'Why Does School Teacher Have To Seek NOC With Folded Hands?": Calcutta High Court On Repeated Non Issuance of NOC For Transfer

The Calcutta High Court on Monday came down heavily on a school and its Headmistress for deliberately refusing to issue a No-Objection Certificate (NOC) and a release order to a teacher who had sought leave to get transferred to another school on health grounds. The Court also instructed the concerned Headmistress to vacate her post and accordingly demoted her to the post of an assistant teacher in the school.

The Court also took note of the fact that the application for issuance of a NOC had been pending for almost 2 years and accordingly directed the school authorities to immediately issue a release order to the concerned teacher.

Severely reprimanding the school authorities for denying the requested NOC to the teacher, Justice Abjijit Gangopadhyay observed,

"What surprises me as a judge of this court that in a democratic country like ours when a person like the school teacher is seeking no-objection certificate from the school which he/she is entitled under the law and when the school is mandated by the law to issue no-objection certificate why a school teacher has to write to the Headmistress with folded hands unless the Headmistress time and again has denied to give NOC and unless she has posed herself a feudal head of some fiefdom in this country that a teacher has to pray for a no-objection certificate in folded hands!"

The Court added further,

"Such a mischievous headmistress is wholly unfit as a Headmistress of the school and the headmistress who is to issue the release order has actually violated the law and further the constitutional right of a citizen who can maintain his writ application in the High Court. She has even filed a frivolous writ application which is nothing but abuse of process of justice, to stall the transfer of the teacher. She cannot be allowed to act as a Headmistress of the school."

The Court thus ordered the assistant headmistress to assume the responsibility of the headmistress of the concerned school.

In the instant case, the concerned teacher had been provided with a transfer order by the West Bengal Board of Secondary Education (WBBSE) for transfer from the Gandhi Memorial Girls High School to Digra Mallickhati Deshbandhu Vidyapith. However, despite such a transfer order, the authorities of the Gandhi Memorial Girls High School had refused to issue a release order/NOC to the concerned school teacher.

The Court at the outset noted that the school and its Headmistress had made a 'nasty effort' in not issuing the NOC to the school teacher for her transfer. The Court also impleaded another petition moved by the School and its Headmistress against the State and its functionaries such as the Commissioner of School Education and the WBBSE. Infuriated at the filing of such a 'frivolous petition', the Court remarked,

"This application is absolutely (I repeat, absolutely) a frivolous and mischievous one and want of bona fide is writ large in each line of the writ application"

Furthermore, it was also pointed out to the Court that the school teacher wanted to withdraw the instant plea moved by her because the concerned school authorities had instructed her to do so otherwise the release order sought would not be granted to her.

"By taking such an arm-twisting method for withdrawal of the teacher's writ application and for other illegalities stated above the Headmistress has (1) deliberately violated the law (2) has abused the process of the justice of this country and (3) has pressed a citizen, the teacher, to withdraw her writ application for issuing release order, as a bargain, from the school and thereby violated the liberty granted the constitution of this county to a citizen, here the teacher by using the arm-twisting method", the Court remarked.

Referring to the written submission of the School and its Headmistress, the Court observed with anguish that the authorities had 'taken pride' in not issuing a NOC to the school teacher. The Court further referred to Rule 6(3) of the West Bengal Central School Service Commission (General Transfer, Transfer on Special Grounds and Reallocation) Rules, 2015 which mandates the head of an institution to provide a NOC to a teacher seeking a general transfer.

"The word 'shall' has been used in the said Rule 6 (3). This mandate of the said rules has been blatantly, shamelessly and deliberately violated by the Headmistress of the School", the Court added further.

Furthermore, the Court further took note of the fact that the teacher had submitted a host of genuine reasons for seeking such a transfer such as- (a) the distance of the school from the residence of the teacher being more than 200 kilometers; (b) The teacher has been suffering from complicated gynecological disease and has undergone operations for such disease; (c) she delivered a child in the year 2016 i.e. on the date of application for no objection the child was aged about 3 (three) years and finally (d) The teacher's cancer antigen result report was of a higher level than that of referral range.

"The teacher supplied her all treatment papers twice to the school and on demand of the school again from Government hospital as stated in her writ application and not denied by the school in its affidavit-in-opposition. Even then No Objection was not given by the Headmistress of the school, who is the Secretary of the Managing Committee of the school", the Court observed further.

Before the Court the respondent school had argued that the concerned teacher had previously made an application for mutual transfer which was allowed by the Managing Committee of the school and that in the instant case, a NOC has been sought for a second transfer which is forbidden by law.

Dismissing such a contention, Justice Gangopadhyay opined,

"Surprising fact here is the school has not disclosed in its writ application any such application by the teacher for mutual transfer nor it has shown the no-objection certificate, if any, that was issued to the teacher by the school. Learned advocate for the school has submitted repeatedly that for mutual transfer no-objection certificate is not required. But he has failed to show any such rule as to mutual transfer where there is no mentioning of no-objection certificate. In fact he has not placed the Mutual Transfer Rules at all before this court despite direction given to him more than once by this court in the course of hearing"

Thus, the Court dismissed the impleaded plea moved by the School and the headmistress after observing that the plea had been filed only to harass the concerned teacher and to cause further delay in the issuance of the NOC.

"Except for harassing the teacher who has prayed with folded hands before the said feudal head in the form of a headmistress for issuance of a no-objection certificate there was no other object for filing such a frivolous writ application by the school. The question of issuance of No Objection is thus pending almost 2 (two) years. The school wanted to cause delay relating to the transfer of the teacher by filing such a frivolous writ application which they have been able to do successfully for last almost 2 (two) years. The Headmistress, I hold therefore, has abused the process of justice of this country beside deliberately violating the law"

The Court also imposed costs to the tune of Rs. 20,000/ on the school authorities which was directed to be paid to the school teacher within 2 weeks.

Justice Gangopadhyay also admonished the recurrent practice of not issuing no objection certificates to school teachers. Accordingly, a direction was passed in this regard to curb such a practice.

"Today, I feel, a direction is required to be passed for all the schools in respect of which the general transfer or mutual transfer is applicable to issue the no-objection certificate to the teachers who will file application for no-objection, within a period of four weeks from the date of receiving of such application by a school unless issuance of such no-objection certificate is barred by law. There is no rule within which period the no-objection is to be issued by a school to the intending teacher who want a transfer and for this reason this provision is made and as soon as any appropriate rule in this respect would be framed and given effect to by the State, this general direction will automatically become inoperative"

Accordingly, the Registrar General was directed to send a copy of the order to the Principal Secretary of School Education Department to ensure its immediate circulation in all schools through the District Inspectors of Schools (Secondary Education).

Case Title: Gandhi Memorial Girls' High School & Anr v. The State of West Bengal & Ors.

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