Sri Ashok Kumar Roy vs The State Of West Bengal & Ors
2023 Latest Caselaw 1316 Cal

Item No.3
                 IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                        CONSTITUTIONAL WRIT JURISDICTION
                                    APPELLATE SIDE

                               HEARD ON: 22.02.2023

                             DELIVERED ON:22.02.2023

                                         CORAM:

            THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
                                   W.P.A. 2601 of 2018

                               Sri Ashok Kumar Roy.
                                         Vs.
                           The State of West Bengal & Ors.


Appearance:-
Mr. Sakti Pada Jana,
Mr. Subhajyoti Das                                  .....   for the Petitioner.

Mr. Rabindranath Pal,
Mr. Koustava Ratan Chatterjee
             ......       for the Jalpaiguri District Primary School Council.


                                      JUDGMENT

(Judgment of the Court was delivered by HIRANMAY BHATTACHARYYA, J.)

1. This writ petition is at the instance of an Assistant

Teacher of Nekipara Primary School under Sadar West Circle

praying for setting aside the transfer order issued vide Memo

No.1135 dated October 1, 2015 along with Corrigendum issued vide

Memo No.1406-1(5) dated December 16, 2015 and to allow the

petitioner to discharge his duty as head teacher at Lalbazar

Para Special Cadre Primary School.

2. The case of the petitioner is that while he was performing

his duties as the head teacher in Lalbazar Para Special Cadre

Primary School, Jalpaiguri, he was transferred to Nekipara

Primary School under Sadar West Circle with a direction to join

at the transferred school as an Assistant Teacher of the said

school.

3. Mr. Jana, learned Advocate appearing for the petitioner,

submits that the petitioner cannot be posted as an Assistant

Teacher with lower scale when he was discharging his duties as

Head Teacher with higher scale of pay consequent upon an order

of transfer being issued without initiating any disciplinary

proceeding against him.

4. Learned Advocate representing the Jalpaiguri Primary School

Council submits that the authorities have not initiated any

disciplinary proceedings against the writ petitioner. Mr. Pal,

however, submits that though no disciplinary proceeding has been

initiated against the petitioner but a show cause notice was

issued to the petitioner.

5. Heard the learned advocates for the parties and perused the

materials placed.

6. It is not in dispute that the petitioner was performing his

duties as Head Teacher in Lalbazar Para Special Cadre Primary

School, Jalpaiguri with effect from August 30, 2011. However,

the petitioner was transferred to Nekipara Primary School under

Sadar West Circle by an order dated October 1, 2015 with a

direction upon the writ petitioner to join as a Teacher at the

said school within 15 days. A Corrigendum was issued on

December 16, 2015 wherein the designation of the petitioner at

Nekipara Primary School under Sadar West Circle was stated to be

that of an Assistant Teacher. It was further stated therein that

the petitioner will draw the pay scale of an Assistant Teacher.

It is not in dispute that the petitioner joined Nekipara Primary

School under Sadar West Circle on October 15, 2015. The

petitioner submitted several representations before the

respondent authorities raising his objection against the

decision to transfer him to another school as an Assistant

Teacher when he was performing the duties of a Head Teacher of

Lalbazar Para Special Cadre Primary School, Jalpaiguri. Though

several representations were submitted by the petitioner but the

respondent authorities did not even care to respond to any of

such representations.

7. This writ petition was filed in the year 2018 and the

parties were directed to exchange affidavits within a stipulated

time. However, no affidavit-in-opposition has been filed by the

respondents till date.

8. From the transfer order dated October 1, 2015 it appears

that the petitioner was instructed to join as an Assistant

Teacher at Nekipara Primary School since there were allegations

against him that he is disturbing the normal school procedure.

9. If there were allegations against the petitioner the

competent authority ought to have taken steps for initiating

disciplinary proceedings against the petitioner which course has

not been adopted in the instant case. On the contrary, the

petitioner was transferred as an Asisstant Teacher to another

school. The effect of such transfer order is that the

petitioner was deprived of his status, pay scale and other

benefits which he was enjoying prior to the order of transfer.

10. The said transfer order itself amounts to inflicting

punishment upon the petitioner without complying with the

principles of natural justice and therefore, is a mala fide one.

Issuance of a show cause notice when the same was not carried

further to its logical end does not also have any impact on the

aforesaid observation of this Court.

11. Upon a query made by the Court, as to whether the post of

Head Teacher in Lalbazar Para Special Cadre Primary School,

Jalpaiguri is still lying vacant or not, Mr. Jana submits that

the post of Head Teacher at Lalbazar Para Special Cadre Primary

School, Jalpaiguri is still lying vacant.

12. For such reason, this Court is of the considered view that

the transfer order dated October 1, 2015 and the Corrigendum

issued on December 16, 2015 are liable to be set aside and

quashed and a direction is to be passed upon the authority to

pass consequential orders. The writ petition, accordingly,

stands allowed. The transfer order issued vide Memo No.1135

dated October 1, 2015 and the Corrigendum issued vide Memo

No.1406-1(5) dated December 16, 2015 are accordingly set aside

and quashed. Consequently, the status of the petitioiner as Head

Teacher stands restored. The Chairman, District Primary School

Council, Jalpaiguri is directed to issue an order pursuant to

this judgment and order giving reasonable time to the petitioner

to join Lalbazar Para Special Cadre Primary School, Jalpaiguri

as Head Teacher. However, such order is to be issued by the

Chairman, District Primary School Council, Jalpaiguri as

expeditiously as possible but positively within a period of one

week from the date of communication of this judgment and order

and the same shall be communicated to the authorities of

Lalbazar Para Special Cadre Primary School. Immediately after

the petitioner joins Lalbazar Para Special Cadre Primary School,

Jalpaiguri as a Head Teacher of the said school, the Sub-

Inspector of Schools, Sadar West Circle, Jalpaiguri being the

respondent no.4 shall re-fix the salary of the petitioner by

taking into consideration the fact that the transfer order dated

October 1, 2015 has already been quashed by this Court and the

petitioner shall be entitled to all pay, allowances, increments,

emoluments, etc and all other consequential benefits by treating

the petitioner as a Head Teacher of a primary school. Such

fixation is to be made and all consequential steps be taken

within a period of six weeks from the date of joining Lalbazar

Para Special Cadre Primary School, Jalpaiguri as a Head Teacher.

The petitioner shall be obliged to communicate this judgment and

order along with the date of joining as a Head Teacher at

Lalbazar Para Special Cadre Primary School, Jalpaiguri to the

respondent no.4.

13. There shall be, however, no order as to costs.

14. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

(HIRANMAY BHATTACHARYYA, J.)

NAREN/PALLAB(AR.C)