PROTIK PRAKASH BANERJEE,J. - (1.) The writ petition is moved on service. Affidavit of service filed in Court is taken on record.
(2.) In 2013 by an advertisement dated February 27, 2013 the Madrasah Service Commission advertised for a full time approved teacher in a permanent post of non-Government aided Madrasah for general transfer and mutual transfer in terms of Rules 33 and 34 of the West Bengal Madrasah Service Commission Recruitment Rule, 2010. The Madrasah Service Commission exercised this jurisdiction in terms of Section 8 of the West Bengal Madrasah Service Commission Act, 2008. The writ petitioner applied for the said transfer in prescribed form in terms of Rule 33. However, on the contention that the Commission did not hold any counselling for general transfer the writ petitioner filed a writ petition being W.P. 26644(W) of 2015 with the prayer for a transfer to any Madrasah of her choice. This was disposed of by a coordinate Bench by an order dated October 15, 2015 with the direction to consider and decide the said application in accordance with law. The present writ petitioner carried the order dated October 15, 2015 in appeal to the Hon'ble Division Bench. The Hon'ble Division Bench was pleased to dispose of the said appeal being MAT No. 233/2016 by an order dated March 7, 2016 which is effectively a similar order like the single Bench of considering and disposing of the application for general transfer by a reasoned order. The writ petitioner was given an opportunity of being heard in terms of the said order and the relevant portion of the reasoned order passed by the Chairman of the West Bengal Madrasah Service Commission is extracted below:- "..Before considering her matter, I have perused the relevant records of the Commission wherefrom it appears that her name was listed at Sl. No. 22 in Geography (H/PG) Subject. From the records, it also appears that the Division Bench of the Hon'ble High Court at Calcutta in terms of an order dated 9th December, 2015 had been pleased to declare the West Bengal Madrasah Service Commission Act, 2008 as unconstitutional. Apart from that two Special Leave Petitions bearing Nos. SLP (C) 6661 of 2016 and 11877 of 2016 were also filed before the Hon'ble Apex Court of India by some Teachers and empanelled candidates challenging the said order dated 09.12.2015 and the Hon'ble Apex Court of India in terms of an order dated 14.03.2016 was pleased to stay of operation of the order dated 9.12.2015 during pendency of the said Special Leave Petitions. Now, upon perusal of the relevant records and the solemn order dated 07.03.2016 passed by Their Lordships the Hon'ble Justice Soumitra Pal and the Hon'ble Justice Mir Dara Sheko in the said appeal bearing MAT No. 233 of 2016 as stated above, I consider the matter in accordance with law and decided that the application for general transfer of said Sutapa Sahoo will be taken into consideration at the time of counselling of all candidates and that too after final verdict of the said two Special Leave Petitions now pending before the Hon'ble Apex Court of India..."
(3.) Therefore, it is that the Commission refused to call the petitioner for counselling. It merely postponed the counselling to a time when the Hon'ble Supreme Court would decide the Special Leave Petitions being SLP (C) 6661 of 2016 and 11877 of 2016 as stated above and expressed its inability to finally decide the question of transfer of the petitioner because of the interim order passed by the Hon'ble Supreme Court passed in connection with the above two Special Leave petitions. Against this reasoned order dated June 9, 2016 and communicated on June 17, 2016 the writ petitioner moved a writ petition being W.P. No. 21983(W) of 2016 and in the said writ petition a coordinate Bench of this Court by an order dated September 23, 2016 was pleased to record as follows:- "It is submitted by the learned counsel appearing for the Madrasah Service Commission that the Division Bench of this Court in AST 192 of 2014 together with other similar Mandamus appeals passed an order on 9th December, 2015, whereby the Division Bench after setting aside the Madrasah Service Commission Act, 2008 held that since the Act of 2008, according to the Division Bench is nothing but violation of the fundamental rights guaranteed by the Constitution to the minority institutions, it is exclusively left to the concerned Madrasahs either to accept contention of such teachers, who are already in service and permit them to continue in service and/or to provide appointment to the candidates who are empanelled by the Commission awaiting such appointment. After the said order of the Division Bench a Special Leave Petition was moved by the Supreme Court and an interim order was passed initially on 10th May, 2016, which was subsequently extended by an order dated 7th September, 2016, whereby the Hon'ble Apex Court extended the interim order subject to the condition that the teachers and employees may continue even during the pendency of the appeal before the Apex Court. Moreover, it appears from the writ petition that the Division Bench in this matter passed an order on 7th March, 2016 and pursuant to the said order the Chairman Madrasah Service Commission passed the impugned order. Rule 33 of West Bengal Madrasah Service Commission Recruitment (Selection and Recommendation of Person for Appointment of person to the Post of Teacher and Non-teaching Staff) Rules 2010, gives a guidelines to deal with the application filed by the teacher for transfer. Sub-rule 2 of the said Rule 33 lays down the procedure for such transfer. It says that teacher/non-teaching staff seeking transfer shall have to apply in a prescribed format (with an advance copy direct) to the District Inspector of Schools (SE) in case of transfer within the District or to the Director of Madrasah Education, West Bengal in case of transfer from one district to another, through proper channel with necessary document(s). The District Inspector of Schools (SE) shall forward the same comment/views to the Commission to the Commission direct in case of transfer within the district or to the Director of Madrasah Education, W.B. in case of transfer within the district. Thereafter the Commission shall recommend the name of the candidate to the vacancy applied for, if suitable or to a suitable available vacancy in order of preference of the candidate after counselling. In the reasoned order it has been mentioned by the authority that the petitioner has been placed in the panel under serial No. 22 in Geography (H/PG) Subject. The authority has expressed its inability to take up the matter of the petitioner for counselling because of the pendency of the Special Leave Petition before the Hon'ble Apex Court. Therefore it has been observed that because of pendency of the matter in the Hon'ble Supreme Court and the order passed from time to time the Madrasah Service Commission cannot be in a position to consider the petitioner's counselling as per the aforesaid rules. However, this submission cannot be accepted and if the Commission is functioning then the said Commission could have passed the impugned order on 17th June, 2016 when the initial order was passed by the Hon'ble Supreme Court on 10th May, 2016. In such circumstances, if this Court holds that the order impugned has been correctly passed since the authority has exercised its jurisdiction, it could have by-pass the issue relating to the petitioner's application seeking transfer and the consequential counselling, which the authority is under obligation to take as per the aforesaid Rules, the impugned order cannot be sustained and the same is hereby set aside. The west Bengal Madrasah Service Commission is directed to reconsider the matter once again taking in to consideration of the aforesaid rules. Such consideration is to be made within a period of six weeks from the date of communication of this order.";