Pratap Kr. Ray, J. -
(1.)Heard the learned Counsel for the parties. In the instant writ application it is the grievance of the petitioner that despite fulfilment of all requisite particulars in terms of Memo No. 57-SE(S) dated Jan. 27, 1995 issued by the Assistant Secretary, Education Department, Government of West Bengal relating to transfer of petitioner's service from Work and Physical Education group to Science group, same has been refused by the District Inspector of Schools (SE), South 24-Parganas (hereinafter referred to as concerned District Inspector of Schools), by Memo No. 709/Gen dated 24.6.2003 only on the ground that the said Circular letter has no force due to the new act namely School Service Commission Act and thereby directed filling up of the said post of the Assistant Teacher in Science group in terms of the recommendation of the Regional Service Commission on sending request under die-in-harness category.
(2.)The fact leading to the writ application in brief is as follows :
Petitioner was qualified in M.Sc. (Botany) and P.G.B.T. The petitioner appeared for his selection as Assistant Teacher in Work Education and Physical Education Group before the West Bengal School Service Commission and upon being selected, he got recommendation for appointment in the post of Assistant Teacher in Work and Physical Education group of Marigachi High School (hereinafter referred to as the concerned school). In terms of the appoitnemnt letter issued by the Secretary of the concerned school petitioner joined in the said post of Assistant Teacher on 14th Oct., 1999 and was working therein. However, in the meantime, a Bio-Science teacher of Science Group holding the post of Assistant Teacher, breathed last on 23rd March, 2002. Due to such reason, since there was no qualified teacher to teach the students, the petitioner, being the only qualified teacher being M.Sc. in Botany, was allowed by the Managing Committee to take as may as 16 classes of Life Science subject in addition to his normal classes as per routine under Physical Education subject. The Managing Committee strongly recommended for transfer of petitioner from Work and Physical Education group to Science group in terms of the Circular Letter No. 57 SE(S) dated 27th Jan., 1995 and petitioner has also submitted his option to have a transfer from one group to another group in terms of the said Circular Letter, relevant portion of which reads thus :
"(ii) In future, when any clear vacancy of Assistant Teacher occurs in the normal section (Class V to Class X) in a non-government Secondary School/ Madrasah, the authorities of the concerned school may apply to the concerned D.I. of Schools for filling up the vacancy by an existing approved Assistant Teacher of the normal Sec. of that institution who has applied to the school authorities in writing for being placed in that post and who has the requisite higher qualification by reason of his/her appointment/approval in a different group. The concerned D.I. of Schools may permit the school authorities to place the services of such Assistant Teacher in that post, with effect from a certain date to be indicated by the D.I. of schools, if the concerned District Inspector of Schools is satisfied that the arrangement will be beneficial to the students. The Assistant Teacher so transferred to the vacant post will be entitled to draw pay according to his/ her higher qualification as prescribed by the State Government from the date of his/her placement in that vacant post. The concerned Assistant Teacher shall have to take classes from that date as allotted to that new post. In that case, the resultant vacancy shall be filled up according to existing rules. If there be more than one eligible applicant Asstt. Teachers in a school for one such vacant post preference shall be in order of seniority. No further approval of appointment will be necessary. The afore noted decisions have been taken in conformity with the concurrence of the Finance Department vide their U/O No. 648 Group 'J' dated 7.3.1990.
All concerned may please be informed accordingly. The G.O. No. 22-SE (SECY) dated 6.1.95 is hereby cancelled."
However, the same has been rejected by the D.I. concerned directing to fill up the vacancy as per the recommendation of the Regional Service Commission. The impugned decision reads thus:
"Memo No. 709/Gen./ Dated 24.6.2003
From: The District Inspector of Schools (S.E.)
South 24- Parganas.
To: The Secretary
Marigachi High School,
Dist. South 24-Parganas.
In response to the resolution of the Managing Committee vide its meeting No. Nil dated 10.10.02 regarding change of group, the undersigned has to state that the proposal cannot be accepted as Government Order No. 57-SE(S) dated 27.1.95 does not hold good here.
So he is requested to submit necessary papers for filling up the vacant post of Harijun Ali Molla, a candidate sponsored from the register, died-in-harness candidate without further delay for onward transmission to Regional School Service Commission (Southern Region)."
This writ application has been opposed by the Managing Committees as well as by the State respondents. Since the matter related to interpretation of the Circular Letter which is a purely question of law and since the facts of this case are not in dispute by any one, this Court considers that it is not a fit case for final hearing on exchange of affidavits. Accordingly, the matter is taken up for final hearing even in the listed motion stage. so far as the objection of Learned Advocate for the Managing Committee, this Court is dealing this issue first. It is clear from the record that Managing Committee by its resolution dated 10th Oct., 2002, as annexed in this writ application at page 28, recommended the case of the petitioner by discussing the issue under agenda No.3. Once the Managing Committee has recommended the case of the petitioner, the Managing Committee subsequently, cannot turn round to oppose the said prayer for the petitioner. It is settled law that the Managing Committee is a body corporate and it acts through its resolution by majority decision. Furthermore, the learned Advocate for the Managing Committee has failed to satisfy this Court as to whether any contra resolution has been taken to this effect by the Managing Committee withdrawing recommendation as made in favour of the petitioner or by taking decision in the meeting. In that view of the matter, the Managing Committee has no locus standi to challenge the point in this writ application. Furthermore, since this Court is now concerned with the impugned decision issued by the D.I. concerned, wherein the D.I. concerned on consideration of the materials placed before him, namely, the recommendation of the Managing Committee as well as the prayer of the petitioner, has refused the prayer by the impugned order, now the Managing Committee cannot turn round to oppose which recommendation notwithstanding the fact that the present Managing Committee has been newly reconstituted. The Managing Committee is a body corporate. It acts as per its majority decision which is binding to its members. It binds also the subsequent Managing Committee as the subsequent Managing Committee steps into the shoes of the earlier Managing Committee. Furthermore, until and unless there is a justified issue to turn round from the earlier point by way of resolution, the Managing Committee cannot submit anything. Objection of Managing Committee accordingly is decided.
(3.)The learned Advocate appearing for the State Government Mr. Bhudeb Bhattacharyya, has opposed this application contending, inter alia, that the circular letter No. 57- SE(S) dated Jan. 27, 1995 has not applicability in view of coming into effect of the West Bengal School Service Commission Act, 1997 and School Service Commission Rules, 1997. It has been submitted by the learned Advocate Mr. Bhattacharyya that in terms of Sec. 9 of the School Service Commission Act, the petitioner cannot be appointed as Assistant Teacher in Science Group without any recommendation of the School Service Commission. The learned Advocate Mr. Bhattacharyya has emphasised the word "notwithstanding". Learned Advocate Mr. Bhattacharyya, however, contended that in view of the judgment delivered by the Division Bench of this Court in the case of Snehangshu Jash Vs. The State of West Bengal, reported in 2001 (2) CLJ 558, save and except the recommendation made by School Service Commission, no appointment could be made. It has been submitted by the learned Advocate Mr. Bhattacharyya that even the transfer of group is also a new appointment and, accordingly, the rule of School Service Commission is to be followed. Learned Advocate Mr. Bhattacharyya further has referred to the judgment delivered in the case of State of West Bengal & Ors. Vs. Tulsi Kumar Mukherjee, reported in (2001) 2 CLT 380 (H.C.), to contend that the petitioner has no right not claim higher pay scale by way of transfer from one group to another as he has not enhanced his qualification in Physical Education. Learned Advocate, Mr. Bhattacharyya further has referred to Memo No. 155-SE(B) dated 13th July, 1999 issued by the Secretary to the Government of West Bengal, School Education Department to contend that until and unless the petitioner enhances his qualification in Physical Education subject, which is his teacher post at present, the petitioner cannot claim Post graduate pay scale for being qualified in M.Sc. (Botany). Mr. Bhattacharyya has also referred to another decision reported in 2001 Calcutta High Court Notes 294 to support his contention. He has placed reliance clause (3) of the said Circular Letter dated 13.7.1999, which reads thus:
"(3) All teachers, including Physical education teachers and Librarians of Secondary Schools who have improved/will improve their qualification or who were appointed with higher qualification in the subjects or group relevant to their teaching/appointment shall get higher scale of pay appropriate to their qualifications, with effect from the 1st Jan., 1996 or the date of improving qualification, whichever is later, provided that such higher qualified teachers in the relevant subjects or group is justified as per approved staff pattern of that School. If such teacher is appointed through West Bengal School Service Commission, his/her pay will be fixed in the scale of pay as per his qualification mentioned by the West Bengal School Service Commission."