The employer's discretion in transferring employees and the limited scope of judicial review in transfer matters.

JUDGMENT

amrita Sinha, J. - The petitioner is a primary school teacher. He is aggrieved by the transfer order dated 4th February, 2019 issued in his favour by the Chairman, South 24-Parganas DPSC. The petitioner has been transferred from Kedarpur State Plan Free Primary School to Chhoto Banasam Nagar Free Primary School both under Patharpratima East Circle.

The petitioner filed representation before the Council praying for withdrawal of the order of transfer. The representation of the petitioner not being considered by the Council, he approached this Court by filing writ petition being WP No. 22328 (W) of 2019 which was disposed of by the Court on 14th January 2020 by directing the Council to consider the representation upon granting an opportunity of hearing to the petitioner and to pass a reasoned order in accordance with law.

In compliance of the direction passed by the Court the Chairman of the Council passed reasoned order on 16th March, 2020. The prayer of the petitioner for withdrawal of the order of transfer stood rejected.

The petitioner is aggrieved by the same and challenges the same in the present writ application.

The impugned order of the Chairman mentions that as the petitioner is a surplus teacher in the first school, accordingly following the provisions of the Right of Children to Free and Compulsory Education act, 2009 the petitioner was transferred following the memo issued by the Deputy Secretary, School Education Department, Government of West Bengal.

The case of the petitioner is that the school where he was serving had only 45 students in its roll with three approved teachers. The petitioner was acting as the Teacher-in-Charge of the said school and was the senior most teacher of the school. The third teacher of the school was brought on transfer in the year 2019 and it is only thereafter that the teachers became surplus compared to the number of students in the school.

It has been submitted that there was no requirement of the third teacher in the said school in 2019 itself and the third teacher was brought in only to root out the petitioner from the said school. It has been submitted that the principle of 'last come, first go' ought to have been followed. The teacher who joined the school last, ought to be transferred first.

The petitioner also submits that at the time of hearing before the Council, he was requested to supply names of four schools in the vicinity of his residence so that he may be transferred to one of those schools, if required. The petitioner, as per the request, submitted list of four schools where there is scope of appointment of further teachers, as the teacher-student ratio permits the same. Instead of transferring the petitioner to any of those schools, the Chairman intentionally and deliberately did not interfere with the order of transfer.

It has been contended that the order of transfer was mala fide and passed upon total non-application of mind.

Prayer has been made for setting aside the order of transfer dated 4th February, 2019 and the subsequent order of the Council dated 16th March, 2020.

The petitioner in his support has relied upon the judgment delivered by the Hon'ble Supreme Court in the matter of Somesh Tiwari -vs- Union of India & Ors. reported in (2009) 2 SCC 592 paragraph 16 on the issue that the order of transfer can be interfered with when the same is tainted with malice.

The petitioner prays for withdrawal of the order of transfer.

Learned advocate representing the respondent Council strongly opposes the prayer of the petitioner.

It has been submitted that the order of transfer was passed by the School Education Department not in respect of the petitioner alone but in respect of three hundred ninety teachers for the interest of primary education to maintain the student-teacher ratio of a primary school. The said decision was taken for rationalisation of primary teachers to ensure proper distribution of teachers among different primary schools in the State by way of transfer