Calcutta High Court (Appellete Side)

The State Of West Bengal & Ors vs Kanailal Dey on 21 September, 2023

                                    1


                 IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                         APPELLATE SIDE



Present:
The Hon'ble Justice Debangsu Basak
              And
The Hon'ble Justice Md. Shabbar Rashidi


                              WP.ST 60 of 2023

                   The State of West Bengal & Ors.
                                 Vs.
                           Kanailal Dey

                                   With

                              WP.ST 62 of 2023

                    The State of West Bengal & Ors.
                                  Vs.
                        Sri Deb Narayan Seth


  For the State-petitioners        : Mr. Tapan Kumar Mukherjee,
                                          Ld. Sr. Advocate & Ld. AGP
                                    Mr. Pinaki Dhole
                                    Mr. Somnath Naskar




  For the private respondents      : Ms. Chaitali Bhattacharyya

Mr. Gourav Haldar Mr. Biswarup Nandy

Heard on : September 5, 2023 & September 21, 2023 Judgment on : September 21, 2023

DEBANGSU BASAK, J.:-

1. Two writ petitions are taken up for analogous hearing as

they involve the same issues. They were heard analogously

previously also. The writ petitions are at the behest of the

State.

2. The private respondents in the two writ petitions moved the

West Bengal Administrative Tribunal, claiming that, the

transfer order was bad since it was issued by the

Commissioner of School Education who was delegated with

the power by a delegatee of the Governor. A delegatee of the

Governor cannot delegate his power.

3. The Tribunal upheld such contention of the private

respondents and held that, the transfer order of the private

respondents was set aside and quashed.

4. Learned Senior Advocate appearing for the State submits

that, Commissioner of School Education by the impugned

transfer orders, merely communicated the decision of the

State taken to transfer the District Inspector of Schools to

various postings. He refers to the file which he produced on

the previous date on September 5, 2023. Referring to such

file, he submits that, the decision of transfer was taken by

the Minister-in-Charge and the concerned Secretary as it

appears from the endorsements in the file. Such decision

was communicated by the impugned order of transfer.

Therefore, the contention that, the transfer order was issued

by the Commissioner of School Education without authority

is unfounded.

5. Learned Advocate appearing for the private respondents

submits that, by the impugned order, essentially, the private

respondents were being demoted. She refers to the fact that,

the private respondents were District Inspector of Schools.

By the impugned order of transfer, they were sought to be

posted as the Additional District Inspector of Schools. She

relies upon (2000) 1 Supreme Court Cases 644 ( Sub-

Inspector Rooplal and Another vs. Lt. Governor through Chief

Secretary, Delhi and Others) and submits that, four

conditions noted in such judgment were not fulfilled. In

effect, the private respondents were being demoted from the

post of District Inspector of Schools to Additional District

Inspector of Schools by the order of transfer.

6. Learned Advocate appearing for the private respondents

refers to the affidavit-in-opposition and submits that, the

materials available in the website of the State Government in

relation to Education Department demonstrates that,

Additional District Inspector of Schools were placed under

the supervision of the District Inspector of Schools. In this

regard, she relies upon an order dated January 4, 2022. In

addition thereto, she refers to the materials of the State

Government with regard to educational administration at the

district level and at the sub-district level.

7. Relying upon (2000) 7 Supreme Court Cases 675 ( Rhone-

Poulenc (India) Ltd. Vs. State of U.P. and Others), learned

Advocate appearing for the private respondents submits

that, since the Commissioner of School Education was not

authorized to issue the transfer order, the same should be

quashed.

8. In reply, learned Senior Advocate appearing for the State

submits that, there was no reduction in rank of the private

respondents. They were being given the same pay as they

were entitled to draw in their earlier postings. He submits

that, there was no question of the order of transfer being

issued without jurisdiction in view of the notings in the file.

9. An order of transfer was issued as against the private

respondents dated July 26, 2021 which was assailed before

the Tribunal. Such order of transfer was issued by the

Commissioner of School Education. In the order of transfer,

37 personnel were involved. Apparently, two of them, that

is, the private respondents approached the Tribunal. The

Tribunal by the impugned orders, set aside the order of

transfer in respect of the individual private respondents on

the ground that Commissioner of School Education was

without authority to issue the transfer order.

10. Rhone-Poulenc (India) Ltd. (supra) considers a disciplinary

proceedings. It considers issuance of a transfer order. It

finds no material was placed before the Labour Court to

prove the authority and competence of the Regional Sales

Manager to issue the order of transfer. In such

circumstances, the order of transfer was found to be vitiated.

11. In the facts of the present case, the Tribunal found

Commissioner of School Education not to be duly authorized

to issue the order of transfer.

12. In the two writ petitions, the file concerning the transfer of

the private respondents was produced. It was produced on

September 5, 2023. Inspection of the file was granted to the

learned Advocate appearing for the private respondents in

Court. Private respondents were allowed an opportunity to

file affidavit dealing with the contents of such file.

13. The file produced on September 5, 2023, is also produced

today. It appears from such file that, the decision to

transfer the candidates noted in the order of transfer dated

July 26, 2021 including the private respondents was taken

by the Minister-in-Charge and by the concerned Secretary in

view of the Governor delegating his power of transfer to the

concerned Secretary. Concerned Secretary exercised his

authority to transfer the private respondents in the facts of

the present case. Concerned Secretary took his decision of

transfer in consultation with the Minister-in-Charge and

such decision was communicated by the Commissioner of

School Education.

14. We find no material irregularity in the issuance of the order

of transfer. Commissioner of School Education merely

communicated the decision of the State taken in accordance

with law to transfer the incumbents including the private

respondents.

15. There is the issue of the private respondents being demoted

as contended on behalf of the private respondents which

required consideration.

16. In Sub-Inspector Rooplal and Another (supra), the Supreme

Court was concerned with the view as to whether the two

posts of Sub-Inspectors of Border Security Force (BSF) and

Sub-Inspectors (Executive) in the Delhi Police Force were

equivalent or not merely on the ground that the two posts

did not carry the same pay-scale. On appraisal of the facts

of that case, the Supreme Court rendered a finding that, it

was not so. In arriving at such finding, the Supreme Court

held as follows:

"17. ..........................

Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than "pay" will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India v. P.K. Roy. In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are: (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged: (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criteria. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different would not in any way make the post "Not equivalent".

..................................................."

17. In the facts of the present case, we are required to consider

the four factors enumerated in Sub-Inspector Rooplal and

Another (supra). The first factor is the nature and duties of

the post here. The private respondents are being transferred

from District Inspector of Schools (Primary Education) to a

post as Additional District Inspector of Schools (Secondary

Education). The nature of work and duties of Additional

District Inspector of Schools is same as that of the District

Inspector of Schools. The responsibilities and powers

exercised by the Additional District Inspector of Schools

(Secondary Education) cannot be said to be lower than that

of the District Inspector of Schools (Primary Education). At

least, nothing is placed from record to that effect. Minimum

qualification in the two posts are also the same. The pay so

far as the two posts concerned are also the same. None of

the private respondents are being reduced in rank nor are

they suffering any reduction of pay when they are being

posted as Additional District Inspector of Schools (Secondary

Education).

18. The order dated January 4, 2022 issued by the School

Education Department is in relation to the permission for

leaving the head quarters by the District Inspector of

Schools. Such order is of the view that, when a District

Inspector of Schools is leaving station, he is required to take

permission from the District Magistrate. Equally, an

Additional District Inspector of Schools was also being

required to take permission from the District Magistrate for

leaving the station. Therefore, an Additional District

Inspector of Schools cannot be said to be placed at a

disadvantage vis-à-vis the order dated January 4, 2022.

19. The literature which was annexed to the affidavit-in-

opposition of the private respondents and which the private

respondents claimed that they downloaded from the website

of the Education Department, demonstrates that, at the

district level office for primary level education, the district

Inspector of Schools will act as the Head of office and will be

assisted by the Additional District Inspector of Schools.

20. The main activities of the District Inspector of Schools are

also delineated. We are informed that the State Government

allots independent charges for administrative conveniences

to Additional District Inspector of Schools at certain

districts.

21. In such circumstances, we are of the view that, the private

respondents are not being demoted by the impugned order of

transfer as they are claiming.

22. The impugned order of the Tribunal cannot be sustained in

view of the materials made available on record, that is, the

file of the State Government which was considered on

September 5, 2023 and today also. That apart, the