- (1.) BACKDROP :- Mridula Ghosh, the appellant no.1 above named was the Assistant Teacher of Work Education in Sasibhusan Dutta Girls High School in the District of Birbhum. She was appointed as such by the School Authority on a recommendation made by the School Service Commission under Memo dated May 27, 2003. Similarly, appellant no.2 Mita Mondal was an Assistant Teacher in Language Group in Bahiri Khand Girish Institution in the District of Hooghly. She was also recommended by the School Service Commission vide Memo dated May 21, 2005. Both of them were stated to have been suffering immense prejudice in attending their respective duties as their respective residences were far away from the respective schools. They wanted a mutual transfer to reduce their hardship. In case they were transferred to each other school they would be benefited by the fact that the concerned schools would be near to their respective residences. They approached their respective schools who gave their consent for such mutual transfer. They approached the State Authority for such transfer. However, getting no favourable response they approached the learned single Judge. The learned single Judge by judgment and order dated April 1, 2008 dismissed the writ petition by observing that the appellants did not have any subsisting right in absence of any law pertaining to mutual transfer. Hence, this appeal by Mridula and Mita.
(2.) CONTENTION OF THE APPELLANTS :- 2.1 Mr. Anami Sikdar, learned counsel appearing for appellants being ably assisted by Miss Ahana Sikdar contended before us that the learned Judge failed to appreciate the ratio decided in the case of Debasis Paria where the learned single Judge granted liberty to the similarly circumstanced teachers to submit respective "No Objections" to the State coupled with a direction upon the State to sympathetically consider their cases. According to Mr. Sikdar, the decision of the learned single Judge in the case of Debasis Paria attained finality when the Special Leave Petition was dismissed as against the judgment and order of the Division Bench dismissing the appeal of the State. 2.2 Elaborating his argument Mr. Sikdar relied on the decision in the case of Rampada Das & Another -VS- State of West Bengal and Others, 2008 2 CalLJ 119 (Calcutta),also reported in 2008, Volume-II, Calcutta High Court Notes, Page-994 wherein identical view was taken by another Division Bench of this Court. 2.3 Mr. Sikdar lastly contended that once Debasis Paria got the benefit of the mutual transfer, the appellants, being similarly circumstanced, must get identical benefit and the Court should extend such benefit to the appellants. In support his contention he relied upon the decision in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mohotsav Smarak Trust and Others -VS- V.R. Rudani and Others, 1989 AIR(SC) 1607 as also an unreported decision of the Apex Court in the case of Balbir Kaur & Another -VS- Steel Authority of India Limited and Others [Appeal (Civil) 11881-2 of 1996].
(3.) OUR VIEW :- 3.1 Let us start from the premise that there was no law supporting mutual transfer. His Lordship correctly observed so. Mr. Sikdar in his usual fairness conceded to the same. 3.2 This leaves us with the question as to whether the decision in the case of Debasis Paria or Rampada Das would be applicable in the instant case. 3.3 Before we go into the cases referred to above and the question of applicability of the ratio decided therein let us first understand what is mutual transfer and why it is not permissible. 3.4 In this State, there are three types of schools under the West Bengal Board of Secondary Education : - i) State Aided Schools ii) D.A. getting Schools iii) Unaided Schools 3.5 In case of Unaided Schools the West Bengal Board is only entitled to supervise mode of teaching. The school is bound to follow the syllabus prescribed by the West Bengal Board. The Board is also entitled to prescribe the eligible qualification of the teachers teaching in the said school. The Board, however, is not entitled to oversee the process of selection of the teachers which is totally left to the discretion of the School Authority. Similarly, the State is also not entitled to do the same. 3.6 In case of D.A. getting Schools, the teachers working in the said schools are entitled to draw only Dearness Allowance from the State as payable to the teachers of the aided schools. In case of their selections school would also have to maintain a transparent selection process as prescribed by the State and/or the Board from time to time. 3.7. In case of State aided Schools, earlier the schools were entitled to appoint teacher and non-teaching staff of their own, they were however obliged to follow the Recruitment Rules framed therefor. 3.8 In 1997 School Service Commission Act, 1997 came into force. Section 9 of the said Act clearly provides that no State aided School would be entitled to appoint any teaching or non-teaching staff (as per the subsequent amendment brought in 2008) without being recommended by the School Service Commission. By virtue of the power conferred upon the State under the said Act of 1997 the State established School Service Commission and entrusted the job of selection of teaching and non-teaching staff, as the case may be, in the State aided Schools. The School Service Commission, in turn, published advertisement in newspapers giving wide publicity to the vacancies so that all eligible candidates for the post were entitled to participate in the selection process. The entire State was divided into regions to enable candidates to opt for the region he or she wanted to be considered. 3.9 Once the selection process was over and panel was prepared, the Commission recommended candidates to various schools according to the vacancies and the school, in turn, was obliged to give appointment only to the recommended candidate or candidates, as the case may be. As soon as recommendation was made the School Service Commission became functus officio. 3.10 On the strength of the Letter of Appointment, a successful candidate was entitled to join the concerned school and thereby the employer-employee relationship was established between the school on the one hand and the teacher on the other. As per the State policy the concerned teacher, although working for the concerned school, was entitled to draw salary and other pecuniary benefits from the State Exchequer. He or she, however, remained under the employment of the concerned school only. It might be true that a candidate even if his or her name might be recommended in a school far away from his or her residence this occupational hazard, one had to accept. However, the State considering the difficulties, subsequently modified their policy and permitted the teachers duly appointed through School Service Commission to continue to sit for subsequent selection process so that he or she might get a better chance to ameliorate his/her difficulty. The State also, as a policy, introduced counselling process under which a transparent method of selection of school was adopted. The successful candidates, in accordance with their merit, participated in a counselling process and he or she was at liberty to choose his or her own school as per the available vacancy. By this process except the last candidate everybody got a chance to select his/her own school as per the vacancy then available when he or she was called for counselling. 3.11 Mridula and Mita were appointed in 2003. Benefit of counselling process could not be achieved by them at that time. They are however free to appear at the subsequent selection test to get a choice posting in case they are successful in the selection process. 3.12 The problem can be viewed from another angle. Once the appointment is given, the concerned teacher becomes an employee of the concerned school, his or her transfer to other schools would amount to a new appointment which is not permissible under Section 9 of the said Act of 1997 as such appointment would be without recommendation of the School Service Commission. The School Service Commission can only recommend a candidate once he or she is successful in a particular selection process held for a particular vacancy. 3.13 Let us now consider Debasis Paria (Supra). The writ petition of Debasis Paria was heard and disposed of by me (Ashim Kumar Banerjee,J.) sitting singly. The order passed in the said writ petition is quoted below :- "The writ petitioner's no.1 and 2 have prayed for mutual transfer. They have been posted by the School Service Commission in the schools which are situated at a distant place from their respective residence. Mr. Chakrabarty, learned counsel appearing for the School Service Commission, submits that the application could not be considered by the Commission in absence of consent from the respective schools. Mr. Chakrabarty further submits that the Rules do not provide for any such mutual transfer to be made. In such view of the matter, I dispose of this writ petition by directing the writ petitioners to obtain necessary consent from their respective schools and submit the same to the Director of school education, and in case, the respective schools give their consent, the writ petitioners would be transferred mutually as per their representation. W.P. no.13628 (W) of 2004 is disposed of accordingly." 3.14 On perusal of the order quoted (Supra) it appears that the learned counsel for the School Service Commission although argued that the Rules did not provide for any mutual transfer, contended that the representation could not be considered by the Commission in absence of consent from the respective schools. Considering such submission I disposed of the writ petition by directing the writ petitioners to obtain necessary consent from the respective schools and directed their transfer as per their request in case no objection was received. I also admit that no law was decided by the said order. I frankly admit that I did not consider the legal aspect as elaborately discussed by me above. I am not hesitant to say that I have become wiser. 3.15 The Division Bench, when approached, upheld my judgment and order as would appear from the judgment and order dated April 20, 2006 in MAT no.2284 of 2005 annexed to the application filed in the above appeal. The Division Bench observed that the Recruitment Rules remained silent on the power of mutual transfer. The Division Bench interpreted the circular no.1025 dated July 2, 2001 which provided that there was no general provision for transfer of the school teacher from one school to the other. Even if there was any such order from the Courts of law and any transfer was made in terms of such order that would not give rise to a presumption that the authority would have a general power to make such transfer. The Division Bench was of the view that the said circular did not debar the authority from making any order of transfer. The Division Bench dismissed the appeal by observing that such mutual transfer would be in the best interest of education. The Supreme Court while dismissing the Special Leave Petition specifically observed, "the question of law is left open". 3.16 Let us now consider Rampada Das (Supra). In Rampada Das, paragraphs 7 and 8 the Division Bench categorically observed that the School Service Commission did not have any role to play after recommendation was made to the concerned school. 3.17 In paragraph 10 of the said decision the Division Bench noted the fact that several writ petitions were filed on the identical issue and benefits were extended to the respective candidates. However, the case of Rampada Das was not favourably considered by the State. The Division Bench in paragraph 11 observed that if mutual transfer was allowed neither the State nor school would suffer any prejudice. At the same time both the teachers would be immensely benefited by such mutual transfer. In paragraph 12 Their Lordships observed that the School Service Commission was bound to frame a policy for recommending the candidates in respective post of teachers for appointment in the schools. Their Lordships further observed that the State was entitled to issue appropriate direction upon appreciating the compelling need and it had inherent power and authority to issue such direction in an appropriate case. The Division Bench set aside the order of rejection passed by the Director, School Education and asked him to consider the issue afresh in the light of the observations made by Their Lordships. We are told, decision in Ram Pada Das (Supra) is pending consideration before the Apex Court in SLP (Civil) no. 19428 of 2008. With deepest regard we have for Their Lordships in case of Debasis Paria and Rampada Das (Supra), we are unable to persuade ourselves to agree with the ratio decided by Their Lordships. 3.18 In this regard we may refer to the decision in the case of West Bengal School Service Commission and Another -VS- Shelly Jaffri Latif and Others, 2008 1 CalHn 801. In the said case, the concerned teacher was recommended in a school far away from her residence. She did not join the concerned school and approached the Commission for change of her placement. The request was turned down. She approached the learned single Judge. His Lordship directed Commission to accommodate her in a subsequent vacancy near to her residence. The Division Bench set aside the order of the learned single Judge. Paragraphs 12 and 13 being relevant herein are quoted below :- "12. We have considered the rival contentions of the parties. We have also considered the decisions cited at the bar. Emphasis has been put in the case of Brahmo Samaj Education Society (Supra). In the said decision the Apex Court merely reiterated what was observed in T.M.A. Pai (Supra). In the Constitution Bench decision in T.M.A. Pai (Supra) the issue of State control over the private educational institutions was called in question. While dealing with the said question, the Apex Court made the remarks as recorded above. The college teachers are appointed under the West Bengal College Service Commission Act. The colleges are run being affiliated by respective Universities which are also in turn affiliated to the University Grant Commission being a statutory body set up under the Central Statute. Under the University Grant Commission guidelines a college teacher has to undergo National Educational Test (NET) or State Level (eligibility Test (SLET), where a particular State is permitted to hold such test by University Grant Commission. The provisions of West Bengal School Service Commission Act might be pari materia with West Bengal College Service Commission Act, 1978. However, there are certain dissimilarities on the working procedure. In the aided educational institutions at the secondary or higher secondary level no teaching staff can be appointed without being recommended by the School Service Commission. The entire salary is being funded by the State in respect of the aided institutions. The State is empowered under the said Act of 1978 to frame rules relating to college teachers and accordingly, rules were framed. As per rules of the School Service Commission successful candidates are placed in a combined panel and thereafter, recommendations are made as per the reserved category. In the instant case, the respondent No.1 was in Serial No.75 in female category. It was stated in the affidavit filed by the Commission that no nearby school could be found when her turn came and she was placed at Raghunathpur Girls' High School in the vacancy available to the Commission. Such vacancies were filled up from amongst female candidates. Hence, the question of 'women empowerment' so raised by His Lordship is not at all relevant. His Lordship proceeded on the basis as if she was not considered for any vacancy in a nearby school. Factually, it was not correct as it appears from paragraph-12 of the affidavit filed by the Commission appearing at pages 45-46 of the paper book. 13. To maintain transparency the State has now changed their rules. Now, the candidates are free to choose their own posting strictly in accordance with merits, meaning thereby the candidate being Serial No.1 would be free to choose his/her place of posting from amongst all declared vacancies for which he/she was empanelled. After his/her choice the next candidate would get the remaining vacancy for his/her own consideration. The candidate at the bottom of the list would have no choice but to accept the lone residuary vacancy available for him/her. Such system is now being followed which was however, not available at the time when the respondent No.1 was selected." 3.19 In our view, in case of Debasis Paria, the Division Bench possibly overlooked the fact that once the appointment was made the School Service Commission became functus officio and the employeremployee relationship was established between the concerned school and the teacher. This aspect was regarded by the other Division Bench in the case of Rampada Das (Supra). However, in the case of Rampada (Supra) the Division Bench observed that since no predudice was caused either to the State or to the school the prayer for mutual transfer should be sympathetically considered which would immensely benefit both the teachers. Considering equity and social justice such approach was apt. We however wish to observe that equity or social justice could be done by the Court of Law by giving a favourable construction of a particular statute. When there is no law on the subject such decision would be without jurisdiction.;