Smt. Bandana Mochary v. State Of West Bengal And ORS.

18.12.2023 Sl No.18 Court No.8 (gc) MAT 2304 of 2023 CAN 1 of 2023 CAN 2 of 2023 Bandana Mochary Vs.

The State of West Bengal & Ors & Ors.

Mr. Shuvro Prokash Lahiri, Ms. Tithi Mazumder, Mr. Rajesh Naskar, ......For the Appellant Dr. Sutanu Kumar Patra, Ms. Supriya Dubey, ......For the WBCSSC Ms. Parna Roy Choudhury, ......For the State Re: CAN 1 of 2023

1. There is a delay of 590 days in filing the instant appeal. Sufficient cause being shown for not being able to prefer the appeal within the period of limitation.

2. The delay of 590 days is hereby condoned.

3. Accordingly, application for condonation of delay is allowed and disposed off.

Re: MAT 2304 of 2023 CAN 2 of 2023

4. The affidavit of service filed on behalf of the appellant is kept with the record.

5. The appeal and the application are taken up together and disposed of by this common order.

6. The appellant filed an application for transfer on medical ground of Thalassemia and the same was forwarded by the concerned DI of Schools (SE) acknowledging issuance of medical certificate by the CMOH and No Objection by the School as appears from the online transfer status.

However, said application was returned by the concerned School Service Commission on the ground of below five years of service at the present posting.

7. That Learned Single Judge had dismissed the writ application on the ground of non completion of five years of service for making transfer application either on general or special ground.

8. That the ground for transfer of the appellant is covered under Rule 4(a) of the transfer rules under general transfer on special grounds and we have already observed in MAT 782 of 2023 (Suvadip Ghorai versus State of West Bengal and Ors.) that a special right has been conferred in favour of a teacher to apply for

general transfer on special ground provided all or any of the conditions mentioned in Rule 4 are/is satisfied. In the event it is contented and held that period of five years is mandatory then it would make Rule 4 nugatory as the immediate purpose for transfer would be defeated as circumstances for general transfer on special ground required immediate intervention. To illustrate a teacher or his spouse or his sons suffering from thalassemia or of any of the diseases under Rule 4 would be entitled to pray for transfer and if it is denied on the ground that the teacher has to wait for five years it would be fatal and a fait accompli for the teacher or his spouse or the children as the case may be and the very purpose of the said Rule would be defeated.

9. In view thereof, we direct the concerned School Service Commission to allow transfer in favour of the appellant strictly in accordance with law if the appellant is otherwise eligible for transfer under the law. If the transfer application of the appellant is considered favourably, options for schools be given to the appellant and

consequential steps be taken in accordance with law.

10.

That whole exercise shall be completed within eight weeks from date of communication of this order.

11.

Accordingly, appeal and connected application are disposed of.

12.

However, there shall be no order as to costs.

13.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.

(Uday Kumar, J.) (Soumen Sen, J.)