2004 Supreme(SC) 1481

2005(1) Supreme 674
Supreme Court of India
(From Calcutta High Court)
Y.K. Sabharwal and D.M. Dharmadhikari, JJ.
Ramakrishna Vivekananda Mission —Appellant
versus
State of West Bengal & Ors. —Respondents
Civil Appeal Nos. 3232-3234 of 2000
Decided on 29-11-2004
Counsel for the Parties :
For the Appellant : Sanjay Sen, Debmalya Banerjee and Ms. Indra Sawhney, Advocates.
For the Respondents : Tara Chandra Sharma, Ms. Neelam Sharma, Ajay Sharma, Tarun Sharma, Raj Kumar Gupta and A.N. Bardiyar, Advocates.

Important pointUnder the provisions of the West Bengal Board of Secondary Education Act, there has to be strict compliance of the provision regarding previous publication of the Special Rules when its draft is published.

Headnote:West Bengal Board of Secondary Education Act, 1963—Sections 2(a), 22, 27 and 45—West Bengal Board of Secondary Education (Manner of Hearing and Deciding Appeals by Appeal Committee) Regulations, 1964—Management of Recognized Non Government Institutions (Aided and Unaided) Rules, 1969—Rule 28(8)—Termination of service of two teachers—Both were approved teachers appointed by appellant Mission—According to the Mission, since the two teachers refused to do hostel duty, show cause notice was ­issued to them—Proceedings under the Regulations were initiated by teachers challenging validity of termination—Mission wanted the State Government to frame Rules under Rule 33—Appeals filed by the teachers before the Appeal Committee of the Board under the Regulations were subsequently withdrawn—Fresh appeals filed by teachers—Competence of Appeal Committee to hear fresh appeals was challenged by the Mission—Order of Appeal Committee quashing order of termination upheld by the High Court—Appeals against—Whether appellant is entitled to claim rights under Article 26 of the Constitution and on that basis seek framing of Special Rules under Rule 33—(Yes)—Effect of non publication of Special Rules—Maintainability of second set of appeals by teachers.

       Held : The point whether the appellant is entitled to rights under Article 26 has, in fact, not been seriously disputed either by learned counsel appearing for the State Government or the private respondents. Having regard to the aforesaid, the first point is answered in favour of the appellant. (Paras 22 and 23)

       The special rules framed under Rule 33 require prior publication as postulated by Section 45 of the Act. It further cannot be disputed that before such publication the procedure prescribed under Section 24 of the West Bengal General Clauses Act, 1899 had to be complied with. (Para 24)

       The Special Rules have the effect of encroaching upon the rights of the teaching and non-teaching staff in the school. On publication of the draft rules, those affected by the Special Rules are granted opportunity to file objections and suggestions to those rules. Section 24 postulates fixing of date for consideration of draft Rules by the State Government. The objections or suggestions that may be received are required to be considered before taking a decision to publish the rules in official gazette as the said publication is conclusive proof of the rules having been duly made. In the instant case, effect of the Special Rules is to deprive of the teachers of valuable rights under Rule 28(8). Under the said Rule, the decision of the Board on the disciplinary matters is final whereas under the Special Rules, it would be the decision of the Committee which would be final. It is true, as already noticed, that the High Court was informed that the Rules had been approved as recorded in the order dated 1st March, 1994 in Writ Petition No. 2041 of 1986. The said order cannot, however, adversely affect the teachers here, particularly, when the private respondents (teachers) were not parties in those proceedings and also when the law was not followed insofar as the previous publication was concerned. We are unable to accept the contention that there was sufficient and enough publication of the Special Rules. There has to be strict compliance of the provision regarding previous publication as it vitally affects the teaching and non-teaching staff which has a valuable right to object to the Special Rules when its draft is published. The teaching class can put forth its view point and give suggestions to the State Government on publication of the draft Rules. Admittedly, nothing of the kind was done. It cannot be held that valid Special Rules came to be made only because of orders dated 1st March, 1994. In the absence of Special Rules, 1969 Rules would continue to apply and prevail. (Paras 25 and 26)

       Under the regulations, there is no provision for filing of second set of appeals when earlier appeals are unconditionally withdrawn. The irresistible conclusion, therefore, is that Appeal Nos. 3 and 4 were not maintainable. The effect of it would be that the order of termination of the services of the teachers would remain unchallenged. The teachers did not file any writ petition challenging the order of termination, since they had succeeded before the Board in second set of appeals (Appeal Nos. 3 & 4). In view of the above, peculiar situation has arisen. On one hand the Special Rules have not come into force on account of non-publication thereof and, thus, the appellant was required to follow the procedure under Rule 28(8). Admittedly, that was not followed. On the other hand, the orders of termination have attained finality as second set of appeals under the Regulations were not maintainable. Having regard to this peculiar position, we are of the view that the power under Article 142 deserves to be exercised for doing complete justice to the parties. In this view, even in absence of any substantive proceedings by the teachers, we hold that the orders of their termination are not valid. (Paras 29 and 30)