Calcutta High Court (Appellete Side)
Smt. Sutapa Chowdhury vs State Of West Bengal & Ors on 6 March, 2019
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
1
6th March, W.P. 15289 (W) of 2018
2019
(BD)
Smt. Sutapa Chowdhury
-vs-
State of West Bengal & Ors.
Mr. Tapan Sarkar
... for the Petitioner.
Mr. Kanak Kiran Bandopadhyay
... for the respondent Nos. 2, 3,4.
Mr. Malay Singh Mr. Arun Kumar Saha ... for the State.
The writ petitioner seeks transfer to the Post of Assistant Teacher to Sutia Barasat Pally Unnyan Vidyapith, Barasat. The petitioner applied for transfer to her preferred school under the West Bengal Central School Service Commission (General Transfer) Rules, 2013.
Learned counsel for the petitioner relies upon an order passed by this Court in W.P. 7203(W) of 2018 dated 12th June, 2018 by which the Chairman, West Bengal School Service Commission was directed to pass a reasoned order in relation to the vacancy in Sutia Barasat Pally Unnyan Vidyapith, Barasat, school upon verification of the fact that the petitioner is next in line to join the school. The petitioner in W.P. 7203(W) of 2018 was one Bappaditya Chatterjee, who had at the material point of time, sought for a transfer to Sutia Barasat Pally Unnyan Vidyapith, Barasat, under the General Transfer Rules of 2013. Learned counsel submits that after the order passed by this Court on 12th June, 2018, the petitioner wrote to the Secretary, West Bengal Central School Service Commission on 31st July, 2018 objecting to the claim of Bappaditya Chatterjee to the concerned school. In such letter the petitioner made it clear that the petitioner should also be considered as an eligible candidate for such transfer at par with Bappaditya Chatterjee. Learned counsel relies upon a second letter 2 written by the petitioner to the Chairman, School Service Commission, which, however, is an undated and unsigned document. The apprehension expressed is that Bappaditya Chatterjee has been inducted to the concerned school pursuant to this order passed by this Court.
Learned counsel appearing for the Commission relies upon a Report filed by the Commission and affirmed on 18th December, 2018 and a statement of the successful candidates who were in consideration for transfer to Sutia Barasat Pally Unnyan Vidyapith, Barasat, at the relevant point of time. Paragraph 5 of the Report states that the successful candidates who were considered for transfer to the concerned school was one Mostaque Ahmed who scored the highest marks and was accordingly recommended for transfer to the said school but ultimately did not join the said school. The second highest scorer was one Asim Goldar, who was recommended for transfer but was sent to another junior High School. The writ petitioner was the third highest scorer followed by Bappaditya Chatterjee. This statement can be corroborated from Annexure "A" to the Report. Counsel submits that since the petitioner was ranked higher than Bappaditya Chatterjee, the latter was not transferred to the concerned school. Counsel submits that since substantial time has passed since June 2018, whether the concerned school has a vacancy at all is required to be ascertained. For this purpose, the Secretary of the Commission wrote a letter to the Director of School Education, Government of West Bengal on 16th August, 2018 to confirm whether there is a vacancy in Sutia Barasat Pally Unnyan Vidyapith, Barasat, for classes IX-X for the post of Assistant Teacher in the concerned subject. No response however, has been received to such letter till date. Counsel further submits that the relevant Rules which governed the transfer of successful candidates are under a Notification pertaining to the West Bengal School Service Commission (General Transfer) Rules, 2013. These Rules provide the mode and manner of recommendation for a vacant post. Counsel places Rule 5 sub-rule 6(b) in relation to procedure for submission of an application for General Transfer in respect of a teacher. Under Sub-rule 5(6)(b), where only one vacant post is 3 mentioned in the list, the Central Commission has the option to consider all the applications and issue recommendation of transfer in favour of the applicant who has scored the highest marks for that particular vacant post. Counsel submits that under the 2013 Rules, there was no provision for considering any other candidate who was placed below the candidate who scored the highest marks. Counsel submits that in the instant case, since Mostaque Ahmed, who scored the highest marks did not join in the concerned school, the petitioner, who scored the third position, could not be automatically transferred to the concerned school.
Having heard learned counsel for the parties and before going into the merits of the petitioner's claim to be considered for transfer to the concerned school, it should be mentioned that prayer (a) of the writ petition proceeds on the basis of an order being passed for the transfer to the school and for cancellation of such order of choice of the private respondent (Bappaditya Chatterjee). The other prayers framed in the writ petition are in aid of prayer (a). It is evident from the statement made in the Report together with the annexures thereto that the private respondent has not been granted any order of transfer to the concerned school and has therefore not joined the school as on date. It goes without saying that the prayers in the writ petition are entirely concerned with a non-existent order for transfer and induction of the private respondent to the concerned school. Since that stage has not been reached as yet, the writ petition is pre- mature and proceeds on a mere apprehension of an event without any evidence of the action complained of. In any event, if the petitioner is ranked above Bappaditya Chatterjee (the private respondent), there is no scope for the private respondent to be considered to the exclusion of the petitioner. In the absence of appropriate prayers, this Court cannot pass any order directing the concerned authorities to consider the case of the petitioner for transfer to the concerned school. It goes without saying the writ petitioner can pray for appropriate reliefs at a suitable stage for her application to be considered in accordance with the relevant Rules at the material point of time.
4In view of the above discussion, W.P.15289 (W) of 2018 is dismissed without any order as to costs.
(Moushumi Bhattacharya J.)