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2016 DIGILAW 136 (CAL)

Sankar Prosad Panda v. State of West Bengal

2016-02-05

TAPABRATA CHAKRABORTY

body2016
JUDGMENT : The instant writ application has been preferred challenging, inter alia, the memoranda dated 2nd July, 2013 and 24th April, 2014 issued by the respondent no.6 and an order dated 8th June, 2015 passed by the Appeal Committee of the West Bengal Board of Primary Education (hereinafter referred to as the said Board). Records reveal that by an order dated 26th November, 2015, this Court directed the parties to exchange their affidavits. In spite of such direction, no affidavit-in-opposition has been filed by the respondents. Shorn of unnecessary details, the facts are that while working as the Head Teacher of Uttar Mandirtala Free Primary School (hereinafter referred to as the first school) within the zone of Sagar Uttar Circle under the South 24 Parganas District Primary School Council (hereinafter referred to as the said Council), the petitioner made an application for transfer. Such application was kept pending and as such the petitioner approached this Court by a writ application being W.P. 4554 (W) of 2013 and this Court directed the said Council to give a reply to the representations made by the petitioner at pages 34 to 38 of the said writ application. Subsequent thereto, an order was passed by the respondent no.6 on 2nd July, 2013 transferring the petitioner from the post of Head Teacher of the first school to Indrapur Banbehari Free Primary School (hereinafter referred to as the second school). The said order of transfer dated 2nd July, 2013 was again challenged by the petitioner in a writ application being W.P. No.25538 (W) of 2013 and the same was disposed of by an order dated 10th March, 2015 with a direction upon the respondent no.6 to consider the representations made by the petitioner to recall the order of transfer. Subsequent thereto, the respondent no.6 passed an order dated 24th April, 2014 rejecting the petitioner’s claim and directing him to join in the office of the respondent no. 8. Challenging the said order, the petitioner preferred a statutory appeal before the Appeal Committee of the said Board and the same was registered as Transfer Case No.2 of 2014. The said appeal was disposed of by an order dated 30th May, 2014. Subsequent thereto, the petitioner was issued two separate notices referring to an Appeal Case No.4 of 2015 and a Misc. Case No.1 of 2014. The said appeal was disposed of by an order dated 30th May, 2014. Subsequent thereto, the petitioner was issued two separate notices referring to an Appeal Case No.4 of 2015 and a Misc. Case No.1 of 2014. The petitioner received the notice pertaining to Appeal Case No.4 of 2015 and appeared at the time of hearing on 4th May, 2015. The notice pertaining to Misc. Case No.1 of 2014 was served upon the petitioner subsequent to the date of hearing stipulated in the said notice. Thereafter by a memorandum no.424(2)/BPE/APPL/2015 dated 11th June, 2015, the petitioner was communicated an order dated 8th June, 2015 passed by the Appeal Committee in Misc. Case No. 1 of 2014 and by a memorandum no.425(2)/BPE/AppL/2015 dated 11th June, 2015 the petitioner was communicated an order passed by the Appeal Committee in Appeal Case No.4 of 2015. Subsequent thereto, the respondent no.6 passed a further order on 3rd July, 2015 refusing the petitioner’s prayer for transfer to any other school under the Sagar Uttar Circle. Mr. Bhattacharyya, learned advocate appearing for the petitioner submits that this is the third round of litigation and the stand taken by the Council in all the matters would reveal that it had been very vindictive against the petitioner and had sought to sustain an order of transfer issued in derogation to the statutory provisions. He further submits that detailing appropriate reasons the petitioner sought for a transfer to a different school, within the Sagar Uttar Circle but surprisingly the petitioner was transferred to the second school which is at a remote place 150 kms away from his residence and under the Patharpratima Circle. Upon receipt of the order of transfer dated 2nd July, 2013, the petitioner visited the locale of the second school and was surprised to note that there was no existing school building. Such fact that there was no school building would be evident from the memorandum dated 24th April 2014 issued by the respondent no.6 asking the petitioner to join in the office of the respondent no.8. Drawing the attention of this Court to the order passed by the Appeal Committee on 30th May, 2014, Mr. Such fact that there was no school building would be evident from the memorandum dated 24th April 2014 issued by the respondent no.6 asking the petitioner to join in the office of the respondent no.8. Drawing the attention of this Court to the order passed by the Appeal Committee on 30th May, 2014, Mr. Bhattacharyya submits that the said Council admitted that due to some technical snag the petitioner was posted at the office of the respondent no.8 and that the Council is in the process of giving him a suitable posting and in view of an undertaking given to that effect the appeal was disposed of. In spite of such undertaking, an Appeal Case No. 4 of 2015 and a Misc. Case No.1 of 2014, without service of copies of the same, were preferred and the Appeal Committee communicated two separate orders both passed on 8th June, 2015. In the order passed in Misc. Case No.1 of 2014 directions were issued towards disbursement of salaries withheld by the Council and in the order passed in Appeal Case No. 4 of 2014 the Appeal Committee observed that as the petitioner has joined the office of the respondent no.8 it does not want to enter into the domain of the said Council’s discretionary power. The directions towards disbursement of arrear salaries to the petitioner as contained in the order passed in Misc. Case No. 1 of 2014 have not been complied with by the respondent Council but the current salaries have been released. Drawing the attention of this Court to the Section 91 of the West Bengal Primary Education Act, 1973 and Rule 10 of the West Bengal Primary Education (Transfer of Teacher including Head Teacher) Rules, 2002 (hereinafter referred to as the said Rules of 2002), Mr. Bhattacharyya submits that the said Council has no jurisdiction to review its earlier order. Drawing the attention of this Court to the subsequent order passed by the respondent no.6 on 3rd July, 2015, he submits that the Council sought to give fresh reasons in support of the initial order of transfer passed on 2nd July, 2013 and such action is impermissible in law. The purported reasons to the effect that there is no other teacher in the said school and that the students will suffer do not feature in the transfer order. The purported reasons to the effect that there is no other teacher in the said school and that the students will suffer do not feature in the transfer order. He further submits that the primary school has been defined under the said Rules of 2002 meaning a school or a department of a school set up under the Act. Transfer can be effected only in a school which is functioning. In the instant case, admittedly there was no school building and the petitioner had to report to the office of the respondent no.8 and as such the order of transfer dated 2nd July, 2014 itself is unsustainable in law. The Council has never considered the hardships and the inconveniences as detailed in the petitioner’s representations which were directed to be considered in the second round of litigation. According to him, the sequence of facts would thus reveal that the respondents have proceeded to forcibly transfer the petitioner to a non-existent school and had acted in derogation to its own undertaking given before the Appeal Committee. He further brings it to the notice of this Court that there are existing vacancies in the Sagar Uttar Circle and the names of the schools in which the vacancies are existing have been detailed in paragraphs 17 & 21 of the earlier writ application, being W.P.25538 (W) of 2013. Per contra Mr. Bari, learned advocate appearing for the Council submits that the panel of Head Teacher pertaining to the present year is yet to be prepared and that the Council can consider the petitioner’s prayer afresh only upon incorporation of the petitioner’s name in such panel and on the basis of his seniority in such panel. He further argues that the petitioner has already joined the transferred post and that he is the sole teacher in the said second school and any direction issued at this juncture to transfer the petitioner to any other suitable vacancy would be derogatory to the academic interest of the students in the second school. I have heard the learned advocates appearing for the respective parties and I have considered the materials on record. I have heard the learned advocates appearing for the respective parties and I have considered the materials on record. It is well settled that an order of transfer is passed in appreciation of administrative exigencies and that transfer is an incident of service and the same can be interfered with in the event the same is mala fide, bereft of public and administrative reason and when the same is issued on mere ipse dixit of any authority. There is no indication in the order of transfer as to why the petitioner was transferred to a school which admittedly did not have any existing building and was not functioning. The fact that there was no school building is explicit from the subsequent order passed by the respondent no.6 on 24th April, 2014 and in appreciation of such fact the Council itself submitted before the Appeal Committee that due to some technical snag the petitioner was posted in the office of the respondent no8 and it was also contended that the Council is in the process of giving him a suitable posting as early as possible. In the backdrop of such admission the attempt of the respondents to justify the order of transfer dated 2nd July, 2013 through the subsequent order dated 3rd July, 2015 by incorporation of fresh reasons is a diametrically opposite stand taken by the Council and such action is unsustainable in law and speaks of the vindictiveness nourished against the petitioner. On behalf of the Council, no document could be produced to controvert the petitioner’s allegation that no application registered as Misc. Case No.1 of 2014 was served upon the petitioner. The fact of existence of vacancies in different schools under Uttar Circle, as indicated by the petitioner also could not be disputed on behalf of the Council. A perusal of the order dated 8th June, 2015 brings out another startling fact. It was observed by the Appeal Committee that “the DPSC South 24 Parganas has intentionally and knowingly transferred the respondent in such a school whose existence, at that time, remained in papers only and the activities of the petitioner were appeared to be revengeful as the respondent dared to move the Hon’ble High Court at Calcutta for securing his transfer from Uttar Mandirtala Free Primary School to elsewhere”. In the backdrop of such finding and despite the persuasive advocacy of Mr. In the backdrop of such finding and despite the persuasive advocacy of Mr. Bari, this Court is thus unable to accept his argument to the effect that the transfer order was passed in appreciation of administrative exigencies. This Court also does not find any substance in the argument of Mr. Bari to the effect that having joined the office of the respondent no.8 the petitioner cannot challenge the order of transfer inasmuch as in terms of the provisions of Rule 10 (2) of the said Rules of 2002, the petitioner could not have preferred the statutory appeal without joining. In the said conspectus of facts and reasons, the writ application is allowed. The impugned order of transfer dated 2nd July, 2013, the order dated 24th April, 2014 and the order dated 3rd July, 2015 issued by the respondent no.6 and the observations of the Appeal Committee in paragraph 9 of the order dated 8th June, 2015 passed in Appeal Case No. 4 of 2015, appearing at page 107 of the writ application, are set aside. The respondent no.6 is directed to transfer the petitioner to the post of Head Teacher in any school under Sagar Uttar Circle within a period of three weeks from the date of communication of this order. The respondent no.6 is also directed to comply with the directives of the Appeal Committee, contained in paragraphs 4 to 8 of the order dated 8th June, 2015 passed in Misc. Case No.1 of 2014, towards disbursement of arrear salaries in favour of the petitioner within a period of four weeks from the date of communication of this order. With the above observations and directions, the writ application is disposed of. There shall, however, be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be handed over to the parties on compliance of necessary formalities.