Supriya Mukhopadhyay And Ors vs State Of West Bengal & Ors.

The petitioners undertake to affirm and stamp the petition/application as per Rules within 48 hours of resumption of normal functioning of the Court.

Subject to such undertaking, the application is taken up for hearing through video conference.

In the present writ petitions, the petitioners have challenged a transfer order of the petitioners as well as the three other staff of the concerned school

as well as the release order dated June 6, 2020 to that effect issued by the headmaster of the said school which is the subject-matter of challenge in all

the writ petitions.

Learned counsel for the petitioners in all the matters challenges the vires of the amendment of the West Bengal School Service Commission Act, 2017

vide notification in the Official Gazette dated April 17, 2017, whereby the new Section 10 (C) was introduced in the said Act. The first ground on

which the petitioners assail the common order is that such a condition as sought to be introduced by the impugned decisions are being passed by way

of administrative orders, despite the vires of section 10©, introduced by the impugned notification dated April 17, 2017, being under challenge in

several writ petitions apart from the present one as well, which are also pending before other Benches of this court.

Mr Bari, learned counsel appearing for the petitioners, cites an unreported order dated February 3, 2020 passed by a coordinate Bench in WP

No.230(W) of 2020 in support of his submission that a stay of the transfer of the teachers was granted in the said writ petition, also in a challenge

against the vires of the amended section 10(C), which ought to be followed in the present case.

Learned advocate appearing for the petitioners next argues that in view of such provisions as incorporated by way of section 10(C) being not existent

at the juncture when the petitioners in all these four matters were appointed in their respective posts, the same cannot have retrospective effect in

detriment of the interest of the petitioners. It is relevant to mention here that the respective petitioners in the writ petitions include both teaching and

non-teaching staff. By relying on the letter of appointment of the petitioners, it is sought to be argued that the service conditions did not stipulate any

such provision of transfer at the instance of the school or the Government.

It is next argued on behalf of the petitioners that since the schools themselves are closed in spite of the relevant Government notification, which had

extended the on-going lockdown and closure of educational institutions till July 31, 2020, and despite the subsisting pandemic situation, the petitioners

have been transferred post-haste in a manner which reeks of mala fides.

Learned counsel relies on the closeness of the date of the transfer order, i.e. June 4, 2020 and the release order issued by the headmaster of the

concerned school dated June 6, 2020 to imply mala fides behind the extreme haste in which the petitioners were transferred without any rhyme or

reason during the prevailing pandemic situation, despite the concerned schools being closed.

That apart, learned counsel for the petitioners relies on section 10 of the 1997 Act itself to emphasize the argument that the terms and conditions of

service of teachers and non-teaching staff in the employment of a school immediately before the commencement of the said Act cannot be varied to

the disadvantage of such teachers or non-teaching staff in so far as such terms and conditions relate to the appointment of such teachers or non-

teaching staff to the posts held by them immediately before the commencement of this Act.

Mr. Bari next relies on sections 10(A) and 10(B) of the said Act to advance the arguments that previously transfer was only to be effected on mutual

agreement of the concerned teachers or on the basis of the application made to the Central Commission by an eligible teacher. However, by the

impugned provision, being section 10(C), sought to be introduced now by the effect, the effect of the said sections is sought to be broadened beyond

recognition and the whim of the State Government is sought to be incorporated in the criteria for transfer.

It is further argued by the petitioners that transferring seven staff, teaching and non-teaching staff, of the same school at the same time, that too

during the prevailing COVID 19 situation, was patently tainted by mala fides.

Learned Advocate General, while controverting the petitioners’ arguments, submits that in the writ petitions, the legislative competence of the

State, in its legislative capacity, in introducing the amendment has not been challenged as such.

Learned Advocate General further submits that it is a well-settled proposition of service jurisprudence that no employee can resist a change in the

initial service rules and insist upon the service rules being consistently frozen at the juncture when they are and/or such employees were appointed.

That apart, transfer is an incident of service and not a natural corollary thereto, which is also settled law; as such the writ petitions are not

maintainable even on the score that in the present case no alteration in the service conditions to the detriment of the concerned staff has been

introduced, which could have attracted the protection afforded in section 10 of the 1997 Act.

It is further submitted by the learned Advocate General that it is not for the school to explain in detail the reasons of transferring an employee in all

cases, since transfer, as mentioned above, is an incidence of service. Moreover, it is argued that no mala fides have been pleaded or proved in the writ

petition to justify interference by this court in the matter.

Learned Advocate General next submits that the transfer was effected pursuant to a notification of the school Education Department, Secondary

Branch, Government of West Bengal dated March 12, 2018 (Annexed as Annexure P5 to the writ petition) which, in turn, was done under the

provisions of section 10(C) of the 1997 Act read with the provisions of the West Bengal Board of Secondary Act, 1963. As such it is submitted that

there is no dearth of competence on the part of the respondent-authorities or the concerned schools to agree to the transfer. It is submitted by the

respondent nos. 8 and 9 that the headmaster of the school has already issued a release order and has agreed to the transfers impugned in the present

writ petitions and as such there can be no embargo on such transfer.

It is submitted on behalf of the respondent-authorities, in unison of the respondent nos.8 and 9, that the process of mutual transfer has traditionally

meant the agreement between the two schools concerned for such transfer and not between the teachers themselves.

Respondents no. 8 and 9 further submits that since there was a surplus in the transferor school and vacancies in the transferee school, the transfers

were, in any event, justified.

Upon hearing learned counsel for both sides, this court finds that there is substance in the submission of the petitioners as regards the patent illegalities

and mala fides in the action of the school concerned, as well as violation of the law governing the field. Even a cursory glance at section 10 of the

1997 Act reveals that there is a non obstante clause preceding the said section, which effectively shields the protection given by section 10 from other

provisions of the 1997 Act itself. The argument as to the present transfers not being to the disadvantage of the teachers or the non-teaching staff

concerned does not hold good in view of the prevalent COVID-19 situation and seems to be prima facie mala fide in view of the hot-haste in which

such transfer was effected. Although there has been no specific proof of any personal vendetta produced by the writ petitioners, the circumstances

prima facie indicate extra-legal considerations for the transfer. However, these observations are made only for the purpose of deciding the ad interim

prayer for stay of transfer and shall have no bearing on the hearing of the writ petitions at the final stage.

The provisions of section 10(A) and 10(B) of the said Act make it abundantly clear that the previous provisions of transfer contemplated general

transfer on the application of the concerned teachers and/or mutual transfer, only upon both the teachers or staff concerned agreeing to such transfer.

However, in the present case, even sections 10(A) and 10(B) have been sought to be given a new meaning by introduction of the proposed

amendment under section 10(C) of the Act, which itself is prima facie suspect in view of the unbridled discretion given to the State Government in the

proposed amendment to direct the commission, through guidelines or general instructions, to make recommendations for transferring teachers,

including the assistant headmaster or assistant headmistress or any non-teaching staff, from one school to another against any sanctioned post. This

absolute power, at least at the first blush, appears to be an unwarranted interference of the State machinery in the autonomy of the concerned body

controlling education in the State.

Even if the amended section 10(C) were to come into force, it is clear as daylight that the provisions of the 1997 Act, as reflected in sections 10A and

10B, stipulate that transfer can only be effected on an application of the teacher or on consent being given by the teachers who will be affected by the

transfer and not at the whims of the administration.

Section 10(C), on the other hand, speaks of a bar to variation of the conditions of service of teaching and non-teaching staff. The introduction of the

wish/desire of the State as a factor to be considered while transferring the respective staff of the educational institutions is in direct conflict with the

spirit and language of sections 10(A) and 10(B), read with section 10, of the 1997 Act, which specifically restrict such transfers only to certain

situations, both situations being at the discretion of the teachers in question and not merely at the fancy of the headmaster or the administration, be it of

the school or State. Such patent illegality on the face of it has also rendered the amendment sought to be introduced by way of section 10(C) is to the

detriment of the interest of the teaching and non-teaching staff, since the previous mode of transfer subject to the consent of the teachers has been

sought to be enlarged out of proportion and the desire of the State administration sought to be introduced as one of the grounds of transfer which is

definitely disadvantageous of the teachers. Although, as rightly argued by the learned Advocate General, transfer is an incidence of service, since the

transfer of teaching and non-teaching staff have so long been specially governed by sections 10(A) and 10(B) of the 1997 Act, which would be to the

obvious detriment of the interest of the school staff, which is specifically prohibited by section 10 of the Act itself, in the event such transfer is taken

out of the hand of the staff alone and vested in the State, in its administrative capacity, as well.

As such, section 10(c), sought to be introduced by the amendment, is patently violative of the previous provisions of the same Act. It may further be

noted that section 10 is preceded by a non obstante clause shielding the said section from the rigours of the other provisions of the 1997 Act itself,

whereas the newly introduced section 10 (C) also contains a non obstante clause which is applicable to other statutes and contracts but not to other

provisions of the 1997 Act itself. From such specific distinction, it is evident that even if section 10(C) were to be introduced and its vires upheld,

section 10 would continue to protect the present employees because it would be to their disadvantage in the event the previous modalities guiding

transfer, as specified Act itself, would not only be enlarged but would be taken beyond the hand of the teachers concerned and left to the whims of

the State.

In such view of the matter, this writ petition is required to be heard on its merits, both on the vires of the newly-introduced section 10(C) of the 1997

Act as well as on the validity of the transfer order or release order in question, being apparently de hors the law. It may be added here that the

notification by the School Education Department, Secondary Branch, dated March 12, 2018, issued in consonance with section 10(C), the vires of

which itself is suspect, at least prima facie at this stage, the said notification also cannot validate the transfer and the release orders respectively.

Accordingly, the respondents are directed to file their affidavits-in-opposition to the writ petitions, if any, within a fortnight from date. Reply, if any, to

be filed within a week thereafter.

Accordingly, as regards the other submissions of the learned Advocate General as to clause 7 of the notification pursuant to the amended section

10(C) providing a different forum than this court, for challenging disputes as regards the mode of transfer, the same cannot be accepted in view of the

fact that the amended section itself is under challenge, a natural fallout of which is that the notification(s) issued thereunder are subject to the result of

the writ petitions as well.

In view of a strong prima facie being thus made out by the petitioners, here will be a stay of operation of the impugned transfer order and release

orders of the petitioners in all the above four matters till September 30, 2020, or until further order, whichever is earlier. Liberty is granted to the

parties to mention before the appropriate Bench, either regular or urgent, for enlistment subject to discretion of the said Bench.

In view of the stay of operation of the transfer and release orders, the concerned transferor school is directed to release the salaries of the present

petitioners during the interregnum, subject to the result of the writ petitions.

It is made clear that the respondent nos. 8 and 9 shall take steps accordingly to facilitate early disbursal of the salary of the petitioners, who are

already undergoing considerable financial suffering due to the ongoing lockdown.