Calcutta High Court (Appellete Side)
(Partha Pratim Dey vs State Of West Bengal & Ors.) on 16 March, 2017
1
3 16.3.2017
jb.
W.P. 5292(W) of 2017
(Partha Pratim Dey vs. State of West Bengal & Ors.)
Mr. Dilip Kr. Maity
Mr. Mrinal Kanti Maity
.... For the Petitioner
Mr. Robiul Islam
.... For the State
Mr. Bhaskar Prasad Vaisya
Mr. Gourav Das
.... For the Commission
Heard the learned counsel for the petitioner.
The petitioner in pursuant to the policy/scheme of
transfer of assistant teacher so formulated by the State of
West Bengal had submitted an application for mutual
transfer from Raninagar High School to Rampur Indira
Uchcha Vidyapith by means of an application, a copy of
which is annexed to this writ petition as Annexure P/3.
On perusal of clauses of the said application it
reflects that the petitioner had disclosed in the said
application that the petitioner is a graduate in the stream
of arts and requested for mutual transfer with Sri Rajib
Biswas who is also a graduate in the same stream as of the
2
petitioner and teaching the same subjects as of the
petitioner. The application was forwarded to the competent
authorities and after scrutiny of the application the order
for transfer was passed and the petitioner joined to his
present post in the transferred school. But subsequently it
was realised by the District Inspector of Schools, S.E.
Murshidabad, respondent no. 2 that the petitioner was
drawing the post graduate allowance and the pay scale in which the petitioner was placed was higher to that of Rajib Biswas. Therefore, the respondent no. 2 has not put her signature in the petitioner's service book together with the last salary certificate and on that reason the petitioner has not been getting monthly salary from the month of January, 2017.
Being aggrieved by the said inaction on the part of the respondent no. 2, the instant writ petition has been filed.
Learned counsel for the respondents submits on the basis of instruction that the petitioner has been categorised in the higher pay scale in so far he is a post graduate and is getting post graduate allowance and the 3 said fact has been suppressed by the petitioner while submitting an application for mutual transfer. It has further been pointed out by the learned counsel for the respondents that as per policy of the State of West Bengal, mutual transfer is permissible within the same category of persons working on the same post and as such the service book of the petitioner has rightly not been sent to the transferred institution in so far as the other person namely Rajib Biswas is only a graduate and the pay scale which he is drawing is lesser.
Learned counsel for the petitioner has produced the guidelines, policies framed by the State Government and he submits that there is no mentioning in the said policy with regard to pay scale whereas counsel for the respondents submits that he does not belong to the same category as of Sri Rajib Biswas and the word 'category' has been mentioned in the said policy. The relevant clause of the said policy is reproduced hereinbelow:
"3. Eligibility for Mutual Transfer of a teacher,- (1) An incumbent teacher shall be eligible for transfer under the provision of these rules subject to fulfillment of all the following conditions:-
(a) mutual Transfer shall be made between 4 two teachers who have been appointed against the same category of vacancies and holding the same category of posts and teaching the same subject;"
On perusal of the said provision, it reflects that the ingredients for mutual transfer are that the persons should be in the same post and should belong to the same category and the category can only be analysed on the basis of the educational qualification, pay scale and the subjects as well as classes in which the persons are teaching. Admittedly in the instant case the petitioner cannot be said to belong to the same category as that of Sri Rajib Biswas. Further the petitioner has not come with clean hands under Article 226 of the Constitution before this Court which is a Court of equity in so far as the petitioner has concealed the material facts by not disclosing that the petitioner is a post graduate and getting post graduate allowance. When a specific query was put to the learned counsel for the petitioner as to whether any material fact was suppressed or not, in answer to that learned counsel for the petitioner submits that no material fact has been concealed. According to this Hon'ble Court concealment of qualifications is also a concealment of 5 material fact as the same is one of the categories in the policy for mutual transfer.
In view of the above, the writ petition is devoid of merit and is dismissed with costs of Rs.1,00,000/- to be deposited by the petitioner within a period of two months from today, failing which the Registrar General of this Hon'ble Court is directed to recover the same as arrear of land revenue from the petitioner.
Let the appearance of the Mr. Bhaskar Prasad Vaisya be regularised.
(Rajiv Sharma, J.)