Patna High Court
Mahendra Narain Chaudhary And Anr. vs The Sub-Divisional Education Officer ... on 23 July, 1975
Equivalent citations: AIR1976PAT53, AIR 1976 PATNA 53
ORDER Madan Mohan Prasad, J.
1. This is an application under Articles 226 and 227 of the Constitution of India for issuance of writs in the nature of certiorari and mandamus quashing the orders contained in Anne-xures 1 and 6 passed by the Municipal Education Officer of Chakradharpur transferring the petitioners from one school to the other on posts alleged be be inferior to those held by them.
2. The first petitioner was on the date of the order aforesaid, Head Master in Shoundik Dharamsala Middle School at Chaknadharpur, and the second, the Head Master in Dandasai Urdu Middle School, Chakradharpur. Both these Schools are said to be under the management and control of Chakradhapur Municipality. The first petitioner says that he passed the Matriculation examination in the year 1953, Madhyama examination of Hindi Vishwa Vidyalaya, Prayag, in the year 1954, and the Teachers' Training Examination in the year 1968. He also underwent training in the Teachers' Training School at Chiri in the District of Ranchi. The second petitioner claims to have passed the Final School Examination (equivalent to Matriculation) from the Board of Secondary Education. West Bengal, in the year 1952. He also attended the Teachers' training course for six months in the year 1968 and claims to have passed the I. A. examination in the year 1973 from the Ranchi University. The first petitioner was appointed an Assistant Teacher in the Town Middle School, Chakradharpur, which was taken over by the Municipality in 1962 and renamed as Adarsh Madhyamik Vidyalaya. He was subsequently promoted to the post of Head Master of that school with effect from the 1st August, 1959. Thereafter, he joined the present school as the Head Master on his being transferred thereto by the Municipality. The second petitioner was appointed an Assistant Teacher in a Maktab at Potka within Chakradharpur Block. Later, he was appointed by the Municipality of Chakradharpur as an Assistant Teacher in the Urdu Town L. P. School. Thereafter, he was transferred as Head Master to the present school. This school was upgraded as Upper Primary School and thereafter as a Middle School with effect from the 24th February, 1972 provisionally and then permanently since the 2nd November, 1973. While these two petitioners were working in the two schools aforesaid and occupied the posts of Head Master, they received an order (Annexure 1) by which they were transferred to other schools mentioned against their names. It appears that petitioner No. 1 was transferred from Shoundik to Adarsha Madihyamik Vidyalaya, Chakradharpur, where he had once before worked, to the post which had fallen vacant on account of the promotion of one Chintamani Mahto. The second petitioner was transferred from Dandasai Urdu Middle School to Urdu Town School at Chakradharpur to the post which had fallen vacant on account of the promotion of one Maulvi Rashid.
3. The petitioners are aggrieved by this order because they were holding the post of Head Master in the two schools and they have been transferred to other schools to posts which had fallen vacant which, it is said, are posts of assistant teachers. Their grievance, thus, is that they have been reduced in rank as a result of this transfer. Their further case is that no notice was given to them in respect of this order of reduction in rank.
4. A counter-affidavit has been filed on behalf of respondent No. 1 in which it has been stated that the two petitioners were teachers appointed under Extension Improvement Programme of the Education Department and as a result of take over, by Government of the Primary Education since the 1st January, 1971, they became Government servants. It is denied that the schools are under the management of the Chakradharpur Municipality. It is, however, stated that the Municipality had appointed the petitioners in an irresponsible manner to the posts of Head Masters in the Middle Schools and, hence, the Sub-Divisional Education Officer cum Municipal Education Officer, has reverted them to the posts of assistant teachers. It is also said that as they did not hold the requisite qualifications for holding the posts of Head Masters, the transfer order in that view of the matter is just and proper.
5. A reply to this counter-affidavit wag filed by the petitioners alleging that the inclusion of the name of any teacher in the List under the Extension Improvement Programme of the Education Department does not effect any chance in the employment condition of such teachers. It is said that in spite of the fact that the Government met the entire budget of the Middle Schools, the teachers working in the Municipal schools are in direct control of the Municipality and the statements contrary to it are incorrect. No further counter-affidavit in respect of this petition was filed by the aforesaid respondent.
6. Learned counsel for the petitioners has raised two points before me; firstly, that the order passed by the Municipal Education Officer is without jurisdiction inasmuch as he had no authority to transfer or revert the petitioners to the posts of assistant teachers; and, secondly, that admittedly it is a case of reduction in rank without notice and, therefore, bad in law.
7. It is undisputed that in the present case the petitioners have been reduced in rank and reverted to a post they occupied before becoming Head Master, namely, the poet of assistant teacher, It is undisputed that they have not been given any notice thereof. The reason which has been given is that they are not qualified to hold the post of Head Master of a Middle School. In this connection, it is stated that the minimum qualification for a person to be appointed a Head Master of a Middle School is I. A. trained. Petitioner No. 1 has passed 'Madhyama' examination without English which is said to be equivalent to I. A. The other petitioner also claims to have pass-ed I. A. and to have received six months' teachers training course. It is thus obvious that they should have been given an opportunity to show to the satisfaction of the authorities concerned that they were qualified enough to continue to be the Head Masters of the schools. Actually, the question does not appear to have been agitated at all before the order by which it is admitted they have been reverted was passed. This is, therefore, in violation of the principles of natural justice. Again if at all, they were Government servants as alleged by the first respondent, they would be entitled to notice under Article 311 (2) of the Constitution. The order must, therefore, in any view of the matter be struck down on this ground alone.
8. On the second point, a dispute has been raised whether the petitioners are Government servants or Municipal servants. It is admitted by the respondent that the appointing authority was the Municipality. Nothing has been produced to show that the State has taken over the administration and control of the school with regard to the appointment, dismissal, etc. of the teachers. If they were the servants of the Municipality, there is no provision of law pointed out to me which would entitle the Municipal Education Officer to pass the order reverting the petitioners to an inferior post and to transfer them from one place to another. Learned counsel for the petitioners has drawn my attention to the Bihar Municipal (Third Amendment) Ordinance, 1974. It, has been pointed out on behalf of the petitioner that this Ordinance amends Section 3 of the Bihar and Orissa Municipal Act (hereinafter referred to as 'the Act') and adds to it the definition of Municipal' Education Officer which means 'the Sub-Divisional Education Officer of the Sub-Division within the jurisdiction of which the school is situated'. Turning next to the amendment of Section 339 of the Act aforesaid, it appears that the old section has been substituted by a new one which provides for the establishment of a planning committee for education and its powers. Sub-section (3) of the new Section 339 provides that the Education Planning Committee shall discharge its duties and functions in accordance with the rules framed by the State Government. Sub-section (5) provides that the duty of the Committee shall be to prepare a plan for the development of education at primary and middle stages and prepare a list of candidates suitable for appointment to the post of teachers and other servants in the schools mentioned in Section 339-Ka. Section 339-Ka however, provides that notwithstanding anything contained in Section 37, the appointment, posting and the promotion of the teachers and other staff of the establishment of the school shall be made and disciplinary action including removal and dismissal shall be taken against them by the Municipality in consultation with the Municipal Education Officer appointed under Section 339-kha, The latter section, however, does not refer to the appointment of Municipal Education Officer. I have already referred to the definition of 'Municipal Education Officer' in Section 3 of the Act in this respect. Section 339-Kha aforesaid provides that if there is any difference of opinion between the Commissioners of the Municipality and the Municipal Education Officer on the question of appointment, posting, transfer, removal or dismissal of any member of the establishment including teachers of any school the matter shall be referred to such authority as may be prescribed in this behalf by a general or special order by the State Government and the decision of such authority shall be final.
9. On the basis of the aforesaid provision of law, it has been urged on behalf of the petitioner that the Municipality, in other words, the Municipal Commissioners, alone had the jurisdiction to appoint, post or promote teachers of schools under their jurisdiction in consultation with the Municipal Education Officer; but the Municipal Education Officer as such had no jurisdiction to pass the order. In the present case, it is said that there was not even a consultation with the Municipality or Municipal Commissioners made by the Municipal Education Officer before passing the order.
10. On the other hand, Mr. Shamsul Hassan, appearing for the State, has placed reliance on Section 339-Kha, He contends that because the word 'transfer1 is to be found in Section 339-Kha and is not to be found in Section 339-Ka, by implication it would mean that the order of transfer could be passed both by the Municipality and the Municipal Education Officer; in other words, that they had concurrent powers in this respect. The reasoning given by him is that there would not be a difference of language between the two sections, if the two authorities had not concurrent power to do the act, namely, transfer; and, it is urged that 'transfer' not having been included in Section 339-Ka under which the Municipal Commissioners alone could appoint, post or promote, it means that this power of transfer is not to be exercised by Municipality alone tout also by the Municipal Education Officer. I am unable to accept the interpretation sought to be put upon the provision by Mr. Shamsul Hassan. It is obvious that under Section 339-Ka, the power has been given to the Municipality in respect of appointment, posting and promotion of teachers and other staff. Section 339-Kha is not the provision which defines the powers of the Municipal Education Officer. This provision is intended to meet the case where there is a difference between the Municipal Education Officer on the one hand and the Municipal Commissioners on the other. It is thus difficult to come to the conclusion that in the matter of transfer both the Municipal Education Officer ,and the Municipal Commissioners have the concurrent powers by virtue of Section 339-Kha.
11. I may point out that the Ordinance does not appear to have been carefully or well drafted. I have mentioned earlier that the Municipal Education Officer is described as a person appointed under Section 339-Kha, but the latter section does not deal with this appointment at all. There were earlier Ordinances amending the Bihar and Orissa Municipal Act in 1967 and 1968. For the first time, in the year 1967, Section 339 was amended and a new Section 339 was substituted therefor. It was in that amendment that there was Section 339-B which gave the State Government power to appoint Municipal or Notified Area Education Officer. Section 339-A, amended by that Ordinance, therefore, contained the words "the Municipal Education Officer appointed under Section 339-B". In spite of the amendment of the definition, referred to earlier, in the present Ordinance also, the words similar to what obtained in Section 339-A have been retained in Section 339-Ka. Obviously, this is a mistake. Section 339-D, as amended by the Ordinance of 1967, contained the provisions similar to what is to be found in Section 339-Kha as amended by the present Ordinance of 1974. It appears that the word 'transfer' was there in that section and, so that word has been retained even in present Section 339-Kha. Curiously enough, the word 'transfer' is not to be found, as staled earlier, in Section 339-Ka as amended by the present Ordinance or in Section 339-A as amended by the Ordinance of 1967. If a harmonious interpretation is to be given, it is obvious that Sections 339-Ka and 339-Kha would be conflicting to each other if it were to be held that the Municipal Education Officer also independently had the power to transfer by virtue of Section 339-Kha. If all the powers for appointment, posting, promotion, taking disciplinary action, etc., have been given to the Municipal Commissioners under Section 339-Ka, the power of transferring teachers or other member of other staff of the school from one place to another must be deemed to have been vested in the Municipality itself by virtue of Section 339-Ka.
12. In the circumstances, if it be taken that the school was managed and was under the control of the Municipality, the Municipal Education Officer had no jurisdiction to pass the order of transfer independently. No provision of law other than Section 339-Kha has been pointed out to me to show that the Municipal Education Officer had any such jurisdiction.
13. In any view of the matter, therefore, the impugned order has to be struck down. The order is bad as it violates the principle of natural justice and is admittedly an order reducing the petitioners in rank without giving them any notice to place their case; and, secondly, the order is bad even if it be taken that the Municipality had alone the right to pass the order in consultation with the Municipal Education Officer. I would, accordingly, quash the order contained in Annexures 1 and 6 passed by the Municipal Education Officer. This will not, however, affect the right of the appropriate authority to consider the question as to whether the petitioners are qualified to retain the post of Head Masters.
14. In the result, the application is allowed. In the circumstances of this case, there will be no order for costs.