- (1.) In a compelling circumstances the petitioner herein, who is an approved Assistant Teacher of Sadi Khans Dearh Girls Junior High School in the District of Murshidabad, submitted a representation before the Director of School Education (Secondary Education), West Bengal, praying for her transfer from the said school to any other school away from the place of work of the petitioner. Since petitioner s such prayer has not been considered by the Director of School Education (SE) since August, 2011, the petitioner has come before this Court with this writ petition seeking issuance of direction upon the concerned authority for early consideration of the petitioner s said representation appearing at page 32 of the writ petition.
(2.) As such, there is no provision for transfer of posting from one Government Aided Institution to another Government Aided Institution under the Management Rules. The school, where the petitioner was appointed as an Assistant Teacher, after being selected through the selection process conducted by the concerned School Service Commission, is the employer of the petitioner. The said school has no other branch. As such, transfer, as known in service jurisprudence, is impossible in the instant case as there is no other school and/or branch of that school elsewhere under the said employer of the petitioner. That apart, transfer to any other school under the management of a different Managing Committee is not possible as such transfer will amount to a new employment creating a new relationship of employer and employee between the school authority where she will be transferred and the employee who will be transferred there. That apart, no school authority can give any employment to any teaching and non-teaching staff in a Government Aided Institution unless he/she is recommended for such appointment by the School Service Commission after being selected through the process of the selection conducted by the School Service Commission as per law. So without further recommendation by the School Service Commission she cannot be transferred to any other school. Again such recommendation cannot be given by the School Service Commission as it is settled law that School Service Commission becomes functus officio after a candidate is recommended by it for appointment in any Government aided Institution and the offer of appointment given by the school authority in pursuance of such recommendation, is accepted by the recommended candidate.
(3.) Thus, when the petitioner was recommended by the School Service Commission for her appointment in the present place of her posting, even the change of recommendation of her posting to a different school is now not possible as the School Service Commission has now become functus officio as has been held by this Hon ble Court in the following cases:- i) In the case of Rama Bandapadhyay vs. State of West Bengal & Ors., 2006 1 WbLR 849; ii) In the case of Chairman, West Bengal Central School Service Commission and Ors. vs. Saswati Pramanik & Ors.,2007 2 CLJ 301; Looking at the provisions of the West Bengal School Service Commission Act and the decisions of this Hon ble Court as mentioned above, this Court, at a first glance of this writ petition, had an impression that the petitioner s claim deserved no merit for consideration. But after giving anxious consideration to the circumstances under which the petitioner was compelled to file such a representation before the Director of School Education (SE), this Court felt the necessity not only to entertain this 4 writ petition but also to enter deep in the matter in view of various pronouncement of the Hon ble Supreme Court wherein the Hon ble Supreme Court held that even in the absence of any legislation on a particular subject, the High Court is not powerless to issue appropriate writ under Article 226 of the Constitution to do justice wherever injustice is found and to mould the reliefs to meet the peculiar and complicated requirements of the country. The decision of the Hon ble Supreme Court in the case of Controller and Auditor General of India, Gain Prokash, New Delhi and Anr. Vs. S. Jagannathan and Anr., 1986 2 SCC 679, may be referred to. The other decision of the Hon ble Supreme Court in the case of M.V. Elisabeth & ors. vs. Harwan Investment & Trading Pvt. Ltd. Hanoekar House, Swatontapeth, Vasco, De Gama, 1993 Supp2 SCC 433 is very much significant in the present case as it was also held therein that where statute is silent and judicial intervention is required, Court s strive to redress grievances according to what is perceived principles of justice, equity and good conscience. The relevant part of the said judgment is set out hereunder:- Paragraph 86; the judicial power of this country, which is an aspect of national sovereignty, is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by courts empowered to exercise it. It is absurd to confine that power to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the 5 existence of the power of the Court to render justice according to law. Where statue is silent and judicial intervention is required, courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience. ;