KANAI KRISHNA BHAWMIK AND OTHERS Vs. DIRECTOR OF SECONDARY EDUCATION, GOVERNMENT OF WEST BENGAL AND OTHER
LAWS(CAL)-1983-6-35
HIGH COURT OF CALCUTTA
Decided on June 23,1983

KANAI KRISHNA BHAWMIK Appellant
VERSUS
DIRECTOR OF SECONDARY EDUCATION, GOVERNMENT OF WEST BENGAL Respondents

JUDGEMENT

- (1.) This Rule is at the instance of the petitioners i. e. the ten members of the managing committee of Naikuri Dhara nidhar Balika Vidyalaya assailing the propriety and validity of the order of approval dated 21-8-1980 as communicated under memo. No. 905 GA as mentioned in annexure K to the writ petition on the grounds inter alia that this order was made arbitrarily and in contravention of the provisions of R. 28 (2) of the Rules of Management of Recognised Non-Government Institutions (Aided and Unaided) 1969. This order has also been challenged on the ground that the respondent No. 3, Sm. Kabita. Mitra, the officiating headmistress could not approbate and reprobate at the same time.
(2.) The salient facts which are relevant for the purpose of deciding this Rule are as follows: Respondent No. 3 Sm. Kabita Mitra was appointed as headmistress after the resignation of Sm. Shila Dutta from the post of headmistress of the said school by the then managing committee of the school after advertising the said post in a local weekly of the name of 'signal'. It has been pleaded that only two applications were received by the selection committee and the respondent No. 3 Sm. Kabita Mitra alone appeared before the selection committee. After the appointment was given by the then managing committee the matter was sent to the District Inspector of School (Secondary Education), Midnapore (respondent No. 2) for according approval to the appointment of Sm. Kabita Mitra (respondent No. 3) as headmistress. The respondent No. 2 however though by a letter dt. 28-11-77 temporarily approved the appointment of Kabita Mitra to act as officiating headmistress of the school yet refused to accord approval to her appointment as permanent headmistress of the school on two grounds viz. that the post was not advertised in any well circulated newspaper and that the managing committee which appointed her was a time-barred managing committee. Subsequently a letter was sent to respondent No. 2- by the then Administrator of the said school requesting for permission for appointment of a headmistress of the school. The District Inspector of Schools (respondent No. 2) by his memo No. 246-S dt. 3-3-80 intimated the Administrator that he accorded permission for appointment of a duly qualified headmistress after advertising the post in a well circulated leading newspaper. In pursuance of this order advertisements have been made and applications were received. Respondent No. 3 Sm. Kabita Mitra also applied for the said post. The applicants appeared before the selection committee and the selection committee found Rekha Majhi to be the fittest candidate topping the list and the respondent No. 3 was placed in No. 3 position in the selection list. It has been stated that thereafter Rekha Majhi was given an appointment in the post of headmistress and the matter was intimated to the authorities concerned for giving necessary approval to her appointment. In that view of the matter Kabita Mitra made representation before the authorities concerned whereupon the Director of Secondary Education (respondent No. 1) called for all the papers in connection with the appointment of respondent No. 3 as headmistress of the school from the D. I. of Schools and ultimately after consideration of all the papers accorded approval to the appointment of Sm. Kabita Mitra in the post of headmistress of the school and this has been communicated by a letter of the D. I. of Schools (respondent No. 2) dt. 25-8-1980 to the Secretary of the said Institution. Immediately on receipt of this letter the ten members including the Vice President and Secretary of the managing committee of the said Institution have moved the instant writ application before this Court assailing the impugned order of accord of approvalby the respondent No. 1. A Rule was issued and an interim order on certain terms was made on 26-9-1980.
(3.) Mr. Bhunia learned Advocate appearing on behalf of the petitioner has submitted in the first place that the impugned order made by the respondent No. lis not in conformity with the provisions of R. 28 (2) of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided) 1969 inasmuch as the District Inspector of Schools (Secondary Education) Midnapore (respondent No. 2) was quite within his power to refuse according of approval to the appointment of respondent No. 3 as headmistress of the school inasmuch as there has not been a proper compliance with the procedure prescribed viz. there has not been a proper advertisement in the daily newspaper and secondly that the appointment was made by a managing committee whose tenure of office expired before the issuance of this appointment. Mr. Bhunia in this connection referring to the expression does not approve of the appointment as made in sub- rule (2) of R. 28' has tried to contend before this Court that this includes the power to refuse approval by the District Inspector of Schools where there has been a procedural non-compliance. It has therefore been submitted that the order made by the D. I. of Schools dt.30-7-1979 as mentioned in annexure C is a perfectly legal and valid order and the subsequent order made by the Director of Secondary Education (respondent No. 1) according approval setting aside the order of respondent No. 2 is not a proper order. It has been next submitted that the respondent No. 3 has by a note dt. 2-11-1979 has asked the Administrator to make arrangement to fill up the post of headmistress and accordingly the Administrator by his letter addressed to the respondent No. 2 requested for permission to advertise for the post of headmistress, in order to fill up that post. It has also been submitted in this connection by Mr. Bhunia that the respondent No. 3 also applied pursuant to the said advertisement for the post, appeared before the selection committee and on being unsuccessful in her attempt to get selected for the post had made a representation against the order of the respondent No. 2 whereby approval to her appointment as headmistress to the school was not accorded. It has been submitted that the respondent No. 3 cannot approbate and reprobate in one and at the same time. As such she is not entitled to make any representation before the respondent No. 1 against disapproval to her appointment to the post in question and to have the order set aside by the impugned order passed by respondent No. 1 as mentioned in annexure K to the petition. Some decisions have been cited at the Bar by Mr. Bhunia, learned Advocate for the petitioner, in support of this contention and also in support of his earlier contention that when power is given to an authority to exercise in certain mode or manner prescribed therein the exercise of such power by other mode or manner is thereby exclusively prohibited.;


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