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2005 Supreme(Cal) 380
High Court Of Calcutta
Maharaj Sinha
CHANDAN KR.SINGH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 20366 Of 2003
Decided On : 06/17/2005
A.K.Pal, B.K.SAMANTA, D.K.Samanta, D.P.MAJUMDAR, M.DUTTA
The provisions in sub-rule 9 (VIIa) of Rule 28 of the Management Rules 1969, would apply to aided minority institutions. However, if the school authorities of the aided minority institutions are made to follow the procedure as contained in sub-rule 9 (VIIa) of Rule 28 of the said Management Rules 1969 as the said 1974 Special Rules do not contain any procedure regarding suspension or rather after an order of suspension is made by a school authority of as minority institution, then, it would not, in my opinion, be an interference with the overall administrative control of the management of the staff of such aided minority institutions at all.
Headnote:
SUSPENSION - AIDED MINORITY INSTITUTION - APPROVAL OF SUSPENSION ORDER - DISAPPROVAL BY SECTION 24 COMMITTEE - EFFECT ON SUSPENSION ORDER - CONTINUATION OF SUSPENSION ORDER - VALIDITY - AIDED MINORITY INSTITUTION - SERVICE CONDITIONS OF TEACHING AND NON-TEACHING STAFF - REGULATIONS BY STATE GOVERNMENT - POWER - MANAGEMENT RULES, 1969 - SUB-RULE 9 (VIIA) OF RULE 28 - APPLICABILITY TO AIDED MINORITY INSTITUTIONS - SPECIAL RULES, 1974 - RULE 12 - SUSPENSION OF EMPLOYEE - PROCEDURE - ABSENCE OF PRESCRIBED PROCEDURE - APPLICABILITY OF SUB-RULE 9 (VIIA) OF RULE 28 OF MANAGEMENT RULES, 1969.
Fact of the Case:
The petitioner, headmaster of a Christian minority school, was suspended by the school authority on 8th September, 2003. The order of suspension was not approved by the Committee constituted under Section 24 of the West Bengal Board of Secondary Education Act 1963. The petitioner filed a writ petition challenging the order of suspension.
Finding of the Court:
1. The order of suspension dated 8 September, 2003 of the authority, namely the said governing body could not survive any longer and since the said order of suspension lost its legal existence by virtue of the said order of disapproval of the said Committee the petitioner was entitled to join the school and should have been allowed to resume his duty by the authority of the said school as the headmaster of the school in question. 2. The provisions in sub-rule 9 (VIIa) of Rule 28 of the Management Rules 1969, would apply to aided minority institutions. However, if the school authorities of the aided minority institutions are made to follow the procedure as contained in sub-rule 9 (VIIa) of Rule 28 of the said Management Rules 1969 as the said 1974 Special Rules do not contain any procedure regarding suspension or rather after an order of suspension is made by a school authority of as minority institution, then, it would not, in my opinion, be an interference with the overall administrative control of the management of the staff of such aided minority institutions at all.
Issues: 1. Whether the order of suspension dated 8 September, 2003 of the authority, namely the said governing body could survive any longer and since the said order of suspension lost its legal existence by virtue of the said order of disapproval of the said Committee the petitioner was entitled to join the school and should have been allowed to resume his duty by the authority of the said school as the headmaster of the school in question? 2. Whether the provisions in sub-rule 9 (VIIa) of Rule 28 of the Management Rules 1969, would apply to aided minority institutions?
Ratio Decidendi: 1. Since the order of disapproval of the order of suspension against the petitioner was made on 9 January 2004 after the writ petitioner initiated the writ proceeding and obtained the said interim order in his favour on 23 December 2003, the order of suspension could not survive any longer and the petitioner was entitled to join the school and should have been allowed to resume his duty by the authority of the said school as the headmaster of the school in question. 2. The provisions in Rule 15 of the said Special Rules, 1974 make it clear that in matters not specified in the 1974 Rules the school committee of a minority institution governed by the said Special Rules 1974 should exercise powers in confirmity with the general directions of the founder body and also in confirmity with the provisions of the rules or orders issued by the State Government or any other authority competent to do so under the provisions of any act or rules framed thereunder. Since the provisions in Rule 12 of the said 1974 Rules do not contain any procedure which the school authority of a minority institution should follow after it suspends an employee including the headmaster and headmistress of such institution it should follow the procedure contained in the sub-rule 9 (VIIa) of Rule 28 of the said Management Rules 1969 as the school committee is under an obligation to act in confirmity with the rules or orders issued by the State Government or a competent authority under the provisions of a statute or rules framed thereunder and since a complete procedure regarding suspension has been provided under the provisions of the said sub-rule 9 (VIIa) of Rule 28 in the said Management rules 1969 for aided and unaided schools and since the institution in question though a minority institution in a 100% aided institution it is under a legal obligation to follow the said procedures or follow the procedure regarding suspension contained in the said Management Rules 1969 in substance and that is why, contended Dr. Majumdar, the school authority referred its order of suspension against the petitioner to the west Bengal Board of Secondary Education or to its sub-committee constituted under Section 24 of the West Bengal Board of Secondary education Act 1963 for its approval of the said order of suspension made against the petitioner on 8th September 2003.
Final Decision: The said order of suspension against the petitioner dated 8 September, 2003 is set aside. The school authority and the concerned authorities are directed to allow the petitioner to resume his duties as the headmaster of the said school as before.
( 1 ) AN order of suspension dated 8 September, 2003 reference No. GB/44/03, issued against the writ petitioner herein, chandan Kr. Singh,by the Secretary on behalf of the governing body of the founder body of Diocese of Barrackpore is essentially under challenge in this writ application.
( 2 ) BY virtue of the said order of suspension the petitioner has still remained suspended and has not been able to discharge his duties as the headmaster of C. M. S. St. John's High School, at Krishnagar in the district of Nadia ever since,though the said order of suspension was not approved "by the Committee constituted under Section 24 of the West bengal Board of Secondary Education Act 1963" and though the concerned district Inspector of Schools informed the Secretary of the C. M. S. St. John's High School,at Krishnagar (hereinafter referred the said school) that the petitioner, Chandan Kr. Singh should be allowed to join his duty and act as per order of the Secretary, West Bengal Board of secondary Education meaning thereby the said order of disapproval of the said order of suspension against the petitioner of the said Section 24 committee dated 9 February 2004.
( 3 ) WHEN the present writ petition was first moved an interim order was made by this Court on 23 December 2003 to protect the interest of the petitioner and by virtue of the said interim order the school authority was restrained from dismissing the petitioner from his post of headmaster of the said school or rather prohibited the school from adopting any resolution for dismissing the petitioner form his headmastership of the said school.
( 4 ) AFTER the above interim order the petitioner made an application an the basis of some subsequent events that took place after the initiation of the writ proceeding for a direction upon the school authority that the petitioner should be allowed to resume his duty as the headmaster of the said school as before. In the said application the petitioner,in fact, relied on the said order of disapproval of the said Section 24 Committee of the West Bengal Board of Secondary Education dated 9 February 2004 whereby the said committee by its resolution decided not to approve the said order of suspension against the petitioner herein.
( 5 ) NEEDLESS to mention that the said order of disapproval of the said section 24 Committee was made on 9 January 2004 after the writ petitioner initiated the writ proceeding and obtained the said interim order in his favour on 23 December 2003.
( 6 ) THE learned counsel Dr. D. P. Majumdar, appearing on behalf of the writ petitioner, said with much emphasis that in any event since the board or rather the said Section 24 Committee decided at its meeting held by it on 9 January 2004 not to approve the said order or rather the proposal of suspension of the petitioner and since the said order of suspension, in fact, was not approved by the said Committee the said order of suspension dated 8 September 2003 of the authority, namely the said governing body could not survive any longer and since the said order of suspension lost its legal existence by virtue of the said order of disapproval of the said Committee the petitioner was entitled to join the school and should have been allowed to resume his duty by the authority of the said school as the headmaster of the school in question and that according to Dr. Majumdar is the most natural and probable consequence of the said order of disapproval of the Said Committee.
( 7 ) IN his submission Dr. Majumdar also pointed out that since the school authority did not or rather failed to draw any proceeding against the petitioner, the said order of suspension stood automatically withdrawn in the first place in terms of the provisions of the said sub-Rule 9 (VIIa)of Rule 28 of the management of recognized non-government institution (aided and unaided) Rules 1969.
( 8 ) NEEDLESS to mention that Dr. Majumdar also argued that the present case was squarely governed
