Patna High Court - Orders
Alka Rani & Anr vs The State Of Bihar & Ors on 4 October, 2018
Author: Sudhir Singh
Bench: Sudhir Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17319 of 2017
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1. Alka Rani, W/o Sri Mithlesh Kumar Singh, R/o Muhalla- Gosai Tola,
Police Station-Patliputra in the district of Patna.
2. Savita Kumari, W/o Sri Kapildeo Chaudhary, R/o 302, Narayansri
Apartment, Anandpuri, West Boring Canal Road, P.S.- S.K. Puri in the
District of Patna.
.... .... Petitioners
Versus
1. The State of Bihar through its Principal Secretary, Human Resources
Department, Govt. of Bihar, Patna.
2. The Director, Primary Education, Govt. of Bihar, Patna.
3. The Deputy Director, Govt. of Bihar, Patna.
4. The District Education Officer, Govt. of Bihar, Patna.
5. The Deputy Development Commissioner, Govt. of Bihar, Patna.
6. The Regional Deputy Director of Education, Govt. of Bihar, Patna.
7. The District Programme Officer (Establishment), Patna.
.... .... Respondents
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with
Civil Writ Jurisdiction Case No.16281 of 2017
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1. Kamlesh Prasad Singh, Son of Sidheshwar Prasad Singh, Resident of
Bajrachak, P.O. & P.S. Katri Sarai, in the District of Nalanda.
2. Bidhan Chandra Rai, Son of Navdeep Chandra Singh, Resident of
Village-Ratan Tola, P.S.-Maner, in the District of Patna.
3. Anil Kumar, Son of Shiv Nandan Prasad Singh, Resident of Village &
P.O.-Salimpur, P.S-Salimpur, in the District of Patna.
4. Dhananjay Kumar Sinha, Son of Rohan Prasad, Resident of Village-
Jagjonpur, P.O./P.S.-Jodan Bigha, in the District of Patna.
5. Umesh Prasad, Son of Late Magar Prasad , Resident of Vill- Dariyapur,
P.O.-Pitwas, P.S.-Nawbatpur, in the District of Patna.
6. Sudharshan Singh, Son of Naujat Singh, C/o Randhir Singh, Resident of
Village-Exchange Gali, Jai Prakash Nagar, in the District of Patna.
7. Ankesh Kumar, Son of Ramyaad Bahadur Puri, Resident of F-4 Shanti
Niketan Chitragupt Nagar, in the District of Patna.
8. Sunil Kumar Gupta, Son of Yadunandan Prasad, Resident of Chiraiya
Tand, Khas Mahal, in the District of Patna.
9. Seema Khatoon, Wife of Shaqiul Hasan, Resident of Katra School,
Katra Mandi, Sultanganj, in the District of Patna.
10. Rajesh Kumar, Son of Rashik Lal Singh, Resident of Ganga Bhawan,
Langertoli Gali, Nala Road, in the District of Patna.
11. Gajala Afshar, Wife of Parvej Ahmad, Resident of New Azimabad
Colony, Near Sandalpur Akhara, P.O-Mahendru, in the District of
Patna.
12. Veena Kumari, Wife of Niranjan Kumar, Resident of 204, Pine Ville,
Patel Nagar, in the District of Patna.
13. Sultana, Wife of S. M. Nishad Ahmed, Resident B-46 P.C. Colony,
Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018
2/32
Kankarbagh, in the District of Patna.
14. Kumari Smiriti Singh, Wife of Chandra Bhushan Rai, Resident of Lekha
Nagar, P.O.-Khagaul, Danapur, in the District of Patna.
15. Anil Kumar Sharma, Son of Ram Bahadur Sharma, Resident of Lekha
Nagar, P.O.-Khagaul, Danapur, in the District of Patna.
16. Krishna Nandan Prasad, Son of Late Radhe Shyam Prasad, Res ident of
Village-Childahi, P.O.-Kurmichak, in the District of Patna.
17. Dhirendra Kumar Pathak, Son of Indrakant Pathak, Resident of
Jakariyapur, Pahari, P.O.-Bari Pahari, in the District of Patna.
18. Kishore Kumar, Son of Ram Lakhan Prasad, Resident of Bhikhnapahari,
Saidpur More, in the District of Patna.
19. Kumari Kiran Patel, Wife of Shailendra Kumar Singh, Resident of Pani
Tanki, Professor Colony, Ashok Puri, Takiyapar, P.O.-Digha, Danapur
in the District of Patna.
20. Suman Kumar Singh, Son of Late Dina Nath, Resident of NYIE-2,
Jhunjhun Mahal Road, New Yarpur, in the District of Patna.
21. Md. Mehdi Imam, Son of Md. Ali Ahmad, Resident of Bhokalpura,
Quarishi, Noon ka Chauraha, Patna City in the District of Patna.
22. Anil Kumar, Son of Ramotar Ram, Resident of Bajrangpuri,
Gulzarbagh, in the District of Patna.
23. Ghazala Afrin, Wife of Arshad Alam, Resident of Tumtum Padav,
Church Road, Kaji Nagar, Phulwari Sharif, in the District of Patna.
24. Prabhanjan Kumari, Son of Sugriv Prasad Gupta, Resident of Maurya
Path, Khajpura, in the District of Patna.
25. Sudha Kumari, Wife of Praduman Singh, Resident of Habsapur, P.O-
Sarshi, Paliganj, in the District of Patna.
26. Kiran Kumari, Wife of Ram Narayan Singh, Resident of Opposite-
Prince Apartment, Magistrate Colony, Ashiyana Nagar, in the District of
Patna.
27. Gayanwati Kumari, Daughter of Ram Dayal Sharma, Resident of
Danapur Cant, in the District of Patna.
28. Amir Chandra Prasad, Son of Late Yadu Paswan, Resident of Vill.-Dev
Kali, P.O..-Vir Anchal- Dhanarua, in the District of Patna.
29. Manju Shri, Wife of Manmohan Sharma, Resident of Flat No. 43, B-03.
Gol Market, Road, No. 12, Rajendra Nagar, in the District of Patna.
30. Shakuntala Kumari Sinha, Wife of Indra Kumar Singh, Resident of
North Mandiri, Near Dwarika High School, PO-G.P.O., in the District
of Patna.
31. Renu Singh, Wife of Shardanand Singh, Resident of L.I.G. 3/80,
Hanuman Nagar, Kankarbagh, in the District of Patna.
32. Sunita Kumari, Wife of Dr. Dilip Kumar, Kailash Apartment, New
Patliputra Colony, in the District of Patna.
33. Ajit Kumar Prabhakar, Son of Kedar Sah, Resident of Mitra Mandal
Colony, Anishabad, in the District of Patna.
34. Sheela Kumari, W/o Madhav Murari Panday, R/o Muhalla-Indrapuri,
Road No.-1, House No. 1/23, P.O.-Keshri Nagar, in the District of
Patna.
35. Kumari Leela, W/o Lalbabu Prasad, R/o Mohalla- Rajeev Nagar, Road
No. 1, P.O.- Keshri Nagar, P.S.- Rajeev Nagar, in the District of Patna.
.... .... Petitioners
Versus
Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018
3/32
1. The State of Bihar, through its Principal Secretary, Human Resources
Department, Govt. of Bihar, Patna.
2. The Director, Primary Education, Govt. of Bihar, Patna.
3. The Deputy Director Govt. of Bihar, Patna.
4. The District Education Officer, Govt. of Bihar, Patna.
5. The Deputy Development Commissioner, Govt. of Bihar, Patna.
6. The Regional Deputy Director of Education, Govt. of Bihar, Patna.
7. The District Programme Officer, (Establishment), Patna.
.... .... Respondents
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with
Civil Writ Jurisdiction Case No.17829 of 2017
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Sharmila Kumari, Daughter of Late Paras Nath Resident of Mohalla-
Rajendra Nagar Road No. 1, Resident of Rajendra Nagar, P.S. Kadamkuan,
District Patna working as an Assistant Teacher, Middle School, Vanita
Vihar, Rajendra Nagar, Patna, Bihar.
.... .... Petitioner
Versus
1. The State of Bihar, through the Principal Secretary, Education
Department, Govt. of Bihar, Secretariat, Patna.
2. The Secretary, Education Department, Govt. of Bihar, Patna.
3. The Director Primary Education, Govt. of Bihar, Secretary, Patna.
4. The R.D.D. Patna, (Bihar).
5. The District Education Officer, Patna Collectoriate, Patna.
6. The District Programming Officer, Establishment, Patna Collectoriate,
Patna.
.... .... Respondents
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with
Civil Writ Jurisdiction Case No.18069 of 2017
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1. Ashok Kumar, S/o Bijendra Prasad, resident of Mohalla- Ganga Bihar
Colony, P.O.- Digha, P.S.- Digha, District- Patna.
2. Mohan Kumar Paswan, S/o Late Kameshwar Paswan, Resident of
Mohalla- Gari Khana, P.O.- Khagaul, P.S.- Khagaul, District- Patna.
.... .... Petitioners
Versus
1. The State of Bihar through the Principal Secretary, Department of
Education, Government of Bihar, Patna.
2. The Director, Primary Education, Bihar, Patna.
3. The Regional Dy. Director, Patna.
4. The District Development Commissioner, Patna.
5. The District Education Officer, Patna.
6. The District Programme Officer (Establishment), Patna.
7. The Block Education Officer, Danapur.
.... .... Respondents
Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018
4/32
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Appearance :
(In CWJC No.17319 of 2017)
For the Petitioners : Mr. Sanjeev Kumar, Advocate.
For the Respondents : Smt.Shilpa Singh, G.A. 12.
(In CWJC No.16281 of 2017)
For the Petitioners : Mr. Sanjeev Kumar, Advocate.
For the Respondents : Smt.Shilpa Singh, G.A. 12.
(In CWJC No.17829 of 2017)
For the Petitioner : Mr. Pushpendra Priyedarshi, Advocate.
For the Respondents : Mr. Madhaw Prasad Yadav, G.P. 23.
(In CWJC No.18069 of 2017)
For the Petitioners : Mr. Deepak Kumar, Advocate.
For the Respondents : Smt.Shilpa Singh, G.A. 12.
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CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
CAV ORDER
12 04.10.2018This batch of writ petitions involve identical issue and there being a common challenge of the same office order contained in Memo No. 9144 dated 31.10.2017 issued from the office of the District Education Officer, Patna, by which earlier transfer of Headmasters, Graduate Trained (Science/Arts) Teachers and Matric Trained Teachers have been cancelled as per the decision taken in the meeting dated 31.10.2017 of „District Primary Teachers Transfer Committee‟ in pursuance to the letter impugned bearing no. 368 dated 30.03.2015 issued by the Director, Primary Education, Bihar, Patna, and such transferred teachers including these petitioners have been directed to make their joining at the previous place of posting in their respective schools. Petitioners‟ name also being figured in the said office order bearing Memo No. 9144 dated 31.10.2017.
Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-20185/32
Facts in brief giving rise to these writ petitions are noticed separately hereinafter:
CWJC No. 16281 of 2017:
There are as many as 35 petitioners in this case. They submitted their individual application for transfer in prescribed format of „Mutual and Choice Transfer‟ in terms of Rule 4 of the Bihar State Government Elementary School Teachers (Transfer) Rule 2006 (hereinafter referred to as „Transfer Rule 2006‟) whereupon following the due procedure prescribed under „Transfer Rule 2006‟, their transfer was made earlier in terms of the decision of the District Education Establishment Committee by individual transfer order having different memo and different dates issued by the District Programme Officer (Establishment), Patna.
Petitioner No. 1 namely, Kamlesh Prasad Singh, after promotion on the post of Headmaster came to be posted on 27.12.2013 in Government Middle School, Shikaria, and serving the post of Headmaster in that School, he made application on 18.11.2014 for transfer in the prescribed format, thereafter transferred to Middle School, Dariyapur, Sampatchak, Patna.
Petitioner No. 2 namely, Vidhan Chandra Rai, getting promotion Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 6/32 on the post of Headmaster came to be posted on 27.12.2013 in Government Middle School, Baikatpur and serving the post of Headmaster in that School, he made application on 18.11.2014 for transfer in the prescribed format, thereafter, transferred at Adarsh Middle School, Danapur. Petitioner No. 3 namely, Anil Kumar, after promotion on the post of Headmaster came to be posted on 27.12.2013 in Government Middle School, Sain, Dhanarua and serving the post of Headmaster in that School, he made application on 20.11.2014 for transfer in the prescribed format, accordingly, transferred at Middle School, Guljar Bagh, Patna. Petitioner No. 4 namely, Dhananjay Kumar Sinha, getting promotion on the post of Headmaster came to be posted on 27.12.2013 in Government Middle School, Pavera Dhanarua and serving the post of Headmaster in that School, he made application on 19.11.2014 for transfer in the prescribed format, thereafter, transferred at Kanya Middle School, Golghar, Patna. Petitioner No. 7, namely, Ankesh Kumar, on promotion as Headmaster came to be posted on 28.12.2013 in Government Middle School, Mekra and serving the post of Headmaster in that School, he made application on 17.11.2014 for transfer in the prescribed format, accordingly, transferred to Bharti Middle School, Mahendru, Patna. Petitioner No. 8 namely, Dr. Sunil Kumar Gupta, getting promotion as Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 7/32 Headmaster came to be posted on 28.12.2013 in Government Middle School, Dumra, Mokama and serving the post of Headmaster in that School, he made application on 27.11.2014 for transfer in the prescribed format, thereafter, transferred to Girls Middle School, Lalji Tola, Patna. Petitioner No. 9, namely, Seema Khatoon, after inter district transfer came to be posted on 21.02.2014 in Government Middle School, Dumri, Punpun and serving the post of Urdu Teacher in that School, she made application on 15.01.2015 for transfer in the prescribed format, thereafter, transferred to Urdu Middle School, Bankipur, Patna. Petitioner No. 10, namely, Rajesh Kumar, after inter district transfer came to be posted on 17.01.2013 in Government Middle School, Taranagar, Sikaria, Bihta, Patna and serving the post of Assistant Teacher (general subject) in that School, he made application on 17.01.2015 for transfer in the prescribed format, thereafter, transferred to Kanya Middle School, Bihari Sao Lane, Patna. Petitioner No. 11, namely, Gazala Afsar, after inter district transfer came to be posted on 25.02.2014 in Government Middle School, Netaul, Dhanarua, Patna and serving the post of Urdu Teacher in that School, she made application on 19.01.2015 for transfer in the prescribed format, thereafter, transferred to Urdu Middle School, Patna City. Petitioner No. 14, namely, Kumari Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 8/32 Smirti Singh, came to be posted on 25.03.2013 in Government Primary School, Milkichack, Barh and serving the post of Assistant Teacher (general subject) in that School, she made application undated for transfer in the prescribed format, thereafter, transferred to Middle School, Khagaul, Patna. Petitioner No. 15, namely, Anil Kumar Sharma, getting promotion to the post of Headmaster came to be posted on 27.12.2013 in Government Middle School, Gorkhari, Bikram and serving the post of Headmaster in that School, he made application on 17.11.2014 for transfer in the prescribed format, thereafter, transferred to Balika Middle School, Danapur. Petitioner No. 16, namely, Krishna Nandan Prasad, after promotion on the post of Headmaster came to be posted on 28.12.2013 in Government Middle School, Shanda, Dhanarua and serving the post of Headmaster in that School, he made application undated for transfer in the prescribed format, thereafter, transferred to Middle School, Sipara, Patna. Petitioner No. 17, namely, Dhirendra Kumar Pathak, getting promotion on the post of Headmaster came to be posted on 28.12.2013 in Government Middle School, Baghatillah, Belchhi, Patna and serving the post of Headmaster in that School, he made application on 19.11.2014 for transfer in the prescribed format, thereafter, transferred to Middle School, Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 9/32 Pahadi, Patna. Petitioner No. 33, namely, Ajit Kumar Prabhakar, getting promotion on the post of Headmaster came to be posted on 26.12.2013 in Government Middle School, Shaguni, Masaurhi and serving the post of Headmaster in that School, he made application on 20.11.2014 for transfer in the prescribed format, thereafter, transferred to Middle School, Danapur, Patna. Petitioner No. 34, namely, Sheela Kumari, came to be posted initially on 13.02.2012 in Government Upgraded School, Badri Bigha, Mashauri, Patna and serving the post of Assistant Teacher (general subject) in that School, she made application on 18.11.2014 for transfer in the prescribed format, thereafter, transferred to Primary School, Shastri Nagar, Patna. Petitioner No. 35, namely, Kumari Lila, came to be posted initially on 11.02.2012 in Government Middle School, Arap and serving the post of Assistant Teacher (general subject) in that School, she made application on 19.01.2015 for transfer in the prescribed format, thereafter, transferred to Middle School, Rajbanshi Nagar, Patna. Petitioner No. 5, namely, Umesh Kumar, promoted on the post of Headmaster on 26.12.2013 and serving the post of Headmaster submitted his application for choice transfer, accordingly, came to be transferred on 05.01.2015 from Government Middle School, Dhanarua to Government Middle School, Harnichak, Phulwarisharif. Petitioner No. 6, Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 10/ 32 namely, Sudarshan Singh, on 26.12.2013 promoted on the post of Headmaster. He submitted his application for choice posting, accordingly, he came to be transferred on 15.01.2015 from Government Middle School, Khanpura, Mashaudhi, Patna to Boys Middle School, Gardani Bagh, Patna. Petitioner No. 19, namely, Kiran Patel, initially appointed on 11.02.2012 as Assistant Teacher in U. M. S. More, Patna. She made application for choice transfer, accordingly, she came to be posted at Middle School, Ramjee Chak, Patna. Petitioner No. 20, namely, Suman Kumar Singh, has not mentioned his date of posting in the present School i.e., Upgraded Middle School, Mashauri, Patna. He made application for choice transfer, accordingly, his transfer was made to Middle School, Yarpur Golghar, Patna on 15.01.2015. Petitioner No. 21, namely, Md. Mehdi Imam, promoted as Graduate Trained Teacher on 10.12.2013. Consequently came to be posted at Middle School, Masaudhi, Patna. He made application for choice transfer, accordingly, his transfer was made to Middle School, Kali Asthan, Mangal Talab, Malsalami, Patna on 15.01.2015. Petitioner No. 22, namely, Anil Kumar, has mentioned his date of posting i.e. 09.09.1994 in the present School but never transferred. He made application for choice transfer, accordingly, his transfer was made to Middle School, Gulzarbagh, Patna. Petitioner No. 23, namely, Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 11/ 32 Gazala Afreen, initially appointed as Assistant Teacher on 23.02.2012 at Primary School, Mahuli, Athmalgola in the district of Patna. she made application for choice transfer, accordingly, her transfer was made from Primary School, Athmalgola to Primary School, Phulwarisharif, Patna vide order dated 15.01.2015. Petitioner No. 24, namely, Parbhanjan Kumar, mentioned his date of posting i.e., 06.09.2012 in the present School. He made application for choice transfer, accordingly, his transfer was made from Upgraded Middle School, Kararia, Masaurahi to Primary School, Murlichack, Patna vide order dated 14.03.2015. Petitioner No. 25 namely, Sudha Kumari, came to be appointed on 11.02.2012 at Middle School, Harauli, Belkasi, Patna, thereafter she was transferred to Middle School, Tarwan, Naubatpur, Patna. she made application for choice transfer, accordingly, her transfer was made to Middle School, Khajpura, Patna on 15.01.2015. Petitioner No. 26 namely, Kiran Kumari, came to be appointed on 11.02.2012 at Upgraded Middle School, Jalpura, Naubatpur. She made application for choice transfer, accordingly, her transfer was made to Middle School, Rupaspur, Jalalpur, Patna on 15.01.2015. Petitioner No. 27 namely, Gyanwati Kumari, came to be appointed as Assistant Teacher and joined on 07.02.2012 at Upgraded Middle School, Gularia Bigha, Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 12/ 32 Masaurhi. She made application for choice transfer, accordingly, her transfer was made at Middle School, Danapura. Petitioner No. 28, namely, Amir Chandra Prasad, has mentioned his date of posting in the present school i.e., 10.12.2013 as a Graduate Trained Teacher. He made application for choice transfer, accordingly, his transfer was made at Upgraded Middle School, Abdullahchak, Sampatchak, Patna. Petitioner No. 29, namely, Manju Shri, has mentioned her date of posting in the present School i.e., 25.03.2013. She also made application for choice transfer, accordingly, her transfer was made at Primary School, Mohammadichak, Mahendru, Patna. Petitioner No. 30 namely, Shakuntla Kumari, was came to be appointed on 13.02.2012 at Upgraded Middle School, Pachdewri, Gopalganj. Her inter district transfer was made at Middle School, Dhanauti, Masaudhi, Patna. She made application for choice transfer, accordingly, her transfer was made at Middle School, Rajapur, Patna. Petitioner No. 31 namely, Renu Singh, was came to be initially appointed on 13.02.2012 at Middle School, Karai, Masaurhi. She made application for choice transfer, accordingly, her transfer was made at Balak Middle School, Machhua Toli, Mahendru, Patna. Petitioner No. 32 namely, Sunita Kumari, was initially appointed as Assistant Teacher and joined on 12.02.2012 at Middle School, Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 13/ 32 Sangrampur, East Champaran. Her inter district transfer was made and she came to be posted at Government Middle School, Kothiyan, Patna on 14.02.2012. She made application for choice transfer, accordingly, her transfer was made to Middle School, Nehrunagar, Patna. Petitioner No. 13 namely, Sultana was initially appointed on 02.02.2012 as an Assistant Teacher in the District of Rohtas. She got inter district transfer and joined Primary School, Mahadav Asthan, Mokama, Patna, thereafter she made application for choice transfer, accordingly, transferred to Middle School, Lohiya Nagar, Mahendru in the year 2015. Petitioner no. 12, namely, Bina Kumari, promoted as a Graduate Trained Teacher on 10.12.2013 and came to be posted at Upgraded Middle School, Maner, Patna. She made application and thereupon transferred to Balak Middle School, Shastri Nagar, Patna in the year 2015. Petitioner no. 18 namely, Kishore Kumar was initially appointed on 03.09.1994 as an Assistant Teacher, never transferred from initial place of posting. He made application thereafter transferred to Middle School, Kankar Bagh, Mahendra, Patna in the year 2015.
Petitioners‟ case is that the competent committee considered their application made for choice transfer in terms of Rule 4 of Transfer Rule 2006, and they came to be transferred Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 14/ 32 considering their choice by individual transfer order bearing different Memos and different dates. The petitioners joined their respective place of posting by virtue of transfer in question. In the meantime, the Director, Primary Education, Bihar, Patna vide Letter No. 368 dated 30.03.2015 setting aside the transfer of all such teachers made since December, 2014 up to March, 2015, asked explanation in respect of the transfer order in question. The order of the Director, Primary Education, Bihar, Patna contained in Letter No. 368 dated 30.03.2015 is already on record vide Annexure-3 to the writ petition. Thereafter, the petitioners made representation before the Principal Secretary, Education Department, Government of Bihar, Patna, against the order of the Director, Primary Education, Bihar, Patna, dated 30.03.2015 as referred above, seeking stay of the same. Whereupon two men enquiry committee was constituted as to submit the report within a period of one week and the petitioners besides others were allowed further to continue at their new place of posting notwithstanding the order of the Director, Primary Education, Bihar, Patna dated 30.03.2015 and they have been serving the post till date.
The said enquiry committee submitted its detail report on 30.12.2015, indicating therein that except for one case of Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 15/ 32 Kiran Kumari, the transfer orders of the then District Education Officer named Chandra Shekhar Kumar being issued in terms of the decision of „District Education Establishment Committee‟. The District Education Officer, Patna vide Letter No. 2881 dated 02.09.2016 requested the Director, Primary Education, Bihar, Patna, as to review his earlier order regarding cancellation of the transfer order, bringing into notice the enquiry report of two members committee and further indicating that such cancellation of transfer would be resulted into certain legal problem.
In the meantime, Bihar State Primary Teachers‟ Association made a complaint before the Principal Secretary, Education Department, Bihar, Patna, pointing out gross illegalities made in the transfer order in question. Bihar State Primary Teachers Association also filed a writ petition bearing C.W.J.C. No. 10910 of 2016, challenging the transfer order of the petitioners. The said writ petition did not reach to its logical end.
The further case of the petitioners is that without application of independent mind, as also without considering the two men enquiry report dated 30.12.2015, the District Education Officer, Patna, issued the order under challenge vide Memo No. 9144 dated 31.01.2017, cancelling the previous transfer of the Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 16/ 32 petitioners besides others and directed them to join their previous place of posting in respective schools.
A counter affidavit sworn by the Principal Secretary, Department of Education, Bihar, Patna, in pursuance to the order of this Court dated 04.12.2017, wherein it has been contended that in between December, 2014 to March, 2015, altogether 54 teachers including 21 Assistant Teachers of special teacher category of 34,500 had been transferred by individual transfer order by the then District Education Officer, Patna, in complete violation of „Transfer Rule 2006‟. Bihar State Primary Teachers‟ Association had filed a complaint pointing out the irregularity committed in the matter of such transfer of teachers in the district of Patna. The Director, Primary Education, Bihar, Patna, vide Letter No. 158 dated 11.02.2015 had stayed the said transfer in question and asked as to submit analytical report. The further contention was that the District Education Officer, Patna, did not stay the individual transfer order nor submitted analytical report, whereupon the Director, Primary Education, Bihar, Patna, vide Letter No. 368 dated 30.03.2015, cancelled all such transfer of teachers made during December, 2014 to March, 2015 by individual order and again directed to submit compliance report. The District Education Officer, Patna, again did not issue formal Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 17/ 32 order of cancellation of such teachers nor submitted compliance report rather sought for guidelines from the Director, Primary Education, Bihar, Patna, whereupon the Director, Primary Education vide Letter No. 398 dated 07.04.2015 held that all such individual transfer orders were ab-initio void as being contrary to the provision of the „Transfer Rule 2006‟, indicating therein that earlier vide Letter No.13 dated 05.01.2015, all the District Education Officers were directed as to complete the process of transfer of Assistant Teachers including special category of 34,540 by 31.01.2015, whereas in the district of Patna such exercise of transfer was not completed within the said cut-off date, and without taking formal permission from the higher authority, the District Education Officer, Patna, fixed a date i.e. 29.03.2015 for the said purpose of transfer of teachers. The District Education Officer, Patna, again sought guidelines from the Director, Primary Education, Bihar, Patna, whereupon vide Letter No. 73 dated 14.01.2016, the Director, Primary Education, Bihar, Patna, again directed as to ensure compliance of earlier order contained in Letter No. 368 dated 30.03.2015. In the meantime, two men enquiry committee was constituted as to make enquiry of such individual transfer order in question issued from December, 2014 to March, 2015. The said enquiry committee submitted its report Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 18/ 32 on 30.12.2015, indicating that all such transfers have been approved by the District Education Establishment Committee, Patna except one Kiran Kumari. Upon consideration, the said two men enquiry report was not found proper for the reason that there being no finding whether such transfers in question were made in compliance of the provisions of „Transfer Rule 2006‟ or not. Thereupon, District Education Establishment Committee, Patna, held a meeting on 27.01.2016 and resolved to cancel all such individual transfer order made between December, 2014 to March, 2015 and communicated the decision of cancellation of transfer of teachers to the Director, Primary Education, Bihar, Patna, vide Letter No. 425 dated 27.01.2016. A writ petition was also filed bearing C.W.J.C. No. 10910 of 2016 by the Bihar State Primary Teachers‟ Association, seeking direction upon the Director, Primary Education, Bihar, Patna, as to approve the decision taken by the District Education Establishment Committee, Patna, in its meeting dated 27.01.2016, whereby all such transfer in question have been cancelled. Thereafter, the Director, Primary Education, Bihar, Patna, vide his Letter No. 956 dated 22.08.2016 clarified that since the transfer in question has already been cancelled by the then Director, Primary Education, Bihar, Patna, vide Letter No. 368 dated 30.03.2015, therefore, no formal approval by the Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 19/ 32 Directorate is necessary and as many as 25 Assistant Teachers in the pay scale of Matric Trained be permitted to join the previous School and they shall be adjusted against the remaining vacant posts of the concerned blocks. It is further contented that vide Memo No. 9144 dated 31.10.2017 as contained in Annexure-14 of the writ petition, all such illegal transfer issued individually since December, 2014 to March, 2015 had been cancelled by the District Education Officer, Patna, in pursuance to the direction of the Director, Primary Education, Bihar, Patna, contained in Letter No. 368 dated 30.03.2015 as also the decision dated 27.01.2016 of the District Education Establishment Committee, which was also taken in pursuance to the said letter of the Director, Primary Education, Bihar, Patna dated 30.03.2015.
It has also been contended that the order under challenge contained in Memo No. 9144 dated 31.10.2017 (Annexure-14) is not a subsequent transfer order, rather it is the formal communication of cancellation of earlier transfer of teachers as being resolved by the District Education Establishment Committee in its meeting dated 27.01.2016 in pursuance to the direction of the Director, Primary Education, Bihar, Patna, vide Letter No. 368 dated 30.03.2015. The „Transfer Rule 2006‟ provides that teachers are entitled to get only two choice transfers Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 20/ 32 in their service tenure provided that there must be an interval of five years between first and second transfer. It was also contended that some of the teachers of special category of 34,500 had already taken benefit of Inter District Transfer in view of the policy decision of the government and they came to be posted in the district of Patna after their transfer and they again got choice transfer by the impugned decision of the District Education Establishment Committee notwithstanding the facts that they do not qualify the criteria of five years interval for seeking such choice transfer. One more plea has been taken by the respondent that since the petitioners have approached the District Development Commissioner, challenging cancellation of their transfer in terms of Rule 7 of the „Transfer Rule 2006‟ which is still pending, therefore, the writ application is premature.
A second supplementary counter affidavit has also been filed on behalf of Principal Secretary, Education Department, Bihar, Patna, bringing the enquiry report of Three Men Committee on record constituted as to make enquiry of the illegalities committed in the matter of transfer of teachers since December, 2014 to March, 2015, the said enquiry report dated 25.01.2018 of Three Men Committee reads as under:-
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CWJC No. 17319 of 2017:
Petitioner no. 1, namely, Alka Rani, after initial appointment came to be posted on 14.12.2012 in Government Middle School, Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 23/ 32 Arap and serving the post of Assistant Teacher (general subject) in that School, she made application on 18.11.2014 for choice transfer in the prescribed format, thereafter, transferred to Middle School, Rajapur, Patna. Petitioner No. 2, namely, Savita Kumari, came to be posted on 06.02.2012 in Government Upgraded Middle School, Chainpur, Warsaliganj, Nawada and serving the post of Assistant Teacher (general subject) in that School, she made application on 27.06.2012 for inter district transfer in the prescribed format, thereafter, transferred to Primary School, Damriyahi Ghat, Malsalami, Patna. Then she made application for choice transfer, accordingly, came to be posted at Middle School, Salimpur Ahra, Patna.
A consolidated counter affidavit has been filed on behalf of the respondent no.1 in pursuance to the order dated 30.11.2017 passed by this Court having the same contention as of the counter affidavit filed in C.W.J.C. No. 16281 of 2017, therefore, it does not require to be noticed afresh.
A second supplementary counter affidavit has also been filed on behalf of the respondent no.1 the Principal Secretary, Education Department, Bihar, Patna, bringing the report dated 25.01.2018 of Three Men Committee.Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018
24/ 32 CWJC No. 17829 of 2017:
Petitioner namely, Sharmila Kumari, initially appointed on 09.02.2012, on transfer came to be posted at Marwari Middle School, Malasalami, Patna and serving the post of Assistant Teacher in that School, she again made application for choice transfer, accordingly, her transfer was made to Vanita Vihar Girls Middle School, Rajendra Nagar, Patna, on 29.03.2015 vide Memo No. 73 dated 29.03.2015 issued by D.P.O. (Estt.), Patna.
A supplementary counter affidavit on behalf of the respondent no.3 the Director, Primary Education, Bihar, Patna, has been filed, contending therein that District Education Officer, Patna, has been directed to consider the claim of the petitioner with regard to payment of salary to the petitioners of this batch of the writ petitions whereas there being no counter affidavit either consolidated or parawise with regard to the issue involved and contention raised in the writ petition.
CWJC No. 18069 of 2017:
Petitioners namely, Ashok Kumar and Mohan Kumar Paswan, both after initial appointment came to be posted in Upgraded Middle School, Jafarpur, Danapur on the post of Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 25/ 32 Graduate Trained (Arts) teacher on 11.12.2013. Both the petitioners made application for choice transfer, accordingly, in terms of the decision of the District Education Establishment Committee, petitioner Ashok Kumar was transferred to Ghanshyam Girls Middle School, Khagaul, Danapur and petitioner Mohan Kumar Paswan was also transferred to Girls Middle School, Khagaul, Danapur.
No counter affidavit on behalf of the respondents has been filed in the instant writ petition.
Before adjudicating the issue involved in this batch of writ petition, this Court would like to take note of the „Transfer Rule 2006‟, which reads as under:
3- "f'k{kd LFkkukUrj.k ds lkekU; fl}kUr%&f'k{kdksa dk in vLFkkukUrj.kh; gksxk] ijUrq fuEufyf[kr ifjfLFk;ksa esa gh LFkkukUrj.k fd;k tk ldsxk& ¼d½ lkeku dksfV ds f'k{dksa dk ikjLifjd LFkkukUrj.k] vFkok ¼[k½ 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;sxh A ijUrq izFke ,oa f}rh; LFkkukUrj.k ds e/; de&ls&de ik¡p o"kksZ dk varjky gksuk vko';d gksxk A ^^ 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{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 ldsxk A iz'kklfud vk/kkj ls fuEukafdr vfHkizsr gS& ¼1½ iz/kkuk/;kid@lgk;d f'k{kd dh xfrfof/k;ksa dk Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 26/ 32 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 gks A ¼ii½ iz/kkuk/;kid@lgk;d f'k{kd ,slh foRrh; vfu;ferrk ftlessa ljdkjh jkf'k ds xcu ,oa vijkf/kd ekeys lfUufgr gksa] esa lafyIr ik;s tk;saA** 4- ikjLifjd vFkok ,sfPNd LFkkukUrj.k ds fy, ftyk f'k{kk v/kh{kd dks fofgr izi= esa vkosnu fn;k tk ldsxk A‟‟ For the purpose of transfer of teachers of Government Elementary Schools, there is a transfer rules referred above, framed under the proviso to Article 309 of the Constitution of India. Since such power to frame rule by the Governor of the State is directly derived from the Constitution, therefore, such rules prevails over executive instruction. There can be no superimposition of conditions on such rule by administrative instructions nor can such rules be modified by executive orders. Because of their superior juristic character such rules cannot even be altered by administrative instruction.
In the case of K.V. Subba Rao -Vs- Government of Andhra Pradesh AIR 1988 SC 887, the Hon‟ble Supreme Court of India held that Rules framed under the proviso of Article 309 of the Constitution of India being legislative in character, such rules bind the State and the State is equally bound like the citizens to comply with.Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018
27/ 32 Now, this Court has to test the validity and propriety of the orders under challenge on the touchstone of „Transfer Rules 2006‟ as also, the correctness of the orders regarding transfer of the petitioners, issued individually, by the District Education Officer, Patna in between December 2014 to March 2015 in light of the decision made earlier of District Education Establishment Committee, Patna.
In my view, there is no doubt that in public service transfer is an incident of service. It is phenomenon which is well accepted by any entrant in public service. Employer is the best judge to decide how to distribute and utilize the services of its employee. However, this power must be exercised honestly, bonafide and reasonable. It must not be exercised on extraneous consideration, for achieving alien purpose or an oblique motive, otherwise it would amount to malafide and colorable exercise of power.
In the present case, situations are slightly different. Here, the orders of transfer of the petitioners have not been made to challenge, rather cancellation of such choice transfer contained in Memo No. 9144 dated 31.10.2017 made subsequently in pursuance to the instruction and direction of the Director, Primary Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 28/ 32 Education, Bihar, Patna, contained in Letter bearing No. 368 dated 30.03.2015, is the main challenge, in this batch of writ petitions.
With regard to the principles of cancellation of transfer, it would be worth quoting the legal position stated by Justice D.K. Seth (as he then was) of Allahabad High Court in the case of Rameshwar Pandey-Vs- Additional Director, Health and Family Welfare, Lucknow 1996 (3) SLR 287 (All), which reads thus:
"Thus issue of order of transfer is a rule and cancellation thereof is an exception. Therefore, there should be reason justifying exception. There cannot be exhaustive illustration of reasons. It depend on the necessity for making the exception either on the part of the administration or for some reason special to the person transferred as may be weighed with the administration. In order to support the exception reasons should either be apparent or be asserted.
Court can always scrutinise the reasons and find out the justification for the exception. Such reasons may either be found out from the order itself or from such other material as may be available before the court."
In the case of Purtabpore Company Ltd. -Vs-
Cane Commissioner of Bihar AIR 1970 SC 1896, the Hon‟ble Supreme Court said that one of the elementary principle of Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 29/ 32 administrative law is that the authority which has to exercise the power is obliged to apply its mind before such exercise. It cannot abdicate its obligation to do so and act at the instance of another authority which is not authorized to exercise the power.
In view of the discussions made above, this Court has to adjudge that the order under challenge regarding cancellation of earlier transfer of the petitioners at the behest of Director, Primary Education, Bihar, Patna, is sustainable in the eye of law ?
Before deciding the issue indicated above, one ancillary issue also requires to be decided: whether posting made at a new place either as a Headmaster or a Graduate Trained Teacher in Government Middle School after granting promotion shall amount to a transfer as envisaged under Rule 3(Kh) of „Transfer Rule 2006‟.
In the case of M. Ramchandaran Vs. Gobind Ballabh AIR 1999 SC 3601, the Hon‟ble Supreme Court said that the sources of recruitment can broadly be categorized into enternal and external sources. Recruitment to any service can be made from different sources i.e. direct appointment, by promotion or by absorption/transfer.
In that view of the matter, petitioners‟ posting at a Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 30/ 32 new place, on a promotion post of either Headmaster or Graduate Trained Teachers shall be treated as an appointment from enternal source by virtue of promotion thereafter posting. Their incidental such change in place of posting after granting them promotion on the post of either Headmaster or Graduate Trained Teacher cannot be treated as a transfer made in terms of Rule 3(Kh) of „Transfer Rule 2006‟.
At this, juncture, it deems expedient to indicate that „Transfer Rule 2006‟ nowhere talks about the grounds for transfer, therefore, in the prescribed format of application for mutual and choice transfer, there being no column as to mention the ground seeking such transfer. In my considered opinion, the finding given in the Three Men Committee report dated 25.01.2018, that transfer of Teachers cannot be made under „Transfer Rule 2006‟ considering their illness/treatment or security, appears to be unfounded, as also, misconceived, therefore, it cannot be upheld.
Since the order of cancellation of earlier transfer of the petitioners, challenged hereunder as contained in Memo No. 9144 dated 31.10.2017, appears to be passed only on the behest of the Director, Primary Education, Bihar, Patna, who has no power under „Transfer Rule, 2006‟ to issue impugned Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 31/ 32 instructions/directions in the matter of such transfer of teachers, which resulted in passing the order of cancellation of earlier transfer of the petitioners, challenged hereunder, therefore, it vitiates the entire exercise, and further on account of misconception regarding the expression „transfer‟ as discussed above and the qualifying time enternal of 5 years between first and second transfer of teachers, the order of the D.E.O., Patna, contained in Memo No. 9144 dated 31.10.2017 is not sustainable in the eye of law, thus, it is set aside, accordingly. The order contained in Memo No. 368 dated 30.03.2015 issued by the Director, Primary Education, Bihar, Patna, is of no valid consequence as it suffers from want of jurisdiction in terms of „Transfer Rule 2006‟, therefore, the same is quashed.
In terms of the discussion and observation made above, these writ applications are, therefore, accordingly, allowed.
However, the District Education Officer, Patna, is directed to pass a fresh order within a period of two months from today, in accordance with procedure prescribed under „Transfer Rule 2006‟ and in terms of the observations made above; in respect of validity of transfer of all the petitioners made earlier from December 2014 to March 2015. If any one is found Patna High Court CWJC No.17319 of 2017 (12) dt.04-10-2018 32/ 32 transferred earlier in teeth of „Transfer Rule 2006‟ in that case the competent authority shall pass appropriate order as to revert him back to the earlier place of posting subject to availability/ existence the post.
It is made clear that till the fresh order is passed by the District Education Officer, Patna, in terms of the direction made hereinabove, the petitioners shall not be disturbed and they shall continue at their present place of posting.
U.K./- (Sudhir Singh, J) U