AI Structured Summary
Not yet generated for this judgment
Judgment
Re: CAN 12444 of 2019
There is a delay of 92 days in preferring the appeal.
We have perused the petition for condonation of delay. We are satisfied with the explanations offered for not being able to file the memorandum of appeal within the period of limitation.
On such consideration, the delay of 92 days in filing the memorandum of appeal is condoned.
CAN 12444 of 2019 is allowed.
Re: CAN 12443 of 2019
There is a delay of 92 days in preferring the appeal.
We have perused the petition for condonation of delay. We are satisfied with the explanations offered for not being able to file the memorandum of appeal within the period of limitation.
On such consideration, the delay of 92 days in filing the memorandum of appeal is condoned.
CAN 12443 of 2019 is allowed.
Re: CAN 12442 of 2019
There is a delay of 92 days in preferring the appeal.
We have perused the petition for condonation of delay. We are satisfied with the explanations offered for not being able to file the memorandum of appeal within the period of limitation.
On such consideration, the delay of 92 days in filing the memorandum of appeal is condoned.
CAN 12442 of 2019 is allowed.
Re: MAT 1676 of 2019
With
CAN 11555 of 2019
With
MAT 1677 of 2019
With
CAN 11554 of 2019
With
MAT 1480 of 2019
With
CAN 10557 of 2019
With
MAT 1481 of 2019
With
CAN 10555 of 2019
With
MAT 1482 of 2019
With
CAN 10558 of 2019
These appeals are arising out of an order dated 28th May, 2019 by which an interim order was passed in a batch of writ petitions filed by the writ petitioners claiming entitlement in terms of an order dated 17th May, 2019. The learned Single Judge by way of an interim measure directed the respondent authorities to pay the writ petitioners salaries including the arrears payable as also their current salary from the date of communication of this order.
On the earlier occasion, the matter was adjourned in view of the pendency of the Special Leave Petition before the Hon'ble Supreme Court with regard to the vires of West Bengal Madrasah Service Commission Act, 2008 (hereinafter referred to Commission Act of 2008). The Hon'ble Supreme Court by a judgment dated 6th January, 2020 decided the issue and upheld Sections 8, 10, 11 and 12 of the Commission Act of 2008. The orders of the learned Single Judge and the Hon'ble Division Bench of the High Court were set aside. Sections 8, 10, 11 and 12 of the Commission Act of 2008 was declared to be valid and constitutional. However, in disposing of the Special Leave Petition, the Hon'ble Supreme Court made the following observation:-
"58. In the end, we declare all nominations made by the Commission in pursuance of the provisions of the Commission Act to be valid and operative. However, if after the disposal of the matters by the High Court any appointments are made by the concerned Madarshas, such appointments of teachers shall be deemed to be valid for all purposes. But the Commission shall hereafter be competent to select and nominate teachers to various Madarshas in accordance with the provisions of the Commission Act and the Rules framed thereunder."
This judgment was delivered subsequent to the order passed by the learned Single Judge allowed interim measure. However, the learned Single Judge in extending interim benefits to the writ petitioners has relied upon an order dated 7th June, 2018 passed by the Hon'ble Supreme Court which reads:-
"In the said May 17 order Their Lordships of the apex court have been pleased to hold, inter alia, as follows:-
"....It was stated that more than 2600 vacancies are existing in the Madrashs. Due to acute shortage of teachers cause of education is at sufferance. Considering the fact situation which has been created by the legal imbroglio in the case, we deem it appropriate to pass this order relaxing the earlier order, putting a restraint upon the declaration of the result with respect to the recruitment process initiated in the year 2014
.........
.........
In view of Notification dated 3.3.2016, we order that in case of 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 the 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.
A notification dated March 3, 2016, by way of paragraph 10 thereof, provides as follows:-
"Prior permission- No prior permission shall be required for issuance of advertisement and starting the process to fill up any vacant post duly sanctioned by the State Government or the Director of Madrasah Education, West Bengal provided the terms and conditions as stated in these Procedures are fulfilled".
This order was passed during the pendency of the Special Leave Petition. There cannot be any doubt that in view of the notification dated 3rd March, 2016 for the incumbents who were working and possessing the required qualification as prescribed by the State Government in its said notification they could not be deprived of their dues. We have also noticed that Mr. Mohan Parasaran appearing for the State of West Bengal has assured the Hon'ble Supreme Court that they would comply with the order with respect to the payment of the salaries in terms of the notification dated 3rd March, 2016 to the teachers who were working and possessing the qualification as prescribed by the State Government in its aforesaid notification. The appellants did not file any affidavit before the learned Single Judge. In the appeal, it is contended that all or many of them would possess required qualifications and may not be working against the sanction posts. It is also the contention of the appellants that while appointing the writ petitioners in the post of teachers in Madrasah, the procedure contemplated under the notification dated 3rd March, 2016 was not followed.
To put an end to the controversy we direct the Secretary, Minority Affairs and Madrasah Education Department to ascertain whether the writ petitioners were working and possessing the required qualifications in terms of the notification dated 3rd March, 2016 and whether their appointments were made in terms of the notification dated 3rd March, 2016.
In the event the writ petitioners fulfilled the required criteria then we feel that the writ petitioners are entitled to interim measures in terms of the order dated 28th May, 2019. We direct the authority concerned to decide this issue within a period of six weeks from date after giving an opportunity of hearing to one of the representatives of the writ petitioners as also the concerned Madrasah and dispose of such representation by a reasoned order which shall be communicated to the writ petitioners within a week thereafter.
In view of the aforesaid direction there is no immediate need for the respondent authorities to release the salaries including the arrears as it would depend upon the factual consideration of the matter by the Secretary Minority Affairs and Madrasah Education Department in terms of our order.
It is needless to mention that in the event it is found that the writ petitioners are entitled to such salaries including arrears pursuant to the examination of the claims the writ petitioners in terms of the notification dated 3rd March, 2016, the respondent authorities shall immediately release the salaries including the arrears payable as also their current salary and pass an appropriate direction to that effect.
The District Inspector of Schools shall furnish all details in relation to the Madrasahs in which the writ petitioners are presently working as teachers in order to enable the Secretary, Minority Affairs and Madrasah Education Department to decide the matter finally within one week from the date of communication of this order by either of the parties.
The appeal and applications are disposed of.
In view of this order nothing remains in the connected writ petitions to be decided. The writ petitions being W.P. 9627(W) of 2019, W.P. 9629 (W) of 2019, W.P. 9632(W) of 2019, W.P. 9631(W) of 2019 and W.P. 9635(W) of 2019 are to be treated as on day's list and disposed of.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.