Ram Chandra Prasad v. State of Bihar — 1985 DIGILAW 99 (PAT)

JUDGMENT : Satya Brata Sanyal, J. - This is an application for quashing Annexure "1", an ORDER :dated 25.1.84 by which respondent no. 4 has been appointed as Headmaster in P. L. Shahu High School, Sohsarai, police station Biharsharif, district Nalanda. The said ORDER :has been passed by the Director (Secondary Education)-Cum-Additional Secretary, Education Department, Government of Bihar respondent no. 2). 2. The petitioner's case is that he has been appointed Assistant Headmaster of the said school with effect from the 1st of April, 1966. The school was nationalised on 2.10.1980. The Headmaster of the school retired on 31.1.1984. In usual course the petitioner being the Assistant Headmaster and the seniormost teacher automatically becomes the acting Headmaster of the said school. The authorities would thereafter have to consider the case of the petitioner for promotion on the post of Headmaster of the school. The transfer of respondent no 4 as Headmaster in the vacancy caused on the retirement of the Headmaster jeopardising the petitioner's prospect of promotion is said to be illegal, ultra vires mala fide and without jurisdiction. 3. Mr. Rajendra Prasad Singh appearing for the petitioner contended that the impugned ORDER :of transfer has been made by the State Government which has no power to do so in view of rule 12 and rule 6(3) of the Bihar Nationalised High Schools (Service Condition Rules 1983. He further submitted that, the impugned transfer of respondent no. 4 is not a routine transfer but an accommodative one to the detriment of the petitioner, who is an Assistant Headmaster, and in due course would have become the Headmaster of the school. He further contended that there is no guideline of transfer in the 1983 Rules nor any principle therefor has been laid down. As such, the rule relating to transfer is ultra vires. Lastly, learned counsel submitted that on the 2nd July, 1983, after the Rules were made on the 9th of June, 1983, the Government issued a Circular suspending all transfers till the cadre is finalised. Therefore also the impugned ORDER :of transfer of respondent no. 4 to the petitioner's school is bad in law. 4. Annexure I states that on the request of respondent no. 4 and at the instance of the State, Government respondent no. 4 is transferred to the vacant post of Headmaster in the concerned school. The ORDER :has been passed by Mr. 4 to the petitioner's school is bad in law. 4. Annexure I states that on the request of respondent no. 4 and at the instance of the State, Government respondent no. 4 is transferred to the vacant post of Headmaster in the concerned school. The ORDER :has been passed by Mr. K. N. Mishra, who is Director of Secondary Education-Cum-Additional Secretary, Government of Bihar. The learned counsel's submission is that even though the ORDER :has been passed by the Director of Secondary Education, who is the controlling officer of Headmasters, he has not acted at his own instance but at the instance of the State Government. He has, therefore, abdicated his statutory functions in favour of a superior authority and hence the ORDER :is null and void. He relies on the case of The Purtabpur Company Ltd. v. Cane Commissioner of Bihar and others (A.I.R. 1970 Supreme Court 1896) and the case of Commissioner of Police, Bombay v. Gordhandas Bhanji (A.I.R. 1952 Supreme Court 16). 5. Rule 6, sub-clause (3), states that the controlling officer of Headmasters will be the Director of Secondary Education and the cadre of Headmasters will be the State cadre whereas junior teachers' cadre will be district-wise and the contributing officer of them will be the District Education Officer. Senior and selection grade teachers' cadre will be divisional-wise and their controlling officer will be the Regional Deputy Director. It is, therefore, submitted that even though the ORDER :purports to be under the signature of the Director of Secondary Education, who is the only controlling officer of respondent no. 4, the ORDER :, in fact, has been made by the State Government, which is powerless to pass an ORDER :of transfer. The learned counsel appearing for respondent no. 4 has drawn my attention to rule 12(GA) of the Rules. This rule deals with the transfer of Headmasters of nationalised Schools. The aforesaid sub-section envisages that the power of transfer will vest in the controlling officer or such other officer whom the State Government will invest with such power. It is, therefore, contended by the respondent's counsel that if the State Government can delegate its powers in this regard, it can as well exercise the said powers. He has relied on the case of Godavari S. Parulekar v. State of Maharashtra (A.I.R. 1966 Supreme Court 1404). It is, therefore, contended by the respondent's counsel that if the State Government can delegate its powers in this regard, it can as well exercise the said powers. He has relied on the case of Godavari S. Parulekar v. State of Maharashtra (A.I.R. 1966 Supreme Court 1404). He also submits that the State Government is the employer of the petitioner as well as respondent no. 4. The power to appoint will include all ancillary powers including the power to suspend, transfer and dismiss. This is the implicit power of an employer. I find force in the submission of learned counsel for the respondent. Rule 12 envisages that the ORDER :of transfer can be passed even by a person authorised to do so by the State Government. When the State Government has the power to delegate it necessarily follows that when it delegates its power it does not part absolutely with its own power to pass the ORDER :. The power of the delegator is not denuded when it confers on another person the authority to do things which otherwise that person would have himself done it. Reliance on the Purtabpur Company's case (supra) and the case of Commissioner of Police, Bombay (supra) is misplaced. Those are cases where the statute itself required to exercise statutory powers by named authorities. The named authorities instead of exercising their own discretion acted at the instance of a superior authority which amounted to abdication of statutory powers in favour of an authority not empowered to exercise that power. This is not the case here. In my opinion, rule 12 (GA) provides that Headmaster's post is a transferable one and the said ORDER :of transfer can be passed by his controlling authority as well as by any person authorised to do so by the State Government. This means that the power can also be exercised by the State Government. I do not find any substance in the submission of Mr. Singh so far as this point is concerned. 6. The next submission of the learned counsel for the petitioner that by the impugned transfer the petitioner's chance of future promotion has been jeopardised and this was so done only to accommodate respondent no. 4 requires to be considered. The 1983 Rules have made a great stride with respect to the service conditions of teachers. 6. The next submission of the learned counsel for the petitioner that by the impugned transfer the petitioner's chance of future promotion has been jeopardised and this was so done only to accommodate respondent no. 4 requires to be considered. The 1983 Rules have made a great stride with respect to the service conditions of teachers. Under the 1976 Act each school was a unit by itself and the seniormost teacher would validly claim to be promoted to the post of Headmaster. In the case of Sheo Nath Prasad v. State of Bihar (1984 P.L.J.R. 556) a Division Bench of this Court held that unless the rules are framed the service conditions of the teachers of taken over school could not be altered in view of section 4(3) of the Act. The filling up of the post of Headmaster by an ORDER :of transfer was struck down. The said position, however, does not arise in the present case because the instant ORDER :of transfer has been passed after the coming into force of the 1983 Rules. The validity of the Rules has been upheld in C.W.J.C. No. 4121 of 1983 and analogous cases by a Division Bench of this Court on, the 4th of May, 1984, (reported in 1985 P.L.J.R. 416) what was lacking in Sheo Nath Prasad's case (supra) now stands fulfilled by the framing of the Rules. The Act itself authorised that the service conditions can be altered. It appears to have been so altered and the post of. Headmaster has been made State cadre and not treating the school as a unit. Such being the position, it cannot be said that the hope and expectations which the petitioner entertains fructified in a right to be promoted as a Headmaster. When the service conditions have been altered no right has accrued to the petitioner. The petitioner's service was taken over with a clear mandate that the terms and conditions of his service can be altered. The petitioner cannot make grievance when they have been so altered. Merely because his expectations could not be fulfilled, he cannot lay any grievance against the impugned transfer and complain that his chance of future promotion has been put at jeopardy by the ORDER :of transfer and, therefore, it is malafide and should be struck down. The petitioner cannot make grievance when they have been so altered. Merely because his expectations could not be fulfilled, he cannot lay any grievance against the impugned transfer and complain that his chance of future promotion has been put at jeopardy by the ORDER :of transfer and, therefore, it is malafide and should be struck down. It may be stated here that this is not a usual transfer as is being contended on behalf of the petitioner. It is merely, the posting of a Headmaster from another school to the vacancy caused by the retirement of the Headmaster of the other school. The posting of respondent no. 4 has not taken away the vacancy as such to which the petitioner cannot be considered in view of rule 7(2) of the Rules. Rule 7 provides that 80 per cent of the posts of Headmaster will be filled up by promotion and 20 per cent by direct recruitment. The divisional cadre persons eligible for being appointed as Headmaster can be so appointed on the recommendation of the School Service Board by the State Government or by the person authorised by the State Government. I, therefore, do not find force in the argument of the learned counsel that the future prospect of the petitioner has been jeopardised by the instant posting. It is true that respondent no. 4 has been posted on his request at the vacancy caused by the retirement of the Headmaster. Circular No. 3918 dated 25.10.80 (page 114-Laws of seniority, promotion, transfer and posting-Malhotra Brothers) provides that a person can give his choice to a place of posting. I do not think that since the posting of respondent no. 4 has been according to his choice, therefore, the ORDER :is mala fide. 7. The last leg of the argument of Mr. Singh is that the circular issued by the State Government on the 2nd of July, 1983, suspended the power of transfer as envisaged under rule 12 of the Rules. It may be stated here that the Rules were framed on the 17th of June, 1983. It was, however, published on 26.9.83. Rule (3) envisages that it will come into effect when so published. It may be stated here that the Rules were framed on the 17th of June, 1983. It was, however, published on 26.9.83. Rule (3) envisages that it will come into effect when so published. Rule 21 provides that all Rues framed and ORDER :s issued by the erstwhile Secondary Education Board or the State Government before these Rules came into force will be deemed to be repealed from the date from which these Rules came into force. Mr. Jha, therefore, is quite correct in his submission that this circular is wiped away no sooner the Rules came into force and since the Rules provide for transfer, the transfer effected can not be questioned. I find that this question was also considered, while upholding the validity of the Rules, in the case of Mateshwar Singh and others (C.W.J.C. No. 4121 of 1983 and analogous cases) (supra), by the Division Bench and their Lordships held that section 21(1) does provide a deemed-repeal. Further, clause 27 of the circular dated the 2nd of July, 1983, suspending the transfer relates only to teachers and not Headmasters. It speaks "Shikshako Ke Sthanantar Stagit Rahega". Respondent No.4 is a Headmaster of a school and the Headmasters and teachers have been separately treated by the Act under its various provisions that is, sections 2(g), 2(h), 4(2), 9, 17 etc. 8. I do not find, therefore, any force in anyone of the submissions urged by the learned counsel for the petitioner. 9. In the result, the writ petition fails and is accordingly dismissed. The ORDER :dated 31.1.84 staying the operation of Annexure 1' is recalled and vacated. There will be no ORDER :as to costs.