Guidelines laid down in Vishaka and Ors. Vs. State of Rajasthan and Ors. are applicable to prevent sexual harassment at workplace and transfer can be directed to provide a suitable and congenial atmosphere for the petitioner to continue her service with honour and dignity.

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.

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.

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. reported in 2006

(1) WBLR (Cal) 849;

ii) In the case of Chairman, West Bengal Central School Service Commission and Ors. vs. Saswati Pramanik & Ors. reported in 2007 (2) CLJ (Cal) 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 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 pecu