Teachers Can Claim Transfer On Fulfilment Of Criterion Under Service Conditions, Authority Must Take Steps To Fill Resultant Vacancy: Calcutta HC

The Calcutta High Court has recently allowed an appeal, challenging the order of a single-bench dismissing the writ petition filed by a high-school teacher against refusal of her transfer application by the head of institution.

In directing the Commissioner of School Education to consider the petitioners transfer application in accordance with prevalent norms and students’ interest, a division-bench of Justice Soumen Sen and Justice Uday Kumar held:

We are not unmindful of the fact that in view of the Right of Children to Free and Compulsory Education Act, 2009 it is the obligation of the State to implement the provisions of the said Act. We cannot also lose sight of the fact that there is a need for rationalization of policy of transfers of the teachers. The service conditions gives right to claim transfer on fulfilment of certain conditions. An application for transfer has to be considered on the basis of existing and/or prevailing rules. We do not find any material to reject the said application of the petitioner by the Head of Institution and no sufficient material is produced before us to justify the said stand. In view thereof, the Commissioner of School Education shall decide the issue within six weeks from the date of communication of this order by either of the parties upon giving an opportunity of hearing to the writ petitioner and the school authorities and decide the matter by passing a reasoned order to be communicated to the parties within one week thereafter.

The petitioner/appellant was an assistant teacher in Sanskrit, at Churamon High School, Uttar Dinajpur.

It was submitted by the appellant that she had applied for a transfer thrice, from the ‘Utsashree Portal’ which could be evidenced from her general transfer status on the portal, as well as documents annexed with the writ petition.

The appellant argued that her first transfer request had been placed before the head of institution and managing committee in August 2021 who had granted a no objection to her release, but the same was subsequently rejected by the District Inspector of Schools, Uttar Dinajpur on the grounds of “single teacher.”

Appellant further submitted that her second transfer application was filed in September 2021, which was rejected by the Head of Institution on the grounds of “out of 10%” and that her third and final transfer application in February 2022 was also rejected on similar grounds, leading to the writ petition challenging the validity of the rejection.

In the aforesaid petition, which led to the impugned order, the Bench had noted that the interest of students must be of paramount consideration when dealing with applications for a teacher’s transfer, and the same fell within the discretion of the State based on the student-teacher ratio prevalent in an institution.

The appellant in challenging the dismissal of the writ petition by the single-bench, argued that an application for transfer would have to be considered based on relevant circulars which are prevalent at that moment in time, and not in terms of subsequent circulars unless they are specifically retrospective.

It was argued by the State that the paramount consideration when dealing with transfer applications by teachers, is given to the student-teacher ratio, and that vide a September 2022 notification, the teachers don’t have a vested right of transfer.

Upon hearing the arguments of both parties, the Court arrived at a prima facie finding that sufficient materials had not been placed on record to substantiate the refusal of the petitioner’s transfer requests.

In allowing the appeal, the Bench directed the matter to be placed before the appropriate authority, being the Commissioner of School Education for final disposal on merits, within six weeks, and concluded:

The order of rejection has to be considered on the basis of the reasons mentioned and not on any other extraneous consideration. The argument made that pupil-teacher ratio was a relevant factor is not borne out from the impugned order of the Head of the Institution. There cannot be any doubt that in an appropriate situation interest of the student could be the over-riding consideration. However, at the same time if a teacher fulfils the eligibility criteria for transfer under the relevant existing rules there are procedures prescribed to fill up the resultant vacancy. In a given situation it is possible that although a teacher is eligible for transfer an immediate replacement may not be possible and the recruitment process for the said post would take such time the transfer may be given effect to from a future date. However, once a teacher fulfils the eligibility criteria, the authority must take steps to fill up the resultant vacancy as per the norms existing at the relevant point of time by way of local arrangement or by recruiting a permanent teacher for the said post within a reasonable time.

Case: Prapti Chakraborty v State of West Bengal & Ors.

Coram: Justice Soumen Sen and Justice Uday Kumar

Citation: 2023 LiveLaw (Cal) 224

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