- (1.) Heard learned Advocates appearing for the parties.
(2.) In the instant case, it is the grievance of the petitioner, Headmaster of a Government sponsored primary school that he has been illegally discharged from service by the District Inspector of Schools (P.E), Howrah. The petitioner has taken a specific point in this writ application that initially the petitioner was appointed in the post of Headmaster by Refugee Relief & Rehabilitation Department, Government of West Bengal on specification of the terms and conditions of service whereby the said Department got the jurisdiction to dismiss or discharge the petitioner on the ground of misconduct, if any. Due to the formation of East Pakistan and influx of vast number of uprooted families from East Pakistan after partition, Refugee Relief & Rehabilitation Department of the Government of West Bengal had set up different primary schools in the private colonies and/or squatters' colonies set up by these refugees to provide education to the students as the Government felt that the District School Board under whose authority and jurisdiction the responsibility was vested to set up primary schools was not capable of managing such emergent situation due to influx of vast number of refugees from East Pakistan. But subsequently when the problem was settled down by rehabilitation of the refugees from East Pakistan, the Government thought to transfer those schools including its management and control to the District School Board to follow the Bengal (Rural) Primary Education Act, 1930 and the Rules thereto. On that basis and with that idea, Memo No. 12327-E & T Calcutta, the 9th August, 1957 was issued by the Refugee Relief & Rehabilitation Department, Government of West Bengal transferring the control and management of the schools as well as staff of the concerned schools to the District School Board. A specific provision has been made in the circular letter that" on status quo basis" such transfer is to be made and a specific condition has been imposed prescribing, inter alia, the authority to discharge, dismiss as well as appellate authority to.........against such order and conditions of payment of salary, allowance and service benefits etc. The circular letter being very relevant for adjudication of this case is quoted in extenso hereinbelow :- "Government has had under consideration the question of transfer of control, management and maintenance of Free Primary Schools set up by the Refugee Relief & Rehabilitation Department to the District School Boards in conformity with the provisions of the Bengal (Rural) Primary Education Act, 1930. Ov/ing to the influx of the vast number of uprooted humanity from East Pakistan after partition which continued unabated for successive years, Government was faced with the problem of rehabilitating these displaced persons and to provide adequate facilities for the education of the children of school age of these people. It was not, however, possible for the District School Boards who are statutorily responsible for administration of Primary Education in rural area to cope with the additional requirements for the reception of the displaced children with their limited resources. The Refugee Relief & Rehabilitation Dept., therefore, undertake the responsibility of starting Free Primary Schools on sponsored basis in Government Colonies and in areas with preponderance of refugee population including private colonies and regularised squatters' colonies at the initial stage. The grants for maintenance of the sponsored free primary schools are, however, made available to the District Primary Education Fund with a view to enabling the District School Boards to disburse the salaries of the teachers. The emergency period is over and the schools have been stablised in a reasonably satisfactory way. Government have therefore, decided to formally take over the control, supervision and maintenance of the Free Primary Schools sponsored by Refugee Relief & Rehabilitation Department to the District School Boards concerned on status-quo-basis. The following direction is hereby laid down for the guidance of the District School Boards :- 2.(a) All grants sanctioned by the Government for the Institution and maintenance of Sponsored Free Primary Schools and for payment of teachers of these schools shall be credited to the District Primary Education Fund as prescribed in Rule 37(ii) of the Bengal (Rural) Primary Education Act, 1930. (b) The District School Boards shall continue to pay the salaries of the teachers including special pay, allowances and house rents as fixed and approved by the Refugee Relief & Rehabilitation Department. (c) Grant sanctioned by the Refugee Relief & Rehabilitation Dept. for the institution and maintenance of the sponsored free primary schools shall be spent for the purposes for which the grants have been specifically sanctioned. The progress of expenditure shall be watched through separate Registers and the Government moved in time to replenish fund if and when necessary. (d) It shall be the duty of the District School Boards to make necessary arrangements for the training of the displaced teachers in the Training College recognised by the Government. The Refugee Relief & Rehabilitation Dept. will continue to pay the deputation allowances (stipends) and salaries of the teachers during the period of their deputation as admissible underthe rules. The Refugee Relief & Rehabilitation Dept. will also entertain the expenditure likely to make for temporary arrangements in place of the deputed teachers. (e) The District Board shall maintain a panel of qualified displaced teachers for appointment in the Sponsored Free Primary Schools. The panel shall be sent to the Education Officer (Relief) for approval through the District Inspector of Schools. In case of non-availability of qualified displaced teachers, a certificate to the effect shall have to be furnished with the endorsement of the District Inspector of Schools. No. 'C' Category teacher (untrained, non-matric) shall be appointed as an assistant teacher on any consideration except as a female craft teacher, provided she hold a certificate of proficiency in Arts and Crafts from approved Institutions. (f) No teacher shall be punished, dismissed, discharged, rewarded or promoted by the Board without a previous report from the District Inspector of Schools or the Female Inspecting Officer-in- Charge of the area within which the school is situated as the case may be. It will, however, be open to the Refugee Relief & Rehabilitation Department to initiate disciplinary action against a member of the teaching staff for good and sufficient reasons and for negligence of duty, insubordination, professional misconduct and misdemeanour. (g) An Appeal shall lie in respect of any order passed under clause (f) above punishing, dismissing or discharging a teacher to the Refugee Rehabilitation Commissioner or to any officer subordinate to him not below the rank of the Deputy Refugee Rehabilitation Commissioner or Chief Inspector, Primary Education or Education Officer to whom he may delegate his powers in this behalf if made within sixty days of such order, and his decision shall be final. (h) The District School Boards shall maintain the approved teacher-pupil ratio, proposals for appointment of new or additional teachers shall be forwarded to the Education Officer Relief) for approval prior to the issue of appointment letters by the District School Boards. (This supersedes the order of the Govt. conveyed in Memo No. 15082(15)-E & T. dated 12.12.56 and No. 10941(15)-E & T dated 13.7.57. (3) Government have also been pleased to decide that the Sponsored Free Primary Schools located in Municipal areas including areas added to the Calcutta Corporation may be placed under the respective Municipalities and Corporation on status-quo basis. If the Municipalities agree, the above rules shall be applicable "mutatis mutandis" to the Municipalities and the Corporation for their guidance. Alternatively, the schools in Urban areas may be placed under a duly constituted Committee or a recognised body, or a registered society devoted to Social Welfare activities subject to the terms and conditions set forth above. (4) As there is no District School Board in Cooch Behar, the Sponsored Free Primary Schools (Refugee Relief & Rehabiliation) may continue to be administered by the District Inspector of Schools for the present. The District Inspector of Schools should, however, obtain the views of the Deputy Commissioner in all matters relating to administration of Sponsored Free Primary Schools for the displaced children and establishment of new schools on justifiable grounds."
(3.) From the aforesaid circular letter it is clear that under clause 2(b) which was the condition for such transfer of service of the teaching staff of the primary schools, service conditions of the teachers as were existing prior to such transfer in the Refugee Relief & Rehabilitation Department were kept in tact directing payment accordingly. Under clause 2(0, it appears that the disciplinary jurisdiction though was retained by the Refugee Relief & Rehabilitation Department, but concurrent jurisdiction was vested to the District School Board under clause 2(f) it appears that appellate authority was prescribed by naming the Deputy Refugee Rehabilitation Commissioner or Chief Inspector, Primary Education or any Education Officer as delegatee. From the circular letter accordingly it appears that on status quo basis, the petitioner, an appointee by the said Refugee Relief & Rehabilitation Department became staff under District School Board upon having protection of his service conditions by the circular letter dated 9.8.57. At the relevant time, when the service of the petitioner was transferred protecting the petitioner's right for initiation of disciplinary proceedings under clause 2(f) of the said circular letter, there was an identical rule, being Rule 12 issued under notification No. 1493 Edn. dated 25.7.40, being the rule prescribed by the authority under Sections 66(1) and 66(2) (p) of Bengal (Rural) Primary Education Act, 1930 providing authority to dismiss, discharge any staff of the Board Relevant Rule 12 reads thus : "12. No teacher shall be punished, dismissed, discharged, rewarded or promoted by the Board without a previous report on his or her work from the District Inspector of Schools or the Female Inspecting Officer-in-Charge of the area within which the primary school is situated, as the case may be.";