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Mira Chatterjee Vs. Public Service Commission and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 3263 of 1957
Judge
Reported inAIR1958Cal345,62CWN429
ActsConstitution of India - Articles 226, 316, 317, 319 and 321; ;West Bengal Secondary Education Act, 1950
AppellantMira Chatterjee
RespondentPublic Service Commission and ors.
Appellant AdvocateAnil Kumar Das Gupta and ;Sailendra Nath Sen, Advs.
Respondent AdvocateS.M. Bose, Adv. General and ;Smriti Kumar Roy Choudhury, Adv. for Opposite Parties 1 and 2
Cases ReferredState of Orissa v. Madan Gopal
Excerpt:
- .....as a candidate for the revised scale of pay and appear before the committee. he states that the state government has decided that improved scales of pay shall be allowed to teachers including headmasters of all recognised secondary schools which are in receipt of grant-in-aid. the central government has undertaken to meet 50 per cent of the additional expenditure which will be incurred as a result of the grant of the improved scales of pay. according to the decision of the state government, improved scales of pay will be admissible only to trained teachers who are found to be suitable, having regard to their qualification, training, experience and record of work, afteran interview by an expert committee. it is alleged that the state government has further decided that the interview.....
Judgment:
ORDER

P.B. Mukherji, J.

1. This is an application under Article 226 of the Constitution. The petitioner is a school teacher. She is a Master of Arts, or the University of Calcutta. She joined the Binapani Girls' High School as an Assistant Teacher on 21-1-1947. She was appointed to that post by the Managing Committee of the School. The School is not a Government school but a government aided school.

2. She first served a probationary period of six months and then was confirmed as an Assistant Teacher in that school with effect from 1-10-1947. She then passed the Bachelor of Training Examination in 1955 and took the B. T. degree. When she joined the school, the school was governed by a School Code. Since 1950 the West Bengal Secondary Education Act came into force and the administration, control and supervision of the high schools vested in the Board of Secondary Education of the State.

3. By the regulations flamed under the West Bengal Secondary Education Act, 1950 appointment of persons as teachers made by the Managing Committee must have the approval of the Board of Secondary Education, The Board of Secondary Education is therefore the statutory authority to approve appointments of teachers made by the Managing Committee of the School. The Executive Council constituted under the West Bengal Secondary Education Act, 1950 has the power to take such disciplinary action as it thinks fit against high school teachers and students of such schools.

4. The petitioner was served with a copy of the letter addressed by the Assistant Secretary, Public Service Commission to the Head Mistress, Binapani Girls' School. The letter is dated 28-11-1957. The letter reads as follows:

'Madam,

I am directed to address you on the subject 'Vitting the suitability of Graduate teachers of aided schools' and to state that the Commission desires to interview 14 teachers of your school as noted in the time table enclosed. The teachers may accordingly be instructed to appear for an interview at their own expenses before the Interview Board with all original certificates at 11A, Free School Street Calcutta. The enclosed forms duly filled in and signed by the teachers in duplicate should be returned so as to reach this office not later than 5-12-1957.'

5. It is the petitioner's case that she has been directed by the Head Mistress in terms of that letter to appear before the Public Service Commission. The petitioner objects to this order to appear for interview before the Interview Board directed by and at the instance of the Public Service Commission, West Bengal. Shesays that she has an approved record of service for nearabout a decade and there is no question of testing her suitability after such a length of service. She contends that the Public Service Commission has no authority under any law passed by the State Legislature to exercise any function over institutions like the aided educational institutions and the said Commission, in seeking to interview teachers of such aided Schools for testing their suitability, is extending its jurisdiction and function which it does not possess in law. The petitioner says that she has an assured career of service which is threatened to be affected by the direction contained in the said letter By letter dated 2-12-1957, the petitioner demanded justice by calling upon the respondents to cancel and withdraw the order for interview. On 3-12-1957 a reply was sent to the petitioner's demand of justice, to which I shall refer later in this judgment.

6. The main grounds of objection to this interview may be, briefly, summarised. It is said that the Public Service Commission has not been authorised by any provision of the Constitution or by any Act made by Parliament or by the State Legislature to exercise functions over aided schools. Therefore, the Public Service Commission has no jurisdiction or authority to interview teachers of aided schools for testing their suitability. Secondly, it is said that the administration, control and supervision of Secondary Schools, including the right of taking disciplinary action against schools and teachers are vested in the authorities mentioned in the West Bengal Secondary Education Act, 1950, and the Public Service Commission has no jurisdiction or authority to exercise functions and interview teachers for testing their suitability as teachers of aided schools.

7. On these grounds the petitioner seeks for a writ of mandamus directing the respondents to forbear from interviewing teachers of aided schools and specially the petitioner for testing their suitability as Graduate teachers of aided schools and to rescind and cancel such order for interview. The petitioner obtained a Rule from this Court on 4-12-1957.

8. On behalf of the respondents, Bhupendra Krishna Sinha, Secretary of the Public Service Commission, West Bengal, has filed an affidavit opposing the petition. His first objection is that the petitioner has no specific legal right and it is entirely her option whether she should offer herself as a candidate for the revised scale of pay and appear before the Committee. He states that the State Government has decided that improved scales of pay shall be allowed to teachers including Headmasters of all recognised Secondary Schools which are in receipt of grant-in-aid. The Central Government has undertaken to meet 50 per cent of the additional expenditure which will be incurred as a result of the grant of the improved scales of pay. According to the decision of the State Government, improved scales of pay will be admissible only to trained teachers who are found to be suitable, having regard to their qualification, training, experience and record of work, afteran interview by an Expert Committee. It is alleged that the State Government has further decided that the interview and selection of teachers should be entrusted to some independent body and requested the State Public Service Commission to undertake this work. The State Public Service Commission has agreed. In pursuance of this decision, the Public Service Commission has set up seven Expert Committees consisting of well-known educationists. The functions of that Committee will be to interview teachers and to make recommendations regarding teachers whom they find to be suitable. It is alleged that there is no obligation on trained teachers to appear before these Committees and non-appearance will not in any way affect their conditions of service or their pay, according to scales now in force. Teachers who appear for the interview but are not recommended as suitable will not also be affected adversely in respect of their conditions of service and the scales of pay at present admissible to them. This affidavit states that the Commission does not seek to interfere in any way with the continuance in employment of the teachers who are employed in the various Secondary Schools and who may be eligible for the improved scales of pay.

9. The affidavit of the Public Service Commission, however, concedes rightly and fairly that the work undertaken by the Commission does not come within the purview of its constitutional or Statutory functions. It says that the Commission has agreed to the request of the Government to help in this important matter of selection of trained teachers for the purpose of grant of improved scales of pay in view of the State Government's anxiety to have this work done by an independent body. It relies on a Circular issued by the State Government which is annexed to the affidavit for the scope and purpose of interview and selection. It is submitted in the affidavit that

'though the work is not within the purview of the Statutory functions of the Commission, yet in undertaking the work, the Commission has not contravened any provision of the Constitution and has not thereby infringed any rights of teachers of Secondary schools'.

The learned Advocate General appeared for the Commission to support these contentions.

10. Now the circular being No. 2849 (1200), SC/S dated 6-12-1957 under the Education Directorate of the Government of West Bengal states in the concluding paragraph:

'I am to add that those teachers (Graduates or with Master's Degrees) who are not found suitable by the Selection Boards as well as those who do not wish to appear before the Selection Board will continue under the existing scales of pay and will not get the benefit of the improved scales of pay proposed to be sanctioned.'

The reply dated 3-12-1957 to the petitioner's demand for justice from the Assistant Secretary reads as follows:

'Madam,

I am directed to refer to your letter dated 2-12-1957 on the subject noted above and to statethat you have been invited to appear for an interview before the Interview Board on 9-12-1957 'if you elect for the revised scales of pay as announced by the Government'.'

11. The petitioner thereupon moved for the Writ in this Court and obtained a Rule on 4-12-1957, The Rule granted an ad interim injunction restraining the respondents from giving effect to the letter dated 28-11-1957. The interim injunction was allowed to continue in favour of the petitioner only when the Rule was returned.

12. The only point here is purely a Constitutional question. It is unfortunate that such a point should be canvassed to test what normally would be considered to be quite a laudable course of having the suitability of teachers tested by an independent body like the Public Service Commission. But the only question with which the Court is concerned is not one of policy but of law, and legal rights.

13. The preliminary objection that the petitioner has no specific legal right can be disposed of briefly. I am satisfied that the petitioner has in this case a legal right to maintain the application. In fact, she has been called up for the interview. She challenges that the Authority, calling her up for interview has not the jurisdiction to do so. The Government answer that it is entirely a matter of option for her to appear or not to appear does not meet the point. If she does not appear, then she takes a great risk. She loses the benefit of the improved scales of pay. In fact, the Government's own Circular dated 6-12-1957 issued from the Education Directorate of the Government of West Bengal which is annexed to the Governments affidavit expressly says that 'those who do not wish to appear before the Selection Board will not get the benefit of the improved scales of pay proposed to be sanctioned.' Why should the petitioner lose the improved scales of pay on a consideration that her ability should be vetted by a body which she considers to be legally incompetent to vet her suitability. Those of her colleagues who would offer for selection and when selected will certainly get a preference over her on a consideration which she challenges as illegal.

14. On behalf of the petitioner Mr. Das Gupta argued this case with commendable ability and has relied on the observations of Kama, C. J., in the State of Orissa v. Madan Gopal, reported in : [1952]1SCR28 (A) where the learned Chief Justice of India observes:

'The language of the Article shows that the issuing of writs or directions by the Court is not founded only on its decision that the right of the aggrieved party under Part III of the Constitution (fundamental rights) has been infringed. It can also issue writs and similar directions for any other purpose'.

Mr. Das Gupta has also relied on the observations of Bose, J. of the Supreme Court in the case of The Commissioner of Police, Bombay, v. Gordhandas Bhanji reported in : [1952]1SCR135 (B) where the learned Judge observes:

'Here is an order purporting to emanate from the State Government itself served on the respondent by responsible Public Officer.

Whether the order is his order or an order of the State Government, it is obviously one which prima facie compels obedience as a matter of prudence and precaution. It may in the end be proved ineffective as has happened in this case. But it would be wrong to expect a person on whom it is served to ignore it at his peril however much he would be legally entitled to do so'.

Mr. Das Gupta on the basis of that observation argues rightly that if the petitioner ignores this direction or order for interview in this case, she does so at her peril. The peril is the loss of her chances for the improved scales of pay and in yielding her chances of improvement in the service to her colleagues who chose to offer themselves for the interview and there-by get selected. It is true that the Government Circular says that those who do not wish to appear before the Selection Boards would continue under their existing scales of pay. Right to continue in the existing scales of pay is not the only right which can be defended in law. The right to improve such scales of pay or a right to be prevented from being jeopardised or discriminated against by one's colleagues under similar conditions of service is equally a right which the law will respect and recognise.

15. I therefore hold on the preliminary point that the applicant has legal right to maintain this application.

16. The more fundamental point raised in this petition is whether the Public Service Commission can at all privately or department-ally agree to undertake a work of this kind. I have no hesitation in my mind to think that this helpful attitude by the Public Service Commission to assist the Government in coming to a right selection of teachers is an otherwise commendable attitude. But the only question with which this Court is concerned is not the commendability of the conduct of the Public Service Commission, but its legality.

17. The Public Service Commission is a Constitutional body charged with certain constitutional rights, duties and obligations. Within the frame of reference which the Constitution imposes upon the Public Service Commission, the Commission has to work. It can neither deny its Constitutional obligation nor can it acquire extra-Constitutional aspirations. The danger of extra-Constitutional aspirations and trying to perform extra-Constitutional functions is not to be minimised. In a written constitution of federal implications such as the Constitution of India, the organs of State and administration should confine their activities, within the respective orbit allotted to them by the Constitution or else there will be constitutional tensions and conflicts. However wholesome the intention, however noble the motive, the extra-constitutional benevolence may lead tomany legal and Constitutional embarrassments affecting the independence and the ultimate functions of such a Commission which is one of the cornerstones of the Indian Constitution. It might involve the Commission in frequent requests to help the Government out of difficult duties for which the law might have made, as it has in this case, other provisions. The independence and tenure and the duties of the Chairman and Members of the Public Service Commission are zealously guarded by the Constitution. Articles 316, 317 and 319 of the Constitution eloquently bear on the sacred integrity and independence of such a Commission, imposed by the Constitution. Extra-Constitutional affections are proverbially liable to be suspected as illicit. Neither the Commission nor the Government can afford to give occasion for such suspicion.

18. Article 320 of the Indian Constitution describes the functions of the Public Service Commission. Sub-Article (1) says that it shall be the duty of the State Public Service Commission to conduct examinations for appointment to the services of the State. A teacher in aided School does not belong to the 'Services of the State'. Sub-Article (31) says that the State Public Service Commission shall be consulted on matters relating to methods of recruitment to civil service and for civil posts and for other matters detailed and specified therein. The proviso to Article 320 of the Constitution permits the Governor as respects services and posts in connection with the affairs of State to make regulations specifying the matters in which either generally or in any particular class of cases or in any particular circumstances it shall not be necessary for a Public Service Commission to be consulted. But it is expressly provided that all such regulations shall be laid for not less than 14 days before the State Legislature as soon as possible after they are made and shall be subject to such modification, whether by way of repeal or amendment, as the State Legislature may make during the Session in which they are so laid.

19. The Constitution does recognise the possibility of extending the functions of the Public Service Commission. Article 321 of the Constitution provides inter alia that an Act made by the Legislature of a State may provide for the exercise of additional functions by the State Public Service Commission as respects the services of the State and also as respects the services of any local authority or other body corporate constituted by law or of any public institution. The aided School is a 'public institution.' Here is a provision of the Constitution whereby additional functions can be entrusted to the State Public Service Commission. But it can only be done by an Act of the State Legislature under Article 321 of the Constitution. It cannot be done by any private or departmental arrangement between the Commission and the Government. That seems to indicate that extra-Constitutional work or gratuitous work not provided by an Act of the Legislature is not permitted to the Public Service Commission. If it was the desire ofthe State Government that Public Service Commission should help in the selection of teachers for aided schools, then the State Government should by an actual act of the State Legislature empower the Public Service Commission to discharge that function.

Administrative requests by the Executive Government to the Public Service Commission may be misused and misunderstood and such misuse or misunderstanding will affect the dignity and the quality of the work of the Public Service Commission which the Constitution intends to protect and at the same time unnecessarily embarrass the Government. The State Government, in my opinion, would be well within its powers under Article 321 of the Constitution to pass an Act assigning this additional function to the Public Service Commission. That was or should have been the right procedure and not by private arrangement between the Government and the Public Service Commission.

20. As it is, the position is not without also other legal difficulties. Such difficulties are created by the West Bengal Secondary Education Act, 1950. That Statute, as it expressly states in its preamble was passed 'to provide for the regulation, control and development of Secondary Education in West Bengal.' The aided schools or schools which receive grants-in-aid from the Government are part of the whole scheme of the Secondary Education in West Bengal. By that Statute the State Government has established a Board for the regulation, control and development of Secondary Education. This is provided by Section 3 of the West Bengal Secondary Education Act, 1950. The composition of the Board is representative of the educational and public interest in the State and in so representing and reflecting such interests, that body is no less adequate than the Commission. Section 25(31)(c) of the West Bengal Secondary Education Act, 1950 provides for the Recognition and Grants Committee and their functions and it inter alia states that it shall be the duty of the Committee to determine in accordance with such regulations as may be made in this behalf the amounts of grants-in-aid to be given to individual high schools. Section 36 of the Statute provides for the powers of the Board. The general powers of the Board includes

'power to direct, supervise, develop and control Secondary Education and to do all such acts as it may consider necessary for the purposes of such direction, supervision, development and control.'

These powers are wide enough to include conditions of service for teachers in Secondary Schools which are aided by grants-in-aid. That will come within the meaning of 'development and control of Secondary Education and acts necessary for such, purpose.' Among the particular powers of the Board, in addition to such general powers, may be mentioned the power contained in Section 36(2) (f) which says that 'the Board may prescribe by regulations the conditions to be fulfilled by High Schools applying for or in receipt of grants-in-aid and the procedure for distributing such grants.' Section 36 (2) (a) provides for 'inspection of such schools, for supervision of administration of such school, and particularly for prescribing by Regulations the procedure to be followed by the Executive Council in granting, withholding and withdrawing recognition to and from High Schools and the conditions to be fulfilled by High Schools for such recognition.' These provisions indicate abundantly that the Board can and is the authority to make any conditions about the suitability of teachers in aided schools and to make Regulations to test their suitability for appointment if the Schools are to continue to receive grants-in-aid. The Board can legitimately and properly under these powers frame Regulations to the effect that only such teachers should be appointed in aided schools who satisfy certain tests for their suitability and how and by what agencies such tests are to be carried out. But then the Board is the Statutory Authority to do it. This Board under the West Bengal Secondary Education Act, 1950 is a Board, as I have said, of eminent persons and reflecting the representative character of educational interests in the State. The Board, therefore, under the prevailing Statute and the present legal frame is the proper authority who should discharge these statutory obligations for vetting the suitability of teachers in aided schools. The Government, therefore, should have called upon the Board to discharge that duty and not to ignore that existing Statute specially passed inter alia for that purpose and dealing with these particular problems and should not have invoked some other institution not permitted either by that Statute or by the Constitution to perform this job. If the State wants the Public Service Commission to do this work, then it can only do so by an Act of the State Legislature under Article 321 of the Constitution.

21. For these reasons I make the Rule absolute. There will be no order as to costs.


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