Prapti Chakraborty vs Ar State Of West Bengal & Ors
2023 Latest Caselaw 4929 Cal

139     10.8.2023                   MAT 205 of 2023
Ct-08                                        with
                                     I.A No. CAN 1 of 2023

                                      Prapti Chakraborty
                                              Vs.
ar                                State of West Bengal & Ors.


                       Mr. Biswarup Biswas
                                        ... For the Appellant

                       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



                       1.

We have heard the learned counsel

appearing for the parties.

2. The appeal is arising out of the judgment

and order dated 30th January, 2023 passed in

WPA 10682 of 2022. In the writ petition the

petitioner has challenged the order of the Head of

the Institution in rejecting her application on the

ground of "out of 10 percent". The writ

petitioner is an Assistant Teacher of Churamon

PC High School, Uttar Dinajpur in the subject

Snaskrit. She applied for transfer through

Utsashree Portal thrice, as would be evident from

the General Transfer status and the documents

disclosed in the writ petition. The first transfer

application was submitted on 12th August, 2021

before the Head of the Institution. It appears

that the managing committee of the school on

31st August, 2021 on consideration of the

application had expressed their no objection to

release the petitioner, however, the District

Inspector of School (S.E), Uttar Dinajpur refused

it on the ground of Single Teacher. This order

was not challenged by the petitioner. The second

application was submitted by the petitioner on

24th September, 2021, which was rejected by

Head of the Institution on the ground of "out of

10%". The third application of the petitioner was

submitted on 10th February, 2022, which was

also rejected on similar ground. This time she

challenged the order of the Head of the

Institution in refusing to consider her application

for transfer by filing a writ petition.

3. Learned Single Judge on a meaningful

reading of the provision laid down in Gazette

Notification dated 29th September, 2022 was of

the view "in the event a transfer application is

made on medical ground and on other grounds,

referred to in Clauses (a) to (d) of Rule 4 under

the said Transfer Rules of 2015, may be

considered without any restrictions. There

was no such relaxation provision made for

the application made under Rule 4(e) of the

said Transfer Rule of 2015. The change in the

Rule 4(e) of the Transfer Rule of 2015 was

made under the said gazette notification to the

extent that transfer on such ground can be

considered twice in an academic year, i.e.

summer and winter vacation of the schools

as the case may be, so that the academic

interests of the students not hampered.

Inasmuch as, from a meaningful reading of

the said gazette notification dated January 3,

2022 at page 49 to the writ petition it also

appeared to this Court that, the same shall apply

for a school where the sanctioned strength of

teacher is 5 or less. In the present case, the

school where the petitioner is teaching has a

sanctioned strength of 42 teachers. Therefore,

this gazette notification dated January 3,

2022 at page 49 to the writ petition has no

manner of application or relevance in the facts of

this case".

4. In dismissing the writ petition it was also

observed "Last but not the least, while dealing

with the transfer matters this Court has found

that, there is an alarming situation. It is true that

though right to opt for transfer is not a vested right

of a teacher as settled in law but since the

provisions and Rules are made for transfer of a

teacher under which a teacher can opt for

transfer, such provisions also cannot be ignored.

A reasonableness and balance must work

together. The teachers are employed to impart

education to the students, the future of the nation.

So the interest of the students must be of

paramount importance while considering the case

of transfer of a teacher. The discretion of the

State authority has to be exercised judiciously

and squarely within the framework of law relating

to transfer but equally keeping in mind that the

interest of the students should be of paramount

importance where the Pupil-Teacher Ratio must

have a crucial and decisive role to be weighed."

(emphasis supplied)

5. Learned counsel for the appellant has relied

upon the decision of the coordinate bench

presided over by one of us (Soumen Sen, J.) in

FMA 1082 of 2019 (Amar Jana Vs. West

Bengal Central School Service Commission,

Secretary & Ors.) decided on 22nd December,

2020 and submits that the application for

transfer has to be considered on the basis of

relevant circular prevalent at the relevant point

of time and not in terms of any subsequent

circular unless such circular is made specifically

retrospective. In any event, the record would

reveal 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.

6. Mr. Biswabrata Basu Mallick, learned AGP

appearing for the State and Mr. Sourav Mitra,

learned advocate representing the Central School

Service Commission submit that the pupil-

teacher ratio should be the paramount

consideration in deciding transfer and in view of

Notification dated 29th September, 2022 the

teacher has no vested right to claim transfer.

7. We are not unmindful of the fact that in

view of the Right of Children to Free and

Compulsory Education Act, 2009 it is the

obligation of the State to implement the

provisions of the said Act. We cannot also lost

sight of the fact that there is a need for

rationalization of policy of transfers of the

teachers.

8. The service conditions gives right to claim

transfer on fulfillment of certain conditions. An

application for transfer has to be considered on

the basis of existing and/or prevailing rules. We

do not find any material to reject the said

application of the petitioner by the Head of

Institution on the ground of "out of 10%" and no

sufficient material is produced before us to

justify the said stand. The order of rejection has

to be considered on the basis of the reasons

mentioned and not on any other extraneous

consideration. The argument made that pupil-

teacher ratio was a relevant factor is not borne

out from the impugned order of the Head of the

Institution. There cannot be any doubt that in an

appropriate situation interest of the student

could be the over-riding consideration. However,

at the same time if a teacher fulfills the eligibility

criteria for transfer under the relevant existing

rules there are procedures prescribed to fill up

the resultant vacancy. In a given situation it is

possible that although a teacher is eligible for

transfer an immediate replacement may not be

possible and the recruitment process for the said

post would take such time the transfer may be

given effect to from a future date. However, once

a teacher fulfills the eligibility criteria, the

authority must take steps to fill up the resultant

vacancy as per the norms existing at the relevant

point of time by way of local arrangement or by

recruiting a permanent teacher for the said post

within a reasonable time.

9. In view thereof, we feel that the issue can

be decided by the appropriate authority. Mr.

Biswabrata Basu Mallick has suggested that the

Commissioner of School Education is the

appropriate authority to decide the said issue.

10. Under such circumstances, we direct the

Commissioner of School Education to consider

the application for transfer of the petitioner on

verification of the record and production of

relevant documents by the school authorities. It

is needless to mention that the application for

transfer shall be considered on the basis of

norms prevalent at the relevant point of time and

not on the basis of any subsequent circular. The

interest of the students would also be a relevant

consideration.

11 The order under challenge is thus, set

aside.

12. The Commissioner of School Education

shall decide the issue within six weeks from the

date of communication of this order by either of

the parties upon giving an opportunity of hearing

to the writ petitioner and the school authorities

and decide the matter by passing a reasoned

order to be communicated to the parties within

one week thereafter.

13. Under such circumstances, the appeal

succeeds.

14. The appeal being MAT 205 of 2023 is

accordingly disposed of.

15. In view of disposal of the appeal CAN 1 of

2023 is also disposed of.

16. Urgent Photostat certified copy of this

order, if applied for, be given to the parties on

usual undertaking.

 (Uday Kumar, J.)                  (Soumen Sen, J.)