Calcutta High Court (Appellete Side)
The Managing Committee Of B.K.N.T. ... vs State Of West Bengal & Ors on 19 May, 2017
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice SAHIDULLAH MUNSHI
W.P. No.1783 (W) of 2016
The Managing Committee of B.K.N.T. Senior Madrasah & Ors.
... Petitioners
- Versus -
State of West Bengal & Ors.
... Respondents
Mr. Golam Mastafa, Mr. Subir Sabud, Mr. T.S. Samanta ... For the petitioners.
Mr. Kamalesh Bhattacharyya, Mr. Bidhan Biswas ... For the State.
Mr. Taraprasad Halder ... For the respondent no.2.
Mr. Nibaran Das, Mr. Jiaul Haque, Mr. Abdur Rahaman ... for the respondent nos. 5 & 6.
Heard on : 30.08.2016, 28.11.2016 and 24.03.2016. Judgment on : May 19, 2017.
Sahidullah Munshi, J.:-
This writ petition has been filed by the so-called Secretary, President and Headmaster of a Senior Madrasah. It is the case of the writ petitioners that Madrasah was set up by the villagers of Birnagar and established on the land being plot no.450 within Mouza Birnagar, P.S. - Itahar, District - Uttar Dinajpur. The Managing Committee was constituted of the petitioner no.1 as the Secretary, petitioner no.2 as the President and petitioner no.3 as the President, i.e., Headmaster of the Institution. According to the petitioner, the Madrasah is supposed to be governed by the West Bengal Madrasah Education Act, 1994. After establishment of the said Madrasah, the Managing Committee made an application for recognition and in due course the Madrasah at Birnagar was recognized by the Madrasah Board vide Memo No.550/BNA/13 dated 16th April 2013 as an unaided Senior Madrasah (Co-education) with certain terms and conditions. The letter of recognition issued by the West Bengal Board of Madrasah Education on 16th April, 2013 has been brought on record being Annexure P-1 to the writ petition. One of the terms embodied in the said order of recognition is that the Managing Committee was to be reconstituted within one year as prescribed under the Management of recognised non-Government Madrasah (Aided and Unaided) Rules, 2002 or as prescribed by the Board.
According to the petitioner, while the said Madrasah was functioning well at Birnagar, the respondent nos.5 and 6, for their personal gain, were making attempt to run the said Madrasah at village Kashimpur and were taking steps for shifting the place from Birnagar to Kashimpur at a distance of about 16 kilometers from the present venue. While such attempt for shifting of venue of the Madrasah was in progress, a writ petition being W.P. No.29671 (W) of 2005 was moved before this Hon'ble Court but, during the pendency of the said writ petition and when it was taken up for hearing before a learned Single Judge of this Hon'ble Court in course of hearing, the learned advocate appearing for the respondent nos. 5 and 6 disclosed that by a Memorandum dated 3rd November, 2015, the Board had already approved the proposal for change of venue. Copy of the said Memo dated 3rd November, 2015 has been annexed to the writ petition being Annexure P-8 at page 40. Letter dated 3rd November, 2015 is the subject-matter of challenge in this writ petition. The earlier writ petition was dismissed as infructuous with liberty to the petitioners to challenge the Memo dated 3rd November, 2015 and hence the present writ petition.
The subject-matter of challenge in the present writ petition is the said letter dated 3rd November, 2015 issued by the Madrasah Education Board. From the impugned Memo it appears that the same has been addressed to Golam Rabbani, the respondent no.5 and by the order impugned the Secretary, West Bengal Board of Madrasah Education informed the respondent no.6 that the proposal for shifting of B.K.N.T. Senior Madrasah had been approved to shift it at village Kashimpur, Post Office Marnai, District - Uttar Dinajpur. Petitioners' grievance in this writ petition is two fold:
(i) That, although, the petitioners are affected by the decision of the Board, no opportunity has been given to them before taking the impugned decision as communicated through the impugned letter dated 3rd November, 2015;
(ii) The petitioners were in the Managing Committee before the Madrasah was recognized and, therefore, without their consent and/or proposal, the Madrasah Authority ought not to have shifted the venue of the said Madrasah. Madrasah Board has no authority to take any decision for shifting of the said Madrasah without approval of the State Government.
Mr. Taraprasad Halder, learned advocate appearing for the respondent no.2, West Bengal Madrasah Education Board, has filed affidavit-in-opposition. In the affidavit-in-opposition it has been stated that the petitioners have been misleading this Hon'ble Court on the issue of shifting of the Madrasah and their status as the Managing Committee of the Madrasah. It has been stated that on the basis of D.L.I.T. (District Level Inspection Team) report dated 2nd July, 2012, the unaided Madrasah was recognised on 20th March, 2013 on the basis of the recommendation made by the Minority Affairs and Madrasah Education Department, Government of West Bengal, based on the District Level Inspection Team report dated 2nd July, 2012. Recognition was granted as unaided Senior Madrasah from Class I to VIII from the academic session 2013 provisionally for 3 years subject to fulfillment of certain terms and conditions as mentioned in a Memo dated 16th April, 2013 issued by the West Bengal Board of Madrasah Education. In the said Memo dated 16th April, 2013, it was clearly mentioned that the Managing Committee of the Madrasah would apply for extension of the period of provisional recognition for a further period of three years after compliance of all formalities as framed by the Board from time to time. According to the respondent no.2, it is the duty of the Managing Committee of the said Madrasah to apply extension of the period of provisional recognition in time but, unfortunately, the Managing Committee of the said Madrasah applied for extension of the period of provisional recognition on 4th October, 2016 and, accordingly, it is submitted by the respondent no.2 that as on 4th October, 2016 the Madrasah lost the status of being a recognized Madrasah. The writ petition was affirmed on 16th November, 2016 when the Madrasah lost its right to claim as a recognized Madrasah. The recognition lapsed. It has been stated by the respondent no.2 that record will reveal that the Madrasah was running from Kashimpur after completion of all formalities for shifting from Birnagar to Kashimpur including approval granted by the West Bengal Board of Madrasah Education for shifting of the said Madrasah from Birnagar to Kashimpur under the same Gram Panchayat, Post Office, Police Station and District also. Complaints and/or representations were filed before the West Bengal Board of Madrasah Education by the petitioners and thereupon, the Board wrote a letter on 1st June, 2015 under its Memo No.812/MC/15 and addressed the same to the District Inspector of Schools, Uttar Dinajpur, requesting him to enquire into the matter and to confirm the Board about the original authority of the said Madrasah considering the D.L.I.T. report. As no response came from the District Inspector of Schools (S.E.), Uttar Dinajpur, a further letter was issued by the Secretary of the West Bengal Board of Madrasah Education on 18th June, 2015 under its Memo No.926/MC/15 to the District Inspector of Schools (S.E.), Uttar Dinajpur, requesting him for assuring him the original authority about the Madrasah between the two claims. In reply to his letters the District Inspector of Schools (S.E.), Uttar Dinajpur, submitted an enquiry report with necessary papers of the said Madrasah, namely, B.K.N.T. Senior Madrasah, on the issue of shifting of the said Madrasah from Birnagar to Kashimpur and thereby recommended for shifting of the said Madrasah from Birnagar to Kashimpur under the selfsame Gram Panchayat. The letter of the District Inspector of Schools, addressed to the Secretary, West Bengal Board of Madrasah Education on 21st August, 2015 under his Memo No.1782 enclosing therewith the inspection report which has been brought on record by the respondent no.2 being Annexure R-2 to his affidavit-in-opposition. Affidavit-in-opposition has also been filed by the respondent nos.5 and 6. Respondent nos. 5 and 6 are represented by their learned counsel Mr. Nibaran Kumar Das. On the basis of the affidavit-in-opposition filed by his client Mr. Das submitted that his client Golam Rabbani became the Secretary of the said B.K.N.T. Senior Madrasah in the year 1995 and till date he is holding the said post of Secretary of said B.K.N.T. Senior Madrasah. In the year 2013, when the said B.K.N.T. Senior Madrasah got recognition at that time also the respondent no.6 was a Secretary of the said B.K.N.T. Senior Madrasah. The Madrasah was inspected by the D.L.I.T. (District Level Inspection Team) and vide their report dated 2nd July, 2012, recognition was granted by the concerned authority. According to Mr. Das, since the locality of the village Birnagar where B.K.N.T. Senior Madrasah was situated, was degraded and the students were having difficulties to attend the school and particularly, there was no access for communication and that the school did not have sufficient land, 'No Objection' from Gram Panchayat was obtained for shifting of the said Madrasah from Birnagar to Kashimpur. He submitted that on 24th January, 2014, one Sarifuddin Ahmed of village Bogdoma executed a Gift Deed in favour of the Madrasah for an area of 53 decimals of land in Mouza - Shirsai, L.R. Dag no.591 on 18th March, 2014, the Managing Committee of the said B.K.N.T. Senior Madrasah adopted a resolution for shifting the said Madrasah from Birnagar to Kashimpur on the gifted land measuring 53 decimals situated within the jurisdiction of the said Gram Panchayat of Marnai. Respondent no.6, the Secretary of B.K.N.T. Senior Madrasah, filed application with requisite documents on 20th March, 2014, before the District Inspector of Schools (S.E.), Uttar Dinajpur, as well as before the West Bengal Board of Madrasah Education, with a prayer for permission for shifting the site of the B.K.N.T. Senior Madrasah from Birnagar to Kashimpur. He has further submitted that the local villagers of Birnagar, Kashimpur, Nomani and Tepur village filed mass petition dated 5th December, 2014 before the District Magistrate, Uttar Dinajpur, with a request to take steps for shifting the said Madrasah from Birnagar to Kashimpur. Various correspondence were made by the respondent nos. 5 and 6 in support of such shifting to the concerned authority. According to Mr. Das, West Bengal Madrasah Education Board has the legal right for shifting of a Madrasah from its existing venue under Section 20 (i) (2) (3) and (4) as well as under Section 21 (2) of the West Bengal Madrasah Education Act, 1994. He submitted that as per guideline of the Madrasah taken under Section 8 (a) (b) (c) the Board has enough power to shift the place of the Madrasah on the basis of the enquiry report filed by the Additional District Inspector of Schools as well as District Level Inspection Team report filed by the D.L.I. Team in 2015. Such report has been annexed to his affidavit-in-opposition as annexure R-6.
On a conjoint reading of the writ petition, the affidavits filed by the respondents and perusing the records of the case, it appears crystal clear that the authority has not acted illegally in issuing the order dated 3rd November, 2015, impugned in this writ petition for the reasons that the petitioners' name could not be found in the Managing Committee after the initial recognition was granted in April, 2013 as an Unaided Senior Madrasah. Therefore, question cannot arise with regard to service of any notice for the proposed transfer of the venue of the Madrasah upon the petitioner, nor any such question could be raised with regard to the issuing of notice upon the petitioners. It is also not under dispute that the petitioners ever communicated any letter to the authority informing that in compliance of the terms and conditions on which the initial recognition was granted to the unaided Madrasah, any reconstitution of the Managing Committee was made, nor is it available from the record that the petitioners brought it to the notice of the Madrasah Education Board that such reconstitution was made. Needless to mention that such reconstitution was directed to be made within one year as embodied under the Management of recognized non- Government Madrasah (Aided and Unaided) Rules, 2002 or as may be prescribed by the Board. The writ petitioners cannot be considered to be person aggrieved by the decision of the Board inasmuch as the petitioner was never a Secretary of the Managing Committee. On perusal of the D.L.I.T. Report dated 2nd July, 2012, it appears that the writ petitioner Moktar Alam was a non-teaching staff and appeared to have been appointed on 5th August, 2011, with educational qualification
- Class - VIII. He was an organizing non-teaching staff. In terms of Rule 10(1)(ii) of the Rules for management of recognized non-Government Madrasahs (Aided and Unaided), 2002 no member of the teaching and non-teaching staff shall be eligible for election to the Office of the President or Vice President or Secretary of the committee. Rule 10(1) is set out below :
"10. Office-bearers of Committee and quorum -
(1) (i) The committee shall ordinarily consist of not more than eleven or twelve or thirteen or seventeen members as specified in rule 3 which shall include the President, the Vice-President, the Secretary to be elected by the members of the Committee from amongst themselves.
(ii) No member of the teaching and non-teaching staff shall be eligible for election to the office of the President or the Vice-
President or Secretary of the Committee.
(iii) The Head of the Madrasah shall be ex-officio Joint Secretary of the Committee."
On perusal of the order of recognition it does not appear that Moktar Alam was the Secretary on the date of recognition of the Madrasah. In the D.L.I.T. report, pursuant to the inspection held on 2nd July, 2012, from the proforma of the inspection report it appears that one Golam Rabbani was the Secretary, Abdul Towab was the President and Haji Lokman Hossain was the Vice-President. Gulzar Hossain's name has been shown to be as a member of the committee. Moktar Alam's name does not appear in the said report. Moktar Alam's name appears in the category of non-teaching staff which is also a part of the report in Item No.10(1).
Record revealed that Golam Rabbani, by a letter dated 21st March, 2015, in his capacity as Secretary of the Madrasah, made a request to the Secretary, West Bengal Board of Madrasah Education to grant approval to the shifted venue of B.K.N.T. Senior Madrasah at Kashimpur. In connection with the said application dated 21st March, 2015 various documents were also filed including a copy of the D.L.I.T. report. Record also reveals that as per rules organizing Managing Committee was reconstituted and a communication dated 26th December, 2014 was also made to the District Magistrate, Uttar Dinajpur, through the Minority Affairs (DOMA/SI). Name of Golam Rabbani finds place in the said list as a Secretary of the reconstituted Madrasah. Records submitted on behalf of the West Bengal Madrasah Education Board and the affidavit as it has been filed before this Court discloses that the entire move for shifting of the Madrasah was made by a validly constituted Managing Committee after the Madrasah was granted recognition on 16th April, 2013 and on the basis of such proposal for shifting of the venue of the Madrasah by its validly constituted Managing Committee, inspection was directed to be caused by the District Inspector of Schools at the request of Madrasah Education Board and certain recommendations were made by the District Inspector of Schools on the basis of which the venue of the Madrasah was shifted from Birnagar to Kashimpur and from the shifted venue the Madrasah has been functioning. At this stage, this Court does not find any reason to interfere with the decision of the Madrasah Board whereby approval has been granted with regard to the shifting of the venue of the Madrasah in question when the same has been done on the basis of the enquiry conducted at the instance of the District Inspector of Schools and in pursuance of the recommendation made by the enquiry team and the District Inspector of Schools it goes without saying that although, the petitioner has challenged the decision of the Madrasah Education Board regarding grant of approval for shifting of the venue, no challenge has been thrown with regard to recommendation of the District Inspector of Schools and/or the enquiry team which was entrusted to enquire into the feasibility of shifting of the venue of the Madrasah.
Therefore, the writ petition is considered not sustainable in law and the same is thus dismissed.
Any application, if pending, shall also stand disposed of. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the respective parties upon compliance of all usual formalities.
(Sahidullah Munshi, J.)