2023 (8) TMI 1550 - HC - Indian Laws

Challenge to order of the Head of the Institution in refusing to consider her application for transfer - rejection of transfer application on the ground of out of 10% - HELD THAT - The service conditions gives right to claim transfer on fulfillment of certain conditions. An application for transfer has to be considered on the basis of existing and/or prevailing rules. There are no material to reject the said application of the petitioner by the Head of Institution on the ground of out of 10% and no sufficient material is produced to justify the said stand. The order of rejection has to be considered on the basis of the reasons mentioned and not on any other extraneous consideration. The argument made that pupil teacher ratio was a relevant factor is not borne out from the impugned order of the Head of the Institution. There cannot be any doubt that in an appropriate situation interest of the student could be the over-riding consideration. In a given situation it is possible that although a teacher is eligible for transfer an immediate replacement may not be possible and the recruitment process for the said post would take such time the transfer may be given effect to from a future date. However, once a teacher fulfills the eligibility criteria, the authority must take steps to fill up the resultant vacancy as per the norms existing at the relevant point of time by way of local arrangement or by recruiting a permanent teacher for the said post within a reasonable time. The Commissioner of School Education is directed to consider the application for transfer of the petitioner on verification of the record and production of relevant documents by the school authorities. The order under challenge is thus, set aside - appeal allowed.

Summary

Issues:
1. Challenge to rejection of transfer application on the ground of "out of 10%"
2. Interpretation of Gazette Notification dated 29th September, 2022 regarding transfer applications
3. Consideration of pupil-teacher ratio in transfer decisions
4. Applicability of rules and existing circulars to transfer applications
5. Authority's discretion in transfer matters and balancing student interests

Analysis:

The judgment involves a challenge to the rejection of a transfer application by an Assistant Teacher based on the reason of being "out of 10%". The petitioner had applied for transfer thrice through the Utsashree Portal, with the latest application being rejected by the Head of the Institution. The Single Judge observed that the Gazette Notification dated 29th September, 2022 did not provide relaxation for transfers under Rule 4(e) if the school had more than 5 sanctioned teachers, which was the case here.

The judgment emphasized the importance of pupil-teacher ratio in transfer decisions and highlighted the need for a balance between teacher transfer provisions and student interests. While transfer is not a vested right for teachers, the discretion of the State authority must be exercised judiciously within the legal framework, considering the paramount importance of student interests. The judgment noted the obligation of the State to implement the Right of Children to Free and Compulsory Education Act, 2009 and the necessity for rationalization of teacher transfer policies.

The Court directed the Commissioner of School Education to reconsider the transfer application, stressing that it should be based on prevailing norms at the relevant time and not subsequent circulars. The decision should be made within six weeks, following a hearing for both the writ petitioner and school authorities. The judgment set aside the initial rejection order and highlighted the need for proper consideration of transfer applications based on existing rules and student interests.

Overall, the judgment focused on the legal framework governing teacher transfers, the importance of pupil-teacher ratio, and the need for a balanced approach considering both teacher rights and student welfare. It highlighted the role of the appropriate authority in making transfer decisions and emphasized the significance of following existing norms and rules while ensuring student interests are prioritized in such matters.