The Calcutta High Court noted that in the case of the transfer of teachers, the welfare of the students is an important consideration, but if the teacher fulfills the criteria for transfer then the transfer may be given effect from a future date and the appropriate authority must take steps to fill up the resultant vacancy.
Brief Facts:
The Current Appeal arises out of a writ petition, wherein the order of the Head of the Institution has been challenged. According to the order of the head of the institution, the application of the petitioner who is an Assistant Teacher in the subject of Sanskrit was rejected on the ground of “out of 10 percent”. She applied for transfer through the Utsashree Portal thrice. The first transfer application was refused by the district inspector of School (S.E), Uttar Dinajpur on the ground of Single Teacher, this order was not challenged by the petitioner. The second and the third application were rejected on the ground of “out of 10%”, after the third time, the petitioner challenged the order of the Head of the Institution for refusing to consider her application for transfer by filling a writ petition.
The learned single judge read the rules laid down in the Gazette Notifications and the transfer Rules of 2015, according to the Gazette notification dated January 3, 2022, the court noted that the same was to be applied to a school where the sanctioned strength of teacher is 5 or less and in the present case since the strength of teachers was 42, the gazette notification had no manner of application or relevance in the facts of this case. The learned single judge dismissed the writ petition and noted that the right to opt for transfer is not a vested right of a teacher which is a well-settled law, but there are provisions wherein the teacher can opt for transfer which cannot be ignored.
Contentions of the Appellant:
The Learned Counsel for the Appellant relied upon the decision of the coordinate bench in Amar Jana Vs. West Bengal Central School Service Commission, Secretary & Ors. And accordingly, it was submitted that the application for transfer has to be considered on the basis of the relevant circular prevalent at the relevant time and not in terms of any subsequent circular unless it has been made retrospective. It was then contended that the record reveals that the writ petitioner was entitled to the benefit of transfer having regard to the rules existing and applicable to her at the time of consideration of her application.
Contentions of the Respondent:
The Learned Counsels for the Opposite side submitted that the pupil-teacher ratio should be the paramount consideration for deciding the transfer and according to the notification dated 29th September, 2022 the teacher has no vested right to claim transfer.
Observations of the Court:
The court first noted that they are not unmindful of the fact that because of the Right of Childre to Free and Compulsory Education Act, 2009 it is the obligation of the state to implement the provisions of the said act. It was further accepted that there is a need for rationalization of the policy of transfers of teachers. It was then noted that the service conditions give the right to claim transfer on fulfillment of certain conditions and an application for transfer has to be considered on the basis of the prevailing rules and the court then noted that they do not find any material to reject the application of the petitioner. Court noted that no sufficient material was produced before them to justify the stance of the Head of the Institution for rejecting the application for transfer. It was also noted that the argument made that the pupil-teacher ratio was a relevant factor is not borne out from the impugned order of the Head of the Institution. The court then concluded that in an appropriate situation, the interest of the student could be the overriding consideration, however, if a teacher fulfills the eligibility for transfer under the relevant existing rules the same can be given effect.
The decision of the Court:
The Calcutta High Court directed the appropriate authority that is the Commissioner of School Education to consider the application for transfer of the petitioner on verification of the record and production of relevant documents and the application of transfer was directed to be considered on the basis of the prevalent norms and accordingly, the order under challenge was set aside.
Case Title: Prapti Chakraborty Vs. State of West Bengal & Ors.
Coram: Justice Uday Kumar and Justice Soumen Sen
Case no.: MAT 205 of 2023 with I.A No. CAN 1 of 2023
Advocate for the Appellant: Mr. Biswarup Biswas - For the Appellant,
Advocate for the Respondent: Mr. Sourav Mitro - For W.B.C.S.S.C
Mr. Biswabrata Basu Mallick - For the State
Ms. Koyeli Bhattacharyya - For W.B.B.S.E
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