ANIRUDDHA BOSE, J. - (1.) IN these six writ petitions the petitioners question a common order of transfer from their respective posts in the office of the District Primary School Council to the office of a Council of another district. In W.P. No. 17576(W) of 2011, W.P. No. 17579(W) of 2011, W.P. No. 2491(W) of 2012 and W.P. No. 2492(W) of 2012, the petitioners, who were posted as Lower Divisional Assistants in the office of the District Primary School Council, Purba Medinipur have been directed to be transferred to the office of the Council in the district of Bankura. In fact, the writ petitioner in W.P. No. 17576 (W) of 2011 and W.P. No. 2492 (W) of 2012 is the same individual, Bidyut Kumar Panja, whereas, Mojammel Molla is the writ petitioner in W.P.No. 17579 (W) of 2011 and W.P. No.2491(W) of 2012. These two individuals in their first petitions had questioned their orders of transfer on the allegations of the breach of certain procedural norms. In their subsequent actions, they have challenged the constitutional validity of the provisions of the Statute and Rules made in that behalf, which empowers the Board to effect intercouncil transfer. The said provisions for transfer is contained in section 19(1)(k) and (kk) of the West Bengal Primary Education Act, 1973, (the 1973 Act), which provides:- "19. Powers and Junctions of the board. -(1) Subject to any general or special orders of the State Government, the provisions of this Act and any rules made thereunder, the Board shall have generally the power to guide, supervise and control primary education, and in particular the power(.) (k) to transfer any teacher on non-teaching staff from one primary school within the jurisdiction of one Primary School Council to a primary school within the jurisdiction of another Primary School Council; (kk) to transfer any officer or employee, other than the Secretary and the Finance Officer, from one Primary School Council to another Primary School Council or to the Board or from the Board to a Primary School Council;" The said provision was introduced by way of an amendment of the 1973 Act, upon enactment of the West Bengal Primary Education (Amendment) Act, 1987. It appears that before the said Amendment Act became operational, there was no provision for such inter-council or inter-district transfer. In these proceedings, involving transfer of employees of one Council to another, provisions of 19(1)(kk) of the Act shall be examined, along with certain provisions of the Rules made under the Act. I shall refer to these Rules later in this judgment.
(2.) THE petitioners in W.P. No. 283(W) of 2012 and W.P. No. 284(W) of 2012 were posted as Lower Division Assistants in the office of the District Primary School Council, Bankura and they have been directed to be transferred to the similar posts in the office of the Council of Purba Medinipur. All the aforesaid orders of transfer are sought to be given effect to by the West Bengal Board of Primary Education (Board) through a memorandum bearing no. 950/1(11)BPE dated 17 October, 2011. The said memorandum has been issued by the Secretary of the Board in terms of Section 19(1)(kk) of the 1973 Act. The Rules guiding such transfer have been incorporated upon promulgation of the West Bengal Primary Education (Transfer of Officers and Employees of the Board and the Primary School Councils) Rules, 2005 (the 2005 Rules). Clause 3(f) of the said Rules Provides:- "3(f) "transfer" means the change of posting from one Primary School Council to another Primary School Council or to the Board, or from the Board to a Primary School Council"
(3.) THE manner in which such transfer is going to be effected is contained in Clauses 4, 5 and 6 of the said Rules, which stipulate:- "4. Conditions for transfer.- The Board may, either on its own motion, or on application made by an officer or employee, or on proposal submitted by a Primary School Council, transfer by making an order in writing, an officer or employee who has completed three years’ continuous service at a posing : Provided that the Board may not transfer an officer or employee who has attained the age of fifty-seven years; 5. Maintaining registers for the purpose of transfer.- The Board shall, for the purpose of transfer of officers and employees, maintain registers, with relevant particulars, of officers and employees of the Board and the Primary School Councils. 6. General Procedure of transfer- (1) (a) An officer or employee, in case of a Primary School Council, shall submit his application for transfer, with reasons stated therein, to the Primary School Council and the Primary School Council shall forward such application, with its views thereon, to the Board. (b)An officer or employee, in case of the Board, shall submit his application for transfer, with reasons stated therein, to the Board. (c)A Primary School Council may, if it considers necessary in the interest of administration that an office or employee of such Primary School Council may be transferred, submit a proposal to that effect, with reasons stated therein, to the Board. (2)The Board shall, within three months from the date of receipt of the application or, as the case may be, proposal referred to in sub-rule (1), take decision in respect of transfer of an officer or employee and, if the Board decides to transfer the officer or employee, the Board shall make an order, in writing, to that effect and communicate the order to the officer or employee and the concerned Primary School Council. (3)(a) The concerned Primary School Council shall, on receipt of the order made by the Board under sub-rule (2) or, as the case may be, the communication of the decision under sub-rule (2) or rule 9 modifying the said order, issue as early as practicable, a release order in respect of its officer or employee with a direction upon him to join the new posting. (b) The Board shall, upon making the order under sub-rule (2) or, as the case may be, modifying the said order under subrule (2) or rule 9, issue, as early as practicable, a release order in respect of its officer or employee with a direction upon him to join the new posting. (4)The officer or employee shall, on receipt of the release order, join the new posting and submit a joining report the Primary School Council in which he so joins or, as the case may be, to the Board. (5)In case the officer or employee so transferred joins the posting in a Primary School Council, such Primary School Council shall endorse a copy of the joining report to the Board. (6)The provisions of sub-rule (2), in so far as they relate to making and communicating the order, and sub-rules (3) to (5) shall apply mutatis mutandis in case of transfer of an officer or employee by the Board on its own motion. (7)Nothing in this rule shall authorize any Primary School Council to issue the release order in respect of an officer or employee in a manner so as to take away or abridge his right under rule if." In these writ petitions the Constitutional validity of section 19(1)(kk) of the said Act and the Amendment Act of 1987 as well as the provisions of sub-clause (f) of Rule 3, Rule 4 and sub-clause (c) of Rule 6 (1) of the 2005 Rules have been challenged. The petitioners have also applied for quashing the memorandum bearing no. 950/1(11) BPE/2011 dated 17 October, 2011. Certain other actions of the Board have also been questioned in these proceedings, but I have been addressed primarily on the above-referred points. The main argument of Mr. S.B. Bhunia, learned Senior Counsel appearing on behalf of the petitioners in these proceedings is that upon enactment of the Constitution (Seventy-third Amendment Act), 1992, the State legislature have lost their competence to enact on a subject covering primary education, and any subsisting State legislations covering that subject also stands invalidated. His further submission on this point is that by virtue of such amendment of the Constitution, which has been brought into effect in exercise of the Constituent power of the Parliament, the said Amendment Act supersedes any subsisting ordinary legislative instruments. On this point, reference has been made by Mr. Bhunia to Part IX and Entry 17 of Eleventh Schedule of the Constitution. In terms of Article 243G of the Constitution of India, the aforesaid Schedule has been introduced in the Constitution. Article 243G of the Constitution provides:- "243G. Powers, authority and responsibilities of Panchayat. Subject to the provisions of this Constitution the Legislature of a State may, by law endow the Panchayats such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to- (a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule." ;