Calcutta High Court (Appellete Side)
State Of West Bengal vs Somnath Ghosh & Ors on 19 October, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
and
The Hon'ble Justice Uday Kumar
MAT 586 of 2022
with
I.A No. CAN 1 of 2022
State of West Bengal
Vs.
Somnath Ghosh & Ors.
With
MAT 773 of 2022
With
I.A No. CAN 3 of 2022
State of West Bengal
Vs.
Aparna Mandal Saha
For the State/Appellant : Mr. S.N. Mookherji, Ld. A.G
in both the appeals Mr. Biswabrata Basu Mallick, Adv.
Mr. Sanjib Das, Adv.
For the Respondent :Mr. Bikash Ranjan Bhattacharyya, Sr. Adv
in MAT 586 of 2022 Mr. Ujjay Ray, Adv.
Mr. Arpa Chakraborty, Adv.
For the Madrasah :Mr. Prosenjit Mukherjee, Adv.
Service Commission Ms. Madhurima Sarkar, Adv.
in both the appeals
For the Respondent no. 1/ : Mr. Subhrangsu Panda
Writ Petitioner in
MAT 773 of 2022
2
Hearing Concluded On : 17th October, 2023
Judgment On : 19th October, 2023
Soumen Sen, J.
1. The appeal is arising out of an order dated 22nd February,2022
in which the learned Single Judge directed the Principal Secretary to the
School Education Department to give an opportunity of hearing to the
Madrasha Service Commission and the petitioners in order to consider the
right of the petitioners as teachers who were appointed prior to the
introduction of the west Bengal Madrasha Service Commission Act in 2008
and pass a reasoned order keeping in mind that the teachers of the
institutions, which were given special rights to appoint their own teachers
and not by the School Service Commission (like Ramkrishna Mission) have
been given the right recently to get the advantage of the General transfer.
2. Although the said order appears to be innocuous but having
regard to the important question raised with regard to the jurisdiction of
the Principal Secretary of School Education Department to consider the
representation for general transfer of teachers recruited prior to coming into
force of the Madrasha Commission Act, it needs to be decided whether after
their service have been transferred to Madrasha Schools their case can be
considered for general transfer under the West Bengal School Service
Commission Act, 1997 (in short '1997 Act'), although they were all recruited
under the School Service Commission Act that, is to say, prior to the
bifurcation.
3. Both the School Education Department and West Bengal Minority
Affairs an Madrasha Education Department are aggrieved by the impugned
order.
4. The appellants are represented by Mr. Advocate General. The
Advocate General has given a brief background of the relevant statute
applicable in the present case.
5. The West Bengal School Service Commission Act, 1997 was
promulgated on 1st April, 1997 with no provision for transfer like Section
10A, 10B and 10C recently introduced and upheld by the Hon'ble Division
Bench of this court.
6. During 2006-07 the writ petitioners were appointed by the
respective managing committee of Madrasha, as assistant teacher in
Madrasha on the recommendation of School Service Commission.
7. Mr. Advocate General has referred to paragraph 2 of the writ
petition where the details of the appointments of the West Bengal have been
mentioned.
8. On 22nd October, 2008 the West Bengal Madrasha School Service
Commission Act, 2008 (in short '2008 Act') was promulgated.
9. The 1997 Act was amended wherein the word "Madrasah" was
excluded from the definition of "school" in Section 2(n) and the words
"Madrasah Teacher" were excluded from the definition of Teacher" in
Section 2(p).
10. Section 8 of the 2008 Act was amended on 9th June, 2010 to
include transfer of teachers/non teaching staff of the Madrasa Service
Commission. 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 has been
promulgated on 12th November, 2010 under Section 18, read with, inter
alia section 8 of the 2008 Act. Rule 33 of the said Rules sets out the
procedure for transfer of Madrasah Teachers.
11. Section 10(B) was inserted in the 1997 Act on 11th July,
2013 w.e.f. 20th January, 2014, thereby introducing general transfer of
teachers in schools. The West Bengal School Service Commission (General
Transfer) Rules, 2013 was promulgated on 3rd October, 2013 under Section
17, read with Section 10(B) of the 1997 Act (2013). The West Bengal School
Service Commission (General Transfer, Transfer on Special Grounds and
Reallocation) Rules, 2015 was promulgated on 27th February, 2015 in
supersession of the 2013 Rules. On 28th June, 2021 the Utsashree online
transfer portal was introduced, to give an opportunity to teachers in
schools to apply for transfer to any school in the State of their choice.
12. A writ petition bearing WPA No. 1202 of 2022 was filed by
various teachers appointed to Madrasahs as per recommendation of the
West Bengal School Service Commission between the year 2006-2007,
seeking the right to apply for transfers, including from Madrasahs to
Schools, through the Utsashree Portal, and under the 2015 Rules. On 22nd
February, 2023 an order was passed by the Hon'ble Single Bench of this
High Court, in WPA No.1202 of 2022, inter alia, directing the Principal
Secretary, School Education Department to grant hearing to the Petitioners
and pass a reasoned order regarding their plea to be allowed to apply for
transfer through the Utsashree Portal.
13. On 11th April, 2022 the present appeal, being MAT 586 of
2022 was filed by the School Education Department. On 4th November,
2022 a contempt petition, bearing CPAN No 1071 of 2022 was filed by the
petitioner alleging non-compliance with the Impugned Order. On 14th
December, 2022 it was decided that it was necessary to obtain the views of
the MAME Department, regarding obtaining a No-Objection Certificate for
the Petitioner to avail the benefit of the transfer through the Utsashree
Portal.
14. On 15th December, 2022 a communication was made by the
Principal Secretary, School Education Department to the MAME
Department, requesting their views on providing an NOC for the Petitioners
to avail transfer through the Utsashree Portal.
15. MAME department on 21st December, 2022 communicated
their inability to grant a No Objection Certificate. On 23rd December, 2022
Principal Secretary, School Education Department passed an interim order
relying on the proceeding of 14.12.2022 and fixed the date of hearing on
30.12.2022.
16. The Principal Secretary, School Education Department on
10th January, 2023 passed a reasoned order, concluding that the School
Education Department could not accept the prayer of the petitioners, inter
alia, in light of the communication dated 21.12.2022, sent by the MAME
Department. The Hon'ble Division Bench on 18th January, 2023 directed
the Appellant and the Madrasah Service Commission to file reports.
17. 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, 2023 was promulgated
on 19th April, 2023 under Section 18, read with sections 8, 9 and 24 2008
Act, and in supersession of the 2010 Rules.
18. Mr. Advocate General has assailed the impugned order on
the ground that teachers in Madrasahs cannot be treated on the same
footing as teachers of schools, in view of the following reasons:
i) Teachers of Madrasahs are covered by the West Bengal Madrasah
Service Commission Act, 2008, and the West Bengal School Service
Commission Act, 1997 no longer applies to such Madrasah teachers.
ii) The 1997 Act was amended in 2008 with effect from 1st January,
2009, wherein the word "Madrasah" was excluded from the definition of
"school" in Section 2(n) of the 1997 Act and the words "Madrasah Teacher"
were excluded from the definition of "Teacher" in Section 2(p) of the 1997
Act. The 2008 Act was promulgated on 22.8.2008, and subsequent to
coming into effect of the same, teachers in Madrasahs were governed by the
2008 Act.
19. The terms and conditions of service of teachers in Madrasha in
employment before 2008 Act in view of Section 13 of 2008 Act should not be
varied to their disadvantage, however, the said provision although relied
upon by the writ petitioners would be no assistance to them since prior to
the promulgation of the 2008 Act, there was no provision for transfer in the
1997 Act. Accordingly, Madrasah teachers appointed while the 1997 Act still
applied to them, were not covered by any statutory provisions relating to
transfer.
20. The provision for general transfer of teachers in schools was only
introduced on 11th July, 2013 with the insertion of Section 10B with effect
from January 2014. In supersession of the 2013 Rules the West Bengal
School Service Commission (General Transfer, Transfer on Special Grounds
and Reallocation) Rules, 2015 ("2015 Rules") was promulgated on 27
February, 2015. Such provisions/rules were introduced at a time when
Madrashas were excluded from the 1997 Act and Madrasha teachers were
governed solely by the 2008 Act.
21. It is submitted that in any view of the matter the procedures
relating to transfer for Madrasah teachers are governed by Section 8 of the
2008 Act, as amended, read with Rules 29 to 36 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, 2023 (in short "2023 Rules")
22. Mr. Advocate General has submitted that the arguement of the writ
petitioners, that the 2015 Rules ought to be made applicable to Madrasah
teachers since they were made applicable for teachers from another "minority
institution", i.c., Ramkrishna Mission Schools must be rejected. This is so, as
Ramakrishna Mission Schools stand on a different footing from Madrasahs,
as Ramakrishna Mission Schools are still "schools" within the meaning of the
1997 Act.
23. Mr. Advocate General has referred the Government Order No. 351-
SSE/12/ES dated 6th September, 2012 read with the Order No. 840-SE(S)
dated 20th September, 2017 whereby the schools under Ramkrishna Mission,
Belur Math had been exempted from the purview of the 1997 Act in exercise
of power conferred under Section 15A of the said Act subject to certain
conditions mentioned in such orders. By a subsequent Government Order
no. 26-SE/S10M-03/2022 dated 6th January, 2022 the teachers and non-
teaching staff who are working in the schools under Ramkrishna Mission,
Belur Math on the basis of the recommendation of the SSC prior to 6th
September, 2012 shall be eligible to avail the facilities of general transfer in
terms of the Rule 2015 subject to certain conditions. The said Government
Order refers to all the earlier orders where the issue of transfer was
considered. It also refers to the letter of the Ramkrishna Mission, Belur Math
dated 2nd December, 2021 in which the Mission had issued no objection in
favour of those teachers and non-teaching staff working in their schools who
desired to avail the facilities of general transfer and transfer on special
ground. It was on the aforesaid basis the Advocate General has submitted
that the observation of the learned Single judge that the case of the
petitioners are on the similar footing as that of the teachers and non-teaching
staff of the Ramkrishna Mission is erroneous.
24. Mr. Advocate General has referred to Section 2(n) of 1997 Act and
further submits that Madrasha are no longer "schools" within the meaning of
1997 Act.
25. Mr. Advocate General has submitted that the writ petitioners have
given previous instances of Madrasha teachers from being transferred from
Madrasha to schools and accordingly they are entitled to the benefit of 2015
Rules is misplaced.
26. The transfer of Smt. Baishali Shah, was, in fact a case of
deputation, taking into account special circumstances.
27. Two other instances pointed out by the writ petitioners, regarding
Shri Abu Safian Ali Ahmed, and Sri. Sukumar Barman, have no applicability
to the present case, as the two individuals involved were not transferred from
Madrasahs to schools, but were, as apparent from the pleadings of the writ
petitioners, appointed to schools after successfully participating in
examinations conducted by the West Bengal School Service Commission.
28. In any event it is argued that an administrative oversight allowing
the transfer of Madrasha teacher to a school would not create a vested right in
favour of other similarly placed Madrasha teachers in view of the
pronouncement of the law in this regard in Chandigarh Administration and
Ors. vs. Jagjit Singh and Ors.;1995(1) SCC 745 (paragraph 8).
29. It is submitted that the direction upon the Principal Secretary
School Education Department to consider the grievance of the writ petitioner
is erroneous as the School Education Department has no
administrative/executive control or oversight over affairs concerning
Madrasahs.
30. This is so, as the West Bengal Rules of Business, promulgated by
the Governor under Article 166(3) of the Constitution, allocates the business
relating to Madrasah Eduction to the Minorities Affairs and Madrasah
Education Department ("MAME Department"), and not the School Education
Department.
31. Mr. Advocate Genral has relied upon the relevant extract of the
Notification No. 199-HOME(CONS) dated 12th July 2006 read with para XLVI
of the Rules of Business of the Government of West Bengal to show that
administrative control of Madrasha Education was transferred to the
Minorities Affairs and Madrasha Education Department, Government of West
Bengal.
32. It is in such view of the matter it is submitted that the instant
appeal is required to be allowed and the impugned order is required to be set
aside.
33. Mr. Advocate General, however, has clarified that the Principal
Secretary, School Education Department, has complied with the Impugned
Order, by passing a reasoned order dated 10.1 2023, subject to the appeal.
Such compliance with the Impugned Order, pending appeal, would not render
the appeal infructuous as clearly held in Union of India (UOI) and Ors. vs.
Ram Kumar Thakur ; 2009 (1) SCC 122.
34. Per contra, Mr. Bikash Ranjan Bhattacharya, learned Senior
Counsel appearing on behalf of the writ petitioners has submitted that even it
is assumed for the sake of argument that after coming into force of the
Madrasah Service Commission Act 2008 (herein after called the 'MSC Act,
2008) and also after change of department as per Rules of Business,
Government of West Bengal, the writ petitioners' service have been transferred
to a different department; however, the admitted position remains that such
change of Employer has been done without the consent of the Employee
which is impermissible in law. After coming into force of the MSC Act, 2008,
the recruiter in Madrasahs has been changed and before that most of the writ
petitioners were already recruited by West Bengal Regional School Service
Commission (hereinafter called, as 'WBRSSC).
35. Moreover, the writ petitioners were already recruited by West
Bengal Regional School Service Commission (in short WBRSSC) prior to
coming into force of MSC Act, 2008 by which the recruitment process for
Madrasha have been changed. When the said writ petitioners were recruited
by SSC in 2006-2007 there was no process of counselling. The same
necessarily means, unlike the present time, the said writ petitioners were not
given any choices or options to choose any School or Madrasah. Therefore at
that relevant point of time some of the candidates similarly situated with the
said writ petitioners were recommended for school and the present writ
petitioners were abruptly recommended for Madrasahs without any option
being sought from them. However at the time of recommendation, the said
writ petitioners were not prejudiced since they knew the service condition for
the Assistant Teachers in the Schools and Madrasahs are same. Moreover, as
per the Rules prevalent, ie, Rule 18(a) of the West Bengal School Service
Commission (Selection of Persons of Appointment to the Post Of Teachers)
Rules, 2006, (herein after referred to as the SSC Rules, 2007) the said writ
petitioners were barred from appearing in the Regional Level Selection Test
Examination for three successive years for appointment in the same post.
Therefore neither the said writ petitioners had any option to choose a School
over a Madrasah or vice versa, nor they had reasons to apprehend that they
would be barred from accessing any beneficial scheme which would be
applicable to a school teacher in future, nor they had reasons to apprehended
that they would ever be regarded separately in future than a school teacher
nor they had reasons to apprehended that their employer would be changed
without intimation or seeking for any option from them.
36. It is submitted that on an enquiry made by the respondent no.1 in
the office of the SSC, School Education Department and other department
about his eligibility for complying before the SSC though he is a teacher of
Madrasha, the Assistant Secretary to SSC replied him that he was eligible for
applying transfer before the SSC itself. In view thereof the respondent no. 1,
as also few other respondents, namely, Mili Aich and Debojyoti Halder, could
successfully apply for transfer before the SSC through online process
prevalent then. One of the respondents namely Debojyoti Halder appeared in
the eligible candidates' list for transfer published by the SSC in the year 2014.
However, he was not granted transfer since he could not qualify the seniority
criteria mentioned therein.
37. Mr. Bhattacharya has submitted that while dealing with the
constitutionality of Section 10C of the WBSSC Act 1997 which is inserted by
way of amendment in the year 2017, the Hon'ble Division Bench of This
Hon'ble Court in a judgment reported in Rabin Tudu v. State of West
Bengal and Ors.; 2023 SCC Online Cal 2182, accepted the contention of
the Learned Advocate General that though such amendment and insertion of
the said Section 10C of the Act was done in 2017 it would be applicable to all
teachers appointed by the School Service Commission after coming into force
of the Act of 1997, the Hon'ble Bench at Para 86 held, "... We have already
held in the preceding paragraph that Section 10 of the said Act applies within
the limited contour the condition of service of a teacher appointed prior to
coming into force of the Act of 1997 and not in respect of the appointments
made after coming into force of the said Act, the further reason can be
supplied in support of the aforesaid discussion that every employment in a
public service are contractual but such service conditions are governed by the
statutory Act or the Rules framed in this regard and the concept of
contractual service loses its existence Obviously, Section 10C cannot be
operated retrospectively to the extent that it cannot impinge upon the terms
and conditions of the service of the teachers appointed prior to the
promulgation of the School Service Commission Act" However, the said order
has been challenged before the Hon'ble Supreme Court in SLP (C) No.
21996/2023 and vide order dated 09th October, 2023 an interim protection
from transfer is given only to teachers who have been appointed prior o the
section 10C coming into force. The said matter is still pending for disposal
and lastly posted on 5th December, 2023. Likewise, though Section 10B was
inserted and amended by the amendment of 2013; only by dint of Section
10B, the Transfer Rules has been introduced to which the instant
Uthshashree is a part; the same should naturally be applicable to all the
teachers appointed by the SSC after coming into force of the WBSSC Act of
1997 including the writ petitioners. Moreover, such benefit of the Act of 1997
of the present writ petitioners are also protected under Section 13 of the West
Bengal Madrasah service Commission Act, 2008; which provides,
"Notwithstanding anything contained elsewhere in this act, the terms and
conditions of service of teachers in the employment of a Madrasah
immediately before the commencement of this Act, shall not be varied to the
disadvantage of such teacher in so far as such terms and conditions related to
the appointment of such teachers to the post held by them immediately before
the commencement of this Act".
38. Mr. Bhattacharyya has submitted that the prayer of the writ
petitioners were refused initially by the MAME on the ground that there were
scarcity of teachers in Madrasha due to stay orders passed by the High Court.
However, having regard to the fact that there is no order of stay either by the
High Court of Calcutta or the Hon'ble Supreme Court of India the appellants
are free to fill up the vacancies by way of regular recruitment process.
39. It is submitted that the contention of the appellant that some of
the writ petitioners accepted the benefit of transfer under MSC and hence
they cannot now fell back on the Utsashri online portal for non Madrasha
institutions is not acceptable since at that time some of the writ petitioners
participated for the transfer initiated by MSC in view of non introduction of
the Utsashri Online portal. The said teachers at the relevant point of time
had no other option. However after introduction of the scheme and
challenging the denial for the Madrasah teachers to participate in the same,
those writ petitioners voluntarily abstained from participating in such process
of transfer by MSC.
40. Mr. Bhattacharyya submits that there are several instances where
the assistant teachers of Madrasahs have been duly recommended by the
Commissioner of School Education or the WBSSC for transfer to schools and
as per the said recommendations and transfer orders those incumbents have
already joined and continuing their services in the schools; such as one
assistant teacher namely Smt. Baishali Saha of Metekona Moulana Abu Taher
Sr. Madrasah has been recommended by the Commissioner of School
Education and accordingly transferred to Kasba Chittaranjan High School
vide Memo No. WBBSE/Apt./KOL/GT(S)/AT-192/1 dated 10.12.2020;
similarly, one assistant teacher namely Smt. Debalina Chatterjee Datta of
Neemdighi High Madrasah (H.S.) has been recommended by the WBCSSC as
per the West Bengal School Service Commission (General Transfer, Transfer
on Special Ground and Reallocation) Rules, 2015 and accordingly transferred
to Jadavpur Baghajatin High School vide Memo No. 1637(2)/...)/SPL-
150/CSSC/GT/2017 dated 13.09.2017. From time to time several teachers of
Madrasahs have been transferred to schools.
41. Mr. Bhattacharya has extensively referred to the reasoned order
passed by the Assistant Secretary School Education Department in
compliance with the order under appeal to show that the situational
difficulties are the primary reason for not issuing 'no objection' by the
Madrasha Commission. Mr. Bhattacharya has specifically referred to
paragraph 10 of the reasoned order to show that principally it was decided
that the teachers appointed prior to 2008 Act can be transferred to schools
with 'no objection'. The paragraph reads:
"10. In response to the communication of the School Education
Department, the Minority Affairs and Madrasha Education Department
replied vide their letter no. 2898-MD-99011/197/2022-SECTION
(MAME) dated 21.12 2022, to the School Education Department. The
same was placed before me today in the hearing. The Minority Affairs
and Madrasha Education Department vide said letter informed that has
the Minority Affairs and Madrasha Education is not in position to grant
any No Objection for transfer of petitioners through the Utsasree Portal
from Madrashas to School for the following reasons.
a. The non-Govt. Aided Madrasahs are facing severe shortage of teachers
and non-teaching staff At present there are total 5734 vacancies in
teaching and non-teaching posts of Madrasahs of which more than 4500
posts are vacant in Assistant Teacher posts. Transfer of teachers from
Madrasahs to Schools will lead to further increase in vacancies in
Madrasahs resulting to acute problem in teaching of Madrasah students
b. Fresh recruitment for appointment of staff in vacancies of Madrasahs
will take time due to pending court cases in the Hon'ble Supreme Court
and High Court till that time the students of the Madrasahs will suffer
c. Out of 19 petitioners, 12 petitioners had applied to the W B Madrasah
Service Commission for transfer As they have not got preferred
Madrasahs for transfer, they want to be covered under the Utsashree
portal. They still have recourse to get transferred according to the WB
Madrasah Service Commission Recruitment (Selection and
recommendation of persons for Appointment and transfer to the Posts of
Teachers and non-teaching Staff) Rules 2010 as per their merit
d. The petitioners get same monetary benefits as of teachers of
recognized aided school.
e. The recommendation, appointment and transfer of staff of madrasaha
are governed by the provisions of the W B Madrasah Service Commission
Act 2008 and the WB Madrasah Service Commission Recruitment
(Selection and recommendation of persons for Appointment and transfer
to the Posts of Teachers and non-teaching Staff) Rules 2010.There is no
such provision for transfer of staff from a madrasah under the
administrative control of the Minority Affairs and Madrasah Education
Department to a school under the administrative control of the School
Education Department and for granting no objection by this Department.
f. Once transfer from Madrasahs to Schools as the case of the petitioners
start, huge number of other staff of madrasahs may also seek apply for
transfer in similar way resulting further shortage of staff in madrasahs
and more Court cases.
Under the above facts and circumstances, this Department is not in a
position to grant any no objection for transfer of the petitioners through the
Utsashree portal from Madrasahs to Schools."
42. Mr. Bhattacharya has referred to an application from Somnath
Ghosh dated 19th December, 2013 one of the writ petitions to the Secretary,
WBSSC seeking clarification about his eligibility for General Transfer under
sub-rule (e) of Rule -1. The General Transfer Rules 2013 and as per
notification no. 1325-SE/S/1S-04/95 dated 03.10.013 and the reply from the
WBSSC dated 28th January, 2014. It is submitted that in reply the Assistant
Secretary, WBSSC has directed Sri Ghosh to submit application as per
procedure after publication of notice inviting General Transfer as per Section
5(1) of the WBSSC (General Transfer) Rules 2013 which clearly shows that
teachers appointed prior to 2008 Act shall be government by the transfer
rules as framed by WBSSC.
43. In view of thereof the order passed by the learned Single Judge is
required to be upheld and necessary order be passed directing the MSC to
issue 'no objection certificate' for transfer.
44. Mr. Prasenjit Mukherjee learned Counsel appearing on behalf of
MSC has submitted that all the petitioners participated in the 6th and 7th
RLST 2006 and 2007 conducted by West Bengal Regional School Service
Commission and being successful candidates their names are included in the
panel and the concerned Secretary of the West Bengal Regional School Service
Commission had recommended the names of the petitioners/ respondents for
appointment to the post of Assistant Teachers in different Madrasahs. The
then concerned Regional School Service Commission prepared the respective
separate panel for the post of Assistant Teacher in different aided Madrasahs
in West Bengal. There was no combined panel for the post of Assistant
Teachers of both the Madrasahs and Secondary and Higher Secondary
Schools and admittedly there was separate panel for the Madrasahs and
Secondary and Higher Secondary School. As the petitioners appeared in the
counselling and opted for the respective Madrasahs, the recommendations
were duly issued in their favour and subsequently joined in the respective
posts and after discharging their service of more than 15 years cannot opt for
transfer process through Utsashree Portal to the respective Secondary and
Higher Secondary Schools under School Education Department.
45. The writ petitioner nos 1,2,6,7,8,9,10,11,12,13,18 and 19 already
had submitted in their application for transfer in terms of the notification
issued by the West Bengal Madrasah Service Commission invoking Rule 33
West Bengal Madrasah Service Commission Recruitment (Selection and
Recommendation of persons for Appointment and Transfer to the Post of
Teacher and non- teaching Staff) Rule 2010. Twelve writ
petitioners/respondents out of nineteen, already had invoked Rule 33 of the
said 2010 Rules and when they failed to obtain their preferred Madrasah for
transfer, they wanted to be transferred to the schools covered by Utsashree
Portal. In the year 2021 the West Bengal Madrasah Service Commission
issued the notification for online transfer process similar to Utsashree Portal
and near about more than 4000 candidates had availed the benefits of online
transfer process and the transfer process has been successfully completed.
46. Prior to the enactment of the West Bengal Madrasah Service
Commission Act, 2008, in the year 2006-2007, the West Bengal Regional
School Service Commission used to conduct the recruitment process for the
post of Assistant Teachers in different aided Madrasahs along with the
schools in terms of West Bengal School Service Commission Act 1997. At the
relevant point of time there was no provision of transfer. After the enactment
of West Bengal School Service Commission Amendment Act 2008 and in
terms of clause (n) of section 2, Madrasah was excluded from the term 'school'
and as per the amendment of clause (p) section 2, Madrasah teachers were
also excluded from the term of "teacher" of the said Act and neither in the
West Bengal School Service Commission Act 1997 nor in the West Bengal
School Service Commission Amendment Act 2008, there was any provision of
transfer.
47. Subsequently in terms of the notification dated 11.03.2015, after
the notification of West Bengal School Service Commission (General Transfer,
Transfer on Special Ground and Re-allocation) Rules 2015, the right of
transfer has been given to teachers of the school, in terms of Rule 2 (m) of
2015 Rules as amended on 08/09/2021 but not to the Assistant Teachers or
teachers of West Bengal aided Madrasahs. In terms of the notification dated
11/03/2015 and 08/09/2021, the benefits of transfer under Utsashree Portal
are restricted to the teachers of Secondary and Higher Secondary Schools not
to the teachers or Assistant Teachers or headmaster of the aided Madrasahs.
48. In the year 2014, some provisions of West Bengal Madrasah
Service Commission Act 2008, had been declared ultravires and the said issue
continued till 6th January 2020 and ultimately the Hon'ble Supreme Court
held that the West Bengal Madrasah Service Commission Act 2008 as
Constitutional. The West Bengal Madrasah Service Commission due to the
long pendency of the litigation since 2014-2020 could not undertake any
recruitment process. Due to pendency of the litigations the non-Government
aided Madrasahs are facing severe shortage of teachers and non-reaching
staff. At present there are total number of 5734 vacancies in teaching and
non- teaching posts in different Madrasahs all over West Bengal of which
more than 4500 posts are vacant in Assistant Teachers category. The transfer
of teachers from Madrasahs to Secondary Schools will lead to further increase
in vacancies in Madrasahs resulting to acute problem in teaching of
Madrasah students.
49. All the petitioners are getting same monetary benefits as of
teachers of recognized schools. There is no provision neither under the West
Bengal Madrasah Service Commission Act 2008 nor in Rules 2010 permitting
the Assistant Teachers of the concerned Madrasah to get transfer to the
respective Secondary or Higher Secondary School under West Bengal, School
Education Department. The aided Madrasahs are under the administrative
control of Minority Affairs Department and Madrasah Education Department
and the school teachers are under the administrative control of the School
Education Department and there is no provision for granting no objection by
this department to the Assistant Teacher of different Madrasahs seeking for
transfer through Utsashree Portal.
50. Hence this instant appeal is liable to be dismissed.
51. The principal issue is whether after coming into force of the West
Bengal Madrasha Service Commission Act, 2008 it would be open for the
teachers who have been recruited under the 1997 Act to insist that their
application is required to be processed by the SSC applying the general
transfer rules under the said act.
52. At the time of introduction of the 2008 Act there was no transfer
policy in existence under the 1997 Act.
53. The terms and conditions of service of teachers in Madrasha in
employment before 2008 Act in view of Section 13 of 2008 Act should not be
varied to their disadvantage. Prior to the promulgation of the 2008 Act, there
was no provision for transfer in the 1997 Act. Accordingly, Madrasah teachers
appointed while the 1997 Act still applied to them, were not covered by any
statutory provisions relating to transfer. The provision for general transfer of
teachers in schools was only introduced on 11th July, 2013 with the insertion
of Section 10B with effect from January 2014. In supersession of the 2013
Rules the West Bengal School Service Commission (General Transfer, Transfer
on Special Grounds and Reallocation) Rules, 2015 (in short "2015 Rules") was
promulgated on 27 February, 2015. The transfer rules under the 2008 Act is
prior to the transfer rules framed under 1997 Act. Admittedly and evidently
these transfer rules have been introduced at a time when Madrasahs were
excluded from the purview of the 1997 Act, and Madrasah teachers were
governed solely by the 2008 Act. In absence of transfer rules as on the date of
their transfer it cannot be contended that such transfer order MSC, 2008 and
transfer rules of 2010 would affect their rights preserved and protected under
Section 13 of the 2008 Act. Moreover transfer is incidental of service condition
and by reason of 2010 Rule the writ petitioner cannot claim that their
application for transfer is to be considered under SSC Act. All teachers
transferred to Madrasha under MSC Act, 2008 have availed transfer within
Madrasha following the 2010 Rules. They have never challenged the vires of
the 2010 Rules.
54. Moreover, the Madrasha Act has been upheld by the Honble
Supreme Court in Sk. Md. Rafique vs. Managing Committee, Contai
Rahamania High Madrasah and Ors.; 2020(6) SCC 689. In view thereof
the transfer rules of 2010 is applicable to the writ petition. The decision in
Rabin Tudu (supra) cannot be of any assistance as it has clearly stated that
section 10(c) would be applicable to all teachers appointed by the SSC after
coming into force of the 1997 Act. As stated earlier the transfer rules for
teachers appointed under SSC was introduced for the first time on July 11,
2013.
55. The argument that no option was given to the present writ
petitioners at the time of their transfer from school to Madrasha cannot be
accepted at this stage. They have voluntarily agreed to join Madrasha
carrying with them the privilege and protection under Section 13 of the 2008
Act. It was a conscious and voluntary decision. Moreover, as explained by
the learned Advocate General the writ petitioners cannot be treated at par
with the teachers of Ramkrishna Mission schools as the Mission has provided
no objection in favour of those teachers and non-teaching staff working in
their schools, who desire to avail the facilities of general transfer and transfer
on special grounds. The Mission schools are treated as "schools" within the
meaning of Section 2(n) of 1997 Act.
56. School is defined under Section 2(n) of 1997 Act as follows:
"2(n). "school" means a recognised non-Government aided-
(i) secondary school, or educational institution, or part or department of
such school or institution, imparting instruction in a secondary education, or
(ii) higher secondary school, or educational institution (other than a
college), or part or department of such school or institution, imparting instruction
in higher secondary education, or
(iii) Madrasha,
And includes a sponsored school.
Explanation - Recognised with its grammatical variations used with
reference to a school, shall mean -
(a) recognised or deemed to have been recognised under the West Bengal
Board of Secondary Education Act, 1963, or
(b) recognised under the West Bengal Council of Higher Secondary
Education Act, 1975, or
(c) recognised or deemed to have been recognised under the West Bengal
Board of Madrasah Education Act, 1994.
Explanation II.-"Aided" with its grammatical variations, used with
reference to a school, shall mean aided by the State Government in the shape of
financial assistance towards the basic pay of the teachers of that school.
Explanation III.-"Basic pay" shall mean the monthly pay of a teacher of a
school which corresponds to a stage in the time-scale of pay of the post held by
the teacher in that school.
Explanation IV-"Secondary Education" shall have the same meaning as in
clause (1) of section 2 of the West Bengal Board of Secondary Education Act,
1963.
Explanation V.-"Higher secondary education" shall have the same meaning
as in clause (d) of section 2 of the West Bengal Council of Higher Secondary
Education Act, 1975.
Explanation VI.-"Sponsored school" shall mean a school declared as a
sponsored school by the State Government by notification;"
57. In response to the letter of Somnath Ghosh, Mr. Advocate General
has explained that the answer to the query of Mr. Somnath Ghosh cannot
create any right in favour of Mr. Ghosh to be considered for general transfer
under the 2013 Transfer Rules. It appears from the communication of the
Assistant Secretary, West Bengal Central School Service Commission dated
28th January, 2014 that the said authority has referred to the provision of the
2013 Rules in answer to the query raised by Mr. Somnath Ghosh. The letter
of Mr. Ghosh would itself show that he wanted to know about the eligibility
criteria for general transfer Rules 2013 and the manner in which it cannot be
made.
58. In any event, the said reply by the School Education Department
cannot create any right in favour of Mr. Ghosh as the School Education
Department has no authority or jurisdiction to consider the transfer
application of a teacher who has joined Madrasha from the School Service
Commission in 2008 and their service conditions are to be governed by 2010
and 2023 Rules. Moreover as earlier observed the teachers appointed through
SSC did not have any transfer rules prior to 2013. Mr. Ghosh in any event
had already exercised his option for transfer in 2021 as would be evident from
the affidavit filed by MSC in the year 2021.
59. Even assuming that any transfer has been allowed in favour of a
teacher transferred from SSC to Madrasha in 2008 and subsequently allowed
transfer from Madrasha to SSC it cannot create any right in favour of any of
the writ petitioners. It is well settled that the mere fact that the authority has
passed a particular order in the case of another person similarly situated can
never be the ground for issuing a writ in favour of the petitioner on the plea of
discrimination. If the order in favour of other person is found to be contrary
to law or not warranted in the facts of the case it is obvious that such illegal
or unwarranted order cannot be made the basis of issuing a writ compelling
the authority to repeat the illegality or to pass another unwarranted order.
(See. Chandigarh Administration and Anr. (supra) paragraph 8)
60. In any event, we have already indicated that the instances relied
upon on behalf of the writ petitioners to show similarity are factually incorrect
and are not similar.
61. The learned Single Judge appears to have proceeded on the basis
that the writ petitioners are similarly placed as that of the teachers of
Ramkrishna Mission. We have already dealt with the said issue earlier which
would show that on the request of Mission the transfer policy have been made
applicable to the teachers of Mission and the schools under said Mission are
treated as schools. This fact could not be brought to the notice of the learned
Single Judge as no opportunity was given to the respondent to file an affidavit
to bring on record such facts. Each case is required to be decided on its own
merits, factual and legal in accordance with relevant legal principles. Before
any direction could be passed to the School Education Department to
consider the transfer of teachers from Madrasha to School an opportunity
should have been given to the respondents to bring on record all relevant facts
to show the legal rights of the writ petitioners. Moreover, the writ petitioners
have acted upon the transfer rules of Madrasha and they are now clearly
estopped from raising any dispute with regard to the authority of the
Madrasha Commission to decide on such transfer application. Mr.
Bhattacharya has argued that there cannot be estopple against the statute.
However, in the instant case we are of the view that the teachers transferred
from the SSC in the year 2008 after coming into force of 2008 Act are to be
governed by the 2010 Rules. In fact, they have accepted the said rules and
acted accordingly. In the absence of any challenge to any of the rules
contemporaneously and also having regard to the fact that the Madrasha Act
has been upheld by the Hon'ble Supreme Court, it is no more open for the
writ petitioners to contend that their transfer is required to be considered by
the SSC in terms of 2013 Rules.
62. The contention of the writ petitioners that the School Education
Department having accepted and implemented the order under challenge it is
no more open for the MSC not to issue 'no objection certificate'. We have
earlier noted the argument of Mr. Advocate General that the order of
compliance by the SSC was on the threat of contempt. The appellant no. 1
preferred a appeal on 11th April, 2022. The application for stay of operation of
the order was filed on 12th April, 2022. Thereafter an application for
condonation of delay was filed on 21st April, 2022. The contempt notice was
served on 15th January, 2022 and the contempt petition was filed on 4th
November, 2022. The appellant no. 2 was impleaded on 16th August, 2023.
This would show that the Education Department has not accepted the order
of the learned Single Judge but complied with the said order on the threat of
contempt. Mr. Advocate General has submitted that in spite of best effort the
appeal and the application could not be heard prior to the 18th of January,
2023 and in the meantime the School Education Department in compliance of
the order dated 22th Febrauary, 2022 passed a reasoned order on 10th
January, 2023. It appears that on 18th January, 2023 the coordinate bench
directed the appellant no. 1 to place a report on affidavit of development of
subsequent to the order of the learned Single Judge and the appellant no.2 to
explain its stand by way of a separate report on affidavit. It is settled law that
implementation pending appeal to a higher forum so as to avoid contempt
proceeding does not render the appeal infructuous. (See Ram Kumar
Thakur (supra) paragraphs 2, 3 and 7)
63. Moreover it appears that the School Education Department prior to
compliance has preferred an appeal raising jurisdictional issue with regard to
consideration of the transfer application by the School Education Department
under 2013 Rules due to promulgation of 2008 Act and transfer rules 2010.
64. The School Education Department has lost all control over the
Madrasha by reason of the 2008 Act read with the Rules of Business issued
under Clause 3 of Article 166 of the Constitution of India dated 30th March,
2012 clearly specifying the department who should have control over the
Madrasha namely, the Minority Affairs and Madrashas Education Department
under such circulars the Principal Secretary, School Education Department
could not have been directed to consider the prayer for transfer. The said
authority is no more vested with the power and jurisdiction to consider the
representation for transfer from Madrasha to school by reason of clear
bifurcation of jurisdiction. The recruitment policies, selection and service
conditions are operating under two different statutes. In fact the appointment
and transfer Rules namely 2010 Rules has come into operation much prior to
the transfer Rules applicable to teachers appointed by the SSC. Twelve writ
petitioners have in fact, availed of Rule 33 of the 2010 Rule for transfer and
when they failed to obtain their preferred Madrasha for transfer, they wanted
to be transferred to the schools covered by Utsashree portal. This has been
explained in detail in the affidavit filed by the MSC. The affidavits filed by the
MSE has clearly clarified the issue and justified its stand that the writ
petitioners are not entitled to be considered for transfer to schools. The writ
petitioners were never denied of transfer within the Madrasha Schools. The
transfer is only restricted to the cadre of Madrasha service. We feel that an
opportunity ought to have been given to the appellants to file an affidavit to
make clear the aforesaid distinction and bring on record relevant materials for
proper adjudication.
65. In view of the above we set aside the order of the learned Single
judge.
66. The appeals succeed and all the connected applications are
disposed of.
67. The impugned order is set aside.
I agree (Soumen Sen, J.)
(Uday Kumar, J.)
