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HIGH COURT OF CALCUTTA
A. K. SEN
PARUL SENGUPTA - Appellant
Versus
WEST BENGAL BOARD OF SECONDARY EDUCATION - Respondent
. Of .
Decided On : October 1, 1974
EDUCATION - WEST BENGAL BOARD OF SECONDARY EDUCATION ACT, 1963 - APPEAL REGULATIONS - LIMITATION - VALIDITY OF ORDER - ENFORCEMENT OF ORDER - MANDATE.
Fact of the Case:
Petitioner, a permanent Head Mistress of a school, applied for leave with pay for three months from December 15, 1966, due to her son's higher secondary examination. The Managing Committee granted leave with pay until January 31, 1967, but specified that it was temporary. Petitioner requested an extension of leave without pay until March 15, 1967, which was denied. She insisted on the leave and made representations, leading to a resolution refusing the leave and requiring her to rejoin within three days or face resignation. Despite her attempts to rejoin, she was not allowed, and she made various representations to authorities. In June 1969, she filed an appeal before the Appeal Committee of the Board under section 22(3) of the Act, which was entertained and registered. The Administrator of the school submitted a written statement disputing the claim on merits but did not raise any objection regarding limitation. The Appeal Committee allowed the appeal and ordered her reinstatement with back pay from February 1, 1967, except for the period she served elsewhere. The Board communicated the order to the school authorities, who received it on October 25, 1971. The Administrator submitted a written representation to the Board for reopening the appeal on various grounds, including limitation, but no further action was taken. The Board directed the school authorities to implement the order on March 22, 1972, but it was not complied with. The petitioner filed a writ petition seeking a mandate on the Board to enforce its obligation under Regulation 11(3) of the Appeal Regulations.
Finding of the Court:
1. Regulation 4(2) of the Appeal Regulations, which prescribes a limitation period for filing an appeal, is ultra vires the Act as it affects substantive rights and is not within the scope of the Board's regulation-making powers under section 27(3). 2. The order of the Appeal Committee dated August 26, 1971, allowing the petitioner's appeal and directing her reinstatement, is not void even if the appeal was time-barred, as the validity of the order cannot be collaterally challenged in this proceeding. 3. The Board has an obligation under Regulation 11(3) of the Appeal Regulations to enforce the order of the Appeal Committee when the school authorities fail or refuse to comply with it.
Issues: 1. Whether Regulation 4(2) of the Appeal Regulations, which prescribes a limitation period for filing an appeal, is ultra vires the Act. 2. Whether the order of the Appeal Committee dated August 26, 1971, allowing the petitioner's appeal and directing her reinstatement, is void if the appeal was time-barred. 3. Whether the Board has an obligation under Regulation 11(3) of the Appeal Regulations to enforce the order of the Appeal Committee when the school authorities fail or refuse to comply with it.
Ratio Decidendi: 1. The power to make regulations under section 27(3) of the Act is limited to matters for the proper exercise of the Board's powers under the Act, namely, to hear and decide appeals. Regulation 4(2), which prescribes a limitation period for filing an appeal, affects substantive rights and is not within the scope of the Board's regulation-making powers. 2. The validity of the order of the Appeal Committee cannot be collaterally challenged in this proceeding. The Administrator's claim that the appeal was time-barred and the order is void is not supported by any evidence, and the Court cannot conclude with certainty that the appeal was not filed within time. 3. Regulation 11(3) of the Appeal Regulations casts an obligation on the Board to enforce an order of the Appeal Committee if the Managing Committee fails or refuses to comply with the order. The Board's obligation is undisputedly enforceable, and the petitioner is entitled to a mandate on the Board directing it to take necessary steps to enforce the order of the Appeal Committee.
Final Decision: The Rule is made absolute, and a Mandate is issued on the respondent West Bengal Board of Secondary Education directing the said Board to implement the order of the appeal committee dated August 26, 1971 in accordance with regulation 11 (3) of the appeal regulations.
( 1 ) THE petitioner in this Rule who was a permanent Head Mistress of Bansdroni Benoy Balika Vidyalaya has obtained this Rule on a writ petition seeking for a mandate on the West Bengal Board of Secondary Education (hereinafter referred to as the said Board) directing the said Board to discharge its obligation and perform its duties under regulation 11 (3) of the Appeal Regulations framed under section 27 (3) read with section 22 (3) of the West Bengal Board of Secondary Education Act, 1963 (hereinafter referred to as the said Act ).
( 2 ) THE petitioner was appointed the Head Mistress of the aforesaid institution on January 1, 1963 and subsequently she was made permanent in that post. She applied for three month' have with effect from December 15, 1966 in view of the fact that her son was due to appear in the ensuing higher secondary examination. The Managing Committee of the said school adopted a resolution on December 4, 1966 granting her leave with pay upto January 31, 1967. But the resolution provided that the leave so granted was for the present. The petitioner who was to rejoin her duties on February 1, 1967 sought for extension of her leave even without pay upto March 15, 1967. The Managing Committee adopted a resolution on January 15, 1967 rejecting the prayer for extension. Petitioner however insisted upon the leave prayed for and made a representation on January 27, 1967. The Managing Committee reconsidered her prayer for leave as also her representation as aforesaid at its meeting held in February 12, 1967 when a resolution was adopted refusing the prayer and calling upon the petitioner to rejoin her duties within three days. In default, it was directed that she will be considered to have resigned of her own accord. The Secretary of the school addressed a letter dated February 15, 1967 to the petitioner to the effect following : ?as informed you by our letter No. BVT1/57/67 dated 2. 2. 67 we placed your representation of 27th Jan. 1967 in the meeting of the Managing Committee held on 12. 2. 67. The undersigned have been directed to inform you by the Committee that the decision taken by it in its meeting dated 15. 1. 67 as communicated to you in our letter No. BVT1/53/67 dated 17. 1. 67 in connection with your leave will stand. You are, therefore, requested again to join your duties within three days from the receipt of this letter. In case of your failure to do so, your action will be taken as that of a deserter of the institution. ?
( 3 ) ACCORDING to the petitioner she was not allowed to rejoin her duties on her failure to rejoin in terms of the aforesaid letter and she made various representations to different authorities and ultimately in June 1969 she preferred an appeal before the Appeal Committee of the Board under section 22 (3) of the said Act which was entertained and registered as Appeal Case No. 1103/69. A copy of the petition of appeal having been served on the school authorities asking for their comments the then Administrator of the school submitted a written statement on April 7, 1970. Petitioner's claim for reinstatement was disputed on merits but no objection was taken that the petitioner's appeal was barred by limitation, if any prescribe by the regulation, if any prescribed by the regulation. After a few adjournment, this appeal was heard ex parte by the Appeal Committee on August 26, 1971 when the Administrator failed to appear at the hearing in spite of due notice to him. The appeal was allowed for reasons incorporated in the order which is annexed to the affidavit-in-opposition field by the Board of Secondary Education. The concluding part of the order reads as follows : ?resolved that the appeal be allowed. The appellant be reinstated as Head Mistress from 1. 2. 67. She will get all her arrears to pay and admissible allowances with effect from that day except for the period she served or has been serving in any other institution. ?
( 4 ) THE Secretary of the Board by a letter
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