutory discretion. The decision of the House of Lords in Padfield case marks the emergence of the interventionist judicial altitude that has
characterised many recent judgments.â€
38. In the Constitution Bench judgment of this Court in LIC v. Escorts Ltd. This Court expressed the same opinion that in constitutional and
Administrative Law, law in India forged ahead of the law in England (SCC p.344, para 101).
39. This Court has also tgaken a very broad view of the writ of mandamus in several decisions. In Comptroller and Auditor General of India
v. K.S. Jagannathan a three-Judge Bench of this Court referred to Halsbury’s Laws of England, 4th Edn., Vol. I, para 89 to illustrate
the range of this remedy and quoted with approval the following passage from Halsbury about the efficacy of mandamus:
“89. Nature of mandamus.- is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases
where there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is
an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.â€
“20. ... and in a proper case, in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give
directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.â€
40. In a subsequent judgment also in Andi Mukta Sadguru Shree Muktajee Vandas Swamii Suvarna Jayanti Mahotsav Smarak Trust v.
V.R. Rudani this Court examined the development of the law of mandamus and held as under:
“22. .. mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the
development of this law, Professor de Smith states: “To be enforceable by mandamus a public duty does not necessarily have to be one
imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.’ We share
this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be out into watertight
compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must
be easily available ‘to reach injustice wherever it is found.’ Technicalities should not come in the way of granting that relief under
Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.â€
41. The facts of this case clearly show that the appellant is entitled to get the sanction of holding higher secondary classes. In fact the
Government committed itself to give the appellant the said facility. The Government’s said order could not be implemented in view of the
court proceedings. Before the procedural wrangle in the court could be cleared, came the change of policy. So it cannot be denied that the
appellant has a right or at least a legitimate expectation to get the permission to hold higher secondary classes.
It is discerned from the aforesaid report that the courts in India enjoins wide power and grants wide remedy to reach injustice wherever it is found and
the technicalities if pitted against the justice should not come in the way of granting relief while exercising the power of judicial review. Even a writ
court can pass an order or give directions which the government or the public authority should have passed if exercised lawfully. In our opinion, the
aforesaid judgment has given a clear indication that the writ court should not be a mute spectator nor should at on the ipse dixit of the statutory
authority but shall exercise such power if the injustice is evident and the authority have not acted lawfully and in consonance with the law. The power
of the writ court cannot be brindled if the injustice is patent from the action of the statutory authority and grant reliefs to the aggrieved person who has
been subject to such injustice.
The question still begging an answer whether the writ court can usurp the power of the authority in a case where the authority have not exercised the
discretion nor have an occasion to deal with it. The aforesaid judgment is to be understood in such perspective where the order of the statutory or the
public authority is exercised causing injustice to the citizenry and not when such authority had no occasion to deal with it and the writ court substituting
itself in the place of such authority and passed the final order inflicting the punishment.
Even in a case where the selection in a post is a very sensitive one and the Government must have on necessarily highest confidence the deployment
to such posts is susceptible to be interfered with in exercise of judicial review. The Apex Court in case of State of W.B and Ors. Vs. Manas Kumar
Chakraborty and Ors. (supra) held that the writ court should not sit in appeal over the decision of the appointing authority in such sensitive matters nor
should substitute a view as a constituted authority in the following :
“ 17. The learned Senior Counsel for the first respondent then contended that if a person moves to a post of grater prestige, duties and
responsibilities, honour or status, as compared to the previous post held, then that movement, even if lateral, would amount to promotion,
even if both the posts carry the same scale of pay. Learned counsel relied upon the case of Meera Massey (Dr) v. Dr. S.R. Mehrotra and
Vice-chancellor, L.N. Mithila University v. Dayanand Jha to support the contention urged. Even if the contention is accepted, the fact
remains that the second respondent was promoted by the Composite order dated 23-5-2001 to the substantive rank of DGP and
simultaneously posted as DG & IGP. We see no illegality in this. Secondly, there is no dispute that the post of DG &IGP is a selection post
like the other DGPs. The post of DG & IGP being a post of very sensitive nature can only be filled by an incumbent in whom the state
Government must necessarily have the highest confidence. We are, therefore unable to accept the contention of the respondent that
deployment of an incumbent in such a post can go only by seniority. Merit in the nature of past record, the credibility and confidence which
one is able to command with the Government of the State must play a predominant role in selection of an incumbent to such a post. ; in the
opinion of the appointing authority, the second respondent was the most suitable one. It is not open to the courts to sit in appeal over the view
taken by the appointing authority in such a case of substitute its own view for that of the duly constituted authority. The administrative
tribunal, as a matter of comparison of merit, was inclined to hold that the second respondent was by far the better and more meritorious
candidate. The High Court has skirted this question and declined to decide this issue. Since we are of the view that there was no legal
ineligibility in the second respondent to hold the post of DG & IGP, we must necessarily accept the comparative assessment of merit by the
first appellant State of West Bengal and give credence to its own choice, of a suitable incumbent for being posted as such.â€.
In case of Manohar Lal (Dead) By Lrs. (supra), the Hon’ble Chief Minister himself allotted the land when he lacks such authority. It is
held that when the statute requires a particular authority to discharge such function, the allotment by the Hon’ble Chief Minister
substituting himself as such statutory authority amounts to transgression and/or usurpation of the power of competence in these words:
“14. The Hon’ble Chief Minister passed the allotment letter himself mentioning the plot numbers of the land, as it was the authority
himself which is impermissible in law. The Chief Minister could not take upon himself the task of the Authority. It tantamount to
transgression/usurpation of competence. While deciding a representation/petition, an authority or court may issue direction to the person
concerned to consider the grievance. However, it is not permissible to pass the order by the superior authority/court itself.â€
The enlightening observation in this regard can be profitably taken note of from a judgment of the Supreme Court in the case of State of
Kerala and Ors. vs. Kandath Distilleries (supra) where it is held that when the legislatures have conferred the powers upon an authority
such power should be exercised by such authority and not by the Court. The writ court is not concerned with the decision but certainly with
the decision making process. It is relevant to quote the relevant excerpts from the said report which runs thus:
“30. The legislature when confers a discretionary power on an authority, it has to be exercised by it in its discretion, the decision ought to
be that of the authority concerned and not that of the court. The court would not interfere with or probe into the merits of the decision made
by an authority in exercise of its discretion. The court cannot impede the exercise of discretion of authority acting under the statute by
issuance of a writ of mandamus. A writ of mandamus can be issued in favour of an applicant who established a legal right in himself and is
issued against an authority which has a legal duty to perform, but has failed and/or neglected to do so, but such a legal duty should emanate
either in discharge of the public duty or operation of law. We have found that there is no legal duty cast on the commissioner or the state
Government exercising powers under Section 14 of the Act read with Rule 4 of the 1975 Rules to grant the licence applied for. The High
Court, in our view, cannot direct the State Government to part with its exclusive privilege. At best, it can direct consideration of an
application for licence. If the high Court feels, in spite of its direction, the application has not been properly considered or arbitrarily
rejected, the High Court is not powerless to deal with such a situation that does not mean that the High Court can bend or break the law.
Granting liquor licence is not like granting licence to drive a cab or parking a vehicle or issuing a municipal licence to set up a grocery or a
fruit shop. Before issuing a writ of mandamus, the High Court should have, at the back of its mind, the legislative scheme, its object and
purpose, the subject-matter, the evil sought to be remedied, the State’s exclusive privilege, etc. and not to be carried away by the
idiosyncrasies or the ipse dixit of an officer who authored the order challenged. Majesty of law is to be upheld not by bending or breaking
the law but by strengthening the lawâ€.
In case of D.N Jeevaraj (supra), the Apex Court held that when the powers and discretions are conferred upon the authority under the statute such
power and discretion is required to be exercised first and the court should not take over the function of such statutory authority in the guise of writ of
mandamus in these words:
“ 41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be pr4emitted to do
so. It is not for the courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High
Court has virtually taken over the function of BDA by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the
lease-cum-sale agreement gives discretion to BDA to take action against the lessee in the event of a default in payment of rent or committing
breach of the conditions of the lease-cum-sale agreement or the provisions of law. This will, of course, require a notice being given to the
alleged defaulter followed by a hearing and then a decision in the matter. By taking over the functions of BDA in this regard, the High
Court has given a complete go by to the procedural requirements and has mandated a particular course of action to be taken by BDA. It is
quite possible that if BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be
pre-empted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard.â€
The support to this aforesaid proposition can further be lent from the constitutional Bench decision of the Supreme Court in case of Mafatlal Industries
Ltd. and Ors. vs. Union of India and Ors., reported in (1997) 5 SCC 536 wherein it is held that the power under Article 226 of the Constitution should
be exercised within the regime of law and never intended to abrogate. The writ court can neither override the law nor pass a writ of mandamus in
ignorance thereof. Any order which overrides the law or in clear violation thereof would tantamount to transgression of the powers which the
legislature never intended. The following observations from the aforesaid report shall be useful in this regard which runs thus:
“108 (x). By virtue of sub-section (3) to Section 11-B of the Central Excises and Salt Act, as amended by the aforesaid Amendment
Act, and by virtue of the provisions contained in sub-section (3) of Section 27 of the Customs Act, 1962, as amended by the said
Amendment Act, all claims for refund (excepting those which arise as a result of declaration of unconstitutionality of a provision
whereunder the levy was created) have to be preferred and adjudicated only under the provisions of the respective enactments. No
suit for refund of duty is maintainable in that behalf. So far as the jurisdiction of the High Courts under Article 226 of the Constitution
â€"or of this Court under Article 32â€" is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would,
while exercising the jurisdiction under the said articles, have due regard to the legislative intent manifested by the provisions of the
Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11-
B. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it.
Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can lit override it. The power
under Article 226 is conceived to serve the ends of law and not to transgress them.â€
From the aforesaid reports, the law as expounded is that though the power of the writ court under Article 226 of the Constitution is wide or even
wider than the power enjoined by the courts in England in prerogative writs yet there has been a self-imposed restraint and should be exercised within
the contour of law. Ordinarily, the writ court does not enjoin the legislative powers but the primary object is to uphold the law by interpreting the
legislations under the well-known canon of interpretations of law. Such power cannot be exercised to bend or break the law but to uphold the same
inconsonance therewith. It is one thing to say that ordinarily the writ court does not loath with the legislative powers of competence but it is absolutely
different when the writ court test the legitimacy of the law being in conformity with the constitutional ethos and its provisions and passes through the
test of reasonability (wednesbury principle). The writ court while exercising its power in pursuit of justice should be careful and cautious in not causing
injustice to the other while rendering justice. The balance is required to be maintained as the same is never intended to be one way traffic. The
moment of Court finds that there is a statutory Rule in place which requires a thing to be done in a particular manner, the Court while rendering justice
should not ignore such statutory provisions and pass an order to create a wreck in a statutory machination having a larger impact of injustice on the
other.
The disciplinary Rules, 2018 having enacted in exercise of the Rule making powers reserved in the parent act contains an exhausted provision
pertaining to a disciplinary action to be taken against the teacher including the Assistant Headmaster or Assistant Headmistress. Rule 5 thereof
imbibed within itself the procedure and the modalities of initiating the disciplinary proceeding and Rule 9 thereof contained the different form of
penalties to be inflicted in the event the allegation is found to be correct. No person should be condemned nor penalised without affording an
opportunity to defend. The adherence to the principles of natural justice before the imposition of the penalty is the hallmark of the constitutional ethos
and any transgression and/or denial of such opportunity entail the decision/order illegal and impermissible.
As indicated above, the writ court discharges his solemn duties to uphold the law and render justice in accordance with law and not to break or bend
it. The penalty which is not contemplated in the said disciplinary Rule cannot be imposed in exercise of so-called plenary jurisdiction which has a
different concept and cannot be assumed to show wide or even wider power to overreach the provision of law. The penalty imposed in relegating the
appellant to the post of assistant teacher is not contemplated under Rule 9 of the disciplinary Rules and, therefore, such order cannot be legally
sustainable. Furthermore, the writ court cannot assume the jurisdiction of the disciplinary authority and proceed in violation of the statutory provisions
by inflicting the penalties not contemplated in the statutory Rules. Therefore, the impugned order cannot be sustained and is hereby quashed and set
aside.
Since this Court has found that the order of transfer is bad-in-law and has quashed on the grounds stated hereinabove, the competent authority is
directed to take a decision afresh and if decided to transfer the appellant from a school where she is posted to any other school, such order of transfer
should be strictly in terms of Section 10C of the Act of 1997 and in terms of Memo dated 10th July, 2002. Since the appellant has already joined the
school where she has been transferred and is discharging the function as such she may be directed to revert back to her original school within two
weeks from date. It goes without saying that the appellant was not at fault when the order of transfer was issued and, therefore, all the benefits which
she received at the transferred post shall not be taken back nor shall be recovered at any point of time. With this observation, the appeal is hereby
allowed and all connected applications pending of this day are accordingly disposed of.
Urgent photostat certified copies of this judgment, if applied for, be made available to the parties subject to compliance with requisite formalities.
