Transfer Of Teacher From One School To Another Does Not Violate Article 21- Calcutta HC Upholds Provision Of WBSSC Act

A Calcutta High Court Bench of Justice Harish Tandon and Justice Prasenjit Biswas has upheld the Constitutional validity of Section 10C of the West Bengal School Service Commission Act, 1997, which enables the transfer of a teacher from one school to another.

The Court held that the transfer was made in accordance with the procedure established by law, therefore, it does not infringe the fundamental right to life guaranteed under Article 21 of the Constitution.

In that context, the Court observed that, "In the perspective of the service in a public employment, the transfer is an incident of service and if the transfer is made in accordance with the procedure established by law, we do not find any justification that it infringes the fundamental right to life. Every service in the public employment unless forbidden by law is transferable. A teacher which is placed in a school if transferred to another school, it does not affect the right to life as he or she is conscious that the service is transferable. In every transferable service, if a person is transferred from one place to another he may contend that his dignity is impaired as steadiness and he is entitled to live a life in stress-free atmosphere; and in such event none of the employee in the public employment would be transferred from one place to another. We do not find any substance in the stand that the transfer of teacher from one school to another offends the constitutional guarantee of right to life under Article 21 of the Constitution. We, thus, do not find that Section 10C can be declared ultra vires to the constitution."

Senior Counsel Jayanta Mitra, Senior Advocate Ashoke Kumar Banerjee, Senior Advocate Pratik Dhar, among others, appeared for the petitioners. AG SN Mookherjee, GP Anirban Ray, AGP Tapan Kumar Mukherjee, among others, appeared for the respondents.

In this case, the Court was hearing a slew of litigations relating to the Constitutional validity of the provisions contained under Section 10C of the WBSSC Act, assailing the order of transfer or placement of service from one school to another school.

The petitioners contended that the statute has impinged upon the condition of service, which has been protected under Section 10 of the said Act, and that the introduction of Section 10C into the said Act by way of an amending Act cannot apply retrospectively as it has a larger impact on varying the condition of service to their disadvantages.

The Court did not find any element of arbitrariness or unreasonableness in the impugned legislation. In that context, it was said that, "The teachers as a homogenous class bears the equal and common responsibilities and percolate their knowledge and experience gained by them by passage of time. The State Government from time to time enacted statutes, Rules and Regulations relating to the condition of service and advancement can be seen by incorporating the system of selection of the teachers with an avowed object of common standard in the field of education. The concept of appointment in school in perpetuity has been gradually eroded and as held in the above noted decision; such employment is a public employment though not a cadre based employment. The concept of transfer is engrained and inbuilt into a service under the public employment being indicative of the fact that despite the retention of Section 10, Section 10A and 10B were introduced which are not the subject matter of challenge in the above cases. We thus do not find any element of arbitrariness or unreasonableness in bringing 10C by way of an amendment in the said Act keeping the Section 10, 10A and 10B untouched."

The Court also added that it was incongruous to suggest that in absence of any express indication in the appointment letter that the post is transferable, it automatically brings such service as nontransferable. In that context, it was further explained that after the appointment, the relevant statute and the regulations, if enacted, relating to the condition of service becomes applicable and such teachers cannot claim immunity against transfer under the archaic notion of appointment in the specific school.

The Court observed that the object and purpose of incorporating 10C was laudable, to the extent that the State felt either the excess teachers in commensurate with the number of pupils or insufficient teachers on the basis of a teacher-pupil ratio. In the same context, the Court further observed that "The State cannot lack constitutional competence in bringing the Act by way of an amendment to rationalise the teacher-pupil ratio within the State in the interest of the education or in the interest of public service."

The submission that the protection given under Section 10 of the Act has been varied to the disadvantage of the teachers was rejected by the Court as they observed that "such protection is extendable to a class of the teachers appointed immediately before the commencement of the said Act. The segregation and/or culling out the words or expressions from a section leaving the other words or expressions having significant impact should be avoided."

Subsequently, the Court also observed that the teachers who were appointed after the introduction of the provision could not claim any immunity against the transfer recommended by the Commission on the instructions have been given by the State. In that context, the Court said that "The expression “after commencement of this Act” conveys the intention of the legislature that the teachers who were appointed prior to coming into force of the said Act are kept outside the purview thereof provided the condition of service varied to their disadvantage. The reason is exposit that prior to the advent of the said Act, the selection and the appointment of the teachers were within the exclusive domain and/or power of the managing committee of the aided school. The several writ petitions which we perceived from the language employed in Section 10 is that the teachers who are appointed prior to 1997 i.e., the date of the giving effect to the said Act cannot come within the mischief of Section 10C but the teachers who have been appointed thereafter cannot claim any immunity against the transfer recommended by the Commission on the instructions have been given by the State."

With regard to the contention that the operation of Section 10C shall be from the date when it is brought into a substantive act and cannot operate retrospectively to vary the terms and conditions of service to the disadvantage of the teachers, the Court observed that the law enacted by the competent authority is always presumed to operate prospectively unless expressly intended to operate retrospectively or by necessary implication. It was further said that the concept of prospective operation is to avoid the things done in the past to be rendered undone, and that it is also based on the common notion that the law must always look forward and not back forward and the things which are settled in the past within the framework of legislative provision should not ordinarily be taken away or rendered illegal or unsettled except on the competing circumstances.

In light of the same, it was held that, "We are ad idem to the law enunciated in the above-noted decisions touching upon the principles relating to the applicability of the legislative provision prospectively or retrospectively. Though the aforesaid points was perceived to be of seminal importance yet, in view of the findings made in the preceding paragraphs, it loses its significance and becomes mere academic."

The Court also clarified that the teachers appointed after coming into force of the Act cannot claim a vested right or the existing right vis-a-vis the terms and conditions of the service. In that context, it was said that "After the promulgation of the School Service Commission Act the concept of school-centric appointment has gradually eroded as the selection and appointment of the teachers in the aided school can only be made by the Board on the recommendation of the Commission. The teachers cannot claim a vested right on transfer in a public employment which is always regarded as a incident of service."

Upholding the Constitutional vires of the Act, the Court held that it did not find any quarrel to the proposition that right to life as recognised under Article 21 of the Constitution of India cannot be squeezed within the bracket but is always regarded as dynamic and anything which impinges upon the development, the concept of equality, dignity and other facets of the human life can always be viewed seriously and any legislative action not founded upon the principle of fairness, justness and reasonableness are liable to struck down as it offends the very fabric of the Constitution and the fundamental rights guaranteed thereunder.

Cause Title: Rabin Tudu v. State of West Bengal & Ors.

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