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Judgment
CAN 8407 of 2016 is an application for stay, filed in the intra-court writ appeal, tendered vide MAT 1508 of 2016. The appeal is directed against the
final order of June 20, 2016 passed by a learned Judge of this Court, whereby a writ petition [W.P. 10552 (W) of 2016] filed by the first respondent in
the appeal (hereafter the writ petitioner) was disposed of on the first day the same was moved with mandatory directions on the present appellants to
issue release order in favour of the writ petitioner so that she could join Uttar Rabindranagar Vivekananda High School, (H.S.) pursuant to an offer of
appointment dated May 23, 2016, issued in compliance with an order dated March 30, 2016 of the Chairman, West Bengal Central School Service
Commission (hereafter the chairman).
The latter order was passed by the chairman, acting in compliance with an order dated January 22, 2016 passed by the Hon’ble Supreme Court in
Special Leave Petitions (Civil) Nos.29563-29565 of 2015. While not interfering with the impugned order before it, the Hon’ble Supreme Court
made it clear with the direction of the Division Bench of this Court to the petitioner before it, i.e. the West Bengal Central School Service Commission
(hereafter the central commission), “to take an appropriate decision shall mean that the petitioner shall take such decision in accordance with the
rules in forceâ€.
Despite the order dated March 30, 2016 of the chairman and the appointment letter that was issued in favour of the writ petitioner by the authorities of
Uttar Rabindranagar Vivekananda High School (H.S.), the present appellants, who are the Secretary and the Teacher-in-Charge of Barhra High
School, where the writ petitioner is a teacher since long, did not issue the release order. In fact, they have subjected the order of the chairman dated
March 30, 2016 to challenge, by filing a writ petition W.P. 18505 (W) of 2016 dated August 31, 2016. The said writ petition is said to be pending.
Mr. Bhattacharya, learned advocate appearing for the appellants contends that the order under challenge in this writ appeal is in the teeth of the
decision of the Hon’ble Supreme Court in Bar Council of India -vs.- Ram Chandra Prasad, reported in (2010) 15 SCC 770 and a coordinate
Bench decision of this Court in Satpalsa High School â€"vs.- Krishna Ram Bhattacharya, reported in 2018 (1) CHN (CAL) 222. According to him,
the writ petition could not have been disposed of with mandatory directions without service of further notice in terms of Rule 26 of the Rules framed
by this Court relating to applications under Article 226 of the Constitution of India (hereafter the Writ Rules).
It is his further submission that the order of the chairman dated March 30, 2016 was not passed in accordance with “the rules in forceâ€, as
directed by the Hon’ble Supreme Court in the order dated January 22, 2016, which is the West Bengal Central School Service Commission
(General Transfer, Transfer on Special Grounds and Reallocation) Rules, 2015 (hereafter the 2015 Rules) and is, thus, not sustainable in law. It is
contended by him that the writ petitioner had not applied for transfer in accordance with the 2015 Rules and, therefore, no order could have been
passed granting her prayer for transfer; and if the appellants were given due opportunity to contest the writ petition, the infirmities in the order of the
chairman could have been shown to the learned Judge and Her Ladyship could be dissuaded from granting any relief to the writ petitioner.
Our attention has also been drawn by Mr. Bhattacharya to Rule 6(3) of the 2015 Rules, which requires issuance of a no objection certificate from the
appellants prior to the teacher seeking transfer being recommended for general transfer. According to him, without even a no objection certificate
issued by the appellants the writ petitioner was recommended for transfer which is in clear breach of the 2015 Rules.
Mr. Sanyal, learned advocate representing the writ petitioner, however, invited our attention to the order passed by a coordinate Bench of this Court
dated July 23, 2015 in MAT 940 of 2015 and the subsequent order dated January 22, 2016 of the Hon’ble Supreme Court, referred to above, on
the special leave petition which was presented challenging such order. It is his submission that in view of the terms of the said orders, the chairman of
the central commission had no other alternative but to grant the prayer of the writ petitioner for transfer and such order having been made upon duly
considering “the rules in force†at the time, the learned Judge was perfectly justified in disposing of the writ petition with mandatory directions,
particularly when the appellants chose to stay away from the proceedings despite service of notices on them.
Having heard learned advocates for the parties at some length on the merits of the rival claims, we are of the considered opinion that the writ petition
[W.P. 10552 (W) of 2016] ought to be remitted for de novo consideration upon the appellants, who are the respondents 5 and 6 therein, being
extended due opportunity to contest it by filing a counter affidavit. The points raised by the appellants do appear to have some substance, which
require examination by the learned Judge of the writ court. The primary reason for which we feel inclined to interfere with the judgment and order
under challenge is because of breach of Rule 26 of the Writ Rules.
Even though notices were served on the appellants prior to moving of the writ petition and they did not appear, in terms of the explanation to Rule 26,
it was the duty of the writ court to issue one further notice to the appellants. The Writ Rules have been duly considered by the Hon’ble Supreme
Court in the decision in Ram Chandra Prasad (supra), as well as by the coordinate Bench in Satpalsa High School (supra). There being, prima facie,
an arguable case set up by the appellants to the effect that the 2015 Rules were observed in the breach by the chairman of the central commission,
which is also the subject-matter of the pending writ petition, we are of the considered view that interest of justice would be best served if on revival of
W.P. 10552 (W) of 2016, it is heard analogously with W.P. 18505 (W) of 2016.
For the reasons aforesaid, the judgment and order under challenge stands set aside. The appeal and the application stand disposed of, without costs.
Let counter affidavits to the writ petitions be filed by the respective respondents within 4 weeks from date; reply thereto, if any, be filed by 2 weeks
thereafter. We record that the parties have agreed not to seek unnecessary adjournments before the learned Judge when both the writ petitions are
listed for consideration. Having regard to the plight of the writ petitioner, we request the learned Judge of the writ Court to decide the writ petitions as
expeditiously as possible, subject to His Lordship’s convenience. Photostat certified copy of this order, if applied for, be furnished expeditiously.