GOKULANANDA ROY Vs. PRESIDENT DISTRICT SCHOOL BOARD BURDWAN

JUDGEMENT

(1.) This application under Article 226 is against an order of transfer of the Petitioner who is a Teacher of a Primary School. The Petitioner alleges that he is serving at the Sankari Primary School for the last 8 years; that about October, 1956, Respondent 1, the President, District School Board, made an order transferring him from that School, whereupon the Petitioner brought an application under Article 226, which was allowed on consent and the order of transfer was cancelled; that in view of the fact that the Petitioner, who is himself a member of the District School Board, took a part against the election. of Respondent 1 at the election held in 1950, Respondent 1 has maliciously made another order on 7-2-61 (Ann. B) transferring the Petitioner to Gerai Primary School without complying with the provisions of the Bengal Primary Education Act, 1930. Petitioner's case is that the impugned order is mala fide, without jurisdiction and violative of the principles of natural justice since the order of transfer has been intended as a punishment and yet no enquiry has been made and no opportunity given to the Petitioner to answer the charges on which the alleged order is purported to have been made.

(2.) Respondent 2 is the Secretary of the District School Board, while Respondent 3 is the-School Board itself. The counter-affidavit of Respondents 1-3 states that the requirements of the Act were complied with; that upon a complaint being received from the public, an enquiry was held by the Asstt. Inspector of Schools at the instance of Respondent 2 and his report was then placed before respondent 1 and the impugned order was made by Respondent 1; that by a resolution of 1948, the President was authorised by the School Board to approve the appointments and transfers-of Primary School teachers and hence the order of Respondent 1 was not ultra vires; that on 27-2-61, the Appointments and Transfer Committee of the Board has approved the recommendation, made by the Asstt. Inspector of Schools and on 29-3-61, that approval has been ratified by the General Meeting of the District School Board; that the order is not mala fide nor has it been intended as a punishment.

(3.) The primary question to be determined in this case is whether the impugned order is ultra vires. The sheet-anchor of the Petitioner's case is that the impugned order has been made in contravention of R. 7 of the Rules framed under the Bengal (Rural) Primary Education Act (herein after referred to as the Act), as, published per Notification No. 1943 Ed. 7,25-7-40. Subject to the contention made by Mr. Kar on behalf of the Respondents that this Rule is itself ultra vires the statute it may be observed that if the Petitioner succeeds is showing that the terms of this rule have been contravened, the Petitioner shall be entitled to relief. On behalf of the Respondents at has been urged that a transfer does not violate Any legal right of an employee and, farther, the matter being discretionary, no writ under Article 226 can issue to interfere with such order. But assuming the Rule to be intra vires for the present, it would appear that the order of transfer of a teacher of a Primary School has been subjected to a statutory condition or limitation, so that if such statutory bar is violated, the order of transfer, whether administrative or otherwise, would be ultra vires and liable to be removed by mandamus.