- (1.) The petitioner has approached this Court by filing the instant writ petition praying, inter alia, for issuance of a writ in the nature of mandamus for setting aside of the order of suspension dated 22nd January, 2014, issued by the Chairman, District Primary School Council, North 24-Parganas. The writ petitioner was appointed as a primary teacher of Mukundakati Free Primary School under Basirhat New Circle on 1st March, 2004. Being in custody for around 93 days in connection with Basirhat P.S. Case No. 144 of 2008 dated 11th March, 2008, under sections 498A/302/201/34 of the Indian Penal Code, he was placed under deemed suspension by the Chairman of the District Primary School Council, North 24-Parganas, with effect from the time he was taken into custody.
(2.) Initially, he moved this Court by filing a writ petition, being W.P. No. 419 (W) of 2009, challenging the order of suspension. This Court, by an order passed by Dipankar Datta, J., was pleased to direct the then Chairman of the Council to consider the petitioner's representation. Such representation of the petitioner was considered, but the prayer of the petitioner was rejected. The petitioner once again approached this Court by filing a writ petition, being W.P. 8832 (W) of 2010, again seeking revocation of the order of suspension as well as enhancement of subsistence allowance as per R.O.P.A. 2009. On 14th February, 2011, this Court rejected the prayer of the petitioner for revocation of the order of suspension but allowed enhancement of subsistence allowance as per ROPA 2009. Thereafter, the writ petitioner again approached this Court by filing a writ petition, being W.P. No. 1411 (W) of 2012, praying for revocation of the order of suspension. On 22nd February, 2012, this Court was pleased to reject the prayer of the petitioner. The petitioner subsequently made a prayer before the Council on 28th September, 2012 (through the Sub-Inspector of Schools, Basirhat New Circle) for allowing him to resume his duty as a primary school teacher. The Chairman of the District Primary School Council, North 24-Parganas, sympathetically allowed the petitioner to resume his duty as an assistant primary school teacher with the existing subsistence allowance on the basis of an order as contained under memo dated 6th November, 2012, issued by the Chairman, District Primary School Council, North 24-Parganas, addressed to the Sub-Inspector of Schools, Basirhat New Circle, District - North 24-Parganas. The petitioner accepted the said order of the Chairman of the Council without any demur or protest and started working as a primary school teacher drawing only subsistence allowance. After lapse of around thirteen months, he made a prayer before the authority concerned for payment of full salary, which was rejected by an order dated 15th March, 2013.
(3.) In the meanwhile, the petitioner had again approached this Court by filing a writ petition, being W.P. No. 14390 (W) of 2013, this time challenging the legality and validity of the said memo dated 6th November, 2012, issued by the Chairman, District Primary School Council, North 24-Parganas, addressed to the Sub-Inspector of Schools, Basirhat New Circle, District - North 24-Parganas, permitting the writ petitioner to join Mukundakati Free Primary School with his existing subsistence allowance. It was the specific case of the petitioner that having once been allowed to resume his duties, all entitlements ought to have been released in his favour. However, the concerned authority had chosen to give permission to the petitioner to withdraw only the subsistence allowance, which was impermissible in law. A report in the form of an affidavit was called for from the District Primary School Council, North 24-Parganas. Such report revealed that the petitioner had made a representation before the Chairman of the concerned Council on 28th September, 2012, which he had not disclosed in his writ petition, being W.P. No. 14390 (W) of 2013. After considering all aspect of the matter, this Court dismissed the said writ petition on 9th September, 2013, with the following observations: "In the report in the form of an affidavit filed earlier on behalf of the District Primary School Council, North 24 Parganas, it has been stated that the petitioner made a representation before the Chairman of the said Council on 28th September 2012, which he has not disclosed in the present writ petition. Perusing the said representation dated 28th September 2012, it appears that the petitioner was essentially seeking re-engagement in spite of being under deemed suspension. The District Primary School Council, North 24 Parganas, has further stated in the report that after receiving a copy of the instant writ petition, the Chairperson came to know from the learned Counsel about the order/direction of this Court in an earlier writ petition which had been moved by the petitioner. Since the Chairperson has no personal knowledge of earlier order/direction of this Court, the writ petitioner was allowed to join his duty, with his existing subsistence allowance on 6th November 2012, on the basis of his representation. It is submitted by the learned advocate representing the District Primary School Council, North 24 Parganas that the petitioner joined the concerned school on the basis of the memo dated 6th November, 2012, without any demur or protest, which will be clear from the joining report annexed to the writ petition being Annexure-P 3 at page 24. As such, he submits that the petitioner accepted the contents of the memo dated 6th November, 2012 and is, therefore, estopped from contending otherwise, at this belated stage. He further submits, that apart, the petitioner did not disclose his representation dated 28th September 2012 in the present writ petition. He also never brought to the notice of this Court the material fact of moving an earlier writ petition being W.P. 8832 (W) of 2010, which culminated in an order dated 14th February 2011, which has been quoted in details in an earlier order of this Court dated 19th June, 2013 passed in the instant matter. He finally submits that discretionary jurisdiction of the writ Court cannot be taken for granted by a litigant. From the records it transpires that the order passed by this Court on 19th June 2013 was appealed against by the writ petitioner before a Division Bench of this Court, being MAT 992 of 2013. The said appeal together with a connected application being CAN 6530 of 2013 was disposed of on 19th July 2013 by a Division Bench setting aside the order dated 19th June 2013 and allowing the writ petitioner to adduce evidence by filing an affidavit in reply with a certain time frame. The District Primary School Council, North 24 Parganas was also granted liberty to file a rejoinder. The pleadings which have been filed by the petitioner after the order of the Division Bench dated 19th July 2013 does not disclose any such material which will controvert the facts that are already on record. It is patently clear that the petitioner accepted the content of the memo dated 6th November 2012 issued by the Chairman, District Primary School Council, North 24 Parganas without any demur or protest, which is manifest from his joining report. The learned advocate representing the District Primary School Council, North 24 Parganas has also prayed for leave to allow his client to withdraw the memo dated 6th November 2012, which the petitioner seeks to rely on in the present proceeding. Although it has been submitted by the learned advocate for the petitioner that the joining report is merely a printed document, which is required to be signed by the petitioner, there is no contemporaneous evidence adduced by the petitioner, which would reflect that he had protested in respect of the contents of the memo dated 6th November 2012, as soon as he joined the concerned school. The learned advocate for the petitioner has drawn this Court's attention to paragraph 12 of this writ petition, which is a vague averment and does not even provided the exact date of the purported letter written by the petitioner to the Sub-Inspector of Schools, Basirhat New Circle, requesting for pay benefit under the latest ROPA Rule. The memo dated 15th March 2013 issued by the Chairman, District Primary School Council, North 24 Parganas, which has been referred to by the learned advocate for the petitioner also does not give the exact date of the letter petitioner containing his prayer for pay benefit to be given to him. In the absence of contemporaneous evidence in that respect, it can be safely held that the petitioner is estopped from challenging the contents of the memo dated 6th November 2012. The other aspect of the matter is in respect of suppression of material facts and documents as submitted by the learned advocate for the Council. As observed earlier, it is evident from the report in the form of an affidavit filed on behalf of the District Primary School Council, North 24 Parganas, that the writ petitioner made a representation to the Chairman, District Primary School Council, North 24 Parganas on 28th September 2012, which has never been disclosed in the writ petition. It appears from the said representation that the petitioner was essentially seeking re-engagement in spite of being under deemed suspension. Failure on the part of the petitioner to disclose the contents of the representation dated 28th September 2012, in the backdrop of the plea of the petitioner as raised in the instant writ petition, tantamounts to an abuse of process of this Court. Taking into consideration the observation made by the Division Bench in its order dated 19th July 2013, the writ petition is liable to be dismissed with cost. The learned advocate appearing for the petitioner, however, prays before this Court to refrain from imposing any cost. Considering the prayer made by the learned advocate for the petitioner, the writ petition stands dismissed, without order as to costs.";