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2018 DIGILAW 52 (CAL)

Mousumi Bakshi v. State of West Bengal

2018-01-08

TAPABRATA CHAKRABORTY

body2018
JUDGMENT : 1. The subject matter of challenge in the present writ petition is an order dated 4th September, 2017 passed by the respondent no.2A by which the petitioner’s application for general transfer on special ground under Rule 4(1)(a) of the West Bengal School Service Commission (General Transfer on Special Ground and Reallocation) Rules, 2015 (in short the said Rules) from Ramnagar New Set Up Upper Primary School (in short, the said school) was rejected primarily on the following grounds: (a) since the petitioner did not produce any medical certificate to substantiate the claim that her husband is a patient of chronic cardiac disease or that the cardiac complications of her husband are of irreversible and incurable nature; (b) since at present there are only three teachers in the said school to teach 80 students; (c) since the process of filling up the vacancy, which would occasion by transferring the petitioner, would be very time consuming; 2. It has also been observed in the impugned order that the said Rules do not confer upon the petitioner any indefeasible right of transfer and that had it been an application for mutual transfer, there would not have been any problem in allowing such transfer. 3. Mr. Sanyal, learned advocate appearing for the petitioner submits that the first ground taken in the impugned order is not sustainable since there is no requirement under the said Rules to produce any medical certificate to the effect that the disease suffered by the petitioner’s husband is irreversible and incurable in nature. The documents annexed at pages 43, 47, 108 and 109 of the writ petition would reveal that on 23rd November, 2015 a life-saving cardiac device was implanted and that the petitioner’s husband is suffering from systolic dysfunction in both the ventricles and that subsequently his right ventricle has been “permanently affected” and such fact stands certified by the consultant cardiologist. From the said documents it is explicit that the heart condition of the petitioner’s husband is very serious. 4. From the said documents it is explicit that the heart condition of the petitioner’s husband is very serious. 4. He further contends that “no objection certificate” (in short, NOC) in support of the petitioner’s application for general transfer on special ground has already been issued by the school authorities and the respondent no.2A had no jurisdiction to sit in appeal over such decision as adopted by the Managing Committee of the said school which includes a medical practitioner and as such the grounds towards refusal of transfer for dearth of teachers are not sustainable in law. In support of such contention he has placed reliance upon the judgment delivered in the case of Managing Committee, Kholapota Ramkrishna Halder Girls High School & Anr. Vs. Nibedita Ray, reported ion 2009(3) CHN 626 . 5. He further argues that the said Rules confer a right upon the teachers to apply for transfer in case of medical emergencies and such immediate need cannot be frustrated by reiterating a ground of dearth of teachers and such action on the part respondent no.2 is not fair. In support of such contention reliance has been placed upon the judgments delivered in the case of Oryx Fisheries Private Limited vs. Union of India & Ors., reported in (2010)13 SCC 427 and in the case of V.C Banaras Hindu University vs. Shrikant, reported in (2006) 11 SCC 42 . 6. Per contra, Mr. Bhattacharyya, learned advocate appearing for the State respondents submits that the said Rules confer jurisdiction upon the respondent no.2A to consider the petitioner’s application for general transfer on special ground upon “proper examination”. The scope and ambit of such proper examination includes a decision on the issue as to whether the petitioner’s spouse is suffering from heart diseases as well as on the issue of dearth of teachers for which the students of the concerned school would be the worst sufferers. The said respondent no.2A has considered all the issues and has passed a reasoned order which does not suffer from any infirmity warranting interference of this Court. 7. Mr. Bandopadhyay, learned advocate appearing for the West Bengal School Service Commission submits that only after an application for transfer is forwarded by the appropriate authorities in terms of Rule 7 of the said Rules, follow up steps are required to be taken by the Commission. 8. 7. Mr. Bandopadhyay, learned advocate appearing for the West Bengal School Service Commission submits that only after an application for transfer is forwarded by the appropriate authorities in terms of Rule 7 of the said Rules, follow up steps are required to be taken by the Commission. 8. Indisputably, the petitioner submitted an application for general transfer on special ground in terms of Rule 4(1)(a) of the said Rules and as the same was initially not considered, the petitioner approached this Court by a writ petition being W.P 25615(W) of 2016 which was disposed of by an order dated 7th February, 2017 relegating the matter for consideration. Subsequent thereto, the petitioner’s claim was considered and NOC was issued by the school authorities on 19th of June, 2017 but thereafter as follow up steps were not taken, the petitioner again had to approach this Court again by a writ petition being W.P 22328(W) of 2017 and during pendency of the same, all necessary records pertaining to the petitioner’s claim were forwarded by the respondent no.4 to the respondent no.2A by a letter dated 20th July, 2017 and, accordingly, the writ petition was disposed of on 26th July, 2017 with a direction upon the respondent no.2A to consider the petitioner’s claim and to pass a reasoned decision. 9. There is no requirement under Rule 4(1)(a) of the said Rules towards production of any specific medical certificate to the effect that the disease suffered is irreversible and incurable in nature. The impugned order does not contain any reason as to why no weightage was granted to the examination reports upon which reliance was placed by the petitioner and as such the first ground towards rejection of the petitioner’s claim is not sustainable. 10. The authorities of the said school upon due consideration of the petitioner’s application issued NOC. The respondent no.2 ought not have sat in appeal over such decision of the school authorities towards grant of NOC. For dearth of teachers and on anticipation that the process towards filling up the consequential vacancy would be time consuming, the petitioner’s prayer could not have been turned down. Such assumption of jurisdiction by the respondent no.2A was erroneous. Accordingly, the said grounds are not sustainable. 11. For dearth of teachers and on anticipation that the process towards filling up the consequential vacancy would be time consuming, the petitioner’s prayer could not have been turned down. Such assumption of jurisdiction by the respondent no.2A was erroneous. Accordingly, the said grounds are not sustainable. 11. A perusal of the order impugned also reveals a contradiction inasmuch as on one hand the respondent no.2A was not agreeable to accept the fact that the petitioner’s husband was suffering from severe ailments whereas in the penultimate paragraph of the order the said respondent no.2A has observed that had it been a case of mutual transfer, there would not have been any problem in allowing her transfer. 12. For the reasons discussed, the impugned order dated 4th September, 2017 passed by the respondent no.2A is not sustainable in law and the same is, accordingly, set aside. 13. Records reveal that in the earlier writ petition being W.P 22328(W) of 2017 an interim order was passed on 14th July, 2017 directing that “at least one vacant post of a secondary teacher in the Rishra Vidyapith, Rishra Vidyapith, Unit – II and Chandernagore Kanailal Vidyamandir (French) be not filled up”. The said writ petition was disposed of on 26th July, 2017 directing that the said interim order shall continue till two weeks after the decision of the respondent no.2A. After the impugned order was challenged, the same interim order was passed on 20th September, 2017 and the same is continuing till date. 14. Accordingly, this Court directs the respondent no.2A to recommend the petitioner’s claim for general transfer on special ground to the West Bengal School Service Commission within a period of two weeks from the date of communication of this order. 15. Within a period of two weeks after receipt of such recommendation, West Bengal Central School Service Commission shall issue recommendation towards transfer and appointment of the petitioner in the post directed to be kept vacant by the earlier orders of this Court. 16. With the above observations and directions, the writ petition is disposed of. 17. There shall, however, be no order as to costs. 18. Urgent photostat certified copy of this order be supplied to the parties upon compliance of all formalities.