JUDGMENT Amit Talukdar, J. 1. "......ANGER, even judicial anger, solves no problems but creates many." Krishna Iyer, J. speaking for himself and on behalf of D.A. Desai.J. and A.P. Sen, J dissenting for the Three Judge Bench in Rajendra Prasad v. State of U.P. : (1979)3 SCC 646 has held so. 2. ONE could, perhaps, little imagine that the same may have axiomatic application at some posterior stage. While considering this intra party Appeal, we are ruefully reminded of the same. In order to have a whole hog of the issue that would surface for our discussion in this intra party Appeal, we would so as to have a purposeful deliberation, set out in details background facts leading to filing of the present Appeal. 3. EARLIER in connection with F.M.A. 2158 of 2011 the Division Bench on 19/01/2011 faced with a very abysmal situation, where it was reported that notwithstanding the urgency, the Writ Application was not being attended to, passed the following order: "In some formidable compulsion and forensic exigency, we would be required to pass the order on this Appeal which otherwise the Appeal Court would be reluctant to do. There is a pending Writ Application before the Hon'ble Single Judge which has been situated in the position has been reflected in paragraph 9 of the Stay Petition after being placed from the earlier Bench with the change of determination. 4. WHEN the Matter was relegated before the learned Trial Court in terms of the order passed by the said Division Bench, the learned Single Judge, after hearing the Petitioners and the State 'rejected the Writ Petition relying on a Division Bench decision in Manindra Nath Singha and Ors. v. The State of West Bengal and Ors. : 2006(2) CLJ (Cal) 489 on the premises that as the selection process through the West Bengal Madrasah Service Commission was in vogue, claim of the Petitioners as organiser teaching and non-teaching staff cannot claim any right for their appointment. v. The State of West Bengal and Ors. : 2006(2) CLJ (Cal) 489 on the premises that as the selection process through the West Bengal Madrasah Service Commission was in vogue, claim of the Petitioners as organiser teaching and non-teaching staff cannot claim any right for their appointment. While this would be within the realm of our power of extended Judicial Review of the function performed by the learned Single Judge, which we would discuss threadbare at a subsequent stage on merit - we feel very uncomfortable with the prelude of the order passed by the learned Single Judge criticising the order of the Division Bench in a manner that does not either behove the Judicial functionary or is concomitant with Judicial Discipline and restraint. The learned Single Judge held: "This is a very rare and unique case where the Appeal Court, without following the mandate given under clause 15 of the Letters Patent 1865, has not only entertained a mandamus appeal even before the writ petition was moved before the Writ Court, but by usurping the jurisdiction of the writ court, also passed some interim order till the disposal of the writ petition, without limiting its operation till the disposal of the appeal." 5. LEADING an attack on the said order passed by the Division Bench in F.M.A. 2158 of 2011 on 19/01/2011, the learned Single Judge proceeded to reject the Writ Application. 6. IN Zahira Habibullah H. Sheikh v. State of Gujarat : (2004) 4 SCC 155, the Supreme Court dwelling on required Judicial balance and sobriety in paragraph 83 had held: "...........Decency, decorum and judicial discipline should never be made casualties by adopting such intemperate attitudes of judicial obstinacy." Sinha, J, writing the dissenting note in State of U.P. v. Jeet Singh Bisht : (2007)6 SCC 586 had held: ".....Doctrine of judicial restraint applies even in this realm. We should not forget other doctrines which are equally developed viz. judicial discipline and respect for Brother Judges." 7. We should not forget other doctrines which are equally developed viz. judicial discipline and respect for Brother Judges." 7. NOW, if we travel behind, we will see that Gajendragadkar, Chief Justice writing the Judgment for the Three Judge Bench of the Supreme Court in Shri Bhagwan v. Ram Chand : AIR 1965 SC 1767 had held: "It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, needed to be reconsidered, he should not embark. upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself." 8. IN paragraph 26 of the decision of G.P. Gram Panchayat Adhikari Sang v. Daya Ram Saroj reported in (2007)2 SCC 138 the Supreme Court had held: "26. Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity." Even though one should be magnanimous to overlook such trivia and have the charity of mind to ignore it, fact would remain that this being a Court of record, what I say is for the ears, which is likely to be forgotten but what I write forms part of the Record for posterity. It never augurs well for the learned Trial Court to criticise the Appeal Court's decision. It never augurs well for the learned Trial Court to criticise the Appeal Court's decision. Neither it is in Judicial taste nor of the recipe of Judicial restraint. Even the other day such a situation could not be conceived; but yet it is so. 9. BHAGWATI, J. speaking for the Four Judge Bench of the Supreme Court in A. M. Alisonv. B. L. Sen : AIR 1957 SC 227 while considering the scope of Appeal in paragraph 17 had held: ".....we would refuse to interfere unless we are satisfied that the justice of the case requires it...." 10. SINHA, J. speaking for the Bench in Margunath Anandappa urf Shiwappa Hanasi v. Tammanasa and Ors.: (2003) 10 SCC 390 in paragraph 36 had held: "...........It is now also well settled that a Court of appeal should not ordinarily interfere with the discretion exercised by the Courts below." Sinha, J. writing the Judgment for the Supreme Court in Manjunath Anandappa urf Shiwappa Hanasi v. Tammanasa and Ors. (supra) referred to amongst other several decisions, the decision of Gujrat Steel Tubes Ltd. Etc. v. Gujrat Steel Tubes Mazdoor Sabha and Ors. : AIR 1980 SC 1986, which, in our opinion, would be very much profitable for discussion in the present context. In the said decision it has been held by the Supreme Court as follows: "........And an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine." 11. IN other words, unless the finding carried at the instance of the Appellant is wholly wrong, we would not assume jurisdiction. From a plain reading of the order under Appeal, although we are not supposed to pick holes in the same but we feel the decision rendered by the Hon'ble Single Judge is porous in many places. 12. THE learned Single Judge was practically aghast with the order of the Division Bench in F.M.A. 2158 of 2011 passed on 19/01/2011 and had held: This is a very rare and unique case where the Appeal Court, without following the mandate given under clause 15 of the Letters Patent 1865, has not only entertained a mandamus appeal even before the writ petition was moved before the Writ Court, but by usurping the jurisdiction of the writ court, also passed some interim order.......". The Division Bench, for which purpose, we called for the Records of the said File of F.M.A.2158 of 2011, had, in some formidable compulsion and forensic exigencies acted likewise, which it felt was required, as otherwise, it would have been reluctant. Reason behind such an extraordinary step, which the learned Single Judge, much to its chagrin felt it was "very rare and unique" - that the Writ Application did not receive the urgency it required. It was shown that the matter was running as Item No. 15 before the erstwhile learned Single Judge, who had the determination at the relevant point of time. Thereafter when it appeared before the learned Trial Judge as Item No.21, it was deescalated as Item No. 1082. Obviously, cry for urgency not having received its proper appreciation, necessarily, the Appeal Court not being a silent spectator acted on the basis of the prayer. After all, refusal to pass an order is also an order. In its limited scope, rightly, the Division Bench interfered or else, it would have been simply a tweedledum and tweedledee and the sense of Justice would have been lost forever. 13. DALVEER Bhandari Speaking for the Supreme Court Bench in V. K. Jain v. High Court of Delhi : (2008)17 SCC 538 in paragraph 58 culled out: 58. II "Judicial discipline and restraint are imperative for the orderly administration of justice." HI "Judicial decorum makes it imperative that the Courts' judgments and orders must be confined to the facts and the legal position involved in the cases and the Courts should not deviate from propriety- moderation and sobriety." V. "Majesty of the Court would be enhanced by practising discipline and self-restraint in discharging of all judicial functions. All actions of a Judge must be judicious in character." 14. HIS Lordship in sub paragraph XVIII of paragraph 58 of the said decision beautifully dealt with the situation; 'To err is human and no one is infallible. A Judge who has not committed an error is yet to be born. Judicial decorum has to be maintained at all times and even where criticism is justified. It must be in a language of utmost restraint always keeping in view that the person making the comment is also fallible." The Constitution Bench in Alok Kumar Roy v. Dr. A Judge who has not committed an error is yet to be born. Judicial decorum has to be maintained at all times and even where criticism is justified. It must be in a language of utmost restraint always keeping in view that the person making the comment is also fallible." The Constitution Bench in Alok Kumar Roy v. Dr. S. N. Sarma reported in AIR 1968 SC 453 speaking through K. N. Wanchoo Chief Justice of India in penultimate portion of paragraph 7 has held: "........It is necessary to emphasise that judicial decorum has to be maintained at all times and even where criticism is justified it must be in language of utmost restraint, keeping always in view that the person making the comment is also fallible....." 15. ALTHOUGH, sitting in Appeal neither we suffer from any sense of pedagogy nor would view the arena of the learned Single Judge from a subaltern angle, but there are some basics of Judicial Discipline as the Three Judge Bench of the Supreme Court in Dr. Vijay Laxmi Sadho v. Jagdish reported in (2001) 2 SCC 247 speaking through Dr. A. S. Anand Chief Justice of India in paragraph 33 has held: ".........Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs." 16. WE are emboldened on this aspect to refer to the decision of Three Judge Bench of the Supreme Court in B.P. Achala Anand v. S. Appi Riddy : (2005)3 SCC 313 where Shri R.C. Lahoti, Chief Justice of India in paragraph 1 had held: "Unusual fact situation posing issues for resolution is an opportunity for innovation. Law, as administered by Courts, transforms into justice." Furthermore, to quote Justice Oliver Wendel Holmes; "the life of the law has not been logic; it has been experience. The felt necessities of the times, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." WE are also tempted to quote; "Litigants want judgments, not rhetoric, so that they can get on with their lives......" [Judge Wald, District of Columbia Circuit: (1995)62 U. Chi. LR p. 1385] What the Division Bench intended, was wholesome Justice but the learned Single Judge felt it was otherwise. After all, law cannot be arithmetic, which is a good servant but a very bad master, that too had the learned Single Judge any qualms with regard to the order of the Division Bench in the prism of clause 15 of the Letters Patent, it was not suavely pertinent to have obliquely harped on the wisdom of the orders. We do not wish to elaborate any further. We would simply say O tempora o mores. *************** 17. NOW to the basics. 18. FOR this purpose we need to see for what purpose the Appellants chose to approach the learned Single Judge, where their Writ Application was on the verge of antiquity till such time the Division Bench salvaged the position. The Appellants claim the following relief: "(a) A Writ in the nature of Mandamus commanding the respondents and/ or subordinates to approve the appointment of the petitioners as organising teaching and non-teaching staff in Chatra Khoda Box High Madrasah, P.O. Gokarna, District Murshidabad." Learned Single Judge read on the basis of annexure-P4 of the Writ Application, which was a letter addressed by the Secretary of the Madrasah Education Board (Respondent No.4) to the Secretary of the Managing Committee of Chatra Khoda Box Junior High Madrasah (Respondent No.3) wherein clause 7 it was written"...........The teaching and non- teaching staff of the Madrasah, should be appointed by the Managing Committee only on the recommendation of West Bengal Madrasah Service Commission constituted for selection of teaching and non-teaching staff." On the basis of the same, the learned Single Judge concluded that neither the Managing Committee nor any organiser teaching and non-teaching staff can claim appointment in the said Madrasah. He relied on the Division Bench decision of this Court in Manindra Nath Sinha and Ors. v. The State of West Bengal and Ors. (supra) and rejected the Writ Petition by way of holding".......when the selection process through the West Bengal Madrasah Service Commission was in vogue, the petitioners who are claiming themselves as organiser teaching and non-teaching staff of the said Madrasah, cannot claim any right either for their appointment in the said Madrasah as organiser teaching and non-teaching staff nor they can claim approval of their appointment in the said Madrasah." 19. WE would see how far the same can be sustained in the eye of the submissions made at the Bar. 20. ACCORDING to Shri Chatterjee, who was duly assisted by Md. Manwar Ali for the Appellants, the Writ Petition was dismissed at the motion stage without considering the materials on record. Shri Chatterjee submitted the learned Single Judge ought to have verified the claim of the Appellants with regard to their service since 1996 by way of calling for the records and having decided the case on Affidavit. Shri Chatterjee thereafter pointed out from the order under Appeal that since the Appellants were continuing in service, the necessary Government Circulars enabled them to do so and they were not covered by the onset of the Commission, as erroneously held by the learned Single Judge. 21. SHRI Mitra for the State-Respondent has opposed the submissions of SHRI Chatterjee. According to SHRI Mitra, as the learned Single Judge has discussed the legal position and the facts of the case on the basis of which the Madrasah was set up - the Appellants have failed to make out any case in their support and the Appeal was liable to be dismissed. 22. HE read out the Judgment and Order under Appeal and submitted that the appointment of the Appellants should be governed by the Rules and no relief can be claimed by the Appellants in view of the existing position. We have found that primarily, the learned Single Judge 'rejected' the Writ Petition on the ground that the appointment to be regulated by the Madrasah Service Commission. 23. LITTLE historiographical attempt would be necessary so as to gain control over the situation which has befallen before us on account of the finding of the learned Single Judge. 24. THE West Bengal Board of Madrasah Education Act came into effect in 1994. We do not find that the Director of School Education has been empowered, to deal with the recruitment procedure under the said Act; although the pattern being same as that of West Bengal Secondary Education Act, and is followed by the latter through a Executive Fiat. It appears that the Madrasah as it was at the relevant state, was recognised and the Service of the Appellants were approved by the District Inspector of Schools (Respondent No.2) in 1995. It appears that the Madrasah as it was at the relevant state, was recognised and the Service of the Appellants were approved by the District Inspector of Schools (Respondent No.2) in 1995. The communication made by the Secretary, Madrasah Education Board (Respondent No.4) to Secretary of the Managing Committee of the concerned School (Respondent No.3) that is Annexure-P4 of the Writ Application has expressly shown that "...........The teaching and non-teaching staff of the Madrasah, should be appointed by the Managing Committee only on the recommendation of West Bengal Madrasah Service Commission constituted for selection of teaching and non- teaching staff." It is here, we are required to join issue. 25. IT is found that in the District Level Inspection Team, the names of the Appellants have figured. This is one aspect of the matter. 26. THE other aspect relates to the Appellants' functioning since 1996 whereas the Madrasah Service Commission Act, 2008 came into effect on and from 22/10/2008. The learned Single Judge had referred to the Division Bench decision in Manindra Nath Sinha and Ors. v. The State of West Bengal and Ors. (supra). In our view, the said Division ench decision cannot be viewed as sacrosanct for the present. It has been appealed against before the Hon'ble Supreme Court. Their Lordships, the Hon'ble Mr. Justice D.K. Jain and Hon'ble Mr. Justice H.L. Dattu in connection with Special Leave to Appeal (Civil) No(s).2130/2007 on 06/09/2010 passed the following order: "UPON hearing counsel the Court made the following ORDER Leave granted. The appeal will be heard on the SLP paper book. Additional documents, if any, may be filed by the parties. Hearing expedited." 27. AS such, when the Matter is subjudice before the Hon'ble Supreme Court, it cannot be accepted that the view expressed by the Division Bench, which persuaded the learned Single Judge to reach its finding, can be said to be conclusive. 28. Additional documents, if any, may be filed by the parties. Hearing expedited." 27. AS such, when the Matter is subjudice before the Hon'ble Supreme Court, it cannot be accepted that the view expressed by the Division Bench, which persuaded the learned Single Judge to reach its finding, can be said to be conclusive. 28. NOW, once it has been seen that the 1994 Rule does not speak about the mechanism of recruitment but the methods in respect of the same was practically borrowed from the appointment Rules of the West Bengal Secondary Education Act, 1963 - it would be necessary as to whether the appointment of the Appellants can be said to be dehorse the recruitment procedure existing at the relevant time without being least guided by the West Bengal Madrasah Service Commission Act, which came into effect on 22/ 10/2008. In our opinion, a prima facie case for interference in Appeal has been made out. 29. ACCORDINGLY, we set aside the order passed by the learned Single Judge. 30. THE Appellants are stated to be still in service. They will not be disturbed. THE issue involved is required to be sorted out on the basis of investigation of facts. Since the Writ Court decided the issue without directions for Affidavit no clear picture from the other side is available. As such considering the importance of the matter we would kindly request the Principal Secretary, Education Department, Government of West Bengal to look into the matter. He would hear the Appellants and the concerned Respondents and take a decision in the light DLIT report and the case made out by the Appellants in respect of their appointment. Till such time, the Appellants, who are stated to be still in service, would continue on their usual salary and other emoluments. 31. APPEAL allowed. There will be no order as to costs. Shukla Kabir (Sinha), J. I agree. APPEAL allowed