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PETITIONER:

STATE IF WEST BENGAL AND OTHERS

Vs.

RESPONDENT:

NURUDDIN MALLIK AND OTHERS

DATE OF JUDGMENT: 18/09/1998

BENCH:

K.VENKATASWAMI, A.P.MISRA

ACT:

HEADNOTE:

JUDGMENT:

JUDGMENT

Leave granted.

These appeals are directed against the judgments and

orders dated 9th February, 1994 and 29th August 1995 by

which the High Court directed the appellant-authorities to

grant approval to the teaching and non-teaching staff

including the Head Master (Mohd. Nuruddin Mallick) in the

respective posts held by them in a Madrasah known as

Bishalaxmipur Pune Saha Mastania Junior High Madrasah.

The present case is one of such unfortunate tug of

war between the Management of an Educational Institution and

the statutory authorities. Such situations are gradually

rolling into spate of litigations crumbling the very base of

the educational environment. It is either on account of

factionalism within the management, each faction when in

power trying to pour in his men contrary to the norms fixed

or sometimes on account of authorities deliberately pulling

the strings of the management for strafing reasons delaying

the legitimate conferment of rights of the teachers, staff

or the institution. Education is the foundation of the

prosperity of any country, it shapes its future by

inculcating discipline, culture and the spirit into the

youth. If the very foundation of education is involved in

long drawn out litigation, the very hope and aspiration of

the youth for the future is lost. Every contribution by any

person entrusted with such noble service may be teacher,

management or staff, whether Govt. functionaries or

statutory authorities has to render service with dedication

and with the sole objective to render service to the nation

and in doing so eliminate, if any, strafing conflicts to

reach the objective in accordance with law. Any action by

all such has to be shunned and an atmosphere to be created

which is conducive to the healthy atmosphere. for the

students. With this now we proceed to examine this case.

For establishing either Junior or High Madrasah

which consists of four levels of classes, namely, class V to

VIII as well as High Madrasah which have two levels, namely,

classes IX & X, the sanction of the State Govt./West Bengal

Madrasah Board is necessary. The appellants are State of

West Bengal, the President and the Secretary of West Bengal

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Madrasah Education Board, renamed as West Bengal Board of

Madrasah Education. The case set up by the appellants is

that the staff pattern as well as the required

qualifications of teaching and non-teaching staff of

Madrasahs are prescribed from time to time. The circulars

also lay down conditions under which a Madrasah may be

permitted to open additional class units or sections. The

staff pattern for additional class units when approved are

also prescribed. Where a Junior High Madrasah is upgraded

as a High Madrasah, no fresh approval is required for

teachers whose appointments have already been approved by

the Board as teachers of the Junior High Madrasah. The

Bishalaxmipur Pune Shah Mastania Junior High Madrasah (for

short 'said Madrasah') was recognised by the Board with

effect from 1st January, 1971 as Junior High Madrasah

(Classes V to Vii). The staff pattern originally approved

was six teaching (including Head Master ) and two

non-teaching staff. Opening of additional class units were

approved from time to time and by 1981 posts of three

additional teachers and one additional non-teaching staff

had been sanctioned. As a result, the Junior High Madrasah

had the approval for a total of nine teaching (including

Head Master) and three non-teaching staff. The said

Madrasah opened classes IX & X without any approval/sanction

for the same. It appears that the Board from time to time

granted ad hoc special permissions for the Class X students

to appear at the school final examinations. In 1981, the

writ petitions being C.R. No. 2391 (W) of 1981 and C.R.No.

14594 (W) of 1981 were filed by Mohd. Nuruddin Mullick for

an order directing the authorities to recognise the said

Madrasah as a High Madrasah (i.e.Classes V to X). In these

writ petitions orders were made from time to time granting

permissions for the students of class X to appear in the

school final examinations. The said C.R.No. 2391 (W) of

1981 was finally disposed of by the Division Bench of the

High Court by an order dated 19.11.1986. The Division Bench

directed the respondents in the Writ Petition viz.,

appellants herein to consider the case of the Madrasah for

upgradation to High Madrasah. There were contempt

proceedings following the order dated 19.10.91 was passed by

the Division Bench of the High Court, which directed the

authorities to grant recognition to the said Madrasah as a

High Madrasah. The said order dated 11.10.91 was modified

on 7.7.92 so as to direct that the recognition should be

with effect from 1980. These orders have since been

complied with and the Madrasah has been recognised as a High

Madrasah with effect from 1980. The issue involved in the

present appeal arises out of the facts subsequent to the

recognition of the said madrasah as a High Madrasah.

In terms of the prescribed rules, a High Madrasah

consisting of six class units (i.e.classes V to X with one

class at each level) is entitled to appoint twelve teaching

(including Head Master) and three non-teaching staff.

Considering the fact that three additional teachers and one

additional non-teaching staff had already been approved for

the Junior High Madrasah, i.e., classes V to XIII the ticket

staff pattern for the upgraded High Madrasah became fifteen

teaching and four non-teaching staff. Since nine teaching

staff and three non-teaching staff had already been approved

for classes V to VIII what was required to be permitted was

approval to an additional six teaching and one additional

non teaching staff.

On 6.8.92, the management of the said Madrasah

forwarded to the appellant authorities a list of 31 staff

members consisting of 24 teaching and 7 non-teaching staff

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for approval. relevant information with regard to this

request for approval was required both by the District

Inspector of schools (DIS) as well as by the Board. Without

waiting for the disposal of the application for approval, a

writ petition was moved by Shri Nuruddin Mullick on

11.11.92, being C.O.No. 12099 of 1992, praying for orders

directing the authorities to approve the said list of 31

staff.

During the pendency of the said Writ Petition, an

order was made directing the District Inspector of Schools

to submit a report. On 25.11.92, such report was submitted

by the Assistant Inspector of Schools under directions of

the District Inspector of Schools, which disclosed that many

of the teaching staff did not have the requisite

qualifications. Since this was not a report by the District

Inspector of Schools as ordered earlier by the Court, fresh

orders were passed on 18.12.92 and 23.12.92 for the District

Inspector of Schools himself to submit the report. On

6.1.93 a fresh report was submitted by the District

Inspector of Schools from which also it appears that the

Madrasah was not entitled to approval for 31 teaching and

non-teaching staff as applied for.

On 12.1.94 the learned Single Judge after hearing

the Writ Application directed the authorities to grant

approval of 31 teaching and non teaching staff. It was also

directed that the Head Master (Shri Nurudding Mallick) would

be entitled to get his salary in the pay scale of Head

Master with effect from 1.1.80.

Three appeals were preferred against the said

judgment dated 12.1.94 of the learned single Judge :

i.FMAT No. 337 of 1994 by Shri Nuruddin

Mallick & Ors.

ii.Appeal No. 386 of 1994 by added respondents

being teachers who claimed to have worked

but whose names had not been included in the

list of 31; and

iii.FMAT No. 799 of 1994 on behalf of the State.

In the present appeals, we are not concerned with

the aforesaid appeal No. 386 of 1994. An application for

stay filed on 3.2.94 in FMAT 337 of 1994 (being the appeal

filed by Shri Nuruddin Mallick) came up for hearing on

9.2.94 and the Division Bench of the High Court proceeded to

pass and order directing the Board to approve the services

of the teachers and non-teaching staff, as directed by the

learned single Judge, within a period of one month and

further directed release of all salaries within a period of

two months from the date of submission of the grant-in-aid

form to the authority concerned. The order dated 9.2.94 then

went on to provide as follows :

"After passing of this order, nothing

remains to be decided in the appeal. Accordingly,

the appeal is treated as on the day's list and

both the appeal and the application are disposed

of as above."

The further case is that the appellants in FMAT No.

337 of 1994 were not aggrieved parties but at their instance

the Division Bench was pleased to affirm the order of the

learned Single Judge. Moreover, the contentions of the State

authorities against the order of the learned Single Judge

dated 12.1.94 were not considered and their appeal remained

pending without any decision. Strangely the hearing of the

stay application was in fact treated as the hearing of the

main appeal at the instance of a party who was not aggrieved

by the order of the learned Single Judge.

The above order was followed by a contempt

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application being C.R.No. 398 of 1994 for non-compliance

thereof. The contempt application was disposed of by an

order dated 1.7.94 wherein it was directed that the approval

should be issued provisionally without prejudice to the

rights and contentions of the parties and subject to further

orders of the Court. The State authorities were given

liberty to file a proper application within two weeks.

The State authorites thereupon issued orders for

provisional approval and filed an application for recalling

the order dated 9.2.94. The said application, amongst

others, was disposed of by the impugned judgment dated

29.8.95.

So far as the approval of 31 teachers and

non-teaching staff, as desired by respondent Madrasah

through its letter dated 6th August, 1992, can only be

considered by the competent authority in accordance with the

prescribed rules and on fulfillment of the criteria as laid

down under the rules or concerned circulars. The submission

on the face of it is that the prayer for approval was for a

number fat in excess of the permitted staff pattern.

Further, the submission is that the report of the Assistant

Inspector of schools dated 25th November, 1992 on which

reliance was placed by the learned Trial Judge, reveals that

the teachers do not possess the requisite qualifications.

Similar is the position of the subsequent report of the

District Inspector of Schools. The grievance of the

appellants is that these reports were not even referred to

or considered in the impugned judgment. Further, the Court

has also not examined, whether the request for approval

complies with the prescribed rules and the permissible staff

pattern or not including the qualifications of the teachers.

According to the submissions of learned senior counsel for

the appellant, Mr. Dipankar P. Gupta, the High Madrasah is

presently entitled to approval of six additional teachers

and one non teaching staff. The already approved nine

teachers and three non teaching staff who are included in he

list of 31, do not require any further approval. The rest

of list containing twelve numbers cannot be approved unless

it is shown that they possess requisite qualification and

satisfy the justification of such number of post as per

staff pattern. It is submitted that the appellants are

ready and willing to give approval to further six teaching

and one non teaching staff as per rules subject to their

fulfillment of educational qualifications and other criteria

as laid down in the rules.

On the other hand, the case of the respondents is

that the Bishalaxmipur Pune Shah Mostania Junior High

Madrasah was recognised by the West Bengal Madrasah

Education Board (hereinafter referred to as 'Board') w.e.f.

1st January 1971 with classes from V to VIII. As its

enrolment increased in all classed, three additional posts

of teachers were sanctioned to it, raising the total

sanctioned strength of teaching staff to nine including Head

Master and three non-teaching staff including one clerk.

As there was no High Madrasah within a radius of 30

miles, i.e., 48 kms., from that place, the then management

applied for its upgradation to a X-class High Madrasah with

effect from 1.1.1976 leading to inspection of the said

Madarsah by the authorities concerned on 17.9.1976 and

11.7.1980 who, in turn, recommended for its recognition as a

High Madrasah. But no order granting its such recognition

was issued by the authority.

As the said Madrasah was maintaining class - X since

1976, it was all along granted special permission by the

Madrasah Education Board form 1976 to 1980 for sending its

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students as regular candidates for High Madrasah final

examination.

On refusal by the Madrasah Education Board to send

its candidates as before for appearing at the said

examination in 1981, the said Madrash was constrained to

move the High Court and obtained permission for the same for

the period from 1982 to 1986. Thereafter, again on refusal

of the High Court, the management of the said Madrasah moved

this Court whereupon this Court granted permission for the

said examination held in 1987 and 1989.

Thereafter, the said Madrasah has been regularly

sending up its candidates since 1990 onwards. However, as

the authority did not consider the case of upgradation of

the said Madrasah the management moved the High Court of

Calcutta whereupon it, inter alia, directed for keeping one

quota vacant as was allotted to the said Board by the State

Government for the year 1980-81 till the question of

recognition as High Madrasah is considered by the authority.

Thereafter, series of cases including contempt proceedings

went on before the learned Single Judge and the Division

Bench of the High Court. Then the Division Bench on 19th

November, 1986 directed the appellants to consider the case

of recognition of High Madrasah within three months in the

light of the recommendations in the years 1980, 1984 and

1986. Since the appellants did not pass any order of

recognition, the appellants moved initially the contempt

proceedings, which was rejected by the High Court, and

ultimately this Court passed the following order :

"Special leave is granted. We have heard

the appeal. This appeal is filed against the

order of the High Court dated 7.12.1988 by which

it refused to take any action against the

respondent for not complying with the writ issued

by the High Court in Appeal from Original Order

No. 839 of 1986. The complaint of Mr. A.K.

Sen learned counsel for the appellants is that

the order dated 19.11.86 passed by the High Court

which had become final had not been complied with

by the respondents. The High Court has disposed

of the matter by observing.

"Contempt matter is between the Court and

the alleged contemner respondents ........ For

the aforesaid reasons, we are not inclined to

exercise our discretion in initiating a

proceeding and accordingly we reject this

application."

The High Court, on remand, directed the appellants

to grant recognition within a period of two months, failing

which the contemners should appear on 20th December, 1991

for passing necessary orders for imprisonment and fine.

Thereafter, the appellants granted provisional recognition

to the respondents for two years by order dated 10th

December, 1991.

Further, so far as the facts, as aforesaid,

submitted by learned counsel for the respondents were only

to show the mala fide of the appellants is not giving

recognition as high Madrasah to the respondents-institution

for which respondents have initiated various proceedings and

ultimately obtained the said orders. This was emphasised

more to show the mala fide attitude of the appellant

authorities which it seems, was the foundation of the

argument before the High Court resulting into the impugned

orders. The controversy now in this case, to which we are

concerned, is regarding the approval of teaching and

non-teaching staff of the said Madrasah. As aforesaid,

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submission for the appellants is except which is the subject

matter of challenge in the appeal arising out of SLP No.

28178 of 1995.

Since in terms of the order dated 9th February,

1994, the concerned authorities did not issue any order of

approval of the teaching and non teaching staff of the said

Madrasah a contempt proceeding was drawn against the

appellants. On 1st July, 1994 the Division Bench in the

said proceeding directed to accord provisional approval to

the teachers concerned by Tuesday next, subject to further

orders without prejudice to the rights and contentions of

the parties. Thereafter, provisional approval was given to

16 teaching and 3 non teaching staff. Subsequently, the

appellants made an application dated 19th July, 1994 for the

modification and for review of the order dated 9th February,

1994.

It is not in dispute that the Division Bench of the

Calcutta High Court, while deciding application in FMAT No.

337/94, also decided the appeal, that is to say, FMAT No.

337/94 which is evidenced from the following order few

teachers the other teachers do not prima facie posses the

requisite qualification as per rules which requires scrutiny

and adjudication by the concerned authority. In terms of

the conditions laid down in the provisional recognition, the

school authorities had to reconstitute the managing

committee according to the rules. The Trial Judge directed

the secretary of the Madrasah Board to accord approval of

the election of members of the category of guardians and

also directed the District Inspector of Schools to forward a

copy of the report to the said Board for giving its approval

in favour of the said 31 persons (24 teachers and 7

non-teaching staff) preferably within one month from

forwarding of the report. Being aggrieved by the said

order, an appeal was preferred before the Division Bench of

Calcutta High Court in FMAT No. 337 of 1994.

The Division Bench as aforesaid, passed an order on

9th February, 1994 directing the Board to give approval to

the service of teaching and nonteaching staff of the said

Madrasah within one month from the date in respect of whom

recommendation had already been made and also directed to

submit the grant-in-aid application for release of all

salaries within two months. It is this order dated 9th

February, 1994, as aforesaid,

"After passing of this order nothing

remains to becided in the appeal. Accordingly,

the appeal is treated as on day's list and both

the appeal and the application are disposed of as

above."

The submission by learned senior counsel for the

respondents Ms. Indira Jaisingh, is that the appellant

authorities are deliberately delaying to give recognition to

the teaching and non teaching staff through they have all

the required materials with them. Further, the information

sought by the appellants through the letter of District

Inspector of Schools dated 21st Sept. , 1992 and of the

Secretary of the Board of the same date, are such, which are

available with respondents and the other from respondents'

earlier letter dated 6th August, 1992 where qualification of

all the teachers are mentioned and from other inspection

reports of the appellants. It was faintly submitted that the

delay is deliberately caused, as was caused in the case of

recognition of the said institution as High Madrasah with

mala fide. Hence, it was submitted that the High Court had

rightly directed the respondents to grant recognition of the

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teaching and non teaching staff.

Learned counsel further submitted that the only

question to be adjudicated is whether the number of teaching

staff and their qualifications are, as required by the staff

pattern for the High Madrasah, with reference to the

relevant rules and circlers. It is submitted that this

Court may itself examine on the material on record which

would show that the respondents satisfy both the conditions.

Learned counsel for the appellants on the other hand

strongly repelling this, submitted that the figures of

students shown by the respondents are inflated to qualify

for more teachers and this inspection and scrutiny has yet

to be done by the authorities including the verification of

qualifications of the teachers. Learned counsel for the

respondents then submitted that let the appellants accept

the figures found by their own inspections and decide the

issue in question. Even this was repelled by the learned

counsel for the appellants by submitting that in the two

inspections made by the Assistant District Inspector of

school and District Inspector of School, which is also

submitted by the learned counsel for the respondents on one

occasion the school was closed and on the other it was when

High School examination was going on, which would not give

correct picture. Students found giving examination for the

High School in the increased number, cannot be construed as

the strength of students in class Xth, as in the

examination, large number of failed students also appeared,

who under the relevant rules cannot be enrolled as regular

students.

Submissions were also made by the learned senior

counsel for both the sides with regard to the ininum

qualification of the teachers in questioon with reference to

rules and circulars but we do not propose to advert to those

for the reason we are recording hereunder.

It is not in dispute, in this case, that after the

management sent its letter dated 6th August, 1992 for the

approval of its 31 staff, viz both teaching and non teaching

staff, both the District Inspector of School and the

Secretary of Board sought for certain information through

their letters dated 21th Sept., 1992. Instead of sending

any reply, the management filed the writ petition in the

High Court, leading to passing of the impugned orders.

Thus, till this date the appellant authorities have yet not

exercised their discretion. Submission for the respondents

was that this Court itself should examine and decide the

question in issue based on the material on records to set at

rest the long standing issue. We have no hesitation to

decline such a suggestion. The Courts can either direct the

statutory authorities, where it is not exercising its

discretion, by mandamus to exercise its discretion or when

exercised to see whether it has been validly exercised. It

would be inappropriate for the Court to substitute itself

for the statutory authorities to decide the matter.

In the impugned order, the High Court committed many

manifest errors and was swayed by what preceded the present

question, viz., inordinate delay in the recognition of High

Madrasah. That chapter was a closed chapter after granting

recognition as High Madrasah. Reference or the background

what precedes the present issue may have relevance but to

conclude on the said background without adverting to the

question in issue cannot be sustained.

On the perusal of the impugned order, we do not find

that any consideration was given in the impugned orders on

the issue in question. This apart, the High Court disposed

of the main appeal on the date not fixed for the same, while

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disposing of the application. It seems that in the

background of the anxiety of the management, in view of the

various proceedings undertaken including contempt

proceedings for implementing the learned Single Judge's

order, the court, instead of adverting to the question in

issue, concentrated more to see the said 31 persons be

approved within the specified time. As we have held above,

without the statutory authority applying its mind for their

approval and the impugned order not adjudicating the issue

in question how the impugned orders could be sustained. The

remote suggestion by the learned counsel for the respondents

of the mala fide also cannot stand as we do not find, by

firstly, any such allegation on record nor any such person

by name has been impleaded as a party.

Finally, we accept the suggestion of the learned

senior counsel for the respondents that in case the matter

is to be decided by the authorities instead of leaving this

matter for parties to go to the High Court again after such

adjudication, if so advised, this matter be kept pending in

this Court os that the matter may be finally decided here

instead of the matter taking long circular route again.

Accordingly, we direct the concerned authorities to

decide the aforesaid question raised by making any

inspections, as it deem fit and proper, after giving due

opportunity to the management, decide the matter within four

months and place its decision before this Court within three

weeks thereafter, after giving copy of the same to the

management.

Let thus case be usted after the aforesaid period

for final disposal.