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2023 DAILYLAW 1998 (CAL)

Shampa Bhattacharya v. State Of West Bengal

2023-07-09

Rai Chattopadhyay

body2023
JUDGMENT : Rai Chattopadhyay, J. 1. The letter of termination to the writ petitioner, that is dated November 13, 2019, issued by the Secretary/respondent number 7, of the respondent school/respondent number 4, is under challenge in the present writ petition. 2. Pursuant to an advertisement, published in the newspaper on August 27, 2017, the petitioner had applied for the post of a full- time clerk in the respondent school. In the said advertisement the qualification sought for the post was Higher Secondary with Computer and Accounts knowledge. The petitioner took part in the selection process and was selected, being the top scorer in the process. 3. A letter of appointment was issued to her to appoint her as an office clerk with effect from April 2, 2018, purely on temporary basis and in lieu of a consolidated monthly pay of Rs. 10,000/-. Since April 2, 2018, that is, the date of her appointment in the respondent school, the petitioner has been working there till the time her employment was terminated by the impugned letter dated November 13, 2019. At the time of termination of her service, the petitioner was paid two account payee cheques of Rs. 4000/- and Rs. 30,000/- respectively, on account of her salary for the month of November, 2019 and a lump-sum termination benefit, which she has received. 4. Before termination of her service, there has been exchange of written communications between the respondent school and the petitioner. By dint of a letter dated June 25, 2019, the respondent school has informed the writ petitioner regarding her poor performance with accounts works, she has been advised to improve her job skill within 3 months from the date of receipt of that letter and to treat the said letter as the 3 months notice for termination of service. It was informed also that unless her job skill would be found to have improved after 3 months period from the said letter the school authority would have no other way than to terminate her service. 5. The writ petitioner replied to the said letter, vide her letter dated September 4, 2019. The petitioner urged there that since her induction in the said school in the said post she had discharged the duties sincerely, to the best of her abilities and thus has rendered unblemished service to the school. 5. The writ petitioner replied to the said letter, vide her letter dated September 4, 2019. The petitioner urged there that since her induction in the said school in the said post she had discharged the duties sincerely, to the best of her abilities and thus has rendered unblemished service to the school. She had also mentioned letter of the school authorities dated June 25, 2019, to be vague and non- specific insofar as the same has been devoid of allegation of any specific shortcoming of her service. She has mentioned further that during the one and half years of her service in the said school, her performance has never been questioned earlier by the authorities. She has informed further that even inspite of rendering service with utmost sincerity and diligence, she is ever prepared to improve herself to match the highest standard of performance. 6. Her said letter appears to be pending for consideration in the agenda list of the Managing Committee of the respondent school. 7. In the circumstances as mentioned above, the petitioner has sought for relief, by filing the present writ petition. 8. Mr. Bhattacharya represents the petitioner in this case. He has contended strongly that the impugned termination letter and the resultant termination of the writ petitioner by dint of the same, have been effected with gross arbitrariness, flagrant violation of the statutory provision and the principles of natural justice. He says that the respondent school authority has never granted any opportunity to the writ petitioner to speak in her defence, though it has alleged about lacuna of her performance. Also that the petitioner’s response to the so-called notice of termination, has also not been considered. Instead the school authority, in a high-handed, closed minded and unilateral way has put an end to the service career of the writ petitioner. Therefore such an act of the respondent school is arbitrary and illegal, he says. 9. He has further stated that the pre-amended Management Rules (of 1969), would render the impugned action of the respondent school as illegal insofar as writ petitioner’s termination without causing an enquiry as to the alleged misconduct if any and that without obtaining prior permission of the West Bengal Board of Secondary Education, would be de hors the provisions as enumerated in the said Rules. By referring to Rule 28(8) and 28(8)(a) thereof. By referring to Rule 28(8) and 28(8)(a) thereof. He mentions that the same empowers the managing committees of the aided and unaided schools to remove or dismiss a permanent or temporary teacher and other employee, subject to prior approval of the Board. In absence of any prior permission having been taken by the school authorities before termination of service of the writ petitioner, such inaction by the school authority would render such termination of service vide letter dated November 15, 2019, as ineffective and illegal. 10. In her supplementary affidavit the writ petitioner has put forth an effort to reply to the query of the Court, as to whether the post for which she was appointed in the school was a sanctioned post or not. She has stated on oath that the respondent authority had not declared the post to be a temporary or an unsanctioned one, in the advertisement. She has stated that during the recruitment process, the respondent school has never declared the said post to be an unsanctioned one. According to the writ petitioner the school authority has never disclosed about the temporary nature of the post or that the same was a post terminable without following the due process of law. 11. The writ petitioner has prayed for setting aside of the alleged illegal letter of termination dated November 15, 2019 and her reinstatement in service. 12. The school authority has contested in the present case by filing two separate affidavits in opposition to the writ petition as well as the supplementary affidavit filed by the petitioner. Principally, the school authority has contested on the ground of non-maintainability of this writ petition. It has stated that the writ petitioner would not have any right to the post insofar as she has been appointed purely on casual basis, temporarily for an ad hoc monthly payment. It has further stated that she has not been appointed against a sanctioned vacancy. Therefore, according to the school authority, the petitioner’s service would be terminable without reference to any procedure established by law. 13. It has further been stated that the respondent school/respondent number 4 is a DA getting school and not aided or sponsored by the government. However, the writ petitioner is not an approved employee who receives such benefits from the government. 13. It has further been stated that the respondent school/respondent number 4 is a DA getting school and not aided or sponsored by the government. However, the writ petitioner is not an approved employee who receives such benefits from the government. According to the school authority, so far as the part of administration run by its own fund and management, the state would not have any role to play therein. So far as the service of the writ petitioner is concerned, according to the school authorities, it is purely dependent on the private arrangement between the school and the writ petitioner. For this reason, according to the same, a writ petitioner at the instance of the said employee to seek redress against the school authority would not be maintainable, as there would not be any involvement of the State or any of its instrumentalities in case of the petitioner’s service therein. The said respondent has denied and disputed that the provisions of the pre-amended Management Rules 1969, would be applicable in case of the writ petitioner. It has disputed and denied that petitioner’s termination should have been subjected to an enquiry process duly established under the law or that charge if any against her should have been proved in the process of a disciplinary enquiry, before she could have been terminated in accordance with law. It has denied that otherwise, as it has been done in the present case, the termination of the writ petitioner is in violation of the rules and procedures laid down by law. 14. On the merits of the case, the school authority has contended that since the writ petitioner was appointed purely on temporary basis on payment of ad-hoc remuneration, in the post of a clerk, to discharge accounting job and she could not accomplish the same with adequate efficiency, the authorities have discharged her from the said post. It has contended that in doing so no illegality has happened jeopardising any rights of the writ petitioner, as claimed. It has contended that in doing so no illegality has happened jeopardising any rights of the writ petitioner, as claimed. On the contrary the writ petitioner having no right to the post and being employed pursuant to the private arrangement between the school and herself not involving any State authority or its instrumentalities, has erroneously come before this Court to invoke its extraordinary jurisdiction under article 226 of the Constitution, which however empowers the Court only to intervene into an alleged unlawful process undertaken by any State authority. 15. The respondent has sought for dismissal of the writ petition. 16. The question involved in this writ petition is with regard to applicability of the provisions of the Management Rules, 1969 (pre-amended), in case of the writ petitioner at the time of termination of the service. The Management Rules, 1969 (pre- amended) is meant for management of recognised non-government institutions. The same would cater to both the aided and unaided institutions. The (pre amended) provision of Rule 28 sub-rule (8) thereof would provide for the power of the aided and unaided institutions to dismiss its teachers or other employees, subject to the result of a duly formulated disciplinary proceeding initiated against them, pursuant to the prior approval of the West Bengal Board of Secondary Education. The dismissal would be subject to prior permission of the Board. 17. It is necessary to find as to who would be the teachers or other employees of recognised, aided or unaided non-government schools, to be covered under the provisions of the said Management Rules, 1969 (pre-amended). The said Rules have provided for the teachers and other employees of such an institution who are employed against a sanctioned post thereof, to be governed under the provisions of the said Rules. “Sanctioned Post” has been defined in the said Rule, as the post of teaching and non-teaching staff sanctioned by the Director of School Education or an officer authorised by him in this regard. 18. As a matter of fact, the petitioner in this case has not claimed that she was employed against any sanctioned post of non-teaching employee of the school. On the contrary the school authority in its affidavit has affirmed that the writ petitioner was not employed in a sanctioned post. 19. 18. As a matter of fact, the petitioner in this case has not claimed that she was employed against any sanctioned post of non-teaching employee of the school. On the contrary the school authority in its affidavit has affirmed that the writ petitioner was not employed in a sanctioned post. 19. The other noticeable thing in this case is that the petitioner, at the time of her termination of service, has received the terminal grant, without reserving her rights for future. She has not raised any objection at the time of acceptance of the said grant. The writ petitioner cannot and does not deny her appointment on purely temporary basis in lieu of ad hoc monthly payment of remuneration. It is not a case that subsequently she has been confirmed or approved in the said service. In such view of the fact, her claiming any vested right over the post appears to be baseless and far-fetched. On the contrary, her employment would be subject to the decision of the appointing authority and impairable even without following the due process of law, in case the appointing authority decides in that manner. In such circumstances the writ petitioner cannot successfully claim protection under provision of Rule 28 (8) of the Management Rules, 1969 (pre-amended). 20. Therefore, it can be said that the writ petitioner’s service condition would not be dependent on any statutory provision but on the terms and conditions on which she has been appointed by the school authority. That would be in the nature of a private agreement between the school authority and the petitioner. Needless to mention that the writ petition cannot seek enforcement of any mutually agreed terms and conditions between herself and the school authority, both being acting in their respective private capacity, in that event. 21. On the discussion as above this Court is constrained to hold that the present writ petition would not be maintainable before this Court as well as in absence of any sufficient ground being pleaded, on the merits of the case. 22. Hence, this writ petition being WPO 571 of 2019 is dismissed. 23. Urgent Photostat certified copy of this judgment be supplied to the parties on priority basis, if applied for.