Calcutta High Court (Appellete Side)
Anup Mahar vs The State Of West Bengal & Ors on 21 July, 2022
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
21.07.2022.
Court No.13
Item No. 111
pk W.P.A. No. 3632 of 2022
Anup Mahar
Versus
The State of West Bengal & Ors.
Mr. Biswarup Biswas,
Md. Sarwar Jahan,
Mr. Kamal Mishra,
Mr. Gora Chand Samanta
...For the petitioner.
Mr. Arindam Chattopadhyay,
Ms. Lipika Chatterjee.
..For the State.
Dr. Sutanu Kumar Patra,
Ms. Supriya Dubey.
..For the WBCSSC.
Mr. Dipanjan Datta,
M. Atanu Basu
... For the respondent no. 8.
The writ petitioner is aggrieved by an order of the head of the institution declining 'NOC' for general transfer on the ground that the petitioner's application is in excess of 10% of the strength of the teachers existing in the school.
Mr. Biswarup Biswas, Ld. Advocate appearing for the petitioner by referring the West Bengal School Service Commission (General Transfer, Transfer on Special Grounds and Re-allocation) Rules, 2015 and its amendment on 8th September, 2021 has submitted that 10% Rule has become redundant.
Since Mr. Sarwar Jahan, Ld. Advocate, is appearing in number of writ petitions, where the head of the institution and the DI of Schools have rejected 2 the applications for transfer applying the 10% Rule, has been requested by this Court to address on the issue at hand.
For the purpose of appreciating the prayer and the anomaly that has arisen, it is necessary to understand the 10% Rule in the first place.
Under the 2015 Rules, the 10% restriction flows from Rules 3,4,5 and 6 which are set out hereinbelow:
"3. Primary condition of General Transfer- (1) An incumbent shall be eligible for General Transfer only if he/she is confirmed in service and completed 5 (five) years of satisfactory service in that particular school and in particular post from which he/she seeks General Transfer. Experience, if any, in the previous school and in the previous post except the experience in the post and school from which he/she is applying, shall not be considered while counting the experience in terms of score.
(2) No application under General Transfer shall be entertained if he/she intends to get transferred to a school within a distance of 25 KMs from the present school.
(3) Where an incumbent refuses to join his/her preferred school after due recommendation by the Commission, such incumbent concerned shall not be allowed to submit application for three subsequent terms of General Transfer including intra-
regional and inter-regional transfer:
Provided that an incumbent whose name has been recommended for General Transfer before coming into force of these rules, the application of such an incumbent for General Transfer shall not be disallowed under these rules.3
(4) The General Transfer under these rules shall be available once in a year and a list shall be published in the website of the Central Commission and the remaining vacancies due to non-joining after publication of the list shall not be included in the list of the General Transfer under these rules for the next year and such vacancies may be considered for the purpose of General Transfer afresh. (Emphasis Supplied)
4. General Transfer on Special ground- (1) An incumbent belonging to the following categories may apply for transfer on any of the special grounds, namely:-
a) Any teacher or non-teaching staff or his/her son/daughter or spouse suffering from malignant diseases, heart diseases, renal failure, thalassemia, replacement of organ, serious gynaecological disorder or physically disablement of 40% or more or to assist in proper treatment of self or his/her son/daughter or spouse;
b) Any women transfer or non-teaching staff whose husband died prematurely or divorced or is a victim of crime;
c) Teachers or non-teaching staff serving in Aided/Sponsored schools where the serving places of the spouses are away beyond 50 KMs.
(2) In respect of special ground mentioned in clause (a) of sub-rule (1), the State Government may cause medical enquiry for satisfaction on urgency of transfer of a teacher.4
(3) In respect of special ground Victim of crime mentioned in clause (b) of sub-rule (1), the application may be considered, where FIR has been lodged and case has been instituted.
(4) In respect of special ground mentioned in clause (c) of sub-rule (1), 10% of the applications on this special grounds shall be considered by the West Bengal School Service Commission for recommendation in a year on receiving applications after publication of notice of General Transfer and Only one member of the spouse may apply for general transfer under this special ground and priority shall be given to the senior most applicant serving maximum period in the present place of posting at a maximum distance to the proposed place of posting in comparison to others.
5. Eligibility for General Transfer - (1) Any teacher or non-teaching staff qualified as per provision of rule 3 of this Rules may be eligible for transfer to a post of Teacher or non-teaching staff of another school of same category of post and for a Teacher of same subject under same category of reservation (Honours/Post Graduate or Pass) and Post, as the case may be. (2) An incumbent opting for General Transfer shall be transferred to the same category of schools having Bengali or English or Hindi or Nepali or Oriya or Santhali or Telugu or Urdu, as the medium of instruction, as the case may be.
5(3) A male incumbent shall not be eligible for General Transfer in a female vacancy and a female incumbent can prefer male/Coed/female vacancy.
(4) No incumbent shall be eligible to apply for a General Transfer who is left with less than two years of service from the date of his/her retirement on superannuation. (5) The General Transfer shall be allowed to an incumbent, against whom no Judicial or Disciplinary proceeding is pending or contemplated and, who is not under suspension.
(6) The school authority or a particular school shall not forward applications received from more than 10% (rounded up to next higher digit) of total number of teachers of that school. Priority shall be given first to the teachers senior in age.
6. Procedure for submission of application for General Transfer in respect of a teacher under rule 3 and 4(1)(c) - (1) The Central Commission shall publish a region-wise list of vacant posts once in a year mentioning the category, subject and medium of instruction for every particular post and other particulars in the website of the Central Commission and simultaneously, by way of notice in the Offices of the Central Commission and the Regional Commissions for the purpose of General Transfer and General Transfer on Special ground mentioned under-4(1)(c).
6(2) An incumbent desirous of General Transfer/General Transfer on Special Ground within the meaning of these rules shall apply in the Form (containing Part A and Part B) as appended to these rules. The filled up form with requisite fees of Rs.2,000/- payable in favour of "The West Bengal Central School Service Commission", within the period as will be notified by the School Service Commission by submitting application Form. One incumbent may submit only one application for maximum 03 (three) of such vacant posts as per his/her priority of choice in application forms as prescribed. Handwritten or online applications may be accepted. Application submitted without fees shall be rejected. Change of preference/preferences after making application by the incumbent, shall not be entertained.
(3) The Head of the Institution, the Secretary of Managing Committee or the Administrator, as the case may be, of the concerned school, shall issue No Objection Certificate to an incumbent to be recommended for General Transfer under these regulations. The No Objection Certificate will not exceed the number as stated under Rule 5(6) of these rules.
(4) The application shall be submitted to the concerned District Inspector of Schools (Secondary Education) through the Head of the Institution of Secretary, Managing Committee or the Administrator, as the case may be, of the concerned school. In 7 case of online application, extract of application so filled up shall be printed and the same shall be submitted to the concerned District Inspector of Schools (Secondary Education) through the Head of the Institution or the Secretary, Managing Committee or the Administrator, as the case may be, of the concerned school.
(5) The District Inspector of Schools (Secondary Education) shall, after verification of all particulars given in the application form by an applicant, forward the same to the concerned Regional Commission within a period of fifteen days from the last date of receipt of such application.
(6) On receipt of such forwarded applications, the Regional Commission shall, first take up the cases within the category mentioned in rule 4(1)(c) and thereafter the category mentioned in rule 3 of these rules in the following manner :-
(a) in case of inter-regional General Transfer, the Regional Commission shall, after careful consideration of the applications, purpose to recommend for transfer of the incumbent to the Central Commission within 30 days from the date of receipt of the application from the District Inspector of Schools (Secondary Education), in accordance with the provisions of Section 10B of the Act and the Central Commission shall be the 8 final authority to decide upon the matter;
(b) in case of intra-regional General Transfer, the Regional Commission shall, after careful consideration of the applications, be the final authority to decide upon the matter in accordance with the provisions of sub-rule (8) and shall send Intra Regional transfer applications to the Central Commission within 30 days from the date of receipt of the application from the District Inspector of Schools (Secondary Education) to obtain formal recommendation in accordance with the provisions of Section 10B of the Act;
(c) In case of both, the applications of the left out candidates under rule 4(1)(c) shall be considered for General Transfer with other candidates under rule 3.
(7) In case of inter-regional General Transfer on the basis of recommendation of the Regional Commission, under sub-rule (6)(1)(c), the Central Commission shall be the final authority to decide upon the matter and may either reject such recommendation of the Regional Commission by passing an order and after giving reasons to be recorded in wiring, or issue recommendation letter to the school concerned."9
Sub-Rule 4 of Rule 3 indicates that General Transfer can be sought and availed only once in a year by a concerned employee, teacher or staff.
Sub-Rule 6 of Rule 5 indicates that schools shall not forward the applications for transfer in excess of 10% of the total number of teachers of that school.
Sub-Rule 1 of Rule 6 prescribes that the School Service Commission is required to advertise once in a year the total number of vacancies in the school across the State.
A conjoint reading of Sub-Rule 4 of Rule 3, Sub-
Rule 6 of Rule 5 and Sub-Rule 1 of Rule 6 clearly brings in and prescribes the right of an employee in a school to seek transfer, inter alia, as follows:-
a. A transfer can be sought by an employee only once in a year.
b. The School Service Commission advertises vacancies in the schools across the State only once in a year.
c. Even if, the vacancies arises immediately upon transfer being sought under aforesaid Rules, the same would remain vacant until a fresh application is made in the next year or is opted for by another teacher from another school.
The aforesaid Rules appear in harmony with the recruitment policy of the State where the School Service Commission recruits teachers year to year. The 10 left over vacancies were meant to be advertised for the benefit of existing teachers to move into other schools by voluntary transfer as per their convenience and subject to the other Rules.
It appears from the submissions of Dr. Patra that one of the reasons on the said Rules required amendment was that, recruitments of teachers could not be completed and done yearly as on date. The last recruitment process of the year 2016 has still not be completed for various reasons.
The aforesaid 2015 Rules came to be amended by notification of the State dated 8 September, 2021. The amendments relevant for the purpose of the issues in the instant proceedings are Rule 2 and Rule
5.
(2) In rule 3, -
(a) for sub-rule (3), substitute the following sub-rule:-
"(3) Where an incumbent refuses to join his/her preferred school after due recommendation by the Commission, such incumbent concerned shall not be allowed to submit application before completion of
7 years from the above refusal."
(b) Omit sub-rule (4).
(5) For rule 6, substitute the following rule:-
"6. Procedure for submission and consideration of the application.- (1) An incumbent, may apply for transfer on grounds and manner mentioned in rule 4. The respective authorities involve in the process of transfer i.e. School Managing 11 Committee (SMC), District Inspector of Schools of Secondary Education (DI), Central Commission (CSSC), West Bengal Board of Secondary Education (Board) shall consider such transfer application within such time as may be specified by the State Government by guidelines.
(2) Upon submission of application, the authority of SMC shall -
(a) verify the service records and other details of applicant;
(b) examine whether departmental/judicial proceeding is pending or being contemplated, or suspension order is issued against applicant or not. In any such affirmative case, the school authority shall not forward the application;
(c) consider the number(s) of subject teacher(s) and roll strength. If resultant vacancy of school in particular subject become zero, or not commensurate with roll strength, the authority of SMC shall not forward the application;
(d) consider the total application(s) from school is not more than 10% (ten) of total teachers' strength of school;
(e) dispensed with the provision of clause
(c) and (d) of this sub-rule for applications made on grounds mentioned in rule 4(a) to (d):
Provided that while considering such applications, if resultant vacancy of school in particular subject become (0) zero, or not commensurate with roll strength, the SMC shall approach the 12 CSSC through DI/S (SE) for filling up the vacancy:
Provided further that the CSSC may take endeavour to fill such resultant vacancy(s), by any incumbent whose application for transfer is fit for the aforesaid resultant vacancy or under provision of the section 10C of the Act with the approval of the State Government:
Provided also that the Commissioner of School Education shall supervise the process and ensure filling up of such vacancies with utmost priority and send progress report fortnightly to the School Education Department.
(f) cause to examine the applicant by the doctor of the SMC in case of transfer application made on medical grounds mentioned in clause (a) of rule 4 and must indicate the disease of the applicant, which caused serious problem in attending the school.
(g) issue "No Objection Certificate" (NOC) in fit cases and shall forward transfer application to District Inspector concerned.
(3) District Inspector concerned upon receipt of application with the NOC from school, shall :
(a) verify the service records and other information as furnished by the incumbent;
(b) take the views of the Chief Medical Officer of Health (CMOH) on transfer application related to medical 13 grounds as reported by the doctor of the SMC;
(c) forward transfer application to Central Commission along with his/her view.
(4) Central Commission upon receipt of applications for transfer from District Inspector shall consider the same only against the vacancy available at the time of consideration on following basis:-
(a) It shall populate the reason wise transfer list forwarded by District Inspector;
(b) Vacancy already reported to it for direct recruitment, shall not be filled by transfer;
(c) Transfer shall be made in the same category of post, as specified in sub- rule (1), (2), (3) of rule 5.
(d) In case of application for transfer in the category of rule 4(a) to (d) by a teacher of a particular subject to a school which is already having sufficient or excess teacher in that subject, Central Commission shall not consider the application for transfer to opted school. In the event when all options exercised are not found suitable, the incumbent may be considered for transfer to a school (having requirement of that subject teacher) nearby to opted school(s).
(e) Applications submitted against a single vacancy with more than one reasons, will be considered in order 14 of preference from grounds mentioned in rule 4(a) to (e).
(f) In case of applications under rule 4(c) submitted against a single vacancy, divorcee/Widow Lady incumbent having child below the age of 10 years (on date of application) shall get preference over applicant having child above 10 years of age.
(g) In case of applications under rule 4(d) submitted against a single vacancy, incumbent who submitted application earlier shall get preference.
(h) In case of application for transfer in the category of Rule 4(e) by a teacher of a particular subject to a school which is already having sufficient or excess teacher in that subject, CSSC shall not consider the application for transfer to opted school. In the event when all the options exercised are not found suitable, the transfer application will be rejected by CSSC.
(i) In other grounds transfer under rule 4(e), if more than one application for a single vacancy is received, consideration shall be made on the basis of marks obtained on points as follows:
Sl. No. Particular Marking 1 2 3 1. Service rendered in 2(two) marks for each completed present school and post year till 31.12.2005 not 15 till last date of exceeding 20 marks and 1 (one) application mark for each completed year after that. For 6 months and above but below 1 year will be awarded by half of the marks allotted for the year. 2. (i) Female applicant 5 (five) marks in addition to the having child below 10 marks awarded in serial No.1. years of age; 3 (three) marks in addition to (ii) Female applicant the marks awarded in serial having child above the No.1 age of 10 years (age till last date of application) 3. Present serving school (i) above 50 km upto 100 kms: 1 of applicant is away mark from the spouse (ii) Above 100 kms to 200 kms: working place 2 marks (iii) Above 200 kms : 3 marks 4. Distance from present While considering the distance Posting of applicant in kilometers from the place of residence and to the place of
posting, the address recorded in the Service Book shall be taken into account. For every 50 Kms distance, 1 (one) marks shall be awarded. However, total marks will not exceed more than 6 (six) marks. Any change in the Service Book in this regard will be required to be supported with any one of the following documents in the name of the applicant or his/her spouse, namely:
1) EPIC (Voter Card) 2) Aadhaar Card 3) Passport 4) Landline or postpaid bill of mobile telephone
5) Electricity bill 6) Bank Passbook 7) Driving Licence Distance calculated by the CSSC will be final and no appeal for fresh calculation will be entertained.
N.B. In case of two or more incumbent securing same marks, application submitted earlier shall get priority.
(j) After considering the applications so
forwarded to the Central
Commission in the manner provided hereinbefore, it may issue recommendation of transfer to the Board, in fit cases.
(k) In case of rejection, the Central Commission shall inform reason to 16 incumbent, District Inspector and School Management Committee.
(5) (a) The Board being appointing authority, after receipt of such recommendation, issue transfer order mentioning the joining time, with copy to CSSC, DI and SMC (of present and proposed school of posting) and keep the vacancy report updated caused due to transfer.
(b) After receipt of the transfer order, SMC of releasing school shall take action for release and issue LPC.
(c) The SMC/HM of joining school, as the case may be, shall join the teacher within the given time.
(d) After receipt of copy of the transfer order, release order and joining report, concerned DI will take action for updating service record of incumbent.
(6) The Board may, on basis of application or otherwise transfer any female teacher who is of victim of crime with the concurrence of the State Government in the School Education Department. It shall maintain due confidentially in regard to identity of such victim."
Rule 2 (b) clearly omits sub-Rule 4 of Rule 3.
Thereby eliminating restriction of seeking transfer of teacher only once in a year.
The said amendment also did away with the restrictions on publication of vacancies by the School Service Commission only once in a year. The amended 17 Rule 6(d), however, continues to retain the restriction and on the school managing committee from recommending more than 10% of the strength of the teachers in the school for transfer.
It prima facie appears to this Court, from a conjoint reading of the aforesaid provisions, set out herein above of the 2015 Rules as amended on 8 September, 2021 that vacancies can arise and would be reflected in the Utsashree portal even on a day to day basis. Teachers beyond the 10% of the total strength of the school can also apply for transfer notwithstanding the amended Rule 6(d). This is an anomaly and rather contradictory.
The aforesaid provisions would lead to a serious predicament for the school in question and particularly, the students. It is quite possible even in a situation that the school may be left with 10% or even less of its total strength of teachers if the Rules and amendment are given effect to as they stand.
The beneficial intent of the Rules in favour of the teachers, i. e., to accommodate them comfortably in a place of their choice of posting cannot equally be ignored.
What is also required to be noted also as submitted by Mr. Jahan, learned advocate that Right to Education Act prescribes maintenance of a minimum pupil teacher ratio. The enforcement of the Rules and its amendment, have completely thrown to 18 the wind the requirement of maintenance of the aforesaid pupil teacher ratio. One cannot lose sight of the fact that Right to Education Act and its provisions are mandatorily both the State and the Central Government.
It would not be out of place to consider the transfer in the light of condition of service in general service jurisprudence understood in this country.
Transfer is administrative exigency that is a prerogative of the employer. It is only in exceptional case that an employee on medical, marital or other extreme personal compulsions that an 'employee' can seek transfer against the administrative interest of the employer.
Appropriate clarifications are required from the State in this regard having regard to the Rule 15 of the said Rules of 2015, the School Education Department of the State that is required to a decision and clarification of the aforesaid Rules, albeit at the request of the Central School Service Commission.
This Court has framed the aforesaid propositions calling for appropriate inputs from the State in view of a large number of cases on the application of the 10% Rule before this Court.
Let this matter stand adjourned and be listed on
28. 07. 2022 as a 'Specially Fixed Matter'.
19All parties are directed to act on a server copy of this order duly downloaded from the official website of this Court.
(Rajasekhar Mantha, J.)