Calcutta High Court upholds law allowing State to recommend transfer of school teachers

The Calcutta High Court Thursday upheld the constitutional validity of the West Bengal School Service Commission Act of 1997 (WBSSC Act) which empowers the State government to instruct the School Service Commission (SSC) to transfer a teacher from one aided school to another [Rabin Tudu vs State of West Bengal]..A division bench of Justices Harish Tandon and Prasenjit Biswas refused to accept the argument that such transfers would infringe the right to life of the teachers."In the perspective of the service in a public employment, the transfer is an incident of service and if the transfer is made in accordance with the procedure established by law, we do not find any justification that it infringes the fundamental right to life. 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," the Court held in its order.In every transferable service, if a person is transferred from one place to another he may contend that his dignity is impaired and that he is entitled to live a life in stress-free atmosphere.This would result in a situation where none of the employee in the public employment can be transferred from one place to another, the bench opined."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 (of WBSSC Act) can be declared ultra vires to the Constitution," the Court added..The Court was dealing with a slew of petitions filed by teachers of aided schools, who questioned the constitutionality of Section 10C of the WBSSC Act.Taking aid of Section 10C, the SSC is empowered to recommend the transfer of a teacher from one school to another on the basis of a general or special order passed by the State.The bench junked the argument that once a teacher is appointed in the school of their choice, s/he is immune from being transferred to any other school. "The beneficiary of the education system cannot be deprived of their fundamental right to education enshrined under Article 21A of the Constitution because of the dearth of the teacher or the apathy towards the timely appointments. The appointment of the teacher in a public employment neither have a vested right nor an existing right to claim their services to be placed in a school even if there is a gross disparity in a teacher-pupil ratio by passage of time," the bench observed..In its 119-page judgment, the bench observed that the role of the teacher in an educational system is always regarded as a mentor, guide and harbingers in shaping the mind of the children and excelling the knowledge in the field of education in order to compete with the most privilege class of the children within the State. "The teachers are always regarded as a person of high degree, knowledge and builds the character of the children to make them a most responsible citizen of the country. The service of teacher is always regarded as a service to the society for their upliftment both socially and culturally and economically," the bench observed.The conduct and the behaviour of a teacher is minutely judged by the children, the bench noted.Their conduct must thus be above board as the children look up to the teachers and imitate them in achieving their goals, the Court underlined. "The teacher creates a bonding with the children which does not mean that such bonding is inflexible or inseparable as the life is dynamic and always seek changes with the change of mind and the knowledge gained in pursuit of the future aspiration. The teachers as a homogenous class bears the equal and common responsibilities and percolate their knowledge and experience gained by them by passage of time," the bench stated.The concept of appointment in school in perpetuity has been gradually eroded and such employment is a public employment though not a cadre based employment, the bench added.With these observations, the bench upheld the validity of the provision..Senior Advocates Jayanta Mitra, Ashoke Kumar Banerjee and Pratik Dhar along with advocates Subir Sanyal, Ekramul Bari, SM Ali, Anindya Bose, Diptendu Mondal, Subhrangsu Panda, Ina Bhattacharya, Mithu Singha Mahapatra, Sudip Ghosh Chowdhury and Bina Baidya and several others appeared for the Petitioner.Advocate General SN Mookherjee along with Government Pleader Anirban Ray and advocates Tapan Kumar Mukherjee, Sirsanya Bandopadhyay, Bhsakar Prasad Vaisya, Swapan Kumar Datta, Md. TM Siddiqui, Biswabrata Basu Mullick, Pantu Deb Roy, Malay Singh, Sk Md Galib, Santanu Kumar Mitra and Dipankar Das Gupta and several others represented the State..[Read Judgment]