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Judgment
Dipankar Datta, J.—The first petitioner was selected by the Regional School Service Commission (Northern Region) for appointment to the post of Assistant Teacher in Work Education and, accordingly, was recommended for appointment in Tufanganj Iladevi Girls'' School (High School), Tufanganj, District Coochbehar. She has joined the post of Assistant Teacher on 12th April. 2004. By an order dated 8th June, 2004 issued by the District Inspector of Schools (SE), Coochbehar, her service has been approved with effect from 12th April, 2004.
Similarly, the second petitioner was selected by the said Commission and ultimately recommended for appointment to the post of Assistant Teacher in Work Education in No.2 Ajmatpur Anchal High School, Manakhali, Dakshin Dinajpur. She has joined the post on 12th November, 2007. Her service has since been approved by the District Inspector of Schools (SE), Dakshin Dinajpur by order dated 20th December, 2007.
Though the first petitioner is a permanent resident of village and post office Khiderpur, District Dakshin Dinajpur, she has been serving in the aforesaid school at Tufanganj, District Coochbehar. On the contrary, the second petitioner, though a permanent resident of Tufanganj, District Coochbehar, has been serving the school at Manakhali, District Dakshin Dinajpur.
It is claimed in the petition that due to the distance between the respective residences of the petitioners and the schools where they have been recommended, they have been facing immense hardship in rendering service. Accordingly, they have jointly made a prayer before the Director of School Education dated 29th September, 2008 praying for mutual transfer. Since the prayer has not been considered, this petition has been presented by them for a direction on the respondent authorities to approve and give effect to the proposal of mutual transfer.
It has been placed on record that the Managing Committee of the respective schools have consented to such mutual transfer since the qualification of both the petitioners are the same and they have been recommended for teaching the same subject.
My attention has been invited to a Division Bench decision of this Court dated 20th April, 2006 in MAT 2284 of 2005. The Division Bench was of the view that in the particular case at hand effecting mutual transfer, as prayed for, would be in the best interest of all concerned and, accordingly, it did not interfere with the order of the learned single Judge whereby mandatory direction was issued to effect mutual transfer in terms of the prayers in the writ petition. However, a SLP had been filed before the Apex Court by the State of West Bengal feeling aggrieved by the order dated 20th April, 2006. Although the SLP was dismissed by the Apex Court, the question of law was left open.
This Court has been appraised that in terms of the order passed by the Division Bench dated 20th April, 2006, the Director of School Education, West Bengal has effected mutual transfer of the concerned teachers who had approached this Court earlier. However, the Director in his order has correctly observed that the direction for effecting mutual transfer has been given in pursuance of the dismissal of the SLP and that the same cannot be treated as precedent for other cases.
Be that as it may, the same point which was urged before the Court on the earlier occasion has been repeated before me.
It is noticed that no law has yet been enacted or executive instruction issued by the appropriate authority permitting mutual transfer in a case where the teachers concerned are in genuine difficulty. In the absence of any law/executive instruction on the subject, it is not open to the petitioners to allege infringement of any legal right. They are also precluded from alleging that the respondent authorities have failed to discharge a duty, which they owe to the public. It is elementary that a writ petition would be maintainable only if a legal right of the applicant is infringed or if it is demonstrated that the public authority despite being under an obligation has failed to discharge his duty. In the present case, none of these are present which would warrant granting relief as claimed by the petitioners. Dismissal of the writ petition would be the obvious result in such a case but this Court is not inclined to dismiss the writ petition only on this ground.
The problem has to be viewed from a different angle. It is well-known that the Constitution in its Preamble aims to secure to all the citizens of the country social justice and equality of opportunity. It is not only the duty of the Court to secure social justice to the aggrieved parties but it is also the duty of the executive to direct their actions in such a manner that the public at large also receive justice from them as also equal opportunity in the matter of public employment. That could only be achieved if the executive exercise its powers fairly, justly and reasonably. After all, power has been conferred on it only for the purpose of doing public good. That purpose cannot be achieved if the executive is permitted to abdicate its duty to do good to the public only because of absence of law/instruction on the subject. The problem the petitioners have been facing is a burning problem. I wonder what could be the reason for the executive not to rise to the occasion by addressing the problem and finding a solution once and for all. It is high time that the executive acts in a positive direction to the extent permissible for ameliorating the grievances of the citizens. It must explore ways and means to come to the rescue of teachers employed in far-away schools, provided it is satisfied that the grievance is genuine. A guideline may well be issued to decide each case on its own particular facts. If in a particular case, it is found that mutual transfer, if effected, would be beneficial not only for the concerned teachers but also for the schools in general and the students in particular, there is no reason as to why attention should not be adverted to such a situation. This Court hopes and trust that the executive shall consider the desirability of introducing necessary provision for the purpose of looking into the grievances of the concerned teachers who are really placed at a disadvantage by reason of being recommended for appointment as teachers to schools which are far away from their native places. If the concerned teachers happen to be members of the fairer sex, it is all the more necessary that due attention is paid to their problems. After all, Article 15(3) of the Constitution permits the State to make special provisions for women.
This Court is confident that the difficulty voiced by the petitioners in their representation to the Director of School Education shall be considered with the care and sympathy the same deserves. A reasoned decision may be given while disposing of the representation and it shall be communicated to the concerned parties. Needless to observe that if the Director intends to consider the representation, he shall be at liberty to put the Managing Committee of the concerned schools, the Regional School Service Commission (Northern Region) and the concerned District Inspector of Schools on notice for ascertaining their views on the subject. The Director shall also be at liberty to refer the issue to the Government, at the highest level, so that it exercises the consideration of the concerned authority to give effect to the provisions of the Constitution.
The writ petition stands disposed of without any order for costs.
Urgent photostat copy of this order, if applied for, be supplied to the parties as early as possible.