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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.