Rabi Raut vs State Of West Bengal & Ors
2022 Latest Caselaw 528 Cal

   72
14.02.2022.
 d.p./sh


                            In The High Court At Calcutta
                           Constitutional Writ Jurisdiction
                                   Appellate Side

                                   W.P.A 816 of 2022
                                  IA No. CAN 1 of 2022
                                 (Via Video Conference)


                                        Rabi Raut
                                        -versus
                             State of West Bengal & Ors.


                           Mr. Supriya Chattopadhyay,
                           Mr. Sujit Kumar Maity,
                           Mr. Samaresh Ch. Dhara.
                                      ...For the Petitioner.

                           Mr. Subir Sanyal,
                           Mr. Kamal Mishra.
                                      ...For the Respondent No.4.

Mr. Bhaskar Prasad Vaisya, Mr. Suman Dey.

...For the State.

The petitioner, head teacher of Bidurpur Primary School, Egra South Circle, Purba Medinipur is aggrieved by the Office Memorandum dated 5th January, 2022 issued by the Secretary, Purba Medinipur District Primary School Council whereby he has been transferred, on administrative ground, to Madhupur Primary School, Potashpur North Circle in the same post and scale of pay until further order.

The transfer order mentions that no prayer for transfer shall be entertained for next seven years, if the transfer order is not carried out by the incumbent concerned within fifteen working days from the date of

issue of the memo and disciplinary proceeding against him will be initiated as per Rules.

The petitioner emphatically submits that he is ready to face the disciplinary proceeding that may be initiated against him and he is not at all agreeable to join the transferee school.

It has been submitted that the school in which the petitioner is presently teaching has approximately 190 students with only five teachers. As there is a dearth of teachers in the school where he is teaching, accordingly, he ought not to be transferred on any ground, far less, administrative ground.

It has further been submitted that the transferee school has only 81 students and according to the provisions of law, there is no requirement of head teacher in a school with less than 150 students.

The petitioner relies upon a communication from the Joint Secretary to the Government of West Bengal to the Commissioner of School Education Department dated 4th January, 2022 wherein request has been made to all the District Primary School Councils to maintain the Pupil Teacher Ratio of 30:1 as per the Schedule of the Right of Children to Free and Compulsory Education Act, 2009.

The petitioner was earlier issued an order of transfer in the year 2006 and thereafter, in the year 2011. The petitioner, not being agreeable to the transfer, has not exercised his option for transfer in accordance with the provisions of the Transfer Rules.

It has been submitted that as the petitioner was being transferred suo motu accordingly, an option ought to have been sought for from him in terms of Rule 6(3) of the West Bengal Primary Education (Transfer of Teachers including Head Teacher), Rules 2002.

The last submission of the petitioner is that the transfer order is very cryptic. No reason has been mentioned for transferring the petitioner, apart from the fact that the petitioner was being transferred on administrative ground. No details whatsoever have been mentioned in the order of transfer.

Learned advocate appearing for the Council opposes the prayer of the petitioner.

It has been submitted that the petitioner has been transferred to a school where there are 81 students and only one teacher. If the lone teacher in the transferee school becomes absent, the school invariably closes down due to want of a teacher.

The petitioner being the head teacher of a school, his service is very much required for proper administration and functioning of the transferee school.

It has been admitted that as there is dearth of teachers in both the schools, it is for the Council to rationalize and maintain a balance in the teacher and student ratio.

It has been submitted that the number of students in the school where the petitioner is presently serving is nearly 180 and apart from the petitioner, there are four other teachers who can take care of the students, whereas in the transferee school there is no

one to teach or manage the students if the single teacher becomes absent.

It has further been submitted that the petitioner has not been transferred on the ground of being surplus in the school.

According to the Council, the petitioner has been transferred for the purpose of proper utilization of the service of a primary teacher in the interest of education.

The petitioner being an experienced teacher, his service was required for better administration of the transferee school.

An objection has also been raised by the respondents with regard to the maintainability of the writ petition before this Court.

It has been submitted that according to Rule 10 of the aforesaid Rules, there is a provision for appeal. Any teacher who is aggrieved by an order of transfer may, within 30 days of the date of receipt of such order, prefer an appeal to the Board.

It has been submitted that the petitioner without approaching the Board has straightway filed the writ petition challenging the order of transfer. The writ petition is liable to be dismissed on the ground of availability of alternative remedy

Learned advocate appearing for the respondents has relied upon a judgment delivered by the Hon'ble Supreme Court in the matter of Government of Andhra Pradesh -vs- G. Venkata Ratnam reported in (2008) 9 SCC 345 paragraph 8 onwards wherein the Court was

of the opinion that the law relating to transfer is too well established. The Court ought not to interfere with the order of transfer where there is no violation of any statutory rule or in the absence of mala fide.

To counter the argument of maintainability of the writ petition before this Court, the learned advocate for the petitioner has relied upon a judgment delivered by this Court in the matter of Nandini Sengupta -vs- State & Ors. reported in (2013) 1 CLJ, 30 wherein the Court held that entertaining an application under Article 226 of the Constitution of India depends upon the discretion of the Court in a suitable case. It is for the Court to exercise its discretion to entertain an application under Article 226 of the Constitution of India.

The petitioner has submitted that an order of release has already been issued and the same has been communicated to him via email.

Prayer has been made for setting aside the order of transfer.

I have heard the submissions made on behalf of both the parties and perused the materials on record.

It appears that the order of transfer was issued on administrative ground.

Learned advocate appearing for the Council has highlighted as to how the experience of the petitioner is required for running the administration and smooth functioning of Madhupur Primary School where the petitioner has been transferred as head teacher. The school where he has been transferred has acute

shortage of teachers with only one teacher for 81 students and practically the school has to close down if the said teacher remains absent.

The school where the petitioner is presently teaching has four other teachers who can take care of the students of the said school and the said school will not close down if one of the teachers remains absent.

The employer requires the service of the employee and it is for the employer to best decide as to where an employee is to be posted for extracting the best services from him.

In the case of State of Punjab & Ors. vs. Joginder Singh Dhatt reported in AIR 1993 SC 2486 paragraph 3 the Court held that it is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the Courts have no jurisdiction to interfere with the order of transfer.

The service of the petitioner being transferable the employee does not have a vested right to stay at a particular place. The employer has exercised discretion and thought it fit to transfer the petitioner to the Madhupur Primary School to extract best services from him.

In the case of State of U.P. & Ors. vs. Gobardhan Lal, reported in (2004) 11 SCC 402 the Court held that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, shown to be vitiated by mala fides or is made in

violation of any statutory provision, no interference could ordinarily be made with an order of transfer.

It does not appear from the order of transfer that the same is punitive in nature. The reason for transfer has been mentioned as "administrative ground".

In the case of Airports Authority of India vs. Rajeev Ratan Pandey & Ors., reported in (2009) 8 SCC 37 paragraphs 5 to 10 the Court held in the matter of transfer of a government employee, scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing and the Courts do not substitute their own decision in the matter of transfer.

The judgment delivered in the matter of Nandini Sengupta (supra) clearly lays down that it is the discretion of the Court whether to entertain the application under Article 226 of the Constitution of India or not.

The Court is satisfied that there is hardly any violation of the statutory rules and there is no mala fide intention herein. The Court is not inclined to exercise discretion and interfere with the order of transfer.

In view of the above, no relief can be granted in favour of the petitioner in the present writ petition.

The writ petition fails and is hereby dismissed.

Urgent certified photo copy of this order, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities.

( Amrita Sinha, J.)