Fulfillment Of Specific Criterion Under Service Conditions Give Right To Teachers To Claim Transfer- Calcutta HC
The Calcutta High Court allowed an appeal filed by a teacher challenging the order of the Single bench which had dismissed the writ petition against refusal of her transfer application by the head of the institution.
A Division Bench of Justice Uday Kumar and Justice Soumen Sen held,
"The service conditions gives right to claim on fulfillment of certain conditions. An application for transfer has to be considered on the basis of existing and/or prevailing rules. We do not find any material to reject the said application of the petitioner by the Head of institution on the ground of “out of 10%” and no sufficient material is produced before us to justify the said stand."
The petitioner, an Assistant Teacher at Churamon PC High School in Uttar Dinajpur, challenged the Head of the Institution's rejection of her transfer application based on the "out of 10 percent" ground. She had applied for transfer through the Utsashree Portal three times, with the first application submitted on August 12, 2021. The managing committee expressed no objection to release her, but the District Inspector of School (S.E), Uttar Dinajpur, refused due to "Single Teacher" reasons. The second and third applications were similarly rejected, and the petitioner filed a writ petition against the last rejection.
The Single Judge interpreted a Gazette Notification dated September 29, 2022, and observed that transfer applications made on certain grounds (medical and others specified in Clauses (a) to (d) of Rule 4) can be considered without restrictions. However, no such relaxation applied to applications made under Rule 4(e). Rule 4(e) was modified in the Transfer Rule of 2015 to allow transfers twice a year to prevent disruption to academic interests, particularly in schools with a sanctioned teacher strength of five or fewer. The writ petition was dismissed.
Advocate Biswarup Biswas appeared for the Appellant and Advocate Biswabrata Basu Mallick appeared for the Respondents.
The appellant's counsel referred to a previous decision and argued that transfer applications should be evaluated based on the relevant circulars at the time of consideration, not subsequent ones unless they are specifically retrospective. The appellant's counsel also contended that the petitioner was entitled to transfer benefits based on the existing rules applicable when her application was considered.
Representatives from the State and the Central School Service Commission argued that the pupil-teacher ratio should be the main consideration for transfers, and according to a Notification dated September 29, 2022, teachers have no vested right to claim transfers.
The Court acknowledged the obligation of the State to implement the Right of Children to Free and Compulsory Education Act, 2009, and noted the need for rationalizing teacher transfer policies.
The Court emphasized that service conditions grant the right to claim transfer upon fulfilling specific criteria. An application for transfer must be evaluated based on existing rules. The Court found no sufficient grounds to reject the petitioner's application based on the "out of 10%" criterion.
“The order of rejection has to be considered on the basis of the reasons mentioned and not on any other extraneous consideration. The argument made that pupilteacher ratio was a relevant factor is not borne out from the impugned order of the Head of the Institution. There cannot be any doubt that in an appropriate situation interest of the student could be the over-riding consideration. However, at the same time if a teacher fulfills the eligibility criteria for transfer under the relevant existing rules there are procedures prescribed to fill up the resultant vacancy.”
The Court noted that the issue can be resolved by the appropriate authority. A suggestion was made that the Commissioner of School Education should decide the issue.
The Court directed the Commissioner of School Education to consider the petitioner's transfer application after verifying the record and relevant documents provided by the school authorities based on norms prevailing at the relevant time, not subsequent circulars. The interest of students should also be a factor in consideration, the Court remarked.
The Court set aside the challenged order. The Commissioner of School Education was directed to decide the issue within six weeks after communicating the order to both parties and the appeal was allowed.
Cause Title: Prapti Chakraborty v. State of West Bengal & Ors.
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