Transferring School Teacher Not Violation Of Right To Life, Dignity: Calcutta High Court Upholds Provision Under WBSSC Act

The Calcutta High Court has upheld the constitutional validity of Section 10C of the West Bengal School Service Commission Act, 1997 (“1997 Act”) which was introduced vide an amendment in the year 2017 enabling transfer of a teacher from one school to another.

A division-bench of Justice Harish Tandon and Justice Prasenjit Biswas were assigned to decide the common question of constitutional validity that had arisen in several writ petitions, pending before different benches.

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. 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.”

The argument made by counsel for the petitioners were classified into two heads: firstly, Section 10C impinge on the rights of teachers under Section 10 of the Act. 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.”

It was argued that taking 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.

One batch of petitioners submitted that the appointment of teachers in government aided schools was distinct from other services of the Government. It was argued that 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.’

It was argued that the 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.

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:

“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.”

Another batch of petitioners submitted that 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.”

Other arguments were advanced including those on Section 10C being an exercise of colourable legislation, inherent unreasonableness of the enacting provision, as well as the fact that 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.

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.

Advocate-General S.N. Mookherjee for the State Respondents inter alia submitted that the right to legislate in the field of education had been given to the State by the Constitution.

It was argued that 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.

It was further argued by the 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.

It was finally argued that 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.

The Advocate General concluded: “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. 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. 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. 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. Mere apprehension to abuse the provision of the newly inserted Section cannot be a ground to render such provision unconstitutional.”

Likelihood of misuse does not render legislation constitutionally invalid

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. It was opined:

“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.

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.”

The Court clarified that the 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)”

No arbitrariness or unreasonableness in enacting Section 10C

In deciding that there existed no arbitrariness in the introduction of Section 10C into the 1997 Act, the Court delved into the role of teachers in the education ecosystem, and held that teaching being a role of ‘public employment’ carried with it certain responsibilities, including transfer during service. It opined:

“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.”

It was further held that 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.

‘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.”

The Court reiterated, that apposite to the claims made by the petitioners, the protection under Section 10, would be only available to those who had been in service prior to the promulgation of the 1997 Act, and not for those who subsequently became employed after its enactment.

Finally, having upheld the validity of Section 10C of the 1997 Act, the Court considered the “academic question” of whether Section 10C would have retrospective effect on the “vested right” of transfer which had accrued to teachers under Section 10 of the Act. It was held that

“We have already held in the preceding paragraph that Section 10 of the said Act applies within the limited contour i.e. the condition of service of a teacher appointed prior to coming into force of the Act of 1997 and not in respect of the appointments made after coming into force of the said Act, the further reason can be supplied in support of the aforesaid discussion that every employment in a public service are contractual but such service conditions are governed by the statutory Act or the Rules framed in this regard and the concept of contractual service loses its existence. Obviously, Section 10C cannot be operated retrospectively to the extent that it cannot impinge upon the terms and conditions of the service of the teachers appointed prior to the promulgation of the School Service Commission Act.

At best we find that a right is created into teachers appointed prior to coming into force of the School Service Commission Act and such right has been protected under Section 10 of the said Act provided it varies the terms and conditions of service to their disadvantages. After the promulgation of the School Service Commission Act the appointment of the teachers in the aided school can only be made by the Board on the recommendation of the Commission. The teachers cannot claim a vested right on transfer in a public employment which is always regarded as a incident of service. We thus do not find that the teachers appointed after coming into force of the School Service Commission Act can claim a vested right or the existing right vis-a-vis the terms and conditions of the service.”

Teachers cannot claim vested right against transfer in public employment

On the aspect of the counselling process having vested teachers with the right to remain in the school which they had been initially allotted, and any transfer thereafter violating their right to life under the Constitution, the Bench concluded:

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.”

Case: Rabin Tudu vs. State of West Bengal & ors and connected applications

Coram: Justice Harish Tandon and Justice Prasenjit Biswas

Citation: 2023 LiveLaw (Cal) 199

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