Pratap Kumar Ray, J.@mdashIn the writ application, the Petitioner challenged the decision of the Director of School Education, West Bengal,
being the outcome of final hearing by the said authority on April 5, 1999, but the said decision was not annexed as no copy was available.
Subsequently, by supplementary affidavit, the Petitioner has annexed the decision as communicated under Memo No. 19/1(5) LC dated, Calcutta,
the May 21, 1999. By the impugned decision, the prayer of the Petitioner for change of Group was rejected only on the ground that such prayer
could not be accepted at this moment as the School Authority requested the District Inspector of Schools concerned to take steps for filling up the
vacancy of Language Teacher and in pursuance thereof, selection process was completed whereby one Soma Das stood first in the panel. The
Director of School Education, West Bengal passed the impugned decision upon hearing the present Petitioner and Sm. Soma Das, who is
Respondent No. 6 in the writ application as well as the School Authority. Hearing was given in view of the direction of this Court as passed in
different writ applications filed by the respective parties, namely, the present Petitioner and Sm. Soma Das.
2. For effective adjudication of the matter, the School Authority was directed to produce the resolution book and other relevant papers. In
pursuance of such, all documents have been placed before this Court. From the documents as produced as well as from the documents annexed in
the writ application, it appears that though the Petitioner was an appointee in Physical Education Group with reference to her appointment dated
September 5, 1980, but in view of her enhancement of qualification M..A. in Bengali, the Managing Committee agreed to have a transfer of her
group from Physical Education to Language Group for two purposes, namely, to fulfill the need of the school in the resultant vacancy of the
Language Teacher due to sudden demise of Ruby Seth, incumbent who was holding the post and also to provide higher pay scale to the Petitioner
in view of her post graduate qualification. From the resolution book as placed by the Managing Committee, it appears that on December 21,
1.987 the Managing Committee took two decisions in respect of the resultant vacancy of Language Teacher caused due to sudden demise of Ruby
Seth, namely (i) to seek prior permission to fill up the vacancy and (ii) to pray to the District Inspector of Schools concerned for changed of Group
of Manima Samanta, the present Petitioner to the said vacancy of Language Group and thereby to declare the post of Manima Samanta as vacant
for filling up the same by a suitable candidate qualified with Physical Education training. However, in terms of the resolution of the Managing
Committee, no prior permission was issued to fill up the vacancy of Language Group as well as for transfer; of the present Petitioner"" in the said
Group and thereby a declaration for filling up the post of Physical Education Teacher by new incumbent. On the contrary, by Office. Order No.
804/M dated April 16; 1988 the District Inspector of Schools concerned directed to fill up the vacancy of Language Group which was caused due
to the demise of Ruby Seth, who was also a Teacher in Language Group and more; precisely a Teacher of Bengali subject by converting the post
to Science Group. Such prior permission order dated April 16,1988 as well as the prayer of the, Petitioner for change of Group in the resultant
vacancy of Bengali subject was discussed in the meeting of the Managing Committee dated May 3, 1988 and it was resolved unanimously that the
District Inspector of Schools concerned would be requested to transfer the Petitioner, holder of the post under Physical Education Group to the
post of Assistant Teacher in. Language Group in the vacancy caused due to the death of Ruby Seth and in the resultant vacancy after transfer of
the Petitioner, a Physical Education Teacher would be appointed. It was further resolved that in the event such prayer was not allowed, prior
permission to fill up the vacancy by considering the vacancy as of Science Group would remain. However, it appears from the Supplementary
Affidavit affirmed by the Petitioner on July 22, 2002 that prior permission order dated April 16. 1988 allowing the School Authority to fill up the
resultant vacancy of Assistant Teacher in Bengali by converting the same to Science Group was modified by issuance of a modified prior
permission order dated June 8, i988 under Memo No. 1259/M allowing the School Authority to till up the resultant vacancy due to death of Ruby
Seth (wrongly mentioned as Ghosh) by a candidate qualified with B.A. Hons./ M.A. in Bengali in Language Group. In accordance with such prior
permission order to fill up the vacancy by a qualified candidate of B.A. Hons./M.A. in Bengali it was mentioned that the said decision was reached
by the District Inspector of Schools concerned in view of the letter of the Secretary dated June 3, 1988. The letter dated June 3, 1988 has been
placed before this Court by the School Authority. From the said letter, it appears that the concerned Secretary requested the District Inspector of
Schools to absorb the present Petitioner as a Teacher of Language Group in the resultant vacancy caused due to the death of Ruby Seth and
thereby to allow the School Authority to fill up the vacancy after transfer of the Petitioner by appointing a candidate who would be qualified to
teach Physical Education subject. A draft letter of the Secretary of the Managing Committee as placed by the School Authority be kept on record.
However, from the resolution dated May 3, 1988, it appears that the Secretary change or modify the unanimous resolution of the Managing
Committee dated May 3, i988. It is now a settled legal position that the Managing Committee is a body corporate and takes decision by its
majority view, and nobody can challenge such majority decision unless and until by another meeting the Managing Committee decides by majority
decision otherwise. From the resolution dated May 3, 1988, it clearly reflects the view of majority members of the Managing Committee that the
resultant vacancy due to demise of Ruby Seth should be filled up by transfer of the Petitioner from Physical Education Group to Language Group
and due to such transfer, vacancy as would be caused in Physical Education Group, the same would be filled up by a qualified candidate in terms
of the prior permission order as to be issued by the District Inspector of Schools. In the said resolution dated May 3, 1988, it was further resolved
that in the event of refusal of such decision, namely, the transfer of the Petitioner from Physical Education Group to Language Group and to fill up
the vacancy as would be caused due to such change of the Petitioner by a new incumbent prior otherwise permission order allowing the School
authority to fill up the resultant vacancy due to demise of Ruby Seth would be filled up by a Teacher qualified to teach Science subject by change
of such Group as of Science Group. Hence, there was no scope for the District Inspector of Schools to modify the prior permission order dated
June 8, 1988 by marking the said vacancy as of Language Group which is to be filled up by inviting names from Employment Exchange. The
School Authority never wanted such, as it is reflected from the decision of the Managing Committee dated May 3, 1988. Xerox copy of the
resolution dated May 3, 1988 as produced by the School Authority be kept on record. In that view of the matter, the prior permission decision as
taken to fill up the vacancy by way of inviting names from the Employment Exchange absolutely was an illegal decision, and this point was not
noticed and/or looked into by the Director of School Education, West Bengal while deciding the issue. The cumulative effect of the two resolutions
of the Managing Committee, one dated December 21, 1987 (Xerox copy of which be kept on record) and the resolution dated May 3, 1988
clearly speaks a volume in favour of the Petitioner for a change from Physical Education Group to Language Group. The District Inspector of
Schools without rejecting the same had no jurisdiction to declare that the vacancy would be filled up from second stage on inviting names from the
Employment Exchange. From the supplementary affidavit it further appears that by the decision dated October 5, 1988 the District Inspector of
Schools concerned rejected the prayer for transfer of the present Petitioner as a Teacher of Language Group from Physical Education Group only
on the ground that the Petitioner was appointed for a particular Group. This decision dated October 5, 1988 is annexed in the supplementary
affidavit. Hence, it appears from the documents that as per resolution of the Managing Committee dated May 3, 1988 read with the resolution
dated December 21, 1987, the District Inspector of Schools was required to decide the issue of transfer of the Petitioner first, and thereafter to
decide the question about filling up the vacancy by declaring the nature of vacancy. Unfortunately, it was not done. The District Inspector of
Schools concerned in terms of the recruitment rule, which was applicable at the relevant time, that is recruitment rule issued by the Director of
Schools Education, West Bengal, under memo No. 1828(17) G.A. dated August 31, 1987, was bound to follow the resolution of the Managing
Committee whereby the Managing Committee wanted to fill up the vacancy by a suitable candidate of Language Group, and more particularly by
transfer of the Petitioner from Physical Education Group to Language Group as she was qualified with M.A. in Bengali. In the instead case, it
appears that Ruby Seth, for whose demise the resultant vacancy occurred, was a Teacher of Language Group in Bengali subject and accordingly it
is declared that there was a permanent sanctioned post in terms of the staff pattern for a teacher of Language Group. The District Inspector of
Schools in terms of the'' Recruitment Rule of 1987 was bound to follow the resolution of the Managing Committee and thereby to allow the
transfer of the existing teacher the present Petitioner. Even if same was not possible to be done, the concerned District Inspector of Schools was
required to issue necessary direction to fill up the vacancy of teacher of Language Group in Bengali by allowing the present Petitioner to appear in
such selection, process as the relevant rule provides that the existing approved teacher would be eligible to apply for appointment in the resultant
vacancy. However, the prior permission order dated June 8, 1988 was processed by the School Authority also by inviting the names from the
Employment Exchange and without allowing the Petitioner to appear in the said selection process. However, ultimately the Respondent No. 6 was
selected as a first candidate in the panel. The present Petitioner approached the writ court praying for necessary direction for transfer of her Group
from Physical Education to Language Group, when in G.A. No. 1308 of 1996 read with A.P.O.T. No. 191 of 1996, the, Division Bench by the
order dated July 4, 1996 directed the District Inspector of Schools to carry out the impugned order of the learned Trial Judge upon giving a
hearing to the Appellant wherein the present Petitioner was the Appellant. The order of the Division Bench reads thus:
Order in terms of prayer (a) of the petition. Having heard the learned Advocates for the parties we are of the opinion that the hearing of the appeal
should be expedited. Paper Books informal books in requisite number be filed within 2 weeks from date. Let the matter appear 3 weeks hence. In
the meantime the District Inspector of Schools (SE), Howrah may carry out the order passed by the learned Trial Judge after giving an opportunity
of hearing to the Appellant. A copy of the order passed by the District Inspector of School should be sent to this Court. Any action taken by the
District Inspector of School in furtherance of the order of Trial Judge shall abide by the result of this appeal.
3. In pursuance of the order of the Division Bench dated July 4, 1996, the matter was heard by the District Inspector of Schools concerned
wherein the present Petitioner and the contesting party herein, Sm. Soma Das both were present. It was decided by the District Inspector of
Schools on July 31, 1996 that the earlier decision of the district Inspector of Schools dated October 5, 1988 rejecting the prayer of the Petitioner
for a change of Group on the ground that there was no such provision became none in view of introduction of such provision under G.O. No. 57-
SE (S) dated January 21, 1995. It was held by him that now the Petitioner''s case could be considered in the available vacancy. So far as the panel
wherein Sm. Soma Das stood first, the same was not approved as the panel was prepared in violation of the rules. The relevant portion of the
decision of the District Inspector of Schools dated July 31, 1996 is quoted below:
On verification of available records and on the basis of statement above it is observed that the claim of Sm. Minima Samanta, the Appellant for
group change could not be considered by the then Deputy Inspector of Schools (SE) Howrah in absence of any such provision under rules at that
time and as such permission for recruitment in the vacant post in language group as per requirement in view of existing staff pattern. It may be
stated here that in terms of G,0. No. 57-SE(S) dated 27.1.95 which read as ''when any clear vacancy of Asstt. Teachers occurs in normal section,
the authority of the concerned school may apply to the concerned D.I.S (SE) for filling up the vacancy by an existing approved Asstt. Teacher of
the normal section of institution who has apply to the S/A in writing for being placed in that post and who has the requisite higher qualification for
that post and who has the requisite higher qualification for that vacant post but is not drawing pay according to such higher qualification by reason
of his/her appointment/approval in a different group''-the case of group transfer of the Appellant may be considered as and when vacancy will be
available and if applied for by the S/A in terms of the said G.O.
On examining the panel in reference to the recruitment rules in vogue at that time, it is observed that there were some irregularities in respect of
awarding marks in extra curricular activities and for viva and class demonstration and the panel thus prepared not in accordance with the existing
recruitment rules cannot be taken into consideration for approval at this stage.
The matter is thus disposed of with the above direction in respect of claims of the Appellant and the Petitioner in terms of Hon''ble High Court
order in this respect.
4. This decision of the District Inspector of Schools was challenged by Sm. Soma Das in W.P. No. 2542 of 1996 when Srirang Misra, J. (as His
Lordship then was) by the order dated March 12, 1997, directed the District Inspector of Schools to consider the dispute as raised by Smt. Soma
Das. However this order dated March 12, 1997, was subsequently modified on April 17, 1997 by incorporating the words ''Director of School
Education'' in lieu of ''District Inspector of Schools(SE)''. Similarly, the present Petitioner also moved a writ petition, being W.P. No. 17061 (W)
of 1997 praying for implementation of the decision of the District Inspector of Schools concerned dated July 31, 1996 on application of Memo
No. 57-SE (S) dated January 27, 1995 which was disposed of by the order dated December 8, 1997 by R. Bhattacharyya, J. (as His Lordship
then was) by directing to decide the same by the Director of School Education, West Bengal. An order of injunction also was passed restraining
the Respondents from appointing any teacher in the Language Group till the finality of the matter, the order dated December 8, 1997 reads thus:
The Petitioner has initiated the writ application for various relief�s in the shape of Mandamus, Certiorari, Rule Nisi coupled with further prayer
for an interim order of injunction restraining the Respondents their men and agents to appoint anybody to the post of assistant Teacher in Language
Group of Bauria Girls'' High School without considering the case of the Petitioner to change her Group i.e. from Work Education Group to
Language Group till the disposal of her case. The Petitioner has made persistent efforts to secure relief which commensurate with the need since
the same is not impermissible. But the Respondents without any rhyme or reason took an over-jealous look to the claim of the Petitioner. More so,
a representation which is lodged with the Respondents put in by the Petitioner has not been attended upon by them and the Petitioner has been
kept on the tenterhooks. How long a remedy can stand and wait for inaction of the"" Respondents when the claim of the Petitioner prima facie
appears to be genuine and available under the law. It also appears that the Petitioner is passing throughout the days with agonies and anxieties.
Therefore, in all fitness of things. I direct the Director of School education, West Bengal and the District Inspector of Schools (SE), Howrah to
consider the entire claim of the Petitioner about the change of Group if it commensurate with the law and need after affording an opportunity of
being heard to all concerned within six weeks from the date of receipt of this order and to intimate the result thereof to the Petitioner within a week
thereafter.
Till the disposal of the representation of the Petitioner in the manner as directed, the Respondents are hereby restrained from appointing any
teacher in Language Group.
The writ application is thus disposed of with the above observation.
The orders dated March 12, 1997 and April 17, 1997 are as follows:
Heard the learned Counsel appearing for the Petitioner as also the learned Counsel for the State.
A panel was prepared, in which the Petitioner was selected vide impugned order dated 31st July, 1996. The District Inspector of Schools was of
the view that the said panel prepared was not in accordance with the existing recruitment rules. Aggrieved by the said order, the Petitioner has
approached this Court. Let this writ petition be treated as a representation on behalf of the Petitioner and the District Inspector of Schools (SE)
will consider the dispute raised by the Petitioner in this writ petition after affording an opportunity to the Petitioner and the School Manage-merit or
to any other person to whom he thinks appropriate and dispose of the same in accordance with law within a period of three months from the date
of production of the copy of the order.
In the meantime, if the Petitioner is already working in this Institution, she will be allowed to continue, unless the order by the District Inspector of
Schools (SE) is finally passed and that will abide the controversy over the matter and the order passed by the D..I.S. (SE) be communicated to the
Petitioner and other parties within three weeks from the date of taking such a decision. With the above direction, the petition is disposed of.
Since I have not called for any affidavit in opposition, the statement of fact need not be deemed to be accepted.
An application has been filed on behalf of the Petitioner in a matter which was finally disposed of on 12th March, 1997 with a prayer that the
direction ought to have been made to the Director of School Education to consider the representation but in the impugned order the direction has
been given to the District Inspector of Schools (SE) and as such a necessary correction has been sought for.
In view of this, let this application be allowed. Where-ever the word ''District Inspector of School'' (SE) it would be substituted with the word
''Director of School Education''. The necessary correction be made and the office is directed to do the needful in this regard in pursuance of the
same.
5. In pursuance thereof, that is the two orders as passed by this Court earlier, ultimately the impugned decision was taken by the Director of
School Education, West Bengal, rejecting the prayer of the Petitioner only on the ground that at present moment there is no scope to transfer the
Petitioner''s group in view of the fact that already a panel was prepared in terms of the prior permission order dated June 8, 1988. As already
discussed, on consideration of the minute book of the Managing Committee that there was no resolution of the Managing Committee praying for
filling up the resultant vacancy caused due to the death of Ruby Seth by inviting the names from the Employment Exchange, but the Managing
Committee all through decided to have transfer of the Petitioner''s group, the prior permission decision dated June 8, 1988 which was the starting
point of the selection process wherein the Respondent No. 6 stood first;- was itself a nullity from the very beginning, as the District Inspector of
Schools had no authority, jurisdiction and power to act otherwise than the decision of the resolution of the Managing Committee as well as the
recruitment rule of 1987 wherein it is provided that it is the Managing Committee who would refer the permanent vacancy to the District Inspector
of Schools concerned seeking prior permission as well as would send any approved surplus staff under the list of the District Inspector of Schools
in the said vacancy. From the Rules of Management of Recognized Nongovernmental Institutions (Aided and Unaided), 1969 (hereinafter referred
to as 1969 Rules), it appears that under Rule 28, it is the Managing Committee who is required to take a decision in respect of the staff pattern of
the school and to decide the question of need of the school. The District Inspector of Schools concerned is only an authority to accord prior
permission regarding filling up the vacancy. The authority to accord permission to fill up the vacancy is not identical with the authority to accord
approval with reference to the nature of vacancy. The District Inspector of Schools was required to follow the decision of the Managing
Committee, but unfortunately it was not done and prior permission order was issued on June 3, 1988 while in terms of the resolution of the
Managing Committee dated May 3, 1988 read with December 21, 1987 already the decision so far as transfer of the Petitioner from Physical
Education to Language Group was awaiting before him. On a scrutiny of the minute book of the Managing Committee, accordingly I hold that the
prior permission order was itself a nullity and contrary to the resolution of the Managing Committee dated June 3, 1988. The District Inspector of
Schools could have rejected the prayer of the Managing Committee so far as the change of group of the Petitioner, and under such circumstances,
when the School Authority decided to fill up the vacancy by a teacher qualified to teach in the Science Group, the District Inspector of Schools
was required to follow that by confirming the earlier prior permission order dated April 16, 1988. -Furthermore, from the prior permission order
dated June 8, 1988, it appears that earlier prior permission order dated April 16, 1988 was modified and such modification was also done on the
basis of the letter of the Secretary of the Managing Committee dated June 3, 1988, but from the letter dated June 3, 1988 issued by the Secretary
read with the resolution of the Managing Committee dated May 3, 1988, which was the relevant resolution, nowhere it appears that the Managing
Committee of the school wanted modification of the prior permission order dated April 16, 1988 in the manner in which the District Inspector of
Schools modified the same. The Managing Committee wanted a modification of the prior permission order dated April 16, 1988 in the manner in
which the District Inspector of Schools modified the same. The Managing Committee wanted a modification of the prior permission order dated
April 16, 1988 whereby permission was accorded to fill up the resultant vacancy under Science Group for a to change language group. Hence,
before the District Inspector of Schools there was no material to exercise his power to modify his earlier order dated April 16, 1988. Accordingly,
it is held that the District Inspector of Schools acted without any material and without any authority. Therefore, the prior permission order dated
June 8, 1988 cannot stand. In that view of the matter, selection of the Respondent No. 6 in the post in question also will not stand as such selection
was made on the basis of the prior permission order dated June 8, 1988 which was absolutely a decision without any material. Since the Petitioner
already is working as teacher in the school in question in the Physical Education Group and the vacancy as caused due to demise of Ruby Seth
who was teacher in the Language Group, more particularly a teacher qualified with Bengali subject as yet has not been filled up and taking into
account the resolution of the Managing Committee dated May 3, 1988 read with December 21, 1987 and the decision of the District Inspector of
Schools dated July 31, 1998, this Court is of the view that the Petitioner got a right to have consideration of her prayer in terms of G.O. No. 57-
SE(S) dated January 27, 1995.
6. The Director of School Education accordingly misdirected his decision by not taking into account the fundamental basis for filling up the
vacancy. Having regard to the fact that since the Petitioner is already qualified with M.A. in Bengali and is working in the school since the year
1980, and in terms of the resolution of the Managing Committee had taken classes of Bengali subject, as has been admitted by the Secretary of the
Managing Committee as it is reflected from the decision impugned in this writ application, the Petitioner is entitled to have a change and/or transfer
of her group. It is now a settled legal position that in organizations there must be some avenues of growth to the employees concerned otherwise
the employees would suffer from mental agony and distress resulting in lack of efficiency in their activities and performance. Having regard to such
and applying the test in terms of Article 21 of the Constitution of India, the Apex Court has already decided that in the organizations, private or
public there must be a promotional channel so that the employee concerned may have a chance of better scope in his service life. Reliance in this
connection may be placed to the judgment in the case of Dr. Ms. O.Z. Hussain Vs. Union of India and others, wherein it is held that promotion is
incidence of service and a direction was given by the Apex Court to open such promotional channel. Subsequent to such decision, another
decision was taken by the Apex Court in identical line in Deb Kumar Mukherji''s (1995)2 S.C.C. 640 case. Prior to such decision, long back in
the year 1988, the Apex Court considered this issue and directed to create a promotional channel relating to the service in Police Department of
the State of Bihar in respect of Wireless Operator as they had no such promotional avenue. Such decision was passed in the case of AIR 1988
1033 (SC) . It is true that in respect of a school service it cannot be said that change of a group from Physical Education to Language Group
would be considered as opening of a promotional channel. Accordingly, these judgments though have no application directly in the instant case, but
the ratio decidendi and the principle of law as considered holding that in private or public organization there must be avenues of growth is the ratio
which is applicable in the instant case. From the facts of this case, it appears that the Petitioner though qualified with M.A. in Bengali and wanted to
have higher pay scale, that is post graduate pay scale for such qualification, the same was refused on the ground that the Petitioner was holding the
post under Physical Education Group where qualification M.A. in Bengali was not relevant. This Court in W.P. No. 1154 (W) of 2000 decided
the issue and rejected the prayer of the Petitioner by the judgment dated July 5, 2000 upon holding that the Petitioner was no entitled to enjoy
higher pay scale as the qualification MA. in Bengali was not relevant subject for which she was appointed, that is a Teacher under Physical
Education Group. Simultaneously, the Petitioner filed this writ application assailing the order whereby her prayer for transfer from Physical
Education Group to Language Group was rejected illegally irrespective of the fact that the Managing Committee by their resolution dated May
3,1988 and the earlier resolution dated December 21, 1987 wanted a change in favour of the Petitioner by placing her as a Teacher in Language
Group. Once it appears that in a school there is a vacancy of any Teacher and a Teacher is already qualified for such, even the doctrine of
legitimate expectation principle is applicable herein to support the concept of growth and/or avenues in the service line in terms of the reflection of
the judgments as already referred to provide placement of teacher accordingly. The Petitioner when can be placed in a vacancy of Language
Group to enjoy service benefits of post graduate pay scale, which also is a growth in the service line by having a higher pay scale and by providing
a better scope to impart education in Bengali subject as she qualified in post graduate level, it will be highly unjust and improper on the part of the
District Inspector of Schools as well as the Director of School Education, West Bengal to refuse such prayer, as already it is held by this Court
that prior permission order dated June 8, 1988 was without jurisdiction which became the starting point of selection process. Having regard to
such position, and further on balancing the respective merits of the parties, it appears that the Respondent No. 6 got no indefeasible right to be
appointed in the post in question as it is a settled law that selection will not empower any person to have any right to be appointed. Having regard
to the concept of legitimate expectation, in terms of G.O. No. 57-SE (S) dated January 27, 1995, I am of the view that the right of the Petitioner
got its priority in respect of her placement in the school in question.
7. Accordingly, this writ application is allowed. The impugned order of the director of School Education, West Bengal, is hereby set aside and
quashed. In view of the decision of the Managing Committee dated May 3, 1988~and in terms of the Government Order No. 57-SE (S) dated
January 27, 1995 when it appears from the record that there is a vacancy in the school in question in the Language Group to teach students in
Bengali and the Petitioner is qualified, without remanding the matter fresh for taking a decision by the District Inspector of Schools, and as the
matter is pending since 1988, it is directed that the Petitioner would be eligible to have a transfer of her Group from Physical Education to
Language Group, and it is accordingly directed that the District Inspector of Schools concerned will pass necessary order in terms of the memo
dated January 27, 1995 by transferring the Petitioner from Physical Education Group to Language Group and to release her post graduate pay
scale from the date of such transfer. Such order is to be passed by the District Inspector of Schools within 4 weeks from the date of
Communication of this order.
8. Urgent Xerox Certified copy of the order, if applied for, be supplied expeditiously.