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2006 DIGILAW 143 (CAL)

RAMA BANDYOPADHYAY v. STATE OF WEST BENGAL

2006-03-08

JAYANTA KUMAR BISWAS

body2006
Jayanta Kumar Biswas, JJ. ( 1 ) THE writ petitioner is aggrieved by the decision of the principal secretary of the school education department of the State Government dated April 29th , 2005 rejecting her request for transferring her to a school of her choice. ( 2 ) FACTS of the case are these. The petitioner took the examination conducted by the State School Service Commission. She secured a place In the panel of selected candidates. On November 30th, 2001 the commission recommended her name. In terms of the recommendation the school authority offered her an appointment. On January 28th, 2002 she sent a representation to the commission requesting it to recommend her for a school close to her residence She mentioned that she was suffering from various ailments. The commission did not respond, She joined the school in February 2002. From june 2002 she stopped attending it. She did not give any intimation to the school authority or to the controlling department. In 2003 she moved this Court by taking out a writ petition (WP No. 1203 of 2003 ). By order dated January 6th, 2005 that writ petition was disposed of directing the secretary of the school education department of the State Government to consider her case, if a representation was filed by her. She filed a representation, and by the impugned decision the principal secretary expressed his inability to give any relief. ( 3 ) COUNSEL submits that at the time of recommendation the commission did not follow the provisions in rule 9 of the relevant rules casting an obligation on it to recommend the selected candidates according to their area wise preference, and hence the authority should not have turned down the petitioner's request for transferring her to a school close to her residence. ( 4 ) I do not find any merit in the contention. If the commission did not make the recommendation according to provisions in that rule 9, nothing prevented the petitioner from approaching the appropriate Court of law with utmost expedition. Recommendation was made on November 30, 2001. Though she made a representation dated January 28th, 2002, she chose to join the school, and she did so in February 2002. The offer made by the school (the appointing authority) was accepted by her. Thus she lost the right, if any, to question the action of the commission regarding her recommendation. Recommendation was made on November 30, 2001. Though she made a representation dated January 28th, 2002, she chose to join the school, and she did so in February 2002. The offer made by the school (the appointing authority) was accepted by her. Thus she lost the right, if any, to question the action of the commission regarding her recommendation. The recommendation merged with the offer made by the appointing authority. The commission simply became functus officio with respect to the recommendation, and the panel position of the petitioner extinguished. Those stages did not remain open for challenge. Besides, in the 2003 writ petition she apparently did not press the issue. Hence she cannot be permitted to agitate it at this distance of time. ( 5 ) COUNSEL then submits that by order dated January 6th, 2005 made in the petitioner's previous writ petition the authority was directed not to reject the request on the sole ground that no rule provided for transfer, but the authority rejected the request just on that ground. According to him the State should have given a humanitarian approach to the issue, since the petitioner made the request because of her ailments. His argument is that as the slate gives aid to all aided institutions, it is always open to it to transfer a teacher of an aided institution to another aided institution. ( 6 ) I am unable to agree with him. By the order dated January 6th, 2005 this Court did not confer any newly created power on the State. By an order court cannot create any power and confer it on the State. Power can be conferred on the State by legislative actions. The Court can direct the State to act according to the power conferred on it. Hence it cannot be argued that by that order this Court conferred a power on the State to transfer the petitioner, even if such a power was not available with the State. ( 7 ) THE aided institutions are governed by provisions of the West Bengal board of Secondary Education Act, 1963 and the 1969 Management Rules framed thereunder. According to provisions of that statute and the rules the state Government has certain power to issue directions. No power was conferred on the State by the statute to transfer a teacher of one aided institution to another aided institution. According to provisions of that statute and the rules the state Government has certain power to issue directions. No power was conferred on the State by the statute to transfer a teacher of one aided institution to another aided institution. Under those provisions of law the appointing authority is the school. ' The appointments made are school specific; that is to say, an appointment is made for a particular school by the authority of that school. Therefore, a teacher appointed by the authority of one aided institution, cannot be transferred to another aided institution. ( 8 ) THIS being the scheme of the provisions of the statute and the rules framed thereunder, the State was not empowered to make an order transferring the petitioner from the school concerned to a school of her choice. Exactly this position has been highlighted by the authority in the impugned decision. In my view, the authority approached the issue quite rightly. True it is that the petitioner made the request on the ground of her ailments; but on humanitarian ground the state could not assume power not vested in it otherwise, and I cannot exercise my writ powers either out of sympathy and compassion. ( 9 ) FOR these reasons I dismiss the writ petition. There shall be no order for costs in it.