NASIM US SABA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The West Bengal Central School Service Commission (hereafter the Central Commission), in terms of the provisions of the West Bengal School Service Commission (General Transfer) Rules, 2013 (hereafter the Transfer Rules) issued an advertisement inviting applications from interested approved assistant teachers to seek transfer to a school of his/her choice, subject to existence of a vacancy. The petitioner, an approved assistant teacher in Geography, presently employed in Belur T.H. Memorial Urdu High School, District Howrah, had expressed interest for appointment on transfer, inter alia, in Badshah Khan Centenary Girls High School, Kidderpore, Kolkata (hereafter the said girls' school). Other approved teachers had also expressed interest for being transferred thereat. The Petitioner's application was processed by the Central Commission and upon allotment of marks in terms of the formula mentioned in the Transfer Rules, the petitioner was found entitled to 11 marks. One Asma Khatoon, respondent No. 10, an approved assistant teacher in Geography employed in Md. Jan Higher Secondary School, Jorasanko, Kolkata, was one teacher who had expressed interest for appointment on transfer in the said girls' school. She scored 13 marks and, therefore, secured a position higher than the petitioner. Resultantly, the respondent No. 10 was recommended for appointment on transfer as assistant teacher in Geography in the said girls' school vide letter dated November 24, 2014, issued by the Chairman of the Central Commission. However, it is not in dispute that the respondent No. 10 has since declined to join the said girls' school on transfer as an assistant teacher. A request letter for cancellation of the recommendation has also been issued by the Secretary of Md. Jan High School, addressed to the Central Commission. It was thereafter that the petitioner requested the Chairman of the Central Commission to transfer her as an assistant teacher in Geography in the said girls' school, vide her representation dated December 23, 2014. This was followed by a reminder dated January 16, 2015. Since the representation and the reminder did not evoke any positive response, this writ petition was presented by the petitioner seeking, inter alia, an order on the Chairman of the Central Commission to take necessary step for issuing recommendation in relation to her appointment on transfer at the said girls' school.

(2.) Mr. Barua, learned advocate for the petitioner invited the attention of the Bench to the final list of incumbents at page 21 of the writ petition, containing names of candidates who had expressed interest for transfer in various schools including the said girls' school, and the marks obtained by each of them. According to him, although the petitioner was not recommended for appointment on transfer in any of the three schools for which she had expressed interest, one Durdana Roushan who secured lesser marks than the petitioner was recommended for appointment on transfer in a school of her choice. It was contended by him that recommendation in favour of a candidate securing lesser marks than the petitioner would obviously give rise to a genuine discontent in the mind of a candidate securing higher marks and the Central Commission ought to have worked out ways and means within the four corners of the statute to ameliorate the petitioner's grievance. He also urged that if indeed the respondent No. 10 had accepted the recommendation for her appointment on transfer in the said girls' school, the petitioner could not have laid any valid claim but now that the respondent No. 10 is no longer interested, the Central Commission owed a duty to recommend the petitioner for appointment on transfer in the said girls' school because of the space created by the respondent No. 10.

(3.) The writ petition has been vehemently opposed by Mr. Gangopadhyay, learned advocate for the Central Commission and its Chairman. According to him, the Transfer Rules do not postulate recommendation in favour of a candidate upon an earlier recommendation not having been accepted by the candidate recommended first. It was contended that the system of counseling, which is otherwise available for appointment of teachers in pursuance of the regional level selection tests conducted by the Central Commission, has been consciously excluded from the Transfer Rules and, therefore, the vacancy in the said girls' school which has not been filled up due to the disinclination of the respondent No. 10 to join there would have to be filled up by the process pertaining to the next regional level selection test. It was further submitted by him that if counseling were introduced in respect of prayers for postings on transfer, the process would be an unending one and the Central Commission would face severe inconvenience. He also submitted that there has been no mala fide on the part of the Central Commission in not recommending the petitioner for appointment on transfer and that the entire action being based on proper reading, understanding and interpretation of the Transfer Rules, which do not postulate a second recommendation being issued in favour of a candidate in respect of one particular vacancy, no illegality was committed warranting interference. He, accordingly, prayed for dismissal of the writ petition.