Calcutta High Court (Appellete Side)
The Nadia District Primary School ... vs Sudipta Ghosh & Ors on 26 July, 2013
Author: Arun Mishra
Bench: Arun Mishra
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Form No. J. (2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present :
The Hon'ble Chief Justice Arun Mishra.
And
The Hon'ble Justice Joymalya Bagchi.
M.A.T 1065 of 2013
With
C.A.N 7211 of 2013
The Nadia District Primary School Council & anr.
-Versus-
Sudipta Ghosh & Ors.
For appellants: Mr. Swapan Kumar Mazumdar
For respondent/
Writ petitioner: Mr. Sayan De
For State: Mr. Sadananda Ganguly
Heard on: 26th July, 2013
Judgment on: 26th July, 2013
As per Arun Mishra,C.J.
Heard finally with the consent of the learned counsels for the parties. The intra court appeal has been preferred by the appellants the Nadia District Primary School Council & anr. aggrieved by the order dated 26.06.2013 passed by the Single Bench in W.P 17446(W) of 2013 thereby questioning the order of transfer of the petitioner which was passed on the basis of 2 rationalization of the teacher-student ratio as per the Government Circular and the provisions contained in Section 25 of the Right to Education Act.
After staying for 10 years at the present place of posting at Bipranagar Primary School in Nabadwip circle the respondent/writ petitioner was transferred to Bhatgachhi Primary School, P.O Ranabandh Circle, Chapra vide order dated 06.03.2013, within same district. Writ petitioner/respondent had earlier succeeded in getting the order of transfer quashed, which too was passed in the year 2012, in a writ petition.
Section 25 of the Right to Education Act provides for the pupil-teacher ratio. It is mentioned in Section 25(1) of the Act that within six months from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that the Pupil-Teacher Ratio, as specified in the Schedule, is maintained in each school.
State Government has also issued a Circular on 30th August, 2012 for rationalization in accordance with the provisions of the Right to Education Act and the provisions contained in West Bengal Primary Education Act, 1973. It was mentioned in the Government Circular that there were huge anomalies in the number of teachers posted in different schools. There are certain schools which are running with surplus teachers whereas in some other schools, there are acute deficiencies of teaching personnel. The State Government has enclosed two such lists of schools where pupil-teacher ratio is less than 25 and more than
40. Hence, the request was made to go ahead with the reshuffling of teachers with the data enclosed herein and complete the process within one month. 3 Thereafter impugned order of transfer was passed on 06.03.2013 as per directive issued in the aforesaid circular dated 30th August, 2012 thereby transferring the writ petitioner/respondent from Bipranagar Primary School to another school within the district of Nadia. The order was issued subject to approval of Nadia District Primary School Council. Nadia District Primary School Council has approved the order of transfer on 16th March, 2013 vide annexure P/4 to the petition.
Aggrieved by the order of transfer, the petitioner preferred a writ petition before the Single Bench. The Single Bench has quashed the order of transfer on the ground that Chairman had no power to transfer and the approval of the Council was of no avail. Hence, the intra court appeal has been preferred by the District Primary School Council and another.
Mr. Mazumdar, learned counsel, appearing on behalf of the appellants has submitted that there is a power as provided in Section 53(2) of the West Bengal Primary Education Act, 1973 (hereinafter referred as Act of 1973) with the Chairman to exercise any of the power relating to the Council. Section 53(2) of the Act of 1973 says that the Chairman may, in any emergency, discharge any of the duties of the Primary School Council, provided, however, that he shall not act contrary to any decision of the Primary School Council, and shall within one month report the Primary School Council the action taken by him together with reasons therefor.
The learned counsel has submitted that transfer order was validly passed and there is no reason to interfere with the same. It was, in terms of the 4 directive, issued by the State Government and considering the provisions in Section 25 of the Right to Education Act, no case for interference in the writ petition was made in the order of transfer, particularly, when it was based on extreme emergency to man different schools and the petitioner had remained at the place of previous posting for the last 10 years.
Mr. Ganguly, learned counsel, appearing on behalf of the State has supported the stand of the appellant.
Mr. De, learned counsel, appearing on behalf of the writ petitioner/respondent has submitted that the Chairman had no authority to exercise the power of the Council as it was not a case of emergency. He has not mentioned the reasons for passing the order. Thus, the order has been rightly set aside by the Single Bench placing reliance upon Rule 4 of Transfer of Primary Teachers Rules which authorises the council to transfer on its own motion or on an application from a teacher. Thus, he submitted that the power could not have been exercised by the Chairman, that too, when power has been exercised by transferring approximately 500 teachers from one place to another on eve of Panchayat Election when circular was issued in August, 2012. There was no reason to exercise power in March, 2013 when the Panchayat Election was due. Thus, the order of transfer suffers with the malice also. It was also submitted by the learned Counsel for the petitioners that head teacher could not have been treated as surplus teacher.
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After hearing the learned counsel for the parties the main question for consideration is that whether the Chairman could have passed the order of transfer or not.
Section 53 of Act of 1973 deals with the duties of the Chairman which reads thus:
"S.53. Duties of the Chairman. -(1) The Chairman shall be responsible for carrying out and giving effect to the decisions of the Primary School Council and of any Committee thereof.
(2) The Chairman may, in any emergency, discharge any of the duties of the Primary School Council, provided, however, that he shall not act contrary to any decision of the Primary School Council, and shall within one month report the Primary School Council the action taken by him together with reasons therefor.
(3) The Chairman shall-
(a) exercise general supervision and control over the Secretary, the finance Officer and the staff appointed by the Primary School Council and post and transfer the members of the staff;
(b) sanction all claims of travelling allowance;
(c) take such other action not inconsistent with any decision of the Primary School Council as he considers necessary for the proper functioning of the Primary School Council under the Act."
Provisions contained in Section 53 of Act of 1973 makes it clear that Chairman can in any emergent situation discharge any of the duties of the Primary School Council provided, however, that he shall not act contrary to any decision of the Primary School Council and shall within one month report the Primary School Council the action taken by him together with reasons therefor.
The provisions contained in Section 25 of Right to Education Act mandated action to be taken within a period of six months from, the date of notification issued. The period had lapsed. Hence, it was emergent situation. 6
Government has also issued circular dated 30th August, 2012 on the basis of the provisions contained in Section 25 of the Right to Education Act. Accordingly, it was directed that there was gross disparity with respect to teacher-student ratio, which was not being maintained. Though the circular was issued by the State Government in August, 2012 as such the order of transfer should have been passed with expedition much earlier but merely a little delay in exercise of the power cannot make it mala fide one or politically motivated in any manner whatsoever. The teacher-student ratio is required to be maintained and in order to effectuate the provision of Section 25 of the Right to Education Act as well as the Government Circular based thereupon, the impugned order of transfer has been passed. The petitioner cannot claim any right whatsoever to remain at the same place of posting for the last 10 years he had remained at same place and cannot claim any legal right to have transfer order quashed. The impugned order cannot be termed to be unauthorised in view of the provision of Section 53 of Act of 1973.
When we read Rule 4 of the West Bengal Primary Education (Transfer of Teacher including Head Teacher) Rules, 2002, there is no doubt about it that the Council has the power either suo motu or on an application to transfer such teacher to any other school. However, by virtue of the provisions contained in Section 53 of Act of 1973, in the case of emergency when there is dire need of transfer of a teacher to another school, order of transfer could have been issued by the Chairman subject to the rider he had to report same within one month to the Council. The Council had also approved the order of transfer by the 7 Chairman. Thus, there was no legal infirmity and there was compliance of Rule 4 also. It would be deemed that by approval of the order of transfer passed by the Chairman that there was no infirmity left in the order. The Single Bench, in the facts, could not have interfered with the order of transfer. The Single Bench has opined that no reason has been assigned to exercise emergency power. The finding is not correct. There is reference in the order of transfer, to the Government Circular dated 30th August, 2012 which is for rationalisation and there is no requirement of law to mention reason in the order of transfer. Thus, the Single Bench erred in interfering with the order of transfer, which was passed to maintain teacher-student ratio as per mandate of Section 25 of Right to Education Act.
The submissions raised by the learned Counsel appearing on behalf of the petitioner/respondent that the petitioner/respondent could not be treated to be surplus teacher is of no avail. Violation of the policy cannot be the subject matter of the judicial review. Thus, we find that there was absolutely no ground so as to interfere with the just and authorised order of transfer by the Single Bench. We have no hesitation to quash the order passed by the Single Bench quashing and setting aside the order of transfer of petitioner. Thus, in our considered opinion, the appeal deserves to be allowed.
Let the respondent/writ petitioner forthwith join at the place where he has been transferred.
Accordingly, the appeal is allowed. The impugned order is set aside. No costs.
8In view of the aforesaid judgment the application being C.A.N 7211 of 2013 is disposed of.
(Joymalya Bagchi J.) (Arun Mishra, Chief Justice)