Md. Aktar Hossain & Ors. vs Union Of India & Ors.

Three writ petitions are before me today. They raise common questions of law and fact. One of them is at the instance of the West Bengal Board of

Madrasah Education, a statutory board established under the provisions of the West Bengal Madrasah Education Board Act, 1994. It has thought fit to

approach this Court under Article 226 of the Constitution of India since the degrees awarded by Madrasahs in West Bengal, which the State of West

Bengal and the Union of India, till January, 2018 admittedly considered to be equivalent to the corresponding degrees of secondary, higher secondary

education and of baccalaureate and post-graduate degrees, by an executive fiat of the Department of Posts of the Union of India, has been held not to

be so equivalent. The equivalence has been ordained by His Excellency the Governor of West Bengal and accepted until aforesaid by His Excellency

the President of India.

I therefore find it convenient, in the presence of the writ petitioners in each case, and after recording the service on each of the respondents and the

presence of the Learned Advocates for the Union of India in two these matters in the daily list, and after directing that the affidavit of service in each

case be taken on record, to direct that the three writ petitions be consolidated and heard together. I request the Learned Additional Solicitor General to

regularize the appointment of Mr. D.N. Ray, Learned senior government advocate for the respondent Union of India together with his Learned Junior,

Mr. Biswajit Konar, Advocate, for the Union of India in the remaining writ petition also.

Mr D. N. Ray, learned senior advocate appearing for the Union of India in item nos. 5 and 6 of today’s list, raised a preliminary question of

maintainability. According to him, allowing the writ petition for any of the prayers shall amount to interference in the matter of recruitment in a civil

post under the Union of India. He submits that by virtue of the decision rendered in L. Chandrakumar v. Union of India and Others reported in AIR

1997 SC 1125 particularly paras. 80 to 95 this court cannot act as a court of the first instance in respect of any matter which is covered by Article

323A of the Constitution. He also submits that whatever grievance that the petitioners have can be adjudicated at the first instance only by the learned

Central Administrative Tribunal which is functioning. According to him, at least one of the petitioners has disclosed in AST No.22 of 2018 that other

people similarly circumstanced have already approached the Central Administrative Tribunal and got the relief of applying offline. He therefore,

submits that the writ court would be exceeding its jurisdiction by entertaining the matter.

Mr. Samim Ahammed, Learned Advocate on the other hand disputed this. He is led r by Mr. Bikash Ranjan Bhattacharya, Learned Senior Advocate,

who thereafter took over from Mr. Ahammed. Their contention is that in terms of The Departments of Posts, Gramin Dak Sevak (Conduct and

Engagement) Rules, 2011 which, according to Rule 3A, framed by the Union of India, in terms of Clauses (5) and (5) of the said Rule, it is clear that a

sevak shall be outside the civil service of the Union of India and shall also not claim to be at par the Central Government employees. He submits that

since the recruitment affected by the said fiat of the Union of India is in respect of sevaks, this would not be recruitment, terms or conditions in

respect of a civil post under the Union of India and therefore it would not be covered under either Section 14 of the Administrative Tribunals Act,

1985 nor under Article 323A of the Constitution of India. Therefore, Mr. Bhattacharya submits, this would not come within the ambit of the Learned

Central Administrative Tribunal.

Mr. Panja, Learned Advocate appearing for the petitioner in WP No.6356(W) of 2018, apart from adopting the above submissions, also points out that

nothing has been placed till now to show that these Rules are not in force. The other writ petitioners through their learned Advocates, have adopted

both the above submissions on the preliminary question as also the subsequent submissions on merits made Mr. Bhattacharya, Learned Senior

Advocate and Mr. Samim Ahammed. This submission on the preliminary question appeals to me. I therefore hold that the writ petition is maintainable

before this Court since it does not involve recruitment or any relief relating to any civil post under the Union, and this is expressly provided for under

statutory rules framed by the Union of India itself.

The present petition requires consideration on affidavits. Supplementary affidavit as sought for to be filed by Mr. Panja and in other writ petitions shall

be filed within the course of June 6, 2018. A combined opposition to be filed by the Union of India and the other respondents to both the writ petition

and the supplementary affidavit, if any, shall be filed within four weeks thereafter. Reply, if any, shall be filed within three weeks thereafter. The

matter shall appear in the monthly list of August 2018 for hearing.

In the meanwhile, I find prima facie case in favour of the writ petitioners. The preponderance of balance of convenience and inconvenience is in

favour of the writ petitioners and the orders prayed for being passed. Until the reliefs which have been sought as interim measure are granted,

thousands of students whose qualifications of Alim, Fazil, Kabil, MM granted after a regular and recognized course of studies in Senior and High

Madrasahs have been held to be equivalent to Secondary, Higher Secondary, Baccalaureate and Master’s degree and which have been accepted

by the Government of West Bengal and accepted throughout India, would be in jeopardy.

It is needless to mention, that regardless of whether the Preamble to the Constitution of India was duly amended to introduce the word “secularâ€

in it without amending the date on which we the people of India gave it to ourselves, and without indicating from when such amendment would take

effect, Articles 29 and 30, which have been an integral part of Part III of the Constitution of India from the date that the Constitution was framed and

commenced, sufficiently guarantee the right of a religious and linguistic minority to impart education including religious instructions, through educational

institutions established by them. While retaining this character as an essential ingredient of the basic features of our Constitution of India it does not,

prima facie, appear to be open to the Department of Posts of the Union of India to suddenly de-recognize the equivalence of such degrees as are

awarded by such institutions, when compared to the degrees awarded by other institutions which do not even have that constitutional guarantee. It has

not been placed before me, as yet, that the Articles 29 and/or 30 have been amended or repealed by exercise of the constituent powers of the

Parliament and/or ratified by the requisite number of state legislatures. It is trite, that when there are constitutional guarantees and a rule which

governs the field excluding such “sevaks†from a civil post under the Union, by an executive fiat in the teeth of such statutory rules, such a

decision as that dated January 2, 2018 appears to be wholly beyond the jurisdiction of the Union of India, if not ultra vires the Constitution of India.

Accordingly, there shall be stay of the decision of the Union of India, including the decision as in January 2, 2018 not to accord equivalence to the

degrees/diplomas/equivalence which are issued by Junior Madrasahas, Senior Madrasahs, High Madrasahs or Madrasahs of any character which are

operated under the West Bengal Board of Madrasahs Act, 1994 and all candidates seeking employment as Gramin Dak Sevaks shall be entitled to not

only participate in the process of selection but also to be appointed, if found successful and the Union of India and its officers are directed to ensure

that the present interim order is complied with both in the letter and the spirit.

I make it clear that till the disposal of the writ petition and subject to its result it should be deemed that certificate issued by the West Bengal Board of

Madrasah Education in respect of any of the degrees which have been held to be equivalent by the Government of West Bengal to be equivalent to

Secondary, Higher Secondary, Baccalaureate or by virtue of the circulars lastly issued in 2008, 2009 and 2010 shall be held to be equivalent for all

purposes including that of recruitment. The Chief Postmaster General, a respondent in each of the writ petitions, is directed to allow applications to be

made both on-line and off-line by such candidates who were prevented by reason of the decision impugned in the writ petition from applying for the

process of recruitment, regardless of whether the time for making such application has expired or not, provided that such applications are made offline

within ten days from the uploading of this order on the website, in case of online applications, ten days from when the authorities of the Union of India

once again allow making of offline applications. I make it clear that all observations hereinabove, except the finding as to jurisdiction of this Court to

entertain this matter, are tentative, and subject to the ultimate result of the writ petition. The Learned Advocates for the Union of India prayed for stay

of operation of the present order, and after considering it, I have chosen to refuse it.