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IN THE HIGH COURT OF CALCUTTA
Aniruddha Bose, J.
Bidyut Kumar Panja & Ors. - Petitioners
Versus
West Bengal Board of Primary Education and Ors. - Respondents
W.P. Nos. 17576 & 17579 (W) of 2011; 2491, 2492, 283 & 284 (W) of 2012
Decided On : 01-09-2014
For the Petitioner:S.B. Bhunia Sr. Adv., Goutam De, S. Nandy, Ashm Roy, Oindrila De and Suchandra Chakraborty, Advocates
For the State :Bimal Chatterjee, learned Advocate General, Tapan Kr. Mukherjee, B. Kr. Mukherjee, and P.K. Bhattacharya, Advocates
For the School Councils of Purba Medinipur and Bankura :Lakshini Kr. Gupta, Sr. Adv. and Rajib Acharya, Advocate
For the Board :Subir Sanyal and Ratul Biswas, Advocates
Headnote:
INTER-COUNCIL TRANSFER - POWER OF BOARD - VALIDITY - WEST BENGAL PRIMARY EDUCATION ACT, 1973, SECTION 19(1)(K) AND (KK) - WEST BENGAL PRIMARY EDUCATION (TRANSFER OF OFFICERS AND EMPLOYEES OF THE BOARD AND THE PRIMARY SCHOOL COUNCILS) RULES, 2005, CLAUSES 3(F), 4, 5 AND 6 - CONSTITUTION OF INDIA, ARTICLES 243G, 243N - EMPLOYEES OF PRIMARY SCHOOL COUNCILS - TRANSFER FROM ONE COUNCIL TO ANOTHER - VALIDITY - WHETHER INTER-COUNCIL TRANSFER IS IMPERMISSIBLE - WHETHER EMPLOYEES HAVE A LIEN OVER THEIR POSTS AND SUCH LIEN CANNOT BE EXTINGUISHED BY TRANSFERRING THEM TO ANOTHER COUNCIL - WHETHER THE PROVISIONS OF SECTION 19(1)(KK) OF THE ACT AND THE RULES ARE ULTRA VIRES THE PROVISIONS OF ARTICLE 243G OR ANY OTHER PROVISION OF THE CONSTITUTION.
Fact of the Case:
The petitioners, who were employees of different District Primary School Councils, were transferred to different Councils by a memorandum issued by the Secretary of the West Bengal Board of Primary Education. The petitioners challenged the transfer orders on various grounds, including that the provisions of Section 19(1)(kk) of the West Bengal Primary Education Act, 1973, and the West Bengal Primary Education (Transfer of Officers and Employees of the Board and the Primary School Councils) Rules, 2005, which empower the Board to effect inter-council transfer, are ultra vires the provisions of Article 243G of the Constitution.
Finding of the Court:
The Court held that the provisions of Section 19(1)(kk) of the Act and the Rules are not ultra vires the provisions of Article 243G or any other provision of the Constitution. The Court further held that inter-council transfer is not impermissible and that employees do not have a lien over their posts which cannot be extinguished by transferring them to another Council.
Issues: 1. Whether the provisions of Section 19(1)(kk) of the West Bengal Primary Education Act, 1973, and the West Bengal Primary Education (Transfer of Officers and Employees of the Board and the Primary School Councils) Rules, 2005, are ultra vires the provisions of Article 243G or any other provision of the Constitution? 2. Whether inter-council transfer is impermissible? 3. Whether employees have a lien over their posts and such lien cannot be extinguished by transferring them to another Council?
Ratio Decidendi: 1. The expression "may" in Article 243G of the Constitution ought to be construed as "shall", implying that it is the mandate of the Constitution that the entire subject of primary education along with service conditions of the staff engaged for the purpose of imparting primary education shall vest in the zilla parishads, or other panchayat institutions on the strength Entry 17 of Eleventh Schedule to the Constitution. 2. The State legislature has legislative competence to enact on the subject of primary education and this legislative power was derived from Entry 25 of List III to the 7th Schedule. 3. The provisions of Article 243G of the Constitution mainly act as the guiding principle which the State legislature ought to follow for the purpose of giving effect to the mandate contained in Article 40 of the Constitution, read with various provisions of Part IX of the Constitution. 4. Even if the expression "may" is given the meaning of "shall", in the context of the aforesaid provision, and the constitutional mandate is held to be imperative, even then legislative exercise would be required to be undertaken to shift obligations pertaining to primary education to Panchayats from the Council or other statutory bodies which are functioning in this field now. 5. The Constitution does not vest the High Courts with jurisdiction to require the legislature of a State to make any enactment. Such power and authority is exclusively within the domain of the State legislature. 6. Once appointed in substantive capacity in a permanent post, the petitioners can claim right to remain in posts fulfilling such characteristics, unless of course such right is lost by some penal measures or through voluntary action.
Final Decision: The writ petitions were dismissed, subject to the conditions that the petitioners shall be placed in the seniority list on the basis of their dates of appointment and that no penal step or departmental action shall be taken against them for not joining the respective posts on transfer earlier.
Aniruddha Bose, J.
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 inter-council 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 functions 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 complet
