PROTIK PRAKASH BANERJEE,J. - (1.)This writ petition instituted before this Court under Article 226 of the Constitution of India by a number of Organiser Assistant Teachers challenges an order dated July 16, 2015 passed by the Joint Secretary, Government of West Bengal, School Education Department. The impugned order was passed purportedly consequent to the directions given by the Hon'ble Supreme Court of India in Civil Appeal No. 7900 of 2010 (Asit Ranjan Gayen and Others--v--The State of West Bengal and Others) to the Secretary, School Education for considering the case of the writ petitioners herein and pass a reasoned order to this effect after according a personal hearing to the respective parties. The Hon'ble Supreme Court also recorded that the Division Bench of this Court had not considered an important aspect of this matter, to which I will advert to, shortly. By the impugned order the writ petitioners were denied regularization of their services in the aforesaid school. The writ petitioners, therefore, approached this Court praying that the said order be set aside and in addition thereto, directions be passed to the effect that the services of the said school be regularised and approval is to be accorded to their respective appointments.
(2.)The case made out by the writ petitioners may be summarized thus:
a. That Aloke Kendra High School (in short "the school"), initially recognized as a Junior High School under the West Bengal Board of Secondary Education was upgraded to a High School with effect from January 01, 1999 by a Memo dated July 14, 2000 pursuant to an order dated September 2, 1998 passed by this Court in C.O. No. 1248 (W) of 1993.

b. That the writ petitioners were duly appointed by the Managing Committee to the school as Assistant Teachers for different subjects much before its up gradation.

c. That the writ petitioners possess sufficient educational qualifications requisite for their posts.

d. That all but two of the writ petitioners, who have since crossed the age of superannuation had been discharging their duties as organizing teachers by teaching the students of the school since their appointment.

e. When the school was upgraded to a High School in terms of Memo No. 242/SSE/2000 dated July 14, 2000, the services of the writ petitioners were not approved by the concerned authority even though they were duly appointed by the Managing Committee of the School as per the relevant rules much before the up gradation of the school.

f. In the past, the writ petitioners along with another non-teaching staff of the school filed a writ application being W.P. No. 21556 (W) of 2000 before this Court which was heard and disposed of by a coordinate bench comprising His Lordship the Hon'ble Justice M.H.S. Ansari (as His Lordship then was) by a judgment dated December 07, 2001. While disposing of such writ application, directions were issued upon the Director of School Education, West Bengal to consider the case of the writ petitioners for approval of their appointment in accordance with law with an observation that the claim of the writ petitioners deserved to be considered.

g. Upon considering the matter, the Director of School Education approved the services of the non-teaching staff but such approval was denied to the writ petitioners by its order dated December 7, 2001. The order opined that since the writ petitioners were not appointed under the provisions of the West Bengal School Service Commission Act, 1997 (in short "the Act of 1997"), their services cannot be approved after the up gradation has been allowed to the school under the Act of 1997 which came into force with effect from November 1, 1997.

h. Consequently, the writ petitioners filed a contempt application being W.P.C.R.C No. 7039 of 2002 before this Court seeking a contempt rule to be issued against the Director of School Education for alleged violation of the direction and order passed in W.P. No. 21556 (W) of 2000. The contempt application was heard and disposed of by his Lordship Justice M.H.S. Ansari (as he then was) with an observation that the order passed by the Director of School Education gives rise to a fresh cause of action to the writ petitioners to avail the remedy of judicial review by an appropriate writ petition.

i. In view of that, the writ petitioners filed a writ petition being W.P. No. 4706(W) of 2003 challenging the order dated December 7, 2001 passed by the Director of School Education. The Hon'ble Justice Maharaj Sinha (as he then was) disposed of the writ petition by a judgment dated December 11, 2003 wherein the impugned order was set aside. In its judgment, the coordinate bench observed that the Act of 1997 nowhere bars approval of the services of organising teachers attached to schools upgraded in terms of the Act of 1997. It was noted that a similar situation arose in respect of W.P. No. 8480(W) of 1998 (Ashok Kr. Dutta and Others--v--State of West Bengal and Others) where approval was granted in respect to the services of organising teachers even after the Act of 1997 came into force. Ultimately, the coordinate bench issued directions to the respondent no. 3 therein to accord approval to the services of the writ petitioners with effect from the date of upgradation of the said school.

j. The respondents preferred an appeal against this judgment dated December 11, 2003 which came to be allowed by a Division bench of this Court in M.A.T. 1204 of 2004 (F.M.A. No. 869 of 2004). In its judgment delivered on September 20, 2007, the Division Bench noted the provisions under section 9 of the Act of 1997 and upheld the contention that the said provision lays down a blanket prohibition upon appointments to the posts of teachers in a school falling under the Act of 1997 otherwise than upon a recommendation of the regional commission having jurisdiction to the managing committee of the respective school. It was further observed that since the appointments of the writ petitioners were made at a time when no validly constituted managing committee existed, the appointment must be held to be illegal. It is interesting to note that the judgment of the Division Bench made reference to the decision of the Hon'ble Supreme Court of India in Secretary, State of Karnataka and Others--v--Uma Devi and Others reported in (2006) 4 SCC 1 wherein the Hon'ble Apex Court had made it very clear that appointments made without following due process or the rules for appointment do not confer any right on the appointees and that the Court cannot direct their absorption or regularization or reengagement or making them permanent. In this context, the following paragraphs from the judgment of the Hon'ble Division Bench becomes relevant and therefore has been extracted and set-out below:

"In the present case, recognition was granted on 1st January, 1999, i.e. after the School Service Commission Act came into operation with effect from 1st November, 1997. Section 9 of the said Act stipulates that notwithstanding anything contained in any other law for the time being in force in any contract, custom or usage to the contrary, appointments to the posts of the teachers in a school shall be made by the managing committee of that school on the recommendation of the Regional Commission having jurisdiction and any appointment of a teacher made on or after the commencement of the Act in contravention of the provisions of the Act shall be invalid and shall no effect In the present case, it is the admitted position that appointments were given at a point of time when the school (classes IX and X) was not recognized by the Board. Until and unless the school is recognized, there cannot be any validly constituted managing committee. It is the admitted position that appointments were given to the petitioners at a point of time when there was no validly constituted managing committee and such appointments must be held to be illegal appointments.

Mr. De, the learned Advocate appearing for the respondent Nos.1 to 6/writ petitioners submits before this Court that two appeals being F.M.A No 94 of 2006 and M.A.T No. 428 of 2007 were disposed of by this Court on 14th September, 2007. Since an extensive argument was made by him in the said two appeals, the present appeal may be disposed of in the light of the observations made in the said judgement delivered by this Court on 14th September, 2007.

The said two appeals were preferred by the State of West Bengal challenging the order passed by the learned Single Judge directing the concerned authority, namely, the District Inspector of Schools concerned to regularize the services of the writ petitioner, who claim themselves to be the organizing staff of classes IX and X of the concerned school. This Court relying upon the judgement of the Hon'ble Apex Court reported in (2006) 4 SCC 1 (Secretary, State of Karnataka &Ors. Vs Uma Devi &Ors.) as also the number of judgements of this Court, allowed the appeals, as aforesaid and set aside the impugned order by which direction was given for according approval to the appointments of the organizing teachers In the case of Uma Devi (supra), the Hon'ble Apex Court having considered the various judgements of the Hon'ble Supreme Court as also of other High Courts, observed that appointments made without following due process or the rules for appointment do not confer any right on the appointees and that the court cannot direct their absorption or regularization or reengagement or making them permanent In the present case, we find sufficient merit in the submission of Mr. Banerjee, the learned Advocated of the appellants. Since all the points raised by the respondent's/writ petitioners were discussed elaborately in our earlier judgements in F.M.A No. 94 of 2006 and M.A.T No. 428 of 2007 delivered on 14th September, 2008, we do not find it necessary to repeat the same Accordingly, we allow the present appeal in terms in the earlier judgement of this Court dated 14th September, 2007 as referred to above and set aside the impugned order passed by the learned Single Judge The writ petition also stands dismissed."

k. Aggrieved, the writ petitioners preferred a Special Leave Petition before the Hon'ble Supreme Court of India in Civil Appeal No. 7900 of 2010, which was heard and disposed of by an order of the Hon'ble Apex Court, dated February 19, 2015. In its order, the Hon'ble Court directed the respondent authorities to consider the case of the writ petitioners including for regularization of service of those who were still in service in the said school in terms of section 10 of the Act of 1997 and to pass a reasoned order to that effect after giving a personal hearing to the parties. At the same time, the Hon'ble Apex Court made certain observations in that matter which is deemed pertinent to the disposal of the case in hand and therefore such relevant paragraphs have been extracted and reproduced herein below:

"Heard Mr. Kalyan Bandopadhyay, learned Senior counsel appearing for the State of West Bengal and learned counsel appearing for the respondents. We do not find any merit in the Appeals filed by the State of West Bengal and others. Hence, the Civil Appeals are dismissed. Interlocutory Application for impleadment as party respondent is also dismissed."

"We have heard learned counsel appearing for the parties. It appears that in this matter the appellants have come before this Court by filing this Appeal on the ground that although their School has been given recognition yet it has not been accorded approval to the teachers or considered their rights by the Authorities. The services of the teachers/appellants were not regularized. In view of that, they are suffering for such a long time. It has also been stated that most of the Teachers had already worked for such a long time have retired without getting the benefits although they have served the School since 1970. It appears that in this matter subsequent thereto, the West Bengal School Service Commission Act, 1997 came into operation and it has been specifically stated under Section 10 of the said Act which has been pointed out to us by Mr. Kailash Vasdev, learned Senior counsel appearing in support of this Appeal that the rights of the protection of the teachers have been given under the said Section of the Act and the services of the teachers in the School before the commencement of the Act shall not be varied to the disadvantage towards them.

We have considered the said section but it appears to us that since no steps have been taken by the Authorities, it would be proper for us to direct the Secretary, School Education to consider the case of the appellants herein including for regularization of their services in the school in question after giving personal hearing to the representatives of the School and also to the appellants herein and/or their representatives. The said Authority is directed to pass a reasoned order in the matter. We must state in the matter that the State Authorities must consider the case of the Appellants. We only keep on record that the Order so passed by the High Court does not consider this aspect of the matter in question. We, therefore, pass a time frame to meet out i.e. reasoned order shall be passed by the Authority within a period of three months from the date of communication of this order.

In view of that, we pass this order and also direct the State Authorities that without being influenced by the orders so passed by the High Court, shall pass a reasoned order in the matter within the aforesaid period. The Appeal is disposed of in the afore-stated terms."

"As it appears to us that the grievance of the appellants in this matter challenging the Order so passed by the High Court without regularising the appellants on the ground that the cases of the appellants were hit by the judgment in Secretary, State of Karnataka and Ors. versus Uma Devi and Ors. reported in 2006 volume 4 SCC 1 However, we have heard learned counsel on the facts of the case in question. It appears that the appointments which have been made by the Managing Committee in the matter in respect of the school in question who has worked for such a long time in the school, their appointments have not been regularized. It appears to us that the West Bengal School Service Commission Act, 1997 came into force in the matter after recognition of the school. It was a case of the State that no teacher can be appointed except in accordance with the provisions of the Act. However, we have specifically gone through the facts of this case as it appears to us that the school was originally a Junior High School recognised with effect from 1-1-1969. Thereafter, the said school was upgraded to class IX High School with effect from 1-5-1999 and thereafter to Class X High School with effect from 1-5-2000. Admittedly, the appellants joined the school before the up gradation and recognition as Class X High School (Classes IX and X).

The appellants, in fact, were appointed, as it appears from the facts of the case, in such School by the Managing Committee of the Junior High School as at that point of time was Class IX and X previously recognized by the Authorities. Meaning thereby, the West Bengal Board of Secondary Education subsequent thereto, it appears to us that the said School was upgraded and was duly recognized by the State Secondary Education Board. In view of that, it appears to us that the appellants since working for such a long time in the said School, their cases should be considered by the Authorities in the light of the provisions of law taking into consideration the West Bengal School Service Commission Act, 1997 and in our opinion at the time of such consideration, it would be the pleasure of the State Authorities to find out whether the appellants who have filed this appeal before us are still with the School or not. We, however, make it clear that the State Authorities without being influenced with the Orders so passed by the High Court on the basis of Judgment reported in 2006 (4) SCC 1 shall deal with the matter and pass a reasoned order in the matter in accordance with law after giving personal hearing to the appellants herein. If they find that the appellants were working in the School, in that case, they shall consider the case of the appellants sympathetically The Appeal is disposed of in the afore-stated terms."

"Heard learned counsel appearing for the parties We do not think that there is any reason to interfere with the impugned Order so passed by the High Court of Calcutta Hence, the Civil Appeal is dismissed Needless to say that the interim order passed on 11-7-2008 shall stand vacated."

(3.)It is on the basis of these judgments and orders of the Hon'ble Supreme Court, while being fully alive the position of law declared by the Hon'ble Division Bench of this Court, which has not been interfered with by the Apex Court that the petitioners before me have come up before this Court. They are dissatisfied by the impugned order passed by the respondent authorities, but only to the extent that the respondent authority, even while purporting to act in terms of the directions of the Apex Court, have actually subverted the intention of the Apex Court by its directions which actually interpret the statutory provisions and the statute applicable, the cases of the petitioners, while making it clear that the Division Bench did not consider an important aspect of the case as recorded by it in paragraph 2(k) above.