Nand Lal Mahto v. State of Bihar — 1990 DIGILAW 240 (PAT)

By COURT :- Heard the learned counsel for the parties As we are disposing of the application at the admission stage, we arc recording detail reasons for the order we are going to pass. 2. This order will govern both the cases. The petitioners challenged the order of transfer and have also prayed for an order directing the State to pay their salary. 3. The petitioners who are all teachers in the different primary schools in the district of Dhanbad, were transferred to different schools within that district by Annexure-1 dated 27.12.1989. By annexure 2, the operation of Annexure-1 was stayed. The respondents have brought on record annexure-A dated 23.4.1990 to show that annexure 2 has been recalled. 4. It was submitted on behalf of the petitioners relying on the decision on Krishnadeo vs. State of Bihar & others : 1987 P.L.J.R. 854 that by issuing circular under section 8 of the Bihar non-Government Elementary Schools (Taking Over et Control) Act, 1976, (the Act.), the State Government cannot lay down the service conditions and as tranfer was not a condition of service at the time when the schools were taken over, the petitioners cannot be transferred. It was submitted that annexure 13 dated 28.11.1980/2.12.1980 superseded annexure 15 dated 15.12.1976 (fated on 2.7.1990) issued in exercise of powers conferred under section 8 of the Act, as admitted by the state in Kirshnadeo Mishra (supra). It was urged that it was held in that case that under section 8 the State Government could not have issued any circulars making rules. 5. Admittedly, the petitioners were teachers of such schools which was taken over by the State Government under the Act. Admittedly, again before the schools were taken over, teachers of primary schools were not used to be transferred. According to Mr. Ghosh, as under appropriate provision of law transfer has not been made a condition of service, the petitioners cannot be transferred till that is done. It was urged that in Krishnadeo Mishra (supra) this Court struck down annexure 15 dated 15.12.1976 (filed in this case by respondent no. 9 on 2.7.1990 on the ground that the circulars could not have been issued under section 8 of the Act, and as annexure 15 was not valid, the respondent have no jurisdiction to transfer the petitioners. It was urged that in Krishnadeo Mishra (supra) this Court struck down annexure 15 dated 15.12.1976 (filed in this case by respondent no. 9 on 2.7.1990 on the ground that the circulars could not have been issued under section 8 of the Act, and as annexure 15 was not valid, the respondent have no jurisdiction to transfer the petitioners. It was also urged that annexure 15 had been superseded by annexure 13 dated 28.11.1980 2.12.1980 and annexure 15 being not available, there was no circular on the basis of which the petitioners could have been transferred. 6. Section 4(2) of the Act, inter alia, provides that the service conditions of teachers and other employees of the Schools taken over under the Act, shall continue to remain the same till they were duly altered by the State Government Section 7 of the Act, empowers the State Government to make rules for carrying oat the purposes of the Act. Section 8 of the Act, provides that if any difficulty arises to give effect to the provisions of the Act, the State Government may take appropriate action to remove such difficulty 7. It is thus clear that the power to alter the service conditions has been given to the State under section 4(2) of the Act, and there was no question of issuing any circular and/or direction under section 8 changing the service conditions of the petitioners. 8. Submission of Mr. Ghosh, learned counsel for the petitioners, that annexure 15 dated 15.12.1976 which was superseded by Annexure 13 dated 28./11.2.12 1980 was not tactually correct. What the State Government did in annexure 13 was to reconstitute the Committee to give effect to promotion, transfer, etc. It is correct that in Krishnadeo Mishra annexure 15 was struck down as it was issued under section 8 of the Act. We will proceed on the assumption that transfer is condition of service and for transferring teachers, it was necessary to alter the service condition. That power is there under section 4(2) of the Act. It is unfortunate that in Krishnadeo Mishra (Supra), judgment of the Supreme Court in J.K. Steel Limited vrs. The Union of India : A.I.R. 1970 S.C. 1173 was not brought to its notice. That power is there under section 4(2) of the Act. It is unfortunate that in Krishnadeo Mishra (Supra), judgment of the Supreme Court in J.K. Steel Limited vrs. The Union of India : A.I.R. 1970 S.C. 1173 was not brought to its notice. The Supreme Court in that case held that if exercise of power can be traced to legitimate source, its exercise under different power will not vitiate the action Mentioning of section 8 in annexure 15, therefore, will not vitiate the action of the State Government. Ii is also unfortunate that notice of the Bench was also not drawn to section 4(2) of the Act. Not only this, till appropriate action is taken by the State Government under the relevant provision of the Act. under Article 162 of the Constitution circulars may by issued by the State Government and shall have force of law also. By relying on large number of decisions of the Supreme Court, this was held in Prathiba Singh Vrs. The State of Bihar : 1988 P.L.J.R. 646. In that case, however, the question was whether teachers who were working against unsanctioned posts in the schools taken over under the Act, were entitled to continue as teachers of such schools but the validity of different circulars of the State Government in Krishndeo Mishra (Supra). 9. We have till now discussed the question of transfer by assuming that it was a condition of service and, therefore, could have been altered only by following the procedure in Section 4(2) of the Act. The question is : whether transfer is condition of service. Admittedly, after schools were taken over under the Act, the petitioners became Government Servants and transfer of a Government servant is an incidence of service and not condition of service. The transfer, if it is incidence of service there is no question of altering the condition of service in exercise of power under section 4(2) of the Act, Reference may be made to B. Varadha Rao Vrs. State of Karnataka and others : A.I.R. 1986 S.C. 1955. If transfer is incidence of service of a Government servant, it was not necessary for the State Government to issue annexure 15. We are conscious of the judgment of the Supreme Court in H.L. Trehan and others vrs. State of Karnataka and others : A.I.R. 1986 S.C. 1955. If transfer is incidence of service of a Government servant, it was not necessary for the State Government to issue annexure 15. We are conscious of the judgment of the Supreme Court in H.L. Trehan and others vrs. Union of India and others: 1989 (1) S.C.C. 764 Where the Supreme Court considered section 11(2) of the Caltex (Acquisition of Shares of Caltex Refining (India) Ltd. and of the Undertakings in India of Calex India Ltd,) Act, 1977, which, inter alia, provided that employee shall continue to be employee of the new Government Company on the same terms and conditions, until his remuneration and conditions of service are duly altered by the Company. The Company issued a circular which pre-judicially altered the terms and conditions of service of the employees to their detriment, inasmuch as the perquisites of the employees were reduced. It was held by the Supreme Court that as the circular had prejudicially affected the employees, it was arbitrary, and hit by Article 4 of the Constitution. It was also held that it was not duly altered as provided under the Act. We have already noticed that transfer is an incidence of service and not a condition of service. The case of Trehan (Supra) does not impove the casa of the petitioners. 10. In the result, we find no merit in these writ petitions and the same are dismissed. Application dismissed.