All schools to issue No-Objection Certificate for general/mutual transfer within four weeks to teachers who file such an application unless barred by law: Calcutta High Court

The High Court at Calcutta before the Hon’ble Justice Abhijit Gangopadhyay removed the Headmistress of the Gandhi Memorial Girls’ High School from her position, and thereby, denuded the Headmistress of the school from all her powers, demoting her to act as the Assistant Teacher of the school, in the matter of Aparna Munshi vs. State of West Bengal & Ors. [W.P.A. 17159 of 2019] with Gandhi Memorial Girls’ High School & Anr. vs. The State of West Bengal & Ors. [W.P.A. 6598 of 2021].

Abiding by its order dated 07.04.2021, the Hon’ble Court took up two writ applications together, since both the matters related to the transfer of a lady teacher from her present school to another school which had been pending for almost two years.

In the first writ application, the teacher (petitioner) had submitted a transfer request to the authorities for getting transferred from Gandhi Memorial Girls’ High School to Digra Mallickhati Deshbandhu Vidyapith, which was initially ordered by the transfer authorities. Soon, this was withdrawn after a fresh order dated 30th July 2021, was passed by the WBBSE, through which the transfer was permitted from Gandhi Memorial Girls’ High School to Rabindra Smriti Vidyaniketan, wherein the petitioner could join, but the release order was not being given to her by the school. Subsequently, when the petitioner tried to withdraw the writ application, it was cited by her that if she did not withdraw the same, then her release order shall not be granted by the school.

Considering the circumstances surrounding the case, the Hon’ble Court directed the authority of the school to issue the release order to the petitioner, who would then approach the other school where she had been transferred to, as per the order of WBBSE. The Court also stated that the school and the Headmistress “has made a nasty effort”  in not issuing the no-objection certificate to the teacher (a Lady).

Moving on to the other related matter, wherein a writ application was filed by the School and its Headmistress against the State and its functionaries like the Commission of School Education and the WBBSE, etc. The Hon’ble Court found this writ to be absolutely “a frivolous and mischievous one and want of bona fide”. On being asked to the learned advocate for the school about the right-duty relationship between the school and the transferring authorities of a teacher, and the right of the school to object as to the transfer of the teacher and the corresponding legal duty of the concerned authorities, the advocate failed to show any such right and corresponding legal duty. According to the school, as provided in the writ application, they said that they had never issued a no-objection certificate. It has also been brought to the notice of the Hon’ble Court, a letter written by the teacher to the Headmistress which stated that she had “many often with folded hands” requested for the issuance of the no-objection certificate, but all in vain.

The Hon’ble Judge of the High Court even exclaimed, “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!” His Lordship brought into notice the provision to Rule 6(3) of the West Bengal Central School Service Commission (General Transfer, Transfer on Special Grounds and Relocation) Rules, 2015, which stated that the Head of the Institution, the Secretary of Managing Committee or the Administrator of the concerned school “shall issue No Objection Certificate to an incumbent to be recommended for General Transfer under these regulations.” The Headmistress did not deny such representation that had been made by the teacher.

The teacher had cited valid reasons for her transfer request, which included that she resided at a distance of more than 200 kilometers from the school, had been suffering from complicated gynecological disease and had undergone operations for the same, had delivered a child who was about three years old when she applied for the no-objection certificate, and that, her cancer antigen result was of a higher level than that of referral range. Despite submitting all her treatment papers from the Government hospital, her no-objection certificate was not given by the Headmistress of the school, who was also the Secretary of the Managing Committee of the school. As per Rule 6(3) of the Rules, 2015, mentioned above, the Hon’ble Court that the mandate of the rules “had been blatantly, shamelessly and deliberately violated by the Headmistress of the School.” Also, despite several directions of placing the Mutual Transfer Rules, the learned Advocate for the school had failed to do so. The school had also issued a counterpart with the name of the teacher in its resolution, which has been done before the decision of the appropriate authority of the Education Department of the State.

Thus, the Hon’ble Justice Abhijit Gangopadhyay held that the school did not even have any cause of action to move such writ and any locus to file such writ application. Adding to that, His Lordship also went to the extent of stating that, “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 school has successfully caused a delay relating to the transfer of the teacher by filing such a “frivolous” writ application for the last two years. The Headmistress, according to the Hon’ble Court, abused the process of justice of the country besides deliberately violating the law.

The Court interpreted the Headmistress’ behavior as an “arm-twisting method”, and that, the Headmistress has abused the process of the justice of this country, and has pressed a citizen, i.e., the teacher, to withdraw her writ application for issuing release order, as a bargain for the school and thus, violated the liberty granted by the Constitution of India to a citizen, by using the “arm-twisting method”.

The Hon’ble Court, thus, dismissed the writ application mentioning it as “mischievous in nature” and “wholly frivolous to harass the teacher”. It also stated that such a mischievous Headmistress is wholly unfit as the Headmistress of the school, as she has not only violated the law, but also the constitutional right of a citizen, along with filing a frivolous writ which is nothing “but abuse of process of justice” to stall the transfer of the teacher

Thus, the Court exercised the writ court’s plenary power to denude the Headmistress from all her powers as the Headmistress of the school, and thereby, removed from the post of the Headmistress of the school. Henceforth, the Court ordered that she would act as an assistant teacher of the school and shall be taking classes like other assistant teachers. If there is an assistant headmistress, she would be performing the duty of the headmistress of the school, or in case there is no assistant headmistress, the senior-most teacher, except the accused, would act as the headmistress of the school till a regular headmistress was appointed in the school. The post of the headmistress would be treated as vacant and accordingly, the appropriate authority would take the necessary steps to fill up the post. In case the accused was found to be an excess teaching staff in the school, the commissioner of School Education would be approached by the School’s managing committee for the transfer of such teacher to any other school as per her option.

Moreover, the Hon’ble Court also imposed a fine of Rs. 20,000/- which was to be paid within two weeks from the date of judgment.

Furthermore, owing to the large number of cases coming forth due to the non-issuance of no-objection certificates by the schools to the teachers, the Court passed a direction to all schools which ought to be circulated to the Schools through the District Inspectors of Schools (Secondary Education) immediately. Such direction concerning the general or mutual transfer application “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.”

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