- (1.) SERVICE of the petitioner in Bali Purbapara Junior High School in which he was working as an Organizer teacher, was approved by the concerned District Inspector of Schools (S.E.) after the said school obtained recognition from the West Bengal Board of Secondary Education. However, since such recognition was granted without financial assistance from the Government, the teaching and non-teaching staff of the said institution were not paid their salary from grant in aid. The petitioner was receiving only a sum of Rs.75/- towards his monthly salary, even after the school was recognized by the Board. Subsequently, however after series of litigations financial assistance was granted by the State Government.
(2.) BEFORE such financial assistance was granted to the said school, the petitioner was selected for his appointment as an assistant teacher in a primary school under the Council. As such he applied before the school authority for grant of lien so that he can join the post of assistant teacher in the primary school by retaining his service in the mother post. Such relief was claimed by him only for the reason that the salary of the primary teacher was more than the salary which was received by him from the said school. The petitioner was allowed to join the post of assistant teacher in the primary school on lien granted by the Headmaster of the said school. Subsequently, when the financial assistance was granted to the said junior primary school, the petitioner wanted to come back to his mother institution before expiry of the lien period. Repeated requests were made to several authorities for allowing him to join his mother post in the said junior high school but the authority did not pay any heed to such request of the petitioner. Under such circumstances the petitioner earlier moved a writ petition being W.P. No. 22891(W) of 2007 which was disposed of by a learned Single Judge of this Court on 7th December, 2009. While disposing of the said writ petition it was observed by His Lordship that the following question was involved in the said writ petition:- "Whether or not the petitioners intended to resume duty during the period they retained lien from the concerned post, the question of fact which would require decision by conducting necessary inquiry." The Director of School Education was, thus, directed to consider the aforesaid question upon putting the petitioner, the school authority as well as the District Inspector of Schools on notice. It was clarified therein that the Director shall be at liberty to inquire personally or to depute any subordinate officer for such purpose who shall conduct inquiry upon notice to all the parties with this rider that in the event after the fact finding inquiry is completed, it is found that the petitioners intended to be resume duty within subsistence of lien, the Director shall pass appropriate orders in accordance with law with a further rider that if on the contrary, if it is found that the petitioners never intended to return and resume the duty as assistant teacher of the said secondary school within subsistence of lien, the Director shall be at liberty to reject his claim by passing appropriate speaking order. While disposing of the said writ petition His Lordship made it clear that His Lordship did not express any opinion on merit and all points were left open to be agitated by the parties before the Director. The said order, thus, fixed the scope of enquiry and the follow up action to be taken on the basis of fact findings to be arrived at by the Enquiry Officer. Instead of holding an inquiry into the question as formulated by His Lordship in the said order by the Director himself, the said Director deputed two other officers for holding such inquiry. After holding such inquiry those deputed officers submitted their report to the Director of School Education with the following observations :- i) That the petitioners appear to have been approved by the West Bengal Board of Secondary Education and also by the District Inspector of Schools (S.E.), South 24-Pgs. ii) They were allowed by the M.C. to proceed on lien and to join the post of Pry. Teacher under D.P.S.C., South 24-Pgs. Only on the ground that they were being paid only Rs.75/- per month which was much less than the salary of the Pry. Teacher as stated by the S/A. iii) The Administration of the school should have settled the matter earlier. iv) The present management is agreeable to allow them to join if considered by the D.S.E., West Bengal.
(3.) WHILE coming to the said conclusion it was also observed by those two officers that the school having been granted financial assistance from the Government, the incumbents expressed their willingness to come back to their mother post of assistant teacher at Bali Purbapara Junior High School and applied before the then Administrator for the same within the period of lien but the same left unattended as reported by the school authority. Despite such observations were made by those officers in their report, the Director of School Education, instead of restricting his consideration to the question which was formulated by His Lordship while disposing of the earlier writ petition, enlarged the scope of inquiry thereof by making an attempt to consider the legality and validity of the lien which was granted by the school authority in favour of the petitioner, without putting the petitioner and/or the school authority on notice, and ultimately the Director of School Education after considering the extant Government order regarding grant of such lien, came to the conclusion that the grant of such lien was illegal and invalid as, such lien was granted by not observing the Government policy regarding grant of lien, contained in the government order under Memo No. S/218 dated 26th April, 1990. It is rightly pointed out by Mr. Moitra, learned senior Counsel appearing for the petitioner that such an inquiry was absolutely unwarranted in view of the specific direction passed by this Hon"ble Court in the earlier writ petition wherein not only the scope and/or ambit of enquiry was fixed but also the issue to be determined by the authority was fixed by His Lordship. Mr. Moitra, thus, submitted that since the said order was accepted by the parties, the scope of inquiry ought not to have been enlarged by the Director of School Education. Mr. Moitra, further submitted that when the officers who after holding an enquiry under the direction of the Director of School Education recorded a positive finding in their report indicating in clear term that the petitioner wanted to come back to the mother post before expiry of the lien period, the Director of School Education had no other alternative but to allow the petitioner to come back to the mother post. Mr. Moitra, also contended that when the Director of School Education, despite receiving such report from these two officers, decided to consider the legality and validity of such lien granted by the Headmaster of the said school in favour of the petitioner, by enlarging the scope of enquiry without adhering to the direction of the Court, it was obligatory on his part at least to give an opportunity of hearing to the petitioner as well as the school authority before deciding the said foreign issue which was never raised by the authority before this Hon"ble Court in course of hearing of the earlier writ petition. Mr. Moitra, concluded his submission by submitting that the impugned order of the Director is vitiated on the ground of violation of the Principle of Natural Justice also. Though, Mr. Sikdar, learned Advocate, appearing for the State respondent, supported the decision of the Director of School Education on the issue regarding legality of such lien granted by the Headmaster in favour of the petitioner but ultimately he conceded to the submission of Mr. Moitra that the Director of School Education ought not to have decided the said issue regarding validity of the grant of such lien in favour of the petitioner without giving an opportunity of hearing to the petitioner as well as the school authority.;