JUDGMENT
Arun Kumar Mitra, J.
1. This writ petition has been moved with the following prayers:
a) (i) To issue a writ and/or order in the nature of mandamus commanding the respondents to forbear from giving any further effect to Memo No. 2063 dated 30th December, 1993 (Annexure “P-1”) and/or allow the corresponding scale as revisied from time to time and to direct the respondents to refix the scales admissible to the respondent Nos. 9 and 10 as Assistant Teacher as admissible to trained graduates for having higher qualification in non-relevant subjects on and from 1st May, 1992 till date and to further direct the respondents to realise the excess amounts paid to the respondent Nos. 9 and 10.
(ii) To command the respondent Nos. 5 to cause any independent enquiry to the allegation made in Annexure “P-7” dated 14th May, 2002.
(b) To issue a writ of certiorari calling upon the respondents as specially the respondent No. 4 to produce and/or to cause production of the records relating to the fixation of scale of pay as per annexure “P-1” and the records relating to and/or steps taken on the basis of representation dated 1st May, 2002 (Annexures “P-1” and “P-3”) for appointment as Headmistress of Palaspai Anchal Gita Rani Dhara Balika Vidyalaya by the respondent Nos. 3, 4, 5 and 6 so that conscionable justice may be done by quashing the same.
(c) To issue a writ of prohibition commanding the respondent Nos. 1 to 5 not to exercise jurisdiction in any manner whatsoever in respect of the appointment of the respondent No. 9 as Headmistress of Palaspai Anchal Gita Rani Dhara Balika Vidyalaya.
2. The writ petitioners are the guardians and their wards are reading in Palaspai Anchal Gita Rani Dhara Balika Vidyalaya, Vill-Bhairabpur, P. S. Chak Hayatpur, Dist- Hooghly (hereinafter referred to said school). According to the petitioners at present Madan Hazra (respondent No. 8) is the Administrator of the said school. Respondent No. 9, Smt. Ratna Saha is the Teacher-in-Charge of the said school and the respondent No, 10, Smt. Sadhana Das is an Assistant Teacher of the said school.
3. The said school has been recognised as +10 school on and from 1st May, 1992 and the respondent No. 4 i.e. the District Inspector of Schools concerned approved 12 teaching and 3 non-teaching staff w.e.f. lst May, 1992 and both respondent Nos. 8 and 9 were amongst the said 12 teaching staff.
4. Respondent No. 4, the District Inspector of Schools (A.C.) approved the fixation of appointment of the said respondent No. 9, Smt. Ratna Saha and the respondent No. 10, Smt. Sadhana Das as the Teacher-in-Charge and Assistant Teacher respectively and fixed their pay in the scale of Rs. 1780-3780/- by Memo No. 2063 dated 30th December, 1993. The said Memo is annexed hereto and marked as Annexure P-1 to the writ petition. It has been stated in paragraph 5 of the writ petition that Smt. Ratna Saha, the respondent No. 9 is M. A. in Political Science and Music and has passed Secondary Education in compartmental examination and in B. A. Examination she appeared in Part-I and Part-II combined and Smt. Sadhana Das, the respondent No. 10 is M. A. in Philosophy but neither Political Science nor Music nor Philosophy are included in the Secondary syllabus of the West Bengal Board of Secondary Education and in normal course these subjects are not taught in the said school.
5. It has further been stated that although a teacher becomes entitled to higher scale of pay for having higher education but in case of non-relevant subjects i.e. if the higher qualification is in a subject which is not within the syllabus or is not taught in the institution, she will not be entitled to such higher scale of pay and the said teacher will be entitled to the scale of Graduate Assistant Teacher which is Rs. 1240-3130/- and so the respondent Nos. 9 & 10 are not entitled to higher scale of pay but to the pay scale of Assistant Teacher.
6. According to the petitioners due to non-application of mind the respondent Nos. 9 & 10, who are not entitled to pay higher scale are being paid higher scales of pay from the public exchequer which is being made available as grant-in-aid to the said school.
7. The petitioners further stated that the respondent Nos. 9 &10 are not having qualification in relevant subjects and as such they are not entitled to the said higher scales of pay as per Circular No. 57/S.E.(S) dated 27th January, 1995. Copy of the said Circular has been made Annexure P-2 to the writ petition.
8. The respondent No. 9, Smt. Ratna Saha, who is working as Teacher-in-Charge has made representation before the Administrator for taking necessary action for her approval in the post of Headmistress on 1st May, 2002 on her completion of ten years in service.
9. According to the petitioners, the said representation has been disclosed in her writ petition being W. P. No. 8328(W) of 2002. Copy of the said representation has been made Annexure P-3 to the writ petition.
10. The writ petitioners in paragraph 9 of the writ petition stated that in W. P. No. 8328 (W) of 2002 it has been also disclosed that the respondent No. 8, the Administrator of the said school submitted papers to the respondent No. 5, the Additional District Inspector of Schools, Arambagh for approval of appointment of Smt. Ratna Saha, the respondent No. 9 as Headmistress w.e.f. 1st May, 2002. Xerox copy of the said Memo has been made Annexure P-4 to the writ petition.
11. The petitioners also stated that said Smt. Ratna Saha, respondent No. 9 moved the writ petition being W. P. No. 8328(W) of 2002 and by an order dated 1st July, 2002 Hon’ble Justice Subhra Kamal Mukherjee disposed of the writ petition by granting liberty to the petitioner therein i.e. the respondent No. 9 herein inter alia to make representation before the Director, School Education, West Bengal, the respondent No. 3 for redress of her grievances within two weeks from that date and his Lordship also directed the Director, School Education to consider the representation in accordance with law after giving an opportunity of hearing to the petitioner. School authorities and other persons interested in the matter by passing a speaking and reasoned order there within a period of eight weeks from the date of such representation. Xerox copy of the order has been made Annexure P-5 to the writ petition.
12. It has been stated by the petitioner that the West Bengal School Service Commission Act, 1997 has come into force on and from 1st April, 1997 and the procedure for selection of appointment to the post of Teachers of school including the appointment of Headmistress has been prescribed and that it has come into effect on and from 8th January, 1998 and the recommendation of the School Service Commission having jurisdiction would be binding and any appointment otherwise, will have no effect.
13. According to the petitioners in view of the aforesaid provisions of law, the respondent No. 9 may not be appointed as Headmistress otherwise, than by the recommendation after selection by the Commission having jurisdiction i.e. the respondent No. 6 and the respondent No. 3, the Director of School Education has no authority to consider any representation of the respondent No. 9 for appointment as Headmistress. Furthermore the academic qualification of the respondent No. 9 is not suitable for such appointment.
14. The respondent Nos. 9 & 10 being not entitled to the scale as is drawn by them at present.
15. According to the petitioners the respondent No. 9, Smt. Ratna Saha having no higher qualification in relevant subjects viz, in the subjects which are in the syllabus of the Secondary Schools, as such the higher qualification in Political Science and Music has no relevance.
16. The petitioners in paragraph 15 stated that the respondent No. 8 has in a motivated manner and in collusion with the respondent No. 9 issued a Memo dated 6th May, 2002 as Headmistress and he has accepted the appointment of Smt. Ratna Saha on 6th May, 2002 as Headmistress knowing that the same cannot be done as per the relevant Circulars including Notification No. 33 Edn. (B) dated 7th March, 1990.
17. Thereafter the petitioners have quoted relevant portions of the notification dated 7th March, 1990 and stated that sub-paragraph 3 of the said notification dated 7th March, 1990 has been substituted by Government Order No……Edn.(B) dated 10th September, 1991.
18. The petitioners further stated that the said school has been recognised as 10+ school straightaway w.e.f. 1st May, 1992 and the District Inspector of Schools (A.C.) Hooghly, respondent No. 4 approved appointment of 12 Teachers including that of the respondent Nos. 9 & 10 as Teacher-in-Charge and Assistant Teacher respectively.
19. The petitioners further stated that Memo No. 2063 dated 30th December, 1993 is to be treated as issued through inadvertence and pay of the respondent Nos. 9 & 10 is thoroughly misconceived.
20. The petitioners then stated that Memo No. 25 S. E. (B) dated 12th February, 1993 issued by the School Education Department, Budget Branch which gives effect to the recommendation of the Pay Commission in its paragraph 12(3) has disclosed certain provisions on Career Advancement Scheme and related issues. The petitioners in paragraph 18 has quoted the said paragraph 12 of the said Memo dated 12th February, 1999.
21. According to the petitioners neither the respondent No. 9 nor the respondent No. 10 has tried to improve qualifications in any relevant subject since their appointment and as such they are not entitled to the higher pay scale.
22. The petitioners sent demand for justice through learned Advocate and the petitioners along with other guardians have sent a representation to the District Inspector of Schools which have been made Annexures P-6 and P-7 to the writ petition.
23. Government Order dated 23th August, 2001 in the relevant issue provides that the persons having higher qualifications in non-relevant subject will not be appointed as Headmasters and as such the respondent No. 9 cannot be appointed as Headmistress of the school.
24. On the aforementioned averments the petitioners claiming to be the guardians of the wards, who are reading in the said school made the prayers in the manner referred to above and filed this writ petition.
25. Affidavit-in-opposition has been filed by respondent No. 10 and one application being CAN No. 3200 of 2003 has been filed by the respondent No. 9. Smt. Ratna Saha disputing the averments made in the writ petition. The petitioners however, filed an opposition to the application filed by respondent No. 9 Smt. Ratna Saha.
26. In the opposition the respondent No. 10 stated that the writ petitioners have no locus standi to maintain the instant writ petition.
27. The respondent No. 10 also stated that before the Girls’ School was recognised by the Board, the then school authority appointed respondent No. 10 as Organiser Teacher w.e.f. 9th February, 1984 and that through a memo dated 30th December, 1993 the District Inspector of Schools approved her appointment.
28. The respondent No. 10 denied all the allegations made in the writ petition and stated that she has been given the correct scale in terms of 33 Edn.(B).
29. In the application the respondent No. 9 made the following prayers:
“(a) (i) To issue on writ and/or order in the nature of mandamus commanding the respondents to forbear from giving further effect to Memo No. 2063 dated 30th December, 1993 (Annexure ‘P/1) and allow the corresponding scale of pay revised from time to time and to direct the respondents to refix the scales admissible for the respondent Nos. 9 & 10 as Assistant Teachers as admissible to trained candidates for having higher qualification in non-relevant subjects on and from lst May, 1992 till date and to further direct the respondents to release the excess amounts paid to the respondent Nos. 9 and 10.
(ii) To command the respondent No. 5 to cause any independent enquiry to the allegation made in Annexure P-/7 dated 14th May, 2002.
(b) To issue a writ of certiorari calling upon the respondents as specially the respondent No. 4 to produce and/or to cause production of the records relating to the fixation of scale of pay as per Annexure ‘P/1’ and the records relating to and/or steps taken on the basis of representation dated 1st May, 2002 (Annexures P/l and ‘P/3) for appointment as Headmistress of Palaspai Anchal Gita Rani Dhara Balika Vidyalaya by the respondent Nos. 3, 4, 5 and 6 so that conscionable justice may be done by quashing the same.
(c) To issue a writ of prohibition commanding the respondent Nos. 1 to 5 not to exercise jurisdiction in any manner whatsoever in respect of the appointment of the respondent No. 9 as Headmistress of Palaspai Anchal Gita Rani Dhara Balika Vidyalaya.
(d) To grant an ad interim order directing the respondents to pay the respondent Nos. 9 and 10 in scale of pay as admissible to Trained Graduate Teacher from August, 2002 and thereafter and to take steps for realisation of the excess amount from the said respondent Nos. 9 and 10 during the pendency of the case;
(e) To grant an ad interim order of injunction restraining the respondent Nos. 1 to 5 not to appoint the respondent No. 7 as Headmistress of the Palaspai Anchal Gita Rani Dhara Balika Vidyalaya during the pendency of the case.
(f) To direct an enquiry to be caused to the allegations dated 14th May, 2002 (Annexure P/7) during the pendency of the case independently.
(g) To issue a Rule NISI in terms of prayers (a)(i), (ii), (b) and (c) and interim order in terms of prayers (d), (e) and (f).
(h) To make the Rule absolute no cause or insufficient cause is shown.
(i) Or, to pass such other or further order/orders as to your Lordships may deem fit and proper.”
30. Heard the learned Counsel for the parties, considered their respective submissions, the writ petition, the application and the opposition to the writ petition as well as opposition to the application filed by respondent No. 9 Ratna Saha.
31. Before dealing with the other allegations it is to be decided first as to whether the petitioners being the guardians of the wards reading in the said school have got the locus standi or not to move this writ petition or whether the writ petitioners are the persons aggrieved or the persons prejudicially affected in the matter or not.
32. The petitioners claimed that they are the guardians and their wards are reading in the said school but nowhere the petitioners asserted that in which class their wards are studying or whether their wards are outgoing students or not. In fact the petitioners in their writ petition did not even mention the names of their wards, who are reading in the school.
33. That is one part of the story and the other part remains that how guardians are prejudicially affected or how they can term themselves as “persons aggrieved.” It had been the position that the respondent Nos. 9 & 10 have got appointment irregularly in a back door method or whether the respondent Nos. 9 &10 do not possess any qualification at all to coach the students upto class X or there is allegation against them that they are inefficient in their duties and the said allegations have been embodied in the writ petition, then it would have been a question that the guardians don’t want to put their wards in the said school where the said two teachers are teaching. But that is not the case made out. It is not also the case of the petitioners that they are members of the Managing Committee of the said school as guardians. Now the scale of pay allowed to the respondent Nos. 9 & 10 are being allowed by the Governmental authority. The Governmental authority is the “authority” which can decide the scale of pay of the respondent Nos. 9 & 10 in accordance with the Government Notifications and/or Circulars. The guardians are interested in the study of their wards. They cannot be interested in any further job excepting the education of their wards.
34. The learned Counsel for the respondent No. 9, Smt. Ratna Saha who filed application for proper order directing the concerned respondent in particular, the Director of School Education, West Bengal, to grant approval of appointment to Smt. Ratna Saha, the respondent No. 9 as Headmistress of the school.
35. The learned Counsel submitted that this application for proper order filed by Ratna Saha can be treated as an amendment application and the writ petition can be amended accordingly and subsequent facts pleaded by Smt. Ratna Saha in her application should be introduced.
36. The learned Counsel relied on the decision of this High Court , Bibhas Chandra Bose v. Dolly Bose nee Dutta.
37. According to the learned Counsel, in paragraph 2 of this judgment which explains the scope or the right of a party to amend his pleadings in order to introduce subsequent events.
38. The observations made in paragraph 2 of the said decision is quoted hereinbelow :
“Here the question is as to what extent a party has a right to amend his pleading in order to incorporate subsequent events having a bearing on the list in question. It is trite to say that a cause of action for a lis must precede the lis. But once a lis is so instituted on a pre-litem cause of action, the Court cannot shut its eyes to, but must taken note of, all such post-litem developments which are likely to affect the question to be determined in the lis. The tendency of the Courts, as pointed out by the Supreme Court in Pratap Singh v. Krishna, , towards technicalities should be deprecated so that the substance may count and take precedence over form. And it would be putting too much premium on technicalities of the Rules of pleadings, and allowing them to become rather the mistress instead of being as they should be, handmade to the cause of administration of justice, if the Court folds its hands and does not take note of all subsequent events or developments which might affect the relief claimed in the lis and drive the parties to another proceeding to obtain relief on the basis of such changed or subsequent developments. Approach to pleadings had never been that legalistic and as early as in 1915, Sir Ashutosh in a Division Bench decision of this Court in Rai Charan v. Biswanath AIR 1915 Cal 103, clearly ruled that the Court is to take note of such subsequent events to shorten litigation and to prevent multiplicity of proceedings. This also appears to be view of the Supreme Court in M. Laxmi & Co., and also in Shikharchand Jain, where the decision of this Court in Rai Charan (supra) has been referred to with approval.”
39. In the same context another decision has been referred to by the learned Counsel, which is of Hon’ble Apex Court , Shikharchand Jain v. Digambar Jain Praband Karimi Sabha and Ors.
40. The learned Counsel also submitted that since already there is a writ petition filed earlier, in view of the provisions of Section 10 of the Code of Civil Procedure this writ petition should be stayed till the earlier writ petition is decided.
41. The question of stay or amendment or introduction of subsequent events come later on and will come only in the scenario if the petitioners have got locus standi at all to move this writ petition.
42. As observed earlier, the petitioners are interested in the study of their wards and it is never the case of the petitioners made out in the writ petition that the respondent Nos. 9 & 10 are inefficient and their wards will not get proper education, then the question of affection comes.
43. If for the sake of argument or discussion it is accepted that the petitioners are interested to protect the misuse of (according to the petitioners it is misuse) public exhequer then the petitioners could have moved a public interest litigation and this writ petition cannot give any relief to the petitioners.
44. As observed earlier, there are Government Circulars and the Governmental authorities have got all the records relating to the appointment of respondent Nos. 9 & 10 and as such fixation of pay scale of the respondent Nos. 9 & 10 are within the duties of the Governmental authorities i.e. the Director of School Education and or the District Inspector of Schools. It is also a well-settled that unless the petitioners are prejudicially affected or unless they have got any legal right being violated, the petitioners cannot pray for judicial review.
45. In view of the discussions made above, in my opinion, the petitioners have no locus standi to move this writ petition inasmuch as they are neither the persons aggrieved nor they are prejudicially affected.
46. The writ petition is therefore, dismissed.
47. There will be no further order as to costs.
48. Urgent xeroxed certified copy, if applied for, will be given to the parties expeditiously.