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1993 DIGILAW 17 (PAT)

Asharf Jha v. State Of Bihar

1993-01-20

G.C.BHARUKA, S.B.SINHA

body1993
Judgment G. C. Bharuka, J. 1. The present writ application has been filed by the petitioner challenging the validity of the order dated 5-9-1988 passed by the respondent Director, Secondary Education (Annexure-1) by which he has transferred the private respondent, Shri Rajendra Prasad Choudhary to Nar Narayan Singh High School, Mansoorchak. Beguasarai (hereinafter to be referred to as the school only) as headmaster from high school, pachpaika (Samastipur) under the orders of the "administration" (Shashan ke Adeshanushai) 2. According to the petitioner, he being the seniormost assistant teacher in the school has been authorised to discharge the functions of the headmaster. He assails the impugned order on the ground that the same has been passed pursuant to political interference and the respondent director, who has the statutory authority in this regard, has merely acted on the dictates of the political high ups. It has been further stated that there is a state Level Establishment Committee which has been constituted for the purpose of considering the issue relating to transfer of headmasters. But in this case, no such consultation was held with the said Committee. 3. Under the provisions of the Bihar Non-Government Secondary schools (Taking over of Management and Control) Act, 1981, the State government has framed statutory rules known as Bihar Nationalised secondary Schools (Conditions of Service) Rules.1983 (hereinafter in short the Rules ). These Rules have been subjected to various amendments by Notification No.437 dated 23rd April, 1988. These amending Rules were published in the official gazette on 15th July, 1988, and, therefore, the amendments have come into force from the said date Rule 6 (3) of the said Rule provides that the headmasters of the Nationalised Secondary schools will form a State cadre and the Director will be the controlling authority thereof Rule 12 after its amendment by the aforesaid notification, provided that the transfer of headmasters/assistant teachers/employees will be effected by the Director, Secondary Education on the basis of the recommendations of the Establishment Committee constituted at the directorate level. In this case, admittedly, the Establishment Committee had not made any recommendation for transfer of respondent No.4 to the school in question. 4. In the present case, it is writ large from the impugned order (Annexure-I) itself that the order of transfer has been passed by the respondent Director under the orders of some superior authority identified as "administration. In this case, admittedly, the Establishment Committee had not made any recommendation for transfer of respondent No.4 to the school in question. 4. In the present case, it is writ large from the impugned order (Annexure-I) itself that the order of transfer has been passed by the respondent Director under the orders of some superior authority identified as "administration. " We are not sure as to what the word "administration" in the present context means But it is clear that ths respondent Director, who has been conferred with the statutory authority for passing the order of transfer, has acted under the dictates of some non-statutory authorities. It is established rule of administrative law that where statute direct that certain acts shall be done by specified person, their performance by or under the dictates of any other person is completely prohibited. In the case of Commissioner of Police V/s. Gordhandas, reported in AIR (39) 1952 sc 16 where a statute veste j the power of granting and cancelling a licence in the Commissioner of Police, an order of cancellation issued by the Commissioner was held not to be in exercise of his statutory powers in that behalf because it was made in pursuance of instruction received from the government. It was held by the Supreme Court that "the Commissioner did not in fact exercise his discretion in this case and did not cancel the licence he granted. He merely forwarded to the respondent an order of cancellation which another authority had purported to pass It is evident that the Commissioner had before him objections which called for the exercise of the discretion regarding cancellation specifically vested in him by rule 250. He was, therefore, bound to exercise it and bring to bear on the matter his own independent and unfettered judgment and decide for himself whether to cancel the licence or reject the objection. " 5. Similarly in the case of Purtabpur Company Limited V/s. Cane Commissioner, bihar reported in AIR 1970 SC 1896 , the purported order of the Cane Commissioner was quashed by the Supreme Court holding that, "the power exercisable by the Cane Commissioner under clause 6 (1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of any one not even in favour of the State Government or the Chief Minister. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of any one not even in favour of the State Government or the Chief Minister. " In this case what had happened was that the power of the Cane Commissioner was exercised by the Chief Minister, a authority not recognised under clause 6 read with Clause 11 but the responsibility for making this order was asked to be taken by the Cane Commissioner. 6 In the present case as well, as stated above, the impugned order has been passed under the dictates of certain authorities, who have not been empowered in any way under the Act or the Rules in relation to transfer of the headmasters and, accordingly, the impugned order (Annexure 1)is quashed being unsustainable in law. It will be open for the statutory authority to pass appropriate order keeping in view the provisions made in this regard under the rules. 7. The writ application is, accordingly, allowed. There will be no order as to costs. Application allowed.