Calcutta High Court (Appellete Side)
Sri Suprio Ray vs The State Of West Bengal & Ors on 25 March, 2021
S/L 10 to 12
25.03.2021
Court. No. 12
Suvayan/
SB
MAT 378 of 2021
With
CAN 1 of 2021
Sri Suprio Ray
Vs.
The State of West Bengal & Ors.
With
MAT 379 of 2021
With
CAN 1 of 2021
Sri Ratanlal Halder
VS.
The State of West Bengal & Ors.
With
MAT 380 of 2021
With
CAN 1 of 2021
Sri Jyotirmay Jana
Vs.
The State of West Bengal & Ors.
(Through Video Conference)
Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
Mr. Partha Sarathi Bhattacharyya, Sr. Adv.
Mr. Partha Sarkar, Adv.
Mr. Abjijeet Basu, Adv.
Mr. Raju Bhattacharyya, Adv.
... for the Appellants.
Mr. Joytosh Majumdar, Ld. G.P.
Ms. Kakali Samajpati, Adv.
Mr. Sayan Ganguly, Adv.
Mr. Sayak Chakraborty, Adv.
... for the State.
Mr. Dr. Sutanu Kumar Patra, Adv.
Mr. Supriya Dubey, Adv.
... for the S.S.C.
By consent of the parties, appeal and application are
taken up for hearing and disposed of by this common order.,
2
The appeal is arising out of an order passed by the
learned Single Judge dated 26th February, 2021, whereby the
learned Single Judge refused to extend the interim order on
the ground of subsequent development, namely, an order
passed by the Hon'ble Supreme Court in a similar matter on
25th November, 2020 directing that "the petitioners are
permitted to join on terms and conditions as per the
impugned order within a period of three weeks
from the date."
Mr. Bikash Ranjan Bhattacharyya, learned senior
counsel appearing on behalf of the appellants submits that
the decision to transfer the writ petitioners is contrary to
Section 10 of the West Bengal School Service Commission
Act, 1997, inasmuch as, the reasons are on extraneous
considerations, arbitrary and not for the benefit of the
educational institution whose interest the respondents are
duty bound to protect.
It is submitted that the interim order had expired during the pandemic situation. By reason of the five Bench decision of our Court the interim orders are automatically extended and accordingly the question of extending the interim order does not arise.
Mr. Bhattacharyya further submits that in view of the fact that the appellants have made out an arguable case on merit, the learned Single Judge ought to have extended the interim order as has been done in some of the other matters and decide these matters on merits.
3
The learned Government Pleader as well as Dr. Sutanu Kumar Patra had relied upon a co-ordinate Bench decision dated 17th August, 2020 passed in a batch of matters and submitted that the co-ordinate Bench has observed that the findings of the learned Single Judge in those writ petitions as to the incompatibility of Section 10(C) of the West Bengal School Service Commission Act, 1997 introduced by the Amendment Act, 2017 and is going to affect the service conditions of the existing teachers who are appointed before the amendment was introduced prima facie are not acceptable. In the words of the learned Division Bench, "Prima facie, we are unable to appreciate the reasoning." The co-ordinate Bench further proceeded to hold that no reason has been advanced by the learned Judge that Section 10(C) is contrary to any constitutional provision.
It was further observed that the newly inserted Section 10(C), prima facie, couldn't be said to be invalid, arbitrary, unreasonable or incompatible with the other provisions of the Act. Accordingly, the interim order passed in those matters were vacated. Our attention is drawn to the order passed by the Hon'ble Division Bench in Special Leave Petition being SLP No. 13041 of 2020 preferred by the writ petitioners being aggrieved by the order dated 17th August, 2020 in which the Hon'ble Supreme Court by an order dated 25th November, 2020 disposed of the Special Leave Petition in the manner following:
4
"We have heard learned counsel for the parties at some length despite the fact that the impugned order is in the nature of an interlocutory order and we would loath to exercise our jurisdiction under Article 136 of the Constitution of India qua an interim order.
We are, however, of the view that a quietus needs to be put to the legal issue involved as there are stated to be many petitions pending in this behalf. In the impugned order the Division Bench has mentioned the desirability of having an expeditious hearing in the present matter but we are of the view that the more appropriate course of action would be for the Hon'ble Chief Justice of the High Court to direct clubbing of all the concerned matters so that a hearing can take place of all the connected matters at as early a date as found feasible.
Insofar as petitioners before us are concerned, learned senior counsel for the respondents, on instructions, states that no further transfer of these petitioners will be made till the matter is decided as aforesaid.
The petitioners are permitted to join on terms and conditions as per the impugned order within a period of three weeks from today. The special leave petitions are dismissed with the aforesaid observations.
Pending applications shall also stand disposed of."
Both the learned counsels for the respondents have strongly relied upon the said orders in justification of their submission that the learned Single Judge was justified in not extending the ad interim order and decided to hear the matters on merits.
5
Our attention is also drawn to an order dated 9th October, 2020 by a co-ordinate Bench on similar orders where the co-ordinate Bench observed that in view of the previous Division Bench order dated August 17, 2020 concerning similar issue no interference is called for. However, it was observed that the views expressed by the previous co-ordinate Bench are tentative with regard to the interpretation of Section 10(C) of the West Bengal School Service Commission Act, 1997 and could not be said finally that the said provision is not "invalid, arbitrary or unreasonable or incompatible with the other provisions of the Act." In disposing of the appeal, co-ordinate Bench observed that the appellants joining the new posts would be without prejudice to the rights and contentions in the writ petitions and subject to the result thereof.
The aforesaid order was passed prior to the disposal of the Special Leave Petition.
It is significant to mention that before the Hon'ble Supreme Court the respondents who are appellants before us has submitted on instructions that no further transfer of the writ petitioners will be made till the matter is decided as aforesaid.
Various issues may arise out of the said transfer. The most important factor that may arise out of such transfer order would be a resultant vacancy in the school from where the teacher would be transferred and in the event the said school is allowed to fill up the said vacancy, third party 6 interest would arise by such fresh appointment and in the event the writ petitioner succeeds in establishing his right then it would be extremely difficult for the respondent authorities to adjust the interest of both the teachers.
Keeping in mind the inconveniences that are likely to result by giving effect to the impugned orders of transfer and that the appellants in similar matters before the Hon'ble Supreme Court, had taken a stand that no further transfer of the writ petitioners would be made till the matter is decided. We leave it open to the respondent authorities to decide whether effect should be given to the transfer orders keeping in mind the aforesaid factors.
It is needless to mention that the appellants joining in the new posts shall be without prejudice to their rights and contentions in the writ petitions and subject to the result thereof. In the event the transfer order is given effect to, sufficient time should be given to the writ petitioner to join the transferred post again without prejudice to the rights and contentions in the writ petition.
We direct the learned Registrar General to place the order dated 25th November, 2020 passed in Special Leave Petition being SLP No. 13041 of 2020 in Debabrata Kanji Vs. The Managing Committee and Others before the Hon'ble the Chief Justice for information.
With the aforesaid observation, the appeals and the connected applications stand disposed of. 7
Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking. (Saugata Bhattacharyya , J.) (Soumen Sen, J.)