Moushumi Bhattacharya, J. - The petitioners no. 1 and 2, being the Managing Committee and the Headmaster of Shree Balkrishna Vithalnath Vidyalaya, respectively, have challenged an order dated 12th September, 2018 passed by the Chairman, Appeal Committee, West Bengal Board of Secondary Education by which a suspension order passed by the Managing Committee against the respondent no.8, one Sushil Kumar Rai (the private respondent) was set aside and the Managing Committee was directed to permit the private respondent to join the school.

The specific direction passed by the Appeal Committee of the Board reads as follows;

Opposite party is directed to comply the order within the stipulated period and as per spirit of this order positively failing which the Board with the help of D.I. of schools and o/c of the local p.s. shall implement the order very strictly.

2. At the outset, learned counsel appearing for the parties invited the court to consider a preliminary point on the jurisdiction of the Appeal Committee of the Board to pass the impugned order dated 12th September, 2018 as well as the objection taken by counsel appearing for the private respondent on the locus of the Managing Committee to file the present writ petition. It was agreed that the merits of the dispute would be gone subject to the decision on the preliminary objections.

3. Learned counsel for the petitioners takes the preliminary point of questioning the jurisdiction of the Appeal Committee to make the impugned decision. Such challenge is based on a Notification of 28th July 2016 by which the West Bengal Board of Secondary Education Act, 1963, was amended by inserting a new section, namely section 4A, which the State Government was given the power to appoint an Ad hoc Committee for a period not exceeding one year at a time, or as notified. The relevant part of the West Bengal Board of Secondary Education (Amendment) Act, 2016, is set out below;

West Bengal Act VIII of 2016

THE WEST BENGAL BOARD OF SECONDARY EDUCATION (AMENDMENT) ACT, 2016.

[Passed by the West Bengal Legislature.]

[Assent of the Governor was first published in the Kolkata Gazette Extraordinary, of the 28th July, 2016.]

Government of West Bengal, Law Department (Legislative) Notification No. 684- L.--28th July, 2016.--The following Act of the West Bengal Legislature, having been assented to by the Governor, is hereby published for general information:---

An Act to amend the West Bengal Board of Secondary Education Act, 1963.

WHEREAS it is expedient to amend the West Bengal Board of Secondary Education West Ben. Act, 1963, (West Ben. Act V of 1963) for the purposes and in the manner hereinafter appearing;

It is hereby enacted in the Sixty-seventh Year of the Republic of India, by the Legislature of West Bengal, as follows:---

1. Short title and Commencement.-(1) This Act may be called the West Bengal Board of Secondary Education (Amendment) Act, 2016.

(2) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint.

2. Insertion of new section 4A after section 4 of West Ben. Act V of 1963.- After section 4 of the West Bengal Board of Secondary Education Act, 1963 (hereinafter referred to as the principal Act), the following section shall be inserted:---

"Constitution of Ad-hoc Committee.-4A. (1) The State Government may, by notification, appoint a Committee. Ad hoc Committee consisting of-

(a) a President, and

(b) such number of other members not exceeding eleven, as the State Government may think fit,

For such period, not exceeding one year at a time, as may be specified in the notification.

(2) The President of the Ad hoc Committee shall exercise all the powers, and shall perform all the functions, of the President of the Board, and the Ad hoc Committee shall exercise all the powers, and shall perform all the functions of the Board and the Committee constituted by the Board under this Act.

4. According to counsel, if the Appeal Committee of the Board lacked jurisdiction at the time of passing the order, the impugned order becomes a nullity. Counsel relies on section 4 of the 1963 Act (Constitution of the Board) and on sub-section 14 thereunder which is mentioned under section 22 relating to the constituents of the Appeal Committee. The argument advanced is that, on 12th September 2018 (the date of the impugned order) the Appeal Committee could not have been properly constituted since after the amendment, the powers of the Board had been given to the newlyappointed Ad hoc Committee under section 4A.

5. Learned counsel appearing for the Board relies on Notification No.957 dated 30th July, 2016 by which the School Education Department, Government of West Bengal, constituted the Ad Hoc Committee consisting of designated Members pursuant to the power conferred by Section 4A(1) of the 1963 Act. Counsel further relies on an order passed by the School Education Department dated 24th August, 2017 appointing Sri. Bipin Mukhopadhyay, retired judge of the City Civil Court, to the post of Chairman of the Appeal Committee for a period of one year and a communication dated 29th November, 2018 from the President of the Board to the School Education Department seeking a clarification of the jurisdiction of the Appellate Authority under the WBBSE (Appointment, Confirmation, Conduct and Discipline of Teachers and Non-Teaching Staff) Rules 2018. Counsel submits that the Ad Hoc Committee has already been put in place pursuant to the Notification but disputes the contention that the Appeal Committee lacked jurisdiction to pass the impugned order.

6. Learned counsel appearing for the private respondent (respondent no.8), challenges the locus of the petitioner no.1 being the Managing Committee of the School, to file the writ petition on the ground that the statutory term of three years under Rule 12 of the Management Rules, 1969, expired on 3rd November, 2018. Counsel submits that the Managing Committee, therefore, was a defunct body on the date of filing the present writ petition namely on 3rd December, 2018. Counsel relies on Adwaitya Kr. Maity Vs. President, W. B. Board of Secondary Education, 0 71 CalWN 396, Saktipada Karmakar Vs. West Bengal Board of Secondary Education, 1972 CalLJ 148, Amit Das Vs. The Chinsurah Balika Siksha Mandir, 2005 2 CalLJ 95 (Cal) on the point of the locus of a defunct Managing Committee and on Karnataka Rare Earth Vs. Senior Geologist Department of Mines & Geology, 2004 2 SCC 783 [LQ/SC/2004/113] and Calcutta Cosmopolitan Club Ltd. Vs. Bhanwarlal Bhandari, 2004 1 CalHN 498 on the scope of applicability of the maxim of Actus curiae neminem gravabit and the scope of interim orders, respectively.

7. I have considered the submissions made on behalf of the learned counsel for the parties. The scope and effect of the amendment would be evident from a sequential arrangement of the relevant provisions.

8. After insertion of the new section 4A in the West Bengal Board of Secondary Education Act, 1963, the nomenclature of the was changed to The West Bengal Board of Secondary Education (Amendment) Act, 2016. The effect of insertion of section 4A was the appointment of an Ad Hoc Committee by the State Government for a period not exceeding one year at a time, as may be specified in the Notification. The present proceeding is concerned with Clause 2(2) of the Notification which consists of three parts, namely;

The President of the Ad Hoc Committee shall exercise all the powers and shall perform all the functions of the President of the Board

The Ad Hoc Committee shall exercise all the powers and shall perform of the functions of the Board

The Ad hoc Committee shall exercise all the powers and shall perform all the functions of the Committees constituted by the Board.

Point number three is relevant for deciding the jurisdiction of the Appeal Committee in passing the impugned order.

9. Clause 2(2) makes it clear that the President of the Ad Hoc Committee will not only exercise the powers and perform the functions of the President of the Board but that the Ad Hoc Committee shall exercise all the powers and functions of the Committees constituted by the Board. Section 4 of Chapter II of The West Bengal Board of Secondary Education Act, 1963 (the 1963 Act) provides for the composition of the Board by enumerating the members to be appointed. Section 4(14), which is relevant for the present issue provides the following:--

4. (14) (a) Two heads of recognized Secondary Schools nominated by the State Government;

(b) Thirty-five whole-time and permanent teachers of recognized secondary schools (whose appointment has been approved in accordance with the rules) of whom one shall be from the hill areas, elected in the manner prescribed.

Explanation- Hill areas shall have the same meaning as in the Darjeeling Goarkha Autonomous Hill Council Act, 1988.

(c) Three whole-time and permanent members of the non-teaching staff of recognized Secondary School; elected in the manner prescribed of whom.....................

10. The Appeal Committee finds mention in Sections 18 and 22 of Chapter III of the(Committees and Regional Councils) and provides that after the Board is established, the following Committees shall be constituted. These are;

(a) the Recognition Committee shall be constituted by the Board; (aa) the Executive Committee;

(b) the Syllabus Committee;

(c) the Examinations Committee;

(d) the Appeal Committee;

(e) the Finance Committee.

The composition of the Appeal Committee can be found in Section 22 which is set out;

Appeal Committee

22. (1) The Appeal Committee shall consist of the following members:

(a) three persons elected by the Board in the manner provided by regulations from amongst the members referred to in clause (14) of section 4.......................

Section 49 is also relevant in this context. This deals with supersession of the Board and provides that the State Government may by an order publish in the official Gazette and with reasons, supersede the Board for a period not exceeding two years and take steps as may be necessary to re-establish the Board immediately on the expiry of the above supersession.

11. The above sequence shows that after 28th July, 2016 after the Ad Hoc Committee was constituted. the President of such Committee took over the powers and functions of the Committees, including the Appeal Committee, in Section 18(d) of the. The second factor is that the constitution of the Appeal Committee under Section 22(1) includes three persons elected by the Board in the manner provided by regulation from amongst the members referred to in Section 4(14) namely, two Heads of Recognized Secondary Schools nominated by the State Government, 35 whole time and permanent teachers of Recognized Secondary Schools and three whole time permanent members of the non-teaching staff of a Recognized Secondary School. Hence, the constitution of the Appeal Committee harks back to the composition of the Board in Section 4 of the. This raises the question whether on the date when the impugned order was passed, i.e., on 12th September, 2018, which was almost two years after the insertion of 4A, can it be said that there was a properly constituted Appeal Committee under Section 22(1)(a) of the The answer must be in the negative. The functions and powers of the Board being taken over by the Ad Hoc Committee, the borrowing (literally) of the members of the Board under Section 4(14) could not have been done by the Appeal Committee in compliance of the composition requirement of the Appeal Committee under Section 22(1)(a) of thesince by that time the Board had become a defunct entity.

12. If this be the case, then on 12th September, 2018 when the impugned order was passed, there could not have been any Appeal Committee in place by reason of the West Bengal Board of Secondary Education (Amendment) Act, 2016 coming into force by which Section 4A was inserted empowering the State Government to appoint an Ad Hoc Committee.

13. The effect of the Notification dated 28th July, 2016 was inserted and the formation of the Ad Hoc Committee for exercising the powers of the Board and the Committee under Clause 2(2) of the Notification has in fact been recognized in a decision passed by a learned Single Judge of this court in W.P. No. 443 (W) of 2018 ( Srirampur Madhubati Bijon Behari Balika Vidyalaya Vs. State of W.B.,2018 SCCOnlineCal 4205).

14. The documents shown by learned counsel appearing for the Board including an order of the School Education Department, Government of West Bengal dated 24th August, 2017 appointing a retired judge of the City Civil Court to the post of Chairman of the Appeal Committee for a period of one year and the letter from the President of the Board to the Secretary, School Education Department dated 29th November, 2018, seeking a clarification on the jurisdiction of the Appellate Authority and that of the Chairman, Appeal Committee do not lend any clarification in the matter except that the term of the Chairman, Appeal Committee has been extended by the School Education Department for a further period of one year from 31st October, 2018. The Notification dated 30th July, 2016 of the School Education Department in exercise of the power conferred under Section 4A(1) constituting the Ad Hoc Committee which will function until further orders actually assists the case of the petitioners. This Notification affirms the intent behind the amendment brought in to the 1963 Act to the effect that the powers and functions of the Board would be carried out by the Ad Hoc Committee after 28th July, 2016.

15. The principle of law laid down in the decisions relied on by learned counsel for the petitioners namely, Jagmittar Sain Bhagat Vs. Director, Health Services, Haryana, 2013 10 SCC 136 [LQ/SC/2013/737] and Hasham Abbas Sayyad Vs. Usman Abbas Sayyad, 2007 2 SCC 355 [LQ/SC/2006/1266] , is wellsettled; a decree would amount to a nullity if a court inherently lacks jurisdiction. One is tempted to refer to an extract from Harshad Chiman Lal Modi Vs. DLF Universal Ltd., 2005 7 SCC 791 [LQ/SC/2005/960] ;

Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject-matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity.

16. The reliance placed by counsel on sections 18 and 22 of the 1963 Act, as it stood before the Amendment on 28th July, 2016, reinforces the lack of jurisdiction of the Appeal Committee in September 2018. Section 18 clarifies the sequence namely, that as soon as the Board is established, the following Committees shall be constituted which includes the Appeal Committee. Therefore, once the Board became defunct by reason of its powers being given to the Ad Hoc Committee by the Notification dated 30th July, 2016 (placed by learned counsel for the Board) taking recourse to Section 4(14) for constituting the Appeal Committee cannot and does not arise after 28th July, 2016. The communication dated 29th November, 2018 of the President of the Borad to the School Education Department noting, inter alia, that the term of the President of the Appeal Committee has been extended by the Committee for a further period of one year is inconsistent with the effect of the Notification dated 28th July, 2016 to the extent of extending the term of the Chairman of the Appeal Committee. In any event, no document has been placed by the Board in response to or for clarifying the concern expressed in the said communication of overlapping jurisdiction of the Commissioner and the Appeal Committee.

17. In light of the above discussion, this court is of the view that on the day when the impugned order was passed namely on 12th September, 2018, the Appeal Committee did not have jurisdiction to pass the said order as the functions and powers of the Appeal Committee had been taken over by the Ad Hoc Committee on and from 28th July, 2016. The impugned order is liable to be set aside on that ground alone.

18. With regard to the objection raised by learned Counsel for the private respondent on the locus of the petitioner no.1 (the Managing Committee of the School,) to file the writ petition, an order dated 1st November, 2018 passed in W.P.21986(W) of 2018 filed by the Headmaster and Secretary of the School, is relevant. The relevant portion of the aforesaid order is set out;

This matter shall be taken up again on November 5, 2018 till such time there shall be an order of status quo as of this date. The coordinate bench taking up the matter on November 5, 2018 will naturally be free to decide everything uninfluenced by anything in this order, including whether or not to continue the order of status quo.

19. By the above order, the Managing Committee of the school continued to function and continues as on date. The interim order has subsequently been extended by subsequent orders from 5th November, 2018, the last extension being made on 30th July, 2019. The interim order dated 1st November, 2018 has not been challenged by either the Board or the private respondent and hence cannot be called into question at this stage. It may also be noted that the private respondent had approached this court in W.P.3072(W) of 2018 against the various actions (and inaction) on the part of the Managing Committee where by an order dated 2nd July, 2018, the private respondent had been directed to submit a declaration for the Managing Committee to make payment of the subsistence allowance to the private respondent, which have been provided for by the latter. In passing the order dated 2nd July, 2018, the learned Single Judge took note of the judgment of a Division Bench of this court dated 15th May, 2018 in M.A.T 1823 of 2017, C.A.N 10296 of 2017 and C.A.N 10851 of 2017, in which the Managing Committee was the appellant before the Division Bench. It is evident from the aforesaid order and judgment that the Managing Committee was considered to be an essential party for the reliefs prayed for by the private respondent. Therefore, the contention that the Managing Committee/petitioner no.1 was a defunct entity at the time of filing of this writ petition, i.e., 3rd December, 2018, is not supported by the conduct of the private respondent himself.

20. The decisions relied on by learned counsel for the private respondent namely, Adwaitya Kr. Maity Vs. President, W. B. Board of Secondary Education, 0 71 CalWN 396 and Saktipada Karmakar Vs. West Bengal Board of Secondary Education, 1972 CalLJ 148 were cases where the statutory term of the Committees had admittedly expired. In Amit Das Vs. The Chinsurah Balika Siksha Mandir, 2005 2 CalLJ 95 (Cal), the question was whether an Executive Committee under Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969 could extend the life of a Managing Committee of a School by circumventing a statutory provision. The Calcutta Cosmopolitan Club Ltd. Vs. Bhanwarlal Bhandari, 2004 1 CalHN 498 dealt with the scope of interim orders and Karnataka Rare Earth Vs. Senior Geologist Department of Mines & Geology, 2004 2 SCC 783 [LQ/SC/2004/113] with the scope of the doctrine of Actus curiae neminem gravabit. None of the aforesaid decisions assist the respondent no.8 with regard to the issue which is now being adjudicated. In this case, the term of the Managing Committee has been extended by orders of Court, the effect of which is subsisting till today. Until such orders are vacated or are successfully challenged, the locus of the Managing Committee to file the present proceeding cannot be challenged. The Headmaster is in any event, the second writ petitioner in the writ petition.

21. By reason of the above, the question of locus of the writ petitioner no.1 being the Managing Committee of the School is answered in favour of the petitioners. The point of jurisdiction of the Appeal Committee to pass the impugned order is also answered in favour of the writ petitioners. The impugned order dated 12th September, 2018 passed by the Chairman, Appeal Committee of the West Bengal Board of Secondary Education is accordingly set aside.

22. It is made clear that this court has not gone into the merits of the impugned decision and counsel have not made any arguments on the legality of the order of suspension of the private respondent by the Managing Committee of the School. Since the impugned order has been set aside on the ground of an absence / lack of jurisdiction of the Appeal Committee, the merits of the dispute are not required to be gone into. W.P. 24503(W) of 2018 is accordingly allowed in terms of prayer (a) which is for setting aside and cancelling the impugned order dated 12th September, 2018 and is disposed of on that basis.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.

Final Result : Allowed