Kazi Firoz Hossain vs State Of West Bengal & Ors

This appeal is arising out of a judgment and order passed by a learned Single Judge in WP 21634 (W) of 2019 filed by the appellant challenging, inter alia, an order dated 14th November, 2019 passed by the respondent no.5 by which the appellant was released from his present posting as a head teacher.

Mr. Subir Sanyal, learned counsel appearing on behalf of the appellant submits that although the nomenclature of the order by which the appellant was released from the post has been described as a release but, in effect, it is an order of transfer. He has drawn our attention to Rule 6 sub-rule (2) of the West Bengal Primary Education (Transfer of Teachers including Head Teacher) Rules, 2002. In support of his contention that the appellant had attained the age of 57 years, the appellant could not have been transferred to any other institution from his present post even under proviso to Rule 4 of the said Rules. Mr. Sanyal submits that in proviso to Rule 4, the Council may if it considers necessary for proper utilisation of service of a primary teacher in the interest of education transfer an approved teacher without maintaining any time limit of service has to be read harmoniously with Rule 6(2) of the said Rules of 2002. It is submitted that Rule 5 of the said Rules of 2002 deals with procedure for transfer. The appellant has not voluntarily asked for transfer. The appellant could not have been transferred under the garb of release order for an ulterior purpose. Mr. Sanyal also submits that the said transfer is in effect punitive.

Learned counsel for District Primary School Council, Paschim Medinipur, supports the order of release. Learned counsel has submitted that the reason for release order is clearly reflected in the order itself. The said release order was issued by the Chairman, Paschim Medinipur District Primary School Council, on consideration of all the materials on record. The Chairman has directed the appellant to act as a head teacher of Kultikri Primary School under Sadar Rural Circle immediately for interest of education and for maintaining the good atmosphere of the education of the school. It is submitted that since the materials are on record and it is a view possible that the Chairman could have formed under the facts and circumstances the said order cannot be held to be arbitrary.

It is clearly shocking that for a school having eight children, the State exchequer has been misused towards the salary and emoluments of six teachers including the appellant/writ petitioner as a head teacher. The teacher student ratio was dwindling over a period of time. It is reflected from the representations of the appellant in the year 2015 and 2016 that the strength of the students have been drastically reduced. Conspicuous silence has been maintained by the respondent authorities regarding the allegations made by the appellant against some of the assistant teachers creating impediments in smooth running of the school. In fact, the respondent authorities seem to have disregarded a communication addressed to the Chairman, District Primary School Council, Paschim Medinipur, dated 27th August, 2019 by which the Chairman, District Primary School Council, Paschim Medinipur, was requested to submit a proposal of temporary transfer of those teachers at other schools with greater enrolment within three days. The said direction was passed consequent upon a prayer of Sk. Fazrul Rahaman and others, guardians of students of Mursedia Adarsha Primary School regarding allegation against transfer of teacher of the said school.

Learned counsel for the District Primary School Council, Paschim Medinipur, has drawn our attention to the Acts and Rules of the Right of Children to Free and Compulsory Education Act, 2009 to show that a head teacher is required only when student strength for first class to fifth class is above 150.

It is unfortunate that the respondent authorities who are supposed to be conversant with the provision of the said Act allowed a situation to continue which is detrimental not only to the interest of the students but also has indulged misuse of State fund.

However, the fact remains that in 2015-16 the student strength was 43 only. Notwithstanding the same, five teachers and one head teacher are allowed to continue and the students were completely neglected, as the midday meal facilities have not been continued. The respondent authorities were completely oblivious of what is happening in the institution and did not even look into the complaints made by the appellant against some of his colleagues. Surprisingly, in the order of 14th November, 2019, there is no reference to the Act of 2009 and the appellant was only picked up and transferred to Kultikri Primary School without really ascertaining who are responsible for unhealthy atmosphere prevailing in the school. In fact, the material on record suggests that the recommendation of transfer was in relation to other teachers and not with regard to the appellant. The school is having at present four teachers as the head teacher has been released. The appellant has stated in his representation as early as in 2015 that he was suffering from heart ailment. This fact, however, has been ignored by the Chairman while disposing of his representation. The Chairman has been swayed by the representation made against the head teacher by other assistant teachers of the institution without ascertaining the real truth. The Chairman seems to have also disregarded the communication passed by the District Education Officer, SSM, Paschim Medinipur, dated 27th August, 2019. This communication is also not reflected in the order of the Chairman.

As it emanates from the representations made by the appellant herein, in the year 2016, the roll strength of Mursedia Adarsha Primary School was 43 and gradually the roll strength has decreased to 8 in 2019. In consideration of the schedule to the Right of Children to Free and Compulsory Education Act, 2009, only two primary teachers can be retained in the said school at present. It appears excluding the appellant herein, there are five Assistant Primary Teachers working in the school. On proper consideration of the present roll strength as well as schedule to the Act of 2009 the Chairman, Paschim Medinipur District Primary School Council ought to have transferred the excess teachers, (in excess of two) to other primary schools of the district instead the appellant being the approved head teacher of the school, has unnecessarily been penalized by transferring him to Kiltikri Primary School though he has crossed 57 years of age thereby his case could have been considered in terms of Rule 6(2) of the West Bengal Primary Education (Transfer of Teacher including Head Teacher) Rules, 2002.

On perusal of the impugned order dated 14th November, 2019 passed by the Chairman, Paschim Medinipur District Primary School Council, it appears apart from other factual aspects the appellant was transferred since the roll strength of the school over the years dwindled to 8 in 2019. It is clear as crystal that as per schedule to the Act of 2009 only two Assistant Primary Teachers should be promoted to man, the said primary school. It is within the domain of the concerned authorities of the Education Department to take appropriate decision and to identify the said two teachers would be permitted to continue to serve as Assistant Primary Teachers in Mursedia Adarsha Primary School. The said schedule to the Right of Children to Free and Compulsory Education Act, 2009 went unnoticed as it transpires from the impugned order dated 14th November, 2019 passed by the Chairman of Paschim Medinipur District Primary School Council for the respondent no.5 herein. Apart from addressing the acrimony amongst the teachers of the said school it was required to be taken care of in the light of the schedule to the said Act of 2009, which teacher and how many could be retained in the school. The said respondent no.5 made an attempt to transfer the appellant herein to another school relying upon the allegations mad by other Assistant Primary Teachers of the said school which was unwarranted.

In view of the discussions made hereinabove, the impugned order dated 14th November, 2019 by the respondent herein is set aside and we find it fit to direct the Principal Secretary, Department of Education, Government of West Bengal, being the respondent no.1 herein for de novo consideration of the number of teachers required at the Mursedia Adarsha Primary School on the basis of the schedule to the Right of Children to Free and Compulsory Education Act, 2009 as well as the relevant provisions pertaining to transfer of primary teachers as provided in the West Bengal Primary Education (Transfer of Teacher including Head Teacher) Rules, 2002. It is made clear that while considering the issue if the Principal Secretary decide to retain two Assistant Primary Teachers in Mursedia Adarsha Primary School in that event inter se seniority of the teachers working in the said school would be given credence. Before taking final decision the Principal Secretary shall give opportunity of hearing to the appellant alongwith other Assistant Primary Teachers of the school as well as the District Inspector of Schools (Primary Education), Paschim Medinipur and the Sub-Inspector (Sub-Inspector of the schools of the concerned circle). It is open to the Principal Secretary to get opinion or to hear representative of the respondent no.5 prior to disposing of the issue. The Principal Secretary shall pass a reasoned order and the same shall be communicated to the appellant and other teachers of the school. The entire exercise shall be completed by the Principal Secretary within the period of 12 weeks from the date of communication of the order. The Principal Secretary shall pass independent order not being influenced by the previous orders of the concerned respondent authority.

While hearing the appeal, we have been informed that the midday meal programme has abruptly been stopped in Mursedia Adarsha Primary School which is seriously viewed by this Court. We direct the Chairman, Paschim Medinipur District Primary School Council as well as Sub-Inspector of Schools (PE) Sadar Urban-I Circle to take immediate steps for ensuring commencement of midday meal programme as well as to ensure increase in the strength of the student, if require, by creating awareness in and around the concerned circle and in this regard the authorities are at liberty to take necessary decision.

Accordingly, the appeal and the applications stand disposed of upon treating the same on day's list with the consent of the parties.

Urgent photostat certified copy of this Judgment and order, if applied for, be supplied to the parties, upon compliance of necessary formalities.