Calcutta High Court (Appellete Side)
Putul Mondal vs The State Of West Bengal & Ors on 20 September, 2023
Court No. 22 IN THE HIGH COURT AT CALCUTTA
20.9.2023 Constitutional Writ Jurisdiction
(Item No. 19)
Appellate Side
(AB)
WPA 10969 of 2023
Putul Mondal
v.
The State of West Bengal & Ors.
Mr. Sabyasachi Chatterjee
Mr. Subhrajit Saha
Mr. Badrul Karim
Mr. Kiran Sk
..... for the petitioners
Dr. Sutanu Kumar Patra
Ms. Supriya Dubey
..... for WBCSSC
Ms. Koyeli Bhattacharyya
... For the WBBSE
This is an assigned writ petition.
Mr. Sabyasachi Chatterjee, learned counsel
appears for the petitioner.
Dr. Sutanu Kumar Patra, learned counsel
appears for West Bengal Central School Service
Commission.
Ms. Koyeli Bhattacharyya, learned counsel
appears for West Bengal Board of Secondary
Education.
None appears for the State, though the issue
involved in this writ petition has some importance and
relevance considering the current scenario in the
transfer process of the State Education system.
The petitioner is an Assistant Teacher. The
petitioner was serving at Kumar Ashutosh
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Institution For Girls, District - Kolkata for the
subject Bengali. She joined there in 2021 on transfer
from the erstwhile school as would be evident from
page 22 to the writ petition.
Referring to Annexure P-4 at page 24 to the
writ petition learned counsel for the petitioner
submits that, pursuant to a recommendation for
transfer issued by the West Bengal Central School
Service Commission (for short, the Commission)
dated April 19, 2023 the petitioner was sought to be
transferred at Bakhrahat Girls High School (H.S.),
District - South 24-Parganas. On instruction
learned counsel for the petitioner submits that, the
consequential transfer order has not yet been received
by the petitioner.
The petitioner has challenged the transfer
policy of the State which was issued in terms of a
notification bearing No. 216/SE/S/10M-09/2023
dated February 10, 2023, Annexure P-5 at page 27
to the writ petition. Learned counsel for the petitioner
further refers to a memo bearing No. 670-SE(S)/IM-
14/98 dated September 4, 1998 issued by the
Deputy Secretary, Education Department and
submits that, the transfer order that was issued for
the petitioner was in violation of the provisions made
there under and the factors mentioned in the said
memo dated September 4, 1998 was not considered
at all before causing the said transfer
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recommendation for the petitioner. Mr. Chatterjee
further submits that, while issuing the said
recommendation for transfer the bare minimum staff
pattern as required to be followed by the State was
not at all followed. He submits that, the State
authority does not have any data with regard to such
bare minimum staff pattern in the public domain to
which the petitioner can access. He further submits
that while causing the transfer, the State has also
violated the various provisions including the intra
District wise transfer laid down under the said
transfer policy dated February 10, 2023. While
causing the transfer the State has not considered the
personal predicament to be faced by the petitioner.
Dr. Sutanu Kumar Patra, learned counsel
appearing for the Commission has referred to clause
7 from the notification No. 227-ES/S/IS/4/95 dated
March 12, 2018 which runs as follows:
"7. In case of any dispute arising in the
process of effecting transfer under section 10C of
the West Bengal School Service Commission Act,
1997, the matter may be referred to the
Commissioner of School Education, West Bengal."
In view of the operation of the said clause 7
the dispute may be raised by way of a comprehensive
representation before the Commissioner School
Education, State of West Bengal for its decision.
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Ms. Koyeli Bhattacharyya, learned counsel
appearing for the Board adopts the submission of Dr.
Patra as recorded above.
In absence of any representation from the
State no submission was available before this Court
on the transfer policy adopted by it, the violation
whereof has been alleged by the writ petitioner.
After considering the submissions made on
behalf of the parties appearing today and upon
perusal of the materials on record, it appears to this
Court that, to apply the said transfer policy dated
February 10, 2023 read with the said memo dated
September 4, 1998 as referred to above, several fact
finding materials are required to be gone into. On a
true construction of clause 7 from the said State
notification dated March 12, 2018, this Court is of
the view that, there is a wide amplitude engrafted
under the said provision to consider of the factual
materials those are required to be considered to give
effect to the transfer of the petitioner.
Accordingly, to sub-serve justice the petitioner
shall be at liberty to make a comprehensive
representation within three days from date before the
Commissioner, School Education. After receiving the
said representation from the petitioner, the
Commissioner, School Education shall issue a hearing
notice positively within a period of two working days
indicating the time, venue and place of hearing to the
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petitioner and then after giving an opportunity of
hearing to the petitioner shall decide the issue by
passing a reasoned order strictly in accordance with
law.
It is made clear that, this Court has not gone
into the merits of the claim of the petitioner canvassed
in the writ petition in any manner. The petitioner
shall be at liberty to urge whatever points it wishes to
urge by relying upon whatever documents and records
before the Commissioner School Education.
While considering the issue the Commissioner,
School Education shall also take into account the
judgment of the Hon'ble Division Bench upholding the
vires of the provision laid down under Section 10C of
the West Bengal School Service Commission Act,
1997, inter alia, in the matter of Rabin Tudu Vs.
State of West Bengal & Ors., WPA 13628 of 2018
dated July 27, 2023.
The entire exercise as directed above shall be
carried out and completed by the Commissioner,
School Education positively within a period of 15
working days from the date of commencement of
the first day of hearing without granting any
unnecessary adjournment. The Commissioner then
shall communicate its reasoned order to the petitioner
positively within a period of three working days from
the date of the said reasoned order to be passed.
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It is made clear that, this order shall not create
any equity or right in favour of the petitioner, if the
petitioner is not eligible to receive its claim strictly in
accordance with law.
Since affidavits are not called for considering
the urgency involved in the matter, the allegations
made in the writ petition are deemed not to have been
admitted by the respondents.
On the above terms and with the above
directions, this writ petition being WPA 10696 of
2023 stands disposed of.
There shall, however, be no order as to costs.
Urgent certified photo copy of this order, if
applied for, be supplied to the parties expeditiously on
compliance of usual legal formalities.
(Aniruddha Roy, J.)
