Calcutta High Court (Appellete Side)
For vs State Of West Bengal & Ors.) on 3 July, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
1 July 03 2015 2015.
R.C. W.P. 14204 (W) OF 2015 Mr. Sabyasachi Chatterjee Mr. Paromita Banerjee ...for Petitioner Mr. Subir Sanyal Mr. Ratul Biswas ...for Howrah District Primary School Council.
Let affidavit of service filed in Court today be kept on record.
In the writ petition the writ petitioner assailed an order of transfer dated June 15, 2015 passed by the Chairman, District Primary School Council, Howrah.
It is contended on behalf of the writ petitioner that no reasons for transfer has been given. The writ petitioner did not apply for transfer. The Chairman has apparently acted on its own motion. The Chairman therefore ought to have given reasons for the transfer. The Council has not resolved to transfer the writ petitioner. The action taken by the Council in any event is mala fide since the writ petitioner had approached this Court for his entitlements and he had succeeded in such writ petition. In support of the contentions made on behalf of the writ petitioner reference has been made to a judgement and 2 order dated June 27, 2012 passed in MAT 667 of 2012 with CAN 3868 of 2012 (Biswanath Sarkar- Vs-State of West Bengal & Ors.).
The District Primary School Council, Howrah is represented. It is submitted on their behalf that the Chairman had acted on the basis of a report submitted by the Sub-Inspector of School dated April 12, 2015. The Sub-Inspector of School has found that the school in which the teacher was originally posted has only 9 students and 2 teachers while on record it showed 65 students and 3 teachers. Referring to the Section 53(2) of the West Bengal Primary Education Act 1973 and Section 60(k) thereof, it is submitted that the Chairman has acted in terms of the duties entrusted upon it by the Act of 1973. The Act of 1973 requires a decision of the Chairman taken to be placed before the Council in the ensuing meeting. The meeting of the Council is yet to happen. In such circumstances, as on date the order of the Chairman impugned herein is valid.
So far as Biswanath Sarkar (Supra) is concerned, it is submitted that the ratio laid down therein has no manner of application in the facts of the present case.
I have considered the rival contentions of the parties and the materials made available on record.
The writ petitioner is a teacher of Basudeo Harijan Hindi Vidyalaya, Sadar East Circle, Howrah. By the office memorandum dated June 3 15, 2015 issued by the Chairman, District Primary School Council, Howrah, he has been transferred to Jagriti Hindi Vidyamandir under Bally Circle, Howrah. The order of transfer does not specify any reason as to why the writ petitioner has been transferred. In my view, no material has been placed before me to suggest that the Chairman, District Primary School Council, Howrah while exercising powers under section 53(2) of the Act, 1973 is required to give reasons for issuing an order of transfer.
The Council authorities have justified the order of transfer on the basis of the report dated April 12, 2015 submitted by the Sub-Inspector of School to the Chairman of the Council. Such report found only 9 students had in Basudeo Harijan Hindi Vidyalaya under Sadar East Circle. In such circumstances, therefore, it cannot be contended that the order of transfer is without any basis whatsoever.
So far as the allegation of mala fide levelled against the order of transfer is concerned, I am of the view that the Chairman has apparently acted on the basis of the report dated April 12, 2015 of the Sub-Inspector of School, Sadar East Circle, Howrah. In doing so, he was within his rights to issue order of transfer. The allegation of mala fide therefore in the facts of this case, in my view, is without any basis.
The contention of the order of transfer dated June 15, 2015 is without the resolution of the 4 concerned Council is also without any basis in the facts of the case. Section 53(2) of the Act of 1973, the decision of the Chairman to be placed before the Council and Chairman to report to the Council any action taken by the Chairman with the reasons therefor. The time limit of one month prescribed in Section 53(2) has not expired till date. The Chairman is authorised under section 53 (2) of the Act of 1973 to discharge any of the duties of the Primary School Council provided that he does not act contrary to any decision of the Primary School Council and there is an emergency to do so. In the facts of this case nothing has been placed on record to suggest that the order of transfer issued by the Chairman is contrary to any decision of the Primary School Council. The emergent situation for exercising of power by the Chairman is established by the report of the Sub-Inspector of schools dated April 12, 2015. The Chairman is empowered under section 53(2) of the Act of 1973 to discharge any of the duties of the Primary School Council. Section 60 (k) of the Act of 1973 allows a Primary School Council to transfer any teacher from one primary school to another primary school within the jurisdiction of the concerned Primary School Council. In the instance case, the Chairman has exercised such power of the Council given under section 60 (k) and has transferred the writ petitioner from one school to another school within the same jurisdiction of the Council.
5In Biswanath Sarkar (Supra) the Division Bench was concerned with Section 53 (2) of the Act of 1973. Such facts of the case is not prevalent in the present case. In my view, therefore, the ratio of Biswanath Sarkar (Supra) is not attracted in the facts of the present case.
In such circumstances, I find no merit in this writ petition and the same is dismissed without any order as to costs.
Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.
(DEBANGSU BASAK‐J)