By Zaidul Haque, TwoCircles.net,
Kolkata: The West Bengal Madrasah Service Commission is unconstitutional and illegal, according to the West Bengal High Court.
Justice Sambuddha Chakrabarti of Calcutta High Court passed this judgment in response to a writ petition of Contai Rahamania High Madrasah of Medinipur East on March 12, 2014.
In the writ petition, on behalf of the Managing Committee, Contai Rahmania High Madrasah Advocate Mr. Soumen Kumar Dutta, Mr. Raghunath Chakraborty and Mr. Abu Sohel argued that in terms of Article 30 of the Constitution the Madrasahs have right to enjoy certain benefits including the right to select and appoint its teaching and non-teaching staff and to administer the same according to its own choice.
The West Bengal Madrasah Service Commission recruit teachers and non-teaching staff for the government aided and recognized Madrasas in the state. There are 614 such institutions. After the HC order, the WBMSC will not be able to recruit.
By a notification, dated October 12, 2007 Government of West Bengal recognized all Madrasahs in the state as minority institutions in pursuance of Article 30 of the Constitution of India. But the West Bengal Madrasah Service Commission Act, 2008 was constituted by the State Government to select and recommend persons to be appointed to the vacant posts of teachers in accordance with the provisions of the Act and the Rules made thereunder,
The Contai Rahamania High Madrasah was initially recognized as Secondary High Madrasah by the West Bengal Board of Secondary Education. Thereafter, it was upgraded to a Higher Secondary Madrasah with effect from the academic session 2001-02 and government aided this Madrasa is declared as Minority Institution under the Article 30 of Indian Constitution by the notification in 2007 of West Bengal Government.
The Contai Rahamania High Madrasah contended this on the ground that it has been declared a minority institution.
The constitutionality of the said provision is really under challenge as, according to the petitioners, it infringes the right conferred by the Constitution and the effect of such legislation makes serious inroad into the fundamental rights guaranteed by the Constitution.
The petitioners contend that with this legislation the state has virtually intended to take away the right to administer the institution effectively in as much as the right to select and appoint teachers is a major constituent component of exercise of such a right and the impugned section of the legislation aims at nullifying the effect of the fundamental right guaranteed to a minority institution.
The petitioners had prayed for declaring Section 8 of the Act as ultra vires.
What creates more problems for the Madrasah are the effects of the recommendation as provided in Sections 10 to 12 of the Act. According to Section 10 the Managing Committee or the Administrator or the Headmaster/ Headmistress shall be bound to appoint the candidate recommended by the Commission to the post of a teacher in the Madrasah as per the vacancy report. Section 11 provides that any appointment of a teacher made on or after the commencement of the Act in contravention of the provisions of this Act shall be invalid and shall have no effect and teachers so appointed shall not be teachers within the meaning of Section 2(s) of the Act.
The consequence of not following the recommendation of the Managing Committee is the penalty provided in Section 12 of the Act. This section gives right to the State Government to direct the Board to dissolve the Managing Committee or to discharge the Administrator and to stop all financial assistance to such Madrasah if they refuse, fail or delay to issue the appointment letter to the candidate recommended by the Commission within the period stipulated for the same.
Petitioners raised the question on a Government Order bearing no. 1092-/ES/S/1014-104/2011, dated June 6, 2012, issued by the School Education Department, Law Branch, Government of West Bengal. The subject-matter of the said order was recruitment procedure in Christian Minority Institutions enjoying special rules for management.
The said order specifically provided that appointment of Headmaster, Headmistress, Assistant Teacher, Non-Teaching Staff, etc. of those institutions shall be given after selection from eligible candidates through an open advertisement of vacancies and such appointment shall be made by the school authority as per the selection procedure and selection committee which is to be duly constituted by the school authority in question.
Such appointment shall be subject to the approval of the concerned District Inspector of Schools. It is not understood if one minority enjoys the privilege of selecting and appointing a teacher why not the other minorities also will equally enjoy it. To allow this state of affairs to continue might perhaps raise suspicion about the possibility of an inverted discrimination between the two communities and state cannot in exercise of its powers indulge in any act discriminatory to the interests of different communities. That will be against the constitutional mandate and larger interest of national integration.
On behalf of Madrasah Service Commission Advocate Jayanta Mitra, Mr. Ekramul Bari, Mr. S. M. Ali and for the State Advocate General Bimal Chatterjee, Tapan Mukherjee, Mr. Nilotpal Chatterjee argued the case.
After taking three phased hearing on 19, 21, 26 and 27th February 2014 finally given judgment on 12th March 2014, Justice Sambuddha Chakrabarti said that further recruitment by the Service Commission in government aided Madrasas should be barred. This will, however, not affect those already taken in employment.
TCN talked to Teacher InCharge of the Contai Rahamania High Madrasah Ahmed Hossain. He said that this judgment is not only for one Madrasa but will be beneficial for all.
The West Bengal Madrasa Service commission had advertised only few days back for TET examination of 6th SLST (AT/UG) for all government recognized madrasa to be held on 29th March to recruit teachers, headmaster, non-teaching staff etc. With this HC order, that recruitment drive might be frozen.
TCN talked to Minister of Minority Affairs and Madrasa Education Department of the state Giasuddin Molla. He said that the future course of action will be divided soon after discussion with the state law Minister Chandrima Bhattacharya and others law officials.
The Chairman of the Madrasah Service Commission Abdur Rauf said that he will be in a position to react only after reading the court judgment.
Educationalist Munshi Abul Kashem has termed this as historical judgment. He said that according to Article 30, “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice” and hence Madrasah Service Commission should not interfere in recruitment.