Sutapa Sahoo Sk. Sutapa Yasmin vs State Of West Bengal

In 2013 by an advertisement dated February 27, 2013 the Madrasah Service Commission advertised for a full time approved teacher in a permanent

post of non-Government aided Madrasah for general transfer and mutual transfer in terms of Rules 33 and 34 of the West Bengal Madrasah Service

Commission Recruitment Rule, 2010. The Madrasah Service Commission exercised this jurisdiction in terms of Section 8 of the West Bengal

Madrasah Service Commission Act, 2008. The writ petitioner applied for the said transfer in prescribed form in terms of Rule 33. However, on the

contention that the Commission did not hold any counselling for general transfer the writ petitioner filed a writ petition being W.P.

26644(W) of 2015 with the prayer for a transfer to any Madrasah of her choice. This was disposed of by a co-ordinate Bench by an order dated

October 15, 2015 with the direction to consider and decide the said application in accordance with law. The present writ petitioner carried the order

dated October 15, 2015 in appeal to the Hon’ble Division Bench. The Hon’ble Division Bench was pleased to dispose of the said appeal being

MAT No. 233/2016 by an order dated March 7, 2016 which is effectively a similar order like the single Bench of considering and disposing of the

application for general transfer by a reasoned order. The writ petitioner was given an opportunity of being heard in terms of the said order and the

relevant portion of the reasoned order passed by the Chairman of the West Bengal Madrasah Service Commission is extracted below:-

“…Before considering her matter, I have perused the relevant records of the Commission wherefrom it appears that her name was listed at Sl.

No. 22 in Geography (H/PG) Subject. From the records, it also appears that the Division Bench of the Hon’ble High Court at Calcutta in terms of

an order dated 9th December, 2015 had been pleased to declare the West Bengal Madrasah Service Commission Act, 2008 as unconstitutional. Apart

from that two Special Leave Petitions bearing Nos. SLP (C) 6661 of 2016 and 11877 of 2016 were also filed before the Hon’ble Apex Court of

India by some Teachers and empanelled candidates challenging the said order dated 09.12.2015 and the Hon’ble Apex Court of India in terms of

an order dated 14.03.2016 was pleased to stay of operation of the order dated 9.12.2015 during pendency of the said Special Leave Petitions.

Now, upon perusal of the relevant records and the solemn order dated 07.03.2016 passed by Their Lordships the Hon’ble Justice Soumitra Pal

and the Hon’ble Justice Mir Dara Sheko in the said appeal bearing MAT No. 233 of 2016 as stated above, I consider the matter in accordance

with law and decided that the application for general transfer of said Sutapa Sahoo will be taken into consideration at the time of counselling of all

candidates and that too after final verdict of the said two Special Leave Petitions now pending before the Hon’ble Apex Court of India….â€​

Therefore, it is not that the Commission refused to call the petitioner for counselling. It merely postponed the counselling to a time when the

Hon’ble Supreme Court would decide the Special Leave Petitions being SLP (C) 6661 of 2016 and 11877 of 2016 as stated above and expressed

its inability to finally decide the question of transfer of the petitioner because of the interim order passed by the Hon’ble Supreme Court passed in

connection with the above two Special Leave petitions. Against this reasoned order dated June 9, 2016 and communicated on June 17, 2016 the writ

petitioner moved a writ petition being W.P. No. 21983(W) of 2016 and in the said writ petition a co-ordinate Bench of this Court by an order dated

September 23, 2016 was pleased to record as follows:-

“It is submitted by the learned counsel appearing for the Madrasah Service Commission that the Division Bench of this Court in AST 192 of 2014

together with other similar Mandamus appeals passed an order on 9th December, 2015, whereby the Division Bench after setting aside the Madrasah

Service Commission Act, 2008 held that since the Act of 2008, according to the Division Bench is nothing but violation of the fundamental rights

guaranteed by the Constitution to the minority institutions, it is exclusively left to the concerned Madrasahs either to accept contention of such

teachers, who are already in service and permit them to continue in service and/or to provide appointment to the candidates who are empanelled by

the Commission awaiting such appointment.

After the said order of the Division Bench a Special Leave Petition was moved by the Supreme Court and an interim order was passed initially on

10th May, 2016, which was subsequently extended by an order dated 7th September, 2016, whereby the Hon’ble Apex Court extended the interim

order subject to the condition that the teachers and employees may continue even during the pendency of the appeal before the Apex Court.

Moreover, it appears from the writ petition that the Division Bench in this matter passed an order on 7th March, 2016 and pursuant to the said order

the Chairman Madrasah Service Commission passed the impugned order.

Rule 33 of West Bengal Madrasah Service Commission Recruitment (Selection and Recommendation of Person for Appointment of person to the

Post of Teacher and Non-teaching Staff) Rules 2010, gives a guidelines to deal with the application filed by the teacher for transfer. Sub-rule 2 of the

said Rule 33 lays down the procedure for such transfer. It says that teacher/non-teaching staff seeking transfer shall have to apply in a prescribed

format (with an advance copy direct) to the District Inspector of Schools (SE) in case of transfer within the District or to the Director of Madrasah

Education, West Bengal in ase of transfer from one district to another, through proper channel with necessary document(s).

The District Inspector of Schools (SE) shall forward the same comment/views to the Commission to the Commission direct in case of transfer within

the district or to the Director of Madrasah Education, W.B. in case of transfer within the district. Thereafter the Commission shall recommend the

name of the candidate to the vacancy applied for, if suitable or to a suitable available vacancy in order of preference of the candidate after counseling.

In the reasoned order it has been mentioned by the authority that the petitioner has been placed in the panel under serial No.22 in Geography (H/PG)

Subject. The authority has expressed its inability to take up the matter of the petitioner for counseling because of the pendency of the Special Leave

Petition before the Hon’ble Apex Court. Therefore it has been observed that because of pendency of the matter in the Hon’ble Supreme

Court and the order passed from time to time the Madrasah Service Commission cannot be in a position to consider the petitioner’s counseling as

per the aforesaid rules.

 However, this submission cannot be accepted and if the Commission is not functioning then the said Commission could not have passed the

impugned order on 17th June, 2016 when the initial order was passed by the Hon’ble Supreme Court on 10th May, 2016. In such circumstances, if

this Court holds that the order impugned has not been correctly passed since the authority has exercised its jurisdiction, it could not have by-pass the

issue relating to the petitioner’s application seeking transfer and the consequential counseling, which the authority is under obligation to take as per

the aforesaid Rules, the impugned order cannot be sustained and the same is hereby set aside. The west Bengal Madrasah Service Commission is

directed to reconsider the matter once again taking in to consideration of the aforesaid rules. Such consideration is to be made within a period of six

weeks from the date of communication of this order.â€​

Once this order was passed, the effect is that a co-ordinate Bench has held that the pendency of the Special Leave Petitions do not take away the

right of the Commission to function under Rule 33 of the Rules. This order was not appealed from by the State of West Bengal or the Madrasah

Service Commission and, therefore, it became final inter-parties. Therefore, had there been no other development the writ petitioner would have been

justified to claim that the counselling be held for vacancies under general transfer. Pursuant to the aforesaid order dated September 23, 2016, the

Secretary of the West Bengal Madrasah Service Commission passed a so-called reasoned order dated January 4, 2017 which was communicated on

January 21, 2017 virtually repeating his earlier order which had been set aside and did not even refer to the Rules which the co-ordinate Bench had

expressly directed the Commission to consider.

This appears to be executive obstinacy. Once this Court had directed the Secretary of the West Bengal Madrasah Service Commission/Madrasah

Service Commission to reconsider the matter, taking into consideration the aforesaid rules (Rule 33) the Commission could not have sat in appeal over

the order of the Court. The said order, therefore, was in contravention, if not defiance of the order dated September 23, 2016 and is thus set aside and

quashed. This means that the order dated September 23, 2016 is yet to be complied with by the Commission. The only other thing that exercised my

mind is the fact that on May 17, 2018, the Hon’ble Supreme Court was pleased to modify its interim order in the manner mentioned below:-

In view of Notification dated 3.3.2016, we order that in caseincumbents, who are working, are possessing the qualification, as prescribed by the

State Government in its aforesaid Notification, the payment shall be made to them and they shall not be deprived of their dues. Let this order be

complied with respect to the payment of salaries also within a period of two months from today, as assured in all fairness by Mr. Mohan Parasaran

appearing for the State of West Bengal. Even if the teachers had not been paid for the period prior to 3.3.2016, they shall be paid their dues for the

period they have served. It is made clear that all the incumbents shall be paid their dues in terms of this order whether they have approached this

Court or not and this order to be applied to all similarly situated incumbents.

As there are large number of vacancies existing in the variousMadrasahs, we permit the declaration of the result for the recruitment process of the

year 2014. However, no further recruitment process shall be undertaken. It is also stated by the State Government ad Commission that only those

Madrasahs who want to take the incumbents from the list of 2014 process, the Commission shall sponsor the names only to such Madrasahs, not to

others. The process shall be done strictly and in accordance with the merit list of the candidates and the appointment so made, shall be subject to the

final outcome of the case.

It was stated that there are certain incumbents, who wereselected in the recruitment process of 2013 also, are also awaiting their appointments. Let

the appointment be made in the institutions which are willing to take such teachers, however, strictly in order of merit and that shall be subject to the

final outcome of these matters.

No equity shall be claimed on the basis of the appointment somade on stop-gap arrangement. Let such conditions be also mentioned in the order and

that would be subject to the final outcome of these matters, and that may also be specifically incorporated in the order.â€​

A copy of the order is retained on record. Since the Hon’ble Supreme court in its wisdom has only allowed recommendations by the Madrasah

Service Commission for regular recruitment to be given effect to, it appears that the process of counselling which is now going on and which is said to

be the reason for the urgency in moving this writ petition is pursuant to Rule 25 and not Rule 33. In such view of the matter until the respondent

complies with the order dated September 23, 2016 and decides on the basis of rule 33, whether or not counselling should be held for general transfer

as applied for by the writ petitioner, the Madrasah Service Commission shall not recommend any person for the vacancy existing in Elahia High

Madrasah, Vill-Elahganj, P.O.-Harishpur, Paschim Medinipur which is one of the vacancies for which the writ petitioner had expressed her

preference under Rule 33 (2) (e) and (f) of the aforesaid Rules. Such post shall be kept vacant till the disposal of the Special Leave Petitions before

the Hon’ble Supreme Court or the decision of the Commission whichever is earlier.

I make it clear that I am at one with the learned advocate for the State of West Bengal and the Madrasah Service Commission that because of an

order dated May 17, 2018 perhaps nothing but general recruitment can be done without creating any equities which means that counselling under rule

25 is permissible to the limited extent as directed by the Hon’ble Supreme Court in paragraphs ‘5’ and ‘6’ of the order extracted

above. However, this does not mean that the Commission cannot pass an order in accordance with law with reasons after referring to and considering

Rule 33.

The writ petition is accordingly disposed of as aforesaid. Since I have not called for any affidavits, the allegations contained in the writ petition are not

admitted. Learned counsel for the Commission is directed to communicate this order within 30 minutes to the Commission and if necessary by mobile

phone and to make it clear that the above vacancy specified by me above should not be filled. I make it clear that since the admitted fact is that in

order of preference the petitioner is at serial No. 22, nothing in this order shall be construed to be a mandate to give him any further preference

beyond his serial number. There shall be no order as to costs.