Calcutta High Court (Appellete Side)
Gouranga Dinda vs The State Of West Bengal & Ors on 24 April, 2013
Author: Soumitra Pal
Bench: Soumitra Pal
1
211 24.04.2013
SD
W. P. 10624 (W) of 2013
Gouranga Dinda
Vs.
The State of West Bengal & Ors.
Mr. Bikash Ranjan Bhattacharyya, Sr. Advocate
Mr. Uday Betal,
Mr. Dibyendu Chatterjee,
Mr. Aninda Sudar Das.
... For the Petitioner.
Mr. Rajiv Acharyya.
... For the Council.
Mr. Goutam De,
Ms. Soochandra Chakraborty.
.. For Respdt. No. 3.
In this writ petition the petitioner, - Head Teacher of Gopalpur
(Bd) Primary School, Contai West has challenged the office
memorandum dated 19th March, 2013 issued by the Chairman, Purba
Medinipur District Primary School Council the respondent no. 4
transferring him to Sahalazpur Primary School, Panskura North on the ground that the said respondent lacks jurisdiction. Submission is that as under Rule 4 of the West Bengal Primary Education (Transfer of Teacher including Head Teacher) Rules, 2002, Council on his own motion has the power to transfer, the said office memorandum is void and illegal.
Learned advocate appearing on behalf of the respondent no. 4 and the Purba Medinipur District Primary School Council submits that the office memorandum was issued in exercise of emergency powers under Section 53(2) of the West Bengal Primary Education Act, 1973 (in short the Act) which has been subsequently ratified in the general meeting of the Council held on 22nd March, 2013.
In order to appreciate the issue it is necessary to set out Section 53 of the Act which is as under:-
2" 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 allowances;
(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."
In this context it is also appropriate to refer to Rule 4 of the 2002 Rules which is extracted hereunder:-
" Condition for transfer: A Council may-
(a) on its own motion, or
(b) on any application from a teacher.
transfer an approved teacher within its jurisdiction from one primary school to another primary school on the condition that such approved teacher is confirmed and has completed minimum two years of continuous service both in case of mutual or single transfer :
Provided that the Council may, if it considers necessary for proper utilization of service of a primary teacher in the interest of education, transfer an approved teacher without maintaining any time limit of service:
Provided further that where there is a surplus teacher according to roll-strength as stated in rule 3, the Council may, on its own motion, transfer such approved teacher without 3 maintaining any time limit of service by way of rational adjustment of teacher in a primary school having deficit teacher in the following order of preference:-
(i) a primary school without an approved teacher
(ii) a primary school having single teacher, and
(iii) other primary school having shortage of teacher.
It is evident from Rule 4 that a Council has the jurisdiction, even on its own motion, to transfer a teacher including a Head Teacher. However, in the instant case, the Chairman has issued the impugned Office Memorandum directing transfer. The question is, whether the Chairman has exercised his emergency power under Section 53 (2) of the Act as submitted on behalf of the Council. The answer has to be in the negative as no reason has been recorded in the impugned Memorandum that the Chairman had issued it in exercise of his emergency powers. Therefore, the impugned office memorandum was not issued in exercise of the emergency power under Section 53(2) of the Act. Hence, I am of the view that the impugned office memorandum dated 19th March, 2013 issued by the Chairman was without jurisdiction and thus cannot be sustained and hence it is set aside and quashed. The writ petition is allowed.
There will be no order as to costs.
Learned advocate for the parties will be at liberty to take down the gist of the order for communication and the respondents including the Chairman, Purba Medinipur District Primary School Council shall act on the basis of such communication.
(SOUMITRA PAL, J.) 4