Commission & Anr vs Champa Rani Paul & Ors
2021 Latest Caselaw 1882 Cal

       11.03.
g.b.   2021                        MAT 164 of 2021
       Ct. No.12
52                                       With
                                  IA No: CAN/1/2021

                        The West Bengal Madrasah Service
                   Commission & Anr.
                                  Vs
                       Champa Rani Paul & Ors.

                   Mr. Prosenjit Mukherjee
                   Mr. Nirmalya Kr. Das
                   Ms. Madhurima Sarkar
                                 .......For the Appellants
                   Mr. Kamalesh Bhattacharya
                   Md. Khairul Alam
                            .....For the Respondents

Mr. Shamimul Bari .....For the State

By consent of the parties the appeal and the

application are taken up for consideration and

disposed of.

The appeal is arising out of an order dated 22 nd

January, 2021 in a writ petition filed one Champa

Rani Paul challenging an order dated 27 th February,

2019 passed by the respondent no.4, the West Bengal

Board of Madrasah Education.

Mr. Prosenjit Mukherjee, learned counsel

appearing on behalf of the appellant has submitted

that the learned Single Judge has committed an error

in relying upon the phrase "must have passed a

language (relevant to the medium) course of at least

one year's duration from a University or Institution"

as an additional essential qualification of candidate

under the West Bengal Madrasah Service Commission

Recruitment (Selection & Recommendation of Persons

for Appointment and Transfer to the Post of Teacher

and non-teaching Staff) Rules, 2010 and thereby

disregarding the other portion of the rule and similar

rule allowing the writ petition by holding that one

year's course pursued by the writ petitioner in

Bengali from West Bengal Rabindra Mukta Sansad is

valid.

The contention of the appellant is that unless a

certificate is issued by the said Sansad in favour of

the writ petitioner after successful completion of the

course under the Sansad, the writ petitioner is not

entitled to rely upon any certificate, issued by the

Sansad upon completion of one year's course in the

Bengali language. In other words, it is submitted that

the writ petitioner in order to become eligible has to

pass Madhyamik on class X standard with Bengali as

a compulsory subject, as she has applied for

appointment as an Assistant Teacher in Science

Group (Bengali Medium) and a certificate obtained

upon such successful completion can be treated as

an additional essential qualification.

Since it appears to be the main challenge to the

impugned order and the fate of the appeal is

dependant on the acceptance or rejection of this

argument, the appeal is heard on this point only.

The learned Single Judge has very meticulously

summarized the facts in the judgment. For the

purpose of the present appeal and to decide the issue

that is now being raised before us, we may only refer

to such facts that are relevant.

The writ petitioner has passed the Pre-Board

examination, conducted by the Sambnagiya Purba

Madhyamik Pariksha of Secondary Education in the

year 1982, i.e. School Leaving Examination (VIII), the

Class-IX Examination in the year 1983 from Kamala

Nehru Ucchatara Madhyamik Examination in the

year 1984, and the old Higher Secondary School

Certificate Examination, 1985 (XI), conducted by

Madhya Pradesh Board of Secondary Education (in

short, the said M. P. Board). Thereafter, the

petitioner obtained her B. Ed. Degree, graduate

degree and the post-graduate degree. In the midst

thereof, upon being successful in a selection process,

the petitioner got appointment to the post of para-

teacher in Bio-Science in Nashipur High Madrasah

(H. S.) in the year 2005. Thereafter, the petitioner

pursued the Bengali language course in West Bengal

Rabindra Mukta Sansad (in short, the said Sandad)

and completed the same in the year 2008. In the year

2014, West Bengal Madrasah Service Commission (in

short, said commission) initiated the 6 th State Level

Selection Test for Assistant/U.G. teachers in

Madrasahs (in short, 6th SLST). The petitioner applied

for participation in the said SLST on 14 th February,

2014 for the post of an assistant teacher in science

group (Bengali medium) under general category.

Thereafter due to exclusion of the petitioner from the

merit list, various proceedings were initiated by the

writ petitioner and ultimately in the second writ

petition being W. P. No. 30 (W) of 2019 an order was

passed on 24th January, 2019 by the learned Single

Judge, whereby the respondent no.4 ( The Chairman

of the West Bengal Madrasah Service Commission)

was directed to pass a reasoned order after giving an

opportunity of hearing to the petitioner on the issue

as to whether the writ petitioner has qualified the first

secondary level examination or school leaving

examination. The direction of the learned Single

Judge dated 24th January, 2019 is reproduced below:

"However, since I find that an

application/representation is pending for decision

before the Chairman, West Bengal Madrasah Service

Commission, the said authority is directed to consider

and dispose of the representation of the petitioner

dated November 27, 2018 within a period of four

weeks from the date of communication of this order

by passing a reasoned order after giving an

opportunity of hearing to the petitioner and if

required, shall call for an information from the Board

of Secondary Education, Madhya Pradesh to clarify

the position as to whether the petitioner had qualified

the first secondary level examination or school leaving

examination. It is submitted by the respondent

Commission that the Madhya Pradesh Board is

recognized. As such, if the petitioner has passed the

first secondary level examination or school leaving

examination conducted by that Board, the point

regarding not having passed the Madhyamik or

equivalent Examination, cannot be held against the

petitioner."

The Chairman of the Madrasah Commission

rejected the said representation, inter alia on the

ground that the writ petitioner did not fulfil the

eligibility criteria of qualification for appearing in the

said SLST. The basis for the said finding appears to

be that the candidate shall have to pass Class-X, XI

and graduation from recognized Board of University,

which the writ petitioner did not pass. It appears that

the respondent no.4 has overlooked material

evidence, and by reason thereof has arrived at a

wrong conclusion and thereby the said order is

perverse and rightly set aside by the learned Single

Judge.

To review the facts in the right perspective, prior

to 1985 the said M. P. Board used to conduct only

Higher Secondary Class XI examination. It is only

after 1985, the 10+2 system was introduced vide

notification dated 16th July, 1986, as would be explicit

from the documents issued on behalf of the said M. P.

Board, as annexed at pages 14 to 17 of the affidavit-

in- reply, as filed before the learned Single Judge.

The candidates, who had pursued and passed the old

H. S. course were eligible to participate in the 6 th

RLST. In the application itself there exists a column

no.21 which was filed up by the petitioner declaring

that she had passed the old H. S. Examination 1985.

Furthermore, in paragraph 2(b) of the affidavit-in-

opposition, it has been admitted that the petitioner

"has completed Secondary and Higher Secondary

Examination from M. P. Board on Secondary

Education in regular course". However, when the

petitioner was in Class X standard, or Class XI

standard, she had no Bengali subject. Subsequently

she pursued the Bengali language course and

completed the same in the year 2008 prior to

initiation of 6th RLST.

The argument of Mr. Mukherjee is based on Rule

4 of Rules 2010. The said Rule is reproduced below:

"4. Additional essential qualification of candidate.

- A candidate willing to be selected as a Teacher or

Non-teaching Staff in any Madrasah, having Bengali

or English or Hindi or Nepali or Oriya or Santhali or

Telegu or Urdu as the medium of instruction, must

have Bengali or English or Hindi or Nepali or Oriya or

Santhali or Telegu or Urdu, as the case may be, as

first or second or third language at any of the

Secondary or Higher Secondary or Graduation level -

at Secondary level of the West Bengal Board of

Secondary Education or West Bengal Board of

Madrasah Education or equivalent or at Higher

Secondary level of the West Bengal Council of Higher

Secondary Education or equivalent or at Fazil level of

the West Bengal Board of Madrasah Education or

equivalent or at any subsequent higher level - of

education in that language paper or must have

passed a language (relevant to the medium) course of

at least one year's duration from a University or

Institute." (emphasis supplied).

The submission of Mr. Mukherjee is that the writ

petitioner did not fulfil Rule 4 of the Rules 2010, since

the writ petitioner had completed the Bengali

language course of one year's duration from the said

Sansad. It would be evident from the application

form, that there was no column in the application

form where she can incorporate that of one year's

duration writ petitioner already did, although Rule 4

provides for it.

The interpretation given by Mr. Mukherjee is that

the brochure of the West Bengal Rabindra Mukta

Sansad, which is referred to as Sansad earlier,

obliges a candidate to obtain a certificate only after

completing courses in seven compulsory subjects

which, inter alia, in Bengali language, appears to be

misplaced as the appellant has already completed his

Pre-Board and Higher Secondary Examination by the

time he applied for one year's course in the Open

University.

We are concerned as to whether the certificate

obtained by the writ petitioner from the Sansad after

successful completion of one year in Bengali could be

considered as an additional essential qualification as

an eligibility criteria for the post of Assistant Teacher

in question. In the instant case it cannot be denied

that Sansad is a recognized institute to grant

certificate after successful completion of course in

language group, which the writ petitioner had

successfully completed and produced such certificate

as an additional qualification both before the

Commission at the time of his selection and also

before the Chairman of Commission at the time of

hearing.

Mr. Mukherjee has relied on a decision of the

Hon'ble Supreme Court passed on 24 th July, 2019 in

Civil Appeal No. 5824 of 2019 (Arising out of SLP ©

No. 30035 of 2016) (West Bengal Central School

Service Commission & Ors. Vs. Abdul Halim & Ors.)

to argue that unless a certificate is issued by the

Sansad in favour of the writ petitioner upon

successful completion of Madhyamik Examination,

which include the Bengali as a compulsory subject,

the certificate relied upon by the writ petitioner, as an

additional qualification, cannot be accepted.

Firstly, the said judgement is not applicable in the

facts and circumstances of this case. The Hon'ble

Supreme Court was not invited to interpret Rule 4 of

the Rules 2010. The Rules that came up for

consideration does not contain similar provision.

Moreover, the question of the writ petitioner

completing Madhyamik Examination in the year 2008

does not arise.

Rule 4 contemplates a situation where a

candidate could not for any reason get the

opportunity to learn the vernacular language and in

order to cover up such deficiencies can enroll him in a

vernacular course of at least one year's duration from

University or Institute and upon successful

completion of such course, the said certificate or

degree shall be considered as an essential

qualification for the said post. The expression used in

Rule 4 is that he has to pass the examination in that

particular vernacular language. It can be independent

of a certificate that a candidate can obtain when he

passed class X or class XII examination in subjects,

one of which should be compulsorily the candidate's

mother tongue or vernacular. Otherwise, the phrase

"must have passed a language (relevant to the

medium) course of at least one year's duration from a

University or Institution" becomes meaningless. The

said phrase was incorporated only to benefit such

candidates who may not have the opportunity to

study the relevant language at the Secondary Level or

at Higher Secondary Level.

Mr. Mukherjee, learned counsel has relied upon

a Government Circular dated 3rd August, 2005 which

shows that the certificate awarded by the West Bengal

Rabindra Mukta Sansad cannot be considered to be

equivalent unless such successful candidates have

cleared the compulsory subjects which, inter alia,

may include Bengali as one of the subjects in the

examination similar to those in the Madhyamik

Examination under West Bengal Board of Secondary

Education. The said circular is not in conflict with

Rule 4, as mentioned above so as to deny

candidature. The purpose and objects of the said

Government circular is different. The said circular

was issued for the purpose of considering equivalent

certificates to degrees awarded by different

organizations. In the instant case, it is an additional

essential qualification and all that a candidate is

required to obtain is a certificate of successful

completion of the language course which should not

be less than one year's duration from a recognize

University or Institution. It is not disputed that the

West Bengal Council of Rabindra Open Schooling is

not a recognized Institute or University. The brochure

speaks for itself. The absence of the said phrase

"must have passed a language (relevant to the

medium) course of at least one year's duration from a

University or Institution" has distinguished it from

any other Rules pertaining to the appointment of post

of teacher. It is also not disputed that Nashipur High

Madrasah (H.S.) in which the writ petitioner is

working as a para-teacher for the last 15 years is a

Bengali medium Madrasah. There is nothing on

record to show that the one year's course pursued by

the writ petitioner is not recognized.

In view thereof the appeal and the application

fail. However, during pendency of the appeal, the

order of the learned Single Judge was not

implemented. We, accordingly, extend the time to

recommend the name of the writ petitioner for

appointment to the post of Assistant Teacher in

Science Group (Bengali medium) under General

Category in any Madrasah positively within a period

of ten days from date.

With the above modifications, the appeal and the

application are disposed of.

(Soumen Sen, J.)

(Subhasis Dasgupta, J.)