Sandip Sen vs State Of West Bengal & Ors
2022 Latest Caselaw 775 Cal

18   23.2.2022                                   W.P.A. 7 OF 2015
Sc
                                                    ----------------------

(Via Video Conference) ,

Sandip Sen Vs.

State of West Bengal & Ors.

,,

Mr. Sudipta Dasgupta Mr. Bikram Banerjee Mr. Arkadeb Biswas Mr. Arka Nandi Ms. Dipa Acharya.

.... For the Petitioner Mr. Tapan Kumar Mukherjee Mr. Somnath Naskar.

.... For the State Mr. Kanak Kiran Bandyopadhyay .... For the SSC Mr. Deepan Kr. Sarkar Ms. Ashima Daga Mr. Aranya Sinha.

... For the Respondent

The petitioner is admittedly appointed in the post of

Assistant Teacher in Baranagore Ramakrishna Mission

Ashrama High School prior to 6th September, 2012 on the

recommendation of the School Service Commission.

Mr. Sudipta Dasgupta, learned advocate appearing

on behalf of the petitioner submits that on incorporation

of Section 15A in the West Bengal School Service

Commission Act, 1997 the schools run by Ramakrishna

Mission Belurmath were kept outside the purview of the

School Service Commission. It has further been

contended on behalf of the petitioner that meanwhile the

West Bengal School Service Commission (General

Transfer, Transfer on Special Grounds and Reallocation)

Rules, 2015 [hereinafter referred to as the 'Rules of

2015'] has been introduced whereby benefit of 'Transfer

on Special Grounds' and 'General Transfer' has been

extended to the teachers appointed on the

recommendations of the School Service Commission.

Due to incorporatin of Section 15A in the West Bengal

School Service Commission Act, 1997 the petitioner is not

getting the benefit of 'Transfer on Special Grounds' and

'General Transfer'.

Attention of this Court has been drawn to an order

dated 6th January, 2022 whereby the benefit of 'General

Transfer' and the 'Transfer on Special Grounds' as per the

provisions of Rules of 2015 has been extended to teaching

and non-teaching staff engaged in schools run by

Ramakrishna Mission Belurmath provided they were

appointed prior to 6th September, 2012.

On behalf of the petitioner it has been argued that

in view of such order dated 6th January, 2022, the

petitioner being an Assistant Teacher of a school run by

Ramakrishna Mission Belurmath is entitled to get the

benefit of 'Transfer on Special Grounds' as well as

'General Transfer' but it has also been submitted before

this Court that in terms of Rules of 2015 there is an

embargo in the matter of extending the benefit of transfer

if the teacher concerned resides within 25 Kilometre

radius from the location of the school where he is serving.

It has been contended that even if such benefit of transfer

is extended to the petitioner, he will not be able to apply

for transfer if he resides within 25 Kilometre distance

from the school.

Mr. Dasgupta has relied upon a judgment delivered

by a coordinate Bench dated 22nd January, 2022 on a

writ petition being WPA 17232 of 2021 (Haradhan Saren -

vs.-State of West Bengal & Ors.) wherein the coordinate

Bench has held as follows :

"6. Therefore, for the teachers who were appointed in the schools run by Ramakrishna Mission Belur Math before 2012 when the amendment to the WBSSC Act, 1997 giving exemption to Ramakrishna Mission and other similar schools were given, the embargo of 25 kilometers is to be relaxed as a large number of teachers' residence, including the petitioner's is now within 25 kilometers of their present school i.e. a RKM school.

7. I have found that there is sufficient merit in the submission made by Mr. Dasgupta on behalf of the petitioner as the liberty of a teacher for transfer to another school cannot be non- existent only because such candidate was appointed is a RKM school. Further, if RKM schools' teachers are bound by the 25 KMS embargo, the new found liberty of being transferred will remain elusive to them who reside within 25 KMS of their schools i.e. RKM schools.

Law cannot grant something in one hand and take away the same in the other.

Here the teachers of RKM schools have been given a right for the first time after 10 years (from 2012) to apply for transfer but if they are hit by the embargo of 25 KMS their right (who are residing within 25 KMS of the school) will remain illusive. Therefore the embargo of 25 KMS for the teachers of RKM schools shall not be applicable as of now so that they can enjoy the benefit of transfer granted by law now. For how many days this non applicability of embargo of 25 KMS shall remain in force is a matter to be decided by the Government in the Education

Department. Till it is decided by the government this embargo of 25 KMS shall not be applicable to RKM schools' teachers who were recommended by the School Service Commission. Every teacher of RKM schools recommended by SSC have 5 years teaching experience as after 2012 amendment introduced by Section 15A of the WBSSC Act giving exemption to RKM schools, no teacher was recommended by SSC for RKM schools.

8. Therefore I hold that for the teachers of RKM schools who were appointed in those schools before 2012 (when the exemption were given in the West Bengal School Service Commission Act, 1997) will not come within the embargo of the said 25 kilometers as has been laid down in the relevant rules for general transfer and general transfer on special ground till the Government in School Education Department decides the time limit for non- applicability of the 25 KMS embargo."

Mr. Deepan Kr. Sarkar, learned advocate is

appearing on behalf of Baranagore Ramakrishna Mission

Ashrama High School being the respondent nos. 5 and 6

and submits that this school is being run by

Ramakrishna Mission Belurmath and therefore there is

no impediment in applying the order dated 6th January,

2022 in case of transfer of teachers working in this

school who are appointed prior to 6th September, 2012.

Mr. Kanak Kiran Bandyopadhyay, learned advocate

appears on behalf of the West Bengal School Service

Commission to whom this Court has posed a question

whether the order passed by the coordinate Bench on 20th

January, 2022 has been appealed against. However, this

Court does not find any satisfactory answer.

The State respondent is represented by Mr. Tapan

Kumar Mukherjee, learned Additional Government

Pleader and he has placed reliance upon the order dated

6th January, 2022 issued by the Governor whereby

benefit of transfer has been extended to teaching and

non-teaching staff working in the school run by

Ramakrishna Mission, Belurmath.

This Court has heard the learned advocates

representing the parties and also perused the order dated

6th January, 2022 and the judgment delivered by the

coordinate Bench dated 20th January, 2022. In view of

the order dated 6th January, 2022, this Court is of the

view that there is no restriction in permitting the

petitioner in getting the benefit of 'General Transfer' and

'Transfer on Special Grounds' in terms of the Rules of

2015 provided the petitioner is appointed prior to 6th

September, 2012. Since the issue of restriction relating

to distance in between the residence of the teacher

concerned and the school where the teacher is working

has already been decided by the coordinate Bench vide

judgment dated 20th January, 2022, this Court need not

dilate on this issue and the petitioner is permitted to

apply for 'General Transfer' or 'Transfer on Special

Grounds' irrespective of the distance in between the

school and the residence of the teacher concerned.

Petitioner is entitled to apply for transfer as aforesaid in

accordance with law.

With the above observation the writ petition stands

disposed of.

However, there shall be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be furnished to the parties expeditiously on

usual undertaking.

(Saugata Bhattacharyya, J.)