GOURHARI DOLAI Vs. STATE AND ORS.

JUDGEMENT

(1.) Affidavit of service filed in Court is taken on record. Since March 21, 2016 the question of general transfer of the writ petitioner on the ground mentioned in Rule 4(1)(a) of the West Bengal School Service Commission (General Transfer, Transfer on Special Grounds and Reallocation) Rules, 2015 has been kept pending. This is despite the fact that the writ petitioner has furnished his physical disability certificate in due format as appears from page '31' of the writ petition showing that the writ petitioner suffers from 60% physical disability when the said Rule requires only 40% physical disability for general transfer on that ground. This is also despite the fact that till date despite receipt of the recommendation from the District Inspector of Schools, S.E. (Paschim Medinipur), respondent No. 8 as appears at page '52' (Annexure P/8 to the writ petition), the State of West Bengal has chosen not to hold any medical enquiry or constitute any board for medical enquiry for satisfaction on the urgency of the transfer in terms of Rule 4(2) of the said Rules. The writ petitioner submits that the benefit of general transfer is his right under the statutory Rules particularly Rule 9 since he has not sought such benefit before. It is also his submission that he has complied with the requirements for such general transfer in terms of Rule 7 of the said Rules.

(2.) In such view of the matter, it is clear that the State of West Bengal does not consider it necessary to cause medical enquiry for the satisfaction in terms of Rule 4(2). So what is required to be done is to accept the recommendation made by the District Inspector of Schools (S.E.), Paschim Medinipur, respondent No. 8. Though the learned advocate for the State submits that he requires instruction, if in the last two years the State of West Bengal could not even decide whether or not to hold medical enquiry, I do not understand what useful purpose would instructions from the State to the learned advocate fulfill. It would be only a way to delay the inevitable. Disability of a person which has not been duly challenged by the State of West Bengal within two years from the date of recommendation by the respondent No. 8 and within five years from the date when disability certificate was issued cannot be suddenly disputed because of the belated instructions to be given by the State to its learned advocate. There must be contemporaneous recording to show that there was some circumstance which led the State to disbelieve the writ petitioner or ignore the respondent No. 8's recommendation. Accordingly, I dispose of the writ petition by passing a mandatory order such that right to transfer under Rule 9 is not made nugatory in case of the writ petitioner. The respondents authorities concerned shall within a fortnight from the date of receipt of the communication of this order pass appropriate order for general transfer of the writ petitioner on the ground mentioned in Rule 4(1)(a) of the said Rule and communicate the said order to the writ petitioner. Logical effect thereto shall be given within a further period of seven days from the date of such communication of the order by the concerned respondents to the writ petitioner. The writ petition is allowed to the aforesaid extent. There shall be no order as to costs.