Anisur Rahaman & Anr. vs State of West Bengal & Ors.

Protik Prakash Banerjee, J

The present writ petition under Article 226 of the Constitution of India depicts a very sorry state of affairs. This is what happens when petty

bureaucrats who are servants of the State feel that their small preoccupations are more important than the orders of court. This writ petition was

moved on May 15, 2018, and I had directed that affidavits were to be filed though I had recorded my prima facie view that the writ petitioners of the

two Madrashas who are seeking approval of their appointment were not included in the application for financial assistance or even in the district level

inspection team based on the oral submissions of the learned advocate for the respondents. Such affidavit-in-opposition which could have proved the

above was not filed within the time stipulated in my order dated May 15, 2018.

Mr Mukherjee’s submissions were based on the findings of the Director of Madrasha Education (respondent no.3) in his order dated February 21,

2018 at Annexure P14 to the writ petition which has been challenged in the present writ petition. Then again further chance was given to Mr

Mukherjee’s clients to file the opposition which could have proved the case of the State. This was despite the fact that the department had laid

a note before me on June 25, 2018 saying that no affidavit-in-opposition had been filed. On the last date of hearing on June 26, 2018 not only did I

give the State a last chance to file opposition but also I did so on Ms Mukherjee’s submission that for personal reasons which she could not draft

the opposition. I had directed that the opposition must disclose the photocopies of the entire record which was before the third respondent at the

time when he took the decision impugned. I had asked Mr Mukherjee to ensure that a competent officer from the office of the third respondent

appeared on the date fixed with the original records.

Today unfortunately neither has any officer appeared nor is Mr Mukherjee in any position to file any opposition. He frankly, candidly and finally

submits that no officer from the department of the third respondent was available despite his best efforts.

Time and again this court has lamented the fact that nowadays the learned advocates for the State are behaving like lowliest staff of the executive.Â

If it had been the political executive to whom they were rendering this slavish allegiance, I could have understood; it is a pity that they however are

treating themselves as lackeys of even the group D staff and lower division clerks who happen to be the employees of the State Government. At

one point of time we had learnt that unlike masons at a construction site a senior counsel is not expected to be present all the time. We had been

told that the arrival of a senior counsel was an advent. Now unfortunately even senior counsel of the level of Additional Government Pleaders who

are designated seniors have to wait on the convenience of staff from the office of the Director of Madrasha.

However, sitting in the writ court while attempting to do justice to parties it is not part of my duties to inject a vertebral column in the collapsible spines

of the modern inheritors of the position which is the last bulwark of democracy â€" I mean to say that I cannot artificially create self-respect in

learned advocates for the State who appear to have none. Therefore, I must give effect to the fourth paragraph of my order dated June 26, 2018

and draw adverse inference, had the record been produced then the stands of State of West Bengal and the third respondent would have falsified. I

therefore, take up the matter on merits as directed and hold that there was no material on record before the third respondent to pass an order dated

February 21, 2018. The order, therefore, was based on no material on record and is therefore perverse within the meaning of law. A perverse

order does not satisfy the Wednesbury principles of unreasonableness and is thus not a speaking order. Therefore, it grossly violates the basic

principles of natural justice and so contravenes Article 14 of the Constitution. As such the decision is a nullity and is set aside on that basis.

I would have remitted the matter back to the third respondent for fresh consideration, except that I cannot expect that a respondent whose habitual

answers to the representation made by the petitioner has been one of rejection on one ground or the other, can be expected to do justice to the cause

of the petitioner. If there had been any scope to hold that the authorities can be capable of institutional bias, I would have done so. Unfortunately,

I cannot create a category of bias not known the law and therefore can only hold that this a species of administrative bias whereby once an order has

been passed by a particular authority, he continues to reiterate it regardless of the facts. In a lighter vein I could have called it a practical

demonstration of Newton’s First Law of Motion, had it not been for the fact that the respondents authorities in this case only move when

compelled to do so by an external force such as the judiciary and such motion, unfortunately is only from the molar to the molecular. In other words,

the authority moves only to stay in the same place.

Accordingly, the representation of the writ petitioners and their grievances shall be dealt with by the Secretary, Minority Affairs and Madrasah

Education, Nabanna as a special reference of this court without being influenced by anything decided by the third respondent and without considering

anything apart from the records of the case relating to the approval of the writ petitioners which was contemporaneous at the time when the district

level inspection team visited the Madrasahs in question and also the records relating to the attendance of the writ petitioners from the Madrasahs and

such other documents as may be produced by the writ petitioners. The exercise of consideration and disposal must be completed within a period of

fourteen days from the date of communication of this order by the learned advocate for the petitioners on the said secretary through whom the first

respondent has been arrayed. Thereafter the reasoned decision shall be communicated to the writ petitioners within a period of seven days from the

date of taking the decision. The decision shall naturally be in accordance with law and shall be passed after giving the petitioners adequate

opportunity of hearing. It shall not be an objection that the appropriate authority ought to have been the third respondent. Logical conclusion shall

be given to the decision of the said secretary by all concerned within a further period of one month from the date of communication of such decision to

the writ petitioners.

The writ petition is accordingly allowed. Since I have already castigated learned advocates for the State quite enough, there shall be no order as to

costs.

The Chief Secretary of the Government of West Bengal and the Secretary, Department of Minority Affairs and Madrasah Education are requested to

take disciplinary steps against the officers, including the Director of Madrasah, through the appropriate directorate to ensure that advocates of this

court are not to put into the position of being supplicants for getting orders complied with. Compliance of this order and drawing up all disciplinary

proceedings against the third respondent, his concerned officer who refused to respond to officers of the court communicating that the persons of such

officers was required by the court, shall be made in this disposed of petition only for the sake of recording compliance.  Let a copy of the order be

communicated to the Chief Secretary, learned Advocate-general and also the Secretary, Ministry of Law to the Government of West Bengal.

Certified website copy of this order, if applied for, shall be given to the parties.