Ramavtar Goswami v. the State of Bihar), wherein, it was held as follow
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20988 of 2013 ====================================================== Kumari Sadhana, w/o Sri Ramadhar Pd. Singh, r/o Village & P.O. Nawada, P.S. Pakaridayal, District East Champaran at Motihari. Versus .... .... Petitioner/s 1.The State Of Bihar. 2.The Director, Primary Education, government of bihar, New Secretariat, Patna. 3.The District Education Officer, East Champaran at Motihari. 4.The District Programme Officer, (Establishment), East Champaran at Motihari. 5.The Block Education Officer, Pakari Dayal, P.O & P.S. Pakari Dayal, District East Champaran at Motihari. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Dr. Mayanand Jha, with Mr. Bipin Bihari Singh, Adv For the Respondent/s : Mr. Ram Balak Mahto AG & Mr. Krishna Chandra, AC to AG. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 11-11-2013 Heard learned counsel for the parties. The petitioner being aggrieved by an order of transfer dated 18.09.2013 passed by the District Programme Officer(Establishment), East Champaran at Motihari has moved this Court assailing the aforementioned order primarily on the ground that the order of transfer passed by the District Programme Officer (Establishment), East Champaran at Motihari is wholly without jurisdiction, inasmuch as, such power of transfer on administrative ground is only vested with the Director, Primary Education. For that purpose, he has referred to the amendment in the transfer
Legal Reasoning
Patna High Court CWJC No.20988 of 2013 (2) dt.11-11-2013 2 Rules-2009 which reads as follows:- ^^2- fcgkj jkT; jktdh;d`r izkjafHkd fo|ky; f'k{kd ¼LFkkukUrj.k½ fu;ekoyh] 2006 ds f;e 3 ¼[k½ ds ckn ,d mi dafMdk ¼x½ fuEuor tksM+k tk;sxk& ^^¼x½ ftyk f'k{kk v/kh{kd rFkk f'k{kk foHkkx ds ojh; inkf/kdkfj;ksa dh vuq'kalk ds vkyksd esa funs'kd izkFkfed f'k{kk }kjk izkjafHkd fo|ky; ds iz/kkuk/;kid@lgk;d f'k{kds dks iz'kklfud vk/kkj ij LFkkukUrj.k gsrq lEcfU/kr ftyk f'k{kk v/kh{kd dks vkns'k fn;k tk ldsxkA iz'kklfud vk/kkj ls fuEukafdr vfHkizsr gS%& ¼A½ iz/kkuk/;kid@lgk;d f'k{kd dh xfrfof/k;ksa dk fo|ky; ds vuq'kklu rFkk 'kS{kf.kd okrkoj.k ij dqizHkko iM+ jgk gks rFkk fo|ky; ds fgr esa mUgsa LFkkukUrj.k fd;k tkuk vko';d gksA ¼AA½ iz/kkuk/;kid@lgk;d f'k{kd ,slh foRrh; vfu;ferrk ftlesa ljdkjh jkf'k ds xcu ,oa vijkf/kd ekeys lfUufgr gks] es a lafYkIr ik;s tk;s aA** In this regard, reliance has also been placed on an order of this Court dated 20.12.2011 passed in C.W.J.C No. 431 of 2010 (Ramavtar Goswami vs the State of Bihar), wherein, it was held as follows:- "It appears that 2006 Rules were framed by the Government in terms of Article 309 of the Constitution of India. Hence, the same will prevail upon any executive decision laying down any policy decision with regard to the transfer and posting so far as teachers of the School under the control of the Panchayats are concerned. The amendment effected in the Rules in 2009 shows that it is only the Director, Primary Education, who, on the recommendation of the District Superintendent of Education or any higher authority of the Education Department can pass orders for transfer of a Headmaster or an Assistant Teacher of the School and no one else. Patna High Court CWJC No.20988 of 2013 (2) dt.11-11-2013 3 In the circumstances, this Court finds that the order of transfer of the petitioner as passed by the Deputy Development Commissioner and communicated through the impugned order by the District Superintendent of Education is without jurisdiction. The same is accordingly quashed and the writ application is allowed." Faced with this situation that learned counsel for the State has, however, submitted that the subsequent impugned order of transfer dated 18.09.2013 in fact has not come in the way of the petitioner because of the order of deputation dated 22.08.2013 (Annexure-1) which has been voluntarily complied by the petitioner. He has explained that the petitioner was working as Incharge Headmistress in Primary School, Nawada, Pakaridayal and the Block Education Officer, Pakaridayal, East Champaran at Motihari by order dated 22.08.2013 had deputed her in Madhya Vidyalay, Rajepur for a period of three months. He has explained that the petitioner has voluntarily complied this order of deputation and she has been working in Madhya Vidyalay, Rajepur since 23.08.2011. In this background, he has come to say that the office order of transfer of the petitioner dated 18.09.2013, has been impugned herein. Fresh place of posting of the petitioner in Primary School, Paugachhiya, Patahi is in fact not going to stand in Patna High Court CWJC No.20988 of 2013 (2) dt.11-11-2013 4 the way of the petitioner as he has already been removed from Prathmik Vidyalaya, Nawada, Pakaridayal where she had incurred some administrative reasons for being removed from the said School. In the considered opinion of this Court, there cannot be two views in law that when a transfer is circumscribed by the provision of statutory Rules those Rules have to be followed in effecting the order of transfer. As noted above the amendment of 2009 Rules very clearly lay down that the power of transfer of a teacher on administrative ground can be exercised only by the Director, Primary Education. In that view of the matter, this Court while following the ratio laid down in the case of Ramavatar (supra) will have no difficulty in nullifying the effect of the impugned order as contained in Annexure-2, which in fact even otherwise has not been acted upon on account of the order of deputation of the petitioner dated 22.08.2013. As noted above, the petitioner has already voluntarily left the School where she was earlier posted prior to his transfer dated 22.08.2013 namely, Prathmik Vidyalaya, Nawada, and is at present working in Madhya Vidyalaya, Nawada, Rajepur as per the order of deputation dated 22.08.2013 which of course Patna High Court CWJC No.20988 of 2013 (2) dt.11-11-2013 5 was for a period of three months. The period of three months has not yet come to an end and when this Court has nullified the effect of the impugned order of transfer dated 22.08.2013, the petitioner having herself accepted her deputation at Madhya Vidyalaya, Nawada, Rajepur would continue to work over there till the Director, Primary Education takes his independent decision in the light of the administrative ground which are said to be existing and have necessitated the transfer of the petitioner. This Court, accordingly, would direct the District Programme Officer (Establishment), East Champaran at Motihari to examine the entire issue and take his independent decision after considering the report of the Sub-divisional Officer, Pakaridayal, East Champaran dated 19.08.2013 as also the resolution of the District Primary Teachers Transfer Committee dated 13.09.2013 and if the Director, Primary Education finds that the petitioner's transfer on administrative ground is necessary in terms of amended 2009 Rules as quoted above, he would pass his necessary orders within a period of one month from the date of receipt of this order. It would be open for the petitioner to file her representation before the Director, Primary Education explaining her Patna High Court CWJC No.20988 of 2013 (2) dt.11-11-2013 6 grievance as with regard to her transfer on administrative ground. It, however, goes without saying that if the Director, Primary Education does not approve the transfer of the petitioner on administrative ground, the petitioner on account of her present place of posting at Madhya Vidyalaya, Nawada, Rajepur would be entitled to all consequential benefits which may flow out of the order of deputation voluntarily complied by her. With the aforementioned observations and direction, this application is disposed of and the application stands allowed to the aforementioned extent.
Legal Reasoning
Let a copy of this order be given to the learned counsel for the State for its being communicated to the Director, Primary Education for its strict compliance. Ranjan/- (Mihir Kumar Jha, J)