West Bengal School Service Commission Act - Supreme Court Restricts Retrospective Application Of Provision Enabling State Govt To Transfer Teachers

A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was hearing a special leave petition challenging a July 2023 ruling of the Calcutta High Court upholding the constitutional validity of Section 10C of the act. Teachers from state-aided schools had assailed the provision in the high court, asserting that their transfers under Section 10C were illegal.

After issuing notice last month, the court has now issued a limited stay on the retrospective application of Section 10C, clarifying that it will apply only to those teachers who were appointed after the amending act was passed by the state legislature. At the same time, the court has also clarified that teachers appointed prior to 2017 can continue being transferred to neighbouring schools in the same district. The order states:

“The shifting of teachers in neighbouring school in the same district can carry on but not otherwise. This will be applicable to the teachers who have been appointed prior to the Section 10C coming into force. Interim protection will be applicable only to such of teachers who were appointed prior to Section 10C coming into force and the respondents are free to make the necessary transfers for the teachers appointed post the said section coming into force.”

The petitioners were represented by Senior Advocate Mukul Rohatgi who was assisted by Advocate-on-Record Sarad Kumar Singhania.

Background

The current controversy is over Section 10C of the West Bengal School Service Commission Act, 1997, which was introduced by way of an amendment in 2017. This provision allows the state government to direct the West Bengal School Service Commission to effect the transfer of teachers and non-teaching staff members “in the interest of education or in the interest of public service for administrative reasons”.

The constitutionality validity of this section was challenged in a clutch of petitions filed by teachers appointed in a different aided school within the state assailing the order of transfer or placement of service from one school to another school. The two-pronged contention against this section was that the legislature had impinged upon service conditions protected under Section 10 of the act, and that it could not be applied retrospectively since service conditions would be varied to the teachers’ disadvantage. The Calcutta High Court, however, upheld the constitutional validity of Section 10C, holding that such transfers did not infringe on their right to life under Article 21 of the Constitution. Transfers, the bench of Justices Harish Tandon and Justice Prasenjit Biswas held, is a part of public employment, and as long established legal procedure is followed while ordering such transfers, the fundamental right to life would not be violated.

The court also rejected the claim that Section 10C was inconsistent with Section 10 of the West Bengal School Service Commission Act. It found that the introduction of the new provision was a legitimate exercise of legislative power, meant to ensure the uniform quality of education and eliminate malpractices in teacher appointments, and was not unreasonable or arbitrary.

Several people and organisations, including the Secondary Teachers and Employees Association (STEA), have challenged the Calcutta High Court’s order in a special leave petition in the Supreme Court.

Case Title

Secondary Teachers and Employees Association & Anr. Etc. v. State of West Bengal & Ors. Etc. | Special Leave Petition (Civil) No. 18894-18918 of 2023

Click here to read the order