Md. Ajijur Rahaman Rahimi vs State of West Bengal & Ors.

This writ petition is directed against serial rejections of the writ petitioner’s prayer for being considered for transfer to a vacancy in a Madrasah

other than where he has been serving. Admittedly, the writ petitioner initially applied for transfer from his parent Madrasah being Pabdara H.U.S.H.

High Madrasah. This application was made on March 14, 2011. He wanted that he be transferred to “Diamond Harbour High Madrasah or under

the Diamond Harbour Sub-Division any one High Madrasahâ€​.

It was the grievance of the writ petitioner that such transfer was not granted to him. Several litigations ensued. In each of them he got orders for

being considered for the vacancy. During the course of several litigations, mentioned in the writ petition, a vacancy, which had arisen in respect of the

respondent no.9 was reported before the Madrasah Service Commission on December 20, 2012.

According to Rule 9 of the West Bengal Madrasah Service Commission Recruitment (Selection and Recommendation of Persons for Appointment

and Transfer to the Post of Teacher and Non-Teaching Staff) Rules, 2010 vacancies are to be reported in the following manner:

“9. Vacancy(ies)-

(1) Report of vacancies â€" The District Inspector of Schools (SE) or any other authorized officer as may be entrusted by the Commission in writing,

shall prepare a report regarding the number of vacancies in approved/sanctioned posts which exist(s) or is/are expected to occur within the 1st day of

January next ensuing, and shall furnish the same to the Commission at least 15 days before the date of publication of the advertisement.

(2) Compilation of vacancies â€" The Commission shall, on receipt of the report under Subrule (1), compile and maintain computerized data on

vacancies, district-wise & Subject/post, medium, category and gender-wise with the help of District Inspector of Schools (SE) or any other officer

mentioned in sub-rule (1), if necessary, before the date of publication of the advertisement inviting applications.†Thereafter, it is to be advertised in

terms of Rule 10. So far as Assistant Teachers are concerned under Rule 10(3) (b), the following has been provided:

Advertisement â€

(3) * * * *

(b) Assistant Teacher â€" Publish a provisions (tentative) vacancy list (medium/post/subject/category /gender-wise) at the time of inviting application

for State/Region Level Selection Test by declaring the tentative vacancies that have been reported and a final vacancy list at the time of publication of

the result of the written examination declaring the actual vacancies that have occurred/been reported or will occur within the stipulated periodâ€​.

Since the writ petitioner had applied on March 14, 2012 in respect of advertisements which had been made on January 26, 2011 he was entitled only to

be considered for the vacancies which had arisen until January 1, 2012 in terms of the above Rules. However, when for various reasons he was

unsuccessful in getting the desired order of transfer for the vacancies which had arisen till such date he sought consideration for the vacancy which

had arisen after January 1, 2012 being that which had reported to have arisen before the Commission on December 20, 2012.

If we were concerned only with the advertisement date November 26, 2011 this would have been the end of it and the writ petitioner would not have

been entitled in terms of Rule 33 read with Rule 9 to any order, but a dismissal of the writ petition. I say this because recruitment to the post of a

public employer such as a Madrasah for which there are statutory rules cannot be obtained de hors the Rules â€" and any mode of appointment he

hors the Rules cannot be created by the Court.

I am fortified by the decisions of the Hon’ble Apex Court in the case of State of Haryana vs. Uma Devi reported in (2006) 4 SCC page 1.

Naturally, orders directing consideration of representations for doing that which was not permitted under the statutory rules would neither bind a

coordinate Bench like me nor have any effect in law. The petitioner may make a representation seeking that blood be squeezed out of stone and the

Court may ask that it be considered, but the authority is not bound to pass an order which is contrary to law on the basis of such a direction.

In the instant case, however, there is one redeeming circumstance which has saved the writ petition from being dismissed with costs. That has come

unfortunately from the Affidavit-in-opposition affirmed by no less a person that the Secretary of the West Bengal Madrasah Service Commission

which has been arrayed as 4th respondent, but who described himself as the District Inspector of Schools being the 5th respondent, but which is

alleged to have been made on behalf of the respondent no.4 at paragraph 2 of such affidavit. This affidavit affirmed on August 5, 2015 discloses a

second notification of vacancy by way of an advertisement which states as follows:

THE WEST BENGAL MADRASAH SERVICE COMMISSION

Bikash Bhavan, 2nd Floor, East Block, Salt Lake, Kolkata-700 091 NOTICEMemo No.MSC/ADVT-01/13 DATE:-27.02.2013

It is hereby notified for general information that full time approved teacher in permanent post of recognized non-Govt. aided Madrasah may apply for

i) General Transfer and ii) Mutual Transfer in the prescribed format under Rules 33 and 34 of the West Bengal Madrasah Service Commission

Recruitment Rules, 2010. Detailed information will be available in the Commission’s website www.wbmsc.com from 04.03.2013. The last date of

submission of the application is 31st May 2013 for General Transfer. In case of Mutual Transfer the application are to be received throughout the year

observing all formalities. The teacher-applicant, who once applied for transfer earlier, need not apply further. Secretary The West Bengal Madrasah

Service Commission†This is at page 16 of the Affidavit-in-opposition being Annexures R/3. In terms of Rules 35 of the said Rules of 2010 which

states as follows:

“35. Carry forward of vacancy: The vacancies which are not filled up for unsuitability of candidaies or for any other reasons, as the Commission

may by order mention, shall be carried forward and included with the vacancies of the next year: Provided that if the Commission considers so to do; it

may re-advertise those vacancies to be filled up in accordance with the provisions of these rulesâ€​.

the above advertisement allows the writ petitioner to be considered for the vacancy which arose on December 20, 2012 without making a further

application. By reason of this advertisement, the posts to which the petitioner can seek transfer are not restricted merely to the vacancy which arose

and/or were reported till January 1, 2012, but even the vacancies which were shown to be existing till January 1, 2014. Therefore, in all its wisdom the

respondent Madrasah Service Commission has itself admitted the eligibility of the petitioner to be considered for the non-joining vacancy and the

respondent no.9 after committing legal suicide on oath by its own admission, it is not open to the respondent no.4 to sustain or rely upon anything

contained in the order dated April 23, 2013 which has been impugned in the writ petition or in fact any of the earlier rejections which have been set

aside by coordinate Benches of this Court.

Accordingly, I have no alternative, but to quash the order dated April 23, 2013 at Annexure P/6 communicated by Memo dated April 29, 2014 by the

4th respondent. I do so for the reasons aforesaid as also because in view of the notification at page 16 in the Affidavit-in-opposition the ground for

rejecting the writ petitioner’s representation read with the application for transfer has ceased to exist. In such view of the matter, I would have

normally directed the respondent authorities to consider the name of the petitioner in respect of the non-joining vacancy at the respondent no.9 by way

of transfer in accordance with law except that I am told that the question of transfer is also pending before the Hon’ble Apex Court in a pending

Civil Appeal for which reason the question of transfer in respect of vacancies are also pending consideration before the Hon’ble Supreme Court in

Civil Appeals and so no counselling is being held for those decisions.

Therefore, I allow the writ petition as aforesaid, but with only direction super-added that as and when the counselling commences the writ

petitioner’s application for transfer to the non-joining vacancy at Netra High Madrasah or any other High Madrasahs where vacancy have arisen

till January 1, 2014 shall be considered and if he found eligible in accordance with law such transfer shall be given to him. The writ petition is thus,

allowed as above. There will be no order as to costs.