B.P.Banerjee, J. - (1.) -This is an application for stay filed in an appeal preferred by the appellant, Pijush Kanti Sen against the order passed by the learned trial Judge on 21st March, 1992. The writ application was filed by one Sri Gautam Pan who is a guardian of a student reading in Burikhali Khetramohan Institution, P. S. Bawria, District-Howrah challenging the validity of the resolution for the reinstatement of the appellant as Assistant Teacher of the said school.
(2.) It is not in dispute that the appellant was an accused in a murder case which took place on 7th October, 1982 and the appellant was convicted for life imprisonment in connection with the said murder under section 302 read with section 34 of the Indian Penal Code on 25th March, 1985. After the said conviction the appellant was appointed as a teacher in the said school as a probationer on 21st May, 1985 and after lapse of two years, he was confirmed and made permanent as Assistant Teacher in the said school. It is not known how he could discharge his duties as a teacher of the said school even after his conviction. It is stated that the said conviction of the appellant was affirmed in appeal by this Court and ultimately, it appears that the appellant had surrendered in September, 1987' for serving out the unexpired portion of the sentence which was imposed on conviction. The service of the appellant as an Assistant Teacher was terminated by the Managing Committee of the said school on 18th August, 1990 at the ground of his conviction which was duly approved by the West Bengal Board of Secondary, Education as required under the rule. It is also stated that after the service of the appellant was terminated the resultant vacancy was duly filled up in accordance with the rule. It appears that on the basis of a petition addressed to the Chief Minister, State of West Bengal, submitted by the father of the appellant, Sri Deboprosad Sen, praying for premature release of his son, convict Pijush Kanti Sen who was undergoing imprisonment in Dum Dum Central Jail and suffering imprisonment, an order was passed in the name of the Governor in the form of resolution No. 25072-J dated 13th November, 1991. The said resolution and order by which the unexpired portion of the sentence for imprisonment for life passed upon the said convict was remitted and directed for immediate release is as follows : "Read a petition addressed to the Chief Minister of West Bengal submitted by Shri Deboprosad Sen praying for premature release of his son convict Pijush Kanti Sen (No. 2500-A) of the Dum Dum Central Jail, who was sentenced to rigorous imprisonment for life a/s 302/34 of the I.P.C. on 25.3.85 by the 1st Additional Sessions Judge, Howrah in sessions Trial No. 1st July, 1984. "Ordered that the jail authorities and the petitioner be informed that in exercise of the powers conferred by Art. 161 of the constitution of India, the Governor has been pleased to remit the unexpired portion of the abovementioned sentence of imprisonment for life, passed upon the above named convict Pijush Kanti Sen and to direct his immediate release from custody." After the appellant was released from the jail on the strength of the said order of the Governor Sri Pijush Kanti Sen preferred an appeal against the order of termination of his service by the Managing Committee dated 18.8.90 before the Appeal Committee of the Board. It appears that the appeal committee of the Board entertained the appeal and passed the following order on 21.2.92: "The appellant and Secretary to the school are present, Heard the parties. The case of the appellant is that he was implicated in a court case and compelled to leave the station on 20.11.87. Without giving any intimation his services were terminated with effect from 18.1.90. He prays for reinstatement. The secretary has no objection to reinstating the appellant with effect from the date of termination of his service i.e. with effect from 18.8.90. He may, therefore, be reinstated with effect from that date. But he will not get any pay or allowance for the period from 18.8.90 to the date of his joining. But this period should be counted for fixation- of his pay notionally, after taking into consideration any increment that might have fallen due during this period. This period should be counted towards all future benefits. Hence ordered that the appeal be allowed. The appellant is reinstated in his post with effect from 18.8.90. He shall be allowed to join the school with immediate effect. He shall not get any pay or allowances from 18.8.90 till he joins the school. This period should however be taken into consideration while fixing his pay notionally and shall be taken into consideration or for all future benefits. While fixing his pay any increment that might have fallen due should be taken into consideration. He is also allowed to give option for new pay scale."
(3.) Pursuant to the order of the appeal committee declaring the order of termination made on the grouted of his conviction in connection with the murder case with effect from 18.8.90 as illegal, the Managing Committee of the said school passed a resolution reinstating the appellant in the post of Assistant Teacher and allowed him to resume his duties as Assistant Teacher of the said school for imparting education to the students. At this stage, the writ petitioner, Guiram Pan claiming to be a guardian of a student reading in the said school filed a writ application whereupon the learned trial Judge passed an interim order on 16th March, 1992 restraining the appellant from joining the said school and performing the duties of a teacher in the said school. Thereafter an application was filed by the appellant for rejecting the writ application and vacating the interim order passed on 16th March, 1992 by the learned trial Judge. The learned trial Judge was not inclined to vacate and/or vary the interim order and fixed the matter for disposal as a contesting application. Being aggrieved by and dissatisfied with the order passed by the learned trial Judge refusing to vacate the interim order this appeal was preferred and an application was also filed for stay of operation of the order of the learned trial Judge.;