HC stays teacher transfer clause- The interim order, for now, takes away the school education department’s right to move a tutor without her/his consent

Tapas Ghosh and Mita Mukherjee, TT, 28.06.20, Calcutta: The high court on Friday stayed the operation of a clause of the West Bengal School Service Commission (Amendment) Act, 2017, which allows the government to transfer state-aided schoolteachers for administrative reasons.

The interim order, for now, takes away the school education department’s right to transfer a teacher without her/his consent.

In the same order, Justice Sabyasachi Bhattacharya stayed the transfer of four teachers from the state-aided Satashi High School, Jagachha, Howrah, to schools in other districts.

Four teachers of the school had moved court after they got transfer orders on June 4 and were released by the school managing committee within two days in the middle of the lockdown.

The amendment to the school service commission act in 2017 empowered the government to transfer a state-aided schoolteacher or an employee to a similar institution against any sanctioned post “in the interest of public service for administrative reasons”.

The objective of the amendment was to enable the government to maintain a proper teacher-student ratio across its 14,000-odd secondary schools by transferring surplus staff from one institution to another with a shortfall.

Before the amendment, transfers of state-aided schoolteachers and employees were based on the concept of “mutual and general” ones. In a mutual transfer, two teachers could swap schools if both had similar qualifications and experience.

In a general transfer, a teacher wanting to move to another state-aided school had to file an application. The transfer was allowed only if there was a suitable vacancy in that particular institution.

Staying the amendment on Friday, the judge held that the new legislature was ultra vires to the Constitution as the service condition at the time of recruiting the four teachers did not include a provision by which they could be transferred citing administrative reasons.

Ekramul Bari, who appeared for Debabrata Kanji and three other teachers, said the transfer decision was “vindictive”. There cannot be any administrative reason to transfer the four teachers as the decision has been taken when all education institutions are closed because of Covid-19, Bari said.

Advocate general Kishore Datta, who appeared for the government, told the court that the amendment intended to improve the academic standard of state-aided schools by rationalising the distribution of teachers and other staff.

The judge asked Datta to file an affidavit in opposition and announced that the matter would be heard in detail later.