Transferring School Teacher Not Violation Of Right To Life, Dignity: Calcutta High Court Upholds Provision Under WBSSC Act

The Calcutta High Court has upheld the constitutional validity of Section 10C of the West Bengal School Service Commission Act, 1997 (“1997 Act”) which was introduced vide an amendment in the year 2017 enabling transfer of a teacher from one school to another.A division-bench of Justice Harish Tandon and Justice Prasenjit Biswas were assigned to decide the common question of constitutional validity that had arisen in several writ petitions, pending before different benches. Section 10C had been challenged in a slew of writ petitions filed by teachers of various state aided schools, against their alleged “illegal transfers” by the State under the aforesaid provision. The Division bench held,“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. In every transferable service, if a person is transferred from one place to another he may contend that his dignity is impaired as steadiness and he is entitled to live a life in stress-free atmosphere; and in such event none of the employee in the public employment would be transferred from one place to another. We do not find any substance in the stand that the transfer of teacher from one school to another offends the constitutional guarantee of right to life under Article 21 of the Constitution. We, thus, do not find that Section 10C can be declared ultra vires to the constitution.”The argument made by counsel for the petitioners were classified into two heads: firstly, Section 10C impinge on the rights of teachers under Section 10 of the Act. Secondly, it was argued that the introduction of Section 10C by way of an amending Act cannot apply retrospectively as “it has a larger impact on varying the condition of service to the teacher’s disadvantage.” It was argued that taking aid of Section 10C, the School Service Commission had recommended the transfer of many teachers from one school to another on the basis of a general or special order passed by the State Government ‘in the interest of the education and/or in the interest of Public Service’ but that the recommendations had ‘fructified’ into an order of transfer.One batch of petitioners submitted that the appointment of teachers in government aided schools was distinct from other services of the Government. It was argued that appointment of teachers in the respective schools by the ‘managing committee’ was not a cadre based service, but was instead restricted to the respective school, making the transfer not an ‘incidence of service.’ It was argued that the appointment letters issued to the teachers did not include any conditions on transfer and therefore the State Government could not ‘usurp’ the power of such transfer which was “unknown and unrecognised in the educational system”, and that the protection under Section 10 of the 1997 Act would apply to teachers in relation to their service conditions which couldn’t be varied to their disadvantage by introducing conditions which were absent in the appointment letter.It was submitted therefore, that section 10C violated the basic tenet of Section 10 of the Act as it ran counter to it and, therefore, was to be declared ultra vires. It was argued:“There are instances that the said Section 10C is being misused or applied to the detriment of the interest of the teachers as in the several writ petitions, a teacher who was benefited under Section 10A has been transferred within a span of 2 months to a school at the distance of 150 kms.”Another batch of petitioners submitted that every individual had the right to a standard of living adequate for their “health both mentally and physically and if by introduction of any law, the ultimate object offends such basic principles, it cannot be said to be constitutionally valid.”Other arguments were advanced including those on Section 10C being an exercise of colourable legislation, inherent unreasonableness of the enacting provision, as well as the fact that Section 10C being subservient to Section 10, could not overstep its mandate by operating to the disadvantage of teachers, whom section 10 sought to protect. Petitioners further submitted that since teachers were hired on a school-centric basis during the counselling process, they could not be asked to abruptly relocate, by a subsequent amendment after not having being intimated of the same under their terms of employment.Advocate-General S.N. Mookherjee for the State Respondents inter alia submitted that the right to legislate in the field of education had been given to the State by the Constitution. It was argued that the question of constitutional validity could not hinge merely on a possibility of abuse of legal provisions, but is restricted to cases where such legislative amendments “offend” the very basic structure of the Constitution or the object and purpose for which it...

Transferring School Teacher Not Violation Of Right To Life, Dignity: Calcutta High Court Upholds Provision Under WBSSC Act

Srinjoy Das

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