After Justice Datta's Objection, SC Bench Refers WB Madrasa Matters To CJI For Appropriate Listing

A day after Justice Dipankar Datta expressed his disappointment with the Supreme Court Registry for assigning the West Bengal Madrassa matter to another bench, the other bench, comprising Justice Manoj Misra and Justice Ujjal Bhuyan, directed that the matters be kept before the Chief Justice of India for appropriate orders on listing.

The issue arose after a bench comprising Justice Datta and Justice AG Masih, on August 18, came across a petition relating to the West Bengal Madrasah Service Commission Act, 2008 (MASTARA KHATUN Vs DIRECTORATE OF MADRASAH EDUCATION).

Justice Datta was informed that another set of petitions is being heard by a bench comprising Justice Manoj Misra and Justice Ujjal Bhuyan, in which stay orders were passed. He inquired how the Registry could assign a different bench other than him when he has been a part of the bench which passed several earlier orders in similar matters. He remarked, "Why is it that a judge from Bengal is being avoided?"

Next day, the bench led by Justice Misra rescused from hearing the matter. It took into consideration the following observations passed by Justice Datta's bench : "We are, however, completely taken aback at how the Registry of this Court functions while listing petitions invoking jurisdiction under Article 32 of the Constitution involving common issues. In listing such writ petitions, the Registry ought to follow either the 'coram rule' or the 'roster rule'. Placing writ petitions raising more or less common issues before separate Division Benches is beset with the risk of conflicting decisions being rendered which, having regard to the mounting arrears and the time constraints of the Court, should be avoided at all costs.”

In light of these observations, the Justice Misra's bench ordered: "In light of the above observation, we deem it appropriate to direct the office to place the record of these petitions before Hon'ble the Chief Justice of India for an appropriate orders. The matters may be listed in accordance with the orders passed by Hon'ble the Chief Justice of India."

The matter pertains to the West Bengal Madrasah Service Commission Act, 2008, which constituted a commission to appoint teachers in madrasas. In 2015, a division bench of the Calcutta High Court declared Sections 8, 10, 11 and 12 of the 2008 Act ultra vires on grounds that the process of appointment of teachers in an aided Madrasah, which was recognised as a minority institution, was taken over and entrusted to the Commission appointed under Section 4 of the Commission Act.

In 2020, the Supreme Court upheld the constitutionality of the 2008 Act, observing that there is no absolute and unqualified right of appointment for minority educational institutions. It held that the nominations by the Commission as valid and the appointments made, after the disposal of the matter by the High Court, as deemed to be valid for all purposes.In relation to this order, a contempt petition(SNEHASIS GIRI vs. SUBHASIS MITRA) was filed, which was heard by a bench comprising Justice Ravindra Bhat (now retired) and Justice Datta.

In the contempt petition, it was stated that the salaries of teachers, who were appointed after the provisions of the Act were declared unconstitutional by the High Court but before the Supreme Court's judgment in 2020 are being sought without insisting on verifying genuiness of their claims of being teaching/non-teaching staff or having requisite qualification as required by law.

By an order dated February 2, 2023, the bench of Justice Bhat and Datta held that the Court declared the appointments to be valid to the extent, they conformed to the concerned rules and binding norms. It constituted a committee headed by Justice Debi Prasad Dey, retired judge, Calcutta High Court, which would go into all relevant factors and verify the claims of the petitioners.

However, similar petitions were being heard by a bench comprising Justice Manoj Misra and Justice Ujjal Bhuyan, which on July 15 acknowledged that there was a committee constituted by this Court and which held that such appointments were invalid. Issuing notice, the said bench continued an earlier interim order which directs the State Government to ensure that those petitioners who are discharging their duties as teachers are paid their salaries.

Case Details: NAJMA KHATUN & ORS. v. THE STATE OF WEST BENGAL & ORS.|Writ Petition(s)(Civil) No(s). 566/2024

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