Calcutta High Court (Appellete Side)
Sonia Khatun And Others vs State Of West Bengal And Others on 27 November, 2019
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1
27-11-2019
Sl. 20
Ct-14 W. P. No. 21405 (W) of 2019
pk
Sonia Khatun and others
Vs.
State of West Bengal and others
Mr. Biswaroop Bhattacharya,
Mr. Anindya Bose,
Mr. Diptendu Mondal
...for the petitioners
Mr. Prosenjit Mukherjee,
Ms. Madhurima Sarkar
... for Madrasah Service Commission
Mr. Tapan Mukherjee,
Mr. Shamim ul Bari
...for the State.
Mr. Tarun Kumar Das
... for the respondent no. 6
The issue raised in the instant writ petition is as to whether the persons appointed by the Madrasah concerned prior to a notification issued on 3rd March, 2016 are covered under the provisions of the West Bengal School Control of Expenditure Act of 2005.
A brief background of the facts are that the West Bengal Madrasah Service Commission Act of 2008 was struck down as ultra vires the Constitution of India by a Single Bench of this Court. An appeal carried therefrom to a Division Bench was unsuccessful.
2The State challenged the order of the Single and Division Benches before the Hon'ble Supreme Court of India where the arguments are stated to have been concluded and judgement is reserved.
In the meantime two developments are occurred. The Hon'ble Supreme Court of India passed series of interim order in respect of teachers who were already selected in the process conducted in the year 2014-2015 to allow them appointments in the Madrasah concerned and to allow them the benefits from the State Government as there were huge number of vacancies in the post of teachers in the Madrasah in the State and the students were suffering for want of teachers.
The Hon'ble Supreme Court permitted appointments to be made by the State out of the empanelled candidates of the process of selection of the year 2014-2015.
Before the Hon'ble Supreme Court of India the existing teachers of various other Madrasahs made submissions that they were not being paid salaries in spite of orders passed by this Court from time to time. The Supreme Court referred to a notification dated 3rd March, 2016 issued by the State Government post the striking down of the 2008 Act. The Hon'ble Supreme Court at paragraph nos. 3 and 4 of the said order dated 17th May, 2018 passed in Civil Appeal No. 5808 of 3 2017 (Sk. Md. Rafique Vs. Managing Committee, Contai Rahamania High Madrasah and another) stated as follows :
"3. At the same time, it was pointed out by Mr. Salman Khurshid, learned senior counsel, and other learned counsel appearing on behalf of the incumbents who are working in various Madrasahs, that they have not been paid their salaries in spite of the orders passed by this Court from time to time for disbursement of their salaries. It was pointed out by Mr. Mohan Parasaran, learned senior counsel, that certain incumbents are not found to be eligible, as such their salaries have not been disbursed. It appears that pursuant to the order passed by the Division Bench of the High Court, the State Government has come up with a Notification dated 3.3.2016, prescribing the eligibility conditions for appointment containing education qualification for the teachers to be appointed by the Madrasahs.
4. In view of Notification dated 3.3.2016, we order that in case incumbents, 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"
It is, therefore, clear in the above paragraphs that the Hon'ble Supreme Court was referring to the teachers who were already engaged in the Madrasahs but were not receiving any dues from the State Government.
4
Admittedly, the notification dated 03.03.2016 is an independent notification aimed at addressing and covering Madrasahs in particular. The notification was issued since after the Madrasah Service Commission Act of 2008 was struck down and pending adjudication before the Hon'ble Supreme Court. It is in the nature of independent measure exclusively for the benefit of Madrasahs.
This Court is, therefore, of the prima facie view that the petitioners are entitled to the benefits of the said notification of 3rd March, 2016 subject to they are having been appointed after its coming into force.
Mr. Mukherjee, learned senior advocate appearing for the State would argue and submit that the notification is in the nature of subordinate piece of legislation and rules and cannot by itself override the West Bengal School (Control of Expenditure) Act of 2005. There is a legal friction now created as to whether a set of rules, independently notified by the State Government on 3rd March, 2016, can override the provisions of an existing and constitutionally valid 2005 Act.
However, while issuing the notification dated 03.03.2016 it must be deemed that the State Government was consciously aware of the existing 2005 Act notwithstanding the aforesaid notification was brought in force.
5
This Court sees a contradiction between the stand taken by the State Government before the Hon'ble Supreme Court as set out herein above and before this Court.
The State and the other respondents are desirous of using affidavits.
Let such affidavit-in-opposition be filed within a period of ten days from date. Reply, if any, be filed within a period of three days thereafter.
Let this matter appear in the list two weeks hence at the top.
(Rajasekhar Mantha, J.)