Dipankar Datta, J. - (1.) A short legal point arises for decision on this writ petition and, accordingly, this Bench has proceeded to hear the parties finally without calling for affidavits.
(2.) THE relevant question is, whether in the absence of a regular Headmaster in a secondary school but when an Assistant Headmaster is in place, could the senior -most or any other teacher be appointed by the Managing Committee as the teacher -in -charge? The above question has arisen in the fact situation discussed hereafter: "The petitioner joined Joynagar Institution for Girls (hereafter the institution) as an Assistant Teacher on January 12, 1993. A process of selection for appointment on the post of Assistant Headmistress having been initiated, the petitioner offered her candidature and upon her selection she was requested to join the post of Assistant Headmistress on or before September 6, 2008, vide letter dated August 25, 2008 issued by the Secretary of the institution. It was further observed therein that the petitioner would be entitled to pay and allowances as per Grants -in -Aid Rules and that her appointment is subject to approval of the District Inspector of Schools (SE), South 24 Parganas (hereafter the DIoS). Selection of the petitioner was the subject matter of challenge in a writ petition [W.P. No. 23701(W) of 2008] at the instance of another teacher of the institution, viz. Mahua Bhattacharya (hereafter Smt. Bhattacharya). Although the writ petition was entertained by a coordinate Bench on December 5, 2008, prayer for interim order restraining appointment on the post of Assistant Headmistress was refused. It appears that while hearing MAT 869 of 2013, being an appeal against the said order dated December 5, 2008, an Hon'ble Division Bench heard the writ petition of Smt. Bhattacharya on merits. Considering the fact that no clear irregularity appeared from the records in regard to the choice made by the selection committee, the writ petition of Smt. Bhattacharya was dismissed. The appeal also stood dismissed by such order, being devoid of merit. During the pendency of the appeal and the writ petition as aforesaid, the petitioner had presented W.P. 10961(W) of 2013, seeking a direction on the DIoS to approve her appointment as Assistant Headmistress, which was pending due to pendency of the writ petition of Smt. Bhattacharya. By an order dated May 3, 2013, a coordinate Bench had directed the DIoS to approve the appointment of the petitioner on the post of Assistant Headmistress without prejudice to the rights and contentions of the parties in W.P. 23701(W) of 2008. It was pursuant to such order dated May 3, 2013 and on consideration of the order dated July 23, 2013 of the Hon'ble Division Bench that the DIoS passed an order dated October 2, 2013 according approval of appointment of the petitioner on the post of Assistant Headmistress with effect from the date of her joining, i.e. August 27, 2008. Meanwhile, the regular Headmistress of the institution was to retire on February 28, 2013 and on February 24, 2013, the Managing Committee of the institution had resolved to appoint a teacher -in -charge, since the issue regarding the petitioner's appointment as Assistant Headmistress was sub judice. The Managing Committee, accordingly, appointed Smt. Bandana Chakraborty (Bhattacharya), respondent 7, as the teacher -in -charge. The petitioner had objected to the appointment of the respondent 7 as the teacher -in -charge on the grounds that not only was the respondent 7 junior to her in service, she being the Assistant Headmistress ought to have been appointed as the teacher -in -charge. Since such objection did not yield any result, this writ petition was presented claiming a direction on the authorities of the institution (respondents 5 and 6) to immediately remove the respondent 7 from the post of teacher -in -charge and thereafter to forthwith appoint the petitioner as the teacher -in -charge cum officiating Headmistress of the institution."
(3.) MR . Deb Burman, learned advocate for the petitioner, referring to decisions of coordinate Benches of this Court contended that the issue is no longer res integra. Attention of this Bench was invited to the decision in Smt. Kanak Pal v. State of West Bengal and ors., reported in : 2002 (1) CAL. L.T. 370; an unreported decision dated July 28, 2010 in W.P. 5306(W) of 2010 [Srikumar Chatterjee v. State of West Bengal and ors.] and another unreported decision dated February 25, 2013 in W.P. 4127(W) of 2013 [Alauddin v. State of West Bengal and ors.] in support of such submission. According to him, three learned Judges in the decisions referred to above have consistently held that there being no post of teacher -in -charge, it is the Assistant Headmaster/Assistant Headmistress in place who, in the absence of the regular Headmaster/Headmistress of a school, would officiate as the Headmaster/Headmistress, as the case may be, and that none else other than the Assistant Headmaster/Assistant Headmistress should be appointed as the teacher -in -charge. He has, accordingly, prayed for relief claimed in the writ petition.;