'Why A Judge From Bengal Being Avoided?' : Justice Dipankar Datta Questions Listing Of WB Madarsa Matter Before Another Bench

Justice Dipankar Datta of the Supreme Court today questioned why the Supreme Court Registry suddenly kept a matter before another coordinate bench although he was part of the bench which had passed three orders in connected similar matters. "We are seriously questioning the system followed by the Registry. How could these matters go before another bench? If the coram rule is to be followed, it should come before me. Why is it that a judge from Bengal is being avoided? We know the ins and outs of what has happened there," Justice Datta remarked.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, now similar petitions are 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.Today, the matter was being heard by a bench comprising Justice Datta and Justice AG Masih.Justice Datta asked the counsel, Advocate Srija Choudhary Sarkar: "You madam answer one question. There is your statement. 2016, DB judgment was stayed. If DB judgment is stayed, either you don't make an appointment or to make an appointment, you do it according to the policy that was prevailing prior to DB order. So, it has to be in terms of the Service Commission Act."Sarkar informed that there was a vacuum period when the 2015 Rules were not there and the 2016 Rules were yet to be framed. Justice Datta replied that there were Rules under the 2008 Act, even though the Act was struck down, the Supreme Court upheld the validity of the Act, which means the validity of the Rules is automatically also upheld. "Where is the question of vacuum?," he asked.Sarkar responded that there were 2010 Rules which also needed to be considered. However, Justice Datta replied that the 2010 Rules did not have any existence once the High Court struck down the West Bengal Madrasah Service Commission Act, 2008."Now, there was a small window available where certain Rules had to be framed in terms of the DB order but it was stayed in 2016. If the DB order gets stayed in 2016, how can in 2018 somebody be recruited just because he is known to the Secretary of the School without any competition. There is what is appearing madam...Your statement is recorded by the Committee. It is Justice Ravindra Bhat and myself who had constituted a committee, chaired by a retired judge of the High Court. Then after these findings, today this matter is placed before us, we don't know. You are unfortunate. Had this been before another bench, you would have gotten a notice. We are not going to issue a notice...This is how matters are getting listed before other Courts avoiding the coram rules. We don't say you are at fault, it is our registry which is at fault. We must set our house in order. Sometimes, it goes according to roster rules and sometimes it goes according to coram rules. One uniform policy has to be followed, either you follow roster or you follow coram," Justice Datta remarked.The bench observed in the order:...

'Why A Judge From Bengal Being Avoided?' : Justice Dipankar Datta Questions Listing Of WB Madarsa Matter Before Another Bench

Gursimran Kaur Bakshi

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