Court of Jurisdiction: The High Court at Calcutta.
Parties:
Rabin Tudu vs. State of West Bengal & ors and connected
applications
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- The issue before Hon’ble Court: Is Section 10C of the West Bengal School Service Commission Act, 1997 (“1997 Act”) which was introduced vide an amendment in the year 2017 enabling the transfer of a teacher from one school to another is Constitutionally valid.
- Coram:
Division-bench of Justice Harish
Tandon and Justice Prasenjit Biswas.
- Date of Decision:
27.07.2023.
- Case of Petitioners:
1.
Section
10C had been challenged in a slew of writ petitions filed by teachers of
various state-aided schools, against their alleged “illegal transfers” by the
State under the aforesaid provision.
2. Arguments made by counsel for the petitioners were classified into two heads:
i. Firstly, Section 10C impinges on the rights of
teachers under Section 10 of the Act.
ii.
Secondly, it was argued that the introduction of
Section 10C by way of an amending Act cannot apply retrospectively as “it has a
larger impact on varying the condition of service to the teacher’s
disadvantage.”
3.
Taking the aid of Section 10C, the School Service Commission had recommended the transfer
of many teachers from one school to another on the basis of a general or
special order passed by the State Government ‘in the interest of the education
and/or in the interest of Public Service’ but that the recommendations had
‘fructified’ into an order of transfer.
4.
Appointment
of teachers in government-aided schools was distinct from other services of the
Government.
5.
Appointment of teachers in the respective
schools by the ‘managing committee’ was not a cadre-based service, but was
instead restricted to the respective school, making the transfer not an
‘incidence of service.’
6.
Appointment
letters issued to the teachers did not include any conditions on transfer and
therefore the State Government could not ‘usurp’ the power of such transfer
which was “unknown and unrecognised in the educational system”, and that the
protection under Section 10 of the 1997 Act would apply to teachers in relation
to their service conditions which couldn’t be varied to their disadvantage by
introducing conditions which were absent in the appointment letter.
7.
It
was submitted therefore, that section 10C violated the basic tenet of Section
10 of the Act as it ran counter to it and, therefore, was to be declared ultra
vires. It was argued:
8.
“There
are instances that the said Section 10C is being misused or applied to the
detriment of the interest of the teachers as in the several writ petitions, a
teacher who was benefited under Section 10A has been transferred within a span
of 2 months to a school at the distance of 150 kms.”
9.
Every
individual had the right to a standard of living adequate for their “health
both mentally and physically and if by introduction of any law, the ultimate
object offends such basic principles, it cannot be said to be constitutionally
valid.”
10. Section 10C being an exercise of
colourable legislation, inherent unreasonableness of the enacting provision.
11. Section 10C being subservient to Section
10, could not overstep its mandate by operating to the disadvantage of
teachers, whom section 10 sought to protect.
12. Petitioners further submitted that since
teachers were hired on a school-centric basis during the counselling process,
they could not be asked to abruptly relocate, by a subsequent amendment after
not having being intimated of the same under their terms of employment.
- Case of respondents:
1.
The
right to legislate in the field of education had been given to the State by the
Constitution.
2.
The
question of constitutional validity could not hinge merely on a possibility of
abuse of legal provisions, but is restricted to cases where such legislative
amendments “offend” the very basic structure of the Constitution or the object
and purpose for which it is incorporated, as well as the fact that while the
petitioners in their submissions had relied on case laws wherein subordinate
legislations or Rules had been challenged, the present writ petition had
challenged the enabling Act itself.
3.
State that
transfer would always be regarded as an incidence of service and that the State
had freedom to post its employees “necessitated by the exigencies of service”
and, therefore, no fundamental right or vested right could be claimed against a
transfer.
4.
the
Constitution of India had been enacted, and evolved with an intention of
furthering education amongst children. In order to fulfil the objectives of the
Constitution under Article 45, the State had decided to grant physical
assistance and recognise unaided schools as aided institutions. Subsequently,
upon noticing malpractices in utilisation of financial aid and to regulate the
same the West Bengal School Service Commission Act, 1997.
5.
The
object and purpose for insertion of Section 10C is laudable that it can be
activated by the State in the interest of education or in the interest of
public service.
6.
Since
the employment of the teachers in an aided school is regarded as a public
employment, there is no fetter on the part of the State to take decision under
the provision of Section 10C in the interest of the education or a public
service.
7.
The legislative competence of the State is not
under challenge but the challenge to Section 10C of the said Act is founded on
unreasonableness, arbitrary and a colourable exercise of power which does not
appear to be so nor the Constitutional Court should transgress its power
enshrined in the Constitution in holding that the said Section 10C is
unconstitutional.
8.
Section 10C was inserted with an avowed object
of realising disparity in the teacher-pupil ratio in different aided schools
which cannot be said to be arbitrary, mala fide and/or beyond the competence of
the State.
9.
Mere
apprehension to abuse the provision of the newly inserted Section cannot be a
ground to render such provision unconstitutional.”
- Judgment of the Hon’ble Court with reasoning:
1.
In
dealing with the legislative history of the 1997 Act, as well as its subsequent
amendments, the Court traced the evolution of education in India, and examined
the legislative intent behind the introduction of the various School Service
Commission Acts in West Bengal as well as their Constitutional roots.
2.
“The
Constitution of India contains Article 45 in Part–IV as an obligation of the
State to impart free and compulsory education to the children up to 14 years of
age. Though there were several schools set up by the Government, it was
subsequently felt that there must be a uniform standard of the curriculum in
the education system and all the educational institutions within the respective
States must adhere the same system so that the children may have the same
curriculum and in same way to abrogate the understanding of the subject in a
different manner. This led to the promulgation of the West Bengal School of
Secondary Education, 1950 by the State…. Since there was a complete disparity
in the appointment of the teachers in several aided educational institutions, it
was felt to introduce a better method of recruitment of teachers as such
recruitment was done by the respective school authorities…It was further
noticed that the members of the managing committees were indulged in different
kinds of malpractices including financial and non-academic consideration while
making such selection of the teachers and non-teaching staffs and in order to
remove and eradicate such malpractices and also to improve the quality of
teachers, the State Government decided to establish a Central School Service
Commission and four Regional School Service Commission in relation to an
appointment of teachers in the schools. [Eventually] the West Bengal School
Service Commission Bill, 1997 was laid in the assembly and was passed with
majority. The said Bill was later on reduced into a full-fledged West Bengal
School Service Commission Act, 1997.
3.
Broadly
speaking, the object and purpose for promulgation of the School Service
Commission Act is not only to curb the malpractices of the members of the
managing committee but also the standard of eligibility and appointment of the
teachers to provide a better education to the children and above all to avoid
any discriminatory action of the managing committee or the nepotism and
favouritism.”
4.
Mere
possibility of being misused would not render an enabling act unconstitutional.
It was held:
“The enabling Act cannot be
held or rendered unconstitutional on the ground of the possibility of being
abused or misused as it is within the domain of the judicial review to correct
the measures taken by the administrative authorities invoking the provisions of
the enabling Act. (Supreme Court Advocate son-Record Association & Anr. Vs.
Union of India, reported in (2016) 5 SCC 1)”
5.
There
is no arbitrariness or unreasonableness in enacting Section 10C. The insertion of Section 10C was not an
act of colourable legislation, because as unanimously agreed, the State had
legislative competency to introduce the said section and there was no attempt
to indirectly achieve an outcome which had not been specified in the
legislation.
“The
service of teacher is always regarded as a service to the society for their
upliftment both socially and culturally and economically. The conduct and the
behaviour of the teacher is minutely judged by the children which inculcate the
corresponding responsibility amongst them which is distinct from a common man.
The State Government from time-to-time enacted statutes, Rules and Regulations
relating to the condition of service and advancement can be seen by
incorporating the system of selection of the teachers with an avowed object of
common standard in the field of education. The concept of appointment in school
in perpetuity has been gradually eroded and as held in the above noted
decision; such employment is a public employment though not a cadre-based
employment. The concept of transfer is engrained and inbuilt into a service
under the public employment being indicative of the fact that despite the
retention of Section 10, Section 10A and 10B were introduced which are not the
subject matter of challenge in the above cases. We thus do not find any element
of arbitrariness or unreasonableness in bringing 10C by way of an amendment in
the said Act keeping the Section 10, 10A and 10B untouched.”
6.
The
‘Protection’ of Section 10 available to those in service prior to enactment of
1997 Act. It was further held that Section 9 of the 1997 Act would enable a
harmonious construction of the various enactments under Section 10, and would
make clear that Section 10 was enacted to ensure that when the School Service
Commission in 1997 had taken over the administration of teachers from the
various “managing committees” of the aided-Schools, the conditions of their
employment would not be altered to their disadvantage, and thus there was no
incongruity. It was held:
“The conjoint
reading of the aforesaid provision is exposit and conveys the definite
intention of the legislatures that the appointments to the post of the teachers
and non-teaching staffs in the aided school can only be made on the
recommendation of the Commission in a case where such appointments are after
the commencement of the said Act but the appointment made by the managing
committee prior in time i.e. before the advent of the said Act, the protection
was given with regard to the service condition which should not be varied to
their disadvantages. Therefore, in our opinion, there is no consistency and/or
incongruity in operation of Section 10, 10A, 10B and 10C concurrently as they
do not override each other in the fields of its operation.”
7.
The
Teachers cannot claim vested right
against transfer in public employment.
“It is inconceivable that a teacher
appointed in a school would remain in such school eternally and the Government
would not place such teacher from such school to another in a larger interest
of the education or in public service. 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. It is no doubt true that the right to
life recognised under Article 21 of the Constitution can be visualised as a
radical transformative character of the Constitution. The deprivation of a
right conferred under Article 21 of the Constitution by a prescribed procedure
of law must with stand on the principle of fairness, justness and
reasonableness and must confirmed to the norm of justice and fair
play…[however] 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.”
8.
The Division bench held,
“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. In every transferable
service, if a person is transferred from one place to another, he may contend
that his dignity is impaired as steadiness and he is entitled to live a life in
stress-free atmosphere; and in such event none of the employee in the public
employment would be transferred from one place to another. 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 can be declared ultra
vires to the constitution.”
- Case Laws referred:
1.
Prem
Beharilal Saksena vs. Director of Medical & Health Services, Lucknow &
Ors., AIR 1959 All 629.
2.
Kavi Raj & Ors. vs. State of Jammu &
Kashmir & Ors. (2013) 3 SCC 526.
3.
General Officer Commanding-in-Chief & Anr.
Vs. Dr. Subhash Chandra Yadav & Anr., (1988) 2 SCC 351.
4.
K. C. Gajapati Narayan Deo & Ors. vs. State
of Orissa, AIR 1953 SC 375.
5.
Monnet Ispat & Energy Ltd. vs. Union of
India & Ors.,(2012) 11 SCC 1.
6.
Olga Tellis & Ors. vs. Bombay Municipal
Corporation & Ors.AIR 1986 SC 180.
7.
Chameli
Singh & Ors. vs. State of U.P. & Anr., reported in (1996) 2 SCC 549.
8.
Dr. Ashok vs.Union of India & Ors.,
reported in (1997) 5 SCC 10.
9.
Federal Bank Ltd. vs. Sagar Thomas & Ors., AIR
2003 SC 4325.
10. Kerala
Sate beverages Manufacturing & Marketing Corporation Ltd. vs. Assistan
Commissioner of Income Tax Circle 1(1),(2022) 42 4 SCC 240.
11. Sunil
Kumar Kori & Anr. vs. Gopal Das Kabra & Ors.,(2016) 10 SCC 467.
12. Shiv
Kumar Sharma vs. Santosh Kumari, (2007) 8 SCC 600.
13. Controller
of Estate Duty, Gujarat I, Ahmedabad vs. M.A. Merchant, & Ors., (1989) supp
(1) SCC 499.
14. G.J.
Raja vs. Tejraj Surana, reported in (2019) 19 SCC 469.
15. Punjab
State Cooperative Agricultural Development Bank Ltd. vs. Registrar, Cooperative
Societies & Ors., (2022) 4 SCC 363.
16. Indian
Administrative Service (S.C.S) Association, U.P. & Ors. vs. Union of India
& Ors., reported in (1993) supp (1) SCC 730. .
17. ITO
vs. M.C. Ponnoose (1969) 2 SCC 351.
18. Rao
Shiv Bahadur Singh & Anr. vs. State of Vindhya Pradesh AIR 1953 SC 394.
19. J. K. Cotton Spinning & Weaving Mills Co.
Ltd. vs. State of Uttar Pradesh & Ors.AIR 1961 SC 1170.
20. A.
P. Dairy Development Corporation Federation vs. B. Narasimha Reddy & Ors., 2011
AIR (SC) 3298.
21. Associated
Provincial Picture Houses, Ld. Vs. Wednesbury Corporation., 1947 (2) All E R
680 CA.
22. Supreme
Court Advocates-on-Record Association & Anr. vs. Union of India, (2016) 5
SCC 1.
23. State
of T. N. & Anr. vs. P. Krishnamurthy & Ors. reported in (2006) 4 SCC
517.
24. T.M.A
Pai Foundation & Ors. vs. State of Karnataka and Ors.,(2002) 8 SCC 481.
25. Ramapada
Das & Anr. vs. State of West Bengal & Ors (2008) 2 CHN 994.
26. State
of West Bengal & Ors. vs. Smritikana Maity & Ors.(2008) 1 CHN 582.
27. Roshan
Lal Tandon & Anr. vs. Union of India, reported in AIR 1967 SC 1889.
28. Christian
Medical College Vellore Association vs. Union of India & Ors., (2020) 8 SCC
705.
29. Sk.
Mohd. Rafique vs. Managing ommittee, Contai Rahamania High Madrasah & Ors.,(2020)
6 SCC 689.
30. Sk.
Nausad Rahaman & Ors. vs. Union of India & Ors, (2022) 12 SCC 1.
31. Trimbak
Damodhar Raipurkar vs. Assaram Hiraman Patil & Ors., AIR 1966 SC 1758.
32. M/s. New India Sugar Works vs. State of U.P.
& Ors., reported in (1981) 2 SCC 293.
33. Ramapada
Das & Anr. Vs. State of West Bengal & Ors., (2008) 2 CHN 994.
34. Supreme
Court Advocateson-Record Association & Anr. Vs. Union of India, (2016) 5
SCC 1.
35. Akhil
Bharatiya Upbhokta Congress vs. State of M adhya Pradesh & Ors reported in
(2011) 5 SCC 29.
36. Ashwini
Kumar Upadhyay vs. Union of India & Anr., reported in (2023) 5 SCC 668.
37. Rao
Shiv Bahadur Singh & Anr. Vs. State of Vindhya Pradesh, AIR 1953 SC 394.
38. J.K.
Cotton Spinning & Weaving Mills Co. Ltd. vs. State Uttar Pradesh &
Ors., AIR 1961 SC 1170.
39. Income
Tax Officer, Allepply vs. M.C. Ponnoose & Ors.,(1969) 2 SCC 351.
40. Indian
Administrative Service (S.C.S) Association, U.P. & Ors. vs. Union of India
& Ors.,1993 Supp. (1) SCC 730.
41. Commissioner
of Income Tax (Central)-I, New Delhi vs. Vatika Township Private Limited,
reported in (2015) 1 SCC 1.
42. G.J.
Raja vs. Tejraj Surana, reported in (2019) 19 SCC 469.
43. Trimbak
Damodhar Raipurkar vs. Assaram Hiraman Patil & Ors. AIR 1966 SC 1758.
44. New
India Sugar Works Etc. vs. State of U.P & Ors., (1981) 2 SCC 293.
45. Controller
of Estate Duty, Gujarat I, Ahmedabad vs. M.A.(1989) 1 SCC 499.
46. Maneka
Gandhi vs. Union of India reported in (1978) 1 SCC 248.
47. Olga
Tellis & Ors. vs. Bombay Municipal Corporation & Ors. reported in AIR
1986 SC 180.
48. Chameli
Singh & Ors. vs. State of U.P. & Anr. reported in (1996) 2 SCC 549.
49. Dr.
Ashok vs. Union of India & Ors. reported in (1997) 5 SCC 10.
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