Pratap Kr. Ray, J. - (1.) Heard the learned Advocate appearing for the parties.
(2.) In the instant application it is the grievance of the petitioner that though the Director of School Education, West Bengal by his decision dated 15th January, 2003 issued under Memo No.7/1(8) LC dated 21st January, 2003, passed a decision directing approval of appointment with effect from 1st May, 1999 in the concerned school on considering the petitioner as organising staff of the school, but restricted the financial benefits with effect from 1st January, 2003 assigning a ground of current financial crisis of the State of West Bengal. It appears that such decision of Director of School Education, West Bengal was outcome of different orders passed in the several writ applications by respective petitioners therein. Under the circular letter of according approval of the organising staff, it has been clearly mentioned that the approval of appointment must be made with effect from the date of recognition of the school. Once the Director of School Education, West Bengal accepted the petitioner as organising staff and accorded approval, on the ground of financial crisis of the petitioner's salaries, allowances and service benefits from the month of May, 1999 to the month of December, 2002 could not be denied. For those periods the petitioner had worked in the school. Under the service jurisprudence, it is unheard that when the work was taken from an employee salary may be stopped. Salary is the species of right to work and in that view of the matter the impugned decision of Director of School Education, West Bengal is not legally sustainable and as a consequence thereof the decision of the District Inspector of Schools (SE) Birbhum dated 13th February, 2003 by approving the appointment of the petitioner's service notionally with effect from 1st May, 1999 and f nancial benefits with effect from 1st January, 2003, are set aside and quashed for the following reason. The salary is a species of right to live derived in terms of Article 21 of the Constitution of India. Denial of the salary accordingly involves a public element issue. Nobody can deny the salary of a person who has discharged service under any circumstances. The financial stringency of the Government cannot be a ground to deny such. Under the grants- in-aid rule and the statutory rule, namely, Management Rules, 1969, salary of the teaching and non-teaching staff for the period of his approved service, is a basic right which cannot be denied under any circumstances. The Director of School Education, West Bengal as well as the State Government had no right to down grade the statutory duty to discretion and the Court also cannot down grade the statutory duty to discretion and thereby to be helpless to mandate the State. Right to livelihood as assumed a fundamental character is a settled law. The Apex Court had held that no plea of financial constraint to be then to deny the fundamental right. Reliance may be placed to the case Khetry vs State of Bihar, reported in (1981) 1 SCC 627 and Paschimbanga Khet Mazoor Sangha's case, reported in (1996) 4 SCC 37 : [1996(6) SLR 346 (SC)] . The identical question cropped up before the English Court, when the Court held that the Court of law cannot be a party or cannot substitute to a decision of which the statutory duties to be down graded to the discretionary power of the authority concerned. Reliance may be made to the judgment passed in the case R. Vs. Bermingham City Council Ex parte Mohammad reported in (1998) 3 All. E.R. 788 , a decision of Queens Bench, R. Vs. Essex County Council Ex parte Tandi, reported in (1998) 2 All. E.R. 769 , a decision of House of Lords consisting of five Lords. In the said decision of Essex County Council Ex parte Tandi (supra) T. & an Infact represented by her mother and next friend, appealed from the decision of Court of Appeal made on 31st July, 1997 allowing an appeal by the local education authority from the decision of Keeny, J. dated 23rd April, 1997 whereby he allowed T's application for judicial review and quashed the education authorities decision to reduce the number of hours of home tuition provided to T from five hours to three hours per week on the alleged ground of financial stringency of the local education authority. Furthermore, the right to work and right to employment in respect of an employed person is a right protected under Articles 14 and 21 of the Constitution of India and the species of such right is to enjoy service benefits. Reliance may be placed to the judgment passed in the case of Air India Statutory Corporation vs. United Labour Union & Ors., reported in AIR 1997 Supreme Court 645 : [1996(6) SLR 233 (SC)] , wherein the Apex Court held that once a person is appointed to a post/office, be it Government or private, right has to be dealt with as per public element. In the instant case, there is a strong opposition by the learned Advocate for the respondents but it appears before this Court that in one hand the petitioner's right to work has been approved, but right to have the salary for those periods have been disapproved which is neither legally sustainable in terms of the constitutional provisions nor it is sustainable on statutory provision as well as on applying the doctrine of social justice and economic justice. In that view of the matter, the writ application is allowed.
(3.) The impugned decision of the Director of School Education, West Bengal whereby the petitioner has been denied actual financial benefits with effect from 1.5.99 to 31st December, 2002 and the consequential decision on the reflection of the said decision of the Director of School Education, West Bengal as issued by the District Inspector of Schools (SE) Birbum on 13th February, 2003 holding that the petitioner's service was approved notionally with effect from 1.5.99 without any financial benefit till 31st December, 2002 are accordingly set aside and quashed. The respondents are directed to release all arrears salaries, allowances and service benefits of the petitioner. The District Inspector of Schools (SE) Birbhum is directed to issue a fresh approval order in terms of the Court's order by deleting the words "from 1.5.99 notionally as actual financial benefits with effect from 1.1.2003" and thereby to release al the arrear salaries, allowances and service benefits for the said periods from the month of May, 1991 to 31st December, 2002 along with the interest @ 12% per annum with effect from 13th February, 2003 till the date of judgment within a month from the date of communication of the order. The Director of School Education, West Bengal is also directed to release the fund within two weeks from the said amount. The School Authority is also directed to submit the bills within a week from the date of communication of the order.;