Calcutta High Court (Appellete Side)
Pk vs State Of West Bengal & Ors on 16 March, 2020
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
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16.03.2020 W.P. No. 4198 (W) of 2020
Ct. 14
Sl. 6 Md. Hasanuzzaman
pk. -Versus-
State of West Bengal & Ors.
Mr. Ranajit Chatterjee,
Mr. Subhrangsu Panda,
Mr. Aniruddha Mitra,
Mr. Gourab Das
...for the petitioner
Mr. Tapan Kumar Mukherjee,
Ms. Saheli Mukherjee
...for the State.
The petitioner is aggrieved by the fact that
though in the application for recognition of
Bhelian Hazi Quddusia Junior High Madrasah
dated 30.03.2005 he was mentioned as group D
staff, his name not having featured in the DLIT
report dated 26.11.2008, his appointment was not
approved by the director of Madrasah Education.
The learned Counsel for the petitioner
relied upon the decisions of two Single Benches'
judgment of this Court. The first of which reported
in (2001) 1 CLJ 501 in the case of Sk. Md.
Salimar Rahaman vs. State and others and the
judgment dated January 27, 2009 passed in WP
21058 (W) of 2005 (Utpal Chattopadhyay vs.
State of West Bengal & Ors.). In the two
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decisions, the Co-ordinate Benches had held that
there is no bar to grant approval even to teachers
and Group-D staff whose name does not feature in
the DLIT report were entitled to appointment.
Decision of a Division Bench judgment of
this Court in MAT 894 of 2012 dated August 30,
2012 (State of West Bengal vs. Md. Hassan and
others) is also relied upon in support of the same
proposition. In Md. Hassan case (supra) one must
note that the DLIT team had put signatures on the
attendance register of the school where the
respondents' therein were named.
A further decision of the Division Bench of this Court in the case of State of West Bengal & Ors. vs. Husna Banu & Ors. reported in 2010 (4) CHN (CAL) 438 is also relied upon by the petitioner. It was held therein that since another such person, whose name also did not feature in the DLIT report, was appointed, the respondents therein could also seek appointment. In the instant case one Abdul Barik, whose name also did not feature in the DLIT report, was appointed in the said Madrasah.
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The learned Counsel for the State, Mr. Mukherjee refers to an application of the MSK dated October, 2016 showing that the petitioner was 16 yeas 16 days at the time of first appointment. He, therefore, could not have been eligible for appointment in the first place.
In reply thereto, the learned Counsel for the petitioner relies upon a notification of Government of West Bengal dated September 11, 2017, where the age relaxation was granted to organizing teachers and staff w.e.f. 01.09.2017 to be approved even if they did not meet the eligibility criteria for appointment at the time of initial appointment in the unrecognized institution.
This Court sees that the judgments of the Co-ordinate Benches as well as the Division Benches relied upon by the petitioner are in different facts and circumstances. The same cannot be applied in the instant case. Insofar as the Division Bench judgment of Husna Banu (supra) is concerned, this Court notices that the Hon'ble Division Bench did not address the issue that negative equality cannot be claimed and 4 parity cannot be sought with the persons who have benefited from an illegality.
Mr. Mukherjee, however, also refers to the decision of a Division Bench of this Court in D. I. of Schools (SE), Burdwan and others vs. Abdul Barik Shaikh & Ors. being MAT 1626 of 2017, which has dealt with Husna Banu decision (supra). In the said case, the Division Bench relied upon the decision of the Manindra Nath Sinha & Ors. vs. State of West Bengal & Ors. reported in 2006 (4) CHN 513 that has since been upheld by the Hon'ble Supreme Court. The Division Bench was however considering the status of organizing teachers after coming into force of the West Bengal Madrasah Service Commission Act, 2009.
The said Division Bench went on to hold that the concept of organizing teachers does not exist any further after coming into force of the Act of 2009.
Mr. Chatterjee, learned Counsel for the petitioner would seek to distinguish the said judgment by reference to the fact that in the case 5 of recognition of MSK, there is a specific scheme of the State that while conversion is considered of an unrecognised Madrasah to MSK organizing teachers and staff could be considered for regularization and/or approval.
Be that as it may, this Court finds two relevant facts stand out in the instant case. Firstly, that the petitioner was 16 years 16 days of age at the time of alleged first engagement in the unrecognized Madrasah. Secondly, his name did not, in fact, feature in the DLIT report.
It is now well settled that the Government needs some basis to accord approval to persons who claim to have been appointed by an unrecognized Madrasah at the time of recognition. The DLIT comprises of responsible Government Officials. It is only based on a DLIT report that the State can find support for the purpose of recognizing teaching and non-teaching staff already working in the Madrasah. While it may be true that a person who works in the Madrasah may not be physically present for various reasons at the time of the DLIT visit, it is expected that 6 such person would immediately along with all supporting documents approach the Board or the DLIT for recording of his name as an existing staff. No such document is available on record. The school could have produced the attendance register which does not appear to have been done.
In those circumstances, a writ Court would be very slow to upset a finding of fact by an Administrative Authority as to whether the petitioner was, in fact, working in the school or not.
The absence of documents as indicated herein above and the absence of the name of the petitioner in the DLIT report coupled with the fact that the petitioner was 16 years 16 days of age at the time of alleged initial appointment seal the fate of the writ petitioner. This Court in its high prerogative writ jurisdiction cannot sit in appeal on question of facts and upset a finding of fact recorded by an Administrative Authority.
In the instant case, the petitioner would argue that since one Abdur Rafiq whose name did not feature in the DLIT report has been appointed, 7 the petitioner must be accorded the same privilege. It is now well settled that a person cannot claim equality with another who has been appointed contrary to law. Negative equality cannot be claimed.
The last argument on behalf of the petitioner as regards the Circular dated September 11, 2017, that provides for age relaxation for persons who did not possess valid qualification for appointment in the unrecognized institution. This Court finds that the memorandum dated September 11, 2017 is prospective and cannot be applied retrospectively. The petitioner thus cannot claim any benefit from the said Circular.
For the reasons stated herein above, the writ petition must fail and is hereby dismissed.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties.
(Rajasekhar Mantha, J.) 8