Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8528 of 2013 ====================================================== 1. Praveen Kumar Bharti S/O Late Brahmdeo Prasad Yadav, R/O Village- Bishnupur Ward No. 43, P.O.- Mirjapur Bandwar, Police Station- Begusarai Town, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Shirniya, Anchal- Begusarai, District- Begusarai 2. Usha Kumari D/O Late Jagdeo Singh, W/O Shri Raj Kishore Singh, R/O Village- Basudeopur, P.O.- Kotiya, Police Station and District- Begusarai, at present R/O Village- Sihama, Police Station- Matihani, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Hardiya, Anchal- Begusarai, District- Begusarai 3. Md. Zamil Ahmad S/O Md. Siddique, R/O Village- Saidpur, Police Station- Matihani, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Mahmadpur Gautam, Anchal- Matihani, District- Begusarai 4. Deenanath Singh S/O Late Ramodgar Singh, R/O Village and P.O.- Keshawe, Police Station- Barauni, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Urdu Noorpur, Anchal- Barauni, District- Begusarai 5. Ram Pravesh Paswan S/O Shri Siyaram Paswan, R/O Village- Bagha Ward No. 24, P.O. Suhridnagar, Police Station- Begusarai Town, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Bishnupur Chand, Anchal- Barauni, District- Begusarai 6. Faiyaz Alam S/O Late S.M.S. Alam, R/O Village and P.O.- Papraur, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Baghi, Anchal- Begusarai, District- Begusarai 7. Ram Sagar Ram S/O Late Sikan Ram R/O, Village and P.O.- Nagdah, Ward No. 10, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Lagauli, Anchal- Barauni, District- Begusarai 8. Amrendra Kumar Singh S/O Late Uchit Singh, R/O Village- Lohiyanagar, Police Station and District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Paharchak, Anchal- Begusarai, District- Begusarai 9. Raghuvansh Narayan Gautam S/O Jagdish Prasad Singh, R/O Village- Baraith, P.O.- Damdama, Police Station- Neema Chandpura, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Kanya Amour, Anchal- Begusarai, District- Begusarai 10. Shambhu Mahto S/O Shri Suresh Ram, R/O Village- Chandpura, P.O. Koriya, Police Station and District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Kankaul, Anchal- Begusarai, District- Begusarai 11. Ajay Kumar S/O Balmiki Sahu, R/O Village- New Professor Colony Pipra, P.O.- Refinery Township, Police Station and District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Tulsipur, Anchal- Begusarai, District- Begusarai 2 Patna High Court CWJC No.8528 of 2013 (2) dt.07-05-2013 2 / 12 12. Shyam Kishore Prasad Singh Son of Late Ram Badan Singh, R/O Village- Eniyar, P.O. Danauli Fulwaria, Via- Lakhminiya, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Urdu Dhabauli Dih Kunjartol, Anchal- Begusarai, District- Begusarai 13. Naveen Kumar Singh S/O Shri Hardeo Prasad Singh, R/O Village- Amraur, P.O.- Singhaul, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Kharidi, Anchal- Matihani, District- Begusarai 14. Tuntun Pandit S/O Late Ramnath Pandit, R/O Village and P.O.- Mahana, Police Station- Barauni, District- Begusarai, at present posted in Upgraded Middle School and working as Assistant Teacher Govindpur, Anchal- Barauni, District- Begusarai 15. Sudhir Kumar S/O Shri Yadunandan Singh, R/O Village and P.O.- Lakho, Ward No. 14, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Dhabauli Dih, Anchal- Begusarai, District- Begusarai 16. Ramashish Chaudhary S/O Late Bengathu Chaudhary, R/O Village and P.O.- Dumari, Via R.T.S., District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Machaha, Anchal- Begusarai, District- Begusarai 17. Bharosi Sharma S/O Shri Sheoji Sharma, R/O Village and P.O.- Jinga, Police Station- Barauni, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Sabaura, Anchal- Barauni, District- Begusarai 18. Baidyanath Paswan S/O Late Babajee Paswan, R/O Village- Bishnupur Bahor, P.O. Mirjapur Bandwar, Police Station- Begusarai Town, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Nayagaon Singhpur, Anchal- Matihani, District- Begusarai 19. Usha Sharma W/O Shiv Kumar Sharma, R/O Mohalla- Gandhi Nagar, Ward No. 31, P.O. and District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Mahmadpur, Anchal- Begusarai, District- Begusarai 20. Manju Kumari D/O Kedar Singh, R/O Village and P.O.- Ramdiri, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Kaithma, Anchal- Begusarai, District- Begusarai
Legal Reasoning
21. Poonam Poddar D/O Shri Ram Balak Poddar, R/O Village- Ward No. 35, Chitragupt Nagar, Pokhriya, P.O. and District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Shirniya, Anchal- Begusarai, District- Begusarai 22. Manoj Kumar S/O Noonbabu Singh, R/O Village- Chak Muzaffar, P.O. and Police Station- Naokothi, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Chak Muzaffar, Anchal- Naokothi, District- Begusarai 23. Pushpa Kumari W/O Anjani Kumar, R/O Lohiya Nagar Ward No. 28, Police Station- Begusarai Town, District- Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Ayodhyabari Kaligarh, Anchal- Begusarai, District- Begusarai 24. Kumar Pankaj S/O Late Ram Naresh Singh, R/O Village- Pokhriya, Ward No. 39, Police Station and District- Begusarai, at present posted 3 Patna High Court CWJC No.8528 of 2013 (2) dt.07-05-2013 3 / 12 and working as Assistant Teacher in Upgraded Middle School Naya Tola Wajitpur, Anchal- Begusarai, District- Begusarai .... .... Petitioners. 1. The State of Bihar 2. The Principal Secretary, Education Department, Government of Bihar, Versus Patna 3. The Director, Primary Education, Bihar, Patna 4. The District Magistrate, Begusarai 5. The Deputy Development Commissioner-Cum-Chairman, District Education Establishment Committee, Begusarai 6. The Regional Deputy Director of Education, Munger Division, Munger 7. The District Education Officer, Begusarai 8. The District Programme Officer (Establishment), Begusarai 9. The District Treasury Officer, Begusarai 10. The Block Education Officer, Begusarai Anchal, District- Begusarai 11. The Block Education Officer, Barauni Anchal, District- Begusarai 12. The Block Education Officer, Matihani Anchal, District- Begusarai 13. The Block Education Officer, Naokothi Anchal, District- Begusarai 14. The Headmaster Cum Drawing and Disbursing Officers of the Petitioners' School District- Begusarai .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.9198 of 2013 ====================================================== 1. Maheshwar Yadav Son of Late Ram Sharan Yadav, resident of Village- Matihani, Police Station - Matihani, District - Begusarai, at present posted and working as Head Teacher in Upgraded Middle School Khorampur Chakaur, Anchal Matihani, District - Begusarai 2. Shyama Kumari Daughter of Shri Brahmdeo Prasad, Wife of Shri Bindeshwari Yadav, Resident of Village- Khanjhapur, P.O. Khanjhapur, Police Station - Cheriya Bariyarpur, District - Begusarai, at present posted and working as Assistant Teacher in Upgraded Middle School Nagdah, Anchal Begusarai, District - Begusarai 3. Poonam Kumari Daughter of Late Bishwanath Paswan, Wife of Shri Anil Kumar Amar, Resident of Village- Baghi, Police Station- Begusarai Town, District - Begusarai, at present posted and working as Assistant Teacher in Govt. Middle School Bagha Durga Asthan, Anchal Begusarai, District - Begusarai .... .... Petitioners. 1. The State of Bihar 2. The Principal Secretary, Education Department, Government of Bihar, Versus Patna 3. The Director, Primary Education, Bihar, Patna 4. The District Magistrate, Begusarai 5. The Deputy Development Commissioner-Cum-Chairman, District Education Establishment Committee, Begusarai 6. The Regional Deputy Director of Education, Munger Division, Munger 7. The District Education Officer, Begusarai 8. The District Programme Officer (Establishment), Begusarai 4 Patna High Court CWJC No.8528 of 2013 (2) dt.07-05-2013 4 / 12 9. The District Treasury Officer, Begusarai 10. The Block Education Officer, Begusarai Anchal, District Begusarai 11. The Block Education Officer, Matihani Anchal, District Begusarai .... .... Respondents ====================================================== Appearance : (In CWJC No.8528 of 2013) For the Petitioner/s : Mr. Sanjay Singh, Advocate For the Respondent/s : Mr. Umesh Kumar Mishra, Advocate (In CWJC No.9198 of 2013) For the Petitioner/s : Mr. For the Respondent/s : Mr. P.K. Verma, AAG V ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 2 07-05-2013 Heard learned counsel for the petitioners and the State. Both the writ applications are taken up together for disposal, as facts and issues involved are substantially similar. For convenience sake, I would be referring to pleadings and annexures as detailed in C.W.J.C. No.8528 of 2013. The main issue in this case is whether the grievance against Promotion cum Posting, particularly the posting part can be taken in appeal before the Regional Deputy Director of Education under Rule 18 of the Bihar Elementary School Teacher‟s Promotion Rules, 2011 (hereinafter referred to as „the Promotion Rules, 2011‟). The petitioners were serving as Matric / Intermediate teachers in different blocks of Begusarai district. They were promoted in the category of Graduate teachers by the District 5 Patna High Court CWJC No.8528 of 2013 (2) dt.07-05-2013 5 / 12 Promotion Committee headed by District Magistrate of the District. The Promotion Committee while granting promotion recommended place of postings as well. Some teachers were posted against post available in higher category in the Institution in which they were serving, while some got postings in distant institutions both within and beyond the block. Some of the teachers were being posted as far as 55 Kms from their present place of posting. The petitioners being aggrieved with the place of posting on promotion recommended by the District Promotion Committee, filed representation/appeal before the RDDE, Munger under Rule 18 of Rule 2011. The RDDE entertained the appeal. The petitioners asserted that they were posted to far off places though the vacancy in upgraded category existed in the Institution itself. Their further case before the RDDE was that vacancies in upgraded category (Graduate category) were available in nearby school and they could have been easily posted in those institutions instead of being posted to a distant place. The RDDE not only quashed the posting portion of promotion order but also directed their adjustment in the schools indicated in the order itself. A copy of the order of the RDDE, Munger contained in memo no.184 dated 18.2.2013 and memo no.236 dated 28.2.2013 are annexed as Annexure-7. 6 Patna High Court CWJC No.8528 of 2013 (2) dt.07-05-2013 6 / 12 In the meantime, a complaint was made to the Director, Primary Education through e-mail alleging gross illegality committed by the RDDE, Munger in interfering with the posting orders of the Promotion Committee. It was further alleged that RDDE, Munger did not have the jurisdiction to entertain the appeal against Promotion-cum-posting orders of the Promotion Committee. On consideration of the complaint, the Director, Primary Education vide his memo no.467, dated 10.4.2013 sought an explanation from the RDDE, Munger Division, Munger as to whether he can entertain the appeal under Rule 18 of the Promotion Rules, 2011 against order of Promotion cum posting. In case, if he had necessary powers, whether he could have himself directed for adjustment of teachers in schools concerned. The RDDE was directed to submit his explanation within 24 hours. A copy of the order dated 10.4.2013 of the Director, Primary Education is contained in Annexure-10 was also sent to the District Education Officer directing him not to give effect to the order of the RDDE. The District Education Officer vide his order dated 12.4.2013 issued consequential order staying the implementation of order of RDDE, Munger Division, Munger regarding posting of teachers of both Arts and Science faculties consequent to their 7 Patna High Court CWJC No.8528 of 2013 (2) dt.07-05-2013 7 / 12 promotions. A copy of order dated 12.4.2013 passed by the D.E.O. Begusarai as well as order dated 10.4.2013 of the Director, Primary Education is annexed as Annexures-12 and 13. The petitioners contend that it is the RDDE alone, who has necessary jurisdiction under Rule 18 of the Promotion Rules, 2011 to interfere with the Promotion cum Posting order made under Rule 13. Learned counsel for the petitioners submits that it would be evident from Rule 13 that Promotion Order would include posting as well. It was further submitted that Rule 18 empowers RDDE to hear an appeal against Promotion Order passed under the provisions of the appeal which would include posting as well. Rules 13 and 18 of the Promotion Rules, 2011 are quoted herein below: “13- izksUufr vkns”k & ftyk izkjafHkd izksUufr lfefr }kjk fy;s x;s izksUufr ds fu.kZ; ds mijkUr miyC/k fjDr inks ads fo:) izksUufr vkns”k ¼inLFkkiu ds lkFk‰ fuxZr fd;s tk;saxsA izksUufr &vkns”k izksUufr lfefr ds lnL; lfpo ,oa ftyk f”k{kk inkf/kdkjh ds la;qDr gLrk{kj ls fuxZr fd;k tk;sxkA” “18- vihy & bl fu;ekoyh ds fu;e ds v/khu fuxZr izksUufr vkns”k ls O;fFkr dksbZ f”k{kd] vkns”k fuxZr gksus ds 30 fnuksa ds Hkhrj lacaf/kr {ks=h; f”k{kk mi funs”kd ds le{k vihy nk;j dj ldsxkA” Learned counsel submits that the order of promotion 8 Patna High Court CWJC No.8528 of 2013 (2) dt.07-05-2013 8 / 12 cum posting would not be an order of transfer simplicitor and as such it would not come within the purview of Transfer Rules, 2006. On the other hand counsel for the State submits that a transfer matter is governed by Transfer Rules, 2006. Any one aggrieved by the „Transfer‟ order can file a representation before the District Development Officer under Rule 7 thereof. I have heard counsel for the parties. The main issue in this case is whether the grievance against Promotion cum Posting particularly the posting part can be taken in appeal before the Regional Deputy Director of Education under Rule 18 of the Bihar Elementary School Teachers Promotions Rules, 2011. It appears that this issue itself is in consideration of the Director, Primary Education who has sought a statement of RDDE as to whether he has jurisdiction to interfere with the Promotion cum Posting order. The co-relating issue would be whether such posting orders made consequent to promotion can be entertained under Transfer Rules, 2006. Rule 3 of the Transfer Rules, 2006 states that the post of the teachers would be a non-transferable one save and except in three circumstances mentioned in the Rule 3 itself. For sake of convenience, Rule 3 is quoted herein below: 9 Patna High Court CWJC No.8528 of 2013 (2) dt.07-05-2013 9 / 12 “3- f”k{kd LFkkukUrj.k ds lkekU; fl)kUr & f”k{kdksa dk in vLFkkukUrj.kh; gksxk] ijUrq fuEufyf[kr ifjfLFkfr;ksa esa gh LFkkukUrj.k fd;k tk ldsxk& …d½ lkeku dksfV ds f”k{kdksa dk ikjLifjd LFkkukUrj.k] vFkok …[k‰ izR;sd dksfV dks bl fu;ekoyh ds vf/klwfpr gksus ds ckn vius lsok dky esa vf/kdre nks LFkkukUrj.k ysus dh NwV nh tk;sxhA ijUrq izFke ,oa f}rh; LFkkukUrj.k ds e/; de ls de ik¡p o’kks Z dk varjky gksuk vko”;d gksxkA ¼x½ ftyk f”k{kk v/kh{kd rFkk f”k{kk foHkkx ds ojh; inkf/kdkfj;ksa dh vuq”kalk ds vkyksd es a funs”kd izkFkfed f”k{kk }kjk izkjafHkd fo|ky; ds iz/kkuk/;kid @lgk;d f”k{kd 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 %& …i½ iz/kkuk/;kid @ lgk;d f”k{kd dh xfrfof/k;ksa dk fo|ky; ds vuq”kklu rFkk “kS{kf.kd okrkoj.k dk dqizHkko iM+ jgk gks rFkk fo|ky; ds fgr esa mUgsa LFkkukUrj.k fd;k tkuk vko”;d gksA …ii½ iz/kkuk/;kid @ lgk;d f”k{kd ,slh foÙkh; vfu;ferrk ftlesa ljdkjh jkf”k ds xcu ,oa vijkf/kd ekeys lfUufgr gksa] esa lafyIr ik;s tk;sa**” Rule 3 envisages transfer in three circumstances only. Rule 3(Ka) provides for mutual transfer which takes care of first category of transfer. Rule 3 (kha) provides an option to the 10 Patna High Court CWJC No.8528 of 2013 (2) dt.07-05-2013 10 / 12 incumbent teacher to take two transfer during his service period with a minimum interval of 5 years intervening such choice transfer. The third category of transfer is a transfer under administrative circumstances. Such transfer order can be made by the Director, Primary Education on recommendation of the District Education Officer and Senior officials of the Education Department. Rule 4 states that an application for mutual and choice transfer can be made before the District Superintendent of Education. Rule 5 states that in case of two choice postings made for one post, then the senior most teacher of the Institution would have to be transferred. However, due preference would be given to the handicapped and female teachers. Rule 6 states that necessary order regarding mutual and choice transfer would be made by a Committee headed by the District Education Officer of which an Area Education Officer would be a member and District Superintendent of Education would be it‟s Member Secretary. Rule 7 states that the District Development Commissioner would be competent to hear any complaint in respect of a transfer. It would thus appear from Transfer Rules 2006 that District Development Commissioner under Rule 7 can exercise power only in a limited arena of transfer made on mutual and choice basis. 11 Patna High Court CWJC No.8528 of 2013 (2) dt.07-05-2013 11 / 12 On the other hand the power to transfer on complaint or administrative grounds is vested with the Director of Primary Education on recommendation of District Superintendent of Education and senior official. Rules 2006 in my view is not exhaustive and does not deal with postings consequent to promotions and postings to fill up posts consequent to retirement or death. I find substance in the submissions of the petitioners that Promotion orders inclusive of posting as mentioned in Rule 13 of the Promotion Rules, 2011 would not be a transfer simplicitor. Posting covering with promotion cannot be a transfer simplicitor as the promotional posts may not be available at the previous place of posting in the earlier category from which one is being promoted. It would not be expedient to read something more in the Transfer Rules when the provisions specifically enumerates the circumstances in which transfer orders can be made. This takes me to next issue whether the RDDE would be competent to hear an appeal only against promotion simplicitor or promotion inclusive of posting. I find that the Director Primary Education vide his order dated 10.4.2013 contained in Annexure-10 has already sought a statement from 12 Patna High Court CWJC No.8528 of 2013 (2) dt.07-05-2013 12 / 12 the RDDE whether he is competent to hear an appeal against posting portion of an order of promotion. As the matter is already in the consideration of the Director, Primary Education, I do not find it appropriate to deal with the some at this stage. The Director, Primary Education would be at liberty to take a decision on this issue in accordance with law. In case the petitioners have any grievance against the consequential order of the District Education Officer, Begusarai dated 12.4.2013 contained in Annexure-12 staying the implementation of the order of RDDE, Munger in view of direction of Director, Primary Education dated 10.04.2013 (Annexure-10), they can approach the Promotion Committee itself for the grievance pending adjudication of the matter by Director, Primary Education. With the aforesaid observations, these applications
Decision
are disposed of. Uday/- (Samarendra Pratap Singh, J)