calcutta high court

Calcutta High Court | In a 119-page judgment regarding mutual transfer of the teachers of aided schools, a Division bench comprising of Harish Tandon* and Prasenjit Biswas, JJ., observed that the “appointment of the teacher in a public employment neither have a vested right nor an existing right to claim their services to be placed in a school even if there is a gross disparity in a teacher-pupil ratio by passage of time” and held that Section 10-C of West Bengal School Service Commission Act, 1997 (the Act) is not ultra vires to Constitution of India.

Factual Matrix

In the instant matter, a bunch of writ petitions were preferred by the teachers of aided schools before this Court challenging the validity of the provisions contained under Section 10C of the Act, as the School Service Commission (SSC) recommended the transfer of a teacher from one aided school to another on the basis of the general/special order passed by the State Government required in the interest of the education/Public Service as provided under Section 10C of the Act. The provisions contained under Section 10C of the Act was challenged on the ground that the said Section is not only violate Articles 14, 19 and 21 of the Constitution of India but also opposed to the object and purpose of the Act, specially Section 10 of the Act which provides a protection to the teachers and non-teaching staff in relation to their service condition.

Brief Contentions

The petitioners contended that the protection to the teachers and non-teaching staff as providedunder Section 10 of the Act is impinged by the Legislatures by introduction of Section 10C of the Act. It was contended that Section 10C of the Act cannot be applied retrospectively as the same has a larger impact on varying the condition of service. It was further contended that Section 10C has conferred an unbrindled and uncontrollable right to the State to transfer teachers from one school to another and is being abused and/or misused to a great extent.

Legislative History of the Act

The need for a uniform standard of the curriculum in the education system and fulfilment of State’s Constitutional obligation in imparting elementary and basic education to the children to admit them into a higher educational institution, had led to the promulgation of the West Bengal School of Secondary Education, 1950 by the State and later led to the establishment of the Board of Secondary Education. The West Bengal School of Secondary Education, 1950 was subsequently repealed by the West Bengal Board of Secondary Education, 1963. The State Government, in order to set up adequate numbers of educational institutions framed Non-Government Institutions (Aided and Nonaided) Rules, 1969 to provide economic support to private institutions which have been recognised under the Act of 1963. The State Government felt that that there was a complete disparity in the appointment of the teachers in several aided educational institutions, therefore, passed the West Bengal School Service Commission Act, 1997. The object and purpose for the Act “is not only to curb the malpractices of the members of the managing committee but also the standard of eligibility and appointment of the teachers to provide a better education to the children and above all to avoid any discriminatory action of the managing committee or the nepotism and favouritism.”

Section 10 of the Act, which protection of the teachers and non-teaching staffs employed before the commencement of the said Act, starts with non-obstante clause that the condition of service of the teachers employed in a school before the commencement of the said Act shall not be varied to the disadvantage of such teacher. It was observed that Section 10A was inserted by West Bengal School Service Commission (2nd Amendment) Act, 2010 in order to recognise the right of the teachers and non-teaching staffs of mutual transfer and Section 10C was inserted in the Act to empower the West Bengal Board of Secondary Education to effect transfer of teachers and non-teaching staffs in order to “rationalise pupil-teacher ratio in such schools for maintaining quality education and to ensure healthy educational environment in the State.”

Law Point

Section 10C – State Government to issue guidelines to the Commission

“Notwithstanding anything contained in any other law for the time being in force or in any contract to the contrary, the State Government in the interest of education or in the interest of public service for administrative reasons may direct the Commission through guidelines or general instructions to make recommendation for placing the service of any teacher including the Assistant Headmaster or the Assistant Headmistress or any non-teaching staff from one school to another school against any sanctioned post.”

Moot Point

Whether Section 10C of the Act is ultra vires to the Constitution of India or offends the basic fabric of the Act or rendering the Sections 10, 10A and 10B nugatory?

Court’s Observation

The Court observed that the aforesaid Acts in relation to the education were enacted by the State Government to fulfil the Constitutional mandate entrusted by the Constitution of India and such Acts aimed to promote the quality in education which “obviously cannot be achieved without regulating the quality of teachers in relation to a selection and/or appointment in such educational institutions receiving a grant or financial assistance or a financial aid from the State Government.”

The Court observed that the petitioners did not challenge the West Bengal School Service Commission Act, 1997 as per. It was observed that Section 10A was inserted in the Act to empower the West Bengal Central School Service Commission to make recommendation for mutual transfer which was conspicuously absent in the Act and the same was necessitated by this Court in Rampada Das v. State of W.B., 2008 SCC OnLine Cal 332, where it was held that “in the interest of the teachers but also in the interest of proper educations in the schools concerned the claim for mutual transfer must be accepted especially when other teachers of different schools would not suffer any prejudice on account of such mutual transfer of the appellants herein.” It was observed that Section 10B was introduced in the Act empowering the commission to make recommendation for general transfer of the teachers and non-teaching staffs of the schools and subsequently Section 10C was introduced empowering the State Government in the interest of education or in the interest of public service for administrative reasons to issue guidelines to the Commission for recommendation for mutual transfer.

The Court observed that if a statutory provision offends the fundamental rights of the people or is beyond the competence of the constitution or violates the tenet of Article 13 of the Constitution of India or contrary to the prohibition imposed in the Constitution of India or enacted without following the procedure laid down in the Constitution, then the same can be interfered with and be tested on the parameter of arbitrariness and equality enshrined under Article 14 of the Constitution of India. At the same time, the Court observed that the Supreme Court in Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1, held that “the possibility of abuse of a provision of a statute is not a ground for striking it down. An abuse of power can always be checked through judicial review of the action complained of.”

The Court observed that the Supreme Court in Akhil Bharatiya Upbhokta Congress v. State of M.P., (2011) 5 SCC 29, held that “the laws enacted by the Parliament and/or State should not be ordinarily impinged as ultra vires as such act of the Government is intended to be used in a larger public interests and public good provided it is done in a more rational and judicious manner eradicating the arbitrary discretion amongst the equals.”

The Court observed that in the present case the validity or constitutionality of the provisions contained in the Enabling Act be checked on the ground “whether the legislature bringing the amended provision in the enabling provision is denuded of any legislative competence or such amended provisions violates any of the fundamental rights guaranteed under Part-III of the Constitution” as held in Ashwini Kumar Upadhyay v. Union of India, (2023) 5 SCC 668.

The Court observed that in the present matter the petitioners have neither argued that the State lacks constitutional incompetence to legislate in the field of education nor contended that the enactment concerning the education is beyond the field of legislation enshrined in the Constitution, but only questioned the State’s power to incorporate Section 10C of the Act, thereby, infringing the fundamental rights guaranteed under Part-III of the Constitution of India or destroying the very fabric of Section 10, 10A and 10B of the Act by such incorporation.

“The role of the teacher in an educational system is always regarded as a mentor, guide and harbingers in shaping the mind of the children and excelling the knowledge in the field of education in order to compete with the most privilege class of the children within the State. The teachers are always regarded as a person of high degree, knowledge and builds the character of a children to make them a most responsible citizen of the country. The service of teacher is always regarded as a service to the society for their upliftment both socially and culturally and economically.”

The Court observed that the concept of transfer of service is inbuilt under the public employment. It was observed that when the inclusion of Sections 10, 10-A and 10-B of the Act is not challenged, then no element of arbitrariness or unreasonableness can be found in insertion of Section 10-C of the Act by way of amendment.

Negating the contentions of the petitioners regarding uncontrollable right given to the State to transfer service and its misuse, the Court observed that mere assumption as to misuse of the power cannot invalidate Section 10-C as every action of the State depending upon the facts of each case is subjected “to pass the master of arbitrariness and/or unreasonableness”.

The Court opined that there is neither incongruity nor any difficulty in the existence of Section 10-C simultaneously with Sections 10, 10-A and 10-B of the Act. The Court further opined that the teachers appointed after coming into force of the School Service Commission Act cannot claim a vested right or the existing right in relation to the terms and conditions of the service.

Teachers cannot claim a vested right on transfer in a public employment which is always regarded as a incident of service.”

Negating the petitioners argument that once the teachers are appointed in the school of their choice in the counselling they are immune from being transferred to any other school, the Court opined that “the beneficiary of the education system cannot be deprived of their fundamental right to education enshrined under Article 21-A of the Constitution because of the dearth of the teacher or the apathy towards the timely appointments.”

The Court observed that “right to life as recognised under Article 21 of the Constitution of India cannot be squeezed within the bracket but is always regarded as dynamic and anything which impinges upon the development, the concept of equality, dignity and other facets of the human life can always be viewed seriously” and any legislative action which is not founded upon the “principle of fairness, justness and reasonableness” is liable to set aside as the same offends the very fabric of the Constitution and the fundamental rights guaranteed under it. The Court further observed that transfer of service in case of public employment, if made in accordance with the procedure established by law, then the same does not amounts to infringement of right to life as guaranteed o under Article 21 of the Constitution of India.

“Every service in the public employment unless forbidden by law is transferable. A teacher which is placed in a school if transferred to another school, it does not affect the right to life as he or she is conscious that the service is transferable.”

The Court also opined that if the person transferred from one place to another in a transferable service contends that his dignity is impaired due to such transfer then he will not be transferred as he is entitled to live a life in stress-free atmosphere.

Court’s Verdict

The Court held that Section 10C of the Act is not ultra vires to the Constitution of India. The Court directed the Registry to place each of the writ petitions before the respective Benches having determination in this regard to decide the writ petitions on merit.

[Rabin Tudu v. State of W.B., 2023 SCC OnLine Cal 2182, order dated 27-07-2023]

*Judgment by Justice Harish Tandon


Advocates who appeared in this case :

Mr. Jayanta Mitra, Sr. Adv., Ashoke Kumar Banerjee, Sr. Adv., Pratik Dhar, Sr. Adv., Subir Sanyal, Ekramul Bari, S.M. Ali, Anindya Bose, Diptendu Mondal, Subhrangsu Panda, Ina Bhattacharya, Mithu Singha Mahapatra, and others, Counsel for the Petitioners;

Mr. S.N. Mookherjee, Ld. General Adv., Anirban Ray, Ld. Govt. Pleader, Tapan Kumar Mukherjee, Ld. AGP, Sirsanya Bandopadhyay, Ld. Jr. Standing Counsel, Bhsakar Prasad Vaisya, Ld. AGP, Swapan Kumar Datta, Ld. AGP and others, Counsel for the State;

Mr. Santanu Kumar Mitra, Ms. Koyeli Bhattacharya, Counsel for the WBBSE;

Dr. Sutanu Kumar Patra, Sourav Mitra, Sunit Kumar Roy, Supriya Dubey, Kanak Kiran Bandyopadhyay, Debalina Chakraborty, Counsel for the WBCSSC.

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