Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.9237 OF 2013 =============================================== 1. RANJITA KUMARI D/O SHRI RATI KANT RAI AND W/O SHRI RAJESH KUMAR RESIDENT OF VILLAGE GOREYAKOTHI, P.S- GOREYAKOTHI, DISTRICT- SIWAN, AT PRESENT WORKING AS PRAKHAND TEACHER IN GOVERNMENT MIDDLE SCHOOL, GOREYAKOTHI BOYS, P.S- GOREYAKOTHI, DISTRICT- SIWAN. 2. RAMBHA KUMARI D/O SHRI JAG BAHADUR MANJHI AND W/O LATE NAND KISHORE MANJHI RESIDENT OF VILLAGE LAKA TOLA, P.O AND P.S- GOREYAKOTHI, DISTRICT- SIWAN, AT PRESENT WORKING AS PRAKHAND SCHOOL, TEACHER GOREYAKOTHI BOYS, GOREYAKOTHI, DISTRICT- SIWAN. GOVERNMENT MIDDLE IN .... .... PETITIONER/S VERSUS OFFICER DISTRICT PRINCIPAL PROGRAMME EDUCATION SECRETARY, 1.THE STATE OF BIHAR 2.THE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA-1 3.THE DIRECTOR, PRIMARY EDUCATION, GOVERNMENT OF BIHAR, PATNA. 4.THE DISTRICT MAGISTRATE, SIWAN. 5.THE DISTRICT EDUCATION OFFICER, SIWAN. 6.THE (ESTABLISHMENT), SIWAN. 7.THE BLOCK EDUCATION OFFICER, GOREYAKOTHI, DISTRICT- SIWAN. 8.THE PRAKHAND PRAMUKH, ANCHAL GOREYAKOTHI, DISTRICT- SIWAN. 9.THE BLOCK DEVELOPMENT OFFICER-CUM- EXECUTIVE OFFICER, PANCHAYAT SAMITI, GOREYAKOTHI, DISTRICT- SIWAN. 10.THE INCHARGE HEAD MASTER, GOVERNMENT MIDDLE SCHOOL GOREYAKOTHI, BOYS, DISTRICT- SIWAN. 11.NEERAJ KUMARI W/O RAJESHWAR PANDEY PRAKHAND TEACHER, MIDDLE SCHOOL BARHOGA JADUKANYA, DISTRICT- SIWAN. 12.SANTOSH KUMAR S/O PRAKHAND TEACHER, UPGRADED MIDDLE SCHOOL, MIRJAPUR, DISTRICT- SIWAN. .... .... RESPONDENT/S ============================================== Appearance : For the Petitioner/s:Mr. Umesh Kumar Mishra, Adv. For the Respondent/s:Mr. N.K Singh, GP-26. =============================================== Patna High Court CWJC No.9237 of 2013 (2) dt.17-06-2013 2 CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2/ 17-06-2013 Heard counsel for the parties. 2. The prayer of the petitioners in this writ application reads as follows:- 1 No. petitioner "For issuance of a writ in the nature of certiorari for quashing the memo No. 14 dated 19/4/2013 issued under the signature of the Block Officer-cum-Executive Development Officer, Samiti, Panchayat Goreyakothi, District Siwan by which Prakhand the Teacher, Government Middle School, Goreyakothi Boys has been transferred in Government middle school, Barhoga Jadukanya from Government Middle School, and petitioner No. 2 Rambha Kumari, Prakhand Teacher, Government Middle School, Goeryakothi Boys has been transferred Middle School, Mirjapur, District Siwan School from Goreyakothi the provisions of the Bihar Panchayat Elementary Teacher (Selection and Service Conditions) Rules 2012, by which only on the basis of option the transfer will be made Goreyakothi Government Upgraded against Middle Boys, Boys in by of For (ii) issuance Prakhand restraining an appropriate writ in the nature of prohibition the respondent authorities concerned not to make any kind of hindrance in proper functioning of the petitioners their as respective schools, i.e. Government Middle School, Goreyakothi Boys, Anchal Goreyakothi, District Siwan as the petitioners are discharging their duties with best of their capability and to the satisfaction of the authorities concerned and they have not given their options for their Teachers in
Facts
Patna High Court CWJC No.9237 of 2013 (2) dt.17-06-2013 3 transfer; on (iii) For issuance of an appropriate writ in the nature of mandamus for commanding and directing the respondent authorities concerned to produce the memo no. 445 dated 13/4/2013 by which the District Education Officer has transferred and posted called the administrative grounds and after producing the same the petitioners may kindly be given liberty to challenge the same to the extent. That, the aforesaid memo no. 445 dated be quashed, as the same is without jurisdiction and without hearing the petitioners; 13/4/2013 kindly may so of For (iv) issuance an appropriate writ in the nature of mandamus for commanding and directing the respondent authorities concerned to allow the petitioners to continue as an Prakhand Teacher in the Government Middle School, Goreyakothi Boys, Anchal Goreyakothi, District Siwan consequential all benefits;" with
Legal Reasoning
this Court in exercise of power under article 226 of the constitution of India cannot sit Patna High Court CWJC No.9237 of 2013 (2) dt.17-06-2013 7 as an appellate authority over the decision taken by the executive authorities in relation to exercise of power of transfer which is an incidence of service. If the petitioners have any such grievance against their order of transfer they may represent their case before the competent authority as was held by the Apex Court in the case of Shanti Kumari v. Regional Deputy Director, Health Services, Patna Division, Patna reported in AIR 1981 SC 1577. 9. The submission of Mr. Mishra, learned counsel for the petitioner that the exercise of power of transfer under Rule- 15(+++‡)(iv) cannot be taken into consideration by the competent authority unless there is a written request by the teacher concerned will in fact frustrate the very object of incorporation of Rule-15(+++‡)(iv), inasmuch as, there are two different situations being created under the 2012 Rules while incorporating the provision of transfer. Firstly under Rule-15(+ ++‡)(i) it has been said the post of teachers is ordinarily non- Patna High Court CWJC No.9237 of 2013 (2) dt.17-06-2013 8 transferable. The use of expression ’ordinarily’ will automatically make it clear that there is no complete prohibition of transfer of teachers and in fact in an appropriate case such exercise of power of transfer can be exercised. It is here that Rule-15(+++‡)(iv) becomes relevant which enumerates one such reason being the exigency relating to the very purpose of appointment of teachers namely extending the object of Article 21(A) of the Constitution of India relating to Free education to the students at the Primary School level in the age group of 5 to 15 years. It is for this purpose that a specific provision has been in Rule 15(5)(iv) of 2012 Rules that whenever and wherever the competent authority thinks it necessary that adjustment/transfer of the teachers have to be made, the desired action can be taken. Such administrative exigency would definitely outweigh the personal consideration of teachers of being transferred. In fact expression ’ordinarily’ used in 2012 Rules will also automatically come into play in a Patna High Court CWJC No.9237 of 2013 (2) dt.17-06-2013 9 situation envisaged under Rule-15(+++‡)(iv). 10. The submission therefore that only teachers can opt for transfer and that the power under Rule-15(+++‡)(iv) cannot be exercised by the officers for transferring the teachers is of any merit, inasmuch as, whatever has been provided under Rule-(i), (ii) and (iii) of Rule-15(+++‡)is infact a beneficial provision made for the teachers who seek to get their transfer for their personal reasons. In fact Sub rule (iv) of Rule 15 of Rule-2012 not only opens door for the employees but also for the employer to exercise power of transfer and thus it would be wholly incorrect to contend that only the teachers can seek their transfer and without their option they cannot be transferred. The option of the teachers is only one of the two situations, other being requirement of transfer which of course has been circumscribed under limited circumstances. This Court would therefore hold that under 2012 Rules the power of transfer of teachers of Primary School can suo motto be also Patna High Court CWJC No.9237 of 2013 (2) dt.17-06-2013 10 exercised by the State Government and its officers. 11. That being so, this application is wholly misconceived and is, fit to be dismissed. 12. The dismissal of this writ application however will not come in the way of the petitioners in filing their representation which shall be disposed of by the competent authority strictly in accordance with law without being influenced by the observations made in this order of this Court. The petitioners’ representation shall however be considered only after they would comply their order of transfer and if the authorities get satisfied and allow such representation of the petitioners, their joining at their transferred place shall not stand as an impediment to be reverted back to the posts which they had been holding prior to their joining at the transferred place. If the petitioners therefore having joined at the transferred place would file their representations through proper channel the Patna High Court CWJC No.9237 of 2013 (2) dt.17-06-2013 11 same shall be decided by the competent authority within a period of three months from the date of their such application being forwarded by their immediate controlling authority. 13. Subject to the aforesaid observations and directions, this writ application is dismissed. Ranjan/- (Mihir Kumar Jha, J)
Arguments
3. Mr. Umesh Kumar Mishra, learned counsel appearing on behalf of the petitioners in support of the aforementioned prayer has basically concentrated on the aspect that under Bihar Panchayat Prarambhik Shikshak(Niyojan and Seva Sart) Niyamawali- 2006, the post of Panchayat Teacher was non- transferrable and in fact it was only for the Panchayat Teachers to seek transfer on their own option. He has further referred to Bihar Patna High Court CWJC No.9237 of 2013 (2) dt.17-06-2013 4 Panchayat Prarambhik Shikshak (Niyojan and Seva Sart) Niyamawali-2012 to contend that almost same type of provision of transfer of Panchayat/Prakhand Teachers can be found under Rule-15(+++‡)(iv). Thus he has submitted that the impugned order of transfer being in violation of the statutory Rules cannot be sustained and has to be set aside. 4. Learned counsel for the State on the other hand has submitted that whatever may be the position in 2006 Rules the same has already stood repealed by the 2012 Rules and therefore, no gainful purpose can now be achieved by the petitioner by referring and relying on 2006 Rules. He has further submitted that on reading of the entire provision of transfer in 2012 Rules, it would be clear that there is no absolute bar of transfer as was envisaged under 2006 Rules. 5. In the considered opinion of this Court, learned counsel for the State seems to be correct. In 2006 Rules there was a complete prohibition of exercise of power of transfer by the employer. The limited liberty Patna High Court CWJC No.9237 of 2013 (2) dt.17-06-2013 5 was to the employee, the Panchayat/Prakhand Teacher, to seek such transfer. That concept however, has been totally done away in the 2012 Rules as would be clear from a bare comparison of the relevant provision of the two Rules:- Rule 2006 and Rule 2012 LFkkukUrj.k%& …i‰ iapk;r izkjfEHkd f’k{kd ds in vLFkkukUrj.kh; gksxkA ijUrq iz[k.M f’k{kd dks viuh lsok dky esa rhu o"kksZa ds ckn vf/kdre nks LFkkukUrj.k ysus dh lqfo/kk jgsxhA …ii‰ ;fn fdlh fo|ky; ds ,d fjDr in gsrq ,d ls vf/kd LFkkukUrj.k ds vkosnu izkIr gksrs gSa] rks vuqlwph&AA ds vojksgh dze esa f’k{kdkas dks izkFkfedrk nh tk;sxh vkSj bl izdkj ds LFkkukUrj.k dh dkjZokbZ dafMdk 9 …vii‰ esa xfBr lfefr ds }kjk dh tk;sxhA LFkkukUrj.k …i‰ lkekU;r% iapk;r ,oa iz[k.M izkjfEHkd f’k{kdksa dk LFkkukUrj.k ugha fd;k tk;sxkA mUgsa viuh lsok dky esa rhu o"kksZa ds ckn vius fu;kstu bdkbZ esa gh vf/kdre nks LFkkukUrj.k ysus dh lqfo/kk gksxhA nks LFkkukUrj.k ds chp de&ls&de 5 o"kksZa dk vUrjky vko’;d gksxkA LFkkukUrj.k viuh gh f’k{kd dh Js.kh …xzsM‰ esa fd;k tk ldsxkA vuqns’kdksa dks ;g lqfo/kk ns; ugha gksxhA …ii‰ ;fn fdlh fo|ky; ds ,d fjDr in gsrq ,d ls vf/kd LFkkukUrj.k ds vkosnu izkIr gksrs gSa] rks lsok vof/k ds vk/kkj ij ojh;re f’k{kd dks izkFkfedrk nh tk;sxhA …iii‰ LFkkukUrj.k dk izLrko lnL; lfpo ds }kjk rS;kj fd;k tk;sxk rFkk fu;kstu lfefr ds v/;{k ds vuqeksnu ds ckn LFkkukUrj.k vkns’k lnL; lfpo ds gLrk{kj ls fuxZr fd;k tk;sxkA …iv‰ cPpksa dh fu%’kqYd ,oa vfuok;Z f’k{kk ds vf/kdkj vf/kfu;e@fu;ekoyh ds vuqikyu esa ljdkj }kjk izkf/kd‘r inkf/kdkjh ds Lrj ls fu;ekuqlkj fdlh vU; fo|ky; esa f’k{kdksa ds lkeatu ,oa iz’kklfud LFkkukUrj.k dk vkns’k fu;kstu bdkbZ dks fn;k tk ldsxkA fu;kstu inkf/kdkjh ds }kjk bldk vuqikyu vfuok;Z gksxkA** 6. Having thus made the comparative evaluation of both 2006 Rules and 2012 Rules as with regard to transfer it can be safely said that the state Government or for that Patna High Court CWJC No.9237 of 2013 (2) dt.17-06-2013 6 purpose the other authorities have now been vested with the power of transferring the Panchayat/Prakhand Teachers under certain circumstances and/or exigencies. Thus, it can no longer be held that the post of Panchayat/Prakhand Teacher is a non- transferable post. 7. Once, this aspect becomes clear that the post of Panchayat/Prakhand Teacher as held by the petitioners is transferable the issue as to whether the authorities have exercised such power in excess of the jurisdiction conferred under 2012 Rules has to be necessarily gone into by the authorities themselves, inasmuch as the petitioners by filing them representation can demonstrate that there is no such administrative exigency which could have required transferring the petitioners or that the manner or requirement of transfer as laid down under Rule-15(+++‡)(iv) was not fulfilled. 8. By now it is well settled that