IMPORTANT POINT
The court clarified the jurisdictional issue and upheld the application of the transfer rules under the 2008 Act for teachers appointed prior to the introduction of the Act, emphasizing the loss of control of the School Education Department over the Madrasha due to the bifurcation of jurisdiction.

JUDGMENT :

Soumen Sen, J.

1. The appeal is arising out of an order dated 22nd February,2022 in which the learned Single Judge directed the Principal Secretary to the School Education Department to give an opportunity of hearing to the Madrasha Service Commission and the petitioners in order to consider the right of the petitioners as teachers who were appointed prior to the introduction of the west Bengal Madrasha Service Commission Act in 2008 and pass a reasoned order keeping in mind that the teachers of the institutions, which were given special rights to appoint their own teachers and not by the School Service Commission (like Ramkrishna Mission) have been given the right recently to get the advantage of the General transfer.

2. Although the said order appears to be innocuous but having regard to the important question raised with regard to the jurisdiction of the Principal Secretary of School Education Department to consider the representation for general transfer of teachers recruited prior to coming into force of the Madrasha Commission Act, it needs to be decided whether after their service have been transferred to Madrasha Schools their case can be considered for general transfer under the West Bengal School Service Commission Act, 1997 (in short ‘1997 Act’), although they were all recruited under the School Service Commission Act that, is to say, prior to the bifurcation.

3. Both the School Education Department and West Bengal Minority Affairs an Madrasha Education Department are aggrieved by the impugned order.

4. The appellants are represented by Mr. Advocate General. The Advocate General has given a brief background of the relevant statute applicable in the present case.

5. The West Bengal School Service Commission Act, 1997 was promulgated on 1st April, 1997 with no provision for transfer like Section 10A, 10B and 10C recently introduced and upheld by the Hon’ble Division Bench of this court.

6. During 2006-07 the writ petitioners were appointed by the respective managing committee of Madrasha, as assistant teacher in Madrasha on the recommendation of School Service Commission.

7. Mr. Advocate General has referred to paragraph 2 of the writ petition where the details of the appointments of the West Bengal have been mentioned.

8. On 22nd October, 2008 the West Bengal Madrasha School Service Commission Act, 2008 (in short ‘2008 Act’) was promulgated.

9. The 1997 Act was amended wherein the word "Madrasah" was excluded from the definition of "school" in Section 2(n) and the words "Madrasah Teacher" were excluded from the definition of Teacher" in Section 2(p).

10. Section 8 of the 2008 Act was amended on 9th June, 2010 to include transfer of teachers/non teaching staff of the Madrasa Service Commission. The West Bengal Madrasah Service Commission Recruitment (Selection and recommendation of persons for Appointment and Transfer to the Post of Teacher and Non-Teaching Staff) Rules, 2010 has been promulgated on 12th November, 2010 under Section 18, read with, inter alia section 8 of the 2008 Act. Rule 33 of the said Rules sets out the procedure for transfer of Madrasah Teachers.

11. Section 10(B) was inserted in the 1997 Act on 11th July, 2013 w.e.f. 20th January, 2014, thereby introducing general transfer of teachers in schools. The West Bengal School Service Commission (General Transfer) Rules, 2013 was promulgated on 3rd October, 2013 under Section 17, read with Section 10(B) of the 1997 Act (2013). The West Bengal School Service Commission (General Transfer, Transfer on Special Grounds and Reallocation) Rules, 2015 was promulgated on 27th February, 2015 in supersession of the 2013 Rules. On 28th June, 2021 the Utsashree online transfer portal was introduced, to give an opportunity to teachers in schools to apply for transfer to any school in the State of their choice.

12. A writ petition bearing WPA No. 1202 of 2022 was filed by various teachers appointed to Madrasahs as per recommendation of the West Bengal School