K.M.Yusuf, J. - (1.) A petition was filed under Article 227 of the Constitution of India by the petitioner with the prayer for a direction upon the respondents particularly the Appeal Committee of the West Bengal Board of Secondary Education to hear out the appeal which was preferred on 15th June, 1989 as well as against the order of suspension of the petitioner dated 5th June, 1989 passed by the Headmaster of Bhaluka R. M. M. M. Vidyapith (H. S.) in the District of Malda. I granted the order of status quo on 19th June, 1989. When the matter came up for hearing on 28th June, 1989 a question of importance cropped up as to whether a revisional application can be moved without the certified copy of the order complained of and whether without the certified copy the Court can entertain and proceed with the application under Article 227. In fact, the point of maintainbility of the application under Article 227 of the Constitution without a certified copy was raised and it became necessary for the Court to deal first with this question and then to proceed with other points raised in the petition. The Court requested Mr. Asok Kumar Ganguly, a learned Advocate of this Court, to act as amicus curide and he agreed.
(2.) Mr. Kabir, the learned Advocate for the petitioner (since elevated to the Bench), argued that under Part II ,Chapter V of General Rules of Procedures of the High Court Appellate Side Rule it is stated under Rule 9 as under : "In the case of an application for revision, the application shall be accompanied by certified copies of each of the following documents : (i) the judgment, decree or order to which the application relates ; (ii) if the judgment, decree or order to which the application relates was a judgment, decree or order delivered by a Court sitting in appeal, the copies of the judgment,. decree or order of the court of first instant." Here the learned Advocate submitted that the point relates to Rule 9(i). It is contended by Mr. Kabir that often petitions moved under Article 227 of the Constitution are not accompanied with certified copies because sometime it is difficult to obtain the certified copies from the authority serving the orders and it is seen so many times that the authorities serving the order cannot deliver any certified copy of the order because such procedure are not application by them. In the instant case it was not possible on the part of the School concerned to deliver the certified, copy of the impugned order which has been given to the teacher signed by the Secretary under his seal. Similarly, even if the Appeal Committee passes any order for or against the petitioner, the Appeal Committee shall serve the order through the proper authority of the West Bengal Board of Secondary Education under its seal and no certified copy as understood in general term can be given by the Board. The difficulties must be considered before coming to a conclusion regarding the maintainability of a petition under Article 227 of the Constitution.
(3.) Mr. Ganguly who helped the Court as amicus curiae compared the provision of Article 227 of the Constitution which refers to Courts and Tribunals, and the High Court shall have superintendence over all Courts and Tribunals throughout its territory as well the provision under section 122 of the Code of Civil Procedure which gives the power to High Courts to make rules regulating their procedure and the procedure of Civil Codes subject to their superintendence and may by such rules annul, alter or add to all or in all the rules in the First Schedule. According to him Rule 9 of the Appellate Side Rule under Chapter V as quoted above has been framed under such authority. He submitted that under Article 227 the High Court exercises power for the ends of justice and the Rules and Procedures should not stand in the way while dispensing justice. In this connection he cited a number of decisions in support of his contentions which are noted as follows : (i) AIR 1954 SC 215 para 13 (Waryan Singh and Anr. vs Amarnath and Anr.) ; (ii) 37 CalWN 201 (Monmutha Nath Biswas vs. Emperor) ; (iii) AIR 1971 Cal 167 para 6 (Satyanarayan Nathany and Ors. vs. Union of India) ; (iv) AIR 1968 SC 1481 para 14 (State of Gujarat vs. Vakhatsinghji Vajesinghji Vaghelu) ; (v) AIR 1952 Cal 251 (Aswini Kr. Pramanik vs. Dominion of India) ; (vi) AIR 1984 SC 1401 para 14 (State of Uttar Pradesh vs. District Judge, Unnao and Ors.) ; and (vii) AIR 1969 SC 1267 para 5 (Jay Jay Ram Manohar Lal vs. National Building Material Supply, Gurgaon) .;