Protik Prakash Banerjee, J. - (1.) This petition under Article 226 of the Constitution of India is directed against the Memo dated August 29, 2018 (Annexure P/6) issued by the respondent no. 7. The respondent no. 7 contended by it that the authorities of the Madrasah, the petitioners, were in violation of the order of the Hon'ble Supreme Court by attempting to recruit anyone to the post of teaching or non-teaching staff as on August 21, 2018. He said so, among other things, on the basis of a memo no: 852/0/5M-2019 dated April 18, 2017 issued by the Minority Affairs and Madrasah Education Department of the respondent no. 1, and also the order dated May 17, 2018 passed by the Hon'ble Supreme Court in SLP (C) No.66661 of 2016, Civil Appeal No.5808 of 2017 and interlocutory applications made therein. The petitioners contend that by this act, the respondent no. 7, a part of the secular State, is trying to interfere with the fundamental right guaranteed under Articles 25 to 30 of the Constitution of India, particularly under Articles 29 and 30, relating to religious minority institutions, for administering such institutions including by appointment of their own staff for inter alia, giving religious instructions.
(2.) The history of this case, like all matters which travel to the Apex Court, is chequered, and bears a brief narration. The West Bengal Madrasah Service Commission Act, 2008 was enacted. Immediately prior thereto, appointments to Madrasahs were made by the School Service Commission constituted under the West Bengal School Service Commission Act, 1997. After the enactment of the Act of 2002, the West Bengal Madrasah Service Commission Recruitment (Selection and Recommendation of persons for Appointment and Transfer to the Posts of Teacher and Non-Teaching Staff) Rules, 2010 were framed. Under the provisions of the Act of 2008 and the Act of 2002, the entire power of appointment of teaching and non-teaching staff in Madrasahs, became dependent solely on the recommendation of the said Madrasah Service Commission. While the appointment was still to be made by the Managing Committee, the recommendation of the Service Commission was binding on the Managing Committee. It is nobody's case that the said Madrasah Service Commission was constituted or operated on money remitted by Wakfs under Islamic law. It operates on funds provided by the public exchequer that is to say, the State of West Bengal. The State of West Bengal as a federating state in India, is secular and not an Islamic State. Therefore, an agency or instrumentality of the secular state, ultimately decided who would be appointed as a teaching or nonteaching staff in a religious minority educational institution where inter alia religious instruction is also given.
(3.) This was challenged in several writ petitions. Ultimately, in the judgment rendered by a coordinate bench in the case of Contai Rahmania High Madrasah and Another-v-The State of West Bengal and Others reported in, 2014 2 CalLT 332 equivalent to 2014 SCC Online Cal 5787, the said Act of 2008 and the Rules made thereunder were held to be ultra vires. This was carried in appeal by way of MAT No.473 of 2014 by the State of West Bengal, and the said appeal was dismissed by a speaking order dated March 10, 2016 by an Hon'ble Division Bench of this Hon'ble Court, which upheld the opinion of the coordinate bench that the said Act was a violation of Articles 29 and 30 of the Constitution of India. Thus, with the Act being held to be ultra vires, and the appeal being dismissed, the rules made thereunder and also held to be ultra vires could not survive.;