The Chairman of the Nadia District Primary School Council had the power to transfer teachers in the absence of the Council in case of emergency under Section 53(2) of the West Bengal Primary School Education Act, 1973, and the approval of the Council was not required for the validity of the transfer orders.

Arun Mishra, C.J.–The above appeals are taken up together for analogous hearing and for disposal of the same by a common judgment treating the same as on day’s list.

2. The intra court appeal has been preferred as against the judgment and order dated 10th July, 2013 passed by the Single Bench quashing the order of transfer. On two grounds, the order of transfer has been quashed by the Single Bench that power of transfer was with the Council not with the Chairman of the Council as per Rule 4 of the West Bengal Primary Education (Transfer of Teacher including Head Teacher) Rules, 2002, hereinafter referred to as the ‘Rules of 2002’ and provisions of Section 53 of West Bengal Primary School Education Act, 1973, hereinafter referred to as the ‘Act of 1973’ have also been referred to. The Single Bench has also relied upon decision of this Court in Sudipta Ghosh Vs. State of West Bengal & Ors dated 17th October, 2012.

3. The respondents/petitioners were transferred from one school to another within the same circle vide order dated 2nd May, 2012 issued by the Chairman, Nadia District Primary School Council on the administrative ground for the interest of primary education. They were directed to join the schools where they were transferred to act as Head Teachers/Assistant Teachers in the same circle. The District Primary School Council was not functional as it was not constituted at the relevant time when the Chairman had passed the order of transfer. However, the matter was placed before the District Primary School Council after its constitution and in its meeting held on 4.8.2012, vide Annexure P-4, the Council has approved the transfer and they have approved the action of the Chairman exercising power of transfer and other administrative acts. The Single Bench has quashed the order of transfer. Hence, the intra court appeal has been preferred.

4. It was submitted by the learned Counsel appearing for the appellant that in absence of the formation of District Primary School Council, Chairman had the power to function particularly in view of Section 53(2) of the Act of 1973. The Chairman could discharge any of the duties of Primary School Council as Council was not constituted. It was a case of administrative exigency in which the power has been exercised by the Chairman. The Chairman was required to report the matter to the Council, which he has reported for consideration of the Council. The Council has approved the order passed by the Chairman. As such, there was no infirmity in the order of transfer. The learned Counsel for the appellant has relied upon the decision of the Division Bench of this Court in Nadia District Primary School Council & Anr. Vs. Sudipta Ghosh in M.A.T.1065 of 2013 decided on 26th July, 2013.

5. On the other hand, the learned Counsel appearing for the respondents has submitted that the decision of this Court in Nadia District Primary School Council & Anr. Vs. Sudipta Ghosh is distinguishable as, in the instant case, the transfer orders were passed on 2.5.2012. He has relied upon the decision of the Division Bench of this Court in Biswanath Sarkar Vs. State of West Bengal & ors. in M.A.T.667 of 2012 passed on 27.6.2012. He has argued at extensive length and time and submitted again and again that the transfer order is violative of the provisions contained in Rule 4 of the Rules, 2002. The Chairman ought to have reported the matter to the Council within one month. It does not appear that the Chairman has reported the matter to the Council within one month as envisaged under Section 53(2) of the Act of 1973. The learned Counsel has further submitted that the approval of the Council has been made after more than one month on 4.8.2012 when the orders of transfer were passed in May, 2012. Thus the orders of transfer stood invalid as it has not been approved by the Council within a period of one month. The learned Counsel has also submitted that the teacher could not be treated as the member of the staff on